id,input,output,fname
0,"nan QUEEN’S BENCH FOR SASKATCHEWAN 2011 SKQB 467 Date: 2011 12 16 Docket: N.J. No. 39 of 2011 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and TREVOR WADE MEYERS Counsel: Ryan W. Snyder for the Crown Carson D. Demmans for the defence JUDGMENT DANYLIUK J. December 16, 2011 FACTS [1] Trevor Wade Meyers stands charged with six separate counts: 1. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did knowingly utter a threat to F.M. to cause death to F.M., contrary to Section 264.1(1)(a) of the Criminal Code. 2. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did without lawful authority confine F.M., contrary to Section 279(2) of the Criminal Code. 3. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did in committing an assault on F.W. Cause Bodily Harm to her, contrary to Section 267(b) of the Criminal Code. 4. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did commit a sexual assault on F.M., contrary to Section 271 of the Criminal Code. 5. THAT HE, the said Trevor Wade Meyers on or about the 27th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, being at large on his Recognizance entered into before a Justice or a Judge and being bound to comply with a condition thereof, to wit, not to contact or communicate directly or indirectly with F.M., except through a member of the Law Society of Saskatchewan, fail without lawful excuse to comply with that condition, contrary to Section 143(3) of the Criminal Code. 6. THAT HE, the said Trevor Wade Meyers on or about the 26th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did knowingly utter a threat to F.M. to cause death to F.M., contrary to Section 264.1(1)(a) of the Criminal Code. [2] This matter proceeded to trial. The evidence revealed that the defendant and the complainant were co-workers who met on the jobsite, then formed personal relationship. Both were scaffolders, support trade to other trades. The defendant was senior and more experienced in this trade. [3] The complainant, F.M., testified. She is 38 years old. She described how she and the defendant met through work, and began their relationship. She testified to her criminal record, which is dated. The only relevant matter was 1999 conviction for importing cocaine. [4] In early February 2011 the complainant and defendant were both employed at the Rocanville mine. They had four days off and decided to come to Regina. They caught ride, buying and drinking some beer. [5] Once in Regina, the couple checked into hotel. There was more drinking. Later, someone decided to buy some cocaine. The evidence is in dispute as to whose idea this was. Allegedly the complainant “knew someone” and the couple walked considerable distance to make buy, only to come up empty. They trekked back to the hotel, with the complainant falling at least once. [6] Once back at the hotel, there was more drinking. Then they took cab to another location provided by the complainant. The defendant gave her money, and she bought an eight-ball of cocaine for $240.00. The defendant said the complainant had no money, so he paid for absolutely everything on this trip. He had withdrawn $600.00 from an ATM to facilitate the drug buy and associated transport costs. [7] Back at the hotel, the complainant cooked and smoked some cocaine, while the defendant snorted some. Each testified that the other had consumed most of the cocaine. As well, the drinking continued, each saying the other drank more. Eventually, both went to sleep or passed out. There was no cocaine left. [8] Thus ended the first day of holidays. [9] The next day was February 4, 2011. The couple got up and decided to go shopping and drinking. It is difficult to say which activity prevailed. [10] The couple attended at and near the Cornwall Centre. number of items were purchased from several stores. Those of relevance included pair of stiletto-heeled shoes for the complainant and, from nearby adult store, vibrator and some lubricant for total of around $110.00. Interspersed with these purchases were several drinking sessions. The defendant said the complainant consumed many “triple paralyzers”, which the complainant denied. [11] After the love shop purchases, the couple went for sushi, and drank saki, paralyzers and beer. Allegedly the complainant had hankering for more cocaine after the sushi, although she disputes this. The couple walked to another hotel to phone for taxi. While there, more alcohol was consumed. The cab took them to another restaurant, where more off-sale beer was purchased, and the couple retired to their hotel room. The complainant said that by far, the defendant had consumed more liquor. [12] The testimony sharply diverges on subsequent events. The parties agree that at some point, the shopping bag containing the vibrator and lubricant was noted to be missing, and that an argument ensued. [13] The complainant testified that she had disrobed and laid down on the bed. She said the defendant noticed the love shop bag was missing, surmised it had been left in the taxi in error, and became angry. She chuckled at this turn of events. This made the defendant even angrier. He began yelling at her, saying she owed him money for the vibrator and lube. He then began to choke her while she was laying on the bed and he was on top of her. She said she tried to scratch him and push him off, but could not. Desperate, she grabbed his groin and began to squeeze, as he continued to choke her. The defendant punched her face and head repeatedly, telling her to let go. She did, but he kept pounding her with his fists. She tried to leave, but every time the defendant would grab her and throw her back onto the bed. He was screaming at her, saying bad things about her family. He shouted at her that she was “not going anywhere” and that he was going to kill her. He threw towel in her face and told her to “clean her fucking self up”. She tried to phone the taxi company to recover the love shop bag, but could not get through. At this point she said the defendant threw her on the bed. She told him no, but he forced himself on her and they had sexual intercourse. She said she could not fight him off. At one point he grabbed her hair and said, “You’re my wife, do what tell you.” After the sexual act was completed, the defendant passed out. The complainant grabbed her clothes and got out of there, seeking refuge with friends. The police were called days later. [14] The defendant testified, with different version of events. He confirmed the first night of drinking and cocaine use, but said it was the complainant who was the bigger drinker and drug user. He said it was her, not him, who pushed to buy cocaine. He said she had gotten paranoid and suffered from “cocaine psychosis”, believing police car was outside and that there were bugs in her eyes. He went to bed quietly while she stayed in the bathroom doing cocaine. [15] The next morning the defendant woke at 8:30 and found the complainant finishing the cocaine. He gave similar account of the shopping trip, except that he was drinking moderately and the complainant was drinking wildly. He produced banking records which tended to confirm that he had paid for everything. [16] The two accounts diverged markedly when the defendant explained his version of what happened in the hotel room. He said they had few more drinks, then decided to have sex, which was consensual. The defendant said “she was totally into it.” He saw the shopping bags, remembered the shoes, and asked to put them on her. She agreed, and intercourse was resumed. He then thought of the love shop purchase. He asked to use the vibrator on her; she agreed, but he could not find the bag. An argument erupted as to who had the bag last. He says she was on the bed and he was standing beside it when she wanted more cocaine. He said no, so she kicked his leg with her pointy shoe. She then attacked him, one hand clawing his eye and the other squeezing his scrotum. She also hit him in the mouth, chipping his tooth. She then had one hand gripping and twisting his penis, while the other was used to pull and twist his testicles half way to his knees. He could not break her grip so he punched her in the face with his fist, as hard as he could. She transferred both hands to his testicles and pulled. He then hit her in the face with his fist four more times, as hard as he could. He finally was able to pry her hands off, one at time. [17] The defendant got cold wet towel from the bathroom and applied it to his testicles. He wanted her gone. He said the complainant sat calmly on the edge of the bed, smoking, naked except for the shoes, telling him things like “you’ll pay”. He then curled up on the same bed, went into fetal position, and went to sleep. He said he thought someone came and went from the room several times during the night. At 5:00 or 6:00 a.m., he woke up and she was gone. He got up at 8:00 a.m. to soak his testicles in cold water. He noted he had been robbed, that everything except his clothes was missing. He said his glasses had been broken into pieces and left on the night table. He was in shock and pain, so he went to the bar fridge for beer, but they were all gone. He left the hotel for friend’s house to recuperate. [18] It is against this dichotomy of versions of events that must determine whether the defendant is guilty of each charge. [19] Has the Crown proven each element of each offence beyond reasonable doubt? [20] In the course of this consideration, how is the issue of credibility to be resolved? [21] It is easiest to analyze each charge in light of the evidence and the applicable law. Certain facets of the testimony bear closer examination when considering particular charges. [22] However, there are some overarching considerations. First, the resolution of each charge is rooted in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] S.C.R. 742. Where credibility is important in trial, the rules as to reasonable doubt are apposite. Where defendant has testified, the sequence of inquiry ought to be as follows: (a) if the testimony of the defendant is believed, he must be acquitted. (b) even if the defendant’s testimony is not believed but there is still reasonable doubt, the defendant must be acquitted. (c) even if the defendant’s testimony does not give rise to any doubt, the trier of fact must ask whether, on the basis of the evidence which is accepted, the defendant’s guilt has been established beyond reasonable doubt. [23] Also see R. v. McLeod, 2008 SKQB 14 (CanLII), 309 Sask. R. 269 per Foley J. at para. [24] There are concerns with the testimony of the defendant in this case, as follows: (a) Generally, his testimony did not appear forthright. All of his own acts were minimized or justified, and all of the complainant’s acts were aggravated. In comparing the overall demeanor of the two witnesses, the complainant appeared to be more straightforward and direct than the defendant. (b) The defendant is large, very muscular person. While the complainant is not petite, the defendant appeared to exaggerate her strength and physical prowess (while contemporaneously alleging she was severely intoxicated) and very much minimized his own. (c) The defendant insisted the complainant not only consumed most of the cocaine, but was the driving force in obtaining it. As pointed out by the Crown, she had no money. By his own admission, the defendant paid for everything, including the drugs and liquor. The defendant described convoluted series of steps required to buy the drugs. At any time, he could have terminated the cocaine buy, either by simply refusing to participate or by withholding money. On cross-examination, he had no plausible explanation for not doing so. His bank records support the Crown’s position in this regard. (d) His assertion that cocaine affected the complainant’s behaviour on the 4th makes little sense when the drugs were consumed the previous day. Likewise, his repeated assertion that the complainant was in “cocaine psychosis” (his term), and his concern about same, does not explain his reaction to her mental state giving her more liquor. (e) The defendant testified as to previous incidents of bad conduct by the complainant. He said on January 23, 2011, the two of them were catching bus to Rocanville from Regina. He said they had an argument in the bus depot, the complainant struck him in the face, and he suffered broken nose. She ran off. He was bleeding. He called his brother for ride. This incident damages his credibility in two ways. First, he said he sought no medical attention for his broken nose, repeatedly saying, “It was just nose.” Second, his brother Lovell Meyers testified. Lovell confirmed he had picked up the defendant at the bus station. He said the defendant’s face was bleeding from several places, and that his glasses were broken. The defendant had already said it was the complainant who broke his glasses on February 4, and tendered an optician’s receipt dated March 4, 2011 showing replacement. Yet this receipt states it is for lenses, not frames. Further, the defendant’s own witness (his brother) indicated the glasses were broken some 12 days before the defendant says it happened. Rather than bolstering the defendant’s credibility, this testimony damaged same. (f) The defendant testified the damage the complainant had inflicted on his genitalia was debilitating. He missed work, then had to be on light duty in the office for nine days. Yet he sought no medical attention until his boss advised him the police were looking for him, whereupon he obtained paramedic’s report which confirmed bruising and scratching to his groin. This was the evening of February 8, four days later. His explanation was that he “didn’t want doctor touching my nuts more.” He first saw physician some two months after being placed in custody on remand. (g) The defendant is 6'4"", over 200 pounds. He is fit, muscular, and imposing figure. When compared to the complainant, his suggestion that it took five punches to her head, as hard as he could, to dislodge the complainant, is implausible. (h) His description of the parties’ behaviour following the altercation defies belief. The photographs of the complainant put in by the Crown graphically depict the damage done to her. Yet the defendant claimed that after the fight she sat on the bed, calmly had couple of cigarettes and drank two-litre wine cooler, and said things to him like, “You fucked up my face, you’re going to pay.” At this point the defendant says he lay down and went to sleep. [25] In short, where conflict exists between the testimony of the complainant and the accused, accept that of the complainant. [26] now turn to consideration of each charge. Sexual Assault [27] Crown counsel, in argument, candidly admitted the evidence on this count was weak. agree. do not believe the defendant’s account, and do not acquit on that basis. Rather, the complainant appeared somewhat confused and uncertain as to the order of events. As with any witness, may accept all, some, or none of her testimony. [28] Taking all of the evidence into account, and even disbelieving the defendant, am left with reasonable doubt as to whether sexual assault occurred. Any such doubt must be resolved in favour of the defendant. [29] I therefore find the defendant not guilty of sexual assault. Unlawful Confinement [30] The complainant swore she tried to flee several times after the melee in the hotel room began. The defendant denies this, insisting that after he had punched her face five times as hard as he could, she sat on the bed calmly smoking and drinking, telling the defendant “you’ll pay”, while the defendant curled up and went to sleep despite having been savagely attacked by her (allegedly unprovoked) minutes earlier. [31] reject unequivocally the defendant’s account, and accept that of the complainant. find as fact that she tried to flee the hotel room several times. find the defendant physically prevented her from doing so each time. [32] On these facts, as found, is the offence of unlawful confinement made out? have considered the following: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) R. v. V.(C.L.), 2003 SKPC 85 (CanLII), [2003] S.J. No. 374 (QL) R. v. Daniels, 2008 SKQB 349 (CanLII), 321 Sask. R. 40. [33] On these facts it is clear to me the defendant knew the complainant was trying to leave the hotel room, and physically prevented her from doing so on several occasions, against her will. Accordingly, I find the Crown has proven each required element of this offence beyond a reasonable doubt, and I find the defendant guilty of unlawful confinement. Assault Causing Bodily Harm [34] have rejected and do not believe the defendant’s testimony as to how the fight began and unfolded. accept the testimony of the complainant. also have no doubt that the defendant’s punches caused injury to the complainant, including blackened eyes, cut to the brow, and extensive facial bruising and swelling. The evidence also reveals injuries to the legs, arms, hand and lower back of the complainant. find as fact that all were caused by the defendant. There was no serious contest on this point. [35] Prima facie, the offence of assault causing bodily harm has been established. However, the defendant raises self defence. The argument of defence counsel was that the complainant started the fight by grabbing the defendant’s testicles, requiring him to hit her in self defence, using force that was not excessive in these circumstances. [36] Neither counsel clearly delineated which section of the Criminal Code was operative in this case. Defence filed R. v. Couture, 2006 SKPC 37 (CanLII), 277 Sask. R. 101. [37] finding of who initiated or provoked the assault is required to assess which section of the Code applies. The complainant says the defendant attacked her and began choking her, and she grabbed his testicles in defence. The defendant says he did nothing, and she grabbed his testicles in one hand and initially clawed at his eye with the other. Yet he said nothing of any scratches or injury in the area of his eye, nor was anything like that noted by the paramedic at the Rocanville mine. [38] Accordingly, the defendant cannot invoke s. 34(1) of the Code. The defendant was not unlawfully assaulted by the complainant. The defendant initiated the attack by choking the complainant. Alternatively, the defendant provoked the assault by the complainant. [39] Yet further, s. 34(1) requires that an accused not intend his use of force to cause death or grievous bodily harm. That is not the case here. In Couture, supra, cited by the defence, Kovatch P.C.J. found that an accused who was strong and who hit the victim twice in the face was, at the very least, reckless in his use of force. Here, the defendant (by his own admission) struck the complainant with a closed fist five times as hard as he could. He is very large, muscular man. Applying the rationale in Couture, the defendant either intended to cause grievous bodily harm or was reckless in the application of force. [40] Finally, s. 34(1) requires that the force used by the defendant not be excessive, and be proportionate to the force applied to him. While there is no requirement that the defendant measure his force to a nicety, here the force used was excessive. [41] Section 34(1) does not avail the defendant in this case, whether the defendant or the complainant was the initial attacker. [42] While only s. 34(1) was relied upon by the defence, also instructed myself as to ss. 35 and 37. On the facts as found, none of these avails the defendant. [43] In this case, the elements required for self defence are not present. I find the defendant guilty of assault causing bodily harm. Threat February 4, 2011 [44] This allegation deals with the events at the hotel on February 4, 2011. The complainant’s testimony in this regard was clear and unequivocal. When she tried to leave the hotel room and the defendant prevented her, he said “you’re not going anywhere” and “I’m going to kill you.” In his testimony, the defendant failed to deal clearly with this allegation. [45] have no doubt the Crown has established all the elements of this offence beyond reasonable doubt. I find as a fact that during the events at the Coachman Hotel in Regina on February 4, 2011, the defendant threatened to kill the complainant, and the defendant is guilty of this charge. Threat February 26, 2011 Breach of Recognizance February 27, 2011 [46] These two charges logically should be dealt with together. [47] The complainant testified that she kept in touch with the investigating officer, Cst. Claude. She said he had advised her via telephone that charges were pending against the defendant but he had not been arrested as he was back in Rocanville. During this time, the defendant telephoned the complainant, saying, “Don’t show up at the fucking trial, watch your back, I’m going to fucking kill you.” He threatened to come to her residence, prompting her to lock her door. Then, after he was arrested and released, he phoned her again and threatened her in similar fashion. The complainant pressed *57 on her phone to trace the call back, but it came up “restricted”. [48] On cross-examination, it was established that the complainant’s testimony about these threats (“I’ll fucking kill you”) was consistent with prior statements and testimony. She was clear that the threat was to kill her, and was made by the complainant. [49] While the complainant recalled the general time frame but not the exact date, Cst. David Adams of the Regina Police Service testified that he attended at the complainant’s residence February 26 and 27, 2011 pertaining to her complaints of death threats by the defendant via telephone. The exact dates are established by him. The defendant had entered into recognizance February 25, 2011 (Exhibit P-1 in this trial). [50] The defendant denied contacting or threatening the complainant on either occasion. [51] I do not believe the defendant and do not accept his testimony and denial. Further, his testimony does not even raise doubt as to these occurrences. Finally, looking at the complainant’s evidence and that of Cst. Adams (both of which I accept) and upon weighing the totality of the evidence, I am not left with any doubt as to the guilt of the defendant on these two charges, and I find him guilty. CONCLUSION [52] I have found the defendant, Trevor Wade Meyers, not guilty of sexual assault but guilty of five charges, being assault causing bodily harm, unlawful confinement, two counts of uttering death threats, and breaching his recognizance. Again, have to say that after careful weighing and assessment of all the evidence, have no doubt of his guilt of these five charges. [53] Counsel may now speak to sentence. J. R.W. DANYLIUK","The complainant and the accused were in relationship and came to Regina where they stayed in hotel, drank, consumed cocaine and shopped. An argument ensued about missing shopping bag. The accused was charged with two counts of uttering death threats to the complainant; unlawfully confining the complainant; assault causing bodily harm on the complainant; committing sexual assault on the complainant; breach of recognizance in having contact with the complainant. At trial, both the complainant and the accused testified as to what transpired during the argument that resulted in the charges. HELD: 1) The accused was found not guilty of sexual assault. 2) The accused was found guilty of unlawful confinement. 3) The accused was found guilty of assault causing bodily harm. The Court did not accept the accused's invoking of self-defence pursuant to s. 34(1) of the Criminal Code. The accused admitted to striking the complainant with a closed fist five times as hard as he could and the force used was excessive. 4) The accused was found guilty of threatening to kill the complainant at the hotel. 5) The accused was found guilty of uttering death threats and breach of recognizance by contacting the complainant. The Court did not accept his testimony and denial.",e_2011skqb467.txt
1,"J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Cuvelier Cuvelier v. Bank of Montreal, 2002 NSSC 284 Date: 20021231 Docket: S.H. 155910C Registry: Halifax Between: Hugh Cuvelier and Doreen Cuvelier v. Bank of Montreal Defendant Judge: The Honourable Justice Donald M. Hall Heard: July 31, Aug 1, 3, 2000, in Halifax, Nova Scotia. Final submission on costs received January 3, 2002. Counsel: William M. Leahey, for the plaintiffs Joel E. Fichaud, Q.C., for the defendants By the Court: [1] Counsel have been unable to agree on costs in this proceeding where, after four day trial, the plaintiffs were successful in recovering the base amount claimed but did not succeed in their claims for aggravated and punitive damages. [2] Mr. Leahey, counsel for the plaintiffs, submitted that costs should be substantially increased above the usual party and party costs because, as he contended, the defendant ought to have admitted liability at the outset rather than forcing the plaintiffs to trial. Mr. Leahey proposes that the court fix costs in the amount of $15,000.00 plus disbursements. [3] On behalf of the defendant, Mr. Fichaud contended that the defendant was justified in contesting the plaintiff's claim as it did and that it did not unduly prolong the proceeding. He does, however, agree that costs be calculated on the amount involved under scale of Tariff A. [4] Both counsel agree that the ""amount involved"" is the amount of the recovery, $29,150.00. Applying scale to this amount would provide costs of $4,725.00. [5] In his submission, Mr. Leahey stated that his solicitor and client fees totaled $18,705.65 plus H.S.T. of $2,957.83 for total of $21,663.48. To my mind, considering that the trial extended over four days and that good deal of preparation would have been involved, this is not an unreasonable amount for Mr. Leahey to charge to his clients. Of course, what portion the other party is obliged to pay under party and party award is another matter. [6] As counsel have noted, Rule 63.04 of the Civil Procedure Rules sets out the factors that the Court may consider in fixing costs. These include: (c) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding; (d) the manner in which the proceeding was conducted; (e) any step in the proceeding which was improper, vexatious, prolix or unnecessary; (f) any step in the proceeding which was taken through over-caution, negligence or mistake; (g) the neglect or refusal of any party to make an admission which should have been made; (j) any other matter relevant to the question of costs. [7] do not accept Mr. Leahey's proposition that the defendant's ought to have admitted liability at the outset. As the decision indicates, the case turned entirely on whether the plaintiff's had established that the money was in the safety deposit box at the relevant time as they alleged. The court accepted their evidence in this respect, but did not condemn the defendant for contending otherwise and defending the claim. The court found no fault on the part of the defendant in its conduct of the proceeding. Accordingly, find that none of the factors (c) to (g) militate against the defendant. [8] Under paragraph (j), however, the court may consider any other matter relevant to the question of costs. In my opinion, the reasonable cost to successful party to obtain recovery of just claim is relevant matter. Here it appears that it will cost the plaintiffs $21,663.48 in legal fees to recover $29,150.00. This may appear to be disproportionate amount of costs in view of the relatively moderate recovery. However, it was necessary for the plaintiffs to expend this amount in order for them to recover the money they had lost through no fault of their own, which in their circumstances was not an insignificant amount. [9] I have concluded, therefore, that it is appropriate to go outside the tariffs in determining what is a reasonable amount for the defendant to contribute to the plaintiffs\' costs. In my view the plaintiff should contribute $10,000.00 toward the plaintiffs\' costs plus disbursements. Counsel have agreed on disbursements of $1,213.16. [10] Accordingly, fix the plaintiffs costs at $11,213.16, including disbursements.","Following a four day trial, the plaintiffs were successful in the recovery of the sum of $29,150 against the defendant. Under the usual tariff, costs would be fixed at $4,725. The plaintiffs sought substantially increased costs on the basis that the defendant should have admitted liability at the outset rather than forcing the plaintiffs to trial. Solicitor and client fees totaled over $21,000. Costs fixed at $10,000 plus disbursements; there was no obligation on the defendant to admit liability but considering the amount of legal fees incurred in relation to the amount recovered, it was appropriate to go outside the tariffs.",2_2002nssc284.txt
2,"QB 1997 No. 235 J.C.M. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: Clifford Ray, of the Northern Village of Sandy Bay, in the Province of Saskatchewan Relator/Proposed v. Norman Nateweyes, Mary Lou Shinglar, Robert R. Ray, Daniel M. Bear, Tony Bear, Garry S. Morin and Frank Richard of the Northern Village of Sandy Bay, in the Province of Saskatchewan Proposed Respondents C. Neely for the Applicant S. Eisner for the Respondents FIAT ROTHERY J. January 21, 1998 The applicant, Clifford Ray, commenced an applicationpursuant to s.19 of The Controverted Municipal Elections Act(the ""Act"") following the municipal election for mayor andcounsellors at the Northern Village of Sandy Bay,Saskatchewan, on October 22, 1997. The applicant showed reasonable grounds for contestingthe validity of the election and the Chambers judge grantedthe fiat to allow the applicant to serve the notice of motionto determine this matter. The application under s.19(1) of the Act was filed on December 8, 1997, and the fiat was granted on the same day. The service of the notice of motionupon all respondents was made within two weeks of the date ofthe fiat. But, counsel for the respondents argues that I have nojurisdiction to deal with the motion because the applicant hasmissed the limitation period for bringing this application. Section 19(1) of the Act states the application to the judgemust be brought ""within six weeks after an election."" Counsel for the respondents calculates the election to be October 22, 1997. The fiat was granted December 8, 1997, forty-seven dayslater. That is beyond the time limit. Counsel for the applicant responds that the application iswithin the time limit because the time limit does not commenceuntil after completion of the judicial recount provided by s.126-128 of The Local Government Election Act. Grostky J. completed his judicial recount on October 30, 1997. Thus, period of thirty-eight days had elapsed, which is within the time limit of s.19 of the Act. Counsel refers to the case of Regina ex rel. Fraser v. Tuckey, 1974 CanLII 297 (AB QB), [1975] W.W.R. 191 (Alta D.C.) in support of the proposition that the election means the voting and completion of the counting. Tuckey is authority for interpreting the word ""election"" in s.19(1) of the Act to mean not only the completion of the voting, but the completion of the counting. But, Tuckey is also authority for the proposition that the completion of voting does not include the judicial recount. The Alberta legislation allowed for recount by the returning officer because the first vote resulted in tie. The Alberta court ruled that the time does not commence to run until that returning officer's recount is completed. Saskatchewan's legislation is somewhat different. If the voting results in tie, the returning officer directs person to pull the name ""out of hat"" from choice of candidates with an equal number of votes. This is provided by s.111 of The Local Government Election Act. But, in this case, no candidates had an equal number of votes when the returning officer counted them. The Local Government Election Act states when the election is complete. It is when the returning officer has declared the results of vote in accordance with s.109 of that Act. It is not only the starting point for determining the limitation period under The Controverted Municipal Elections Act, but also the limitation period for seeking judicial recount under 126 128 of The Local Government Election Act. The legislation is clear. Section 103 of The Local Government Election Act states the deputy returning officer shall count the vote and provide prescribed statement of results. Section 109 provided that the returning officer shall, at the time and place appointed for that purpose, declare the persons elected and post prescribed declaration of results. The prescribed statement of results for s.103 was dated October 22, 1997. However, I have no evidence before meof the date the returning officer declared the results of thevote in accordance with s.109. If the returning officerdeclared the results on October 22, 1997, that date is thecommencement of the six week limitation period. Theapplication is out of time. Before disposing of the matter, I grant counsel leave tofile further affidavit material proving the date the returningofficer declared the results of this vote. It is that datewhich is crucial in calculating the time limit for thisapplicant. If it is sometime after October 22, 1997 and within the time period as have interpreted the legislation, this matter is to be brought back before me.","The applicant commenced an application pursuant to s19 of the Controverted Municipal Elections Act following the municipal election for mayor and counsellors at the village of Sandy Bay. The Chambers judge granted the fiat to allow the applicant to serve the notice of motion and service was made within two weeks of the date of the fiat. The respondents argued there was no jurisdiction to deal with the motion because the applicant had missed the limitation period for bringing this application as s19(1) of the Act states the application must be brought within six weeks after the election. The fiat was granted beyond the time limit forty seven days later. The applicant argued the time limit did not commence until after the completion of the judicial recount provided by s126-128 of the Local Government Election Act. HELD: 1)Leave was granted to file further affidavit material proving the date the returning officer declared the results of the vote which was the crucial date for calculating the time limit for this application.  2)The legislation is clear. Section 103 of the Local Government Election Act states the deputy returning officer shall count the vote and provide a prescribed statement of results. 3)There was no evidence of the date the returning officer declared the results of the vote in accordance with s109. If the returning officer declared the results on October 22/97, that date is the commencement of the six week limitation period and the application would be out of time.",7_1998canlii13907.txt
3,"J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 58 Date: 20100413 Between: Docket: 1755 Her Majesty the Queen and Taryn Lynden Rathgeber Coram: Vancise, Lane and Richards JJ.A. Counsel: Todd G. Parlee for the Appellant Dean Sinclair for the Crown Appeal: From: Q.B. No. 307 of 2009 J.C. of Prince Albert Heard: April 13, 2010 Disposition: Dismissed (Orally) Written Reasons: April 21, 2010 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane Richards J.A. I. Introduction [1] The appellant, Taryn Rathgeber, was charged on a four count information in connection with an alleged impaired driving incident. He contended the information was nullity because it contravened s. 789(2) of the Criminal Code. The Provincial Court trial judge severed the count which was the source of the difficulty. Mr. Rathgeber then sought an order from the Court of Queen’s Bench quashing the trial proceedings. That application was dismissed and Mr. Rathgeber appealed to this Court. We dismissed his appeal with oral reasons following argument. [2] On November 26, 2008 Mr. Rathgeber was charged with four offences on information 24292894. The offences were impaired driving, fail to comply with breath demand, obstruction of peace officer and operating motor vehicle while disqualified. The latter count specified that he was disqualified “by reason of an order pursuant to ss. 253 and 254 of the Criminal Code.” The text of the information is set out below: Charge No. ...while his ability to operate motor vehicle was impaired by alcohol or drug did operate motor vehicle contrary to Section 253(1)(a) of the Criminal Code; and further Chg. #2 Charge No. without reasonable excuse, fail or refuse to comply with demand made to him by peace officer under subs3ection (sic) 254(2) of the Criminal Code to provide forthwith sample of his breath as in the opinion of Constable Michel FORGET was necessary to enable proper analysis of his breath to be made by means of an approved screening device contrary to Section 254(5) of the Criminal Code; and further Chg. #3 Charge No. did wilfully obstruct Cst. M. FORGET peace officer to wit: engaged in the execution of his duty by giving false surname contrary to Section 129(a) of the Criminal Code; and further Chg. #4 Charge No. did operate motor vehicle while disqualified from doing so by reason of an order pursuant to Section 253 and 254 of the Criminal Code contrary to Section 259(4) of the Criminal Code. [3] On November 27, 2008, Mr. Rathgeber pled not guilty to each of these offences. At that time his trial counsel, Mr. Kapoor, advised the court that he wanted to preserve his right to object to the form of the information after plea. He did not specify the nature of the objection although he did say that he might make an application to have the information “struck out” or that he might make an application for severance. [4] The trial was scheduled for April 9, 2009. On that date, Mr. Kapoor made an application for an order quashing the information as being nullity. He contended it was drafted so as to violate s. 664 of the Code. The applicable provision was actually s. 789(2). (2) No information in respect of an offence for which, by reason of previous convictions, greater punishment may be imposed shall contain any reference to previous convictions. [5] In the course of argument, the trial judge said he did not understand why the defect, if there was one, could not be cured by severing count 4, the charge concerning the driving while disqualified offence. Mr. Kapoor’s response was less than clear. At first, he said the severance would not be sufficient to remedy the defect. Subsequently, he said that whether or not it could be severed was up to the judge. He then argued against severance on the grounds that it would be too costly to run trials on different days. He later repeated his opposition to severance order but then again proposed to leave the decision to the trial judge. [6] The prosecutor advised the court that he had received no notice of the application. He also indicated that one of the Crown’s witnesses was moving out of province and for that reason the trial should proceed without further delay. He opposed the application to quash the information. [7] The trial judge then dismissed the application to quash. He held that the defect could be addressed in one of two ways and said the drive while disqualified charge could be amended to strike out the words “by reason of an order pursuant to Section 253 and 254 of the Criminal Code.” Alternatively, he said the defect could be cured if that count was severed. The trial judge advised that he was satisfied he could fairly try Mr. Rathgeber even with knowledge that he had or might have criminal record. [8] Mr. Kapoor immediately indicated that he wanted an adjournment so that he could apply for certiorari. This was opposed by the prosecutor. The judge compromised by holding that he would hear the Crown’s evidence and then adjourn the trial. With that, Mr. Kapoor made an application to sever the drive while disqualified charge. The prosecutor consented to the application and the judge made the order. [9] The judge then stated that he was ready to begin the trial on the impaired driving, refusal and obstruction charges. Mr. Kapoor objected again. He said it would be improper for the judge to preside at trial on those charges but that it would not be improper for him to hear the trial on the drive while disqualified charge. The judge proceeded with the trial as he had earlier proposed. [10] The prosecutor called evidence and closed his case on the impaired, refusal and obstruction charges. The trial was then adjourned so that Mr. Kapoor could take issue with the ruling on the application to quash. He ultimately filed notice of motion returnable in the Court of Queen’s Bench for an order to quash the information or prohibit the trial judge from proceeding on it. [11] Mr. Kapoor’s primary argument in the Court of Queen’s Bench was that the information was nullity and should have been quashed. The Chambers judge disagreed. He said the defect in relation to s. 789(2) of the Code could have been cured by way of amendment or severance. He also held that the trial judge did not err either by failing to recuse himself or by hearing evidence on the impaired driving, refusal and obstruction charges. [12] The Crown acknowledges that, as originally drafted, the information in this case ran afoul of s. 789(2) of the Code. This concession is proper one. [13] In this Court, Mr. Rathgeber did not pursue his argument that the information was nullity which should have been quashed in its entirety. Rather, he contended that, after recognizing a problem in relation to s. 789(2) of the Code and severing count 4 of the information, the trial judge should have dealt only with that count. More specifically, Mr. Rathgeber contended that an apprehension of bias arose when the judge elected to proceed on the first three counts, i.e. the charges concerning impaired driving, refusing a breath demand and obstruction. This was said to be the case because the judge had learned of previous conviction in the course of severing the drive while disqualified count. [14] The test for apprehension of bias is well settled. The leading case in the criminal context is R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484, 151 D.L.R. (4th) 193. Cory J. adopted the following statement of principle from de Grandpre J.’s often-cited judgment in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII (SCC), [1978] S.C.R. 369 at p. 394: …the apprehension of bias must be reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…[the] test is “what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. [15] In our opinion, Mr. Rathgeber’s argument cannot succeed. We are in general agreement with the decision of the Chambers judge. In dealing with count 4, the trial judge learned only of the Crown’s allegation that Mr. Rathgeber had driven while disqualified pursuant to ss. 253 and 254 of the Code. This was not enough to give rise to reasonable apprehension of bias. [16] It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused’s criminal record does not automatically disqualify judge from presiding at trial. See: R. v. Moosomin, 2008 SKCA 168 (CanLII), 239 C.C.C. (3d) 326 at paras. 16-20; R. v. J. (D.B.), 2000 BCCA 616 (CanLII), 149 C.C.C. (3d) 534 at para. 19; R. v. Dorscheid (1991), 116 A.R. 79 (Alta. C.A.). [17] We are not persuaded by the argument advanced on behalf of Mr. Rathgeber. No reasonable apprehension of bias arose by virtue of the trial judge’s decision to proceed in relation to the first three counts in the information. Conclusion [18] Mr. Rathgeber’s appeal must be dismissed. This matter is remitted to the trial judge in order that the case can be concluded.","The appellant was charged on a four count information in connection with an alleged impaired driving incident. He contended the information was a nullity because it contravened s. 789(2) of the Criminal Code. The Provincial Court trial judge severed the count which was the source of the difficulty. The appellant then sought an order from the Court of Queen's Bench quashing the trial proceedings. That application was dismissed and the appellant appealed to this Court. At trial, the appellant made an application for an order quashing the information as being a nullity. He contended it was drafted so as to violate the Code s. 789(2) of which states: 'No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions.' The trial judge dismissed the application to quash. He held that the defect could be addressed in one of two ways: The drive while disqualified charge could be amended to strike out the words 'by reason of an order pursuant to Section 253 and 254 of the Criminal Code.' Alternatively, he said the defect could be cured if that count was severed. The trial judge advised that he was satisfied he could fairly try the appellant even with knowledge that he had or might have a criminal record. The appellant's application for a writ of certiorari quashing the information was dismissed by the Court of Queen's Bench. In this Court, the appellant did not pursue his argument that the information was a nullity which should have been quashed in its entirety. Rather, he contended that, after recognizing a problem in relation to s. 789(2) of the Code and severing count 4 of the information, the trial judge should have dealt only with that count. More specifically, the appellants contended that an apprehension of bias arose when the judge elected to proceed on the first three counts, i.e. the charges concerning impaired driving, refusing a breath demand and obstruction. This was said to be the case because the judge had learned of a previous conviction in the course of severing the drive while disqualified count. HELD: The appeal is dismissed. The test for apprehension of bias is well settled. The leading case in the criminal context is R. v. S.(R.D.). The test is: what would an informed person, viewing the matter realistically and practically û and having thought the matter through û conclude. It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused's criminal record does not automatically disqualify a judge from presiding at a trial. No reasonable apprehension of bias arose by virtue of the trial judge's decision to proceed in relation to the first three counts in the information.",b_2010skca58.txt
4,"SUPREME COURT OF NOVA SCOTIA Citation: Geophysical Service Inc. v. Sable Mary Seismic Inc., 2011 NSSC 71 Date: 20110216 Docket: Hfx No. 190408 Registry: Halifax Between: Geophysical Service Incorporated v. Sable Mary Seismic Incorporated and Matthew Kimball Defendants Judge: The Honourable Justice M. Heather Robertson Heard: February 9, 2011, in Halifax, Nova Scotia SUPPLEMENTARY WRITTEN DECISION: February 16, 2011 Counsel: Colin Piercey and Tricia Barry, for the plaintiff, respondent Stephen Kingston and Justin Kimball, for the defendants, moving parties Robertson, J.: [1] By a motion dated December 16, 2010, the defendants sought an order confirming their ability to pay certain amounts for billed and unbilled time of their respective legal counsel, as well as retainers with respect to ongoing litigation, without such payments violating the terms of two execution orders previously issued February 18, 2010, as Hfx No. 190408 against the defendant judgment debtors to the plaintiff herein, who were successful litigants in this action. My written decision in this matter (2011 NSSC 67 (CanLII), 2011NSSC67) was rendered on February 15, 2011. [2] This is supplemental decision issued following correspondence dated February 16, 2011 received from Mr. Stephen Kingston, solicitor for the defendants, moving parties. Mr. Kingston wished to correct “. aspects of the Decision where believe the Court had misapprehended my oral submissions made during the Motion hearing.” And further states, “It was not my intention in my submissions to expand on the evidence otherwise before the Court in Ms. Cochrane’s affidavit.” The Court gratefully receives this clarification. [3] Ms. Cochrane’s affidavit sworn December 16, 2010, identified in para. 41.a the loans proposed to be used to pay for billed and unbilled time of the respective legal counsel, as well as retainers with respect to ongoing litigation: am advised by Matthew Kimball and do verily believe that: a. With loan or loans from third party or third parties he believes he and SMSI will be able to pay the retainers and legal fees referred to above; [4] The Court can now only rely upon the affidavit evidence of Ms. Cochrane relating to the third party loans. The affidavit evidence does not reveal where the loans come from or if they will reduce the exigible assets of the defendants, available for execution. I am therefore unable to grant the proposed order which accompanied the notice in this matter. [5] will be happy to hear submissions in writing on the matter of costs, failing any agreement. Justice M. Heather Robertson","The judge declared the defendants could pay legal fees from third party loans without offending two prior execution orders that prevented them from disposing of any property. The declaration was explicitly made on the assumption that the loans would not be secured against the defendants' existing assets. Later, the defendants' counsel wrote to the court essentially indicating he could not confirm the loans would not be secured against any assets. The court issued this supplemental decision. In the absence of any evidence the loans will not be secured against assets already subject to the execution order, or will not otherwise reduce those assets, the order and declaration sought can no longer be granted.",4_2011nssc71.txt
5,"Information 24060439 2003 SKPC 56 IN THE PROVINCIAL COURT FOR SASKATCHEWAN AT WATROUS, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN -and- Joanne L. Thompson Christopher White, for the Crown. John Williams, for the defence INTERIM RULING March 22, 2003 Jackson, PCJ Background [1] The accused stands charged that on or about the 16th day of July 2001, at Manitou Beach, in the Province of Saskatchewan, did ...""while her ability to drive a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to section 253(a) and section 255(1) of the Criminal CodeAndhaving consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle contrary to section 253(b) and 255(1) of the Criminal Code."" [2] The matter came on for trial before me on February 24, 2003, in Watrous, Saskatchewan. [3] At the conclusion of the Crown's case, the defence brought a motion to exclude the Certificate of Analyses, such evidence flowing from an invalid approved screening device demand, which infringed the accused's s.8 and s.9 Charter rights. [4] The Crown conceded that if such Charter breaches were found, the appropriate remedy would be to exclude the Certificate of Analyses pursuant to s.24(2) of the Charter. [5] At issue is whether the arresting officer formed the requisite belief necessary to make roadside demand pursuant to s. 254(2). More specifically, whether the officer's determination that the accused motorist had ""consumed alcohol"" was sufficient to bring it within the parameters of this section. [6] second issue was whether the officer's opinion, so formed, could be objectively upheld on the evidence before me leading to such demand. [7] The Crown called RCMP Constable Zambak as its only witness. [8] Cst. Zambak testified he was on vehicle patrol northbound from Manitou Beach near the Town of Watrous. He encountered the accused's vehicle coming from the opposite direction, which he clocked at 90 kilometres per hour in 60 kilometre per hour zone. [9] He initiated pursuit and the subject vehicle was stopped within approximately 200 metres of giving chase. Upon approaching the vehicle, he noted the accused to be the driver and male to be seated in the passenger seat. third passenger was in the rear seat. He detected an odour of alcohol coming from the vehicle and observed plastic bag with roughly half dozen empty beer bottles on the floor. [10] The accused was noted to have bloodshot eyes. She was unable to produce driver's licence or registration for the vehicle. She was polite and cooperative. [11] he accused was asked to take seat in the rear of the patrol car. Cst. Zambak testified that while in the patrol car he was able to ascertain the odour of alcohol was emanating from the accused's breath. The reliability of this piece of evidence was called significantly into question, however, in cross-examination when Cst. Zambak conceded that the only reference to smell of alcohol in his notes, the CANSAY statement, Continuation Report, Prosecutor's Information Sheet and Particulars of Offence related to smell of alcohol coming from the vehicle. Nowhere was there any mention of alcohol being detected on the accused's breath. [12] The importance of noting such material aspect as alcohol coming from the accused's breath in this type of investigation is vital. The absence of any reference to it in all five documented reports raises potential disclosure issues at least, and, in any event, compels the court to conclude that the officer may well be mistaken in this regard. [13] Cst. Zambak testified further that the accused admitted to having her last drink approximately one hour before being stopped. In cross-examination it was pointed out that this notation was found between the ""demand"" and ""fail"" portion of his notes. In the circumstances, he conceded this admission may have in fact occurred after the ASD demand was made, although it would be his usual practice to ask this prior to the demand. [14] In any event, the officer testified that he formed the opinion that the accused ""had consumed alcohol"" and accordingly he administered the approved screening device demand. He reiterated this phraseology in cross-examination. [15] Based upon the ASD ""fail"" and the driving evidence, Cst. Zambak believed he had reasonable and probable grounds to make formal breath demand. He candidly admitted that he had no grounds otherwise, and if she had passed the approved screening device he would have let her go or given 24-hour suspension, depending on the result. [16] Following the requisite rights and cautions, the accused was transported to the nearest detachment in Lanigan and subsequently provided breath samples of 120 mgs. and 110 mgs., respectively. [17] At the scene and the detachment, she declined to exercise her rights to counsel. [18] The first issue raised by the defence related to the evidence of the arresting officer that he determined the accused ""had consumed alcohol"" and therefore, together with the other evidence he had on hand, he believed he was justified in making the ASD demand. [19] Defence counsel maintained this was not what was required by s. 254(2) which reads, in part: Where peace officer reasonably suspects that person who is operating motor vehicle ...has alcohol in the person's body..."" (emphasis added) [20] In support of this proposition, defence counsel provided three decisions: R. v. Hendel [1997] O.J. No. 2849 D.R.S. 97-15263 (Ont. Ct. of Justice (General Division R. v. Smith [1997] O.J. No. 3677 D.R.S. 98-01567 (Ont. Ct. of Justice (Prov. Division)); R. v. Passero [1999] O.J. No. 1370, Court File No. 9953/98 (Ont. Ct. of Justice (General Division)). [21] The Crown subsequently acknowledged by correspondence to the court that no authority had been located to refute these decisions. [22] Initially, had believed the comparison between ""had consumed alcohol"" and ""has alcohol in the person's body"" to be distinction without merit. Upon reflection, and having given careful consideration to the cases cited, I am persuaded that the words ""had consumed alcohol"" are indeed insufficient for the court to conclude that the officer had a reasonable suspicion there was alcohol in her body at the time of the ASD demand. [23] Evidence of consumption manifested by physical observation and/or through dialogue with the motorist may well provide such reasonable suspicion of alcohol in the body. The threshold is far lower than the required belief to make formal breath demand. The wording of the section, however, is clear and unambiguous. It does not leave trier of fact with the necessity of drawing inferences that consumption of alcohol at some point in itself equates to having alcohol in the body. [24] Support for this interpretation can be found in the words of Madam Justice Charon of the Ontario Court of Appeal in R. v. Latour, 1997 CanLII 1615 (ON CA), 34 O.R. (3d) 150 (released June 17, 1997), at paragraph 31, cited with approval in each of the three cases referred to the court (supra): ""The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that person who is operating motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make demand that the person provide ""forthwith"" sample of breath for analysis in an approved screening device."" [25] Crown counsel in R. v. Hendel (supra) at page 3, paragraph 13, cited the decision of the Alberta Court of Appeal in R. v. Gilroy (1988) 1987 ABCA 185 (CanLII), M.V.R. (2d) 123, as contra position, wherein Mr. Justice McClung states at page 125: ""The offence does not call for proof beyond reasonable suspicion that the suspect driver has alcohol in his body, valid demand and an invalid refusal. Legislative priority has removed the process from the Judge's consideration of the degree of impairment that is displayed before the demand is made. The test is consumption alone and not its amount or behaviourial (sic) consequences."" [26] Although Mr. Justice McClung states ""...The test is consumption alone..."", this must be read in context with the first sentence of the quote ""...The offence does not call for proof beyond reasonable suspicion that the suspect driver has alcohol in his body..."". (emphasis added) [27] Even if one could construe this passage to require ""consumption alone"" to be sufficient, would be inclined to the contrary view that there still must be reasonable suspicion of alcohol in the body, for the reasons stated above. [28] The second issue raised by the defence related to the objective evidence to support the arresting officer's reasonable suspicion. [29] Although this determination is unnecessary given my conclusion on the previous point raised, on the evidence before me I would clearly find there was no objective basis upon which a reasonable suspicion of alcohol in the body could be made. [30] This conclusion is reached for two reasons. As set out previously at paragraph 12, the evidence of alcohol on the breath of the accused was not reliable in the circumstances of this particular case. Secondly, the admission of having had her last drink being possibly made after the demand (as conceded by the officer), same could not be relied upon to formulate the required reasonable suspicion. See R. v. Gavin 1993 CanLII 1978 (PE SCAD), [1993] P.E.I.J. No. 136 (C.A.). [31] This then leaves only the evidence of speeding, bloodshot eyes, empty beer bottles in a plastic bag with three persons in the car, and smell of alcohol coming from the vehicle. Objectively, these grounds alone cannot support a conclusion of reasonable suspicion of alcohol in the body of the motorist. useful review in regard to this issue can be found in R. v. McDarby [1998] O.J. No. 2443 (Ont. Gen. Div.) and R. v. Trory [1998] O.J. No. 3297 (Ont. Gen. Div.). [32] For all of the foregoing reasons, the defence application to exclude the Certificate of Analyses based upon a breach of ss. 8 and 9 of the Charter is granted, pursuant to s. 24(2). [33] Accordingly, there being no evidence upon which to convict in regard to the second count, same is dismissed against the accused. [34] The court will now entertain submissions from Crown and defence as to the resumption of the trial in regard to the first count of impaired driving. Jackson, P.C.J.","The accused was charged with driving while her ability to do so was impaired contrary to s. 253(a) and s. 255(1) of the Criminal Code and driving while over .08 contrary to s. 253(b) and s.255(1) of the Criminal Code. At the conclusion of the trial, the defence brought a motion to exclude the certificate of analysis as the demand flowed from an invalid approved screening device demand. HELD: The defence application to exclude the certificate of analysis based on a breach of s. 8 and s. 9 of the Charter was granted. There being no evidence upon which to convict in regard to the .08 charge, it was dismissed.  1) The Court found a distinction between 'had consumed alcohol' and 'has alcohol in the person's body'. The Court found the words 'had consumed alcohol' to be insufficient for the Court to conclude that the officer had a reasonable suspicion there was alcohol in the accused's body at the time of the demand. 2) There was no objective basis upon which a reasonable suspicion of alcohol in the body could be made. The evidence of alcohol on the breath was not reliable in the circumstances of this case. The admission of having had her last drink was possibly made after the demand and could not be relied on to formulate the required reasonable suspicion. The evidence of bloodshot eyes, empty beer bottles in a plastic bag with three persons in the car and the smell of alcohol coming from the vehicle could not alone support a reasonable conclusion of reasonable suspicion of alcohol in the body of the motorist.",d_2003skpc56.txt
6,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 30 Date: February 4, 2011 Information: 30105329 Location: Regina Between: Her Majesty the Queen and Curtis Russell Francis Appearing: Mr. L. Hnatiuk For the Crown Mr. C. Demmans For the Accused VOIR DIRE AND TRIAL DECISION M.J. HINDS, [1] A trial took place before me regarding Curtis Russell Francis who is charged that on or about the 10th day of January A.D. 2009, at or near Regina, Saskatchewan, he did:1. While his ability to operate a motor vehicle was impaired by alcohol or drug operate a motor vehicle contrary to sections 255(1) and 253(1)(a) of the Criminal Code. 2. Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle, contrary to sections 255(1) and 253(1)(b) of the Criminal Code. [2] The Crown called five witnesses to testify at the trial: Constable Ahren Strueby, Constable Melissa Boxall, Dave Fowler, Lisa McDonnel and Constable Todd Gottselig. No witnesses testified for the defence. [3] At the onset of the trial, counsel for the Crown and the accused advised the Court that Constable Strueby obtained Warrant to Search for Blood samples from Justice of the Peace on January 10, 2009. The warrant resulted in blood samples being taken from the accused. The Court was further advised that the blood samples were subsequently analysed and the Crown would be seeking to have Certificate of Analyst setting out the concentration of alcohol in the accused’s blood and report from the analyst dated April 20, 2010, setting out the blood alcohol concentration of the accused at the time of the accident, admitted as evidence at the trial. [4] granted leave to cross-examine on the Information to Obtain Search Warrant. Guided by the Supreme Court of Canada’s decisions in R. v. Garafoli, [1990] S.C.R. 1461 and R. v. Lising, 2005 SCC 66 (CanLII), [2005] S.C.R. 343, found that the defence had established there was reasonable likelihood (i) that cross-examination is necessary to enable the accused to make full answer, and (ii) that cross-examination could elicit relevant and material evidence of probative value that may discredit the existence of the requisite reasonable grounds. [5] In this case counsel for the Crown and defence agreed that Constable Strueby should testify on voir dire for the purpose of the Court making determination of the validity of the warrant and the admissibility of Certificate of Analyst. Counsel for the Crown and accused also agreed that evidence heard on the voir dire of Constable Strueby could be applied to the trial proper. [6] The first issue before the Court arises from the voir dire and concerns whether the Information to Obtain blood samples contained sufficient grounds in support of the warrant. I found that it did not and as a result there was a breach of the accused’s rights under s. 8 of the Charter to be free from unreasonable search and seizure. I then conducted an analysis pursuant to s. 24(2) of the Charter respecting the violation of the accused’s s. 8 rights. I determined that the Certificate of Analyst and the report from the analyst dated April 20, 2010, should be admitted into evidence at trial. [7] then considered all of the evidence before me at trial. found the Crown had proved that the accused was operating his vehicle and was guilty of the offence of operating motor vehicle while over .08. entered judicial stay of proceedings on count one. The facts arising from the evidence at the voir dire [8] Constable Strueby was performing general patrol duties with Constable Dodds during the early morning hours of January 10, 2009. At 1:19 a.m., the officers were dispatched to attend motor vehicle collision which had occurred at 2007 6th Avenue in the City of Regina. The officers arrived at the scene in their patrol car at 1:22 a.m. Constable Strueby observed grey 1991 Ford Tempo vehicle wrapped around power pole on the north side of 6th Avenue. After observing the scene of the accident, Constable Strueby was of the view that the Tempo vehicle had been driving eastbound on 6th Avenue when it veered in northerly direction and struck power pole on the north side of 6th Avenue. [9] Constable Strueby observed male in his mid 20’s that was the sole occupant of the Tempo vehicle. He observed the male to be unconscious, with his feet located in the driver’s leg/foot area of the vehicle. The rest of the male’s body was slumped across the passenger’s seat. Emergency Medical Services personnel (hereinafter referred to as “EMS”) were on the scene of the accident and attending to the male, who was unresponsive. After short time, EMS extracted the male from the Tempo vehicle and put him in an ambulance. [10] Constable Strueby was advised by his police partner, Constable Dodds, that the registered owner of the Tempo vehicle was Curtis Francis. Constable Strueby later, independently, confirmed that the male he observed was Curtis Francis, using police database. [11] Constable Strueby accompanied EMS and Mr. Francis to the Regina General Hospital and to trauma room number seven, where Dr. Radford attended to him. [12] Constable Strueby initially testified that while he was at the scene of the accident, he smelled beverage alcohol in the interior of the Tempo vehicle. He testified that it was not an overly strong smell of alcohol. Constable Strueby testified that after Mr. Francis was extracted from the Tempo vehicle he could smell strong odour of alcohol in the ambulance and at the Regina General Hospital. [13] Dr. Radford and nurse worked on Mr. Francis in trauma room number seven. Constable Strueby observed that during this time, Mr. Francis lapsed in and out of consciousness. He also observed that at times Mr. Francis flailed his arms around. Dr. Radford was concerned that Mr. Francis had head injury. CT scan and X-rays were done on Mr. Francis. Constable Strueby was advised that Mr. Francis was in stable condition, however, the CT scan was positive for brain bleed. [14] Sergeant Bray attended at the hospital. Sergeant Bray directed Constable Strueby to get “blood warrant” for Mr. Francis. Constable Strueby testified that warrant was necessary for the following reasons: (1) he thought Mr. Francis had been driving his vehicle that early morning, (2) the vehicle had been in an accident, (3) it was apparent that Mr. Francis had been drinking alcohol, and (4) Mr. Francis was in no condition to consent to providing samples of his breath. [15] Constable Strueby had standard police “blood warrant kit” delivered to him at the hospital. [16] Constable Strueby completed an Information to Obtain Warrant For Blood Samples by writing in several areas of the form. Constable Strueby then went to Justice of the Peace Corey Boychuk’s home in the City of Regina. Constable Strueby testified that he signed the Information to Obtain before Justice of the Peace Corey Boychuk at 3:30 a.m. on January 10, 2009. The Information to Obtain reads as follows: This is the information of Constable Ahren Strueby Peace Officer in the Province of Saskatchewan, hereinafter called the informant, taken before me. The informant says that he has reasonable grounds to believe that the suspect, Curtis Francis has within the preceding four hours committed, as result of the consumption of alcohol, an offence under section 253 of the Criminal Code and was involved in an accident resulting in the injury to Curtis Francis person, to wit: brain bleed. The informant further says that there are reasonable grounds to believe that Dr. Radford, qualified medical practitioner is of the opinion that by reason of any physical or mental condition of the suspect that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the suspect is unable to consent to the taking of samples of blood and that the taking of samples would not endanger his life or health. The informant further says that his/her reasonable grounds for belief are as follows: Interior of vehicle smelled strongly of beverage alcohol. Accused Curtis Francis smelled of beverage alcohol. Wherefore the informant prays that warrant may be granted authorizing peace officer to require qualified medical practitioner to take, or to be taken by qualified technician under the direction of qualified medical practitioner, such samples of blood of Curtis Francis as in the opinion of the person taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the blood. SWORN BEFORE me at 0330 hours this 10th day of January, A.D. 19 2008 at Regina, in the Province of Saskatchewan “Cst. A. Strueby 695” Signature of the Informant) Justice of the Peace in and for the Province of Saskatchewan [17] Constable Strueby testified that he incorrectly filled in the date in the jurat as being January 10, 2008, rather than the correct date of January 10, 2009. Constable Strueby did not, however, testify as to the reason, if any, that Justice of the Peace did not sign as the witness to the Information to Obtain. [18] Justice of the Peace Corey Boychuk issued Warrant to Search for Blood Samples from Curtis Francis on January 10, 2009 (Exhibit P-1 on the voir dire). The warrant specified that the blood samples were authorized to be taken between the hours of 1:22 o’clock a.m. and 5:22 o’clock a.m. [19] Constable Strueby went back to the hospital and gave the blood warrant to Dr. Radford. At 4:02 a.m., Dr. Radford drew two samples of Mr. Francis’ blood. Constable Strueby took possession of the blood samples and exhibited them at 4:58 a.m. on January 10, 2009. The samples were sent away for analysis. On June 28, 2009, Constable Strueby received Certificate of Analyst respecting the blood samples taken from Mr. Francis. [20] The Certificate of Analyst, Certificate of Qualified Medical Practitioner (Dr. Radford) and curriculum vitae of the analyst, Tracy Cherlet and her written report dated April 20, 2010, were marked as Exhibits P-2, and respectively, at the voir dire. [21] During cross-examination on the voir dire, Constable Strueby admitted: (a) The only information that he provided to Justice of the Peace Boychuk in support of the warrant was contained in the Information to Obtain. (b) The Information to Obtain did not contain any details of the accident. (c) He and EMS personnel arrived at the scene at the same time. Due to the severity of the accident, EMS took control of the scene. As result he does not know if EMS personnel moved Curtis Francis before he saw him in the vehicle. (d) He observed that Curtis Francis was not wearing seat belt. (e) He observed Mr. Francis’ buttocks to be situated on the driver’s side of the vehicle. (f) There was lot of damage done to the Tempo vehicle. The passenger side door was bent in as result of colliding with the power pole. (g) Despite his testimony during the voir dire that Curtis Francis “smelled strongly of beverage alcohol”, the Information to Obtain says that Curtis Francis “smelled of beverage alcohol”. (h) The Information to Obtain does not include the source of his belief that Mr. Francis was the driver of the vehicle. Nor does it speak to the reliability of the source of his belief. (i) There were witnesses at the scene of the accident. He was advised by Constable Dodds that these witnesses had not seen anyone flee from the Tempo vehicle. The Applicable Law Charter Voir Dire [22] The burden of proof rests upon the accused to establish on balance of probabilities that the warrant to seize his blood samples was invalid and that there was an infringement of his rights as guaranteed by s. of the Charter. [23] Section of the Charter states as follows: Everyone has the right to be secure against unreasonable search or seizure. [24] Section 256 of the Criminal Code deals with Warrants to Obtain Blood Samples. It reads as follows: (1) Subject to subsection (2), if justice is satisfied, on an information on oath in Form or on an information on oath submitted to the justice pursuant to section 487.1 by telephone or other means of telecommunication, that there are reasonable grounds to believe that (a) person has, within the preceding four hours, committed, as result of the consumption of alcohol, an offence under section 253 and that person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person, and (b) qualified medical practitioner is of the opinion that (i) by reason of any physical or mental condition of the person that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the person is unable to consent to the taking of samples of his blood, and (ii) the taking of samples of blood from the person would not endanger the life or health of the person, the justice may issue warrant authorizing peace officer to require qualified medical practitioner to take, or to cause to be taken by qualified technician under the direction of the qualified medical practitioner, such samples of the blood of the person as in the opinion of the person taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood. justice of the peace may issue warrant to seize blood samples where the conditions prescribed in s. 256(1) of the Criminal Code are met. [25] In R. v. Clark, [1995] S.J. 566, Gerien J. discussed the requirements of s. 256(1) of the Criminal Code and the test to be applied on judicial review of the validity of warrant and the sufficiency of the information underlying it as follows at paragraphs 10 11: 10 Section 256(1) of the Criminal Code speaks of justice being satisfied “that there are reasonable grounds to believe that” person has committed an offence under s. 253 and was involved in an accident resulting in death or bodily harm. Section 253 creates the offences of driving while impaired or while the concentration of alcohol in person’s blood exceeds 80 milligrams in 100 millilitres of blood. The standard to be applied by the justice is that the grounds be such that “credibly-based probability” is established. Suspicion alone is insufficient. See: Director of Investigation and Research, Combines Investigation Branch et al v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 41 C.R. (3d) 97 (S.C.C.). The justice must consider and weigh the grounds as presented and then decide whether they meet the standard. 11 When court is called upon to review the validity of warrant and the sufficiency of the information underlying it, the test to be applied is that stated in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 at 188 (S.C.C.) and quoted in R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), at p. 195: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. The approach to be taken has been set forth in R. v. Grant, supra, R. v. Wiley (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) and R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) and adopted in this province in R. v. Richter (1994), 1994 CanLII 4663 (SK CA), 120 Sask. R. 257 (C.A.). [26] In R. v. Morelli, 2008 SKCA 62 (CanLII), [2008] S.J. No. 300, Hunter J.A. of the Saskatchewan Court of Appeal provided comprehensive summary of the standard of judicial review when there is challenge to the issuing of search warrant, at paragraphs 19 24: 19 In the instant case, the trial judge reviewed the information provided to the justice to obtain the search warrant. Counsel agree that in her review of the decision of the issuing justice, the trial judge correctly set out the applicable standard of review in R. v. Garofoli as follows: 2. The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization. 20 The standard of review set out in Garofoli has been affirmed in many subsequent cases including, R. v. Araujo, which confirm that the analysis of the affidavit in support of the search warrant is undertaken after any incorrect information has been excised and the information contained therein is amplified by the evidence given on the voir dire. 21 In R. v. Hopkins this Court noted that errors in the information provided to the justice do not automatically invalidate search warrant: [11] The reviewing court must still assess the facts placed before the authorizing justice in light of the additional evidence brought out at trial to determine whether there continues to be basis upon which the search warrant could have been issued: Araujo. Where an officer has reasonable grounds, acted in good faith, and made minor and technical mistakes in drafting the affidavit material, amplification evidence is permissible to determine whether the requisite grounds were present. 22 Further, with respect to the treatment of informant information and referring to Garofoli, the Court in Hopkins stated: [15] Thus, the “totality of the circumstances” must be considered. Weaknesses in one area can be offset by strengths in others. The issue is whether having regard for the totality of the information sworn to by the officer, the information is compelling, credible and corroborated (see: Debot and Plant, 1993 CanLII 70 (SCC), [1993] S.C.R. 281). [16] In Debot the Court considered number of factors with respect to whether the information provided by an informant was compelling, credible and corroborated. An informant’s tip may be found more compelling and credible according to the degree of detail and its specificity, such as the names of the participants in the offence; the location of the event; the time of day when the event was to take place; and whether the informant’s information came from first-hand observations or “mere rumour or gossip?” [19] The fact that more detail can lend greater credibility to an information does not mean that the police must provide more, The police officer has to provide sufficient detail so as to permit the justice of the peace to determine that reasonable grounds exist for the warrant to issue. [Footnotes omitted] 23 In R. v. Pires; R. v. Lising, the Supreme Court commented on the purpose of the Garofoli hearing as follows: [30] However, the Garofoli review hearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to presumptively valid court order.. .The reviewing judge on Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. Hence, there is relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context 24 The reviewing court examines whether the statements in the information are supported by the material contained therein, or whether they are more in the nature of conclusions. This question must be assessed against the “totality” test, looking to the whole information and excising any misleading parts. [See: R. v. Breton and R. v. Pastro.] [emphasis added] Analysis Re: Validity of Blood Warrant [27] In the present case, having reviewed the whole of the material presented, am of the view that there was no basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions of s. 256 of the Criminal Code existed. [28] While do have concerns with the absence of Justice of the Peace Boychuk’s signature on the witness portion of the jurat on the Information to Obtain and with the date in the jurat (10th day of January A.D. 2008), am satisfied having heard the testimony of Constable Strueby (amplification) concerning the events of January 10, 2009, that he swore the information before Justice of the Peace Boychuk at 3:30 a.m. on January 10, 2009. am of the view this is technical error and is not fatal to the warrant. [29] In this case am of the view that Constable Strueby did not provide sufficient detail in the Information to Obtain so as to permit the Justice of the Peace to determine that reasonable grounds exist for the warrant to issue. [30] The Information to Obtain largely consists of boiler-plate. This is to be expected in such document. In R. v. Morelli, supra, Hunter J.A. made the following comment on the use of boiler-plate in Informations to Obtain: Boiler-Plate Statements 51 Some latitude must be allowed to those who prepare the materials in support of search warrant since the same are not prepared by lawyers. As is often the situation, as in the instant case, the Information is less than perfect and, of course, more information could have been disclosed. However, as noted earlier, errors, omissions and inaccuracies do not necessarily mean the search warrant should not have issued. [See: R. v. Hopkins and R. v. Pires.] [31] The first paragraph of the Information to Obtain is largely boiler-plate. It requires an individual to write in their name as the Peace Officer providing the information (Constable Ahren Strueby). The third paragraph requires the informant to write in the name of the physician whom they believe is of the opinion that the suspect is unable to consent to the taking of blood samples and that such blood samples would not endanger the suspect’s life or health (Dr. Radford). Likewise, paragraph five requires the informant to write in the name of the person who the blood samples are to be taken from (Curtis Francis). [32] The second paragraph of the Information of Obtain requires more of the informant. The informant must write in the name of the suspect whom they have reasonable grounds to believe has within the preceding four hours committed, as result of the consumption of alcohol, an offence under s. 253 of the Criminal Code and was involved in an accident. The informant must also write in who was injured as result of the accident (injury to Curtis Francis) and the nature of the injury (a brain bleed). [33] The fourth paragraph of the Information to Obtain is the critical paragraph. The informant is no longer simply filling in blanks on boiler-plate. The informant is now required to provide his reasonable grounds for belief. In this case those reasonable grounds consist solely of two pieces of information: (1) “Interior of vehicle smelled strongly of beverage alcohol”, and (2) “Accused Curtis Francis smelled of beverage alcohol”. [34] In my view, Constable Strueby omitted crucial ground for his belief. He did not depose that he believed that Mr. Francis was the driver of any motor vehicle, let alone the driver of the Tempo motor vehicle which was registered in his name and which crashed into a light standard around 1:19 a.m. on January 10, 2009. Nor did Constable Strueby depose that he believed that Mr. Francis was in care and control of the motor vehicle which could have been accomplished by writing that he observed that Mr. Francis was the sole occupant of the vehicle, was unconscious, with his feet located in the driver’s leg/foot area of the vehicle and the rest of his body slumped across the passenger’s seat. Constable Strueby knew all of this information when he applied for the warrant. He failed to communicate this basic information to Justice of the Peace Boychuk. [35] I am of the view that the information which Constable Strueby deposed in the Information to Obtain, when reviewed as a whole, did not constitute reasonable grounds for the belief that the accused had committed an offence under s. 253. Accordingly, I hold that the Warrant to Search for Blood was invalid. [36] find that the taking of the blood samples from the accused constituted warrantless search. further find that the taking of the blood samples from the accused constituted violation of the accused’s right to be secure against unreasonable search and seizure as guaranteed by s. of the Charter. As the accused's section Charter right was breached, what is the appropriate action to be taken under section 24(2) of the Charter? [37] Section 24 of the Charter states as follows: (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [38] The main authorities on the exclusion of evidence, under s. 24(2) of the Charter, prior to the release of the Supreme Court decisions on July 17, 2009, were R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 (Collins), and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 (Stillman). The judgments of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32 (Grant) and R. v. Harrison, 2009 SCC 34 (CanLII), [2009] S.C.J. No. 34 (Harrison) now replace the previous approach that was taken when considering whether to exclude evidence under s. 24(2) of the Charter. [39] Under the Collins/Stillman approach to s. 24(2) of the Charter where the Court found Charter breach, Certificate of Analyses evidencing the results of conscripted breath samples would almost automatically be excluded on the basis of trial unfairness. Grant and Harrison have altered the inquiry that must be made by trial judge in determining whether, notwithstanding Charter breach, the evidence should be excluded. Pursuant to the approach set out in Grant, it does not automatically follow that conscripted evidence obtained following Charter breach is to be excluded. [40] In Grant, the Supreme Court of Canada defined the purpose of s. 24(2) of the Charter. The Court found that the purpose of the section is to maintain the good repute of the administration of justice. The “administration of justice” encompasses both the rule of law, as well as the upholding of Charter rights within the judicial system. The phrase “bring the administration of justice into disrepute”, as found in s. 24(2), is to be interpreted as meaning the “long term sense of maintaining the integrity of, and public confidence in, the justice system” (Grant at 66-67). [41] The inquiry under s. 24(2) of the Charter is an objective one, and looks at “whether reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute” (Grant at 68). Three avenues of inquiry under section 24(2) [42] When faced with an application for exclusion under s. 24(2), Court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to “three avenues of inquiry”. The three avenues of inquiry were described as follows at paragraph 71: (1) First Inquiry: The seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct) [43] During this inquiry the Court has to determine whether the admission of evidence would send message that the Courts, as institutions responsible for the administration of justice, condone the state deviation from the rule of law based on the fact that they failed to disassociate themselves from the “fruits of that unlawful conduct” (Grant at 72). This is fact specific inquiry. [44] This inquiry requires trial judge to evaluate “the seriousness of the state conduct that led to the breach”. The more severe or deliberate the infringing conduct was, the greater the need for the Courts to disassociate themselves from that conduct by excluding evidence linked to it, in order to preserve public confidence in and ensure state adherence to the rule of law. [45] If the conduct of the officers was wilful or reckless disregard of Charter rights, it will be more serious violation and will have negative effect on the public confidence in the rule of law. This will increase the chances of bringing the administration of justice into disrepute (Grant at 74). However, if there is the need to prevent the disappearance of evidence or there is “good faith” on the part of the police officers this may mitigate the need for disassociation from the police conduct. If the breach was “merely technical in nature” or resulted from an “understandable mistake”, the Court will not have to be as concerned with disassociation (Harrison at 22). (2) Second Inquiry: The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little) [46] In Grant, the Court indicated at paragraph 76, that trial judges must concentrate on “the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused”. This requires an evaluation “of the extent to which the breach actually undermined the interests protected by the right infringed” and the “degree to which the violation impacted on those interests”. [47] The more serious the infringement on the individual’s rights or freedoms, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute (Grant at 76). This stage of the inquiry should aim to prevent the mistaken belief that Charter rights do not count. (3) Third Inquiry: Society’s interest in the adjudication of the case on its merits [48] The third stage deals with the criminal trial process and whether its “truth-seeking function” is better served by the admission or exclusion of the evidence in question. This is based on the belief that it is in the interest of society to ensure that individuals who are accused of violating the law are brought to trial, and are dealt with according to the law. [49] The Court points out in Grant, at paragraph 79, that Canadian society “generally expects that criminal allegation will be adjudicated on its merits”. Thus, this third avenue of inquiry requires trial judge to ask him or herself “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion?” Bodily Evidence under Grant [50] In Grant, the Court also held that the reliability of the evidence “is an important factor in this line of inquiry” because the exclusion of reliable evidence can render trial “unfair from the public perspective, thus bringing the administration of justice into disrepute” (at paragraph 81). The Court recognized that the third avenue of the inquiry would generally favour admission of bodily samples on the basis of their reliability: The third line of inquiry the effect of admitting the evidence on the public interest in having case adjudicated on its merits will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. (See Grant, supra at para. 110) [51] Another important consideration is the importance of the evidence to the Crown’s case. Where the evidence is at the heart of the Crown’s case, if it is unreliable its admission is more likely to bring justice into disrepute; if it is reliable its exclusion may have more negative impact (Grant, supra at 83). In this case the evidence which the defence seeks to exclude is the Certificate of Analyst which sets out the results of the blood tests and accompanying report of the analyst which sets out the blood alcohol concentration of the accused at 1:19 a.m. The blood alcohol concentration of an accused is central to the Crown’s case in charge under s. 253(1)(b). The three avenues of inquiry in the present case. 1. The seriousness of the Charter-infringing police conduct. [52] With respect to the first avenue of the inquiry, must consider the police conduct involved in the violation of the accused’s s. right under the Charter. [53] While I have found that the blood warrant was invalid and that the seizure of blood samples from Mr. Francis breached his s. 8 right to be secure against unreasonable search or seizure, I am of the view that Constable Strueby was nonetheless acting in good faith when he obtained blood samples from Mr. Francis. [54] When Constable Strueby attended 2007 6th Avenue at 1:22 a.m., he observed that grey 1991 Ford Tempo vehicle, registered to Mr. Francis, wrapped around power pole on the north side of 6th Avenue. No other vehicles appeared to be involved in the accident. Mr. Francis was the sole occupant of his Tempo vehicle. Mr. Francis was unconscious. His feet were situated in the driver’s leg/foot area of the vehicle. The rest of his body was slumped across the passenger’s seat. Constable Strueby smelled beverage alcohol in the interior of the Tempo vehicle. He also smelled beverage alcohol on Mr. Francis. After Mr. Francis was extracted from the Tempo vehicle, Constable Strueby could smell an odour of beverage alcohol in the ambulance when he accompanied Mr. Francis to the Regina General Hospital. Constable Strueby was advised by Dr. Radford that Mr. Francis had brain bleed injury, was unable to consent to the taking of blood samples and the taking of such samples would not endanger Mr. Francis’ life. Acting on that information, Constable Strueby provided an Information to Obtain to Justice of the Peace Boychuk and obtained blood warrant. Thereafter blood samples were obtained from Mr. Francis. [55] In my view, this was not an instance where Constable Strueby wilfully or recklessly disregarded Mr. Francis’ s. Charter right. While I have found the Information to Obtain in support of the blood warrant deficient, I am confident that Constable Strueby honestly held the belief that Mr. Francis was drinking and driving and was acting in good faith throughout the early morning of January 10, 2009. He attempted to comply with the law by obtaining valid warrant. Under these circumstances do not find his conduct to be serious. 2. The impact of the breach on the Charter-protected interests of the accused. [56] With respect to this avenue of inquiry, I am of the view that the breach of Mr. Francis’ s. 8 Charter right was done in good faith and did not seriously undermine the interests protected by the accused. The breach of Mr. Francis’ right under s. 8 of the Charter was not flagrant, but rather technical in nature. The Justice of the Peace and disagree as to whether reasonable grounds were present for the blood warrant. 3. Society’s interest in the adjudication of the case on its merits. [57] The evidence in question is Certificate of Analyst and accompanying report dated April 20, 2010, which sets out the results of the concentration of alcohol in the accused’s blood arising from blood samples taken from the accused following the Charter breach. The reliability of this evidence, of course, can be subject to challenge by the defence at the trial itself. Although offences under ss. 253(1)(a) and (b) are not amongst the most serious of offences in the Criminal Code and are generally disposed of with fines and driving prohibitions, the societal problems they are intended to denounce and deter are amongst the most serious faced by innocent users of the highway. In the face of this, am of the view that the truth-seeking function of the trial process would be better served by the admission of the evidence. Conclusion on section 24(2) of the Charter [58] Section 24(2) of the Charter states that the evidence (obtained following the Charter breach) shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings (in this case the trial of the accused) would bring the administration of justice into disrepute. [59] Notwithstanding the Charter breaches in this matter, conclude that, having regard to my findings in the three stages of inquiry, the admission in the trial of the Certificate of Analyst and report of the analyst dated April 20, 2010, the Warrant and Certificate of Qualified Medical Practitioner will not bring the administration of justice into disrepute and accordingly, rule in favour of their admission at trial. [60] The Certificate of Analyst reveals that samples of blood taken from the accused contained 229 milligrams of alcohol in one hundred millilitres of blood. The report of Analyst Tracy Cherlet dated April 20, 2010, provided two estimates of blood alcohol concentration (BAC) for the accused at 1:19 a.m. on January 10, 2009. The first estimate of BAC is based on the BAC at 4:02 a.m. (blood sample) which was 229 mg% and on the assumption that the accused’s drinking concluded one half hour or more prior to the time of collision, such that peak BAC was attained prior to, or at the time of the collision. The second estimate of BAC is based on the BAC at 4:02 a.m. (blood sample) which was 229 mg% and on the assumption that the accused’s drinking continued up until the time of the collision, such that the peak BAC was attained after the time of collision, prior to the time the blood was taken. [61] Using the assumptions set for the first estimate, Analyst Cherlet opined that the BAC of the accused at 01:19 a.m. is estimated to be between 256 mg% and 283 mg%. Using the assumptions set out for the second estimate, Analyst Cherlet opined that the BAC of the accused at 01:19 a.m. is estimated to be between 236 mg% and 263 mg%. Analyst Cherlet further opined that by combining estimates one and two, the BAC of the accused Mr. Francis at the time of the collision at 1:19 a.m. would be between 236 mg% and 283 mg%. Analyst Cherlet further opined that all individuals would be impaired in their ability to operate motor vehicle with BAC within this range. Additional Evidence at Trial [62] The evidence of Constable Strueby will be applied to the trial. At trial Constable Strueby also testified that it was cold during the early hours of January 10, 2009 and 6th Avenue had been recently graded and the roadway was icy. [63] Constable Gottselig testified that he and his partner, Constable Hogan work as traffic collision investigators. They arrived at the scene of the accident on 6th Avenue around 1:21 a.m. on January 10, 2009. Constable Gottselig observed grey Tempo vehicle which had come to rest against power pole. He went to the passenger door of the Tempo and observed the upper torso of lone male slouched on the passenger seat with his head resting on the front passenger window. He also observed that the lone male’s feet were in the driver’s side floor area of the vehicle. He also smelled the odour of beverage alcohol coming from inside the vehicle. He was unsure if the male was wearing seat belt. [64] Constable Gottselig tried to talk to the male in the vehicle, however, there was no response. Constable Gottselig observed that the vehicle was running and the transmission was set in the drive setting. He was unable to say if the vehicle could be put in motion. He turned the key in the ignition of the vehicle to the off position. [65] Constable Gottselig and his partner made note of the damage to the vehicle. Constable Gottselig also observed that telephone utility box on the roadway was damaged. He observed single set of tire tracks from the Tempo going eastbound on 6th Avenue which then rotated in counterclockwise direction ending up against power pole. [66] Constable Gottselig testified that the temperature was around minus fifteen Celsius and that there was some packed snow and loose snow on the roadway which made driving slippery. He added that he was able to walk on the roadway without difficulty. [67] Constable Melissa Boxall testified that she attended the scene of the accident on 6th Avenue at 3:40 a.m. on January 10, 2009, for the purpose of taking photographs. photo booklet of eight photographs taken by Constable Boxall was admitted into evidence at trial. The photographs show the passenger side door of the Tempo vehicle dented from side impact with power pole along with an area of impact on the driver’s side door. [68] Dave Fowler and his wife Lisa McDonnel live at 2007 6th Avenue. The power pole which the Tempo vehicle struck is located on 6th Avenue across the street from their three-story home. Dave Fowler was getting ready to go to bed around 1:30 a.m. on January 10, 2009. Around this time he heard two sounds from his bathroom located on the third floor of the home. The first sound he heard was the opening of the garage door to his home on the ground level. This coincided with his wife arriving home. Dave Fowler also heard the sound of car going fairly fast on the roadway outside his home. He then heard loud bang and observed puff of smoke and the wires on nearby power line swaying back and forth. Mr. Fowler then went downstairs to the second floor of his home where he saw his wife. Mr. Fowler then went to window on the second floor of his home and observed car to be up against power pole on 6th Avenue. Mr. Fowler did not see anyone leave the car or enter the car. He placed call to 911. As Mr. Fowler was not dressed, he asked his wife to go outside to see how things were. Mr. Fowler observed that the police and an ambulance came to the scene of the accident within five to ten minutes. Mr. Fowler admitted on cross-examination that he did not have his eyes on the car at all times after it collided with the power pole. [69] Lisa McDonnel testified that after arriving home and speaking with her husband Dave, she became aware that an accident had occurred outside of their home. She did not see the accident occur. Lisa and Dave met on the second floor of their home. Dave was on the telephone to 911 and from window overlooking 6th Avenue she saw car up against pole. Less than minute later Lisa McDonnel went from the second floor of her home to the garage on the ground floor and thirty or forty feet to the car up against power pole on 6th Avenue. Ms. McDonnel observed one person inside the car. That person was slumped over onto the passenger side of the car and appeared to be asleep. Before she could knock on the window of the car the police arrived at the scene. She did not observe anyone leave the car. Issue at Trial [70] The issue at trial is whether the Crown has proven beyond a reasonable doubt that the accused, Curtis Francis was the driver of the Tempo motor vehicle or alternatively was in care and control of the motor vehicle. Analysis for Trial [71] I am of the view that the Crown has proved beyond a reasonable doubt that Curtis Francis was the driver of the Tempo vehicle which collided with the power pole on 6th Avenue at 1:19 a.m. on January 10, 2009. [72] found Dave Fowler, Lisa McDonnel and Constables Strueby and Gottselig to be very credible and reliable witnesses. There is no question that none of the Crown witnesses actually saw Mr. Francis at the wheel of his Tempo vehicle prior to it colliding with the power pole. However, when their evidence is examined as a whole I am sure that Mr. Francis was driving his Tempo vehicle when it collided with the power pole. [73] The evidence establishes that at approximately 1:19 a.m. on January 10, 2009, from the third floor of his home, Dave Fowler heard the sound of car going fairly fast on the roadway outside his home. He then heard loud bang and observed puff of smoke and the wires on nearby power line swaying back and forth. Within less than one minute following the crash, from his second story window, Mr. Fowler observed car to be up against power pole on 6th Avenue. This vehicle was the Tempo owned by Mr. Francis. infer that the Tempo struck telephone utility box causing the puff of smoke which Mr. Fowler observed. The Tempo also struck the power pole which caused the power lines to sway, which Mr. Fowler also observed. [74] While Mr. Fowler was looking at the car below him, he did not see anyone leave the car or enter the car. find that no more that one minute passed from the time Mr. Fowler took his eyes off the car, placed call to 911 and had his wife go outside to the car. On route to the car from her home, Lisa McDonnel did not see anyone leave the car. Lisa McDonnel saw one person in the car, who find to be Curtis Francis, who was slumped over onto the passenger side of the car and appeared to be asleep. Ms. McDonnel remained at the car until EMS personnel and police arrived at the scene. [75] Constable Gottselig and Constable Strueby also saw only one unconscious occupant in the vehicle. That occupant was Mr. Francis. Constable Gottselig also noticed that the engine in the Tempo vehicle was still running, with the keys in the ignition. He also noted that the transmission was set in the drive position. Constable Gottselig observed that the upper torso of Mr. Francis’ body was slouched on the passenger seat area with his head resting on the front passenger window. He also observed that Mr. Francis’ feet were in the driver’s side floor area of the vehicle. Similar observations were made by Constable Strueby. [76] am of the view that the evidence establishes that Mr. Francis was driving his Tempo vehicle on 6th Avenue when he lost control of the vehicle and struck the electrical utility box and power pole. The fact that his feet were located in the driver’s side floor area of the vehicle and the position of his upper body and head on the passenger side of the front seat area of the Tempo lead me to conclude he was in fact the driver of the vehicle when it collided with the power pole. The impact and resulting damage to the passenger side of the Tempo, in my view, account for some movement of Mr. Francis’ body within the vehicle. [77] In addition, on the evidence before me find that there was not enough time that the vehicle was not in the view of Mr. Fowler, his wife, Ms. McDonnel, or the police to have the driver leave the vehicle and be replaced by the unconscious Mr. Francis, positioned as he was. In my view the only reasonable conclusion is that Mr. Francis was the operator of the vehicle at the time of collision. [78] As I have determined that the accused was the operator of a motor vehicle at 1:19 a.m. on January 10, 2009, with a blood alcohol concentration of between 236 mg% and 283 mg%, I find him to be guilty of count number two. [79] In accordance with the usual practice in this jurisdiction, conditional stay shall be entered on count number one, to be made complete upon the expiration of the appeal period or alternatively, until such time as all initiated appeals have been completed, whereby conviction on count number two is maintained. M.J. Hinds,","The accused was charged with impaired care and control of a motor vehicle and care and control of a motor vehicle while his blood alcohol level exceeded .08. The accused was found in the driver's side of a vehicle with his legs near the pedals. His body was slumped over into the passenger side. The vehicle had collided with a power pole and sustained significant damage. The engine was running when the police arrived. There was no one else in the vehicle. The accused was transported to hospital where the doctor suspected he had a brain bleed and recommended the police obtain a blood warrant. The officer who swore the Information to Obtain the warrant indicated that the interior of the vehicle smelled strongly of beverage alcohol and the accused smelled of beverage alcohol. The Justice of the Peace did not sign the Information to Obtain. The issues before the Court were whether there had been a breach of the accused's s. 8 right to be free from unreasonable search and seizure and whether the Crown had proven beyond a reasonable doubt that the accused was in care and control of the motor vehicle. HELD: The blood warrant was found to be invalid, meaning that the blood samples were obtained as part of a warrantless search in breach of s. 8. The Information to Obtain the blood warrant did not depose that the officer believed the accused was the driver of the vehicle which had crashed into the power pole or that the accused was in care and control of the motor vehicle. The officer should have included information about the accused's position in the vehicle and that the accused was unconscious. Without this information, the Information to Obtain did not contain reasonable grounds to believe that the accused had committed an offence under s. 253 of the Criminal Code. However, the blood sample evidence was admitted after a s. 24(2) analysis. The Court held that the officer was acting in good faith and that he honestly held the belief that the accused was drinking and driving when he swore the Information to Obtain. The impact on the accused was technical in nature and did not seriously undermine the accused's rights. The Court held that the truth seeking function of the trial process would be better served by admission of the Certificate of Analysis. The Court found that the accused was in care and control of the motor vehicle at the time of the collision. There was no evidence that anyone else was in the vehicle and the position of the accused when discovered suggested he had been driving the vehicle. The accused was found guilty of driving while his blood alcohol level exceeded .08. The Court held that his blood alcohol level was between 236 mgs% and 283 mgs%.",b_2011skpc30.txt
7,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 188 Date: 2018 06 25 Docket: CRM 19 of 2017 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN and CORY JAY GRAHAM and MELANIE AMY BOULETTE Counsel: Denis I. Quon for the Crown Tanner J. Daniels for the accused JUDGMENT SCHERMAN J. June 25, 2018 Introduction [1] Cory Jay Graham [Cory] and Melanie Amy Boulette [Melanie] are charged with, between August 31, 2016 and September 15, 2016, at or near Medstead in the Province of Saskatchewan: a. Unlawfully producing cannabis marihuana contrary to section 7(1) of the Controlled Drugs and Substances Act, SC 1996, 19 [CDSA]; b. Unlawfully possessing cannabis marihuana in an amount exceeding kilograms, for the purposes of trafficking, contrary to s. 5(2) of the CDSA; and c. Unlawfully having in their possession Canadian currency of value exceeding $5,000 knowing that all or part of the said property was obtained by the commission in Canada of an offence punishable by indictment contrary to s. 354(1)(a) of the Criminal Code, RSC 1985, C-46. [2] At the conclusion of trial Crown counsel applied to amend the indictment to cover the period March 1, 2016 to September 15, 2016. In Murray, 2003 SKCA 120 (CanLII), 241 Sask 101, the Saskatchewan Court of Appeal held that an amendment to an information expanding the time particulars of the offence can be made at trial based upon evidence that indicates the offence may have been committed within the amended timeframe. Since the evidence was to the effect that marihuana plants did not start arriving until early June, grant amendment of the indictment to cover the period June 1, 2016 to September 15, 2016. [3] Cannabis marihuana was being grown during the period and at the location particularized in the charges against them on property the accused owned. The central issues with respect to the charges are whether the Crown has proven beyond reasonable doubt that: a. They were unlawfully producing cannabis; b. They possessed the cannabis for the purposes of trafficking; and c. The currency in question was obtained by the commission in Canada of an offence punishable by indictment. [4] The defendants testified. Their evidence, in extreme summary, was that: a. The marihuana being grown on their property was being grown by another individual or individuals to whom they had leased the property for that purpose; b. They believed the marihuana was being grown under valid licences; c. They were not producing the marihuana or parties to its production; d. They did not possess the marihuana or if they were technically in possession, that possession was not for the purposes of trafficking; and e. The currency in question was not obtained by the commission in Canada of an offence punishable by indictment. Background Facts [5] Having been alerted by provincial conservation officer that marihuana appeared to be in production on the property in question, the local RCMP detachment decided to investigate. It asked for the assistance of an RCMP emergency response team [ERT]. The ERT, consisting of approximately eight individuals, conducted surveillance, commencing in the late afternoon of August 14, 2016. The ERT’s role, if decision was made to enter the property, included securing the property, making sure there were no guns, establish perimeter and guard the site and any arrested individuals until the site and arrested individuals were turned over to the investigation team. [6] Their observations caused them to believe marihuana was being produced on the subject property. The evening of August 14, 2016 they testified they heard generator running, could smell marihuana and at 11:19 p.m. vehicle with one individual in it drove up to the site but shortly departed. During the day of August 15, 2016 they observed single vehicle with one individual in it drive up to the site and then leave. [7] They heard voices throughout their observations but those voices appeared to be coming from what was stated to be house closer to the lake. Based on other evidence the only house closer to the lake would have been the accused’s residence which was approximately 1/4 mile to the east. [8] Their observations led them to believe the site contained marihuana grow operation. general warrant was obtained mid-afternoon of September 15, 2016, and the ERT entered the property at approximately 7:00 p.m. on September 15, 2016. This approach was timed so that the setting sun would be in the eyes of any persons present on the site and thus make their approach less noticeable. [9] The initial plan was to enter the property pursuant to the general warrant, make more precise observations as to what was on the site and with that information obtain specific search warrant if justified. At the time they initiated this plan the site appeared to have no one present on it. [10] The property was fenced with page wire fence and locked gate. Within the property were two greenhouses. Shortly before their actual entry onto the property two male individuals drove up to the gate in pickup truck, entered the fenced in area and then entered the most southerly of the two greenhouses. The police entered the property through the then unlocked gate and approached the greenhouse the two individuals had entered. They deployed “flash bang” to distract the individuals, entered the greenhouse, told the two individuals that they were under arrest, took them to ground and handcuffed them. The two individuals were the accused Cory Jay Graham and one Oscar Gutierrez Reyes [Oscar]. RCMP members testified that these two individuals appeared surprised and that Oscar made the spontaneous statement “call the police”. [11] Approximately 15 to 20 minutes after the arrests were made, the accused Melanie drove up to the site in another truck, with two young children accompanying her. While not then arrested, she was kept under observation. [12] Members of the RCMP ERT searched the property including the greenhouses, the two trucks mentioned above, third truck within the fence and an ATCO trailer located next to the greenhouses. double barrel shotgun and rifle were found in the truck which brought Cory and Oscar to the site. The truck and firearms were Cory’s. There was also ammunition in the truck. The truck driven by Melanie had nothing of significance in it. [13] Found within the ATCO trailer were, inter alia: a. Health Canada “Personal-Use Production Licences” for marihuana, one in the name of Oscar Gutierrez Reyes and one in the name of Brooke Bettencourt. These licences had respective expiry dates of March 31, 2014, respective maximum indoor plant numbers of 390 and 59 and indoor production site addresses for locations in Ontario. These licenses were sitting on table inside the trailer; b. Electronics including computer to monitor the environment within the greenhouses; and c. Five bags of dried marihuana. [14] There was also found within the trailer various documents belonging to Cory that in general sense related to his previous work as consultant in the oilfield. Cory owned the trailer and under clause 14 of lease between Cory and Oscar, Cory was to provide an office shack at the property for security and maintenance personnel. [15] The two greenhouses contained some 750 marihuana plants. While the greenhouses had equipment for overhead irrigation, it was not being used and the plants were watered manually. The greenhouses had furnace fired heating system and were connected to the computers in the ATCO trailer to monitor temperatures. [16] Upon the ERT securing the site they informed the investigation team of the RCMP and turned Cory and Oscar over to the investigation team. The investigation team took over the investigation, conducted thorough search of the site, the ATCO trailer, the vehicles and the residence of Cory and Melanie located to the east of the greenhouse site. Numerous photographs were taken and exhibit items seized. box was found within the residence that contained $6,210 in cash, and it was seized. [17] Samples of the marihuana plants in the greenhouses were seized and sent for analysis. The balance of the plants were destroyed. The analysis confirmed the plants were indeed marihuana plants. That this was so was conceded by the accused from the outset. [18] The evidence clearly established that this was relatively sophisticated marihuana grow operation. The plants were healthy and some four to six weeks away from harvesting. [19] Corporal Michael Schmidt was tendered to provide opinion evidence. He was qualified as an expert entitled to provide opinion evidence with respect to the production, packaging and distribution of marihuana, including the characteristics of operations involved in the illegal production of marihuana as well as in respect of the pricing of marihuana and the jargon within illegal trafficking in marihuana. The Crown’s Position [20] In the proceedings the Crown acknowledged that the five bags of marihuana were not the accused’s property, but rather the property of Oscar. While the licences had expiry dates of March 31, 2014, the Crown agreed that the effect of two Federal Court decisions in Allard Canada, 2014 FC 280 (CanLII), 451 FTR 45 [Allard], and 2014 FCA 298 (CanLII), 324 CRR (2d) 78, was mandatory injunction extended the expiry dates of Personal-Use Production Licences issued under the Marihuana Medical Access Regulations, SOR/2001-227 (since repealed), until certain constitutional challenges were decided. [21] The Crown does not challenge that the expiry date of the licences here in question were extended or grandfathered by the Allard decision. However, its position is that: The licences were only valid for their specified growing location in Ontario and not at the accused’s site in Saskatchewan; The licences only permitted some 449 plants to be grown at those locations and not the some 700 plants that were being grown; If the accused were mistaken that these licences were validly in effect for their location that was mistake of law, not mistake of fact and thus is not defence for them; Notwithstanding the lease, which the Crown views as sham, the accused were in fact in control of the premises and actively participated in the husbandry of the plants and thus they were both producing and in possession of marihuana; The quantity of the marihuana being grown coupled with the conclusions to be drawn from their circumstances and various text messages they were involved in establishes they were producing the marihuana for the purposes of trafficking; and Based on the totality of the evidence, the only rational conclusion to be drawn in respect of the cash found in their residence is that it was property obtained by the commission of an indictable offence in Canada. [22] The Crown says the evidence of the accused should not be believed, that the totality of the evidence must be looked at and when attention is paid to things they themselves said in text messages they created it is clear that the accused were active participants in the marihuana grow operation and were in the possession for the purpose of trafficking in marihuana. The Accused’s Position and Evidence [23] It is undisputed that some 700 plants of marihuana were being grown on the accused’s property. As stated above, the defence evidence in summary was: a. The marihuana being grown on their property was being grown by another individual or individuals to whom they had leased the property for that purpose; b. They believed the marihuana was being grown under valid licences; c. They were not producing the marihuana; d. They did not possess the marihuana or if they were technically in possession, that possession was not for the purposes of trafficking; and e. The currency in question was not obtained by the commission in Canada of an offence punishable by indictment. [24] The Crown challenges the veracity of the accused’s evidence. Given their testimony, the application of the principles of W.(D.), 1991 CanLII 93 (SCC), [1991] SCR 742, [W.(D.)], is major element of this case. more detailed analysis of their evidence is required. [25] Cory’s work background was what he described as consultant in the oilfield, working both domestically and internationally. With the downturn in the oil and gas industry he was not actively so engaged in 2016. From 2012, Melanie and Cory owned and operated gas station and restaurant (Graham’s Gas Grill) on Highway #4 near Glaslyn, Saskatchewan which Melanie managed. They sold that business by March of 2016 but the sale was not completed until June of 2016. cheque in the amount of $70,880.28 issued on June 24, 2016 from their lawyer to Melanie representing their net proceeds on that sale [26] Melanie testified that she and Cory began discussing greenhouse venture to grow vegetables and she approached her brother David Boulette [David] who agreed to go into business with them under an arrangement where David would fund 70 percent of the cost, but Cory was to do all the work. She testified corporation “Maple D’s Leaf Products” [Maple D] was incorporated in which David and Cory were the shareholders. No corporate records were entered into evidence showing when, indeed if, the entity was incorporated, who the shareholders were, their respective shareholdings nor who the officers and directors were; although March 3, 2016 email of Melanie to Deanna at Farm Credit Canada [FCC] and David stated that Maple was incorporated with David as the sole director and that they would transfer title to the land to Maple in order for FCC to be first on title. [27] business plan dated “Feb 18, 2016” was submitted under the name “Maple D’s Leaf Products” to FCC seeking financing. Melanie testified this business plan was submitted by David. This business plan stated, inter alia: The project was built around highly successful businessman whose initial objective was to produce and supply lettuce to local and regional markets and to successfully apply “for cultivation and sale license under the MMPR system” (page 2); It was seeking financing for the purchase of equipment and development costs estimating it would begin to make profit in year two; The company was owned by its founder David Boulette with Melanie Boulette running the day-to-day operations at the greenhouse (page 3); The operation would initially utilize 4,000 square foot greenhouse to be expanded after the first successful harvest (page 3); David Boulette is successful businessman in various ventures over several industries and is expanding his portfolio into this area (page 5); and The personnel plan includes project managers who will oversee all design and construction of the hydroponics facilities and consultant specializing in hydroponics who works for David Boulette in other horticulture projects in Ontario (page 6). [28] There was limited evidence about David Boulette beyond the information contained in the documents submitted to FCC. These documents included: 2013 income tax assessment showing his net income to be $187,500 originating entirely from dividends; 2014 notice of assessment showing his taxable income to be $268,333; and net worth statement putting his net worth at $5,047,000 which included house worth $3,820,000 and U.S. house worth $650,000. [29] Clearing of trees on the accused’s property to establish greenhouse site was underway by February 16, 2016. Cory had found used greenhouses for sale in British Columbia on Kijiji. In early March he travelled to Duncan, British Columbia with two hired assistants to dismantle two greenhouses purchased for about $15,000 and to arrange for their shipment back to Saskatchewan. The shipment cost was about $3,000. David paid these costs. Photographs taken during the dismantling in Duncan show this was underway between March 24 and 27. The greenhouses arrived at the accused’s location by April but at that time snow was still on the ground. [30] The evidence does not provide precise information as to when construction of the greenhouses on the Graham/Boulette property started, although common sense suggests it would likely have started once the frost was out of the ground and the ground had dried sufficiently to permit construction. Cory’s testimony was that oilfield operations were shut down during spring break-up and he was able to undertake the construction along with two individuals he hired to assist. [31] Cory’s testimony was that at some point in May when construction was approaching completion he fell from ladder, shattered his left elbow requiring surgery and the insertion of four pins. He also tore the rotator cuff on his right shoulder which also required surgery; but that did not occur until eight months later. He testified that both arms were in slings, he was originally on drug, hydromorphone, which he did not do well on and so he was switched to OxyContin which it turned out he could not tolerate. He said that he felt highly intoxicated for about two months and life was pretty much haze until into July when he spoke to his doctor about getting him off the OxyContin and he went on medical marihuana for the pain for which he obtained licence. He testified that he began sending resumes out looking for work by August, but he was unable to return to that work until after his surgery in February of 2017 and he did not get back into oilfield work until that spring. [32] The testimony of Cory and Melanie was that following Cory’s injury there were discussions with David about what to do, that David mentioned he may be able to find someone to lease the property and he subsequently told them about an acquaintance, Oscar, whom they were told had licence to produce medical marihuana, was looking for cheaper place to grow and was interested in growing in Saskatchewan where there was more sunshine. [33] They testified that David and Oscar flew out in the latter part of May for Oscar to check out the greenhouses and an agreement was reached. Cory testified that Oscar came with copies of marihuana production licences in the names of himself, Brooke and one Walter Cabrera. He explained that the expiry dates were “grandfathered” but that he would have to get the production location addresses changed with Health Canada. The accused agreed in then handshake agreement to lease the greenhouses to Oscar if they were able to satisfy themselves that what Oscar was representing to them was correct. [34] Melanie testified she consulted with their lawyer Aaron and had telephone contact with Health Canada in an attempt to confirm what Oscar had told them. She testified that Health Canada advised her that they could not share details of individual licences by reason of privacy concerns but she was informed that court decision had the effect of extending expiry dates in licences and that licences could be so grandfathered. Relying on this and Oscar’s representations that he would get the production locations changed they agreed to lease the site to Oscar to grow medical marihuana under the licences of Oscar, Brooke and Walter. Subsequently they received from Oscar copy of letter from Health Canada that stated the new address for production licence for Oscar was their property. For reasons discussed below am satisfied that this document was forgery and probably was created by Oscar. Cory testified that both Brooke and Walter told him that the addresses on their production licences had been changed to their property. [35] Using various precedents she found online, Melanie prepared written lease which went through various drafts before it was executed on August 8, 2016. Her evidence was that most of the discussion of the terms occurred between David and Oscar, that they agreed the rental payment would be lump sum payment of $12,000 at the end and that David was concerned about getting back some of what he had put into the purchase of the greenhouses. [36] The lease contains many provisions that legally trained draftsman would not have included in such lease. There is language that appears to have its origin in leases of commercial property that would include base rent and additional rents for operating costs. The lack of legal sophistication in the preparation of this lease is obvious. That aside, the following terms of this lease are significant: f. “Premises” means the commercial premises at Acre Portion of LSD 2-21-51-15 W3 and comprises Leasable Area of 8000 square feet. 3. The Landlord agrees to rent to the Tenant the commercial premises municipally described as Acre Portion of LSD SE 21-51-15 W3, (the “Premises”) and comprises Leasable Area of 8000 square feet. The Premises are more particularly described as follows: The property and lease is in reference to the acres that the greenhouses reside on including the two greenhouses totalling 8000 sq. ft. The Premises will be used for only the following permitted use (the “Permitted Use”): Agricultural/medical use. 10. The Tenant covenants that the Tenant will carry on and conduct its business from time to time carried on upon the Premises in such manner as to comply with all statutes, bylaws, rules and regulations of any federal, provincial, municipal or other competent authority and will not do anything on or in the Premises in contravention or any of them. 14. The Landlord agrees to supply and the Tenant agrees to use and maintain in reasonable condition, normal wear and tear excepted, the following chattels: a. The landlord agrees to provide an office shack at the property for security and maintenance personnel. 22. The tenant is permitted to operate in this property under the agreement that he will only operate under the license provided to him by Health Canada. The owner also requires additional security features in place to protect the area from theft or vandalism due to the nature of the medical plant. The tenant will ensure personnel are at the property the majority of the time. The landlord has no control over the leased area once this agreement is signed, and must provide full access to the tenant and his staff. 28. The Tenant will not engage in any illegal trade or activity on or about the Premises. [37] Cory’s evidence was that after the handshake agreement was made with Oscar: a. Oscar, Walter and Cody Smeets [Cody] arrived in early June; b. David had arranged for them to initially stay at David’s mother’s place which was close to the accused’s residence; c. Oscar went back to Ontario while the other two stayed working in the greenhouses; and d. Oscar came back in Hummer with an RV trailer and brought with him small plants which Oscar described as clones. The RV trailer was parked on the site and was their accommodations. They also had tent. Melanie’s recollection and evidence was that Oscar came back with plants but that it was Walter and Cody who brought the trailer. [38] photograph dated June 15 shows small pots of plants spaced out within greenhouse partially covering the greenhouse floor space. An earlier photograph dated June 8, 2016 shows greenhouse that appears to then be empty of plants. Both Cory and Melanie testified that Oscar told them there were only 400 plants and the licences were for 500. [39] Cory testified that throughout the summer there was usually one of Oscar, Walter or Cody present, although they would go back and forth to Ontario. Melanie’s testimony was there was always one of them present. Brenda Bettencourt came out once as well. Cody was there for most of the summer and for significant period of the summer had girlfriend by the name of Melissa with him and she, for period of time, had her young son with her. [40] Cody and Melissa visited Cory and Melanie at their residence from time to time. Melanie’s testimony was that she did not like Cody, referencing that Cory liked to drink and this gave Cory the opportunity to go drink with Cody and have fire on the beach. Melissa and her son would come over so her son could play with Melanie’s children and he was present for birthday party of one of Melanie’s children. Walter was the next most present person and Oscar made several visits. [41] Cory testified that Oscar and his crew were hard to get along with and were not good tenants. In explaining this Cory referenced things not getting looked after, that they were messy, there was garbage in the compound, they whined about stuff including that they expected him to supply water right on the location and not to have to truck it from the lake. [42] July 29, 2016 text message exchange between David and Cory evidences that there was then already conflict between Cory and Melanie on the one hand and Oscar on the other. Melanie testified that during July 29 trip to Saskatoon, she had been asked by Oscar to pick up particular product or products for him. As evidenced by text message communications between Melanie and Oscar, she was having difficulty in identifying or finding the specific product Oscar wanted and it is clear that Melanie took offence at Oscar’s language or manner and reported her offence to Cory. Later that day Cory texted David words that suggested he was prepared to kick Oscar out. David responded stating “Okay but wait until after the harvest. We dont need him being snake and pulling his license”. [43] Cory, Melanie and their children went to Florida in late August and they made arrangements for Cody to feed their five dogs while they were gone. When they returned they found Cody and Melissa had made use of their house, the beach was mess and Melanie felt they had partied there throughout. She testified she stewed on this for few days and couple days later when she went down to the greenhouse site, after significant wind storm, she observed that some plastic covering and motor on one of the greenhouses was ripped off. [44] Melanie testified she and Cody “had words” during which Cody said his job was to look after the plants not fix the greenhouse. Cody then went to Cory and told him to calm his wife down. At this point Cory told Cody to get out. Cody packed up the trailer and left and when doing so took the licences telling Cory it was now an illegal grow op. Their testimony is that Cory then went to the site, placed locks on the gate into the compound and did not return to the site until September 15, 2016 at the time of the arrests. [45] Following Cody leaving there was text or chat communication among Cory, David and Oscar. The text or chat messages and the evidence generally makes it clear that David was attempting to mediate resolution of the conflict. Among those text or chat communications were the following: a. By Cory at 1:12 p.m. on September 13 (Exhibit P26, page 42): So what’s going on here? When Cody left he took the licences and was told it was no an illegal grow op. So now you want back in on this deal Oscar? That’s fine but let’s get somethings straight. Cody will not be coming back here. Period. That ship has sailed. when someone wants to come out here, I’m the first fuckin person who gets notified. Last fuckin checked, make the payments on the property. b. By David at 1:13 p.m. on September 13 (Exhibit P26, page 43): Oscar was coming told Mel. He is bringing the licenses back. Originally he wanted to bring Walter but Walter doesnt want to come so he convinced Cody. They are staying my moms and are renting there own car. Oscar is bringing some product that he owes me. He also wants to check on how things are looking. c. By Oscar at 2:27 on September 13 (Exhibit P26, page 46): Ya you did Cory ur arm has been broken go smoke another crack pipe sesously think you got to stop drinking it’s going to your head d. By Oscar at 2:31 on September 13 (Exhibit P26, page 47) Any way its illegal were evicted need my employees e. By Oscar at 2:32 p.m. on September 13 (Exhibit P26, page 45): Yo we aren’t coming back it’s an illegal op now Cause you and your wife are kids [46] Cory and Melanie testified that Oscar flew back into Saskatchewan and came back to their residence with the licences on September 15, 2016 the same day that they were arrested. Cory testified this was few days after he kicked Cody out. Given this evidence and the September 13 communications above, conclude that Cody was kicked out either September 12 or 13. Cory testified that when Oscar arrived they sat down in his house and discussed the situation to smooth things over. Cory testified that around 7:00 p.m. Oscar wanted to go over to the greenhouses and asked him to come to show him how to operate the furnaces. He stated that when the flash bang went off Oscar started screaming phone the police. [47] Cory testified that he was not involved in the growing of the plants, as far as he knew there were only 400 plants and that they were being grown pursuant to the Health Canada licences. He was never part of plan to sell the marihuana and he did not stand to profit from it except by virtue of the rental payment. [48] Melanie testified that while she had seen Cory at the greenhouse site drinking with Cody and he did go there to look after equipment supplied, she never saw Cory helping with the plants. She testified that while she had been asked to help repot the plants in June she never did because she was too busy [49] The evidence of the accused was that Melanie having sold the store and Cory being unable to work due to his injuries, they and their two children spent periods of the months of July and August away from their home including camping at Lac Des Isles and their lot at Lac-Clair, had trip to Edmonton and went to Florida for approximately 10 days in the latter part of August. Melanie estimated that over the summer they were away from their residence approximately one-half of the time. [50] Melanie testified they were told there were only 400 plants. She considered the plants to be the property of Oscar, Walter and Brooke and at no point possessed or intended to sell the produce. She acknowledged that on one trip to Saskatoon she agreed to pick up supplies for Oscar but states that in the final analysis she did not pick up anything for him and this occasion ended up with her and Oscar having the argument of July 29, 2016 referred to above. The Crown’s Position and the Evidence it Relies on [51] The Crown says the accused should not be believed and that when the evidence as whole is considered it is clear that the accused were active participants in the marihuana grow op in question and the appropriate inference to draw is that they were producing the marihuana for the purposes of trafficking. [52] In support of this position the Crown relies, inter alia, on the following evidence: a. From the outset the plan was to eventually grow marihuana as the business plan filed with FCC indicated and as Cory acknowledged in his testimony; b. An April 26, 2016 text (Exhibit P26 page 14) from Melanie’s phone to telephone number 1-226-929-2303 asking “How much top soil do we need?” with the argument by the Crown that the number is Oscar’s by inference from the fact that there is also found on Melanie’s phone photograph of Oscar of June 22, 2016 that the Crown suggests was sent from the phone number 1-226-929-2303 (Exhibit P26 page 6). On that premise the Crown then argues, given her testimony she had not met Oscar until he came to inspect the greenhouses in late May or early June, there are serious credibility issues with her evidence generally; c. The lease signed curiously does not require rent to be paid until December 31; d. The 700 plants in the greenhouses significantly exceeded the 400 permitted by the licences of Oscar and Walter; e. There is no record of Melanie calling Health Canada as she testified she did on two occasions; f. text message exchange from Melanie to her mother on July 4, 2016 references needing help potting 400 plants (Exhibit P26 page 12); g. The July 23, 2016 texts on Cory’s phone to 1-941-914-7513, (Exhibit P26 pages 35 and 33) stating inter alia: 1. Starting at indicated message time of 8:45 a.m. “If he’s such pro, he should have had us test the water in the very beginning!”, subsequent references to deficiencies in the plants and “he’s clueless”; 2. Starting at indicated message time 5:15 p.m. of “Ph water is too high” and “Ph is fixed, flushing plants today, and Mel: everyone else O”; h. The July 29, 2016 text messages between Melanie and Oscar related to Melanie picking product up for Oscar in Saskatoon (Exhibit P26 pages 26 to 29); i. The July 29, 2016 text messages between David and Cory where Cory is talking of throwing Oscar out and David is telling him wait until after harvest, we don’t need him pulling his licence (Exhibit P26 page 39 to 41); j. The texts between Oscar and Cory following Cory kicking Cody out (Exhibit P26 pages 42 to 47) where at page 42 Cory states that when someone comes out he is the first person to get notified since when he last checked he makes the payments on the property; k. The text of Cory to David at page 44 where he makes statement that “I work here 24 hrs day”; l. Various text messages or photographs of Melanie demonstrate what the Crown characterized as keen interest in marihuana; m. The fact that the Saskatchewan Power electrical feed to the Graham/Boulette residence had been disconnected and the electrical supply was their own generator; n. The presence of many firearms and $6,210 in cash in their residence; and o. Text messages between Cory and one “Whozurr Paddy [Paddy] (Exhibit P32) with language suggestive of trafficking. Analysis of the Crown’s Position Regarding Credibility and the Evidence [53] Since the accused testified, application of the principles set forth in W.(D.) is required. What follows is composite of the instructions given in W.(D.) with an addition (the “secondly” below) added by the judgment of Wood J.A. in C.W.H. (1991), 1991 CanLII 3956 (BC CA), 68 CCC (3d) 146 (BC CA) at 155: “First, if you believe the accused, obviously you must acquit; “Secondly, if, after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; “Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; “Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” In W.(D.) Cory J. also said the following at 757: In case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra [1988 CanLII (SCC), [1988] SCR 345], at p. 357. [55] There are aspects of the evidence of Cory and Melanie that believe and there are other aspects that am not sure what to believe. Looking at the evidence as whole see reason to be suspicious that the involvement of Cory and Melanie went beyond what they testified to. It is clear to me based on Cory’s communication with Paddy and indeed his own testimony that he was involved in illegal dealing in cigarettes. This is clear from review of the text messages found in Exhibits D4 and D7. However, in the final analysis am unable to conclude that the accused are being dishonest when they testify that their involvement with Oscar was to lease the greenhouses to him and in their purported belief that the marihuana being produced by Oscar was being produced under valid licences. [56] Crown counsel argues that words “if you have another pound ready to go” in the text messages in Exhibit P32 must be reference to marihuana because you do not sell cigarettes by the pound. While this isolated phrase in Cory’s communications with Paddy could relate to marihuana, “could” is not good enough. The balance of this conversation could equally well relate to cigarettes. Bulk tobacco can be sold by the pound, and gifts of tobacco are common in First Nations’ culture. It is clear they were dealing in cigarettes and since the marihuana crop in question was four to six weeks from being harvested conclude it is speculation to conclude this one phrase “another pound” was reference to marihuana. Cory’s later text of September 10 to Paddy “Gonna have 500 in 3-4 weeks too” is at least as likely to be reference to 500 cartons of cigarettes as anything else. [57] That the accused intended from the outset of their greenhouse project to eventually use the greenhouse to grow marihuana, if the legislation came to permit such and they were able to get licence, should in no way lead me to conclude that the accused were more likely to be involved in the illegal growing and trafficking of marihuana in 2016. Many individuals and corporations were doing the precise same planning. [58] The argument advanced that various text messages or photographs of Melanie demonstrates what the Crown characterized as keen interest in marihuana, and this assists in proof that she was during 2016 involved in illegal production and possession of marihuana for the purposes of trafficking, is to my mind non sequitur. If, as the accused have testified, they had plans to grow marihuana if it became legal to do so, it is logical that Melanie would have keen interest. She would want to learn what she could. [59] The argument that since the number 1-226-929-2303 appears associated with photograph of Oscar that came to be on Melanie’s phone on June 22, 2016 is not sufficient basis to conclude that she was not credible (having testified that she did not meet Oscar until his first visit in June) or that she was already communicating with Oscar in April about details of growing in the greenhouse. Curiously this number, along with another number that could also be telephone number, appears to have been assigned as jpeg identifier to this photograph. The evidence simply does not permit me to conclude this photograph was sent from 1-226-929-2303. [60] The April 26, 2016 exchange of texts starting with Cory texting Melanie at 7:04 a.m. that 76 cubic yards was needed per greenhouse 6” deep does not support the drawing of the inferences the Crown suggests. At 7:07 a.m. Melanie texts 1-226-929-2303 asking how much topsoil was needed 4” or 6”. At 7:08 1-226-929-2303 responds “6”. The accused testified they put topsoil in the greenhouses, but when Oscar and his crew arrived, they had it removed and the marihuana plants were in fact grown in individual pots. Photographs confirm this was so. Thus, it seems probable that someone other than Oscar (texting from 1-226-929-2303) was informing Melanie that 6” of topsoil was required. [61] conclude that it is illogical to conclude that Oscar would be advising Melanie in April of 2016 that 6” of topsoil was required when he, an experienced grower, would have known he would be growing the plants in individual pots. Further, it is also illogical that an experienced grower would in April be giving instructions to inexperienced people he did not know with plans to construct greenhouses in Saskatchewan and how much topsoil to place in the greenhouses to grow marihuana. [62] The evidence is that David was resident of Ontario. It was he who submitted the business plan to FCC to grow lettuce in the greenhouse. The information he submitted in that application attested to his involvement and experience in horticultural ventures in Ontario. In these circumstances logic suggests that the probability is that Melanie was communicating with David. Since have no direct evidence as to whose telephone number 1-226-929-2303 was and given the issues discussed above, find there is no basis to conclude that Melanie was in communication with Oscar in April of 2016. [63] The Crown has placed significant emphasis on the text messages of July 23 relating to the PH of the water and specifically the statement “Ph is fixed, flushing plants today. Mel: everyone else O”. However these texts must be assessed in their context. The evidence satisfies me that the water supply was the adjacent Birch Lake and that there was conflict between Oscar and Cory with respect to the suitability of that water, that Oscar expected water to be available on site as opposed to having to truck it up from pump that drew the water from the lake and then he complained about the quality of the water. It appears from the evidence generally that Oscar had expectations of Cory, whether as landlord or otherwise, with respect to the water. What is clear from the texts is that Cory is taking no responsibility for the problems that Oscar and Cody are complaining of. [64] In this exchange of texts Cory is venting to David about conflict between him and Oscar. It is often not possible to extract from the texts what portions are Cory’s own statements and what portion are him in effect repeating what Oscar and Cody are complaining to him about and what are his own observations and statements. do not know whether the statement “Ph is fixed flushing plants today” is Cory repeating what Oscar and/or Cody are saying they have done, whether Cory is attributing some solution with Ph problem in the water to Melanie and if so, how that leads to the conclusion that the accused were participants in the grow op. [65] When Cory asks David “Who’s actually running ur farm with o? I’m assuming not him. want to talk to the guy who grows for you. Not third party of info.”; it appears that Cory is seeking information in the context of what appear to be allegations or complaints by Oscar about problems in the water supply. am unable to conclude that the only rational inference to be drawn from this and other text messages the Crown relies upon is that Cory and Melanie were necessarily involved in the production. If they are being criticized for the water supply being provided, it would be reasonable for them to seek information from knowledgeable individuals. This text does corroborate that David was involved in “farm” operations in Ontario. Unexplained is the reference to “o” and what, if any, common operations Oscar and David had there. [66] The Crown argues that David’s text at page 41 of P26 “I’ll be there at the end to make sure there is no funny business with the cuts. He gets 25% Nothing else” calls for the inference that the product was being shared and thus the accused were producing and in possession. While this text could lead to the inference that such was possible or even probable, am unable to conclude it is the only reasonable inference to draw. The statement is David’s not Cory’s. It is possible David had deal with Oscar about who gets what cut. This does not prove the accused were participating. [67] The fact that Cory was prepared to kick Oscar’s crew off the property four to six weeks from valuable harvest, in circumstances where there is no evidence to support the conclusion that he and Melanie had any idea as to how to continue to care for this crop and harvest and prepare it for distribution, coupled with the fact that David intervened to get Oscar back on site, supports the defence position that they had no interest in the crop. The actions of David in arranging for Cory to accept Oscar back raises the possibility that he had an unspecified interest in the crop. [68] The expert evidence presented by the Crown was to the effect that the marihuana crop in question was very healthy and that the knowledge level required to run such large scale marihuana grow operation would be that of someone with “vast” experience in growing marihuana. There is nothing in the evidence to suggest that the accused had any such knowledge or experience. While they may have hoped to gain knowledge or experience for future legal operation by observing, it is not an offence to observe and learn. This, in the circumstances, is rational alternative explanation for the accused’s so described keen interest and willingness to provide accommodations that went beyond the strict scope of landlord’s responsibilities. [69] Any suggestion that Melanie would possess and contribute knowledge with respect to ph problem in the water seems unlikely given the evidence generally and with specific reference to her demonstrated lack of knowledge in her text messages six days later on July 29, 2016 where she ends up angry at Oscar because she perceives him as treating her badly when he asked her to pick up products which she knew nothing about. [70] do not conclude that because there is no record of Melanie calling Health Canada, as she testified she did on two occasions, that her evidence in this respect should not be believed. Based on the evidence presented conclude it is entirely possible that Health Canada would, in response to call from member of the public, decline to give information about particular licence on the grounds of privacy without making record of that call. Business records are made to record communications that are viewed as significant. There is nothing in the evidence to suggest that each and every call made is documented by Health Canada. [71] Melanie testified that she had been asked to help repot the marihuana plants and had been willing to do so and had discussions with her mother about also helping. The fact that there were such discussions and that she would involve her mother supports the evidence of herself and Cory that at all times they thought the activities being carried on were entirely legal under the licences that they had been provided. Melanie’s testimony was that as her commitments worked out she was unable to assist in the repotting. have no basis to reject this evidence as dishonest. Further, the reference in these emails to repotting 400 plants corroborates the evidence of Cory and Melanie that they were told there were only 400 plants. [72] In similar vein, the various text messages between David and Cory expressing concerns about Oscar pulling his licence and Oscar taking the position that after Cody was ejected and left taking the licences meant it was then an illegal grow op lend credence to the evidence of Melanie and Cory that they believed that the marihuana grow operation that was being carried on, in the greenhouses they owned, was licenced and legal. [73] Cory’s text of September 13, 2016 to David (Exhibit P26, page 44) where he said he had no problem with Oscar coming but not Cody and added “I work here 24 hrs day. It was too much for him to water the plants last time so that’s the end of it” need not be interpreted as Cory stating he worked at the greenhouses 24 hours day nor as implying he had to do watering because Cody was not. The evidence is that Cory and his family were only at their home about 50 percent of that summer and, shortly before Cody was sent away, the family had been in Florida. He does not state that he works at the greenhouse 24 hours day. The word “here” in literal sense would reference wherever he was at the time. What he intended by the words is uncertain. [74] If in fact Cory did assist with watering the plants, that assistance would not be inconsistent with providing an accommodation to tenant. It is only if such assistance was found to constitute the actus reus of illegal production that the Crown’s position that mistaken belief that in the authority granted by the Personal-Use Production Licences constitutes mistake in law needs to be considered. [75] It is most curious, perhaps suspicious, that the Saskatchewan Power electrical feed to the Graham/Boulette residence had been disconnected and the electrical supply was their own generator. However, their residence was significant distance from the greenhouses and there was no evidence that the power from the household generator flowed to the greenhouses. Indeed the evidence is that the greenhouses had their own generator. The lease provides that the tenant is responsible for their own electrical charges. While curious, it would be an inappropriate inference to conclude from this curious fact that it is probative of guilt of the charges laid. [76] While the Personal-Use Production Licences of Oscar and Brooke Bettencourt were expired, am satisfied that by operation of the decision in Allard that they continued to be operative provided the remaining terms of conditions were complied with. The evidence was that the accused early on identified the fact that the production locations needed to be changed on the licences and their evidence is that Oscar represented to them that this would be and was done. [77] purported letter from Health Canada changing the production location of Oscar’s licence to the accused’s property was entered into evidence as Exhibit P33. They testified Oscar provided this to them. am satisfied that this letter is in fact forgery, but have concluded that this forgery was likely the work of Oscar. The letter shows the Old Address to be 1001 Ottawa Street South, Kitchener, Ontario whereas the licence itself shows Oscar’s mailing and production address to be Petersburg, Ontario address. If the accused had forged the letter, they would logically have had scrupulous reference to the precise terms of the licence and this address variation would not have occurred. The accused can be faulted for being too trusting; but in the circumstances do not find their reliance on this letter to be either recklessness or wilful blindness. Legal Issues and Overall Analysis [78] In Vickers, 2016 BCCA 98 (CanLII) [Vickers], the British Columbia Court of Appeal said the following: 23 As is well-known, in circumstantial case, the trier of fact must be satisfied beyond reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts. The proper approach, as the judge recognized here, is not to examine each individual circumstance in isolation. Rather, the question is whether all of the evidence taken together proves an accused's guilt and is inconsistent with any other rational conclusion: Ngo at paras. 53-57. Although the burden of proving guilt always rests on the Crown, that burden does not include an added burden of negating every speculative conjecture consistent with innocence: R. v. Tahirsylaj, 2015 BCCA (CanLII) at para. 39. Unlawful Production [79] Other than the presence of Cory in the greenhouse at the time of his arrest, there is no direct evidence that Cory had any involvement with the husbandry operations at the greenhouse. The same applies to Melanie. Cory’s evidence was that he was there at the time of arrest because Oscar had asked him to come to show how to light the furnace. Melanie’s evidence was that Cory would deal with equipment issues at the greenhouses. In asking the court to find the accused guilty as charged, the Crown does so by asking the court to draw inferences from circumstantial evidence. [80] For the reasons outlined in the section above have concluded the accused’s actions are not inconsistent with rational conclusions other than that they are guilty of the charges. Their actions and communications could be consistent with landlord/tenant relationship with tenant whom they reasonably believed to be conducting legal marihuana grow operation. [81] The Crown argues that should find the lease to be sham, based upon inferences drawn from the text message communications and other circumstantial evidence. The text messages in question have been proven as facts; but as stated in Vickers, in circumstantial evidence cases the trier of fact must be satisfied beyond reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts. [82] am unable to conclude that the accused’s evidence in respect of the lease and their lack of involvement in production of the marihuana in question is untruthful. There is reason for the Crown to be suspicious; but good reason to be suspicious is not proof beyond reasonable doubt. I have concluded it is possible that the lease represented the actual arrangement between them and Oscar, that they believed only 400 plants were in the greenhouses and that the grow operation being carried on under Oscar was a legal grow operation. [83] In Jackson, 2007 SCC 52 (CanLII), [2007] SCR 514, the Supreme Court of Canada confirmed an earlier decision that held mere presence at the scene of crime does not prove culpable participation in it. In that case conviction for production was upheld because the appeal court held it was open to the judge, based on all of the circumstantial evidence, to conclude that the accused’s presence was culpable. The factual situation there permitted the conclusion there was no rational explanation for the accused’s presence in the remote location other than his participation in the production. It did not involve evidence of lease arrangement and evidence of belief that the operation was lawful one. [84] leave for later discussion the Crown’s argument that any mistake Cory and Melanie may have been operating under was mistake of law, which is not defence to the charges. It is trite law that mistakes of law cannot negative the required mens rea for an offence. We are all presumed to know the law. But both actus reus and mens rea must be present for finding of guilt. The following discussion addresses the actus reus of the offences of unlawful production and possession for the purposes of trafficking. [85] The Crown has not satisfied me beyond reasonable doubt that either of the accused were either actively involved or party to the production of the marihuana. The CDSA defines “produce” in s. 2(1) as: 2(1) to obtain the substance by any method or process including: (b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained There is no direct evidence that either of the accused participated in cultivating, propagating or harvesting the marihuana or in any other activity relating to the husbandry operations within the greenhouses. [86] Occasional presence to observe or for other purposes related to landlord’s status or role cannot constitute being involved in the production. The actus reus of the offence requires direct actual involvement in the husbandry process or involvement as party to the offence. The evidence does not satisfy me that the accused were parties to the offence of illegal production. The circumstantial evidence permits other rational conclusions for their orthogonal involvement. [87] When Cory provided maintenance to the equipment or went with Oscar on September 15, 2016 to show him how to light the furnace, this quite rationally could have been in satisfaction of his responsibilities as landlord or as an accommodation to his tenant. While Melanie was apparently willing to obtain products for Oscar when she travelled to Saskatoon, the evidence is that she did not in the final analysis obtain any products for Oscar to use in respect of his husbandry of the marihuana. Thus she did not in fact do anything to aid Oscar to commit an offence, if in fact Oscar was guilty of illegal production of marihuana. [88] The test to determine party liability in regard to whether someone is aiding and abetting the illegal production of marijuana was summarized in Pavalaki, 2013 BCSC 990 (CanLII) (aff’d in 2014 BCCA 491 (CanLII)): 40 Section 21(1) of the Criminal Code provides: 21.(1)Every one is party to an offence who a) actually commits it; b) does or omits to do anything for the purpose of aiding any person to commit it; c) abets any person in committing it. 41 “Aiding” and “abetting” are often referred to collectively but these acts are independent of each other. ""Aiding"" in s. 21(1)(b) involves assisting or helping principal to commit an offence whereas “abet” in s. 21(1)(c) includes encouraging, instigating, promoting or procuring the commission of crime: see R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825 at para. 26; and R. v. Briscoe, 2010 SCC 13 (CanLII), [2010] S.C.R. 411 at para. 14. 43 Abetting in the commission of the offence requires at least encouragement; there must be, at minimum an act to facilitate the commission of the offence, not passive acquiescence or mere presence. The fact of the accused’s presence at the property must be bolstered by circumstances which show that the only rational inference to be drawn is that the accused was aiding or abetting in the production of the marihuana. 46 In addition to the act of aiding, section 21(1)(b) requires proof that the accused has performed the act “for the purpose of” aiding the principal to commit the offence. [89] Although intent and knowledge can be inferred from the circumstances, accidentally aiding and abetting does not attract criminal liability. The Court in Ngo, 2009 BCCA 301 (CanLII), explained: 52 ... an individual may be found guilty of production as either principal, or as party who aids or abets the principal: Hubble [2002 BCCA 561], at paras. 10, 15; Criminal Code s. 21. In grow op case, an accused may be found to have aided or abetted in the production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose or intent to assist in the crime. 87 The appellant relies upon R. v. F.W. Woolworth Co. Ltd. (1974), 1974 CanLII 707 (ON CA), O.R. (2d) 629, 18 C.C.C. (2d) 23 (C.A.), for the proposition that an individual who “incidentally and innocently” assists in the commission of crime cannot be guilty as party to the offence. The respondent takes no issue with the proposition that in order to find the appellant guilty as party to the offence of marijuana production, the trial judge had to find that the appellant had the necessary mens rea: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825 at paras. 37-38, 116 C.C.C. (3d) 334. In the case at bar, it was open to the trial judge to infer knowledge and an intention to aid or abet from all the circumstances and he did so. [Emphasis added] [90] The mens rea element for someone who aids in the production of marihuana is distinct mens rea from that of the principal. The mens rea must involve an intention to aid the principal in what the aider knows or should have known was an illegal act. Innocently providing aid does not constitute the required mens rea. Possession for the Purposes of Trafficking [91] There are here two essential elements to the offence of possession for the purposes of trafficking. The Crown must prove both possession and that the possession was for the purposes of trafficking. Section of the CDSA adopts the definition of “possession” in s. 4(3) of the Criminal Code, which reads as follows: (3) For the purposes of this Act, (a) person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [92] Traffic is defined in s. of the CDSA as meaning: traffic means, in respect of substance included in any of Schedules to V, (a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations. [93] In Pham (2005), 2005 CanLII 44671 (ON CA), 203 CCC (3d) 326 (affirmed by the Supreme Court of Canada at 2006 SCC 26 (CanLII), [2006] SCR 940) the Ontario Court of Appeal summarized the law with respect to possession as follows: [14] Section 4(3) of the Code creates three types of possession: (i) personal possession as outlined in s. 4(3)(a); (ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and (iii) joint possession as defined in s. 4(3)(b). [15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33 (CanLII), C.C.C. (2d) 285, [1972] W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.). [16] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (SCC), [1983] S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 CanLII 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.). [17] The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), at p. (QL): There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of scale in bedroom apparently occupied by the applicant, and the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge. The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge. [18] The onus is on the Crown to prove beyond reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, supra, at p. 448 C.C.C., [page 407] Martin J.A. noted that the court may draw “appropriate inferences from evidence that prohibited drug is found in room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”. [94] The direct evidence does not satisfy me that either of the accused ever had personal possession or control of the marihuana plants. Nor does the circumstantial evidence satisfy me that they had joint or constructive possession by virtue of some arrangement or agreement with Oscar. [95] The Crown argues that Cory retained some level of control over the premises and thereby had possession or control of the marihuana. The lease provides: It is solely for production of personal medical marihuana within the terms of the lessees’ Health Canada permit; The tenant will comply with all statutes and laws; The tenant is to have quiet enjoyment; and In paragraph 22 the tenant will only operate under the licence provided by Health Canada, is to provide additional security features given the nature of the plant and the landlord has no control over the leased area once the lease is signed. Retaining some measure of access to and control of the premises, buildings and equipment as landlord and engaging in activities to operate, maintain or repair the structure and equipment is quite different thing than having possession or control of the marihuana being grown within leased premises. Under the provisions of the lease the landlord would have no possessory interest in the plants nor right to exercise any control over those plants. [96] Even if there is an argument that by virtue of Cory’s control of the premises as landlord, he thereby had some form of possession or control of the marihuana, the evidence does not satisfy me that such possession was for the purposes of trafficking. am not satisfied that as landlords Cory or Melanie could be said to possess the marihuana for the purposes of trafficking which is defined as “to sell administer, give, transfer, transport, send or deliver”. Under the terms of the lease they would at most be allowing Oscar to take what was his property. The Mistake of Law Argument [97] The Crown relies on the Ontario Court of Justice decision in Zheng, 2015 ONCJ 30 (CanLII) [Zheng], for its position that mistaken belief in the validity of licences is mistake as to law which does not provide defence to possession and possession for the purposes of trafficking charges. This argument is made in the context of the mens rea or mental element of the offence and is moot if the Crown has not proven the actus reus of the offences. Nonetheless because the Crown has placed significant emphasis on the argument now address it. [98] find the Zheng decision distinguishable on the facts. The defendant there was an employee of the producer of the marihuana and was providing security and other services in respect of the marihuana. On this basis the court found him to be in possession or control and then found possession for the proposes of trafficking. The trial judge found the defendant to be in fact in possession by virtue of his work duties. [99] Similarly the Crown relies on the decision in Lima, 2017 SKCA 108 (CanLII) [Lima], where at para. 25 the Court of Appeal stated “we note the very strong argument that mistaken belief in one’s authority to transport marijuana is not mistake of fact, but rather mistake of law for which no defence is afforded” citing Zheng. In Lima the accused was found guilty of trafficking in marihuana in circumstances where he had actually harvested, packaged and shipped the marihuana. He defended and appealed on the basis that he believed he was entitled to do this under licence of his brother whom he was assisting. It is to be noted that Lima’s actions constituted the actus reus of trafficking and as consequence the trial judge concluded his mistaken view of the law did not give him defence to the offence charged. [100] Moving beyond the actus reus of the offence, the mens rea required to be found guilty as party to an offence must surely involve the actor having knowledge or being willfully blind to the fact that the aid or assistance being provided was related to the commission of criminal offence as opposed to some innocent act. mistake in law by Oscar as to whether his licence permitted him to carry on the activity would not be defence for him to charge of possession or trafficking. It makes sense that when person himself personally performs the actus reus of an offence, mistaken belief in the law cannot operate as defence. [101] Should party whose actions unwittingly aid person to commit criminal offence be held to have him or herself committed that offence? Can it not be properly concluded that party lacks the necessary mens rea to aid or abet an illegal act if they are operating under the mistaken belief that the party who they assist is not doing anything illegal. [102] In Pappajohn, 1980 CanLII 13 (SCC), [1980] SCR 120, Dickson J., albeit in his dissent, explained the parameters wherein mistake is defence at page 148: Mistake is defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as negation of guilty intention than as the affirmation of positive defence. It avails an accused who acts innocently, pursuant to flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is defence though, in the sense that it is raised as an issue by an accused. [103] In law the mistake does not need to be solely of law or fact, as mistakes based on mixed fact and law can be exculpable. In Davidson (1971), 1971 CanLII 1199 (BC CA), CCC (2d) 509 (BCCA), the British Columbia Court of Appeal explained at page 516: If indeed there was mistake of law, then juxtaposed with that mistake was mistake of fact, namely, the mistaken belief of the appellant that the mineral claims had been duly recorded in his name under the circumstances described. As was said by Dixon, J., in Thomas v. The King (1937), 59 C.L.R. 279 at p. 306; approving the judgment of Jessel, M.R., in Eagles field v. Marquis of Londonderry, [1876] Ch.D. 693 at p. 702 (C.A.), “But, in any case, in the distinction between mistakes of fact and of law, mistake as to the existence of compound event consisting of law and fact is in general one of fact and not mistake of law.” [104] In Legrande, 2014 ABCA 192 (CanLII), 575 AR 355, leave to appeal to the Supreme Court of Canada refused, the Alberta Court of Appeal found that “a mistake about the scope or extent of lawful authorization is mistake of law, not of fact”. In this case two aboriginal hunters shot at decoy moose located on an animal sanctuary where hunting was prohibited. The hunters argued that although they were aware that there were restrictions regarding where they could hunt, they were mistaken as to their authority to hunt on the sanctuary. Though distinguishable factually, the following excerpt is helpful in clarifying the line between mistake of fact and law: 13 The appellants rely on R. Chapin, 1979 CanLII 33 (SCC), [1979] SCR 121 in which the appellant was acquitted of hunting in close proximity to bait, because she did not realize there was bait in the area. That was found to be mistake of fact, but the decision is distinguishable. If Chapin had known there was bait in the area, but did not know that hunting near bait was illegal, she would have been operating under mistake of law. The present appellants were operating under mistake of law as to the legality of hunting where they were, not under any mistake as to the physical attributes of the area. R. Alphonse (1993), 1993 CanLII 4517 (BC CA), 80 BCLR (2d) 17, 83 CCC (3d) 417 (CA) also does not assist the appellants. In Alphonse the appellant did not realize that the land on which he was hunting was privately owned. An error as to the title of land was found to be an error of fact, not law. Alphonse knew that he was not allowed to hunt on private land, and there was no error of law involved. [105] On the facts as find them here, the defendants were aware of the laws in place to regulate the production of medicinal marijuana. That is they were aware that the operation needed to be property licensed. They were not mistaken about the requirements of the law. [106] Rather the mistakes they made were twofold: They were mistaken not about the scope of the authority, but that authorization had been granted to grow at the location. This mistake, arguably legal, was coupled with mistake about set of facts. They held mistaken belief that the information contained in the letter provided to them by Oscar was accurate. As result, the mistaken belief of fact rooted their misunderstanding of the authority to grow marihuana at the location. Such mixed mistake exculpates because the belief demonstrates mental state inconsistent with that required for guilt. [107] When the accused did not him or herself commit the actus reus of the defence but it is being alleged that the accused is guilty as party by reason of providing some assistance to the active offender; then reasonable mistaken belief that the active offender was not performing an illegal act is, in my opinion, more properly classified as mistake of fact as opposed to mistake of law. The Possession of Property Obtained by Commission of an Indictable Offence [108] am not satisfied on the evidence that the $6,210 in cash found in their house was obtained by the commission of an indictable offence. The accused’s evidence was that these funds had their origin in the recent sale of recreational trailer sold by them. The marihuana being produced was not ready for harvest and sale and thus the funds could not logically have had their origin in that product. While there was evidence of the illegal sale of cigarettes, there is no evidence proving that such activity as occurred was such as to constitute an indictable offence or was occurring at such level as to generate proceeds in this amount. am not in position to disbelieve the accused’s evidence as to the origin of these funds. Thus the circumstantial evidence surrounding these funds is not such as to be inconsistent with any reasonable alternative but guilt of the accused. Conclusion [109] I find the accused not guilty on all counts.","HELD: The accused were each acquitted of all charges. The court believed the evidence provided by the two accused and found that it was possible that the lease represented the actual arrangement between them and O.G. and that they believed that there only 400 plants in the greenhouses and they were part of a legal grow operation. The letter provided by O.G. purporting to change the address of his licences was found to have been forged by him. Regarding the possession for the purpose of trafficking, the court found that it was not satisfied on the evidence that either of the accused ever had personal possession or control of the marijuana plants nor that they had joint or constructive possession by virtue of some arrangement with O.G. The accused had explained that the cash seized by the police from their house had been received by them after they sold a trailer.",b_2018skqb188.txt
8,"J. 1993 S.H. No. 93-1299 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: CANADA TRUSTCO MORTGAGE COMPANY, body corporate and THE CO-OPERATORS GENERAL INSURANCE COMPANY, body corporate DEFENDANT HEARD: At Halifax, Nova Scotia, on February 12th 13th, A.D. 1996 BEFORE: The Honourable Justice Charles E. Haliburton SUBJECT: Fire Insurance, Householder, Overlapping Coverage, Standard Mortgage Endorsement, Fraud or Misrepresentation by Mortgagee DECISION: The 12th day of September, A.D. 1996 COUNSEL: W. Dale Dunlop, Esq., for the Plaintiff Clarence A. Beckett, Q.C., Esq., for the Defendant DECISION HALIBURTON, J. This action involves contest between two insurance companies. It results from the loss by fire of residence owned by Michael and Diane Brown which was subject to mortgage in favour of Canada Trustco Mortgage Company. At the time of the fire loss, there were in place two policies of insurance for the purpose of indemnifying Canada Trustco. In advancing their claim against one insured, Canada Trustco failed to disclose the existence of the second policy. One policy had been placed by the Owners/Mortgagors, Mr. and Mrs. Brown, and protected both their interests and the interests of the Mortgagee. This policy was placed with The Co‑operators General Insurance Company. The second policy was placed by Canada Trustco to protect its own interests as Mortgagee and was put in place as result of notice that the Co-op policy was being cancelled by Co‑op. This latter policy was placed with Marsh McLennan and is subscription policy. Under the terms of the arrangement between Canada Trustco and Marsh McLennan, coverage was put in place on the basis of notice from the mortgage company. Perhaps the best overview of the facts was produced by Dave Fiander, Mortgage Officer in Dartmouth for Canada Trustco, in his memo of November 10th, 1992, which was directed to his immediate superior in Dartmouth and the Regional Manager. It read: We have commenced foreclosure proceedings against the above noted mtg. It's very unusual situation, would appreciate your input in regards to whether we should obtain solicitor to handle. Here's the story. The property had been vacant since June of 92, as it was listed for sale. Mr. and Mrs. Brown are separated he has been charged for attempted murder. discussed with Mrs. Brown Sept. 17th regarding the possibility of foreclosure. She advised she did not have the resources to pay. Arrangements were made to inspect the property Sept. 18th. viewed on Sept. 18th, and contacted Mrs. Brown that day and advised foreclosure proceedings would be started immediately. She was very upset. Mrs. Brown advised her homeowners insurance would be expiring on Sept. 20th, and she did not have cash to renew. made arrangements with RMAO to place insurance on the property effective immediately Sept. 18th. received call that Saturday Sept. 19th advising the property had been destroyed in fire. The Cooperators, who carry the insurance on our property are in the process of investigating the fire. They suspect arson. spoke with gentleman from the Insurance Crime Bureau last week and he advised we probably will be paid, however it could be long process. That's where we stand as of today.. questions/concerns Do we retain solicitor to act on our behalf? Does our insurance company have any responsibility if the Cooperators do not pay? feel we should retain lawyer to act on our behalf. What are your feelings? The Document Brochure, Volume 2, TAB 22, discloses that Marsh McLennan were advised of the loss on November 9th just before the above memo was written. No claim, however, was made against their policy until much later. By an internal memo, Jim Freeman, Regional Mortgage Manager, gave instructions that foreclosure action should be commenced. His message is dated 11th of February, 1993. The position/understanding of the staff of Canada Trustco as of that time is reflected in another internal memo initiated by Nancy During, Collections Officer, which contains the following comments (TAB 40): We placed ins. thru Marsh and McLennan. The next day the house burnt down and the next day Mr. Browns ins. expired. We should be paid out by Mr. Brown's ins. co. as policy was in force, however, they are now saying the policy will not be honoured as Mr. Brown had not paid previous premium with another insurance company and Canada Trust was aware of this. Even though Mr. Brown had paid their premium, they are still not going to cover the claim. We have referred the file to our solicitor Kevin Quigley who will initiate foreclosure action to sell the land. We will then apply proceeds of sale to mortgage and sue the insurance company for the balance... AGREED FACTS The parties have submitted Statement of Agreed Facts to the Court which may be summarized as follows: The insured property was private family dwelling located at Lake Echo. It was relatively isolated on dirt road, one kilometre from any other dwellings. It was destroyed by fire at 2:30 a.m., September 19th, 1992. Fire Marshal's investigation determined that it was ""incendiary"" in nature. (A popular phrase in many cases would term it ""fire of suspicious origin"".) The property had been mortgaged to Canada Trustco Mortgage Company, the Plaintiff, by Diane and Michael Anthony Brown. At some earlier time, the Browns had apparently separated and Mrs. Brown, (alternatively referred to as Diane Jamieson), assumed ownership and responsibility for the mortgage. Diane Jamieson obviously had some financial difficulties. Mortgage payments were overdue and as of September 19th, she was at least two months in arrears. As of November 30th, it is agreed that the total amount owing on the mortgage, including arrears, was $101,895.76. On January 7th, 1992, Notice of Cancellation was given to Ms. Jamieson by Royal Insurance, her then insurers, for non-payment of the insurance premium. Effective March 9th, she obtained Co-operators Home-Guard insurance policy, policy no. 4125986, insuring the premises in the total amount of $200,000. It contained standard mortgage clause as approved by the Insurance Bureau of Canada for the protection of the Mortgagee, Canada Trustco. As result of two claims filed with the insurers claiming vandalism damage, the property was visited by both an adjuster and sales representative of Co-op. They found the property to be vacant, isolated, that the power had been shut off for non-payment of the electricity bill, and decision was taken to cancel the policy. On the afternoon of September 15th/16th, Notice of Cancellation was delivered to Ms. Jamieson and to Canada Trustco. It is agreed that the termination of coverage would have been effective at 12:01 a.m. September 20th, 1992. The insured property was totally destroyed by fire some 22 hours before that deadline. On September 17th, David Fiander, Mortgage Officer for the Plaintiff, also visited the premises. He spoke with Diane Jamieson, noted that the premises were vacant, learned that Notice of Cancellation had been delivered with respect to the insurance coverage, and made decision to foreclose. On September 18th, he requested Angela Paddock, clerk in the Canada Trustco Collections Department, to obtain alternate insurance coverage which she did. Under subscription policy administered by Marsh McLennan (M M), the insurers were notified to place coverage on house appraised at $150,000 effective September 18th. The ""value"" of the property was factor in fixing the premium charged. This subscription policy no. MMF/1023 contains standard mortgage endorsement clause as approved by the Insurance Bureau of Canada and is identical to the standard mortgage clause contained in the Co-operators Home-Guard policy. Subject, then, to the terms of the insurance policies themselves, there were two policies in effect at the time of the fire, the first being the Cooperators Home-Guard policy with the standard mortgage endorsement clause in favour of the Plaintiff; the second being the subscription policy covering the interests of the Plaintiff/Mortgagee, subject only to $5,000 deductible. THE WITNESSES THEIR TESTIMONY Angela Paddock is clerk in the Credit Service Office of Canada Trustco at Halifax. It is her office which monitors payments, arrears, institutes foreclosure proceedings, and sees the company has insurance protection. Nancy During is her supervisor and Mr. Turner was her manager. She identified the computer message by which she requested insurance coverage under the subscription policy. She did so at the request of Fiander. The $150,000 figure was based on value or last appraisal. She understood the coverage would take effect immediately. It was placed on Friday and she knew the Mortgagors' coverage was to expire ""on the weekend"". Among her comments was that ""We always put insurance"" on the property if we are going to foreclose. The following week and after the fire, she discussed the insurance coverage and possible claim with co-workers. Tab 16 in the Exhibit Book is computer message to Dave Fiander: Spoke with Nancy about. She agrees with me do not tell insurance company that we requested insurance elsewhere. So please make sure thatwe are registered as lien holders. Please keep us updated. She explained this message as her opinion that they should not tell Co-op. She understood that Co-op was the first or primary insurer and that the two policies ""will not pay"". Since the Co-op policy was still in place, understood her belief to be that they should pay out the loss. She testified that her intention in placing the subscription coverage was simply ""to make sure that Canada Trust was covered"". She reviewed statement of the account, Tab 11, in the agreed Exhibits, dated 17th of September, 1992, which bore the handwriting of Fiander, which indicated Ms. Jamieson was two months in arrears at that time. Notations made by Fiander suggest various factors which gave rise to the decision to foreclose. This document likely relates to her testimony in cross-examination that she asked Fiander to go to the house on the 15th of 16th of September ""because they were past due and could not find them"". In her evidence, she appeared to take the position that Dave Fiander was responsible for managing Canada Trustco's interests. With respect to not advising Co-op of the subscription insurance, the decision was ""left up to Fiander"", but not doing so would, in her opinion, ""make the claim simple, fast and uncomplicated"". This proposal was common knowledge to her, Nancy During and Dave Fiander. The office manager, Alan Turner, who ultimately signed the Proof of Loss form, was not party to these discussions and was not told that Canada Trustco's interests had been protected by placing the subscription insurance, but she said: ""He should have known our standard procedure"". Ultimately, when no money came through from Co-op, Angela Paddock wrote Marsh McLennan (April 16th, 1993, Tab 42): Canada Trust did not contact you immediately about the fire as we assumed we were to be paid out by original insurance company. They are now are refusing to pay and we are continuing with our foreclosure action and will take an action against Co-operators Insurance for the deficiency. We will keep you advised as to our progress in this action. She acknowledged that FAX message sent the 9th of November, 1992, advised Marsh McLennan of the fire loss and that other insurance was in place. Co-op was not advised of the subscription policy to her knowledge. Nancy During was Angela Paddock's Supervisor. In her testimony, she recalled some discussion of placing insurance on the Brown/Jamieson residence and noted that there was corporate policy that if legal action was being commenced, insurance would be placed. She learned of the fire the following week. It was unusual. ""We had never had fire before"". She was able only to speculate about any ""agreement"" not to tell Co-op of the subscription policy. She said: She must have asked me the question. We were thinking that we had the blanket insurance, but it was not needed because of Co-op coverage. do remember some conversation about two coverages. She did not discuss the alternative insurance coverage with Alan Turner, her manager, who ultimately filed the Proof of Loss. She testified that there was no intent to withhold the information from Co-op and that she knew that there was the Co-op policy in force as well as the subscription policy. She ""did not know we were under any obligation to tell (Co-op)"" of the other existing policy. Alan E. H. Turner retired in 1992. He was the manager of the administration unit in which Nancy During and Angela Paddock worked. He was responsible for the administration of 9,000 or 10,000 mortgages at any given time, and he had no recollection of this particular mortgage or problems relating to it. He would have been advised when it went to foreclosure and he was advised in this case of the fire some time the week after it had occurred. He knew that Dave Fiander had sent out locksmith to change the locks only to find there was no house. It was the first fire loss that he had experienced. Mr. Turner really had little recollection of how the infonnation was generated or where the information came from which was included on the Proof of Loss form which he ultimately swore. He completed that document which appears at Tab 36 on the basis of draft form which had been presented to him. This included statement in space intended to disclose ""other insurance"" in which he entered the word ""None"". He testified: ""I didn't think that there was other insurance"". In his cross-examination, he said that he relied on information from others and that he would be surprised if those others knew that there was other insurance coverage at the time. Kevin Quigley is solicitor with Burchell MacAdam. He was involved in the preparation of the Proof of Loss form on which he swore the jurat on the 25th of January, 1993. He had been contacted in late November, 1992, by David Fiander whose title on this letter is Manager, Customer Service and Sales, asking him to ""get it settled"". He testified that Co-op had resisted paying the claim on the basis of certain misrepresentations: first, that Mrs. Brown had represented on her application that she had ""never been rejected"" for insurance; and secondly, that Canada Trustco had failed to advise the insurers that the Mortgagors had gone into arrears on their mortgage. The loss was filed; it was rejected by Co-op four days later which Mr. Quigley said was not surprise. He testified that the deficiency after the foreclosure sale and which is as of June 20th, 1993 was $89,307.58. No proceeds have ever been received from Co-op to his knowledge. Robert L. Barnes is barrister primarily engaged in tort litigation and he is an associate of Mr. Quigley. When the Canada Trustco claim took on the character of litigation, he took on the file. His understanding was that Co-op had originally rejected the claim on the basis of misrepresentations made by Mrs. Brown when applying for the coverage. Later, the reasons for rejecting the claim ""evolved"" to include the failure of Canada Trustco to advise the insurer of all the risks which came to their knowledge, specifically, the fact that the mortgage payments were in arrears and the ""financial and other difficulties"" of the Browns, that she was desperately attempting to sell this property, and that she ""had been threatened with foreclosure"" (Beckett letter, Feb. 24, 1993, TAB 49). On April 19th, 1993, shortly after his involvement began, he attended at the Canada Trustco office to review the contents of their file and for the first time, discovered that his client had placed insurance for their own protection under the subscription policy. As result, on April 19th, Mr. Barnes wrote Mr. Beckett, then acting for Co-operators, advising him that he had discovered the existence of the second fire insurance policy. .. It appears that Canada Trust had intended to obtain replacement policy to take effect on the expiry of the Co-operators policy, but there appears to have been an overlap to the extent of one day of coverage that being the date of loss. This would seem to be fortuitous from your client's point of view and could very well reduce its exposure to the extent that contribution from General Accident may now be warranted. This lawyerly language expressed the same opinion which he gave in testimony that ""I thought this was windfall for Co-op"" and ""that they would be able to split the coverage"". Shelley Giffin was clerk in collections at Canada Trustco and co­-worker of Angela Paddock. The Brown/Jamieson mortgage was, in fact, her file, however, she was away from the office from mid February 1992 until the Monday after the fire, and thus had little to add to the evidence of the others. She ""imagined that she learned of the fire right away"" and commented that they ""had an obligation to keep updated on the properties they covered"". Her recollection was that their office had endeavoured to have Dave Fiander complete the Proof of Loss statement since he was the person on the ground with greatest familiarity with the circumstances. Eventually, she said, Alan Turner did it because he was ""fed up"" with trying to get Dave to do it. In cross-examination, she agreed that the Browns had poor payment history; she had no knowledge of the cancellation of the Royal insurance nor of the proposed cancellation by Co‑op. She did acknowledge that Mr. Quigley had been requested to commence foreclosure against the property in March of 1992 and that after the event, she knew that there were two policies of insurance in existence. She was aware that Angela Paddock had placed the subscription insurance in accord with the company's practice. She had advised of the fire, but not Co-op. Her explanation was that she had never dealt with anyone at Co-op. DEFENCE EVIDENCE Defence evidence was given by James W. Higgins, staff insurance adjuster with the Defendant corporation. Because the house had been vandalized in early September, he went out to view it on the 14th of that month. He observed the house that had been damaged, which was in good condition, located on narrow dirt road. There were no near neighbours. The house was vacant and the electricity had been disconnected. As result, he expressed concern to his underwriting department. He became aware of the fire loss on Monday, September 21st, 1992, when the claim appeared on his desk that morning. His dealings with Canada Trustco were with Dave Fiander alone. He retained legal counsel on September 22nd. On December 9th, he received request from David Fiander for blank Proof of Loss form which could be completed by the Plaintiff. When it was returned, he ""rejected"" the claim because, in his opinion, the policy had been ""voided for non disclosure"" by Ms. Jamieson. He had, in the meantime, made inquiries of the previous insurer and detennined that they had cancelled their coverage because of ""non payment"" and the Crime Prevention Bureau had advised him of ""previous losses"". In February of 1993, notice was given to the insured that the policy was being voided. In cross-examination, he testified that as result of his initial visit to the property, he learned that it was for sale because there was listing cut on the counter and, in his opinion, it represented ""higher risk"". He was not, however, aware that vacancy permit had been issued by his corporation. He knew that his advice to cancel had been followed with Notice of Cancellation and he insisted that the real reason for cancellation was not the previous vandalism loss, but rather because of ""exposure"". After the fire loss, he reviewed the file ""to see if there had been misrepresentations"", something which he said he would ""not do on small losses"". The vandalism claim was never paid. Mr. Higgins said that he rejected the claim on advice of counsel and in the context of his ""wondering whether this was all provable"" and that ""it was not going to be paid until it was all checked out"". Co-op has paid nothing, he said, because ""the policy was void"". Sean Bedell was the second and final witness called on behalf of the defence. He now specializes in commercial insurance with another firm but at the relevant time, was sales agent for the Co-operators. It was Bedell who sold the insurance policy to Ms. Jamieson in March of 1992 at which time he visited the premises for an inspection, and he met Ms. Jamieson there. The premises were rented at that time and some repairs were to be done by the Tenant. He observed that the house was new, well built, and had wood furnace properly installed. He completed the application while taking infonnation from Ms. Jamieson, including the fact that claim on her car had been declined in 1991 for arson. He testified that vacancy permit was granted with respect to the property on the 7th of August and that he reviewed coverage few days later and was ""slightly concerned"". On August 11th, he inquired of Canada Trustco whether their payment history was O.K. and he was advised that there were ""no problems"". In early September, Ms. Jamieson called him to report theft and vandalism. As result of this claim, he had discussions with Mr. Higgins. ""He had concerns; had concerns"" and they agreed that it was ""in our best interests to cancel"". They obtained authority from supervisors to cancel on five days' notice, which he did. After the fire, he learned from the listing agent that the property had been vacant since June 19th and on speaking to Andrea Wadden at Canada Trust, he learned they had been advised of the vacancy on September 16th or 17th and that the Mortgagor was ""behind two months in payments"". It was Bedell who actually delivered the Notice of Cancellation to Ms. Jamieson by leaving it in her mailbox. He spoke to her the following day when she confirmed she had received the notice. Significantly, she asked him the ""exact time"" that coverage would cease and, ""I told her, 12:01 on the 20th"". Under cross-examination, Mr. Bedell confirmed it was beautiful house with replacement value of $200,000 and he confirmed that when the vacancy permit was obtained on August 7th, their office had been advised that the property had been vacant for some three weeks prior and will be ""for three months"". He confirmed that as result of his inquiry of August 11th, as he reviewed the file subsequent to the vacancy permit, he learned from Canada Trust that Ms. Jamieson was actually Mrs. Brown and that the mortgage was in both names. This fact did not concern him, he said, but he was concerned about the status of mortgage payments. He agreed that the information obtained from Ms. Wadden of Canada Trustco after the fire made it ""clear she was talking of developments in the previous five days"" and that this conversation made it clear that Canada Trustco was making efforts to preserve the property and their interest in it. He was asked if he took any action to preserve the property and he responded: ""I asked my supervisor to hire security"". ""Adding up the facts, it was more likely than not"" that loss might occur and when she had asked the exact time of cancellation, ""that made the hair stand on the back of my neck"". THE ONUS OF PROOF The Defence raises issues of fraud and/or false statements in the Proof of Loss which was filed by Canada Trustco with respect to their loss as Mortgagee. adopt the comments of Grant, J. as expressed in Reid v. Halifax Insurance Company (1984), 66 N.S.R. (2d) 181, (T.D.). Justice Grant reviewed the authorities and concluded as follows: ""As interpret these cases, the standard of proof is on the balance of probabilities. However, there are degrees of probabilities within the range of balance of probabilities. The standard of proof in civil case does not reach that of criminal case where proof must be beyond reasonable doubt. The degree of proof required in civil case where the allegation is of conduct that is morally blameworthy or that could have criminal or penal aspect to it is higher degree of probability than when there is not morally blameworthy, criminal or penal aspect to it. However, in each instance it is still on balance of probabilities but in the former, of higher degree. balance of probabilities is where it is more probable that an event happened than that it did not happen. The scale of probabilities must be weighed in favour of the event having happened. Where the scales are evenly weighed, then the person who has the burden of proof has not tipped the scales on the balance of probabilities and fails. In civil action where criminal act such as fraud or arson is alleged, the standard of proof is still on balance of probabilities but on higher degree of probability, commensurate with the conduct alleged."" accept also the law as advanced by Defence Counsel that: ""...Derry v. Peek (1899), 14 App. Cas. 337, is authority for the proposition that false representation is fraudulent if made: (1) knowingly; or (2) without belief in its truth; or (3) recklessly without caring whether it be true or false. If an insured in advancing claim takes it upon himself to swear as to statement of fact as to the accuracy of which he knows that he is entirely ignorant, and if such fact be not true, it is fraud..."" Issue No. will express this way: What contracts of insurance were in place for the protection of Canada Trustco at the time of the fire? Notwithstanding the numerous references in the evidence to the misrepresentations of Ms. Jamieson in applying for her insurance policy with the Co-operators, both parties are in agreement that such alleged misrepresentations would not affect the enforceability of the contract of insurance between the Co-operators and the Plaintiff, Canada Trustco, as Mortgagee. It is abundantly clear as result of the decision of the Supreme Court of Canada in Panzera et al v. Simcoe and Erie Insurance Co. et al (1990), 1990 CanLII 92 (SCC), 74 D.L.R. (4th) 197 that misrepresentation by Mortgagor in obtaining insurance coverage will not affect the rights of the Mortgagee to collect on the policy of insurance thereby created where the insuring company has issued the standard form of mortgage endorsement. The head­note indicates: The plain words of the clause signified that the mortgagee was not affected by any misrepresentation on the part of the mortgagor, whether made before or after the contract. The reasonable expectation of the mortgagee was that the clause would have the same effect as separate policy insuring the mortgagee's interest. Both the propositions enunciated in the above quotation have application to this case. It may be useful to quote fairly extensively from some of the relevant comments of La Forest, J., who delivered the majority decision, (page 199/200): .. review of the American authorities reveals an all but universal consensus to the effect that this clause evidences an independent contract between the insurer and the mortgagee. My colleague has also noted that the ""two contract"" theory is now well anchored in Canadian jurisprudence. Notably, in London Midland General Insurance Co. v. Bonser (1972), 1972 CanLII 18 (SCC), 29 D.L.R. (3d) 468... ...by virtue of the two-contract theory, the insurance of the mortgagee cannot be invalidated by any act or neglect of the mortgagor, be it at the inception of the policy, or subsequent to its formation ... ...the contrary interpretation...distorts the plain and ordinary language used in the standard clause. .. find myself in full agreement with the analysis in Sanborn Cir. J. who concluded, at pp. 176-7 (Syndicate Ins. Co. v. Bohn, 65 F. 165 (1894), Eighth Circuit, U.S. Court of Appeal): Was it that contract that the indemnity of the mortgagee should not be protected against any prior act or negligence of the mortgagors? There is no such restriction in the contract. It provides that the mortgagee's interest shall not be invalidated by any act or neglect of the mortgagors, by any occupancy or vacancy, or by any change of title or possession of the premises, provided that the mortgagee shall notify the insurance company of any change of ownership or increase of hazard that may come to its knowledge, shall have permission therefor indorsed on the policy, and shall pay for it ....What apter terms could be chosen to effect separate insurance on the interest of the mortgagee, to free that insurance from any possible influence of any act or neglect of the mortgagors, and to make it dependent solely on the course of action of the mortgagee and the insurance company? None occur to us. (Page 206) It is clear that the substance of the difference between the Canadian mid American versions of the clause lies in the fact that the text used in Canada incorporates distinct and pointed reference to ""omission"" and ""misrepresentation"" of the mortgagor, over and above the mention of ""act"" and ""neglect"". (Page 207) In summary, when the standard mortgage clause is interpreted in the light of the settled principles that govern the construction of insurance contracts, there can be no doubt that the insurer, by virtue of this clause, is representing to the mortgagee that separate and distinct contract exists between them, and that the validity of this independent contract depends solely on the course of action between the mortgagee and the insurer. In reviewing the history of the standard mortgage clause, La Forest, J. makes it clear that such clause is not to be equated with what might be called loss payee provision and, thus, it creates ""a direct contract"" between the Mortgagees and the insurance company as would enable the former to sue in their own name alone and irrespective of the mortgagor. My comment, then, is it is clear that the issuing of standard mortgage endorsement clause creates an independent right of action in the mortgagee, and as La Forest, J. goes on to say (page 214): ...it was precisely because the standard mortgage clause held out the promise of making the mortgagee's insurance dependent solely on the course of action between the mortgagee and the insurance company that it supplanted the use of the ""open mortgage"" clause in the insurance industry. (Page 216) ...clearly, if mortgagees elect to insure through the medium of the standard mortgage clause, they can only be doing so on the reasonable expectation that their interests will be protected in the same way as if they had entered into an independent contract evidenced by separate piece of paper. And this further quote: conclude that by the terms of the standard mortgage clause the insurer has represented to the mortgagee that it will decline to set up as against the mortgagee any omissions and misrepresentations made by the mortgagor in effecting coverage for the mortgagee and which, by the ordinary application of the law of mandate, might otherwise be imputable to the mortgagee. Any other interpretation would, in my view, fail to concord with the reasonable expectations of the parties as to the coverage offered by the standard mortgage clause, and, indeed, by making the insurance of the mortgagee derivative to certain degree on the course of dealings between the mortgagor and the insurer, would strike at the very raison d'etre of the standard mortgage clause. To similar effect is the later case of the Royal Bank of Canada v. North Waterloo Farmers Mutual Insurance Co. (1992), 1992 CanLII 7545 (ON SC), O.R. (3d) 723 and the much earlier case of the Ontario Court of Appeal, London L. S. Co. of Canada v. Union Ins. Co. of Canton Ltd., 1925 CanLII 446 (ON CA), [1925] D.L.R. 676, this latter case, having been cited with approval by La Forest, J. in his decision in Panzera (supra). In this latter case, the mortgage endorsement clause included paragraph as did the clause presently before the Court in these terms: It is further provided and agreed that the mortgagees shall at once notify the said company if non-occupation or vacancy for over 30 days or of any change of ownership or increased hazard that shall come to their knowledge; and that every increase of hazard, not permitted by the policy to the mortgagor or owner, shall be paid for by the mortgagees, on reasonable demand, from the date such hazard existed, according to the established scale of rates, for the use of such increased hazard during the continuance of this insurance. With respect to that clause, Logie, J. had this to say: am of opinion that in this case the insurance company have in their own language set forth the only penalty which the mortgagees must suffer for failure to notify the insurers of transfer or change of ownership which comes to their knowledge, namely, that the mortgagees must, if there is an increase of hazard by reason thereof, pay an increased rate. This philosophy was expressed by our own Appeal Division in Royal Insurance Co. of Canada v. Gordon (1981), 1981 CanLII 2757 (NS CA), 125 D.L.R. (3d) 372, where the head-note reads: mortgage clause in an insurance policy provided that the mortgagee should notify the insurer of any vacancy beyond 30 days or increased hazard known to the mortgagee, and that the mortgagee should pay an increased premium for any such increased hazard ....the only penalty for failure to notify was liability for the increased premium. Clearer language would be required to effect forfeiture. (My emphasis) This decision quotes extensively from London L. S. Co. of Canada v. Union Ins. Co. of Canton Ltd. above, including the comments of Logic, J. It is, therefore, clear from the cases that there was valid contract of insurance in place between the Defendants, the Co-operators Insurance, and the Plaintiff, Canada Trustco, at the time of the loss. This contract of insurance was separate from and independent of any contract or any liability which the insurers may have to the owners, Brown/Jamieson. The limits of coverage under this separate contract would obviously be the loss which might be suffered by Canada Trustco in the event of an occurrence covered by the policy. In spite of the nominal insured value of the property of $200,000, that amount was not the coverage extended to the mortgage company. In the result, the risk covered for the benefit of Canada Trustco was the balance of their mortgage, less any recovery on foreclosure. That amount was determined after foreclosure to be $89,307.58 as of June 20th, 1993. This policy included the Standard Mortgage Clause: Standard Mortgage Clause (approved by the Insurance Bureau of Canada) BREACH OF CONDITIONS BY MORTGAGOR, OWNER OR OCCUPANT 1. This insurance and every documented renewal thereof AS TO THE INTEREST OF THE MORTGAGEE ONLY THEREIN is and shall be in force notwithstanding any act, neglect, omission or misrepresentation attributable to the mortgagor, owner or occupant of the property insured, including transfer of interest, any vacancy or non-occupancy, or the occupation of the property for the purposes more hazardous than specified in the description of the risk. PROVIDED ALWAYS that the Mortgagee shall notify forthwith the insurer (if known) of any vacancy or non-occupancy extending beyond thirty (30) consecutive days, or of any transfer of interest or increased hazard THAT SHALL COME TO HIS KNOWLEDGE; and that every increase of hazard (not permitted by the policy) shall be paid for by the Mortgagee on reasonable demand from the date such hazard existed, according to the established scale of rates for the acceptance of such increased hazard, during the continuance of this insurance. OTHER INSURANCE 3. If there be other valid and collectible insurance upon the property with loss payable to the Mortgagee as law or in equity then any amount payable thereunder shall be taken into account in determining the amount payable to the Mortgagee. There was also in existence the policy of insurance between C.T. Financial Services Inc. and General Accident Assurance Company and others, which has been referred to in these proceedings as the ""subscription policy"". It was subscription policy no. MMF/1023 Pre-Reasol, whereby number of insurance companies undertook to indemnify C.T. Financial Services Inc. and its subsidiaries for the period April 30th, 1990 to April 30th, 1991, which, as the result of subsequent endorsements, continued in effect at the material time. The coverage afforded by this policy pennitted the Mortgagee from time to time to simply notify the insurer of their requirement for coverage of property on which they held mortgage. The triggering event appears to be described in paragraph of Section A: Within the Policy Period, coverage shall attach effective the date requested by the Named Insured, which date will be either the date of possession of the security by the Insured or the date the Insured becomes aware that the property is inadequately insured or uninsured and legal action to obtain the security has been initiated. (My emphasis) On Friday, September 18th, as result of the Notice given or the request made by Angela Paddock, this contract was put in force with respect to the Brown/Jamieson property to the extent of the Mortgagee's interest. Other relevant clauses in this policy include Section B: PROPERTY DAMAGE 1. PROPERTY INSURED: (a) The Interest of the Insured only in Property of Every Description as reported by the Insured, except as excluded specifically elsewhere in this Policy, on which the Insured holds mortgage or Foreclosed Properties prior to title being obtained by the Insured and where there is no other insurance or inadequate insurance on the property or evidence of insurance has not been provided. (My emphasis) 3. THIS POLICY DOES NOT COVER THE FOLLOWING PROPERTY: (e) Property for which there is other valid and collectible insurance. (My emphasis) And Section D: GENERAL CONDITIONS 8. OVERLAPPING COVERAGES CLAUSE: In the event of dispute arising between Insurers because of overlapping coverages, it is understood and agreed that the rules set forth in the ""Agreement of Guiding Principles With Respect to Overlapping Coverages Relating to Property Insurance"", adopted by the All Canada Insurance Federation in 1958 and subsequent amendments, shall prevail. PREMIUM: The premium charged at inception and at subsequent anniversary dates, is provisional only and shall be adjusted on receipt of the statement of values and policy rate. And SECTION E: STATUTORY CONDITIONS 6. REQUIREMENTS AFTER LOSS: (a)(ii) (To) Deliver as soon as practicable to the Insurer proof of loss ...(4) Showing the amount of other insurances and the names of other Insurers, FRAUD: Any fraud or wilfully false statement in statutory declaration in relation to any of the above particulars, vitiates the claim of the person making the declaration. 12. WHEN LOSS PAYABLE The loss is payable within sixty days after completion of the proof of loss, unless the Contract provides for shorter period. The subscription policy also carried the standard mortgage endorsement clause, including provision for increased rates in the event that the property is vacant or other risks constituting an increased hazard and the following standard provision with respect to other insurance If there be other valid collectible insurance upon the property with loss payable to the Mortgagee at law or in equity then any amount payable thereunder shall be taken into account in determining the amount payable by the Mortgagee. The testimony of the witnesses and the documents establish without any doubt that there were two policies of insurance effective on this property at the time of the loss. The contracting parties were Canada Trustco as Mortgagee and the two insurance companies respectively as insurers. The terms of the policies were virtually identical. The risks insured against were the same and the interest insured was that of the Mortgagee which was ultimately determined to be $89,307.58. Each of the policies carried its own provision with respect to ""other insurance"" and the requirement that the mortgage company file proof of loss indicating all the insurance coverage outstanding and further providing that the obligation of the insurer would be limited by the extent to which the insured was entitled to contribution from another insurer. have not compared the clauses in their particularities with each other or with the Insurance Act because consider that Section 169 of the Insurance Act, R.S. c.231 would override any deviation in such clause. Section 169 provides: Contribution among insurers 169 (1) Where, on the happening of any loss or damage to property insured, there is in force more than one contract covering the same interest, the insurers under the respective contracts shall each be liable to the insured for its rateable proportion of the loss unless it is otherwise expressly agreed in writing between the insurers. FRAUD ITS EFFECT The remaining issue and the principal subject of dispute between the parties is whether the conduct of Canada Trustco through its employees was fraudulent or their statements or representations to the Defendant false in such manner as to constitute breach of statutory condition 7, thereby vitiating the claim. Statutory condition as contained in the Co-op policy reads: Any fraud or willfully false statement in statutory declaration in relation to any of the above particulars vitiates the claim of the person making the declaration. In the case before me, both parties have emphasized that an insurance contract is one which depends upon the utmost good faith of both the insured and the insurer. The nature and value of the property insured must be frankly disclosed on the one hand and the obligation to indemnify must not be avoided on the other. The insurer is entitled to know the extent of the risks for which they offer indemnification but the insured is entitled to have expeditious settlement of genuine claim without prevarication. claim such as this would be fraudulent only if the party making the claim consciously and knowingly misrepresents the facts so as to gain an advantage; in this case, indemnification to which they are not entitled. It is an action which, when discovered, would result in the Claimant being penalized by losing not only that which they have claimed, but also that to which they were entitled, assuming they were entitled to some lesser indemnification. Motive and intention in this context are essential factors to be established. As the scholars as well as the cases establish, it is the duty of an insurance company to insist ""on full and searching examination"" of claims in order to discharge ""their duty to their shareholders and the public"" so that they will avoid the payment of ""false"" claims, meaning as understand it, claims which are deliberately invented. The law contemplates that those who invent false claims or intentionally exaggerate their claims for the purpose of gaining profit from an occurrence should be punished by having their claim disallowed. The onus of proof on the insurer refusing to pay on the basis of fraud or misrepresentation must be commensurate, then, with that concept of punishment. The Defendant here has taken the position that the formal Proof of Loss filed by Canada Trustco was fraudulent in that it failed to disclose the existence of ""other insurance"". In addition, it is argued that Canada Trustco, through its employees, withheld or misrepresented facts relevant to the extent of the risk which the Co-operators covered. have referred earlier to the onus of proof which applies in these matters when such issues are raised. I am not satisfied that the Defendant has established on a balance of probability that there was any material misrepresentation with respect to the extent of the risk, nor any fraudulent behaviour with respect to the completion of the Proof of Loss. With respect to the latter, there is a heavy onus on the party making the allegation. find the relevant facts to be as follows: BEFORE THE LOSS: 1. While the Mortgagor was two months in arrears as of September 22nd when Mr. Bedell spoke to Ms. Wadden, there is no evidence that there were any arrears as of August 11th when the initial inquiries were made in the context of the granting of vacancy permit. 2. As of September 15th and 16th, the evidence persuades me that Mr. Higgins and Mr. Bedell, both representatives of the Co-operators, had greater understanding and awareness of the circumstances of Ms. Jamieson, the property and the risks faced by the underwriters than did anyone at Canada Trustco, including Dave Fiander, the manager of this file. 3. There is high probability that if Mr. Bedell's advice to his superiors had been followed, and if security person had been retained to ensure the safety of the property on the 18th of September and until the Co-operators' policy expired, their risk could have been substantially diminished or more likely completely avoided. 4. Dave Fiander was served with Notice of Cancellation of the fire insurance coverage of Co-operators on or about September 15th. As result, he visited the premises, spoke to Ms. Jamieson, spoke to Mr. Bedell, and gave instructions that foreclosure proceedings should be commenced and insurance should be placed on the property under the subscription policy for the purpose of protecting Canada Trustco. In accordance with that request and company policy, Angela Paddock requested coverage under the subscription policy on Friday, September 18th. accept on her evidence that placing such insurance is automatic when foreclosure is instituted; that the coverage was to take effect immediately and that her intention was ""to make sure Canada Trust was covered"". accept the evidence of Nancy During that corporate policy required that when decision was taken to commence legal action, insurance would be placed on mortgaged premises to protect the interests of Canada Trustco. accept that she understood from Angela Paddock that the Mortgagor's policy was ""expiring"" on the weekend. AFTER THE LOSS: 1. The evidence of Mr. Higgins makes it clear that as early as the 22nd of September, and in the context of his knowledge of the prior vandalism and general circumstances of Ms. Jamieson and the property, that any claim would be rejected. It was on that day he consulted counsel. infer from his testimony that the subsequent filing of the Proof of Loss by Ms. Jamieson and later by Canada Trustco was simply matter of form and the rejections subsequently issued by his company flowed from that initial rejection of the claim. Indeed, it may be inferred that that intention to deny any claim was being furthered with the instruction to Mr. Bedell that he gather information about the circumstances of Ms. Jamieson and the status of the mortgage payments, which he did on or about September 22nd. 2. After the fire, there were discussions among Dave Fiander, Angela Paddock, and her supervisor, Nancy During, about the need to tell the Defendant insurers of the second insurance coverage. Angela Paddock's evidence was, ""I understood Co-op was first and that two insurance companies will not pay"". ""Co-op was still in place."" accept her evidence that she believed processing the claim would be simpler, faster and less complicated if the subscription policy was not mentioned, but that she and Nancy During left it in Dave Fiander's discretion to discuss that coverage or not with the Co-operators people with whom he was in contact. accept the evidence of Nancy During that she ""thought"" the ""blanket insurance"" was not needed because the Co-op coverage was still in place in spite of the fact that she knew of the overlapping coverage. accept the evidence of both these witnesses, Ms. Paddock and Ms. During, that they did not discuss the second policy with Mr. Turner who ultimately completed the Proof of Loss. find that these three, During, Paddock and Fiander, knew that there were two policies of insurance in force on the property, but it has not been established that they knew or understood that the existence of two policies diminished the obligation of Co-operators or resulted in any obligation by the subscription insurers to pay, except or unless for some reason, the Co-operators' policy was avoided. It is not established that Alan Turner, who completed the Proof of Loss, knew of the second policy, however, it is established that it was company policy that the subscription policy would be put in place once the decision had been made to initiate legal action. Turner knew or should have known by his own testimony that decision to foreclose had been made on this property and, presumably, would have known of the corporate policy to require coverage of the subscription insurers. 3. It has not been established that Alan Turner knowingly misrepresented the fact of ""other insurance"". accept the evidence of all the employees of Canada Trustco that this was the first instance in which they had been required to deal with fire insurance claim. INCREASED RISK The Defence has raised the issue of whether the failure of Canada Trustco to advise them of circumstances relating to increased risk or misrepresentations with respect to that issue constitute cause to void the contract of insurance. am satisfied on the basis of Royal Insurance Co. of Canada v. Gordon, cited above, that the only penalty for failure to notify the insurer of increased risk would be liability for an increased premium. Furthermore, as outlined in the review of the circumstances applicable here, Co-operators was in possession of more information relating to any increased risk than was Canada Trustco. The failure of the mortgage company's employees to communicate anything which they knew could not have affected the position of Co-op in any material way. This argument is, accordingly, without merit. FRAUD OR MISREPRESENTATION ON THE FILING OF THE PROOF OF LOSS Short v. Guardian Insurance Company of Canada (1984), 62 N.S.R. (2d) 1, decision of the Nova Scotia Supreme Court, Appeal Division, is authority for the proposition that in order to avoid coverage in such circumstances, it is necessary for the insurer to meet the heavy burden of producing evidence that is clear and satisfactory and leaves no room for any reasonable inference, but that the insured has made ""wilfully false statements"". In his decision, MacKeigan, C.J.N.S., referred to the comments of the Trial Judge who had said: It is necessary that, when statutory declaration is filed and sworn to, it be done in good faith. find that there have been wilful, false statements which vitiate the entire claim... find that the intention was there to defraud, based upon the overestimation of the value of the items... (My emphasis) The Chief Justice commented Mrs. Short was thus held guilty of fraud and ""wilfully false statements"" in the sworn proof of loss by knowingly overvaluing numerous items with intention to defraud. Such acts, when so found, vitiated the plaintiff’s entire claim under Statutory Condition and, of course, exposed her to possible prosecution for false pretences, fraud or forgery under the Criminal Code.. To establish such defence...the insurer has heavy burden to produce evidence that is ""clear and satisfactory and leaves no room for any reasonable inference but that of guilt"". (My emphasis) While it is clear that proof beyond reasonable doubt is not die standard to be applied in civil matter, it is not inconsequential, in my view, that the comments of Chief Justice MacKeigan import the language of the Criminal Code into the discussion. Subsequently, in allowing the appeal of Mrs. Short, the Chief Justice discussed and analyzed the context of the claim and the motives of Mrs. Short in completing the Proof of Loss as she had done. consider it necessary to review the motivations and the context which acted upon the employees of Canada Trustco in connection with placing the subscription policy and in filing Proof of Loss with the Defendant which clearly included the impugned misrepresentation of fact of other insurance. First of all, there is no suggestion of any personal motive of any of the employees in either placing the subscription policy or attempting to recover payout from Co-op. There is no suggestion of any possibility of personal gain or loss as result of the manner in which they handled the claim. Furthermore, the entitlement of Canada Trustco itself is precisely the same, whether coverage is provided by either or both policies. The limit of their coverage is their exposure on the mortgage. There is no suggestion that the employees of Canada Trustco had any thought of collecting double the insurance or of giving preference to either of the insurers. The reasonable inference is simply that they followed corporate policy to obtain coverage under the subscription policy as ""backstop"" insurance only. There is some suggestion that they may have believed that the subscription insurers were liable only at 12:01 a.m. on September 20th, although careful reading of the policy makes it clear that the coverage went into effect ""immediately"". There is no evidence that any of the persons involved had any actual knowledge of or access to the specific terms of either policy. While Mr. Turner, in filing the Proof of Loss, must have known of the corporate policy to place insurance immediately with the subscription insurers, there is no evidence to suggest that he ever turned his mind to that fact, nor that he would have had different opinion about the primary liability of Co-operators if he had done so. Like his fellow workers, he had never been involved in fire claim previously. Indeed, even if Mr. Turner or the others had read paragraph of Section of that policy, they might have found some support for their opinion that the policy was effective only after the effective cancellation of the Co-op policy, in view of the words ...coverage shall attach...or the date the Insured becomes aware that the property is inadequately insured or uninsured and legal action to obtain the security has been initiated. (My emphasis) Section B, paragraph 1(a) includes these words: PROPERTY INSURED The Interest of the Insured only in Property ...where there is no other insurance or inadequate insurance on the property... And similarly, paragraph 3(e): THIS POLICY DOES NOT COVER THE FOLLOWING PROPERTY: Property for which there is other valid and collectible insurance. In view of those words appearing in the subscription policy and in view of the context in which the claim was put forward, the Defendant has not satisfied that heavy burden of producing clear and satisfactory evidence that Canada Trustco, through its employees, acted wilfully and knowingly to claim the benefit of coverage to which the corporation was not entitled. I find the Defendant is obliged to indemnify the Plaintiff as it contracted to do. It was put forward as defence by Co-operators that Canada Trustco has already been fully indemnified by the subscription insurers and as consequence, has sustained no loss and consequently possesses no status to claim against Co-op, except for the $5,000 deductible. It is argued further that the subscription insurers, having chosen to indemnify Canada Trustco, might have made claim against Co-op for contribution, but that by choosing to continue the proceedings which had been commenced by Canada Trustco, and exercising their subrogation rights, they are limited to the same recovery which would have been available to Canada Trustco. find these arguments to be without merit and acceding to them would impose an extremely legalistic conclusion entirely at odds with just resolution. In any event, would have concluded that the rights of the respective parties were frozen in time by the commencement of the action by Canada Trustco. This action was commenced before they had received any indemnification from the subscription insurers. RATEABLE PROPORTION Section 169 of the Insurance Act provides: Where, on the happening of any loss or damage to property insured, there is in force more than one contract covering the same interest, the insurers under the respective contracts shall each be liable to the insured for its rateable proportion of the loss unless it is otherwise expressly agreed in writing between the insurers. The Home-Guard policy issued by the Defendant, Co-operators, provides: INSURANCE UNDER MORE THAN ONE POLICY If you have other insurance which applies to loss or claim or would have applied if this policy did not exist, we will not pay any loss or claim until the amount of such other insurance is used up. In all other cases, our policy will pay its rateable proportion of the loss or claim. The subscription policy incorporates similar provision: 8. OVERLAPPING COVERAGES CLAUSE: In the event of dispute arising between Insurers because of overlapping coverages, it is understood and agreed that the rules set forth in the ""Agreement of Guiding Principles With Respect to Overlapping Coverages Relating to Property Insurance"", adopted by the All Canada Insurance Federation in 1958 and subsequent amendments, shall prevail. In terms of equity, the Plaintiff and the subscription insurers should be entitled to contribution from the Defendants to the same extent as if the Proof of Loss had been correctly completed. Both policies were in force at the time of the loss. Section 169 of the Insurance Act makes it clear that both insurers must contribute. The face amount or the nominal amount of insurance coverage in each policy is irrelevant. Co-operators had contract with Ms. Jamieson/Brown to provide indemnification up to $200,000 in certain circumstances. Under the standard mortgage insurance clause, however, there existed separate contract with the mortgage company to indemnify them to the extent of their loss. The terms of the subscription coverage are identical to the latter contract excepting only that the subscription insurers have the benefit of $5,000 deductible. Otherwise, the limits of their policy similarly provide indemnification only to the extent of the exposure of the Mortgagee on nonpayment by the Mortgagor. In both cases, the limit of coverage subsequent to foreclosure has been determined to be $89,307.58. On this basis, find that the Defendant, Co-operators, is obliged to pay the Plaintiff $5,000, plus 50% of the residue of the claim of $89,307.58, for total of $47,153.79. find further that the obligation of the subscription insurers under the policy was $42,153.79. To the extent that they have overpaid, then, they are entitled to recover from Canada Trustco or, alternatively from the Co-operators. have considered the question of prejudgment interest in the context of Montreal Trust Co. v. Dominion of Canada General Insurance Co. et al (1987), 1987 CanLII 4155 (ON SC), 60 O.R. (2d) 481, decision of the High Court of Justice of Ontario. In that case, there was failure of the insured mortgagee to disclose to the insurer change of ownership of the property and the Trial Judge refused an allowance for pre-judgment interest. He offers no rationale for having done so. Pre-judgment interest is intended to compensate the Plaintiff for the failure of the Defendant to make prompt settlement of the sum ultimately found to be due and owing. Statutory Condition 12 provides that loss shall be payable ""within sixty days after completion of the proof of loss, unless the Contract provides for shorter period"". The Claimant has responsibility to protect their own interests under the Act by filing the Proof of Loss promptly. Fortunately or unfortunately, there is no obligation on the insurer to provide form for the Proof of Loss, but the obligation to file rests firmly on the insured. In this case, it is apparent that the Insurer somewhat reluctantly provided form of Proof of Loss which was ultimately completed and filed by the insured. Both parties were responsible for some delay. see no reason why either should be penalized in the circumstances here. Interest on the award will be payable by the insurer to the Plaintiff for the period commencing 60 days after the Proof of Loss was filed. expect the parties will be able to agree on the rate of interest applicable. If not, am prepared to hear representations in that regard. The Plaintiff will have its costs on the amount recovered under Tariff A, on Scale 4. J. Digby, Nova Scotia September 12th, 1996 TO: Ms. Gretchen G. Pohlkamp Prothonotary The Law Courts 1815 Upper Water Street Halifax, Nova Scotia B3J 1S7 Mr. W. Dale Dunlop Walker, Dunlop P.O. Box 3366 Halifax, Nova Scotia B3J 3J1 Solicitor for the Plaintiff Mr. Clarence A. Beckett, Q.C. Patterson Palmer Hunt Murphy P.O. Box 1068 Truro, Nova Scotia B2N 5B9 Solicitor for the Defendant CASES AND STATUTES CITED: Reid v. Halifax Insurance Company (1984), 66 N.S.R. (2d) 181 (T.D.) Derry v. Peck (1899), 14 App. Ca. 337 Panzera et al v. Simcoe and Erie Insurance Co. et al (1990), 1990 CanLII 92 (SCC), 74 D.L.R. (4th) 197 Royal Bank of Canada v. North Waterloo Farmers Mutual Insurance Co. (1992), 1992 CanLII 7545 (ON SC), O.R. (3d) 723 London L. So. Co. of Canada v. Union Ins. Co. of Canton Ltd., 1925 CanLII 446 (ON CA), [1925] D.L.R. 676 Royal Insurance Co. of Canada v. Gordon (1981), 1981 CanLII 2757 (NS CA), 125 D.L.R. (3d) 372 Insurance Act, R. S. c. 231 Short v. Guardian Insurance Company of Canada (1984), 62 N.S.R. (2d) Montreal Trust Co. v. Dominion of Canada General Insurance Co. et al (1987), 1987 CanLII 4155 (ON SC), 60 O.R. (2d) 481","The plaintiff held a mortgage on a house destroyed by a suspicious fire. At the time of the fire there were two insurance policies in place for the purpose of indemnifying the plaintiff. One was placed by the mortgagors with the defendant to protect both their interests and those of the plaintiff. When the defendant notified the plaintiff that it was going to cancel the policy, the plaintiff placed a second policy on the property. The fire occurred less than a day before the first policy was to be cancelled. The defendant refused to honour the policy. It claimed that the formal Proof of Loss filed by the plaintiff was fraudulent, as it failed to disclose the existence of the second policy. Finding for the plaintiff, that the defendant has not satisfied the heavy burden of producing clear and satisfactory evidence that the plaintiff, through its employees, acted wilfully and knowingly to claim the benefit of coverage to which it was not entitled.",c_1996canlii472.txt
9,"QUEEN’S BENCH FOR SASKATCHEWAN 2008 SKQB 146 Date: 2008 04 02 Docket: DIV. No. 000454 of 1998 Judicial Centre: Humboldt BETWEEN: SHARON STRUEBY and KIRK STRUEBY Counsel: Richard W. Danyliuk, Q.C. for the petitioner David J. Flett for the respondent FIAT GABRIELSON J. April 2, 2008 INTRODUCTION [1] On September 19, 2007, the respondent Kirk Strueby (“Mr. Strueby”) filed an application for an order varying child support order granted by Justice Y. Wilkinson on May 10, 1999 (which order was subsequently confirmed by the judgment of Justice Dielschneider dated February 28, 2000, which therefore becomes the order sought to be varied). The relief sought was as follows: (a) declaration that Jill Strueby, born December 16, 1981 and Luke Strueby born May 29, 1986, are no longer children of the marriage within the meaning of the Divorce Act; (b) As result of the two said children no longer being children of the marriage within the meaning of the Divorce Act, that no further child support is owing by the applicant for these children as of January 1, 2007; (c) An Order eliminating the Applicant’s child support arrears as at the time of the application in the amount of $17,400.00, for the period of March 2003 to September 2007; (d) An Order that the Respondent’s obligation to pay proportional amount of post secondary school expenses for the child of the marriage, Keegan Strueby, born November 13, 1989, be fixed based upon the applicant’s income of $44,781.00 and the Petitioner’s income; and (e) An Order that any maintenance for Keegan Strueby be paid directly to Keegan. [2] The parties were married November 1, 1980. They separated on or about April 11, 1994. Three children were born of the marriage: Jill Strueby (“Jill”), born December 16, 1981, Luke Strueby (“Luke”), born May 29, 1986, and Keegan Strueby (“Keegan”), born November 13, 1989. The petitioner, Sharon Strueby (“Ms. Strueby”), filed petition for divorce on November 24, 1998, in which she sought custody of the children and child support in accordance with the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175]. Pursuant to consent judgment dated February 28, 2000, in which Ms. Strueby was granted custody of the children, Mr. Strueby, was found to have gross annual income of $26,400, and based upon this income was ordered to pay to Ms. Strueby the sum of $500 per month for child support as well as an additional sum of $100 per month for child care expenses and extracurricular activity expenses. There was also to be set-off of $100 per month in respect to the sum payable for the extracurricular activities until such time as the sum of $5,000 payable by Ms. Strueby to Mr. Strueby in respect to the transfer of the matrimonial home from Mr. Strueby to Ms. Strueby had been achieved. [3] On or about August 1, 2007, Ms. Strueby registered the judgment with maintenance enforcement. The affidavit filed by Ms. Strueby at that time indicated that arrears in the amount of $17,400 were owing as of August 20, 2007 in respect to the maintenance order of February 28, 2000. [4] In the affidavit filed by Mr. Strueby at the time of this application, he stated that all three children had attended university once they had reached the age of majority. He indicated that while he had initially continued to pay the child support provided for in the judgment, he had reduced the amount of child support gradually as they became independent and moved out on their own, although even then he continued to support them financially. [5] In her reply affidavit, Ms. Strueby took issue with the details provided in Mr. Strueby’s affidavit concerning the child support he had paid and his assertion that his support obligations were reduced simply because the children had reached the age of majority. In her affidavit, Ms. Strueby outlined the children’s educational performance and submitted that they remained children within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), so long as they were attending university in some fashion. Ms. Strueby also indicated that she had not agreed to Mr. Strueby’s unilateral reduction of the child support payments and therefore opposed any variation of the arrears. [6] In this case, the parties agree that given the age of the children, and the change in the amount of Mr. Strueby’s income, that there has been a change in circumstances sufficient to allow a review of the existing child support order. [7] Justice Dielschneider’s consent judgment of February 28, 2000 provided that child support payments would continue “until such time as the children are no longer children within the meaning of the Divorce Act”. Section of the Divorce Act defines the term child and provides as follows: 2.(1) In this Act, “child of the marriage” means child of two spouses or former spouses who, at the material time, (a) is under the age of majority and has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [8] In the case of Bowman v. Bowman, 2005 SKQB (CanLII), 260 Sask. R. 312, Justice Ryan-Froslie reviewed the law concerning the payment of child support in respect to child over the age of majority but attending university. She stated at para. [9] It is well-settled that full time attendance in post-secondary education program may result in child over the age of majority qualifying as “child” within the meaning of the Divorce Act. See: Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295; 107 W.A.C. 295 (C.A.). Neither the case law nor the Divorce Act specifies an academic achievement level where support automatically terminates. Each case must be considered on its own facts. The guiding principle is reasonableness. See: Ivany v. Ivany (1996), 1996 CanLII 6619 (NL SC), 145 Nfld. P.E.I.R. 106; 453 A.P.R. 106; 24 R.F.L. (4th) 289 (N.F.S.C.). [10] Generally, parents will remain financially responsible for bona fide adult student until the child has obtained degree or certificate that equips him or her for entry level employment in an appropriate field within reasonable period of time. The length of time, level of education or number of degrees required to be supported by the parent will vary depending on the circumstances of each case. See: Jamieson v. Jamieson (1995), 1995 CanLII 6227 (NB CA), 163 N.B.R. (2d) 178; 419 A.P.R. 178; 14 R.F.L. (4th) 354 (N.B.C.A.); Smith (J.) v. Smith (J.C.) (1990), 1990 CanLII 8083 (MB CA), 66 Man. R. (2d) 181; 71 D.L.R. (4th) 612; 27 R.F.L. (3d) 32 (C.A.); Martell v. Height (1994), 1994 CanLII 4145 (NS CA), 130 N.S.R. (2d) 318; 367 A.P.R. 318; R.F.L. (4th) 104 (C.A.); and McGregor v. McGregor (1994), 1994 CanLII 5242 (NB CA), 148 N.B.R. (2d) 176; 378 A.P.R. 176; R.F.L. (4th) 343 (C.A.). The Saskatchewan Court of Appeal in Zaba, supra, set out number of factors court should consider in determining whether child attending post-secondary education remains child within the meaning of the Divorce Act. Those factors include: (i) Whether the child is eligible for student loans or other financial assistance; (ii) Whether the child’s career plans are reasonable; (iii) The ability of the child to contribute to his or her own support; (iv) The parental plans for the child’s education, particularly those made during cohabitation; (v) Whether the child unilaterally terminated the relationship with the payor; and (vi) Whether the child might reasonably have expected assistance if the marriage had not broken down. Other factors courts have considered are the age of the children involved, the child’s ability to secure employment at the end of any course of study, whether the child is “expeditiously” pursuing their educational goals, whether the child”s academic pursuits are commensurate with their ability and whether the child is full or part time student. Justice Zuker of the Ontario Court of Justice provided comprehensive review of the law in Kusnir v. Kusnir (2001), 2001 CanLII 26415 (ON CJ), 21 R.F.L. (5th) 90 (Ont. C.J.). [9] Section 3(2) of the Guidelines addresses the amount payable in respect to child support assuming that the child is of the age of majority or older. It provides as follows: 3(2) Unless otherwise provided under these Guidelines, where child to whom child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [10] The Guidelines also deal with expenses for secondary education and confirm that such expenses may be part of the child support order. Section of the Guidelines provides as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation; (e) expenses for post-secondary education. [11] In the case of Rebenchuk v. Rebenchuk, 2007 MBCA 22 (CanLII), 279 D.L.R. (4th) 448, the Manitoba Court of Appeal suggested three-step process in dealing with support orders for children who have reached the age of majority. The court stated at para. [23] It can now be safety stated that the following three steps need to be addressed in circumstances such as those before us: Step 1: Is the person for whom support is sought “child the marriage”? Step 2: Is the table amount in the Guidelines “inappropriate”? If not, then the Guidelines amount should be awarded. Step 3: If the answer to Step is “yes”, what level of support is “appropriate”? [12] parent seeking to uphold support order once the child has reached the age of majority has the onus of proving that the child remains child of the marriage within the meaning of s. 2(1) of the Act and also as to the appropriate amount of support even if the child remains child of the marriage See Duncan v. Duncan (1989), 1989 CanLII 4502 (SK QB), 74 Sask. R. 100, 18 R.F.L. (3d) 46 (Q.B.); Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.); and Harder v. Harder, 2003 SKQB 286 (CanLII), 41 R.F.L. (5th) 69. ANALYSIS Step Do the children remain children of the marriage within the meaning of the Divorce Act? [13] Although initially the parties were at odds concerning all three children, by the time of their latest submissions, some consensus had been reached regarding two of the children. The parties are in agreement that Jill, now 26 years of age and on her own, is no longer a child of the marriage within the meaning of the Divorce Act. The parties also agree that Luke, now 21, is not at the present time a child of the marriage, but could once again become a child of the marriage if he attends university beginning in the fall of 2008 as he intends. The parties agree that the application for child support concerning Luke should be adjourned until November 1, 2008, at which time Luke’s situation will be further examined to determine whether he is attending university and has once again become child of the marriage and what level of support, if any, is required for him. The parties are also in agreement that the child, Keegan, now 18, remains a child of the marriage within the meaning of the Divorce Act by virtue of the fact that he was during the months September to December of 2007 registered in and taking classes at Simon Fraser University and for the Spring term of 2008 is registered in and is taking three classes at the University of Saskatchewan. Step What amount of child support is appropriate? [14] In this case, after some discussion and argument, think the parties are also in agreement that the Guideline amounts are appropriate and were appropriate in the past, so long as the children remained children within the meaning of the Act. In any event, based on the circumstances of this case, would have found the Guideline amounts to be appropriate. [15] The real issue between the parties appears to be in respect to the factors to be considered when the children were attending university and working part time and how this would affect the Guideline amounts payable. Fortunately, do not need to determine this issue as the parties have asked me to determine only the obligations up to the initial return date on the application which was December 17, 2007. As of that date, Keegan was in full-time attendance at university and Luke was not, so that the Guideline amounts up to that date were appropriate. Based upon Mr. Strueby’s 2007 income of $44,781 and Ms. Strueby’s income of $90,628, the Guideline amount payable by Mr. Strueby for the support of Keeghan is $380 per month plus 33% of all s. expenses. [16] While Mr. Strueby’s application for variation requested that he be allowed to pay any maintenance payable for Keegan directly to Keegan, there is nothing in the material filed which would indicate that Ms. Strueby is not providing support to Keegan in an appropriate fashion. Furthermore, the difficulties that could then arise in respect to enforcement of the order if the child support payments were not made directly to Ms. Strueby would mitigate against such a variation. See Shillington v. Shillington, 2008 SKQB 70 (CanLII), [2008] S.J. No. 89 (QL). Step The application to eliminate or reduce Mr. Strueby’s child support arrears [17] While Mr. Strueby’s initial application had been to eliminate the child support arrears, it was acknowledged by his counsel in the pre-trial brief filed and in argument that as result of his increases in income since the original support order had been made in 2003, and the fact that Keegan only achieved the age of majority in November of 2007, that any retroactive assessment of arrears should take these factors into account. Mr. Strueby’s counsel filed material indicating that the total arrears as of December 17, 2007 were $9,440. Ms. Strueby’s counsel does not take issue with the mathematical calculations, but suggests that they are based upon assumptions as to dates at which the child support orders for Jill and Luke would cease, which Ms. Strueby does not accept. However, as the onus of proof in this regard is upon the parent seeking to establish an obligation to pay child support after the age of majority, and as Ms. Strueby did not file or submit evidence as to what appropriate costs were, therefore accept the calculations prepared by counsel for Mr. Strueby. [18] However, para. 13 of Ms. Strueby’s affidavit sworn December 11, 2007 indicates that Keegan’s costs for attendance at Simon Fraser University totalled $18,000, of which she paid the sum of $8,000, with the remainder paid by student loans. While the sum paid by Ms. Strueby is not broken down between tuition and living expenses, am satisfied that this cost should be divided between the parties in the same proportion as the s. expenses based upon their respective incomes. Accordingly, Mr. Strueby’s share would be 33% or $2,667. Pursuant to Mr. Strueby’s counsel’s calculations, and my order that he was to have paid $380 per month for the months of September to December, this would total $1,520. After deducting this sum from the $2,667 in total support for this period that he should otherwise have paid, there remains owing the additional sum of $1,147 which should be added on to the outstanding arrears. Therefore, the arrears as of December 17, 2007 are $10,587. [19] Mr. Strueby has also sought an order for an orderly payment of the arrears. Based upon the financial information that he has provided, set the amount that Mr. Strueby should pay towards the arrears at $200 per month until such time as Mr. Strueby is no longer paying child support for Keegan when the amount payable towards the arrears should increase to $500 per month. [20] 1. There shall be a declaration that Jill, born December 16, 1981, is no longer a child of the marriage within the meaning of the Divorce Act. 2. There shall also be a declaration that Luke, born May 29, 1986, is no longer a child of the marriage within the meaning of the Divorce Act, but that this application concerning Luke is adjourned until November 1, 2008 to determine if he has once again become a child of the marriage and if so, if child support is payable by Mr. Strueby in respect to Luke. 3. The child, Keegan, born November 13, 1989, is found to be a child of the marriage within the meaning of the Divorce Act. Based upon Mr. Strueby’s 2006 income of $44,957 and Ms. Strueby’s 2006 income of $90,628, the judgment of Justice P.J. Dielschneider dated February 28, 2000 is varied such that Mr. Strueby shall pay to Ms. Strueby, for support of the said Keegan, the sum of $380 per month plus 33% of s. expenses, with such payments to continue on the first day of each and every month until such time as the said child, Keegan, is no longer child within the meaning of the Divorce Act; 4. It is determined that the amount of child support arrears owing under the judgment of Justice P.J. Dielschneider dated February 28, 2000, as of December 17, 2007, is $10,587. Mr. Strueby shall pay to Ms. Strueby this amount by monthly payments of $200 per month commencing January 1, 2008. 5. As the sum of $500 per month has been paid in the interim pursuant to my order of December 17, 2007, any such payments made shall be applied firstly towards the ongoing child support for Keegan, and then towards the arrears. 6. As success has been divided in respect to this application, there will be no order as to costs. J. N.G. GABRIELSON","FIAT: The parties have three children, Jill born December 1981, Luke born May 1986 and Keegan born November 1989. The respondent states that he has paid child support pursuant to the court order of February 2000 but, when the children reached the age of majority, he reduced the amount of child support payable as the children became independent and moved out on their own. The petitioner takes issue with the respondent's unilateral reduction in child support and submits the children remained children within the meaning of the Divorce Act so long as they were attending university. The parties agree that given the age of the children there has been a change in circumstance sufficient to allow a review of the existing child support order. HELD: 1) The parties agree that Jill, age 26 is no longer a child of the marriage and that Luke, age 21 is not presently a child of the marriage but could once again become a child of the marriage if he attends university in the fall of 2008. The parties also agree Keegan is 18 and remains a child of the marriage by virtue of the fact that he is taking classes at the university. 2) While the respondent asks that he be allowed to pay child support directly to the children, there is nothing in the material filed which would indicate that the petitioner is not providing support to the child in an appropriate fashion. Further, the difficulties that would arise in respect to enforcement of the order if the child support payments were not made directly to the petitioner would mitigate against such a variation.",2008skqb146.txt
10,"1998 Date:20010309 COURT FILE NO: BW 4294 IN THE SUPREME COURT OF NOVA SCOTIA CLAUSSEN WALTERS ASSOCIATES LIMITED and DAVID A. MURPHY and SONIA MURPHY DECISION [Cite as:Claussen Walters Associates v. Murphy, 2001 NSSC 105] HEARD BEFORE: THE HONOURABLE JUSTICE HIRAM J. CARVER DATES HEARD: JANUARY 29, 30, 31, FEBRUARY 2, 2001 PLACE HEARD: BRIDGEWATER, N.S. DATE WRITTEN DECISION FILED: MARCH 9, 2001 COUNSEL: RUBIN DEXTER, for the Plaintiff ALAN J. STERN, Q.C., for the Defendants FACTS: Oral contract for development and sale of land 1. Was there an oral agreement for payment of fixed commission between the parties? 2. If there was an oral agreement, what were the terms? 3. If there was an oral agreement, is such an agreement enforceable by the Plaintiff? 4. In the absence of an enforceable agreement between the parties, is the Plaintiff entitled to recover from the Defendants based upon quantum meruit or unjust enrichment? 5. If the answer to No. above is yes, what is the appropriate amount? FINDING: There was an oral agreement for the payment of a fixed commission, there were definite terms, that the oral agreement was enforceable but in the alternative an award of unjust enrichment was made to compensate for work done. [1] This is an action by the Plaintiff, Ciaussen Walters and Associates Limited against David A. Murphy and Sonia Murphy for damages for breach of contract or in the alternative claim for unjust enrichment and/or quantum meruit. [2] At the end of the trial, the Plaintiff asked to withdraw his claim against the Defendant Sonia Murphy. Same was granted. As to costs which were sought by defence counsel, reserved upon that issue until later date. 1. Was there an oral agreement for payment of fixed commission between the parties? 2. If there was an oral agreement, what were the terms? 3. If there was an oral agreement, is such an agreement enforceable by the Plaintiff? 4. In the absence of an enforceable agreement between the parties, is the Plaintiff entitled to recover from the Defendants based upon quantum meruit or unjust enrichment? 5. If the answer to No. above is yes, what is the appropriate amount? [3] The Plaintiff carries on business as licensed real estate brokerage firm with an office in Lunenburg. Tony Walters is the President of the Company. He is licensed real estate broker. His company began to build marketing reputation of innovative ideas. [4] The Defendant is retired heart surgeon and resides with his wife, Sonia, at Halifax. [5] The Defendant began to reside at Kingsburg, Lunenburg County as seasonal resident in 1973. 0ver the years he acquired many parcels of land until he eventually owned approximately 100 acres in an area known as ""Hell Point"" or the ""Hell"". This land was close to the village of Kingsburg. The transactions were negotiated privately between Mr. Murphy and the various owners of the lots. Title to all parcels of land vested in Mr. Murphy. [6] The intention of David Murphy with respect to the lands he acquired was to develop retirement farm. For period of time the Defendants had substantial number of sheep on the land; however, by 1990 there was serious problem with coyotes. Up until that time David Murphy had fertilized, ploughed, mowed and grazed portions of the land and had fencing erected. [7] By 1995 the Defendants entered into discussions withNature Conservancy of Canada and the Province of Nova Scotia and explored the possibilities of donating the land. [8] During the course of dealings with the Province of Nova Scotia, appraisals were carried out by two appraisers, one of which was Hardy Appraisals who did subsequent appraisal for the Plaintiff after this action was started. [9] Mr. Murphy did not donate the land as desired because of possible tax implications. [10] 0n the recommendation of Peter McCurdy, who is neighbour and friend of Mr. Murphy, Mr. Murphy telephoned Mr. Walters on November 26, 1996 and indicated he was interested in selling the land in question. Mr. Walters was familiar with this land. [11] The first meeting between Tony Walters and Mr. Murphy took place on December 2, 1996. Mr. Walters says this meeting took place at the Murphy home at Kingsburg whereas Mr. Murphy said this meeting took place at Mr. Walters' office at Lunenburg. Mr. Walters said when he met with them at Kingsburg, Mr. Murphy's daughter Deirdre was present for part of the meeting. Deirdre and Mr. Murphy say this was not possible as December is Deirdre's birthday which was celebrated at her parents home at Halifax. Also in her evidence, Deirdre said she first met Mr. Walters at her parents home in April 1997. She also told the Court on that day she was in the Court of Appeal. [12] There is another problem as Mr. Walters says he made an arrangement for Mr. Murphy to see David MacDonald. All seem to agree that meeting was at PM well after the 11 AM meeting between he and Mr. Murphy. The office of Mr. MacDonald was nearby. [13] Having heard the evidence, am satisfied someone is honestly in error. find the meeting of December 2, 1996 took place in Lunenburg at the office of Mr. Walters. [14] At that meeting Mr. Murphy brought with him aerial photographs, deeds and old documents. Mr. Murphy discussed selling it as single lot whereas the suggestion of Mr. Walters was to develop it. Development of the land caused Mr. Murphy real problems as he wanted to keep the land in tact and certainly did not want any development as he had seen in other areas. It was at this meeting Mr. Murphy said he was busy, that he was not developer, nor did he have the expertise, to which Mr. Walters replied he could do the development for him. Mr. Walters told him they would need surveyor to see what could be done as any proposed sub‑division had to pass the Planning Board. Two surveyors were discussed with Mr. Murphy deciding that Mr. Becker would do the survey work. [15] At this meeting commission fees were discussed. Mr. Walters told Mr. Murphy if there was direct or bulk sale his commission was 6% but if he got involved in the sub‑division his fee would be 10% of the total sales when the sales took place. Mr. Murphy disputes that this conversation took place. [16] At the December 2, 1996 meeting there was discussion about needing lawyer to help with the legal issues of the project. Mr. Walters suggested Mr. Murphy should go and see David MacDonald as he had done lot of work for him and he did good work. Mr. Murphy did go to see Mr. MacDonald later that afternoon. [17] Discussion also included the need for Mr. Murphy to talk to his accountant re the HST and any income tax implications. [18] 0n December 9, 1996 Mr. Murphy, Mr. Walters and Mr. Becker met at the office of the Plaintiff at Lunenburg. The purpose of this meeting was to acquaint the surveyor with the proposed sub‑division and see if it would meet planning approval. Mr. Becker was of the opinion it could be done but they would have to go through some hoops to get there. [19] Very little was done through the winter of 1996 with the exception of Mr. Walters walking the land. [20] Mr. Murphy and Mr. Walters met on the property in April 1997. At this meeting, Mr. Murphy queried Mr. Walters about the cost to which Mr. Walters replied his cost was 10%. Mr. Murphy said Mr. Walters told him for the 10% he could help get bids, help to get the road in, lay out the lines and work with the surveyor. Mr. Murphy said he told Mr. Walters it sounds good but wanted to talk to his family. Mr. Murphy testified he thought the commission was bit pricy. He also testified at that time he hadn't clue about value but he did have ball park figure in mind. During these or prior discussions, Mr. Walters told Mr. Murphy to shop around with other real estate brokers to see if they would do it for less. [21] After this meeting on the property, Mr. Walters and Mr. Murphy met at Mr. Murphy's house where much of what was said on the hill was repeated by Mr. Walters. Both Deirdre and her husband, Robert, were at the Murphy home. Deirdre was present for part of the meeting. She was not present when the commission was discussed. There was discussion as to how Mr. Walters would market the land and that it would be sold in large lots with proper set backs. There was also discussion about the value of Mr. Walters company in selling this property. Mr. Murphy testified it was an amicable meeting. He noted his wife had queried Mr. Walters about the 10% to which Mr. Walters replied rather abruptly 10% is my commission. Mr. Murphy told the Court he did not object to the 10% at that meeting nor did he query it. At this time Mr. Murphy told the Court it was up to him after the meeting to get in touch with Mr. Walters. Mr. Murphy did call Mr. Walters within the week at which time he told him they were going ahead. Once Mr. Murphy told Mr. Walters they were going ahead, Mr. Walters said ""I'll call Mr. Becker and we will go out and lay out the lots."" [22] new road had to be constructed. Getting bids for the road was left to Mr. Walters. After obtaining bids, Mr. Mailman's quote was recommended by Mr. Walters to Mr. Murphy. Exhibit Tab sets out the tender and its acceptance by Mr. Murphy. It reads as follows: “BERNARD L. MAILMAN PR0JECTS LTD. R.R.2, BRIDGEWATER, N.S. B4V 2W1 (902) 543‑3936 Walters P.0. Box 428 Lunenburg B0J 2C0 ATT: Tony Walters RE: Dr. Murphy Job Quote for road as discussed $14,946.44 HST 2,241.97 $17,188.41 We have priced job for 6‑12"" culverts. Additional 12"" culvert would cost $159.24 plus h.s.t. EACH. If job does not require culverts we would give credit of $159.24 plus h.s.t. per culvert. Aug 4/97 accept his bid, providing 1. As per our review with David Silver will try to maintain limbing and cleaning to 12 foot. 2. Let Tony Walters know when dozer and backhoe are ready to start can contact at 634‑4040 office; 527‑8440 cellular with message. 3. Avoid driving on grass of protected beach road 4. Add gravel as necessary to make repairs to present road D.A. Murphy"" [23] 0verseeing of the road construction was left under the direction of Mr. Walters. When it was completed, everyone was happy with its construction, including Deirdre and her husband. [24] Mr. Walters went upon the land and with flagging tape laid out the lots and tied them into the new road. With the assistance of Mr. Murphy, set backs were also developed for each lot. With the assistance of Mr. Becker, Exhibit Number Tab 32 was developed as preliminary plan. This plan resulted from the work of Mr. Walters and to some extent that of Mr. Murphy. This plan was prepared showing the position of the new road tying in the lots. It is to be noted Mr. Becker testified ""where the lots were laid out took my instructions from Mr. Walters"". It is to be noted how closely Exhibit Number Tab 32 comes to the final approval of the plan as contained in Exhibit Number Tab 36 or appears in Exhibit Number 4. [25] As to the strategy regarding boundaries, Paragraph of Exhibit Number Tab 7, which is contained in letter from Mr. Murphy to Mr. Walters, the following appears: ""A few questions as to lot strategy regarding boundaries leave this up to your wisdom. Bob has the questions."" [26] In August 1997 Mr. Murphy went to his neighbours to alert them he was selling his property and there would be some noise and dirt. He went to the home of Dwoone Massie, wife of Mr. Dexter, counsel for the Plaintiff and told her about selling his property. She testified as follows: ""He said Tony would be supervising construction of the road and he said Tony will be selling the properties. He said he hired Tony. told him didn't know Tony would do that. He told me if there was problem with anything, should phone Tony not the Murphys."" [27] In his evidence, Mr. Murphy told the Court this conversation in part resulted from telephone call from Mr. Dexter complaining about the noise. [28] Up to the 5th of November, 1997, the parties worked amicably together. Everything seemed to be going well. 0n November 5, 1997 Mr. Walters took David MacDonald, his wife, Barbara Claussen to the home of Mr. Murphy. Together they all went to the lot at ""Hell Point"". There was conversation with Mr. MacDonald by Mr. Walters and Mr. Murphy about covenants that would appear in any deeds for property sold. It was left with Mr. MacDonald to review set of covenants supplied or to be sent by Mr. Murphy and to draft suggestions. Mr. Murphy said at this meeting he was becoming uneasy with the presence of Barbara Claussen, another real estate agent and Mr. MacDonald. He told the Court he was also concerned he had not received any agreement in writing from Mr. Walters and about the settlement of the commission. [29] Mr. Walters testified from his point of view his work was completed on constructing the road and laying out the lots for Mr. Becker to survey and present to the Planning Board unless Mr. Becker came back and said they couldn't do as configured. accept this evidence of Mr. Walters that his work in this area was completed save problems Mr. Becker may need resolved. [30] Shortly after this meeting of November 5, 1997, Mr. Murphy phoned Mr. Walters to advise him there was to be meeting in Halifax at the office of his daughter, Deirdre on November 13, 1997. He told Mr. Walters the purpose of the meeting was to generate some comment about contract for the sale of the land. Present at that meeting were Mr. Walters, Deirdre and her husband, Robert. Mr. Murphy was not present. Mr. Murphy's absence at such critical time gives the Court some real cause of concern particularly where he was so closely connected to the transaction and had dealt with Mr. Walters almost exclusively on all issues. really didn't accept his excuse of being busy. got the reading the meeting was planned to be that way as where he set up the meeting with Mr. Walters he could have picked non‑scheduled day to permit his presence. [31] All agree the meeting was professional, appropriate and cordial until near the end when the 10% was discussed and what costs was to be included in this amount. Mr. Walters told them he had certain responsibilities and that at that time they were all done. He told them they were only that far from going to the market and depended upon Mr. Becker getting approval. At this time no one told Mr. Walters the approval could not be obtained or that there was problem. [32] On November 13th, Deirdre Murphy told Mr. Walters she had no intention of re‑negotiating the 10% but it was concern upon which Mr. Walters replied he had deal with her dad for 10% and that was his commission. Deirdre told him he should not take position of 10% or there may be no need of going further. She conveyed to Mr. Walters if he didn't back off the 10% it might be no need to go further. The question was raised as to whether he would get the listing. Dierdre Murphy said there was no discussion of any break‑down of the 10%. There does appear at Exhibit Number Tab 15 Page 35 which are Robert's notes which reads as follows: ""Rational basis for 10%. 6% for nothing but MLS and no other input."" [33] At the time of the November 13, 1997 meeting Deirdre knew the road had been completed but was not familiar with any of the other work Mr. Walters had completed. [34] As an outcome of this meeting, Mr. Walters was to prepare and forward to them an overview of the marketing services provided by the Plaintiff Company. This Mr. Walters did by letter to Mr. David Murphy dated November 17, 1997 found at Exhibit Number Tab 16. Three paragraphs of that letter are important. They are found at page 41 and 45 respectively and appears as follows: ""The issue of AA Walters' commission came up in the discussions with Deirdre and Robert. 0ur agreement was 10% commission, inclusive of the project management, with the provision that if at any time you were not satisfied with our firm you could notify me and if we could not remedy the situation to your satisfaction then we would withdraw from the project. 0ur time and fees are purely on contingency basis. If you are satisfied with our work, wonder why we are asked to negotiate the commission again after so much of the project has been completed and the properties are essentially ready to market. The commission not only compensates us for our know‑ledge and expertise but, importantly, allows us to provide high level of marketing services. As you and your family discuss the value of our recommendations and services please consider the following discussion and the import­ance, in your opinion, of the role of AA Walters Limited in creation of value and the future marketing of the Hell Point properties. Listing Agreement AA Walters Limited commission is 10%, inclusive of the project management. The commission is subject to HST. All cooperating brokers are compensated from this commission."" [35] On November 24, 1997 Mr. Murphy wrote Mr. Walters stating: ""Dear Tony want to thank you for taking the time to meet with Deirdre and Robert the other day. They enjoyed meeting with you and went away with better under‑standing of your perspective on this project. This is just note to say that we received your delivered docu­ment concerning your proposed marketing plan for Hells Point. It was much appreciated and well con­sidered. We are still in the process of mulling over the options and we will let you know as soon as possible. We look forward to talking to you then."" [36] By letter dated November 24, 1997 Mr. Murphy wrote the following letter to Fran Shea, another real estate broker: ""Dear Ms. Shea, As you probably know, we are planning to sell portions of our property on Hells Point in Lower Kingsburg. new road has been installed and the survey work is almost complete. As yet we have made no formal contractual commitments to list our real estate. We would appreciate your opinion as to how your firm might market this land and what sort of contractual arrangements including sales commission, terms of listing agreement, and marketing plan you might propose. As courtesy, we would kindly ask that our request be kept in confidence until such time as the matter is formalized. Thank you for looking at our proposal and we look forward to hearing from you."" [37] It is to be noted Fran Shea previously had been real estate agent for AA Walters, the Plaintiff former Company. The word confidence was underlined when she received it. Mr. Murphy told the Court he had written to Fran Shea as Mr. Walters had previously suggested he do if not satisfied with Mr. Walters. In his evidence, he told the Court he did not want Mr. Walters to know he had written to Ms. Shea. He said at this time he wanted Mr. Walters to come down on the 10%. He felt it was negotiable. He also said the first time Mr. Walters knew it was problem was when he met with his daughter and husband in Halifax. [38] In response to Mr. Murphy, Fran Shea wrote Mr. Murphy on November 27, 1997. It appears as follows: ""Dear David, Thank you for your letter of November 24, 1997. am pleased to inform you that Tradewinds will be operating from our Lunenburg office as of December 5th. As you know am very familiar with the land in Lower Kingsburg area and have been involved with almost all of the twenty plus transactions that have taken place there in the last four or five years. This year my listings on the Beach Hill have sold and have sold the Lorraine Mossman house on the beach. When Jon Allen and joined Tradewinds all of our Kingsburg vendors kept their properties listed with us. Re: The marketing of the lots on Hells Point. would be more than pleased to meet with you at your convenience and discuss marketing plan (I've been thinking about it for the last year). There is too much information to cover in letter and of course there is material that you should see‑‑our catalogue, new listing brochures, internet site, ad placements, etc. The commission structure is also negotiable. As there are several lots to be sold, Tradewinds would be prepared to charge only six percent commission, with side agreement at reduced rate for any clients that you personally introduce to the property. This is also open for discussion. may be reached at the Lunenburg office after the 5th of December. 0f course you are welcome to call my cell (902‑527‑6643) or my home (902‑688‑3172) at any time. look forward to hearing from you."" [39] On January 8, 1998 Ms. Shea wrote to Mr. Murphy by e‑mail. Both her letter and Mr. Murphy's reply appear as Exhibit Number 5. They are as follows: ""Dear David, Thought that would touch base and inquire whether you have made decision re: the marketing of your land on Hells Point. My office number is 902‑634‑1250. Fran Shea Tradewinds Realty Inc Chester, Nova Scotia Home 902‑688‑3172 Fax 902‑275‑2215 Thanks for the follow up no we haven't made decision on the marketing of the point yet although we were very favorably impressed with the tentative figures you men­tioned in the letter. What is the hold up is the step wise red tape involved in converting so many little and big pieces of land with seven deeds into something that is acceptable to planning and also the bottom line health. Bob Becker and are making pretty good progress and should have some hint of finality by late February. We will certainly be in touch. was in Toronto yesterday talking to Dr. Chris Feindel and your name came up..it sounds like he also will be giving you call. Yours sincerely David murphy... Love this e‑mail‑‑I don't need to worry about capitals and punctuation."" [40] 0n December 3, 1997 Mr. Walters wrote to David Murphy. This letter appears at Exhibit Number Tab 23: ""Dear Dave: Our catalogue was sent to the printers while we were still of the understanding that AA Walters was the listing broker for your Hell Point properties, therefore, the lands have been included. How should we respond to inquiries? Advertising, production of brochures, placement in the Who's Who web site etc. are on hold until we hear from you. assume this is your wish. Please let me know how you want to proceed. If you are in Kingsburg this weekend please stop by our open air Nikolaus Celebration in Lunenburg. AA Walters is sponsoring the event for local children and in support of Christmas Daddies. It's for children of all ages! With kindest regards, Tony Walters."" [41] 0n December 11, 1997 Mr. Walters wrote to Mr. Murphy. It appears as Court Exhibit Number Tab 24. It reads as follows: ""11 December 1997 Dear Dave and Sonia: There have been number of distressing events over the past several weeks, some of which referred to in previous correspondence. 0n 13 November met with Deirdre and Robert at which time they both advanced the position that AA Walters commission of 10% was the subject of further negotiation and that even our role as exclusive listing broker was in question. was quite surprised because Deirdre was present at our first meeting at your house in Kingsburg at which time we all discussed the 10% commission which would be inclusive of project management and payable upon the sale of the lots. 0n that day no decision was made about AA Walters Limited managing the development and the sale of your property. Sonia was not there and you said that you would have family meeting and then let me know your decision. Some time later received telephone call from you confirming that the family had decided to proceed and AA Walters was hired. The 10% commission was confirmed by you at that time. We proceeded in good faith. 0ur agreement was as follows: AA Walters Limited and Tony Walters would be responsible for management and development, and the exclusive listing and sale of your lands at Hell's Point. We agreed that AA Walters Limited would be compensated for its service both in the develop­ment of the lands in question and the sale of the lots on the basis of commission of 10% of the selling price of the lots payable upon the completion of each sale. We further agreed that if at any time you were not satisfied with our work you could notify me and if we could not remedy the situation then AA Walters would withdraw from the project. 0ur agreement was straightforward and clear. At no time subsequent to that did have any indication that you were not satisfied with our work. In fact, on numerous occasions when we were on the property together and on the telephone you expressed your delight with the way things were proceeding. Deirdre said to me during one of our meetings in Kingsburg that she and Robert had walked the new road and how pleased every‑one was with its design and construction and the overall development concept. Never, never was there single complaint. So, perhaps you can understand my surprise when the subject of our commission, and even our firm's continued involvement with the project, came up at my meeting with Robert and Deirdre. became more concerned when received your fax dated 24 November in which you said: ""We are still in the process of mulling over the options and we will let you know as soon as possible."" Then after my ‑3 December letter to you, received your telephone call stating the subdivision of the lots had encountered difficulty and everything was on hold. Given the statements made by Deirdre, as your daughter, and Robert acting on our behalf and speaking for you as your solicitor, and your statements to me, can only conclude that you are telling me that you do not intend to be bound by the terms of our agreement. Please provide me with written confirmation of your intentions within seven days. If you do intend to abide by the terms of our agreement please forward to me all documentation with respect to the subdivision application and the problems which you referred to in our telephone conversation and will meet with Robert Becker and the planning office to see how the issues can be resolved. With kindest regards, Tony Walters"" [42] Mr. Murphy was very concerned Mr. Walters had put time stipulation on this matter. No request was ever made by Mr. Murphy to Mr. Walters to assist in the solving of any problems concerning the sub‑division as Mr. Walters had noted in the last paragraph of this letter. [43] On December 19, 1997 Mr. Murphy wrote to Mr. Walters. It appears in Exhibit Number Tab 25: ""Dear Tony: RE: Hell's Point Property, Nova Scotia Thank you for your letter dated December 11, 1997 which received on Monday. As courtesy am responding within your stated time limit of one week. am sorry if caused you any distress in our negotiations. am also sorry if you believe that have mislead you into thinking, mistakenly, that we had agreed that you would be the exclusive developer and agent for our property. You must realize that am not business man and that depend on the advice of numerous professional advisors such as accountants and lawyers, prior to making significant commitments such as the sale our property at Hells Point. In our discussions you said that you were more comfortable with verbal agreement but that on occasion you would proceed with written agreement. expressed that wanted to arrange ""meeting of the minds"" on paper, such that numerous key terms could be negotiated and committed to on paper. wanted input from lawyers, accountants, and other agents prior to signing the proposed written agreement. In gathering information from these profess­ional sources, learned that there were numerous fundamental terms and issues which we had not even discussed. That is when arranged for you to meet with Robert Kapanen and my daughter, Deirdre, and that why's am seeking input from various other professionals including those who deal with real estate sales. Your letter imposes deadline of one week for me to respond to your proposal of 10% commission on sales. This rate has always been matter for discussion, and had wanted to clarify other terms prior to committing to written agreement. At the present time the sale of the lands is on hold until we complete our deliberations and obtain more information, at which time we would like to continue talking with you if you so wish. Yours very truly, David Murphy"" [44] Both Mr. Murphy and Mr. Becker did meet with the Planning Authority. In order to reach approval, it was necessary to re‑configure the lots in three different phases but as Mr. Becker said when approval came the plan as shown in Exhibit Number Tab 32, resulting from the work of Mr. Walters, was strikingly similar to Exhibit Number the final plan approved by the Planning Board. [45] After the sub‑division was approved, the property was listed for sale with Mr. Ducicworth. Four of the lots have been sold for total of $875,000.00. There are three lots yet to be sold set at prices of $300,000.00, $350,000.00 and $500,000.00 respectively. [46] Before the land was sub‑divided, Ms. Girvan, another realtor, had hinted the property was worth $850,000.00 in bulk sale. [47] With the letter of December 19, 1997, all contact between Mr. Murphy and Mr. Walters re Hell Point came to an end. [48] Was there an oral agreement for payment of fixed commission between the parties? find there was. find there was an oral agreement between the Plaintiff and the Defendant for the payment of fixed commission of 10%. find at the first meeting on December 2, 1996 the parties discussed the sale of the property as bulk sale for which commission of 6% was to be charged. find they discussed the sub‑division of Hell Point and what Mr. Walters' duties would be. If he were to lay out the sub‑division and prepare it for Mr. Becker to get planning approval and sell the property, he was to be paid 10%. find Mr. Walters was not to lay out and prepare this sub‑division in anticipation of getting the property to sell. At that time, both parties knew what Mr. Walters' role was going to be and the difference between the 6% for sale of bulk land and the 10% was to cover the development work by Mr. Walters to lay it out for sub‑division approval with the thought always in mind of keeping that property as prestigious and undisturbed area. To lay this area out to comply with the desire of Mr. Murphy and to meet Planning Board approval was no small matter and required someone with appropriate expertise and concern for the eventual development. 1) find the terms of this agreement were discussed between Mr. Walters and Mr. Murphy on December 2nd, 1996 at Mr. Walters' office at Lunenburg on December 9th, 1996, at the same office with Mr. Murphy, Mr. Walters and Mr. Becker present; out on ""Hell Point"" between Mr. Walters and Mr. Murphy in April, 1997 and at the home of Mr. Murphy in April, 1997. [49] At that meeting in April, 1997, the 10% and the work Mr. Walters was to perform were all on the table. Mrs.. Murphy raised the amount of 10% and Mr. Walters responded. Mr. Murphy did not comment at this time about the amount of commission. That meeting was an amicable one. The meeting ended with Mr. Murphy wanting to discuss it further with the family after which he was to get back to Mr. Walters. Later that week, Mr. Murphy called Mr. Walters and told him they were going ahead. In my notes, the following comment appears ""once told him we were going ahead, he said I'll call Becker and we will go out and lay out lots"". [50] At that point, the oral contract was consummated and the work that eventually led to sub‑division approval was commenced. fmd the parties worked closely and amicably together. This continued right up to November 5, 1997. [51] Up to November 5, 1997 Mr. Murphy and his family were pleased with the road and the work Mr. Walters had done. [52] further find Mr. Murphy breached the oral agreement by his letter of December 19, 1997 and by his actions both before and after that date. [53] If there was an oral agreement, what were its terms? find the following were its terms. (a) to develop concept and strategy for the develop- ment, sub‑division and marketing of the land at ""Hell Point"". (b) to manage and be responsible for the laying out of the sub‑division of the land to bring it within the approval of the Planning Board. (c) to manage and be responsible for the laying out and construction of road running over the land to accommodate the lots in the sub‑division. (d) to meet with the Defendant, his surveyor, accountants and solicitor. (e) to market the land for sale on an exclusive basis. (f) for this work the Plaintiff was to be paid commiss­ion of 10% which work included the preparatory work to allow the surveyor to present it to the Planning Board for approval and the actual sale of the property. Mr. Walters was to be paid upon sale of the land. [55] If there was an oral agreement is such an agreement enforceable by the Plaintiff? [56] In this case, find the Real Estate Brokers Licensing Act has no application because the agreement was made in April, 1997 after this Act was repealed on January 21, 1997. [57] find the Real Estate Trading Act, Chapter 28, 1999 R.S.N.S. applies to this agreement. Section 31 of the Real Estate Trading Act reads: Requirements respecting agreements 31(1) Every agreement entered into by licensed person for the purchase or sale of real estate shall (a) contain an expiry date; and (b) be executed by all parties to the agreement, and the licensed person shall, upon execution, provide true copy of the agreement to each party to the agreement. (2) An agreement is not invalid by reason only that it does not comply with subsection (1) but, where licensed person, acting in bad faith, does not comply, the licensed person may not recover any commission under the agreement with respect to the trade. [58] Section 31(2) provides an agreement is not invalid by reason it does not comply with s. 31(1). It goes on to say ""but, where licensed person, acting in bad faith does not comply, the licensed person may not recover any commission under the agreement with respect to the trade"". In the converse it is saying if you have an agreement such as here the licensed agent may recover the commission under the agreement, if that person is acting in good faith. find Mr. Walters was licensed agent, was acting in completely good faith and he is entitled to his commission. [59] The next question is does this agreement fall within the terms of the Statute of Frauds, Chapter 442 R.S.N.S. Section reads: 7(a) No action shall be brought (e) upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise, agreement or contract upon which the action is brought, or some memorandum or note thereof, is in writing, signed by the person sought to be charged therewith or by some other person thereunto by him lawfully authorized. R.S., c. 290,s.6."" [60] As to the duration of the agreement, the evidence sets forth Mr. Walters said: ""I looked at it as long term project. said we shouldn't push it. There was time frame of years. said you need to talk to your accountant. 0ne was sales tax and also his personal tax. told him lets do good job"". Mr. Murphy seemed to go along with these comments. [61] As to agreements that falls within and without the Statute of Frauds supra Fridman on The Law of Contract 3rd edition at page 214 say: (iii) Contracts not to be performed within year This is strange category. It might be thought that contracts which bound one person to guarantee another's debt and contracts relating to land were clear instances of the need to establish liability by some form of writing. To extend the Statute to all contracts, whatever their subject‑matter, if they involve longer period than year for their completion, seems an unnecessary extravagance. Perhaps the situation at common law, long since changed, by which the parties to contract (although potentially the best witnesses) were excluded from giving testimony, may explain this inclusion within the Statute of Frauds. Furthermore, the chances of false or perjured evidence, or merely mistaken evidence, when the contract had been made some years before the litigation to which it gave rise, were high (although if the contract were within the Statute it did not matter that the action arose the day after the contract was made, and, if such thing were possible, the case was heard the very next day, that is, while recollection was still fresh and clear). It suffices to say that, perhaps because of the strangeness of the statutory provision, and the dislike of the courts of the technical defence of the statute succeeding where it lacked merit, the decisions reveal peculiar inter­pretation of the phrase ""not be be performed within year"". To begin with there are clear instances where con‑tract is for more, or, as the case may be, less than year. Thus the contract, from its terms may be incapable of being performed by either party within the year from its making. This is exempli­fied by the old English case of Boydell v. Drummond, which concerned subscription to forthcoming edition of Shakespeare that would have taken longer than 12 months to appear. Or the contract cannot be performed by one of the parties within the year and it does not manifest any intention that the other party should fully perform his side of the bargain within the year. Thus contract for two‑year period under which one party agrees to take orders for, and sell to customers the maximum volume possible of the other party's product was within the Statute. So was contract under which the plaintiff was to pursue training as nurse in the defendant's hospital for two years. So, too, was contract of employment under which the employee's salary was to rise from $700 per annum to $1,000 per annum by annual increases. Another example is provided by contract for perpetual term under which one party was to pay the other $10,000 per year for ten years. 0n the other hand the contract may be intended to be performed and may actually be performed by one party within the year. Thus in Spencer v. Spencer, in which there was promise to convey land in return for promise to support for life, it was held that the contract was one to be performed with‑in the year, as the conveyance would clearly occur within the requisite period; so, too, where the contract is one of service for one year commencing the day after that on which the contract is made. In contradistinction, however, are cases where it is not clear whether the contract is to be performed within or beyond the statutory period. If the contract is for an indefinite period which (according to circumstances that may or may not occur) may or may not be coterminous with the statutory year, then the contract is not within the Statute of Frauds. 0n the other hand, if the contract is so worded as to show distinctly that the parties contemplated the duration of the contract for definite period of more than one year, although it contains an express or implied term by which it may be terminated within the year, then the contract is within the Statute. As Lord Alverstone said in the leading case of Hanau v. Ehrlich, which has been approved and followed in Canada. ...if there is no mention of time, and the time is uncertain, the agreement is not within the Statute... if the time mentioned is more than one year, but there is power to determine, the agreement is within the Statute. In the words of Kerwin J. of the Supreme Court of Canada, the Statute does not apply if it is possible that the provisions can be performed or are not incapable of being performed within year. Thus, where there was contract of employment to last the life of the employee, though the employee could terminate at any time if not satisfied with the salary or bonuses, it was held that the contract, was not within the Statute because it might be wholly performed within year, since the employee might terminate it, or might die (a lugubrious thought which was instrumental in another case involving contract for the support of child who, it was said, might not live for more than one year). As Mackay J.A. said, ... {t}he statute has no reference to cases in which the whole contract may be performed within one year, but there is no definite provision as to its duration, even though it may appear as fact that the performance has extended beyond that time;...where the contract is such that the whole may possibly be performed within year and there is no express stipulation to the contrary, the statute does not apply.. So, too, an agreement to pay stated price for milk from herd of Guernsey cows, in consideration of the owner of the herd taking stock in dairy company, was not within the Statute, despite the vagueness of the period, since the owner might sell the herd within the year, have no milk to deliver, or could die before the year was out. Where one contracting party obliged himself not to do certain thing, no time limit being mentioned, and where one party made promise to many, without mentioning when the marriage was to take place, the Canadian court accepted the principles laid down in Hanau v. Ehrlich, which involved an employ­ment contract for two years that could have been terminated at any time. Similarly, in Boutilier v. Everett, contract of loan was an agreement capable of being performed within year from its making because the borrower was at liberty to pay off the loan at any time; therefore, he could have paid it within year. The Statute did not apply. It would seem, therefore, that, in the absence of some definite stipulation as to time, which undoubtedly decides the issue, and leaves no room for judicial manoeuvres, there is considerable scope for interpretation of contractual terms as to duration or the time of performance, in such way as to provide maximum flexibility and allow the courts to prevent the abuse of the Statute."" [62] In Boutilier v. Everett, 1979 40 N.S.R. 2nd 527 (N.S.T.D.) C.J. Cowan said this: ""At the commencement of the hearing, the defendant applied for leave to amend the statement of defence, by pleading that the transactions with regard to the three amounts in question came within the terms of s. 6(e) of the Statute of Frauds, R.S.N.S. 1967 c. 290, which provides as follows: No action shall be brought: (e) upon any agreement that it is not to be per‑formed within the space of one year from the making thereof; unless the promise, agreement, or contract upon which the action is brought or some memorandum or note thereof is in writing signed by the person sought to be charged there‑with or by some other person thereunto by him lawfully authorized. Counsel for the plaintiff objected that the application was made too late and that such an application should not be granted at the present time. am of the opinion that the amendment should not be permitted at this late date, but also express the opinion that, even if it were pleaded, the agreements in question were not such as come within the provisions of the statute. As understand the arrangement, it was that loans of cash were made by the plaintiff to the defendant and the defendant agreed to make certain payments. The initial arrangement was that he would pay $300.00 per month and the additional advances were merely added on to the amount originally advanced. The authorities indicate that the statute does not render unenforceable agreements which are capable of being performed within the space of one year from the making. In this case, it appears to me that the agreement between the plaintiff and the defendant was one that was capable of being performed within the year. The defendant was at liberty to pay off the loans at any time. also find that if, as happened, the defendant did not make the monthly payments which he promised to make, the plaintiff was entitled to require payment of the full amount of the advances, less payments on account of principal to date. The loan can, therefore, be called in before one year in the case of default and there was default within the year. therefore find that the section of the Statute of Frauds referred to does not apply in the present case and that, if the amendment were allowed, it would not render unenforceable the agreements in question. [63] In this agreement, it was contemplated for tax reasons suggested by Mr. Walters this agreement could go as long as 5 years but there was nothing preventing it being performed completely within one year. The contract came into being in April, 1997. By November 5, 1997 the road was in and all of Mr. Walters' work was performed save what Mr. Murray and Mr. Becker needed. It remained for Mr. Becker to obtain sub‑division approval which even though took some time could have been done sooner if preference had been given to the project. It is noted the lots already sold had sold very quickly with little or not advertisement. It is noted by Mr. Walters' letter of December 3, 1997 he had already included the advertisement of the land in his catalogue. [64] It is also noted in Mr. Murphy's letter of January 8, 1998 to Ms. Shea he stated they should have some hint of finality by late February. The only reason this agreement could have taken over the year was really for tax purposes which did not seem to overly concern Mr. Murphy at this time. [65] find this oral agreement did not offend the Statutes of Frauds as it was capable of being performed in one year. [66] I therefore find the oral agreement entered into between the Plaintiff and the Defendant was not only valid but enforceable insofar as the commission for 4% of the lands sold by Mr. Duckworth. The 4% represented the development work done by Mr. Walters. [67] Four lots have been sold for total of $875,000.00. The Plaintiff is awarded 4% of $875.000.00 for a sum of $35,000.00. [68] ISSUE #4 Should I have erred in my fmding in the alternative, the Plaintiff is entitled to an award either in a claim for unjust enrichment and/or quantum meruit. [69] In Sorochan v. Sorochan (1986) 29 D.L.R. (4th) the Supreme Court of Canada articulated the three requirements which must be satisfied in order to found an action for unjust enrichment: (1) an enrichment (2) corresponding deprivation and (3) the absence of any juristic reason for the enrichment [70] The Defence concedes the services provided to Mr. Murphy by the Plaintiff were of benefit to him. It is also noted the services done by the Plaintiff were satisfactory to Mr. Murphy. [71] find there was an enrichment to the Plaintiff and corresponding deprivation to the Defendant. The Defendant as agreed obtained benefit from the services of the Plaintiff while the Plaintiff lost all of his effort to build the road and lay out the lots to comply with the Planning Board and yet keep their presence as desired by Mr. Murphy. [72] As to the third condition in Campbell et al vs. Campbell, Borins J.A. for the 0ntario Court of Appeal set forth what was required to satisfy such requirement. At Page 794 he stated: ""Thus, what is at the heart of the third requirement is the reasonable expectation of the parties, and whether it would be just and fair to the parties considering all of the relevant circumstances, to permit the recipient of the benefit to retain it without compensation to those who provided it."" [73] The benefit conferred by the Plaintiff to the Defendant falls within the third requirement. The Plaintiffs services were both requested and encouraged by the Defendant. It would be unfair and unjust to permit the Defendant to retain this benefit without compensation to the Plaintiff. Issue #5 The only question is the quantum of damages. The Defendant is of the opinion this award should not be great. The Plaintiff counsel argues that the Plaintiff is entitled to the 4% agreed to in the oral contract. [75] The Plaintiffs services not only benefited the Defendant for the land already sold but the three lots still unsold on which the Defendant has set price of $1,500,000.00. He may not obtain that price but it does give value the Defendant believes is the worth of the remaining land. These values are in line with the land already sold. [76] The services of the Plaintiff greatly enriched the value of the Defendant's property. Here the task of Mr. Walters was not only to lay out this land to get sub‑division approval, but to keep the property prestigious and as an undisturbed area. As said earlier, to lay this area out to comply with the desire of Mr. Murphy and to meet Planning Board approval was no small matter and required someone with appropriate expertise and concern for the eventual development. You cannot just count hours. You also have to consider the expertise of Mr. Walters. [77] This expertise was sought after when Mr. Murphy first approached Mr. Walters. Mr. Walters did his work and never was there any complaint except over the question of the commission and that did not come from Mr. Murphy personally to Mr. Walters before November 13, 1997. All the Plaintiffs work has been completed on the development. It is not usual to set a commission fee in an unjust enrichment case but here the 4% was an amount both parties agreed for the development work. In my opinion, it is better to place figure based on what the parties thought the work was worth rather than place figure at random when the Court has no real amount upon which to set value. It is hard to quantify Mr. Walters' expertise in this area considering the work he had to do of taking all the lots and configuring them to meet Planning Board approval. [78] All of the land has not been sold but the Plaintiff's services have enriched same as well as it enriched the land already sold. [79] When one considers the Defendant purchased this land for somewhat over $200,000.00 for which he has already received $875,000.00 with three valuable lots remaining, it can be seen the Plaintiff's work greatly enriched its value. [80] When consider under the contract the Plaintiff is entitled to 4% of the land already sold and the fact there are remaining three lots which the Defendant considers are worth over one million dollars, am of the opinion to award less than the $35,000.00 for unjust enrichment would be inappropriate and unjust. [81] On the claim for unjust enrichment, set the amount at $35,000.00. [82] set the rate for pre judgment interest at 4.4% per annum. [83] Any determination on costs will be reserved as indicated would hear the parties at later date re the dismissal of the claim against Mrs. Murphy. encourage the parties to settle the issue of costs, otherwise ask they each submit short briefs after which will make determination. DATED this 9th day of March, 2001.","The plaintiff and defendant entered into an oral contract for the development and sale of land. The plaintiff brought an action to recover its commission on the contract. Plaintiff awarded commission of 4% as agreed to by the terms of the oral contract; in the alternative, the plaintiff is entitled to an award for unjust enrichment to compensate for the work done. Although the agreement could have went on longer, there was nothing preventing it from being performed completely within one year and thus the oral agreement was not only valid, but also enforceable. An award for unjust enrichment would be calculated using the commission rate agreed to by the parties.",6_2001nssc105.txt
11,"nan 1999 SKQB 268 Q.B. A.D. 1997 No. 1868 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GEORGE BROWER and JEANNE BROWER and SUNVIEW SOLARIUMS LTD. DEFENDANTS Catherine A. Sloan for the plaintiffs Gwen V.G. Vanstone for the defendants JUDGMENT DIELSCHNEIDER J. December 24, 1999 [1] In this action the plaintiffs seek to enforce payment by the defendant of judgment for $23,396.03 in US currency awarded them by Carver County District Court, First Judicial District, in the State of Minnesota. The action is defended on the basis that the defendant was not ordinarily resident in Minnesota and, though served with notice of the action, did not appear before the Minnesota court or in any way submit to its jurisdiction. [2] In Saskatchewan the law governing the enforcement of foreign judgments in this jurisdiction is set out in The Foreign Judgments Act, R.S.S. 1978, c. F-18. See the judgment of the Saskatchewan Court of Appeal in Cardinal Couriers Ltd. v. Noyes, 1993 CanLII 6740 (SK CA), [1993] W.W.R. 704, reversing my judgment in the same action reported at 1992 CanLII 7880 (SK QB), [1992] W.W.R. 673. [3] The sections of The Foreign Judgments Act pertinent to this action are: 2. In this Act: nan (c) “foreign country” means any country other than this province, whether kingdom, empire, republic, commonwealth, state, dominion, province, territory, colony, possession or protectorate, or part thereof; 3. For the purposes of this Act, in an action in personam court of foreign country has jurisdiction in the following cases only: (a) where the defendant is, at the time of the commencement of the action, ordinarily resident in that country; (b) where the defendant, when the judgment is obtained, is carrying on business in that country and that country is province or territory of Canada; (c) where the defendant has submitted to the jurisdiction of that court: (i) by becoming plaintiff in the action; or (ii) by voluntarily appearing as defendant in the action without protest; or (iii) by having expressly or impliedly agreed to submit thereto. [4] It was not suggested before me that subsections 3(b) or (c) had application in this matter, only subsection (a) raising therefore the question whether the defendant was, at the time the action in Minnesota was commenced, ordinarily resident in that state. [5] Under subsection 3(a) the plaintiff must establish two things, namely: (1) the time of residence, that is to say, the residence of the defendant at the time of the commencement of the action, and (2) that the defendant was ordinarily resident in Minnesota at the relevant time. [6] turn first to discussion of the term “ordinarily resident” as it is used in the subsection because if the defendant was not ordinarily resident in Minnesota the question of time does not arise. [7] The term “ordinarily resident” is not defined in The Foreign Judgments Act so turn to case law for assistance. [8] In Thomson v. Minister of National Revenue, 1946 CanLII (SCC), [1946] D.L.R. 689 (S.C.C.), Mr. Justice Rand spoke of ordinary residence in these words: The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, think, that in common parlance “residing” is not term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new. The expression “ordinarily resident” carries restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to question of its application. In separate concurring judgment Estey J. spoke of the same term in similar words: reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in general way the essential difference. nan See also the judgment of my colleague McIntyre J. in Arnold v. Arnold (1998), 1998 CanLII 13372 (SK QB), 164 Sask. R. 252 (Sask. Q.B.) at 255 reversed at (1998), 1997 CanLII 9786 (SK CA), 163 Sask. R. 96 (Sask. C.A.) for reasons not applicable here. [9] The term “ordinarily resident” as it is used in subsection 3(a) must be carefully distinguished from the term “carrying on business” as this term is used in subsection (b). The statement of Ruth Sullivan in Driedger on the Construction of Statutes, Third Edition (Toronto: Butterworths, 1994) at p. 163 is apposite: It is presumed that the legislature uses language carefully and consistently so that within statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once particular way of expressing meaning has been adopted, it is used each time that meaning is intended. Given this practice, it then makes sense to infer that where different form of expression is used, different meaning is intended. [10] The judgments in the following cases deal with the term “carrying on business”: Wilson v. Hull, 1995 ABCA 374 (CanLII), [1996] W.W.R. 244 (Alta. C.A.); Moses v. Shore Boat Builders Ltd., 1993 CanLII 2276 (BC CA), [1994] W.W.R. 112 (B.C.C.A.); Amopharm Inc. and Magypharm Inc. v. Harris Computer Corporation (1992), 1992 CanLII 7514 (ON CA), 93 D.L.R. (4th) 524 (Ont. C.A.); Davis Co. v. Dunn (1996), C.P.C. (4th) 347 (N.W.T.S.C.); 917294 Ontario Inc. v. 167644 Canada Inc. (1994), 1994 CanLII 4716 (SK QB), 119 Sask. R. 217 (Sask.Q.B.); T.D.I. Hospitality Management Consultants Inc. (c.o.b. Grande Prairie Inn) v. Browne, 1994 CanLII 10958 (MB CA), [1994] W.W.R. 153 (Man. C.A.) and Silverstar Properties Ltd. v. Veinotte, [1998] B.C.J. No. 2385 (Q.L.)(B.C.S.C.). Each case must be analysed in its own facts. [11] On the facts of this case the defendant manufactured solarium in Saskatoon, Saskatchewan which it sold to the plaintiffs in Minnesota. The plaintiffs alleged that the solarium was defective and sued the defendant and obtained the judgment in the Minnesota court which it now seeks to enforce in Saskatchewan. The defendant was served in Saskatoon with notice of the plaintiff’s claim but did not appear and defend the action or in any way submit to the jurisdiction of the Minnesota court. [12] The defences available to defendant in Saskatchewan where an action is brought to enforce foreign judgment are set out in s. of The Foreign Judgments Act: nan Where an action is brought in this province upon foreign judgment, it is sufficient defence: (a) that the original court did not have jurisdiction for the purposes of this Act; (b) that the defendant, being defendant in the original action, was not duly served with the process of the original court and did not appear, notwithstanding that he was carrying on business or was ordinarily resident in the foreign country or agreed to submit to the jurisdiction of that court; (c) that the judgment was obtained by fraud; (d) that the judgment is not final judgment; (e) that the judgment is not for sum certain in money; (f) that the judgment is for payment of penalty or sum of money due under the revenue laws of the foreign country; (g) that the judgment has been satisfied or for any other reason is not subsisting judgment; (h) that the judgment is in respect of cause of action that, for reasons of public policy or for some similar reason, would not have been entertained by the courts of this province; (i) that the proceedings in which the judgment was obtained were contrary to natural justice. [13] The defence here is that the court in Minnesota did not have jurisdiction over the defendant because at the time the action was commenced the defendant was not “ordinarily resident” in the state of Minnesota, and did not appear and surrender to its jurisdiction. [14] The defendant advertised its business in the state of Minnesota and elsewhere in the United States, and employed agents there to sell its product. In advertising its business the defendant made use of United States postal facilities and had to comply with postal regulations which required an address in the United States. In order to comply the defendant arranged for an address at 701-4th Avenue South, Suite 500, in the City of Minneapolis. An address of this nature could be understood as connoting either residential or business address. But because of the activities of the defendant in Minnesota, that is to say, its activities in sales, the logical conclusion, so it seems to me, is that it is a business address. [15] On these facts therefore it could be argued, in my view with some success, that the defendant carried on business in the state of Minnesota. The authorities have quoted support that approach. [16] The question here however is otherwise. The question is whether the defendant was ordinarily resident in the state of Minnesota. On the dicta of Rand J. and Estey J. in Thomson, supra, the question must be answered in the negative. So also on an analysis of s. of The Foreign Judgments Act. Subsection 3(a) uses the term “ordinarily resident” while subsection 3(b) uses the term “carrying on business”. The case law have reviewed convinces me there is real difference in the meaning of these terms and that the Act reflects that difference. While there may be evidence supporting the conclusion that the defendant was carrying on business in Minnesota, that same evidence does not support the conclusion that the defendant was ordinarily resident there. [17] Because the defendant was not ordinarily resident in Minnesota when the action was commenced the second factor, the time question raised in subsection 3(a) needs no further explication. [18] For these reasons the plaintiff’s action is dismissed with costs to be taxed.","The defendant manufactured solarium in Saskatoon which it sold to the plaintiffs in Minnesota. The plaintiffs alleged the solarium was defective, sued and obtained judgment in the Minnesota Court which it now sought to enforce in Saskatchewan. The defendant argued the Minnesota court did not have jurisdiction because at the time the action was commenced he was not 'ordinarily resident' in the state of Minnesota. The defendant was served in Saskatoon with notice of the claim but did not appear or defend the action or surrender to its jurisdiction. HELD: The action was dismissed with costs to be taxed. 1)The defences available to defendant in Saskatchewan where an action is brought to enforce foreign judgment are set out in s.6 of the Foreign Judgments Act. 2)While there may be evidence supporting the conclusion that the defendant was carrying on business in Minnesota, that same evidence does not support the conclusion the defendant was ordinarily resident there. The defendant advertised its business in Minnesota and elsewhere in the United States and employed agents there to sell its product. The logical conclusion was that the address in the city of Minneapolis was a business address. It could be argued that the defendant carried on business in the state of Minnesota but the question was whether the defendant was ordinarily resident in that state. The Foreign Judgments Act reflects real difference in the meaning of 'ordinarily resident' and 'carrying on business'.",e_1999skqb268.txt
12,"J. C.A. No. 125259 NOVA SCOTIA COURT OF APPEAL Hallett, Freeman and Roscoe JJ.A. BETWEEN: HEALTHVISION CORPORATION, body corporate formerly known as HCS HEALTHCARE SYSTEMS INC., body corporate and J. COLLEEN KILLORN Respondent William L. Ryan, Q.C. and Nancy Rubin for the Appellant Raymond S. Riddell for the Respondent Appeal Heard: September 10, 1996 Judgment Delivered: January 10th, 1997 THE COURT: Appeal allowed per reasons for judgment of Hallett, J.A.; Roscoe, J.A. concurring; and, Freeman, J.A. dissenting. FREEMAN, J.A.; (Dissenting) The appellant Healthvision Corporation, which sells computer systems including hardware and software to hospitals and other health care facilities, has appealed a jury award of $60,000 damages for mental distress in a wrongful dismissal action brought by the respondent. The Facts The respondent Colleen Killorn, then Colleen Clark, was hired November 9, 1989, as account manager with sales territory consisting of the four Atlantic provinces. At that time the appellant had no history of sales in the Atlantic Provinces and it was expected to take her three or four years to develop the territory. Her responsibilities, as the only account manager, in the territory included not only making sales contacts but co-ordinating the activities of the specialists within the company who had to design and build the system required by the customer. Her conditions of employment were set out in sales compensation plan which was automatically renewable each March 31st if not renegotiated at the instance of either party as of that date. The plan called for base salary of $40,000 plus commissions of five per cent of software license revenue and of the gross margin on new hardware accounts and two per cent on existing hardware accounts. The sales compensation plan had not been changed prior to March 31, 1993. In 1988 the province of Prince Edward Island had opened negotiations with number of suppliers, including the appellant, for computer system to serve all Island hospitals. That proposal was known both to the company and to Ms. Killorn through her previous employment. It was not specifically referred to in her employment contract. Both Ms. Killorn and the company learned in February, 1993, that the P.E.I. negotiating committee had chosen the Healthvision proposal. This was confirmed in March, 1993. Ms. Killorn anticipated commission of $90,000 because the pending sale was within her sales territory. Ms. Killorn played role in securing the contract and had contacts with the P.E.I. negotiating committee but the sale was co-ordinated through the Vancouver office and David Wlson, vice-president of marketing and sales, was involved in the negotiations. In mid-1992, without notifying Ms. Killorn, the appellant had assigned responsibility for the P.E.I. contract to Mr. Wilson. As of March 16, 1993, shortly after learning that its P.E.I. proposal had succeeded, the appellant sent Ms. Killorn ""a new offer of employment"", essential parts of which were non-negotiable. It provided for four percent commission on software licenses and the net margin on hardware sales, plus scheme of cash bonuses for exceeding revenue targets which were not stated. It was signed by Bob Brand, vice president of finance and administration and Mr. Wilson, her immediate superior. Ms. Killorn did not sign the offer. She telephoned Mr. Wilson for clarification as to commissions and cash bonuses and was told that Prince Edward Island was his target, not hers, and that the commissions were to be split with others. Ms. Killorn sent Mr. Wilson memo asking for clarification and received no response. She met with Mr. Wlson in Toronto and was told she would not be receiving the full commission for Prince Edward Island, but he would not elaborate. She repeated her memo asking for clarification and received fax message advising her that her target for the year, to qualify her for cash bonus, was $4,700,000 in product sales, excluding Prince Edward Island. Ms. Killorn wrote to Mr. Wilson May 13, 1993, expressing concerns that her target was unrealistically high and received no response. The company was aware of Ms. Killorn's expectations from the P.E.I. contract, but at no point did anyone discuss them forthrightly with her or explain the company's position. Ms. Killorn attempted to discuss the matter with Mr. Wlson at sales conference in British Columbia in June, 1993, but found him ""agitated"" toward her and unwilling to deal with her concerns. She said she was upset with Mr. Wilson's unwillingness to communicate with her and feeling crushed. Ms. Killorn testified she had no previous emotional difficulties but had become increasingly upset when no one in the company would communicate with her about the altered sales compensation plan. Dr. Colin Davey, her physician, noted ""depression symptoms"" in Ms. Killorn on an office visit May 14, 1993, and prescribed Zoloft, an anti-depressant with numerous side-effects. Two weeks later, on May 28th, she was again diagnosed with depression and told to stay on the Zoloft for another month. On June 7th Dr. Davey spoke by telephone with Ms. Killorn in her hotel room in Vancouver and followed this with faxed letter advising that she required time off for medical reasons. She personally advised the company at the Vancouver office on June 7, 1993, that she needed time off. Without informing her, the company sent letters to all of her prospective customers advising that she was going to be away for an extended period of time. Dr. Davey saw Ms. Killorn on July 6, 1993, and advised her she could return to work. When she called the company on that date to say that she was coming back she was told her return would have to be ""co-ordinated"" through Mr. Wilson and the Toronto office because of the letters. She returned to work on July 9, 1993. She testified that she hoped to remain with Healthvision indefinitely, but her dealings with Mr. Wlson made her feel insecure about her future with that company. She wrote two prospective employers, enclosing resumes, on July and July 10, 1993. She was advised that she would be visited in her Halifax office by Ms. Lucy McKiernan, the company's director of administration, for physical audit. The real purpose of Ms. McKiernan's visit was to deliver written notice of termination, which she did on July 12, 1993. The letter of dismissal offered $14,000 severance pay, the equivalent of four months' notice based on the salary element of her compensation package. Her office was stripped of everything but the desk and telephone and all files, including her notes, were removed to the Toronto office. She rejected the compensation offer and brought action for wrongful dismissal. About the same time letter was sent from the P.E.I. Joint Management Team confirming its intention to finalize negotiations with Healthvision for contract to be worth approximately $2,770,282 and the hospital in Yarmouth, N.S. confirmed its intention to purchase $365,000 of Healthvision's product. Neither of these sales became final contracts within ninety days of Ms. Killorn's dismissal and she was not entitled to commissions on them. There was evidence that Mr. Wilson would receive ""benefit"" from the Prince Edward Island transaction. Ms. Killorn had been given no indication that the company had any concerns with her performance, and she had no prior warning that she might be dismissed. She was given no reason for her dismissal and her employment record falsely stated that she was terminated because of shortage of work. ""To say was crushed would be complete understatement ."" Ms. Killorn testified. ""I just could not believe that this could happen."" She again sought medical advice and was on medication for depression at the time of the trial. She had not found alternate employment. Her husband testified that he first noticed change in her emotional and mental state in March of 1993 when she received the non-negotiable offer of changed compensation package and could not get response from the company to her concerns. She went into depression, sliding to emotional depths he had not seen in her before. She did not eat. She had fits of crying and bouts of rage. She ceased communicating. Her relationship with her husband and children suffered. She was still showing ill effects at the time of trial. The Jury's Conclusion The jury found that Ms. Killorn was entitled to six months' notice. It also found that she suffered mental distress as result of conduct arising out of the dismissal, ""other than the dismissal itself,"" which would warrant additional damages of $60,000 for mental distress. The jury described this conduct as follows: The conduct of Health Vision Corp. was high handed and callous. Mrs. Killorn was misled into believing her office was being audited when in fact she was also being terminated, this resulted in further financial turmoil, added mental distress to her and her family. There can be little doubt the jury had the lost commissions in mind, although the language used is not specific on the point. The jury had heard effective addresses by both counsel in which the effect of termination on the commissions was central issue. While the appellant did not allege incompetence nor suggest that Ms. Killorn was dismissed for cause, its counsel, Mr. Ryan, down played the value of her efforts and emphasized that she had not met her sales objectives. Mr. Riddell on her behalf emphasized that Ms. Killorn had been unfairly treated during the chain of events that began with the revival of interest in the Prince Edward Island transaction in February, 1993, and ended with her termination. The genesis of the language used by the jury can be found in his remarks: In nutshell, the biggest nutshell, is Colleen got ripped off and she was treated really shabbily by this company. think she was treated in high-handed and callous manner. That's my theory. And she got ripped off. Mr. Riddell emphasized that Ms. Killorn was not given written response to her inquiries as to the effect of the purported change in the compensation scheme. She asked for response in writing and Bob Brand said he gave answers to Mr. Wilson. They were never communicated to Colleen. Mr. Brand would have had the decency and courtesy and professional responsibility to have written response. Mr. Wilson didn't. And right after sick leave, she was fired with no warning, no reprimand, no expression of displeasure, no assistance, no explanation, leaving her to explain to potential employers she was fired without explanation. mean that has defamatory effect. What are they going to think? They're going to think the worst. And you'll be asked to put down conduct of Healthvision and that's the kind of conduct we're looking at, okay. Grounds of Appeal The appellant alleges two errors by the trial judge: he should not have permitted the issue of mental distress to go to the jury, and he mischarged the jury on the question of foreseeability. It argues that the answers of the jury ""were generally unreasonable, unjust, perverse and contrary to law and evidence,"" could not have been given by reasonable persons; were not supported by sufficient material evidence to support its answers. It argued that the jury erred in law in finding that the conduct of the appellant caused mental distress to the respondent, and that the jury's assessment of damages for mental distress was inordinately and disproportionately high. Damages for Mental Distress Prior to the decision of the Supreme Court of Canada in Vorvis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] 94 N.R. 321 the judicial rule of thumb was that damages in wrongful dismissal cases were limited to the length of the appropriate notice period, and were not available for mental distress. Addis v. Gramophone Co. Ltd., [1909] A.C. 488 (H.L.) stood as authority that: Where servant is wrongfully dismissed from his employment the damages for the dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment. It was recognized, however, that the indemnity the dismissed employee was entitled to in lieu of notice could reflect lost commissions. By the 1980s the authority of the Addis rule had begun to erode. In Pilon v. Peugeot Canada Ltd. (1980), 29 O.R. 2d. 711 Galligan J. of the Ontario High Court of Justice considered the case of an automotive service manager wrongfully dismissed after 17 years loyal service, despite assurances of life-long security given in lieu of higher salary. In addition to damages for 12 months' notice, Galligan J. awarded $7,500 for the mental distress, anxiety, vexation and frustration caused by the defendant's breach of contract. It seems to me, and say this with the greatest of deference, that the issue before the Court in Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), [1966] S.C.R. 673, 58 D.L.R. (2d) 1, 56 W.W.R. 641, was the entitlement to compensation for damages to reputation, not whether mental distress could be an element of damages in breach of contract case. think, with respect, therefore, that the words ""wounded feelings"" at p. 684 S.C.R., p. 10 D.L.R. of that judgment are obiter dictum. In Delmotte v. John Labatt Ltd. et al. (1978), 1978 CanLII 1410 (ON SC), 22 O.R. (2d) 90 at p. 92, 92 D.L.R. (3d) 259 at p. 261, R.E. Holland, ., thought that the law relating to damages was changing. Professor Rose in his commentary in 55 Can. Bar Rev. 333 (1977) at p. 342, implied that the famous Jarvis v. Swans Tours, [1973] Q.B. 233, may be only the preliminary skirmish in general assault upon Addis v. Gramaphone. In my opinion, it cannot fail to have been in the contemplation of the defendant that if it suddenly, without warning, unlawfully discharged man whom it had led to believe was secure in his job for his working life, there would be the gravest likelihood that such man would suffer vexation, frustration, distress and anxiety. The current jurisprudence as to claims for mental distress in wrongful dismissal cases has developed as courts have sought to interpret or reconcile the two distinct approaches expressed by McIntyre and Wilson JJ. in Vorvis v. Insurance Corporation of British Columbia, supra, case well known for McIntyre J.'s definitions of aggravated and punitive damages at pp. 333-334: Punitive damages, as the name would indicate, are designed to punish. In this, they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. Aggravated damages will frequently cover conduct which could also be the subject of punitive damages, but the role of aggravated damages remains compensatory In this contrasting sense, aggravated damages describes an award that aims at compensation, but takes full account of the intangible injuries, such as distress and humiliation, that may have been caused by the defendant's insulting behaviour. Vorvis had been engaged by I.C.B.C. in 1973 as junior solicitor and was dismissed in 1981 some two years before his pension vested. He found work at similar salary, but not as lawyer, in seven months. The corporation was unable to prove allegations of incompetence. At trial Vorvis was awarded seven months' notice but his claims for punitive damages and aggravated damages for mental distress were dismissed on the authority of Addis v. Gramaphone Co., Ltd. as restated in Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), [1966] S.C.R. 673 and Harvey Foods Ltd. v. Reed (1971), 3. N.B.R. (2d) 444 (N.B.C.A.). This was substantially affirmed on appeal. On further appeal to the Supreme Court of Canada, McIntyre J., writing for three-judge majority including Beetz and Lamer, JJ., first set out the basic law in wrongful dismissal cases as follows: The law has long been settled that in assessing damages for wrongful dismissal the principal consideration is the notice given for the dismissal. contract of employment does not in law have an indefinite existence. It may be terminated by either employer or employee and no wrong in law is done by the termination itself. An employee who is dismissed is entitled to the notice agreed upon in the employment contract or, where no notice period is specified in the contract, to reasonable notice. He is entitled in the alternative in the absence of due notice to payment of remuneration for the notice period. After review of authorities McIntyre J. concluded at pp. 338-339: From the foregoing authorities, would conclude that while aggravated damages may be awarded in actions for breach of contract in appropriate cases, this is not case where they should be given. The rule long established in the Addis and Peso Silver Mines cases has generally been applied to deny such damages, and the employer/employee relationship (in the absence of collective agreements which involve consideration of the modern labour law regime) has always been one where either party could terminate the contract of employment by due notice, and therefore, the only damage which could arise would result from, failure to give such notice. would not wish to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable, factor not present here Furthermore, while the conduct complained of, that of Reid (Vorvis' supervisor) was offensive and unjustified, any injury it may have caused the appellant cannot be said to have arisen out of the dismissal itself. The conduct complained of preceded the wrongful dismissal and, therefore, cannot be said to have aggravated the damage incurred as result of the dismissal. Accordingly, would refuse any claim for aggravated damages in respect of the wrongful dismissal. In her dissent, concurred in by L'Heureux Dubé J., Wilson J. stated at p. 356: must respectfully disagree with my colleague's view that conduct advanced in support of claim for damages for mental suffering must constitute separate ""actionable wrong"" from the breach itself. disagree also that because the conduct complained of preceded the wrongful dismissal it cannot aggravate the damages resulting from that dismissal. Rather than relying on characterization of the conduct as an independent wrong, think the proper approach is to apply the basic principles of contract law relating to remoteness of damage. These were articulated by Baron Alderson of the Court of Exchequer Chamber in Hadley v. Baxendale (1854), Ex. 341; 156 E.R. 145, at pp. 354-355 and at p. 151, as follows: Now we think the proper rule in such case as the present is this: Where two parties have made contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them. At p. 360 she stated: It is my view that the established principles of contract law set out in Hadley v. Baxendale provide the proper test for the recovery of damages for mental suffering. The principles are well-settled and their broad application would appear preferable to decision-making based on priori and inflexible categories of damages. The issue in assessing damages is not whether the plaintiff got what he bargained for, i.e. pleasure or peace of mind (although this is obviously relevant to whether or not there has been breach) but whether he should be compensated for damage the defendant should reasonably have anticipated that he would suffer as consequence of the breach With respect to the claim by Vorvis she concluded at p. 364: .. am persuaded, therefore, that mental suffering would not have been in the reasonable contemplation of the parties at the time the employment contract was entered into as flowing from the appellant's unjust dismissal. would therefore, like my colleague, deny recovery under this head. Justice Wilson's dissent reflects the view which had prevailed until Vorvis, that damages in wrongful dismissal cases arise only from breach of the contract of employment, although the majority view that tortious conduct could result in aggravated damages was not unknown. Ribeiro v. Canadian Imperial Bank of Commerce (1989), 1989 CanLII 4281 (ON SC), 24 C.C.E.L. 225 (Ont. H.C.J.); (1992), 1992 CanLII 7447 (ON CA), 44 C.C.E.L. 165 (C.A.) appears to represent the state of the law prior to Vorvis. The bank terminated an employee and made false allegations of dishonesty against him as result of which prosecution was begun and abandoned by the Crown. He was awarded the three months' notice his contract required and in addition the trial court awarded him $10,000 for mental distress and punitive damages of $10,000. These amounts were increased on appeal to $20,000 and $50,000 respectively. The appeal court left open the question whether damages for loss of reputation could also have been awarded, being of the opinion that ""any damages which might have been awarded for loss of reputation would have been subsumed in the award for mental distress."" In his comprehensive judgment at trial Carruthers J. stated: Accordingly, must find that the plaintiff is not entitled to an award of damages not based upon the provisions of his employment agreement. If those provisions did not apply, would conclude that the plaintiff was entitled to months' notice of termination. In the present case, the defendant bank has made much of the fact that the plaintiff’s employment with it expressly contemplated that he be honest and act with integrity throughout. The defendant bank wrongfully, and can also say wantonly and recklessly accused the plaintiff of being otherwise and purported to terminate his employment for cause on this basis. have concluded that this conduct on the part of the defendant bank constituted breach of its employment agreement with the plaintiff. Having regard to the nature of the agreement, and specifically the requirements for honesty and integrity on the part of the plaintiff, find that it is reasonable to draw the inference that it was in the contemplation of the parties that if the plaintiff was terminated in this manner he would suffer mental distress. have already concluded that it did in fact do so. Thus the requirements for the application of the second rule in Hadley v. Baxendale have been met, and the plaintiff is entitled therefore to recover damages for his ""mental and emotional suffering"". Carruthers J. cited at some length the judgment of Weatherston J.A. in Brown v. Waterloo Regional Bd. of Police Commrs. (1983), 1983 CanLII 1697 (ON CA), 43 O.R. (2d) 113, C.C.E.L. including the following passage which identifies one of the problems in strictly contractual analysis: must confess that have some difficulty in considering mental suffering as head of damages for breach of contract. If, in this case, Storwal had dismissed the plaintiff with the proper amount of notice, it would not have been liable in damages for mental suffering even if it could foresee that the manner of dismissal would cause such suffering. That is because there would have been no breach of contract and thus no cause of action. .. It seems to follow that, if an employer miscalculates the amount of reasonable notice required, he opens the door to claim for damages for mental suffering which would not otherwise have been available to the discharged employee. In such case, the damages must flow from the inadequate notice and not from the act of dismissal. .. In my opinion, the correct rule is stated in Corbin, supra, Vol. 5, p. 429, citing the Restatement of the Law of Contracts, para. 341, as follows: There is sufficient authority to justify the statement that damages will be awarded for mental suffering caused by the wanton or reckless breach of contract to render performance of such character that the promisor had reason to know when the contract was made that breach would cause such suffering, for reasons other than pecuniary loss. Carruthers J. quoted Saunders J. in Bohemier v. Storwal Int' Inc. (1982), 1982 CanLII 1764 (ON SC), 40 O.R. (2d) 264 (H.C.): Saunders J. says ""There are said to be two grounds for awarding damages for mental distress which, to an extent, overlap."" He identifies the second basis as being that which can be done by way of aggravated damages. In saying this he followed Linden J. in Brown v. Waterloo, supra, who at pp. 288-89 [O.R.] of that decision, says: The aim of aggravated damages is to ""soothe plaintiff whose feelings have been wounded by the quality of the defendant's misbehaviour"". They are ""balm for mental distress"" which is brought about by the wrongful ""character of the defendant's wrongdoing."" There must be evidence of damage of this type to the plaintiff. Canadian law seems to have recognized the need for something like aggravated damages in contract law by awarding damages, not only for financial losses, but also for any mental suffering incurred by the plaintiff in appropriate cases. The purpose behind allowing such damages is to compensate for hurt feelings, anxiety and stress caused by certain types of contractual breach, where they are in the contemplation of the parties. Where the conduct of defendant which violates contract is particularly callous, the likelihood of mental suffering would be more foreseeable to him. Linden J. concluded that if the mental suffering of the plaintiff had not been compensable under Hadley v. Baxendale, supra, he would have been inclined to base such an award on aggravated damages. However, he found it unnecessary to do so in view of the recent developments in Canadian law of contract damages for mental suffering Weatherston J.A. at p. 122 [O.R.] of his decision, says: Linden J. would have awarded aggravated damages if he had not allowed the claim for mental distress. But what have said in respect of the award for mental distress is equally applicable to that claim. Whatever name is given to the claim for damages, it arises out of separate decision of the board that was not actionable, and that decision cannot be made compensable by merely tacking it on to compensable claim. If nothing else, this case illustrates how unwieldy the Hadley v. Baxendale analysis had become when mental distress was claimed in wrongful dismissal cases. The reluctance of Ontario courts to instruct juries on the issue was understandable. The majority decision in Vorvis did nothing to invalidate this approach, but it provided simpler alternative by introducing tort law principles. The concept of an ""independent actionable wrong"" is broad enough to embrace breach of the general duty of care. In Donaghue v. Stevenson, [1932] A.C. 562, Lord Atkins stated: The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyer's question: Who is my neighbour? receives restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my acts that ought reasonably to have them in contemplation as being so affected when am directing my mind to the acts or omissions which are called in question. In Anns v. Merton London Borough Council, [1977] All E.R. 492 at 498, two stage approach was adopted: the position has now been reached that in order to establish that duty of care arises in particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case prima facie duty of care arises. Secondly, if the first question is answered affirmatively it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise... The Supreme Court of Canada accepted the Anns approach. In Canadian National Railway Co. v. Norsk Pacific Steamship Co. (1992), 1992 CanLII 105 (SCC), 91 D.L.R. (4th) 289 (S.C.C.) Justice McLaughlin explained that the approach required two questions to be asked ""(1) is there duty relationship sufficient to support recovery? and, 2) is the extension desirable from practical point of view, i.e., does it serve useful purposes or, on the other hand, open the flood gates to unlimited liability."" In Fletcher v. Manitoba Public Insurance Co., 1990 CanLII 59 (SCC), [1990] S.C.R. 191, Madame Justice Wilson quoted with approval from the judgment of this Court in Nova Mink Ltd. v. Trans-Canada Airlines, 1951 CanLII 325 (NS CA), [1951] D.L.R. 241 where MacDonald, J., stated in part at 254 and 256 as follows: The common law yields the conclusion that there is such duty only where the circumstances of time, place, and person would create in the mind of reasonable man in those circumstances such probability of harm resulting to other persons as to require him to take care to avert that probable result."" Many attempts have been made to generalize the circumstances which create legal duty of care. .What is common. .is the idea of relationship between parties attended by foreseeable risk of harm. In Canadian Tort Law, 10th ed. (Toronto: Butterworths 1994) A.M.Linden and L.N.Klar cite C.A. Wright in his ""Introduction to Cases on the Law of Torts"" as follows: Arising out of the various and ever increasing clashes of activities of persons living in common society there must of necessity be losses, or injuries of many kinds sustained as result of the activities of others. The purpose of the law of torts is to adjust these losses and to afford compensation for injuries sustained by one person as the result of the conduct of another. degree of mental distress is always likely to accompany the termination of employment. That is foreseeable at the time of formation of the contract of employment, and it is remedied by the requirement that notice be given. In the language of Anns, that is one of the considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise. It is only when the employer's conduct aggravates the mental distress beyond the degree contemplated by the parties on the formation of the contract, that is, beyond the degree which can be remedied by agreement or reasonable notice, that right to further damages arises. Following the McIntyre analysis in Vorvis, it appears that damages can arise for mental distress on termination when an employer in the breach of the duty of care or in the course of other tortious conduct does something more harmful to the employee than either would have reasonably contemplated, and provided for by way of contractual remedy, when they entered into the employment contract. The test in my view is whether reasonable person would perceive that the employer has terminated the employment contract in manner that caused the dismissed employee more harm than reasonably necessary. If the employer's acts are independently actionable as torts the situation becomes very clear, but with respect, McIntyre J. did not make this requirement. He said: would not like to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable. (Emphasis added.) wrong would not be independently actionable if the damages were not foreseeable, but in the case of tortious conduct, such as breach of the duty of care, it needs only to be foreseeable when it occurs, and not necessarily as early as the time of the formation of the contract of employment. In Hall v. Herbert (1993), 1993 CanLII 141 (SCC), 101 D.L.R. (4th) 129 at p. 156 Cory J. reviewed general tort principles as they have evolved in the jurisprudence of the Supreme Court of Canada and stated the Court's two-stage test for considering foreseeability, proximity and duty of care: It is: (i) is there sufficiently close relationship between the parties so that, in the reasonable contemplation of party, carelessness on its part might cause damage to another person; if so (ii) are there any considerations which should negate or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which breach of it may give rise. In the application of that rule to wrongful dismissal cases in which an independently actionable act has occurred, the damages caused by one person in the employment relationship to another would be limited to those in excess of the damages in the contemplation of the parties at the formation of the contract and taken into account by its terms. Cases since Vorvis in which damages have been awarded for mental distress, in addition to damages for inadequate notice alone, appear to follow this general approach. In Dixon v. B.C.Transit (1995), 13 C.C.E.L. (2d) 272 (B.C.S.C.) senior executive, enticed to B.C.Transit from secure job at senior level, was dismissed after seven and half months amid allegations that the dismissal was for cause, so the employer could evade paying year's salary of $150,000 required by the contract for dismissal without cause. The court, following McIntyre J. in Vorvis, found the tort of deceit with respect to the false allegations. Dixon had been persuaded to give up secure senior management position, and it was foreseeable that early termination, even with notice, would cause him severe mental distress. He was awarded aggravated damages of $50,000 for malicious conduct which caused humiliation and frustration, and punitive damages of $75,000. In Russell v. Nova Scotia Power Incorporated (1996), 1996 CanLII 5438 (NS SC), 150 N.S.R. (2d) 271 (S.C.) systems officer with good work record was dismissed without notice on false allegations of incompetence and insubordination. His dismissal was announced by an E-mail message to supervisors and their staffs over the company's computer network. The trial judge awarded twelve months' salary in lieu of notice and $40,000 for mental distress, dismissing claim for defamation which he held to be included in the mental distress award. In Backman v. Hyundai (1990), 1990 CanLII 4087 (NS SC), 100 N.S.R. (2d) 24 (S.C.) Davison J. considered both approaches in Vorvis in dismissing claims for mental distress and punitive damages. Regardless of which test use, conclude the plaintiff is not entitled to aggravated damages. None of the actions of the defendant would give rise to an independent action and any loss is properly compensated by the damages awarded for failure to give notice. Furthermore, there was no circumstances in this case which would have rendered mental suffering foreseeable at the time the employment contract was made. Although the plaintiff and his former wife would have the court isolate the cause of mental suffering to the dismissal, am not at all convinced that major factor in the stress suffered by Backman did not result directly from the criminal charges and the financial circumstances in which he found himself as result of not being in position to find other employment as quickly as if the cloud of suspicion was not hovering over his head. The Jury Question In Nova Scotia the general rule under s. 34 of the Judicature Act R.S.N.S. 1989, c. 240 is that in cases involving issues either of law or equity parties are entitled to demand jury trial by notice, which judge may overturn on application. In Ontario the general rule under s. 59 of the Judicature Act R.S.O. 1980, c. 223 is that all issues of fact shall be tried and all damagers assessed by the judge without the intervention of jury. Except in matters of equity jury notice may be given by party, but the judge has discretion to dispense with the jury of his or her own motion. In both jurisdictions judge also has discretion independent of the jury notice to direct that issues of fact be tried or damages assessed by jury. The appellant has cited line cases from Ontario which hold that the question of mental distress in wrongful dismissal cases is too difficult to leave with jury. These cases begin with Fulton v. Town of For Erie (1982), 1982 CanLII 2121 (ON SC), 40 O.R. (2d) 235 (Ont. H.C.J.) and include MacDougall v,. Midland Doherty Limited (1984), C.C.E.L. 28 (Ont. H.C.J.); Stadler v. National Bank of Canada (1984), 23 A.C.W.S. (2d) 483 (Ont. H.C.J.); Saraga v. Wellington County Board of Education (1985), 1995 CanLII 7280 (ON SC), 11 C.C.E.L. (2d) 317 (Ont.Ct. Gen. Div.). The appellant submits: It is submitted that, having regard to the complexity of the issue and the inconsistent approach of the Courts even subsequent to Vorvis, the Fulton Line of Cases holding that trial by jury is inappropriate with regard to mental distress is still valid. Given the two approaches in Vorvis, the law as to damages for mental distress in wrongful dismissal cases is not free of difficulty, but in my view it is not so complex that it cannot be explained to and understood by jury. It was not an improper exercise of the trial judge's discretion to leave the matter with the jury and would dismiss this ground of appeal. The Jury Charge Foreseeability The second ground of appeal is whether the trial judge erred in mischarging the Jury on the question of foreseeability. The appellant does not take issue with any other aspect of the contents of the jury charge. In the course of his charge to the jury the trial judge said: can tell you, as matter of law, that because of the nature of the employment in this case, it was foreseeable and must have been in the contemplation or mind of the parties in this case that mental distress could result from dismissal without notice. It is not only matter of law but matter of common sense that in this case or any other mental distress could result from dismissal, with or without notice; it could hardly be otherwise as long as human beings have feelings. The jury's concern was not whether mental distress occurred, but how much there was of it. Was it present in the normal degree that parties contemplate when they enter an employment contract, or were there elements that increased it beyond what could be compensated for by ordinary notice. To read the impugned sentence in context it is necessary to repeat verbatim several of the paragraphs that precede and follow it. The judge deliberately broke his charge into two portions, general principles on one afternoon and more specific concerns on the following morning. In the second portion of his charge he discussed the difference between dismissal for cause and dismissal upon notice, explaining that Healthvision was not relying on any cause to justify the termination of Colleen Killorn without notice. He dealt with mitigation, then moved on: will now turn to question number two. Question number two is, Has the plaintiff, Colleen Killorn, established that she suffered mental distress as result of conduct arising out of the dismissal by the defendant, HealthVision, other than the dismissal itself, which would warrant or require the awarding of additional damages to the plaintiff for mental distress? Here you're required to give an answer which would be ""yes"" or ""no"" and if it is yes the you're asked to briefly write paragraph briefly describing conduct on which you base your decision. Now will explain to you the law on mental distress. In certain cases Court can order or award what are commonly known as aggravated damages. These are damages in addition to the pay or income that would be payable to the plaintiff, Colleen Killorn, during any reasonable period of notice which you decide in question number one. This is in addition to that. In this case the plaintiff, Colleen Killorn, is asking you to award her a sum of money to compensate her for the mental distress and the effect on her and her family life which she claims she suffered as a result of the conduct of the defendant, HealthVision Corporation, in the manner in which she was dismissed. should point out that aggravated damages for mental distress are not routinely awarded in cases of unlawful termination of employment. This is because there is usually some element of mental distress when person loses their job. However, if the conduct of the employer, in this case, HealthVision, this is important, other than the mere fact of the dismissal itself, that is, if the dismissal is carried out in an unjustified, callous, sudden and inconsiderate manner, such conduct may give rise to damages for mental distress. The conduct complained of must be surrounding the manner of the dismissal not merely the fact that dismissal without notice occurred. can tell you, as matter of law, that because of the nature of the employment in this case, it was foreseeable and must have been in the contemplation or mind of the parties in this case that mental distress could result from dismissal without notice. In this case, you should consider the manner in which the dismissal was carried out and not the actions of Mr. Wilson, which occurred at the seminars prior to the dismissal. Colleen Killorn relies on the fact she was allegedly dismissed because HealthVision was not satisfied with number of aspects of her performance, but she was never told so by way of verbal or written notice. If that was HealthVision's intention, they would normally have been required to advise her of this fact so that she could have reasonable opportunity to address any problems or concerns, as mentioned previously. Colleen Killorn also relies on the fact that the company handbook set out procedure for termination and that it was not followed. She also relies on the fact that all of her records, including her file notes, were all taken from her and not provided to her for review. She was not given notice sorry, she was not given reason for her dismissal. She relies on this fact as well. It is Colleen Killorn\'s contention that this amounts to callous, offensive, sudden, humiliating and inconsiderate conduct which caused her mental distress in addition to the dismissal itself. Colleen Killorn and others have testified how this affected her. The burden or onus of proving on the preponderance of the evidence that this alleged conduct of Healthvision was unjustified and that this conduct caused her mental distress is or rests upon Colleen Killorn. In addition to her own testimony she relies on the testimony of Dr. Davey, her husband and friend, who you heard testify, as to her demeanour and her behaviour around this time. She relies on this evidence to establish and prove mental distress. Colleen Killorn, therefore, has to prove three things with regard to question number two. The first that she did, in fact, suffer mental distress; second, that the mental distress which she alleges she suffered was caused by HealthVision's conduct in the manner in which she was dismissed; and third, that the conduct complained of warrants or justifies the awarding of damages for mental distress. The trial judge was obviously at pains to create clear distinction in the minds of the jury between the mental distress that arises from dismissal without notice and the mental distress which was caused by the employer's conduct in the manner in which she was dismissed. That is essentially the Vorvis distinction between the mental distress contemplated by the parties at the formation of the contract of employment, which is compensated for by adequate notice, and the additional mental distress that occurs when the employer's conduct is independently actionable or so unnecessarily harsh and callous that mental distress unforeseeable and unprovided for at the formation of the contract becomes factor with foreseeable results. In its proper context the trial judge's reference to the foreseeability of mental distress as matter of law was related to mental distress resulting from dismissal without notice, and not the additional mental distress which the jury had to find to justify an award for mental distress as aggravated damages. In my view the impugned sentence does not amount to misdirection which caused the jury to proceed upon an improper principle. would dismiss the second ground of appeal. The Jury's Assessment of the Evidence The appellant submits that the jury erred in assessing the evidence, and raises the following questions: Whether the answers of the jury were generally unreasonable, unjust, perverse and contrary to law and evidence. Whether the answers of the jury were not such as could have been given by reasonable persons in the circumstances. Whether the jury made palpable and overriding error in assessing the evidence of the conduct of the Defendant as there was insufficient material evidence to support the answers of the jury; Whether the jury erred in law in finding that the ""conduct"" of the Defendant caused or contributed to the mental distress complained of by the Plaintiff. While the jury's focus was properly on the termination itself, its effects can only be understood in the context of the events that began in February, 1993, when it became clear that Healthvision was to be the successful contender for the P.E.I. contract. Ms. Killorn anticipated, not unreasonably, that she was entitled to the $90,000 commission. She understandably saw the proposed new compensation scheme, which she received in March, as move to thwart her expectations. When the employment contract was entered into it was within the contemplation of both parties that any changes in terms would be negotiable. The sales compensation plan provides: On the anniversary date of April each year, terms of the plan may be renegotiated by either HCS or the account manager. When Ms. Killorn was presented with revised plan without opportunity for negotiation, it was foreseeable by the employer that she would suffer mental distress. It was foreseeable as well that her distress and frustration would be exacerbated when she was denied even an explanation, and the company effectively ceased to communicate with her. It was during this period that her doctor diagnosed depression and placed her on medication. The pattern continued at the sales conference in British Columbia when Mr. Wilson was agitated with her and refused to discuss her concerns, leaving her so upset she sought stress leave. As well, the letter to her customers without her knowledge would be foreseeably upsetting. The company continued its lack of openness and honesty with Ms. Killorn by pretending that Lucy McKiernan was visiting her for an audit instead of to dismiss her. In my view the letter of dismissal cannot be isolated from the notice of revised sales compensation plan nor the intervening events; they are all part of the same pattern or transaction which culminated in dismissal with inadequate notice. It was foreseeable that Ms. Killorn might be diagnosed as clinically depressed in May because of the way the company began treating her in March. Against that background the company must have been aware that to fire Ms. Killorn soon after she returned from stress leave would cause her extraordinary mental distress. The jury was properly instructed. There was evidence before it. In my view the answers of the Jury were not unreasonable, unjust, perverse, or contrary to law and evidence. They could have been given by reasonable persons in the circumstances. In my view the jury made no palpable and overriding error, there was evidence to support its answers, and there was no ""error in law"" on the part of the jury in finding the conduct of the appellant caused or contributed to the mental distress complained of by the respondent. The conduct of the company, in fact, was so insensitive that it seemed deliberately calculated to increase Ms. Killorn's mental distress. The jury was not asked to identify tort committed by the appellant, but in my view when party's negligent or deliberate acts cause harm to another that is both foreseeable and avoidable, any requirement for an independent actionable wrong referred to in McIntyre J.'s analysis in Vorvis is satisfied. The appellant's conduct toward the respondent in this case caused degree of mental distress on termination well beyond what would have been anticipated by the parties when they entered into the contract, that is, well beyond what adequate notice could be expected to remedy. It was the conduct of the employer, the protracted and painful termination process that was not predictable, not the mental stress. In my view the jury was entitled to find, and did that the long freezing-out process which ended with the letter of dismissal was so negligently hurtful to Ms. Killorn as to be an independently actionable wrong. Applying the approach of the Vorvis minority, it was foreseeable that if Ms. Killorn was dismissed in such manner, she would suffer mentally and emotionally. In Vorvis the plaintiff was not entitled to damages for mental distress because there was nothing in the dismissal itself which was more painful or distressing than the parties would have contemplated at the formation of the contract, and no independently actionable wrong. The conduct of the supervisor of which Vorvis complained preceded the dismissal and was distinct from it, not enmeshed with it. The nexus was not established. What distinguishes the present appeal from the facts in Vorvis, and many of the other wrongful dismissal cases in which claims for mental suffering were not established, is that Ms. Killorn's dismissal was process extended over several months and not single, clear-cut and decisive act. There was evidence from which the jury could have concluded that the nexus linking the events was the company's concern with ensuring that Ms. Killorn did not receive $90,000 commission from the P.E.I. contract. The process that ended in her dismissal became visible to her in March, 1993, when she was advised that her sales compensation plan had been unilaterally altered by the company. Up to the time she received the notice of the intended change in her contract it was not unreasonable for her to have anticipated receiving the commission. She had been told nothing to the contrary. The company's deceitful conduct toward her had, however, actually begun much earlier when, without her knowledge, the Prince Edward Island contract was taken from her and added to Mr. Wlson's responsibilities. It was the altered sales compensation plan that first put Ms. Killorn on notice that her status was changing, or had changed. That was the objective act which began the termination process, and its unsevered nexus with the actual notice of dismissal was clear from the evidence. It threw her legal relationship with her employer into doubt. She had no way of knowing how the company viewed her refusal to accept it, nor whether the company's refusal to negotiate or to inform her affected its validity. Was she governed by the old contract, the new contract, or none at all? The company still continued to recognize her as an employee, but refused to communicate with her about her status. She was ostracized by her superiors. The actual notice of dismissal on Ms. Killorn's return from stress leave in July was almost an anti-climax: Ms. Killorn had been broken by the process leading up to it. After more than three months in limbo of uncertainty she was in state of clinical depression, medicated and under doctor's care. This was foreseeable. It was equally foreseeable that if the termination process had not been protracted from March until July, Ms. McKiernan could have delivered notice of dismissal to healthy individual without entitlement to damages for mental suffering. It is to be noted that the medical evidence relates to the period of the extended termination process, not to the period following the actual dismissal when Ms. Killorn's symptoms might be said to be more foreseeable result of dismissal within contemplated norms. It is her own evidence and that of her husband that shows her depression was continuing at her trial. The jury was entitled to characterize the company's conduct toward Ms. Killorn in the circumstances of her drawn-out dismissal as high-handed and callous; that was rational conclusion from the evidence. would dismiss the grounds of appeal based on allegations the jury erred in finding that Ms. Killorn was entitled to damages for mental distress. Once such finding is made the issue becomes one of quantification of damages. Damages The appellant asks Whether the jury's assessment of damages for mental distress was inordinately and disproportionately high. The appellant reviewed thirteen Nova Scotia wrongful dismissal cases since 1980 and found that eight of them awarded nothing for mental distress because the standard for proving entitlement to damages for mental distress had not been met. Of the five cases in which damages were awarded, only two were for more than token amount of less than $1,000. In McOnie v. River Pub Limited and Rohfie (1987), 79 N.S.R. (2d) 379(S.C.) the plaintiff was awarded $6,500 for mental distress. He had left seven-year job and had been working for the defendants less than year. He testified he was humiliated and devastated, had trouble adjusting, gained weight and became reclusive and depressed. In Russell, discussed above, the award was $40,000. In the present case the award is proportionate to the loss of the P.E.I. commission, which was anticipated but not yet earned or payable at the time of termination. The award was not to compensate for lost commissions but for mental distress. Lost commissions are an aid in quantifying mental distress in cases such as the present one, but one-to-one correlation cannot be expected. The applicable principle consistently followed by this court was restated by McIntyre J. writing for the Supreme Court of Canada in Woelk v. Halvorson, (1980] 1980 CanLII 17 (SCC), S.C.R. 430 at pp. 435-6: It is well settled that Court of Appeal should not alter damage award made at trial merely because, on its view of the evidence, it would have come to different conclusion. It is only where Court of Appeal comes to the conclusion that there was no evidence upon which trial judge could have reached this conclusion, or where he proceeded upon mistaken or wrong principle, or where the result reached at the trial was wholly erroneous, that Court of Appeal is entitled to intervene. The well-known passage from the judgment of Viscount Simon in Nance v. British Columbia Electric Railway, 1951 CanLII 374 (UK JCPC), [1951] A.C.601 at p. 613 approved and applied in this court in Andrews v. Grand Toy Alberta Ltd. 1978 CanLII (SCC), [1978] S.C.R. 229, provides ample authority for this proposition. He said: Whether the assessment of damages be by judge or jury, the appellate court is not justified in substituting figure of its own for that awarded below simply because it would have awarded different figure if it had tried the case at first instance. Even if the tribunal of first instance was judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage. would dismiss the appeal from the jury's assessment of damages, and dismiss the appeal on all grounds with costs to the respondent which would fix at $4,000, or 40 per cent of the costs at trial, rounded, plus disbursements. The respondent brought cross-appeal which was abandoned prior to the hearing. would allow costs on the cross appeal of $1,000 to the appellant to be deducted from the costs payable to the respondent, leaving net amount of $3,000 plus disbursements. Freeman, J.A. HALLETT, J.A.: have read Justice Freeman's decision and, with respect, cannot agree that the appeal should be dismissed. On the facts of this case the question of aggravated damages for mental distress ought not to have been left to the jury or, alternatively, if properly left to the jury, ought not to have been left in the manner it was. Secondly, the award of $60,000 for mental distress is inordinantly high and should be set aside. Facts In 1988 the appellant began sales efforts to sell the Prince Edward Island Health Services Commission (the Commission), an integrated health information system. The sale had potential value of $3M. The respondent, Ms. Killorn, was hired on November 9th, 1989. The letter from the president of the appellant company stated in part: ""This letter confirms our offer of employment to you as an Account Manager based in Halifax. The compensation for this position will be based on the attached compensation plan: pay periods are the fifteenth and the last day of each month...... We understand you will be available to commence work with the Company on November 9, 1989. We look forward to your acceptance of this offer."" The compensation plan, referred to in the letter, which she accepted, provided for the following: ""1. Compensation Compensation shall be comprised of base salary of $40,000. per annum plus commission. The commission will be calculated as follows: 5% of application software license revenue 5% of gross hardware margin (new accounts) 2% of gross hardware margin (existing accounts) Payment: The base salary will be paid semi-monthly. Commission will be deemed earned when the customer has paid HCS. 3. Sales Territory: HCS reserves the right to alter the sales territory of the account manager. Initially, it will consist of the four Atlantic provinces. 4. Term of Plan: This plan is deemed to take effect on November 9, 1989 and continue until March 31, 1990. Thereafter it will automatically renew on an annual basis. On the anniversary date of April each year, terms of the plan may be renegotiated by either HCS or the account manager. 5. Termination of Employment: Should the account manager leave the employment of HCS for whatever reason, the commissions payable will be limited to those earned within 90 days after the termination. HCS and the Account Manager hereby agree to the terms and conditions of this compensation plan: HCS Health Care Systems, Inc. Account Manager"" {emphasis added} In summary, her annual salary was $40,000; she would be entitled to commission of 5% of application software license revenue and 5% of the gross hardware margin on new accounts. The potential sale to the Commission involved both the hardware and software components; her commission, if earned, would have been in the $90,000 range. The evidence showed that Ms. Killorn had minimal involvement in developing the sale to the Commission. Mr. Brand testified that no sales representative has an exclusive territory. This is consistent with the terms of employment as set out in the 1989 contract. The development of an information system for customer involves great deal of technical expertise which function is beyond the capability of sales representatives. This work is done at the head office of the appellant. However, the potential sale was in Ms. Killorn's territory. Although the contract is not clear, one could infer that she would be entitled to commissions on all sales in her territory pursuant to the terms of the 1989 contract. However, the commissions would not be earned until the customer paid. On March 16th, 1993, the appellant forwarded revised compensation plan for her signature. She did not sign it prior to her dismissal. Under that proposed contract she would be entitled to commissions on sales in her territory to assigned customers. It is not at all clear that the 1989 contract would have applied at the date of her dismissal on July 12th, 1993, as its terms may have been terminated on the anniversary date of April 1st. However, the trial seemed to proceed on the basis that the original employment contract was still in force but again that is not at all clear as the question, although touched on by the Court and counsel during the trial, was not resolved before the jurors were asked to answer the questions put to the them. In discussions between counsel and the trial judge, subsequent to the jury's verdict, it becomes clear that the trial judge must have taken the view, and his instructions to the jury would be consistent with this conclusion, that the contract between Ms. Killorn and the appellant at the time of her dismissal was one of indefinite duration and that the terms of that contract would be as contained in the 1989 contract. The jury was never told by the trial judge what contract was in effect. Whether or not the trial judge was correct in his assessment as to the contractual situation between the parties is not an issue raised on the appeal. What is relevant is the fact that the trial judge gave no instruction to the jury as to what the contractual terms were that bound the parties at the time of dismissal so as to enable the jury to properly assess the conduct of the appellant which is relevant to the issue of aggravated damages for mental distress. History of Relevant Events Mr. Brand, the appellant's vice-president of finance and administration, testified that Ms. Killorn fell short of her sales goals in both 1990 and 1991. Ms. Killorn acknowledged under cross-examination that she did not reach her planned sales goals in 1990, 1991 or 1992. Michelle LaVigne, friend of Ms. Killorn, testified that, as early as 1992, Ms. Killorn began showing signs of stress. Apparently Ms. Killorn found dealing with Mr. David Wilson, the appellant's vice-president of marketing and sales for Canada, stressful. On February 17th, 1993, Ms. Killorn consulted her doctor. Ms. LaVigne testified that Ms. Killorn was having problem with her weight. Dr. Davey's notes indicate that she had thyroid problem. There is nothing in his notes with respect to that visit that would indicate she consulted him with respect to stress. On February 26th, 1993, the Committee that had been appointed by the Commission to evaluate the proposals that had been received from different suppliers of information systems recommended to the Commission that negotiations proceed with the appellant and that if terms could not be reached the Committee recommended that the Commission negotiate with the second best supplier, Hewlett Packard. On March 16th, 1993, Mr. Brand and Mr. Wilson wrote Ms. Killorn forwarding the new compensation package. The letter and the package are reproduced as follows: ""Dear Colleen: The Corporation has revised its Sales Compensation Plan for Sales Representatives and we are very pleased to make you new offer of employment based on revised and improved commission and bonus structure. This offer is effective April 1, 1993 and supersedes all previous agreements in place both written and oral. Details of the offer are outlined on the attached Sales Compensation Agreement. Your benefits package and vacation entitlement remain unchanged. Any profit share distribution will be reduced by the value of any and all commissions and bonuses paid to you. If you have signed the Corporation's revised Confidentiality and Non-competition Agreement, the terms apply equally to this new agreement. If you have not signed the previously-mentioned agreement, then your signature is required on this document as well as part of your acceptance of these new terms of employment. Please review the attached document(s) and, if you are in agreement, sign and return to Lucie McKiernan. Yours truly, Bob Brand David Wilson Vice President Vice President Finance and Administration Marketing and Sales"" The sales compensation agreement attached to the letter was in the following form: ""Health VISION CORPORATION SALES REPRESENTATIVE SALES COMPENSATION AGREEMENT SALES REPRESENTATIVE: COLLEEN KILLORN BASE SALARY: $40,000.00 per annum, paid semi-monthly. COMMISSION: 4% on licences from assigned customers will be given on Corporation software licenses, net margin on third party software and net margin on hardware sales. Commission will be accrued when revenue is recognized under the Corporation's revenue recognition policy; however, commission will only become payable, on pro-rata basis, as and when the Corporation receives payment from the client. Refundable draws against commission will be given at the sole discretion of Finance based on accrued commissions and on demonstrated client prospects. CASH BONUS: On or about the first of each year, annual and quarterly revenue targets will be established for each Sales Representative. On year to date basis as at March 31, June 30, September 30, and December 31, if the Sales Representative has reached or exceeded the target for that date, then cash bonus of $2,000.00 will be paid. If, at December 31, the Sales Representative has reached or exceeded the annual target, further cash bonus of $10,000.00 will be paid. If, at December 31, the Sales Representative has reached or exceeded the annual target by 125% further cash bonus of $10,000.00 will be paid. If, at December 31, the Sales Representative has reached or exceeded the annual target by 150% further cash bonus of $15,000.00 will be paid. Bonus is paid in addition to the base salary and commission. TERRITORY: The Corporation reserves the right to alter the sales territory of the Sales Representative from time to time. AGREEMENT: This Agreement is deemed to take effect on April 1, 1993 and continue for one year. Thereafter, it will automatically renew on an annual basis. On the anniversary date of each year, terms of the plan my be renegotiated by either the Corporation or the Sales Representative. TERMINATION OF EMPLOYMENT: Should the Sales Representative leave the employment of the Corporation for whatever reason, the commissions payable will be limited to those orders received prior to termination and deemed earned within 30 days after the date of termination."" {Emphasis added} There is no evidence as to what is meant by the term ""assigned"" customers; this is different from the original agreement. There is no evidence as to what the appellant meant by the concept that commissions will be payable on pro rata basis. would infer it meant that commissions would be shared with others under the new arrangement but there is no criteria as to how the commissions would be shared. Mr. Brand testified that on balance the new compensation agreement was an improvement over the original agreement because, although commissions were reduced from 5% to 4%, nevertheless, the sales representatives would be getting 4% on sales to all customers new or existing. Under the 1989 contract form they were only entitled to 2% on sales to existing customers. Furthermore, there was no provision for bonus incentives under the 1989 contract. Mr. Brand testified that the compensation package sent to Ms. Killorn was the same as that sent to the other five Canadian sales representatives. Ms. Killorn did not sign this agreement; the others did. In the months that followed she sought clarification from Mr. Wilson respecting the terms of the new compensation plan. She testified that the day she received the new compensation package she telephoned Mr. Wlson. She testified that Mr. Wilson told her that the P.E.I. contract was his target for bonus purposes and that she did not have the experience to close the P.E.I. deal. He also told her that the commission on the P.E.I. contract was to be split. She testified that she felt crushed, betrayed and ripped off. Ms. Killorn testified that in March, 1993, after her conversation with Mr. Wilson, she sought medical advice. However, it would appear from Dr. Davey's notes that she first contacted him with respect to depression on May 14th. Ms. Killorn may have been mistaken in the date. Ms. Killorn wrote Mr. Wilson on April 2nd, 1993, as follows: ""As per my request to you earlier this week, there are few points in the new sales compensation agreement that would like clarified. 1. What is my defined territory in this new agreement? 2. What are my annual and quarterly targets for bonus purposes? 3. Are the targets established on written or paid business for bonus purposes? 4. When does the new compensation plan kick in, example: If an order was received prior to April 2, 1993 and only 1/2 of the contract has been paid by the customer, in which the sales person received 5% commission in their original employment agreement, which commission structure will apply for the second 1/2 of the payment from the customer? 5. What compensation will be given in the event that my territory is altered, (reduced)? 6. What percentage of the P.E.I. contract will be used toward my projected targets? 7. What percentage of commission will be paid to me on the P.E.I. contract? What percentage will be paid to others on this contract? It is my understanding that the contract is forthcoming, that the announcement has been made publicly that we are the successful vendor and that they (P.E.I.) are now putting together management team to negotiate the contract with us. Will be taking part in the contract negotiations? ask that written response be sent to me."" There was an indication Ms. Killorn had consulted lawyer in this period. There was no response from Mr. Wilson. Subsequent to writing this memo she met with Mr. Wilson at company meeting in Toronto and Mr. Wilson told her that the P.E.I. commission would be split. On May 2nd, 1993, she faxed to Mr. Wilson the same request as forwarded on April 2nd, 1993. The only response from Mr. Wilson was the following memo to Ms. Killorn dated May 11th, 1993: ""The following are your sales goals for FY '93. You should note that revenue recognition is as follows: New HCS Software Module Sales 80% of selling price counts toward your goal, Software Installs 20% of selling price once the site goes ""live"", Hardware 100% counted on the ship date. Yours goals are: HCS Software: 1,000K HCS Hardware: 700K Plus P.E.I.deal."" It would appear from review of this memo that Mr. Wilson only addressed questions and 6, set out in her written memo to him. In particular, there was no response from Mr. Wilson with respect to the questions raised in Item (her inquiry with respect to the commission on the P.E.I. contract). What share would be hers is unknown but one might infer that it was still assigned to her as it was part of her target. However, Mr. Brand's evidence would indicate that the P.E.I. contract had been assigned to Mr. Wlson in 1992. Ms. Killorn testified that this fact had not been communicated to her. On May 14, 1993, Ms. Killorn consulted her family doctor, Dr. Davey. He diagnosed depression. He prescribed an anti-depressant drug, Zoloft; his notes show that he was to recheck her in two weeks. Ms. Killorn testified that her income was critical to her family's well-being as her husband's new business was not doing well. Ms. Killorn had 15 year old daughter. On May 28th, 1993, Dr. Davey again saw Ms. Killorn. His notes indicate that she was still suffering from depression; he continued the Zoloft and he noted that he would recheck in further two weeks. On June 7th, 1993, Ms. Killorn attended sales retreat in Victoria, British Columbia. Ms. Killorn testified that she again sought clarification from Mr. Wilson on the commission structure. She testified he became agitated with her and would not address her concerns. She also testified that he interrupted and criticized presentation of hers to the sales group and that she found this humiliating and very stressful. She left the meeting. Mr. Brand was at that meeting; he testified that the sales representatives' presentations are constantly interrupted by management as they must know, for planning purposes, how close sales are to closing. Mr. Wilson was present during the trial but did not testify. On June 7th Dr. Davey received long distance call from either Ms. Killorn or her husband or both and on the same date he wrote ""To Whom it May Concern"" letter to the appellant as follows: ""RE: Colleen Killorn Mrs. Killorn is under my care and will require time off work due to medical reasons. expect period of between four and eight weeks off work and then she should return to her normal duties. If you require further information please do not hesitate to contact me."" On June 7th Ms. Killorn told the appellants, by way of voice message left for Mr. Wilson, that they were not to contact her and that she was off for minimum of six weeks. She immediately left Vancouver and returned home. Mr. Brand testified that Ms. Killorn left the company in an impossible situation. The appellant's technical staff had slated demonstration in Nova Scotia; they had no information as to who to contact as Ms. Killorn did not leave any information. Ms. Killorn simply told the appellant's management that they were not to contact her. The appellant wrote to customers in Ms. Killorn's territory that she was off on sick leave and that Mr. Dewar would look after the accounts. Mr. Brand testified that in mid-June 1993 the appellant decided to terminate Ms. Killorn after concluding that she was not able to handle the job considering, in particular, her poor sales results. This was change of opinion as to her ability from that which existed on March 16th, 1993, when Mr. Brand forwarded the new compensation package and stated how pleased he was to do so. The appellant did not wish to terminate her while she was on sick leave or to advise her of termination other than in personal meeting. The decision was made that once Ms. Killorn returned from sick leave representative of the appellant from the Vancouver office would travel to Halifax and advise her of the dismissal and at the same time do physical audit of the Halifax office. On July 6th, 1993, Ms. Killorn again saw Dr. Davey (she had not kept an appointment for June 16th). Dr. Davey's file notes state that she was still depressed but feeling better because she had been off work for three weeks. The Zoloft was still causing headaches. The plan was to discontinue the Zoloft and she intended to return to work. On July 9th, 1993, Ms. Killorn returned to work and so advised the appellant. On July 12th Ms. McKiernan, the Director of Administration of the appellant's Vancouver office, arrived in Halifax. Ms. Killorn had been told that the purpose of the visit was to do the physical audit. When she met with Ms. Killorn, Ms. McKiernan delivered letter from the president terminating her employment. An offer of severance pay in the amount of $14,000 was made. This offer was rejected. The termination letter stated that all outstanding commissions had been paid and final cheque and details were enclosed. On July 13th, 1993, Mr. Wayne Hooper, the Chairperson of the Committee, appointed by the Commission, to look into the merits of the Commission acquiring an information system wrote Mr. Wilson as follows: ""This is to confirm our intent to finalize ongoing negotiations with the objective of purchasing the hardware and software as proposed for Phase in the HealthVISION Corporation's RFP response dated January 9, 1992 at total cost of approximately $2,777,281.00*. This purchase is subject to the approval of the final contract by the PEI Government. Yours truly, Wayne Hooper CHAIRPERSON IHIS Joint Management Team WH/jf This price includes all hardware and software as outlined in the latest revision of the proposal. These amounts may change after we have finalized the hardware configurations."" In late November 1993, after extensive negotiations, the Commission signed the contract to purchase the system from the appellant. Justice Freeman has reviewed the evidence of Ms. Killorn, her husband and her friend, Michelle LaVigne, with respect to the mental distress of Ms. Killorn in the spring of 1993 and subsequent to her dismissal. In summary her husband testified that after she was dismissed she became even more depressed. Ms. Killorn testified that she was still on medication when the action was tried; there was no medical evidence to confirm this. Mr. Wayne Hooper testified that there was not lot of contact with Ms. Killorn as the Committee was basically dealing with Dave Wilson from Vancouver. He testified that the Committee had hired consultants and had asked that the potential suppliers were to deal with the Committee's consultant because of the complexity of the deal. The Committee's consultants dealt with the appellant's head office. Mr. Hooper testified that he could not recall being at any meetings or having dealings with Ms. Killorn after June of 1992. Mr. Hooper testified that in December of 1992 the Committee had decided that another supplier was their preferred supplier but that in January of 1993 they changed their mind and the Committee advised the appellant that they were the preferred supplier. He testified that hundreds and hundreds of hours were spent negotiating the terms of the contract following their decision that the appellant would be the preferred supplier and these negotiations were primarily with Dave Wilson. He testified that as of July 12th, 1993, (the date Ms. Killorn was terminated) there was no commitment to sign contract with the appellant. Disposition re: First Ground of Appeal In my opinion, the issue of aggravated damages for mental distress ought not to have been left to the jury. In Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085 McIntyre J., writing for the majority, reviewed the long established law as enunciated in Addis v. Gramophone Co., [1909] A.C. 488 and Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), [1966] S.C.R. 673, aff’g (1965), 1965 CanLII 540 (BC CA), 56 D,L.R. (2d) 117. Those cases held that damages in wrongful dismissal cases are limited to the earnings lost during the period of notice to which the employee is entitled and cannot include damages for the manner of dismissal. McIntyre, J. then noted that the case law subsequent to the Supreme Court of Canada decision in Peso Silver Mines, had been inconsistent. After considering number of those cases, he concluded at p. 1103: ""(21) From the foregoing authorities, would conclude that while aggravated damages may be awarded in actions for breach of contract in appropriate cases, this is not case where they should be given. The rule long established in the Addis and Peso Silver Mines cases has generally been applied to deny such damages, and the employer/employee relationship (in the absence of collective agreements which involve consideration of the modern labour law régime) has always been one where either party could terminate the contract of employment by due notice, and therefore the only damage could arise would result from failure to give such notice. (22) would not wish to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable, factor not present here. As noted by Hinkson J.A. in the Court of Appeal, at p. 46: It was not suggested by the plaintiff that Reid's actions in the months prior to his termination constituted breach of contract. Upon the basis of the reasoning in the Brown case, Reid's conduct was not separate head of damages in the claim for breach of contract. His reference to the Brown case was to the words of Weatherston J.A. in Brown v. Waterloo Regional Board of Commissioners of Police, supra, p. 736, speaking for the Court, he said: If course of conduct by one party causes loss or injury to another, but is not actionable, that course of conduct may not be separate head of damages in claim in respect of an actionable wrong. Damages, to be recoverable, must flow from an actionable wrong. It is not sufficient that course of conduct, not in itself actionable, be somehow related to an actionable course of conduct. (23) Furthermore, while the conduct complained of, that of Reid, was offensive and unjustified, any injury it may have caused the appellant cannot be said to have arisen out of the dismissal itself. The conduct complained of preceded the wrongful dismissal and therefore cannot be said to have aggravated the damage incurred as result of the dismissal. Accordingly, would refuse any claim for aggravated damages in respect of the wrongful dismissal."" The essence of his judgment is that, as general rule of longstanding, the only damages that can be awarded in wrongful dismissal suit are those relating to failure to give notice. McIntyre J., by his comments in paragraph 22, did leave the door open crack whereby the scope of claim for damages in wrongful dismissal suit might include claim for damages for mental distress but the only basis for such an extension that was identified by McIntyre J. was if there existed an independent actionable act to found such claim and that such an act is separate and apart from the acts giving rise to the claim for breach of the contract of employment. The inconsiderate conduct of Mr. Wlson towards Ms. Killorn, and the conduct of the appellant in terminating her without warning or reasons, does not give rise to an independent actionable wrong such as found in certain cases where the employer's conduct was defamatory of the employee. The alleged suddenness and callousness of the termination was the evidence relied upon at trial as founding the claim for damages for mental distress. The evidence was not significantly different from that in the Vorvis case. In Vorvis, both the majority and the minority judgments concluded the evidence did not warrant an award of damages for mental distress. The trial judge ought to have instructed himself in accordance with the general rule adopted by the majority of the Supreme Court of Canada in Vorvis that damages in cases of wrongful dismissal are limited to damages arising from failure to give the required notice unless there is, in addition, separate actionable wrong upon which claim for damages for mental distress can be founded. Damages for mental distress can only be awarded if there is separate actionable wrong out of which the mental distress claim flows; no such wrong was identified at trial. Therefore, the trial judge ought not to have left the issue of aggravated damages for mental distress to the jury as the manner in which the dismissal was carried out (absent conduct that would give rise to an independent actionable wrong) cannot give rise to claim for mental distress damages which would be in addition to an award for damages based on the requirement to give reasonable notice of termination. Since preparing these reasons, the decision of the Manitoba Court of Appeal in Wallace v. United Grain Growers Ltd., 1995 CanLII 6262 (MB CA), [1995] W.W.R. 153 has come to my attention. The following comments by Scott, C.J.M. at p. 181 are consistent with my view of the law respecting damages for mental distress in wrongful dismissal suit: ""Thus any award of damages over the above compensation for breach of contract in failing to give reasonable notice must be founded on separately actionable course of conduct. This conclusion explains the absence in the reasons of McIntyre J. to any reference to the concepts of foreseeability, the rule in Hadley v. Baxendale or whether mental suffering would have been in the reasonable contemplation of the parties at the time the employment contract was entered into. This is all negated by the requirement that there be an independent wrong. In fact, this was the point of departure for Wilson J. in her minority judgment in Vorvis in which she would have awarded damages for mental distress [p. 1119] ""when it can be said to have been in the reasonable contemplation of the parties when the contract was made that its breach would cause such distress."" Decisions such as Pilon v. Peugeot Canada Ltd. (1980), 1980 CanLII 1631 (ON SC), 29 O.R. (2d) 711 (H.C.), Speck v. Greater Niagara General Hospital, supra, Backman v. Hyundai Auto Canada Inc. (1990), 1990 CanLII 4087 (NS SC), 100 N.S.R. (2d) 24 (T.D.), and Swain v. Northern Fortress Ltd. (1993), 1993 CanLII 6571 (NB QB), 131 N.B.R. (2d) 342 (Q.B.), and Ribeiro v. Canadian Imperial Bank of Commerce (1989), 1989 CanLII 4281 (ON SC), 67 O.R. (2d) 385, varied (1992), 1992 CanLII 7447 (ON CA), 13 O.R. (3d) 278 (C.A.) (leave to appeal to S.C.C. denied 157 N.R. 400), which utilized the ""foreseeability approach"" to award damages for mental distress consequent upon wrongful dismissal are, in my opinion, no longer persuasive. few trial decisions have taken the position that it is still permissible to award damages for mental distress where the acts complained of were not independently actionable: Taylor v. Gill (1991), 113 A.R. 38 [1991 CanLII 5817 (AB QB), [1991] W.W.R. 727] (Q.B.), and Gourlay v. Osmond (1991), 1991 CanLII 4335 (NS SC), 104 N.S.R. (2d) 155 (T.D.). There is, however, substantial support at the appellate level for the conclusion that have reached that any award of damages for mental distress, or aggravated damages in such circumstances must be independently actionable. See, Levitt, The Law of Dismissal in Canada, 2nd ed. (Aurora: Canada Law Book, 1994); Dooley v. C.N. Weber Ltd. (released April 7, 1995, Ont. C.A. [reported 1995 CanLII 866 (ON CA), 80 O.A.C. 234]); Trask v. Terra Nova Motors Ltd. (released March 22, 1995, Nfld. C.A. [reported 1995 CanLII 9836 (NL CA), C.C.E.L. (2d) 157]), together with host of trial decisions. In Francis v. Canadian Imperial Bank of Commerce (1994), 1994 CanLII 1578 (ON CA), 21 O.R. (3d) 75 (C.A.), Weiler J.A., writing for the court, held (at p. 88): Here, no medical evidence was presented at trial to support claim for mental distress. The trial judge did not make specific finding that, in the words of McIntyre J., the conduct of the Bank was ""also independently actionable"". Accordingly, do not think there is any basis for an award of aggravated damages, or for an award of damages for mental distress. Here the trial judge applied the reasonably foreseeable test. He clearly erred in doing so. His conclusion that there was ""negligent breach of the duty of care warranting compensation by way of aggravated damages"" cannot stand since there was no finding, and no evidence to support one, that the actions of UGG were such as to constitute an independent cause of action. No authority was cited nor is any available that in the circumstances of this case there is duty upon an employer to take care to discharge an employee in such way so as to reduce or even eliminate any risk of mental suffering or other adverse consequences to the employee."" There would be less confusion in the law if Courts applied, rather than ignored, the majority decision in Vorvis. But even conceding that the trial judge might properly have left the issue of aggravated damages for mental distress to the jury, his instructions were wrong. will develop these thoughts in the next segment of the decision by assessing what, in my view, the jury did in this case and why disagree with Justice Freeman's conclusions as to what the jury was really doing in making the award of $60,000 for mental distress. Counsel's Submission and Trial Judge's Instruction to the Jury In order to understand the jury's answers to the questions put to the jury it is helpful, and quite possibly necessary, to consider the summations of counsel to the jury as well as the trial judge's instructions. Mr. Ryan, on behalf of the appellant, submitted that Ms. Killorn was not credible and pointed out number of aspects of her testimony that should raise doubt as to the validity of her claim for mental distress. He submitted that there was no hidden agenda to get rid of Ms. Killorn so as to avoid payment to her of commission on the P.E.I. contract. Mr. Ryan submitted to the jury that four months' salary in lieu of notice was more than reasonable given the terms of her contract and the length of her service. He submitted that the dismissal was carried out in reasonable manner as evidenced by Miss McKiernan coming to Halifax to personally advise Ms. Killorn of the dismissal. Mr. Riddell submitted to the jury that they should find that 24 months' notice would have been reasonable considering the length of time it takes to close sale of this type of product and to enable Ms. Killorn to collect commission on sales in that period: ""The law in this province that you hear about says that we're [Ms. Killorn] entitled to period of reasonable notice. You can fire someone without reasonable cause. You've got to provide reasonable notice. They [the appellant] were wrong. You get to right this wrong and you get to correct this injustice. You do. What's reasonable? The big question. In my submission, it's long enough so that the payment of commissions are made to Colleen. It's long enough that she could collect commissions on sales made for those that might have been made during the appropriate notice period. And think that should be the normal sales cycle, two years. The range I'm suggesting when you put in your answer there is minimal of 18 months, maximum of 32 months, but fairness dictates 24 months, okay. Fairness dictates 24 months."" He submitted to the jury that Ms. Killorn should also be compensated by an award of aggravated damages for the callous manner in which Ms. Killorn was terminated and that Ms. Killorn had been ""ripped off' by the appellant. He submitted that the jury should award punitive damages to send out message to employers not to dismiss employees in such callous manner. The following questions were put to the jury: 1. What period of time by way of reasonable notice is the plaintiff, Colleen Killorn, entitled to, under the circumstances, as result of being dismissed from her employment on July 12, 1993 without cause? 2(a) Has the plaintiff, Colleen Killorn, established that she suffered mental distress as result of conduct arising out of the dismissal by the defendant, Health Vision, other than the dismissal itself, which would warrant or require the awarding of additional damages to the plaintiff for the mental distress? If the answer is yes, briefly describe the conduct. (b) If the answer to question #2(a) is yes; then what amount should be awarded to compensate Colleen Killorn for the mental distress she suffered? 3(a) Was there any conduct by the defendant, Health Vision, for which it ought to be additionally punished by an award of punitive damages? If the answer is yes, briefly describe the conduct. (b) If the answer to question #3(a) is yes; then what amount should be awarded Colleen Killorn for punitive damages?"" In the trial judge's instruction to the jury, after dealing with question one, the period of notice of termination that would be reasonable in the circumstances, the trial judge instructed the jury on Questions and 3. After stating the questions to the jury he continued: ""Now will explain to you the law on mental distress. In certain cases Court can order or award what are commonly known as aggravated damages. These are damages in addition to the pay or income that would be payable to the plaintiff, Colleen Killorn, during any reasonable period of notice which you decide in question number one. This is in addition to that. In this case the plaintiff, Colleen Killorn, is asking you to award her sum of money to compensate her for the mental distress and the effect on her and her family life which she claims she suffered as result of the conduct of the defendant, HealthVision Corporation, in the manner in which she was dismissed. should point out that aggravated damages for mental distress are not routinely awarded in cases of unlawful termination of employment. This is because there is usually some element of mental distress when person loses their job. However, if the conduct of the employer, in this case, HealthVision, this is important, other than the mere fact of the dismissal itself, that is, if the dismissal is carried out in an unjustified, callous, sudden and inconsiderate manner, such conduct may give rise to damages for mental distress. The conduct complained of must be surrounding the manner of the dismissal not merely the fact that dismissal without notice occurred. can tell you, as matter of law, that because of the nature of the employment in this case, it was foreseeable and must have been in the contemplation or mind of the parties in this case that mental distress could result from dismissal without notice. In this case, you should consider the manner in which the dismissal was carried out and not the actions of Mr. Wilson, which occurred at the seminars prior to the dismissal. Colleen Killorn relies on the fact she was allegedly dismissed because HealthVision was not satisfied with number of aspects of her performance, but she was never told so by way of verbal or written notice. If that was HealthVision's intention, they would normally have been required to advise her of this fact so that she could have reasonable opportunity to address any problem or concerns, as mentioned previously. Colleen Killorn also relies on the fact that the company handbook set out procedure for termination and that it was not followed. She also relies on the fact that all of her records, including her file notes, were all taken from her and not provided to her for review. She was not given notice sorry, she was not given reason for her dismissal. She relies on this fact as well. It is Colleen Killorn's contention that this amounts to callous, offensive, sudden, humiliating and inconsiderate conduct which caused her mental distress in addition to the dismissal itself. Colleen Killorn and others have testified how this affected her. The burden or onus of proving on the preponderance of the evidence that this alleged conduct of HealthVision was unjustified and that this conduct caused her mental distress is or rests upon Colleen Killorn. In addition to her own testimony she relies on the testimony of Dr. Davey, her husband and her friend, who you heard testify, as to her demeanour and her behaviour around this time. She relies on this evidence to establish and prove mental distress. Colleen Killorn, therefore, has to prove three things with regard to question number two. The first that she did, in fact, suffer mental distress; second, that the mental distress which she alleges she suffered was caused by HealthVision's conduct in the manner in which she was dismissed; and third, that the conduct complained of warrants or justifies the awarding of damages for mental distress. On the other hand, HealthVision takes the position that it was not callous or inconsiderate when it dismissed her without cause or notice on July 12th, 1993. It states that it was considerate in having member of the Vancouver office attend personally at the offices in Dartmouth to hand Colleen Killorn the dismissal letter personally rather than advising her by telephone that decision had been made to dismiss her. HealthVision also relies on the fact it offered Ms. Killorn $14,000 cash settlement as compensation for the dismissal without notice. HealthVision also contends that Colleen Killorn has not, in fact, proven that she suffered the mental distress she claims as result of HealthVision's conduct surrounding the dismissal. HealthVision claims Ms. Killorn was suffering from stress before the dismissal which could, therefore, not have been caused by the manner of the dismissal and HealthVision also claims that this level of stress or depression did not change significantly after the [dismissal?]. In the final analysis, it is for you to decide whether Colleen Killorn has proven on balance of probabilities that she suffered mental distress caused by the conduct of HealthVision surrounding her dismissal and it is also for you, the jury, to decide whether the alleged conduct warrants or requires the awarding of damages for mental distress in order to compensate her. Now you have heard the evidence here of Colleen Killorn surrounding her dismissal. She was told there was going to be an audit and it ended up her termination. You had heard the evidence of how she says the dismissal, in the way it was done, affected her family. You heard medical evidence. You have also heard the evidence of HealthVision Corporation as to how they feel that their actions were reasonable in delivering the letter personally, offering her cash settlement of $14,000 and that in view of all the surrounding circumstances they claim their actions were reasonable and that if any mental distress was being suffered around this time by Ms. Killorn, that it was not suffered by their inappropriate actions but by other forms of stress related to things which did not have anything to do with the dismissal itself. Now this is the exercise you will have to go through to decide question number two. The first answer will be either ""yes"" or ""no"" and if it is ""yes"" will ask you to briefly comment. You will note in all of these explanations do not go through all of the testimony and all of the evidence but want to remind you, and I'll remind you at the end, all of the evidence is for you to consider. I'm now going to go to question number three. Question number sorry, before go to question number three, question number two there is (b) part and neglected to mention that. Which really says, If the answer to question number 2(a) is ""yes"", after you have filled in the little paragraph to describe the conduct then you are asked to answer what amount should be awarded to compensate Ms. Killorn for the mental distress and there would be dollar an amount in dollars. Question 3(a) is, Was there any conduct by the defendant, HealthVision, for which it ought to be additionally punished by an award of punitive damages. And will now explain to you the law on punitive damages. In this case Colleen Killorn has also advanced claim for punitive damages. These are damages in addition to damages for mental distress. Damages for mental distress are meant to compensate the plaintiff compensate just another word for make up to the plaintiff, for the mental suffering and the effects on her and her family life. Punitive damages, on the other hand, are quite different and they are exactly what the name or the term implies. They are meant to punish defendant, in this case, HealthVision, for what Colleen Killorn claims is reprehensible, vindictive, malicious and harsh conduct and conduct which is either at or close to, which the plaintiff argues is at or close to heinous in nature. The conduct complained of in punitive damages claims must be such as to offend the standards of decent conduct in the community. can tell you this is important, can tell you that awards of punitive damages by our courts are rare. In order for such an award to be made, the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and disapproval and requires or warrants punishment. The mere fact that we may disapprove of particular conduct is not sufficient. It must also meet these criterion of extreme that have just mentioned previously. You must bear in mind that punitive damages are form of punishment, the same way fine is punishment. Punitive damages are not for the purpose of compensating the plaintiff for losses but they are, rather, meant to send message to other employers that the Court finds the conduct unacceptable and that it will not be tolerated. The purpose of punitive damages is strictly to punish the wrong-doer and to discourage other employers from following similar unacceptable courses of action. As said, and repeat, the conduct must be extreme before punitive damages can be awarded. Such damages cannot be awarded merely because we disapprove of the conduct, no matter how strongly we disapprove. For these reasons, awards of punitive damages are rare in dismissal without cause cases. The plaintiff, Colleen Killorn, relies on the manner of the dismissal as part of her claim for punitive damages. She also relies very heavily on the contention that she was dismissed summarily on July 12th, 1993, so that, and for the main purpose that HealthVision would not have to pay her commission on large deals such as P.E.I. and Yarmouth, which were approaching or heading towards fruition or nearing fruition. On the other hand, HealthVision relies on their conduct that they have already mentioned in defence of their claim for mental distress, basically the notice delivered personally, the offer of compensation and further contends that there is no evidence whatsoever that HealthVision terminated Ms. Colleen Killorn for the purpose, or primarily for the purpose of depriving her of commissions on deals such as P.E.I. and Yarmouth which were nearing fruition. HealthVision contends the main reason they dismissed Colleen Killorn was because they were dissatisfied with her performance and that they saw the Nova Scotia office location as unnecessary or superfluous and that this matter had been discussed previously. They also point to the fact that, according to their evidence, Mr. Wilson opposed the decision to close the office in Nova Scotia earlier in 1992. However, in the final analysis it is for you, the jury, to decide whether the evidence raises an inference or conclusion that HealthVision terminated Ms. Killorn in order to avoid paying her future commissions. Here Ms. Killorn relies in part on conversations she said she had with Mr. David Wilson, her immediate boss, where she testified he said P.E.I. would not be part of her targets and that she had not done much work on that deal. She also relies on the fact that she was interrupted when she tried to explain the P.E.I. deals at seminars as an indication that HealthVision and, in particular, Mr. David Wilson had plan, as she put it, hidden agenda, to cut her out of the P.E.I. deals by either pushing her to resign and, failing that, by changing her territory or dismissing her entirely. HealthVision, on the other hand, says these allegations are merely conjecture, guesses and speculation and are not supported by the weight or preponderance of the evidence. But, again, in the final analysis it is for you, the jury, to decide whatever kind of extreme conduct that have just explained to you and which is required in order to grant an award of punitive damages to Colleen Killorn. It is for you to decide whether that has been proven by her on the preponderance of the evidence. If you find there is misconduct then you may award sum which will punish HealthVision and/or discourage others from similar conduct. While such an award should be large enough to be meaningful it should not be more than necessary if you find such an award is appropriate in the circumstances. This is the exercise you will have to go through in deciding question number three."" (emphasis added) It is clear from review of discussions between counsel and the Court, prior to counsels' summations to the jury and the judge's instructions, just why the jury was asked to state their reasons if they were to make an award for mental distress. The trial judge was of the opinion that it was important that the Court and counsel know ""which conduct the jury focused on"" in making the award. The trial judge stated: ""Otherwise we may never know. And think that since there is danger that they would consider which the case law doesn't allow them to consider, thought it would be appropriate to have them just briefly describe the conduct in case somebody wants to challenge their verdict at any stage. Otherwise we wouldn't know what they focussed on."" The trial judge shortly thereafter said ""You don't necessarily have to ask what the conduct consisted of in jury questions, but think that in this case it was dangerous not to do so."" Counsel for Ms. Killorn agreed. It is also clear from review of the discussions between the trial judge and counsel prior to instructing the jury that the trial judge intended to tie the theory of Ms. Killorn's counsel that she was fired to avoid payment of commissions to the punitive damage question. The trial judge stated to counsel: ""See, it seems to me that the punitive damage award hinges on the crucial finding of fact, which is whether HealthVision dismissed Colleen Killorn on July 12th, 1993, primarily and principally with the unacceptable purpose of depriving her of commissions for which she had worked long and hard on projects."" The trial judge, after advising counsel, over Mr. Ryan's objection, that he would leave both the issue of mental distress damages and punitive damages to the jury and that he would ask the jury why such awards were made if the jury found Ms. Killorn entitled to such damages, stated to counsel: ""So in this case then, do not since we have the two questions asking them to briefly describe the conduct. think it provides the necessary safeguard to ensure the jury properly applies the law and also allows them to make crucial determination of fact as to the reasons for the termination. And believe that finding of fact should be left to the jury. So having said that, will allow the jury to decide the issues of mental distress and punitive damages."" Counsel for the appellant then restated for the record that it was his position that leaving the issue of mental distress damages and punitive damages to the jury was inappropriate. The trial judge's instructions to the jury shows that he related the theory, that Ms. Killorn was fired by the appellant to avoid payment of commission on the P.E.I. deal, to the punitive damage question. have underlined those passages of the instruction to the jury to this effect. Considering counsels' summations to the jury and the judge's instructions, would infer from the jury's answers to Questions and 2, coupled with the jury's decision not to award punitive damages, that the jury rejected that theory. Had the jurors wished to allow Ms. Killorn to collect commission on the P.E.I. contract, they would have decided period greater than six months would have been reasonable notice. Had the jurors accepted Ms. Killorn's theory that she was fired so the appellant could avoid payment of the commission on the P.E.I. contract, the jurors would have made an award for punitive damages. Therefore, cannot accept Justice Freeman's conclusion the jury was really compensating Ms. Killorn for the lost commissions when the jury awarded her the $60,000 for mental distress. The award of $60,000 was for the manner in which she was dismissed which the jury described as callous and high-handed. The jury also found fault in the appellant not telling Ms. Killorn over the telephone that it was sending Ms. McKiernan to Halifax to terminate her employment. The jury's answer as to why an award for mental distress was made does not otherwise describe what the callous or high-handed conduct was. Counsel for Ms. Killorn and the trial judge in his instructions to the jury had stressed to the jury the suddenness and callousness of the dismissal without warning, and without reasons, were factors to consider on the issue of mental distress arising out of the termination. In my opinion, the termination without warning or without notice are factors relevant to the issue of reasonable notice and are compensated for by an award to an employee for the breach of the obligation of the employer to give an employee warnings if performance is unsatisfactory and in failing to give the employee reasonable notice of termination. Considering the majority decision in Vorvis, these are not factors relevant to claim for damages for mental distress. Counsel for Ms. Killorn submitted to the jury, and the trial judge instructed the jury, that the failure of the appellant to give Ms. Killorn reasons for her dismissal was factor to consider on the question of aggravated damages for mental distress. With respect, there is no obligation at law on an employer to give reasons for dismissal (Pulsifer v. GTE Sylvania Canada Ltd. (1983), 56 N.S.R. (2d) 424 (N.S.C.A.)). The jury was given the 1989 employment contract and the March 12th, 1993 contract proposal forwarded to Ms. Killorn but was given no instructions as to which contract was in force, if either. Under the circumstances, number of questions come to mind. What contract did the jury consider the parties were bound by? What interpretation did the jury put on the provisions respecting the right of either party to renegotiate prior to the anniversary date of April 1st? Did the jury consider the 1989 contract continued after April 1st, 1993? Did the jury consider the terms of the contracts with respect to entitlement to commissions as provided for in both the 1989 contract and the March 1993 proposal, that is, commissions will be paid when accounts are paid by the customer? The jury was given the contracts without the aid of any instruction from the trial judge as to their legal effect or the legal effect of the appellant forwarding to Ms. Killorn the March 1993 proposed contract. The jury was simply told that there was requirement for reasonable notice and that they were to determine what would have been reasonable notice in all the circumstances. They were not advised whether they were to take into consideration on the mental distress issue the terms of either contract nor were they advised as to what was the effect of the provisions in the employee's handbook respecting termination of employment relationships by the appellant. In short, the trial judge did not instruct the jury as to what were the terms of Ms. Killorn's employment at the date of termination. There was no instruction to the jury with respect to the provision of either contract respecting the payment of commissions following termination of employment. would infer from discussions between the Court and counsel that the trial judge concluded that these were legal questions which were not appropriate for jury. However, it would seem to me that the trial judge ought to have decided these fundamental legal issues before instructing the jury on the questions that were left to them. Otherwise, the jury was acting in vacuum and unable to properly answer any of the questions before them as they had no assistance from the trial judge as to the status of Ms. Killorn's employment contract on the date of dismissal. The parties were entitled to have the trial judge determine these issues as to what the contractual arrangement was as of July 12th, 1993 so that the jury could give due consideration to the terms of the employment arrangement at that time in deciding as to what was reasonable notice under the circumstances and in deciding the question of aggravated damages for mental distress arising out of the termination. If the contractual terms of employment at the time of termination were clear, it may have been appropriate, with proper instruction on the law, to leave the issue of aggravated damages for mental distress to the jury. But in this case the terms of employment at the time of dismissal were not clear. Under the circumstances it demanded careful instruction on that issue as well as an instruction on the law respecting claims for mental distress in wrongful dismissal cases. There are those who suggest the law in Canada is in state of confusion following the decision of the Supreme Court of Canada in Vorvis. To some extent it is, but in my opinion, the courts must try to simplify the law. This can be done by applying the majority decision of Vorvis that damages are not to be awarded for mental distress unless there is an independent cause of action apart from the breach of contract caused by the dismissal without reasonable notice. On the facts of this case, the trial judge did not correctly instruct the jury respecting the issue of damages for mental distress. Apart from the failure to decide and advise the jury what were the terms of Ms. Killorn's employment on July 12th, 1993, the trial judge erred when he instructed the jury that damages for mental distress could be awarded to compensate Ms. Killorn for the manner in which she was dismissed if it was foreseeable that she would suffer such mental distress on termination. This instruction was contrary to the majority decision in Vorvis. Justice Freeman has stated that the concept of an independent actionable wrong, as described in Vorvis, is broad enough to embrace breach of the general duty of care. He then discussed decisions in Donahue v. Stevenson, Anns v. Merton London Borough Council and Canadian National Railway Co. v. Norsk Pacific Steamship Co. Justice Freeman concluded, following the McIntyre analysis, that it would appear to him that damages can arise from mental distress on termination when an employer in breach of the duty of care or in the course of other conduct does something more harmful to the employee than either would have reasonably contemplated and provided for by way of contractual remedy when they entered into the employment contract. The inference to be drawn from Justice Freeman's comments is that the jury could have found that the appellant had duty of care based on the foreseeability of harm if the appellant terminated Ms. Killorn on coming off sick leave. While Justice Freeman acknowledged that given the two approaches in Vorvis, the law of damages with respect to mental distress and wrongful dismissal cases is not free from difficulty, he was of the view that it was not so complex that it cannot be explained to and understood by jury and that it was not an improper exercise of the trial judge's discretion to have left the matter with the jury. For the reasons previously set out, do not agree with him. On the facts of this case the issue of aggravated damages for mental distress should not have been left with the jury. But even if were to agree that it was properly left to the jury and agree that the appellant, in these circumstances, may have had duty of care to Ms. Killorn, which it may have breached, the learned trial judge did not instruct the jury on the law of negligence. This would have been essential in order for the jury to determine this issue. In summary, the trial judge's instruction to the jury on the law respecting an award of aggravated damages for mental distress was totally inadequate no matter how one looks at it. While the issue should not have been left to the jury due to the complexity of the facts, having been left, it was not left in manner that adequately instructed the jury on the issue. The erroneous instruction opened the door to the extraordinary award made in this case. The Award of $60,000 Damages for Mental Distress At trial, the appellant admitted that Ms. Killorn had been dismissed without cause. She had not been given an advance notice but was offered the equivalent of four months' salary in lieu of notice. The appellant has not challenged the jury's finding that six months' notice was reasonable in the circumstances. The cross-appeal by Ms. Killorn on the ground that the jury erred in fixing six months as reasonable notice of termination was abandoned. The judgment for Ms. Killorn was entered for the total sum of $101,122.51 inclusive of pre-judgment interest and costs. Although have concluded that the trial judge, on the facts of this case, ought not to have left the issue of damages for mental distress to the jury, will deal with the appellant's argument that $60,000 was an excessive award. do so because this award, in my opinion, sets dangerous precedent. The decided cases indicate that $60,000 for mental distress in this case is inordinantly high when one considers the reasons given by the jury for making the award. repeat what the jury stated as the reason for making the award: ""The conduct of Health Vision Corp. was high handed and callous. Mrs. Killorn was misled into believing her office was being audited when in fact she was also being terminated, this resulted in further financial turmoil, added mental distress to her and her family."" Counsel for the appellant has pointed out in his Factum that an examination of 13 Nova Scotia cases that considered damages for mental distress in wrongful dismissal cases indicate that damages for mental distress are the exception. Secondly, that when such damages are awarded, typically they are in the range of $500 to $850. In the following trial decisions, although damages for mental distress were claimed, nothing was awarded for mental distress:Sweet v. The Canadian Indemnity Co. (1980), 43 N.S.R. (2d) 55; Wilcox v. Phillips Electronics Ltd. (1984), 64 N.S.R. (2d) 352; Lynch v. J.D. Mack Ltd. (1984), 65 N.S.R. (3d) 417; Bell v. Isaak Walton Killam Hospital for Children (1986), 1986 CanLII 123 (NS SC), 74 N.S.R. (2d) 309; Backman v. Hyundai Auto Canada Inc. (1990), 1990 CanLII 4087 (NS SC), 100 N.S.R. (2d) 24; Cardenas v. Clock Tower Hotel Ltd. Partnership (1993), 1993 CanLII 4666 (NS SC), 120 N.S.R. (2d) 49; Monk v. Coca-Cola Bottling Ltd. (1996), 1996 CanLII 5490 (NS SC), 150 N.S.R. (2d) 192 and Damery v. Matchless Inc., [1996] N.S.J. No. 229 (S.C.). In the following cases Nova Scotia trial courts fixed damages in nominal amounts (less than $1,000) for mental distress arising out of wrongful dismissal: McNair et al v. J.D. Bremner Son Ltd. (1983), 58 N.S.R. (2d) 222; Morin v. Atlantic Cooperative Publishers (1988), 88 N.S.R. (2d) 117 and Legorburu v. Det Norske Veritas (1990), 1990 CanLII 4118 (NS SC), 97 N.S.R. (2d) 250. In McOnie v. River Pub Ltd. and Rofhie (1987), 79 N.S.R. (2d) 379 (S.C.) the Court awarded $6,500 for mental distress arising out of wrongful dismissal and in Russell v. Nova Scotia Power Inc. (1996), 1996 CanLII 5438 (NS SC), 150 N.S.R. (2d) 271 an award of $40,000 was made. In McOnie (supra) in routine meeting, the plaintiff met the defendant and his solicitor for breakfast. Without any notice he was handed letter terminating his services. The Court found that the dismissal was without cause. The plaintiff had resigned from his seven year job to work with the defendant and had been working less than year when his employment was terminated. The plaintiff testified that he was humiliated and devastated and had difficulty adjusting. He gained weight, and became reclusive and depressed. psychiatric expert diagnosed depressive illness. The trial judge found that the manner of the dismissal warranted an award for mental distress. McOnie was decided before the decision of the Supreme Court of Canada in Vorvis. In Russell (supra) the plaintiff was dismissed for unfounded allegations of incompetence and insubordination after 17 years with Nova Scotia Power. The employer sent an e-mail message to other employees to the effect that the plaintiff was dismissed for incompetence. The effect of this conduct was found to have aggravated the plaintiff’s longstanding and well controlled generalized anxiety disorder and almost immobilized him for several months after termination. The Court noted the rarity of such awards but found on the evidence the employer's actions were oppressive. This award was post Vorvis. The award was made for stress over and above that caused by the dismissal itself. There are decisions from other provinces in which substantial awards have been made for mental distress and they are relied upon by counsel for Ms. Killorn. In Pilato v. Hamilton Place Convention Centre Inc. (1984), 1984 CanLII 1909 (ON SC), C.C.E.L. 241, 45 O.R. (2d) 652 (H.C.J.) an award of $25,000 was made. The 36 year old employee had been employed by the defendant for about two years when serious allegations were made against him. The plaintiff was not given the opportunity to respond to them and his dismissal was published in the press while he was on vacation. The court considered psychiatric evidence and make the award for aggravated damages in addition to an award of $25,000.00 punitive damages. In Young v. Huntsville District Memorial Hospital (1984), C.C.E.L. 113 (Ont. H.C.J.) an award of $20,000 was made to 55 year old employee who had been employed for 18 years as business manager with the defendant. He suffered heart attack and required two months to recover. When he returned to work, he was depressed. He was then subjected to increased demands by superior and eventually was presented with negative performance review one month after his return. He was demoted; the Court found that he had been constructively dismissed. The Court emphasized the size of the community, the recklessness of the dismissal, the fact that the employers knew of his delicate condition. The Court held that ""any reasonable view of the contractual situation entered into by the parties in 1964 would have included the realization that such distress could have followed wrongful termination of the contract by the parties to it"". In Smith v. Reichhold Ltd. (1988), T.L.W. 743-001 (B.C.S.C.), an award of $30,000 was made for mental distress for plaintiff who had been plant manager with 20 years of service to the defendant. Certain allegations of misconduct and criminal acts were made against the plaintiff resulting in his dismissal. The employer did not investigate the allegations or allow fair hearing before the dismissal and treated the plaintiff as security risk. The court found that the plaintiff had been insulted, humiliated and suffered mental distress. In Pilato, Young, and Smith the decisions were pre Vorvis and were significantly different on their facts from Ms. Killorn's situation. In Pilato there were serious allegations made against the plaintiff. He was not given an opportunity to respond. His dismissal was published in the press while he was on vacation. Nothing of this sort took place with respect to the dismissal of Ms. Killorn. In Young the employee was 55 years of age, had been employed for 18 years, and had suffered heart attack. Clearly the dismissal on his return to work was very reckless and warranted substantial award. In Smith the plaintiff had been an employee with 20 years of service. Allegations of misconduct and criminal acts were made against him resulting in his dismissal. The employer did not investigate the allegations. Obviously factual situation far different than that of Ms. Killorn's. The following are post Vorvis decisions in which awards for mental distress damages were made. Counsel for Ms. Killorn also relies on these decisions. In Ribeiro v. Canadian Imperial Bank of Commerce (1992), 1992 CanLII 7447 (ON CA), 44 C.C.E.L. 165 (Ont. C.A.) an award of $20,000 for mental distress was made to 30 year old employee who had been employed as consumer loans officer for six years. The bank had made allegations that the employee had acted improperly and terminated the employee with minimal investigation. Criminal charges were also brought forth. The Court concluded that he was wrongfully dismissed and the allegations were unfounded. The Court also found that the actions of the bank were wanton and reckless and that these actions caused severe depression. The Court of Appeal also awarded the plaintiff $50,000 punitive damages to punish the bank for its reprehensible and vindictive conduct. Neither the trial judge nor the Court of Appeal made any reference to the Supreme Court of Canada decision in Vorvis. Leave to appeal to the Supreme Court of Canada was refused. In Hughes v. Gemini Food Corp (1992), 45 C.C.E.L. 113 (One. Gen. Div.) an award of $75,000 was made to the plaintiff who was chief executive officer of the defendant and had been in that position for short time. Allegations of misconduct came forth with respect to business dealing and eventually the plaintiff was terminated in very public manner. He suffered mental distress. The court awarded $75,000 as aggravated damages, citing Ribeiro in its reasons for judgment; there was no reference to the Supreme Court of Canada position in Vorvis. In Dixon v. B.C. Transit (1995), 13 C.C.E.L. (2d) 272 (B.C.S.C.) an award of $50,000 for mental distress was made to the plaintiff who was president and chief executive officer of the defendant company. He had joined the defendant after leaving secure job. He was terminated seven months later. The defendant made allegations of poor performance when there was no cause and the defendant simply wished to avoid paying severance. The employee suffered aggravation, frustration and public humiliation. In allowing the claim for aggravated damages, the Court noted that the actions of the defendant in dismissing him, knowing there was no cause, but stating that there was, could be considered an independent tort of deceit. The Court also awarded $75,000.00 in punitive damages because the actions of the defendant in advising the media that the plaintiff had been fired for cause, when no cause existed, and in refusing to pay him one year's salary as provided for in the contract were defamatory and malicious. The Court followed the decision in Vorvis. In Ribeiro allegations of improper activity and even criminal charges were brought forth. The situation in Ribeiro was far different from the conduct of the appellant in the appeal we have under consideration. In Hughes (supra) allegations of misconduct were made; the plaintiff was terminated in very public manner. No such allegations were made against Ms. Killorn. In Dixon (supra) the plaintiff had left secure position and was terminated within very short period of time (7 months). Allegations of poor performance were made when there was no cause to make such allegations. The dismissal was made in very public manner. The court found that the defendant simply wished to avoid paying severance. The court also found the employer committed the torts of deceit and defamation. The employee suffered aggravation, frustration and public humiliation. These facts puts this situation in considerably different category than that of Ms. Killorn. In Russell the plaintiff was subject to unfair demands and unfounded criticisms by supervisor; his dismissal for his incompetence was announced to other employees by e-mail. He suffered mental distress and the award of $40,000 was made. This award was high but was not appealed. There were no such publicized allegations made by the appellant against Ms. Killorn. Analysis of the Facts Relevant to the Jury Award of $60,000 Damages for Mental Distress In addition to the significant facts referred to in Justice Freeman's opinion relating to the conduct of the appellant leading up to July 12th, 1993, it is well to also keep in mind other facts relevant to her termination and the mental distress claim arising therefrom. Ms. Killorn was unemployed prior to being engaged by the appellant in 1989. She was not induced away from secure job. She did not have long term employment or any form of job guarantee with the appellant. She was suffering from stress as early as 1992. This stress was unrelated to the termination of her employment. She had not met her sales goals in 1990, 1991 or 1992. Her husband's business was not successful; she was the primary income earner. She was having problem with her weight and had consulted Dr. Davey with respect to that matter in February of 1993. The cause of her stress cannot be attributed solely to the events involving the appellant starting in March of 1993. As early as 1992 Mr. Brand wanted to close the Atlantic Canada office as it could not be justified on financial considerations. At that time he acquiesced in Mr. Wilson's desire to keep it open. Mr. Wilson obviously changed his mind in 1993. It was by no means clear that in February/March 1993 that the appellant would be able to successfully negotiate contract with the P.E.I. Commission as is evidenced from the extensive negotiations which took place following the Committee's decision that the appellant would be its preferred supplier. The revised compensation package forwarded to Ms. Killorn on March 16th, 1993, was the identical package forwarded to the other five Canadian sales representatives. It was not package hatched to upset Ms. Killorn. With respect to the interruption of her presentation at the sales conference in Victoria on June 7th, 1993, Mr. Brand testified that he was there and the interruptions were the standard procedure when sales representatives are making presentations so that management could make informed decisions on what sales could be expected from the sales representatives in the upcoming year. On June 7th Ms. Killorn left the meeting and told Mr. Wilson not to contact her. Under the circumstances, what course was open to the appellant other than to assign another sales representative in Toronto to service the accounts until she came off sick leave and so inform her customers? Ms. Killorn decided to return to work on July 9th. The appellant was not told the nature of Ms. Killorn's problem as the note from the doctor merely stated that Ms. Killorn was under his care but should be able to return to normal duties within four to eight weeks. Was it not reasonable for the appellant to assume that when Ms. Killorn decided to return to work that she had recovered and would be able to deal with the appellant's decision to terminate her? Was it unreasonable of the appellant not to advise her by phone in advance of Ms. McKiernan coming to Halifax that the appellant intended to terminate her? To have done so would have completely negated their desire not to crassly terminate her employment by phone call rather than have Ms. McKiernan travel from Vancouver to Halifax to tell her personally. Ms. Killorn was initially engaged pursuant to contract that was for one year and renewal from year to year unless renegotiated. She had been employed for less than five years. Under the circumstances, was four months' salary so unreasonable that the termination would cause such extraordinary stress to Ms. Killorn that $60,000 award was warranted? Was clearing out her office in Halifax so unreasonable, having terminated her? To have done so was not an unusual or unreasonable procedure in business. Had the appellant wished to terminate Ms. Killorn to save the commission it could have done so at any time in March 1993 by simply notifying her that her contract was not being renewed. There was no need to go through the convoluted process that was described by Ms. Killorn as hidden agenda. The appellant was hardly any closer to obtaining contract with the Commission in July of 1993 than it was in March of 1993. The negotiations were extensive and did not conclude with contract until November, 1993. The reasonable inference from the facts is that the appellant did not decide to terminate Ms. Killorn until after the June 7th, 1993, incident in Victoria, British Columbia. would repeat the point made earlier that the jury apparently rejected the theory advanced on behalf of Ms. Killorn that the appellant wished to cheat her out of her commission as the jury did not award her the 24 months' notice urged upon the jury by Ms. Killorn's counsel so as to pick up commissions that would eventually be paid on the P.E.I. contract. Nor did the jury make an award for punitive damages which the trial judge had clearly linked to the theory that the appellant was attempting to cheat her out of the commission. As previously stated, disagree with Justice Freeman's analysis that the jury could have concluded that the events leading up to her dismissal on July 12th, 1993, were for the purpose of ensuring she did not get the $90,000 commission. What the jury did and did not do simply does not support such finding. The jury made no specific findings of callous behaviour by the appellant towards Ms. Killorn other than the appellant indicated to Ms. Killorn that Ms. McKiernan was coming down to do an audit when she was also coming to terminate Ms. Killorn's employment. Unlike other cases in which substantial awards were made for mental distress, Ms. Killorn's dismissal was not done in public manner; there were no allegations of misconduct made against her, no defamation, nor any deceit. In short, there was no separately actionable wrong identified by the jury upon which it could have made such an award. Furthermore, the facts surrounding the dismissal of Ms. Killorn simply do not equate with the facts of those cases in which substantial awards were made for mental distress arising out of the manner in which the termination was carried out. would note that in Vorvis both the majority reasons of McIntyre J. and the minority reasons of Wilson J. decided that Vorvis was not case in which there should be any award for aggravated damages arising out of mental distress despite the fact that Mr. Vorvis was distressed as result of the dismissal. The standard measure of damages for dismissal of an employee without cause and without notice is based on what would have been reasonable notice of termination considering all the circumstances. Claims for mental distress arising in wrongful dismissal cases have come to the fore only in recent years. Since the Supreme Court of Canada decision in Vorvis, those decisions that do not turn on finding of separate actionable wrong, apart from the dismissal, are no longer of persuasive authority. In my opinion, aggravated damages for mental distress can be awarded on the limited basis established by the majority decision of McIntyre J. in Vorvis (see paras. 21-23 inclusive of that decision as previously set out). While Justice McIntyre left the door open for claim for damages on some basis other than separate actionable wrong, until such time as the Supreme Court of Canada identifies such other basis for claim, courts should only award damages for mental distress if the employer has committed an actionable wrong separate and apart from the breach of contract that gave rise to the wrongful dismissal claim. To proceed otherwise creates too much confusion in the law. The majority of the Supreme Court of Canada did not accept the reasoning of Justice Wilson with respect to the legal principles to be employed in considering an award for mental distress in these cases. It is of interest to note that in Vorvis Justice Wlson respectfully rejected what she described as the narrow approach in English Courts in both Bliss v. South East Thames Regional Health Authority, [1987] I.C.R. 700 and Hayes v. James and Charles Dodd (a firm), [1990] A.E.R. 815 (C.A.), in which cases the Courts concluded, as matter of policy, that there should not be damage awards for reasonably foreseeable mental distress in breach of contract of employment cases. Justice Wilson stated in paragraph 45: ""The Court of Appeal in Hayes and anor v. Dodds seems to have been unduly concerned at the prospect of large ""U.S.-style"" awards for mental suffering, ignoring the fact that the award has to be quantified on sensible and realistic basis. Indeed, awards under this head have tended to be rather modest in Britain and in Canada. For example, in Cox v. Philips Industries Ltd., the damages for mental suffering awarded against the corporate employer were assessed at £500. In the Canadian cases of Antonaros v. SNC Inc. and Pilon v. Peugeot Canada Ltd., the damages (also against corporate employers) were assessed at $3,500 and $7,500 respectively. mention this not to endorse the propriety of the awards in these cases but to point out that the fear of unrealistic or unfair awards for mental distress in breach of contract cases is not really warranted by anything that has happened to date."" The award made to Ms. Killorn of $60,000 for mental distress for the manner in which she was dismissed as found by the jury by the answer to Question illustrates that the fear of unrealistic jury awards for mental distress in wrongful dismissal cases is now real. In Wallace v. United Grain Growers (supra), Scott, C.J.M. stated at p. 178 that the rationale for the English policy is not hard to ascertain ""Given that an innocent party may well suffer an adverse emotional reaction (or worse) consequent upon wrongful dismissal, if right to damages for mental distress was based on foreseeability of damages arising out of the circumstances surrounding the dismissal, this would be inconsistent with the fundamental tenet of employment law referred to earlier in Vorvis namely, that either party is entitled to terminate the employment arrangement (leaving aside contractual provisions to the contrary, such as collective agreement) subject to reasonable notice or damages in lieu thereof."" Summary on the Issue as to the Quantum of the Mental Distress Award The appellant had decided to terminate Ms. Killorn's employment in mid June, 1993. Ms. Killorn was on sick leave. The appellant waited until she returned to work and then sent Ms. McKiernan from Vancouver to Halifax to advise her of the termination rather than do it over the telephone. The jury awarded $60,000 because the appellant was callous and high-handed and had deceived Ms. Killorn in not advising her that one of the objects of Ms. McKiernan's visit to Halifax was to terminate Ms. Killorn's employment. The question must be asked: Does the appellant's conduct in the months preceding the dismissal and the appellant's decision not to tell Ms. Killorn that Ms. McKiernan was coming to Halifax to terminate her warrant an award of $60,000 for mental distress? The answer must be no. Based on the reasons given by the jury for making the award of $60,000, the award is so inordinantly high that it is wholly erroneous estimate of the damage. To allow such an award to stand has the effect of turning the law respecting an assessment of damages in wrongful dismissal case on its head as the award for mental distress is three times the award made by the jury based on the requirement that an employer give reasonable notice of termination. If an award of damages for mental distress was lawful, the facts do not disclose conduct by the appellant that would justify jury award in excess of $15,000, as gauged by awards made in other cases. Conclusion The suddenness and callousness of a dismissal does not constitute conduct that gives rise to an actionable wrong separate and apart from the cause of action for the dismissal without cause and without notice. Damages for wrongful dismissal are to compensate the employee for the failure of the employer to give reasonable notice. The damages are compensatory and are measured by calculating the loss of income of the employee for the period that would have been encompassed by reasonable notice of termination. In the absence of facts disclosing separate actionable wrong, as, for example, where defamation is proven, there cannot be an award of damages for mental distress arising from the wrongful dismissal. As in Vorvis, the facts do not warrant an award of damages to Ms. Killorn for mental distress. would allow the appeal and set aside those parts of the trial judge's order that relate to the award of damages for mental distress and pre-judgment interest on that award. Apparently there was an offer to settle. Therefore, would reserve the matter of costs, both at trial and on appeal, so this Court can receive submissions by counsel for the parties that would arise as result of such an offer having been made. Hallett J.A. Concurred in: Roscoe J.A. 1993 S.H. No. 93-4487 IN THE NOVA SCOTIA COURT OF APPEAL on appeal from the SUPREME COURT OF NOVA SCOTIA BETWEEN: J. COLLEEN KILLORN and HealthVISION CORPORATION, body corporate, formerly known as HCS HEALTHCARE SYSTEMS INC., body corporate DEFENDANT HEARD BEFORE: The Honourable Justice Allan P. Boudreau PLACE HEARD: Halifax, Nova Scotia DATE HEARD: February through 14, 1996 JURY VERDICT RENDERED: February 14, 1996 COUNSEL Raymond S. Riddell, for the Plaintiff William Ryan, Q.C. and Nancy G. Rubin, for the Defendant NGR/0193433.01 C.A. No. 125259 NOVA SCOTIA COURT OF APPEAL BETWEEN: HEALTHVISION CORPORATION, body corporate, formerly known as HCS HEALTHCARE SYSTEMS INC., body corporate Appellant (Respondent on Cross-Appeal) and J. COLLEEN KILLORN Respondent (Appellant on Cross-Appeal) REASONS FOR JUDGMENT BY: HALLETT, J.A. ROSCOE, J.A. (Concurring) Freeman, J.A. (Dissenting)","The respondent was hired as an account manager by the appellant. She did not reach her planned sales goals during her employment, and became depressed. She took six weeks off work on the advice of her doctor. When she returned from sick leave she was dismissed by the appellant, who had already decided to terminate her employment after concluding that she was not able to handle the job. She claimed damages for mental distress for the sudden and callous manner in which she had been dismissed. The jury awarded the respondent $20,000 in lieu of notice and $60,000 damages for mental distress. The appellant appealed the award for mental distress. Per Hallett, J.A., Roscoe, J.A., concurring, allowing the appeal, that the suddenness and callousness of a dismissal does not constitute conduct that gives rise to an actionable wrong separate and apart from the cause of action for the dismissal without notice. Per Freeman, J.A., dissenting, dismissing the appeal, that a degree of mental distress is always likely to accompany the termination of employment. However, when the employer's conduct aggravates the mental distress beyond the degree which can be remedied by agreement or reasonable notice, a right to further damages arises.",6_1997canlii9876.txt
13,"J. THE COURT OF APPEAL FOR SASKATCHEWAN RITA VERMA (Petitioner) APPELLANT and DR. SHEO P. VERMA (Respondent) RESPONDENT CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Mr. Neil Turcotte for the appellant Ms. Merri-Ellen Wright for the respondent DISPOSITION: Appeal Heard: September 14, 1995 Appeal Allowed: September 14, 1995 (orally) Reasons: October 13, 1995 On Appeal From: UFC 383/85, 622/85 477/88, J.C. of Saskatoon Appeal File: 1725 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Chief Justice Bayda The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. This appeal was allowed from the bench with brief written reasons to follow. These are the reasons. The appeal is from an order that determined, after trial of an issue, that the parties had reached a binding agreement as to the value of Dr. Verma\'s pension plan during negotiations which took place during a series of pre-trial conferences. The judge, in her reasons, outlined the background as follows: Dr. Sheo Verma and his ex-wife, Rita Verma, separated in 1983 and were divorced in 1989. Mrs. Verma commenced her action for division of matrimonial property on May 1, 1985 and Dr. Verma petitioned for divorce in 1988. The question of the division of certain of the matrimonial assets has been contentious one and the fact that there is property in Germany and India as well as in Saskatchewan has complicated matters. The sequence of events relative to the division of Dr. Verma's pension benefits is as follows: November 15, 1988 Examinations for discovery of Dr. and Mrs. Verma. Both gave undertakings to produce certain documents. Dr. Verma was to produce statement of the value of his pension plan as of the date of commencement of the application, May 1, 1985. June 9, 1989 First pre-trial conference. At this settlement conference Ms. Gregor appeared with Mrs. Verma and Mr. Singer with Dr. Verma. There were oral agreements on the value of certain items of property. The pre-trial judge made no written memorandum but advised the parties to record what had been agreed upon that day. The conference was adjourned to October 3, 1989. June 19, 1989 Mr. Singer wrote to Ms. Gregor asking her to confirm his listed items of agreement, including: ""That the husband's pension is valued at $39,411.00."" July 14, 1989 Ms. Gregor's letter in reply confirmed ""That the husband's pension is valued at $39,411.00."" October 3, 1989 Pre-trial was adjourned sine die. April 8, 1991 Pre-trial resumed with Mr. Chetty acting for Mrs. Verma and Mr. Singer still acting for Dr. Verma. The pre-trial judge recorded various items of agreement but the list did not include agreement on the value of Dr. Verma's pension. The fiat ended: Pre-trial for continuation with respect to maintenance, jewellery and debts of the wife incurred. Adj. sine die. Court orders transcript of tape. June 20, 1991 Pre-trial conference continued. In his long fiat the judge declared that this pre-trial was terminated and made orders with respect to values of certain other items of property. The fiat contained the following direction: If the petitioner is not going to accept the value of the pension as being $39,411 and the respondent's employers contributions of $40,576, if they're not accepting the combined values of these figures as being the value of the respondent pension you are to have prior to the pre-trial date an actuaries valuation of the pension. March 8, 1993 At further continuation of the pre-trial conference Mr. Turcotte appeared with Mrs. Verma and Ms. Wright with Dr. Verma. The fiat read: There will be trial of the issue on the pension as to whether or not the documentation on the file and the correspondence constitutes and agreement as to the value of the pension and if it does not state the value of the pension then the court should determine what the value of the pension is for the purpose of the matrimonial property action. There will also be trial of the issue on whether or not the correspondence, briefs of law and fiats on the file constitute an agreement of the value of certain properties on the file, if not then to determine what the value of this property is. This fiat was made by the consent of the parties. The pension in question turned out, according to the judge, to be worth $102,615.94 on the date in question. The judge found that this information was available to Mrs. Verma and her counsel when the letters were exchanged each agreeing to the value of $39,411.00 for the pension and that Mrs. Verma should be bound by her agreement as to its value. She relied on the following statement of Dickson J. of the Unified Family Court in Zimmerman v. Zimmerman (1992), 1992 CanLII 8027 (SK QB), 104 Sask. R. 150, at p. 153, (appeal to Court of Appeal dismissed without reasons, May 3, 1993): The resulting agreement should be recognized and enforced by our courts. Otherwise the primary purpose of the pretrial conference is lost. cost-saving and time-saving procedure would then be reduced to meaningless step int he litigation process. adopt the reasoning of Estey, J., in Revelstoke Companies Ltd. v. Moose Jaw et al., 1983 CanLII 2223 (SK QB), [1984] W.W.R. 52; 28 Sask. R. 115, at page 60 W.W.R.: ""Settlements of actions have been encouraged in our courts for great many years and it appears to me that the courts should be hesitant in upsetting or rectifying minutes of settlement unless of course there be something in the nature of fraud, incapacity of party, or the minutes of settlement are too vague to enforce or are obviously incomplete."" Since the judgment of this Court in Childs v. Childs Estate, 1987 CanLII 205 (SK CA), [1988] W.W.R. 746, there is no doubt that judge has the power, under Rule of s. 44 of The Queen's Bench Act, R.S.S. 1978, c. Q-1, to enforce or set aside an agreement compromising an action by summary proceedings. The law as stated in that judgment applies as well to agreements or settlements reached during the course of pre-trial conferences in matrimonial property matters. What the judge in this case failed to note was that the courts in Zimmerman and in Childs were dealing with complete agreements settling or purporting to settle all aspects of the actions in question. In this case, we are dealing with something entirely different: an agreement fixing the value of few items of property, reached during the course of negotiations with view to an overall property settlement between the parties. There was nothing in the evidence to indicate that the parties intended that each individual item agreed to during the course of negotiations toward final agreement would constitute separate, independent, binding, and enforceable agreement irrespective of whether agreement was reached on all of the other items outstanding between the parties. These circumstances lead rather to the conclusion that each item agreed to was subject to reaching an overall final agreement. Accordingly, there was no contract that the judge could enforce. That is not to say that the parties cannot reach several separate independent, binding and enforceable agreements as part of an effort to reach an overall settlement of the matters in issue between them, but in order to do so, the intention of the parties to settle on a piecemeal or instalment basis must be clear. And, as noted above, nothing in the evidence indicates such an intention in this case. It might be added that the quotation from Zimmerman relied on by the trial judge, and quoted above, itself says that settlement should not be enforced by the court if it is ""obviously incomplete"". One final comment as to Zimmerman. The judgments in Zimmerman and in number of Queen's Bench judgments which have followed it have taken their authority to enforce settlements reached during pre-trial conferences from Queen's Bench Rule 184A. That Rule is contained in Part Fourteen of the Queen's Bench Rules, Offer To Settle, which contemplates formal written offer to settle to be served on the other party (Rule 181), and formal written acceptance to be served on the other party (Rule 183), and means of enforcing offers made and accepted under the Rules 181 and 183 (Rule 184A). While these Rules may apply to some settlement agreements made during pre-trial conferences, they would not apply in most cases where agreement is reached by negotiation, rather than by formal written offers and acceptances in compliance with the Rules. In the cases of negotiated settlements, the application to enforce, or to set aside, should be made under Rule of s. 44 of The Queen's Bench Act as was done in Childs. The appeal is therefore allowed. There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 13th day of October, A.D. 1995. SHERSTOBITOFF J.A. concur BAYDA C.J.S. concur JACKSON J.A.","After a series of pre-trial conferences, and the exchange of some correspondence between the parties lawyers, the husband took the position that the parties had reached a binding agreement as to the value of his pension. The wife disagreed and a trial of this issue was directed and determined in the husband's favour. The wife appealed. HELD: Appeal allowed.  1)Since the judgment of this Court in Childs v. Childs Estate, [1988] 1 W.W.R. 746, there is no doubt that a judge has the power, under Rule 7 of s. 44 of The Queen's Bench Act, R.S.S. 1978, c. Q-1, to enforce or set aside an agreement compromising an action by summary proceedings. The law as stated in that judgment applies as well to agreements or settlements reached during the course of pre-trial conferences. 2)Parties will not usually intend to settle selected issues on a piecemeal basis, but rather will reach tentative agreements on selected issues conditional on an overall settlement agreement being concluded. Such was the parties' intention in this case, and accordingly, there was no settlement contract for the judge in the court below to enforce.  3)This is not to say that parties cannot reach several separate independent, binding and enforceable agreements as part of an effort to reach an overall settlement of the matters in issue between them, but in order to do so, the intention of the parties to settle on a piecemeal or installment basis must be clear. Nothing in the evidence indicated such an intention in this case. 4)In cases of settlement agreements reached at a pre- trial conference, the application to enforce, or to set aside, should be made under Rule 7 of s. 44 of The Queen's Bench Act as was done in Childs and not under Rule 184A as was the developing practice.",7_1995canlii4030.txt
14,"C.A.C. No. 130620 NOVA SCOTIA COURT OF APPEAL Hallett, Jones and Matthews, JJ.A. BETWEEN: RONALD ALBERT FOX and HER MAJESTY THE QUEEN Respondent H. Edward Patterson for the Appellant Kenneth W.F. Fiske, Q.C. for the Respondent Appeal Heard: January 8, 1997 Judgment Delivered: January 8, 1997 THE COURT: Leave to appeal is granted, the appeal is allowed and a new trial ordered per oral reasons for judgment of Jones, J.A.; Hallett and Matthews, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: JONES, J.A.: This is an application for leave to appeal from a decision of Mr. Justice MacLellan in the Supreme Court dismissing an appeal from the appellant\'s conviction under s. 253(b) of the Criminal Code. The Crown adduced evidence before Judge Clyde F. MacDonald in Provincial Court of breathalyzer readings of 110 and 120 milligrams. The appellant testified that he had consumed five pints of beer during the course of the afternoon, the last shortly before being stopped by the police. The main issue on this appeal is the application of the decision of the Supreme Court of Canada in St. Pierre v. The Queen (1995), 1995 CanLII 135 (SCC), 96 C.C.C. (3d) 385 (S.C.C.). In addition to the evidence of the appellant an expert employed by the R.C.M. Police was called by the appellant to show what effect the alcohol consumed by the appellant would have on the appellant's ability to drive when stopped by the police. In cross-examination the expert was asked to relate the readings shown by the tests to the alcohol consumed by the appellant. He stated that the readings were not consistent with the evidence of consumption given by the accused. He testified that the test results indicated blood alcohol concentration between 95 and 115 milligrams per cent. The trial judge concluded on the evidence that the blood alcohol level at the time of the test was different from the time of the offence. Based on St. Pierre he concluded that the Crown could not rely on the presumption of identity. The trial judge then stated: .. So, therefore, after looking at all the evidence with view as whole, find that the Crown is entitled to rely on the presumption of accuracy. I've made ruling that the Crown cannot rely on the presumption of identity, but indeed, that's not the end of the matter. then have to look at all of the evidence with view as whole to determine whether or not the accused has raised reasonable doubt. He then reviewed the evidence of the expert and stated: can only come to the inescapable conclusion that Mr. Fox consumed more of quantity of alcohol than he's indicated in his sworn evidence here today. After looking at all the evidence, with view as whole, including the certificate as well, and indeed the evidence of Mr. Westenbrink, find that reasonable doubt has not been raised in the mind of this Court by the accused, looking at all the evidence with view as whole. am satisfied that, beyond reasonable (sic) that Mr. Fox's reading at the time of the driving, 1650 hours, was indeed over point zero eight and accept the opinion of Mr. Westenbrink in this regard, that blood-alcohol concentration at 1650 hours would be between 95 and 115 milligrams percent. Taking the lower of those readings, which is 95 milligrams percent, is reading indeed over point zero eight. For those reasons, find Mr. Fox guilty as charged. On appeal to the Supreme Court the appeal was dismissed on the ground that the trial judge had committed no error in law. There are three grounds of appeal in the present appeal. It is only necessary to consider the second ground of appeal which is that the trial judge placed an onus on the appellant to raise reasonable doubt. Based on the decisions prior to St. Pierre v. The Queen it was clear that where the presumption under s. 258(1) applied there was an evidentiary burden on an accused to raise reasonable doubt. Based on St. Pierre where the presumption of identity does not apply then the Crown may rely on the remaining evidence including the certificate of analysis to prove beyond reasonable doubt that the accused was over .08 at the time of driving. The burden remains on the Crown. lacobucci, J. in delivering the judgment for the majority in St. Pierre stated at p. 406: should emphasize at this point that it is important to recall the essential difference between presumption and evidence. Section 258(1)(c) establishes presumption that the blood-alcohol level at the time of driving was the same as at the time of testing, but it does not provide evidence of this fact. It is simply short-cut for the Crown. If the accused is able to rebut the presumption by showing that the blood-alcohol level at the two times was different, then the Crown will have to call evidence to prove its case. The presumption simply establishes that the blood-alcohol level at the two times was the same. The evidence called would go to establishing what the accused's blood-alcohol level at the time of driving actually was. There is another aspect of the approach of the majority of the Court of Appeal in this case that merits comment. Essentially, the adoption of the line of reasoning advanced by the majority would place the onus on the accused to establish his or her own innocence. Specifically, if an accused were required to rebut the s. 258(1)(c) presumption in the manner put forward by the majority, the accused would necessarily have to prove that his or her blood-alcohol content was less than .08. If this position is accepted, and the materiality of the evidence of the accused depends upon reference to the legal limit, grey area exists between the breathalyzer result and the legal limit, and the burden of clarifying this will be placed on the accused when, in fact, the burden should rest with the Crown to prove its case. If the accused chooses not to call evidence, as is his or her right, and the Crown does not present additional evidence, the burden is in effect switched to the accused to establish that his or her blood-alcohol level was below .08 at the time of the offence, despite the fact that the Crown has not proved its case. If the Crown cannot establish beyond reasonable doubt that the accused's blood-alcohol level exceeded .08 this should not be sufficient to ground conviction. If the Crown in this appeal is correct, the accused must raise doubt as to his guilt despite the fact that the Crown may have introduced no evidence. Put another way, an accused may be able to meet the test as elaborated by Arbour J.A., but he may still not be able to pass the test proposal by the Crown without basically bearing the burden of proving his innocence. This position arguable raises concerns under the Canadian Charter of Rights and Freedoms and, accordingly, it should not be accepted, especially when there is another interpretation that does not raise such concerns. While the trial judge may have been referring to the evidentiary burden he went further and stated that the appellant had not raised a reasonable doubt on the whole of the evidence. With respect that was a fundamental error of law and therefore leave to appeal is granted, the appeal is allowed and a new trial ordered. Jones, J.A. Concurred in: Hallett, J.A. Matthews, J.A. Canada SPO 3625 Province of Nova Scotia County of Pictou IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Ronald Albert Fox and Her Majesty the Queen TRANSCRIPT Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Pictou, Nova Scotia Date Heard: July 19, 1996 Counsel: Mr. H. Edward Patterson, Esq., for the appellant Mr. Peter Rosinski, Esq., for the respondent PROVINCE OF NOVA SCOTIA COUNTY OF PICTOU IN THE PROVINCIAL COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN AND RONALD ALBERT FOX HEARD BEFORE: JUDGE CLYDE F. MACDONALD PLACE HEARD: NEW GLASGOW, PICTOU COUNTY, NOVA SCOTIA HEARD ON: SEPTEMBER 21 AND 22, 1995 DATE OF DECISION: DECEMBER 12, 1995 COUNSEL: PETER ROSINSKI, FOR THE CROWN H. EDWARD PATTERSON, FOR THE ACCUSED DECISION C.A.C. No.130620 NOVA SCOTIA COURT OF APPEAL BETWEEN: RONALD ALBERT FOX and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: JONES, J.A.","The appellant was convicted of failing a breathalyzer test. The trial judge concluded on the evidence that the blood alcohol level at the time of the offence was different from the time of the offence, and found that the Crown could not rely on the presumption of identity. He ruled, however, that they could rely on the presumption of accuracy, and placed an onus on the appellant to raise a reasonable doubt on the whole of the evidence. The appellant appealed. Allowing the appeal and ordering a new trial, that the trial judge committed a fundamental error of law by ruling that when the Crown is forced to rely on the balance of the evidence, the accused must raise a reasonable doubt, a burden that clearly remains on the Crown.",1997canlii9869.txt
15,"J. 2004 SKQB 379 D.I.V. A.D. 1994 No. 016328 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: MONICA LYNN DOROSH (ANTONOWITSCH) and WAYNE JOSEPH DOROSH RESPONDENT Ian D. McKay, Q.C. for the petitioner Wayne Joseph Dorosh self-represented FIAT SANDOMIRSKY J. September 17, 2004 [1] On February 13, 2004, the respondent, Wayne Joseph Dorosh, acting on his own behalf, applied to this Court, in Chambers, to vary the support and access provisions contained within consent judgment of this Court granted May 2, 1995. That judgment provided for the divorce of the petitioner and respondent, distribution of the matrimonial property estate of the couple, as well as custody, access and support for the child of the marriage, Letitia Paige Dorosh (born August 22, 1989). [2] Mr. Dorosh sought to alter custody in 1997. Mr. Justice McIntyre rendered judgment upon that application on July 31, 1997. Central to that application was Mrs. Dorosh, now Antonowitsch’s declared intention to relocate with Letitia from Saskatchewan to Kelowna, British Columbia. In written decision Mr. Justice McIntyre dismissed Mr. Dorosh’s interim application and directed trial on the issue of whether there should be variation of the custody provisions of the May 2, 1995 judgment. The terms of the 1995 judgment prescribe that Ms. Antonowitsch, is the sole custodian of Letitia. The matter never proceeded to trial. [3] On January 20, 2003, Mr. Dorosh again applied for variation of the 1995 judgment. At that time Mr. Dorosh requested the following relief: (a) variation of custody and access based on the wishes of the child; and (b) variation of the child support which was set in 1995 at $250.00 per month to be redefined under the provisions of the Federal Child Support Guidelines (SOR/97-175, as am.). [4] Letitia was then 13 years old. Today she is 15 years old and Grade 10 student at Sheldon Williams Collegiate in Regina. [5] On January 24, 2003, Mr. Justice Smith ordered that the last of the variation applications be adjourned sine die in order to await “Voices of Children” report. The status of matters was revisited in chambers on November 25, 2003, at which juncture Mr. Justice Scheibel provided directions to the parties to assist in bringing Mr. Dorosh’s last application to vary before the Court in readied state for argument. [6] This application finally proceeded to be argued before Madam Justice Dawson on January 21, 2004. written decision was rendered on January 26, 2004. That fiat has direct bearing upon the present application and therefore the text is set forth and read as follows: Wayne Dorosh applies to vary the custody and child support order of May 2, 1995. Mr. Dorosh seeks to vary the custody order on the basis that his daughter, Letitia, born August 22, 1989, (currently 14 years old) wished to spend more time with him. “Children’s Voices Report” was prepared. The assessment and/or conclusion of the assessor is contained on page 5: Letitia treasures both of her parents, and is able to benefit from each relationship’s strengths to the fullest. She would not like to alter her relationship with either parent, only the time she is able to spend with her dad. She indicates, that given her age, she should be able to determine when she can be with both parents. She recognizes, as she gets older, she will likely spend more time with her friends than with either parent, however, she would like to maximize her time with both parents. By having both parents agree to allow her to make her decisions about when she sees them, instead of having set schedule, Letitia believes she would benefit the most in both relationships. Letitia appeared very genuine in her desire to spend increased time with her father, and indicates the flexibility that has been recently added to the access schedule is exactly what she desired. Both parties indicate that Letitia has been spending more time with Mr. Dorosh, taking into account Letitia’s schedule. It appears that Letitia has access to Mr. Dorosh when she requests it and at the times that are convenient to Letitia. Mr. Dorosh acknowledges that this type of access is agreeable to him. Hopefully both parents will consider the “Children’s Voices Report” in the future and treat each other with respect and encourage and foster Letitia’s relationship with each of her parents, the two most important people in Letitia’s life. The access order shall be varied as follows: Wayne Joseph Dorosh shall have reasonable access to Letitia Paige Dorosh at all reasonable times having regard to Letitia’s wishes and her school and activities schedule. Mr. Dorosh seeks to vary the child support order and asks that the court order that he pay zero (0) child support on the basis that he has his daughter in his custody at least 40% of the time and on the basis that his income has changed. The child support order of May 2, 1995 required Mr. Dorosh to pay child support in the amount of $250.00 per month. am not satisfied that Letitia is in the custody of Mr. Dorosh 40% of the time and, in fact, Mr. Dorosh acknowledged in Chambers that Letitia had not spent as much time with him lately due to her own interests and commitments. Mr. Dorosh failed to file any income tax returns, notices of assessment or re‑assessment in support of his application. His affidavit sworn November 29, 2002 indicated that he was on disability. He attached to that affidavit T4 for 2001 which indicated that he received $9,383.565 from Saskatchewan Social Services. His financial statement sworn November 29, 2002 indicated that he was self‑employed but currently on disability and set out his income from disability to be $9,383.56. Mr. Dorosh filed further financial statement, on July 25, 2003. This financial statement was unsworn. Again this unsworn statement indicated that his income was $9,383.56 from disability income. Nowhere in the material does Mr. Dorosh state that he did not file income tax returns. Mr. Dorosh has not provided this information to the petitioner. advised Mr. Dorosh in Chambers that would be prepared to grant him an adjournment to file the appropriate financial information. also advised Mr. Dorosh that he bore the onus to prove that there was change in circumstances sufficient to warrant variation in child support and that he was required to file income tax returns, notices of assessment and pay stubs or disability income pay stubs. Mr. Dorosh did not wish to adjourn the application and asked the court to consider his application based on the evidence on file. Mr. Dorosh was, as of August 2003, 10 months in arrears of child support. I dismiss Mr. Dorosh’s application to vary child support and arrears. This is without prejudice to Mr. Dorosh to bring an application to vary with respect to the same relief if supported by the appropriate financial disclosure and documentation. There are no costs awarded. [7] What remains to be determined upon this application are the matters of custody, child support and cancellation of the arrears of child support. [8] Madam Justice Dawson did not address the matter of custody of Letitia. Accordingly, Ms. Antonowitsch remains the custodial parent pursuant to the provisions of the 1995 judgment. Should this order of custody be varied at this time? [9] variation application entails twostep process as set out in the Divorce Act, R.S.C. 1985, c. (2nd Supp.) at s. 17. That process was defined by the Supreme Court of Canada in the decision of Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670. material change of circumstance must be demonstrated to have occurred since May 2, 1995 by which the 1995 judgment, as it pertains to custody, is no longer appropriate. If this threshold step is met the Court will then proceed with fresh examination of the relevant facts and circumstances pertaining to custody, including the evidence of change. [10] The mere passage of time, in this instance nine years, would constitute material change of circumstance relevant to custody. Letitia is now 15 years old whereas at the time of the 1995 judgment she was merely six years old. Therefore it is appropriate in the circumstances to ask whether there should be variation of the custody order when Letitia is 15 years old. [11] The Children’s Voices Report dated June 4, 2003, described Letitia as “confident, happy, articulate, bright and spirited 13-year-old girl. She displays high level of maturity, understanding, emotional stability and insight into her relationships, activities and future.” Reading the Voices Report, if it characterizes Letitia accurately, then one can delight in the wholesome and mature outlook which Letitia exhibited. [12] The Voices Report quotes Letitia as indicating that she has two “awesome” parents. She says that she loves them and wants to be with them both. Letitia indicates that she has great relationship with both, although she recognizes her relationship with each of them is very different from her relationship with the other. [13] This enthusiasm which Letitia displays to each parent should not be confused by either parent—particularly Mr. Dorosh. Mr. Dorosh enjoys generous and fulfilling relationship with Letitia and he must not confuse his daughter’s affection and enthusiasm toward him as being to the exclusion of her mother. Madam Justice Dawson did not have to deal with declaration on the matter of custody because it was not requested at that time. But neither was it necessary. Today, Letitia is 15 and presumably all the wiser than she was two years ago. [14] In the Voices Report Letitia is quoted as indicating “her parents do not get along well together ‘at all’.” “[T]hey’ve tried to talk, but they are just two different people. They just need to not be together. don’t know how they were ever together.” Letitia then concluded, “Now it is better because they don’t talk.” The Voices Report continues at some length to quote Letitia’s view of her parents’ personalities and behaviour with remarkable wisdom given her then age of 13 years. What wisdom can come “out of the mouth of babes.” [15] Letitia has been in the primary care of her mother. Her principal residence continues to be with her mother and is closely located to her collegiate and circle of friends. It is clear that her best interests require that the status quo be continued. [16] Mr. Dorosh and Ms. Antonowitsch are not candidates for joint custody and shared parenting. Letitia’s view of the dysfunctional relationship between her parents compels this Court to preserve the status quo as being in the child’s best interests. Ms. Antonowitsch will continue as the sole custodian. Mr. Dorosh should not be offended by this conclusion. Rarely would court of law be so bold as to try to mandate an intelligent, mature and wholesome 15-year-old’s custody in the circumstances that prevail here. Both parents are in fact to be congratulated that they have parented Letitia to be who she is today. Letitia herself is to be congratulated on the manner in which her personal skills manage her relationship with each of her mother and father. [17] In January of this year Madam Justice Dawson varied access as was prescribed in the 1995 judgment. Nothing has changed to warrant a variation. The material change threshold has not been met. The existing access order allows Letitia to define the extent of access or time spent with each of her mother and father. At her age, Mr. Dorosh and Ms. Antonowitsch should be alive to the fact that Letitia deserves significant amounts of time to pursue her own social life, school studies, extracurricular activities and to have the freedom of quiet and private time. Letitia should not be made to feel obligated to spend more time with her mother and father at the expense of her own growing freedom and independence. Nor should the natural growth of child toward independence be misconstrued as sign of disaffection. Mr. Dorosh’s Driver’s Licence [18] The Court has allowed the director to reinstate Mr. Dorosh’s driver’s licence. This enables Mr. Dorosh to pick up and deliver Letitia without reliance on others. This also complements Mr. Dorosh’s opportunity to pursue employment in meaningful way and this Court encourages that the licence continue to be reinstated unless there is future disobedience of this Court’s judgment and order. Child Support and Arrears [19] Mr. Dorosh asks to have the accumulated arrears of child support expunged and that his obligation to contribute to Letitia’s care and maintenance be reduced from $250.00 per month to zero. [20] In his application Mr. Dorosh states his request on the basis that the parties share custody of Letitia, that is, that Letitia is residing with her father at least 40% of the time. In Mr. Dorosh’s supporting affidavit he fails to provide the Court with any evidence that Letitia is indeed residing with him or under his direct supervision and control. There is the mere statement that there is a “50-50 living arrangement from the beginning of the proceedings.” Nor does Mr. Dorosh provide any evidence nor explanation at to why he has failed to pay child support which creates the present arrears. [21] In an unsworn financial statement filed on July 25, 2003, Mr. Dorosh informs the Court that he is self-employed. He states in the year 2001 he received $9,383.56 in Employment Insurance benefits and had no other income. In the same financial statement Mr. Dorosh claims his annual living expenses are modest $14,160.00, thus creating an annual deficit of $4,776.44. In calculating his expenses, Mr. Dorosh included his obligation to pay $3,000.00 per year in child support. In fact, Mr. Dorosh acknowledges that he has not made those payments for the better part of two years. statement of arrears filed in the proceedings together with accrued arrears to and including the month of September 2004, would now total $5,734.00. [22] Throughout oral argument Mr. Dorosh asserted that he pays for many of Letitia’s needs and is building up an education trust fund for her college years. However, in the financial statement no expense is disclosed for either purpose, indeed no childcare costs are disclosed. The Employment Insurance benefits which Mr. Dorosh received in 2001 and any disability benefits since that date, would provide Mr. Dorosh with bare subsistence and no financial ability to provide for Letitia as he claims. [23] second financial statement was filed on February 13, 2004, unsworn and undated, in which Mr. Dorosh claims that he has been unemployed since the year 2000. Again, he claims to have received Employment Insurance benefits totalling $9,383.00 and expenses identical to that claimed in the earlier financial statement. In addition, Mr. Dorosh filed notices of assessment for the tax years 2001 and 2002 in which it is affirmed that Mr. Dorosh’s total income was $9,383.00 in the year 2001 and rose to $9,940.00 in the year 2002. Mr. Dorosh filed 2002 income tax return which disclosed his annual income was $9,940.00 derived from social assistance. [24] Ms. Antonowitsch has filed three affidavits in this proceeding, each at different date during this protracted application. In the most recent of these affidavits, sworn March 18, 2004, she attests that Mr. Dorosh’s title to his residence at 258 Scarth Street was transferred into the name of his parents in April 2001. The new title appears in the names of Joe and Irene Dorosh and is dated March 29, 2001. It discloses the property to be valued at $50,000.00 and shows that previous first mortgage granted by CIBC was discharged from the title on April 25, 2001. copy of the transfer from Mr. Dorosh to his parents was also entered as an exhibit indicating consideration was paid to the transferor of $50,000.00. [25] No evidence has been provided by either party as to why this transfer occurred and what proceeds were realized from the “sale.” Mr. Dorosh asserted in his oral argument that the bank was foreclosing. However, the title evidence would indicate that if such proceedings were instituted they did not conclude and the mortgage was paid out and discharged. [26] Ms. Antonowitsch suggests in her affidavit that Mr. Dorosh earns an income in construction, in the siding business, and also assists his family in buying and selling antiques. At paragraph 15 of her affidavit Ms. Antonowitsch states: 15. THAT had discussions with him and even though he was claiming in his materials that he was not working he admitted to me that he was in fact working however indicated that he wouldn’t be providing any documentation to substantiate this. [27] In the same affidavit, at paragraph 17, Ms. Antonowitsch denies that Letitia has spent 40% or more of her time with the respondent. The measure of time for the purposes of the 40-60 guideline rule examines total time including days when child is at school. Letitia remains under her mother’s dominion and control while in school. She visits with her father at times and in the manner which she deems appropriate. That is what Madam Justice Dawson’s order provides. During the summer holidays Letitia may have spent equal amounts of time under the charge and care of each of her parents, but on the whole there is no evidence that Letitia’s time with her father exceeds 40% or more of the year within the meaning of the Guidelines. [28] Finally, the affidavit of Ms. Antonowitsch, states that Mr. Dorosh has admitted to her that he does work on his parents’ farm, assists in the trading of antiques and does siding contracts. [29] In oral argument Mr. Dorosh asserted that he contributed to his daughter’s care and that he is also contributing to her education trust fund. If these expenditures were in fact made over and above his own living costs, would be compelled to accept the fact that he has financial resources available to him other than the $9,940.00 of social assistance which is disclosed in his tax return and financial statement. [30] Despite the grounds for relief recited in the application for variation, the heart and essence of Mr. Dorosh’s application is based upon his claim that his health has, and continues to preclude him from being able to work. Initially Mr. Dorosh filed letter from his personal physician, Dr. R. H. Hatfield which letter is dated April 19, 2004 and reads as follows: The patient has been struggling with depression and anxiety for quite some time now. He is on medication for these problems and we are doing the best we can, but he is not in any position to work or look for work at the present time. The above patient has been under my care for the last six years and has experienced this problem for all these years. He has had his ups and downs, but is unable to work presently and has been unable to work for all these years. cannot say when my patient will be able to return to the work force. It is his intention to return at some stage, but due to the severity of his illness and its chronic nature, don’t foresee return in the next years. He has been off work since 2000 until the present. [31] An application was granted to Ms. Antonowitsch compelling Dr. Hatfield to produce his clinical notes and recordings on Mr. Dorosh’s file. subsequent court order was granted allowing Ms. Antonowitsch to examine Dr. Hatfield for discovery. The transcript of evidence reveals an extensive and thorough cross-examination of Dr. Hatfield upon his April 19 letter, clinical notes and his assessment of his patient, Mr. Dorosh. Nowhere in Mr. Dorosh’s case did he reveal nor did he claim to be an alcoholic, heavy drinker or one who uses marijuana. Mr. Dorosh claims that he suffers from chronic depression and anxiety. Mr. Dorosh relies solely upon Dr. Hatfield’s evidence to prove that he is so debilitated by his state of depression and anxiety that he could not and will not be able to earn livelihood. [32] The following excepts from Dr. Hatfield’s evidence at discovery are germane to this application for rescission of arrears and eliminating Mr. Dorosh’s obligation to pay support for his daughter: Then goes down to—when he told you that he was drinking heavily, did he tell you how long that had been going on? When questioned him at that time, he said that he’d been drinking heavily big part of his life, and said to him, discussed alcohol with you before put you on the medications, and he said that, stopped and I’ve started and I’ve stopped and I’ve started. There have been times in my life where I’ve actually not drank, but I’ve been—I have had—I have been using alcohol for good period of my life. So did he tell you that he’d been using it for quite while before he attended on June the 11th of '01? Basically what he said was—his words to me was that, I’ve started drinking heavily again. So at that time, questioned him and he said that he’d been drinking on and off for good proportion of his life. And so said to him, well, you obviously have to stop being on these medications, and said to him, would you think you’d be able to stop by yourself or do you think you need some help? And he said, no, he thinks he can stop by himself. Did you offer to send him for some assessment or rehab? did and he said that he didn’t feel it was necessary. He said he thinks he can stop by himself. Did it cause you concern that one of the most common medical causes of depressive episodes, other than primary depression, is alcohol? It did cause me concern and it still does to this day. It still does? Yeah. And he may not have depression. It may be as result of his drinking and his drug intake; isn’t that correct? That’s correct. And once again going through this, and think you’ve agreed, “The most common medical causes of depressive episode (other than primary depression) include: Substance abuse and/or dependence involving sedatives, especially alcohol”? Alcohol is the biggest cause of depression there is. And the use of alcohol can cause the same type of symptoms as the depression? Absolutely. And that’s compounded if, in fact, he’s taking drugs such as marihuana? Oh, yeah, it’s compounded, very much so. So you had sent him—so at this point in time it was causing you some concern as to whether or not it was clinical depression or if it was depressive symptoms as result of his drinking; isn’t that correct? That’s correct, it absolutely was big concern for me. ... Did you continue to talk to him about his use of alcohol throughout this period of time? Yeah, spoke to him about it on every visit. said to him, so how’s the drinking going? You know that you shouldn’t be drinking on these medications, and said, are you drinking? And his stock answer to me was, have couple of beers every now and again. That was his stock answer to me. So the bottom line was he hadn’t quit drinking? Absolutely. ... No. And the types of symptoms that he was showing with are consistent with the use of alcohol and drugs as well? Absolutely. Sure they are. And, mean, as you can see on January the 14th of '02, he’s smoking marihuana and drinking still. ... And then we go to this January the 14th of '02. He comes in, he’s not doing that well, he’s smoking marihuana and drinking? Absolutely. He’s taking medication, but he’s having many anxiety episodes, which explain to him could largely be brought on by his marihuana that he’s mixing with his alcohol, and the fact that the medications aren’t working is because he’s drinking excessively. ... So covering both of those aspects to determine whether or not he was actually depressed or if it was because of his drinking? Correct. said, listen, you’ve got to go and get some help with regards to this. can send you to the right people to look at your alcoholism and to look at your depression, and he refused. Did he say why? He said, think can stop drinking. think can get this under control. just need my medication. So said, well, can’t force you, but don’t think you can get it under control because it’s been going on for many years now. And to the best of your knowledge, he hasn’t got it under control; it’s still going on? Correct, to the best of my knowledge. ... So basically what we’re dealing with is if—or what is causing his major problems is self-induced? Correct. If he stops his drinking, stops the drugs, he can go back to work right now, can’t he? would say he probably would need to be on his antidepressant medication, but if he stayed on his antidepressant medication and if he stopped drinking and he stopped using marihuana, he would be able to go back to work And that’s been the situation from day one, if he stayed away from the booze, stayed away from the marihuana, took his medication? think that that’s been his problem all his life has been his booze, yes. And that’s what we’re talking about, his booze? Yeah, think that’s been his big problem. And, in fact, if he stopped the booze and if he stopped the medication—I think as you said earlier, he may not need any medication because that may be causing his symptoms? Correct. would say that you’ve summed it up. He may not, but certainly think that if he stopped drinking and he stopped taking his marihuana, he would be able to go back to work. could control that depression if there indeed was still depression, which there may not be, as you say. agree with you. ... But even with his situation, as you’ve said, the alcohol, he could go out and do—there are all kinds of jobs that he could do? For example, out on the farm, he could do that? He could. And he could have done that from day one? He could. I’ve never felt as result of never attending, never going to the hospital because he was that bad, I’ve never seen any suicidal ideation, and I’ve never ever seen any kind of situation where I’ve felt that he’s been too depressed to work. So the answer to that question is, yes, do believe that he could even do something now. There are people— He could have since 2002? ... Going back to the time that you signed the first one with Human Resources, he could have gone out and done construction work, he could have done manual labour work, he could have done farm work, he could have done siding, he could have done all of that? told him so. Yes, and he was well aware of that and he could have done it then and he can still do it today? Yes. And he can go out and earn money to pay something towards his daughter? [33] The Court recognizes that alcoholism is disease and that in chronic state can be debilitating. In the exchange quoted above, Dr. Hatfield emphasizes that Mr. Dorosh exacerbates his depression and anxiety with the use of alcohol and marijuana. At minimum, with abstinence and medication Mr. Dorosh could function normally. At best, with abstinence Mr. Dorosh’s anxiety and depression may be eliminated. In either scenario, Dr. Hatfield states that since 2002 he believes Mr. Dorosh could have worked and thereby contributed to Letitia’s support. [34] Based upon this medical evidence I cannot conclude that Mr. Dorosh’s generalized anxiety and depression disorder is beyond his own control—that is, Dr. Hatfield does not say that Mr. Dorosh was, is or will be incurable. He is not hopelessly addicted and never has been. If that were so, would equate such hopeless addiction as debilitating illness which precluded Mr. Dorosh from working and thereby earning livelihood by which he could contribute to the support of his daughter. If that were the case, would have cancelled the accumulated arrears because Mr. Dorosh’s illness was beyond his control. However, the evidence of Dr. Hatfield, and indeed of Mr. Dorosh himself, is that Mr. Dorosh still has power over his own destiny and could choose to help himself by eliminating alcohol and marijuana use. [35] Mr. Dorosh’s health nemesis must be examined in light of the law regarding rescission of child support arrears. The burden of proof or onus to show that nonpayment of child support over the time the arrears accrued was the consequence of matters over which he had little or no control lies upon the applicant/payor, Mr. Dorosh. In his pleadings he stated Letitia resided with him 50% of the time, fact which is not true. In his oral argument, Mr. Dorosh relied almost exclusively upon the fact that his depression and anxiety disorder was reason to expunge the arrears of support and to reduce his future obligation to zero. find this argument totally lacks merit. [36] At no time in his affidavit material, nor oral argument, did Mr. Dorosh make reference to alcohol or marijuana. He urged the Court to believe that his depression and anxiety disorder is genetic in origin. Dr. Hatfield confirmed the extent to which alcohol and drug misuse is self-inflicted and that even were the depression and anxiety physiologically manifested, that proper use of medication would control the disorder permitting Mr. Dorosh to work. Dr. Hatfield also would not foreclosure the prospect that abstaining from the use of alcohol and marijuana may eliminate the depression and anxiety symptoms altogether, thereby removing the need for medication. Therefore find that Mr. Dorosh was capable of controlling his depression and anxiety by either abstaining, or by abstaining and using his medication properly, throughout the period 2002 to the present. Mr. Dorosh has failed to meet the burden of proof by demonstrating that his depression and anxiety disorder was the consequence of origin and factors beyond his control and thus preventing him from working and having an income with which to pay his child support obligations during the period under review. The application for variation of child support and cancellation of child support arrears is dismissed with costs. [37] To assist Mr. Dorosh in understanding the applicable law, quote from the recent decision of Madam Justice Wilkinson of this Court delivered in the case of Stadnyk v. Stadnyk, 2004 SKQB 230 (CanLII); [2004] S.J. No. 355 (QL) (Sask. Q.B.), together with the authorities quoted therein. Paragraphs 26, 30 and 33 of that decision are instructive: [26] The established jurisprudence, as outlined in Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 44 R.F.L. (4th) 314 (B.C.C.A.) and Pagani v. Pagani, 2000 BCSC 75 (CanLII), [1999] B.C.J. No. 3051 (B.C.S.C.) (QL), is that the court must consider not only the amount of income actually earned, but also the amount that could be earned if payor was working to capacity. The general rule is that parent cannot avoid child support obligations by self‑induced reduction of income. The petitioner’s decision to pursue romantic relationship that jeopardized his career potential created self‑induced reduction of income. It cannot stand on any higher footing than an arbitrary termination of employment without justification, or unilateral decision to pursue higher education rather than working. In these cases, the courts have not been prepared to relieve payor of the child support obligation. [30] Recent appellate decisions confirm that parent can be found to be intentionally under‑employed if that parent is not reasonably maximizing his or her income, regardless of whether there is any accompanying intention to avoid child support obligation. See: Llewellyn v. Llewellyn (2002), 2002 BCCA 182 (CanLII), 26 R.F.L. (5th) 389 (B.C.C.A.) and Drygala v. Paul (2002), 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.). [33] Except for the limited rescission of arrears affected by this retroactive variation, am not prepared to discharge the arrears further. It must be established not only that payor has present incapacity to pay, but also that he or she will not be able to pay at any time in the future. See: Haisman v. Haisman (1994), 1994 ABCA 249 (CanLII), R.F.L. (4th) (Alta. C.A.); Diebel v. Diebel (1997), 1997 CanLII 11005 (SK QB), 28 R.F.L. (4th) 100, 155 Sask. R. 96 (Q.B.). [38] Mr. Dorosh’s belief that he was not able to work since 2002 and cannot work at the present time is self-induced and false belief. If Mr. Dorosh were willing, there is no reason for me to believe that he could not earn an annual income of $24,000.00, which impute as being his annual income for child support purposes. Commencing September 1, 2004, Mr. Dorosh will pay to Ms. Antonowitsch the sum of $202.00 on the first day of each and every month for so long as Letitia is child within the meaning of the Divorce Act. This order, being made subsequent to May 1, 1997, falls under the provisions of the Guidelines and amended provisions of the Income Tax Act, R.S.C. 1985, c. (5th Supp.) with consequence that the amount paid is nondeductible for Mr. Dorosh’s tax purposes and is nontaxable in the hands of Ms. Antonowitsch. The after tax effect should equate to the former level of real support. [39] Ms. Antonowitsch is entitled to her taxable costs against Mr. Dorosh.","FIAT: The issues to be determined on this application are custody, child support and cancellation of the arrears of child support. HELD: 1) On the issue of custody, the mere passage of time, in this instance 9 years, would constitute a material change in circumstances relevant to custody. The child is now 15 years old. The parties are not candidates for joint custody and shared parenting. The child's view of the dysfunctional relationship between her parents compels this Court to preserve the status quo as being in the child's best interests. The petitioner will continue as the sole custodian.  2) The access was varied in January 2004. Nothing has changed to warrant a variation. 3) There was no evidence to support the respondent's statement that the child is living with him half the time. There was no evidence or explanation as to why he has failed to pay child support, which creates the present arrears. The evidence with respect to the respondent's finances was unsworn and out of date. In oral argument, the respondent asserted that he contributed to his daughter's care and that he is contributing to her education trust fund. If these expenditures were in fact made over and above his own cost of living, the Court would be compelled to accept the fact that he has financial resources available to him other that the $9,940 of social assistance which is disclosed in his tax return and financial statement. 4) The essence of the respondent's application for variation of the child support is based on his claim that his health has precluded him from working. The respondent's doctor was examined and, based on that medical evidence, the Court could not conclude that the respondent's generalized anxiety and depression disorder is beyond his control. The evidence was that the respondent could choose to help himself by eliminating alcohol and marijuana use. The respondent failed to meet the burden of proof by demonstrating that his depression and anxiety disorder was the consequence of factors beyond his control and thus preventing him from working and having an income with which to pay his child support obligations during the period under review. The application for variation of child support and cancellation of child support arrears is dismissed with costs.",3_2004skqb379.txt
16,"LANE J.A. C.A. No. 02922 NOVA SCOTIA COURT OF APPEAL Jones, Chipman and Roscoe, JJ.A. BETWEEN: DONNA MARCHAND and ABLE ELECTRIC LTD., body corporate Respondent L.W. Scaravelli for the Appellant David P. S. Farrar for the Respondent Appeal Heard: January 26, 1994 Judgment Delivered: January 26, 1994 THE COURT: Appeal dismissed without costs per oral reasons for judgment of Jones, J.A.; Chipman and Roscoe, JJ.A. concurring JONES, J.A.: This is an appeal from a decision of Mr. Justice Kelly in the Supreme Court which held that the action herein by the appellant is barred by s. 18 of the Workers\' Compensation Act R.S. 1989, c. 508. The appellant was employed by MacKenzies Eastern Transport Limited. MacKenzies carried on business in commercial warehouse at Musquodoboit Harbour owned by the respondent and leased to MacKenzie. On October 7, 1991 the appellant, while in the course of her employment was struck by tile which fell from the office ceiling. MacKenzies and the respondent were employers under Part of the Workers' Compensation Act. The appellant received benefits under the Act. The appellant commenced the present action against the respondent for damages with the consent of the Workers\' Compensation Board. chambers application was made before Mr. Justice Kelly to determine whether the action was barred by s. 18 of the Act. There was an agreed statement of facts. The following provisions of the Act are relevant: ""17(1) Where an accident happens to worker in the course of his employment in such circumstances as entitle him or his dependants to an action against some person other than his employer, the worker or his dependants if entitled to compensation under this Part may claim such compensation or may bring such action, provided written notice of election to bring such action or to claim compensation shall be made to the Board within six months from the date of the accident. 18 In any case within the provisions of subsection (1) of Section 17, neither the worker nor his dependants nor the employer of such worker shall have any right of action in respect of such accident against an employer, his servants or agents, in an industry to which this Part applies, and in any such case where it appears to the satisfaction of the Board that worker of an employer in any class is injured or killed owing to the negligence of an employer or of the worker of an employer in another class to which this Part applies, the Board may direct that the compensation awarded in such case shall be charged against the last mentioned class. 20 The provisions of this Part shall be in lieu of all rights and rights of action, statutory or otherwise, to which worker or his dependants are or may be entitled against the employer of such worker for or by reason of any accident in respect of which compensation is payable hereunder or which arises in the course of the worker's employment in an industry to which this Part applies at the time of the accident, and no action in respect to such accident or any injury arising therefrom shall lie."" After reviewing the provisions of the statute and the authorities Mr. Justice Kelly concluded: ""In that case, Justice Patterson held that the messenger boy's action was barred. Although again, that decision did not deal specifically with the type of fact situation before this Court, in that case, and in the other Nova Scotia cases, there is no indication that s. 18 should be restricted in any way from what Justice Patterson has referred to as 'its clear language'. In s. 18, the ban is against actions of \'an employer\', not \'his employer\', and would appear to extend the ban to all employers to which Part I of the Act applies. We agree with the reasons for judgment of the learned chambers judge. The appeal is dismissed without costs. J.A. Concurred in: Chipman, J.A. Roscoe, J.A. 1992 S.B. No. 81720 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DONNA MARCHAND and ABLE ELECTRIC LTD., body corporate DEFENDANT HEARD: Before The Honourable Justice Wm. Kelly, in Chambers, at Halifax, Nova Scotia DATE: September 21, 1993 DECISION: September 21, 1993 (orally) COUNSEL: Paul B. Miller, Esq., solicitor for the Plaintiff David P.S. Farrar, Esq., solicitor for the Defendant Graham Steele, Esq., solicitor for Workers' Compensation Board C.A. .No. 02922 NOVA SCOTIA COURT OF APPEAL BETWEEN: DONNA MARCHAND and ABLE ELECTRIC LTD., body corporate Respondent REASONS FOR JUDGMENT BY: JONES, J.A.","The respondent owned a warehouse and leased it to the appellant's employer. During the course of her employment, a ceiling tile fell and struck the appellant. Both the respondent and the appellant's employer were employers under the Workers' Compensation Act. The appellant received benefits under the act. She commenced the action against the respondent with the consent of the Workers' Compensation Board. The trial judge held the action barred pursuant to the act. Dismissing the appeal, that s. 18 of the Act bars actions against any employer to which Part I of the Act applies. It is not necessary that the employer be the appellant's employer.",1994canlii4106.txt
17,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 269 Date: 2016 08 19 Docket: NJ 33 of 2013 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and VITERRA INC. Counsel: Douglas G. Curliss, Q.C. and Rochelle C. Wempe for the Crown Peter T. Bergbusch and Kevin T. Miller for Viterra Inc. DECISION CURRIE J. August 19, 2016 [1] On September 8, 2011 Paul Cruse was employed at grain terminal near Rosetown, Saskatchewan that was owned and operated by the accused, Viterra Inc. On that day Mr. Cruse entered grain receiving pit in the terminal, where he was engulfed in grain and consequently died of suffocation. [2] Viterra is charged under the Canada Labour Code, RSC 1985, L-2 in connection with this incident. The indictment sets out the following six counts: 1. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that the health and safety at work of every person employed by it, namely Paul Cruse, was protected, by failing to instruct Paul Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety directly resulting in Paul Cruse’s death contrary to s. 124 of the Canada Labour Code and thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 2. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that the health and safety at work of every person employed by it, namely Paul Cruse, was protected, by failing to instruct Paul Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety, contrary [sic] s. 124 of the Canada Labour Code and thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. 3. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to provide proper training and supervision necessary to ensure that the health and safety of an employee, namely Paul Cruse, was protected, by failing to ensure that Paul Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside the receiving pit of grain elevator as required by paragraph 125(1)(q) of the Canada Labour Code and prescribed by subsection 19.6(2) of the Canada Occupational Health and Safety Regulations, which failure directly resulted in the death of employee Paul Cruse, thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 4. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to provide proper training and supervision necessary to ensure that the health and safety of an employee, namely Paul Cruse, was protected, by failing to ensure that Paul Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside the receiving pit of grain elevator as required by paragraph 125(1)(q) of the Canada Labour Code and prescribed by subsection 19.6(2) of the Canada Occupational Health and Safety Regulations, thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. 5. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that employee Paul Cruse was made aware of every known or foreseeable health or safety hazard, namely the hazard of being engulfed by free flowing granular material in particular the contents of receiving pit at grain elevator, as required by paragraph 125(1)(s) of the Canada Labour Code which directly resulted in the death of employee Paul Cruse, thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 6. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that employee Paul Cruse was made aware of every known or foreseeable health or safety hazard, namely the hazard of being engulfed by free flowing granular material in particular the contents of receiving pit at grain elevator, as required by paragraph 125(1)(s) of the Canada Labour Code thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. A. Provisions of the Code and Regulations [3] As set out in the above counts, Viterra is charged with respect to ss. 124, 125(1)(q) and (s), 148(1) and (2) of the Code: 124 Every employer shall ensure that the health and safety at work of every person employed by the employer is protected. 125(1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in work place that is not controlled by the employer, to the extent that the employer controls the activity, ... (q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work; ... (s) ensure that each employee is made aware of every known or foreseeable health or safety hazard in the area where the employee works; 148(1) Subject to this section, every person who contravenes provision of this Part is guilty of an offence ... (2) Every person who contravenes provision of this Part the direct result of which is the death of, serious illness of or serious injury to an employee is guilty of an offence ... [4] The counts against Viterra also refer to s. 19.6(2) of the Canada Occupational Health and Safety Regulations, SOR/86-304: 19.6(2) The employer shall provide education to an employee (a) whenever new hazard information in respect of hazard in the work place becomes available to the employer; and (b) shortly before the employee is assigned new activity or exposed to new hazard. [5] Of relevance in this matter is the defence of due diligence, referred to in s. 148(4) of the Code: 148(4) On prosecution of person for contravention of any provision of this Part, except paragraphs 125(1)(c), (z.10) and (z.11), it is defence for the person to prove that the person exercised due care and diligence to avoid the contravention. B. Onus of proof [6] The Crown bears the onus of proving, beyond reasonable doubt, the actus reus of each count. If it does so the offence is proven unless Viterra proves, on balance of probabilities, that it exercised due care and diligence to avoid the contravention (due diligence): Saskatchewan Wheat Pool, 2000 SKCA 73 (CanLII) at para 6, 199 Sask 97 [Saskatchewan Wheat Pool CA]. [7] Relying on decision of this court in Saskatchewan Wheat Pool (1999), 1999 CanLII 12942 (SK QB), 185 Sask 114 (QB) [Saskatchewan Wheat Pool QB] at paras 13 and 27, the Crown says that proof of injury or death is prima facie proof of violation of occupational health and safety legislation. That is, says the Crown, once the Crown proves beyond reasonable doubt that worker was injured or killed, the actus reus is proven, and so the offence is proven unless the accused demonstrates that it exercised due diligence. [8] In Saskatchewan Wheat Pool QB, the charges arose out of an incident in which, in the course of repair to large fan, an employee was injured by the moving fan blade. Justice Krueger addressed two counts under the Code. Count alleged that the accused appellant failed to ensure that the safety and health of every employee was protected in that the appellant failed to ensure that the repair work on the fan was performed in proper manner. Count alleged that the appellant failed to provide to employees the training and supervision necessary to ensure their safety and health. [9] Dealing with count 1, Justice Krueger said at para. 13: 13 agree with the trial judge that actus reus in count #1 has been proven beyond reasonable doubt, although not for the reasons stated by the trial judge. The fact that Greer suffered serious injury at work is evidence that the appellant did not ensure his safety and health as required. ... (emphasis added) [10] As to the charge of failing to ensure the health and safety of worker, then, Justice Krueger ruled that proving an injury to the worker proves that the employer did not ensure his health and safety proves the actus reus. [11] Shortly after Justice Krueger released that decision, though, the Court of Appeal addressed proof of the actus reus in Saskatchewan Wheat Pool CA, dealing with different incident than that dealt with in Justice Krueger’s decision. At para. Justice Sherstobitoff described with approval the trial judge’s analysis on that point: The trial judge held that s. 124 creates strict liability offence, one that is proved upon establishing the actus reus beyond reasonable doubt, leaving defence of due diligence to be proved by the defendant on balance of probabilities. The trial judge rejected the idea that mere proof of an accident was sufficient to prove the actus reus before shifting the burden of proof of due diligence to the defendant. Rather, the trial judge said that the Crown must first prove beyond reasonable doubt an apparent or prima facie breach of the duty of care [under s. 124] to ensure the safety and health at work of the employee. Obviously this apparent or prima facie breach would be from an objective standpoint, the standpoint of the reasonable and well-informed onlooker. The statute imposes on the employer duty to take all reasonable steps to ensure employee health and safety. And the law is in my opinion that the Crown must prove beyond reasonable doubt in this case that prima facie breach of that duty of care has occurred. Once it does that, and only if it does that, will the onus shift to the accused to show on balance of probabilities that he showed due diligence or took reasonable care. [12] Given the Court of Appeal’s approval of these remarks, I do not accept the Crown’s position that proof of a worker injury or death necessarily proves the actus reus of failing to ensure the health and safety of an employee. [13] In any event, Viterra is not charged with only the general allegation that it failed to ensure the health and safety of Mr. Cruse. Rather, counts and allege the manner in which Viterra failed to ensure his health and safety. Viterra is charged that it failed to ensure his health and safety “by failing to instruct Mr. Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety”. Mr. Cruse’s death does not necessarily establish that Viterra failed to adequately instruct him on how to unplug blockage inside receiving pit. Similarly, each of the counts 3, 4, and sets out particulars of how Viterra is alleged to have failed in its obligations. [14] The actus reus that the Crown must prove, beyond reasonable doubt, may be summarized as follows: (a) failing to instruct Mr. Cruse on how to unplug blockage in receiving pit (counts and 2); (b) failing to train and supervise Mr. Cruse so as to ensure his health and safety when responding to blockage in receiving pit (counts and 4); and (c) failing to ensure that Mr. Cruse was made aware of the hazard of being engulfed in grain in receiving pit (counts and 6). [15] As have noted, if the actus reus on any of these counts is proved, there remains the prospect of the defence of due diligence applying to them. C. Witnesses [16] Before set out the circumstances of the incident must address the evidence of some witnesses. This is because my findings as to the circumstances depend in part on the reliability or otherwise of the evidence of some witnesses. [17] Many witnesses testified at the trial, and received the videotaped and written evidence of one person, Bob Barrie, who died before trial. must discuss the evidence of three of these witnesses, being Bob Barrie, Clint Charlie and Art Garrett. [18] Bob Barrie was delivering grain to the terminal at the time of the incident. His truck was parked at the entrance to the terminal’s drive-in bay area, the location of the receiving pit that Mr. Cruse entered. [19] Mr. Barrie was interviewed by an RCMP officer on September 8, 2011, the day of the incident, and on that day he signed written statement. He was interviewed again on November 3, 2011, this time by federal Occupational Health and Safety officer, and on that day as well he signed written statement. Subsequently Mr. Barrie was diagnosed with cancer. He agreed to undergo videotaped interview by an RCMP officer, and that interview was conducted July 11, 2013. Mr. Barrie died December 24, 2013. [20] At the time of the incident Mr. Barrie was self-employed contract driver, having previously had career as an RCMP officer. In addressing his evidence consider that as former RCMP officer he had training and experience in observing events, sometimes under circumstances of duress. As well, from the testimony of those who interviewed him and from my observations of him in the videotaped interview conclude that on the three occasions of giving statement Mr. Barrie was equally cogent and able to remember and relate what he had seen on September 8, 2011. [21] Nonetheless, within and among his three statements there are some minor inconsistencies. If they were the only inconsistencies, they would not cause me to doubt the reliability of Mr. Barrie’s statements. When consider them along with other concerns, however, they become pertinent. [22] The minor inconsistencies are these: (a) On November 3, 2011 Mr. Barrie said that he was hauling peas on September 8, 2011, but on July 11, 2013 he said that he was hauling canola. (b) On July 11, 2013 Mr. Barrie emphasized that, on September 8, 2011, Mr. Charlie did not refer to Mr. Cruse as “young fella”, but later in that interview he agreed that Mr. Charlie did refer to Mr. Cruse as “young fella”. (c) On September 8, 2011 Mr. Barrie said that he knew Mr. Cruse “just from the elevator”, meaning the Viterra terminal, but on November 3, 2011 he said, in agreeing that he knew Mr. Cruse, “Yes. know the family. Casual.” On July 11, 2013 Mr. Barrie said that he had known Mr. Cruse for quite few years, and that they used to be neighbours at the lake. [23] note also that on July 11, 2013 Mr. Barrie provided details that he had not provided previously. This could be nothing more than result of having full-length videotaped interview, except that one of those details is significant part of the narration of what Mr. Barrie saw Mr. Cruse do detail that he reasonably would be expected to have included in giving his earlier statements. This detail is Mr. Barrie’s observation that Mr. Cruse, after opening the hatch to the receiving pit, and after tossing down tool, “kinda looked around” before starting to climb down the ladder into the pit. Mr. Barrie related this detail on July 11, 2013, but he had not related it on September 8, 2011 or November 3, 2011. [24] Most significant is an inconsistency in Mr. Barrie’s recollection as to the order in which certain events took place, some specifically relating to Mr. Cruse’s location. On September 8, 2011 Mr. Barrie said that he saw Mr. Cruse immediately upon pulling his truck up to the drive-in bay area of the terminal, while Mr. Barrie was still in his truck. On November 3, 2011, though, Mr. Barrie said that on arriving at the drive-in bay area he got out of his truck and went into the terminal office, and that it was there that he saw Mr. Cruse. On July 11, 2013 Mr. Barrie said that Mr. Cruse was in the terminal office when Mr. Barrie entered it, but later in that interview he said that Mr. Cruse walked into the office after Mr. Barrie had entered it. [25] Taken together, these inconsistencies leave me unsure about the accuracy and reliability of Mr. Barrie’s evidence. Having misremembered or inaccurately related these elements of his recollection, he well may have misremembered or inaccurately related other elements. [26] The details of what people did and said in the moments before Mr. Cruse’s death are important. cannot be confident in the accuracy of what Mr. Barrie said that he saw and heard regarding the incident. Not everything that he related can be accurate, and have no way knowing which parts are accurate and which parts are not. Consequently, cannot and do not rely on any of Mr. Barrie’s evidence. [27] Clint Charlie was assistant manager of the terminal at the time of the incident. He was present during the events, and he had interaction with both Mr. Cruse and Mr. Barrie. There were some inconsistencies in Mr. Charlie’s evidence. As well, recognize that, in testifying, he may have been subject to natural tendency to want to avoid appearing to have made any mistakes that contributed to the incident. Bearing these factors in mind, though, still found Mr. Charlie to have testified overall in frank and honest manner. concluded that his description of events was reliable and largely accurate. In particular, on the topic of his interactions with Mr. Cruse and with Mr. Barrie accept that Mr. Charlie has accurately related what occurred and was said. [28] Art Garrett was manager of the terminal at the time of the incident. He was not present at the time of the incident, being away at company meeting in another province. In the course of his direct and cross-examinations some deficiencies were revealed in the operation of the terminal that Mr. Garrett managed. Some of those deficiencies related to matters of employee safety, as will discuss. Nonetheless, overall found Mr. Garrett to be honest and credible in testifying. accept his evidence. D. Circumstances of the incident [29] Trucks making grain deliveries to the terminal enter large drive-in bay area. The terminal has two grain receiving pits that are located immediately below the floor of that bay area. grain truck enters one of the two doors to the drive-in bay area and dumps grain through grates in the floor, into the receiving pit below. In September 2011 each receiving pit funneled grain through screen that was located about 20 feet below the bay area floor. The grain passed through the screen to bucket elevators (called “legs”) that carried the grain to various bins. [30] Late in the morning of September 8, 2011, around the time that Mr. Barrie had driven up to the drive-in bay area at receiving pit 2, Mr. Charlie was in the terminal’s control room, which looked out onto the drive-in bay area. He noted that, according to the instruments in the control room, the grain in receiving pit was flowing very slowly. That instrument reading indicated to him either that the pit was empty or that there was blockage at the screen at the bottom of the pit, preventing grain from emptying into the legs. [31] About an hour earlier that morning, Mr. Charlie had made the same observation. On that occasion he asked Mr. Cruse “to look into the pit to see if there was any product in there or if it was blocked in any way.” Using flashlight, Mr. Cruse looked into the receiving pit through the grate from above the pit, and he reported that there was just some minor build-up, but virtually no grain in the pit. Mr. Charlie then decided to dump the next load of grain into the pit, to flush out the minor build-up. [32] About an hour later, when Mr. Barrie had arrived to make delivery, and when Mr. Charlie again saw that the grain was flowing very slowly, Mr. Charlie again told Mr. Cruse to look into the receiving pit. He told Mr. Cruse “to take the flashlight and look in the pit to see if there was grain or if it was empty.” Mr. Charlie then walked over to Mr. Barrie’s truck, where he stepped up onto the step at the driver’s door of the truck and asked Mr. Barrie not to pull into the drive-in bay area because they were checking whether the receiving pit was blocked. [33] Sixty to ninety seconds elapsed between the moment that Mr. Charlie told Mr. Cruse to look into the receiving pit and the moment that one of the terminal employees realized that Mr. Cruse was in the pit. The evidence does not establish all of what Mr. Cruse did in that period. It is clear, though, that at some point he went to hatch that was off to the side of the bay area the hatch that led down to the pit. He opened the hatch, he climbed down and he stepped onto the grain that had accumulated in the pit. When he stepped onto the grain he was immediately engulfed and he suffocated. E. Actus reus [34] As have set out above, the actus reus that the Crown must prove, beyond reasonable doubt, may be summarized as follows: (a) failing to instruct Mr. Cruse on how to unplug blockage in receiving pit (counts and 2); (b) failing to train and supervise Mr. Cruse so as to ensure his health and safety when responding to blockage in receiving pit (counts and 4); and (c) failing to ensure that Mr. Cruse was made aware of the hazard of being engulfed in grain in receiving pit (counts and 6). [35] The Crown asks me to find, as fact, that Mr. Charlie told Mr. Cruse to deal with the blocked receiving pit. In doing so, the Crown relies on Mr. Barrie’s recollection that Mr. Charlie had indicated to Mr. Barrie that if the pit were blocked Mr. Cruse would have to go down into the pit to clear the blockage. have explained that do not accept the accuracy of Mr. Barrie’s evidence. Therefore, on that basis alone do not accept that Mr. Charlie made this remark to Mr. Barrie. [36] Further, accept Mr. Charlie’s evidence. He said that he would not have told Mr. Cruse or anyone to go down into the pit to clear blockage, because it is not possible to clear such blockage from inside the pit. What he did tell Mr. Cruse is set out above. [37] Even if were giving some weight to Mr. Barrie’s evidence, with respect to this point would not accept his recollection that Mr. Charlie had made such remark. Because of my greater confidence in the accuracy of Mr. Charlie’s evidence, and because of his logical explanation as to why he would not have asked anyone to go into the pit, would prefer the evidence of Mr. Charlie as being more reliable and accurate as to what actually occurred. [38] The Crown argues, though, that in any event may infer, from Mr. Cruse’s having entered the receiving pit, that Viterra did not adequately instruct, train, supervise and inform him. Logic, says the Crown, tells us that if Mr. Cruse had been adequately instructed, trained, supervised and informed he would not have entered the receiving pit without following the safety procedures. [39] There is an attraction to the simple logic of this argument. am not sure that it is accurate or fair, though. It ignores the fact that sometimes people make mistakes, despite their training and education. 1. Training and education [40] Mr. Cruse began his employment at the Viterra terminal on May 24, 2011. Before he started actually working in the facility, he underwent some training and education. He took computer based training (CBT). This involved his working through series of training modules on computer. The modules related to various topics including safety, the dangers inherent in grain terminal, the dangers relating to entering confined space such as receiving pit, and the proper procedures to follow before and during entering confined space such as receiving pit. [41] Mr. Cruse completed twelve CBT modules at that time. Four of the CBTs referred to the dangers of engulfment. The CBTs dealing with confined space entry, safe work permits and lock-out/tag-out referred explicitly to the dangers of entering confined space. The confined space entry CBT itself focused on the dangers of entering confined space, and on the proper safety procedures to follow when doing so. [42] At the end of each module Mr. Cruse was tested, as part of the CBT, for his comprehension of the topic. An 80% score was required to pass. Mr. Cruse took and passed CBTs in the topics have described above, in addition to other topics. [43] The following month, in June 2011, Mr. Cruse took five hands-on training courses, including hands-on training relating to safe work permits. By the time of the incident on September 8, 2011 Mr. Cruse had not yet received hands-on training in confined space entry. [44] The training materials are replete with references and warnings about the hazards of entering confined space such as receiving pit. That very volume of material, though, is part of the reason that the Crown argues that the necessary information about the hazards would have been lost on Mr. Cruse because it would have been buried in the mass of material. The Crown characterizes the information about confined space entry as having been “buried in dozens of CBT’s in hundreds of power point slides”. It is true that there were many photos, drawings and words in the material. That does not necessarily mean that the information in the material was not understandable, however. It does not necessarily mean that the worker would not be able to learn and retain what he had learned. [45] I find, in fact, that the mass of material emphasized the dangers, and the importance of following the safety procedures, rather than burying them. The CBTs included several pages describing confined spaces and the dangers associated with them. The CBTs included several pages describing the procedures to be followed to enter confined space safely. refer, for example, to the confined space entry CBT. On the first page the introduction to the CBT emphasized that people lose lives in confined spaces. This statement was emphasized again on the fourth page, where there appeared drawing of chalkboard bearing large words proclaiming “Death lurks in confined spaces!” The fifth page included list of examples of confined spaces. The first entry on the list was “Pits”. [46] This information was not buried in mass of other information. [47] Too, note again that Mr. Cruse was not permitted to move on to the next stage in his training until he had taken and passed test to verify that he had learned the information. One purpose served by the testing at the end of each CBT module was to check the employee’s comprehension to ensure that the important information was not buried. The inference that draw from Mr. Cruse having passed these tests is that he likely learned about confined space entry and its dangers. [48] In his training and education from Viterra Mr. Cruse learned that: (a) receiving pit is confined space; (b) danger is inherent in entering confined space; (c) he was not to enter confined space until he had received the necessary training in the safety procedures for doing so; and (d) he was not to enter confined space without following the safety procedures for entering confined space. [49] Mr. Cruse knew, as well, that he had not yet received the necessary training in the safety procedures for entering confined space. He had completed the confined space entry CBT, but he had not yet completed the confined space entry hands-on training. At para. 27 of Saskatchewan Wheat Pool QB, Justice Krueger posed this question in determining whether the employer had met its obligation under the Code: “Was the information, training, instruction and supervision sufficient, if adhered to, to ensure the health and safety of the employees?” [51] When I ask the same question in relation to Viterra’s instruction, training, supervision and education of Mr. Cruse generally, I find that the answer is “yes”. That is not necessarily the end of the matter, however. The Crown argues that certain other factors should influence me to conclude that the answer becomes “no”, and in any event must examine the specific allegations set out in each count of the indictment. 2. Workplace culture [52] The Crown argues that, notwithstanding the training and education that Mr. Cruse received, the workplace culture was such that he would have been led to disregard that training and education. He would have learned that, in reality, things were done consistently without regard for dangers or for the safety rules. [53] In support of this argument the Crown says that Mr. Cruse would have been aware of other employees not following safety procedures, sometimes involving confined space entry. The suggestion is based on three items of evidence. The first two items of evidence were provided in the testimony of Sheldon Hannay, who at the time of the incident was, like Mr. Cruse, junior employee at the terminal. Mr. Hannay testified that he once made horizontal entry into large concrete bin, which is confined space, with harness and the assistance of another employee, to sweep it out. Such an entry did not conform to the safety requirements of confined space entry. [54] There is no indication in the evidence, however, that Mr. Cruse was aware of this event occurring. For this reason, the event cannot form basis for what conclude was Mr. Cruse’s perception of safety culture. [55] The second item of evidence relied on by the Crown is Mr. Hannay’s description of Mr. Cruse having entered an empty receiving pit, which is confined space, without any safety measures being taken. Mr. Hannay recalled that Mr. Cruse did so to clear grain that was blocking the screen. Mr. Hannay said that he stood above the pit and shone flashlight down so that Mr. Cruse could see what he was doing. He said that Mr. Cruse did not use any tool, but rather simply used his hands to clear the screen. [56] Mr. Hannay testified that this incident occurred during regular business hours, so that he believed without specifically remembering traffic into the drive-in bay area would have been stopped. He recalled that, if anyone had told him and Mr. Cruse to have performed this task, it would have been Mr. Charlie or Mr. Garrett who did so. [57] If no one told Mr. Hannay and Mr. Cruse to engage in this conduct, then this conduct by the two most junior employees cannot have constituted basis for causing Mr. Cruse to think that there was an established culture of paying lip service to safety in the terminal. If someone told Mr. Hannay and Mr. Cruse to engage in this conduct, then that person was Mr. Charlie or Mr. Garrett. [58] Each of Mr. Charlie and Mr. Garrett denied that he was aware of such an event, and each denied that he did or would have instructed Mr. Hannay and Mr. Cruse to have engaged in the activity that Mr. Hannay described. As have said, accept the evidence of Mr. Charlie and Mr. Garrett. cannot reconcile Mr. Hannay’s description of the event with the evidence of Mr. Charlie and Mr. Garrett. While recognize that, over years, some items were overlooked in relation to compliance with safety requirements at the terminal, do not accept that either Mr. Charlie or Mr. Garrett instructed an employee to make confined space entry in the absence of any safety procedures whatsoever. [59] conclude that it is more likely that Mr. Hannay’s recollection is faulty. It is more likely that Mr. Cruse’s confined space entry did not occur. [60] The third item of evidence relied on by the Crown is the imperfect compliance at the terminal with safety procedures. The evidence establishes that, over years, some employees became due for refresher courses in their safety training, but they did not undergo that retraining within the required period or, in some cases, at all. Some Viterra records were inaccurate as to the training and education status of some employees. Some confined space entries had been approved by Mr. Garrett with inadequate arrangements for example, without sufficient number of people participating, or without adequate provision for air venting and monitoring. [61] The Crown points to the numerous examples of such oversights in support of the conclusion that there had developed at the terminal culture of only paying lip service to safety. Rather, says the Crown, the focus at the terminal was simply on getting the job done. Sometimes the job got done even if that meant that doing so required skipping some safety steps or proceeding with fewer safety participants than were needed. [62] observe, however, that there is no evidence before me that Mr. Cruse was aware of any of these transgressions. There is no evidence that he was aware of other employees being past due for refresher training, or that confined space entries were being conducted without full compliance with safety procedures, or that the terminal manager had missed some items in approving proposed confined space entry, or that Viterra’s training records in some regards were inaccurate. [63] Further, as to the prospect that culture of paying lip service to safety would have percolated down to Mr. Cruse, in light of the evidence of Mr. Charlie and other employees who worked at the terminal at the time of the incident, find that despite those lapses overall there was culture of safety. This was small group of employees. They understood that the concern for safety was real, for themselves and for their fellow workers. They understood that the concern for safety was real, because the danger of injury or death was real. [64] do not find, therefore, that there was culture of paying lip service to safety that would have detracted from Mr. Cruse’s training and education in relation to safety. 3. Specific allegations in the indictment [65] As I have said, I find that Viterra’s training and education generally of Mr. Cruse was sufficient, if adhered to, to ensure the health and safety of Mr. Cruse. must address, though, the specifics of the charges against Viterra. [66] In counts and Viterra is alleged to have failed to ensure Mr. Cruse’s health and safety by failing to instruct him on how to unplug blockage in receiving pit. If Viterra had instructed Mr. Cruse to unplug blockage in receiving pit, Viterra would have had duty to instruct him on how to do so. As I have found, though, Viterra did not instruct him to unplug a blockage. Rather, Mr. Charlie told him as he had done an hour earlier only to look into the pit to see whether there was grain in it. Not having told Mr. Cruse to perform the task of unblocking the pit, Viterra was not obliged to instruct him on how to perform that task. [67] The situation is analogous to this example: If an employer tells an employee to operate forklift, that employer has an obligation to provide training and supervision to that employee in the operation of forklift. If an employer tells an employee to do certain other jobs, and does not tell the employee to operate forklift, then the employer has no obligation to train and supervise the employee in the operation of forklift. [68] As to counts 1 and 2, then, the actus reus is not established. [69] In counts and Viterra is alleged to have failed to ensure that Mr. Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside receiving pit. The direction that Mr. Charlie gave to Mr. Cruse was in the context of Viterra “responding to blockage inside receiving pit”. Again, though, Viterra did not have an obligation to train and supervise Mr. Cruse with respect to the actual unblocking of a receiving pit, because Viterra did not tell him to do that job. [70] To the extent that counts 3 and 4 allege that Viterra failed to adequately train and supervise Mr. Cruse, with respect to responding to a blockage by looking into the receiving pit to see if it was full of grain, the Crown has not proven the actus reus. In light of the training and education that Mr. Cruse received from Viterra, and in light of the innocuous task that he had been given and that he had performed just an hour earlier task that did not require any particular supervision, since it involved only looking through grate from the safety of the floor do not find deficiency in either the training or supervision. Accordingly, the Crown has not proven the actus reus in relation to counts 3 and 4. [71] In counts and Viterra is alleged to have failed to ensure that Mr. Cruse was aware of the hazard of being engulfed by grain in receiving pit. As I have discussed, I find that Viterra did make Mr. Cruse aware of the hazard of being engulfed in grain in a receiving pit. It is unlikely that the information in that regard was simply buried in mass of other information, so that he did not really learn it. Rather, it is likely that Mr. Cruse became aware of the hazard and that he retained that knowledge. Accordingly, the Crown has not proven the actus reus in relation to counts 5 and 6. 4. Conclusion as to actus reus [72] The Crown has failed to prove, beyond reasonable doubt, the actus reus relating to any of the six counts. F. Due diligence [73] Section 148(4) provides that “... it is defence for the person to prove that the person exercised due care and diligence to avoid the contravention.” Exercising due diligence is matter of taking “all reasonable steps”, not matter of taking “all conceivable steps”: British Columbia Hydro and Power Authority, [1997] BCJ No 1744 (QL) (BCSC) at para 55. [74] If the actus reus were proven with respect to any of the six counts, I would conclude that Viterra had exercised due diligence. In so concluding, would consider the factors that have reviewed above. These include Mr. Cruse’s training and education, including Mr. Cruse having learned the dangers of entering confined space, and the need to follow safety procedures in doing so, and the fact that receiving pit is confined space. These factors include also the fact that Mr. Cruse was not told to do anything related to entering receiving pit, and the fact that Mr. Cruse was told to perform task that did not involve entering receiving pit. The factors include as well the fact that there was no reason for Mr. Charlie to think that Mr. Cruse would consider entering the receiving pit. [75] Accordingly, the defence of due diligence would apply with respect to each count if the actus reus had been established with respect to it. G. Conclusion [76] The Crown has not proven the actus reus with respect to counts 1, 2, 3, 4, 5 or 6, and in any event the defence of due diligence would apply to each of those counts. [77] Accordingly, I find Viterra not guilty on all six counts. J. G.M. CURRIE","HELD: The court did not accept the Crown’s position that proof of a worker injury or death necessarily proved the actus reus of failing to ensure the health and safety of an employee. The deceased witness’s evidence was not relied upon by the court due to inconsistencies. The assistant manager’s evidence also had some inconsistencies but overall his oral testifying was found to be in a frank and honest manner. The court accepted the assistant manager’s evidence that he would not have told the employee or anyone to go down into the pit to clear a blockage, because it is not possible to clear such a blockage from inside the pit. The Crown argued that, in any event, the court should infer that because the employee entered the pit, the respondent did not adequately instruct, train, supervise and inform him. The court found that the mass of training material emphasized the dangers and the importance of following the safety procedures. The information was not buried in a mass of other information as suggested by the Crown. The court found that the information, training, instruction and supervision was sufficient, if adhered to, to ensure the health and safety of the employee, generally. The Crown argued that a culture of paying lip service to safety had developed at the respondent’s place of business. The court held that, despite some lapses in safety, overall there was a culture of safety. The court also held that the respondent did not instruct the employee to unplug a blockage in the pit and, therefore, did not have an obligation to instruct him on how to perform that task. The respondent was not guilty of counts 1 and 2. The Crown also did not prove the actus reus of counts 3 and 4. The Crown failed to prove that the respondent did not adequately train and supervise the employee with respect to responding to a blockage by looking into the receiving pit to see if it was full of grain. The court also concluded that the respondent had made the employee aware of the hazard of being engulfed in grain in a receiving pit and, therefore, the actus reus of counts 5 and 6 were not proved. The court noted that if the actus reus had been proven with respect to any count, the court would have, nonetheless, concluded that the respondent exercised due diligence.",c_2016skqb269.txt
18,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 409 Date: 2012 10 05 Docket: Q.B.C.A. No. 39/2011 Judicial Centre: Saskatoon BETWEEN: ALLAN ENDEN, and HER MAJESTY THE QUEEN, Counsel: Dhugal G. Whitbread for the appellant Tamara A. Rock for the respondent JUDGMENT KRAUS J. October 5, 2012 [1] The appellant appeals against conviction and sentence ($200.00 fine and $50.00 victim surcharge) made by K. Dmytryshyn, Justice of the Peace, at Saskatoon, on October 28, 2011, on the charge under s. 253(2)(b) of The Traffic Safety Act, S.S. 2004, c. T‑18.1. [2] Section 253(2) of the Act provides: (2) Every person in charge of motor vehicle that is involved in an accident shall: (a) notify the following persons as soon as is practicable after the accident: (i) the person in charge of any other motor vehicle that is involved in the accident; (ii) if any property in addition to motor vehicle has been damaged as result of the accident, the person in charge of that property; and (b) provide the persons mentioned in clause (a) with the following information:(i) his or her name and address;(ii) his or her driver’s licence number;(iii) the number of the certificate of registration of the vehicle; and(iv) particulars of any insurance affecting the vehicle. [3] The appeal is taken on the following ground: Judge failed to give proper legal effect to evidence that did not know there was problem until came out of the store was confronted by the owner of the car [Notice of Appeal dated November 23, 2011] [4] The appellant contends that he was unaware that an accident had taken place until he returned from the store and the finding of the trial judge that the appellant must have known an accident had taken place before entering the store is contrary to the preponderance of evidence. The appellant says that the trial judge “gave no articulable reason to prefer the confused and contradictory evidence of [the independent witness] over the clear evidence of the Appellant.” The verdict is unreasonable, the appellant argues, since he had no duty to report an accident which he did not know had happened prior to returning from the store. [Appellant’s memorandum of argument, paragraphs 12 and 13] [5] The respondent submits that the reasons of the trial judge are sufficient, pointing to her assessment of credibility of the independent witness to that of the appellant, supporting the finding by the trial judge that the appellant did have knowledge of the accident before entering the store. [Respondent’s brief of law, paragraph 13, quoting transcript, page 55, lines to 21] [6] I am satisfied that the trial judge did give sufficient reasons for her decision and took into consideration all of the relevant evidence and the law in reaching her decision. She was entitled to assess credibility of the independent witness and the appellant, deciding to prefer the evidence of the independent witness to that of the appellant. In doing so, the trial judge did not rely upon the testimony of any witness that was inherently improbable, and she applied the correct burden of proof, beyond reasonable doubt, in reaching her verdict. The verdict is not unreasonable (see R. v. B. (J.N.), 1991 CanLII 111 (SCC), [1991] S.C.R. 66, 71 Man.R. (2d) 156) and there was no palpable or overriding error. (See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 43 D.L.R. (4th) 424; R. v. Andres (1979), 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249, Sask.R. 96 (C.A.); and R. v. Kornkven, 2007 SKQB 315 (CanLII), 301 Sask.R. 162.) [7] The appeal is dismissed. “G.M. Kraus” J.","The appellant appealed his conviction under s. 253(2)(b) of The Traffic Safety Act for failing to provide his name, address, licence and registration at the scene of an accident. The appellant argued that he was unaware that an accident had occurred and argued that the trial judge's finding that he must have known the accident had occurred was contrary to the evidence. The appellant also argued that the trial judge erred in preferring the evidence of the Crown's witness over his own. HELD: The appeal was dismissed. The trial judge gave sufficient reasons for her decision and took all of the relevant evidence into consideration. She was entitled to assess the credibility of the independent witness and to prefer it over the evidence of the appellant.",9_2012skqb409.txt
19,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 237 Date: 2012 06 08 Docket: Q.B. 11/2012 Judicial Centre: Moose Jaw BETWEEN: HER MAJESTY THE QUEEN and RONALD DENNIS WINGENBACH Counsel: Nicholas Robinson for the appellant Andrew Davis for the respondent JUDGMENT WHITMORE J. June 8, 2012 [1] This is an appeal from conviction in the Provincial Court of Saskatchewan that the appellant did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, operate a motor vehicle contrary to section 255(1) and section 253(b) of the Criminal Code, R.S.C. 1985, c. C-46. [2] The notice of appeal states: 1. The learned trial judge erred in holding that the police officer who made demand for sample of the Appellant’s breath had reasonable and probable grounds to make such demand pursuant to section 254(3)(a) of the Criminal Code; 2. The learned trial judge erred in holding that the Appellant, upon being detained by the police, was provided with his right to retain and instruct counsel of his choice, without delay, and to be informed that right as provided by section 10(b) of the Canadian Charter of Rights and Freedoms. 3. The learned trial judge erred in holding that the Appellant, while being held for the purpose of providing samples of his breath, was not arbitrarily detained contrary to section of the Canadian Charter of Rights and Freedoms. 4. The learned trial judge erred in holding that the taking of breath samples from the Appellant did not constitute an unreasonable search and seizure pursuant to section of the Canadian charter [sic] of Rights and Freedoms. 5. The learned trial judge erred in holding that the certificate of analysis tendered by the crown was evidence of the concentration of alcohol in the Appellant’s blood pursuant to section 258 of the Criminal Code and in excluding such evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the Appellant’s rights were infringed or denied pursuant to section 8, or 10(b) of the Canadian Charter of Rights and Freedoms. 6. The learned trial judge erred in holding that the Appellant was the operator or had care or control of motor vehicle within the meaning of section 253(1)(a) or section 253(1)(b) of the Criminal Code. 7. The learned trial judge erred in holding that the Appellant’s ability to operate vehicle was impaired by alcohol or drug pursuant to s.253(1)(a) of the Criminal Code. 8. Such further grounds as counsel may advice [sic] and this Honourable Court may allow. [3] The appellant’s memorandum of law and oral argument, however, dealt only with the contention that the police officer did not have reasonable and probable grounds to arrest him and to demand that he provide sample of his breath for analysis, thereby infringing his right under ss. and of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). Therefore will deal only with that ground of appeal. EVIDENCE AT TRIAL [4] Constable Forrester of the Moose Jaw Police Service observed vehicle driving north on Main Street in Moose Jaw at 11:55 p.m. Cst. Forrester noted that the front left tire of the vehicle was flat and that the car was raising dust as it was proceeding along Main Street. [5] She immediately followed the vehicle and put on her flashing lights and siren. She pulled the vehicle over into vacant parking lot. [6] The appellant exited the vehicle and Cst. Forrester saw the appellant looking in the direction of the left front tire of his vehicle. [7] The parties approached each other and Cst. Forrester asked the appellant for his operator’s license and registration. The appellant looked for his documents and got back in his car to look for the documents. Cst. Forrester testified that the appellant fumbled for his operator’s license and while looking for it, stumbled and appeared unsteady on his feet when he got back in his car. [8] Cst. Forrester noted that the vehicle’s windshield washers were on even though the weather was clear. [9] When Cst. Forrester asked the appellant if he had anything to drink, the appellant initially answered “no” but when Cst. Forrester told the appellant that she smelled alcohol, the appellant admitted to having consumed two drinks. [10] Cst. Forrester also testified that the appellant’s speech was slurred although she noted the appellant had cleft lip and this may have caused some speech impairment. [11] Cst. Forrester asked the appellant to enter the police vehicle. She testified that at this time she was considering whether she had sufficient grounds to charge the appellant with impaired driving and demand breath sample or whether to use an Approved Screening Device. [12] Once the appellant and Cst. Forrester were in the police vehicle, Cst. Forrester asked the appellant for particulars such as his name, address and other information and at 12:04 a.m., told him he was under arrest for impaired driving and gave him the Charter warning. At 12:05 a.m., Cst. Forrester demanded breath sample and gave the appellant the police warning. [13] Cst. Forrester testified as follows in giving the grounds that she had for demanding breath sample: A. Sure. And we had, like, the initial initial notices of that he was driving on flat tire up Main Street. His windshield wipers were on. He stumbled out of the car. He had problems getting his driver’s licence out. His eyes were glossy, red and bloodshot. He was slurring his speech which, again, could have been from his cleft lip and had something else. He was stumbling, and he smelled of beverage alcohol, and he also advised me that he had two drinks. Q. So you made the breath demand? did. (Transcript of Voir Dire, p. 18, lines 20 -27, p. 19, lines 4) [14] At 12:29 a.m., when the appellant was in the police station speaking with counsel, Cst. Forrester wrote her notes in her notebook. The notes of the incident in her notebook indicated that the appellant’s eyes were glossy and bloodshot: Q. And you made note, once Mr. Wingenbach was actually sitting in the room speaking with counsel, that his eyes were glossy and bloodshot; is that correct? Q. Is that yes? Q. And you’d agree with me that, at this point, while he’s in the phone room, it’s about 12:30 in the morning? A. Yeah, he’s in there at 12:29. (Transcript of Voir Dire, p. 47, lines 24-26, p. 48, lines 1-8) [15] Cst. Forrester testified that this was the first opportunity to make notes as when she was at the location of the arrest with the appellant in the police vehicle, she was writing up and completing the notice of impoundment of the appellant’s vehicle and did not get an opportunity to complete her notes until she was at the police station at 12:29 a.m. DECISION OF THE TRIAL JUDGE [16] The trial judge said at page 99, lines 16 the following, finding that Cst. Forrester had reasonable and probable grounds to make demand: THE COURT: Madam, with the greatest of respect, dealing firstly with reasonable and probable grounds, the law is very clear that you don’t examine indicia individually and with fine tooth comb. You look at the evidence as whole and determine whether the officer could reasonably come to the conclusion that she did. There is no doubt in my mind that the officer had reasonable and probable grounds. She testified to whole list of factors in her evidence. There is not the slightest indication that she didn’t make those observations or truly act upon them. The video confirms that she was correct in most of those observations. I’m satisfied that she had reasonable and probable grounds. STANDARD OF REVIEW [17] The court may allow an appeal of summary conviction for the reasons set out in para. 686 of the Criminal Code which by s. 822(1) of the Code are made applicable to summary conviction appeals. 1. The verdict is unreasonable and cannot be supported by the evidence; 2. The decision was wrong on question of law unless the court is of the opinion that no substantial wrong or miscarriage of justice has occurred; and 3. There was miscarriage of justice. [18] With respect to appeals brought on the basis the judgment is unreasonable and cannot be supported by the evidence, the test is whether properly instructed jury, acting reasonably, could have reached such verdict. The court can allow an appeal where the trial judge has made palpable and overriding error but it must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. (See R. v. Andres (1979), 1979 CanLII 2238 (SK CA), Sask.R. 96 (Sask. C.A.), [1982] W.W.R. 249; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] S.C.R. 909, 64 C.C.C. (3d) 193) [19] For appeals brought on the basis of an error of law, reversible errors in dealing with evidence can include: 1) misdirection respecting reasonable doubt; 2) failure to consider the evidence in totality; 3) misdirection concerning specific relevant evidence (See R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, 86 Sask.R. 142 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345, 44 C.C.C. (3d) 193). reversible error may also include an erroneous interpretation of Charter breach. (See R. v. Yuhas (1993), 1993 CanLII 9081 (SK QB), 114 Sask.R. 34, [1993] S.J. No. 488) [20] For purposes of this appeal, the appropriate test is set out in R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527 at paras. 18 22. note specifically at para. 20 While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is question of law. ... Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. ISSUE Did Cst. Forrester have reasonable and probable grounds to make breath demand? LAW AND ANALYSIS [21] The appellant argues that at the time Cst. Forrester took the appellant to the police vehicle, she was not certain if she had reasonable and probable grounds to make demand for breath sample or whether she should use an ASD. However when she got to the police vehicle and the appellant was placed in the police vehicle, she very soon thereafter made demand for sample of the appellant’s breath. [22] The appellant argues that the trial judge failed to consider Cst. Forrester’s own testimony that she was not certain if she had reasonable and probable grounds to make demand for breath sample only minutes before she made the demand. [23] The appellant refers to R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659 at para. which states as follows: concise definition of reasonable and probable cause is found in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] S.C.R. 170 at p. 193: ... Reasonable and probable cause has been defined as ""an honest belief in the guilt of the accused based upon full conviction, founded on reasonable grounds, of the existence of state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed"" (Hicks v. Faulkner (1878), Q.B.D. 167, at p. 171, Hawkins J.) This test contains both subjective and objective element. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause is matter for the judge to decide as opposed to the jury. [24] The appellant argues that Cst. Forrester could not have had reasonable and probable grounds to demand sample as only minutes before she was uncertain as to whether she did have reasonable or probable grounds. Thus, the subjective element in determining whether she had reasonable and probable grounds to make the demand is not present. [25] The appellant argues that the trial judge’s failure to address this missing element amounts to breach of the appellant’s rights under s.8 of the Charter resulting in an unreasonable search and seizure. As result, the Certificate of Analysis should be excluded. [26] In short, the appellant argues that Cst. Forrester’s reasonable suspicion that the accused may be impaired does not amount to reasonable and probable grounds. [27] The respondent argues that Cst. Forrester was not obliged to gather new evidence after taking the appellant to the police vehicle. Cst. Forrester was simply analysing what she had observed. By the time Cst. Forrester placed the appellant in the police vehicle and got in the vehicle herself, she analysed what she had observed and came to the conclusion that she had reasonable and probable grounds to make demand for sample of the appellant’s breath. The duty on the officer is to act reasonably under the circumstances and Cst. Forrester did so. The respondent further argues that in the event there is breach, that the breach was merely of minor technical nature. Following the Supreme Court decision of R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353, the breath sample is minimally invasive and should not be excluded. [28] have reviewed the evidence and find that the decision of the trial judge was reasonable and supported by the evidence. It is not clear that Cst. Forrester observed the bloodshot eyes of the appellant after making the formal arrest as argued by the appellant. Cst. Forrester admitted she did not know what type of footwear the appellant was wearing. The defence made the point that if he had been wearing flip flops, that footwear may have caused him to walk awkwardly or stumble, but there was no evidence the appellant was wearing flip flops. Cst. Forrester did notice the appellant had cleft lip and considered that that may have affected his speech. [29] The trial judge was in a position to test the credibility of Cst. Forrester. In coming to his conclusion he considered the totality of the evidence. The trial judge’s conclusion is supported by the facts. Cst. Forrester’s belief was based on the observation that the appellant was driving with a flat tire and with the vehicle’s windshield wipers operating although it was a clear night, as well as all the other indicia of impairment referenced above. Even excluding the slurred speech and bloodshot eyes, the remaining indicia which Cst. Forrester observed provides ample evidence to support her belief the appellant was operating his motor vehicle while his ability to do so was impaired. The trial judge’s decision was correct. Cst. Forrester had reasonable and probable grounds to demand a sample of the appellant’s breath, and the appellant’s claim for breach of the Charter must fail. [30] The appeal is therefore dismissed. J. P.A. WHITMORE","The appellant was convicted of driving over .08 contrary to s. 253(b) of the Criminal Code. The appellant's memorandum of law and oral argument only addressed whether the police officer had reasonable and probable ground to arrest and demand his breath sample and asserted a violation of his rights pursuant to s. 8 and 9 Charter of Rights. HELD: The appeal was dismissed. The trial judge tested the officer's credibility and the judge's conclusion was supported by facts. The officer's belief was based on the observation that the appellant was driving with a flat tire, with windshield wipers operating on a clear night, as well as slurred speech and bloodshot eyes. The officer had reasonable and probable grounds to demand a sample of the appellant's breath.",d_2012skqb237.txt
20,"QUEEN’S BENCH FOR SASKATCHEWAN Date: 2012 10 30 Citation: 2012 SKQB 443 Docket: Div. No. 88 of 2012 Judicial Centre: Saskatoon, Family Law Division BETWEEN: KIRSTEN ANN TUCKER-LESTER and KEVIN JAMES LESTER Counsel: Marilyn Penner for the petitioner Kate Crisp for the respondent FIAT DUFOUR J. October 30, 2012 1) will get right to the point: with only very rare exception, communications designed to settle legal disputes cannot be disclosed to the Court unless both parties agree. Settlement negotiations are protected by settlement privilege which is a jointly held privilege that cannot be waived by any one party acting alone. This privilege is fundamental to the policy interest of promoting settlement discussions as means to avoiding trial. It should only be set aside if there is very compelling, competing policy warranting such. As settlement communications are almost always irrelevant to the issues that are properly considered by the Court, it is rare that there will be any competing policy or, indeed, any reason to reference them at all. 2) The application at bar is another salvo in a bitter custody and access dispute. ruled on the substantive aspect of the application in separate fiat and now render my decision in respect of the admissibility of some of the evidence the respondent put before the Court. He exhibited a letter to his affidavit that was from his counsel to the petitioner’s counsel. The letter was marked “Without Prejudice” and began with: ... My client has instructed me to forward the following without prejudice proposal in order to attempt settlement of the parties parenting and child support matters. 3) Just as promised, the letter goes on to set out a detailed, comprehensive offer of settlement. Although the law is clear that settlement proposals should seldom be made known to the Court, it happens too often and for no good reason. It is my hope that this reminder, not to be viewed as gentle, will change that. 4) do not intend to engage in lengthy discussion of settlement privilege because the law is quite clear and am bringing nothing new to the table: no extension of the law; no epiphany or novel approach just brief refresher for those who seem to have forgotten. More comprehensive analyses can be found in: Middelkamp et al. v. Fraser Valley Real Estate Board et al.(1992), 1992 CanLII 4039 (BC CA), 71 B.C.L.R. (2d) 276, [1992] B.C.J. No. 1947 (QL) (C.A.); White v. Woolworth Co. (1996), 1996 CanLII 11076 (NL CA), 139 Nfld. P.E.I.R. 324, [1996] N.J. No. 113 (QL) (Nfld. C.A.); Meyers v. Dunphy, 2007 NLCA (CanLII), 262 Nfld. P.E.I.R. 173; Squires v. Corner Brook Pulp and Paper Ltd. (1999), 1999 CanLII 18967 (NL SC), 175 Nfld. P.E.I.R. 202, [1999] N.J. No. 146 (QL) (Nfld. C.A.); Hansraj v. Ao, 2002 ABQB 385 (CanLII), 314 A.R. 262; Costello v. Calgary (City), 1997 ABCA 281 (CanLII), 152 D.L.R. (4th) 453; Leonardis v. Leonardis, 2003 ABQB 577 (CanLII), 43 R.F.L. (5th) 144; William Allan Real Estate Co. v. Robichaud (1987), 37 B.L.R. 286, [1987] O.J. No. 2167 (QL) (Ont. H.C.); Dos Santos (Committee of v. Sun Life Assurance Co. of Canada, 2005 BCCA (CanLII), 40 B.C.L.R. (4th) 245; Milton Farms Ltd. v. Dow Chemical Canada Inc. (1987), 1987 CanLII 4690 (SK QB), 63 Sask. R. 144, [1987] S.J. No. 197 (QL) (Q.B.). Settlement privilege 5) The petitioner objected to the admissibility of the respondent’s settlement proposal on the basis of settlement privilege. The respondent countered with: This is the respondent’s without prejudice proposal. He has chosen to waive any privilege over this proposal. 6) The respondent is wrong. party is entitled to waive some types of privilege, such as solicitor‑client privilege or litigation privilege, because they are his own to waive. Not so with settlement privilege. It is a jointly held privilege. A party cannot unilaterally waive privilege even on the proposal he made because it is not his to waive. That this must be so becomes clear on review of the reasons for the privilege. 7) First, the basics. The conditions that must be present for the privilege to be recognized are (John Sopinka, Sidney N. Lederman Alan W. Bryant, The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis Canada Inc., 2009) at para. 14.322): (1) litigious dispute must be in existence or within contemplation. (2) The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed. (3) The purpose of the communication must be to attempt to effect settlement. 8) Those are the formal conditions. More illuminating, suggest, is the policy reason for the privilege which, in turn, defines the scope of the privilege. Here is thumbnail sketch: (i) At the heart of settlement privilege is the overriding public interest in favour of settling legal disputes: “...[t]his policy promotes the interests of litigants generally by saving them the expense of trial...” (Kelvin Energy Ltd. v. Lee 1992 CanLII 38 (SCC), [1992] S.C.R. 235 at para. 48.) More than 100 years ago Cameron C.J. of the Ontario Court of Appeal wrote in Pirie v. Wyld (1886), 11 O.R. 422, [1886] O.J. No. 188 (QL) (Ont. H.C.), at para. 18: “... letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect compromise, are inadmissible in evidence. It seemingly being considered against public policy as having tendency to promote litigation, and to prevent amicable settlements.” (ii) It is common sense that settlement is less likely if the parties do not engage in full and frank discussions; (iii) Few parties would initiate or participate in settlement negotiations at all if such could later be used to their detriment: “What sensible man would attempt settlement if it could be used against him at trial?” (William Allan Real Estate Co. v. Robichaud, supra). (iv) To provide the degree of comfort required to encourage parties to engage in frank discussions without fear of prejudice, the whole of the settlement process is protected: all communications in furtherance of settlement regardless of from which party the communication emanates from the first utterance or letter to the last. (v) In order to promote settlement, the privilege must be broadly construed such that the integrity of the settlement process is preserved: (a) settlement privilege can only be waived with the consent of both parties (Squires v. Corner Brook Pulp, supra; Leonardis, supra). (b) the communication need not contain settlement offer any communication designed or intended to explore settlement, or from which the Court might infer there are settlement communications contemplated or in the works, is protected (White v. Woolworth Co., supra). (c) the privilege is clearly an important one, and in cases of doubt as to whether the correspondence does relate to the negotiations, the Court should undoubtedly err on the side of protecting the privilege (Hansraj v. Ao, supra). 9) Against that backdrop, return to the settlement proposal the respondent exhibited to his affidavit. can divine no reason that the respondent would put it before the Court other than to attempt to leave the inference that: “my proposal is reasonable so must be good, reasonable parent; by failing to accept that reasonable proposal, she must be unreasonable and, therefore, not as good parent.” This is gamesmanship and nothing more. Gamesmanship fouls that which the policy seeks to promote. Relevance of settlement proposals 10) Settlement privilege aside, and with the exception of few issues such as costs and limitation periods or when party seeks to establish that there was concluded agreement, am hard pressed to come up with situation where the existence of settlement proposal would be relevant to an issue before the Court. The comprehensive custody and access proposal the respondent exhibited to his affidavit here does nothing to advance his cause. Slatter J. was faced with an almost identical situation in Leonardis and observed at para 10: [10] Even if the privilege was somehow to be removed from this letter, it is not relevant. It does not outline any facts. It is argumentative, and merely puts forward the position of one party. At best it is an editorialized prayer for the relief that one of the parties thinks the Court should grant.... 11) Further in respect of relevance or the lack thereof, consider that settlement negotiations are conducted on the normal contractual basis of offer and acceptance: “if contract is reached, the negotiations are superseded by the contract itself, and become irrelevant and inadmissible, and if no contract is reached, then the negotiations are, for that reason, irrelevant.” (see: The Law of Evidence in Canada, supra, at para. 14,316; Newbery Energy Ltd. v. Amok Ltd. (1987), 1987 CanLII 4935 (SK QB), 62 Sask. R. 1, [1987] S.J. No. 685 (QL) (Q.B.). 12) Only rarely should the Court be advised of settlement negotiations and such will be even more rare in chambers applications. Yes, the matter of costs is at issue in interim applications but arguments for enhanced costs will seldom override the policy of promoting settlement. Costs can be pursued with vigour after trial if either of the parties is of such mind. 13) The petitioner shall have costs of $500 in respect of the notice of objection, payable within 15 days. J. G. D. Dufour",The parties were involved in a dispute regarding the custody of their children. The respondent husband sought to adduce as evidence an offer of settlement made by him to the petitioner. The respondent argued that he had waived any privilege regarding the proposal. HELD: The Court held that settlement proposals were privileged and that both parties jointly held it; the respondent could not unilaterally waive it. The Court denounced the respondent for exhibiting it to his affidavit as an attempt to infer that he was the better parent because the offer was so reasonable that only an unreasonable person would not accept it. The Court should only rarely be advised of settlement negotiations and even more rarely in chambers applications.,b_2012skqb443.txt
21,"Justice Q.B.G. A.D. 1998 No. 47 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LABOUR STANDARDS ACT, R.S.S. 1978, c. L-1 APPEAL BETWEEN: LILLIAN KOVACH RESPONDENT (COMPLAINANT) and CAJON INVESTMENTS INC. APPELLANT (RESPONDENT) M. Brass for the respondent M. Griffin for the appellant JUDGMENT KLEBUC J. March 23, 1998 [1] The appellant (""Cajon"") seeks an order quashing thedecision of an adjudicator made following a hearing pursuantto s. 62.1 and 62.2 of The Labour Standards Act, R.S.S. 1978,c. L-1. The grounds relied on by Cajon give rise to thefollowing issues: (1) Did the adjudicator err in law byfinding that the respondent Kovach byher conduct had not frustrated orfundamentally breached her employmentcontract? (2) Whether the adjudicator exceeded hisjurisdiction by holding that Cajon,as Ms. Kovach\'s employer, had anobligation to attempt to resolveplace of work difficulties thatprohibited her from reporting towork? [2] The Director of Labour Standards ordered Cajon to pay its employee, Ms. Kovach, the sum of $1,500.00 in lieu of proper notice of termination. Cajon appealed the order whereupon hearing was conducted before an adjudicator pursuant to s. 62 of the Act. Dirk Silversides, the adjudicator appointed to hear the s. 62 appeal, upheld the director's order. Cajon then launched the appeal now before the Court. The record before the Court is limited to the adjudicator's decision and the exhibits filed. [3] Cajon operates three hairstyling salons in Regina, Saskatchewan under franchise agreement with Magicuts Inc. One of the salons is located in an area within the ""Zellers Store at the Northgate Mall"" which Magicuts Inc. leased from ""Zellers"" and sub-leased to Cajon. The only access to the salon by Cajon's employees and customers was through the Zellers Store. [4] Cajon had employed Ms. Kovach since March of 1990. During the last three years of her employment she worked at its Victoria Square Mall Salon. During her lunch break on January 8, 1997, Ms. Kovach entered the Zellers Store and picked up three pencils which she intended to purchase. Because of long line up at the checkout counter and the limited time available to her, she took the pencils to staff room provided by Zellers where the manager of the Zellers Store and security guard immediately accused her of shoplifting, detained her and called for police assistance. After Ms. Kovach was interviewed by police officer and charged with shoplifting, the store manager or the security guard ordered her out of the Zellers Store and informed her that she could not return. Two days after the event, Mr. Johns informed Ms. Kovach that she could not return to work at the Victoria Mall Salon nor work at another Cajon salon. She then sought and obtained record of employment from Cajon which stated: ""Unable to come to work. Frustration of contract."" The Crown withdrew the shoplifting charges on February 3, 1997. The Adjudicator's Decision [5] The adjudicator rejected Cajon's submission that Ms. Kovach had frustrated or breached her employment contract, thereby releasing Cajon from any obligation to pay wages in lieu of notice. In his decision he distinguished Thomas v. Lafleche Union Hospital, 1991 CanLII 8039 (SK CA), [1991] W.W.R. 209, 93 Sask. R. 150 (C.A.) and applied the test outlined in O'Connell v. Harkema Express Lines Ltd. (1982), 1982 CanLII 3198 (ON SC), 141 D.L.R. (3d) 291 (Ont. Co. Ct.). In O\'Connell, the trial judge at p. 303 set out six essentialelements for determining whether events had frustrated anemployment contract:. . . [It] is incumbent upon the[defendants] to prove that which isunderlined [italicized] below. . . .1. A critical rather than a trivialsupervening event. . .2. An event not of short duration butprotracted in time. . .3. An event not within the contemplationof the parties. . .4. An event coming about without fault oneither party. . .5. An event that rendered the partiesincapable of performing their contractualobligations. . .6. The performance of a contract thatwould radically alter the originalagreement into something other than thatintended. . . Mr. Silversides concluded that Cajon had failed to meet thethresholds stipulated in O\'Connell, particularly the fifthelement. His reasons are stated at p. of his decision: I do not believe there was sufficientevidence to show that the Respondent[Cajon] was incapable of performing itsobligations--i.e. permitting the employeeaccess and egress to the workplace. The Respondent's president, Mr. Johns, did not at any time examine his company's lease (which was, regrettably, not produced at the hearing) with the franchisor/Zellers in order to determine whether the rights of access and egress were guaranteed to the Respondent and its employees (which seems likely) and under which circumstances, if any, these rights could be suspended or terminated. Rather, Mr. Johns simply contacted the franchisor and was told that his employees should have followed the rules imposed upon Zellers employees. This does not seem reasonable on the part of the Respondent in the circumstances. It has seven-year employee who presumably had performed her work satisfactorily and the only efforts by the employer were to ask Zellers whether it was acting reasonably and to make the inquiry (just described) of the franchisor. An employer surely must be expected to make further inquiries and to engage in further efforts to ensure that it can comply with its obligations under the employment contract (i.e. to permit its employees access to the workplace) before it can claim that it is incapable of performing its contractual obligations- -whether that involves, firstly, ensuring that Zellers had the right to bar employees of the Respondent pursuant to the lease or, secondly, if Zellers did have this right, to at least attempt to work out solution to this problem (e.g. permit the Complainant [Kovach] to be escorted to and from her workplace across Zellers' premises). By not engaging in these further inquiries and efforts outlined above the Respondent has not satisfied me that it was incapable of carrying out its obligations, and therefore conclude that the doctrine of frustration cannot be applied to the circumstances of this case. [6] The right of appeal by an employer arises under s. 62.3(1) which reads: 62.3(1) An employer may, by notice of motion, appeal decision of the adjudicator on question of law or of jurisdiction to judge of the Court of Queen's Bench within 21 days after the date of the decision. The nature and extent of such right are canvassed in Baird v. Lawson (1996), 1996 CanLII 6673 (SK QB), 22 C.C.E.L. (2d) 101 (Sask. Q.B.) and Sikorski v. Tri-Hospital Patient Transport and Courier Ltd. (1995), 1995 CanLII 6130 (SK QB), 136 Sask. R. 61 (Q.B.). In Baird, Baynton J. at p. 108 defined the right of appeal in the following terms: The appellants' right of appeal is limited by s. 62.3(1) to question of law or jurisdiction. It is not valid ground of appeal that the adjudicator's findings of facts are incorrect. Even where appeals can be made on grounds of mixed fact and law (such as under The Small Claims Act), the appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact. It can only intervene if the findings of fact are not reasonably supported by the evidence (often termed ""palpable and overriding error""). Wedge J. in Sikorski, supra, at pp. 64-5, after considering several authorities, concludes that curial deference should be extended to the findings of fact made by an adjudicator even though the court is considering an appeal and not judicial review. Accordingly, the court should be even less inclined to interfere with the findings of fact by an adjudicator than in the case where an appeal can be brought on ground of mixed law and fact. Only if finding of fact is patently unreasonable does it constitute an error of law that justifies the intervention of the appeal court. As pointed out by Wedge J. in Sikorski at p. 64, without the benefit of transcript, an appeal court is unable to make determination as to whether findings of fact can be reasonably supported by the evidence (the standard of review applicable on appeals allowed on grounds of mixed law and fact). This leaves the court with standard of review limited to instances in which the adjudicator exceeds or fails to exercise jurisdiction or is incorrect in law. The latter ground includes factual decision that is patently unreasonable. [7] While agree with his statement of the general principles, it is important to note that the phrases ""patently unreasonable"" and ""degree of deference"" in s. 63(1) appeal may have meanings materially different from those attributed to them in judicial review. Since, the precise definition of neither term is material to the matter before me and counsel have not addressed the same, will leave their definition for consideration in future [8] The hearing process before the adjudicator is not highly specialized one. Consequently, the correctness test applicable to general questions of law apply. [9] In my view, the adjudicator applied theappropriate principles of law to the facts, as hefound them. In addition, his findings of fact cannot be said to be ""patently unreasonable"" because there was some evidence before him on which he could arrive at the same. Therefore, the appeal based on the submission that the adjudicator erred in law by ruling that the employment contract was not frustrated by Ms. Kovach's conduct is dismissed. [10] The second ground of appeal based on the adjudicator exceeding his jurisdiction also fails. In my view, the adjudicator acted well within hisjurisdiction when determining what the terms of Ms.Kovach\'s employment contract were and that Cajon hadnot fulfilled obligations thereunder. Although not all of the facts presented to him are known to this Court, his decision outlines some evidence upon which he could have arrived at his conclusions. [11] The appeal is dismissed with costs.","The appellant sought an order quashing a decision of an adjudicator following a hearing pursuant to s. 62 of the Labour Standards Act. The Director of Labour Standards ordered the employer to pay $1,500 in lieu of a proper notice of termination. The grounds raised were that the adjudicator erred in law in finding the respondent had not frustrated or fundamently breached her employment contract; the adjudicator exceeded his jurisdiction by holding the employer had an obligation to attempt to resolve the workplace difficulties that prohibited the respondent from reporting to work. The employee had been charged with stealing three pencils on her way through a store to the salon where she worked. The Crown subsequently withdrew the shoplifting charges. She was prohibited from returning that the store and as there was no alternate entrance to the salon the employer treated the contract as frustrated or breached, therefore releasing him of any obligation to pay wages in lieu of notice. HELD: The appeal was dismissed with costs. 1)The adjudicator concluded the employer failed to meet the thresholds stipulated in O'Connell which set out the six essential elements for determining whether events had frustrated an employment contract: a critical rather than a trivial supervening event; an event protracted in time; not within the contemplation of the parties; coming about without fault on either party; an event that rendered the parties incapable of performing their contractual obligations; the performance of a contract would radically alter the original agreement into something other than that intended. The employer did not establish he was incapable of performing his obligations by permitting the employee access to the workplace.  2)The phrases 'patently unreasonable' and 'degree of deference' in a s63(1) appeal may have meanings materially different from those in a judicial review. 3)The hearing process before the adjudicator is not a highly specialized one. The correctness test was applicable to general questions of law. The adjudicator applied the appropriate principles of law to the facts as he found them. 4)The adjudicator acted within his jurisdiction when determining the terms of the employment contract and that the employer had not fulfilled his obligations.",4_1998canlii13643.txt
22,"nan 2004 SKQB 372 Q.B.G. A.D. 2003 No. 2306 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: THE CITY OF REGINA and GARY WAYNE KIVELA RESPONDENT (COMPLAINANT) and SASKATCHEWAN HUMAN RIGHTS COMMISSION and CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL NO. 21 RESPONDENTS AND Q.B.G. A.D. 2003 No. 2342 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL NO. and GARY WAYNE KIVELA RESPONDENT (COMPLAINANT) and SASKATCHEWAN HUMAN RIGHTS COMMISSION and THE CITY OF REGINA RESPONDENTS Gail D. Wartman for the City of Regina Gary Wayne Kivela, self-represented Milton C. Woodard, Q.C. for the Saskatchewan Human Rights Commission Neil R. McLeod, Q.C. for Canadian Union of Public Employees Local No. 21 JUDGMENT BARCLAY J. September 16, 2004 [1] This is an appeal by the City of Regina (the “City”) and Canadian Union of Public Employees Local 21 (“CUPE”) from a decision dated October 10, 2003, of Roger J. F. LePage, sitting as a Tribunal (the “Tribunal”) under The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the “Code”), in the matter of complaints filed by Gary Wayne Kivela (“Mr. Kivela”), against his employer the City. [2] The grounds of appeal in respect of the City are as follows. The Tribunal erred in law in ruling that Mr. Kivela made his complaint within the Code’s limitation period. The Tribunal further erred in law in finding that the City was not prejudiced by the considerable time that has elapsed since many of the events raised since this complaint took place; The Tribunal erred in law in deciding that the City was responsible for harassment against Mr. Kivela, factoring that finding into the overall decision on liability and remedy for discrimination: Procedurally, during the hearing of this matter, and later, in its written submissions, the Saskatchewan Human Rights Commission (“Commission”) took the position that harassment was no longer an issue being pursued in the proceedings, with the result that the City presented limited evidence on the issue of harassment; The Tribunal has improperly imparted to the City burden akin to vicarious liability or fiduciary duty regarding the alleged acts of harassment which either were unknown to the supervisors of Mr. Kivela, or were events in which such supervisors acted appropriately in the circumstances; The Tribunal erred in its application of the law on the duty to accommodate in ruling that the City should also have accommodated Mr. Kivela retroactively when the City took steps in 1996 to remedy the situation of others passing Mr. Kivela by in acquiring seniority. The Tribunal further erred in failing to find that the City accommodated Mr. Kivela adequately, reasonably, and to the point of undue hardship; The Tribunal erred in its interpretation of the concept of “undue hardship” as it is defined in paragraph 2(1)(q) of the Code and in the common law. The Tribunal erred in law in failing to recognize the legal significance of Mr. Kivela’s resignation from his employment with the City. [3] As to the position of CUPE with respect to liability, the main grounds of appeal are as follows: The Tribunal erred in law in finding that the City had discriminated against Mr. Kivela, in contravention of the Code, by finding that the City had failed to reasonably accommodate him; The Tribunal erred in law in finding that the resignation of Mr. Kivela from the employ of the City in 1999, was result of discriminatory treatment. [4] During oral argument it became clear that the main issues on the appeal were the duty to accommodate and the alleged resignation of Mr. Kivela. [5] Both the City and CUPE take issue with certain findings of fact made by the Tribunal. Notwithstanding their concerns, am of the view that the facts which are set out in some detail in the decision of the Tribunal and in the brief of the Commission are reasonably accurate and have been referred to in my judgment. Here the appeal from the Tribunal is only on question of law (s. 32 of the Code). By inference this denies the existence of any appeal on question of fact. As stated by La Forest J. in the Supreme Court of Canada decision in Kourtessis v. Minister of National Revenue, 1993 CanLII 137 (SCC), [1993] S.C.R. 53 at 69-70: Appeals are solely creatures of statute; see R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] S.C.R. 1764, at p. 1773. There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is widespread expectation that there must be some way to appeal the decision of court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature. [6] Mr. Kivela filed a complaint under Part II of the Code, alleging that CUPE discriminated against him on the basis of his disability. Mr. Kivela alleges the following: have disability, Cerebral Palsy. was employed as truck driver by the City of Regina from July 1982 until November 12, 1998 during which time was member of the Canadian Union of Public Employees, Local 21. During my employment, was denied permanent position. was kept on casual status for more than 15 years, which was highly unusual. was also paid less than other worker’s [sic] doing the same work. raised my concerns with my union but they did not represent my interests or bargain fairly on my behalf. believe my disability was factor in their inaction. have reasonable grounds to believe, and do believe, the Canadian Union of Public Employees (CUPE) Local 21 discriminated against me in regard to employment because of my disability, contrary to Section 18 of The Saskatchewan Human Rights Code. [7] Mr. Kivela also filed similar complaint against the City. It reads as follows: have disability, Cerebral Palsy. was employed as truck driver by the City of Regina from July 1982 until November 12, 1998. During my employment, was discriminated against by the City of Regina. For example, for the first three or four years was paid $5.00 less per hour than others doing the same job. was kept in casual position as long as was there, even though people who started after me moved on to permanent positions. believe the City of Regina could have accommodated me in permanent position by giving me duties could perform along with driving truck. In 1998, left my employment because of this discrimination. have reasonable grounds to believe, and do believe, the City of Regina discriminated against me in the terms and conditions of my employment because of my disability, contrary to Section 16(1) of The Saskatchewan Human Rights Code. [8] The City and CUPE deny that Mr. Kivela was discriminated against on the basis of his disability. They argue that they have met their duty to accommodate with regards to Mr. Kivela as an employee of the City. [9] The Tribunal heard five days of testimony from witnesses for both Mr. Kivela, the City and CUPE, as well as oral argument from their respective counsel and from Mr. Kivela personally. [10] Mr. Kivela is the complainant in this case. Mr. Kivela was born in Whitewood, Saskatchewan, on January 17, 1950. He has had Cerebral Palsy since birth. Cerebral Palsy is qualitative motor disorder caused by damage to the brain. common effect of Cerebral Palsy is lack of muscle control and body movements. It is not progressive disease. Rather, Cerebral Palsy conditions may improve, worsen or remain unchanged. Mr. Kivela’s Cerebral Palsy is visible through his lack of control over his muscles and in his speech. He walks with considerable difficulty, using cane to help his balance. Mr. Kivela’s speech is also affected by his Cerebral Palsy, in that his speech is slow and slurred and often difficult to understand. Today, Mr. Kivela experiences further health problems, such as osteoarthritis of the major joints of his knees and feet, resulting in further degeneration of his physical capacity. [11] Mr. Kivela came to be employed as casual truck driver with the City from July 5, 1982 until November 12, 1998. The City and CUPE accommodated him initially to allow him to occupy this position. Driving an eight-ton tandem axle truck owned by the City, Mr. Kivela hauled gravel, slag, street sweepings, asphalt and snow. To drive the eight-ton truck, Mr. Kivela possessed the necessary A-3 licence, and special modifications were made to the truck to accommodate Mr. Kivela’s disability. Modifications included an extra step into the truck, raised floor boards and special hand levers. [12] As casual employee with the City, Mr. Kivela began work in the spring (April-May), and would be laid off in the fall (October-November), the exact work period being dependent upon weather conditions and his level of seniority. Mr. Kivela’s casual employment hours always entitled him to collect Employment Insurance (“EI”) in the winter. [13] Because of Mr. Kivela’s Cerebral Palsy, he is limited in his ability to perform certain tasks of physical labour in his employment with the City. Thus, Mr. Kivela’s job was confined to hauling materials with an eight-ton tandem truck. While Mr. Kivela was somewhat slower in manoeuvring his unit, and required special assistance in maintaining his unit, the City administration and CUPE were both pleased by his work and ambition to be independent. [14] In the spring, Mr. Kivela often began hauling street sweepings, eventually working on the asphalt, hauling gravel, or any other material the City needed to be hauled. The tandem truck he drove was one of the 12 or 13 trucks purchased by the City in 1982. Mr. Kivela drove the same truck until November 12, 1998. In 1994, the City purchased semi-trailer trucks to replace most of their tandem trucks. Mr. Kivela testified that the Highway Board did not want to give him the required A-1 licence to drive semi-trailer truck. After the purchase of the semi-trailer trucks, Mr. Kivela experienced reduction in the amount of his work. The semi-trailers essentially took over hauling the materials that the tandems used to haul. In one effort to ensure Mr. Kivela did not lose hours, belly plow was attached to his truck enabling him to plow snow in back alleys during the winter. However, once the City began using the semi-trailers, Mr. Kivela testified that 90% of the time he was finished work by 2:00 p.m. In addition, fellow employees often told Mr. Kivela to “get lost for an hour or two,” in the afternoon. Although he would still receive his wage, this resulted in feelings of embarrassment for Mr. Kivela. [15] Mr. Kivela was first hired as casual employee with the City and remained casual throughout his 16-year career. In his initial hire, Mr. Kivela was accommodated, as he did not have the physical capacity to work as labourer, the normal entry level position with the City. With the agreement of CUPE, accommodation was made to hire Mr. Kivela as casual employee in roadway construction and he was assigned to drive tandem truck. Mr. Kivela would not have to serve time as casual labourer to acquire seniority before being assigned to drive truck. At first, Mr. Kivela was paid as labourer until his seniority would give him priority to drive truck. At that point, CUPE negotiated pay scale for Mr. Kivela, reducing his pay by 4% to reflect the jobs and duties he was unable to perform, such as vehicle inspection which represented 20 minutes every eight hour shift. Thus, Mr. Kivela received 4% less in wages than other comparable City employees right up until his last day of work. During this hearing, the City acknowledged the wage differential was inappropriate and compensated Mr. Kivela in the amount of $8,902.00. [16] Mr. Kivela boasts an unblemished driving record for the 16 years he was employed with the City. Throughout Mr. Kivela’s testimony, recurring theme was obvious, in that his main goal throughout his 16 years with the City was to go from casual employee status to become permanent employee with the City. His efforts to convince the City to give him permanent position were endless. Mr. Kivela communicated his desire and intention to become permanent employee through numerous attendances at City Hall and the Public Works Committee. On November 15, 1982, Mr. Kivela made submission to City Council asking to be put on permanent or to have contract, and made other submissions on November 1, 1983. On April 23, 1990, Mr. Kivela again wrote to the City and complained about not being made permanent. In the fall of the same year, Mr. Kivela had meeting with the City’s Administrative Services Manager, Warren Bobbee expressing his concerns about becoming permanent employee. In December 1991, Mr. Kivela again made submission to City Council to be put on permanent staff or to secure long-term contract with the City. In addition to these efforts, Mr. Kivela applied twice for permanent jobs. The evidence shows that Mr. Kivela also directly sought help from CUPE on one occasion to attend meeting at City Hall in 1996 or 1997. His testimony was that CUPE told him it was up to the City to give him permanent status. [17] Seniority is the process by which casual employees may gain permanent status. Seniority within certain division will determine who is the first to be rehired in the spring and who is the last to be laid off in the fall. Mr. Kivela worked in the Roadway Construction Division of the Public Works Department. Casual employees within the Roadway Construction Division are recalled according to their seniority in comparison with other casual employees in Roadway Construction. As an example, casual employee in Water Distribution could not claim the right to be recalled into Roadway Construction based on seniority. However, in bidding for permanent positions, seniority throughout the Department is considered. Permanent employees have priority over casual employees in bidding for any permanent position, amongst those who are qualified. If there are no qualified permanent employees who want to transfer into the position, then priority is determined between casual employees based on seniority, amongst those who are qualified. [18] Seniority for permanent employees is determined by reference to the date of appointment to permanent position. permanent employee gets seniority date and has priority over other employees who have more recent appointment date. All permanent employees have priority over casual employees no matter how recent their appointment. Seniority for casual employees is determined by total number of hours worked. Separate seniority lists are maintained for both casual and permanent employees and updated regularly. At any time City employee can determine who they have priority over and who has priority over them. The seniority lists were much in evidence before the Tribunal. [19] In order to help explain the impact of the seniority system on Mr. Kivela, it is useful to describe how he was first hired by the City in 1982. The City could not have employed Mr. Kivela in the first place without significant accommodation within the seniority system. The entry-level position for every employee within CUPE’s jurisdiction (outside workers) is as Labourer I, which, as the name indicates, involves physically demanding work. This is the lowest position in terms of work assignment, skill level and rate of pay. The usual process is that applicants are hired on as Labourer in casual position and then as their seniority increases they can apply for other positions. Labourer employees have to compete with other employees with more seniority, but they always have priority over external applicants. It is possible that when highly skilled position needs to be filled, an external applicant can be hired if there is no internal employee with the necessary qualifications. But this was rare circumstance and it certainly would not have happened with respect to the truck driving positions. [20] Because of his Cerebral Palsy, Mr. Kivela could not perform the work of Labourer I. He could only drive truck. The City has had number of truck driver positions over the years, usually referred to in the Collective Bargaining Agreement as an Operator II. Had Mr. Kivela been able to gain employment with the City he would eventually have been able to bid into an Operator II position when he became the person with the most seniority. But it would be impossible for Mr. Kivela to ever gain employment with the City because the entry-level position was something he could not do because of his disability. The requirement of building up seniority as Labourer presented an insurmountable barrier for Mr. Kivela because of his disability. [21] In approximately 1981/1982, Mr. Kivela had his own truck and was lobbying the City to provide him with hauling contracts. It is fair to say that Mr. Kivela himself did not understand the potential to become City employee. For variety of reasons, simply providing Mr. Kivela with his own contracts was not possible. However, the City did arrange, with CUPE’s cooperation, to bring Mr. Kivela on staff in special casual position, with the approximate rate of pay for Labourer I, but with truck driving assignment. Several years later when Mr. Kivela would have had the seniority to bid into truck driving position, he was reclassified as casual truck driver and given the prevailing rate of pay for truck driver less small amount to reflect the fact that there were some tasks he could not perform. In this way Mr. Kivela was allowed to bypass the barrier that otherwise would have prevented person with Cerebral Palsy, no matter how skilled, from ever becoming truck driver with the City. In order for this scheme to work, both the City and CUPE had to agree to forego the seniority rights in the Collective Bargaining Agreement. Otherwise, someone already working as Labourer would have had priority to be assigned to truck. [22] Mr. Kivela was, in each season after 1982 and until the end of his employment, casual employee. He was called back for the construction season, in order of his seniority, and assigned to drive tandem truck. Other casual employees with more seniority than Mr. Kivela either could not or did not use their seniority to bump Mr. Kivela off his truck. It was an informal arrangement that was never tested in the grievance process. casual employee, with more seniority, would still be hired back in the spring ahead of Mr. Kivela and laid off in the fall after him, even if the work available was driving tandem truck. But as soon as Mr. Kivela’s name came up on the seniority list, he was brought back and assigned to tandem truck. [23] Because Mr. Kivela could only drive truck, he was not able to maintain his position on the seniority list. number of casual employees, who started after Mr. Kivela, and who in 1989 had fewer hours of total seniority, were able to work more hours than Mr. Kivela, pass him in total hours and thereby gain seniority ahead of him. [24] In the spring and fall of each year, casual employees had opportunities to continue working at stock piling, general maintenance, putting up snow fences, and other physical activities. Other employees gained seniority advantage over Mr. Kivela by working at these jobs he could not do because of his disability. [25] The conclusion is inescapable that the reason Mr. Kivela was passed in seniority was because others worked at jobs that Mr. Kivela could not do. The other theoretical possibilities are that others passed Mr. Kivela because either he turned down work other than truck driving that he could do or that others gained more hours driving truck when Mr. Kivela did not want to or was otherwise unavailable. Neither of these theoretical possibilities have any substance in fact. The evidence was that Mr. Kivela was always enthusiastic about working and never turned down any work driving truck. Truck driving was his life. An employee who had less seniority than Mr. Kivela could not bump him off his truck and therefore could never gain more seniority over Mr. Kivela by driving truck because Mr. Kivela would be there driving as well. They could only gain more seniority by working at jobs other than truck driving at time when there was no truck driving for Mr. Kivela. [26] The seniority lists show that in 1989 Mr. Kivela had more hours of seniority than William Hildebrand, Delbert Cyr, Tim LaFontaine, Tony Rope, Kerry Rusk and Jeff Dodds. By December 31, 1992, Hildebrand had passed Mr. Kivela. By July 21, 1993, all of Rope, Rusk and Cyr had passed Mr. Kivela. These individuals, as between themselves, changed order on the seniority lists as they made personal choices, or got more work as result of special skills or from being in the right place at the right time. But the fact of the matter is that they all accessed work opportunities that are not available to Mr. Kivela and, because of that, they gained priority for further opportunities in priority over Mr. Kivela. [27] The fact that others passed Mr. Kivela on the casual seniority lists had two major effects. First, any individual with more seniority would have priority for recall and for retention of employment at the time of layoff whether or not the available work was truck driving. Mr. Kivela was only guaranteed the right to drive truck while actually at work. He was still recalled and laid off according to his seniority. Those who had gained more seniority by doing work that Mr. Kivela could not do, also had priority over Mr. Kivela, even to drive truck, when recall and layoffs were occurring. Secondly, those who had gained more casual seniority had priority over Mr. Kivela to bid on permanent positions. [28] The manner in which permanent positions were filled also worked to Mr. Kivela’s disadvantage. Kevin Faul testified that most of his tandem truck drivers (those in his division) occupied permanent positions. There would be as many permanent tandem truck driver positions as the City felt were needed on year round basis. But the only way casual employees became permanent truck drivers was to bid into other permanent positions, then, when the next permanent truck driver position came open, the employee could use his seniority as permanent employee to bid back into this position. However, because of his disability, Mr. Kivela could not perform any of the other permanent jobs. In effect, Mr. Kivela was in exactly the same position he was in, in 1982. The only way he could gain the seniority necessary to work at the job he was capable of performing was to first work at jobs he was not capable of performing because of his disability. As with the casual positions, no other permanent position has been identified which Mr. Kivela could do other than driving truck. Witnesses Behman, for the City, and Cronin for CUPE clearly understood that it would be almost impossible for Mr. Kivela to ever get position as permanent truck driver. [29] Both the City and CUPE understood that some further accommodation in addition to what had already been arranged in 1996 was necessary and they were prepared to make that happen. The accommodation plan was to allow Mr. Kivela to fill position he could not do and then assign him as permanent employee to drive tandem truck. Again, it was almost exactly the same solution that was implemented in 1982 when the City and CUPE agreed to hire Mr. Kivela as labourer and yet assign him to truck driving duties. [30] The City and CUPE were too late in developing their plan. The plan was conceived in approximately early 1999, to be executed when Mr. Kivela got to the top of the seniority list, probably in about 2000. But, by this time Mr. Kivela was no longer able to work. It was assumed that the appropriate time to give the next available position to Mr. Kivela would be when he reached the top of the seniority list. However, this timing did not take into account that Mr. Kivela should have been at the top of the seniority list much sooner than 2000. [31] The permanent seniority list as of December 18, 2001, shows that Hildebrand, Rusk and Dodds, who passed Mr. Kivela on the seniority list, were permanent employees by 1996. Rope became permanent on April 18, 1999, approximately one month prior to Mr. Kivela’s resignation, and Cyr became permanent on June 23, 1999, approximately one month after. Lafontaine became permanent at some unspecified date, but is not on this seniority list as he was terminated for reasons irrelevant to this inquiry. [32] The 1996 agreement was implemented to keep Mr. Kivela from falling further back in seniority. Even the employee who was the next lowest employee on the casual seniority list in April of 1996, Leonard Homeniuk, had permanent position by September 2000, only one and one-half years after Mr. Kivela resigned. All of these individuals acquired permanent positions within Public Works and would be able to bid back into Roadway Construction. [33] Because of the way in which the system made permanent positions available, others were able to be flexible in ways that Mr. Kivela was not in order to gain permanent status. [34] Permanent status was something that was extremely important to Mr. Kivela. It was guarantee of permanent, year round employment. In addition, permanent employees are entitled to double time for overtime (as opposed to time and one-half for casuals), mandatory access to the City’s Disability Plan and mandatory access to the Permanent Employees’ Superannuation Plan, which is defined benefit plan, as opposed to the money purchase plan available to casual employees. (Admittedly, casual employees now have some access to the Permanent Employees’ Superannuation Plan if they opt in). There would have been no difference between Mr. Kivela’s assignment as permanent truck driver and casual, other than these benefits. The designation was the same (e.g. Operator II or Tandem Truck Driver), and the work and rate of pay were the same. It was simply way of designating some employees as year round workers and providing them with benefits accordingly. One of the injuries suffered by Mr. Kivela as result of not being made permanent at the appropriate time is that he was not able to access the City’s disability plan in 1999. [35] Mr. Kivela’s numerous attempts to gain permanent status over 16-year period were unsuccessful. His frustration with the City and with CUPE heightened once he became aware of other casual City employees, hired after Mr. Kivela, passing him on the seniority list. The fact of other employees passing Mr. Kivela on the seniority list had two major effects. First, any individual with more seniority in his department would have priority for recall and for retention of employment at the time of layoff whether or not the available work was truck driving. Mr. Kivela was only guaranteed the right to drive truck while actually at work. Since recall and layoff was still according to seniority, employees who gained more seniority by doing work that Mr. Kivela could not do, had priority over him, even to drive truck during recall and layoff. Secondly, employees who gained more casual seniority had priority over Mr. Kivela to bid on permanent positions. [36] Only after Mr. Kivela’s attendances upon the City requesting that he be made permanent employee were actions taken to maintain his position on the seniority list. In 1996, communications between Mr. Kivela, the City and CUPE took place regarding Mr. Kivela’s seniority situation. The City and CUPE recognized that the only way Mr. Kivela would ever gain the seniority necessary was to work at jobs he was not capable of performing. Effective April 1, 1996, Mr. Kivela was credited with seniority hours from the point in time in which his position on the seniority list is to be recalled. In other words, accommodation was made so that Mr. Kivela would no longer be passed by another casual employee on the seniority list. In the fall of the same year, an arrangement was made to allow Mr. Kivela to cross boundaries so that he could go to other divisions and get work, according to his seniority. This allowed him to accumulate more hours of work and hence, seniority. [37] While the agreement remedied the loss of seniority for Mr. Kivela from that point forward, it did nothing to rectify the previous loss of seniority from 1982 to 1996. Neither the City nor CUPE corrected the problem retroactively. [38] Mr. Kivela became so stressed about his employment situation and particularly his lack of permanent status that he was not able to continue working. This occurred on November 12, 1998, following two full days of hauling crushed concrete. On the third day, Mr. Kivela was told that his truck was too small and that he was to go to the Water Works Department, where workers had previously expressed fear of working with him. Mr. Kivela did not want to go to Water Works. He feared that he was being pushed out of his employment as tandem truck driver. He then received his normal layoff notice as casual employee effective November 15, 1998. It was at this time that Mr. Kivela began to see Dr. Blignaut who diagnosed him as being depressed and he commenced drug therapy in December of 1998. Upon referral from Dr. Blignaut, Mr. Kivela also saw Dr. Beattie, psychiatrist in January 1999, who assessed Mr. Kivela as suffering from reactive depression and paranoid personality. [39] In the winter of 1999, during the seasonal layoff, Mr. Kivela corresponded with the City about obtaining permanent status and the need for further accommodation. By letter dated February 5, 1999, the City agreed to certain requests but made it clear that it was not prepared to deviate further from the seniority provisions of the Collective Bargaining Agreement. In fact, the City advised him to contact his CUPE representative regarding his concern about becoming “permanent staff.” [40] In the spring of 1999, Mr. Kivela did not return to his employment, stating he had health problems. In letter written by Mr. Kivela to the City and CUPE, he explained that he was under doctor’s care for stress and depression. Mr. Kivela sent letter to the City resigning as at May 20, 1999. Mr. Kivela’s testimony was that he did not resign for the “fun of it.”. Mr. Kivela stated the reason he resigned was to gain access to his pension fund. He would not have resigned if he had been entitled to disability plan, which at the time was only available to permanent employees. His claim for compensation from the Workers’ Compensation Board had been denied in December 1998. When his EI ended in the spring of 1999 Mr. Kivela had to apply for social assistance. Before applying for social assistance, he resigned and drew partially upon his City pension plan. [41] Mr. Kivela’s Cerebral Palsy became more severe after he left work in November 1998. Working was good therapy for his disability and Mr. Kivela claims that his condition has deteriorated. Mr. Kivela also remains on anti-depressants to this day. [42] Mr. Kivela alleges that the City and CUPE brought this lawsuit on themselves through 16 years of “disability discrimination.” His Cerebral Palsy became more severe after he had to leave his employment because of stress, burnout and depression. He maintained that he would have enjoyed an excellent permanent career if the City and CUPE would have treated him fairly instead of disability discrimination. [43] It is probably fair to say that Mr. Kivela did not fully appreciate exactly why he was not made permanent. But the fundamental allegation is simply that both the City and CUPE discriminated against Mr. Kivela in relation to his employment because of his disability. The Commission substantiated this allegation before the Tribunal by showing that there was a discriminatory impact on Mr. Kivela as a result of the seniority system established by the collective agreements in force from time to time between the City and CUPE. [44] As to accommodation, the Tribunal made the following finding: 116. It is my conclusion that all of the efforts actually made in response to Mr. Kivela, although reasonable, did not deal directly and effectively with his claim that the seniority standards in the collective agreement were discriminatory towards him on the basis of his disability. While not disregarding the efforts of the Respondents going to great lengths to accommodate Mr. Kivela, I agree with the Human Rights Commission that their efforts of accommodation were “too little, too late” to reverse the systemic discrimination experienced by Mr. Kivela over the years. While reasonable and acceptable, the accommodations do not meet the duty to accommodate short of undue hardship. 117. In conclusion I find that the City of Regina and the Canadian Union of Public Employees, Local 21 contravened sections 16 and 18(1) of the Code by discriminating against the complainant Mr. Kivela on the basis of his disability. Neither the City nor CUPE established their inability to accommodate Mr. Kivela in obtaining permanent employee status with the City in 16 years, or that their duty to accommodate would cause undue hardship. also find that the Respondents have not suffered prejudice having regard to the length of time that has passed, as has been suggested. The duty to accommodate is positive one, and an on-going obligation, imposing on the employer the duty to explore all possible accommodations available to the employee. STANDARD OF JUDICIAL REVIEW What is the Appropriate Standard of Judicial Review? [45] Although there was some confusion as to the appropriate standard of review for decisions of human rights commissions, and in particular the amount of deference that should be afforded by the courts to these tribunals, the matter has now been conclusively decided by the recent decision of the Supreme Court of Canada in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] S.C.R. 825. In this case teacher publicly made racist and discriminatory comments against Jews during his off‑duty time. His writings and statements communicated his anti‑Semitic views including four books or pamphlets, letters to local newspaper, and local television interview. complaint was filed with the New Brunswick Human Rights Commission. The commission found that the teacher’s off‑duty comments denigrated the faith and belief of Jews and that the school board which employed the teacher was guilty of discrimination by failing to meaningfully discipline him. The commission directed the school board to comply with the following: (a) place Ross on leave of absence without pay for period of 18 months; (b) appoint him to non‑teaching position, if one became available during that period; (c) terminate his employment at the end of that period if, in the interim, he had not been offered and accepted non‑teaching position; and (d) terminate his employment with the school board immediately if he published or wrote anti‑Semitic materials or sold his previous publications any time during the leave of absence period or at any time during his employment in non‑teaching position. The Court of Queen’s Bench allowed the teacher’s application for judicial review in part, ordering that clause 2(d) of the order be quashed on the ground that it was in excess of jurisdiction. The court also concluded that paragraph of the order violated ss. 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms but that, with the exception of clause 2(d), it could be saved by s. of the Charter. The Court of Appeal dismissed the cross appeals with respect to clause 2(d), and allowed the teacher’s appeal, holding that clauses 2(a), (b) and (c) of the order infringed Ross’ freedom of expression and freedom of religion, and could not be justified under s. 1. The Supreme Court of Canada allowed the appeal and clauses 2(a), (b) and (c) of the order were restored. [46] The decision of the Supreme Court of Canada is of importance as it raises two general issues in relation to the standard of judicial review. The first relates to the standard of deference to be applied to the Commission’s finding of discrimination and its remedial order. The second relates to the standard of constitutional review to be applied to the Board’s order. [47] With respect to the administrative law issue, the superior expertise of human rights tribunal is confined to fact finding and decision making in the context of human rights and therefore, reasonableness is the test for judicial review. However, if the issue is one of law, the standard of review is one of correctness. [48] In other words, the appropriate standard of review by superior court of factual determination is whether the decision is patently unreasonable. La Forest J., in Ross, stated at p. 847: ... On the basis of this difference between human rights tribunals and labour tribunals, the Court confined the superior expertise of human rights tribunal to fact‑finding and adjudication in human rights context. The standard of review on the basis of reasonableness is applicable to these matters.... [49] Where human rights commission is required to interpret laws of general application, the correctness test applies. In the Supreme Court of Canada decision in Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] S.C.R. 554, which was cited with approval in Ross, La Forest J. stated at p. 585: ... The superior expertise of human rights tribunal relates to fact‑finding and adjudication in human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal’s decisions on questions of this kind on the basis of correctness, not on standard of reasonability. [50] The Supreme Court of Canada’s decision in Ross concerning “jurisdictional facts” has extended the deference provided to human rights commission to include not only the “jurisdictional facts” upon which the legal question is decided, but also the legal question itself. This proposition was asserted by La Forest J., speaking for the unanimous full court at p. 849: ... The expertise of the tribunals appointed under their aegis is limited to fact‑finding and adjudication in human rights matters. In the process of performing its adjudicative function, human rights tribunal will be called on to apply general legal reasoning and statutory interpretation, matters which are ultimately within the province of the judiciary. That having been said, do not think the fact‑finding expertise of human rights tribunals should be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. Here, inquiry into the appropriate standard of review is largely governed by the fact that the administrative law issue raised calls upon this Court to consider whether the finding of discrimination by the Board of Inquiry was beyond its jurisdiction.... [51] The City contends that during the hearing of this matter, and later, in its written submissions, the Commission took the position that harassment was no longer an issue being pursued in the proceedings, with the result that the City presented limited evidence on the issue of harassment. [52] There is merit to this submission. This is reflected in the memorandum of law filed by the Commission. The following extract from the memorandum states: Kivela also makes allegations of harassment. The Commission chooses not to press this point although it does appear that some isolated derogatory remarks in relation to disability may have been made. [53] It was confirmed on the record that Mr. Kivela is not independently represented by legal counsel and he therefore will be relying on representations made by counsel for the Commission. [54] This ground of appeal is therefore allowed. Accommodation [55] The leading case regarding the principle of accommodation is Ontario (Human Rights Commission) v. Simpson Sears Ltd., 1985 CanLII 18 (SCC), [1985] S.C.R. 536 (“Simpson Sears”). In that case the appellant was required by her religion to not work from sundown Friday to sundown Saturday. However, her employer required all full-time employees to share in the work during the busiest times of the week: Thursday evenings, Friday evenings, and all day Saturdays. The appellant was informed that she would be allowed to work Monday to Thursday. But if she did so she would lose her status of being full-time employee and consequently she would lose the benefits accruing to full-time employees. The Supreme Court held that Simpson-Sears’ policy had discriminatory effect on the appellant. Therefore it was required to attempt to accommodate her. As Simpson-Sears had failed to take any accommodating steps, and had not established that any accommodation would result in undue hardship, the violation was established. [56] In Simpson Sears the court held that an employment rule, honestly made for sound economic and business reasons and equally applicable to all to whom it is intended to apply, may nevertheless be discriminatory if it affects person or persons differently from others to whom it is intended to apply. The intent to discriminate is not governing factor in construing human rights legislation aimed at eliminating discrimination. Rather, it is the result or effect of the alleged discriminatory action that is significant. The aim of the Ontario Human Rights Code is to remove discrimination—its main approach is not to punish the discrimination but to provide relief to the victim of discrimination. [57] In case of adverse effect discrimination, the employer has duty to take reasonable steps to accommodate short of undue hardship in the operation of the employer’s business. There is no question of justification because the rule, if rationally connected to the employment, needs none. If such reasonable steps do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part, must sacrifice either his religious principles or his employment. [58] The complainant first must establish prima facie case of discrimination. The onus then shifts to the employer to show that he has taken such reasonable steps to accommodate the employee as are open to him without undue hardship. Here, the employer did not discharge the onus of showing that it had taken reasonable steps to accommodate the complainant. [59] In Simpson Sears, the court established two important concepts: 1) that intent to discriminate is not requisite element of finding of discrimination, and 2) that what is important is whether there is adverse effect discrimination. McIntyre J. states at pp. 549-550: do not consider that to adopt such an approach does any violence to the Ontario Human Rights Code, nor would it be impractical in its application. To take the narrower view and hold that intent is required element of discrimination under the Code would seem to me to place virtually insuperable barrier in the way of complainant seeking remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create, as in Griggs v. Duke Power Co., 401 U.S. 424 (1971), injustice and discrimination by the equal treatment of those who are unequal (Dennis v. United States, 339 U.S. 162 (1950), at p. 184). Furthermore, as have endeavoured to show, we are dealing here with consequences of conduct rather than with punishment for misbehaviour. In other words, we are considering what are essentially civil remedies. The proof of intent, necessary requirement in our approach to criminal and punitive legislation, should not be governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be necessary element of proof. And at pp. 551-552: distinction must be made between what would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts practice or rule which on its face discriminates on prohibited ground. For example, “No Catholics or no women or no blacks employed here.” There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts rule or standard which is on its face neutral, and which will apply equally to all employees, but which has discriminatory effect upon prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code am of the opinion that this Court may consider adverse effect discrimination as described in these reasons contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects person or group of persons differently from others to whom it may apply. From the foregoing therefore conclude that the appellant showed prima facie case of discrimination based on creed before the Board of Inquiry. [60] McIntyre J. went on to describe the duty of an employer to accommodate short of undue hardship. He states at p. 555: Accepting the proposition that there is duty to accommodate imposed on the employer, it becomes necessary to put some realistic limit upon it. The duty in case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer.... The employer must take reasonable steps towards that end which may or may not result in full accommodation. Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part‑time work, must either sacrifice his religious principles or his employment. And at pp. 558-559: ... Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee’s position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer, for it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in position to show its absence. The onus will not be heavy one in all cases. [61] I agree with the Commission that in effect, the seniority system prevented a person such a Mr. Kivela from ever getting a permanent position, without accommodation, by giving priority to all those who could work more hours or gain permanent status by being flexible enough to work at the wide range of positions that the City had to offer. Mr. Kivela could never take advantage of this reward system because he could only bid into truck driver positions. [62] The City and CUPE were too late in developing their plan. The plan was conceived in early 1999, to be executed when Mr. Kivela reached the top of the seniority list, probably in about 2000. But, by this time Mr. Kivela was no longer able to work. [63] Had the impact of the seniority system on Mr. Kivela, because of his disability, been properly taken into account, he would probably have achieved permanent status before 1996 when number of those who passed him did. And certainly he would have achieved this status prior to his last day of actual work in November of 1998. Mr. Kivela was faced with compound problem. He needed to be accommodated in the process for becoming permanent. And, in assessing the appropriate time to do this, the City and CUPE needed to take into account that Mr. Kivela was lower on the seniority list than he ought to have been. [64] Here, the characterization of the order of the Tribunal is not to direct that Mr. Kivela be given a permanent position despite the seniority rights of others. It is to give Mr. Kivela the benefits he would have had if his seniority had accrued in a non‑discriminatory manner. It is true that the Tribunal suggests that Mr. Kivela could have been accommodated in 1996 by giving him permanent position. But this is only because it was reasonable to assume that Mr. Kivela could have been entitled to permanent position by that time. It would have been equally acceptable if Mr. Kivela’s seniority had simply been readjusted to take into account the decline in his seniority position. [65] It is not without significance that CUPE admitted that the seniority provisions in the Collective Bargaining Agreement did, in fact, discriminate. However, it denied liability for any period prior to 1996 because it was not aware of the problem prior to that date. I agree with counsel for the Commission that whether CUPE did or did not have knowledge is irrelevant. The breach occurs as soon as there is discrimination. The employer and CUPE are jointly responsible where a collective bargaining agreement that they negotiated is discriminatory. In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] S.C.R. 970, the Supreme Court of Canada decided that in organized workplaces the responsibility for discrimination that results from the operation of collective bargaining agreement rests not only with the employer but also with the union. At p. 989, Sopinka J. states: The duty to accommodate developed as means of limiting the liability of an employer who was found to have discriminated by the bona fide adoption of work rule without any intention to discriminate. It enabled the employer to justify adverse effect discrimination and thus avoid absolute liability for consequences that were not intended. Section of the Act, like many other human rights codes, prohibits discrimination against person with respect to employment or any term or condition of employment without differentiating between direct and adverse effect discrimination. Both are prohibited. Moreover, any person who discriminates is subject to the sanctions which the Act provides. By definition (s. 1) union is person. Accordingly, union which causes or contributes to the discriminatory effect incurs liability. In order to avoid imposing absolute liability, union must have the same right as an employer to justify the discrimination. In order to do so it must discharge its duty to accommodate. [66] In my opinion CUPE is jointly responsible for the seniority provisions in the Collective Bargaining Agreement. As soon as the employer and/or the union contribute to adverse effect discrimination, the violation has occurred. For either the union or employer to avoid liability they must discharge their duty to accommodate. If the actions of the employer and/or union have discriminatory effect on the employee, to avoid liability they must take steps to accommodate. Sopinka J. also described further, the extent of the duty at pp. 984-985: The concern for the impact on other employees which prompted the court in Hardison to adopt the de minimis test is factor to be considered in determining whether the interference with the operation of the employer’s business would be undue. However, more than minor inconvenience must be shown before the complainant’s right to accommodation can be defeated. The employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures. Minor interference or inconvenience is the price to be paid for religious freedom in multicultural society. And he then went on, at pp. 991-992, to describe what that meant to the union: The timing and manner in which the union’s duty is to be discharged depends on whether its duty arises on the first or second basis as outlined above. agree with the submissions of the respondent union and CLC that the focus of the duty differs from that of the employer in that the representative nature of union must be considered. The primary concern with respect to the impact of accommodating measures is not, as in the case of the employer, the expense to or disruption of the business of the union but rather the effect on other employees. The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to measure which would have this effect. Although the test of undue hardship applies to union, it will often be met by showing of prejudice to other employees if proposed accommodating measures are adopted. As stated previously, this test is grounded on the reasonableness of the measures to remove discrimination which are taken or proposed. Given the importance of promoting religious freedom in the workplace, lower standard cannot be defended. [67] In my view, the problem Mr. Kivela faced in respect of seniority should have been remedied at an earlier date to avoid discrimination. [68] agree with the Tribunal that although all of the accommodations made for Mr. Kivela by the City and CUPE were reasonable, the accommodations did not rectify the cumulative negative impact upon Mr. Kivela of having the seniority provisions apply to him for almost the duration of his employment. The cumulative effect continued to impact on Mr. Kivela’s ability to obtain permanent employment until he left his employment. [69] As to undue hardship, some of the factors include financial cost, disruption of collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer’s operation may influence the assessment of whether given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. One must balance these factors against the right of the employee to be free from discrimination. (See Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] S.C.R. 489). [70] Therefore, the next question to determine is whether the City and CUPE accommodated Mr. Kivela up to the point of undue hardship. It is clear that an employer and/or union must take reasonable measures short of undue hardship to accommodate Mr. Kivela. It is critical to underscore that the City and CUPE did not contend that the accommodation made in 1996 altering the seniority provisions of the Collective Bargaining Agreement were an undue hardship. By way of analogy, would it have been undue hardship to implement the 1996 provision earlier or when the cumulative negative impact of the seniority provisions were realized to implement them retroactively? [71] Here the Tribunal’s finding that there was no undue hardship is supported by the evidence. According to the evidence there are approximately 1,400 casual and permanent positions. Moving Mr. Kivela up the seniority list would have relegated certain union members in a large bargaining unit by one, which is insignificant. If this occurred, although Mr. Kivela would obtain the next permanent position, this would not be in disregard of the rights of other employees. Neither the City nor CUPE presented any evidence that would establish that a retroactive adjustment itself would create an undue hardship in the context that it would cause the seniority list to become unmanageable or ambiguous. It is not without significance that even if the membership of CUPE opposed the placing of Mr. Kivela into a permanent position, this by itself, does not justify a finding of undue hardship. [72] Furthermore, the fact that Mr. Kivela was accommodated number of times by ignoring the seniority rights of employees with no apparent hardship, neither the City nor CUPE attempted to establish before the Tribunal that the accommodation they had already engaged in produced hardship. [73] therefore conclude that Mr. Kivela has established prima facie case of discrimination against both the City and CUPE. The onus then shifts to the City and CUPE to show that they have taken such reasonable steps to accommodate Mr. Kivela as are open to them without undue hardship. Here the City and CUPE did not discharge the onus of showing that they had taken reasonable steps to accommodate Mr. Kivela. Both the City and CUPE are jointly liable. therefore agree with the decision of the Tribunal in this regard. Termination [74] The City and CUPE contend that the Tribunal erred in law in failing to recognize the legal significance of Mr. Kivela’s resignation from his employment. As an answer to this ground of appeal the Tribunal made the following findings of fact: Mr. Kivela was very depressed and truly perceived himself to be in dead end job; He had no knowledge of plan in place where he would become permanent, and honestly believed that he would never become permanent; He resigned only to obtain pay out of his pension contributions; Had Mr. Kivela achieved permanent status with the City, he would not have resigned; · His resignation was one effect of the discrimination. [75] take comfort in the comments of LaForest J. in the decision of the Supreme Court of Canada in Canada (Attorney General) v. Mossop, supra, in which he stipulated that the fact finding expertise of human rights tribunals should be restrictively interpreted. He then went on to say at p. 849 that: ... finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate. The Board heard considerable evidence relating to the allegation of discrimination and was required to assess the credibility of the witnesses’ evidence and draw inferences from the factual evidence presented to it in making determination as to the existence of discrimination. Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise relative degree of deference to the finding of discrimination.... [76] The authorities relied on by the City and CUPE to support their submissions can be characterized as claim for wrongful dismissal. Here, the Tribunal was dealing with complaints of discrimination. The authorities relied on are clearly distinguishable. The mandate of the Tribunal once a finding of discrimination is made is to determine what losses are caused by the discriminatory conduct. Here, the Tribunal made such finding and that is within its jurisdiction. agree with the Tribunal that the purpose and intent of the Code is to put complainant back in the position he would have been if the contravention had not occurred. [77] Here, the Tribunal is exercising statutory authority. Therefore the question to determine is whether the violation is substantiated and what damages flow from that violation. [78] In my view, there is no merit to this ground of appeal. What is the Legal Effect of Delay of Complaint Under the Code? [79] The right of complainant to file complaint comes from the Code and not Commission policy. The right is based on reasonable grounds under s. 27. [80] Here the Tribunal found that the violation of the Code had an ongoing effect. also am of the view that the implementation and mechanics of the seniority system was easily identifiable from the Collective Bargaining Agreement since 1982. In terms of what positions Mr. Kivela, in view of his condition was able to do, most of the witnesses who testified before the Tribunal were employed by the City for many years and were very knowledgeable as to all material facts and therefore the City and CUPE were not deprived of procedural fairness. This ground of appeal fails. [81] As to damages, the tribunal made the following statement: 159. During oral arguments the parties invited the tribunal, in the event the respondents are found to have discriminated against Mr. Kivela, not to make final order regarding the quantum of damages. This was to allow reasonable opportunity for the parties to negotiate solution that may meet the needs of all parties. agree to do so. The tribunal therefore retains jurisdiction regarding the calculation of damages. The parties shall have 30 days from the date this decision is rendered to reach agreement, failing which the hearing shall be reconvened to hear further representations on the calculation of damages. also retain jurisdiction to address any questions of clarification that may arise regarding the remedies of their implementation. [82] During oral argument on the appeal the parties concentrated on liability and there was paucity of submissions on damages. I therefore will permit the parties, if they cannot settle the quantum of damages, to refer that issue to the Tribunal. After that has been done and the Tribunal makes decision, the parties have leave to refer the matter to the Court of Queen’s Bench and will therefore retain jurisdiction. CONCLUSION [83] For all the above reasons, the appeals by the City and CUPE on liability are therefore dismissed. Costs may be spoken to.","This is an appeal by the City of Regina (the City) and Canadian Union of Public Employees Local 21 (CUPE) from a decision of the Tribunal under The Saskatchewan Human Rights Code (the Code) in the matter of complaints filed by the respondent against the City and CUPE. It became clear that the main issues on the appeal were the duty to accommodate and the alleged resignation of the respondent. The respondent filed a complaint under Part II of the Code alleging that CUPE and the City discriminated against him on the basis of his disability. The Commission substantiated this allegation before the Tribunal by showing there was a discriminatory impact on the respondent as a result of the seniority system established by the collective agreements in force from time to time between the City and CUPE. The Tribunal found that all of the efforts made in response to the respondent did not deal directly and effectively with his claim that the seniority standards in the collective agreement were discriminatory towards him on the basis of his disability. The Tribunal agreed with the Commission that their efforts were too little too late to reverse the systemic discrimination. The accommodations did not meet the duty to accommodate short of undue hardship. The Tribunal found that the City and CUPE contravened s. 16 and s. 18(1) of the Code by discriminating against the respondent on the basis of his disability. HELD: The appeals by the City and CUPE on liability are dismissed. The parties were allowed to refer the issue of damages to the Tribunal. 1) The superior expertise of human rights tribunal is confined to fact finding and decision making in the context of human rights and therefore reasonableness is the test for judicial review. If the issue is one of law, the standard of review is one of correctness. In other words, the appropriate standard of review by superior court of factual determination is whether the decision is patently unreasonable. Where human rights commission is required to interpret laws of general application, the correctness test applies. 2) The Court agreed with the Commission that the seniority system prevented a person such as the respondent from ever getting a permanent position, without accommodation, by giving priority to all those who could work more hours or gain permanent status by being flexible enough to work at the wide range of positions that the City had to offer. The respondent could not take advantage of this reward system because he could only bid into truck driver positions. The City and CUPE were too late in developing the plan. The plan was conceived in early 1999 to be executed when the respondent reached the top of the seniority list, probably in about 2000. But by this time, he was unable to work. 3) The characterization of the order of the Tribunal is not to direct the respondent be given a permanent position despite the seniority rights of others. It is to give him the benefits he would have had if his seniority had accrued in a non-discriminatory manner. 4) Whether CUPE had knowledge of the problem is irrelevant. The breach occurs as soon as there is discrimination. The City and CUPE are jointly responsible where a collective bargaining agreement that they negotiated is discriminatory. 5) For either the City or CUPE to avoid liability they must discharge their duty to accommodate up to the point of undue hardship. 6) The Tribunal's finding that there was no undue hardship is supported by the evidence. There are approximately 1,400 casual and permanent positions. Moving the respondent up the seniority list would have relegated certain union members in a large bargaining unit by one, which is insignificant. If this occurred, although the respondent would obtain the next permanent position, this would not be in disregard of the rights of other employees. Neither the City nor CUPE presented any evidence that would establish that a retroactive adjustment itself would create an undue hardship in the context that it would cause the seniority list to become unmanageable or ambiguous. It is not without significance that even if the membership of CUPE opposed the placing of the respondent into a permanent position, this by itself does not justify a finding of undue hardship. 7) The mandate of the Tribunal, once a finding of discrimination is made, is to determine what losses are caused by the discriminatory conduct. The Tribunal found that the respondent's resignation was one effect of the discrimination. The Court found there was no merit to this ground of appeal.",e_2004skqb372.txt
23,"Information 24191289 2007 SKPC 01 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT BUFFALO NARROWS, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- MARJORIE LOIS HANSEN Gerald Perkins For the Crown James Scott For the Accused January 3, 2007 E. Kalenith, P.C.J. JUDGMENT INTRODUCTION [1] Marjorie Hanson applies for relief pursuant to The Canadian Charter of Rights and Freedoms (“the Charter”) on the basis of post-charge delay denying her the right to have her trial in a reasonable time. I find that there was a Charter breach and that the appropriate remedy is a stay of proceedings. My reasons follow. [2] The accused is charged that: on or about May 18, 2004, at Buffalo Narrows, Saskatchewan, she did: Count unlawfully produce Cannabis Marihuana contrary to Section of the Controlled Drugs and Substances Act (“the CDSA”) and Count unlawfully possess Cannabis Marihuana in an amount not exceeding three kilograms for the purpose of trafficking contrary to Section 5(2) of the CDSA. HISTORY OF PROCEEDINGS [3] The following dates are relevant to this application: (a) May 19, 2004 the Information was sworn charging the accused; (b) May 19, 2004 the accused first appeared in court with Legal Aid as her counsel, was released on an Undertaking Given to Judge subject to number of restrictive conditions, and the Information was adjourned to September 8, 2004 for disclosure; (b.1) August 24, 2004 the defence forwarded Consent Order to the Crown authorizing opening of sealed Search Warrant and Information to Obtain, the edited copy of which was provided on November 2, 2004, only after counsel for the co-accused consented to the Order in late October 2004; (c) September 8, 2004 the Information was adjourned to October 6, 2004, and then to November 3, 2004, for defence election on Count 2; (d) November 3, 2004 defence election of Queen’s Bench Judge Alone made and then the Information was adjourned by the defence to November 17, 2004, then to December 8, 2004, then to February 23, 2005 (on which date reelection was made on Count to Provincial Court), and then to March 9, 2005, in each case to be spoken to; (e) March 9, 2005 not guilty plea was entered and the trial was set for September 28, 2005; (f) September 28, 2005 the Information was adjourned at defence request to October 19, 2005, then to October 26, 2005, then to November 19, 2005, and then to December 14, 2005, in each case to be spoken to; (g) December 14, 2005 new trial date was set for June 14, 2006; (h) June 14, 2006 the trial was adjourned to November 29, 2006 at Crown request, the Accused not waiving delay; (i) November 29, 2006 the trial was adjourned at Crown request due to the inability of some Crown witnesses able to travel to Buffalo Narrows in the bad weather, new trial date being set for January 19, 2007, the defence not waiving delay; (i.1) December 13, 2006 Charter motion argued and decision reserved to this date. [4] The relevant time periods are: (a) From May 19, 2004 to mid-June, 2004 date of swearing the Information to the date of an interview by Legal Aid defence counsel two months; (b) From June 2004 to November 2004- delay in unsealing and obtaining edited copy of search warrant documents five months; (c) From November 2004 to March 2005 adjournments at defence request until the defence was ready to set trial date four months; (d) From March 2005 to September 2005 time from plea to the earliest trial date six months; (e) From September 2005 to December 2005 adjournments at defence request until ready to schedule new trial date three months; (f) From December 2005 to June 2006 delay to second trial date six months; (g) From June 2006 to November 2006 delay to third trial date five months; (h) From November 2006 to January 2007 delay to fourth trial date two months; (i) Date of swearing the Information to latest trial date two years, seven months. [5] In deciding whether the right to trial within reasonable time, as guaranteed by section 11(b) of the Charter, has been infringed consider the factors outlined by the Supreme Court of Canada in R. v. Morin (1972) 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1(“Morin”): (a) Length of delay; (b) Waiver of time period; (c) Reasons for the delay, including: (i) inherent time requirements; (ii) actions of the accused; (iii) actions of the Crown; (iv) limitations on institutional resources; (v) other reasons for the delay; (d) Prejudice to the accused. [6] The onus is on the accused to prove the breach on balance of probabilities. Length of delay [7] In Morin, the Supreme Court of Canada proposed that as general guideline delay of eight to ten months in Provincial Court would be acceptable. find this to be consistent with the reality in Buffalo Narrows, where trials are set within six months of entering plea. [8] The length of delay in this case from the date of charge to the date of trial is approximately thirty-one months. The Crown concedes, and find, that the length of delay is sufficient to warrant an inquiry into the reasons for the delay. [9] The accused requested the adjournments from May 19, 2004 to November 3, 2004 to seek counsel and to obtain and to obtain disclosure of the information relating to the search warrant. attribute four months of this delay to the accused because find that the Crown should have arranged for the editing of the search warrant material within one month of the consent order having been provided to it, and that it was not necessary to delay having the order issued, and the material edited, simply because counsel for the co-accused had not yet consented to the order. The delay from November 3, 2004 to March 9, 2005, delay of five months, attribute to the accused as these adjournments were at her request for the purpose of deciding defence election and entering plea. The delay from September 28, 2005 to December 14, 2005, period of approximately three months, is attributable to the accused as delay until the accused was ready to set new trial date (the second one). do not accept the Crown argument that there is waiver of the delay caused by the adjournments from the dates of December 14, 2005 and June 14, 2006. For there to be valid waiver, it must be clear and unequivocal. The endorsement is silent as to waiver from December 2005, and clearly indicates no waiver of delay from June 14, 2006, and therefore find there is no waiver of the delay for these periods of time. The total delay attributable to the accused is twelve months. The remaining delay of nineteen months occurred for the reasons indicated below. Inherent time requirements [10] Arranging for the accused’s appearance in court, and some time between plea and trial, led to some delay. deduct this six-month period from the delay being considered. Actions of the accused [11] The accused did not contribute to the remaining delay. There were some delays attributable to the accused in time until she was ready to enter pleas, and later until she was ready to have the matter rescheduled for trial, delays which were deducted above. Otherwise, she appeared on all court dates and was diligent about having the charges set for trial. Actions of the Crown [12] The remaining delay of thirteen months is either attributable to the Crown or caused by factors outside the control of the accused. Limitations on institutional resources [13] There is no evidence that any lack of institutional resources caused any delays in this case. Other reasons for delay [14] The weather caused delay from November 29, 2006 to January 19, 2007, period of two months. [15] As indicated in Morin, prejudice can be inferred from prolonged delay. [16] Evidence was led by the accused that she suffered actual prejudice because the outstanding charge has affected her ability to apply for higher-paying job opportunities, and has caused her stress and frustration. She further alleges that the passage of time makes it more difficult to properly defend against the charges. The Crown argues that the accused could have applied to amend her conditions of release, as she did in September 2004 and March 2005, so as to alleviate any restrictions that prevented her from obtaining better paying jobs. The Crown further argues that stress and frustration are irrelevant and are part of the usual effects of being subject to criminal charge. The accused argues that she was reluctant to make further applications to amend her release conditions given the amendments she had already obtained to improve her job opportunities. [17] I find that in this case the accused has suffered actual prejudice and that the delay in bringing this matter to court from the time of swearing the Information to the date of trial has prejudiced the accused’s ability to make full answer and defence and her right to a fair trial. While the restrictions on employment opportunities caused some prejudice, I find that these could have been overcome by applications to amend her conditions of release. [18] Given the finding of actual prejudice, the question remains as to whether the prejudice to the accused was such as to outweigh the prejudice to society that would result if the accused was not to face trial for this charge. [19] The Crown suggests, and find, that there is heightened public interest in offences of this nature, as there is in offences of violence, in having these offences tried. On the other hand, there have been four trial dates set on these charges, resulting in a lengthy delay to a verdict being reached on these charges. No explanation is offered for the adjournments except for the last adjournment caused by bad weather. Fairness to the accused requires that even for offences such as these that trials be held within reasonable period of time so that the accused does not suffer undue prejudice and so that she can fairly defend herself and so that society’s interest in having these matters heard can also be done within reasonable period of time. In this case, find the prejudice to the accused outweighs the public interest in having her tried for the charge. The just and appropriate remedy under section 24 of the Charter is to grant stay of proceedings. E.Kalenith, P.C.J.","The accused applies for relief pursuant to the Charter on the basis of post-charge delay denying her the right to have her trial in a reasonable time. HELD: There was a Charter breach and the appropriate remedy is a stay of proceedings.  1) The length of delay in this case from the date of charge to the date of trial is approximately 31 months. The Supreme Court proposed as a general guideline a delay of 8 to 10 months in Provincial Court as acceptable. This is consistent with the reality in Buffalo Narrows, where trials are set within 6 months of entering a plea. 2) 12 months of the delay can be attributed to the accused. 6 months was deducted from the delay for inherent time requirements in arranging for the accused's appearance in Court. The remaining delay of 13 months is either attributable to the Crown or caused by factors outside the control of the accused. 3) In this case the accused has suffered actual prejudice in that the delay in bringing this matter to Court from the time of swearing the Information to the date of trial has prejudiced the accused's ability to make full answer and defence and her right to a fair trial. While the restrictions on employment opportunities caused some prejudice, this could have been overcome by applications to amend her conditions of release. 4) There have been four trial dates set on these charges, resulting in a lengthy delay to a verdict being reached. No explanation is offered for the adjournments except for the last adjournment caused by bad weather.",8_2007skpc1.txt
24,"J. 2005 SKQB 211 Q.B. A.D. 2003 No. 337 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CHARLENE MILLAR and HARLEY JASON STROUTS RESPONDENT P. J. Bitz, Q.C. for the petitioner J. B. Benesh for the respondent JUDGMENT MAHER J. May 6, 2005 INTRODUCTION [1] The petitioner (“Charlene”) and the respondent (“Harley”) are the parents of Harley Keeler Strouts-Millar (“Keeler”) born May 27, 2002. The parents separated in October of 2003. They agreed to an order of joint custody with Keeler primarily residing with Charlene. Charlene wishes to move with Keeler from Saskatoon to Edmonton and Harley is opposed to such a move. [2] The issues are as follows: 1. Is it in the best interests of Keeler to relocate from Saskatoon to Edmonton, Alberta with Charlene? 2. If it is in the best interests of Keeler to move to Edmonton, what is an appropriate access schedule for Harley to be with Keeler? [3] Charlene and Harley met in July of 2001. When Charlene was nineteen years old and Harley twenty-seven they commenced living together at Harley’s home in September of 2001. Charlene found out she was pregnant in October of 2001 and Keeler was born May 27, 2002. Harley and Charlene separated in mid-October of 2003. [4] On January 16, 2004, Wilson J. of this court, granted an interim order that provided Charlene and Harley would have joint custody of Keeler with Keeler to reside primarily with Charlene. The order provided that Harley was to have parenting time with Keeler as follows: Tuesday and Thursday each week 5:00 p.m. to 7:00 p.m.; Saturdays commencing at 10:00 a.m. until Sunday at 7:00 p.m.; The access to be at the home of Harley’s parents. This order established Harley’s income at $20,965 and Charlene’s income at $7,258. Harley was ordered to pay child support of $169 per month and 74% of any child care costs. [5] After the order the parties agreed that weekly access would be changed to Wednesdays and Fridays from 5:00 p.m. to 8:00 p.m. They also agreed in the latter part of 2004 that Harley would take Keeler to daycare each morning that Charlene worked and also pick him up because Charlene did not get home from work until 6:30 p.m. [6] Charlene has Monday as her day off and Keeler spends the day with her. When Harley takes Keeler to daycare, Tuesday through Friday each week, he picks Keeler up from Charlene’s between 7:15 and 7:30 a.m. and then picks Keeler up from daycare at approximately 5:15 p.m. On Tuesday and Thursday he keeps Keeler until 6:30 p.m. when he returns Keeler to Charlene’s apartment. On Wednesday and Friday he picks Keeler up at 5:15 and because this is his access day he then returns Keeler to Charlene’s at 8:00 p.m. Charlene’s Position: [7] Charlene is employed at the Bombay Store in Saskatoon at Midtown Plaza as an assistant manager. She works six days week, Tuesday to Sunday inclusive. She has no vehicle or driver’s licence so relies on the Saskatoon Transit Service for her transportation. [8] Charlene has some concerns about Harley’s ability to parent Keeler because in January of 2003 he had grand mal seizure. This seizure resulted in Harley being hospitalized for approximately one week. He is on medication but Charlene believes that he still gets seizures and therefore access should be at Harley’s parents’ residence. [9] On Charlene’s day off she devotes her full attention to Keeler. They play together, watch movies, prepare meals and do chores such as washing dishes. On her work days they are up at 7:00 a.m. If she is to drop Keeler off at daycare she must leave her home by 7:40 a.m. to take bus to day care. She then takes second bus from the daycare at 8:15 to work and usually returns home form work at about 6:30 p.m. This winter Harley agreed that he would pick Keeler up from Charlene’s apartment at between 7:15 and 7:30 a.m. and take him to daycare. Harley agreed to pick Keeler up from daycare Tuesday to Friday at about 5:15 and bring Keeler back to her apartment on Tuesdays and Thursdays at 6:30 p.m. and on Wednesdays and Fridays at 8:00 p.m. [10] Charlene is concerned about furthering her education. She has her grade twelve and when she met Harley she had taken year off from further studies. She has looked at taking hair dressing courses, psychology, and interior design. However, while she was working at company called Party World in 2003 she had the opportunity to do some accounting and found it to be challenging. Charlene has looked at obtaining further education in the accounting field. She reviewed the ten month program at the Saskatoon Business College. In her opinion the program was not worth the money. Her high school marks were not high enough for her to gain admission to the U. of S. She checked out Saskatchewan Institute of Applied Arts and Sciences programs. They offer business administration program but it is at Moose Jaw, Saskatchewan. Charlene is not prepared to relocate to Moose Jaw since she has no family or friends in that city. [11] Charlene next checked on the internet as to programs in accounting that were available in Edmonton because she had cousin who had taken accounting there. She also had further interest in moving to Edmonton as in the summer of 2004, her mother, step-father plus siblings had moved from Saskatoon to White Court, Alberta. [12] Charlene inquired about the accounting programs at Grant MacEwan College and arranged to travel to Edmonton in October of 2004. She found out there were programs for mature admissions which provided flexible scheduling and were, in her view, more affordable than the accounting programs offered in Saskatoon. Grant MacEwan College offers two year accounting program starting either in September of 2005 or January of 2006. She obtained package of materials from the Northern Alberta Institute of Technology which offers two year accounting program. On her visit to Edmonton she did not have time to go to the NAIT campus. [14] Charlene did some checking in Edmonton on apartments and found that two bedroom apartments range from $450 to $700 per month depending on where you live. Her current rent for two bedroom apartment is $500 per month. She said there appeared to be daycare on every corner near Grant MacEwan College. However, she made no direct inquiries because she did not know if she would be able to move or not. [15] Charlene said that if she was allowed to move to Edmonton, Harley could have access one weekend per month plus four, seven-day week visits per year or three, ten-day visits per year. She would arrange for access exchange to occur at Lloydminster, Saskatchewan. [16] She has also inquired of Bombay, her employer, about transferring her employment from Saskatoon to Edmonton. She was told that she couldn’t transfer in management position. However, if she was looking for part-time position in Edmonton it would appear to be no problem, although there were no current vacancies. Her plan is that her sister, Melissa, would move from White Court, Alberta to live with them in Edmonton. Harley’s Position: [17] Harley is thirty years of age and has been employed at several companies in the Saskatoon area primarily in the area of shipping and receiving. He is currently employed in that capacity with Ramboc Enterprises. His income for 2004 was $21,873.36 and he estimates his 2005 income will be $24,000. He currently rents residence at 122 Ross Crescent in Saskatoon. This residence is three bedroom home which he shares with roommate. There is an extra bedroom which he has set up and furnished for Keeler. [18] Harley has had seizures since he was eight years of age. The seizures are controlled by medication which he takes regularly. He has his blood monitored monthly. The seizure that occurred in January, 2003, was the only time he was hospitalized for seizures. This occurred at the time he lost his job after he had been employed for ten years with Acklands-Grainger and was under lot of stress. He has driver’s licence and there is no indication of any restrictions on his licence. The only time he has symptoms of seizures is when he is in bed generally in the early morning. [19] Harley has significant family network in Saskatoon. His parents, Rick and Pam Strouts, live in the City. They have established bedroom in their home so that Keeler has his own room when he stays there on weekends. Harley has brother and sister, grandparents, numerous aunts, uncles, nieces, nephews, and cousins in the Saskatoon area. His family and extended family get together for special occasions such as Christmas, Easter and Thanksgiving. Keeler goes to these family events plus the occasional family wedding. [20] Harley has cared for Keeler since Keeler was an infant. When Harley lost his job in January of 2003, he cared for Keeler on full time basis after Charlene returned to work to support the family while he was unemployed. [21] Harley is involved with Keeler almost daily. This winter on Tuesdays through to Fridays when Charlene was going to work he would go to Charlene’s apartment to pick up Keeler each morning at around 7:15. If Keeler wasn’t ready he would help dress him, change his diaper, put his jacket and boots on and then take Keeler to daycare by around 7:30 a.m. When he finished work at 5:00 p.m. he would go to the daycare and pick Keeler up. On Tuesdays and Thursdays he usually took Keeler to his parents or the rink, returning Keeler to Charlene’s by 6:30 p.m. On Wednesdays and Fridays he would pick Keeler up at 5:15, on these days Keeler would have supper with him at his parents’ house. They would play trains, blocks, watch videos until he returned Keeler to Charlene’s at 8:00 p.m. [22] Charlene first told him about her plans to move with Keeler to Edmonton in August of 2004, shortly after her mother and step-father had moved to White Court, Alberta. She told him she wanted to go to school in Edmonton and help with her father’s business at White Court, Alberta. Harley said he was not pleased with the idea as he might only see Keeler once month when he now sees Keeler just about every day. [23] Harley says that he likes the current arrangement and the only change would be if he could have Keeler at his house instead of always having to take him to his parents’. If Charlene would take her courses in Saskatoon at an evening program he would be happy to take care of Keeler. Charlene could take accounting classes in Saskatoon through the SIAST distance education program at Kelsey Campus in Saskatoon. [24] Harley doesn’t have to be asked twice to look after Keeler. Harley took time off work in November and December to take Keeler to the doctor. On November when Keeler was sick, Charlene called him and he took the day off work to care for Keeler. [25] Harley feels that he and Charlene communicate reasonably well on issues surrounding Keeler. On one weekend month Charlene now has Keeler even though the interim order says that he is to have Keeler every weekend. [26] Harley has made no inquiries about the possibility of finding employment for himself in Edmonton. He is reluctant to do that because he has job and family in Saskatoon. His position is that he would like the current arrangement to remain in place and would be happy to see Keeler every day. [27] The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, provides as follows: Custody or access application 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a)grant custody of or access to child to one or more persons; (b)determine any aspect of the incidents of the right to custody or access; and (c)make any additional order that the court considers necessary and proper in the circumstances. (4) On application, the court may vary or discharge any order made pursuant to this section where there has been material change in circumstances since the date of the order. (5) When making an order pursuant to subsection (1), the court shall: (a)give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (b)include in the order condition requiring any person who has custody of child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (I) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. (7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (a) the division and sharing of parental responsibilities; and (b) the granting of access. (8) Where an order is made for supervised access pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay. 1. Is it in the best interest of Keeler to relocate from Saskatoon to Edmonton with Charlene? [28] At the commencement of the trial the parties agreed that there should be an order for joint custody and provided Charlene remained in Saskatoon, Keeler’s primary residence was to be with her. The issue that am to determine is whether it is in Keeler’s best interest to relocate with Charlene to Edmonton, Alberta. [29] This is the first determination of residence of Keeler given that the order of June 16, 2004, was an interim order. In my considerations on the proposed relocation of Keeler to Edmonton am mindful of the comments of McLachlin J. (as she then was) in Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] S.C.R. 27 where she said the following at para. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [30] McLachlin J. also commented on the best interest test para. 20: 20 The best interests of the child test has been characterized as ""indeterminate"" and ""more useful as legal aspiration than as legal analysis"": per Abella J.A. in MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament's view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make measure of indeterminacy inevitable. more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents. [31] Madam Justice L’Heureux-Dube in Gordon v. Goertz, (supra) considered the significance of the primary caregiver and psychological parent when the court is determining the “best interests” of child: The assessment of the child's best interests also involves consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child's relationship with his or her psychological parent has long been recognized by this Court on number of occasions (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, at p. 101). There is growing body of evidence that this relationship may well be the most determinative factor on the child's long-term welfare. As mentioned in Young, supra, at p. 66, the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit's Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child's relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [32] Laskin J.A. in Young v. Young, 2003 CanLII 3320 (ON CA), [2003] O.J. No. 67 when considering the test on relocation application said the following at para. 17: The court must consider and balance all the benefits and detriments of the proposed relocation. What is required is “full an sensitive inquiry” into the best interests of the child. Laskin J.A. further at para. 18 held that this inquiry applied where the parents have joint custody. [33] He then commented on the application of Gordon v. Goertz (supra) on an existing parenting arrangement at para. [32] The application judge's misapprehension of the existing parenting arrangement has significant consequences for two of the other considerations listed in Gordon v. Goertz at p. 61 S.C.R., p. 342 D.L.R.: ""the existing custody arrangement and the relationship between the child and the custodial parent"" and ""the desirability of maximizing contact between the child and both [page120] parents"". The record discloses that Mr. Young is good father, and with the help of his parents, has admirably carried out his responsibilities as custodial parent. One effect of granting Ms. Young permission to move to Cornwall with the children is to remove Mr. Young as custodial parent, and thus to undermine the co-parenting arrangement reflected in the minutes of settlement. In practice, Mr. Young will become an access parent and the children will no longer benefit from his co-parenting. This consideration should have been factored into the assessment of whether the move to Cornwall was in the children's best interests. [34] There have been several recent decisions of this court involving the relocation of children. It is helpful to review the factual background in these decisions. In Rosenau v. Rosenau, 2004 SKQB 275 (CanLII) Wright, M-E J. of this court determined that the petitioner/mother should not relocate to Ontario with five year old because her family connections in Ontario were not frequent, she did not identify the community in Ontario she would be moving to and had made no inquiries as to employment or educational opportunities in Ontario. [35] Sandomirsky J. in H.S. v. C.S., 2004 SKQB 492 (CanLII) reviewed in detail the steps the petitioner/mother had taken in anticipation of relocation with her three children from Midale, Saskatchewan to Medicine Hat, Alberta for the purpose of enrolling in nursing program He determined that the petitioner’s research and knowledge of the nursing program was sketchy and vague, she did not provide evidence on daycare facilities nor potential arrangements for childcare. Sandomirsky J. determined that the court was concerned about the vagueness, uncertainty, and speculative nature of the proposed move to Medicine Hat. He refused the petitioner’s application to relocate the children from Midale, Saskatchewan to Medicine Hat, Alberta. [36] more recent decision of Smith, R.S. J. in Rask v. Rask, 2005 SKQB 159 (CanLII) dealt with an application by petitioner/father to stop the relocation of the two children ages and with their mother from Saskatoon to Calinte, Nevada. Calinte, Nevada is community of about 800 people some two hours from Las Vegas, Nevada. Smith, R.S. J. held that the children’s psychological parent and their psychological home was with the mother who wished to relocate. He held that the father was not involved in the day-to-day routine of the children. He further concluded that the mother had definite employment arrangement and had taken steps to familiarize herself with the town as well as potential home for herself and the children. He allowed the mother to relocate with the children. [37] The Saskatchewan Court of Appeal held in Delaire v. Delaire, 2002 SKCA 71 (CanLII) that parent’s reason for relocating is only relevant in the exceptional case where it impacts on that parent’s ability to meet the needs of the child. [38] The Children’s Law Act s.6(5) mandates that child should have as much contact with each parent as is consistent with the best interests of the child. The common theme in all three of these recent decisions of this court mandates an inquiry as to what arrangements would be in place for the child in the event relocation was allowed and also what is the psychological relationship between each of the parents and the child. [39] It is clear that Charlene has made, as what can best be described as cursory inquiries, at Grant MacEwan and basically received only informational material from the Northern Alberta Institute of Technology regarding taking of an accounting/business program in Edmonton. She has not made any inquiries as to daycare arrangements that might be available other than to say that at Grant MacEwan, “there is daycare on every corner”. Her plan however would be to go to NAIT. Her only involvement has been to review the printed materials that she has received. She has made no inquiries about daycare at NAIT or in the immediate vicinity. She has made no inquiries about available rental accommodations in the area of the NAIT campus. She has made some inquiries about working part-time with her current employer at the Bombay Store in Edmonton. She has not indicated as to how she would integrate attending school, working part-time, daycare, and how she would handle meaningful relationship with Keeler while involved in all of these activities. She, as well has dismissed out of hand taking business/accounting classes offered by SIAST Distance Learning Program which are available in Saskatoon. [40] On the matter of the psychological bond of Keeler to his parents, given the involvement of Harley with Keeler particularly this past winter, six out of seven days week, am satisfied that there is significant bond between Keeler and Harley which would be lost if Keeler was allowed to relocate. Keeler, as well would lose contact with his extended family in Saskatoon on Harley’s side. Keeler would have no extended family in Edmonton as Charlene’s parents live and work in White Court, Alberta which is approximately two hours from Edmonton. [41] Charlene’s plans for Keeler’s care in Edmonton, if she was allowed to relocate, are very vague, if she went to school and worked part time in Edmonton, Keeler would be in day care for extended periods of time. Keeler has had very stable arrangement in Saskatoon which provides significant and almost daily contact with both parents, relocation would cause Keeler to lose the bond he now has with Harley. Harley would become an access parent and Keeler would no longer benefit from Harley’s co-parenting. [42] Based on the loss of Harley as an active co-parent coupled with Charlene’s vague and uncertain plans for Keeler’s care in Edmonton I find it is not in the best interest of Keeler that he be allowed to relocate to Edmonton with Charlene. 2. If it is in the best interests of Keeler to move to Edmonton, what is an appropriate access schedule for Harley to be with Keeler? [43] It is not necessary for me to deal with this as have declined to allow the relocation of Keeler to Edmonton. Harley’s Current Access: [44] At the conclusion of the trial amended the interim order which required access by Harley with Keeler to be at his parents’ home. My reasons for so doing were was satisfied on the evidence that the risk of Harley having further grand mal seizure has been minimized by the medications he takes and his monthly blood analysis. The petitioner obviously has confidence in Harley’s health given the fact that Harley has been transporting Keeler in his car six days week over the last number of months without incident. Harley, as well, has not had further significant event since January of 2003, and he has roommate who also resides at that home. Therefore concluded that supervised access is no longer required. Child Support: [45] The parties have filed their respective income information and will make the requisite child support order based on that evidence. 1. There will be an order that Charlene Millar and Harley Jason Strouts shall have joint custody of the child, Harley Keeler Strouts-Millar, born May 27, 2002; 2. That Keeler shall remain in the Province of Saskatchewan unless the parties agree in writing to temporary absence from the Province of Saskatchewan or by order of the court; 3. That Keeler’s primary residence shall be with the petitioner, Charlene, so long as she remains in the City of Saskatoon, in the Province of Saskatchewan. If she chooses to relocate out of the City of Saskatoon, Keeler’s primary residence will be with Harley in the City of Saskatoon; 4. Harley shall have access to Keeler on Wednesdays and Fridays from 5:00 p.m. to 8:00 p.m. as well as every weekend from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. and such other times as the parties may agree or the court may allow; 5. For the purpose of child support the respondent’s annual income is $24,000 per annum, he shall pay child support pursuant to s. of the Federal Child Support Guidelines, [Divorce Act Regulations, SOR/97-175] in the amount of $202, commencing on the 1st day of June, 2005, and continuing on the 1st day of each and every month thereafter until further order; 6. The petitioner’s income is $12,103, therefore the respondent’s proportional share of child care expenses shall be 66.5%. The respondent shall pay his share of childcare expenses within seven days of being provided with the receipt from the petitioner. Leave is granted to either party to return the matter of child care back to the court for further determination if necessary on the issue of tax deductibility of such payments. 7. Costs The matter of costs was not spoken to by either party. The matter of costs may be brought back before me on seven days notice.","The parties separated in October 2003. They have a child born May 27, 2002. The parties have agreed to an order of joint custody with the child residing primarily with the petitioner. The petitioner wishes to move from Saskatoon to Edmonton. HELD: Based on the loss of the respondent as an active co-parent and the petitioner's vague and uncertain plans for the child's care in Edmonton, it is not in the best interests of the child that he be allowed to relocate to Edmonton with the petitioner.",6_2005skqb211.txt
25,"2002 SKPC 50 IN THE PROVINCIAL COURT OF SASKATCHEWAN NIPAWIN, SASKATCHEWAN IN THE MATTER OF DNA WARRANT APPLICATION DATED FEBRUARY 27, 2002 AND IN THE MATTER OF SECTION 487.05 OF THE CRIMINAL CODE Gary Parker, Esq........................................................................................... Appearing for the Crown DECISION FEBRUARY 27, 2002 B. D. HALDERMAN, P. C. J. Application for DNA Warrants. 487.05 Criminal Code February 27, 2002 FROM THE TRANSCRIPT: [1] THE COURT: Now, we have number of matters, criminal matters and Small Claims matters to be dealt with this afternoon. Prior to doing that, there is an application with respect to search warrant that is to be made by the prosecutor and that ought to be made in camera, and so I’m accordingly going to direct that the courtroom be cleared. It will take, think, very few moments and then people can come back in. And, Mr. Parker, as understand, the court has been the courtroom has been cleared. think this ought to properly proceed in camera and ex parte as in an ordinary warrant application. This is an application for DNA warrant? [2] MR. PARKER: That’s correct, Your Honour. It’s and I’m here simply to ask that the officer be allowed to swear the Information to Obtain the Search Warrant before you. And the reason say that is that’s been the long-standing practice and respect and understand the gist of what your protocol [[2002] S. J. 54 (Q. L.)] is trying to avoid, however my reading of the Code section and my understanding of the practice and my reading of Form 5.01 suggest that the officer has to appear before you to swear the Information to Obtain. I, after reading your protocol, thought that could instruct him to just swear the Information to Obtain before Commissioner of Oaths, but then when began reading the section and reading the form itself THE COURT: Do you see anything in the section, Mr. Parker, as opposed to the form? My reading of the various sections on warrants says that it shall be Information on oath. [4] MR. PARKER: Right. THE COURT: It’s the forms that say, “Sworn before me” which would clearly make it [6] MR. PARKER: Yes. [7] THE COURT: the judge. [8] MR. PARKER: Perhaps it’s only the form that says, “Taken before me” think is precise terminology. [9] THE COURT: Yes. [10] MR. PARKER: The if didn’t bring my Code in, and applied for s.487.05. do recall specific information on oaths but thought there was there may be another part, if could just grab it. Well, here the (inaudible). The first line says, “A Provincial Court Judge who, on an ex parte application, may in Form 5.01,” so the form is right incorporated into the section itself. guess Your Honour, to speak to the protocol for moment, which I’m assuming is sort of guideline as distinct from firm precedent, if these applications are brought in court as we’re doing now, in camera, and the tape is on, then think any concern about tainting just can’t occur and can give instructions to the members that they’re not to speak to you in terms of the grounds but rather just to ask to swear the Information. And that’s the practice I’m going to, at this time, be suggesting and intend to look into this further. sent copy of your protocol to our head office and, you know, I’ll continue to review my position and advise in due course, but when the tape is on like this what we used to tell haven’t had lot of involvement with warrants but articled with federal Justice and they ran into some trouble years ago then because the Information had to be on oath under oath and you’d learn that the police officers had talked to the judge. And so then what one practice that think went on for awhile was we instructed the officers if they give any Information to the judge, ask for the Bible and ask the judge to swear you in so that any conversation is at least provided on oath too. And, you know, don’t know what happened to that practice, if that’s what they do now or not, but think we tend to do the same by way of paper and that’s the preferred practice. In fact the section for this type of warrant says in writing, think. [11] THE COURT: Very well. Anything further on the terms of argument? [12] MR. PARKER: The only other part of the protocol that caused me concern was it appeared to me that you wanted, right in the Information to Obtain, when we wanted to execute the warrant. And the only problem with that is how do we know how long you’re going to require with the material? [13] THE COURT: Well, that’s true. My own view of that is that if there is something in general terms set out as to when and how many days it’s going to take or whether that needs to be done at night or whatever [14] MR. PARKER: Yes. [15] THE COURT: that in general terms can be set out and if it’s clear to the judge that it either needs to be happening the same day or the next day or very quickly, that needs to be in the Information. [16] MR. PARKER: see. [17] THE COURT: wouldn’t anticipate that there will be any procedural or substantive impediment to the actual issuance. But I’ve had, I’ve had an experience, for example, where there wasn’t anything put into the it was left blank as to when it was to be executed and then when the officer attended to pick it up and put that in and they attended on me, then found out number of other things just because conversations immediately take place which [18] MR. PARKER: Right. [19] THE COURT: which sort of speaks to the whole issue that dealt with and the various cases that referred to deal with. So it seemed to me that the better practice is to put as much as you can in the Information. [20] MR. PARKER: Yes. [21] THE COURT: Obviously if there’s specific problem that you can’t that the officer can’t set out with particularity when he’s going to need to do this for some good reason, then that should be set out as well. [22] MR. PARKER: Okay. THE COURT: don’t think that will turn out to be problem. [24] THE COURT: Well, understand your argument, Mr. Parker, but before you do depart, I’m of the view, for the reasons really that are set out, I’ve had occasion just to look at my computer copy of the decision that I’d handed down on the 21st of January. looked at it this morning. And I’m of the view that paragraphs 13 to 16 of the decision cover the point that you’re making. I understand -- and I did when I made the order -- that s.487.05 of the Code with respect to DNA warrants does have reference to a form and Form 5.01 which is related to that, and that’s specifically set out in the Code. And the form indicates, as you’ve indicated this afternoon, that it’s an Information that’s “taken before me”, me being the Provincial Court Judge. I’m of the view, especially because s. 487.1, which is the general warrant provision, doesn’t have a form, but even if it did have a form and it used the same words, “taken before me”, that to require that the Information be sworn before the Provincial Court Judge elevates form over substance in a significant way, particularly in the context of the concerns that I raised in that decision about the potential prejudicial or negative effects of a personal attendance before the judge. It’s my view that those potential negative effects or results outweigh any supposed requirement to swear the Information before the judge. And looking at it in terms of substance, it seems to the Court that to ask the question, “Is there any more truth in the officer’s affidavit of Information because he swore it before a provincial -- before a Commissioner of Oaths or a Notary Public,” the answer is self-evident. The oath is the oath. [25] MR. PARKER: Right. [26] THE COURT: And that’s even in light of various recent opinions by various courts about what the value of an oath is any more. [27] MR. PARKER: Sure. [28] THE COURT: But regardless of that side issue, it seems to me the oath is perfectly as valid taken before a commissioner or a notary as it is before me. It gets sworn Information before the judge, on which he or she can act, and it avoids all of the possible problems that relate to the personal attendance, and I take your point about, about the tape recording getting around a good part of that. It just seems to me that in practical terms it makes for much speedier dealing with the Information and the application if the sworn Information is delivered or faxed in secure way to the judge and then the judge can immediately deal with it and not have to have the officer come and appear at all and swear it. So my conclusion as result of having looked at the issue in some detail, before wrote the decision and in light of your submissions this afternoon, the intention is to make the protocol work in as flexible fashion as it can, not impeding the police in their legitimate role but making sure that the Court maintains its independence. And am of the view that it’s simple matter, for example, in Form 5.01, for me to cross out, “taken before me”. It’s nevertheless on sworn Information and it’s in accordance with the Code. And to deal with Informations, except in emergency situations as provided for in that protocol [29] MR. PARKER: Okay. [30] THE COURT: by way of something that’s been sworn before it gets before the judge END OF PROCEEDINGS ON TAPE RECORDER (EDITED)","An application for a DNA warrant on the basis s.487.05 (the general warrant provision) of the Criminal Code with respect to DNA warrants does not refer to a form. The applicant suggested a tape recording would avoid the potential problems in bringing the application before a Provincial Court Judge. HELD: These concerns were raised in the January 21 decision concerning potential prejudicial or negative effects, which outweigh any requirement to swear the Information before a judge. An oath taken before a commissioner or notary is as valid as it is before a provincial court judge and avoids all the possible problems that relate to personal attendance. The intention is to make protocol work as flexible as possible, not impeding the police in their legitimate role, while making sure the court maintains its independence. Form 5.01 is specifically set out in the Code. Section 487.1 does not have a form, but even if it did and used the same words 'taken before me', that would elevate form over substance in a significant way.",b_2002skpc50.txt
26,"J. Date: January 10, 2003 Docket: [02D0013] IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA [Cite as: Minister of Community Services v. T.K.G., G.H., J.R.L. and S.A.H., 2003 N.S.F.C. 1] IN THE MATTER OF: An Application pursuant to Rule 37.11(2)of the Civil Procedure Rules setting aside the decision of the Honourable Chief Judge John Comeau dated November 12, 2002, placing the child C. (born [in 1993]) in the permanent care of Family and Children’s Services of Digby County; BETWEEN: Minister of Community Services APPLICANT/RESPONDENT and T.K.G., G.H., J.R.L. and S.A.H. RESPONDENTS/APPLICANT Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 23, 2008. HEARD BEFORE: The Honourable Judge John D. Comeau, Chief Judge of the Family Court of Nova Scotia DATE HEARD: December 3, 2002 PLACE HEARD: Digby, Nova Scotia DATE OF DECISION: January 10, 2003 COUNSEL: W. Bruce Gillis, Q.C., for the Applicant Andrew Ionson, Esq., for the Respondent, T.K.G. THE APPLICATION: [2] The Applicant is T.K.G., who was one of the Respondents in the original application. She is the mother of the child, C., born [in 1993], and asks the court, pursuant to Civil Procedure Rule 37.11(2), to set aside its decision granting permanent care and custody to Family and Children’s Services by order dated November 12, 2002. [3] In her affidavit the Applicant sets out her understanding of what occurred from the date the child was found in need of protective services (protection hearing), to the order of November 12, 2002 (disposition review hearing). On April 30, 2002, consented to finding that C. was in need of protective services pursuant to section 22(2)(b) and (ja) of the Children and Family Services Act. Under the protection order C. was placed in the temporary care of the Applicant, and was granted access to my son; appeared with my then counsel, Patricia Reardon, for pre-disposition proceeding before the Family Court sitting at Digby in or about the month of October, 2002. At that proceeding, do verily believe date for the Disposition Hearing was scheduled. When left court that day, did verily believe the hearing was scheduled for the Family Court at Digby on November 14, 2002; On November 12, 2002 attempted to contact my counsel by telephone during the morning to discuss with her evidence that would be presenting at the hearing scheduled for November 14. It was my understanding my counsel needed information by November 12, 2002 as she would be meeting with the lawyer for the Applicant to discuss the evidence that would be presented on the 14th; was advised by my counsel’s receptionist that my counsel was at the court house at Digby. As result of my conversation with the receptionist attended at the Digby court house where arrived at approximately 11:00 a.m. there spoke with court clerk whom do verily believe was Cyndi Gennette. was advised that Ms. Reardon was no longer at the court, and that all matters before the court were concluded; was able to reach my counsel later in the day. Ms. Reardon advised me that the disposition hearing had been scheduled for that day. She advised that as had not appeared, she had applied to the court and had been permitted to withdraw as my counsel. Ms. Reardon also said that the court had placed my son C. in the permanent care of the Applicant; As result of my mistake was unable to appear before the court and present evidence of the plan that wished to present to the court regarding the ongoing care of my son, C.. hereby make application under Civil Procedure Rule 37.11(2) requesting that this Honourable Court set aside the decision reached November 12, 2002. [4] Sarah Wallace, social worker for Family and Children’s Services, has filed response in the form of an affidavit. The admissible paragraphs provide an outline of the Minister’s understanding of what resulted in an order for permanent care and custody. THAT on October 8th, 2002, was present in Family Court at Digby, Nova Scotia, for Disposition Review. T.K.G. was present with her counsel, Patricia Reardon, and requested an assessment by Psychiatrist John Curtis. It was agreed that she could pursue such an assessment but any information with respect to the Disposition Review Hearing would have to be before the court for disclosure by November 5th and the matter was set over to November 12th, 2002 in the presence and with the knowledge of T.K.G. and her counsel. THAT on November 7th, 2002, the Respondent T.K.G. met with me and Worker Tracy Saulnier-Terrio at our office in Digby. T.K.G. stated that she was not drinking or doing drugs or any sort and that she felt that foster home was the best place for her son, C., to be at that point and that she needed more months to get her life together. THAT we advised her that the Agency was going ahead with the submitted Plan of Care requesting permanent care and custody and that she could present her side of the story to the judge the following Tuesday, November 12th, in court. THAT after confirming that T.K.G. was no where present in the court house the judge proceeded to decide the matter in her absence and placed C. in the permanent care and custody of the Agency. TRANSCRIPT EVIDENCE: [5] At the court hearing on November 12, 2002, the Applicant was represented by counsel, Patricia Reardon. She advised her client was not in attendance. Ms. Reardon: Well she isn’t visually. I’m sure she knew that today was the day but. [6] The Deputy Sheriff was again asked to check the court premises to see if the Applicant was there and he received no response. [7] The transcript discusses further the absence of the Applicant and the position of Family and Children’s Services. MR. GILLIS: Thank you, Your Honour. have some sympathy for Ms. Reardon’s position because I, as understand it, she’s essentially without much by way of instructions but this was originally set for the 8th of October and at that time an adjournment was requested by the Respondent in order for her to have time to see psychiatrist and to establish attendance at AA. THE COURT: There was list of things in the July 18th order, believe. MR. GILLIS: And number of other things, right. THE COURT: The July 18th order, believe, yeah. MR. GILLIS: Right. Yeah. We needed to find out who her family doctor was and whether there was going to be reference to psychiatrist and so on and so forth. Your Honour adjourned it to today’s date on the understanding, and there was an order issued saying that all reports and affidavits to be presented by her would be filed by the 5th of November together with witness list of who was intended to be here today for the disposition hearing or guess it’s review, not disposition but, there is before you the Agency’s Plan of Care which has been filed since September indicating that we’re looking for permanent care and custody. We have, as of yet, no response to the requirement for what is the Plan of Care from the Respondent, the alternate Plan of Care. My understanding from my friend is that, although she’s got some verbal direction, she has had no instructions. We were looking for such things as even confirmation of her employment, her employment hours, where she’s working, that sort of thing and there’s really nothing here and my friend, as understand it, is here without client to give her instructions. Our proposal would be there would be choice of things to do either proceed to put evidence on the stand. We have Mr. we have report in from Kevin Graham and Kevin Graham is here. He has come down and is available to confirm the contents of his report and answer any questions on it. We have the affidavit of the social worker involved and we have the Plan of Care before you and I’m happy to proceed on those. THE COURT: Ms. Reardon what do you say? MS. REARDON: Well, Mr. Gillis has very adequately summed up this dilemma that have today. have received some oral instructions from T.K.G. and had reason to believe that she does, in fact, have an apartment because spoke to where she was staying and was told that she had that she’s not where she was and that she didn’t have telephone number yet. have reason to believe that she is working because I’ve gotten messages, gotten responses after left messages there. My concern is that she hasn’t, mean among other things, she has not given me letter from her employer yet. understood from talking to her that she had rent receipt but don’t have it. have reason to believe, although that there was no referral to psychiatrist... THE COURT: She hasn’t attended AA. MS. REARDON: She says she’s attended AA. THE COURT: Oh, according to the affidavit. [8] During the course of this proceeding counsel for the Applicant withdrew as solicitor of record because of lack of instruction from her client. This was accepted by the court. [9] The court went on to make decision referring to an order of July 18th, 2002, which required the Applicant to attend AA regularly, attend regular addiction counselling for alcohol and drug abuse, submit to urine testing and continue to attend mental health counselling at service or agency recognized by Family and Children’s Services, temporary care and custody was granted to the agency with access. review of disposition was set for October 8th, 2002, and on that date, by consent of counsel, it was set for November 12th, 2002. [10] The court’s decision on November 12th, 2002, is set out in the transcript of the hearing. THE COURT: So, based on the evidence that was taken at the interim hearing and all the affidavits and attachments that came from Pictou County, the court made finding then that the child was in need of protective services and made further finding at the protection hearing, based on that same evidence, and based on the same evidence today and the report of Mr. Graham, there was an order dated July the 18th where the Respondent was to comply with certain things in order to protect the child. She’s failed to do that. She’s failed to take an interest in her child, failed to appear here and looking at the plan of the Agency, there’s no plan on the part of the mother and also looking at how the child is doing in the foster home, think that what the agency is asking for is in the child’s best interests and I’ll make an order for permanent care and custody to the Agency. [11] The evidence before the court from all proceedings indicates the Applicant has failed to recognize and take control of her alcoholism. professional report prepared by Kevin Graham and dated July 2002 refers to this problem and the Applicant’s unwillingness to do anything about it. Her personal difficulties, denial, misrepresentations, irresponsibility, poor judgment and decision making all erode her parenting capacity to the point that she is not able to provide stable and secure home for C. at present. She has not indicated she is willing to change. ISSUE: [12] Whether the court should set aside its order for permanent care and custody. THE LAW: Arguments of Counsel: 1. On behalf of the Applicant: [13] The jurisprudence in Nova Scotia indicates that C.P. Rule 37.11(2) has not been used in the context of family law matter. It is further submitted that as there is no provision to set aside an order for permanent care under the Children and Family Services Act (there is provision to terminate) or regulations made thereunder, or under the Family Court Act or Family Court Rules, the Civil Procedure Rules apply and more particularly, rule 37.11. [14] Reference is made in the decision of Squitti v. Squitti [1997] No. 4781 where Justice McCartney set aside an ex-parte order where the Respondent failed to notice the hearing date because she was in crisis. In Roberts v. White [1987] O.J. No. 625, Master McBride set out what he/she considered to be the test. think there are two principal requirements to be observed by person moving under this rule [Rule 37.14(1)(b) which is similar to our Rule 37.11(2)]. The first is that the mover must demonstrate that he failed to appear because of an accident, or his mistake or that there was insufficient notice. The second requirement is one to the end that relief from an order made in the absence of person must be promptly sought. 2. On behalf of the Agency: [15] Counsel on behalf of the agency (Family and Children’s Services) argues that the decision and principle set out by Justice Haliburton in Cameron v. Gabriel S.A.R. 01552 July 20, 1999. In that case an application to set aside was dismissed for various reasons including reference to the court being “functus officio” and there was no accident, mistake or insufficient notice. The court also felt that C.P. Rule 37 did not apply to the particular type of action it was dealing with. [16] Civil Procedure Rule 37.11(2) is as follows: 37.11(1) When party fails to attend on hearing of an application or on any adjournment thereof after being served with notice of application, the court may proceed in his absence. [E. 32/5(1)] (2) party who has failed to appear on an application through accident, mistake, insufficient notice or other just cause may, within ten days from the time when the order granted on the application comes to his attention, apply on notice to set aside or vary the order and the court may do so on such terms as it thinks just. [E. 28/4(1); 32/5(4)] CONCLUSIONS/DECISION: [17] There is no provision in the Family Court Rules to set aside an order of the court and in that event reference is made to the Civil Procedure Rules. The Applicant has complied with the time requirements set out in Rule 37.11(2) having made application on November 20, 2002 to set aside the order of November 12, 2002. [18] The Applicant’s argument is one of mistake as to the hearing date. Her counsel at the time referred to her inability to contact and communicate with the Respondent now Applicant) so she withdrew. [19] In family law matters the paramount consideration will always override any technical argument. It is in the best interests of the child that because of this mistake, the court take jurisdiction and set aside the permanent care and custody order to allow the Applicant another disposition review hearing [20] The order of November 12, 2002 is set aside under C.P. Rule 37.11(2) and this matter will be set down for a disposition review hearing on a date convenient to counsel. [21] At the hearing, the Applicant will be required to prove compliance with the order of July 18, 2002 and file written plan for the long term care of the child. Order accordingly. John D. Comeau Chief Judge of the Family Court for the Province of Nova Scotia.","The mother of a child applied to have the court set aside its decision granting permanent care and custody of the child to the Agency. When the applicant did not appear at the original hearing, her counsel withdrew as solicitor of record. She now argued that she had made a mistake in the hearing date. Application allowed; previous order set aside and matter set down for disposition review hearing. In order to protect the best interests of the child, the court must take jurisdiction and set aside the previous order to allow the applicant another disposition review hearing.",8_2003nsfc1.txt
27,"GRUCHY, J. S.C.A. No. 02704 NOVA SCOTIA COURT OF APPEAL Jones, Hallett and Chipman, JJ.A. BETWEEN: JOSEPHINE JUNE MOOY and CORNELIUS GERARDUS MOOY M.G. Forse, Q.C. M.V. Coyle for the appellant Steven G. Zatzman for the respondent Appeal Heard: December 9, 1992 Judgment Delivered: February 25, 1993 THE COURT: Appeal allowed without costs and the judgment and order of Hall, L.J.S.C. set aside per reasons for judgment of Jones, J.A.; Chipman, J.A. concurring by separate reasons and Hallett, J.A. dissenting. JONES, J.A.: This is an appeal from a decision of Hall, L.J.S.C. reducing the appellant\'s support from $2,000.00 to $1200.00 per month. The parties were married on September 9, 1961. There were three children of the marriage. The wife remained at home and raised the children. The respondent operated his own business as life insurance broker. The parties separated on February 22, 1983. In 1983 they signed settlement agreement with the advice of counsel. The following clauses are contained in the agreement: ""(4) Commencing January 1, 1988, and on the first day of each month thereafter the Petitioner shall pay to the Respondent maintenance in the amount of $2,000 while she resides in the matrimonial home. The sale of the matrimonial home shall be regarded as change of circumstances and the amount of maintenance shall be reviewed by the Parties. If they are unable to reach agreement either may apply to the court for variation of the Corollary Relief pursuant to the provisions of the Divorce Act 1986. (5) The Respondent recognizes her obligation to contribute to her own support and will continue her efforts to find employment. (16) Of the total amount of cash owing by the Petitioner to the Respondent ($7,300 plus $20,285, total of $27,585) $8,000 shall be paid upon entering into this agreement and the remaining $19,585 shall be paid in five annual instalments due on November 1, 1988, 1989, 1990, and 1991, respectively, four of which shall be $4,000 each and the final one shall be $3,585. The Petitioner reserves the right to accelerate these payments at any time. (24) It is expressly agreed by and between the parties that this settlement constitutes full and final settlement on all corollary matters between the parties."" On December 21, 1987, the parties were divorced. The agreement for maintenance was incorporated in the order for corollary relief. At the time of the present application the respondent was 57 and the appellant 53. The respondent has remarried. The appellant has not remarried and continues to reside in the matrimonial home. On June 23, 1989 the respondent applied to terminate the maintenance payments. The application was dismissed on April 10, 1990. There have been defaults in making the maintenance payments. On February 10, 1992, the respondent applied to the Family Court to have the arrears forgiven. On February 24, 1992, the application was dismissed. On February 26, 1992, the respondent commenced the present application to vary and suspend retroactively the amount of maintenance paid to the appellant. In 1987 the respondent's gross total income was $79,445.00. In 1991 his total income was $35,507.10. With respect to this drop in income Judge Hall stated: ""The petitioner accounts for the significant drop in his income by the fact that with his advancing age he is not able to work as hard and as effectively as he did previously. At the time of the divorce he worked an average of sixty hours per week, whereas now he feels he can only work 35 to 40 hours per week. He also had serious health problem in 1991 which incapacitated him for approximately five months. As result his income declined radically and he fell into arrears with respect to the maintenance payments. The arrears were subsequently paid out of an R.R.S.P. fund that was cashed. The respondent has for sale portion of the land adjacent to the matrimonial home for $35,000.00. She has not received any satisfactory offers to date. It seems that in large measure in recent years the petitioner has been able to meet the maintenance payments which total $24,000.00 per year by drawing on the retained earnings of his insurance sales company. It also appears that the company suffered severe loss in 1991 as result of one or more of its most important accounts being lost. As result of this and the excessive withdrawals by the applicant the company is now in deficit position. The loss of the accounts have also been significant factor in the applicant's annual income being reduced."" Notwithstanding the setback in his health the respondent successfully ran for the Kings County Council. The application was supported by financial records from the respondent's company. There were additional payments in excess of $20,000.00 made by the Company to the respondent in 1991. There was also evidence that the respondent had investment properties. It is clear from the evidence that the appellant is dependent on the respondent for support and the trial judge so found. The learned trial judge referred to the judgment in Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801. He distinguished that decision by stating: ""It is well established in the jurisprudence that the Court may in proper case intervene to vary the amount of maintenance payable under separation agreement incorporated in divorce judgment. The Court will do so, however, only where radical change of circumstances has been established by the applicant. Where the circumstances are such as in Pelech or analogous thereto the applicant must also establish that the change in circumstances had its 'genesis' in the marriage. Where the basis for the relief sought is not such as in Pelech it is not necessary, in my opinion, that the applicant establish any connection between the change in circumstances and the marriage. Indeed, it seems to me that to attempt to rigidly adhere to the terms of the agreement would be folly in this case as it is absolutely impossible for the applicant to do so and survive. Accordingly, am satisfied that the petitioner has established that there has been radical change in his financial and other circumstances which mandate reduction in the amount of maintenance payable."" In Pelech v. Pelech, Wilson J. defined the issue as follows at p. 826: “The central issue in this case concerns the effect of valid and enforceable antecedent settlement agreement on the court's discretionary power under s. 11(2) to vary maintenance orders."" She then pointed out that maintenance agreement can never totally extinguish the jurisdiction of the court to impose its own terms on the parties. At p. 850 Wilson, J. stated: “The approach taken by Zuber J.A. in Farguar also falls short of articulating workable criterion by failing to identify the requisites of the 'narrow range of cases'. do, however, agree with Zuber J.A.'s emphasis on the importance of finality in the financial affairs of former spouses and that considerable deference should be paid to the right and the responsibility of individuals to make their own decisions. It seems to me that where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. This should be the overriding policy consideration."" She went on to deal with those cases where court could intervene and set out the requirement ""that there be some relationship between the change and the marriage"". The basic principle in Pelech is that. settlement agreements must be respected. See in this Court Jensen v. Jensen 1992 CanLII 2565 (NS CA), 109 N.S.R. (2d) 106 and Kalavrouziotis v. Kalavrouziotis, 14 R.F.L. (3d) 376 where this Court has followed that principle. That principle has been confirmed in the recent decision of the Supreme Court of Canada in Moge v. Moge dated December 17, 1992 (unreported). There are strong policy reasons for enforcing separation agreements. Such agreements are contemplated under the Matrimonial Property Act and the Divorce Act. Parties who effect their own settlements are more likely to abide by them. These agreements avoid the necessity of costly litigation. Those objects are important in settling matrimonial disputes particularly where children are involved. The parties have the right to make their own agreement with the advice of counsel. They also have the right to expect the courts to enforce those agreements in the same manner as any other agreement. The knowledge that agreements will be enforced is essential if counsel are to be in position to advise their clients. wife chooses to follow her husband's fortunes good or bad. divorced spouse is not in the same position. She has lost all benefits which stem from the marital relationship. Statistics show that spouse, particularly with children, is in much poorer position following divorce. The purpose of an agreement is to stablilize the parties position as best they can at the time of separation. In most cases the husband is anxious to terminate all aspects of the association. In such cases the wife makes substantial concessions and gets minimal benefits. To review these agreements particularly after the lapse of substantial periods of time can lead to grave injustices to one or both parties. In many cases it would be necessary to review all of the terms of the agreement in order to deal appropriately with an application to vary. The matter should normally be left in the hands of the parties. Having settled their rights it is up to the parties whether they will surrender those rights. have no doubt in this case that if the appellant applied for an increase in maintenance she would be confronted with the terms of the agreement by the respondent. see no difference between an agreement which provides for long term maintenance and one that does not contain such provision. The effect is to permanently settle the issues in both cases. As noted Pellech does not deprive the courts of ultimate jurisdiction in the matter of support. The parties can provide in the agreement that it is final settlement. No other formal words are necessary. It is unnecessary in the present case to consider those circumstances which would warrant variation in support under an agreement. The Family Court had thoroughly reviewed the circumstances of the parties on two occasions and refused to grant relief. In my view the circumstances in this case did not warrant variation. change in one year in the respondent's financial circumstances was not sufficient to vary the agreement entered into between the parties. The learned trial judge erred in failing to apply the principles in Pellech. would allow the appeal without costs and set aside the judgment and order of Hall, L.J.S.C. J.A. CHIPMAN, J.A.: (Concurring by separate reasons) The appeal should be allowed. agree with Mr. Justice Hallett that the causal connection test established in Pelech should not apply in cases where payor spouse seeks reduction of consensual support obligation. In such case, that test is not appropriate in considering ""means"" under s. 17 of the Divorce Act. However, where the circumstances disclose an intention that finality in the financial relationship was intended, the principles in Pelech should otherwise apply in their full vigour. The threshold for determining radical change in circumstances is high. It includes, suggest, an element of unforeseeability by the parties as of the time the consensual arrangement is arrived at. In Katz v. Katz, et al. (1990), 1990 CanLII 8006 (MB CA), 30 R.F.L. (3d) 260, the Manitoba Court of Appeal refused to disturb support order based on mutual agreement notwithstanding that there was substantial adverse change in the payor's earning power. Helper, J.A. said at p. 265: ""In Pelech, supra, the Court was dealing with an application by the former wife to reinstitute maintenance payments which had terminated in accordance with the terms of separation agreement. The facts in this case are distinguishable. Thus, the principles enunciated in Pelech are not entirely applicable to the case at Bar. However, am of the view that, where parties have negotiated final separation agreement incorporating not only maintenance provisions but also property distribution, and the terms of that agreement are reflected in subsequent court order, only radical change in the circumstances of the payor, not within the specific contemplation of the parties, would allow for review of that court order dealing with on‑going maintenance. At the time the parties executed the separation agreement, the husband was 60 years of age and the petitioner was 56 years of age. It was certainly within the contemplation of the parties that the husband would not, in all likelihood, during the entire life of the separation agreement, continue to earn income of $80,000 per annum. Therefore, his change in annual income to the present level of $43,000,although substantial, is not, by itself, the type of radical change in circumstance that would in this case trigger the Court's jurisdiction in reviewing the decree nisi."" See also the annotation by James G. MacLeod in Kalavrouziotis v. Kalavrouziotis (1988), 14 R.F.L (3d) 376 377, Story v. Story (1989), 1989 CanLII 5317 (BC CA), 23 R.F.L. (3d) 225 (B.C.C.A.) at 232, Fyffe v. Fyffe (1988), 1988 CanLII 4569 (ON CA), 12 R.F.L (3d) 196 at 201, Masters v. Masters (1991), 1991 CanLII 8022 (SK CA), 34 R.F.L (3d) 34 (Sask. C.A.). The review under s. 17 of the Divorce Act must be conducted with view to the circumstances surrounding the settlement agreement and the present circumstances now alleged to be radically different. The trial judge's decision must not be interfered with on appeal unless the reasons therefor disclose material error. Here the parties disclosed an intention to reach final agreement. The agreement dated December 3, 1987 and incorporated into the corollary relief judgment dated December 21, 1987 provided inter alia: ""(4) Commencing January 1, 1988, and on the first day of each month thereafter the Petitioner shall pay to the Respondent maintenance in the amount of $2,000 while she resides in the matrimonial home. The sale of the matrimonial home shall be regarded as change of circumstances and the amount of maintenance shall be reviewed by the Parties. If they are unable to reach agreement either may apply to the court for variation of the Corollary Relief pursuant to the provisions of the Divorce Act 1986. (5) The Respondent recognizes her obligation to contribute to her own support and will continue her efforts to find employment. (16) Of the total amount of cash owing by the Petitioner to the Respondent ($7,300 plus $20,285, total of $27,585) $8,000 shall be paid upon entering into this agreement and the remaining $19,585 shall be paid in five annual instalments due on November 1, 1988, 1989, 1990, and 1991, respectively, four of which shall be $4,000 each and the final one shall be $3,585. The Petitioner reserves the right to accelerate these payments at any time. (24) It is expressly agreed by and between the parties that this settlement constitutes full and final settlement on all corollary matters between the parties."" (emphasis added) The parties had counsel. They specifically provided for one instance that would be regarded by them as change of circumstances justifying review. It is inconceivable that they did not understand that substantial variations in the income of the husband self‑employed business man‑ could occur. Such changes in this context could not be considered radical unless they were permanent or substantially long‑standing, such as for example the stroke referred to by Mr. Justice Hallett. The Pelech principles and the emphasis on finality by the parties here clearly requires such rigorous approach to request to vary. The reality is that within 18 months of the judgment the husband here commenced proceedings to terminate maintenance. These proceedings were not successful. There were several defaults by the husband resulting in judgments for arrears. An application for forgiveness of these arrears was dismissed just two days before these very proceedings were commenced. The trial judge had evidence of the husband's accountant who prepared his 1991 income tax returns and financial statements of his business. While the latter certainly support an argument that for future years the outlook was not as good, it would be unsafe to thaw any hard conclusions too soon. The after tax cash flow position of the husband in 1991 was not materially, let alone radically, worse off than it was at the time of the agreement. Clearly, at $54,000, such cash flow could have comfortably permitted support payments of $24,000 in 1991. The trial judge did not even refer in his reasons to this significant evidence of the accountant. He simply referred to ""a projected annual income of approximately $32,000"" of the husband. That is not safe conclusion in dealing with person in business of the nature of that carried on by the husband. The argument that the husband's age was advancing does not, in the short space of time since the corollary relief judgment, successfully convey the impression of radical change. See Katz v. Katz, supra. As Mr. Justice Jones says, change in one year in the financial circumstances is not sufficient. agree with him that the trial judge erred in failing to apply the principles in Pelech. He ignored the recognition of finality by the parties in their consensual arrangement. He ignored, by categorizing as radical change, that which was not shown to be more than temporary foreseeable ups and downs in the financial life of businessman. would allow the appeal and set aside the judgment and order of Hall, L.J.S.C. J.A. HALLETT, J.A. (Dissenting) have read the reasons of Justice Jones for allowing the appeal. With respect, would dismiss the appeal. agree with the learned chambers judge that the criteria for granting variation of spousal support as developed in Pelech v. Pelech (1987), 1987 CanLII 57 (SCC), 38 D.L.R. (4th) 641 should not be applied in this case. In Pelech Wilson, J., after thorough review of the case law respecting applications for variation of spousal support that had been agreed to by the parties pursuant to Minutes of Settlement incorporated into the corollary relief judgment, reached certain conclusions that are well set forth in the headnote of the case as follows: “Section 17(2) of the Divorce Act, which empowers court of appeal to ""pronounce the judgment that ought to have been pronounced"", does not confer broad power to review discretionary decisions. provincial court of appeal should only interfere with trial judge's decision where it is persuaded that the reasons disclose material error and the court has no independent discretion to decide questions of maintenance. The Supreme Court of Canada, however, has jurisdiction to articulate the criteria according to which judicial discretion must be exercised and any situation in which court below errs in formulating the principles upon which it exercises its discretion gives rise to question of law. It is well established principle that court supervisory jurisdiction over maintenance cannot be extinguished by contract. There has been general trend in the case‑law in fashioning maintenance orders away from ""fault"" in the direction of achieving arrangements that are fair and reasonable in light of all the circumstances. Where parties have negotiated their own agreement, freely and on the advice of independent counsel, as to how their financial affairs should be settled on the break‑down of marriage, and that agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. The court's jurisdiction, however, is not ousted and may be exercised where there has been radical change of circumstances. However, the radical change must be related to the fact of the marriage. Where wife has devoted herself exclusively to home and children and has acquired no working skills outside the home, the relationship is readily established as the ex‑wife's circumstances are generated as consequence of her total dependency during the period of marriage. However, where former spouse simply falls upon hard times, that spouse should not be able to fall back upon the former spouse no matter how radical the change may be, simply because they were once husband and wife. Accordingly, where former spouse establishes that he or she has suffered radical change in circumstances forming from an economic pattern of dependency engendered by the marriage, the court may exercise its relieving power. Otherwise, the obligation to support the former spouse should be, as in the case of any other citizen, the communal responsibility of the State. In the present case, while there had been radical change in the wife's circumstances, there was no link between the change and her former marriage."" In the Pelech case, the payee spouse had agreed at the time of separation that there would be payment of $28,760. over 13 months; the payments were made. The agreement provided that the payee spouse accepted the payments ""in full satisfaction of all claim she now has or may have in the future for maintenance from the Respondent."" The application to vary was made 12 years after the settlement. It is important to recognize that the conclusions of Madam Justice Wilson in the Pelech case were made in the context of this type of settlement agreement. The wife had accepted lump sum payment; there was no ongoing requirement for periodic support from the husband. The parties had agreed to be self‑sufficient; incidentally, one of the goals of s. 15 of the Divorce Act. There was truly finality to the financial relationship between the parties. The so‑called trilogy of cases: Pelech v. Pelech, supra; Richardson v. Richardson (1987), 1987 CanLII 58 (SCC), 38 D.L.R. (4th) 699; and Caron v. Caron (1987) 1987 CanLII 59 (SCC), 38 D.L.R. (4th) 735 which developed the policy considerations have set out from the report of the Pelech decision each involved situations of this nature. In each of these cases, the divorcing spouse had entered into settlement agreement that contained provisions for the termination of support. Furthermore, in each case, the payee's application to vary was made after support payments provided for by the agreement had ceased. The application to vary was denied in all of these cases due to the fact that the parties had, by their agreement, clearly provided for the termination of their financial relationship. In Richardson, Wilson J., writing for the majority, explored the rationale underlying the policy that court should vary settlement agreement only where there has been radical change in the circumstances of former spouse and that the change is as result of pattern of economic dependency generated by the marriage relationship. In particular, she pointed to two considerations. First, she noted the importance of finality in settling the financial affairs of the former spouses. Secondly, she pointed to the deference to be given by the courts to the right and responsibility of individuals to make their own decisions. The parties in Pelech had negotiated an agreement that provided for the spouses' financial independence from one another following the marriage breakdown. One of the legislated objectives of support orders is to promote the economic self‑sufficiency of each former spouse within reasonable time. The decision in Pelech that the disadvantaged spouse is restricted in coming back to re‑open the issue of support is consistent with this legislated objective. But where disadvantaged former spouse negotiates an agreement that provides for periodic support for an indefinite period, there is recognition that economic self‑sufficiency is not likely attainable. On divorce, the general rule is that matrimonial assets are divided equally. In addition, if the marriage was of fairly long duration and the wife did not work, there is generally need for indefinite periodic support, particularly if the parties are well into middle age or older. In the majority of cases, the parties reach an agreement on the division of assets and the amount of periodic support and enter into minutes of settlement. If the wife has not worked during the marriage and has not any specific skills, it is recognized that her former husband will have to pay support indefinitely as the objective of economic self‑sufficiency is unrealistic. The level of support agreed upon is based on the husband's ability to pay and the wife's needs at the time the agreement is signed. If either his means to pay or her needs radically change, the parties would reasonably expect that there could be change in the amount of the support payments even though the agreement may purport to be final settlement. Any other conclusion would, in my view, unduly restrict the application and purposes of s. 17 of the Divorce Act. tend to agree with those cases that hold that the causal connection test established in Pelech should not apply to payors of periodic support for an indefinite period. do not, however, reach this conclusion on the basis that the application is brought by the payor. Rather, the relevant distinction relates, as indicated above, to the nature of the agreement. It is the agreement itself which reveals whether or not the relationship is intended to be an ongoing one. Agreements which provide for payment of indefinite periodic support do not have that degree of finality that was effected by the settlement agreement under consideration in the Pelech case. Looking at the husband and wife relationship in traditional marriage, wife, who is dependent on her husband's income during the marriage has the benefit of his good times and suffers when his income falls. One must ask the question whether she should be better off after divorce than before if her husband suffers financial misfortune while paying periodic support under the terms of settlement agreement; pose the question because that would be the effect of applying the causal connection test. In my opinion this principle espoused in Pelech, Richardson and Caron should be confined to similar cases. Each case must be decided on its own facts. While the statements in the trilogy are very broad they were nevertheless made in the context of applications to vary by the payee spouse in circumstances where the payor had completed all his financial obligations under the settlement agreement; there was no ongoing financial relationship between the parties. Furthermore, it is difficult to imagine under what circumstances payor of periodic support who had radical reduction in income could ever prove that his or her deteriorating financial circumstances were causally connected to the marriage. For example, payor spouse, having signed an agreement to pay periodic support for an indefinite period, who suffers serious stroke and, as result, has total inability to earn income, could not, on the strict application of Pelech proposed by the Respondent, succeed on an application to vary support as the radical change in circumstances was not grounded in the marriage. It seems to me that Madam Justice Wilson in writing Pelech could not have intended that the causal connection test would apply in such situation. agree with the conclusions of Vancise, J.A. in Masters v. Masters (1991), 1991 CanLII 8022 (SK CA), 34 R.F.L. (3d) 34 that the full thrust of the Pelech analysis should not be transplanted to factual situations which are considerably different (p. 58). Unless party has explicitly agreed not to apply for variation of periodic support, s. 17 should be given its full effect in the event of radical change in the means of the payor or the needs of the payee. Although parties cannot oust the jurisdiction of the court if the terms of the settlement provide that party would not apply under any circumstances to vary the periodic support provisions, such an agreement should generally be respected by the courts as it would express clear intention that the level of support payments was written in stone. In summary, settlement agreement that provides for payment of periodic support for an indefinite period is very different than the type of agreements under consideration in the trilogy. One has to ask the question whether the parties who enter into agreements that provide for periodic support had the reasonable expectation that the periodic support payment would go on indefinitely at the same level no matter what happened in their respective lives. In the absence of explicit agreements not to apply for variation under any circumstances, it seems to me the parties would have had reasonable expectation, considering the provisions of s. 17 of the Divorce Act and the legal advice they would obtain, that in the event of radical change in circumstances there could be variation in the level of support payments. Where parties have signed minutes of settlement applications to vary periodic support should rarely be granted; parties should be bound by their agreements. It is only if there is radical change in the circumstances should such applications be entertained. Judges should carefully scrutinize the legitimacy of such applications before granting variation. do not find the foreseeability test as propounded by some authorities as particularly helpful; one can argue that virtually any misfortune is foreseeable such as loss of job, health, etc. The causal connection test is appropriate in circumstances where the parties, by agreement, have clearly severed their financial relationship and the application to vary is brought after the financial obligations as provided in the agreement have been fulfilled. In the case we have under consideration the payor's income had dropped from $80,000.00 annually when the agreement was signed to $32,000.00 at the time of the application to vary. The respondent testified that the combined effect of (I) his inability to work the 60‑hour weeks he could when he was younger man, (ii) the poor economy, and (iii) the loss of key clients was the reasons for the substantial reduction of his income from the levels of 1987 when the settlement agreement was made. It is apparent that the trial judge accepted his evidence. In February 1992 the respondent had unsuccessfully applied to the Family Court to have arrears forgiven. He then cashed in an RRSP and paid the net proceeds of some $17,000.00 to pay up the arrears. The application to vary was initiated on February 26, 1992, and was heard by Judge Hall on March 24 and 31, 1992. By decision dated April 15, 1992 Judge Hall reduced the monthly support payment from $2,000.00 to $1,200.00. The learned trial judge had before him financial statements from both parties showing their respective incomes and expenses. The position of the respondent was that he could not afford to pay $24,000.00 year support out of an income of $32,000.00. The appellant wife's position was that in 1991 he had cashed distribution from his company of $53,000.00 consisting of salary of $28,000.00 and repayment to him of shareholders loan of $25,000.00 and therefore he had the ability to pay the $2,000.00 month support. Her counsel argued that the respondent's alleged inability to generate more income was not causally connected to the marriage and therefore on counsel's interpretation of the decision of Wilson J. in Pelech v. Pelech, supra, the variation should have been refused as the support payment of $2,000.00 month had been agreed to by the parties pursuant to the settlement agreement. Judge flail in his decision, after reviewing the facts, concluded that the respondent had only been able to pay the annual support payment of $24,000.00 by drawing on the retained earnings of his company to the point where the balance sheet as of December 31, 1991, showed deficit. The learned chambers judge considered the provisions of s. 17 of the Divorce Act and the Pelech decision. He concluded: In the present case the applicant is seeking reduction in the amount of maintenance payable due to his radically reduced income and deterioration in his financial circumstances, which am satisfied are beyond his control. It is apparent that if he is compelled to continue making the payments provided for in the current order he will soon be driven to bankruptcy. It is also apparent that this change of circumstances is not causally connected to the marriage."" He felt the Pelech case had no application on the facts before him and stated: “...it seems to me that to attempt to rigidly adhere to the terms of the agreement would be folly in this case as it is absolutely impossible for the applicant to do so and survive. Accordingly, am satisfied that the petitioner has established that there has been radical change in his financial and other circumstances which mandate reduction in the amount of maintenance payable."" Court of Appeal should only interfere with trial judge's decision on variation application if the reasons for the decision disclose material error (Pelech v. Pelech, supra). In my opinion Judge Hall had the benefit of seeing and hearing Mr. Mooy testify; he accepted the evidence of Mr. Mooy that he could not longer earn the levels of income he was achieving when the minutes of settlement were signed. One cannot say the trial judge erred in his assessment of the evidence respecting the respondent's ability to pay. In my opinion, on the facts of this case, the learned trial judge did not err in not applying the so‑called ""causal connection test"" enunciated in 1987 in Pelech. Considering the circumstances at the time the agreement was signed in 1983 the parties would not have had the expectation that the level of support would be varied only if there was radical change in their financial circumstances that had its genesis in the marriage. The settlement agreement does not rule out the option of applying for variation. The parties expectation would have been that the periodic support could be varied according to the criteria prescribed by s. 17 of the Divorce Act. would not interfere with the trial judge's conclusion that there was radical change in the appellant's financial circumstances that warranted reduction of support from $2,000.00 month to $1,200.00. would dismiss the appeal with costs to the respondent. J.A. No. 1201‑37883K F. No. 5914K This page contained graphical images which may only be viewed in the original decision. IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CORNELIUS GERARDUS MOOY and JOSEPHINE JUNE MOOY RESPONDENT HEARD: At Kentville, Nova scotia, on the 31st day of March, 1992. BEFORE: The Honourable Judge Donald M. Hall, Local Judge. DECISION: April 15, 1992. COUNSEL: Steven G. Zatzman, Esq., Counsel for the Petitioner. Michael G. Forse, Q.C. Counsel for the Respondent. S.C.A. No. 02704 NOVA SCOTIA COURT OF APPEAL BETWEEN: JOSEPHINE JUNE MOOY ‑and- CORNELIUS GERARDUS MOOY REASONS FOR JUDGMENT BY: JONES, J.A.","This was an appeal from a decision varying the appellant's maintenance downwards. The parties had a traditional marriage, with the wife remaining at home and caring for their three children. Upon separation, they entered into a settlement agreement whereby maintenance was set al. $2000 monthly while the appellant remained in the matrimonial home. The agreement stipulated that the settlement was a full and final settlement on all corollary matters between the parties. The respondent subsequently remarried, underwent some difficult financial times and made the application which was the subject of this appeal. The appellant contended the terms of the agreement were final. Per Jones, J.A. and Chipman, J.A. (concurring for separate reasons), allowing the appeal and setting aside the lower court order, that while courts have ultimate jurisdiction in the matter of support, settlement agreements must be respected. There is no difference between an agreement which provides for long term maintenance and one that does not contain such a provision. The effect is to permanently settle the issue in both cases. To review the agreement, particularly after the lapse of a substantial period of time, could lead to grave injustices to one or both parties. Per Hallett, J.A., (dissenting), dismissing the appeal, that a settlement agreement which provides for periodic support payments indefinitely is very different than one which contains provisions for termination of support after a specified period. The causal connection test established in Pelech v. Pelech (1987), 38 D.L.R. (4th) 641, should not apply to payors of periodic support for an indefinite period. Such agreements do not have the degree of finality that was effected by the settlement agreement under consideration in the Pelech decision.",1993canlii3174.txt
28,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 244 Date: 2011 06 22 Docket: Q.B.C.A. No. 44/2010 Judicial Centre: Saskatoon BETWEEN: ROY JOHN RODGERS, and HER MAJESTY THE QUEEN, as represented by the Attorney General of Saskatchewan, Counsel: Ronald P. Piché for the appellant K. Scott Bartlett, Q.C. for the respondent Crown JUDGMENT GABRIELSON J. June 22, 2011 Introduction [1] This is a summary conviction appeal from a judgment dated September 17, 2010, wherein the learned Provincial Court judge convicted the appellant of impaired care and control of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code, fined him $1,000.00 and prohibited him from driving for one year. In the same judgment, the learned trial judge acquitted the appellant of a second charge of operating a motor vehicle while his blood alcohol content exceeded the legal limit of .08 contrary to s. 253(1)(b) of the Criminal Code. [2] The grounds of appeal as set out in the notice of appeal are: 1. The learned trial judge erred in considering evidence that was not admissible on the impaired count in convicting the appellant of operating motor vehicle while impaired; 2. The learned trial judge’s conviction on the count of operating motor vehicle while impaired constitutes an unsafe and/or dangerous verdict in law; 3. The learned trial judge erred in rejecting the evidence of the central Crown witness as this witness provided exculpatory evidence. The learned trial judge provided no basis for rejecting his evidence and relied on speculation rather than evidence in arriving at his conclusion. [3] The appellant is senior member of the Saskatoon Police Service. In the early morning hours of May 24, 2009, he was off duty and was observed by third party to be operating motor vehicle which had just jumped curb and was parked in lot at the corner of 22nd Street and Idylwyld Drive in Saskatoon. Two on‑duty Saskatoon Police Service officers, Cst. Bzdel and Cst. Noesgaard, were notified, and they attended at the scene. They spoke to the appellant, who was in care and control of the motor vehicle. As the appellant showed some signs of impairment, but was senior to the two officers, they requested more senior officer to attend at the scene in accordance with Saskatoon Police Service policy. The senior officer attended, heard the facts from the officers in question and instructed Cst. Bzdel to administer an ASD demand. When the appellant failed the ASD demand, demand for breath sample was made, and the appellant was taken to the police station. Following breathalyser reading which registered .13 at 4:02 a.m. and .12 at 4:22 a.m., the appellant was charged with both offences. [4] At trial, Cst. Noesgaard testified that he had observed signs of impairment of the appellant, which he described as bloodshot red eyes, flushed face, slurred speech, strong smell of alcohol on his breath, dry lips, mouth appeared to be dry, constantly licking his lips and constantly smacking his lips. Cst. Bzdel testified that the only symptom of impairment of any significance that he noted was that the appellant had alcohol on his breath. third officer, Cst. Flogan, the breathalyser operator, testified that he noted that the appellant appeared to have been drinking, that he had bloodshot eyes, that he smelled of alcohol and that, having worked with the appellant in the past, he formed the opinion that the appellant was drunk. [5] In his judgment, the learned trial judge concluded that, as result of delay of approximately 45 minutes between the first attendance upon the appellant by the two officers and the time of the demand for the breath sample, the accused had been arbitrarily detained and not advised of his right to counsel, which was in violation of his Charter rights. Accordingly, the learned trial judge ruled that the certificate of analyses was not admissible as evidence. The learned trial judge, therefore, found the appellant not guilty of Count No. of the information. However, the learned trial judge found that based upon the evidence of Cst. Noesgaard and Cst. Flogan, the Crown had proven that the appellant was impaired while in care and control of motor vehicle, so that he therefore convicted the appellant on the first count. Statement of Issues [6] There are three issues on this appeal which I will discuss in the order they were raised by counsel in argument: 1. Did the trial judge err in law in his treatment of the evidence of Cst. Bzdel? 2. Did the trial judge err in considering the observations made by Cst. Noesgaard concerning the appellant’s slurred speech as evidence to be admitted on the impaired driving count? 3. Does the conviction for impaired operation of a motor vehicle constitute an unsafe verdict? 1. Did the trial judge err in law in his treatment of the evidence of Cst. Bzdel? [7] Counsel for the appellant submitted that the learned trial judge rejected or ignored the evidence of Cst. Bzdel. While acknowledging that judge can accept or reject any evidence, counsel submitted that as Cst. Bzdel was the senior officer on the scene and the main investigator, his evidence that the only symptoms of impairment that he noted on the appellant of any significance was that he could smell alcohol on the breath of the appellant should have carried considerable weight. Counsel pointed out that Cst. Bzdel also agreed with appellant’s counsel that the degree of impairment cannot be determined by the odour of alcohol. Counsel submitted that, in cross‑examination, Cst. Bzdel also confirmed that there was nothing in his report to indicate lack of motor skills (Transcript, p. 132), that the appellant’s speech was noted on the form as “good” and that the question on the form as to difficulty pronouncing words was noted as “no” (Transcript, p. 134). [8] Counsel for the appellant suggests that the learned trial judge speculated that Cst. Bzdel was deliberately concealing or fabricating his evidence to assist the appellant who was colleague on the police force. Counsel for the appellant refers to the case of R. v. Hayes, 2007 NSSC 74 (CanLII), 253 N.S.R.(2d) 235, at paragraph 26 for the proposition that trial judge should not rely on conjecture or speculation in order to determine whether an accused was guilty of impaired operation of motor vehicle pursuant to s. 253 of the Criminal Code. [9] Counsel for the respondent submitted that the learned trial judge clearly recognized contradiction between the evidence of Cst. Bzdel and that of Cst. Noesgaard and Cst. Flogan. However, rather than ignoring the evidence of Cst. Bzdel, the learned trial judge carefully compared the evidence of all three officers and made judicial decision supported by reasons based on the evidence that he would accept the evidence of Cst. Noesgaard and Cst. Flogan. Counsel for the respondent submitted that this was an appropriate exercise of judicial discretion. [10] In his analysis, the learned trial judge carefully compared the symptoms of impairment noted by both Cst. Noesgaard and Cst. Bzdel. With respect to Cst. Noesgaard, the learned trial judge found as follows: [15] First, he noted that the operator of the motor vehicle was the accused in this matter, and that he was an officer significantly senior to him, with the Saskatoon Police Service. He also noticed that certain signs of impairment were evident. He noted bloodshot red eyes on the face of Rodgers, that Rodgers had flushed face, that his speech was slurred, and that he could smell alcohol coming from his breath. [19] In this meeting with the accused he recalled the same symptoms of impairment that he had noted earlier, and added the following symptoms. The accused had dry lips, his mouth appeared to be dry, he was constantly licking his lips, and that he was as well smacking his lips. [11] The learned trial judge found as follows in respect to the symptoms of alcohol impairment observed by Cst. Bzdel: [22] He testified that the only symptom of impairment that he noted on Rodgers of any significance was that Rodgers had alcohol on his breath. [12] The learned trial judge recorded the observations of Cst. Flogan as follows: [25] The last officer to testify was Cst. Flogan the breath technician, to whom Rodgers was taken for breath samples. He indicated that he knew Cst. Rodgers well and had worked with him in the past. He indicated that he had asked Rodgers series of standard questions before the breathalyzer and noted that Rodgers appeared to have been drinking. He had bloodshot eyes, he smelled of alcohol from his breath and Cst. Flogan testified that in his opinion Rodgers was drunk. He also testified that he had, from previous work with Rodgers, seen him sober and compared the two situations in drawing his conclusion. [13] In comparing the observations as to alcohol impairment, the learned trial judge stated at paragraph 39: [39] Paragraph 2(a)(1) [of the Saskatoon Police Service policy concerning investigations involving police officers, which was marked as Exhibit D‑1 at the trial] refers to an officer acting “thoroughly and expeditiously”. In this case very clearly Cst. Bzdel did not deal with the matter thoroughly or expeditiously as evidenced by the lack of notes, the lack of detail provided with respect to the incident and more importantly the forty‑seven minute delay occasioned by him. [54] First with regard to Cst. Noesgaard in contradistinction to the observations of Cst. Bzdel, he took notes and did so as the investigation proceeded right from the very beginning. He recorded the times in his notes and took appropriate action throughout the evening. This is as it should be in all cases, and in particular where the investigation by police officer relates to the potentially criminal conduct of fellow officer. [14] The learned trial judge concluded his analysis at paragraph 58: [58] Based on my analysis of Cst. Bzdel’s handling of the case up to the point of the ASD demand being made have no hesitation in concluding that the evidence of Cst. Noesgaard, the evidence of Cst. Flogan, support the conclusion that the accused was impaired on this occasion. Their evidence on the issue of the symptoms of impairment that were displayed by the accused is preferred by me to the evidence of Cst. Bzdel. [15] As can be seen from the above, the learned trial judge did not ignore or reject the evidence of Cst. Bzdel. The learned trial judge provided extensive reasons why he accepted the evidence of Cst. Noesgaard and Cst. Flogan in preference to that of Cst. Bzdel. It must be remembered that the trial judge is in special position on matters of credibility by being able to observe the witness at the time of testimony and compare their observations to the testimony of other witnesses. Having reviewed the transcripts of their evidence, am satisfied that the findings of the learned trial judge in regard to the testimony of the three police officers in question accurately describes their evidence. [16] In my opinion, the learned trial judge did not resort to conjecture or speculation as suggested by counsel for the appellant. In the case of R. v. Hayes, 2007 NSSC 74 (CanLII), 253 N.S.R. (2d) 235, which was referred to by the appellant as authority for the proposition that the trial judge cannot rely on conjecture or speculation, the Crown appealed the summary conviction appeal court (“SCAC”) decision pursuant to s. 839 of the Criminal Code. The Nova Scotia Court of Appeal overturned the SCAC decision and restored the trial judge’s decision. The Court of Appeal held that the SCAC judge erred when he misunderstood the trial judge’s credibility finding and when he substituted his own view of the witness’s credibility for that of the trial judge. At paragraph 33 of their decision, found at R. v. Hayes, 2008 NSCA 23 (CanLII), 263 N.S.R. (2d) 314, the Court stated: [33] The trial judge presided over the trial and had the opportunity to see and hear Mr. Hayes testify. He was in better position to judge Mr. Hayes’ credibility on the issue of his intention than the SCAC judge or this court who must rely on the written record. The trial judge's conclusion on credibility is entitled to deference. [17] In the case of R. v. J.N.B., 1991 CanLII 111 (SCC), [1991] S.C.R. 66, the Supreme Court of Canada also commented on when an appellate court should interfere with trial judge’s findings of witness credibility. At paragraph 3, the Court stated: nan The trial judgment was based substantially on an express finding of credibility with respect to the evidence of the complainant. There is nothing in the record to indicate that there was any inherent improbability in her evidence or any other basis which would justify interference by an appellate court with the findings of the trial judge. Moreover there was some support for her testimony in other evidence which was accepted by the trial judge. [18] In this case, the learned trial judge made express findings of credibility concerning the evidence of Cst. Noesgaard and Cst. Flogan, preferring their evidence to that of Cst. Bzdel. Having reviewed their evidence, there is no inherent improbability which would justify interference by me with the learned trial judge’s findings concerning their evidence. I, therefore, do not accept this ground of appeal. 2. Did the trial judge err in considering the observations made by Cst. Noesgaard concerning the appellant’s slurred speech as evidence to be admitted on the impaired driving count? [19] The appellant’s position is that Cst. Noesgaard’s evidence of the appellant’s slurred speech should have been excluded for the same reasons that the learned trial judge excluded the actual statements by the accused as violation of the appellant’s Charter rights pursuant to s. 10(b). Counsel for the appellant submitted that the observation by Cst. Noesgaard concerning the appellant’s slurred speech was made before the appellant was provided with his s. 10(b) rights notice. Counsel for the appellant referred to the cases of R. v. Orbanski, 2005 SCC 37 (CanLII), [2005] S.C.R. 3; R. v. Hult, 2008 SKQB 52 (CanLII), 63 M.V.R. (5th) 287; R. v. Demers, 2006 SKPC 65 (CanLII), 282 Sask. R. 62, and R. v. Coles, 2005 ABPC 277 (CanLII), as authority for the proposition that observations of slurred speech while the appellant was detained and prior to being afforded the right to counsel is inadmissible. [20] Counsel for the respondent submitted that Cst. Noesgaard’s observations concerning slurred speech were not part of conscripted evidence which would place the administration of justice into disrepute in Charter analysis pursuant to s. 10(b) and s. 24(2). Counsel for the appellant referred to the cases of R. v. Orbanski, supra, and R. v. Sundquist, 2000 SKCA 50 (CanLII), 189 Sask. R. 273, as cases in which the Court held that it was only physical sobriety tests that were conscriptive. [21] In the recent case of R. v. Rivera, 2011 ONCA 225 (CanLII), 104 O.R. (3d) 561, the Ontario Court of Appeal analysed several recent appellate court decisions as to when the results of roadside sobriety tests can be used for the purpose of proof of an offence or for challenging the credibility of an accused. Beginning at paragraph 54, the Court stated: [54] ... the law now recognizes the constitutionality of traffic stops, like those in this case, to check drivers for sobriety, even where there are no objective grounds for the stop: see Elias [2005 SCC 37 (CanLII), [2005] S.C.R. 3], at paras. [55] The Supreme Court of Canada has recognized that these stops constitute reasonable limit on Charter rights because of the extreme danger represented by unlicensed or impaired drivers on the roads. In particular, Elias holds that this reasonable limit on the s. 10(b) right extends to questioning by police officer of detained driver about his or her alcohol consumption as part of the investigation into the sobriety of the driver. [56] At para. 58 in Elias, Charron J. held that the limitation meets the proportionality test because “evidence obtained as result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired.” Further, in that same paragraph and citing with approval this court’s decisions in Milne [(1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 353, [1996] S.C.R. xiii] and Coutts [(1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (Ont. C.A.)], she held that such evidence “cannot be used as direct evidence to incriminate the driver”. [57] In Milne, Moldaver J.A. held at p. 590 that the results of roadside sobriety tests performed by an accused at the direction of police officer prior to being informed of the right to counsel are not admissible at trial as evidence of impairment on the charge of impaired driving. Such evidence may be used to justify the officer’s demand for breath sample, but it would be unfair to allow the Crown to introduce such evidence at trial to prove impairment. This is because the accused had not been informed of the right to counsel when the tests were performed. [22] However, although the results of roadside sobriety tests are not admissible at trial as evidence of impairment unless an accused has been informed of right to counsel, appellate courts have also distinguished self‑incriminating statements from observations made by investigating officers. In the case of R. v. Orbanski, supra, at paragraph 58, the Court stated: 58 .. As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques “take but little time and cause only minor inconvenience to the motorist”. He stated, however, that “the same cannot be said about the ‘risk of incrimination’ component if, in fact, the motorist can be compelled to create self‑incriminating evidence that can later be used at trial” (p. 131). agree with this conclusion. As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption. Moldaver J.A. explained further, at p. 132: am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in driver, such as strong odour of alcohol, blood‑shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. [Emphasis added] [23] Several Saskatchewan cases have also referred to slurred speech as something that trial judge is justified in considering as proof of an indicator of impairment. See R. v. Yuzicapi, 2010 SKQB 137 (CanLII), 351 Sask. R. 227; R. v. Kirkness, 2008 SKQB 259 (CanLII), 318 Sask. R. 80, and R. v. MacDonald (1996), 1996 CanLII 7066 (SK QB), 146 Sask. R. 306 (Q.B.). [24] Slurred speech is known physical indicator of impairment absent some evidence of another cause. While statements made by the accused may not be introduced to prove impairment unless he has been advised of his Charter rights, physical manifestation such as slurred speech may be introduced as evidence to prove impairment. Accordingly, do not accept this ground of appeal. 3. Does the conviction for impaired operation of a motor vehicle constitute an unsafe verdict? [25] The appellant’s position is that the evidence indicating the appellant was impaired, at best, consisted of bloodshot eyes, flushed face, slurred speech and the smell of alcohol. Counsel for the appellant submitted that Cst. Noesgaard agreed there could be other reasons for bloodshot eyes. Counsel further submitted that it is well known that alcohol is odourless and should not, in and of itself, be an indicator of impairment. Counsel submitted that slurred speech, even if admissible, was observed only for brief time and was lacking in any detail. Counsel submitted that flushed face and bloodshot eyes are ambivalent at best. Finally, counsel submitted that none of these observations are determinative of the effect of alcohol on the ability of the accused to drive. Counsel for the appellant refers to the cases of R. v. Flasch, 2004 SKQB 521 (CanLII), 12 M.V.R. (5th) 106; R. v. Holman (1998), 1998 CanLII 13860 (SK QB), 173 Sask. R. 214 (Q.B.), and R. v. Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B.). Finally, counsel for the appellant refers to the case of R. v. Andrews, 1996 ABCA 23 (CanLII), 178 A.R. 182, as authority for the proposition that slight impairment is not sufficient and the question is whether the individual’s functional ability to drive motor vehicle is impaired. [26] Counsel for the respondent submitted that there were sufficient indicia of impairment from the evidence of Cst. Noesgaard and Cst. Flogan to provide an evidentiary basis for the learned trial judge’s finding of impairment. Counsel referred to the cases of R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d 1994 CanLII 94 (SCC), [1994] S.C.R. 478, and R. v. Wilton, 2007 SKPC 141 (CanLII), 306 Sask. R. 117, aff’d 2009 SKQB 405 (CanLII), 345 Sask. R. 81. [27] In the case of R. v. Stellato, supra, the Ontario Court of Appeal summarized the duty of trial judge in cases of impaired driving as follows: 14 In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [28] The Stellato case has also been applied in Saskatchewan. In the case of R. v. Hall (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62 (C.A.), the Court stated at paragraph 8: .. The essence of Stellato ... is to avoid the application of some rigid standard which might deprive the trier of fact of determining on all the facts whether an accused was indeed impaired. The trier of fact no longer asks the question: does the accused’s behaviour or physical characteristics represent marked departure from the norm. trier of fact may be able to infer impairment from behaviour which is far outside the norm, but if such behaviour is not present, impairment may be inferred, in the appropriate case, from something less. The trier of fact must, of course, be satisfied beyond reasonable doubt that the accused’s ability to operate motor vehicle was impaired. ... [29] In the case of R. v. MacDonald, supra, Baynton J. also rejected the suggestion that there must be marked departure. At paragraph 10, he stated: [10] It is now common knowledge that person’s judgment, perception, and reaction time can be detrimentally affected by level of alcohol consumption that may not be manifested in observable conduct such as the manner of walking or talking. Such person may well be able to walk in straight line or speak without slur, but is danger behind the wheel of an automobile where judgment and reaction time is critical to the safety of others on the road. By the time person has had enough to drink that his or her observable conduct exhibits marked departure from the norm (such as staggering or slurred speech) that person’s judgment and reaction time (and thus the ability to drive motor vehicle) is substantially impaired. As matter of common sense, if the McKenzie threshold of evidence is still the law, then conviction for impaired driving could never be made unless the degree of impairment was great. This is clearly inconsistent with the decision and reasoning in Stellato. [30] In this case, the learned trial judge concluded that the Crown had proven beyond a reasonable doubt sufficient evidence of impairment to meet the standard as set out in the Stellato decision. The learned trial judge stated that he based his decision upon the evidence of Cst. Noesgaard and Cst. Flogan. This evidence was found at paragraphs 55‑57 of his judgment. [55] Cst. Noesgaard noticed immediately that the accused had bloodshot eyes, flushed face, slurred speech and smelled of alcohol. This was further corroborated by his second contact with the accused where approximately ten minutes later he noticed that the accused had dilated pupils, his lips were dry, he licked his lips, and he smacked his lips even when he was not talking. [56] In addition Cst. Flogan’s evidence was that the accused was drunk. That evidence as statement of fact is clearly not admissible to prove that he was in fact drunk as it was conclusary in nature. It is up to the Court to decide what the level of impairment of an accused person is and up to witnesses to say what symptoms of impairment that they witnessed. To that extent even Cst. Flogan could say with his limited exposure to the accused on that occasion was that he had alcohol on his breath, bloodshot eyes, and again his conclusion was that he was drunk. [57] That conclusion is obviously not supported by the symptoms he described but it is something that can consider without accepting the conclusion that he did. The fact of the matter is that he knew the accused and had worked with him on previous occasions and was comparing him, on this occasion, to when he’d been working with him when presumably he was not “drunk”. can’t simply ignore his evidence and it seems to be corroborative of other symptoms of impairment that both he and Cst. Noesgaard noticed. Very often the best comparison can come from somebody who knows an accused person when one is asked to compare him under the influence of alcohol versus sober and while don’t accept the conclusion by Cst. Flogan that the accused was drunk, can accept that in his opinion he certainly was displaying symptoms that he wouldn’t normally display. [31] In the case of R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99, the Saskatchewan Court of Appeal referred to the standard of review when s. 686(1)(a)(i) of the Criminal Code is invoked. At paragraph 74 of that case, the Court stated: [74] Subclause 686(1)(a)(i) of the Code may only be invoked where the appellate court has considered all of the evidence before the trier of fact and determined that “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.” The standard of appellate review derived from this section is “whether the verdict is one that properly instructed jury acting judicially could reasonably have rendered.” See: R. v. Yebes [1987 CanLII 17 (SCC), [1987] S.C.R. 168]; and R. v. Biniaris [2000 SCC 15 (CanLII), [2000] S.C.R. 381]. Similarly, in Burns [1994 CanLII 127 (SCC), [1994] S.C.R. 656] the Supreme Court of Canada indicated that “[i]n proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re‑examining it and re‑weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it.” Courts of appeal often state the test in terms of whether there is evidence upon which the trier of fact properly instructed could reasonably reach the verdict. [32] am satisfied that the learned trial judge analysed all of the evidence before him as was appropriate, rather than using piecemeal approach, which was rejected in the case of R. v. Hall, supra. Having reviewed the transcript, am satisfied that there was ample evidence to justify the learned trial judge’s conclusion that the appellant’s ability to be in the care and control of motor vehicle was impaired by alcohol. The learned trial judge made no palpable or overriding error to justify overturning his decision: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, and R. v. Bigsky, supra Conclusion [33] The appeal against the conviction is dismissed. J. N.G. Gabrielson","The appellant was convicted of impaired care and control and acquitted of a charge of care and control with a blood alcohol level exceeding .08 because of Charter violations. The appellant was senior member of the Saskatoon Police Force who was charged by members of his police force. The trial judge based his conviction on the evidence of two officers who testified that they observed signs of impairment including bloodshot, red eyes, flushed face, slurred speech, strong smell of alcohol on his breath and dry lips and mouth. In convicting the accused, the trial judge rejected the evidence of third officer who testified that the only sign of impairment he noted on scene was that the appellant had alcohol on his breath. The issues on appeal were whether the trial judge erred in his treatment of the evidence of the third officer, whether the trial judge erred in considering the observations of the other two officers as evidence to be admitted on the impaired driving count and whether the conviction for impaired driving was an unsafe verdict. HELD: The appeal was dismissed. The trial judge did not ignore or reject the evidence of the third officer. He provided extensive reasons why he preferred the evidence of the other two officers to the evidence of the third officer. The trial judge is in special position to assess the credibility of witnesses by being able to observe the witnesses as they testify and compare their observations to the testimony of the other witnesses. The findings of fact in regard to the testimony of the three police officers are supported by the transcript of their evidence and do not amount to conjecture of speculation. The trial judge made express findings of credibility with respect to the two officers and preferred their evidence to that of the third officer. There is no inherent improbability that would justify interference with the trial judge's findings on credibility. The appellant argued that the officer's evidence that the appellant had slurred speech should have been excluded because the trial judge excluded the actual statements made by the accused as violation of the accused's Charter rights under s. 10(b). Slurred speech is known physical indicator of impairment absent evidence of another cause. While statements made by an accused may not be introduced to prove impairment unless the accused has been advised of his Charter rights, physical manifestation such as slurred speech may be introduced to prove evidence of impairment. The appellant's argument that the verdict is unsafe or unreasonable was also rejected. The trial judge concluded that the Crown had proven beyond a reasonable doubt that there was evidence of impairment sufficient to meet the standard in R. v. Stellato. There was no palpable or overriding error in the verdict.",e_2011skqb244.txt
29,"THE COURT OF APPEAL FOR SASKATCHEWAN EDMUND CHRISTOPHER BANKOWSKI and PATRICIA MARIE EDMISON CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Ms. C.R. Werry for the appellant Mr. E.F.A. Merchant for the respondent DISPOSITION: Appeal Heard: November 1993 Appeal Decided: December 1993 On Appeal From: Q.B. 014241 of 1992, J.C. of Regina Appeal File: 1441 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Mr. Justice Cameron and The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. This appeal is from judgment of Maurice J. under The MatrimonialProperty Act, R.S.S. 1985, c. M-6.1. The main issue is whether the judge erred in his distribution of assetsacquired with the proceeds of a severance package which the appellantreceived when his employment of twenty- three years was suddenly andunexpectedly terminated. The following excerpts from his judgment give the background facts, his reasoning leading to the disposition and the disposition itself: The wife, age 50, and the husband, age 50, were married October 8, 1988. They lived together until February 1, 1991, when they commenced living separate and apart under the same roof. The wife left the matrimonial home on March 21, 1992, and commenced proceedings for divorce and division of matrimonial property on May 14, 1992. On September 28, 1990, the husband's employment with Co- Operative Trust Company was terminated. severance package of $110,000.00 was ultimately agreed upon. The husband rolled $46,000.00 over into an R.R.S.P. and used $8,585.00 to purchase his company car. The balance was used for various expenses. At the date of application, the husband still retained the car and $36,000.00 was still invested in R.R.S.P.'s with Maritime Life Assurance. The husband says that he should not have to share these assets equally with the wife. The assets are matrimonial property owned by the husband, at the date of application, and subject, unless it would be unfair and inequitable, to equal sharing. The Act mandates equal sharing of assets acquired during the marriage. Section 20 of the Act states: That inherent in the marital relationship there is joint contribution that entitles each spouse to an equal distribution of the matrimonial property. Assets acquired before the marriage or after its breakdown are not subject to the same constraints. In my opinion, if the severance pay is additional remuneration given as reward for past service, it should be shareable to the extent that it is attributable to past service during the existence of the marital relationship. If the payment represents compensation for remuneration that would have been paid after the cessation of the marital relationship, then it should not be shareable. The termination of his employment came as complete surprise to the husband. After 23 years of service, he was told `It is not working out'. In the circumstances, it is obvious the severance package hereceived was not a reward for past service; it was for payment in lieuof reasonable notice of termination. As part of the settlement, the husband signed release acknowledging `That have received sufficient notice of termination of my employment by the employer or payment of salary in lieu thereof.' It is common ground that the severance packagewas based on 20.4 months of future earnings. If the severance package represented future wages for 20.4 months from the date of termination, then from that date (September 28, 1990) to the cessation of the marital relationship (if we take the date of the application, May 14, 1992, as the date of breakdown of the marriage) is 19.4 months: only one month of future wages can be said to have accrued after the breakdown of the marriage. It would be fair and equitable to exempt one month's salary ($5,392.16) from the matrimonial property in the possession of the husband, that is subject to equal sharing. The judge was indisputably correct in his determination that the property in question was matrimonial property as defined by s. 2(h) of the Act and that it was prima facie subject to equal distribution to each spouse under ss. 20 and 21(1) of the Act. Under s. 21(2), the judge had discretion, based upon considerations of equity and fairness, to adjust the equal distribution. While we do not all agree with the formula used by him to arrive at his disposition, and expressly refrain from approving it as applicable to all such cases, the result was well within his discretionary power and was reasonable result in the circumstances of the case. We can therefore find no basis upon which to change the disposition. Another ground of appeal was that the judge either overlooked or failedto take into consideration that the wife had taken a quantity offurniture and household goods and that, as a result, he failed to givethe husband credit for his one-half share of them. The record shows that to be the case. The items in question shall be valued at the amounts stated in an appraisal, exhibit P-4, and the appropriate credit given to the husband according to which items each of the parties, in the end, received, and the judgment shall be varied accordingly. In the event that the parties fail to agree on the amount of the adjustment, the matter shall be referred to the trial judge for determination. The last ground of appeal concerned failure to allow for depreciation in the valuation of an automobile. Since the judge used the only value put in evidence, he can hardly be faulted for assigning that value to the car. The appeal is allowed to the extent referred to above. In all other respects, it shall be dismissed. Since success was divided, each party shall bear his and her own costs. DATED at the City of Regina, in the Province of Saskatchewan, this 7th day of December A.D. 1993. SHERSTOBITOFF J.A. concur. CAMERON J.A. concur. JACKSON J.A.","Appeal from 107 SaskR 135, 44 RFL(3d)185. Appeal from a judgment directing matrimonial property. The main issue was whether the judge erred in his distribution of assets acquired with the proceeds of a severance package which the appellant received when his employment of twenty-three years was suddenly and unexpectedly terminated. The couple's marriage had lasted less than four years. HELD: The QB judgment was upheld regarding the severance package. The severance package was not a reward for past service; it was for payment in lieu of reasonable notice of termination. The severance package was based on future earnings, which would have occurred within the duration of the marriage. The QB judge did however fail to take into consideration that the wife had taken a quantity of furniture and household goods and that, as a result, he failed to give the husband his one-half share of them. Judgment varied accordingly.",a_1993canlii6596.txt
30,"D. P. BALL QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 394 Date: 2013 11 01 Docket: Q.B.G. No. 732 of 2009 Judicial Centre: Saskatoon BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY, and CLARKE TRANSPORT and CLARKE TRANSPORT INC., Counsel: Naheed Bardai for the plaintiff Gary A. Zabos, Q.C. for defendants FIAT SCHERMAN J. November 1, 2013 INTRODUCTION [1] The plaintiff, Canadian National Railway Company (“CN”), has applied to the court seeking orders that the defendants, Clarke Transport and Clarke Transport Inc. (“Clarke”): i. Answer certain questions which they refused to answer on discovery; ii. Provide answers now, based upon their present knowledge, to questions that the defendants say are best left to be answered on completion of their discovery of the plaintiff when they will have better information; and iii. Provide proper answers responsive to certain questions asked. [2] The application raises interesting issues with respect to the proper scope of questioning or examination for discovery, which will be addressed in the analysis below. Background Facts [3] On or about October 31, 2007 Clarke loaded CN railcar CNIS413529 with steel coils at its Kitchener, Ontario loading facilities. On November 8, 2007 train, including this railcar, derailed near Kindersley, Saskatchewan. CN says the derailment occurred because Clarke failed to properly block, brace and/or secure the steel coils within the railcar, which permitted the coils to move and the car to become unbalanced and cause the derailment. [4] CN claims that it suffered damages in excess of $2.5 million and that Clarke is liable in both contract and in negligence. Clarke denies any breach of contract or negligence, but says that if there was any breach of contract or negligence, this was not the cause of the derailment. In the alternative Clarke pleads contributory negligence and in any event puts CN to strict proof of the damages allegedly suffered. [5] In the context of these facts, the CN discovery or questions included attempts: i. To determine how the steel coils were positioned and secured within the railcar and what evidence there exists on this topic; and ii. Who was involved in the loading and what recollections they have. [6] In addition to these topics, counsel for CN sought to use the questioning process to obtain admissions from Clarke that: i. Other railcars loaded by Clarke prior to the car in question were improperly loaded; and ii. detailed compilation of invoices and other evidence of expenditures by CN all relate to damages it suffered from the derailment. [7] Questioning of the proper officer of Clarke occurred in April of 2011 followed by questioning of the proper officer of CN in April and November of 2011. Both proper officers gave numerous undertakings to provide answers to questions they were not able to answer at the time. [8] Clarke provided the bulk of its responses by January of 2012. CN provided its responses by April of 2012. There then followed an exchange of correspondence in which each side identified deficiencies in the other’s responses and/or sought clarification or additional information. follow-up examination of the proper officer of CN is scheduled for November. The Matters in Dispute [9] By its application of August 22, 2013 CN asks the court to rule regarding three distinct categories of questions asked, but designated as undertakings. The Refusals to Undertakings 18, 32, 33 and 38 [10] CN seeks an order that Clarke answer questions it refused to answer, being: i. requested undertaking (18) for Clarke to search its own records and advise whether or not each of some 445 railcars identified by CN as previously loaded by Clarke had in fact been loaded by Clarke; ii. Requested undertakings (32 and 33) to review binder containing several hundred pages of invoices and other documents assembled by CN that CN says are expenditures it incurred as result of the derailment and advise which invoices Clarke says are not related to the derailment or which Clarke is currently aware do not relate to the derailment; and iii. requested undertaking (38), with respect to sketch or drawing prepared by an insurance adjuster for Clarke depicting the loaded railcar, to provide any background documents, information or factual information that went into the preparation of the sketch. The Deferral of Answers (Undertakings 28, 39 and 53) [11] The subject questions in this category were: i. Whether Clarke has any facts or information that suggests the derailment was not caused by the movement of the coils in the car (28); ii. To advise, following its conclusion of discovery of CN’s representative, if there is any change in Clarke’s position as to the facts it relies on to say the load was improperly handled by CN and to provide the facts relating to that (39); and iii. Should particulars beyond those provided in the answers at the time of questioning become available that Clarke will rely on in support of its allegations of contributory negligence in paragraph 10 of its statement of defence, to advise (53). [12] In its responses to undertakings 28 and 39 Clarke replied that answers to these undertakings cannot be provided until completion of its own questioning of CN and takes the position that CN’s application in respect of these undertakings is premature and unnecessary. In respect of undertaking 53 it replied that it “will do so”. The Adequacy of Responses to Undertakings 34 and 35 [13] Undertaking 34 asked detailed questions of Clarke’s proper officer regarding what one Dave Swainson meant by certain statements contained in written statement prepared by him. Dave Swainson had inspected the car after loading and, after CN informed Clarke of its claim, he prepared memo or note outlining his position to John Thompson, to whom he reported at the time. response was provided that CN views as unresponsive in that it reads as John Thompson advising what Dave Swainson meant or did. CN says the undertaking calls for Mr. Swainson himself to say what he meant or did, as opposed to Mr. Thompson saying what Mr. Swainson meant or did. [14] Undertaking 35 was to make inquiries of John Thompson and Dave Swainson whether either had inspected the car after loading and, if so, what they recall of the inspection. The response given stated that, “It is believed that Dave Swainson is the person who inspected and sealed the car” and goes on to provide conclusionary statements. CN says this is unresponsive since the undertaking called for Clarke to make inquiries of Thompson and Swainson and to advise what their personal responses to the questions were. ANALYSIS The Scope of Questioning under the “new” Rules Materiality and Relevance [15] The refusals to answer, particularly as regards undertaking 18, raise issues relating to the proper scope of production and questioning under The Queen’s Bench Rules, effective July 1, 2013. The questions were asked while the former Queen’s Bench Rules were in effect. Has the scope of the production and questioning obligations changed from the broad relevance test applied under the former Queen’s Bench Rules? [16] Former Rule 212 required the production of documents “relating to any matter in question” while former Rule 222 permitted examination for discovery “touching the matters in issue in the action” [emphasis added]. The broad scope of the words “relating” and “touching” resulted in the court adopting broad relevance test to both the production and discovery obligations. [17] The Queen’s Bench Rules now provide that:i. The production obligation is to “disclose all documents relevant to any matter in issue in the action”, Rule 5-6; andii. The questioning obligation is about information or documents“relevant to any matter in issue”, Rules 5-18 and 5-25. [18] I am satisfied that when this Court moved from the words of touching and relating to any matter in issue, it intended to move away from the broad relevance test that existed under the former Queen’s Bench Rules. Concerns existed in Saskatchewan, as in other jurisdictions, that the broad relevance test did not strike proper balance between the considerations of efficiency, timeliness in the conduct of litigation and cost control on the one hand with the counterbalancing interests of litigants and counsel in ensuring that all potentially relevant information was known. [19] This conclusion is reinforced by foundational Rule 1-3 which expressly provides that the purpose of the rules is to provide means by which claims can be justly resolved in court process in timely and cost effective manner and that the rules are intended to be used to identify the real issues in dispute, to facilitate the quickest means of resolving claim at the least expense and to provide an effective, efficient and credible system of remedies and sanctions to enforce the rules. Proportionality and striking an appropriate balance are now essential considerations in all aspects of the Rules. [20] commonly stated approach to the concept of relevance asks the question Does the evidence offered, as matter of logic and human experience, tend to prove or disprove fact in issue? It needs to be noted that this iteration of relevance melds the distinct concepts of relevance and materiality into one omnibus concept of relevance that defines relevance by specific reference to matter in issue. [21] There are two components to this melded concept: i. The component of logical relevance. Does the proffered evidence tend as matter of logic and human experience to prove or disprove the fact or matter for which it is offered; and ii. The component of whether the fact or matter is in issue in the action. This is the distinct realm of materiality. [22] What determines whether fact or matter is material are the elements of the cause(s) of action and what the parties have pled as being the facts or their positions. Only if the matter is in issue in the action is the matter material, in jurisprudential sense. If the matter qualifies as being material to the action, the next question is whether the evidence being proffered tends to prove or disprove the matter in issue. If the question does not relate to matter in issue as particularized by the pleadings, then the matter is not relevant to any matter in issue. Proportionality [23] Materiality and relevance are concepts that do not have rigid boundaries. The debate about whether broad or narrow relevance test should be applied demonstrates that the concept of relevance can be applied narrowly and rigidly or broadly and with some flexibility. While delineating the boundaries of whether or not matter is material can often be done with greater precision that delineating what is relevant, nonetheless materiality is not always clear cut. matter may fall outside the mark of clear materiality but remain debatable. [24] Where materiality or whether matter is in issue and relevance fall into ranges where the matter is debatable, the decision whether question or production demand is proper may need to address the proportionality considerations that flow from the principles outlined in the foundational rules. [25] If matter is of only debatable, potential or marginal materiality or relevance then it is appropriate for the court, in making its decision and exercising its discretion, to do cost/benefit analysis taking into account the considerations outlined in the foundational rules. Where the materiality or relevance is uncertain, the cost imposed in time, expense or burden is significant or the benefit limited or unknown then proportionality considerations may well be the deciding factors. The Refusals to Undertakings 18, 32, 33 and 38 [26] Requested undertaking18 is for Clarke to search its own records and advise whether or not each of some 445 railcars identified by CN as previously loaded by Clarke had in fact been loaded by Clarke. Based on a review of the claim as pled, matters relating to railcars previously loaded by Clarke are not an issue in the action. The pleadings allege negligence or breach of contract in respect of the car in question and resulting damages from the ensuing derailment. [27] In paragraph 19 of its claim CN also seeks damages in relation to “all costs incurred for the inspection of all trains carrying Coils loaded by Clarke”. This pleading can logically only relate to the inspection of trains carrying coils loaded by Clarke after the derailment in question. The history of some 445 cars previously loaded by Clarke is not pled as an issue in the action. [28] CN says it has its own records that show cars previously loaded by Clarke were not balanced and thus the topic is relevant to its allegation of negligence. It is open to CN to attempt to convince the trial judge, based upon its own evidence, that previous Clarke loaded cars were unbalanced and that such evidence is relevant to the decision of whether or not there was negligence or breach of contract in loading the car in question. Such an attempt may raise issues relating to the collateral fact rule or the law with respect to similar fact evidence. These are matters for the trial judge to decide at the time. The question for the moment is whether the request is proper for pre-trial questioning. [29] conclude that the matter of railcars previously loaded by Clarke is not within the proper scope of questioning. This topic is not an issue in the action, either as matter expressly pled or by virtue of being an essential element of the cause of action alleged. [30] To the extent to which it can be argued that the history of these 445 cars may be relevant to the issue of negligence in loading the subject car, find such relevance to be limited. I am also of the opinion that for proportionality reasons Clarke should not be required to answer the question. Putting Clarke to the time, effort and expense of requiring it to search its records to determine whether it loaded some 445 specific cars over the course of 3 ½ years is not justified by the benefits it provides to the conduct of this action. Beyond the immediate burden associated with the request, it is apparent that this line of questioning has the potential to expand into an investigation of the facts relating to the loading of some or all of these previous cars. [31] The requested undertakings 32 and 33 are to review a binder containing several hundred pages of invoices and other documents assembled by CN that it says are expenditures incurred as a result of the derailment, and to advise which invoices Clarke says are not related to the derailment or which Clarke is currently aware do not relate to the derailment. I find Clarke’s refusal to accept this requested undertaking to be appropriate. [32] There may be many situations where it is entirely appropriate and an efficient approach to ask defendant whether they accept that certain costs or expenses were incurred as result of the action or incident in question. Agreeing on such matters, where appropriate, is consistent with the efficiency objectives of the foundational rules. However, it is ultimately a plaintiff’s burden to prove its damages, and a defendant is not required to assist plaintiffs to do so. [33] The fact that defendant is not obliged to assist plaintiff to prove their damages aside, the approach taken here of presenting several hundred pages of invoices and other documents and asking the defendant to advise which they say relate and do not relate to the derailment is of such nature and scale that it is not appropriate. [34] Clarke cannot, without significant work that would essentially involve auditing CN’s entire claimed expense records, possibly know whether or not the items claimed flowed from the derailment. All of the relevant knowledge is in the possession of CN, and Clarke would have had no basis on which to make informed decisions. The request can be made, but it is entirely up to Clarke to decide whether or not to accommodate CN. There was nothing in Clarke’s refusal to answer that was inappropriate. [35] Requested undertaking 38 was to provide any background documents, information or factual information that went into the preparation of the sketch by Clarke’s insurance adjuster. Clarke refused to answer on the basis that the information sought was within the scope of its litigation privilege. CN argues that Clarke having waived its litigation privilege in respect of the sketch itself, it must follow it was waiving any claim of privilege as regards the sources of information leading to the sketch. [36] It is clear that the insurance adjuster’s file would be subject to a litigation privilege. For discussion of the law and parameters relating to the litigation privilege see the Supreme Court of Canada’s decision in Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] S.C.R. 319. The adjuster’s involvement was clearly the result of CN having informed Clarke of its claim or potential claim against Clarke arising from the derailment. Clarke’s third party liability insurer and its adjuster were involved because of the obligation of Clarke’s liability insurer to provide either defence to the claim or an indemnity. Thus the requirements of pending or apprehended litigation and the insurer and the adjuster’s involvement as an agent of Clark are satisfied. The issue is whether production by Clarke of document in respect of which it could have claimed litigation privilege waives any claim of such privilege as regards background information to the document. [37] The most current and comprehensive discussion of the topic of loss or waiver of litigation privilege is found in John Sopinka, Sidney N. Lederman Alan W. Bryant, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2009) at 14.202 to 14.218. review of these paragraphs shows that the judicial decisions on waiver of the litigation privilege have been in the context of the question whether disclosure of an expert’s report results in waiver of any claim of privilege to information in the expert’s file to which the litigation privilege would otherwise attach. [38] While there is not unanimity of opinion, the prevailing view is that when an expert takes the witness stand or the expert’s report is tendered into evidence there is an implied waiver of the information in the expert’s file which is foundational to the opinion. However, it is generally held that the implied waiver should be narrowly construed and the privilege should be maintained where it is fair to do so, and any implied waiver should be restricted to material relating to the formulation of the expressed opinion. (See: para. 14.208.) [39] At this point, the sketch is simply representation of Clarke’s position as to the configuration of the coils and the bracing or blocking for such coils as loaded by Clarke. Unless and until the sketch is tendered as evidence at trial, I am of the opinion that there is no implied waiver of the litigation privilege that otherwise attaches to the foundational information leading to the preparation of this sketch. There is, in my opinion, no unfairness to CN in maintaining the litigation privilege relating to the adjuster’s file generally. It is open to CN to ask Clarke to identify the employees who were involved in the loading of the car and its inspection before release to CN for transportation and to pursue the same or similar factual information without intruding on the litigation privilege. [40] As the Supreme Court of Canada said in Blank, the litigation privilege is intended to create “zone of privacy” in relation to pending or apprehended litigation. Once this zone of privacy is found to exist, it should not be lightly intruded upon. Should CN seek to tender this sketch as evidence at trial, then the trial judge may well have to rule on whether there is then an implied waiver of litigation privilege in relation to the foundational information for the sketch. But, for the present and in the context of pre-trial questioning, I conclude that Clarke’s refusal to provide a response to requested undertaking 38 was appropriate. The Deferral of Answers (Undertakings 28, 39 and 53) [41] Clarke’s position is that CN’s application in respect of these undertakings is premature and unnecessary since it had undertaken to provide answers in the future upon conclusion of its questioning of CN or upon additional particulars becoming available to it. [42] CN argues that Clarke is obliged to answer based upon its current knowledge. It says that if future questioning or other information obtained requires an additional response or correction, the undertakings and the law contemplates that CN can then correct or provide additional information, but that there is current obligation to provide such facts or information as it has. Thus it says its application is not premature. [43] CN cites in support of this position International Minerals Chemical Corp. (Canada) Ltd. v. Commonwealth Insurance Co., [1991] S.J. No. 516 (QL) (Q.B.), where Halvorson J. said at para 6: Respecting another group of undertakings, the defendants replied that they needed further examinations for discovery before supplying answers. This is not [an] appropriate response. The defendants are obliged to indicate their present positions and facts now known or believed to exist. [44] The report of this decision does not provide the undertakings, the context of the questions nor sufficient information regarding the nature of the claim and the information sought to be able to appreciate the reasons for the ruling Halvorson J. made. Further, this decision was made in the context of the former Queen’s Bench Rules, absent the emphasis now in the foundational rules on the quickest means of resolving claims at the least expense. Accordingly, am unable to find much to assist me in Justice Halvorson’s decision. [45] Prior to undertaking 28 being taken under advisement, Clarke, through its counsel, advised in respect of undertaking 28 that they did not have a position on what caused the derailment and if they developed a position they would advise. Prior to undertaking 38 they stated they had provided all of the facts they were then aware of. Thus Clarke provided to the date of their questioning their position and the facts they were aware of. They say that while they are prepared to answer the undertakings, both having been taken under advisement, that answers cannot be provided until completion of now scheduled continuation of discovery. [46] Given the answers provided at the time of questioning, can see no justification for me to do anything other than accept Clarke’s stated position that answers to undertakings 28 and 39 cannot be provided until completion of their questioning of CN. Indeed, in the context, completion of discovery of CN appears to me to be necessary step in the process of Clarke formulating position as to what caused the derailment and what facts they rely upon in support of that position. Further, find this to be the quickest means of dealing with the questions asked at the least expense. Accordingly, decline to order Clarke to answer now based upon its current knowledge. [47] With respect to undertaking 53, Clarke agreed at the time of questioning that, should particulars, beyond those provided at the time of questioning, become available, it would advise. That remained its position on this application. Inherent in this is that no additional particulars have yet become available. [48] Rule 5-31 imposes continuing obligation to correct, as soon as practicable, an answer that becomes incorrect or misleading as result of new information. There is no evidence before me that this obligation under the rules has not been complied with. The Adequacy of Responses to Undertakings 34 and 35 [49] I agree with the position taken by counsel for CN that:i. Undertaking 34 calls for Mr. Swainson himself to say what he meant or did, as opposed to Mr. Thompson saying what Mr. Swainson meant or did; and thatii. Undertaking 35 calls for Clarke to make inquiries of Thompson and Swainson and to advise what their personal responses to the questions were. Accordingly, I order Clarke to provide proper responses to CN. [50] In light of the foregoing order that Clarke shall within 10 days of this order provide proper responses to undertakings 34 and 35. The balance of CN’s application is dismissed. [51] have for the most part dismissed the application by CN for relief. While have ordered proper responses be provided in respect of undertakings 34 and 35, this was minor part of the relief sought and was matter that normally would have been dealt with on an informal basis between counsel or by follow-up examination. [52] In my award of costs balance the limited success of CN against their failure on what see as the significant issues of the application. The matter must be treated as complex motion for costs purposes. Significant briefs of fact and law were filed. The matter was moved to the bottom of the chambers list and when reached occupied more than one hour in argument. In the result award net costs of $1,500.00 to Clarke in any event of the cause.","HELD: The Court held that the replacement of former Queen’s Bench rule 212 requiring the production of documents “relating” to any matter in question and rule 222 permitting examination for discovery “touching” the matter in issue in the action by new rules 5-6, 5-18 and 5-25, which use the phrase: “relevant to any matter in issue”, showed the intention that the broad relevance test was no longer applicable. The test under the new Rules was whether the matter qualifies as being material to the action based upon the matter as pled and whether the evidence tends to prove or disprove the matter in issue. This inquiry must be balanced against the notion of proportionality set out in the foundational rules. The Court dismissed the application, excepting the requested order under 3) wherein the defendant would fulfill its undertaking to have certain employees provide responses. With respect to the rest of the relief requested under 1), which involved the undertaking that the defendant would search its records regarding the loading of railcars, the Court held that the as matter was not an issue in the action, based upon a review of the claim as pled. Having regard to proportionality under the new rules, the defendant should not be required to answer the question in light of the effort and expense required versus the possible benefits. The Court held that the plaintiffs were not entitled to ask the defendants to review a binder containing hundreds of pages of invoices assembled by the plaintiff regarding its expenditures incurred as a result of the derailment in order for it to advise the plaintiff which invoices the defendant believed were not related to it. It was the plaintiff’s burden to prove its damages and the defendant was not required to assist the plaintiff to do so. The plaintiff’s requested undertaking for the defendant to provide any background documents and information that went into the preparation of sketch of the railcar in question by the defendant’s adjuster was also denied. The adjuster’s file was subject to litigation privilege and unless it was tendered as evidence at trial, there was no implied waiver of that privilege. Regarding the plaintiff’s request in 2), the Court agreed with the defendants that that plaintiff’s request that the defendant answer questions now, rather than after it had completed questioning of the plaintiff, was premature. The defendant had not yet taken a position on the cause of the derailment and they would advise the plaintiff when they had developed one. Rule 5-31 makes it an ongoing obligation to correct answers and there was no evidence in this application that the rules had not been complied with. The Court awarded costs in the amount of $1,500 to the defendants due to the complexity of the application, requiring the submission of briefs of law and the amount of time taken to argue them matters in Chambers.",d_2013skqb394.txt
31,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 513 Date: 2012 12 10 Docket: Q.B. No. 454/2005 Judicial Centre: Prince Albert BETWEEN: SASKATCHEWAN GOVERNMENT INSURANCE, Plaintiff (Defendant by Counterclaim) and JOHN MEDYNSKI, operating sole proprietorship under the name LAKELAND TOWING, and ASTRO TOWING (P.A.) LTD., Defendants (Plaintiffs by Counterclaim) Counsel: Kenneth A. Stevenson, Q.C. for the plaintiff Neil C. Raas for the defendants JUDGMENT R.S. SMITH J. December 10, 2012 [1] granted judgment in this matter on April 18, 2012 (Saskatchewan Government Insurance v. Medynski, c.o.b. Lakeland Towing, 2012 SKQB 157 (CanLII), 396 Sask.R. 104, the “Original Judgment”). Paragraphs 103, 104, 113 and 114 of the Original Judgment read: [103] There is no objective evidence which supports the proposition that the Admin Fee is reasonable. Accordingly, conclude that the Admin Fee is not recoverable under the doctrine of quantum meruit. therefore grant judgment against the defendants in the amount of the Admin Fees charged and paid by SGI to the individual claimants. Specifics of judgment are: (i) Judgment against Astro for improperly charged Admin Fees in the amount of $148,850. In addition, SGI shall have judgment against Astro for any Admin Fees charged and paid by SGI subsequent to November 14, 2011. (ii) SGI shall have judgment against John Medynski, operating as Lakeland Towing for improperly charged and paid Admin Fees in the amount of $345,755.52. (iii) In addition, SGI shall have judgment for any Admin Fees charged and paid by SGI subsequent to November 14, 2011. [104] will remain seized with this matter respecting any dispute as to the amount of the judgment to be taken by SGI against the defendants. [113] conclude that SGI is entitled to recover from the defendants those charges made by the defendants for towing and other related services that were greater than 15% above the SGI Fee Schedule. In sum, conclude that the reasonable range is within 15% of the SGI Fee Schedule. [114] Fortunately, SGI’s detailed tracking of the charges by the defendants should permit this mathematical calculation to be made. I will leave to the parties the clerical task of engaging in that process. In the event the parties are unable to reach an agreement on what the judgment amounts to from the above formula, then I remain seized with this and they are to contact the registrar in order to arrange a time for argument on any points in debate. [2] The parties have not been able to reach an agreement as to how to calculate the final judgment. The solicitors for Saskatchewan Government Insurance (“SGI”) have submitted detailed calculations for the Court’s review. Mr. Raas, on behalf of the defendants, does not concede their accuracy but, at the same time, advances no specific objections nor does he submit his own calculations. [3] The defendants object to the request by SGI that I finalize judgment as contemplated by the above paragraphs 103, 104, 113 and 114. The defendants invoke Rule 15 of The Court of Appeal Rules which provides, in part: 15(1) Unless otherwise ordered by the judge appealed from or by judge, the service and filing of notice of appeal does not stay the execution of judgment or an order awarding mandamus, an injunction, alimony, or maintenance for spouse, child or dependant adult. Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (4) Where the execution of judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. [4] The defendants maintain that by reason of Rule 15, the service and filing of a notice of appeal stays the execution of a judgment until disposition of the appeal, unless otherwise ordered. There are certain exceptions, including orders of mandamus, injunctions and the like, none of which are in play here. The defendants complain that the calculation of judgment is proceeding on the judgment and thus barred by Rule 15. [5] SGI replies that the calculation of the judgment, essentially a mathematical process, is not acting on the judgment and thus is not a violation of the stay created by reason of the appeal. Further, SGI suggests it is appropriate and logical that the calculation of what is owing on the judgment be completed at this juncture, rather than waiting for the disposition of the appeal. [6] have found guidance in Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co., [1999] S.J. No. 301 (QL) (Q.B.), wherein they referred to Mayrand v. Mayrand (1982), 1982 CanLII 2381 (SK CA), 20 Sask.R. 263, [1982] S.J. No. 861 (QL) (C.A.): [19] In Mayrand wife applied for relief against her husband. The husband applied for an order transferring the proceedings from the Unified Family Court in Saskatoon to the Court of Queen’s Bench at Humboldt. The Saskatchewan Unified Family Court dismissed the application. The husband filed notice of appeal. The wife applied to have lifted the stay she thought was imposed by then Rule 15(1). The relevant part of Rule 15(1) as it then was is the same in effect, if not the exact words, as the present Rule 15(1). [20] The application was heard by Chief Justice Bayda who dismissed it after saying at pp. 264‑65: Both parties appear to have misconceived the effect of the stay imposed by Rule 15(1) insofar as it affects the present appeal. The parts of the Rule material to the present case provide “... upon an appeal being filed, execution of the judgment appealed from shall be stayed pending the disposition of the appeal.” (my emphasis) It is noted that only “execution of the judgment” is stayed. Here, the “judgment appealed from” consists of an order of dismissal of an interlocutory application. The judgment does not direct that anything be executed. There is, therefore, nothing to stay. Accordingly, Rule 15(1) in the present factual situation is of no moment. The parties appear to have attributed to the stay imposed by Rule 15(1) scope that is totally unwarranted. The Rule does not impose general stay of proceedings bringing to halt all proceedings in the action as would an order of court directing stay of all proceedings. The Rule imposes stay of only one proceeding: the execution of the judgment appealed from. It follows that the wife may make her application to the Unified Family Court without any order of this court under Rule 15(1). [7] In this instance, all SGI has requested is to finalize the calculation of the judgment. In my view, this step is completely consonant with the reasoning of Chief Justice Bayda in Mayrand. [8] In Silver Developments Ltd., supra, Justice Armstrong was addressing the scope of Rule 15. In the judgment dated May 13, 1999, which was an addendum to prior judgment in the matter dated February 19, 1999 (Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co. (1999), 1999 CanLII 12521 (SK QB), 182 Sask.R. 64 (Q.B.)), Justice Armstrong opined: [26] For “all further proceedings in the action” as stated in Rule 15(4) to limit the judge’s authority over his or her own judgment prior to it being formally issued would require exercise of such authority to be “proceeding” in the action and in my view it is not. Furthermore, the Court of Appeal would have to have jurisdiction to prohibit judge of the Court of Queen’s Bench from making any change to his or her own judgment even though the judge is not functus officio. With respect, such jurisdiction is something do not believe the Court of Appeal has. ... [27] The expression “... other than issue of the judgment ...” does not in my view mean either that making or changing the judgment is “proceeding” or assuming it is, that “all further proceedings in the action” are stopped regardless of the judgment not having been formally entered. Had this been intended think the rules would have said so. ... [9] The Saskatchewan Court of Appeal had occasion to comment upon the appropriate procedure in somewhat similar circumstance. In Bart v. Phoenix Farms, 1997 CanLII 9718 (SK CA), [1997] W.W.R. 353, 152 Sask.R. 203 (C.A.), the trial decision was appealed, and the successful party at trial applied for the stay of execution to be lifted. It would appear from the judgment that the matter had gone on for some time, and the calculation of judgment was in hot dispute. [10] In addressing the application to lift the stay, Justice Cameron made the following observation: [8] In the light of all of this, and in the whole of the circumstances, it might have been better had the parties gone back to the chamber judge for clarification of the order and for further directions. might say the nature of the interlocutory matters now in issue, the form of the order, and the way in which the remainder of the dispute has evolved since the making of the order, rather suggests return to the chamber judge for such purposes. In the circumstances, he would not appear to be functus. Nor would the Court of Queen’s Bench appear to be foreclosed by the existence of the appeal from further acting upon the matters now in dispute. [Emphasis added] [11] Additionally, in Lac La Ronge Indian Band v. Dallas Contracting Ltd., 2002 SKQB 407 (CanLII), 228 Sask.R. 46, Justice Baynton was dealing with an application to determine costs at trial in the face of an appeal that had been launched. Determining costs is specific exception contemplated under Rule 15(4). However, Justice Baynton had occasion to observe that stay arising from the appeal does not affect all aspects of judgment. He also emphasized the practical considerations of expense, delay and providing accurate information to the Court of Appeal. He provides guidance commencing at paragraph of his judgment: [5] Counsel for the respondents have quite properly cited Mayrand v. Mayrand (1982), 1982 CanLII 2381 (SK CA), 20 Sask.R. 263 (C.A.), Prince Albert Credit Union Ltd. v. Diehl et al., 1985 CanLII 2646 (SK CA), [1986] W.W.R. 635 (Sask. C.A.) and Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co., [1999] S.J. No. 301 (Q.B.). They also quite properly distinguish these cases on their facts and submit that while subsection (1) has been interpreted to effect stay only on the execution (and not all aspects of judgment), subsection (4) effects stay of all further proceedings in the action other than the issue of the judgment and the taxation of costs under the judgment. They maintain that an application for an order respecting costs is “proceeding in the action” and is accordingly stayed pursuant to subsection (4) of Rule 15. [6] fail to appreciate the merit in this fine distinction. From policy perspective, if the submission is accepted, the parties will be put to unnecessary delay and expense. The determination of costs cannot be made until the Court of Appeal releases its decision on the appeals of the judgment. As requested by counsel at trial, reserved the matter of costs when released my reasons for judgment. The respondents acknowledge that if they fail in their appeals, the costs issue must necessarily be referred back to me for determination. as the trial judge am not functus respecting the matter of costs. Once ultimately make the costs determination, further appeal can then be taken by any of the parties respecting my decision on costs. In such event, the costs and delay occasioned by multiple appeal hearings will be visited on the parties. [7] However, if determine the costs issue at this time, this potential delay and expense will be avoided. The Court of Appeal will have my decision on costs before them when they determine the appeals that are now pending. confirmed with counsel that the appeals will not be heard for some time so that any party to the action will have the opportunity to appeal my determination of the costs issue and have it heard at the same time as the appeals that have been undertaken. [Emphasis added] [12] Accordingly, do not regard the calculation of the judgment as contemplated by the Original Judgment as “proceeding” in the action. Attending to the clerical task now will avoid costs and delay and will hopefully be of some assistance to the Court of Appeal. [13] Accordingly, it is appropriate for me to calculate the judgment owing to the date of my Original Judgment based on the materials submitted by SGI. [14] Therefore, there will be judgment in favour of SGI against Astro Towing (P.A.) Ltd. (“Astro”) calculated as follows: As per paragraph 103 of the Original Judgment $148,850.00 Additional Admin Fees charged to April 18, 2012 200.00 Other overcharges as provided for in paragraphs 113 and 114 of the Original Judgment 26,159.63 Pre‑judgment interest 15,737.54 Total judgment by SGI against Astro as at April 18, 2012 $190,947.17 [15] SGI shall have judgment against John Medynski, operating as Lakeland Towing, as follows: As per paragraph 103 of the Original Judgment $345,755.53 Additional Admin Fees charged to April 18, 2012 28,850.00 Other overcharges as provided for in paragraphs 113 and 114 of the Original Judgment 146,381.91 Pre‑judgment interest 17,133.51 Total judgment by SGI against John Medynski as at April 18, 2012 $538,120.95 [16] As discussed, any proceedings on the judgment are stayed pending the appeal. Once the appeal is disposed of, SGI should prepare formal judgment rolls based on the above, subject, of course, to any changes emanating from the Court of Appeal. [17] There will be no costs of this application.","In the original judgment, the manner in which certain calculations should be made with respect to the amount owing to the plaintiff was left to the parties, with the provision that the judge remained seized if they could not reach an agreement. After judgment, the defendants appealed the judgment.  The plaintiffs then submitted detailed calculations of the final judgment for the trial judge's review. The defendants objected to the finalization of the judgment on the ground that, pursuant to Court of Appeal Rule 15, the notice of appeal had stayed the execution of the judgment until the disposition of the appeal. The plaintiff submitted that the calculation of the judgment was not acting on it. HELD: The defendant misconstrued the scope of Rule 15 as it does not stay proceedings. The appeal does not affect the ability of the Court to finalize the judgment. In fact, to do so will avoid costs and delay, and will hopefully be of some of assistance to the Court of Appeal.",d_2012skqb513.txt
32,"THE COURT OF APPEAL FOR SASKATCHEWAN GUARDIAN INSURANCE COMPANY OF CANADA and ROYAL INSURANCE COMPANY OF CANADA and KELLOGG CANADA INC. CORAM: The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: Mr. K. Stevenson, Q.C. for the Appellant Mr. S. Parthev Ms. M. Ouellette for the Respondent Royal Insurance Mr. A. McIntyre for the Respondent Kellogg Canada Inc. DISPOSITION: Appeal Heard: November 10, 1995 Appeal Dismissed: July 9, 1996 Reasons: July 9, 1996 On Appeal From: QB 1418/95 Judicial Centre of Saskatoon Appeal File: 2203 Reasons by: (1) The Honourable Mr. Justice Lane (2) The Honourable Mr. Justice Wakeling The Honourable Madam Justice Jackson LANE J.A. This appeal arises from an application for directions made pursuant to s. 209 of The Saskatchewan Insurance Act (""the Act""), R.S.S. 1978, c.S-26. The appellant, Guardian Insurance Company of Canada, (""Guardian"") is the general liability insurer of the respondent Kellogg Canada Inc. (""Kellogg""). The respondent, Royal Insurance Company of Canada, (""Royal"") is the primary insurer as the holder of the blanket fleet coverage of Kellogg. Mr. McLeod is an employee of Kellogg. On November 19, 1993, McLeod was involved in a motor vehicle accident. At the time of the accident, McLeod was on company business and was driving his wife's Honda because his company car had a deflated tire. McLeod, Kellogg and McLeod's wife were sued as result of the accident. Royal denied coverage and refused to defend the action in the name and on behalf of the insured on the basis of an exclusionary provision in its policy. Guardian agreed it had an obligation to defend but submitted that Royal also had duty to defend in the name and on behalf of the insured. As result of the differences between the insurers, Guardian made the application for directions to determine whether Royal had an obligation to defend. The application was heard by a Court of Queen's Bench judge in chambers who ruled Royal was not obligated to participate in defending the action ""because the Honda involved is not insured by Royal"". The two issues to be resolved on appeal are as follows: 1. Whether the chambers judge incorrectly decided the issue of indemnity when he engaged in determination of which insurer is obligated to defend the action; and, 2. Whether the chambers judge erred in his application of the principles of contract interpretation when he decided the Honda was not ""temporary substitute automobile"" within the terms of the Royal policy. Relevant Legislative Provisions Section 199 of The Saskatchewan Insurance Act: 199 Every contract evidenced by motor vehicle liability policy shall provide that, where person insured by the contract is involved in an accident resulting from the ownership, use or operation of an automobile in respect of which insurance is provided under the contract and resulting in loss or damage to persons or property, the insurer shall: (b) defend in the name and on behalf of the insured and at the cost of the insurer any civil action that is at any time brought against the insured on account of loss or damage to persons or property; 209(1) Where person is insured under more than one contract evidenced by motor vehicle liability policy, whether the insurance is first loss insurance or excess, and question arises under clause 199(b) between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any insurer may apply to the court and the court shall give such directions as may appear proper with respect to the performance of the obligation. (2) On an application under subsection (1), the only parties entitled to notice thereof and to be heard thereon are the insured and his insurers, and no material or evidence used or taken upon such an application is admissible upon the trial of an action brought against the insured for loss or damage to persons or property arising out of the use or operation of the automobile in respect of which the insurance is provided. (3) An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies. Relevant Provisions of the Royal Insurance Policy GENERAL PROVISIONS, DEFINITIONS AND EXCLUSIONS 5. AUTOMOBILE DEFINED In this Policy except where stated to the contrary the words ""the automobile"" mean: Under Sections (Third Part Liability), (Accident Benefits), (Loss of or Damage to insured Automobile): (a) The Described Automobile an automobile, trailer or semi-trailer specifically described in the Policy or within the description of insured automobiles set forth therein; (b) Newly Acquired Automobile an automobile, ownership of which is acquired by the Insured and, within fourteen days following the date of its delivery to him, notified the Insurer in respect of which the Insured has no other valid insurance, if either it replaces an automobile described in the application or the Insurer insures (in respect of the section or subsection of the Insuring Agreements under which claim is made) all automobiles owned by the Insured at such delivery date and in respect of which the Insured pays any additional premium required; provided however, that insurance hereunder shall not apply if the Insured is engaged in the business of selling automobiles; and under Sections (Third Party Liability), (Accident Benefits) only: (c) Temporary Substitute Automobile an automobile not owned by the Insured, nor by any person or persons residing in the same dwelling premises as the Insured, while temporarily used as the substitute for the described automobile which is not in use by any person insured by this Policy, because of its breakdown, repair, servicing, loss, destruction or sale; (e) If the Insured is corporation, unincorporated association or registered co-partnership, any automobile of the private passenger car, private van, private truck, motorhome or farm truck type, other than the described automobile, while personally driven by the employee or partner for whose regular use the described automobile is furnished, or by his or her spouse if residing in the same dwelling premises as such employee or partner, provided that: (i) neither such employee or partner or his or her spouse is the owner of an automobile of the private passenger car, private van, private truck, motorhome or farm truck type; (ii) neither such employee, partner or spouse is driving the automobile in connection with the business of selling, repairing, maintaining, servicing, storing or parking automobiles; (iii) such other automobile is not owned, hired or leased or regularly or frequently used by the Insured or such employee or by any partner of the Insured of by any persons residing in the same dwelling premises as any of the aforementioned persons; (iv) such other automobile is not used for carrying passengers for compensation or hire or commercial delivery. Positions of the Parties Guardian acknowledges its obligation to defend but contends Royal's policy, as fleet insurer, also provides coverage for the substitute vehicle and therefore Royal has an obligation to defend McLeod in the pending action. Guardian contends the chambers judge erred by misconstruing the judicial function established by s. 209(1) of the Act by deciding the issue of indemnity when s. 209(3) of the Act makes it clear an application under s.209(1) does not affect the rights and obligations of the insurers in respect of the payment of any indemnity under their respective policies. Guardian maintains the chambers judge continued the error by failing to make determination requiring Royal to defend Kellogg. Guardian argues the chambers judge misconstrued and misapplied the standard by which the obligation of Royal to defend Kellogg is determined. Guardian contends the test is merely one that if it can be shown the claim arguably falls within the coverage of the policy the insurer has the duty to defend the claim on behalf of the insured. Guardian maintains the chambers judge determined the policy was ambiguous and any ambiguity in the coverage provision ought to be resolved in favour of the “insured” which Guardian contends is Kellogg. Guardian asserts that once the chambers judge found clause 5(c) of the policy to be ambiguous he ought to have ended his inquiry and ordered Royal to defend. Simply put, Guardian contends it need only raise an arguable point, that is, the Royal policy “might” provide coverage for the Honda in order for Royal's obligation to defend to arise. Royal on the other hand asserts the chambers judge made no error and the appropriate scope of the inquiry is broader than that envisaged by Guardian. Royal maintains the duty to defend arises when claim alleges facts which, if proven, would fall within the coverage of the policy. Thus, the chambers judge was required to embark on an extensive review of the policy. In order to decide whether an insurer has duty to defend, the chambers judge must interpret the policy provisions and determine whether or not the Honda was included in the definition of automobile in clause 5(c). Having engaged in this analysis, the chambers judge did not err. Royal maintains the term “insured” in clause 5(c) clearly refers to McLeod and not Kellogg as Kellogg is corporation and could not have “dwelling premises”. Any other interpretation is absurd. Royal states there is no ambiguity in the term ""insured"" and the intention of the policy was clearly to exclude such vehicles. Royal suggests Kellogg may have taken out the Guardian policy, at least, in part, because of the Royal exclusions. Royal contends that before it owes duty to defend, Guardian must show Royal's policy would cover the Honda if the plaintiff's allegations are proven. As Guardian has failed to do so, Royal has no duty to defend. Kellogg's Position Kellogg supports Guardian's position and contends it paid for the Royal insurance policy and it ought to be covered. On appeal, and for the first time, Kellogg argued there was no evidence in the affidavits filed before the chambers judge that the McLeods resided together. Therefore, the chambers judge did not have the factual basis before him to support his interpretation of the policy and form his conclusions. Decision The duty to defend arises only when the pleadings disclose claim which, if proven at trial, would be covered by provisions in the insurance policy. When the provisions of the policy are ""unambiguous"" or ""clearly"" do not provide coverage for that which is alleged by statement of claim there is no duty to defend. (Nichols v. American Home Assurance Co., 1990 CanLII 144 (SCC), [1990] S.C.R. 801). In the present case, the chambers judge construed the Royal policy and determined the policy did not provide coverage for that which was alleged in the pleadings. Therefore, Royal was under no obligation to defend McLeod in the pending action. Although Guardian strenuously argued the policy was ""ambiguous"" and should be construed in favour of the insured, the chambers judge rejected this argument and clearly did not find ambiguity in the coverage provided. An examination of the duty to defend in light of the Nichols decision would appear to be beneficial. review of the case law reveals that while several Courts of Appeal, including Ontario, British Columbia, Manitoba and Newfoundland, have confirmed the ""would"" test as articulated by Madam Justice McLachlin in Nichols this Court of Appeal has not rendered its interpretation of the decision. Furthermore, it appears that on occasion, some lower courts in various jurisdictions have misconstrued Nichols as proposing that the duty to defend arises when policy ""might provide coverage"". Nichols and the Duty to Defend Neither party takes issue with the proposition that the duty to defend is broader than and independent of the duty to indemnify. Furthermore, any declaration which imposes duty to defend on the insurer is not determinative of the right of an insured to be indemnified under policy. (See Broadhurst and Ball v. American Home Assurance Co. (1990), 1990 CanLII 6981 (ON CA), O.R. (3d) 225 (C.A.); Great West Steel Industries Ltd. v. Simcoe Erie General Insurance Co. (1979), 1979 CanLII 1968 (ON CA), 27 O.R. (2d) 379 (C.A.)). However, the insurer has no duty to defend when its policy does not provide coverage for that which is alleged in the pleadings. The Supreme Court of Canada in Nichols v. American Home Assurance, 1990 CanLII 144 (SCC), [1990] S.C.R. 801 has expressly stated that no duty to defend arises when policy clearly does not provide coverage for that which is alleged in the pleadings. McLachlin J. writing for the court, articulates this position at p. 808 of her judgment as follows: The respondent also relies in this connection on the contention that the duty to defend is broader than and independent of the duty to indemnify. This is so, in the sense that the duty to defend arises where the claim alleges acts or omissions falling within the policy coverage, while the duty to indemnify arises only where such allegations are proven at trial. But is does not follow that the duty to defend is so broad that is arises with respect to allegations which are clearly beyond the scope of the policy. conclude that the duty to defend imposed by the defence clause is unambiguously restricted to claims for damages which fall within the scope of the policy. [Underline mine]. In Nichols, lawyer sought declaration that his liability insurer had an obligation to defend him in an action alleging he had committed fraud. The insurer maintained that it had no duty to defend. In support of its position the insurer relied on an exclusion clause in the policy that denied coverage ""to any dishonest, fraudulent, criminal or malicious act or omission of an Insured."" As the only cause of action disclosed in the pleadings alleged fraud, the insured asserted that it did not owe duty to defend the action. The Supreme Court agreed with the insurer's position. To determine whether an insurer has duty to defend, one must determine whether the pleadings raise claims that would be covered by the policy. This analysis requires two stage process, first one must examine the causes of action and the material facts alleged in the pleadings. As noted by McLachlin J. in Nichols at p. 812, when examining the statement of claim, ""...the widest latitude should be given to the allegations in the pleadings in determining whether they raise claim within the policy"". Nichols adopted the conclusion reached by the British Columbia Supreme Court in Bacon v. McBride (1984), 1984 CanLII 692 (BC SC), 51 B.C.L.R. 228, D.L.R. (4th) 96, C.C.L.I. 146. Wallace J, writing for the court concluded the following proposition at p. 232 of his judgment: The pleadings govern the duty to defend not the insurer's view of the validity or nature of the claim or of the possible outcome of the litigation. If the claim alleges state of facts which, if proven, would fall within the coverage of the policy the insurer is obliged to defend the suit regardless of the truth or falsity of such allegations. If the allegations do not come within the policy coverage the insurer has no such obligation... In the present case, the statement of claim specifically refers to ""...the vehicle owned by the Defendant, Valerie McLeod, and operated by the Defendant, Ross Lee McLeod..."". The pleadings allege this as material fact of the case. The court must determine whether this vehicle was insured under the Royal policy before it can determine whether the insurer is under duty to defend. The second stage of the analysis, which requires judge to determine whether the policy in question provides coverage for that which is alleged in the claim, is articulated in Nichols. At p. 810 of her reasons, McLachlin J. cited Opron Maritimes Construction Ltd. v. Canadian Indemnity Co. (1987) 1986 CanLII 89 (NB CA), 19 C.C.L.I. 168 (N.B.C.A.), for the following proposition: Where it is clear from the pleadings that the suit falls outside the coverage of the policy by reason of an exclusion clause, the duty to defend has been held not to arise:.. In Opron, the New Brunswick Court of Appeal was forced to consider whether an insured was entitled to have its insurer take over and bear the expense of lawsuit brought against it for the improper design and manufacturing of arches used in construction contact. Hoyt J.A. writing for the court made the following observation at p. 173 of his decision, While the insurer's obligation to defend is separate from its duty to indemnify, there is no duty on it to defend an action against its insured if there is clearly no liability to indemnify under the policy. The pleadings must be examined to see if they disclose facts or contain allegations which bring the incident within the terms of the indemnity provisions of the policy. The pleadings must be examined to see if they disclose facts or contain allegations which bring the incident within the terms of the indemnity provisions of the policy. If, of course, the claim against the insured is not related to subject-matter covered by the policy there is no obligation on the insurer to defend. Any doubt as to whether the pleadings bring the incident within the coverage of the policy ought to be resolved in favour of the insured. In determining coverage exclusionary clauses must be considered. Any claim clearly within such clause would not require defence as the insurer must only defend claims which allege loss within the terms of the policy when read as whole. [Emphasis mine] Guardian contends that the mere possibility that claim advanced will fall within the terms of the Royal policy imposes on Royal duty to defend. Guardian relies on the Ontario High Court decision in Re Thames Steel Construction Ltd. and Northern Assurance Co. Ltd. (1987), 1987 CanLII 4371 (ON SC), 59 O.R. (2d) 449 (H.C.) for the proposition that where it is unclear whether an insurance policy provides coverage for claims alleged the insurer is under duty to defend. In Thames, Hollingworth J. writing for the court found as fact that the provision in the policy was ambiguous. He then followed the reasoning of Mahoney J. in the unreported case of Hermanson v. Phoenix Assurance Co. of Canada, June 29, 1982 quoting at p. 453 as follows: ...""... where is unclear whether the insurance policy in question affords coverage, the insured should be entitled to Declaration directing the insurance company to defend"". He then goes on: ""In case where the insurer could be liable it should defend."" (His emphasis.) However, Hollingworth J.'s decision was overturned on appeal. (See: Thames Steel Construction Ltd. v. Northern Assurance Co. (1989), 1988 CanLII 4657 (ON CA), 67 O.R. (2d) 158.) Houlden J.A. writing for the Ontario Court of Appeal concluded at p. 160 that: Although the appellant's obligation to defend is separate form its duty to indemnify, there is no duty to defend an action against an insured if there is clearly no obligation to indemnify: see Opron Maritimes Construction Ltd. v. Canadian Indemnity Co., [supra] [Emphasis mine]. The case law reveals some inconsistencies with respect to the relationship between the duty to defend and the coverage provided by the policy. Where the policy clearly does not provide coverage, the insurer has no duty to defend. (See: Nichols v. American Home Assurance Co., supra; Opron Maritimes Construction Ltd. v. Canadian Indemnity Co., supra; Bacon v. McBride, supra.; Wellington Guarantee v. Evangelical Lutheran Church of Canada [1996] B.C.J. No. 872 (C.A.); Kitchener Silco Inc. v. Cigna Insurance Co. of Canada [1991] O.J. No. 280 (Gen. Div.); Wisebrod v. American Home Assurance Co. 1996 CanLII 8003 (ON SC), [1996] O.J. No. 1896 (Gen. Div.)). Conversely, where the policy does provide coverage for claims, the insurer has duty to defend. (See: Kamco Installation Ltd. v. Chilliwack (District) [1991] B.C.J. No. 2438 (S.C.); Malik v. Ontario Assn. of Architects [1993] O.J. No. 3046 (Gen. Div.); Moncton Wesleyan Church (Trustees of) [1992] N.B.J. No. 497 (Q.B.); Bird Construction Co. v. Allstate Insurance Co. of Canada [1996] M.J. No. 106 (Q.B.)). Furthermore, where policy only provides coverage for some allegations made in statement of claim, the insurer is only obligated to defend those allegations which may trigger the obligation to indemnify. (See: Surrey (District) v. General Accident Assurance Co. of Canada (1994) 1994 CanLII 16683 (BC SC), 92 B.C.L.R. (2d) 115 (S.C.); St. Andrew's Service Co. v. McCubbin (1987), 1987 CanLII 2397 (BC SC), 22 B.C.L.R. (2d) 38 (S.C.); Continental Insurance Co. v. Dia Met Minerals Ltd. 1995] B.C.L.R. (3d) 231 (S.C.); Mercer v. Paradise (Town) [1991] N.J. No. 126 (S.C.)). When policy is ambiguous and an argument may be made the policy provides coverage, some courts appear to have adopted the interpretation as expressed by Hollingworth J. in Thames and have stated the mere possibility that the policy may provide coverage is sufficient to oblige the insurer to defend. (Canada Inc. v. Comco Service Station Construction Maintenance Ltd. (1990), 1990 CanLII 6870 (ON SC), 73 O.R. (2d) 317 (H.C.); Slough Estates Canada Ltd. v. Federal Pioneer Ltd. (1995), 1994 CanLII 7313 (ON SC), 20 O.R. (3d) 429 (Gen. Div); March Elevator Co. v. Canadian General Insurance Co. [1995] O.J. No. 1900 (Gen. Div); T.W. v. K.R.J.W. 1996 CanLII 8005 (ON SC), [1996] O.J. No. 2102 (Gen. Div.); Strata Plan NW3341 Riverwest v. Royal Insurance Co. of Canada [1996] B.C.J. No. 618 (S.C.). However, where true ambiguity is found in these policy's provisions, many of these courts have then engaged in process of contract interpretation to determine whether or not the policy does indeed provide coverage. When the court concludes there is no coverage, the insurer is under no duty to defend. (See: Slough Estates Canada Ltd. v. Federal Pioneer Ltd., supra; March Elevator Co. v. Canadian General Insurance Co., supra; T.W. v. K.R.J.W., supra; Strata Plan NW3341 Riverwest v. Royal Insurance Co. of Canada, supra). In Privest Properties v. Foundation Co. of Canada (1992), C.C.L.I.(2d) (B.C.S.C.), the British Columbia Supreme Court was forced to consider whether an insurer was obliged to defend its insured when it was unclear whether policy would provide coverage for claims advanced against the insured. In Privest, the applicant's argued that the Supreme Court in Nichols had modified the test to be applied when ascertaining the duty to defend from ""would fall"" to ""may be argued to fall"". Drost J. concluded that Nichols did not modify the test. Rather he expressed his conclusion at p. 33 as follows: The Supreme Court has expressly approved the test as laid down in Bacon v. McBride and Opron. think it is clear that what Madam Justice McLachlin had in mind when she used the phrases ""which may be argued and ""there is possibility"" was the proof of the claim, not its character. This observation appears most consistent with the majority of the case law and the tenor of the Nichols decision. judge must decide whether the policy before him ""would"" cover the claim in question. Such an inquiry, of course, necessitates complete analysis of the applicability of any relevant exclusion or definition provision in the insurance policy. Such an analysis was in fact carried out by the chambers judge in the case before us. Policy Interpretation and Final Determination of Indemnity Section 209 of the Act provides no guidelines as to the scope of the inquiry the judge hearing the application for directions may engage in. It does not articulate whether chambers judge is precluded from examining the policy and determining whether it provides coverage for that which is asserted in the pleadings. The chambers judge recognized this but did not define the scope of his inquiry. He simply said in response to Guardian's argument it merely must raise “an arguable point” that the standard suggestion by Guardian was “off target.” In disagreeing with the position of Guardian the chambers judge held, ...this court is in as good position as any court will ever be to interpret the meaning of “insured” in clause 5(c). The fact that the question is arguable should not be conclusive. It would be rare application for directions which contain no arguable point. The difficulty with chambers judge engaging in an extensive inquiry into policy coverage in an application for directions arises when he or she ultimately rules there is no obligation to defend and after the trial, the trial judge concludes that the insurer has an obligation to indemnify the insured. This may put the insurer in the difficult position of having ruling there was no obligation to defend by one judge and an obligation to indemnify being determined by the trial judge without the insurer having appeared at the trial because of the earlier ruling. more restricted inquiry on s.209(1) application could reduce the potential for inconsistent judgments created by the operation ss. 209(1) and 209(3) of the Act. However, s. 209(1) requires court to ""...give directions as may appear proper with respect to the performance of the obligation {to defend}"". To determine whether an insurer has the obligation to defend an insured, chambers judge must examine the coverage provided by the insurance policy. When policy does not provide coverage for that which is alleged in the pleadings, judge may conclude that there is no duty to defend. If the provisions of the policy are ambiguous, the judge must construe the contract and determine whether coverage is provided. The limits s. 209(3) place on judge's final decision may merely be stating what the court has concluded in Nichols. final determination of whether an insurer will be liable to indemnify insured will depend upon what facts are proven at trial. If several claims are alleged in the pleadings but only one is successful, the court must determine if the policy provides coverage for that claim which is proven. However, this does not preclude judge sitting at the outset from interpreting policy and determining whether the policy would provide any coverage for allegations made in the pleadings. If policy does not provide coverage for alleged claims it cannot provide indemnity for proven claims unless the pleadings are amended during the trial to include facts or causes of action that were not present when the original s. 209(1) application was made. Furthermore, the doctrine of res judicata would prevent trial judge from re-interpreting the policy at the conclusion of the trial and rendering an interpretation inconsistent with the chambers judge’s conclusion. However, the doctrine of res judicata would not estop trial judge from re-examining the coverage provided by the policy if the pleadings were amended during trial to include new claims. It is clear from Nichols, however, no matter the scope of the inquiry the duty to defend does not arise with respect to claims which are clearly beyond the scope of the policy. At p. 808 McLachlin J. states: But it does not follow that the duty to defend is so broad that it arises with respect to allegations which are clearly beyond the scope of the policy. [emphasis added] In my view Guardian misconstrues the chambers judge's comments when it contends he, in fact, found the policy was ambiguous. The chambers judge began his analysis of the policy's clause 5(c) with reference to Guardian's interpretation of the term “insured” in clause 5(c) as Kellogg and not McLeod. He states: “This interpretation causes some strain to the words and to the mind, but Guardian contends any ambiguity must resolve against Royal as draftsman of the clause”. This clearly is not finding of ambiguity. The chambers judge made the following observation about Royal's position: Royal maintains this interpretation is absurd. The plain meaning of the words indicates Kellogg is not the insured. If Kellogg was intended to be the insured, there would be no reference to dwelling. As see it, the major weakness of this simplistic approach is that this standard form of policy could be used for both corporate and individual customers. do not see this statement as acknowledging the provision is ambiguous. He continues: It is apparent that the arguable issue submission is off target. This Court is in as good position as any court will ever be to interpret the meaning of “Insured” in clause 5(c). The fact that the question is arguable should be conclusive. It would be rare application for directions which contain no arguable point. If the construction to be placed on “Insured” clearly favours Royal, there would be no sense in forcing Royal to defend and then recoup its costs in subsequent disposition of the issue. read this comment that there is an arguable point as simply statement of the obvious. It would be rare application for direction which does not contain an arguable point. But this does not mean necessarily there is substance to the argument. He further remarks; The critical question remains whether “Insured” in clause 5(c) includes the employee, or is restricted to Kellogg. Authorities have said consistently that the whole policy must be analysed when searching for the intended meaning of unclear words. Michael Parkinton et al., MacGillivray and Parkington on Insurance Law, 8th ed. (London: Sweet Maxwell, 1988) described the principle as follows at p. 448, para. 1091: Where there is doubt as to the meaning of clause or phrase, the whole of the policy should be examined in order to see what intention the parties appear to have had concerning the matters governed by the words in questions. This is simply statement of the law but is not finding of any ambiguity. The chambers judge then considers other provisions in the policy and in particular clauses 5(d), (e) and Endorsement No. A3 and comes to this conclusion: In the face of clauses 5(d), 5(e) and A3, all excluding coverage for automobiles owned by persons residing in the same dwelling as the insured, it would seem odd if the parties intended to reverse their thinking in clause 5(c). am satisfied the intention remained consistent throughout. This being so, conclude that “Insured” in clause 5(c) is not limited to Kellogg. The opposite construction would be manifestly contrary to the intention of the parties because it would have the effect of insuring, in this clause only, an automobile owned by person residing in the same premises as the insured. [emphasis mine]. Thus having embarked on a wide review of the policy the chambers judge concluded there was no ambiguity in the exclusionary provision. He made no finding of ambiguity and was simply responding in his analysis to Guardian's argument there was, in fact, ambiguity. He clearly came to the conclusion the Honda was not covered by the Royal policy and the duty to defend is not “so broad that it arises with respect to allegations which are clearly beyond the scope of the policy.” (See: Nichols, p. 808.). Guardian's contention the chambers judge erred by deciding the issue of indemnity is not valid. The chambers judge simply determined the Honda was not covered by the Royal policy. The courts have long recognized the commercial reasons for the exclusion of such family owned temporary substitute automobile. For example, the Supreme Court of Canada dealt with such substitute policy in Wawanesa Mutual Insurance Co. v. Bell and Bell, 1957 CanLII 16 (SCC), [1957] S.C.R. 581. The court acknowledged the exception was designed to prevent claims arising from common use of each others cars by members of family. Rand J. at p. 583 stated: In the case before us the reason for the exception of the substituted car where it is owned by person ""of the household"" of which the insured is member seems to be the tendency of and the opportunity afforded to the members of such group to make common use of their cars and thus limit the insurance taken out. In other ways more or less freedom in the common use of cars tends to be prejudicial to the insurance business, such as by creating favourable conditions for collusion on claims; and the exception against theft clearly regards the special opportunities furnished for that offence. [Emphasis mine]. further example is McBride v. Farmers Ins. Group 42 A.L.R. 4th 1139, decision out of the state of California where the court stated at pp.1143-1144 of its decision; There are compelling policy reasons for excluding from the definition of both ""nonowned automobile"" and ""substitute automobile"" car owned by member of the same household, not the least of which is to prevent members of family who own more that one car from using them interchangeably yet insuring only one such vehicle. (See Southern Farm Bur. Cas. Ins. Co. v. Williams (1976) 260 Ark. 659 [543 S.W.2d 467, 470].) Moreover, these exclusions prevent situation which might otherwise provide windfall double coverage to the insured. [Emphasis mine] Finally, Kellogg's argument, first raised on appeal, that there was no evidence before the chambers judge to show the McLeods lived in the same premises is without merit. The affidavit evidence indicates otherwise and the parties do not dispute that the McLeods lived in the same premises. The appeal is therefore dismissed with costs on double Column V. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of July, A.D. 1996. LANE J.A. WAKELING J.A. have had the opportunity of reading the judgment of my colleague Justice Lane and while agree with much that he has written, conclude the issue in this appeal is better approached from somewhat different angle and have therefore written this judgment. The facts are well outlined in his judgment and are only summarized here to the extent necessary to provide foundation for my comments. Kellogg Canada Inc. (Kellogg) owned fleet of automobiles for use by its employees and insured these automobiles through Royal Insurance Company of Canada (Royal). Kellogg also had general liability insurance policy with Guardian Insurance Company of Canada (Guardian) which provided coverage for Kellogg’s public liability which included liability incurred as result of the operation of any automobile by one of its employees for which coverage was not provided by Royal’s policy. On November 19, 1993 an employee of Kellogg named McLeod intended to drive to work from his home in one of Kellogg’s automobiles, as he would normally do, but found one of its tires was partially deflated. Rather than change the tire he took his wife’s automobile and proceeded to drive away on Kellogg’s business. That same day he was involved in an accident in which pedestrian was seriously injured. As result of the accident, the injured party sued Kellogg, McLeod and McLeod’s wife who was the owner of the automobile involved in the accident. The question that arises is whether the Royal policy provides coverage when McLeod was not driving one of Kelloggs’ automobiles. It is accepted that if there was no coverage under the Royal policy, Guardian’s policy would fill the void and provide that coverage. Guardian is now facing the responsibility of providing the defence to this action because Royal has denied that its policy provides any coverage. As consequence, Guardian has brought this application under the following section of The Saskatchewan Insurance Act, R.S.S. 1978 c. S-26 for ruling that Royal should be directed to provide, or at least participate in, the defence of this action: 209(1) Where person is insured under more than one contract evidenced by motor vehicle liability policy, whether the insurance is first loss insurance or excess, and question arises under clause (b) of section 199 between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any insurer may apply to the court and the court shall give such directions as may appear proper with respect to the performance of the obligation. (3) An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies.. This application was duly considered by Halvorson J. who concluded that Royal’s policy did not provide coverage and dismissed Guardian’s application. Guardian has appealed that decision on several grounds but the basic issues are: (1) Did the chamber judge fail to recognize that Guardian need only show that it was arguable that Royal’s policy provide coverage in order to succeed? (2) Was Royal’s policy correctly interpreted in accordance with that limited or restricted approach to the question of whether coverage was provided by their policy? The obvious problem that arises in an application of this nature is that it seems to almost inevitably reduce itself to judicial interpretation of the policy in question when the ultimate determination of liability under the policy is not what the section is designed to accomplish. Subsection 209(3) makes it clear that the order made by Halvorson J. and subsequently by this Court is not determinative of the rights and obligations of the parties under these policies. The recognition of this anomalous situation does nothing to avoid the need to make detailed analysis of the coverage provided by the Royal policy in order to make an assessment of whether Royal must participate in the defence of this action. The nature of the anomaly have described does however support the necessity of deciding how far the chamber judge should go in determining whether there exists sufficient probability of coverage under policy to warrant requiring an insurer to defend an action. At one end of the spectrum where there is no coverage, an insurer should obviously not be expected to provide defence. At the other end of the spectrum where the policy does provide coverage, an insurer should not be able to avoid defending claim against its insured. The middle ground between these extremes has now been judicially considered frequently enough that there has developed an acceptance of the general concept that the duty to defend is broader than the duty to indemnify. That is, to order an insurer to defend an action chamber judge need be less sure the policy provides coverage than would be the case for an actual determination of liability under the policy. The most recent support for this proposition has been provided by McLachlin J. on behalf of the Court in Nicols v. American Home Assurance Company, [1991] S.C.R. 801 at 810-811: At the same time, it is not necessary to prove that the obligation to indemnify will in fact arise in order to trigger the duty to defend. The mere possibility that claim within the policy may succeed suffices. In this sense, as noted earlier, the duty to defend is broader than the duty to indemnify. O’Sullivan J.A. wrote in Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 1976 CanLII 1099 (MB CA), 67 D.L.R. (3d) 521 (Man. C.A.), at p. 524: Furthermore, the duty to indemnify against the costs of an action and to defend does not depend on the judgment obtained in the action. The existence of the duty to defend depends on the nature of the claim made, not on the judgment that results from the claim. The duty to defend is normally much broader than the duty to indemnify against judgment. {Emphasis added.] In the case it was unclear whether the insurer might be liable to indemnify under the policy, so the duty to defend was held to apply. In the court’s view it would have been unjust for the insurers to be able to assert that “the claim is probably groundless, or will probably end up falling outside of the indemnity coverage. Since we have no proof that we own an indemnity in this case, we take the position that we owe no duty to defend”. The Nicols case comes closest to giving instruction on how to deal with this middle ground when it states at p. 812: conclude that considerations related to insurance law and practice, as well as the authorities, overwhelmingly support the view that the duty to defend should, unless the contract of insurance indicates otherwise, be confined to the defence of claims which may be argued to fall under the policy. That said, the widest latitude should be given to the allegations in the pleadings to determining whether they raise claim within the policy. It is this quotation which supports the appellant’s contention that it need only be arguable that the Royal policy provides coverage. While that statement is technically correct, it must be tempered by the practical consideration of the nature and strength of the argument presented, bearing in mind the imagination and ingenuity of counsel can almost always present an argument supporting virtually untenable position. The Nicols case does not indicate how one should decide how strong the argument must be before there will be an obligation to defend, but there is some instruction available from the example that was set. That example starts with the affirmation of the obligation to make determination of whether the pleadings have indicated claim for which coverage has been provided under the policy. It was put in this way by McLachlin J. at p. 811: Other Canadian authority overwhelmingly supports the view that normally the duty to defend arises only with respect to claims, which if proven, could fall within the scope of coverage provided by the policy: see Dobish v. Garies (1985), 1985 CanLII 1338 (AB QB), 15 C.C.L.I. 69 (Alta. Q.B.) Thames Steel Construction Ltd. v. Northern Assurance Co., [1989] I.L.R. l-2399 (Ont. C.A.); Vancouver General Hospital v. Scottish York Insurance Co. (1987), 1987 CanLII 2601 (BC SC), 15 B.C.L.R. (2d) 178 (B.C.S.C.) The Nicols case obviously has different factual foundation which makes it inappropriate to apply it directly to this case. Nonetheless having acknowledged that, it does have application in the sense that it is obvious the Court in the Nicols case was faced with question involving the interpretation of an insurance contract which was sufficiently ambiguous to have been the object of different judicial interpretations. The Supreme Court clearly felt the need and therefore the obligation to conduct review of the terms of the policy to see if it provided coverage for the claim that had been asserted in the pleadings and concluded there was not coverage and consequently no duty to defend. This then leads to the conclusion that there must in this case be review of the Royal policy to assess the strength of the argument that it has provided coverage for the claim that the pleadings allege. Before proceeding to more detailed examination of the Royal policy, it is to be recognized that there is factual element in this question which cannot be addressed on this application. For instance, there might be need to decide whether partially deflated tire constitutes `breakdown’ within the meaning of the policy. If this matter goes to trial, the eventual determination of that issue, if it is considered relevant, will have to made at that time when the availability of more facts will permit more accurate assessment of the situation. In addition, for the purposes of this judgment, am assuming that the automobile McLeod was driving was owned by someone living in the same dwelling premises as Macleod. If that is not an accepted fact, as have assumed it to be, it is matter which will be clarified at trial. now turn to review of the provisions of the Royal policy as starting point, the policy describes the coverage in this way: It is hereby understood and agreed that: (a) The Policy shall provide insurance, except in those Canadian jurisdictions where prohibited by legislation, with respect to all automobiles: (i) Owned by and licensed in the name of the Insured and .... [Emphasis added] The Insured referred to here must mean Kellogg as the purpose of the policy was to provide coverage to Kellogg’s automobiles which would be those licensed in the name of Kellogg. The more specific nature of the coverage is found in portion of Section of the policy which reads as follows: The Insurer agrees to indemnify the Insured and, in the same manner and to the same extent as if named herein as the Insured, every other person who with his consent personally drives the automobile, or personally operates any part thereof, against the liability imposed by law upon the Insured or upon any such other person for loss or damage arising from the ownership, use or operation of the automobile and resulting from ... This extends coverage to liability incurred by others who drove Kellogg’s vehicles with its consent. The pronoun `his’ is used in this paragraph when “its’” should be used as the reference is to Kellogg. find this inaccurate use of the possessive pronoun to be of no consequence. It probably arises through the use of printed standard form and certainly does not support concern that the identity of the entity referred to as Insured has somehow been made uncertain. take it as clear the policy insured Kellogg as the named insured and its employees as the unnamed insured when they drive one of Kellogg’s automobiles with its consent. The Royal policy therefore provided coverage had the employee McLeod been driving one of Kellogg’s automobiles rather than the substitute vehicle owned by his wife. Since McLeod was not driving one of Kellogg’s automobiles, the question then centres on the interpretation of clause 5(c) of the policy under the heading dealing with the coverage provided when temporary substitute vehicle is being utilized. The provision in question is as follows: 5(c) Temporary Substitute Automobile an automobile not owned by the Insured, nor by any person or persons residing in the same dwelling premises as the Insured, while temporarily used as the substitute for the described automobile which is not in use by any person insured by this policy, because of its breakdown, repair, servicing, loss, destruction or sale...” The issue that arises from consideration of paragraph 5(c) involves determination of whether or not the word Insured means Kellogg as the named insured, McLeod as the unnamed insured or both of them. There are only these three alternatives available when deciding on the interpretation to be given this section, given the assumption that Insured has the same meaning in the two places where it is used in this paragraph, an assumption readily make. An analysis of what follows when each of these alternatives is considered is useful. The first alternative would have `Insured’ refer only to Kellogg which would have paragraph 5(c) read as follows: Temporary Substitute Automobile an automobile not owned by Kellogg, nor by any person or persons residing in the same dwelling premises as Kellogg... The absurdity this alternative leads to is obvious and indicates the need to either reject the idea that Insured refers only to Kellogg or to reject the reference to living in the same dwelling house. am reluctant to reject the reference to living in the same dwelling house because that seems to be fairly standard reference in policies of this nature Indeed, another policy with this same reference found its way to the Supreme Court of Canada in The Wawanesa Mutual Insurance Company vs. Bell, 1957 CanLII 16 (SCC), [1957] S.C.R. 581. There is also similar reference to be found in paragraphs 5(d) and (e) of this policy so that one cannot conclude it is meaningless or idle comment which was not intended to have any useful application. Since cannot readily ignore the reference to living in the same dwelling house, must assume Insured in this case does not relate only to Kellogg. am supported in this view by my recognition that if it was intended that Insured refer only to the named insured Kellogg, it would mean that the coverage under 5(c), would not be the same for corporate insured as for personal insured. That difference in coverage would be very hard to justify. Surely the extent of the coverage provided for substitute vehicle should not depend on whether the insured is an individual or corporation. The second alternative would have the Insured refer to both Kellogg as the named insured and McLeod as the unnamed insured. The relevant portion of 5(c) would then read as follows: Temporary Substitute Automobile an automobile not owned by Kellogg or McLeod, nor by any person or persons residing in the same dwelling premises as Kellogg or McLeod. ... Obviously the absurdity which was apparent in the first alterative has been eliminated or at the very least greatly diminished. Firstly, the automobile would not be one owned by Kellogg or there would not be substitute vehicle involved. The automobile must also not be owned by McLeod as otherwise the restriction relating to an auto owned by anyone living in the same dwelling house would be meaningless. If the intention is that anyone an employee lives with cannot rely on the protection this policy provides, then neither can the employee. There is nothing irrational which arises from the assumption the first reference to Insured refers to both Kellogg and McLeod. The second reference to Insured can only apply to McLeod since once again Kellogg cannot be said to live in the same dwelling house with anyone. That is, in my view, minor concern so long as it has reasonable application to either Kellogg or McLeod. The fact this reference to living in the same dwelling house can and does apply to McLeod makes it impossible to suggest it should be viewed as surplusage and of no application at all. As referred to earlier, the inclusion of Kellogg is satisfactorily explained on the basis that this is printed form which was meant to have general application to both corporations and individuals and it does so when both Kellogg as corporate entity and McLeod as an individual are taken to be included in the second reference to Insured. The third alternative would have `Insured’ mean only McLeod as the unnamed insured and in that case, the same relevant portion of s.5(c) would read as follows: Temporary Substitute Automobile an automobile not owned by McLeod nor by any person or persons residing in the same dwelling premises as McLeod... There is no difficulty in reading the provision in this fashion. In that event the provision indicates substitute automobile cannot be owned by McLeod or by anyone living in the same dwelling house as McLeod which indicates the automobile driven by McLeod was not covered by the Royal policy. This alternative is obviously not supported by Guardian and for my part am left to wonder why Insured here would mean only Macleod when there is reference later on in the same paragraph to “any person insured by this policy” which is clearly reference to McLeod. The inconsistency in the terminology is not easily explained. My view of these alternatives causes me to reject the first and third alternatives as leading to unacceptable results either in the nature of an absurdity or to substantial and unacceptable inconsistency. take it to be clear that Royal’s policy intended that if substitute automobile was involved, it would also be insured under this policy so long as it was not owned by an employee or by some one living in the same dwelling house as that employee. What the rationale for that restriction may be am unable to say, but perhaps it is no more complex than statement that if an employee wishes to use his own or family member’s automobile as substitute for the employer’s automobile, that employee must be prepared to rely on the insurance the owner has obtained for that automobile and not on the insurance provided by the employer. Having given the issue this consideration conclude that it is only the first alternative that could support the contention that Royal’s policy provides coverage and cannot accept that it represents strong enough argument to provide basis for the order sought by Guardian. am not prepared to accept that this policy should be interpreted as though the restriction it contains on what automobile can be used as temporary substitute should be ignored. Before concluding, add that am largely in agreement with the view of this matter taken by the chamber judge. would have rested my position on that foundation had not done certain amount of analysis of my own to establish to my satisfaction the nature of the coverage the Royal policy provided. Having done that, it seems useful to add my views as expressed in this judgment. In the result, the appeal is dismissed with costs on double column V. DATED at the City of Regina. in the Province of Saskatchewan, this 9th day of July, A.D. 1996. WAKELING J.A. concur JACKSON J.A.","Guardian was the general liability insurer for Kellogg. Royal was the primary insurer as holder of Kellogg's blanket fleet coverage. Kellogg's employee was involved in a motor vehicle accident while on company business but was driving his wife's vehicle at the time of the accident. Royal denied coverage and refused to defend on the basis of an exclusionary provision regarding the use of substitute automobiles. It was held at trial that Royal was not obligated to participate. HELD: 1)The case law reveals some inconsistencies with respect to the relationship between the duty to defend and the coverage provided by the policy. Where the policy clearly does not provide coverage, the insurer had no duty to defend. Where a policy only provides coverage for some allegations the insurer is only obligated to defend those allegations which may trigger the obligation to indemnify. When a policy is ambiguous some courts have adopted Thames and have stated the mere possibility that the policy may provide coverage is sufficient to oblige the insurer to defend. 2)Section 209 provides no guidelines as to the scope of the inquiry the judge may engage in. The chamber judge did not define the scope of his inquiry and stated that the standard suggestion that Guardian must raise an arguable point was 'off target'. To determine whether an insurer has the obligation to defend a chamber judge must examine the coverage provided by the policy. The judge made no finding of ambiguity in the exclusionary provision. He simply determined the Honda was not covered by the Royal policy and did not decide the issue of indemnity. 3)The affidavit evidence indicated that the parties lived in the same premises thus that argument was without merit. CONCURRING JUDGMENT: The appeal was dismissed for different reasons.  1)There has been an acceptance of the general concept that the duty to defend is broader than the duty to indemnify. To order an insurer to defend a chamber judge need be less sure the policy provides coverage than would be the case for an actual determination of liability under the policy. 2)There was a factual element which could not be determined on this application such as whether a partially deflated tire constitutes a breakdown within the meaning of the policy and whether the automobile the employee was driving was owned by someone living in the same dwelling. 3)The question centered around the words used in clause 5 of the policy and who it referred to. There were inconsistencies in terminology. The policy should not be interpreted as though the restriction it contains on what automobile can be used as a temporary substitute should be ignored.",b_1996canlii5028.txt
33,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 156 Date: 20081203 Between: Docket: 1445 Her Majesty the Queen and Christopher Vern Jobb Coram: Richards, Smith and Hunter JJ.A. Counsel: W. Dean Sinclair for the Crown Brenda R. Freriks for the Respondent Appeal: From: 2007 SKPC 129 (CanLII) Heard: October 20, 2008 Disposition: Appeal allowed Written Reasons: December 3, 2008 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Hunter Smith J.A. [1] This is an appeal by the Crown from an order of a Provincial Court Judge declaring that the respondent is unfit to stand trial. The Crown submits that the trial judge misapprehended the evidence, misstated the evidence, applied the wrong legal test for fitness, applied the wrong burden of proof and made finding that was unreasonable and not supported by the evidence. [2] The respondent was charged with total of 29 offences committed between March 25, 2006 and August 26, 2007. Most of these were summary conviction offences, in general arising out of multiple failures to comply with various bail conditions including: breach of curfew (five charges), failing to attend school (two charges), failing to reside in designated residence, failing to not possess, keep or consume alcohol (four charges) and failing to keep the peace and be of good behaviour (four charges). He was also charged by information with various offences in relation to drinking, driving, leaving the scene of an accident and possession of stolen vehicle and two charges of obstruction of peace officer by providing false name. The Crown is appealing the finding of unfitness to stand trial on the summary conviction offences to the Court of Queen’s Bench. That appeal has not yet been heard. [3] In addition, the respondent was charged with two indictable offences: two thefts of property of value not exceeding $5,000 arising out of two separate incidents in March and September, 2006. The appeal to this Court relates to the finding that the respondent is unfit to stand trial in relation to these offences. [4] The respondent is 22 years old. He suffers from fetal alcohol spectrum disorder, attention deficit disorder and substance abuse/dependence disorder. He has been diagnosed as mildly mentally retarded. One assessment puts him at grade seven level for reading single words and spelling (a level above the level predicted by his overall IQ) and at grade three to four level in arithmetic. He has deficits in both visual and verbal memory that are greater than one would predict on the basis of his IQ alone. He is easily led. He is considered incapable of handling the responsibilities that would enable him to live independently and it is considered he will always need protected living environment and sheltered employment. [5] Mr. Jobb spent most of his childhood in foster care, as his mother suffered from substance abuse. At the age of 16 he began residing in the foster home of Fran Werezak of Saskatoon, who has provided significant support for him. Unfortunately, as he has grown up, Mr. Jobb has consistently run away from the protected environments sought for him and has begun to abuse alcohol and drugs. [6] He was charged with some property offences in 2002 and, at that time, was found unfit to stand trial. As result, he was, at the time of the current charges, still under the supervision of the Provincial Review Board. [7] The parties filed an agreed statement of facts which summarized the facts of all the offences. The account that follows is intended as summary of these allegations, as set out in the various informations. Mr. Jobb has not, of course, been convicted in relation to any of these allegations, and this summary is not intended to displace the presumption of innocence to which he remains entitled. It does, however, represent the information before the Court in relation to the relevant allegations. [8] The first theft is alleged to have taken place when Mr. Jobb was helping woman move her personal belongings. He picked up the woman’s purse, went into the bathroom and removed $21 in cash and cell phone, and then left the house with the stolen items. He was arrested approximately three weeks later. He falsely identified himself to Saskatoon Police officer before he was arrested. At this time, the respondent was remanded to the Saskatchewan Hospital for an assessment. [9] At the request of the Review Board, Dr. O. Obikoya, psychiatrist prepared report, dated, June 26, 2006 for the Court. Dr. Obikoya concluded that Mr. Jobb was fit to stand trial. He diagnosed him as suffering from dependence disorder in relation to marihuana use and mild mental retardation (marked “query” in this report), and noted that he had no delusions and no perceptual disturbances, was cognitively fully alert and conscious and his attention, concentration, short term and long term memory were all normal. He described Mr. Jobb as answering questions relevantly and spontaneously, albeit hesitantly and said that his speech was slow and low tone, but normal in volume. He concluded that Mr. Jobb was fit to stand trial because Mr. Jobb was able to tell him the nature and circumstances of the charges against him (then, theft and obstruction), and expressed regret. He was able to describe the functions of the court and its key players and, in Dr. Obikoya’s opinion, could instruct his lawyer and defend himself. [10] Mr. Jobb was then released on bail. He repeatedly violated the bail order. He was arrested for shoplifting merchandise from Safeway store and failed to appear in court in September, 2006. He was then arrested on September 26, 2006, in relation to complaint about person who appeared to be stealing items from cars. He admitted stealing CD case and key chain from car. He was under the influence of alcohol. He was charged with three counts of breaching bail conditions and one count of theft. [11] He was again released from custody. In November, 2006, he violated bail by running away from school and failing to abide by curfew. He was arrested on December 15, at which time he was carrying an open bottle of beer. He gave false name and date of birth to the police officer. [12] After release, in January, 2007, he was found by the police in an intoxicated condition. He was charged with violating bail condition and released again. In February he was arrested, and then released, for violating his curfew. In April, he violated condition requiring him to live in designated residence, but was again released. [13] At this time, the Court ordered new psychiatric assessment, by Dr. Robin Menzies, psychiatrist. Dr. Menzies’ report was dated July 25, 2007. He was of the opinion that Mr. Jobb was not fit to stand trial. As the opinion of Dr. Menzies is central to the judgment from which the appeal is taken, will return to it in more detail below. [14] In July and early August Mr. Jobb again violated curfew and was found by the police in highly intoxicated condition, resulting in two new charges of violation of bail conditions. He was released from custody. [15] On August 26, 2007, he drove stolen automobile while impaired. He hit two other vehicles and then abandoned the stolen vehicle and fled the scene on foot. When he was arrested, his blood alcohol level was measured to be 110 and 100 mgs. per cent. He remained in custody until the fitness hearing on November 1, 2007. [16] At the fitness hearing, the reports of both Dr. Obikoya and Dr. Menzies were filed as exhibits. Counsel for Mr. Jobb called Dr. Menzies as witness. The Crown did not call Dr. Obikoya to testify. The hearing judge relied primarily on the report and testimony of Dr. Menzies, noting that the report of Dr. Obikoya had been prepared year earlier and that there were aspects of it that might have been clarified had he testified. In particular, she noted that, while Dr. Menzies advised that Mr. Jobb had been diagnosed with fetal alcohol spectrum disorder and attention deficit disorder, Dr. Obikoya had not mentioned either disorder in his report. Additionally, Dr. Obikoya’s report of Mr. Jobb’s understanding of the charges against him was prepared when there were only two charges of relatively recent vintage. Dr. Obikoya’s description of Mr. Jobb’s understanding of the trial process and relevant participants revealed confusion of names, on the part of Mr. Jobb, between his previous lawyer and previous judge, raising the question of whether he confused only the names of these individuals or their roles in the trial process. Finally, Dr. Obikoya referred to some other psychiatric evaluations without providing any elaboration. [17] In the result, the hearing judge accepted the opinion of Dr. Menzies. It is, in large part, her interpretation and reliance on this report that is at issue before us. The applicable law [18] These provisions of the Criminal Code are governing: s. 2… “unfit to stand trial” means unable on account of mental disorder to conduct defence at any stage of the proceedings before verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings (b) understand the possible consequences of the proceedings, or (c) communicate with counsel; 672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial. 672.23 (1) Where the court has reasonable grounds, at any state of the proceedings before verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on the application of the accused or the prosecutor, that the issue of fitness of the accused be tried. (2) An accused or prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial. [19] These provisions make it clear that fitness to stand trial is presumed and that in this case the burden was on the accused to prove, on the balance of probabilities, that he was unfit to stand trial. [20] The policy reasons behind this presumption are described by the Alberta Court of Appeal in R. v. C. (L.S.), 2003 ABCA 105 (CanLII); 13 C.R. (6th) 390 as follows: There are strong interests, both public and personal, in an accused being fit to proceed to trial. The public interest is in ensuring that persons who are accused of committing crimes are brought to justice. The personal interests of the accused are twofold. First, person accused of crime has right to his “day in court” and to make full answer and defence to the charge. Second, person who is declared unfit to stand trial risks being hospitalized indefinitely until considered “fit”. Depending upon the extent of the person’s condition, such incarceration could theoretically be longer than any sentence the accused might have received if tried and convicted. (At para. 12.) [21] In keeping with this policy, the courts have applied test of “limited cognitive capacity” for determining fitness. This test was first set out by the Ontario Court of Appeal in R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551 and was adopted by the Supreme Court of Canada in R. v. Whittle, 1994 CanLII 55 (SCC), [1994] S.C.R. 914. The Court in Taylor made it clear that the limited cognitive capacity test as it pertains to the requirement of an ability to communicate with counsel requires only that an accused be capable of recounting the facts of the alleged crimes. Limited cognitive capacity does not require analytic ability or, indeed, the need for the accused to appreciate his own best interest. In short, these authorities establish very low threshold for fitness to stand trial in keeping with the policy objectives of the Criminal Code, and, in particular, with the right of the accused to make full answer and defence to the allegations with which he is charged. [22] In R. v. Taylor, while psychiatric examination found that the appellant, former lawyer, was “technically fit” to stand trial in the sense that he was cognizantly aware of the charges against him, the officers of the court, the possible pleas available to him and that he was articulate and aware of the possible consequences of his trial, the nature of oath and the meaning of perjury, he was diagnosed as suffering from paranoid schizophrenia and thus unable to distinguish reality from fantasy. The psychiatrist concluded that he would therefore be unable to instruct counsel in manner that would be in his best interests and that he would, in fact, resist the assistance of counsel altogether. [23] It was conceded by the Crown that the appellant met the first two criteria found in subsections (a) and (b) of the definition in that he fully understood the nature of the proceedings and its possible consequences. Thus, the only question was the test to be applied in determining the accused’s ability to communicate with counsel. It was argued that the appellant could not instruct counsel because of his inability to reason on higher cognitive levels, because of his lack of abstraction, and because of being “locked in his delusional system.” [24] Relying on R. v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 32 C.C.C. (2d) 129 (Ont. C.A.) and R. v. Trecroce (1980), 1980 CanLII 2854 (ON CA), 55 C.C.C. (2d) 202 (Ont. C.A.), the Court held that the trial judge had erred in adopting test that required the accused to be capable of making rational decisions beneficial to him in his relationship with counsel. These passages from the judgment of the Court by Lacourciere J.A. are instructive: 48 In R. v. Trecroce, supra, during an appeal against conviction for second degree murder, the accused discharged his counsel and the question arose whether the appellant was competent to do so and to appoint other counsel. Martin J.A., delivering the judgment of the court, stated at p. 216: On the resumption of the hearing both Dr. Fleming and Dr. Coulthard gave evidence on the issue of the appellant's fitness to instruct counsel. They were in general agreement that the appellant suffers from mental disorder. They were of the opinion, however, that he understood the nature of the proceedings and the functions of the persons involved in them. He knew what the issues were and the possible outcome of the proceedings. The appellant, in their opinion, was able to follow the evidence generally, although he might misinterpret it. They were of the opinion that the appellant was capable of instructing counsel although he might disagree with counsel as to how the case should be conducted, and might not act with good judgment. The appellant did not want to be seen as mentally ill, and was opposed to the issue of insanity being considered by the Court. We concluded on the basis of the evidence of Dr. Fleming and Dr. Coulthard that the appellant was competent to instruct counsel: see Reference Re R. v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 32 C.C.C. (2d) 129, 14 O.R. (2d) 212. 49 The respondent concedes that the ""limited cognitive capacity"" test is correct in Canadian criminal law. However, the respondent submits that the law should make allowances for cases such as the present where the accused's mental disorder is so potent and extensive that it cannot be said that the person is capable of following the evidence, communicating rationally with counsel, or giving evidence which is responsive to the case for the Crown. Therefore, the respondent submits that the trial judge was correct in distinguishing R. v. Trecroce, supra, on the basis that the accused in the case at bar suffered from delusions so pervasive and irrational that he was ""unable to perceive his own best interests and how those interests should be addressed in the course of trial"". 50 To determine whether the test should be modified as suggested by the respondent, one must remain cognizant of the rationale for the fitness rules in the first place. In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in meaningful way. At the same time, one must consider that principles of fundamental justice require that trial come to final determination without undue delay. The adoption of too high threshold for fitness will result in an increased number of cases in which the accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to come to completion. 51 In addition, adopting high threshold of fitness, including ""best interests"" component, derogates from the fundamental principle that an accused is entitled to choose his own defence and to present it as he chooses. In R. v. Swain, supra at p. 970 S.C.R., p. 504 C.C.C., Lamer C.J.C., for the majority, stressed the importance of the accused's s. right to liberty which allows him to control his own defence. An accused who has not been found unfit to stand trial must be permitted to conduct his own defence, even if this means that the accused may act to his own detriment in doing so. The autonomy of the accused in the adversarial system requires that the accused should be able to make such fundamental decisions and assume the risks involved. 52 The ""limited cognitive capacity"" test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have trial within reasonable time. 53 In asking the court to require that the accused be able to act in his own best interests, the respondent is asking this court to adopt the higher threshold ""analytic capacity"" test for determining the accused's fitness to stand trial. This test has clearly been rejected by the courts. 54 Having rejected higher threshold for determining the accused's ability to instruct counsel, the real question to be determined in this case is whether the learned trial judge erred in holding that, although the appellant can communicate with counsel to the extent that he can speak to counsel, and do so in an articulate manner, however ... his delusions are so pervasive and irrational that he is ... not merely capable of disagreeing with counsel with whom he might instruct as to how the case should be conducted, but unable to perceive his own best interests and how those interests should be addressed in the conduct of trial. 55 In my opinion, the learned trial judge erred in adopting the ""analytic capacity"" test which establishes too high threshold for finding the accused fit to stand trial by requiring that the accused be capable of making rational decisions beneficial to him. (pp. 566-67) [25] R. v. Whittle concerned the admissibility of statements to the police by an accused person who was alleged to suffer from mental incapacity, and whether he had sufficient mental capacity to effectively waive his right to counsel. Sopinka J. derived the applicable test from the test for fitness to stand trial, adopting the interpretation of that test in Taylor. Particularly relevant to the issues before us are these passages, in which Sopinka J. pointed out that the threshold for fitness to stand trial is lower than that for criminal responsibility: The significance of this issue is placed in context by considering the regime in place for the trial of persons alleged to suffer from mental disability. By virtue of s. 16 of the Criminal Code, persons suffering disease of the mind in the circumstances defined in that section are exempted from criminal liability and punishment. The section embodies the policy of the law that such persons are sick as opposed to blameworthy and should be treated rather than punished. See R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] S.C.R. 1303, at p. 1336. These persons are not, however, exempt from being tried. Part XX.1 of the Criminal Code contains detailed provisions providing for mental assessments by physicians and for determination of the fitness of persons suffering from mental disorders to stand trial. Section 672.23 provides that where, at any stage of the proceedings, the court believes on reasonable grounds that the accused is unfit to stand trial, it may direct the trial of that issue. The application can be made on the court's own motion or by the accused or the prosecutor. Many accused persons who are found not guilty by reason of mental disorder are fit to stand trial. The fact that an accused is not criminally responsible within the meaning of s. 16 does not mean that he or she is unfit to stand trial. If the contrary were true there would be little purpose in providing for the plea authorized by s. 16. Most persons who suffered from the mental disorder defined in the section would be exempted from trial and would not get to plead until they had recovered subsequent to the date of the offence. [Italics added.] The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated on the existence of mental disorder and focuses on the ability to instruct counsel and conduct defence. That test which was developed under the common law is now codified in s. of the Code …It requires limited cognitive capacity to understand the process and to communicate with counsel. In R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551, the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred in concluding that the accused must be capable of making rational decisions beneficial to him. At page 567, Lacourcière J.A., on behalf of the court, stated: The ""limited cognitive capacity"" test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have trial within reasonable time. Accordingly, provided the accused possesses this limited capacity, it is not prerequisite that he or she be capable of exercising analytical reasoning in making choice to accept the advice of counsel or in coming to decision that best serves her interests. (at pp. 932-34) [26] The limited cognitive capacity test for fitness to stand trial was also confirmed in this Court in R. v. Peepeetch, 2003 SKCA 76 (CanLII); (2004), 177 C.C.C. (3d) 37. The evidence of Dr. Menzies [27] In his written report Dr. Menzies reported that Mr. Jobb was able to tell him that the charges he faced were “breaches and thefts.” He said that the theft charges involved taking satellite radio from resident at care home, cell phone, CD case and something from Safeway. He said he was drunk on each of these occasions. When asked about the obstruction charge he replied that he was probably drunk at the time. He appreciated that he faced charges and could face penalty if convicted. He explained that guilty plea meant that “you did it, you know you did it” and not guilty plea meant “you didn’t do it.” He said that the judge “decides what to do to you” and that his lawyer “defends” him. When asked to elaborate he replied “She plans out my work.” He said of the prosecutor, “They are the worst people to have…they try to keep you in there [jail].” He said he planned to plead guilty to the theft charges and would discuss the others with his lawyer, whom he properly named. [28] The written report concluded: Jobb’s intellectual and cognitive deficiencies, inter alia, impact on his fitness to stand trial. While he seems to appreciate the meaning of plea and possesses rudimentary knowledge of the role of the officers of the court, probably thanks to repeated coaching by Fran Werzak, his ability to follow the proceedings is less clear. The fact that he maintains he can follow and understand the proceedings may speak more for his wish to be regarded as normal than it does for his ability to concentrate and comprehend the process. cannot be satisfied that he can follow the proceedings and accordingly consider that he is unfit to stand trial. [29] Dr. Menzies’ testimony at trial elaborated on this opinion. It was clear that, in his opinion, the principal problem posed by Mr. Jobb’s cognitive limitations, insofar as his fitness to stand trial was concerned, was related to his attention deficit disorder—his inability to concentrate and his extreme distractibility. It was on this basis that Dr. Menzies concluded that he was uncertain that Mr. Jobb would be able to “follow the proceedings” sufficiently to instruct counsel. [30] Dr. Menzies frankly and fairly conceded that he was not sure of the legal test for ability to instruct counsel. (Transcript, p. 18, ll. 21-25) These passages from his testimony fairly represent his opinion on this important point. The one of the areas that that find is more difficult to reach the determination on is there is the individual’s ability to instruct counsel, because I’m not sure what the official definition is, but suspect it’s it’s not it dynamic process that the individual’s in court listening to what’s being said. During break or during the proceedings the individual may want to talk to counsel and say add some comments or whatever. And think in that area is where he likely is compromised because of his mental disorders. That it’s not clear how much of what’s going on he’s taking in, and therefore how much part of the process he is. Most of us have the choice whether we want to tune in or tune out, but think someone like Christopher, mean, he still has that choice, but even if he chooses to tune in his capabilities are limited and what he gets out of tuning in is probably well, is obviously lot less than the next person. So that’s where see the the big problem lying. [Transcript p. 16, l. 21 p. 17, l. 15] Dr. Menzies, is it your are you of the opinion that Christopher would be able to communicate with his lawyer, his counsel and adequately instruct them? think it’s question of degree. mean, there’s there’s no doubt he can communicate, he can think his his recollection of things isn’t terribly strong, so depending when when it is or what event he’s talking about, when it happened, whether it was last week or year ago, so think basically he can communicate, but it’s question of what quality of instruction. Because if he’s not fully there for reasons that aren’t his fault, during the process think that’s the the area where he he falls down and where it’s he’s not, in my opinion, fit to stand trial. [Transcript p. 19, l. 23 p. 20, l. 11] Thank you, Dr. Menzies. Another area I’d like you to comment upon is your opinion as to Christopher’s ability to give assistance to his counsel, in in legal proceedings. For example, if if trial were to happen and the normal trial process then ensues, what would Christopher’s ability be to assist counsel in that process? Well, don’t think he would have absolutely no ability. think he would certainly have some ability, but it would be not the degree of ability that somebody who had an IQ of hundred, say, was able to provide. think he has for instance if talked about the charges he faced, he was very vague and, you know, talked about the numbers, he said well, too many. And put it all down to being intoxicated on either drugs or alcohol. Sort of vague stuff, but mean, think as say, with you put the police report in front of him and say, well, does this sound like what happened and and this sort of thing? It would just be longer process and don’t think you can take for granted that just because he said, yeah, know that, that that necessarily is the case. [p. 23, l. 24 p. 24, l. 17] Thank you. Getting back to some direct questions in terms of Christopher’s ability to deal with the court process is that would you be able to offer an opinion as to Christopher’s ability to be examined by prosecutor or myself or by myself, cross-examination and those sorts of things? Well, he could certainly be examined. And as say, think if his deficiencies, if you like, are taken into consideration in terms of the sort of questions or the time he’s given to to respond or whether he understands what he you know, what the question is, then certainly he can he can do those things to to some degree. guess the issue is the degree of these things, you know. He’s obviously not he can communicate, he can share joke, he can remember things, he can come up with original thought, but he’s just he’s got problems which make all those areas more difficult for him to to deal with. [Transcript p. 28, l. 11 p. 29, l. 3] Right. Well, in terms of conceptualizing these these concepts, Dr. Menzies, would it be fair to say that Christopher would be viewing the truth and lies, good and bad, black and white, much more specifically than somebody without his particular deficits? Well, think someone like Christopher, there may be sort of less less grey area there. But he he knows the difference between telling lie and telling the truth and what’s right and what’s wrong. But it may be more of black and white thing for him than it would be the various nuances of that may may escape him. [Transcript p. 32, l. 20 p. 33, l. 5] Okay. So specifically as to your concern as to instructing counsel, do you think there’s some component analysis that Mr. Jobb is not able to do then in that situation? think his his analytical abilities are compromised. You see, in way it may be presumptuous of me to bring into question his ability to instruct counsel because counsel could say, well, I’ve talked with him and can. So, you know and would say, that that’s fine, you know, it’s just that I’m putting things into context here and saying that, you know, if if counsel agrees, and say, you know, can’t it’s not working, we’re not understanding each other properly, then I’ve given the possible explanation for that. But wouldn’t be saying just because think it might be problem if counsel says, well, actually we we got on pretty well, we you know, feel quite comfortable. think, well, that’s fine, because this isn’t a, you know, black and white thing. It’s obviously grey area. [Transcript p. 56, l. 12 p. 57, l. 6] abilities. But he can as give you the examples as to the dates of some of those offences, he can certainly recount some element of the facts? Certainly. And would you say that had he been pressed for details he might have in fact, been able to provide greater details? Yeah. That wasn’t the focus of your interview of him? No, it was more the kind of process, you know, because think lot of individuals don’t know the details of what they’re charged with, especially if it was year ago and two years ago. And think you made comment that his and it’s in the report, that his response to your question about the charges was too much or too many? Yeah. It seemed bit of an odd response? Yeah. Well, bit unusual. If told you there was 27 offences before the Court, would that would that response seem actually appropriate? Well, it was accurate, guess. Yeah. So, again, that might be—even lay person might refer to that type of query Yeah. [Transcript p. 58, l. 15 p. 59, l. 16] [31] When asked about the conclusion expressed in his written report, on cross-examination, Dr. Menzies said this: Well, think think couldn’t think what probably couldn’t satisfy myself that he was, you know, able to handle the proceedings and and the ramifications. It wasn’t to say that, hey, he he definitely can’t or he definitely can, it was, you know, I’m just can’t satisfy myself that he that he can necessarily. And having got to that stage and the it seemed the next logical thing was to say based on that can’t see him as being fit to stand trial. [Transcript p. 66, ll. 9-17] The judgment below [32] It is clear that both Dr. Menzies and the trial judge were satisfied, at the end of the day, that Mr. Jobb met the first two criteria for fitness to stand trial in that he understood the nature of the charges against him and the possible consequences of being found guilty and he understood the difference between guilty and not guilty plea. The focus of the decision was, therefore, on the question of whether and to what extent Mr. Jobb had the capacity to communicate with counsel. [33] In her decision, the trial judge noted, accurately, that Dr. Menzies felt that “while Mr. Jobb’s responses indicated basic knowledge of number of the issues addressed in fitness, he expressed concern about the degree to which Mr. Jobb could take-in the information conveyed in court and provide counsel with instruction in response” (para. 16). She added, When asked if Mr. Jobb could adequately instruct counsel during trial or make informed or prudent choices between guilty plea or trial, Dr. Menzies replied that it’s question of degree and his ability to instruct counsel depends on the event about which Mr. Jobb is speaking and the circumstances in which he is being asked to provide instruction. [34] The trial judge correctly instructed herself on the applicable provisions of the Criminal Code, including those setting out the presumption of fitness and that the burden of proof is on the party who asserts that the accused is unfit to stand trial to establish unfitness on the balance of probabilities. She also referred to number of cases including both Whittle and Taylor, citing part of the passages quoted above, and acknowledged that the test is limited cognitive capacity. [35] She concluded as follows: 40 In conclusion, accept the opinion evidence of Dr. Menzies. Mr. Jobb is unable to comprehend the course of the proceedings so as to assist his counsel in making proper defence. Specifically, he is not able to communicate with his counsel regarding the facts of his charges in such way that counsel may prepare defence, nor can he participate in meaningful way or assist his counsel during the course of trial or other proceedings so that his counsel may pursue defence on his behalf. He does not have the ability to testify as to the facts of the charges against him given the challenges he faces with recollection, comprehension, and attentiveness. The applicant, Mr. Jobb, bears the burden of proving on balance of probabilities that he is unfit to stand trial. find that he has discharged that burden. Accordingly, find Mr. Jobb to be unfit to stand trial on the charges before this Court. [36] The Crown argues that the learned trial judge came to number of findings that were unsupported in the evidence she relied upon, that she did not give effect to the legal presumption of fitness and burden of proof on the respondent, and that she imposed too stringent test in concluding that Mr. Jobb lacked the capacity to instruct counsel. [37] I am in respectful agreement that, on the whole of the judgment, it is apparent that the trial judge applied too stringent a test in concluding that Mr. Jobb was unfit to stand trial, and that, when the proper test is applied, it is apparent that Mr. Jobb had the capacity to instruct counsel within the meaning of the Code. [38] On the question of factual findings, the trial judge indicated that “he [Dr. Menzies] did not think that Mr. Jobb would be able to provide instruction during the trial process due in part to his being very distractable,” (para. 17) and that he was “firmly of the view” that Mr. Jobb could not follow court proceedings sufficiently to instruct counsel (para. 37). With respect, these findings do not accord with the evidence. In fact, Dr. Menzies’ consistent testimony was that he was did not know whether or to what extent Mr. Jobb could “follow” the trial, due to Mr. Jobb’s distractibility and natural tendency he might have to claim to understand even if he did not. Dr. Menzies also made it clear that he believed this to be question of degree, and that he did not know what the legal test for ability to instruct counsel was. Clearly, the focus of his concern, and the focus of concern for the trial judge, was the extent to which Mr. Jobb’s cognitive disability might limit his ability to give on-going instructions to counsel in relation to and in response to the trial proceedings, during what the trial judge described as “the dynamic process of court proceedings” (para. 37). [39] With respect, this concern does not accord with the limited cognitive capacity test. According to that test, the court’s assessment of an accused’s ability to conduct defence and to communicate with and instruct counsel is limited to an inquiry into whether an accused can recount to his or her counsel the necessary facts relating to the offence in such way that counsel can then properly present defence. The trial judge quoted passages from Taylor and Peepeetch that enunciated this test, and from remark by Sopinka J. in Whittle to the effect that it was not necessary that the accused possess “analytic ability” to meet this test. Nonetheless, she did not, in my respectful view, base her decision on an application of this test. Rather, her focus was on the question of whether “the accused can participate in the proceedings or assist counsel in his/her defence” (at para. 39 of the judgment). She quoted and relied upon discussion in R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.) which required that the accused be able to “communicate with counsel, converse with counsel rationally or make critical decisions on counsel’s advice.” [40] The approach of the trial judge is reflected in these paragraphs from her judgment: 37 Dr. Menzies discussed Christopher Jobb's ability to adequately communicate with his counsel about the facts of his charges, and specifically questioned his ability to recall events. He was also firmly of the view that Mr. Jobb would not be able to follow court proceedings sufficiently so as to be able to provide instructions to counsel. This difficulty lies not only in limits upon comprehension but also in his distractability. The doctor suggested that the only way to be sure that he was taking in the information conveyed in courtroom, would be to take frequent breaks to check for comprehension. did not understand him to be suggesting that this be done, so much as to express the extent of the challenges that Mr. Jobb faces and perhaps the shortness of his attention span. He repeatedly cautioned against assuming understanding, based on superficial statements or assurances from Mr. Jobb. He could not envisage Mr. Jobb, except perhaps in very controlled setting, being able to converse with counsel about the proceedings and not at all during the dynamic process of court proceedings. 38 Crown counsel was concerned that Dr. Menzies might have been setting the standard for fitness too high, by expecting that, in communicating with counsel, Mr. Jobb required analytical reasoning ability. did not understand his evidence in this way. As reviewed the authorities discussed above, was satisfied that Dr. Menzies' evidence goes to the very heart of what it means to communicate with counsel. He was of the view that Mr. Jobb required coaching and repetition in order to understand the most rudimentary aspects of the justice system. His impairments are such that he has difficulty recalling events, experiences difficulty comprehending what is being said, and is not sufficiently attentive to take in much of what he comprehends. These impairments impact upon his ability to converse with his counsel about the facts, so as to adequately prepare defence, and during the course of proceedings. This does not involve analytic reasoning. [41] Some remark must be made about the description of the evidence of Dr. Menzies in these paragraphs. While Dr. Menzies did, at one point in his testimony, comment that “his recollection of things isn’t terribly strong” (transcript, p. 19, l. 23- p. 20, l. 11), in general, he indicated only that it was difficult to know to what extent Mr. Jobb remembered details (partially because Dr. Menzies had not questioned him about the details of his charges) and that it was, as for anyone, question of degree and how long ago events had occurred. See: transcript p. 14, l. 20-p. 15, l. 10; p. 28, l. 17-p. 29 l. (“he can communicate, he can share joke, he can remember things, he can come up with original thought, but he’s…got problems which make all those areas more difficult for him to…deal with”); p. 44, l. 17-p. 46, l. (his interview, in the summer of 2007, reflected “fair recall” for events of March September of 2006); and p. 58, l. 15-p. 59, l. 11 (“he can certainly recount some element of the facts.”) [42] There was, with respect, no evidence that Mr. Jobb could not comprehend what was said, and the testimony of Dr. Menzies was overwhelmingly to the contrary. He did not express the view that “Mr. Jobb required coaching and repetition in order to understand the most rudimentary aspects of the justice system” although he did express his suspicion that Mr. Jobb’s understanding had, perhaps, been enhanced by “coaching” from his foster mother and his own previous experiences with the justice system. [43] In her concluding paragraph the trial judge found that Mr. Jobb is unable to recount the facts of his offences “in such way that counsel may prepare defence”. There was, with respect, no evidence to support this conclusion and the evidence was to the contrary—that Mr. Jobb was able to recount the facts of his offences. This was evidence in Dr. Obikoya’s report as well as in the passages from Dr. Menzies’ testimony referred to above. That Mr. Jobb be able to participate in his defence in “a meaningful way or assist his counsel during the course of trial” is not, with respect, an accurate application of the limited cognitive capacity test, which requires only that he be able to recount the facts of the offences with which he is charged to his counsel. The conclusion, in any case, that Mr. Jobb did not have the ability to testify as to the facts of the charges against him is contrary to the evidence of Dr. Menzies. See, again, transcript p. 28, l. 11 and following. [44] It is my conclusion that the appeal must be allowed, the verdict of unfitness to stand trial set aside and that there be a new trial on the offences which are the subject of this appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 3rd day of December, A.D. 2008. “Smith J.A.” concur. “Richards J.A.” RICHARDS J.A. concur. “Smith J.A.” for HUNTER J.A.","The Crown appeals an order from Provincial Court declaring that the accused is unfit to stand trial. The accused was charged with 29 offences arising out of failures to comply with multiple bail conditions. He was also charged with two indictable thefts. He is 22 years old and suffers from fetal alcohol spectrum disorder, attention deficit disorder and substance abuse. He was diagnosed as mildly mentally retarded and is considered incapable of handling the responsibilities that would enable him to live independently and will always need a protected living environment and sheltered employment. He was found unfit to stand trial on some previous property offences and is still under the supervision of the Provincial Review Board. The trial judge was satisfied that the accused met the first two criteria for fitness to stand trial û he understood the nature of the charges against him and the possible consequences of being found guilty and he understood the difference between a guilty and not guilty plea. The focus of the decision was whether the accused had the capacity to communicate with counsel. The judge found that the accused would not be able to provide instruction to counsel during the trial process due in part to the fact that he is very distractable and could not sufficiently follow court proceedings to instruct counsel. HELD: Appeal allowed. The verdict of unfit to stand trial is set aside and a new trial ordered. The trial judge applied too stringent a test on concluding that the accused was unfit to stand trial and when the proper test is applied, it is apparent that the accused has the capacity to instruct counsel within the meaning of the Code. The trial judge's concern about the accused's distractable nature does not accord with the limited cognitive capacity test. The Courts have applied a test of 'limited cognitive capacity' for determining fitness. This test requires that, with respect to communicating to counsel, the accused is only required to be capable of recounting the fact of the alleged crimes. Limited cognitive capacity does not require analytic ability or the need for the accused to appreciate his own best interests. The authorities establish a very low threshold for fitness to stand trial in keeping with the policy objectives of the Criminal Code and the right of the accused to make full answer and defence.",6_2008skca156.txt
34,"Q.B. A.D. 1990 No. 120 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: CLARENCE GILL and SHIRLEY GILL and FORD MOTOR COMPANY OF CANADA LIMITED and COUNTRY PLAZA MOTORS LTD. DEFENDANTS G. M. Kraus, Q.C. and for the plaintiffs D. J. Brundige K. A. Ready and for the defendant, Ford Motor E. M. Kleisinger Company of Canada Limited JUDGMENT BARCLAY J. March 24, 1994 The plaintiffs Clarence Gill and Shirley Gill(""Clarence and Shirley"") claim against Ford Motor Company ofCanada Limited (""Ford"") for damages from a fire in theirgarage which they allege was caused by combustion of vapoursfrom gasoline leakage from the fuel tube of a new truck theypurchased from Ford.  The action against Country Plaza Motors Ltd. (""Country Plaza"") was discontinued. THEORY OF THE PLAINTIFFS The plaintiffs contend that the fire was caused by anelectrostatic discharge through the U-shaped fuel tube in theFord truck which was the subject of recall, along with 48,000others, by Ford. It was submitted that due to extremely cold weather conditions the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. During this static discharge, pin holes would be created and gasoline would then leak out. The vapour from the gasoline, being heavier than air, would settle to the bottom of the garage and would be attracted to the pilot light on the furnace. The vapours would then be ignited by the pilot light. There would then be flashback to the area underneath the truck where the gasoline was pooled. This location at the northwest corner of the garage would be where the fire originated as the combustible material under and near the Ford truck would FACTS Clarence and Shirley Gill are the owners of and reside at home with detached garage in Indian Head, Saskatchewan. The garage was constructed in 1983 and the dimensions are 28' 32'. The floor is cement and has solid wood walk-in door adjacent to the house. The vehicle doors are at the front of the garage as the garage faces the street. They are in separate bays and there is Sears electric garage door opener for each door. The garage is insulated. Located in the garage is gas furnace with pilot light installed on the floor. The garage was used for the storage of vehicles and miscellaneous seasonal goods and equipment, including saddle tanks and snow blowers. On October 14, 1988, Clarence purchased from Country Plaza, new 1989 truck manufactured by Ford (hereinafter referred to as the ""Ford truck""). Country Plaza is the Ford dealer in Indian Head. Clarence took delivery of the Ford truck on October 26. The truck was 1989 model F-150 pickup. On January 10, 1989, which was the day of the fire, both Clarence and Shirley were at home with their two young children, Kimberly age and Craig age 2. The weather records reflected that the temperature at Indian Head from January 8, 1989 to January 10, 1989, remained between -28� celsius and 35� celsius. Both the Ford truck and Bronco II vehicle were stored in the garage. The Bronco was also owned by Clarence. The Ford truck was parked in the north bay of the garage and the Bronco was located in the south bay. Clarence had not driven the Ford truck for two days. However, at about 10:30 a.m. on January 10 he entered the garage through the side door adjacent to the house. That day he drove the Bronco which was usually operated by his wife. After entering the vehicle and starting the Bronco he said he let the motor run for approximately four minutes and in view of the bitterly cold weather, the garage door remained closed. He returned about 20 minutes later and he said he smelled fumes from the vehicle. He did state, however, that when he entered the garage he did not smell any fumes. After he entered the garage he closed the doors and left the building through the side door. At about 2:00 p.m. his daughter came downstairs as the rest of the family were watching television in the basement rumpus room. After she exclaimed that the garage was on fire, the plaintiffs went outside. The Indian Head fire department was already at the scene. At about that time the power went off in the residence and Clarence and Shirley were unable to use the phone. The fire destroyed the garage and its contents, including the Ford truck and the Bronco. Clarence, who farms near Indian Head, had the reputation of being meticulous individual and therefore the Ford truck which had very low mileage, was in immaculate condition as was his garage. In fact, Clarence constructed tin wash tray that was placed under the Ford truck which was used when the truck was being cleaned. In December of 1988, Ford issued recall notice which was sent to all Ford dealers and to all owners of the affected vehicles in the western regions of Canada. The recall notice applied to all 1986, 87, 88 and 89 Ford model 150, 250, 350 trucks and Bronco vehicles, including the Bronco vehicle. These notices stipulated the following as the reasons for recall: The U-shaped fuel tube (""Jumper Tube"") connecting the on-frame fuel pump to the fuel filter may develop pin holes. The pin holes can be created during off-road operation in severe winter weather by an electrostatic discharge through the tube and will result in fuel leakage. If this condition occurs fire could result. To prevent this condition the U-shaped fuel tube will be replaced with new part having an insulating sleeve. Ford Motor Company of Canada, Limited (Ford) has determined that certain 1986, 1987, 1988 and 1989 model F-150/250/350 Pickup Truck and Bronco vehicles sold in specific areas of Canada where severe winter weather is experienced contain fuel tube that may develop leak if operated off-road. Clarence said he received the recall notice about two weeks prior to the fire. After he read it he decided that the matter was not urgent as the initial recall notice indicated that it only applied to vehicles operated off-road. As the Ford truck was not driven off-road he did not feel there was any immediate danger, however he said he intended at time convenient to take the Ford truck to Country Plaza to be examined. schematic drawing of the garage and its contents as it appeared immediately after the fire was filed as an exhibit. copy of the drawing is set out hereunder. Clarence confirmed that this drawing accurately depicts the inside of the garage and its contents as they appeared after the fire. The furnace was operational and the pilot light was on. Jack Johnson, resident of Indian Head was on the scene immediately after the fire started. He said the smoke was coming from underneath the Ford truck which was located in the north bay. From there the smoke and flames went up the north wall of the garage. He then said that flames were also coming from underneath the right rear side of the truck. He said it was only matter of minutes before the fire engulfed the building. When he arrived at the scene, the garage door in the north bay was open to distance of approximately 2+ to feet. Gil McDonald from the Provincial Fire Commissioner's Office was qualified as an expert witness as to the cause or origin of fire. He has had extensive experience both in the military and more recently in the Fire Commissioner's Office as fire investigator. He testified that he has investigated more than 130 fires as to their cause or origin and has given expert testimony in the Saskatchewan Courts on previous occasions as to the discipline. His mandate was to assist the R.C.M.P. to determine the cause and origin of the fire. On January 16 he took series of photographs of the garage and contents. These pictures clearly illustrate the damage which occurred and assist in determining where the fire originated. In McDonald's opinion the fire originated about 10 or 12 feet from the northwest corner of the garage where the Ford truck was located. He explained how the gasoline vapours would be ignited by the pilot light and that there would then be flashback to the area underneath the Ford truck where the gasoline was pooled. In other words he agreed with the plaintiffs' theory as to where the fire started. McDonald, Clarence and other witnesses ruled out any other potential cause of the fire, including an electrical malfunction of the garage wiring, the garage heating system and/or an explosion caused by leaking natural gas supply or leaking gasoline supply. This would include gas located in the snow blower, the Kitty Cat snow machine and the saddle tanks which were being stored in the garage. In fact Ford, although it disagreed with the theory of the plaintiffs as to the cause of the fire, never made any alternative submission as to how the fire occurred. However, agree with counsel for Ford that legally they have no obligation to prove anything and that the onus is on the plaintiffs to prove beyond balance of probabilities that the fire occurred in the manner in which they allege. Richard Freeman, the gas inspector from SaskPower attended at the premises on January 18. He examined the furnace, said it was functional and that there were no wiring problems. He said it was ""in good condition"". The furnace was located on the northeast wall and he observed flash marks running from the area of the furnace down the north wall to distance about halfway when the burn marks moved inward to an area where the Ford truck was located. Murdoch D. MacPherson, professional mechanical engineer with the Regina Engineering firm of Cochrane Walker and member of the Association of Professional Engineers for Saskatchewan, also gave expert testimony on behalf of the plaintiffs. He said that gasoline vapours due to their combustibility may pose hazard. He agreed that gasoline vapours being heavier than air will displace the air and would sink to the bottom of the garage. As to the combustibility of the vapours in the air, he said it would depend on certain concentration which would be 1.4% to 7.6% by volume. This concentration would have to occur before there would be potential for combustion. Within that range it was his opinion that if the gasoline came into contact with the pilot light it would ignite. He said if the gasoline vapours were below that range it would be too lean to burn and if they were above 7.6% the mixture would be too rich. It was also his opinion that it would take several gallons of gas to produce sufficient vapours to cause combustibility. Keith J. Fowler of Edmonton, who established Western Canadian Mechanical Investigators in 1986 was qualified to give expert testimony regarding the cause of vehicle fires. Although Fowler is not professional engineer, he has had extensive experience in fire investigation. He said he has investigated over 700 fires by trucks and cars to determine the cause and origin of the fire. Prior to his association with Western Canadian Mechanical Investigators he had 16 years experience in the automotive industry. During that period he was employed as service manager for Ford and then for General Motors. His qualifications included certification as mechanic engineering technologist and he is licensed as mechanic and as an insurance adjuster. was impressed with his testimony and he was of great assistance to the Court. After reviewing the circumstances surrounding the recall notice issued by Ford which delineates the inadequacies of the fuel system which, according to Ford's own admission, could result in fuel leakages and thereby cause fire, he offered an opinion as to the cause of the fire. He testified that the fire was caused by gasoline leakage from the U-shaped fuel tube. He agreed with the theory of the plaintiffs that as result of the extreme temperatures the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. As result, pin holes were created causing gasoline leakage. He said that the fuel leakage would likely collect in the tin pan located under the Ford truck. The vapours would then be drawn to the pilot light in the furnace where ignition would occur and then flash back to the northwest corner of the garage where the Ford truck and the pool of gasoline were located. The fire would start in that location as the combustible material under the truck would ignite. Once the fuel line melted, the vapour pressure would increase and more fuel would be added to the fire. By that time full fire could be raging. According to Fowler, leakage of one to two gallons would be sufficient to produce sufficient vapours to cause combustibility. The Ford truck had two tanks with capacity of 15 gallons per tank. Clarence testified that both tanks were full. He also stated that in his opinion the conditions described in the recall notices of Ford outlined the precise problem with the Ford truck. This delineated the inadequacies of the fuel system which caused the fire. The last witness called by the plaintiffs was Sergeant Bill Blanchard, 25 year veteran with the R.C.M.P. He attended at the scene on the day of the fire. He also stated that the origin of the fire was in the area where the Ford truck was parked, namely the northwest corner of the garage. He categorically ruled out arson as the cause. RECALL NOTICE The plaintiffs contend that the circumstances surrounding the recall notices assist them in establishing their theory as to how the fire occurred and agree. This notice was sent out to 48,000 owners. The initial recall notice which reviewed earlier reflects that due to severe winter weather the fuel line may develop pin holes which would result in fuel leakage that could cause fire. As early as November 23, 1988, the Field Review Committee of Ford reported that total of 36 reports of pin hole leaks in the jumper tube had been received and of those reports, 14 were alleged to have resulted in fire. Their report of November 23, 1988, reads in part as follows: total of 36 reports of pin hole leaks in the jumper tube have been received, all involving vehicles operated in oil field exploration service or, other off-road applications in the Western and Midwestern Sales Regions of Canada. Of these reports, 14 were alleged to have resulted in fire. There are no known reports of this condition involving other vehicles operated elsewhere in Canada or the U.S., and check of service parts sales indicates no abnormal sales trends other than in the subject sales regions during the winter months. The U-shaped jumper tube involved in this concern was installed on certain 1986 through current production 1989-model F-Series pickup truck and Bronco vehicles equipped with EFI engines. NAVIS records indicate that approximately 45,000 of these vehicles were sold in the Western and Midwestern Sales Regions of Canada. The Field Campaign Review Committee recommends that these vehicles be recalled for dealer installation of new fuel line that is sleeved with material having properties of an electrostatic insulator. This fuel line is to be incorporated in production approximately December 11, 1988, for all F-Series light trucks and Broncos equipped with EFI engines. In March of 1990 new recall notice was sent as the repairs specified in the initial notice were not effective. This replacement notice reads in part as follows: SPECIAL NOTE: Safety Recall 89S76 supersedes and replaces Safety Recall 88S57. If you are presented with vehicle that does not have 88S57 completed, do not perform that recall on it; instead perform Safety Recall 89S76 on that vehicle. AFFECTED VEHICLES: All 1986 1/2, 1987, 1988 and 1989 Model Year gasoline powered F-Series Pickup Trucks including Chassis Cabs, and Bronco vehicles with EFI engines sold or operated in Mid-West and Western Regions and the Yukon Territory. Vehicles involved were produced from February 1, 1986, through to the end of the 1989 model year. REASON FOR RECALL Field investigation has determined that repairs specified in Recall 88S57 were not completely effective in preventing the condition of pinhole leaks forming in the U-shaped fuel tube (""Jumper Tube"") connecting the on-frame fuel pump to the fuel CORRECTION To prevent this condition from re-occurring, the U-shaped fuel tube, the frame mounted filter and the fuel delivery tube from the filter to the engine will be replaced with steel braided electrically conductive fuel line from the high pressure frame-mounted fuel pump to the engine. fuel filter cartridge will also be installed in the fuel reservoir. CAUTION: Fuel supply lines on 4.9L EFI, 5.0L EFI, 5.8L EFI and 7.5L EFI engines will remain pressurized for some period of time after the engine is shut off. This pressure must be relieved before servicing of the fuel system. The subsequent recall notice deleted any reference to off-road driving. However, the amended notice would not have been sent out until after the fire. Trevor Geen Williams, the quality engineer for Ford, was examined for discovery as its proper officer and his answers with respect to the recall notice sent to 48,000 owners is telling. They read as follows: 391QAll right. Would you look at the Recall Notice to the owner and to the dealer in December of 1988, P-1 and P-9. The information from Ford states among other things that ""If this condition occurs fire could result."" Have read that 392 QOkay. Has Ford ever tested such vehicle in these circumstances to see if fire could result? AI believe the answer would be, yes. 393 QAll right. And have you available the report with respect to such test and would you produce that to us? AI Ford of Canada does not have copy of such test information. That information the testing would have been done by Ford Motor Company in the United States. 395 QWhat is the date of such test? AI believe that the testing that you would be referring to would have been done in the months prior to the release of the recall, but at some point in time after. 399 QDid the test show that fire could result as indicated in the Recall Notice? AI don't know what the actual results of the test were, other than to say that the test would, more than likely, have produced situation where there was still leakage. 400 QFrom that test, Ford concluded that this condition could result in fire? AIf you have fuel leakage you could have fire. 401 QAnd was it as result of that test that Ford made the statement in the Recall Notice that ""this condition could result in fire""? AI couldn't definitively say that that was the case. Obviously as we've previously admitted, there were 14 cases known to us where there were vehicle fires. Certainly if you have situation that can create fuel leakage, then, there's obviously the risk of fire. 402 QAnd in addition to that Ford had done its own testing. ATo determine whether or not condition existed that would produce fuel leakage. 403 QYes. And that condition, that is fuel leakage, was present in the testing? Yes. Michael J. Harrigan testified on behalf of Ford. He was their only witness. Harrigan is graduate engineer. He received his Bachelor of Science in Mechanical Engineering from Loyola University and his Master of Science from Stanford University in Palto Alto, California. He resides in Michigan and is presently employed by Ford as senior engineering specialist with respect to fuel systems. He has been an employee of Ford since 1974. He was qualified as an expert witness. He disagreed with the theory of the plaintiffs' as to the cause of the fire. He said that the Ford injection fuel system has check valve which would prevent fuel leakage if the fuel liner were cut. However, in cross-examination he conceded that the following statement in his written report was incorrect. That statement reads: The path through the pump alone might prevent siphoning. In addition, for there to be any siphoning action at all, the outlet point where the line is cut or burned open has to be below the height of the pump inlet inside the fuel tank. In worst case scenario, it was his opinion that if any charge ever existed on the Ford truck fuel system it would be completely dissipated in less than an hour. He said as the Ford truck had not been driven on the day of the fire one must conclude that there could not have been any significant static electric charge in the fuel system at the time the fire started unless the fuel pumps had been energized. There is tiny steel ball in the safety valve and according to Harrigan it would take two P.S.I. (pounds per square inch) to unseat it to permit siphoning. Harrigan concluded by stating that it is highly unlikely that an electrostatic discharge from the fuel line could have ignited leaking fuel. He also stated that he could offer no alternative theory as to why the subject fire REBUTTAL Fowler and MacPherson were recalled in rebuttal. Fowler had purchased replacement fuel pump from Ford dealer similar to the one used in the 1989 Ford truck. He conducted certain tests with the pump and in the tests he performed he said it took one P.S.I. pressure to unseat the check valve and not two P.S.I. as stated by Harrigan. He also conducted drip test for gasoline. He filled four litre plastic container with gasoline and then pricked it with straight pin. In period of seven minutes 3/4 of an imperial ounce collected in the measuring cup. MacPherson also examined the fuel pump. He said there was small spring in the check valve which is lighter than most ball point pens. This spring is attached to small plastic ball. MacPherson testified that he did not have confidence that the check value would stop any siphoning of gas. In other words the fuel pump would only be slight impediment to the fuel flow. He also said that if there was pin prick in the fuel line, approximately five ounces of fuel would leak in minutes or nine imperial gallons in period of 24 hours. CONCLUSION I accept the expert testimony of the plaintiffs andin particular Fowler and MacPherson in preference to Harrigan. Not only did Harrigan appear uncomfortable on the stand, he conceded that he made major error in his report. It is also significant that Ford never called any independent witnesses on their behalf and their only witness was an employee of Ford. The evidence taken as whole leads only to one conclusion and that is that the plaintiffs' theory as to how the fire started is accurate. I am satisfied that theplaintiffs have proven beyond a balance of probabilities thatthe fire was caused by an electric static discharge throughthe U-shaped fuel tube in the Ford truck. Due to extreme weather conditions the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. During this static discharge, pin holes would be created and gasoline would then leak out. The vapours from the gasoline, being heavier than air, would settle to the bottom of the garage and would be attracted to the pilot light on the furnace. The pilot light would cause the vapours to ignite and there then would be flashback to the area underneath the Ford truck where the gasoline was pooled. This would likely be in the wash tray which was located under the vehicle and which Clarence used to wash his truck. Furthermore, the recall notice delineated the problem with the fuel system which is consistent with the plaintiffs' theory as to how the fire occurred. In view of the above further find that the fire and damage were caused solely by the negligence of Ford, the particulars thereof include: 1. In manufacturing the Ford truck with defective fuel tube, when Ford knew or ought to have known that it was unfit and dangerous, by reason of the defective fuel tube which was subject to leaking; 2. In manufacturing the Ford truck without ascertaining or ensuring whether by testing, inspection or otherwise, that the fuel tube was and would remain safe and sound and suitable for the purpose for which it was intended that is, maintaining the gas therein without leakage; 3. In failing to take any reasonable or effective precautions in the manufacture or installation of the fuel tube, when Ford intended that it would be used as part of the construction of the Ford truck; and 4. In failing to ensure that the fuel tube would not DAMAGES The parties agreed that the amount of damages would be in the sum of $90,402.50. The plaintiffs shall havejudgment in that amount together with prejudgment interest inaccordnce with The Pre-Judgment Interest Act, S.S. 1984-85-86,c. P-22.2 to be calculated from the date of fire, namelyJanuary 10, 1989. In addition the plaintiffs shall have their costs to","The Plaintiff's 1989 Ford F150 1/2 ton truck caught fire and burned in his garage. This model of truck was subject to a recall by Ford to correct a fuel line defect. The Plaintiff called several expert witnesses who testified that, in their opinion, the leaking fuel line was the cause of the fire. Ford called one witness who was the designer of of the truck's fuel system and a Ford employee. He testified that the defective fuel line could not have leaked sufficient fuel to cause the fire. He also admitted, however, that his prior written report contained errors. Rebuttal evidence called by the Plaintiff indicated that the check valve in the fuel pump designed to prevent siphoning from the fuel tank in the event of a leaking fuel line did not operate as the Ford witness had testified. HELD: Judgment for the Plaintiff. The Plaintiff had proved on a balance of probabilities that the leaking fuel line was the cause of the fire. The Plaintiff's experts' evidence was accepted over that of the Ford expert. No independent experts had been called by Ford.",5_1994canlii4866.txt
35,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 510 Date: 2012 12 07 Docket: Q.B.A. No. of 2011 Judicial Centre: Prince Albert BETWEEN: HER MAJESTY THE QUEEN and WAYNE GITZEL Counsel: Inez J. Cardinal, Q.C. for the appellant Peter V. Abrametz for the respondent JUDGMENT SCHERMAN J. December 7, 2012 Introduction [1] This case involves an appeal by the defendant from his conviction and by the Crown as regards the sentence imposed on Wayne Gitzel on a charge of unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act, S.S. 1996, c. F-19.1. [2] Mr. Gitzel’s position is there was no evidence that could support finding that the firewood he sold to an undercover officer was wood harvested from Crown lands. He says that since the trial judge acquitted him of related charges of unlawfully harvesting forest products from Crown lands and unlawfully possessing forest products from Crown lands, it logically follows that he should not have been convicted of unlawfully trafficking in such forest products. He asks, if there is no proof he unlawfully harvested wood or unlawfully possessed wood, how could he be found guilty of unlawfully trafficking in it? He says his conviction on the trafficking charge should be quashed. [3] For its part, the Crown has appealed the sentence imposed taking the position that a fine of $1,000 with a 40% surcharge was an unreasonably low penalty for the offence the evidence established. It needs to be noted that the acquittals on the charges of unlawfully harvesting and unlawfully possessing forest products have not been appealed. The Charges [4] The charges against Wayne Gitzel are that between November 27, 2007 and December 22, 2009, at or near the communities of Holbein and Shellbrook in the Province of Saskatchewan he:i) unlawfully harvested forest products contrary to s. 79(1)(a) of The Forest Resources Management Act;ii) unlawfully possessed forest products without a licence contrary to s. 79(1)(c) of The Forest Resources Management Act; andiii) unlawfully trafficked in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act. The Evidence of the Crown Conservation Officer Rowland [5] Conservation Officer Daryl Rowland testified that his first contact with the defendant was on November 27, 2005 while on patrol in the Canwood block of the Nesbitt Provincial Forest where he encountered the defendant cutting mistletoe-diseased pine. The defendant said he was harvesting the wood for his personal heating use. Rowland told the defendant he was entitled to harvest dead wood for personal use but that he needed licence or permit and needed to pay the associated charges if he was going to harvest any wood for commercial purposes. [6] Rowland testified that subsequent to this encounter he received reports to the effect the defendant was harvesting wood from within the Nesbitt Provincial Forest and selling it. As consequence, he periodically conducted surveillance and observed the following, which he made notes of, at the time: November 2007 An individual, he took to be the defendant, chainsawing fire- killed trees in the Crutwell burn within the Nesbitt Provincial Forest. His assumption of identity was based on the fact that he recognized truck in the vicinity as being the defendant’s half-ton truck. December 11, 2007 Firewood stacked in the yard of the defendant’s residence and flat-deck trailer loaded with approximately two cords of firewood. January 11, 2008 The defendant’s truck and someone he therefore assumed to be the defendant cutting fire-killed trees within the Crutwell burn and loading the wood onto the defendant’s truck. November 27, 2008 The defendant’s truck and someone he assumed to be the defendant harvesting trees in the Crutwell burn with chainsaw. December 10, 2008 The defendant harvesting fire-killed trees in the Crutwell burn and loading the wood onto his half-ton truck. November 16, 2009 The defendant exiting the Crutwell burn in his half-ton truck loaded with close to cord of wood. Rowland followed the truck tracks back to where the wood had been harvested within the Crutwell burn. Then, he observed the defendant’s half-ton truck parked at the residence of his brother-in-law Steven Denton where someone, he believed to be the defendant, was off-loading wood from the same half-ton truck. [7] Conservation Officer Rowland confirmed under cross-examination that he was only able to positively identify the defendant on two occasions, being November 27, 2008 and December 10, 2008 when he saw the defendant driving out of the Nesbitt Forest with load of firewood. He further acknowledged that he could not say how much wood the defendant had harvested from Crown lands, other than as suggested by the defendant’s statements to the undercover officer Chris Clarke. [8] He testified that individuals were entitled to harvest dead trees on Crown lands, without permit or licence, if the wood being harvested was for their personal use. Section 17(4) of The Forest Resources Management Act provides, under the “subsistence gathering” exemption, that person may gather dead or down trees for fuelwood. Rowland testified that, in his opinion, person heating his home or outbuildings with firewood would consume maximum of 15 cords per year. [9] He testified that at certain point decision was made to involve an undercover operator in the investigation of whether the defendant was illegally harvesting wood from Crown lands without permit. Conservation Officer Clarke [10] Conservation Officer Chris Clarke testified that he had taken training to operate as an undercover conservation officer, starting in 2004. Since 2008, he has instructed course in undercover operations. He has worked for five years as an undercover operator and during that time has been involved in some 28 investigations. He became involved in this matter in January of 2009 when his assistance was requested. The target of his undercover operation was the defendant. [11] He testified as follows: September 11, 2009 He contacted the defendant by cell telephone indicating he was interested in purchasing at least two cords of pine firewood. In that conversation the defendant confirmed he was in the business of selling wood, but told Clarke he should call back in October, since he had not yet had chance to get out and collect any wood. October 27, 2009 He again contacted the defendant by cell telephone, who again informed him he had not yet collected wood. The defendant told him he should call back in two weeks when he would have wood available. November 16, 2009 He contacted the defendant by telephone and was told he could bring trailer up at any time, because the defendant was currently cutting firewood and if he worked hard enough, he could have it out of the bush for pick up. The defendant assured him the wood was cured and ready to be burnt. November 19, 2009 He contacted the defendant by cell phone and was told that the wood was ready to be picked up at his brother-in-law’s place near Holbein. November 20, 2009 At 1:08 p.m., Clarke contacted the defendant advising him he was in Prince Albert with trailer and was given directions to the defendant’s brother-in-law’s place east of Holbein, Saskatchewan. In the telephone call he was told his wood was in the most easterly of four piles of wood. He went to the location, identified himself to Steven Denton, the defendant’s brother-in-law, backed up to the pile of wood the defendant had identified as his and loaded three-quarters of cord of wood and travelled back to Prince Albert where he unloaded the wood. Once Clarke was done unloading this wood, he phoned the defendant and asked if he could pay him personally. They arranged to meet at restaurant in Shellbrook. Clarke arrived at the restaurant near 2:00 p.m. The defendant arrived around 3:00 p.m. and Clarke introduced himself. They had conversation in which Clarke asked the defendant how much wood he sold the last year. The defendant said, “I sold over 150 truckloads last year.” Then Clarke asked how many loads he sold so far this year and the defendant’s reply was, “I sold 58 truckloads this year.” Clarke asked, “Where do you get your wood from?”, and the defendant replied, “in burn south of Holbein.” Clarke asked him, “Is it on friend’s property?”, to which the defendant replied, “No, it’s on Crown land.” Clarke said he told the defendant “Steve told me that the wood that they are cutting that they should have permit for, and the wood that he’s selling is illegal.” And asked Mr. Gitzel why do you need permit for dead wood. Mr. Gitzel then told me quote, “Last year one of the wardens called me and asked if was selling wood. told him that it was for my own use.” Then he said, “I thought was going to stop, but then said I’m not chicken. I’ll just tell them that the wood is my brother-in-law’s.” Clarke says he then told the defendant he would return shortly to pick up the remaining cord or one and one-quarter cords and the defendant told him “he wanted the wood removed as quick as possible so he could stack other wood there in case the wardens asked him about the wood he could say that it was his brother-in-law’s wood.” November 24, 2009 Clarke travelled back to Steve Denton’s residence with trailer noting there were still four piles and his pile was still there. He loaded about three quarters of cord, left with this load, unloaded it and then returned to the Denton residence at approximately 2:30 p.m. and picked up of the remaining wood, except for about 50 to 75 pieces. He testified that the wood in all of the loads was fire-killed pine cut to lengths of 12 to 18 inches with diameters of 10 inches to foot. December 1, 2009 Clarke called the defendant to place another order for smaller diameter wood. December 2, 2009 The defendant telephoned Clarke to advise that this wood was ready for pickup at the same location as previously. December 4, 2009 Clarke travelled to the Steven Denton residence to pick up the load of wood and on the way telephoned the defendant and discussed possible deal that would involve approximately 100 cords of wood. He told the defendant he would like to see the area where the wood was coming from. After loading the wood, Clarke arranged to meet the defendant at the Superstore parking lot in Prince Albert. At 2:37 p.m. the defendant arrived and they had conversation about potential purchase of 100 cords of wood. Clarke testified that: “Mr. Gitzel suggested, remember it now, that we take the wood, and instead of picking it up out in the bush, that we take it back to the yard because he said, quote, “We want to avoid Forestry. They want $15 per cord right off the top, and so far we’ve been lucky enough to avoid that.” And then said to him, “Is this wood coming off of private land?” and he said, “No, it’s off Crown land.” And later: “That evening, around 7:36 p.m., Mr. Gitzel phoned me again, or contacted me via cell phone, and he wanted to talk about the 100 cord proposal or deal. He suggested that what we do is we run two-trailered system that would bring up trailer, unhook it in the yard. He would fill the trailer full of wood, and then call me. would come up with second trailer, drop that empty trailer off, hook onto the full trailer, and take it back.” December 8, 2009 Clarke received message, in message manager on his cell phone, from the defendant wherein the defendant was inquiring about the 100-cord deal. There was subsequent conversation between the defendant and Clarke where Clarke told the defendant he wanted to arrange meeting with him to have the defendant take him out to the area where the wood would be cut because he wanted to see the wood and he wanted to be sure it was the right kind of wood. Arrangements were made to meet on December 10. December 10, 2009 Clarke contacted the defendant at 1:19 p.m. and the defendant said he was not able to go out into the bush to show them the wood, but his brother-in-law Steve was able to take him out. Clarke attended at the Steve Denton residence with another conservation officer. With Clarke driving and Steve Denton in the passenger seat, Steve Denton instructed Clarke where to drive and thereby they drove to fire-burnt pine stand in the Nesbitt Forest where there were signs of cut stumps. GPS coordinates were taken of the location and marked on Exhibit P-4. Clarke testified that, from his observation, 100 cords of wood could be taken from that area. December 14, 2009 Clarke telephoned the defendant and advised him that he would not be proceeding with the 100 cords as he could not get enough interest. The defendant told him not to worry about it as he had picked up two 20-cord deals over the weekend. The Defence Evidence [12] Neither the defendant nor Steven Denton testified. Thus, the evidence of the conservation officers is uncontradicted. [13] The evidence presented on behalf of the defence was as follows: Lloyd Smart Testified he had fire-killed wood on his private land and from 2006 through 2009 the defendant had permission to harvest that wood. He testified this wood was spruce and some tamarack. Ken Danger Testified that he had given the defendant and another individual permission, between 2007 and 2009, to cut any poplar or pine on some three-quarter sections of his privately owned pastureland, approximately 11 miles south of Shellbrook. Lee Schmalz Testified that he owned nine quarters of land eight miles south of Shellbrook and that in 2008 the defendant was taking firewood out of his land with his permission. He stated this firewood would have been spruce left over from logging operation not fire-killed wood. In return the defendant provided him with about 15 cords of firewood in 2008. Ken Olson Testified that he heated his home with wood furnace and harvested fire-killed jack pine from the provincial forest near Holbein including from the Crutwell burn in 2007 and 2008. To do this he borrowed the defendant’s half-ton truck to cut the wood and bring it out to the defendant’s yard where it was off-loaded and then loaded onto another larger truck to transport to his residence. Bert Gitzel Testified he is the defendant’s brother and lives in Martensville, Saskatchewan, where he heats his house with wood fired central heat furnace. In 2007, 2008 and 2009, the wood to do this came from Crown lands in the Holbein area. He testified that in 2007, he himself was involved in cutting the wood using the defendant’s half-ton truck, but in 2008 and 2009, the defendant did the cutting for him. In 2008 or 2009, the wood was stacked at Steve Denton’s place before being loaded into larger trucks or trailers for transportation to his residence. The Trial Decision [14] The trial judge delivered brief oral decision on January 12, 2011, shortly following the conclusion of the evidence and argument by counsel. In his reasons he stated that the charges against the defendant are strict liability offences and that once the prosecution has proven beyond reasonable doubt that the prohibited act has been committed, the defendant has to establish, on the balance of probabilities, that he had been duly diligent and took all reasonable care to avoid offending. [15] He made express findings of fact that: The defendant harvested wood, both from private land and Crown lands, during the times outlined in the Information. The defendant used wood to heat his own home. The defendant’s property was used to store wood for others. The defendant sold wood to the undercover operator Chris Clarke on November 20, 2009. This wood did not come from private land and the defendant was unlawfully trafficking in this wood. The defendant did not exercise due diligence in ensuring the wood he was providing to the undercover operator and the wood from the previous sales came from private lands. [16] The trial judge held that, after considering all of the evidence, he was not satisfied that during the period in the indictment, the Crown had proven beyond a reasonable doubt the actus reus on Count No. 1 of unlawfully harvesting forest products, nor Count No. 2 of unlawfully possessing forest products without a licence. He found that the Crown had proven, beyond a reasonable doubt, the actus reus on Count No. 3 of unlawfully trafficking in forest products, but he held that given the defendant’s own words to the undercover operator, he was not satisfied, on the balance of probabilities, the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. Thus, he convicted the defendant of unlawfully trafficking in forest products. [17] In his sentencing decision the learned judge stated there was no doubt the defendant broke the law “cutting this firewood when he should have had permit”, but he also cuts firewood from private property and heats his own home with firewood. He observed he could not see any damage to the environment but breach of the regulatory scheme merited penalty. He imposed fine of $1,000 with 40% surcharge. The Positions on the Appeals The Defendant’s Position [18] The defendant argues that having been found not guilty of illegally harvesting forest products and not guilty of possessing forest products without licence, it is illogical and inconsistent for the trial judge to have convicted him of illegally trafficking in forest products. He points out that the Crown has not appealed the acquittals and says the Crown is therefore estopped from disputing the correctness of the findings made on these issues. [19] The defendant argues that it is significant that when Clarke spoke with the defendant, on November 20, 2009, the defendant’s statement that he got his wood from Crown lands was in response to the question, “Where do you get your wood from?” (emphasis added). He argues that it was entirely legal for the defendant to acquire his firewood from Crown land and that this question and the defendant’s answer cannot be taken as an admission that the firewood he sold to Clarke or anyone else came from Crown lands. The Crown’s Position [20] In their factum and oral argument the Crown relied on the evidence of the November 20, 2009 conversation between the defendant and Clarke as establishing that the firewood the defendant sold to Clarke and the 150 truckloads he said he sold in 2008 and the 58 truckloads he sold in 2009 came from Crown lands. The Crown views the evidence of the conversation between Clarke and the defendant relating to the proposed 100-cord deal and the defendant’s statement to Clarke that this wood was going to come from Crown lands as confirmatory that the wood in the above-noted sales came from Crown lands. [21] In its submissions on the appropriate sentence or penalty, the Crown takes the position that the penalty should have been assessed on the basis of the illegal sale of 211 cords of firewood consisting of the 150 2008 truckloads, the 58 2009 truckloads and the three cords sold to Clarke. [22] The issues to be decided are as follows: 1. Having been found not guilty on Count Nos. and of the Information, can the defendant be found guilty of illegally trafficking forest products in relation to 150 truckloads sold in 2008, 58 truckloads in 2009, or the three cords sold to Clarke? 2. Can conviction for unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act result from negotiations for sale? 3. Can the defendant be found guilty of illegally trafficking in forest products on the basis of his negotiations with Clarke relating to potential sale of 100 cords, when that basis for finding of guilt was not specifically argued before the trial judge? 4. Should the defendant be found guilty of illegally trafficking in forest products on the basis of the evidence relating to the potential sale of 100 cords? 5. If properly convicted, what is the appropriate sentence or penalty? The Standard of Review [23] Summary conviction appeals such as this are determined by the Court of Queen’s Bench in accordance with s. of The Summary Offences Procedure Act, 1990, S.S. 1990‑91, c. S‑63.1, and ss. 812(1)(a), 813 and 822 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The powers of this court on appeal, set out in s. 686 of the Criminal Code, are made applicable by s. 822(1) of the Criminal Code. [24] In R. v. Lumbala, 2012 SKQB 64 (CanLII), [2012] S.J. No. 55 (QL), Schwann J. outlined the jurisdiction of this court as an appellate court in such matters as follows: Section 813 of the Criminal Code, R.S.C. 1985, c. C‑46, confers on defendants right of appeal to the Court of Queen’s Bench from convictions made against person in summary conviction matter and against sentence passed upon him. On appeals against conviction, an appeal court may only allow the appeal where it can be shown by the appellant that: 1) the verdict is unreasonable or cannot be supported by the evidence, 2) there was an error of law by the lower court, or 3) there was miscarriage of justice. (See Criminal Code, R.S.C. 1985, c. C‑46, s. 686 and s. 822) An appeal from conviction under s. 822 is an appeal on the record, that is, it consists of review of the transcript to determine if the trial judge made legal error. Put another way, an appeal is not “re‑do” or new trial on the charges before different level of court. On appeals against sentence, which are governed by s. 687 of the Criminal Code, appellate courts must show great deference in reviewing the decisions of trial judges, interfering to vary sentence only if the sentence is clearly unreasonable or demonstrably unfit. 10 The standard of review applied by an appellate court hearing summary conviction appeal is narrow one. An appellate court ought not interfere with decision of trial judge in the absence of palpable and overriding error. The trial judge is to be given proper deference on matters of credibility since the trial judge has the opportunity to see and hear witnesses. (see R. v. Bobyn 2010 SKQB 240 (CanLII), (2010), 357 Sask.R. 211, and R. v. Tesar, 2010 SKQB 449 (CanLII), (2010), 373 Sask.R. 13). [25] In the 2009 Saskatchewan Court of Queen’s Bench decision of R. v. Wilton, 2009 SKQB 405 (CanLII), 345 Sask.R. 81, Mr. Justice Popescul (as he then was), took occasion to review the standard of review for summary conviction appeals. In Wilton, Mr. Justice Popescul opined at paras. 7-12 that: [7] Section 812(1)(d) of the Criminal Code directs that summary conviction appeals in Saskatchewan are to be heard and determined by the Court of Queen’s Bench. The appellant, if defendant, can appeal from conviction, sentence or both. The appellant, if the Crown, can appeal from an acquittal or sentence. See s. 813 of the Criminal Code. [8] The powers of an appellate court, as set out in s. 686 of the Criminal Code, are made applicable to summary conviction appeals by virtue of s. 822(1) of the Criminal Code. [9] Pursuant to s. 686(1) of the Criminal Code, court may allow defendant’s appeal where the verdict is unreasonable and cannot be supported by the evidence, was based on wrong decision on question of law, or on any ground if there was miscarriage of justice. However, the defendant’s appeal ought to be dismissed where, although not properly convicted on an [sic] particular count, he was properly convicted on another count or where there was legal error made but no substantial wrong or miscarriage of justice occurred. [10] Pursuant to s. 686(5), court may allow Crown appeal where defendant was found not guilty by the court below due to an error in law. [11] On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky (J.S.), 2006 SKCA 145 (CanLII), [2007] W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, at para. 74. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re‑examine and reweigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion. See R. v. Burns (R.H.), 1994 CanLII 127 (SCC), [1994] S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C. (3d) 193. [12] On question of law, the standard is correctness, and the appellant court should intervene if the decision is not correct in law unless there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Henry (B.) (2006), 2006 SKQB 469 (CanLII), 286 Sask.R. 154; 2006 SKQB 469; R. v. Shepherd (C.), 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; 289 Sask.R. 286; 382 W.A.C. 286; 2007 SKCA 29. i. Having been found not guilty on Count Nos. and of the Information, can the defendant be found guilty of illegally trafficking forest products in relation to 150 truckloads sold in 2008, 58 truckloads sold in 2009 or the three cords sold to Clarke? [26] Given that: i) the defendant was entitled to harvest dead wood from Crown lands for his personal heating; ii) there was no direct evidence establishing that the wood sold to Clarke or in the 150 and 58 truckloads contained any wood harvested from Crown lands; iii) there was no direct evidence that the defendant was in possession of illegally-harvested forest products; and iv) the finding that during the time period referenced by the Information, the defendant harvested and sold wood from private lands; jury could reasonably have found, as the trial judge found, that the charges of unlawfully harvesting or possessing were not proven. [27] The statement made by the defendant to Clarke that he obtained his wood from Crown land was sufficiently ambiguous that the court should not have taken this as an admission, proving beyond reasonable doubt, that the wood comprising the 150 or 58 truckloads or the Clarke sales came from Crown lands. In any event, as counsel for the defendant argues, the acquittals having been made and not appealed, the Crown is estopped from disputing the validity of the factual or legal issues made in respect of these acquittals. See R. v. Grant, 1991 CanLII 38 (SCC), [1991] S.C.R. 139, 67 C.C.C. (3d) 268, and Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] S.C.R. 810, 19 D.L.R. (4th) 385. [28] The learned trial judge then found the Crown had proven, beyond reasonable doubt, the actus reus of Count No. 3, unlawfully trafficking in forest products and said that given the defendant’s own words to the undercover operator he was not satisfied, on the balance of probabilities, that the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. With all due respect to the learned trial judge, I find this conclusion and reasoning to be in error. [29] am of the opinion that it was essential, for finding of unlawfully trafficking in forest products, in respect of those sales, that the Crown led evidence sufficient to permit the trial judge to conclude, beyond reasonable doubt, that either those sales were made intending that the wood comes from Crown lands or that among the firewood sold to Clarke or within the 150 or 58 truckloads, was wood that was harvested from Crown lands. There was no such evidence and thus, given the standard of review, this line of reasoning cannot support the conviction. The trial judge found the defendant harvested wood for firewood sales from private lands. The agreements for these sales would have had to contemplate the wood coming from Crown lands or the wood delivered would have had to include wood harvested from Crown lands for the offence of trafficking to be made out in respect of these sales. The evidence does not support such conclusion. [30] While in the circumstances one might speculate or even conclude as matter of probability that the sales in question included wood harvested from Crown lands, that is not good enough. There must be proof beyond reasonable doubt that illegally-harvested wood was in fact intended to be or was actually part of such sales for the offence of trafficking to be made out. There was no such evidence before the court. [31] The learned trial judge said that given the defendant’s own words to the undercover operator he was not satisfied, on the balance of probabilities, that the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. With all due respect, this was misapplication of the due diligence defence. It is only if the actus reus is proven beyond reasonable doubt, that considerations of whether due diligence has been proven arises. [32] Where an individual has been harvesting firewood from private lands for sale and firewood from Crown lands for personal consumption (being therefore wood lawfully harvested for that purpose but not lawfully available for sale) the strict liability aspect of the offence charged imposes duty on the vendor to ensure that he does not sell or permit to be included among firewood that he sells wood harvested from Crown land. If the Crown had proven that the wood in any of these sales included Crown land harvested wood, then the actus reus is made out and strict liability leads to the conclusion of such wood having been sold with the requisite mens rea unless the seller proves on the balance of probabilities that he exercised due diligence to ensure that the Crown forest products did not get mixed in. [33] Thus, conviction of the defendant of unlawfully trafficking in forest products on the basis of the sales to Clarke and the previous 150 and 58 truckloads referenced by the defendant cannot be maintained because the qualifying actus reus was not proven in respect of such sales.  However, there is another aspect to the evidence that was not expressly considered by the trial judge and which does sustain conviction. It is trite law that an appeal is from the decision or result and not from the reasons. Thus, if the evidence establishes trafficking via another modality, then the conviction must nonetheless stand. ii. Can conviction for unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act result from negotiations for such sale? [34] Section 2(dd) of the Act defines “traffic” to mean “to offer for sale, sell, buy, exchange, barter, deal, solicit or trade”. Under s. 79(1) it is an offence to traffic in forest products originating from Crown lands without licence. The offence of trafficking as defined by these sections is complete if such forest products are offered for sale without licence. It does not matter that at the time you offer the product for sale that you have not illegally harvested or possessed such product. The offence is complete by offering the product for sale without licence. iii. Can the defendant be found guilty of illegally trafficking in forest products on the basis of his negotiations with Clarke relating to potential sale of 100 cords, when that basis for finding of guilt was not specifically argued before the trial judge? [35] As noted above, it is trite law that an appeal is from the decision or result and not from the reasons. Thus, if the evidence establishes trafficking via another modality, then the conviction must nonetheless stand. iv. Should the defendant be found guilty of illegally trafficking in forest products on the basis of the evidence relating to the potential sale of 100 cords? [36] The offence charged was unlawfully trafficking in forest products. The uncontradicted evidence is that the defendant was negotiating with Clarke to and had offered to sell him 100 cords of wood that he intended to come from Crown land. The defendant was in those conversations offering for sale, selling or dealing in forest products. His actions in those conversations meet the definition of “traffic”. The evidence also clearly establishes that the defendant was doing this with no intention of obtaining permit to harvest the wood to fill the order or obtaining licence to deal in forest products. [37] Under s. 86 of the Act in any prosecution the onus is on the person charged to prove the validity or existence of licence. The defendant led no evidence to establish he had either the required permit to harvest forest products from Crown lands or a licence or any form of authorization to deal in forest products. Thus, the evidence establishes beyond a reasonable doubt that the defendant was guilty of trafficking in forest products contrary to s. 79(1)(f) of the Act as charged. [38] While find the reasoning by which the trial judge convicted the defendant of trafficking to be flawed, nonetheless the defendant was, on the evidence, properly convicted of the offence of trafficking as charged. Therefore, the conviction stands. v. If properly convicted, what is the appropriate sentence or penalty? [39] The evidence establishes the defendant was illegally trafficking in 100 cords of firewood. The fact that the transaction never was completed is irrelevant. The offence was complete by the making of the offer. The clear intention of the defendant was to avoid the $15.00 per cord levy the Province would have imposed. Thus, he would, had the transaction concluded, have avoided payment of some $1,500.00 in provincial levies quite apart from being guilty of trafficking without licence. [40] Of even greater significance in the sentencing process than the actual levies sought to be avoided is the need to deter not only the defendant but other offenders from flouting the law. Accordingly, a fine equivalent to a levy avoided would be inappropriately low since the fine could not in those circumstances act as a deterrent to either the defendant or other offenders. [41] Factoring in that the defendant was in the offence he committed intending to avoid a charge or levy of $1,500, recognizing the deal that he was making did not conclude and thus he did not actually generate revenue from the proposed transaction and considering the need for a significant deterrent to the defendant and other offenders who are committing this offence on a commercial scale, I have concluded that in the circumstances of this case an appropriate fine is $5,000. Accordingly, the defendant shall pay a fine of $5,000. The defendant shall also pay a victim fund surcharge of 40% as required by s. 3 of The Victims of Crime Regulations, 1997, R.R.S. c. V-6.011 Reg. 1. The defendant shall have 60 days to pay the fine and victim surcharge imposed, and in default of payment shall serve a term of imprisonment of 90 days.","The defendant was charged with unlawfully harvesting forest products contrary to s. 79(1)(a) of The Forest Resources Management Act, unlawfully possessing forest products without a licence contrary to s. 79(1)(c) and unlawfully trafficking in forest products contrary to s. 79(1)(f) of the Act. He was acquitted of the first two charges and convicted of the third. He appealed his conviction. He was fined $1,000 with a 40% surcharge. The Crown appealed the sentence. The appellant argued that since he was acquitted of the related charges, it followed that he should not have been convicted of trafficking. The charges had arisen as a result of a lengthy undercover investigation into the activities of the appellant. He was known to be harvesting fire kill in the Nesbitt Forest, which was Crown land. He stored wood on his property and on that of a relative. If the appellant was using it himself, he did not require a permit. The undercover conservation officer purchased fire wood from the appellant, who told the officer that the wood was from Crown land in an answer to officer's question whether it was cut on private land. The appellant did not testify at his trial nor did his relative and so the evidence of the conservation officer was uncontradicted. The evidence presented on his behalf was from individuals who had purchased wood from the defendant. The trial judge held that the charges against the appellant were strict liability offences and once the Crown had demonstrated beyond a reasonable doubt that the prohibited acts had been committed, the appellant had to establish on the balance of probabilities that he had been duly diligent and took all reasonable care to avoid offending. With respect to the first two charges, the trial judge held that he was not satisfied that during the period described in the indictment that the Crown had proven the actus reus of the offences but that it had on the third count, based on the appellant's own words to the officer. The appellant argued on appeal that his words could have been taken to mean that he was describing where he harvested wood for his own use and therefore his statement was not an admission that he sold wood to the officer or anyone else from Crown lands. HELD: The Court held that the trial judge erred in his reasoning and conclusion that appellant was guilty of trafficking because he had not been duly diligent. It is only if the actus reus was proven beyond a reasonable doubt that the considerations of whether due diligence had been proven would arise. The conviction could not be maintained because the qualifying actus reus was not proven. However, the other aspect of the evidence, which was not expressly considered by the trial judge and which would sustain a conviction, was if evidence established trafficking via another modality. Since s. 2(dd) of the Act defines 'traffic' to mean 'to offer for sale, barter, deal, solicit or tradeà' and s. 79(1) states that it is an offence to traffic in forest products from Crown land without a licence, then the offence is complete by offering the product for sale without a licence. The appellant led no evidence to establish he had either the required permit to harvest forest products from Crown lands or a licence or any other form of authorization to deal in forest products. Thus, the evidence established beyond a reasonable doubt that the appellant was guilty of trafficking in forest products contrary to s. 79(1)(f) of the Act. The conviction was upheld. Regarding sentencing, the Court held that it was important to deter other offenders. The trial judge's sentence of a fine equivalent to the levy avoided (the provincial charge per cord of wood) was inappropriately low. The Court set the appropriate fine at $5,000 plus a victim fund surcharge of 40% as required by s. 3 of The Victims of Crime Regulations. If the fine was not paid within 60 days, the appellant would serve a term of imprisonment of 90 days.",7_2012skqb510.txt
36,"T.J. KEENE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB Date: 2015 01 08 Docket: NJ 24 of 2012 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and JESSE MANULAK -and- ALEXANDER HILL -and- NICHOLAS FOSTER Counsel: James Fitzgerald for the Crown Darren Kraushaar for Jesse Manulak Doug Andrews, Q.C. for Alexander Hill Neil Tulloch for Nicholas Foster JUDGMENT GUNN J. JANUARY 8, 2015 [1] Jesse Manulak, Alexander Hill and Nicholas Foster have entered guilty pleas to breaking and entering dwelling house and committing the offence of assault causing bodily harm on December 28, 2011, contrary to s. 267(b) and s. 348(1)(b) of the Criminal Code, RSC 1985, C-46. [2] In addition, Nicholas Foster has entered guilty plea to, on that same date, using an imitation firearm while committing the indictable offence of break and enter with intent to commit the indictable offence of assault, contrary to s. 85(2)(a) of the Criminal Code. [3] The resident of the dwelling house and victim of the assault was Scott Cowan. [4] On December 27, 2011, the three accused went out for few drinks. They consumed alcoholic drinks at Bonzzini’s Brew Pub, at the south Boston Pizza, at Mr. Manulak’s residence and at Mr. Hill’s residence. Their alcohol consumption was extensive and prolonged and all three accused became extremely intoxicated. [5] It would appear from statements provided by the accused to the police that during the course of the evening of December 27th, the three accused shared some information with each other about Mr. Cowan. In Mr. Hill’s statement to the police, he advised them that Scott Cowan had called Mr. Hill’s boss, and had offered to sell him some televisions at suspiciously low prices $200.00 for Sony 60"" flat screen TV and the same price for slightly smaller flat screen TV. Mr. Hill’s boss shared this information with Mr. Hill who decided to purchase TV. Even though suspicious about the transaction, Mr. Hill decided to buy TV and not to ask any questions. He met with Mr. Cowan and paid him total of $300.00, the last instalment being made outside Mr. Cowan’s residence. Mr. Hill did not receive TV. [6] Mr. Hill said he complained to the police about paying the money to Mr. Cowan and not receiving the TV. Initially, he tried to make this complaint anonymously. [7] In Mr. Manulak’s statement to the police, he described similar experience on December 22, 2011 involving his brother Jason. Mr. Cowan had offered to sell Jason 60"" TV for $250.00. Once again, money was handed over, but no TV received. Mr. Manulak indicated that this incident was also reported to the police. [8] It is acknowledged by the Crown that by the time of this incident, complaints had been made but the police had not taken any steps to investigate the complaints made by Mr. Hill or by Mr. Manulak. The Crown also acknowledges that Mr. Cowan never had any TV’s to sell and had no intention of completing either of these transactions. [9] So during night of drinking, these three intoxicated young men discussed Mr. Cowan’s actions and decided to take some action of their own. Mr. Manulak and Mr. Foster wanted to go to Mr. Cowan’s residence to confront him. Mr. Hill did not want to go, but he acquiesced and went along. Knowing little about Mr. Cowan’s criminal history which is extensive Mr. Foster decided to take an imitation firearm which was in Mr. Hill’s residence. This was pellet gun, or BB gun, which had the appearance of real gun. The three accused drove to Mr. Cowan’s residence in Mr. Manulak’s company truck. [10] When the three accused arrived at Mr. Cowan’s residence, they pounded on the door to gain entrance. When not admitted, Mr. Manulak and Mr. Foster approached the back door. Mr. Foster was carrying the imitation firearm and Mr. Manulak was carrying roofing hammer. Mr. Hill hung back, but followed his friends. Mr. Manulak broke window and gained entry. He opened the door for the other two accused. [11] When Mr. Cowan heard them approaching, he made 9-1-1 call to the police in which he reported that his back window was being broken. The police were dispatched at 7:42 a.m. on December 28, 2011. The 9-1-1 recording was available to the court. It would appear that the events involving the assault on Mr. Cowan took approximately three and half to four minutes. The recording reflects the sound of male voices shouting, great deal of profanity, and the sound of blows being struck. It was not possible to attribute comments made to any individual accused. Someone said, “Open your mouth”. Someone said, “I want to blow his head off”. few seconds later, there is the sound of repetitive blows being struck. Someone said “Open your eyes or will kill you”. Someone said, “Wake the fuck up”. Mr. Cowan was repeatedly told to open his eyes. [12] The Crown was not in position to delineate with any precision what each accused did in the house. This lack of precision is attributable to few different factors. The events happened quickly and intensely. The victim was available to testify at the preliminary hearing because he was in custody, but he has not offered his complete co- operation to the Crown. The accused provided statements to the police in which some of the events are detailed. [13] In dealing with the facts, will, in the first instance, set out the Crown’s submissions. will then review the admissions made by the accused in their pre-sentence reports and in the submissions of their counsel. [14] The Crown submits it is clear that Mr. Foster carried the gun into the residence and used it. Mr. Foster put the barrel of the gun into Mr. Cowan’s mouth and threatened on more than one occasion to blow his head off. Mr. Cowan lost either three or four teeth as result of this. Mr. Foster also accepts responsibility for the bumps and bruises on Mr. Cowan’s head. Mr. Cowan initially believed the gun was real, but before the event was over, he knew it was not. [15] Mr. Cowan suffered numerous other bruises and lacerations as depicted in the photo exhibits filed by the Crown on the sentencing hearing. Photographs of some injuries are consistent with the roofing hammer being an assault weapon and this was confirmed by Mr. Cowan in his testimony at the preliminary hearing. Except for the loss of his teeth, there is no evidence that any of the other injuries were significant or long lasting. Mr. Cowan checked himself out of the hospital against the advice of his medical professionals so there is no additional medical evidence to be considered. [16] Mr. Manulak carried the roofing hammer into the residence. Mr. Hill indicated in his statement that “they” threw the roofing hammer to him and it struck him. Mr. Hill further indicated in his statement that he was not too sure, but he thought he gave the roofing hammer to Mr. Foster. Mr. Manulak indicated he wasn’t sure but he thought he struck Mr. Cowan with the hammer. Mr. Hill denies striking Mr. Cowan in any way. He says he went into the house when he heard someone yell something about knife. Mr. Hill says he pulled Mr. Foster away from Mr. Cowan. [17] Mr. Cowan testified at the preliminary hearing that all three participated in the assault against him but not equally. Mr. Cowan indicated that Mr. Hill had lesser involvement. Mr. Cowan says Mr. Hill kicked him several times. Mr. Cowan’s DNA was located on Mr. Hill’s jeans, but Mr. Hill also indicated he fell and may have gotten blood on him that way. The Crown acknowledges that Mr. Cowan may have made an effort to defend himself with knife, although in his testimony at the preliminary hearing he denied that he did this. Mr. Foster asserts in his statement that he was cut with knife and that it was after that he used the imitation firearm. Mr. Manulak mentioned something about steak knife, without details. Mr. Foster did have cut fingers which required bandaging after his arrest. Jesse Manulak [18] In his pre-sentence report, he said the following as reported at p. 5: The subject recalls attending the victim’s residence, however claims “I don’t remember really anything” about the assault that occurred in the victim’s home because “I lost my memory after drinking the rum.” Despite experiencing temporary memory loss, the subject reports “I remember getting arrested” immediately after the index offences. [19] In the written submission made by counsel on behalf of Mr. Manulak he says the following at paras. 9. Jesse’s recollection from that evening is somewhat patchy, given his intoxication. He told police that he consumed twenty or more drinks that night. He does recall some discussion about going to Mr. Cowan’s house to confront him about the scam. He does not recall any plan to break into the house or to assault Mr. Cowan. He doesn’t recall leaving Mr. Hill’s residence to go to Mr. Cowan’s, but does remember arriving at Mr. Cowan’s residence. The group knocked on the door to confront Mr. Cowan. 10. Jesse does recall having the hammer at some point. He acknowledges he was the first person through the window. It was dark in the house. He opened the door for Mr. Hill to come in. He doesn’t recall if Mr. Foster came in through the door or the window. He states that he did not know that Mr. Foster had the BB gun, and he doesn’t recall seeing it during the assault. The intention was to confront Mr. Cowan and possibly scare him into giving the money back. Unfortunately once the three men were inside Mr. Cowan’s residence things quickly escalated. Jesse recalls hearing that Mr. Cowan was armed with knife. He recalls immediately thinking that the situation was bad. Jesse acknowledges he was involved in the assault, but to significantly lesser degree than Mr. Foster. [20] In counsel’s submission to the court he indicated that Mr. Manulak does not remember if he hit Mr. Cowan with the hammer but he does not deny it. Overall, he says Mr. Foster was the most involved, then him and that Mr. Hill had the least involvement. Alexander Hill [21] In his pre-sentence report, Mr. Hill accepts full responsibility for his actions. He exhibited high level of remorse although he did not describe his actual participation. Nicholas Foster [22] In his pre-sentence report, Mr. Foster took full responsibility for his actions. He indicated that the three accused discussed confronting the victim after night of drinking. They broke into the home and confronted the victim. Mr. Foster acknowledged he carried the pellet gun and used it in threatening manner against the victim. [23] Mr. Foster’s counsel filed written submissions at the sentencing hearing in which he described the offence as follows at p. 2: Upon arriving at Mr. Cowan’s residence, Nicholas, Mr. Hill and Mr. Manulak knocked on Mr. Cowan’s door, but received no response. Mr. Manulak, armed with roofing hammer, decided to break window in the back of the residence and enter through it, he then proceeded to open the door for Nicholas and Mr. Hill. Upon entering the residence, Nicholas and Mr. Cowan were involved in skirmish in which Mr. Cowan cut Nicholas’ fingers with knife. It was only after Nicholas was cut by Mr. Cowan, and in the heat of the moment, did he remove the pellet gun from his waistband and proceed to assault Mr. Cowan, along with Mr. Manulak and Mr. Hill, who used their fists, feet, and the hammer to overcome and assault Mr. Cowan. THE PERSONAL CIRCUMSTANCES OF THE ACCUSED [24] pre-sentence report was prepared for the assistance of the court for each accused. The court has relied on the information contained in the pre-sentence report as well as the submissions made by counsel in respect to each accused to provide some background information. JESSE MANULAK [25] Jesse Manulak is now 29 years of age. Mr. Manulak was raised in Regina by his mother and step-father, with limited involvement by his birth father after the age of five. Up to age five, Mr. Manulak would have observed some domestic violence in the home. After that time, Mr. Manulak indicates his basic needs were met and says there was no substance abuse or use in his home. [26] Mr. Manulak graduated from high school, even though he experienced some learning difficulties. He was talented skateboarder while in high school and he received some professional sponsorships which he ultimately lost after he suffered some injuries. Mr. Manulak is an experienced roofer and has maintained full-time employment since age 16. Mr. Manulak taught his twin brother, Jason, the skills needed as roofer and together they have started company called “Masterworks Roofing”. Mr. Manulak is reportedly very hard worker, often working 10 or 11 hours day, six days week. [27] The Crown filed criminal record containing one previous criminal conviction for driving while impaired in Estevan in 2006. Mr. Manulak received $750.00 fine and one year driving prohibition. [28] Mr. Manulak has pro-social supports in his life consisting of his mother, step-father, siblings, and common law partner. He acknowledged to the author of the pre-sentence report that he had history of negative peer associations which involved substance abuse and criminal behaviour. Since the time of this offence, Mr. Manulak states he has severed his ties with this negative peer group and has concentrated on building his company. [29] Just prior to this offence, Mr. Manulak was reportedly drinking heavily. He had broken up with his long-term common law partner and was depressed. He reports that he only remembers being excessively drunk on two occasions, one of those occasions being the time of this offence. Since the offence, the accused states he has maintained his sobriety “pretty much since the offence”. Apparently the one exception to this was at his brother’s wedding last summer, when Mr. Manulak consumed some alcohol. Mr. Manulak’s brother Jason indicated that since the offence, the accused “actually limits himself” when using alcohol. Other than the one occasion last summer, Mr. Manulak submits he has completely abstained from the consumption of alcohol since the offence. [30] In August of 2012, while on bail, Probation Services referred Mr. Manulak to the Addiction Treatment Centre [ATC], to complete an addictions screening assessment. Mr. Manulak attended in 2012 and was found to have moderate probability of having substance dependence disorder. ATC recommended that he complete three sessions of Discovery Group at the Centre. Mr. Manulak completed one of the required three sessions and has had no further contact with ATC since October 16, 2012. Mr. Manulak’s explanation for this is that he did not know he had to complete any further sessions as he was not drinking. [31] Mr. Manulak has maintained his residence as required and has maintained his curfew. number of individuals have written letters of support. The pain being experienced by Jesse’s mother is palpable as she describes the worst day of her life when she received notice of Jesse’s arrest. Mr. Manulak’s grandparents are confident he fully realizes the seriousness of his actions. All speak to his industrious nature and strength of character. [32] Mr. Manulak was assessed by Probation Services as being at medium risk to re-offend. Mr. Manulak believes himself to be at low risk to re-offend. [33] Mr. Manulak was in custody immediately after his arrest from December 28, 2011 to January 9, 2012, period of 13 days. Upon release, he was placed on strict conditions including being confined to his residence and being on electronic monitoring from January 9, 2012 to May 2, 2012 (four months). He remained on curfew after that. [34] When given the opportunity to speak at the sentencing hearing, Mr. Manulak apologized to his family. ALEXANDER HILL [35] Alexander Hill is now 28 years of age. He was raised in Regina by his parents and had good upbringing. He played sports, attended the family cottage on weekends, was not exposed to family violence or the abuse of drugs or alcohol. He has close relationship with his parents and they are pro-social supports for him. He is engaged to be married to Jannah, who is currently employed as nurse. [36] Mr. Hill graduated from high school in 2005 and earned his Red Seal Journeyman designation in sheet metal in 2010. Mr. Hill has been regularly and steadily employed. [37] Mr. Hill states he never was “big drinker” but he has refrained from all alcohol use since the offence and has been attending Alcoholics Anonymous [AA]. Mr. Hill is in good physical and mental health. He has been seeing counsellor since the offence. [38] His counsellor, Dr. Darrell Davis, wrote letter of support for Mr. Hill. Dr. Davis advised that Mr. Hill has demonstrated integrity and willingness to learn from his experiences while in counselling. According to Dr. Davis, Mr. Hill has suffered intense emotional pain resulting primarily from guilt, shame and remorse and has used those emotional experiences for true personal gain and positive learning. Dr. Davis is of the view that Mr. Hill has addressed issues in his life which might be considered to be problematic and contributing factors towards his participation in this criminal activity. [39] significant number of individuals have filed letters of support and character references for Mr. Hill. These people include former employers, family and friends. [40] Notably, these individuals not only report their views of Mr. Hill as an honest, caring, considerate and intelligent young man, but they also report that Mr. Hill has accepted responsibility for his actions and has shown honest remorse. They are convinced this was an isolated incident in the life of Mr. Hill. [41] Mr. Hill has no previous criminal convictions and he accepts full responsibility for his actions. Mr. Hill was assessed by Probation Services as being at low risk to re-offend. [42] Mr. Hill spent 13 days in custody following his arrest. At the time of his arrest, he indicates he was kicked in the face and lost tooth as result. He was in considerable pain for the 13 days he spent in custody. He has been bound by restrictive bail conditions since his release. [43] Mr. Hill had nothing to say when given the opportunity to speak at his sentencing hearing. NICHOLAS FOSTER [44] Mr. Foster is now 28 years old. His parents separated when he was four years of age and he lived with his father and saw his mother on vacations. Mr. Foster describes this separation as traumatic for him. Things deteriorated when Mr. Foster’s father remarried as he did not have good relationship with his step-mother. [45] Mr. Foster completed high school in 2004 and was asked to leave the family home at the age of 17 by his father as result of the conflict between Mr. Foster and his father’s new wife. Mr. Foster continues to have relationship with both of his parents and they are both supportive of him. [46] Mr. Foster participated in some counselling after this offence. He saw counsellor on two occasions, the last being December 18, 2012. Mr. Foster started drinking in grade eleven and, after high school, his drinking escalated dramatically. He would drink if he was bored, would drink alone or with others, and would drink until he was ill or lost consciousness. Since the offence, he has attended 50 to 60 AA meetings. According to his father, he continued to abuse alcohol for time after this offence, but he now denies any substance abuse since early 2012. [47] He has previous criminal record for driving while over .08 in May of 2008. He was fined $2,000.00 and prohibited from driving for one year. [48] Mr. Foster is employed at Sterling Plumbing and Heating. His work ethic has improved dramatically since this offence. He completed his journeyman’s papers in plumbing in the fall of 2014. [49] Mr. Foster accepts full responsibility for his actions and gave statement to the police shortly after his arrest. He is assessed by Probation Services as being at medium risk to re-offend. Mr. Foster believes himself to be at low risk to re-offend. [50] number of individuals filed character references for Mr. Foster. In their view, this is surprising and isolated incident. [51] Mr. Foster was in custody for 13 days following the offence. He has been bound by strict conditions of release. [52] Mr. Foster had nothing to say when offered the opportunity to speak at his sentencing hearing. THE IMPACT ON THE VICTIM [53] Mr. Cowan did not file a victim impact statement with the court and he was not overly co-operative with the Crown once he was out of custody. Mr. Cowan has significant criminal record. It would appear that he engaged in activity which incited these three accused to take some action, once their complaints to police went unaddressed. This is not to say that any of the actions of the accused were justified in the circumstances, but Mr. Cowan may bear some responsibility for setting up set of circumstances which led to unintended consequences. [54] Even without victim impact statement, am still entitled to consider, in sentencing, the effect of this offence on the victim. The circumstances of the offence lead to clear conclusion that Mr. Cowan must have been terrorized by these three individuals. The 9-1-1 recording brings home what was happening during that short but intense time period. THE CROWN’S POSITION ON SENTENCE [55] The Crown submits that denunciation and deterrence are the most important principles of sentencing in this case. [56] The Crown takes the position that the accused should not in any way be excused for their actions as result of Mr. Cowan’s potential fraud on them. Mr. Cowan has been dealt with criminally as result of his interaction with Jason Manulak. Vigilante justice cannot be countenanced, even if the accused had valid complaint. [57] The Crown relies on the comments of Madam Justice Smith in Payne, 2007 SKCA 28 (CanLII) at para 22, 293 Sask 31: 22 At the same time, it is my respectful view that the trial judge nonetheless failed to give sufficient weight to the aggravating factors that did exist in this case. As was pointed out in Pelly, central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who are subject to violence or threats of violence in their homes, where they are out of sight of passers‑by and often unable to summon help. In addition, this was violent offence. The respondent entered this home wielding machete. While the trial judge found that the respondent intentionally struck with the dull side of the machete, and did not intend to use it as knife, he clearly meant to use it, at the very least, for intimidation, and did, in fact, strike the three victims with it. [58] The Crown references the very recent decision of the Court of Appeal in Debigare, 2014 SKCA (CanLII), 433 Sask [Debigare], released January 15, 2014, which involved home invasion and where the accused were treated with considerable leniency compared with previous cases. The Crown notes that Justice Caldwell indicates that these are not standard sentences to be imposed (para. 41). [59] The Crown takes the position that “but for Debigare”, four year sentence for Mr. Manulak and Mr. Foster on the break and enter would be appropriate with slightly lesser sentence for Mr. Hill. Mr. Foster would face in addition minimum sentence of one year for the use of the imitation firearm. Even viewing these circumstances through the lense of Debigare, the Crown takes the same position, without any confidence that its position is sustainable, as it acknowledges that the Debigare decision has changed the landscape significantly in relation to home invasions. [60] In addition, the Crown seeks DNA order, firearms prohibition and forfeiture order in relation to the imitation firearm. THE ACCUSED’S POSITION ON SENTENCE [61] All three accused rely on Debigare. Mr. Manulak and Mr. Hill seek leniency from the court and suggest sentence in the range of nine to twelve months. [62] Mr. Foster relies on Debigare and seeks sentence of one year to 18 months, bearing in mind that there is minimum sentence of one year for the use of the imitation firearm. [63] The starting point in considering an appropriate sentence is always review of the sentencing principles set forth in the Criminal Code. [64] Section 718 provides as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,... [65] Section 348.1 is also relevant. 348.1 If person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. [66] decision on an appropriate sentence must be made with reference to the principles of sentencing earlier quoted. Each case is decided on its own facts and circumstances, but the principles of sentencing will help to inform that decision. will now consider the relevant principles of sentencing as they relate to the case before me: (a) denounce unlawful conduct; and (b) deter the offender and other persons from committing offences. [67] The sentence should denounce unlawful conduct. It should deter the offender and other persons from committing offences. These two principles are often dealt with together as being the objectives of denunciation and deterrence. [68] Courts of Appeal across Canada have dealt with these principles by establishing ranges of sentencing resulting in significant periods of incarceration, even for those without previous criminal records. (See Ross (1999), 1999 CanLII 4397 (MB CA), 138 Man (2d) 75 (Man CA); Harris, 2000 NSCA (CanLII), 181 NSR (2d) 211; Leggo, 2003 BCCA 392 (CanLII), 184 BCAC 150) [69] In Alberta, in Matwiy (1996), 1996 ABCA 63 (CanLII), 178 AR 356 (Alta CA) [Matwiy], the court said the following at para. 26 ... While offences of violence are abhorrent wherever they occur, offences which strike at the right of members of the public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness. Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone, with little hope that help will arrive. Such offences, whether they result in injuries or not, are almost always terrifying, traumatic experiences for the occupants of the residence often leaving them with total loss of any sense of security. [70] Matwiy involved violent home invasion and robbery involving some serious threats to the victims. The Alberta Court of Appeal was prompted to establish range of sentencing starting at eight years for mature offender without previous criminal record. [71] The Saskatchewan Court of Appeal has had much to say over the years on this particular crime. In Seymour (1994), 1994 CanLII 4672 (SK CA), 116 Sask 234 (Sask CA), Sherstobitoff J.A. said this at para 7: ... Crimes of this nature are the very crimes that give rise to public concern as to whether the justice system is adequately protecting the public from what many perceive to be continuing rise in violence and lawlessness in our society. The duty of the court in such cases is to protect the public right to be secure in one's home and the public right to be free from gratuitous and unlawful assaults, and to maintain public confidence in the administration of justice by imposing penalties commensurate to such crimes. The sentences must also be of sufficient force to deter Mr. Seymour as well as others from committing such crimes in the future. [72] In Pelly, 2006 SKCA 60 (CanLII), 279 Sask 252 [Pelly], Cameron J.A. said the following at para. 57 It must be clear to all that crimes of this nature strike at the very core of peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice. So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing ""home invasions"" in order to protect the public from the invasiveness and violence associated with them. [73] The court has also said that consideration must be given to all of the relevant circumstances, even in cases of home invasions. Chief Justice Klebuc (as he then was) said the following at para. 32 in Campeau, 2009 SKCA (CanLII), 320 Sask 132: 32 In sum, Pelly does not impose mandatory starting point sentence of seven years for all forms of home invasion. Rather, as noted in Payne, each case involving home invasion within the meaning of s. 348.1, must be decided on its own facts having regard to aggravating factors such as (i) the motive for unlawfully entering the dwelling‑house; (ii) the degree of violence inflicted on the victim; (iii) the nature of the accompanying listed offences; and (iv) other factors relevant to the listed offences. [74] It is clear and find that denunciation and deterrence are the primary factors for consideration in case such as this. (c) separate offenders from society where necessary. [75] There is nothing in the facts before me which would indicate that it is necessary to separate any of the accused from society. They are all young men. They are all employed. They all have significant number of pro-social supports in their family and friends. They have each been contributing members of society. It is clear that this was an extraordinary event in the lives of each of these young men. The information provided about each of them would indicate that they have taken individual responsibility for their actions and that they appreciate the significance of their actions. Mr. Hill has no prior criminal record. Mr. Manulak and Mr. Foster each have one previous conviction for drinking and driving. Excessive consumption of alcohol was significant factor in the offence before the court. Each of the accused has taken certain steps in relation to the use of alcohol. Mr. Manulak has quit drinking since the offence with the exception of one occasion last summer. Mr. Hill has attended AA meetings and has totally abstained from the consumption of alcohol since this offence. Mr. Foster has acknowledged he has problem with alcohol and has attended 50 to 60 AA meetings since the offence and has completed an anger management workshop. (d) assist in rehabilitating offenders. [76] The only evidence before me is to suggest that this particular action on the part of each of these accused was exceptional. Given the positive steps taken by each of these accused since the commission of the offence, am not satisfied that they require rehabilitation or that incarceration would assist in this endeavour if it were seen to be necessary. (e) provide reparations for harm done to victims or to the community; and (f) promote sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community. [77] Victims have powerful voice in criminal proceedings. This voice is generally heard through their victim impact statements. Mr. Cowan did not file a victim impact statement with the court, but I am prepared to draw the inference that this event would have been terrifying. Mr. Cowan believed initially that the imitation firearm was real. By the end of the incident, he had concluded it was not. Even so, there were three intoxicated and angry young men in his home, assaulting him. The effect of crimes, particularly home invasions, on victims must be acknowledged. [78] The guilty pleas entered by each accused reflect their acceptance of individual responsibility for their actions. Statements provided by the accused to the police also reflect measure of personal acceptance. They were all co-operative after their arrest. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). [79] This is the fundamental principle of sentencing according to the Saskatchewan Court of Appeal as stated in Pelly at para 32. The Court went on to say the following at para. 33 We explained the import of this in R. v. McGinn (1989), 1989 CanLII 4784 (SK CA), 49 C.C.C. (3d) 137, and more recently in R. v. Keshane (D.S.) (2005), 2005 SKCA 18 (CanLII), 257 Sask.R. 161, noting in Keshane that the gravity of an offence lies in its nature, its comparative seriousness, and in the harm caused in its commission. We also explained that the degree of responsibility of the offender lies in the extent of the offender's moral culpability in committing the offence. [80] Clearly breaking into dwelling when someone was home is an extremely serious offence. The gravity of the offence is high, given that the maximum sentence for this offence is life imprisonment. [81] The facts have been recited earlier. At this point, it is valuable to describe as clearly as possible the degree of responsibility of each of the offenders. It is clear that all three accused went to Mr. Cowan’s home with the intention of confronting him and scaring him. They pounded on his door, and when he didn’t answer, they forcibly entered Mr. Cowan’s home, knowing he was home. The forcible entry was not pre-meditated. Mr. Manulak broke the window and entered the house through the broken window. Mr. Manulak then opened the door for Mr. Foster and Mr. Hill. [82] Mr. Foster was armed with the imitation firearm. Mr. Manulak was armed with the roofing hammer. Mr. Hill was unarmed. [83] Mr. Cowan was ultimately hit with the hammer which is evidenced by the bruises he exhibited afterwards. The Crown candidly admits it is unable to say with any precision who did what. Mr. Manulak apparently told the police he thought he hit Mr. Cowan with the hammer but at the sentencing hearing said he didn’t know if he did or not. He acknowledges telling the police he might have struck the victim. Ultimately, he does not deny hitting Mr. Cowan with the hammer he simply does not remember due to his excessive consumption of alcohol. [84] In Mr. Foster’s brief to the court, he said the following at p. 9: “...it is likely that Nicholas’ actions caused Mr. Cowan to lose teeth, and that he more than likely caused the majority of the bumps and bruises to Mr. Cowan’s head....”. [85] Mr. Foster asserts that he only used the firearm because Mr. Cowan was armed with knife and cut him. Mr. Foster did have cuts to his hands at the time of his arrest. [86] Mr. Cowan indicated that all three accused assaulted him, but that Mr. Hill was less involved than the other two. Mr. Foster put the imitation firearm in Mr. Cowan’s mouth, threatening to shoot him. Mr. Cowan lost three to four teeth as result of this action by Mr. Foster. sentence should be increased or reduced to account for aggravating or mitigating circumstances (s. 718.2(a)). Mitigating Factors [87] The three accused entered guilty pleas. They were heavily intoxicated, which in and of itself is not a mitigating factor, but the fact of their intoxication negatives any clear intention to commit this crime. They did not plan this event in advance. None of the accused has any history of violence. The assault on Mr. Cowan was serious, but of brief duration. All of the accused are otherwise fully employed and contributing members of society. [88] Mr. Manulak accepted responsibility for his actions early on and gave a statement to the police. His post-offence conduct has been exemplary. He has turned his life around and has concentrated on building his company. He has one previous conviction but it is unrelated and somewhat dated. [89] Mr. Manulak has been bound by restrictive conditions of release for almost three years. These conditions initially included, in part, the following conditions: that he participate in the electronic monitoring program; that he remain in his residence unless given permission to leave by his bail supervision supervisor; that he live in an approved residence; that he not consume or possess alcohol; that he not travel beyond 40 kilometer radius from his place of residence without written permission from his bail supervisor; that he attend and participate in assessments, programming and treatment for substance abuse as arranged and directed by his electronic monitoring supervisor; and that he have no contact with the victim or the co-accused. [90] Mr. Hill has fully accepted responsibility and has exhibited remorse since the crime was committed. He has attended AA and has complied fully with the conditions of his release. The conditions have been restrictive and include requirement that he reside in residence approved by his bail supervision officer; that he not travel beyond 40 kilometer radius from his residence except for employment; that he abide by curfew and be in his approved residence from 11:00 p.m. to 7:00 a.m. (except for employment); that he abstain from the use, possession or consumption of alcoholic beverages and non-prescription drugs; that he not be in any premises where the primary function is the sale or consumption of alcohol; and that he have no contact with the co-accused or the victim. [91] He has, from the outset, accepted responsibility for his actions. He is deeply remorseful. He has no previous criminal record. He was the least involved in the incident in question. [92] Mr. Foster has accepted responsibility for his actions and has been co-operative throughout. He has admitted he has problem with alcohol and has taken steps to deal with this problem. Mr. Foster has attended many AA meetings and has also taken steps to deal with underlying anger issues and has met with counsellor. Mr. Foster has had difficulty eating and sleeping since this event. He has received medication for depression. His relationship with his long time girlfriend has ended as result of this incident. He has suffered extreme embarrassment and he recognizes daily the effects of disappointing his family and his friends. [93] Mr. Foster has complied with the conditions of his release for almost three years. These conditions included requirements that he live at an approved residence; not travel outside 40 kilometer radius of his approved residence without the prior written permission of his bail supervisor; that he be in his approved residence from 11:00 p.m. to 6:00 a.m. unless given prior written permission to be absent; and that he not have any contact with the victim or the co-accused. Aggravating Factors [94] Pursuant to s. 348.1 of the Criminal Code, these circumstances shall be considered to be aggravating by any sentencing court. [95] In considering this issue, note the comments of Madam Justice Hunter in Akapew, 2009 SKCA 137 (CanLII) at paras 21-22, 343 Sask 155 in relation to parties to offences: [21] The trial judge seemed to be of the view that the sentence to be imposed on Akapew as party to the offences pursuant to s. 21(1)(b) and (c) and s. 21(2), must be less than the sentence imposed on Starr, the principal of the offences in s. 249.1 and s. 221. This factor was emphasized by the trial judge when she considered each of the sentencing principles of proportionality, parity and totality of sentence. [22] Section 21 of the Code provides four ways person is party to an offence: (i) by committing it; (ii) aiding it; (iii) abetting it; or (iv) by having the common intention to carry out an unlawful act and to assist each other person may be liable for an offence beyond that which was initially contemplated. There is nothing in the language of s. 21 that provides that the degree of culpability is different for any of the four ways person may be party to an offence. The sentence for each offender is determined in accordance with the general sentencing principles stated in s. 718 to s. 718.3 of the Code. [96] Section 348.1 is applicable to all three accused even though their level of participation in the crime differs. [97] The aggravating factors which apply to all three accused are that they entered Mr. Cowan’s residence by breaking a window. The circumstances of the crime, as evidenced by the 9-1-1 call, were brief but intense. Two of the three accused were carrying weapons and these weapons were used on the victim. Mr. Cowan has some lasting injuries as a result of losing three to four teeth. sentence should be similar to sentences imposed on similar offenders in similar circumstances (s. 718.2(b)). [98] This is often referred to as the parity principle. As stated by Epstein J.A. in Rawn, 2012 ONCA 487 (CanLII)at para 18 [Rawn]: 18 The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21. [99] In the most recent case of our Court of Appeal in Debigare, there were three individuals. The facts are set out in paras. 3-9 in the decision of Caldwell J.A. as follows: The facts are not complex. At the time of the offence, Mr. Debigare had known Ms. Schachtel for few weeks. They were dating. Throughout their short relationship, Ms. Schachtel had disparaged her former boyfriend, Charles Hein, to Mr. Debigare as she held some bitterness towards Mr. Hein. For his part, Mr. McQuinn was simply friend to Mr. Debigare, but had only known him few months. On November 27, 2011, the respondents were drinking together in Weyburn, Saskatchewan. Ms. Schachtel opined that ""someone should kick the shit out of"" Mr. Hein. Mr. Debigare said he would do it. Neither Mr. Debigare nor Mr. McQuinn knew Mr. Hein. Mr. McQuinn drove the respondents to Estevan, where Mr. Hein lived with his then girlfriend, who was eight months pregnant. Mr. McQuinn drove Mr. Debigare's truck. The respondents arrived at Mr. Hein's mobile home shortly after 8:00 p.m. They all exited the truck, but Mr. Debigare told Mr. McQuinn to go back. Mr. McQuinn ignored him because he wanted to ensure his friend was not ganged up on in Mr. Hein's home. He said he wanted to ""make this fair"". Mr. Debigare armed himself with sledgehammer and Mr. McQuinn armed himself with box‑cutter‑style knife, which he had brought with him. They knocked at the door to Mr. Hein's mobile home and it was answered by resident of the home. Mr. Debigare rushed into the home wielding the sledgehammer. He was confronted by Mr. Hein's dog. The dog attempted to stop Mr. Debigare. Mr. Debigare struck the dog with the sledgehammer causing severe injury to the dog. Mr. Debigare continued into Mr. Hein's home while swinging the sledgehammer. Some damage was done to the home and its contents. Mr. McQuinn followed Mr. Debigare into the home. Mr. McQuinn had masked his face and was brandishing the knife. Mr. McQuinn found himself facing two men who were visiting the residence. He confronted them while holding his knife and told them to sit on the couch in the living room and not to move. He then followed Mr. Debigare to the back of the home. Once Mr. McQuinn had exited the living room, one of the men he left there called 9‑1‑1. Ms. Schachtel entered the home after Mr. Debigare and Mr. McQuinn. She was known to all of the individuals present in the home. Ms. Schachtel was screaming, ""Charlie deserves this"". Upon Ms. Schachtel's entry, one of the female occupants of the home retreated to back bedroom where her baby had been sleeping in crib. It appeared to her that someone had entered the baby's room. She locked herself and her baby in that bedroom until after the respondents had fled. Mr. Hein and his girlfriend were in their bedroom with the door closed. They heard the commotion caused by the respondents' entry to their home. Then, Mr. Debigare smashed their bedroom door off its hinges with the sledgehammer. Mr. Debigare entered the bedroom and began to punch Mr. Hein. Mr. Debigare said he ""punched him out"", although the assault was brief. Mr. McQuinn entered the bedroom while Mr. Debigare was assaulting Mr. Hein. Either Mr. Debigare or Mr. McQuinn pushed Mr. Hein's girlfriend down onto the bed. Ms. Schachtel then entered the bedroom and began to assault Mr. Hein's girlfriend. She struggled with her on the bed and then struck her repeatedly with pillow. While doing so, Ms. Schachtel screamed at Mr. Hein's girlfriend and said something about her being pregnant with Mr. Hein's child. The respondents then all left Mr. Hein's home. But, before doing so, Ms. Schachtel twice warned the occupants that if any of them said anything about the incident or called the police she and her accomplices would be back for retribution. In the end, Mr. McQuinn had to drag Ms. Schachtel out of the home. She stole blanket when she left. [100] None of the three accused had previous criminal record. Mr. Debigare was 23 years old and of Métis ancestry. He co-operated with the police and was remorseful. He had never been unemployed. Post-offence, he attended an alcohol treatment program. Mr. McQuinn was 25 years old. He co-operated with police and was remorseful. He was employed in the oil industry. Ms. Schachtel was 20 years old. She admitted to using alcohol and cocaine on regular basis. She had sought treatment but had been unsuccessful in addressing her addictions. She had some periods of employment. [101] The Court of Appeal set aside the suspended sentence imposed by the trial judge and substituted sentences of two years less one day for Ms. Schachtel followed by three years probation; 18 months for Mr. Debigare followed by 18 months probation and 10 months for Mr. McQuinn followed by 18 months probation. In doing so, Justice Caldwell said the following at paras. 41-42: 41 want to make it perfectly clear that in varying these sentences in this way am not suggesting the sentences now imposed are standard sentences to be followed in offences under s. 348(1)(b) which might be characterised as home invasions. The varied sentences are, in my opinion, lenient sentences where the leniency was called for chiefly by reason that none of the respondents had criminal record prior to their commission of this offence. 42 Moreover, the leniency of sentence is warranted with respect to Messrs. Debigare and McQuinn also by their respective post‑sentence conduct and by the plainly aberrant nature of their offending in this case. Restorative justice had role to play in their sentences in the circumstances and the rehabilitative efforts of Messrs. Debigare and McQuinn have had considerable tangible impact on the length and nature of their sentences as set out above. This is because their rehabilitative efforts have so obviously extended beyond the usual pre‑sentence promises of reform, which seem all too frequently forgotten following the imposition of lenient sentence. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)). [102] Balancing the various factors in order to arrive at an appropriate sentence is very difficult task for trial judge. As counsel for Mr. Foster so poignantly put it these were the worst five minutes of these young men’s lives five minutes they will pay for for the rest of their lives. [103] In C.A.M., 1996 CanLII 230 (SCC), [1996] SCR 500 at 566, the Court commented on the position of the trial judge at sentencing: .. sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have strong sense of the particular blend of sentencing goals that will be ""just and appropriate"" for the protection of that community. The determination of just and appropriate sentence is delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of sentencing judge should thus not be interfered with lightly. [104] In Debigare, Justice Caldwell found that the suspended sentences initially imposed were demonstrably unfit. He held that the suspended sentences imposed failed to satisfy the sentencing objectives of general denunciation and deterrence and they did not properly reflect the fundamental principle that sentence must be proportionate to the gravity of the offence and the offender’s moral culpability in committing it (para. 16). [105] Justice Caldwell further held that an offence pursuant to s. 348 where s. 348.1 was applicable would always mandate the placement of the sentencing objectives of denunciation, deterrence and protection of the public “at the foremost when judge is fashioning sentence which properly contributes to respect for the law and the maintenance of just, peaceful and safe society” (para. 20). [106] This is consistent with the approach taken by the Ontario Court of Appeal in Rawn. There, Justice Epstein (with Weiler J.A. and Watt J.A. concurring), said the following at para. 33 General deterrence and denunciation are the most important factors in the determination of sentence in case such as this one: see R. v. Nusrat, 2009 ONCA 31 (CanLII), 244 O.A.C. 241. Other, like‑minded people need to know that irresponsible use of motor vehicle on our highways will not be countenanced. sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment: R. v. B.W.P., 2006 SCC 27 (CanLII), [2006] S.C.R. 941, at paras. 2‑5. [Emphasis added] [107] In Debigare, Justice Caldwell held that the facts before him put the offence at the lower end of violent home invasions. [108] will now consider the factors Justice Caldwell considered to be aggravating in Debigare in an attempt to compare them to the circumstances before me. Mr. Debigare and Mr. McQuinn did not know anyone in the house. Here, Mr. Manulak and Mr. Foster were known to the victim as result of their previous business dealings. Mr. Debigare and Mr. McQuinn armed themselves, thereby escalating the probability of serious personal injury. Here, Mr. Foster was armed with the imitation firearm and Mr. Manulak was armed with the roofing hammer. Mr. Hill was unarmed. None of these three accused were masked. Mr. Debigare overcame resistance to his entry to the home by the use of force, and Mr. Debigare severely injured the dog. In the case before me, all three accused entered the house without an invitation to do so. When Mr. Cowan did not grant them entry, Mr. Manulak broke window and gained entry that way. Mr. Manulak opened the door for the other two accused. [109] Justice Caldwell found that in Debigare, each of the accused were responsible for the events, although to different degrees. Mr. McQuinn was considered to be the least culpable and he masked himself, and armed himself and willingly participated in an assault on complete stranger after breaking into that stranger’s home. [110] comparison of the facts before me and those in Debigare would lead me to conclude that absent the imitation firearm, the facts of Debigare were generally more serious, the length of time during which the occupants of the house were being terrorized was longer and the actions of the accused involved more premeditation in Debigare. [111] Here, the fact that this is Mr. Hill’s first criminal offence is unusual, given that it is such serious offence. This is equally applicable to Mr. Manulak and to Mr. Foster who each had one previous conviction for drinking and driving which are offences of quite different nature. All three accused here are young men. They are all high school graduates and they have all gone on to become productive members of society. They co-operated with the police. They are all remorseful. They all consumed excessive amounts of alcohol on the night in question. [112] After the offence, all three accused have been bound by restrictive conditions for significant period of time approaching three years. There have been no reported breaches. Mr. Manulak has started successful roofing company with his twin brother, Jason. Mr. Manulak works long hours as his company continues to gain new clients. Mr. Hill, who has his journeyman’s status in sheet metal, has new employer. Mr. Foster has obtained his journeyman’s designation in plumbing. He has been promoted by his current employer and he supervises six man crew at various jobs. He has volunteered his time with PlayLotz Contracting, assisting in the building of playgrounds in low income areas of Regina. [113] In terms of the reasons for leniency in Debigare, the focus was on the accused’s lack of criminal record and post-sentencing conduct. Here, Mr. Hill has no criminal record and Mr. Manulak and Mr. Foster have no related records. All of them have had exemplary post-offence conduct. [114] In light of the position taken by the Court of Appeal in Debigare, and considering the principles of parity, I am prepared to extend leniency to Mr. Hill, Mr. Manulak and to Mr. Foster. However, the sentence impose will clearly denounce their unlawful conduct and will deter others from committing like offences. In my view, some period of incarceration is necessary to satisfy the requirement for denunciation and deterrence in committing this most serious offence. [115] All three accused received very positive pre-sentence reports. As the authors of some of the reports referenced conditional sentence as an option, it perhaps bears mentioning that conditional sentence is not available at law. [116] find that Mr. Hill was the least involved and is entitled to the greatest degree of leniency. This is acknowledged by the Crown. Mr. Manulak’s participation was more extensive in that he was armed with the roofing hammer and he physically broke into the house, and then let the others in. Mr. Foster is the most culpable of the three in that he carried the imitation firearm, for which he must serve mandatory minimum period of incarceration consecutive to any other sentence. But beyond that, he terrorized Mr. Cowan by placing this firearm in his mouth at the time threats were being made to the victim. This act alone is deserving of additional punishment to serve as deterrence to others. [117] Accordingly, I sentence Mr. Hill to a period of incarceration of ten months followed by a period of probation for eighteen months. The terms of the probation are the following: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada. [118] Ancillary orders pursuant to s. 109, s. 487.051 and s. 737 of the Criminal Code are mandatory. There will be an order forfeiting the imitation firearm pursuant to s. 491(1) of the Criminal Code. [119] I sentence Mr. Manulak to a period of incarceration of 11 months followed by 18 months probation on the following terms and conditions: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada. [120] Ancillary orders pursuant to s. 109, s. 487.051 and s. 737 of the Criminal Code are mandatory. [121] I sentence Mr. Foster to a period of incarceration of 12 months less one day on the break and enter charge and one year consecutive on the charge under s. 85(2)(a) of the Criminal Code to be followed by 18 months probation on the following terms and conditions: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada.","HELD: This was an extraordinary event for all of the accused and nothing in the evidence suggested that they required rehabilitation or that incarceration would assist in rehabilitation. The victim did not provide a victim impact statement, but the court concluded that the event would have been terrifying for him. The gravity of the offence was high given the maximum sentence of life imprisonment. The court found the following mitigating factors: 1) guilty pleas; 2) the event was not planned in advance, it was prompted by alcohol use; 3) the assault was serious but brief; 4) the accused were all employed and contributing members of society; 5) the accused all accepted responsibility for the offence; and 6) the accused all complied with strict release conditions for three years. The aggravating factors were: 1) s. 348.1 of the Criminal Code was applicable to all accused even though their level of participation differed; 2) they entered the victim’s residence by breaking a window; 3) the crime was intense; 3) two of three accused had weapons and used them on the victim; and 4) the victim had some lasting injuries from losing three to four teeth. The court was prepared to extend leniency to the accused; however, some period of incarceration was found necessary to meet the objectives of deterrence and denunciation. A.H. was sentenced to 10 months incarceration, J.M. to 11 months incarceration, and N.F. to 12 months less a day incarceration for the break and enter charge and one year consecutive incarceration on the s. 85(2) charge. All accused were given an 18-month probation period to follow their incarceration. Terms of the probation included counselling as required and no contact with the victim.",8_2015skqb6.txt
37,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 127 Date: 20051115 Between: Docket: 1021 James Garry Hunter (Petitioner by Counter-Petition) and Beverley Anne Gutenberg (Respondent by Counter-Petition) Coram: Vancise, Sherstobitoff Richards JJ.A. Counsel: Timothy E. Turple for the Appellant Lynne Greenhorn for the Respondent Appeal: From: 2004 SKQB 373 (CanLII) Heard: November 15, 2005 Disposition: Dismissed (orally) Written Reasons: November 16, 2005 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Richards SHERSTOBITOFF J.A. [1] The appellant appeared for his trial in matrimonial matter after peremptory adjournment. He refused to participate in the proceedings and the judge ordered that the trial proceed without him, although the judge did allow friend to give evidence on his behalf. She rendered judgment dividing the matrimonial property and dismissing the appellant’s claim for maintenance. The appellant now appeals the decision on the ground that the trial should not have proceeded in his absence. [2] The trial judge, in her reasons for judgment, carefully explained the background of the matter. The trial had been adjourned several times in the past. The appellant had, during the course of the proceedings, fired one lawyer, and another lawyer had withdrawn. The appellant had been forewarned, in writing, that the trial would not be adjourned for any reason less than medical certification that his health would be put into jeopardy by his attendance at trial. He filed letters from two doctors. The first outlined the medical conditions from which the appellant suffered and stated that it was given “to support representative to be present for court proceedings on behalf of the above patient”. The second said that “his condition is adversely affected by emotional stress and, and it may be to his advantage to appoint someone to act on his behalf in his impending court case.” [3] At trial, the appellant appeared with friend, Mr. Hawke, and told the court that he was incapable of representing himself and that he needed lawyer. He then withdrew from the courtroom. The court, through Mr. Hawke, offered several accommodations to encourage him to participate, including allowing his friend to sit with him, provision of written instructions on the conduct of trial by self-represented litigant, time for consultations and preparation during the trial, and private room for consultation. The appellant refused to return to the courtroom. [4] The trial proceeded in his absence. Mr. Hawke was allowed to give evidence on behalf of the appellant after advising the court that the appellant wanted him to give evidence. [5] The court granted divorce, divided the matrimonial property, and dismissed the appellant’s claim for maintenance since no evidence was led with respect to it. [6] We can find no error in the decision of the trial judge. The medical opinions fell far short of justifying anything other than allowing someone else to represent the appellant, but the appellant had already demonstrated an inability to obtain the services of lawyer acceptable to him and the appellant declined to proceed with Mr. Hawke at his side. The appellant had no suggestions as to how to proceed, but simply declined to participate. While the condition of the appellant must be of concern, the evidence did not indicate any inability to either instruct counsel or to represent himself in court. In the circumstances, the trial judge had little choice but to do exactly what she did. [7] The authorities cited by the appellant in his factum have no application to this case as they all deal with situations where a person did not appear at his trial. In this case, the appellant appeared, but refused to participate. For the same reason, Queen’s Bench Rule 271 has no application. [8] In the circumstances, we have no choice but to dismiss the appeal with costs.","The appellant appeared for his trial in a family law matter. He refused to participate and left. The judge ordered that the trial continue without him. A judgment was rendered, dividing the matrimonial property and dismissing the appellant's claim for maintenance. The appellant now appeals on the ground that the trial should not have proceeded without him. HELD: The appeal is dismissed. 1) There is no error in the decision of the trial judge. The medical evidence did not indicate any inability to either instruct counsel or to represent him in Court. The trial judge had little choice but to do what she did. 2) The authorities cited by the appellant have no application to this case as they all deal with situations where someone did not appear at his trial. In this case, the appellant appeared but refused to participate. For the same reason, Queen's Bench Rule 271 has no application.",2_2005skca127.txt
38,"1993 File No. 1201‑47245 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: ALICE BERYL HICKEY and THOMAS EARLE HICKEY, JR. DECISION HEARD: at Halifax, Nova Scotia before the Honourable Justice Margaret J. Stewart on March 21 and 22, 1994 DECISION: May 25, 1994 COUNSEL: Graydon Lally, for the petitioner Kay L. Rhodenizer, for the respondent Stewart, J.: On August 29, 1980, Alice Beryl Hickey and Thomas Earl Hickey, Jr. were married in Moncton, New Brunswick. They have two children, Conor Andrew Hickey, born January 27, 1989 (7 years) and Braden James Hickey, born September 13, 1988 (51/2 years). The parties separated in June of 1992, and Mr. Hickey voluntarily left the matrimonial home in late November, 1992. am satisfied that all procedure and jurisdictional matters have been properly proven. There has been marriage breakdown and the divorce is granted. The parties\' claim under the Matrimonial Property Act, R.S.N.S. 1989, c. 275 and for Corollary Relief under the Divorce Act, R.S.C. 1985 (2nd Supp), c. 3 was resolved by agreement, prior to trial, except for1. how the children\'s investments, in the approximate amount of $2,000.00 each, should be administered;2. custodial alternatives ‑ sole or joint custody;3. specific access;4. quantum of child maintenance. 1. The Children's Investments Investments in Canada Savings Bonds and Mutual Funds exist in the children's names in the approximate amount of $2,000.00 each. Mr. Hickey disagrees with the investment strategy of using Canada Savings Bonds as he questions whether they yield an appropriate return. He proposes that the investments be jointly administered and controlled by the parties or alternatively that half the investments be transferred to his control to hold in trust and to administer, and the other half be held and administered by Mrs. Hickey. After hearing each other's positions, this issue was resolved at trial. The Corollary Relief order shall reflect the parties' agreement for each parent to hold in trust and administer one‑half the investments. would remind the parties that this is the children's money and they are responsible and accountable to the children for the monies. 2. The Custodial Alternatives sole or joint custody Mr. Hickey seeks equal parental control and responsibility by an order for joint custody under s. 16(4) of the Divorce Act. Mrs. Hickey, proposes sole custody, wishing to be the final decision maker in matters relating to the children\'s welfare, growth and development while being prepared to promote maximum contact between the children and their father to the extent that this is consistent with the best interests of the children. She is not adverse to consulting and seeking his input prior to making important or major decisions affecting the children. The day to day physical custody, and decision making during this period are her greatest concerns. am required to consider the best interests of the children of the marriage, having reference to their conditions, means, needs and other circumstances. (s. 16(a)). have reviewed and considered the extensive case law provided by counsel. (Zwicker v. Morine (1980), 1980 CanLII 2547 (NS SC), 38 N.S.R. (2d) 236 (N.S.S.C., AD.); McCann v. McCann (1993), 1993 CanLII 4675 (NS SC), 120 N.S.R. (2d) 59 (N.S.S.C., T.D.); Hines v. Hines (1992), 40 R.F.L. (3d) 274 (N.S.S.C., T.D.); Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. CA.); Fry v. Silkalns (1993), 1993 CanLII 254 (BC SC), 47 R.F.L. (3d) 169 (B.C.S.C.); Donnelly v. Donnelly (1988), 85 N.S.R. (2d) 257 (N.S.S.C., T.D.); Buckroyd v. Garratt (1990), 98 N.S.R. (2d) 29 (N.S.F.C.) ;Baker v. Baker (1978), R.F.L. (2d) 193 (Ont. H.C.); Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), R.F.L. (2d) 236 (Ont. C.A.); Kaemmle v. Jewson (1993), 50 R.F.L. (3d) 70 (Ont. H.C.); Parsons v. Parsons (1985), 48 R.F.L. (2d) 84 (Nfld. S.C., Unified Family Court); S.C.C. v. P.P.C. (1993), 122 N.S.R. (2d) 205 (N.S.F.C.); Glasgow v. Glasgow (1983), 57 N.S.R. (2d) 355 (N.S.S.C., A.D.); MacKinnon v. MacKinnon (1988), 84 N.S.R. (2d) 363 (N.S.F.C.); Carruthers v. Carruthers (1982), 55 N.S.R. (2d) 88 (S.C., T.D.); Sullivan v. Sullivan (1989), 91 N.S.R. (2d) 404 (S.C., T.D.); Turner v. Turner (1991), 102 N.S.R. (2d) 316 (S.C., T.D.) There is no issue as to parenting abilities. Each acknowledges the other as fit and proper parent with appropriate and, for the most part, equatable philosophies and approaches to child development. They are both caring, capable and equally acceptable parents who are involved and proud of their children. Employed at Dalhousie University Killam library for the past fourteen years, as librarian assistant, Mrs. Hickey has worked part‑time since 1987, on three day week basis from 8:00 a.m. to 5:00 p.m. She presently has Mondays and Fridays off. The decision to work part‑time was mutual one and permitted her to spend more time with the children and to assume responsibility for the scheduling and organizing of their activities, including health care appointments. Her employer has proved to be flexible and allows her to use vacation days on short notice when the children are ill. During the marriage, she was the parent to respond to any emergencies during the work day and reserved one week of her vacation time for such emergencies. Mr. Hickey works full time as an environmental consultant with Jacques Whitford Association Limited and is able to schedule his work schedule for the most part around the children. He is not as immediately accessible during the day as Mrs. Hickey. During the marriage, he was actively involved in caring for the children including such things as meal preparation, putting them to bed and attending at sporting activities. Throughout their lives, the children have had the benefit of one constant, outside the home, sitter, whom the parties continue to use. Both children now attend school and they are dropped off and picked up at the sitters during the school year. As of trial date, the parties were separated for sixteen months. Mrs. Hickey and the two children continue to reside in the matrimonial home and since June, 1993, Mr. Neil Stover widow and long‑time family friend, and his two boys, ages four and five have resided with them. Since August, 1993, Mr. Hickey has been renting three bedroom townhouse ten minutes from the matrimonial home and the sitter's home. For the first six months following the physical separation in November of 1992, Mr. Hickey attended at the matrimonial home on Tuesday and Wednesday evenings to care for and interact with the children as well as to bathe and put them to bed. Split weekend access was shared by the parents for the first month or so and then changed to alternating weekends. Justice Gruchy, in an oral decision on June 30, 1993, following an interim custody hearing, ordered joint custody of the children, with maximum exposure to each parent through, among other provisions, regular alternating weekend contact by the father from Friday evening until Sunday and during the week, while the children engage in their regular activities, on two consecutive overnights from Tuesday after school until Thursday, when they are to be picked up by their mother. In ordering this joint custody, Justice Gruchy made specific to ""access"" the following comments: again emphasize that my decision, especially with respect to access, is intended to be interim only. do so, because as the children get older, it would be foolhardy to have them going from home to home during the week. Children in the school need stability of one home and uniformity of approach with respect to school work, bedtime hours, television watching and many other activities. At their present ages, that need may not be as pressing as it will be in year or so; therefore, subject to such changes make below, will order that the respondent will have access. He also provided that the joint custody would only continue to January, 1994, in the hope that the trial would by then have moved along. Mrs. Hickey notes regressive behaviour by the children since this interim order. She describes them as being more subdued, clingy and wanting to be with her upon their return home. Unclear as to whether it was during the summer or the fall, she observes Conor has commenced carrying his blanket with him again and guidelines had to be set as to when and where he can have it. Braden commenced crying spells at daycare and in the fall when he first started school. This is now ceased. She specifically finds Conor, at times, to be more aggressive towards her, rude and inclined to answer back. Since the fall, she notes the evening ritual of going to bed has become prolonged with requests by both for back rubs and having difficulty in getting to sleep. She observes their sleep pattern appears disturbed. She cites one incident of Conor falling asleep on the school bus. She raises concern that the children find the week day overnight schedule confusing and points to them regularly asking her the where, whom and when's of their times with each parent. Under cross‑examination, she agreed she had not resorted to colored calendar setting out the particulars to assist them with concepts and times. She also agreed that nothing to date has caused her to seek counselling for the children. Mr. Hickey sees no significant difference in the children during the last eight and half months of functioning under the parenting schedule set out in the interim custody order. The children appear to be happy and content to be with him. He is unaware of any sleep difficulties and usually has them in bed by 8:15 or 8:30 p.m. This is approximately fifteen minutes to half an hour later than Mrs. Hickey. Although they can call their mother, at any time they wish, he observes that usually it is she who calls them. He places no significance on Conor's recent re‑attachment to his blanket. Through his counsel, he points to the order coinciding with Mr. Stover and his two young boys moving into the matrimonial home and an obvious need for making adjustments and learning to share, despite the children's life‑long friendship with the Stover children. The February, 1994 school report cards reflect no behavioral problems by either child, and Conor's card reports him functioning at highly satisfactory level. Mr. Hickey expresses concerns that the primary focus of the time he will have with the children, without week day overnights, will end up being the activities they are enrolled in rather than allowing him, at the same time, to foster meaningful relationship through basic normal family functioning and interaction such as homework completion, bath time, story time, sharing of breakfast, etc. He does not want to react to the children's needs but rather to be part of the nurturing and channelling of their potential attributes. Without the specifics set out in parenting. plan, allowing him to be decision maker during the times the children are scheduled to be with him, he is not confident that Mrs. Hickey will acknowledge the children's need to benefit from having both parents' guidance and input; rather she will always make their scheduled activities the necessary primary focus during the week nights they are with him. He cites as examples, soccer and day camp scheduling during March break. He notes that her failure to communicate the latter resulted in him having two less days in which to go away with the children during the break. Mr. Hickey points to some demonstrable evidence of past co‑operation prior to the interim order which shows the parties' ability to agree for the benefit of the children. For example, he notes the free flow of toys between households, Mrs. Hickey's placement of school notices into the children's overnight bag for his information, the regular uninterrupted telephone access between the children and the other parent and their ability to change from split weekends to alternating weekends when they realized this was better for everyone. Mrs. Hickey expresses confusion as to what Mr. Hickey is proposing in terms of the specific rights and obligations of each parent when the children are in the specific care of the other. Is she to be excluded from the decision making process respecting the children's care while in their father's care or is it implicit that both parents must co‑operate in joint decision making regardless of which parent has physical custody of the children? She cites babysitting arrangements as an example. Besides being comment on the inadequate communication level between them, her confusion is understandable given Mr. Hickey's response on cross‑examination concerning who would make the sitter arrangements. His response was not totally in keeping with joint cooperative decision making theme. While confirming his responsibility for the children, while in his care on weekdays, he stated that at present, he would not be looking for or making different day care arrangements. He then, however, qualified it with ""but might"" before proceeding to indicate his satisfaction with the present sitter who had been mutual choice and then later spoke in terms of them both possibly seeking alternative day care arrangements in the future. accept that both parents are willing and able to facilitate and encourage close and continuing parent‑child relationship between the children and the other parent. They vary in how this is to be achieved. There is nothing calculated or agenda setting in either of their approaches which is intended to interfere with the other parent. They are motivated by their interest in and concern for the children and not by desire to intentionally interfere or usurp the other parent's relationship with the children. am satisfied that both parents have been advised by their lawyers of the advisability of resolving custody access and support disputes by negotiation or mediation pursuant to s. (2) of the Divorce Act and are aware of the inherent limitations of the adversarial legal process through this application and their various prior court appearances. As parents, they are intelligent, civil individuals who have made an effort to avoid drawing their children into their own stressful relationship. This they achieve by avoiding total contact with one another and unfortunately it has flowed over into how they deal with concerns for the children. This lack of contact concerning the children is truly problematic. Joint custody is complex and there are many details of logistics, timing and notices to be discussed and worked out. It demands frequent contact and people who are flexible, accommodating, trusting and motivated to make it work. Although it can be judicially encouraged and endorsed, parental cooperation cannot be easily ordered. Common sense tells us that parental cooperation and ability to communicate is central to its success. (RE: J. and C.; Catholic Children's Aid Society of Metropolitan Toronto v. S. and S. (1985), 48 R.F.L. (2d) 371 at 381 (Ont. Prov. CO. The specifics of this case lead me to believe that the parties, who have functioned under joint custody order for eight and half months, need more than the tool or the guide that is being suggested by Mr. Hickey in his detailed proposal. Communications are so strained, Mr. Hickey really wants daily road maps to tell each of them exactly what to do with and for the children in order to accommodate the parents' inability to communicate. They lack flexibility to discuss and communicate and the will to resolve without regular court interference. Of the two parents, find that Mrs. Hickey appears to be more flexible and accommodating. Since the interim order for joint custody, in June of 1993, it has been necessary for the parties to return to Court to resolve Christmas access, as they were not able to agree on the interpretation of the order or resolve the holiday visitation between themselves. This application, before Justice Saunders, coincided with an application to vary the interim maintenance and was before pending appeal by both parties early in the new year of the interim joint custody order itself. Both the Supreme Court and the Appeal Court dismissed the matters and Justice Saunders clarified for the parties visitation over the 1993 holiday season. During the trial, it was necessary for me to make inquiries about the parties' position on the appropriate arrangements for Easter vacation and then having to order it rather than being presented with their agreement. The decision consisted of Mrs. Hickey having Easter weekend 1994 as Mr. Hickey had it the year before when it was suppose to be Mrs. Hickey's turn. This pattern so early on does not fair well for continued joint custodial arrangement. To date, it has not been the ""occasional resort"" to the Court referred to by Wilson, J. in her dissent at p. 73 in Krugger v. Krugger (1980 ), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52. It is impossible to determine the source or the reason why the symptoms or responses of the children as described by Mrs. Hickey are occurring. It could be any single or combination of factors that have occurred since June 30, 1993. It is possible that two consecutive week day overnights with their father are causing disruption and discontinuity to the children's developmental needs. cannot lightly dismiss the children's reaction. accept them as fact and not as fabrication by parent who is strongly opposed to joint custody. have also considered the possibility, among many others, that the week day overnights with their father provides them the benefit of one parent's concentrated focus. On the other band, at their mother's home they have the constant presence of two other young boys. am conscious of the benefit to be derived from both parents' guidance and input on regular basis. Having heard the evidence specific to these children, do, however, agree with and give substantial weight to Justice Gruchy's comments in his interim order about it being foolhardy to have the children going from home to home during the week. Children of this age need security, stability, continuity and the confidence engendered by regularity, particularly during the school year. Their present schedule allows for only five consecutive nights in one bed over fourteen day span. am left to weigh among other factors, the need of the children for an on‑going relationship with two equally responsible parents who will contribute to their emotional and developmental needs and help them mitigate the obvious effects of the parental separation, the potential for disruption and discontinuity in their developmental needs by certain joint custody arrangements, and the effect upon the children of exposure to on‑going custody litigation. Having in mind the best interests of the children, I am satisfied the present joint custody arrangement is not working on a day‑to‑day decision making basis. I order that both parents continue to share equal rights and responsibilities for major matters affecting the children\'s welfare specifically in the areas of formal education, religion and major health issues, while ordering the mother to have sole responsibility and decision making authority for the day‑to‑day physical care and control of the children and the father generous access. The evidence did not reveal any pressing or immediate differences of philosophy or opinion between the parties in these major areas. Both are supportive of French emersion and express no strong religious preferences or concerns. At present, these do not appear to be areas of conflict between the parties, that would require immediate dialogue or open communication. These are areas of significant importances to the children's development and they should have the benefit of both parents' thoughts and input. When the need arises for decisions in these major areas, the parties will have to dialogue to achieve solutions for the benefit of the children. If the present communication impasse has not been overcome in the meantime then, in the interest of the children, one of the parties will have to be given the responsibility of making final decision in these areas. One of the factors that may be considered on any future review will undoubtedly be the willingness of each party to work at achieving meaningful dialogue in order to reach solution most beneficial to the children. am concerned about the lack of dialogue between the parties to date. With respect to these major areas, in view of the lack of immediate urgency, am continuing with the spirit of joint decision making because of its obvious desirability in promoting the interests of the children. If, by the time some decisions in these areas are required, the impasse has not been overcome, then the interest of the children will dictate the need for decision maker. 3. The Access Plan During the course of the direct and cross‑examination, the parties indicated their agreement to number of provisions concerning the children, being incorporated into the Corollary Relief Judgement. The following shall be reflected in the order: A. Neither party shall change the children's surnames, either legally or by common usage without prior mutual consent. B. Neither party will apply to obtain passport for the children without the prior written consent of the other, such consent shall not be unreasonably withheld. C. Each parent shall appoint the other as guardian of the children in any will they execute. D. If Mrs. Hickey intends to move more than fifty kilometres from her present residence, she shall give Mr. Hickey minimum of ninety days notice of her intention to move and if Mr. Hickey disagrees with the proposed move, he may apply to court of competent jurisdiction for review of the custody and access. have reviewed the access provisions submitted for my consideration at hearing by Mr. Hickey. Following his format, am prepared to adopt the provisions as agreed by the parties and order pursuant to s. 16 as the minimum access to the father, the following: GENERAL PROVISIONS 1. The parties may, as required in the best interest of the children, from time to time, agree to adhoc variations of the access terms by mutual agreement. Such adhoc variations shall not be deemed to establish precedent for ongoing variations of the access terms. 2. All notice shall be given by telephone or in person. 3. Each parent shall have reasonable telephone access to the children at reasonable times when the children are not in their care. Where either parent is going to remove the children from their residence, overnight, the other parent shall be advised of the telephone number where the children may be reached during that period. For the purposes of establishing the sequence of alternating weekend access, it is confirmed that the father's next access weekend commences in accordance with the existing schedule. WEEKENDS AND LONG WEEKENDS 4. Except where otherwise specified, the children will visit with their father every second weekend. The father will pick the children up at the mother's home at 4:30 p.m. on Friday and return them to the mother's home at 7:00 p.m. on Sundays. This access shall hereafter be referred to as ""regular weekend access"". 5. If statutory holiday or children's school holiday (such as, but not limited to, an in‑service day) falls immediately before the regular access weekend, the children may spend that holiday commencing at 9:00 a.m. with the father in addition to the regular weekend access. The father will notify the mother at least fourteen days before the holiday whether he intends to add this extra day to the regular weekend access. 6. Where holiday or children's school holiday (including but not limited to in‑service days) does not fall immediately before or after regular weekend access, the parent who would otherwise have the children with them, shall have the children with them on that holiday. Where the holiday falls during the time the children would be with the father, the father may spend that day with the children rather than sending the children to day care or an extra curricular activity. 7. Paragraphs do not apply to any holidays which occur during the summer vacation, March break, Easter, Thanksgiving or Christmas week. WEEK DAY ACCESS 8. From September to June 30 of each year, the children shall spend each Tuesday and Wednesday evening from 4:30 to 7:30 with their father who shall accommodate their activities, if any. The father will pick the children at 4:30 p.m. on Tuesday and Wednesday from either the mother's home or their place of normal activity (such as, but not limited to, day care, school or sport's field, etc.) and shall return the children to their mother's home at 7:30 p.m. each Tuesday and Wednesday evenings. 9. From July to August 31 of each year, the children shall spend two consecutive nights with their father on Tuesday and Wednesday evenings. The father shall pick the children up at 4:30 p.m.on Tuesday and Wednesday from either the mother's home or their place of normal activity (such as, but not limited to, day camp, sitter, sport's field, etc.) and drop the children off at 7:00 a.m. on Wednesday and Thursday mornings at either the mother's home or their place of normal activity. As this will only be for four weeks during the summer, in view of the provisions for summer vacation, any plans the father may wish to make for joint activities, between himself and the children during the day on Wednesday and Thursday, shall be accommodated over any day camp/sitter arrangements, provided sufficient notice is given. The children shall be returned to their mother's home at 7:30 p.m. Thursday, if they spend the day with their father. The visits in paragraphs and are hereafter called ""regular weekday visits"". 10. The period from December 24th until January 1st inclusive in each year is hereafter called ""Christmas Week"". 11. An even number years commencing in 1994, the children will be with; (a) the father from noon December 24th until 7:00 p.m. December 25th (b) the mother from 7:00 p.m. December 25th until 9:00 a.m. December 27th (c) the father from 9:00 a.m. December 27th until 7:00 p.m. December 29th (d) the mother from 7:00 p.m. December 29th until the next regular access day which would otherwise have occurred after January 1. 12. In odd number years commencing in 1995, the children will be with: (a) the mother from noon December 24th until 7:00 p.m. December 25th (b) the father from 7:00 p.m. December 25th until 9:00 a.m. December 27th (c) the mother from 9:00 a.m. December 27th until 7:00 p.m. December 29th (d) the father from 7:00 p.m. December 29th until 7:00 p.m. January (e) the regular weekend and weekday access schedule will resume on the first day on which the father would otherwise have had regular access after January 1. MARCH BREAK 13. March break means the five days the children are not in school. In odd numbered years commencing in 1995, the children will spend March break with their father. In even number years commencing in 1996, the children will spend March break with their mother. 14. The March break time with the father may be combined with the regular weekend access. If March break follows immediately after regular access weekend, the children will say overnight with the father on the Sunday prior to March break. If March break falls immediately before regular access weekend, he shall pick them up from the mother's home at 9:00 a.m. on the Monday and return them at 7:00 p.m. on the following Sunday. 15. If the children spend March break with their mother and that precedes the father's regular access weekend, he shall pick them up at 4:30 p.m. on the Friday of March break. 16. Easter holiday means from Good Friday to Easter Monday. In odd number years, commencing in 1995, the children will spend the Easter holiday with their mother. In even number years, commencing in 1996, the children will spend Easter holiday with their father. In arriving at the start up date, am conscious that the children spent this Easter with their mother but note the appropriateness of alternating the March break and Easter periods between the parties given the close time proximity. The father's regular weekend and weekday access schedule will resume on the first day on which the father would otherwise have had regular access after Easter Monday. If, however, the Easter holiday is spent with the mother on the father's regular weekend, his regular weekend access schedule shall resume the next weekend. Similarly, if the Easter holiday is spent with the father on the mother's regular weekend, her regular weekend access schedule will resume the next weekend. THANKSGIVING 17. Thanksgiving weekend means from Friday at 4:30 p.m. until Thanksgiving Monday at 7:00 p.m. In odd numbered years, commencing in 1995, the children will spend Thanksgiving weekend with their father. In even numbered years, commencing in 1996, the children will spend Thanksgiving weekend with their mother. The father's regular weekend and weekday access schedule will resume on the first day on which the father would otherwise have had regular access after Thanksgiving Monday. If, however, the Thanksgiving weekend is spent with the mother on the father's regular weekend, his regular weekend access schedule will resume the next weekend. Similarly, if the Thanksgiving weekend is spent with the father on the mothers' regular weekend, her regular weekend access schedule will resume the next weekend. OTHER SPECIAL OCCASIONS 18. Children's birthdays When the children are with the father on their birthdays according to the regular weekend access schedule, the mother may pick up both children from the father and visit with them for two hour period. When the children are with the mother on their birthdays, the father may pick up both children from the mother and visit with them for two hour period. In both cases, the time of the visit shall be mutually agreed upon in advance or failing agreement shall be from 5:00 p.m. until 7:00 p.m. 19. Mother's Day If Mother's Day falls during the father's regular weekend access, the mother shall be entitled to pick the children up from the father at 9:00 a.m. on Mother's Day and the balance of Mother's Day will be spent with her. 20. Father's Day If Father's Day does not fall during the father's regular weekend access, the father shall be entitled to pick the children up from the mother at 9:00 a.m. on Father's Day and shall return the children to the mother at 7:00 p.m. 21. Hickey Family Re‑union If the children would not otherwise be with the father on the weekend of the Hickey Family Re‑union, the mother will adjust her regular weekend schedule to accommodate the children's attendance at the event; provided that, as soon as the event has been scheduled, but in any event no later than thirty days, before the father shall notify the mother of the event. If the re‑union occurs on the mother's regular weekend, her regular weekend access schedule will resume the next weekend. 22. Summer vacation In even numbered years, commencing 1994, the mother shall have first choice of the time she will vacation with the children, provided that she gives notice of her choice of dates not later than June 1. If she fails to give notice by that date, the father may have first notice of his vacation period with the children. The reverse arrangement will apply in odd numbered years. The party not having first choice of summer vacation date shall notify the other of his or her vacation dates, not later than June 15th. 23. The summer vacation period shall be defined as starting from the day after the children finish school until the sixth day before the children start school in September. The regular weekend and weekday access shall continue except as required to accommodate the following provisions for summer vacation. 24. Each parent may take two separate vacations of one week each (from 9:00 a.m. Monday until 9:00 a.m. the following Monday) or one consecutive two week's vacation (9:00 a.m. Monday until 9:00 a.m. on the second Monday thereafter). 25. When the father's vacation week or weeks follow the regular access weekend, he shall not be obliged to return the children to the mother's home on the Sunday evening before the vacation. 4. The Ouantum of Child Maintenance Mrs. Hickey and Mr. Stover an annual family income of approximately $84,000.00, with Mrs. Hickey earning $16,716.00. Mr. Hickey's annual income is $70,600.00 and in addition, he receives an annual bonus consisting of combination of shares in the company and cash. His after tax bonus for the years 1990, 1991, and 1992 was $2,000.00, $2,400.00 and $850.00 respectively. Pursuant to Justice Gruchy's interim order, Mr. Hickey is paying $1,800.00 per month or $900.00 per child. Mrs. Hickey estimates the children's expenses, before tax, to be in the area of $1,845.00 which includes savings towards education of $176.00 per month. The budget does not appear to reflect many extra‑curricular expenses. She is claiming maintenance in the amount of $2,000.00 per month. Mr. Hickey questions some of Mrs. Hickey's proposed children's expenses as being high. In particular, he notes their share towards the costs of household maintenance, as well as the food and day care costs, given the amount of time the children are residing with him. He proposes monthly amount of $1,200.00 plus direct $100.00 per month payment by him for the children's education. He estimates his expenses for the children, over and above any monthly maintenance, to be $784.00, exclusive of the $174.00 per month, after tax, direct education contribution that he is prepared to pay. have reviewed counsel's detailed submissions and the parties budget and taking into account the tax ramification to Mrs. Hickey, award the sum of $1,500.00 per month for the support of the two children. The first payment shall be due for the month of May. Other The Corollary Relief Judgment shall also reflect the parties' agreement: (a) to divide equally their matrimonial asset with the equalization payment having been paid as of trial date, (b) to divide their respective employment pensions, pursuant to the Pension Benefits Act in Nova Scotia (c) that Mr. Hickey shall maintain life insurance coverage for $137,600.00 for the children for so long as this coverage is available through his employment and further $10,000.00 with Crown Life unconditionally. The trustee of the insurance proceeds for the children while they are minors shall be person of Mr. Hickey's choice.","This was a petition for divorce with an application for settlement of corollary matters, especially custody and access. The mother was the primary caregiver during the marriage, but the father also made significant contributions. The parties had an interim order for joint custody, which the father sought to continue. The mother sought sole custody with generous access. The evidence was that although both parents were good parents, they had difficulty in resolving problems between them, causing a lack of communication. Allowing the mother's application, that because the day to day decision-making was problematic, it was necessary for one of the parties to be given final say. Both parents were to continue to share in rights and responsibilities on major issues. As the parties lacked flexibility, a detailed access plan was incorporated.",4_1994canlii4365.txt
39,"Court of Appeal for Saskatchewan Docket: CACR2965 Citation: Hayter, 2018 SKCA 65 Date: 2018-08-23 Between: Larry Hayter And Her Majesty the Queen Before: Caldwell, Whitmore and Schwann JJ.A. Disposition: Appeal allowed; new trial ordered Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Schwann On Appeal From: Crim 12 of 2016, Melfort Appeal Heard: June 12, 2018 Counsel: Jeremy A. Caissie for the Appellant Erin L. Bartsch for the Respondent Caldwell J.A. I. introduction [1] After trial, judge convicted Larry Hayter of one count of fraud over $5,000, contrary to s. 380(1)(a) of the Criminal Code. The judge found Mr. Hayter had defrauded the Saskatchewan Workers’ Compensation Board [WCB] of $137,377.76. But, in the course of the trial, Mr. Hayter’s counsel had justifiably withdrawn, leaving him to conduct his own defence. The issues in this appeal are whether the judge’s refusal to grant an adjournment was based on reasons that are not well-founded in law and whether the decision affected Mr. Hayter’s right to make full answer and defence or his right to fair trial. [2] In the circumstances of this case, I would allow the appeal and order a new trial. [3] Mr. Hayter also appeals against his sentence but, given my conclusion on the conviction appeal, have not addressed the sentence appeal in these reasons. [4] The facts are procedural and may be explained briefly. Mr. Hayter requested adjournments before, during and after his trial. At the commencement of trial, Mr. Hayter’s counsel requested an adjournment because Mr. Hayter’s wife had been hospitalised and could not attend court. His counsel said Mr. Hayter’s “mind is not here in the courtroom” and that it “is very stressful for him with his spouse being in the hospital.” Mr. Hayter was prepared to waive delay if the judge granted an adjournment. There was no mention of Mr. Hayter’s wife testifying or as being material witness. The Crown opposed this first adjournment request because the charge had been laid more than three years previous, the preliminary hearing had been rescheduled four times, and it had scheduled ten out-of-town witnesses to testify. [5] The judge stepped down for ten minutes to consider the request. When he returned, he advised that the next available trial date in the Melfort judicial centre was almost year away. Mr. Hayter’s counsel suggested another judicial centre and the judge checked to see if an earlier date could be secured elsewhere. No other judicial centre could offer an earlier trial date. While expressing sympathy for Mr. Hayter’s situation, the judge denied his adjournment request. [6] Following this, the trial proceeded for the morning session, with the Crown leading witness in examination-in-chief. After returning from the lunch break, Mr. Hayter’s counsel addressed the court and stated that, after speaking to Mr. Hayter, she was seeking leave to withdraw as his counsel. Over lunch, Mr. Hayter had expressed concerns, because his counsel was employed by Legal Aid Saskatchewan and because Mr. Hayter was alleged to have defrauded WCB, that as government employee his counsel had some stake in seeing him prosecuted successfully. His counsel advised the judge she felt, as an officer of the court, that she had an obligation to seek leave to withdraw. As for the reason, she said Mr. Hayter no longer had confidence in her ability to represent him. She also said she had advised Mr. Hayter that her withdrawal did not guarantee the court would grant an adjournment. [7] In response to defence counsel’s application, the judge informed Mr. Hayter that, in his opinion, Mr. Hayter’s counsel was “as good as they get,” and asked if Mr. Hayter needed few minutes to reconsider and apologise to her. Following which, this exchange took place: THE ACCUSED: It’s just I’m so stressed out, Your Honour (sic), with my medical conditions and that, just don’t know what I’m doing. don’t even know what’s going on. THE COURT: Well, then maybe you should take the guidance from Ms. Bodnar [defence counsel]. THE ACCUSED: Pardon? THE COURT: Maybe you should take the guidance from your legal counsel you already have rather than trash it and really have some problems. ‘Cause if you think now you don’t know which way you’re going, just wait until you start acting for your own as your own lawyer. [8] The judge then adjourned the trial for five minutes so Mr. Hayter could speak with his counsel. This exchange then followed: THE COURT: Okay, what is your decision? You realize that we’re going ahead anyway? This isn’t going to get you an adjournment. THE ACCUSED: I’d like I’d like an adjournment for THE COURT: You’re not going to get one. THE ACCUSED: Can’t get one. THE COURT: You’re not going to get one. THE ACCUSED: (INDISCERNIBLE) just just can’t THE COURT: You don’t get to tell the Court what to do. You are going ahead on your own if you don’t have counsel. THE ACCUSED: Yeah and don’t know nothing, so THE COURT: So THE ACCUSED: So that’s the you’re going ahead without THE COURT: I’m going ahead whether you have lawyer or you don’t. THE ACCUSED: can’t fight it by myself, so I’ll have to guess I’ll have to ask her if she’d come back and work for me then. [9] The discussion between the judge and Mr. Hayter continued for some time until the judge again adjourned the trial for five minutes to allow Mr. Hayter to apologise to his counsel. The judge also instructed Mr. Hayter to determine whether his counsel would still represent him. When the matter reconvened, Mr. Hayter’s counsel informed the judge that she remained of the view she could no longer represent Mr. Hayter, reiterating that she did not believe he had confidence in her ability to represent him. The trial then resumed with Mr. Hayter representing himself. The Crown continued with the examination-in-chief of its first witness for the remainder of the afternoon session. The following morning, Mr. Hayter was called upon to cross-examine the Crown witness. [10] Later, following his conviction, Mr. Hayter again sought unsuccessfully an adjournment to obtain counsel for the sentencing hearing. Ultimately, the judge sentenced Mr. Hayter to two-and-a-half years in prison. [11] Mr. Hayter now challenges the judge’s decision not to grant any of the requested adjournments, but particularly the denial after his counsel had withdrawn mid-trial. He does so on the basis that the denials deprived him of his rights to make full answer and defence and to fair trial. He acknowledges the Charter does not afford him right to be represented by counsel at trial. III. standards of review [12] The right to make full answer and defence and the right to fair trial are encompassed within ss. and 11(d) of the Charter: Harrer, 1995 CanLII 70 (SCC), [1995] SCR 562 at para 13; Seaboyer; Gayme, 1991 CanLII 76 (SCC), [1991] SCR 577. An accused’s entitlement to make full answer and defence is also set out in s. 650(3) of the Criminal Code. [13] In Chu, 2016 SKCA 156 (CanLII), 344 CCC (3d) 51, Jackson J.A. observed that, where right is grounded in the Charter, request to adjourn trial on the basis of an infringement of that right is request for remedy under s. 24(1) of the Charter. In such circumstances, it follows that an order denying an adjournment is an order made under s. 24(1). The standard of appellate review of orders made under s. 24(1) is deferential: Bellusci, 2012 SCC 44 (CanLII) at para 17, [2012] [14] However, on the facts of this case, the identified Charter rights could not have been breached at the time the judge denied the adjournment request because the trial had just started. That is, Mr. Hayter’s request for an adjournment was not request for remedy under s. 24(1) of the Charter because there had been no infringement of his right to fair trial or to make full answer and defence to remedy. While his request in this Court for new trial may be seen as request for remedy under s. 24(1) of the Charter, the Charter was not invoked in the decision under appeal. [15] Nonetheless, decision to deny an adjournment request remains appealable to this Court outside of the Charter under and according to the requirements of s. 675(1)(a) of the Criminal Code. An appeal of this nature engages the Court’s powers under ss. 686(1)(a)(ii) or (iii): Chu at para 81; Moosomin, 2008 SKCA 168 (CanLII) at para 27, [2009] WWR 577. If approached as potential error of law under s. 686(1)(a)(ii), the appellate review is that of discretionary decision of trial judge (see Chu; Ironchild (1984), 1984 CanLII 2666 (SK CA), 30 Sask 269 (CA); Barrette The Queen, 1976 CanLII 180 (SCC), [1977] SCR 121). If approached as potential miscarriage of justice under s. 686(1)(a)(iii), the appeal court reviews what occurred in the trial to see whether there was in fact miscarriage of justice or the appearance of one (R Moosomin; Khan, 2001 SCC 86 (CanLII), [2001] [16] In Khan at para 63, Arbour J., who wrote for the majority, recognised there is sometimes “a fine line between what can constitute ‘a wrong decision on question of law’ and ‘miscarriage of justice’” and she declined to draw that line; nonetheless, she did characterise miscarriages of justice as being “akin to procedural irregularities” (at para 61). Whether error of law or miscarriage of justice, Arbour J. noted that both may be cured under s. 686(1)(b) of the Criminal Code, meaning “the circumstances must be considered to see if the error could have played significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance, or was merely peripheral” (at para 66). [17] When approached under s. 686(1)(a)(ii), the standard of appellate review of decision to decline an adjournment is that set out in Barrette The Queen at 125, where the majority wrote: It is true that decision on an application for adjournment is in the judge’s discretion. It is, however, judicial discretion so that his decision may be reviewed on appeal if it is based on reasons which are not well founded in law. This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings. At glance, have found in the last few years no less than half dozen judgments in civil proceedings where decision depriving litigant of an important right was reversed on account of insufficient reasons given. (Frank v. Alpert; Basarsky v. Quinlan; Ladouceur v. Howarth; Whitco Chemical Co. v. Oakville; General Foods v. Struthers; Hamel v. Brunelle). This being so in civil proceedings, there is all the more reason to so regard discretionary decision in criminal proceedings, the effect whereof is to deprive the accused of his right to obtain the assistance of counsel and to summon witnesses in his defence. This principle is fully recognized in the English case law which was cited to us. [Footnotes omitted] [18] This Court applied the framework for review from Barrette The Queen in Ironchild, where the accused had argued the trial judge’s refusal to grant an adjournment deprived him of the rights to make full answer and defence under the Criminal Code, to fair hearing pursuant to s. 11(d) of the Charter, and to not be deprived of his liberty unless in accordance with the principles of fundamental justice under s. of the Charter. In that case, Tallis J.A. wrote: [13] It is clear from the majority judgment in Barrette v. The Queen (1976), 1976 CanLII 180 (SCC), 10 N.R. 321; 29 C.C.C.(2d) 189 (S.C.C.), that the exercise of the trial judge’s discretion in refusing an adjournment may be reviewed by an appellate court if it is based upon reasons that are not well founded in law and results in deprivation of the accused’s right to make full answer and defence. However, it is also clear that such right must be weighed conscientiously and delicately along with the public interest in the orderly administration of justice. ... [Emphasis added] IV. analysis [19] As understand his arguments, Mr. Hayter has framed his claim for relief under error of law and miscarriage of justice. will address the matter first under s. 686(1)(a)(ii) as an error of law. [20] As Barrette The Queen, Ironchild and Chu indicate, an appeal court’s review of the judge’s decision to decline to grant an adjournment looks first to see whether the decision was based upon reasons that are not well-founded in law. If so, the appeal court’s focus shifts to determination of whether the error has resulted in deprivation of the accused’s right to make full answer and defence or to fair trial. [21] As the decision in this case was made in the course of the trial, there are no separate, written reasons for it. Rather, as is common, the judge was called upon to make his ruling during the to-and-fro of the trial. For this reason, his decision was understandably oral and brief, but it leaves little to which to refer in appellate review. In Barrette The Queen at 124, Pigeon J., who wrote for the majority, said this about the exercise of judicial discretion: There is nothing in the record which could legally support the presumption that counsel’s absence was premeditated scheme in complicity with the accused. It was the first time the case was being called and there was nothing to justify such inference rather than mere suspicion. The accused has the right “to make full ... defence personally or by counsel” (s. 577(3) Cr. C.). An adjournment necessary for the exercise of this right may be refused only for reason based on established facts. [Underlining in original, italics emphasis added] As such, where the decision itself leaves little to review, the appellate court must have resort to the whole of the record, examining it for evidence that might support as well as impugn the decision to deny the adjournment request. [22] Before turn to the record in this case with that view, would first set out, in non-exhaustive terms, what am looking for. That is, would first identify the factors that ground the proper exercise of judicial discretion to grant or deny an adjournment where counsel has withdrawn at or shortly before trial. In that regard, again turn to the decision in Barrette The Queen. [23] As well as setting out the standard of review, the decision in Barrette The Queen is instructive because, in that case, the trial judge had dismissed an accused’s request for an adjournment after his lawyer had failed to show up for court. The trial judge had reasoned that judges postpone too many cases in similar circumstances, there had already been delay of six months, and the case was simple. Justice Pigeon allowed the appeal, quashed the conviction, and ordered new trial, stating “I cannot find that the accused, who was sentenced to year in prison, had fair trial” (at 127). Of particular importance, given the circumstances of this matter, is the fact that the accused in Barrette The Queen was not at fault for his lawyer’s absence and there was no evidence to suggest it was deliberate plot to delay the trial. [24] In Rak (1999), 1999 CanLII 12229 (SK CA), 172 Sask 301 (CA), this Court approached similar matter from different angle and reached the opposite conclusion but, in doing so, the Court identified several factors for consideration: [7] We are all of the view there is no tenable basis for interfering with the trial judge’s discretion in refusing to grant the adjournment and the consequent verdict. The appellants had ample opportunity to obtain counsel and their refusal to cooperate with counsel led to refusal of Legal Aid. The failure to have counsel did not result in an unfair trial. Gregory Rak handled the defence rather adroitly on his own and his father’s behalf and was effective in his cross-examination. He demonstrated clear ability to understand the documentary evidence. As well the trial judge was extremely helpful to the appellants throughout the course of the trial. We are all of the view the appellants were not deprived of their right to fair trial or their right to make full answer in defence and there was no miscarriage of justice. [25] One important distinction to draw on the facts of Barrette The Queen and of Rak is that the accused in the latter case had had the time to obtain counsel before trial. Moreover, it was the accused’s own failure to co-operate with Legal Aid that had led to the absence of counsel at trial. In those circumstances, this Court nonetheless also examined the effect of counsel’s absence on the trial as it had been conducted by the self-represented accused and on its outcome, concluding the accused’s demonstrated ability and the assistance offered by the trial judge confirmed he had not been deprived of his right to fair trial or to make full answer and defence. As well, in Rak, the trial had been rescheduled twice prior to the trial in question. [26] In Ironchild, Tallis J.A. found the accused had deliberately dismissed his counsel as trial tactic so as to obtain an adjournment. He also observed there was nothing in the record to indicate the accused had lost confidence in his counsel. Justice Tallis stated that, while an accused has the right to dismiss counsel, the appellate court may take into account the circumstances of dismissal when considering an appeal of this nature. [27] Outside Saskatchewan, the Court in Beals, 1993 CanLII 5636 (NS CA), 1993 NSCA 215, 126 NSR (2d) 130, dealt with this issue and helpfully summarised the law as follows: [30] In summary the following propositions emerge from the cases to which have referred: 1. The decision whether to grant or refuse request for an adjournment because an accused is not represented by counsel in criminal trial is discretionary one but one that must be based on reasons well-founded in the law. (Barrette v. R., 1976 CanLII 180 (SCC), [1977] S.C.R. 121). 2. An accused has constitutional right to fair trial. Representation by counsel at trial is generally essential to fair trial if an accused is charged with serious offence and complex trial can be anticipated. (R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1). 3. The right to counsel at trial is not absolute. (R. v. Richard and Sassano (1992), 55 O.A.C. 43); there is no constitutional right to be represented by state funded counsel at trial. (R. v. Rowbotham, supra, and R. v. Prosper (1992), 1992 CanLII 2476 (NS CA), 113 N.S.R. (2d) 156 N.S.C.A.). 4. The right of an accused to retain counsel to represent the accused at trial must be exercised honestly and diligently so as not to delay scheduled trial. (R. v. Richard and Sassano, supra). 5. Each application for an adjournment on the ground that the accused will not have counsel at trial must be decided on its facts. Relevant facts to be taken into account by the trial judge are: (a) whether or not there have been prior adjournments due to the unavailability of counsel and the accused was warned well in advance of trial that the trial would be proceeding on the scheduled date with or without counsel. (R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334); (b) the accused’s criminal record which reflects on the accused’s degree of familiarity with the criminal justice system and legal aid programmes (R. v. Richard and Sassano, supra); (c) whether the charge against the accused is simple or complex which fact impacts on the critical question whether or not the accused can get fair trial without counsel (Barrette v. R., supra); (d) the public interest in the orderly and expeditious administration of justice (R. v. B. (J.E.) (1990), 1989 CanLII 1495 (NS CA), 52 C.C.C. (3d) 224 and R. v. Richard and Sassano, supra); (e) if the accused has been refused legal aid and when the refusal was communicated to the accused. 6. As general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trial dates is not his fault but that of his counsel and he had no complicity in the matter (Barrette v. R., supra). 7. As general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtain counsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose of delaying the proceedings (Manhas v. R. (1980), 1980 CanLII 172 (SCC), 17 C.R. (3d) 331). 8. On an appeal from refusal it would appear that court of appeal will not find the learned trial judge erred notwithstanding his reasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel was brought about by the accused for the purpose of delaying the proceedings (Barrette v. R., supra; Manhas v. R, supra; R. v. Richard and Sassano, supra). 9. The scope of review by an appeal court of refusal, notwithstanding it involves the review of the exercise of discretionary power, is wide as the consequences of refusal are to deprive an accused of his right to be represented by counsel. On appeal the appellant must show that in refusing the adjournment the trial judge deprived the appellant of his right to make full answer and defence and thus made an error in principle which constituted miscarriage of justice (Barrette v. R. and Manhas v. R., supra). [28] The appellate courts in White, 2010 ABCA 66 (CanLII), 252 CCC (3d) 248, Tortora, 2010 BCCA 547 (CanLII), 265 CCC (3d) 264, and Le (T.D.), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, and this Court in Bitternose, 2009 SKCA 54 (CanLII), 244 CCC (3d) 218, have endorsed the foregoing list of propositions from Beals. Further, in White, citing G.(J.C.) (2004), 2004 CanLII 66281 (QC CA), 189 CCC (3d) (Que CA), the Court added the following factors for consideration by trial judge: [16] When asked for postponement, it is appropriate for trial judge to consider relevant circumstances such as the gravity of the charges, the number of previous postponements and the consequences of postponement for the Crown and for the accused: J.C.G. at para. 12. The decision whether or not to grant an adjournment must be made in the light of the realities of each case consistent with the interests of justice: J.C.G. at para. 13. Whether it is just to deny trial adjournment to an unrepresented accused depends upon many different factors, including the personality and skills of the accused. [29] In Tortora, after citing the propositions from Beals, Bennett J.A. added the following qualification: [23] It is not necessary for these factors to be articulated verbatim by judge each time an unrepresented litigant applies for an adjournment. However, where the record shows that judge has refused an adjournment without properly weighing the factors or taking into consideration irrelevant factors, miscarriage of justice may result if the accused is deprived of his right to make full answer and defence. [30] To summarise and paraphrase all of this, when an accused seeks an adjournment at or shortly before trial for the purposes of obtaining legal counsel, the trial judge will want to examine the evidence and the record and then turn his or her mind to at least four areas of inquiry: (a) Has the accused failed to exercise the right to counsel honestly and diligently? trial court may properly consider an accused who, having the means and opportunity to do so, fails to obtain counsel for trial to have chosen to defend himself or herself: Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 CCC (3d) 1; 63 CR (3d) 113 (Ont CA). trial court should not be inclined to grant an adjournment where the accused has failed to act diligently or honestly in attempting to obtain counsel. This is particularly so where there is evidence the accused has not availed himself or herself of the opportunity to do so for the purpose of delaying the proceedings. In that regard, the following inquiries may help assess whether an accused has acted honestly and diligently: (i) Has the accused had an adequate opportunity to obtain counsel? (ii) Has the accused been warned that he or she will have to proceed with trial without counsel? Has the accused been made aware of the potential consequences of that? (iii) Has Legal Aid or private counsel withdrawn or refused to represent the accused? If so, when was the accused advised of this? Keeping in mind the principles discussed in Cunningham, 2010 SCC 10 (CanLII), [2010] SCR 331, does the record disclose why counsel withdrew? (iv) Has the accused acted or failed to act so as to thwart the appointment of counsel? Has the accused acted in any other way to delay the proceedings? (v) Is there evidence that the absence of counsel at trial is part of an orchestrated attempt by the accused to delay the proceedings? (b) Would granting an adjournment inordinately delay the trial? Keeping in mind the policy concerns underlying and reflected in Jordan, 2016 SCC 27 (CanLII), [2016] SCR 631, the object of this question is to determine whether an adjournment would negatively affect the public interest in the orderly and expeditious administration of justice. This will be particularly important where judge is sitting with jury, given the additional requirements in trials of that nature. Without attempting to restate the considerations set forth in Jordan, the following may assist in assessing the delay of the trial and its potential effect on the orderly and expeditious administration of justice: (i) How long has it been since the charges were laid? Is this the first scheduled date for trial? If not, how many times has the matter been postponed or adjourned since the charges were laid? Who was responsible for prior adjournments? Were any of the prior postponements due to unavailability of defence counsel? (ii) Is the accused in custody? If not, what are the terms of interim release? (iii) How serious is the offence with which the accused has been charged? (iv) How long of an adjournment is the accused requesting? Is it reasonable in the circumstances? Would shorter adjournment suffice? (v) When is the next available trial date? Would the accused and the Crown consent to change in venue if that would facilitate an earlier trial date? (vi) Does the accused agree that the delay brought about by the requested adjournment will not count against the s. 11(b) of the Charter right to be tried within reasonable time? (c) Would granting an adjournment potentially affect trial fairness from the Crown’s perspective? Where an accused seeks an adjournment at or shortly before trial for the purposes of obtaining legal counsel, the more serious the prejudice that will befall the Crown by reason of an adjournment, the more likely it is that the court will deny the accused’s request for an adjournment. trial judge will understand that the passage of time typically has some adverse effect on trial fairness through failure of witnesses’ memories, loss or destruction of physical evidence, etc. In that regard, the following inquiries may assist in assessing the effect an adjournment may have on trial fairness from the Crown’s perspective: (i) Are there co-accused? Are they being tried separately? If so, when are their trials scheduled? If not, what is the co-accuseds’ position on an adjournment? (ii) What is the expected duration of the trial? (iii) How many witnesses is the Crown expected to call? What are their characteristics? Are any of them children? Experts? Will any of them require translator? (iv) Was the Crown put to subpoenaing its witnesses? Is there real risk witness may fail or be unable, for any reason, to testify at an adjourned trial? Is there evidence that the accused may be seeking tactical adjournment to see if that risk materialises? (v) Where are the witnesses located? Will it be inordinately difficult for the Crown to arrange for witness attendance at later trial date? (vi) Is there real risk that physical evidence may be lost or destroyed before trial if the matter were adjourned? (vii) What, if anything, can be done to address or mitigate the consequences of an adjournment? (d) Is the accused reasonably capable of making full answer and defence to the charges without the assistance of legal counsel? Some of the inquiries under the previous question may be relevant here too, in the sense of ensuring the accused’s right to fair trial is not infringed. Under this question, the trial judge may more directly assess the personal characteristics of the accused, being alert to the nature of the Crown’s case, the relevant law and possible defences to the charges in question. The trial judge will have to ascertain whether, in the circumstances, the accused reasonably possesses the skills, capacity and experience necessary to proceed without legal counsel at trial with minimum level of competency having regard for the right to fair trial. In that respect, the following questions may assist: (i) What is the accused’s level of education and intellectual sophistication? Is the accused in good physical and mental health? What is the accused’s employment background? What level of family or other support is available to the accused? (ii) Is the accused’s criminal record such that it indicates the accused would be familiar with the criminal justice system and the criminal trial process? (iii) Was there preliminary hearing? If so, what does the transcript indicate about the issues that will arise (where trial is by judge and jury: Asapace, 2011 SKCA 139 (CanLII), 279 CCC (3d) 427)? (iv) Was the matter case managed such that the legal issues have been narrowed before trial? Is there an agreed statement of facts? (v) Will the trial be lengthy, complex or legally complicated? Is the matter likely to give rise to complex or unusual points of law or of evidence or complicated defence strategies? (vi) Is the accused facing multiple charges or charges with multiple lesser-included offences? (vii) Is the accused in jeopardy of serving significant incarceral term if convicted? [31] To be clear, there is no general duty on trial judge to probe each and every one of the itemized questions in ritualized fashion. The foregoing are merely non-exhaustive suggestions. Each request for an adjournment will give rise to its own set of relevant questions and considerations. The scope of the inquiry is best left to the insight and experience of the trial judge. Some of the considerations and questions itemized above may carry more weight than others based on the facts and circumstances in any given situation. Some considerations will overlap and necessarily compete against others. On one hand, the trial judge is bound to see that the accused receives fair and public hearing (Charter, s. 11(d)), which includes the right to fair trial, and that an accused is not deprived of his or her liberty except in accordance with the principles of fundamental justice (Charter, s. 7). On the other hand, the judge has duty to ensure the orderly and expeditious administration of justice and to prevent the abuse of court processes. In this context, the relative weight assigned to each consideration is for the trial judge to assess and to balance, with the balancing exercise largely matter of judicial discretion. At the end of the day, the trial judge must be satisfied, on his or her own inquiry, whether it is in the interests of justice to grant an adjournment. [32] In keeping with this general direction, the trial judge is not required to provide detailed reasons for refusing to grant an adjournment. Indeed, the reasons for the ruling may be obvious from the record itself. That said, in terms of the sufficiency of reasons, trial judges may be guided by the instruction in Barrette The Queen that the reason or reasons for denying an adjournment must be based on established fact and well-founded at law, and by the instructions in Sheppard, 2002 SCC 26 (CanLII), [2002] SCR 869, in terms of sufficiency in the expression of those reasons. [33] On that footing, would turn to examine the record in this appeal. To begin, find no reason to interfere with the trial judge’s refusal to adjourn the trial at its commencement. Even though the trial judge gave no reasons for his decision, the record strongly supports the conclusion that his decision was well-founded at law and based on established fact. On the evidence, the reasons for adjournment advanced by Mr. Hayter were not compelling and the Crown had cogently explained the prejudice that would befall it. I find there is no basis to conclude the judge erred in denying the first requested adjournment. [34] To clear the table for the analysis that follows, I also find that the third request for adjournment—coming as it did after the verdict had been rendered—could have had no bearing on trial fairness or the right to make full answer and defence with respect to the trial proper. It is relevant to trial fairness in the sentencing hearing, but would not interfere with the decision in the context of this conviction appeal. [35] However, find the evidence relevant to the exercise of judicial discretion in the matter of the second request for an adjournment—namely, when Mr. Hayter’s counsel had withdrawn mid-trial—pulled both in favour of granting and of denying the request for an adjournment. [36] Without canvassing the record in ritualized way, note first that this was the first return date for trial and, while there had been three adjournments of the preliminary inquiry, two of those had been at the request of the Crown. [37] Second, Mr. Hayter faced fraud charge, which often results in complex trial. This trial had been scheduled for week. The charge related to allegedly fraudulent activity that had occurred over number of years. There were 22 exhibits entered at trial (16 by the Crown and by Mr. Hayter). The trial involved factual and legal issues relating to Mr. Hayter’s ostensible employment relationship with several different corporations, his health status and the claims documentation he had filed with WCB. The Crown had subpoenaed ten witnesses to testify. During her application to withdraw, Mr. Hayter’s counsel stated, “I don’t want to leave Mr. Hayter in the lurch. mean, it is complicated matter”. All of which suggests Mr. Hayter was facing complex criminal trial. [38] Trial complexity cuts at least two ways in these cases. It speaks to the ability of self-represented accused to properly defend him or herself, but it also extends expectations about how quickly the matter ought to come to trial for the purposes of s. 11(b) of the Charter. For example, the majority of the Supreme Court of Canada had this to say on the issue of trial complexity in Jordan: [77] As indicated, exceptional circumstances also cover second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, large number of witnesses, significant requirements for expert evidence, and charges covering long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, large number of charges and pre-trial applications, novel or complicated legal issues, and large number of significant issues in dispute. Proceeding jointly against multiple co‑accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. In this case, trial complexity pushed more toward adjournment than not in my assessment. [39] Third, the judge in this case was aware of some of Mr. Hayter’s personal circumstances, which did not lend to an understanding that he could adequately defend himself. For example, before the request for adjournment, Mr. Hayter had stated: It’s just I’m so stressed out, Your Honour (sic), with my medical conditions and that, just don’t know what I’m doing. don’t even know what’s going on. There is no suggestion in the record that the judge disbelieved Mr. Hayter about this or that he understood Mr. Hayter to be exaggerating his state of mind. Mr. Hayter went on to state that he was stressed about his wife being in the hospital and that “I can’t do nothing by myself.” At one point, Mr. Hayter said his former counsel was “beautiful lady”, suggesting he did not understand appropriate courtroom conduct. [40] Further, an accused’s criminal record can show degree of familiarity with the criminal justice system. While Mr. Hayter does have criminal record, his convictions occurred 50 years prior to this trial. This suggests he was unlikely to have familiarity with the criminal justice system such that he could ably manage his own defence. All of this evidence indicates Mr. Hayter lacked the basic skills and disposition necessary to competently run his own defence in this trial. [41] Fourth, as noted, Mr. Hayter had been accused of defrauding WCB of substantial sum but in comparison to violent offences or offences where the public would be in immediate danger, his alleged crime was of less-serious nature. While not impossible, it is unlikely Mr. Hayter would have perpetrated new fraud upon WCB if an adjournment had been granted. That is, there was little risk to the public if the trial were adjourned. [42] Fifth, the factual matters at issue in the trial occurred between 2006 and 2011. At the time of trial in 2017, the witnesses, whether for the Crown or the defence, would have already lacked fresh memory of the events. While this circumstance does not reduce the prejudice to the Crown and to the defence if an adjournment were granted, it indicates state of affairs in which much of the prejudice of memory loss and loss or destruction of evidence might well have already occurred. Notably, the Crown had already sought and received the court’s permission to have two of its witnesses testify via video conference, limiting the prejudice to the Crown in respect of rescheduling these witnesses to give their evidence. [43] Finally, but importantly, Mr. Hayter’s counsel had withdrawn due to breakdown in the solicitor-client relationship. Given the recorded comments of his former counsel, it does not appear Mr. Hayter intentionally brought about a circumstance where his counsel felt—and I might say properly so—compelled to withdraw or that he had done that for the purpose of delaying trial. The transcript suggests Mr. Hayter’s issue with his counsel arose after she had raised the issue of him accepting plea bargain with the Crown, following the Crown’s opening statement, in the midst of the examination-in-chief of the Crown’s first witness. This apparently, but wrongly, caused Mr. Hayter to question his counsel’s loyalty to him. Nonetheless, regardless of its origin, this appears to be genuine breakdown of the solicitor-client relationship, not plan to delay the trial. Indeed, the judge permitted Mr. Hayter’s counsel to withdraw. As such, Mr. Hayter had what appears to be good reason to ask for an adjournment: he suddenly found himself without counsel in the midst of trial. In addition, when his counsel made the first request for an adjournment at the start of trial, she had said Mr. Hayter was willing to waive delay, indicating he was not attempting to delay matters with hopes of bringing successful application under s. 11(b) and Jordan. [44] That said, there were also number of factors that supported the judge’s refusal to grant the second adjournment. First, notwithstanding what have noted above, the potential consequences to the Crown of an adjournment could have been significant. If adjourned, the next available trial date in Melfort was nearly year away. During argument for the initial adjournment request, the prosecutor had made it clear that this would be significant inconvenience for the Crown’s witnesses. majority of the Crown’s witnesses were from places outside of Melfort and they had been required to travel to Melfort for the trial. While two of the Crown’s witnesses had been allowed to testify via video conference, eight others had taken time off work and travelled to testify. [45] Second, it is clear the judge was considering the public interest in the orderly and expeditious administration of justice. In the initial adjournment request, which had been made only hours before the adjournment request at issue here, the judge stated: Ms. Bodnar, have considered your request and sincerely sympathize with your client, but also know how much everything has been adjusted for this and if we adjourn it, the next possible date would be almost year away. ... Delay of year is relevant factor and cuts in favour of declining an adjournment request for the reasons identified in Jordan. [46] Third, the judge appears to have determined judicial assistance with the conduct of trial could ameliorate the consequences of lack of counsel. This is not evident on the record of the adjournment request, but the judge did give considerable assistance to Mr. Hayter during the trial. He explained the required elements of the offence, the definition of reasonable doubt, the presumption of innocence, and the fact that Mr. Hayter was not obligated to testify. In addition, the judge advised Mr. Hayter that he should study his files and materials for the purposes of conducting cross-examination of witnesses, after the Crown had finished its examination-in-chief, and he adjourned the trial for the remainder of the day to allow Mr. Hayter the time to do so. Mr. Hayter was not being held in remand, so he had the liberty to avail himself of this and other opportunities to prepare and respond to matters arising in his trial. [47] Finally, while his counsel may have withdrawn by reason of breakdown of the solicitor-client relationship, that breakdown had apparently resulted from Mr. Hayter’s own misperception of things and his misguided comments about her loyalty to him. Intentional or not, Mr. Hayter put his counsel in an untenable ethical position by questioning her ability to adhere to her duty of loyalty to him. His supposed reason for doing so is unfounded and shows an utter and complete lack of understanding of a lawyer’s ethical duties and professional responsibilities as well as of the paramountcy of a lawyer’s ethical obligations over employment and other obligations. For this reason, it is quite difficult to say with any degree of certainty that Mr. Hayter had sought to exercise his right to counsel in completely honest and diligent manner. The judge certainly felt it was open to him to conclude that Mr. Hayter may have connived to cause his counsel to withdraw mid-trial. Nonetheless, as Pigeon J. cautioned in Barrette The Queen at 124 (cited above), such conclusions must be based on established facts, not speculation. [48] The fact is that the judge did not record the reason or reasons he had for denying the mid-trial request for an adjournment. Where reasons are given, the mere fact there is evidence that weighs against the trial judge’s reasons is not determinative of the matter provided the trial judge took all relevant considerations into account in his or her decision-making. Similarly, where reasons are given, the fact the appellate court might have weighed some of the relevant considerations differently than the trial judge does not give rise to reversible error. That is, had the judge articulated the basis for his decision in this case, might have been hard-pressed to conclude it was not well-founded in law. [49] Where there are no reasons given for decision, the appellate right of review is especially wide because, as Pigeon J. observed in Barrette The Queen, the consequence of that exercise of judicial discretion is that an accused may have been deprived of the right to fair trial or to make full answer and defence. In making this remark, Pigeon J. noted he had found “in the last few years no less than half dozen judgments in civil proceedings where decision depriving litigant of an important right was reversed on account of insufficient reasons given” (emphasis added). He then said “there is all the more reason to so regard discretionary decision in criminal proceedings, the effect whereof is to deprive the accused of his right to obtain the assistance of counsel and to summon witnesses in his defence” (at 125). [50] In the circumstances of this case, I am persuaded to conclude the judge erred in law by failing to provide sufficient reasons for denying Mr. Hayter’s mid-trial request for an adjournment, but that does not mean the conviction must be set aside. Rather, it leads to the second question under the framework in Barrette The Queen, which is whether that denial resulted in deprivation of Mr. Hayter’s right to make full answer and defence or to fair trial. Put in terms of the appellate power under s. 686(1)(b)(iii), having determined that the appeal might be decided in favour of Mr. Hayter under s. 686(1)(a)(ii), must now determine whether the error resulted in no substantial wrong or miscarriage of justice. [51] In that regard, I conclude Mr. Hayter’s poor conduct of his own defence favours intervention in this matter. Throughout the trial, it appears Mr. Hayter had difficult time hearing or understanding what was going on. He mentions this himself several times and is recorded as saying “pardon” many times. Whether an inability to hear or to understand, it speaks negatively to his ability to competently conduct his own defence. [52] The transcript bears out his incompetence. It contains examples of Mr. Hayter making mistakes in carriage of his defence. He did not cross-examine Crown witness after expressing an intention to do so, he believed erroneously that he would not have right of appeal if he did not testify, he attempted to tender exhibits himself instead of through the appropriate witness, and he struggled generally to ask relevant questions of witnesses or questions material to the issues at hand in his cross-examinations of witnesses. Unlike the accused in Rak, cannot safely characterise his self-advocacy as adroit or capable. cannot say he handled his cross-examinations effectively or that he showed clear ability to understand the documentary evidence. As such, conclude the denial of the mid-trial adjournment “could have played significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance” (R Khan at para 66). [53] Finally, although the evidence of Mr. Hayter’s guilt on the charge of fraud over $5,000 was considerable, am not prepared to find that Mr. Hayter was manifestly guilty on the basis of it or that the outcome of the trial would necessarily have been the same had the judge granted the adjournment and had Mr. Hayter been later represented by counsel at trial. V. conclusion [54] For the foregoing reasons, I find the verdict must be set aside and a new trial ordered. “Caldwell J.A.” Caldwell J.A. concur. “Whitmore J.A.” Whitmore J.A. concur. “Schwann J.A.” Schwann J.A.","HELD: The appeal was allowed and a new trial ordered. In this case, the court found that the judge had not erred in his decisions regarding the first and the third requests for adjournment but had in the second request by failing to provide sufficient reasons for his denial. Amongst many factors it considered, the court found that most importantly, the appellant had not caused his counsel to withdraw for the purpose of delaying trial. It concluded that the error resulted in a miscarriage of justice based upon the appellant’s poor conduct of his own defence and lack of understanding of trial process.",b_2018skca65.txt
40,"S.C.A. No. 02434 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hart and Jones, JJ.A. BETWEEN: THE MINISTER OF FINANCE and JOHN RISLEY Respondent John D. Wood for the appellant Harvey L. Morrison for the respondent Appeal Heard: November 12, 1991 Judgment Delivered: November 12, 1991 THE COURT: Appeal dismissed without costs per oral reasons for judgment of Jones, J.A.; Clarke, C.J.N.S. and Hart, J.A. concurring The reasons for judgment were delivered orally by: JONES, J.A.: This is an appeal by the Minister of Finance under the Health Services Tax Act. The Sarah Kate, sailing vessel, was purchased by the respondent, John Risley in Finland in 1988. The vessel sailed to the Carribean where it remained until May of 1989. From May to October, 1989, the vessel was based in Camden, Maine. In July, 1989, the vessel was in Halifax at the end of the Marblehead race. In August of that same year the vessel participated in the Chester races. On both occasions the vessel was allowed into Canada under customs permit. No customs or excise tax was paid. The vessel returned to Maine after the races. In the fall it went to the Carribean for the winter. The boat has been used as charter vessel in Maine and the Carribean. The vessel is registered in Lunenburg, Nova Scotia. Mr. Risley has home in Chester, Nova Scotia and is resident of Nova Scotia. On July 23, 1990, an assessment of $195,785.90 was made against Mr. Risley because the vessel was registered in Nova Scotia and had been used in the province. Notice of objection to the assessment was filed and eventually the matter came before the N.S. Tax Review Board. On January 14, 1991, after reviewing the provisions of the Health Services Tax Act, board member, W.J. Skinner concluded that the vessel did not have a sufficient presence in the province to attract tax under s. 7(1) of the Act. The Minister has now appealed from that decision. The only issue on the appeal is: ""Whether the Nova Scotia Tax Review Board erred in law in its interpretation of s. 7(1) of the Health Services Tax Act, R.S.N.S. 1989, c. 198, by holding that there was not sufficient presence of the yacht 'Sarah Kate' in the Province of Nova Scotia for the application of s. 7(1)."" Under s. 21(1) of the Health Services Tax Act an appeal lies from decision of the Board on any point of law raised upon the hearing of the appeal. Section 7(1) of the Health Services Tax Act, R.S.N.S. 1989, c. 198, provides as follows: ""7(1) Every person who brings into the Province or who receives delivery in the Province of tangible personal property acquired by him for value for his own consumption or use in the Province, or for the consumption or use in the Province of other persons at his expense, or on behalf of, or as agent for, principal, who desires to acquire such property for the consumption or use in the Province by such principal or other persons at his expense, shall immediately report the matter in writing to the Commissioner and supply to him the invoice and all other pertinent information as required by him in respect of the consumption or use of such property, and at the same time shall pay to Her Majesty in right of the Province the same tax in respect of the consumption or sue of such property as would have been payable if the property had been purchased at retail sale in the Province."" The appellant contends that as the vessel was brought into Nova Scotia and used in the Province it immediately became subject to the Health Services Tax Act. The respondent argues that the Province can only impose ""direct taxation within the Province"" and that temporary presence is not sufficient to raise an assessment under the Act. He relies on the decisions of the Supreme Court of Canada in R. v. Air Canada, 1980 CanLII 16 (SCC), [1980] S.C.R. 303 and Canadian Pacific Airlines v. British Columbia (1989), 1989 CanLII 94 (SCC), 59 D.L.R. (4th) 218. In the Air Canada case the issue concerned the application of The Retail Sales Tax Act, R.S.M. c.R.150 to Air Canada operations and services in through flights which did not touch down in Manitoba and in flights which landed or took off in that province. The assessment was with respect to aircraft, aircraft engines and parts consumed and services, meals and liquor, consumed or supplied in the company's aircraft. Section 3(1) of the Act provided that every purchaser of tangible personal property was required to pay tax to the province Chief Justice Laskin in delivering the judgment of the Court stated at p. 316: ""I am prepared, on this view, to assume that the Province has some legislative jurisdiction in the air space above it so that the pivotal question is whether Air Canada aircraft, engaged in overflights are 'within the Province', as this quoted phrase is used in s. 92(2) which empowers Province to impose 'direct taxation within the Province in order to the raising of revenue for provincial purposes'. Merely going through the air space over Manitoba does not give the aircraft situs there to support tax which constitutionally must be 'within the Province'. In the case of aircraft operations, there must be substantial, at least more than nominal, presence in the Province to provide basis for imposing tax in respect of the entry of aircraft into the Province."" In Canadian Pacific Airlines Ltd. v. British Columbia, 1989 CanLII 94 (SCC), 59 D.L.R. (4th) 218 the Supreme Court of Canada had to consider whether the Social Services Tax Act, R.S.B.C. 1979, c. 388 applied: ""(a) to the respondent airlines' aircraft, engines, components, parts, equipment and rotable spares (hereafter compendiously referred to as 'aircraft and parts') when used on flights that originate from, terminate in or connect two points in the province, and (b) to sales by the airlines of alcoholic beverages which are served to passengers on such flights after the aircraft is airborne and has achieved cruising speed."" Mr. Justice La Forest stated at p. 222: ""In general terms, the Social Service Tax Act of which counterpart exists in most of the provinces) imposes tax on person who purchases tangible personal property at retail sale in the province for his own consumption or use. The tax is based on percentage of the purchase price. similar tax is imposed on person who brings such property in the province for his consumption or use. In the case of the airline's aircraft and parts brought into the province, the tax, by virtue of administrative formulae not provided by statute, is applied only in respect of flights originating from, terminating in, or connecting two points in the province. According to the formulae, the tax is calculated on the percentage of miles travelled by the aircraft in provincial airspace to the total miles travelled. More specifically, s. 2(1) imposes the tax in the usual case to which the Act applies, purchase in the province. 2(1) purchaser shall pay to Her Majesty in right of the Province at the time of making the purchase tax at the rate of 4% of the purchase price of the property purchased. Section defines 'purchaser' and 'retail sale' in manner that makes it clear that the taxpayer is (minor additions apart) purchaser who purchases tangible personal property at retail sale in the province for his own use or consumption. These provisions read: 'purchaser' means person who acquires tangible personal property at sale in the Province for his own consumption or use, or for the consumption or use by other persons at his expense, or on behalf of, or as the agent for, principal who desires to acquire such property for consumption or use by that principal or other persons at his expense, and includes promotional distributor to the extent that the purchase price of the tangible personal property provided by way of promotional distribution exceeds the amount of the payment specifically made for it by the person to whom the tangible personal property is so provided; 'retail sale' means sale to purchaser for purposes of consumption or use and not for resale; Section makes provision for collecting the tax through the seller, who is deemed to be an agent of the Minister for the purpose. Rounding out the scheme is s. 2(4) which imposes similar tax on persons who reside or carry on business in the province who acquire tangible personal property outside the province. Section 2(4) imposes the tax on any such person who brings into, or receives in the province, any such property acquired by him for value for his own consumption or use. It reads as follows: 2(4) person residing or ordinarily resident or carrying on business in the Province who brings or sends into the Province or who receives delivery in the Province of tangible personal property for his own consumption or use, or for the consumption or use of other persons at his expense, or on behalf of, or as the agent for, principal who desires to acquire such property for the consumption or use by that principal or other persons at his expense, shall immediately report the matter in writing to the commissioner and supply to him all pertinent information as required by him in respect of the consumption or use of the property, and furthermore, at the same time, shall pay to Her Majesty in right of the Province tax at the rate of 4% of the purchase price of the tangible personal property."" In applying these provisions the British Columbia Court of Appeal held that if an aircraft lands, loads and unloads and performs maintenance, the airline is using aircraft in the Province and was subject to the tax under the Act. Mr. Justice La Forest stated at p. 230: ""The first issue to be determined is whether on its true construction the Act applies to the aircraft and parts. The province claims it does by virtue of s. 2(4) of the Act, which have already cited in full. That provision applies to residents, and more pertinently, to any person 'carrying on business in the Province who brings or sends into the Province or who receives delivery in the Province of tangible personal property for his own consumption or use...' [emphasis added]. Section 2(4), like other provisions in statute, must be read both in its specific context and in its context as whole. That consideration must be firmly kept in mind in considering whether the entry into the province of the aircraft and parts in the course of the operations of the airlines previously described constitutes 'bringing' or 'sending' them into province or 'receiving delivery' of them there. While would not, in the absence of detailed examination, wish to categorize the Act as being solely intended to impose retail tax payable by the ultimate consumer of the goods, there can be no doubt, as mentioned before, that this is its predominant purpose. The Act, in its general structure and intent, closely resembles the type of enactment originally approved by the courts in Atlantic Smoke Shops Ltd. v. Conlon, 1943 CanLII 372 (UK JCPC), [1943] D.L.R. 81, [1943] A.C. 550, [1943] W.W.R. 113 (P.C.), and later generalized to include all tangible personal property: see Cairns Construction Ltd. v. Government of Saskatchewan (1960), 1960 CanLII 59 (SCC), 24 D.L.R. (2d) 1, (1960] S.C.R. 619, 35 W.W.R. 241, (S.C.C.). This predominant purpose, in my view, is of considerable assistance in understanding the import of s. 2(4). Indeed, Viscount Simon L.C. in the Conlon case (p. 91) observed of similar provision that it was manifest that it was enacted merely as supplementary provision. The nature of this particular provision also argues for its interpretation in the light of the overall scheme. It is provision which, if it stood alone, might well be construed as infringing upon s. 121 of the Constitution Act, 1867 which provides that 121. All Articles of Growth, Produce, or Manufacture of any one of the Provinces shall...be admitted free into each of the other Provinces. Viscount Simon in Conlon, it is true, rather underplayed that possibility, but subsequent cases have indicated that the courts would closely scrutinize tax that in Rand J.'s words 'in its essence and purpose is related to provincial boundary': see Murphy v. C.P.R. Co. (1958), 1958 CanLII (SCC), 15 D.L.R. (2d) 145, [1958] S.C.R. 626, 77 C.R.T.C. 322 (S.C.C.), per Rand and Cartwright, JJ.; see also Comment by F.R. Scott, 12 Can. Bar. Rev. 303 (1934), at p. 308. This context, it seems to me, strongly supports the view that the general purpose of s. 2(4) is to serve as supplementary provision 'to guard against the methods of avoidance of' the purchase tax: see Viscount Simon in Conlon, at p. 91. If that view is correct, what the provision was intended to do was to prevent the evasion of the tax and consequent loss of revenue by the simple expedient of consumer purchasing goods outside the province. The provision equalizes the burden by taxing out‑of‑province purchases by provincial residents at the same rates as if the purchases had taken place in the province. The out‑of‑province purchaser pays the tax when he 'brings or sends the goods' in the province or 'receives delivery' for his use or consumption. This is confirmed, think by the words used in the provision, and especially if one considers them in connection with the purported application of the provision to the facts of this case. What think is contemplated is the bringing of purchased item into the province on permanent basis, at which time it is taxable once and for all at stated percentage of the purchase price as the provision clearly provides."" The Court concluded that the statute did not apply to the airlines aircraft and parts. We see no substantial difference between the provisions of the B.C. statute and the Nova Scotia Health Services Tax Act. In our view the reasoning in Canadian Pacific Airlines Ltd. applies to the present case. We see no error on the part of the Tax Review Board in concluding that the vessel was not subject to tax in this case. The appeal is dismissed without costs. J.A. Concurred in: Clarke, C.J.N.S. Hart, J.A. 1990 HST 035 of EVIDENCE and PROCEEDINGS THE NOVA SCOTIA TAX REVIEW BOARD IN THE MATTER OF: The Health Services Tax Act, R.S.N.S. 1989, c.198 AND IN THE MATTER OF: Art Appeal from decision of the Provincial Tax Commissioner respecting Notice of Objection to the Notice of Assessment 40868 BETWEEN: JOHN RISLEY and THE PROVINCIAL TAX COMMISSION, Health Services Tax Division, Department of Finance BEFORE: Mr. Bill Skinner, Board Member AT: Halifax, Nova Scotia ON: December 17, 1990 Mr. Harvey L. Morrison, Esq. Solicitor for Appellant Mr. J. Wood, Esq. Solicitor for Respondent S.C.A. No. 02434 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: THE MINISTER OF FINANCE and JOHN RISLEY Respondent REASONS FOR JUDGMENT BY: JONES, J.A.","A sailboat, which was owned by a resident in Nova Scotia and registered in the province, but which was purchased in Finland and kept in the United States and the Carribean, and which was twice in Nova Scotia under customs permits to participate in races, did not have a sufficient presence in the province to be subject to an assessment under the Health Services Tax Act.",8_1991canlii2444.txt
41,"C.A. No. 113602 NOVA SCOTIA COURT OF APPEAL Hallett, Bateman and Flinn, JJ.A. BETWEEN: L. MARTIN (1984) INC. and SHUBENACADIE BAND and THE CANADIAN IMPERIAL BANK OF COMMERCE and THE ESKASONI BAND and EASTLAND INDUSTRIES LIMITED and PAUL KENNETH FRANCIS Respondent Dennis F. Ashworth for the Appellant Sean P. O'Boyle for the Respondent The Eskasoni Band Gregory H. Cooper for the Respondent Eastland Industries Limited Theresa M. O'Leary for the Respondent Paul Kenneth Francis Appeal Heard: June 6, 1995 Judgment Delivered: August 16, 1995 THE COURT: Appeal allowed per reasons for judgment of Hallett, J.A.; Bateman and Flinn, JJ.A. concurring. HALLETT, J.A.: This is an appeal from a decision of Mr. Justice Edwards arising out of an interpleader application by the Shubenacadie Band Council to determine which of several parties was entitled to be paid a sum of money owing by the Shubenacadie Band under a construction contract entered into by the Shubenacadie Band with the respondent Paul Kenneth Francis for the construction of residential homes on the Shubenacadie Reserve. The application proceeded on an Agreed Statement of Facts. Mr. Francis is an Indian, a member of the Eskasoni Band, and resides on the Eskasoni Reserve in Cape Breton. Mr. Francis had made number of assignments of book debts, some general and some specified to the various claimants. The learned trial judge held that s. 89(1) of the Indian Act, R.S.C. 1985, c. I‑6 was applicable and governed the issue he was required to consider. Section 89(1) states:""89. (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band."" The learned trial judge concluded that the sum of $101,636.33 owing by the Shubenacadie Band to Mr. Francis and held at the Council office in the form of a bank draft payable to the Band in trust was the property of an Indian on a reserve. He further held, applying a liberal interpretation of the Indian Act that assignments of book debts, both general and specific, were included within the wording of s. 89(1) of the Act. He concluded that by reason of s. 89(1) the only claimant ""not barred"" by the section was the Eskasoni Band being the only Indian entity of the several claimants. The learned trial judge ordered that the $101,636.33 be paid to the Eskasoni Band. On the appeal L. Martin (1984) Inc. asserts that Justice Edwards misinterpreted s. 89(1) of the Act and that it is entitled to $70,000 of this fund by reason of a letter of direction from Francis to his solicitor instructing his solicitor to pay to Martin funds which were due to Mr. Francis from the Shubenacadie Band to the maximum amount of $70,000. The letter was dated November 7th, 1991, and according to the Agreed Statement of Facts was sent to the solicitor for the Shubenacadie Band on the same date. Martin asserts that it has priority over the other claimants as it had specified assignment of debt growing due under the contract between the Shubenacadie Band and Mr. Francis and was first (along with the respondent Eastland) to give notice to the Shubenacadie Band of the fact that it held an assignment from Mr. Francis. Eastland Industries Limited claims under letter of direction from the solicitor for Mr. Francis which, according to the Agreed Statement of Facts, is specific absolute assignment made by Francis to Eastland under the terms of which all amounts payable by the Shubenacadie Band Council to Francis are to become payable to Eastland. The Agreed Statement of Facts further states that payment was directed by Francis to be made to his lawyer in trust for the benefit of Eastland. The narrative of the Agreed Statement of Facts also makes reference to letter from Mr. Francis's solicitor to the solicitor for the Shubenacadie Band dated November 7th, 1991, as being written notice of the so‑called assignment from Mr. Francis to Eastland. There are problems with the Agreed Statement of Facts with respect to the claims of Martin and Eastland as the actual documentation does not appear to support what the parties agreed were the facts. However, in view of the conclusion have reached these apparent errors are irrelevant. The Eskasoni Band Council claims under general assignment of book debts made by Mr. Francis on July 26th, 1990, and registered at the Registry at Sydney in the County of Cape Breton on August 8th, 1990, pursuant to the Assignment of Book Debts Act, R.S.N.S. 1989, c. 24. This was the first of many assignments of book debts made by Mr. Francis to suppliers and to the Canadian Imperial Bank of Commerce. It was also the first to be registered under the Act. Before Mr. Justice Edwards the Canadian Imperial Bank of Commerce (CIBC) had claimed under several general assignments of book debts made subsequent to the assignment to the Eskasoni Band Council and under certain irrevocable letters of direction made by Mr. Francis to his solicitor to forward all funds due from the Shubenacadie Band directly to the CIBC in Sydney. CIBC did not make any representations on the appeal to this Court from Mr. Justice Edwards' decision. As Justice Edwards concluded that all the assignments made by Mr. Francis to entities other than the Indian Band were invalid by reasons of s. 89(1) of the Indian Act, it was not necessary for him to determine the priorities between the respective claimants. am of the opinion the learned Chambers judge erred in his interpretation of s. 89(1) of the Indian Act. Mr. Francis is member of the Eskasoni Band but most significantly he was in the construction business. The words of LaForest J., writing for the majority (6 of 7) of the Supreme Court of Canada, in Mitchell v. Peguis Indian Band et al, 1990 CanLII 117 (SCC), [1990] W.W.R. 97; [1990] S.C.R. 85 are determinative of this issue. In interpreting ss. 87, 89 and 90 of the Indian Act, which LaForest J. referred to as ""legislative package"", he stated at p. 132: "".. the purpose of the legislation is not to remedy the economically disadvantaged position of Indians by ensuring that Indians may acquire, hold and deal with property in the commercial mainstream on different terms than their fellow citizens. An examination of the decisions bearing on these sections confirms that Indians who acquire and deal in property outside lands reserved for their use deal with it on the same basis as all other Canadians."" And at p. 134 LaForest J. stated that the protection afforded by s. 89(1) of the Act is limited: ""I draw attention to these decisions by way of emphasizing once again that one must guard against ascribing an overly broad purpose to ss. 87 and 89. These provisions are not intended to confer privileges on Indians in respect of any property they may acquire and possess, wherever situated. Rather, their purpose is simply to insulate the property interests of Indians in their reserve lands from the intrusions and interference of the larger society so as to ensure that Indians are not dispossessed of their entitlement."" In my opinion s. 89(1) was not intended to prevent an Indian from entering into normal financing agreements in conjunction with the operation of commercial business. The section applies to prevent an Indian from pledging his personal assets on the reserve such as his home, furniture, appliances and household goods. When an Indian is in business he or she holds and deals with his or her business property in the commercial mainstream on terms no different than those applicable to all other Canadians. In my opinion such an interpretation is advantageous to the Indian in business. The accounts receivable of Mr. Francis' construction business were not property of an Indian situate on reserve of the nature that was intended by Parliament to be protected by s. 89(1) of the Act. Mr. Francis could deal with his accounts receivable as any other Canadian businessperson. Section 89(1) did not prevent him from assigning his book debts nor protect him from having done so. The Eskasoni Band is not entitled to the funds held by the Shubenacadie Band on the ground found by the learned Chambers judge. I am, however, of the opinion that the Eskasoni Band is entitled to the fund by reason of having obtained the first general assignment of book debts from Francis and having registered it prior to Francis making further assignments notwithstanding that the holders of the subsequent assignments or directions to pay (which the parties agreed were assignments in the Agreed Statement of Facts) gave notice of the assignments they held to the debtor, the Shubenacadie Band, prior to the Eskasoni Band giving notice to the Shubenacadie Band of its prior registered general assignment of book debts. will set forth my reasons for coming to this conclusion. The sections of the Assignment of Book Debts Act that are relevant to consideration of the issues that arise on this appeal are as follows: ""Section 4. (1) Save as herein provided, every assignment of book debts made by any person engaged in trade or business shall be absolutely void as against the creditors of the assignor and as against subsequent purchasers unless the assignment is (a) in writing; (b) accompanied by an affidavit of an attesting witness or affidavits of attesting witnesses, of the execution thereof by the assignor, or by the assignors respectively, identifying the assignment and stating the date of execution by the assignor, or the respective dates of execution by the assignors, as the case may be, and further affidavit of the assignee or one of the several assignees, his or their agent stating that the assignment was executed in good faith and for valuable consideration and not for the mere purpose of protecting the book debts therein mentioned against the creditors of the assignor or for the purpose of preventing such creditors from recovering any claims which they have against the assignor; (c) registered, as hereinafter provided, together with the affidavits within thirty days of the execution of the assignment. (2) If there are two or more assignors, the date of execution of the assignment shall be deemed to be the date of the execution by the assignor who last executes it. (3) Every assignment which is required to be in writing and to be registered under this Act shall, as against creditors and subsequent purchasers, take effect only from the time of the registration of the assignment."" ""2 (I) In this Act [the term] ""subsequent purchasers"" includes any person who in good faith for valuable consideration and without notice obtains by assignment, an interest in book debts which have already been assigned."" ""3 This Act shall not apply to (a) an assignment of book debts, whether specific or by way of floating charge, made by corporation, and contained (i) in trust deed or other instrument to secure bonds, debentures or debenture stock of the corporation or of any other corporation, or (ii) in any bonds, debentures or debenture stock of the corporation as well as in the trust deed or other instrument securing the same, or in trust deed or other instrument securing bonds, debentures or debenture stock of any other corporation, or (iii) in any bonds, debentures or debenture stock or any series of bonds or debentures of the corporation not secured by separate instrument; (b) an assignment of book debts due at the date of the assignment from specified debtors; ©) an assignment of debts growing due under specified contracts; (d) an assignment of book debts included in transfer of business made bona fide and for value; (e) an assignment of book debts, included in any authorized assignment under the Bankruptcy Act (Canada)."" Because of the conflicting case law on the effect of registration statutes in general (of which the Assignment of Book Debts Act is one), will review the cases decided under several of these statutes. will also trace the history of the law of priorities as between holders of assignments of book debts from the same person. On the latter point shall begin with the leading case of Dearle v. Hall decided in England in 1823 reported in Russ 1, 38 E.R. 475. The High Court of Chancery held that the assignee of chose in action who first notified the party legally obliged to pay the assignor of the assignment had priority to payment over the assignee whose assignment pre‑dated that of the notifying assignee but who failed to give notice to the debtor before the subsequent assignee gave notice. On the facts of that case the decision was fair and equitable given that there was no statutory registration system in place at the time. In fact at this time assignments were not formally recognized at common law. Without registration system as provided for by the Assignment of Book Debts Acts of the various provinces, persons intending to lend money or extend credit on the assignment of book debts had no ability other than through inquiries made to the assignor or the debtor to ascertain if there has been prior assignment. In Dearle v. Hall the court concluded that the equities favoured the assignee who gave notice on the ground that the prior assignee was negligent in failing to take reasonable steps at that time he took the assignment to protect his own interest by notifying the trustees of the fact that the fund had been assigned to him. It is fundamental logic and law that if person effectively transfers all of his or her interest in property to another there is nothing left to subsequently transfer to third party. Therefore, subsequent transfer would be of no effect. However, the law has long recognized that where personal property is transferred absolutely or by way of mortgage to another but the transferor is allowed to retain possession of the property, which fact thus facilitates fraudulent subsequent transfers, equity alters the logic to protect innocent third parties without notice of the true state of the title to the property who may be persuaded to acquire such property for valuable consideration or lend money on the security of the same. The theory being that mortgagee of personal property, by allowing the owner to retain possession, has facilitated the commission of fraud by the owner and should therefore bear the risk rather than the innocent third party that acquires the property for valuable consideration and without notice of the prior mortgage. Similarly, if person sells personal property and transfers possession of the property to the purchaser but retains title the common law recognized that innocent purchasers for value from the purchaser in possession without notice of the retention of title by the original vendor were protected. Dearle v. Hall held that when an equitable assignment of chose in action is made, notice to the debtor of the assignment was necessary and that prior assignee who did not give notice could not call on court of equity to interpose and take the property from the assignee who had used due diligence to ascertain if the assignor was in position to make the assignment and had given notice of the assignment to the debtor. Not only would it be unfair to the second assignee in time who took the regular precautions to ascertain if there had been prior assignment, it would also be unfair to the trustees as the assignee who had the prior assignment could under such circumstances require that the trustees pay the prior assignee notwithstanding that he had already paid the second assignee who had given notice. The essence of the decision in Dearle v. Hall is that equity would not assist the first assignee whose problem arose out of the fact that he was negligent in failing to give notice of the assignment to the trustees. As between the parties the court felt he ought to bear the loss when the same chose in action was assigned more than once. The decision in Dearle v. Hall was applied in the leading Canadian cases that first considered the effect of the passage of the Assignment of Book Debts Acts on the equitable position that the assignee who first gave notice to the debtor had priority over prior assignees who did not give notice. The Act provides that general assignments of book debts by persons engaged in trade or business are void against creditors and subsequent purchasers as defined in the Act unless registered as provided in the Act (s. 4). One of the most oft quoted judgments as to the effect of registration under the Act is that of Orde J.A. of the Ontario Court of Appeal in Snyder's Limited v. Furniture Finance Corp., 1930 CanLII 426 (ON CA), [1931] D.L.R. 398. He stated that the law as to priorities between competing assignees was the same as it was prior to the passage of the Assignment of Book Debts Act. And that the only purpose of that Act was to require an assignment of general book debts to be registered in the manner provided by the Act or else it was void as against creditors, and subsequent purchasers for value without notice. It was his opinion that the Act was never intended by the Legislature to do more as there was an absence of any provision in the Act that gave priority to competing assignees based on the respective dates of registration. What Orde J.A. had to say is as follows: ""This assignment was duly registered as required by the Assignment of Book Debts Act, and some stress was laid upon this registration as if it in some way placed the plaintiff in position superior to that of the defendant. This is, of course, not the effect of the Act. The Act does not either expressly or impliedly confer any greater right upon an assignee of chose in action that he had before. All it does is to make general assignment of book debts void, as against creditors and subsequent purchasers or mortgagees in good faith and for value, unless registered. By registration the plaintiff here has preserved whatever rights it acquired by virtue of the assignment and no more In other words its rights are to be determined exactly as if the Act had never been passed. What are those rights? The assignment as such transferred to the plaintiff no rights in the choses in action which were recognised at common law. Its efficacy was and still is based solely upon principles of equity, with the additional statutory right given to the assignee to bring action in his own name, instead of that of the assignor, against the debtor, upon giving notice to the latter: Conveyancing and Law of Property Act, R.S.O. 1927, c. 137, s. 49. The assignee takes subject to all the equities. He cannot acquire higher rights against the debtor than those of the assignor himself, and his rights may be defeated or impaired by the intervention of some other assignee who, by giving notice to the debtor of his assignment, or for some other reason, acquires superior equitable title."" {My Emphasis] would note that in Snyder the judgments of the Court of Appeal really turned on the fact that the conditional sales financing arrangements and the assignment of those contracts to the defendant finance company were known to Snyder (a furniture manufacturer) when it took the general assignment of book debts from its customer, Fagel, who operated retail furniture store and who sold to his customers by way of conditional sales agreements. The Appeal Court refused Snyder's claim to priority over the monies payable to the finance company pursuant to the assignments of the conditional sales contracts. The judgment of Latchford C.J. was short and to the point. He stated at p. 404: ""I agree in the conclusion arrived at by the learned trial Judge that the action fails. The appeal should, think, be dismissed with costs, if only on the simple ground that it was never in the contemplation of the parties to the August assignment that the conditional sales agreements covered, as the parties knew, by the previous contract between Fagel and the defendant [the finance company], should be affected by the subsequent assignment of Fagel's book debts."" Even Orde J.A.'s judgment, which is so often quoted for the proposition that the rights as between assignees is determined exactly as if the Assignment of Book Debts Act had never been passed, when read in the context of the facts of that case does not have the punch it appears to have as the conditional sales agreements and their subsequent assignment to the finance company meant that there was nothing owing to Fagel at the time the book debts were assigned to Snyder. Therefore, Fagel could not effectively transfer an interest in the amount owing to Fagel from his customers as there was nothing left upon which the assignment to Snyder's could operate. The line of reasoning expressed by Orde J.A. in Snyder decision that registration under the Assignment of Book Debts Act did nothing more than prevent the assignment from being void had also been expressed in Nova Scotia by Mellish J. nine years earlier in Commercial Credit Co. of Canada Ltd. v. Fulton Bros. (1922) 1922 CanLII 501 (NS CA), 55 N.S.R. 208 at p. 240‑243, 65 D.L.R. 699 at p. 719‑722 when considering similar registration provisions of the Bills of Sale Act and the effect of registration under that Act on the operation and effectiveness of s. 27(2) of the Sale of Goods Act. Section 27(2) is now s. 28(3) of the present Sale of Goods Act and provides as follows: (3) Where person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by mercantile agent acting for him of the goods or documents of title, under any sale, pledge or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were mercantile agent in possession of the goods or documents of title with the consent of the owner."" In that case Mellish J. stated at p. 242: The provisions contained in the above section [s. of the Factors Act which was identical to s. 27(2) the Sale of Goods Act] and in subsection 27 (2) of our Sale of Goods Act are not in my opinion inconsistent with the provisions of the Bills of Sale Act. It may well be that under the provisions of the latter Act an agreement which is not evidenced by writing and filed in compliance with section is void even against party having notice (See Edwards v. Edwards (1876) Ch. 291) and that under the Sale of Goods Act the innocent purchaser is protected provided he had no notice, whether the agreement complies with the Bills of Sale Act or not. do not think that the filing in the Registry of Deeds under the latter Act furnishes the 'notice' contemplated by the subsection in question. And certainly do not think that the Bills of Sale Act is to be construed as impliedly enacting that one who purchases goods exposed for sale with the concurrence of the owner by dealer in the regular and ordinary course of business is bound before buying, in order to protect himself from such owner, to search the Registry of Deeds."" Justice Mellish went on to state at p. 243: ""And the Bills of Sale Act, think, like the Ontario Conditional Sales Act which for present purposes may be said to be embodied in section of our Bills of Sale Act, ""does not enlarge the common law rights of those who allow their goods out of their hands, but it prevents all who have not complied with its conditions from asserting common law rights."" (Falconbridge on the Sale of Goods, p. 60 and cases there cited.) As impressively stated by Mr. Justice Orde in one of these cases, speaking of this Conditional Sales Act: The Act is designed for the protection of persons dealing with one to whom the possession but not the ownership of chattel has been given, and requires the owner to comply with certain provisions of the Act if he desires to preserve his ownership. But, having complied with those provisions, he stands in no higher or better position than if the Act had not been passed. Commercial Finance Corporation Ltd. v. Shatford; 47 O.L.R. 392 at p. 396."" Justice Mellish concluded that s. 27(2) of the Sale of Goods Act governed the case but whether or not it did the plaintiffs could not succeed by reason of estoppel. It was noted by Hall J.A. in Kozak v. Ford Motor Credit Co. of Canada Ltd. et al. (1971), 1971 CanLII 785 (SK CA), 18 D.L.R. (3d) 735 at p. 747 that the decision of the Court in Commercial Credit Co. of Canada Ltd. v. Fulton Bros., supra, turned on the fact that there was fraudulent scheme in place and that Mellish J.'s comments that the filing of bill of sale was not the ""notice"" contemplated by s. 27(2) of the Sale of Goods Act was not necessary to the decision. In 1951 the Ontario High Court in Pettit and Johnston v. Foster Wheeler Ltd., 1950 CanLII 100 (ON SC), [1950] D.L.R. 42 applied the reasoning of Orde J.A. as expressed in Snyder. The Headnote states: ""A made general assignment of book debts to bank which was registered on April 27, 1944. Subsequently became entitled to certain money under contract with X. Being also indebted to B, assigned to in writing his claim against X, and was notified of the assignment by letter of October 13, 1944. On December 27, 1944 purported to assign to the bank his claim against X. The latter, on being notified by the bank of the assignment, paid the bank. Held, was liable to pay again to who first gave notice to of the assignment by A. Section 52 of the Conveyancing and Law of Property Act, R.S.O. 1937, c. 152, did not afford any protection to X, since it related to procedure only. The registration of the assignment of book debts did not in itself give the bank any priority against the assignment to who had first given notice to X."" It would appear that s. 52(1) of the Conveyancing and Law of Property Act referred to in the decision above was the same as what is now s. 43(5) of the Judicature Act of this Province which provides: ""43 (5) Any absolute assignment by writing under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee if this subsection had not been enacted, to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same and the power to give good discharge for the same, without the concurrence of the assignor."" Section 52(2) of that Act provided for an interpleader proceeding which debtor fixed with notice of conflicting claims by assignees could resort. similar provision to s. 52(2) of the Ontario Act is found in s. 43(6) of the present Nova Scotia Judicature Act which provides: ""43(6) In case of an assignment of debt or other chose in action, if the debtor, trustee, or other person liable in respect of such debt or chose in action, has had notice that such assignment is disputed by the assignor, or any one claiming under hint, or of any other opposing or conflicting claims to such debt or chose in action, he may if he thinks fit call upon the several persons making claim thereto to interplead concerning the same, or he may if he thinks fit pay the same into the Supreme Court, upon obtaining an order therefor, to abide the determination of the Supreme Court in respect thereof."" The foundation of the decision in the Pettit case was the rule established by the decision in Dearle v. Hall. The learned trial judge impliedly approved the statements made by Orde J.A. in the Snyder decision. In 1958 Professor G.V. LaForest, Faculty of Law, University of New Brunswick (now of the Supreme Court of Canada) authored an article entitled ""Filing Under the Conditional Sales Act: Is it Notice to Subsequent Purchasers?"". It appears in 36 Canadian Bar Review 87. In that article he started with the premise that most lawyers consider that registration under the Conditional Sales Act protects the conditional seller against claim by subsequent purchaser for value and without actual notice. He then goes on to demonstrate in very persuasive and logical way that this view, based on precedent, was not the law of most common law provinces. In 1995 would go so far as to say that most lawyers in commercial practice in the provinces where those Acts have not been repealed by the comprehensive personal property security Acts, consider registration under either the Conditional Sales Act, The Bills of Sale Act and the Corporations Securities Registration Act and the Assignment of Book Debts Act constitute constructive notice to creditors, subsequent purchasers and lenders of the existence of the security document registered under those respective Acts. will review some of the cases decided under these other Acts that provide for registration of documents relating to personal property transactions as the language of these statutes as to the effect of registration is very similar to that in the Assignment of Book Debts Act. The language of each of these Acts (registration statutes) generally provide that the interest in property that is created or reserved by chattel mortgages, conditional sales agreements, assignments of book debts and corporate debentures are void against creditors and subsequent purchasers or mortgagees for valuable consideration and without notice unless the document is registered under the relevant Act. None of the Nova Scotia registration statutes contain any express words that establish priority based on date of registration of documents registered under the respective Acts. Professor LaForest expressed the opinion that registration of conditional sales agreement is not constructive notice to subsequent purchasers and why, in his opinion, it should not be. He stated at p. 388: ""But nowhere in the Act will one find provision setting forth the effect of ordinary registration. It may, of course, be argued that since the Act declares that conditions reserving title in unregistered agreements are void against subsequent purchasers for value and without notice, then by implication it provides that such conditions in registered agreements are valid against innocent purchasers. But reading into statutes provisions that are not there is at best dangerous, and this is particularly so where it would take away the rights of innocent persons as it would here. Further, it is suggested that implying such condition would fly in the face of the whole purpose and object of the Act as it appears from its provisions. The purpose of the Act is to limit the rights of conditional sellers, not to add to them. Thus the section already cited makes conditions reserving title in the seller void unless the agreement is registered or the Act is otherwise complied with, and later section seriously curtails the seller's right of sale on repossession. It is submitted, therefore, that the legislature intended to make conditions reserving title void unless the agreement was registered, and not to interfere with them if registered, but rather to allow them whatever operation they had before. This, suggest, is fair inference to draw if one reads the Act without preconceived notions."" He analyzes the provisions of the Sale of Goods Act, to which have already referred, and the decision of Mellish J. in the Commercial Credit case in which Mellish J. held that the filing of conditional sales agreement under the Conditional Sales Act did not constitute notice within what is now s. 28(2) of the Nova Scotia Sale of Goods Act. It was Professor LaForest's view that the Conditional Sales Act was not designed to compel buyers to search the Registry but was rather aimed at preventing fraudulent or preferential agreements by making such agreements void unless made public by registration. He suggests this is probably what Orde J.A. had in mind when he stated that the rights of sellers were not increased by passage of the Conditional Sales Acts in Canada. would note that in Nova Scotia the Conditional Sales Act was passed in 1882 and the Sale of Goods Act in 1895. This leads to an inference by some that the Legislature did not intend that the purpose of the Conditional Sales Act was to give notice to creditors, subsequent purchasers as otherwise why would it have enacted what is now s. 28(2) of the Sale of Goods Act. This interpretation would be consistent with the interpretation reached by Mellish J. in the Commercial Credit case. Professor LaForest at p. 396 stated: ""The Conditional Sales Acts still serve the purpose for which they were originally enacted. They continue to make unregistered agreements reserving title in seller void against subsequent purchasers, mortgagees and certain creditors. It is true that the rights of the seller would not prevail against subsequent buyer by virtue of the sections in the Factors and Sale of Goods Acts, but these sections, it should be observed, are not applicable to creditors so that filing does serve most useful purpose. What is more it provides seller with public method of giving notice which will bind subsequent purchasers who find the agreement in the registry."" He concludes his article by asking the question ""Should registration under Conditional Sales Act be notice?"" At p. 400 he states: ""It may be urged that the Conditional Sales Act should be amended to make it clear that filing is notice. But it is submitted that we should pause long before taking that step unless, at least, certain other changes are made in the Act. For there is much to be said for the principle that when one of two innocent persons must suffer through the wrong of third party, it is the person who has put the third party in position where he can harm others who should bear the loss. Here it is the seller who has trusted the buyer and thereby made it possible for him to set himself up as the owner, and it was to make the seller bear the loss that section of the Factors Act and section 25(2) of the Sale of Goods Act were passed. Searching the registry may, it is true, give the subsequent purchaser notice but not always. Except for the provinces and territories where there is central registry, it may well happen that conditional sale agreement is filed in one registration district but the sale to the subsequent purchaser takes place in another district. Again, conditional seller is given certain period under all the Acts to register his agreement, but fraudulent buyer may sell the goods during that period before the agreement is filed. Another matter should be considered. The vast majority of conditional sellers (or their assignees) are organizations that provide for losses under these agreements, either in their prices, interest or other charges. Such losses are part and parcel of the ordinary business risks that in competent concern are taken into account. So much is this so that many finance companies register only fraction of the conditional sales agreements assigned to them. But the subsequent purchaser is not in this happy position. To him the loss will usually be completely unexpected financial blow for which he has not provided."" If one applies Professor LaForest's very sound reasoning as to the limited purpose of the Conditional Sales Act to the interpretation of the Assignment of Book Debts Act, then one would have to agree that the registration of general assignment of book debts would not be constructive notice to ""subsequent purchasers"" as defined in the Act as the limited purpose of such registration legislation, in Professor LaForest's view in 1958, based on decided cases at that time, was only to cause the assignment to be void for lack of registration. In other words, registration statutes were not intended to provide means for potential purchasers or lenders to ascertain if the personal property in question was subject to conditional sales agreement. In view of the difference in nature between chattels (tangible personal property) and choses in action, the same considerations that led to the passage of s. 28(2) of the Sale of Goods Act do not necessarily apply to transfers of book debts as there is no visible possession of the latter. Applying Professor LaForest's reasoning to the assignment of book debts when there are competing assignees, in the absence of actual notice of the prior assignment, the assignee of book debts who first notifies the debtor of an assignment would have priority. In short, based on the cases decided up until that time, the law respecting priorities remained as it was prior to the registration systems created by the enactment of the Assignment of Book Debts Act. In 1972 the Saskatchewan Court of Appeal took new tack with respect to registration statutes. Kozak v. Ford Motor Credit Co. of Canada Ltd. et al. (1971), 1971 CanLII 785 (SK CA), 18 D.L.R. (3d) 735 distinguished the English cases in holding that registration of conditional sale agreement under the Conditional Sales Act constituted notice of its existence sufficient to deprive subsequent purchaser from the buyer of the protection otherwise available to him under s. 26(2) of the Saskatchewan Sale of Goods Act even though the Conditional Sales Act did not contain an express provision to this effect. Section 26(2) of the Saskatchewan Act corresponded to s. 25(2) in the English Sale of Goods Act, 1893; that Act was adopted in 1893 with minor variations by all the common law provinces in Canada. The section in question is presently s. 28(3) of the Nova Scotia Conditional Sales Act. In Kozak the court stated at p. 748‑749: ""I am well aware of the position taken against the extension of the doctrine of constructive notice to commercial transactions, as expressed by Cotton, L.J., and Lindley, L.J., in Joseph v. Lyons, supra, and amplified by Lindley, L.J., in Manchester Trust v. Furness, [1895] Q.B. 539. definition of constructive notice in equity is found in Hanbury's Modern Equity, 9th ed. (1969), at p. 23: Constructive notice exists where knowledge of the equitable interest would have come to him if he had made all such inquiries as prudent purchaser would have made. It appears from this definition, and from reading the cases above quoted, that the term ""constructive notice"" is applied only with respect to equitable interests and not to legal interest, which the respondent Ford Motor Credit Co. Ltd. has here. It is, therefore, not necessary to decide whether, in Saskatchewan today, with central registry for conditional sales and bills of sale, and where it is widely known that almost all automobiles are sold under conditional sale agreements, the extension of the doctrine of constructive notice to commercial transactions would be desirable. Under present conditions, it would seem that if registration were not held to be notice, in the words of Lindley, L.J., ""we should be doing further mischief and paralyzing the trade of the country"". In my opinion, what is here involved is something distinct from the equitable concept of constructive notice. In my opinion, where the Legislature enacted the registration provisions of the Conditional Sales Act, it intended that registration would constitute notice to all persons. The Legislature did not intend that registration would be necessary to preserve rights against subsequent creditors and purchasers if the said rights could be defeated by the creditor or subsequent purchaser omitting or refusing to search. It did not intend to provide method by which third persons could readily discover the existence of conditional sale agreement and ascertain the amount thereunder owing unless it also intended that they would proceed at their own peril if they did not search. This was the view of the legislation adopted by the trial Judge and is the interpretation of it which has been universally accepted and followed in this Province by the Courts, the practitioners and the commercial community since the legislation was first enacted. cannot find that this interpretation is wrong. It is certainly the most convenient and logical one to adopt."" In 1978 the New Brunswick Court of Appeal in General Motors Acceptance Corp. of Canada Ltd. v. Hubbard (1978), 1978 CanLII 2201 (NB CA), 87 D.L.R. (3d) 39; 21 N.B.R. (2d) 49 embraced the arguments made by Professor LaForest in his 1958 article and re‑affirmed the earlier view that registration under the Conditional Sales Act does not constitute notice unless the Act imposing the requirement so provides. There was no such provision in the New Brunswick Act nor is there such provision in the Nova Scotia Conditional Sales Act. In 1984 the Ontario Court of Appeal in Acmetrack Ltd. v. Bank Canadian National et al. (1984), 1984 CanLII 2063 (ON CA), 12 D.L.R. (4th) 428 reversed the previously well‑established Ontario general position developed by Orde J.A. in the cases referred to that registration is not notice. The Court of Appeal held that registration of floating charge and assignment of book debts under the Corporation Securities Registration Act was notice to the bank that held subsequently executed chattel mortgage registered under the Ontario Personal Property Security Act. The Court in Acmetrack accepted the reasoning in Kozak that registration of the instrument creating the charge was notice to the bank although it had no actual notice of Acmetrack's security. Zuber J.A. stated at p. 55: ""The question that arises then is whether registration pursuant to the C.S.R.A. by Acmetrack constitutes notice to creditors, including the Bank. Unlike the P.P.S.A. (s. 53), the C.S.R.A. is silent as to the effect of registration. recognize that there is body of case‑law expressed largely in older cases which holds that mere registration pursuant to statute (where the statute is silent as to the effect of registration) does not constitute notice to the world: see Berger v. Myles, 1963 CanLII 163 (ON SC), [1963] O.R. 525, 38 D.L.R. (2d) 16; McAllister et al. v. Forsyth et al. (1884), 1885 CanLII 67 (SCC), 12 S.C.R. 1; Nourse v. Canadian Canners Ltd., 1935 CanLII 108 (ON CA), [1935] O.R. 361, [1935] D.L.R. 168. In my opinion, however, this view of the effect of registration no longer reflects the purpose of modern registration statutes."" In Acmetrack, after quoting from the passage have previously set out from the reasons of Hall, J.A. in the Kozak decision, Mr. Justice Zuber made reference to several Ontario decisions and quoted from decision of Blair J.A. in MacKay Hughes (1973) Ltd. v. Martin Potatoes Inc.; Dominion Stores Ltd., Garnishee, 1984 CanLII 1918 (ON CA), 46 O.R. (2d) 304, D.L.R. (4th) 439, 51 C.B.R. (N.S.) where Blair J.A. stated: ""It seems to me that the provision for registration of debentures under the Corporation Securities Registration Act achieves the dual purpose of protecting the public and also relieving debenture holders of the impossible task of locating all creditors and customers of the debtor in order to make the floating charge effective. The creditors, whose interest is primarily at stake, are by virtue of the registration made aware of the existence of the floating charge and the ever present possibility that it may be crystallized and attach specifically to the property of the debtor."" Zuber J.A. in Acmetrack then stated: ""I agree with the foregoing statements which reflect change in the case‑law to make it consistent with contemporary business practice and current understanding of the effect of registration. conclude, therefore, that registration of the Acmetrack security constituted notice to the Bank."" Therefore, we are faced with conflicting views as to the effect of registration of security documents under several registration statutes. The legislation that has been in effect in all the Canadian provinces (prior to the passage of comprehensive personal property security statutes in most provinces), including the Conditional Sales Act, the Bills of Sale Act, the Assignment of Book Debts Act, and the Corporation Securities Registration Act were or are similar to that in force in Nova Scotia. Each of these registration statutes basically provides that unless the instrument in question is registered as provided in the respective Acts, it will be void against creditors and subsequent purchasers and mortgagees for valuable consideration and without notice (See s. Conditional Sales Act, R.S.N.S. 1989, c. 84; s. Bills of Sales Act, R.S.N.S. 1989, c. 39; s. Corporation Securities Registration Act, R.S.N.S. 1989, c. 102; and, s. of the Assignment of Book Debts Act, R.S.N.S. 1989, c. 24.) have previously set out the wording of s. and s. of the Assignment of Book Debts Act. The provisions of s. of that Act which provide that the Act does not apply to certain assignments poses problem that is not present in interpreting the other registration statutes of this Province. will not repeat the actual wording of the five specific types of assignments to which the Act does not apply. In summary, the Act does not apply to assignment of book debts by way of floating charge in trust deed or in bonds; the document in which such an assignment is included would be registered under the Corporation Securities Registration Act. Under Section 3(b) the Act does not apply to book debts due at the date of an assignment from specified debtors. Obviously this provision allows such an assignment to be effective without registration. Likewise, s. 3©) ""an assignment of debts growing due under specified contracts"" does not have to be registered to be effective. Under s. 3(d) it is obvious that an assignment of book debts that is part of transfer of business made bona fide and for value would not have to be registered under the Act as the assignor has not retained an apparent interest in the book debts. Nor, of course, would an assignment of book debts included in an assignment under the Bankruptcy Act have to be registered as there is federal legislation governing such an assignment and there is complete divestiture of the property by the assignor with the trustee in bankruptcy going into possession. In reading ss. and of the Act it is clear that the intention of the Legislature was that only general assignments of book debts were required to be registered. However, in my opinion, this does not detract from the effect of the registration of such general assignments. In Acmetrack, the Ontario Court of Appeal concluded that the registration under the Corporation Securities Registration Act was notice to subsequent purchasers and for the very practical reason that it is registration system that provides means for person dealing with the owner or apparent owner of assets (the corporation) to ascertain whether or not the assets are encumbered. In practice searches are conducted by lenders or prospective purchasers as there is means to ascertain the state of title to personal property and business assets just as is done with respect to real property under the Registry Act, R.S.N.S.1989, c. 392. However, would note that s. 18 of the Registry Act in effect provides for priority by date of registration of instruments affecting title. Section 18 states: ""18 Every instrument shall, as against any person claiming for valuable consideration and without notice under any subsequent instrument affecting the title to the same land, be ineffective unless the instrument is registered in the manner provided by this Act before the registering of such subsequent instrument."" The decisions in Kozak and Acmetrack accord with prudent commercial practice which dictates that before buying personal property (other than from mercantile agent in the ordinary course of his business) or lending money on the security of personal property search at the appropriate registry office is undertaken to determine the state of title to the property. Similar searches are done in registries where corporate security documents are registered. In 1985 Professor Jacob S. Ziegel, Faculty of Law, University of Toronto, in an article entitled ""Registration Statutes and the Doctrine of Constructive Notice"" published in 63 Canadian Bar Review, 629 reviewed the decisions in Kozak; General Motors Acceptance Corp. of Canada Ltd. v. Hubbard; and Acmetrack as well as the older line of cases including Dearle v. Hall, supra, Joseph v. Lyons (1884‑85), 15 Q.B.D. 280 (C.A.) and Snyder's Ltd. v. Furniture Finance Corp. Ltd., supra. Professor Ziegel stated at p. 637: ""Over more than century, however, the reason for imposing the registration requirements has not changed. It is designed to give notice of the security interest where the debtor is allowed to remain in possession or control of the collateral, and where it is not practical or desirable for the secured party to obtain or retain possession of the collateral himself. It is thus seen as an accommodation between the interests of secured party who relies on the collateral as security for the debtor's performance of his obligations, and the interests of the debtor's creditors and subsequent purchasers and mortgagees who might be misled by the debtor's continued possession of the collateral, or who cannot readily ascertain the title position in the absence of registration requirement. The legislation makes it possible for these persons to proceed on an informed basis. If they choose not to search (and leaving aside some important exceptions) they act at their own risk. In the light of this history, it must be obvious that to impute constructive notice of the existence of the security interest to those parties for whose benefit the registration requirement is imposed is totally consistent with the purposes of the legislation and does not introduce gratuitous complications into commercial transactions."" Professor Ziegel took broader view of the purpose of registration statutes than did Professor LaForest. Professor Ziegel concluded that the decisions in Kozak and Acmetrack made ""eminently good sense"" and that the courts in these two cases correctly interpreted the legislative design of the registration statutes in question without imposing unreasonable burdens on third parties. Apparently after the article was written but before it was published the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets Limited (1985), P.P.S.A.C. 29 reversed decision of Trainor J., the judge of the first instance, who had applied the reasoning in Acmetrack in holding that prior general assignment of book debts took precedence over subsequent assignment of debt growing due under specified contract despite the fact that the latter assignee gave the first notice of assignment to the debtor. Trainor J. considered the older line of Ontario authorities, such as Snyder, to have been overruled by Acmetrack. In short oral decision reversing the trial judge the Ontario Court of Appeal stated: ""We think this appeal must succeed.... We have reached this conclusion as it is our opinion that because of s. 2©) of the Assignment of Book Debts Act, R.S.O. 1970, c. 33, that Act has no application to this specific assignment held by the appellant of which it had given notice. In the result then, the appeal is allowed with costs here and above."" Professor Ziegel commented on this decision at p. 644: ""The court's reasoning was that 'because of s. 2©) of the Assignment of Book Debts Act, the Act has no application to this specific assignment held by the appellant of which it had given notice"". What this seems to mean is that because Harding was not required to register its assignment under the Assignment of Book Debts Act it was not subject to the doctrine of constructive notice. This basis of distinguishing Acmetrack is, with respect, unpersuasive. The decision in Acmetrack was not based on the two competing security interests being governed by the same perfection requirements since obviously they were not. Rather counsel for the bank in that case invoked the equitable doctrine of purchaser for value without notice, just as in the present case Harding relied on another equitable rule (the rule in Dearle v. Hall) premised on the non‑applicability of the doctrine of constructive notice. Since the defence failed in Acmetrack why should it have prevailed here? Perhaps what the Court of Appeal meant to say was that, having regard to the general purpose of the Assignment of Book Debts Act and its overall structure, the legislature did not mean to deprive specific assignee of the benefit of the rule in Dearle v. Hall where he did not have actual knowledge of the prior assignment. If that was the basis of the court's decision it is unfortunate that we are not given the benefit of the court's analysis of the Act. For it seems to me that the available indicia in the Act, coupled with the historical reasons for its introduction, point in the opposite direction."" In my opinion the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets must have meant that in the Court's opinion the legislature, when it enacted s. of the Act, did not intend the doctrine of constructive notice would apply to those types of assignments of book debts described in s. 3(a) to (e) inclusive. This would not be inconsistent with the decision in Acmetrack; it simply means that the doctrine of constructive notice by reason of s. does not apply to the holders of these types of assignments. By not expressly rejecting the reasoning in Acmetrack the Court may have implicitly acknowledged that the Act should be interpreted as conveying constructive notice to creditors and subsequent purchasers (other than those who would fall within ss. 3(b) and 3©)) of prior general assignment of book debts. would also infer that the decision endorsed the older line of cases in that if the Assignment of Book Debts Act does not apply to an assignment of specified debts or debts growing due under specified contract, then under the equitable law such an assignee who, not having notice of the prior assignment, gives the first notice of an assignment to the debtor has priority. If have correctly speculated as to what the Ontario Court of Appeal decided, find myself in disagreement with that Court. In my opinion the Legislature of this Province must have intended to provide notice registry as otherwise there would not have been any need to include in the Act the detailed provisions as to where to register general assignments (s. 5(1))and how the assignments are to be registered. (s. 5(2)). The latter is of most significance. Registration is effected by filing the assignment document in public registry. The general assignments are indexed chronologically and alphabetically in the name of the assignor so that search can easily be made to ascertain if business has made general assignment. Had the Legislature intended that registration not be notice there would have been no need whatsoever to provide for chronological and alphabetical filing and retention of the assignment documents in the public registry for inspection. If the only purpose of registration was so that the general assignment would not be void, the Act would only have provided that the general assignment be presented at the Registry office, stamped and returned to the assignee. There would be no need to maintain any sort of indexes or retention of the documents for viewing by any member of the public. The interpretation of s. of the Act in National Bank of Canada v. Harding Carpets would lead to some strange results. For example, trustee in bankruptcy of business that had made prior general assignment of book debts to bank would have priority over the bank if the trustee, in the absence of actual notice of the prior assignment, gave notice to the debtors of the assignment in bankruptcy prior to the bank giving notice of the general assignment. Such result does not accord with good sense or commercial expectations as it would make the assignment in favour of the bank, which was given for the purpose of extending credit to the business, worthless. Furthermore, the equities of the situation that exists in 1995 as opposed to that which existed in England in 1823 when Dearle v. Hall was decided or even in 1895 when the English court in Manchester v. Furness decided that the doctrine of constructive notice should not be extended to commercial transactions dictates that the courts move away from the old line of cases and recognize the reality that the registration statutes provide means to determine the state of title to assets that are being sold or charged. As general rule it is prudent to turn to the registration systems as provided in these statutes to determine if the property in question is owned or has been encumbered by the purported owner unless there is no need to so as, for instance, when purchaser buys motor vehicle from car dealer and is therefore protected by the provisions of the Sale of Goods Act. In 1989 the British Columbia Court of Appeal in Lloyds Bank of Canada v. Lumberton Mills Ltd. (1988), 1988 CanLII 3187 (BC CA), 71 C.B.R. (N.S.) 1, [1989] W.W.R. 360, 32 B.C.L.R. (2d) 67, 12 A.C.W.S. (3d) 229 was dealing with the effect of registration under the Corporation Securities Registration Act. In that case Lumberton purchased certain mining equipment located in the Queen Charlotte Islands which it intended to dismantle and ship to Vancouver for resale. To finance the undertaking it borrowed from the plaintiff bank and executed demand debenture for $2.5 million. The debenture was registered in the offices of the Registrar of Companies two days after execution in July, 1986. As part of the debenture, Lumberton Co. agreed not to incur salvage expenses exceeding $200,000 per month and not to allow the creation of any liens having priority over the debenture. Lumberton Co. employed the defendant to transport the equipment from the Queen Charlotte Islands to Vancouver. By January, 1987, the defendant had made four trips but had not been paid, and Lumberton Co. agreed in ""transportation agreement"" that the defendant should have general lien on the equipment to secure the past and future indebtedness of Lumberton Co. The defendant made one further trip in March, 1987, and several days later Lumberton Co. went into receivership under the debenture. The defendant claimed lien on the equipment, for an amount primarily related to the fifth trip. On summary trial application brought by the plaintiff, it was held that the plaintiff's debenture took priority over any lien right of the defendant. The defendant appealed. In dismissing the appeal Lambert J.A. said, at pp. 5‑6: ""The system for registration of debentures under the Company Act of British Columbia is system that contemplates the filing and registration of the entire debenture document. It is not system for the filing and registration of mere notice or particulars of the debenture. Accordingly, in my opinion, the registration of the entire debenture document constitutes constructive notice to those with an interest in the company's encumbrances, for whatever effect constructive notice may have, of all of the provisions of the debenture document: see Gower, Modern Company Law (1954), at p. 485, and Wilson v. Kelland, [1910] Ch. 306 at 313. Anyone who has an interest in the encumbrances on the company's property will fail to search the registry at his or her peril. Constructive notice arising from system of recording or registering documents or events under statutory scheme is not the same as constructive notice arising as an inference of fact. The latter kind of constructive notice is not likely to be found to be effective in commercial transaction: see Manchester Trust v. Furness, [1895] Q.B. 539, 64 L.J.Q.B. 766 (sub nom. Manchester Trust Ltd. v. Turner, Withy Co.) (C.A.), per Lindley L.J. at p. 770. But the former kind of constructive notice is the very essence of the statutory scheme, and the courts should allow the scheme to operate in accordance with the legislative intention. (Emphasis Added)"" In 1991 the British Columbia Court of Appeal in Royal Bank of Canada v. Lions Gate Fisheries Ltd. (1991), 1991 CanLII 977 (BC CA), 76 D.L.R. (4th) 289 had another opportunity to consider the effect of statutory registration schemes; in that case it was the Bank Act. The headnote sets out the bare bones of the facts, the issues and the decision as follows: ""In 1985 the respondent bank registered, in accordance with the Bank Act, R.S.C. 1985, c. B‑1, notice of intention with respect to security under s. 178 for money owing to the bank by customer. The customer subsequently gave the bank general assignment of debts. In July, 1987, the appellant, which had no actual notice of the bank's interest, entered into transaction with the bank's customer whereby the customer owed the appellant the sum of $22,000, due on August 10th. On August 14, 1987, the appellant purchased goods from the customer for price of $30,000, due on August 29th. Subsequently, the bank enforced its security and demanded payment of $30,000 from the appellant. The appellant sought to set‑off the earlier debt of $22,000. At trial the bank succeeded. On appeal to the British Columbia Court of Appeal, held, dismissing the appeal, the history and purpose of s. 178 showed that registration of notice was to be treated as notice to the world. Accordingly, registration under the Act was constructive notice to the appellant of the bank's interest, and the appellant was not entitled to set‑off. There were several ways in which the appellant could have protected itself effectively, but it had failed to do so."" Cumming J.A., writing for the Court, set out the provisions of s. 178(4)(a) of the Bank Act which are in the usual language of registration statutes that the banks rights in respect of property covered by the security are ""void as against creditors of the person giving the security and as against subsequent purchasers or mortgagees"" unless the notice of intention signed by the person giving this security was registered. Cumming J.A. reviewed the older cases, including the decision of the Supreme Court of Canada in McAllister v. Forsyth (1885), 1885 CanLII 67 (SCC), 12 S.C.R. 1. In that case the Supreme Court of Canada held that an assignee of property did not have notice of chattel mortgage notwithstanding that it was properly registered under the Bills of Sale Act of Nova Scotia prior to the assignment. This decision turned on the fact that the property in question was ""after acquired property"". He also made reference to the fact that number of provincial courts of appeal had held that mere registration of security is not notice of the security. Cumming J.A. went on to review the decisions in Snyder, Kozak, and Acmetrack as well as the views of Professor Ziegel in the article to which have already referred. After quoting from the Professor's endorsement of the results in Kozak and Acmetrack, Cumming J.A. stated at p. 306: ""This approach comports, it seems to me, with what was said by Lambert J.A. in Lumberton, supra."" Justice Cumming concluded at p. 318 with the following statement: ""Registration of notice of intention to give security under the authority of s. 178 of the Bank Act must be taken to be notice to the world, and so to the appellant herein in particular, of the bank's interest."" And at p. 319: ""In the present case the bank did all that was required of it under the Act. It was open to the appellant, as the trial judge pointed out, to take steps to protect itself but it simply failed to do so."" Clearly there is trend in the Canadian case law of several other provinces that registration under statute that provides for detailed registration system constitutes constructive notice to creditors and subsequent purchasers for valuable consideration without actual notice. This trend is also evident in Nova Scotia. will briefly review comments made by judges to this effect when considering the several registration statutes. The Corporation Securities Registration Act Under the above‑noted Act in Royal Bank of Canada v. Maple Ford Sales Limited (1983), 60 N.S.R. (2d) 150 Glube C.J., after quoting from Halsbury's Laws of England, 4th edition, volume 7, paragraph 826, on the effect of registration of floating charge under English statute law, made the following statement respecting registration of floating charge debenture pursuant to the Corporation Securities Registration Act: ""I would suggest that registration under the Corporations Securities Registration Act or in the Registry of Deeds must, by that reference and the note, provide actual notice of the contents. To suggest that there would have to be additional proof of actual notice, over and above registration, does not seem to me to agree with that statement. It is my view, on that basis, that the cases of Bank of Canada v. Madill (1981), 1981 CanLII 2995 (NS CA), 37 C.B.R. 80; 43 N.S.R. (2d) 574; 81 A.P.R. 574; 120 D.L.R. (3d) 17, and Union Bank of Halifax v. Indian and General Investment Trust (1908), 1908 CanLII 35 (SCC), 40 S.C.R. 510, do not apply to the case in question. Madill deals with after‑acquired property and search of the Registry of Deeds would not have revealed the Bank debenture as it could contain no reference to the land in question. In the case at bar it has been agreed that the Royal Bank's debenture was filed under the Corporations Securities Registration Act. can only take from that that anyone perusing that filing should have actual notice of the contents."" (para. 13) In Re Crichton Enterprises Ltd. (1979), 1979 CanLII 2548 (NS SC), 38 N.S.R. (2d) 348 stated at p. 358: ""Surely the purpose of the Act is to give notice to creditors of documents secured against property of the debtor. On the facts of this case, it is clear that had any creditor cared to search at the office of the Registrar of Joint Stock Companies, he would have found the Demand Debenture and be as knowledgeable as if the manner of effecting registration had been in accordance with the requirements of section 3(2) of the Corporations Securities Registration Act."" Irrespective of the difficulties created by the legislation, the words of section 3(2) and section 2(1) of the Corporations Securities Registration Act are plain and on the facts the Demand Debenture was not ""duly registered"" in that it was not registered in accordance with the requirements of the Act and, accordingly, is void against the creditors."" In Crichton Enterprises the affidavit required by the statute was not present and, therefore, based on established authority, the debenture was not ""duly registered"". Conditional Sales Act In Nova Scotia, Province of, and Touche Ross Limited v. Weymouth Sea Products Limited and Commercial Credit Corporation Limited (1983), 61 N.S.R. (2d) 410 Hart, J.A., writing for the Appeal Division, expressed the prevailing view of the registration provisions of the Conditional Sales Act that they are ""designed to give notice of the encumbrance against goods in the possession of person within the province."" In Matsushita Electric of Canada Ltd. v. Central Trust Co. and Coopers Lybrand Ltd. (1986), 73 N.S.R. (2d) 250 Glube C.J. recognized the relevancy of registration under the Conditional Sales Act of documents that reserve title to the seller. She stated at paragraph 41: ""I find that it would be totally inequitable to allow the privity rule in this case to lead to the conclusion that there is no obligation to comply with the Conditional Sales Act and register the appropriate document. This would allow someone in the position of Datacom to make conditional sales agreements to the detriment of bona fide conditional sale holder who has registered and who was not aware and could never become aware of the unregistered document. To hold this position would also lead to the conclusion that debenture holder could not rely on any inventory at all because at any time an unregistered conditional sales contract would have priority. This would be untenable in the business world."" In Canadian Cooperative Agricultural Services v. Beaton (1990), 1990 CanLII 4224 (NS SC), 97 N.S.R. (2d) 266 Grant J. commented on the purpose of the registration requirement of the Conditional Sales Act as follows: ""It [the Conditional Sales Act] contains provisions which require registration of agreements with description of the goods sold under them. These provisions exist to protect people who might try to purchase or encumber the goods while they are in the possession of the purchaser under the conditional sale agreement, but while legal title still remains in the original vendor. Section 3(1) of the Act calls them: ""(a) subsequent purchasers or mortgages claiming from or under the buyer in good faith for valuable consideration and without notice; and (b) creditors of the buyer who at the time of becoming creditors have no notice of the provision;"" Section of the Act operates such that if conditional seller wishes to protect his/her title against third parties claiming from the buyer in good faith, then he/she must register the conditional sale agreement according to the provisions set out in the Act. This protects innocent third parties from losing their interest because of an invisible security arrangement like the conditional sale."" By implication potential purchaser, to be protected, should search the records. Bills of Sale Act Clarkson Company Limited v. Muir et al. (1982), 41 C.B.R. 309; 53 N.S.R. (2d) 609 Justice Rogers, in considering the registration provisions of the Bills of Sale Act, stated: ""I believe this section is intended to void chattel mortgage against other than the parties to it unless there has been some notice to others, whether they be creditors or subsequent purchasers and/or mortgagees. And method of notice is provided in the Act, that is due registration at the Registry of Deeds. If notice of the Chattel Mortgage is given through due registration, that is constructive notice, the Chattel Mortgage is valid."" In Wood Motors Ltd. v. Sullivan (1983), 57 N.S.R. (2d) 71 Anderson J., after quoting the above passage by Justice Rogers stated at paragraph 8: ""I believe this to be the law in Nova Scotia and so, as the Chattel Mortgage here was duly registered, the defendant here had notice of said mortgage."" In Whitford v. Toronto‑Dominion Bank (1986), 71 N.S.R. (2d) 408 Burchell J. stated at p. 412: ""...it is my view that due registration in the Registry of Deeds under the Bills of Sale Act gives notice to the public at large of its existence. Constructive notice in other words flows from the fact of registration itself as long as the security is otherwise valid."" On appeal of the decision of Rogers J. in Clarkson Co. v. Muir et al. (1982), 53 N.S.R. (2d) 609 Hart J.A. apparently considered that registration under the Bills of Sale Act is form of notice. He stated at paragraph 11: ""In my opinion it is the creditors themselves who are entitled to the notice provided by registration of encumbrances against the goods of the owners, and that protection is afforded to them at all times before valid registration occurs. And at paragraph 12 stated: ""Assuming that there was no valid chattel mortgage recorded prior to the assignment of bankruptcy would reach the conclusion that the actual creditors had no notice in fact of the encumbrance against the goods of the owners and would not be bound by it."" By implication Hart J.A. decided that registration is notice. In Pozdnekoff v. Royal Bank of Canada (1979), 34 N.S.R. (2d) 435 held that registration constituted constructive notice to subsequent purchaser and mortgagee. considered the decisions of the Supreme Court of Canada in Rose v. Peterkin (1885), 1885 CanLII 16 (SCC), 13 S.C.R. 677 as to what constitutes constructive notice. On the basis of this decision concluded in Pozdnekoff that if one is appraised of facts which should put him on his inquiry the court binds him with constructive notice of the knowledge he could have ascertained by reasonable inquiry. Assignment of Book Debts Act The effect of registration of general assignment of book debts made under this Act does not appear to have been considered by the courts of the Province since the passage of the first uniform Assignment of Book Debts Act, S.N.S. 1931, chapter 5; proclaimed in force on September 1st, 1932. Nor have the courts had occasion to interpret s. of the Act. Both issues are relevant on this appeal. The Appellant's position Counsel for both Eastland and Martin rely on: (I) the decision of the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets; (ii) the rule established in Dearle v. Hall; and (iii) the line of Canadian cases to which have already referred that applied that rule respecting assignments of book debts. review of the most recent decisions relied upon by these parties in which the rule in Dearle v. Hall was applied are: Re: Royal Bank of Canada and Revelstoke Companies Limited (1979), 1979 CanLII 1014 (AB QB), 94 D.L.R. (3d) 692; Harding Carpets Limited v. Royal Bank of Canada, 1980 CanLII 3037 (MB QB), [1980] W.W.R. 149 (Man. Q.B.) The courts in those decisions simply applied the rule and did not analyze the reasoning behind the decision in Dearle v. Hall. That is not meant as criticism but simply as statement of fact. Other cases which applied the rule in Dearle v. Hall are Toronto Dominion Bank v. Mercury Express Ltd. (1978), 1978 CanLII 283 (BC SC), B.C.L.R. 78 and Re Mutual Life Assurance Co. of Canada and Boban Construction Ltd. et at (1984), 1984 CanLII 673 (BC SC), D.L.R. (4th) 746. The first mentioned case is more or less on all fours with the fact situation before us. Munroe J. found in favour of the subsequent assignee who had given notice first notwithstanding the prior assignment was general assignment that had been registered. Munroe J. also held that the registration of the general assignment did not fix the subsequent assignee with constructive notice of the existence of the general assignment. In the Mutual Life case Macdonell J. followed Toronto Dominion Bank v. Mercury Express Ltd.. He stated that priority is established by the first notice given to the debtor. (See also Bank of Nova Scotia v. Newfoundland Rebar Company et al. (1987), 1987 CanLII 5168 (NL SC), 65 Nfld. P.E.I.R. 165) On the other hand Goodridge J. of the Newfoundland Supreme Court stated in Re Newtown Construction Limited (1983), 45 Nfld. P.E.I.R. 239 at p. 242: ""A debtor is not bound by an assignment unless he has been given actual notice of it. Registration operates as notice to creditors and subsequent purchasers. Without registration, the assignment is void against such persons."" Goodridge J. also made the following general observations about assignments of book debts which are worth keeping in mind. In Newtown Construction Goodridge J. had before him an interpleader proceeding where judgment creditor was vying with an assignee of book debts for priority. He stated at paragraph 14: ""In the usual case, it is purely question of time. Barring statutory provision to the contrary, first in time is first in law. The assignee's time is marked by registration of his instrument if registration is required under the Assignment of Book Debts Act (the ""Act""); if registration is not required, it is marked by the date of the instrument."" And at paragraphs 20 and 21: ""An assignment of book debts is absolute. It passes title to the accounts to the assignee. This position is not changed by virtue of the fact that the assignee may elect to allow the assignor to collect the accounts and disburse the same as it sees fit until such time, if ever, as it elects to insist upon its rights. Canadian cases on this are numerous. Counsel for the Bank referred to two Imperial Bank v. Georges Son; Georges Son v. Kidd (1909), 12 W.L.R. 386, and Clarkson and Home Bank v. Lancaster (1926), 38 B.C.R. 217."" The latter point is significant in that it must always be borne in mind that an assignment of book debts actually passes title to the book debts even though the assignee allows the book debts to be collected by the assignor until such time as the assignee may elect to exercise its right to those book debts. These comments of Goodridge J. are consistent with those of the British Columbia Court of Appeal in Evans, Coleman Evans Ltd. v. R.A. Nelson Construction Ltd. (1958), 1958 CanLII 226 (BC CA), 16 D.L.R. (2d) 123. The position of Martin and Eastland is articulated in Eastland's factum as follows: ""The Assignment of Book Debts Act R.S.N.S., 1989 is not applicable to the Assignment as it is specific assignment of single debt, not general assignment of accounts. The sole test for determining the priority between an assignment (be it general assignment of book debts or an assignment of specific debt) and an unregistered assignment of specific debt is the time at which notice was given to the debtor."" This proposition goes far beyond what Dearle v. Hall decided. In that case the subsequent assignee had made diligent inquiries of the trustee as to whether or not there had been prior assignment and was not advised that there had been. On the facts as agreed to by the parties, we do not know if Martin or Eastland made any attempt to ascertain if there had been prior assignment and one would be led to infer that they did not. Nor did they apparently make search at the Registry of Deeds for the County of Cape Breton to determine if general assignment had been registered. Nor do we know if they may have had actual notice of the prior assignments to Eskasoni. The Rule in Dearle v. Hall Although the decision in Dearle v. Hall was, in my opinion, fair and equitable given there was nothing like registration system in place to which prospective assignee could turn to ascertain whether the chose in action had been previously assigned and the subsequent assignee in that case made what inquiries he could, the decision has not escaped critical analysis. In Ward v. Duncombe, [1893] A.C. 369 the House of Lords gave thorough consideration to the underlying rationale of the rule that if subsequent assignee of chose in action gives notice to the trustees of the fund assigned and prior assignee has failed to give notice, the subsequent assignee has priority to payment from the trustees. In Ward v. Duncombe the House of Lords confirmed the decision of the Court of Appeal finding that the prior assignee in that case was entitled to payment. The case seemed to turn on the fact that one of the trustees of the fund was actually aware of the prior assignment. In his written opinion Lord Herschell did thorough review of the decisions in Dearle v. Hall; Loveridge v. Cooper, Russ 1; Ryall v. Rowles, Ves 348; and Foster v. Cockerell, Cl. F. 456. He stated at p. 381: ""Where at the time the second advance is made one of the trustees has notice of prior incumbrance, see no reason why notice of the second incumbrance should give it priority over the earlier assignment. The fund was not at the time of the second advance left in the apparent possession of the cestui que trust. The person asked to make the second advance could have protected himself had he chosen to make that inquiry of all the trustees which prudence enjoined. Where, however, notice is given to one trustee only, who is no longer trustee at the time the second encumbrancer advances his money, condition of things has arisen precisely similar to that which led to the rule laid down in Dearle v. Hall. The fund is again in the apparent possession of the cestui que trust. No inquiry of the trustees will avail to protect any one who is asked to make an advance upon the security, or take an assignment of the cestui que trust's interest in the fund. In those circumstances the reasons which led the Court to hold, in the case referred to, that the title of the second encumbrancer or assignee who had given notice must prevail over that of the assignee or encumbrancer earlier in date, are equally applicable. But they do not, in my opinion, at all warrant the conclusion that where at the time of the second advance and notice the trustees, through one of theft number, were in possession of notice of prior assignment, the later assignment, although it is not, at the time when notice of it is received by the trustees, entitled to priority over the earlier assignment, becomes entitled to such priority when the trustee who had notice of that assignment dies or ceased to act. see no sound ground for holding that the priority shifts by reason of circumstance wholly independent of the encumbrancers, and which does not touch or affect any action on their part. Why should an accident of this description entitle the second encumbrancer to priority to which he had no title at the time when he made the advance, and gave notice of it to the trustees? The property was not then in the apparent ownership of the cestui que trust. Due inquiry would presumably have revealed the existence of the earlier assignment. If am right in the view which have taken of the basis on which the equitable rule as to notices rests, it disposes of the contention of the appellants."" {Emphasis mine} In Ward v. Duncombe Lord Macnaghten also considered the opinions given in Dearle v. Hall and the subsequent opinion in Foster v. Cockerell. He concluded that the doctrine established by Dearle v. Hall had its origin in that case as he found no trace of the doctrine in earlier cases in the Court of Chancery. He concluded that the doctrine established in that case did not rest upon ""any very satisfactory principle"" (p. 391). He went on to state at p. 393: ""I am inclined to think that the rule in Dearle v. Hall has on the whole produced at least as much injustice as it has prevented. It was argued in Dearle v. Hall that notice to the trustees necessarily prevents fraud on the part of the assignor. ""The trustees,"" said Mr. Sugden, ""are converted into register, and by applying to them every one who proposes to negotiate for the purchase of the fund, except in the very improbable event of the trustees incurring personal responsibility by lending themselves to the vendor's dishonest purposes, is enabled to ascertain whether any prior incumbrances exist which will prevail over the title that is to be conveyed to him."" .... If the rule in Dearle v. Hall had never been invented it still would have been necessary for an equitable assignee, for his own protection, to give notice to the legal holders of the fund the subject of the assignment. solicitor employed in such transaction would still have incurred serious liability if he neglected so obvious precaution. And rather doubt whether the existence of the rule has led to notice being given in any case in which it would not have been given if the rule had been unknown. My Lords, have made these observations, not for the purpose of impugning the authority of the rule in Dearle v. Hall. The rule is settled law. But it seems to me that when your Lordships are asked to extend the rule to case not already covered by authority, it is proper to inquire into the principles upon which the rule is said to be founded. For the reasons which have already given, do not think that those principles are so clear or so convincing that the rule ought to be extended to new case."" The quote from Lord Macnaghten's judgment is of interest in that he states that solicitor acting for an assignee who failed to give trustee notice of the assignment by the cestui que trust would be liable for failure to take such fundamental precaution. Likewise, today, lawyer might be negligent if, in advising client proposing to lend money on the security of an assignment of book debts, be it general or specific, he failed to advise the client that search should be made at the appropriate registry to ascertain if there had not already been general assignment and to make specific inquiries of the debtors (if it was an assignment of specific debt) whether the debtor had notice of prior specific assignment. Disposition of the Appeal The registration statutes with respect to personal property provide system which most lawyers and judges recognize as means to ascertain the state of tide to personal property. The registration system, as contained in the Assignment of Book Debts Act provides means whereby lender or supplier intending to extend credit on the security of book debts can ascertain whether the debts have been previously assigned by general assignment so as to put them beyond the ability of the assignor to make further assignment. failure to make search at the appropriate registry is failure to take the prudent steps that one would expect of prudent lender or purchaser. In Dearle v. Hall the subsequent assignee took the precautions expected of him by inquiring from the trustees of the estate who held the legal title to the beneficial interest being assigned whether the interest had been previously assigned or was incumbered. The second assignee, having been advised that there had not been such an assignment (the trustees were not aware that the beneficiary had previously assigned the interest) took the assignment and advised the trustee that they had done so. The court held that the subsequent assignee had done all he prudently could to ascertain if the assignor had the ability to assign the interest and that the second assignee, having given notice to the trustees, should prevail over the prior assignee who, by his lack of prudence in failing to notify the trustees of the assignment, had allowed the beneficiary to make the subsequent assignment. The court held the equities favoured the second assignee. The enactment of the Assignment of Book Debts Act has significantly changed the situation from that which existed prior to its passage. Considering the detailed provisions in the Act as to how general assignments are to be registered and indexed so that the public can determine if business has made general assignment, am of the opinion the Legislature intended that registration would be notice to creditors and subsequent purchasers as defined in the Act of the prior assignment. However, there is still the problem created by the wording of s. 3. It would have been clearer if the Legislature had simply stated that persons holding the types of assignments referred to in s. did not have to register under the Act. However, reading of the Act as whole and considering its essential feature to provide detailed system of registration, it is my opinion the Legislature in using the words in s. that the Act did not apply to assignment of specific debts, etc., must have meant only that such assignments need not be registered. To interpret the Act otherwise would be to defeat one of the two essential purposes of the Act. Even if the Legislature did not intend to provide system that would enable persons to ascertain if general assignment had been made, the effect of the Act is to provide such system. Therefore, prudence dictates that persons proposing to take an assignment of book debts, general or specific, should search just as was implicitly required of the second assignee in Dearle v. Hall to have made inquiries of the trustees whether there had been prior assignment. If the Legislature intended that registration would be constructive notice to creditors and subsequent purchasers but not constructive notice to those assignees falling within s. by reason of the wording of that section, there is nevertheless system of registration which has become recognized as means to ascertain if there had been prior general assignment. Based on the reason in Dearle v. Hall person proposing to take specific assignment should search the registry to see if there has been prior general assignment and if he fails to do so equity should not intervene to assist him in the event there is prior registered assignment which he could have discovered had he searched. With the Act providing system for the registration of general assignment of book debts the equities now favour the holder of general assignment of book debts who has registered the assignment as required by the Act over all subsequent assignees, be they holders of specific or general assignments, as the subsequent assignees by exercising prudence can search at the appropriate registry office to ascertain if the debt had previously been assigned. In such circumstances it no longer makes sense to apply the equitable rule developed in Dearle v. Hall that the assignee (without actual notice of prior assignment) who first gives notice of the assignment of book debts to the debtor has priority over prior assignment. The following comments are not necessary to this decision; they are made to test the validity of my interpretation of the Act in various factual situations. An assignment of the type covered by the provisions of ss. 3(b) and ©) of the Act which was obtained prior to the execution and registration of general assignment of book debts of which the assignee gave notice to the debtor prior to registration of general assignment of book debts by subsequent assignee, would have priority over the general assignment with respect to the specific debt even though the specific assignment was not registered. This would be so because the assignments referred to in ss. 3(b) and ©) do not have to be registered to be valid and were first in time. If the assignee holding the prior specific assignment failed to give notice to the debtor prior to the general assignment being registered and prior to the assignee of the general book debts giving notice to the debtor, the holder of the specific assignment, based on the equitable rule developed in Dearle v. Hall, could not be heard to complain if the debtor paid the holder of the general assignment. In such circumstances equity should not intervene to require the debtor to pay second time as the holder of the assignment of the specific debt did not exercise prudence, having failed to advise the debtor of the assignment. An assignment falling within the provisions of ss. 3(b) and ©) taken subsequent to the registration of general assignment should not have priority over the prior assignment even if such assignee was first to give notice of the assignment to the debtor as such assignee could and should have, in the exercise of reasonable prudence, ascertained by search at the appropriate registry whether or not there had been prior general assignment of book debts. general assignment of book debts that is not registered, irrespective of its priority in time, is void against creditors and subsequent purchasers and mortgagees for valuable consideration and without notice. As between competing assignees of assignments that come within either s. 3(b) or s. 3©) of the Act the subsequent assignee, if the first to give notice to the debtor, and in the absence of actual knowledge of prior assignment and provided the subsequent assignee made prudent inquiries whether there had been prior assignment, and none was disclosed would, under the rule in Dearle v. Hall, be entitled to be paid the debt in the absence of notice to the debtor of the prior assignment. Under such circumstances it would be appropriate to apply that rule in Dearle v. Hall. debtor who paid an assignee of debt of the nature covered by ss. 3(b) or (c) of the Act, having been given notice by such assignee, and in the absence of actual notice of prior registered general assignment would be protected under the rule in Dearle v. Hall from being required to pay the holder of the prior registered general assignment as in my opinion debtor is not required to make search of the Registry to determine if there is general assignment registered. However, where debtor has actual notice of more than one assignment prudence may dictate that the debtor not rely on the rule in Dearle v. Hall but should retain the funds to pay the debt until the competing claims have been resolved. To do otherwise might not be prudent in that there is provision in s. 43(6) of the Judicature Act whereby debtor may (it is not mandatory) pay money into court and call upon the several persons making the claim to bring interpleader proceedings to determine who is entitled to the fund. The registration under the Assignment of Book Debts Act of general assignment of book debts in the proper registry office gives party dealing with the assignor the ability to determine if book debts due at present or in the future have been the subject of previous general assignment. party who intends to provide credit to business on the security of general assignment of book debts or an assignment of accounts of specified debtors or of monies accruing due on specified contract can do search to determine if the business has already made general assignment of its accounts. The search is made at the Registry Office for the district where the assignor has his place of business (s. 5(1)(d)). The assignee who has given valuable consideration for the general assignment of book debts and properly registers that assignment should not be defeated by subsequent assignment of the type designated in ss. 3(b) or 3©) of the Act simply because the latter assignee gave notice of the assignment to the debtor prior to the holder of the prior general assignment of book debts giving such notice. The equities no longer favour the subsequent assignee of debt growing due under specified contract because, before advancing credit or lending money on the strength of such an assignment, the assignee could have searched the proper registry office to ascertain if there was in existence general assignment of book debts to another. As recognized by Professor Ziegel, this is not burdensome task to impose on person proposing to purchase or lend on the security of receivables. Such person, if truly concerned about securing the credit or loan could undertake such search just as it is prudent to search the conditional sales registry and the bills of sale registry when: (I) purchasing personal property from person other than mercantile agent who has sold the property in the ordinary course of business; or (ii) if lending money on the security of personal property. The creation of registration system for the general assignment of book debts has altered the equities between the person holding assignments of book debts, be they general or specific, from that which existed prior to the enactment of the Assignment of Book Debts Act. The views of the courts, as expressed in the older cases, that the registration statutes did not change the law have given way to more realistic view as expressed in Kozak, Acmetrack and Lions Gate. In my opinion this is view that is perfectly rational and that accords with the purpose of those statutes as they have been interpreted and applied by the legal profession and the business community in the latter part of the 20th century. reading of the Assignment of Book Debts Act clearly shows that it provides registration system for general assignments of book debts to which the public has access to obtain relevant information. Read with this purpose in mind, s. 3, which provides that the Act shall not apply to the types of assignment that fall within the terms of (a) to (e) of that section, simply means that those types of assignment do not have to be registered under the Act; nothing more. The fact that the Act does not apply to those types of assignments does not mean that assignees of debts due from specified (named) debtors or debts growing due under specified contracts are not fixed with the knowledge that there is means to ascertain if potential assignor has made previous general assignment of book debts. endorse the results of the decision in Acmetrack and Lions Gate that registration under the statutes considered in those cases (the Corporations Securities Registration Act and the Bank Act) is constructive notice to subsequent purchasers and mortgagees and in some cases creditors. There is no reason not to come to similar conclusion when interpreting the effect of s. of the Assignment of Book Debts Act of this Province. It is not necessary to determine in this case whether the registration of general assignment of book debts is notice to the debtor. However, am inclined to the view that it is not constructive notice as the debtor is not his brother's keeper so to speak. The Courts should not lightly impose on the debtor duties to other possible assignees in the absence of actual knowledge of other assignments. would reiterate that, in my opinion, given the detailed system established by the Assignment of Book Debts Act for registration which facilitates the public's ability to ascertain if there has been general assignment of book debts by businessperson am of the opinion that the Legislature intended that subsequent assignees of the type designated in s. 3(a) to (e) of the Act would have constructive notice of the registration of general assignment despite the words used in s. 3. But even if have incorrectly interpreted the intent of the legislation and in particular s. of the Act the equities no longer favour the position taken by Martin and Eastland for the reasons previously set forth. There are few other points that require comment. In Royal Bank of Canada v. G.M.A.C. (1985), 67 N.S.R. (2d) 306 MacKeigan C.J. stated in paragraphs and that from its execution general assignment of book debts is specific charge on all existing and future book debts which specific charge attaches to future debt as soon as that debt comes into existence; the charge is fully effective immediately upon execution but not enforceable against the debtor until notice is given. The learned Chief Justice was considering an assignment of book debts as contained in debenture. Such an assignment is not subject to the provisions of the Act. However, s. 4(3) of the Act provides that general assignment of book debts, standing on its own so to speak, is only effective from the date of registration. Therefore, anyone dealing with business and considering taking an assignment of book debts can ascertain by search whether its receivables are still owned by the business or have been previously assigned by way of general assignment. In the hiatus period between execution of the assignment and registration, if the assignor made further assignment that comes within ss. 3(b) or (c) of the Act and that subsequent assignee gave notice to the debtor, the subsequent assignee, in the absence of actual notice of the prior assignment, would have priority over the general assignment as there would not be any means to ascertain if the assignor had previously executed general assignment; the general assignment is not effective against creditors and ""subsequent purchasers"" as defined in the Act until registered. Although the subsequent assignee would have been required to inquire of the assignor if there had been prior assignment, he would not necessarily get truthful answer. In the absence of actual notice of the general assignment, and assuming prudent inquiries were made of the debtor, the subsequent assignee would have priority. In my opinion this would be consistent both with respect to the reasoning in Dearle v. Hall and Ward v. Duncombe and the Act as have interpreted it. In the appeal we have under consideration, any one of the lenders or businesses that extended money or credit to Mr. Francis on the strength of assignments, (be they specific or general, which were all made subsequent to the registration of the general assignment of book debts to the Eskasoni Band) could have ascertained by search in the Registry for Cape Breton County where Mr. Francis had his place of business that he had already made general assignment of his present and future book debts to the Eskasoni Band. Under the circumstances there is no equity in following the old rule that the assignee who first notified the debtor of the assignment has priority. In my opinion, the older cases decided subsequent to the enactment of the registration legislation should no longer be applied as it is now recognized that this type of Act provides for register to which the public has access and can ascertain the state of title to the personal property in question. The equities no longer favour the party who, with the means to ascertain if there has been previous general assignment of book debts proposed to be assigned, fails to take the reasonable precautions of search. With respect to book debts, the enactment of the Assignment of Book Debts Act reversed the equities that existed at the time Dearle v. Hall was decided. And with respect, disagree with the interpretation of s. of the Assignment of Book Debts Act by the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets, supra. In my opinion, s. means only that the types of assignment mentioned in that section do not have to be registered under the Act. In this case the Shubenacadie Band did not pay the assignee who gave the first notice but retained the money in trust and applied to the Supreme Court for determination of who should be paid. Had the Shubenacadie Band in good faith without actual notice of the other assignments paid the assignee who first gave notice to the Shubenacadie Band of the assignment equity would dictate that it not be required to also pay the Eskasoni Band even though it was the first to register its general assignment. In my opinion, under such circumstances the Eskasoni Band could bring proceedings to recover the funds paid in error to the subsequent assignee who had given the first notice as the subsequent assignee could have ascertained by search that there had been prior general assignment and would not have had right to the fund. As practical matter, holder of general assignment of book debts is not in the position to give notice to the debtors of the assignor because those debtors change from time to time. The rights of an assignee under general assignment of book debts should not be defeated by subsequent assignee who can fit within clauses 3(b) or 3(c) of the Act simply because that assignee first gave notice of his assignment to the debtor. There is no reason not to apply the general rule that the first assignment in time would have priority as there is nothing left to assign after the assignment has been executed; provided, of course, the general assignment had been registered as required by the Act. Some time was spent in argument respecting the provisions of s. 43(5) of the Judicature Act, R.S.N.S. 1989, c. 240. Section 43(5) of the Judicature Act was enacted to eliminate the need of an assignee to join as plaintiff the assignor in suit against the debtor whose debt had been assigned by way of absolute assignment. It also enables the assignee to give good discharge of the debt without the concurrence of the assignor. The section preserved any equities that others may have had to the debt which would have entitled them to priority over the right of the assignee. The provisions of s. 43(5) of the Judicature Act while they preserve the existing equitable rights of others do not assist the other claimants in this case as in my opinion the equities no longer favour the subsequent assignees who gave the first notice of assignment to the debtor. Were it not for the fact that am of the opinion that the Eskasoni Band Council is entitled to the funds, we would not have been able to decide the issues before us because of the omission of key pieces of evidence from the Agreed Statement of Facts. For instance, there is nothing in the Agreed Statement of Facts as to whether or not Martin or Eastland had actual notice of the prior general assignment to Eskasoni; that is critical fact in assessing the equities even applying the rule in Dearle v. Hall. It is often overlooked that very relevant fact in that case was the lack of knowledge by the subsequent assignee of the prior assignment despite having made prudent inquiries of the trustees. We do not know what inquiries, if any, were made by Eastland or Martin to determine whether or not there had been prior assignment. As mentioned previously, the Agreed Statement of Facts does not seem to accord with the documents giving rise to the claims of Martin and Eastland. Without going into details both Martin and Eastland's assignments were described as absolute assignments; the actual documents upon which they rely do not appear to warrant this interpretation. However, in view of the conclusion reached, these problems have become irrelevant. Conclusion Martin's appeal was successful on the issue raised under the Indian Act but it failed on the priorities issue. Eastland also failed on this key issue. The Notice of Contention filed on behalf of the Eskasoni Band that the decision of Justice Edwards be upheld on the ground that the Eskasoni Band held security which ranked in priority to the security held by the various other claimants ought to be sustained. would therefore order that the Shubenacadie Band pay to the Eskasoni Band the sum of $101,636.33. The Order of Justice Edwards was silent as to costs. In view of the divided success on the appeal would order that the parties bear their own costs. Hallett, J.A. Concurred in: Bateman, J.A. Flinn, J.A. 1994 ""S"" SN No. 100133 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: SHUBENACADIE BAND, as represented by the Shubenacadie Band Council and THE CANADIAN IMPERIAL BANK OF COMMERCE, body Corporate and THE ESKASONI BAND, as represented by the Eskasoni Band Council and L. MARTIN (1984) INC., body corporate and EASTLAND INDUSTRIES LIMITED, body corporate and PAUL KENNETH FRANCIS, carrying on business under the firm name and style of Mi'k Maq Building Supplies and P.K. Francis Construction BEFORE: The Honourable Justice Frank C. Edwards, Sydney, Nova Scotia DECISION: November 24, 1994 (Written) COUNSEL: David F. English, Esq., for the Shubenacadie Band Council Frank Elman, Q.C., for the Canadian Imperial Bank of Commerce E.N. Colborne, Q.C., for the Eskasoni Band Council Jack A. Innes, Q.C.,, for L. Martin (1984) Inc. Gregory H. Cooper, Esq., for Eastland Industries Limited Theresa O'Leary for Paul Kenneth Francis C.A. No. 113602 NOVA SCOTIA COURT OF APPEAL BETWEEN: L. MARTIN (1984) INC. and SHUBENACADIE BAND and THE CANADIAN IMPERIAL BANK OF COMMERCE and THE ESKASONI BAND ‑and- EASTLAND INDUSTRIES LIMITED and PAUL KENNETH FRANCIS Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A.","This was an appeal from a Supreme Court decision on an interpleader application by the respondent Shubenacadie Band to determine which of several parties was entitled to be paid a sum of money owed by the Band to the respondent Francis, an Indian residing on the Eskasoni Reserve in Cape Breton, for the construction of residential homes on the Shubenacadie Reserve. Francis had made a number of assignments of book debts, some general and some specific, to the various claimants. The trial judge concluded that he was bound by s.89(1) of the Indian Act, which holds that the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour of or at the instance of any person other than an Indian or a band. He concluded that the money owed Francis by the Shubenacadie band was the property of an Indian on a reserve, and that assignment of book debts, both general and specific, were included within the meaning of s.89(1). He found that the respondent Eskasoni Band was the only Indian entity among the several claimants and ordered the money paid to them. The appellants appealed. Allowing the appeal on the issue of the Indian Act, that s.89(1) does not prevent an Indian from assigning book debts of his construction business to secure business loans. When Indians are in business they hold and deal with their business property in the commercial mainstream on terms no different than those applicable to all Canadians. Nevertheless, the Eskasoni Band is still entitled to the money owed to Francis by reason of having obtained the first general assignment of book debts from him and having registered it prior to Francis making further assignments. The registration of a general assignment of book debts is constructive notice of the assignment to subsequent assignees falling within the provisions of s.3 of the Assignment of Book Debts Act.",d_1995canlii4259.txt
42,"J. D.I.V. A.D.1993 No. 886 J.C. W. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF WEYBURN BETWEEN: PAULINE ANNIE MARSHALL and HAROLD BRUCE MARSHALL RESPONDENT Lora Bansley for the applicant Ian D. McKay, Q.C. for the respondent FIAT McLELLAN J. July 25, 1997 The applicant mother seeks to have the ongoing childsupport of $180.00 per month per child for the three childrenof the marriage increased. The respondent father filed copies of his last three income tax returns. The returns indicate that, after adjustments, he had an average gross taxable income of $28,000.00. However, the file also indicates that his net worth has increased substantially since the original order in 1993. His financial statement filed that year showed net worth of $105,744.00 after deducting debts of $352,655.00. The current financial statement discloses that he now has net worth of $484,684.00 after deducting debts of $342,000.00. The increase amounts to approximately $380,000.00. His 1996 tax return also indicates that he purchased stock in that year (which he claimed as an expense) totalling $202,061.00. It would appear that he did not do so with borrowed funds as his total debts were reduced by $10,000.00 since 1993. He must therefore have used income generated from the farm to pay the purchase price. The respondent claims that he cannot work full time in the oil field because he is involved in bison operation. He states in his affidavit that he is hopeful that his operation will generate funds in the future but that at present he is trying to build herd. The bison herd is shown in the current financial statement as now being worth $305,000.00. I am satisfied that the respondent's assets are notbeing reasonably utilized to generate income. In thecircumstances it is appropriate for me to impute income to therespondent. I therefore find that the respondent has a gross annualincome imputed at $56,000.00. He shall pay to the applicantthe sum of $957.00 for the support of the three children ofthe marriage payable on the first day of each and every monthcommencing as of the 1st day of August, 1997, as long as thechildren remain children of the marriage under the DivorceAct, R.S.C. 1985, c. 3 (2nd supp.). There will be no order as to costs.","FIAT. The mother sought to have the ongoing child support of $180 per month per child for the three children of the marriage increased. The last three income tax returns of the father indicated an average gross income of $28,000 after adjustments. His net worth had increased substantially since the original order in 1993 from a net worth of $105,744 after deducting debts of $352,655 to $484,684 after deducting debts of $342,000. He purchased stock totalling $202,061 in 1996 using income generated from the farm. He claimed he could not work full time in the oil field because he was involved in a bison operation. HELD: The respondent was to pay monthly child support of $957 for as long as the children remained children as defined by the Divorce Act. It was appropriate to impute income of $56,000 as the respondent's assets were not being reasonably utilized to generate income.",c_1997canlii11192.txt
43,"nan Date:19991108 C.A.C. 150706 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Wood, 1999 NSCA 134] BETWEEN: JOHN DOUGLAS WOOD Appellant in person and HER MAJESTY THE QUEEN Kenneth W.F. Fiske, Q.C. for the Respondent/Applicant Respondent/ Applicant Application heard: November 2, 1999 nan Decision delivered: November 8, 1999 nan BEFORE THE HONOURABLE CHIEF JUSTICE GLUBE, IN CHAMBERS GLUBE, C.J.N.S.: (In Chambers) [1] Following an application for release pending appeal pursuant to section 679(1) of the Criminal Code, Justice Cromwell issued a written decision on October 19, 1999, granting the release with conditions, pending Mr. Wood’s appeal scheduled to be heard January 26, 2000. The original order is dated October 20, 1999 and an amended order changing several of the conditions is dated October 26, 1999. On the same date as the amended order, the Crown applied for a review under s. 680(1) of the Code. s. 680. (1) decision made by judge under section ... 679 may, on the direction of the Chief Justice ... of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. In the commentary following s. 680, it states in part: ... The procedure involves two steps. An application is made to the chief justice or acting chief justice of the court of appeal for direction that the decision be reviewed by the court of appeal. If the direction is refused, no review will be held.... [Tremeear’s Criminal Code, The 2000 Annotated, p. 1002.] [2] Counsel for the Crown relies upon his submission to Justice Cromwell that Mr. Wood, who was on day parole at the time of his 679(1) application, was not in custody, therefore, Justice Cromwell misinterpreted the definition of custody by granting the 679 application. He submits this is case of “first impression,” raising issues which should be considered by panel of the Court and says if review is ordered, he would raise the following grounds: 1. Whether the Chambers Judge erred in law in ruling the appellant, at the time the application under s. 679 of the Criminal Code was made, was “in custody” within the meaning of s. 679 of the Code. 2. Whether the Chambers Judge erred in law in ruling the Court had jurisdiction to hear the appellant’s application for judicial interim release under s. 679 of the Criminal Code when the appellant at the time of the application was on release from the federal penitentiary on day parole granted by the National Parole Board under Part ll of the Corrections and Conditional Release Act. [3] Counsel for the Crown was asked to determine whether any other case law was available in addition to that cited in Justice Cromwell’s decision. Both Crown counsel, who was given additional time, and Mr. Wood, who is representing himself, claimed they could not find any other cases on this issue. [4] The hearing of this appeal is scheduled for January 26, 2000. Although it has no bearing on this decision, the appeal has been rescheduled several times due to delay in obtaining the transcript for the appeal book. Had the hearing gone ahead as initially scheduled, the issue of whether or not person on day parole is in custody would never have arisen as at the time, Mr. Wood was serving his time in custody in penitentiary. [5] After reviewing the decision of Justice Cromwell and without any new precedents being provided by the Crown following an opportunity to do so, and on the facts of this case, find should not exercise my discretion to give direction for review. [6] Based on the cases cited in the decision of Justice Cromwell, in my opinion, day parole with a requirement to return to a halfway house each night is a form of custody which then allows for an application and release under s. 679 of the Code. [7] am unable to conclude that the Court of Appeal would come to any other conclusion. The application for direction that the decision of October 19, 1999 be reviewed is refused. Glube, C.J.N.S.","The appellant was granted release pending appeal, on conditions. The Crown applied for a review. The Crown contended that the Chambers judge misinterpreted the definition of custody in granting the application, as the appellant was on day parole at the time of the application. Dismissing the application, that day parole with a requirement to return to a halfway house each night is a form of custody which allows for an application and release under s. 679 of the Code.",e_1999nsca134.txt
44,"J. 1999 SKQB 17 Q.B.G. A.D. 1997 No. 2579 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA [W.P.] PLAINTIFF(RESPONDENT) and ATTORNEY GENERAL OF CANADA DEFENDANT(APPLICANT) and WILLIAM STARR and G[…] FIRST NATION PROPOSED THIRD PARTY L.B. LeBlanc, Q.C. for [W.P.] J. Gunvaldsen-Klaassen and T.G.H. Kristiansen for Attorney General of Canada M.D. Rasmussen, Q.C. for G[…] First Nation JUDGMENT MAURICE J. August 23, 1999 [1] The plaintiff alleges that he was sexually assaulted by William Starr (""Starr"") while he was student at, and Starr was the administrator of, residential school. The plaintiff alleges that the applicant, the Attorney General of Canada, as the employer of Starr, was responsible for his conduct. The applicant alleges that the G[…] First Nation was responsible for Starr\'s conduct. It applies to join the G[…] First Nation as a third party to the action brought by the plaintiff against it and Starr; so that it can claim contribution or indemnity from it — if the applicant is found liable to the plaintiff. [2] The applicant requires leave of this Court under s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31, and Rule 107A(c) of the Rules of Court. The Rules were amended in 1981. In Morrow et al. v. Regina (City) et al. (1989), 1989 CanLII 4713 (SK QB), 79 Sask. R. 98 (Sask. Q.B.) at p. 100, Halvorson J., explained the underlining philosophy of the amended Rules as follows: [10] [T]here is the underlying philosophy of the new Rules to expedite the joinder of third parties; to avoid multiplicity of actions; and, as well, in my opinion, to minimize the circumstances where third party claim may be set aside because of prejudice to the plaintiff. This observation becomes evident from review of the Rules. [3] Halvorson J. was of view applications for leave under s. of The Contributory Negligence Act and the Rules of Court should be treated the same. At p. 100 he said: [17] To attain uniformity, it seems reasonable on an application for leave under s. 7, to encourage the joinder of third parties thereby averting duplication in law suits, and to minimize delay and prejudice to the plaintiff by appropriate directions rather than refusal of leave. In so doing, specific third party practice under s. would be in tune with general third party practice under the Rules. [4] The plaintiff and the proposed third party argue that the applicant has not established prima facie claim for contribution or indemnity. In Hauer v. MacDonald, James Richardson Sons et al. and MacDonald (1965), 1965 CanLII 438 (SK CA), 51 W.W.R. (N.S.) 166, the Saskatchewan Court of Appeal referred to third party proceedings as being procedural in nature. The Court of Appeal held it was not necessary to assess evidence or go into possible defences at this stage. And while the court was of the view there must be some material by which prima facie claim is shown, the third party claim and the pleadings on file could well be sufficient for this purpose. In this application, the proposed third party claim on file and the other pleadings allege material facts that, if proven, would allow the applicant to obtain the relief it seeks from the proposed third party. At this stage the pleadings and proposed pleadings must be taken at face value; there is no evidentiary requirement to establish that they are correct. I am of the opinion, the low threshold for the establishment of a prima facie claim, as stipulated by the Court of Appeal, has been met by the applicant. [5] The plaintiff claims he will suffer prejudice and experience delay if the third party claim is allowed to proceed. While there is no doubt that an application can be dismissed on these grounds: See Arnusch v. Board of Education of Regina School District Division No. (1996), 1996 CanLII 6663 (SK QB), 151 Sask. R. 136 (Sask. Q.B.) and Amalco Credit Service Ltd. v. Time Jet Inc. et al. (1995), 1995 CanLII 5622 (SK QB), 132 Sask. R. 154 (Sask. Q.B.), the delay must be inordinate and the prejudice more than mere inconvenience; otherwise, prejudice or delay should be alleviated by directions (whether they are in the form of an order for costs or an order setting out time schedule for the completion of certain steps in the action) as opposed to dismissal of the application: Morrow, supra. [6] There may well be some delay to the plaintiff by allowing the third party proceedings, but it will not be inordinate. pre-trial was ordered by consent of the parties. It is obvious from the material that the parties were not ready for trial. They had not exchanged documents, and the plaintiff gave notice of his intention to amend his statement of claim after the consent order was granted. It was contemplated by the parties that if settlement was not achieved, further steps would be taken the parties agreed through correspondence that: ""Should settlement not be reached at pre-trial, either party may take any further necessary steps that such party deems necessary to prepare for trial..."". The plaintiff's claim dates back to 1984; it can hardly be said any additional delay, due to third party proceedings, must necessarily result in dismissal of the application. [7] Nor has the plaintiff established any prejudice. There is no indication that the inherent delay in allowing third party proceedings would result in the disappearance of any evidence, or that extra costs will be incurred by the plaintiff in redoing steps already completed or that the process will become so cumbersome and complicated as to undermine the plaintiff's claim. [8] The proposed third party claims it will suffer prejudice if it is joined as third party. There are many claims arising from alleged abuse at the residential school which could result in applications to join it as third party. The third party suggests it will incur large costs in defending these actions. It suggests it would be cost efficient and simpler to have the applicant sue it in one action to determine its liability, if any, to the applicant. Unfortunately, this is not solution to the problem. Each individual action brought by former student at the residential school is different in nature. It may cover different time period and/or different employee so that the extent of the third party's involvement will vary from case to case. The third party's liability, if any, to the applicant will have to be determined on case by case basis. [9] understand that pre-trial management judge is managing this case and other similar cases onto trial. schedule for the completion of the steps necessary to bring this matter to trial can be worked out with his assistance or an application can be made to court in the absence of agreement on time limits. [10] The application for an order granting the applicant leave to file a third party notice in the within action, in the form as filed with the court, is granted. The applicant shall have its costs of the application, to be taxed, against the plaintiff and the proposed third party.","The plaintiff alleged he was sexually assaulted and that Attorney General of Canada as employer of the administrator of the residential school was also responsible. The defendant alleged the First Nation was responsible for the administrator's conduct and applied to join the First Nation as a third party so that contribution or indemnity could be claimed. The applicant required leave under s.7 of the Contributory Negligence Act and Rule 107A(c) of the Rules of Court. HELD: Leave was granted to file a third party notice. 1)The low threshold for the establishment of a prima facie claim was met. 2)The delay would not be inordinate. The plaintiff's claim dated back to 1984. The parties were not ready for trial. No prejudice was established.  3)The third party's liability, if any, will have to be determined on a case by case basis. Each individual action brought by a former student at the residential school is different in nature. 4)The applicant was granted costs of the application against the plaintiff and the First Nation.",1999skqb17.txt
45,"J. Q.B.G. A.D. 1996 No. 3293 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE ESTATE OF DALE GERARD ALMASI, LATE OF MELVILLE, IN THE PROVINCE OF SASKATCHEWAN BETWEEN: JADE ANTHONY DALE ALMASI (an infant suing by his litigation guardian, Shannon Lee Kerr) and LORNE ALMASI (Executor of the estate of DALE GERARD ALMASI) RESPONDENT Kerri A. Froc for the applicant Noel S. Sandomirsky, Q.C. for the respondent AMENDMENT TO JUDGMENT KRAUS J. AND FURTHER DIRECTION May 27, 1999 [1] The applicant applies for amendment of my judgment of March 19, 1999 insofar as it relates to costs. At the conclusion of trial, counsel requested that reserve on the matter of costs. It is now clear that the applicant intended to make a submission for award of solicitor and client costs of approximately $70,000. Evidence was led at trial about insubstantial offers made directly between the parties. The further evidence now shows, in fact, that substantial offers were made through counsel, although that evidence was not before the Court at trial. [2] In my judgment awarded the applicant costs on the basis of Column IV, Schedule 1B of the Tariff of Costs of The Queen’s Bench Rules; declined to order solicitor and client costs on the basis that the applicant had always claimed the entire estate assets but did not have the complete evidence as to all offers before me. The applicant submits that the judgment in that particular requires amendment since there was no evidence before the Court at trial about substantive offers made by counsel for the parties. [3] In the circumstances, am satisfied that should reconsider the matter of costs since counsel had intended to make further representations and lead further evidence about substantive offers made prior to trial and that evidence and submissions do have direct bearing on the matter of solicitor and client costs. Rule 343A contemplates amendment of the judgment in these circumstances, and, furthermore, the jurisprudence is clear that the court possesses an inherent power to vary its own order so as to carry out what was intended or even to reconsider or withdraw the decision so long as the order has not been perfected. Friesen et al. v. Saskatchewan Mortgage and Trust Corporation Limited et al., 1926 CanLII 148 (SK CA), [1926] W.W.R. 125; 21 Sask. L.R. (Sask. C.A.), Bailey v. Saskatchewan Registered Nurses’ Assn., [1997] S.J. No. 180 (QL) (Q.B.), Saskatchewan v. Mountain Pacific Transport Ltd. et al. (1995), 1995 CanLII 6106 (SK QB), 129 Sask. R. (Q.B.). Here, the order has not been perfected; indeed, the respondent has been awaiting the outcome of this application in order to satisfy the judgment. [4] Special circumstances which compel the reconsideration of the judgment with respect to the issue include: the Court did not hear argument on the issue of costs at trial; counsel requested that issue be reserved; there is substantial monetary difference between the party and party costs awarded in the judgment, and the solicitor and client costs claimed by the applicant; s. 22 of The Dependants’ Relief Act, 1996, S.S. 1996, c. D-25.01 disallows appeal to the Court of Appeal on an order as to costs and, thus, this Court is the court of last resort on that issue; and, the re-hearing of this issue does not involve the merits of the case and was limited to the issue of costs (although the applicant also seeks direction with respect to post-judgment interest). [5] In light of these authorities and special circumstances, am of the view that am not functus officio, and that have jurisdiction to reconsider the matter of costs, and in particular, to hear the application by the applicant for solicitor and client costs. [6] The applicant argues that solicitor and client costs should be awarded primarily because of the offer of settlement made to the respondent on September 16, 1996 for lump sum payment of $250,000, inclusive of costs, and provided that, if the offer was not accepted by September 27, 1996, claim would be commenced under The Dependants’ Relief Act, 1996, supra to seek the entirety of the estate. In response, the respondent counter-offered settlement for $100,000, inclusive of costs. Neither of those offers were time limited and each was open for acceptance up to and including the trial. The applicant submits that the sum of the award in my judgment, together with the maintenance payments since the time of the offer and the party and party costs (approximately $20,000), would approximate $230,000. Ergo, the applicant submits, that the total recovery of $230,000 is close to the offer of $250,000 made in September of 1996. In effect, the applicant characterizes herself as the successful litigant. [7] The evidence also shows that, following the pre-trial conference, in 1999, the respondent offered settlement at $156,000, based on the report of Dr. Tompkins, an expert retained by the respondent. [8] In the alternative, the applicant seeks solicitor and client costs to be paid from the date of the offer, namely September 16, 1996, which would result in reduction of approximately $5,000 in fees and disbursements. In the further alternative, the applicant requests fixed award of costs in order to avoid taxation. [9] The respondent argues that the position taken before Wimmer J. (who directed the issue to trial) was that the estate was willing to pay reasonable maintenance for Jade based on the needs-based approach, and that the quantum of maintenance could have been summarily determined without the necessity of extensive discoveries and without a lengthy trial. The respondent argues that the position of the applicant before the Court was always to claim that the entire estate should be transferred to satisfy Jade’s maintenance, and that many interlocutory applications and steps would have been unnecessary had the applicant agreed to submit the question of determination of reasonable maintenance to the Court for summary disposition. The respondent submits that the approach of the needs-based assessment for maintenance was upheld in my judgment, and was always the approach consistently taken on behalf of the estate. The respondent argues that the real question is whether the parties were acting bona fide during their negotiations and that the issue should not be determined on the basis of the closeness of the offers. [10] Orkin, in The Law of Costs, (Aurora: Canada Law Book Inc., 1998) at 2-2 accurately described the objective of the court in awarding costs: The Canadian practice in awarding costs has been characterized as an attempt to balance two conflicting principles: one, that successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all the costs of successful one. It is these two conflicting principles that must balance in awarding costs. [11] The court’s discretion to award costs arises out of its inherent equitable jurisdiction and out of Rule 542 of The Queen’s Bench Rules of Court. Rule 542 provides that the costs of all proceedings in the court are in the discretion of the court. This discretion is virtually unfettered but must be exercised judicially on the facts of the case: Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17, 68 W.A.C. 17 (C.A.). The Dependants’ Relief Act, 1996 also provides that costs are in the discretion of the court: 21 The court may: (a) direct that the costs of any application be paid out of the estate or in any other manner that it considers just; and (b) fix the amount of the costs, exclusive of necessary disbursements, at lump sum having regard to the value of the estate and the amount of any maintenance applied for or directed by the order. [12] Solicitor and client costs are within the discretion of the court but such discretion is exercised only in rare and exceptional circumstances such as administration suits and actions brought by trustees or where there has been reprehensible, scandalous or outrageous conduct meriting the court’s censure: Canada Permanent Trust Company v. Saunders et al., 1938 CanLII 167 (SK CA), [1938] W.W.R. 657 (Sask. C.A.); Young v. Young (1993), 1993 CanLII 34 (SCC), 108 D.L.R. (4th) 193; S.C.R. (S.C.C.); and Law Society of Saskatchewan v. Robertson Stromberg, 1996 CanLII 7176 (SK QB), [1996] 10 W.W.R. 737, 149 Sask. R. 226 (Q.B.). ORDERS [13] Solicitor and client costs of approximately $70,000 claimed by the applicant are not appropriate here. The conduct of the respondent cannot be characterized as reprehensible, scandalous or outrageous. The respondent’s unwillingness to make full financial disclosure did contribute to the increase of costs but is insufficient to merit the censure of the Court through full solicitor and client costs. [14] In addition, the applicant’s conduct was not entirely pure. The judgment of Madam Justice Gunn in this matter, dated April 29, 1998 at paragraph states that under The Dependants’ Relief Act, 1996, there is nothing that indicates that person entitled to part of an estate is beneficiary but rather, that beneficiary may be found entitled to “maintenance”. In spite of this ruling, the applicant continued to claim the whole of the estate and to pursue full disclosure of the financial worth of the estate. The applicant argued that the Court needed to know the full extent of the estate so as to properly determine the applicant’s entitlement to the estate. This argument cannot be accepted. employed needs-based approach to assess maintenance, as dictated by The Dependants’ Relief Act, 1996, and it was merely happenstance that the maintenance order was roughly equivalent to one-half of the estate. [15] The Court is faced with two equally untenable positions in determining the costs. If the costs of the litigation were to be paid out of the award, the remainder may be insufficient to meet Jade’s anticipated needs. Yet, this is not an appropriate case in which to order full solicitor and client costs. [16] In this situation, however, it is appropriate for the Court to fix the costs to the applicant in lump sum: Law Society of Saskatchewan v. Robertson Stromberg, supra. [17] In fixing an amount, have considered the principles in Nalder v. Hawkins (1833), Myl. K. 243; 39 E.R. 937 in Re Champ (1986), 1986 CanLII 3001 (SK QB), 47 Sask. R. 305 (Q.B.), It is undeniable that the habit of the court has been to encourage persons to come forward as next friends for the purpose of obtaining its aid in [sic] behalf of parties incapacitated to sue for themselves. The language of the books is frequently, that next friends should not be discouraged; but there are cases which go much further, both in their language and in their tendency; cases which, both by the words used and the things done, give great encouragement to undertake the office. .This does not mean, however, that next friend can do just as he pleases. [18] The testator’s failure to provide for his dependant son, Jade, did necessitate the application of the next friend under The Dependants’ Relief Act, 1996. However, the length of time to trial and the number of interim applications are partially attributable to the applicant who continued to make exaggerated claim for the whole of the testator’s estate well past the time when it was appropriate. This contributed to the respondent’s unwillingness to disclose the financial worth of the estate and prolonged the litigation and as such should be factor into the costs awarded: Electronic Superstore Ltd. v. Geransky Brothers Construction Ltd. (1991), 1991 CanLII 7581 (SK QB), 90 Sask. R. 150; Roberts v. Teslyk (1987), 1987 CanLII 2412 (BC SC), 21 B.C.L.R. (2d) 214 (B.C.S.C.). [19] am mindful that it is incumbent upon the Court not to permit unnecessary litigation to be paid for by the estate: Orleski v. Reid, 1985 CanLII 2328 (SK QB), [1985] W.W.R. 560, 38 Sask. R. 38 (Q.B.); and Re Wolfes Estate, 1957 CanLII 591 (BC CA), [1957] 21 W.W.R. 85 (B.C.C.A.). [20] must also consider the offer of settlement made by the applicant to the respondent on September 16, 1999. Rule 184C of The Queen’s Bench Rules allows the court to take into account offers of settlement that do not meet the requirements of the other rules in Part 14A of the Rules in assessing appropriate costs. These settlement rules attempt to promote settlement without incurring the cost and inconvenience of trial. Here, the applicant made the offer well before the application went to trial and the offer remained open until judgment was given. The amount of judgment was approximately $20,000 less than the offer which was genuine and given in the spirit of compromise and settlement. From that perspective, it was reasonable and would have avoided further litigation. The respondent declined to accept the offer and undertook the risk that costs would be awarded against the estate at trial and now must bear some additional cost for failure to settle. [21] have also considered the nature of the issue, the time spent by counsel, the degree of the applicant’s success and the desire to avoid any further delay and cost that may be incurred through taxation of costs. [22] In all of the circumstances, I order fixed costs to the applicant in the amount of $47,000, together with disbursements. [23] Secondly, the applicant applies for directions as to interest on the award. am asked to consider the respondent’s position that the $200,000 award will not be paid until formal judgment is taken out. [24] The Executions Act, R.S.S. 1978, c. E-12 provides (in s. 30) that every judgment debt shall carry interest at the rate of five percent per annum from the time of entering the judgment until the judgment is satisfied. This section must be interpreted in the light of Rule 337 of The Queen’s Bench Rules which states that the entry of judgment shall be dated as of the day that judgment is pronounced unless the court otherwise orders and that the judgment takes effect from that date. In Delaire v. Delaire, 1996 CanLII 6752 (SK QB), [1996] W.W.R. 469, 147 Sask. R. 161 (Q.B.), the Court held that the debt created by judgment is debt due and payable as of the date of pronouncement and that collection proceedings may be properly taken before formal judgment is entered. This general principle is applicable here. The judgment of March 19, 1999 created debt owing to the applicant from the respondent and the debt became due and payable on the date of pronouncement, being March 19, 1999. The Executions Act states that interest runs “from the time of entering judgment” and not from the time of entering formal judgment. [25] Therefore, order that the respondent pay to the applicant post-judgment interest at rate of five percent per annum from the date judgment was pronounced, being March 19, 1999, in accordance with s. 30 of The Executions Act, and until judgment is satisfied.","The applicant applies for amendment of the judgment dated March 19, 1999 as it relates to costs. At the end of trial, the applicant requested the Court to reserve on the matter of costs. The applicant intended to make a submission for award of solicitor and clients costs. Evidence was led at trial about insubstantial offers made directly between the parties. Further evidence now indicates that substantial offers were made through council although not led at trial. The applicant argues that solicitor and client costs of $70,000 should be awarded because the offer to settle of $250,000 is close to the total judgment award of $230,000 including party and party costs of $20,000. The respondent takes the position that the estate was willing to pay reasonable maintenance costs and the quantum of maintenance could have been summarily determined without the necessity of extensive discoveries and without a lengthy trial. The respondent submits the approach of a needs-based assessment was upheld by the judgment and is always the approach always taken on behalf of the estate. The respondent argues the real question is whether the parties were acting bona fide during their negotiations and the issue should not be determined on the basis of the closeness of the offers. HELD: Solicitor and Client Costs of $70,000 are not appropriate in this case. The applicant's conduct was not entirely pure. The applicant was made aware in a prior judgment that under The Dependants' Relief Act there is nothing to indicate that a person is entitled to part of an estate as a beneficiary but rather that a beneficiary is entitled to maintenance. In spite of this ruling the applicant continued to claim the whole of the estate and to pursue full disclosure of the financial worth of the estate. Solicitor and client costs are within the discretion of the court but such discretion is exercise only in rare and exceptional circumstances. The conduct of the respondent cannot be characterized as reprehensible, scandalous or outrageous. The respondent's unwillingness to make full financial disclosure did contribute to the increase of costs but is insufficient to merit full solicitor and client costs. The Court awards fixed costs to the applicant in the amount of $47,000 together with disbursements.",b_1999canlii12595.txt
46,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fortune v. Reynolds and Brookville Carriers Inc., 2002 NSSC 288 Date: 20020501 Docket: SP 06094 Registry: Pictou Between: Frank Fortune v. Brian Reynolds and Brookville Carriers Inc. Defendants Judge: The Honourable Justice Hilroy Nathanson Heard: May 1, 2002, in Pictou, Nova Scotia Written Decision: January 22, 2003 (Oral decision rendered May 1, 2002) Counsel: Wayne A. Bacchus, Esq., for the Plaintiff/Respondent Louis Martin Boudreault, Esq., for the Defendants/Applicants Nathanson, J.: (orally) [1] Thank you very much for your submissions. [2] spent good part of last evening reviewing the contents of both your briefs, and my problems this morning arise from the manner in which the application was initiated and with the arguments that were raised in those briefs. [3] The application says that it is for determination of question of law pursuant to C.P. Rule 25.01. Unfortunately, it does not say what the question of law is. When I then read in the brief for the applicant that the sole issue is “Is the plaintiff barred from suing in Nova Scotia regarding the motor vehicle accident which occurred in the Province of Quebec?”, I concluded that that was the question of law, and that seems to be the focus of the arguments that were raised in the brief by the applicant. The application was also for directions as to procedure to govern the future course of conduct of trial, in the alternative to determination of the question of law and, secondly, to dismiss the action because Nova Scotia is a forum non conveniens. The problem is that the applicants appear to have argued determination of question of law, but the respondent has argued forum non conveniens, or at least has focused on them. [4] The applicants did not really make any submissions of substance concerning forum non conveniens, and at the same time the applicants have not provided lot of information about the circumstances surrounding the accident such as whether there were any witnesses and where they may be resident; police whether report was filed; whether anybody investigated the accident; whether any of them are witnesses; whether there are police reports; whether the plaintiff was seen by doctors and, if so, where they are located and whether they might be called to testify at trial. So am in bit of quandary. am trying to make the application and the response to the application fit together. [5] think that you are both right and you are both wrong at the same time because you are both dealing with only part of the law. My understanding of this area of the law is, but it perhaps can be summarized, possibly over-simplified, with the following statements. First, the plaintiff has a prima facie right to select the forum of his choice. Secondly, this right is subject to the defendants’ right to try to establish that the forum chosen is forum non conveniens and that more convenient forum exists elsewhere. Third, the factors to be considered by the Court in making that determination are set out in case law, two of which have been referred to me are O’Brien vs. Attorney General of Canada and Oakley vs. Barrie. [6] The substantive law which governs will be the law of the place where the injury occurred. In this case, it is Quebec, and that, think, is the true ratio of the cases of Tolofson v. Jensen; Lucas (litigation Guardian of) v. Gagnon. [7] The governing procedural law will be the law of the place of trial or lex fori, and that was decided in Brown vs. Marwieh. do not want to get into the law of Quebec. That may be something that more properly should be raised at trial if it is necessary. But would say this, do not consider myself competent to interpret the law of the Province of Quebec. have enough difficulty with the law of the Province of Nova Scotia, and think that if there is trial, and if Quebec law is involved, as think it is, according to the Rule that have just mentioned, somebody is going to have to come forward with an expert witness with respect to the law in existence in the Province of Quebec. [8] am not going to accept the paragraph in Mr. Murphy’s affidavit in which he purports to express an opinion as to what the law is, and am not going to accept counsel’s submissions this morning with respect to that narrow point. [9] So, coming back to the questions which have been raised: Is the plaintiff barred from suing in Nova Scotia? The answer to that is, as I said, the plaintiff has a prima facie right to select the forum of his choice. In this case the plaintiff has chosen Nova Scotia and, following the next rule, unless the defendant, that is the applicants here, can show that Nova Scotia is forum non conveniens, the plaintiff’s choice of jurisdiction of forum will govern. In the absence of so many facts about the circumstances surrounding the accident and the witnesses likely to be called on behalf of the defendant, I find that Nova Scotia is forum conveniens. have considered the factors set out in O’Brien vs. Attorney General of Canada and Oakley vs. Barrie, and have considered the factual submissions that have been made on behalf of the respondent in this application, and that is the conclusion that have reached. [10] It is an entirely different question, as I said, as to what law will apply to a trial in Nova Scotia and, as I have previously stated, the rule is that the substantive law that governs will be the law of the place where the injury occurs. That is the law of Quebec. Counsel are going to have to find some way of not only getting the law, but also interpretations of the law, before the Court in Nova Scotia. do not think you should automatically expect judge presiding at trial in Nova Scotia to be the interpreter of the law of Quebec. [11] If there is a procedural problem, a problem arising from procedural law, before or during trial, that problem will undoubtedly be determined in accordance with the procedural law of the place of trial, and that is Nova Scotia. [12] The notice of application was amended to include an additional claim for costs. do not think that amendment was necessary in Nova Scotia because costs are always in issue. But it does bring to the Court’s attention the necessity of dealing with costs, and that seems to be problem. The application was for: (a) determination of question of law that question has been determined; (b) directions as to the procedure to govern the future course of conduct of the trial believe that has been dealt with; and (c) to dismiss the action for forum non conveniens that was refused. So would say that the applicants have been successful, although the result is not to their liking, am sure. [13] With respect to the determination of question of law and with respect to directions as to procedure, the applicants have been unsuccessful with respect to questions arising from forum non conveniens. [14] If counsel would like to add anything before decide what to do about costs, would be glad to hear them once again. Mr. Martin Boudreault No My Lord, I’ve nothing else to add. The Court Nothing. Mr. Bacchus Yes My Lord we also were seeking costs in our response or in our Memorandum of Law and we tried to avoid court by correspondence and it necessitated this and it of course took time from our firm to prepare this, and as such we believe that some costs should be awarded. The Court Well, don’t know. have nothing before me as to who did what, who agreed to what, and who disagreed with what prior to hearing of the application. In the absence of evidence of that kind, don’t want to base decision on what it might have been. think the applicants had every right to bring this application, probably had duty to do so because of the rather unusual circumstances of the occurrence of the accident in different jurisdiction. am going to grant the applicant some costs even though it has been unsuccessful on the question of forum non conveniens because, in different sense, the applicants have not been successful in getting what they want. am going to keep those costs relatively low. am going to suggest an amount like $400.00.","The plaintiff was injured in a motor vehicle accident in Quebec and commenced an action in Nova Scotia. The applicant applied to determine whether the plaintiff was barred from suing in Nova Scotia concerning the Quebec accident and to dismiss the action on the basis that Nova Scotia was a forum non conveniens. Application to dismiss the action dismissed; the forum conveniens is Nova Scotia. The plaintiff has the prima facie right to select the forum subject to the defendant's right to establish that the forum is non conveniens. In the absence of many facts about the circumstances surrounding the accident and the witnesses likely to be called by the defendant, Nova Scotia is the forum conveniens. The substantive law governing the proceeding will be the law of the place where the accident occurred and the governing procedural law will be the law of the place of the trial.",6_2002nssc288.txt
47,"2001 SKQB 39 Q.B.G. A.D. 1998 No. 1940 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SASKATCHEWAN INSTITUTE OF APPLIED SCIENCE AND TECHNOLOGY and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION RESPONDENTS (PLAINTIFFS) and HAGBLOM CONSTRUCTION (1984) LTD., MARCEL FORTIER, GREG MARQUIS and JOHN MACAROCHA APPLICANTS (DEFENDANTS) and CITY OF SASKATOON and WILLIAM HEWITT and EDWARDS AND EDWARDS ARCHITECTS LIMITED and PHILIP M. SCOTT ARCHITECT LTD. and MARCH SCHAFFEL ARCHITECTS LTD. and THE ARCHITECTS COLLABORATIVE and DAVID CARLYLE EDWARDS and WILLIAM EDWARDS and PHILIP M. SCOTT and ANN E. MARCH and FRANK WILLIAM SCHAFFEL and COCHRANE ENGINEERING SERVICES INC. and JEFFREY REICHERT THIRD PARTIES Shaunt Parthev and for the respondents (plaintiffs) Shannon L. Metivier William B. Purdy and for the applicants (defendants) Colin D. Clackson JUDGMENT McLELLAN J. January 24, 2001 [1] The defendants bring this application to compel responses to a large number of questions that were objected to at examinations for discovery of the proper officers on behalf of Saskatchewan Property Management Corporation (""SPMC""). They also seek an order requiring SPMC to comply with numerous undertakings. [2] On September 15, 1998, the plaintiffs issued statement of claim for damages in excess of $7,000,000.00 resulting from fire which broke out in the Tower at the Kelsey Campus in Saskatoon on January 5, 1997. [3] It is alleged in the statement of claim that the fire was caused by work done by the defendants at the Kelsey Campus on January 3, 1997 which involved the application of ""Torch on"" air vapour barrier to the northeast corner of the Tower. [4] The defendants filed statement of defence on October 21, 1998 and have subsequently brought third party proceedings against the City of Saskatoon, Fire Chief William Hewitt, and numerous architects and engineers. It is common ground that at the time the ""Torch on"" was applied to the Tower, the architects and engineers were involved in comprehensive assessment of several SPMC facilities including the Kelsey Campus. The work performed by the defendants was done in conjunction with that assessment. [5] The plaintiffs conducted examinations for discovery of the defendants on June 16, 17 and 18, 1999. [6] Counsel agreed, given the various levels of organization of SPMC, that three individuals from the corporation would be designated as proper officers for SPMC. It was hoped that by proceeding in this fashion it would minimize the number of undertakings. Counsel advise that each of the three individuals is knowledgeable with respect to certain issues in the law suit: Maurice Arsenault is regional director of SPMC and has personal knowledge regarding SPMC's policies and procedures. Paul Nepper was the project manager in charge of the Kelsey restoration after the fire and the most suitable person to address damage issues. Cyril Brock, the building manager is the person most familiar with the building itself. He was also physically present on the Kelsey Campus before, during and after the fire. [7] To date, examination of Maurice Arsenault has gone on for four days, examination of Cyril Brock for four and one-half days and examination of Paul Nepper for two days. None of these examinations have been completed. Nature of the Objections [8] The objections taken by the plaintiffs to the questions can be broadly categorized as follows: The question seeks to elicit the plaintiffs' manner of investigation or expert opinions; The question was or ought to have been asked by counsel of another witness more properly suited to answer the question; Questions are best asked of others, notably third parties to the action as they relate to issues between the defendants and the third parties; The question is irrelevant or improper. [9] shall deal with each individual objection in the order as set forth in the defendants' notice of motion except where the particular question has been withdrawn from the application by the defendants. EXAMINATION OF CYRIL BROCK Objection No. 2-Questions 660 to 664 [10] The following exchange took place: 660 Just looking at document number 522 of the plaintiff's productions,, Mr. Brock, 522 is letter from the Architects Collaborative to Mr. Paul Nepper enclosing report from Jeff Reichert of Cochrane Engineering to Dave Edwards. Just looking at that report of January 31st, 1997, that is report that came into the hands of SPMC? guess it did, yes. 661 Does SPMC accept as fact the observations made in that report, is there any problem with it? MR. PARTHEV: Again, that's not fair question to put to this witness. What is it that you want? These are observations of someone else, Mr. Reichert is not with SPMC and neither is Mr. Edwards. MR. PURDY: The report was transmitted from Mr. Edwards to Mr. Nepper at SPMC. MR. PARTHEV: There's no obligation on witness to accept something that's in document. It says what it says,those are Mr. Reichert's views of the world at the time, guess. 662 MR. PURDY: Does SPMC have any information to the contrary to the observations made in that report? MR. PARTHEV: Well again, Mr. Reichert is giving his opinion with respect to what he believes happened or exists in the roofslab-or at the roof, period. so again, that's matter of expert opinion, and it's his opinion. 663 MR. PURDY: So you don't know, Mr. Brock, of any position or any facts known to SPMC which might be contrary to the observations made by Mr. Reichert? MR. PARTHEV: Same response, Mr. Purdy. Those are not just observations, those are his opinion or opinions. We are not going to sit here and comment on somebody else's opinions. Those are not factual questions. 664 MR. PURDY: The observations, the factual observations made in the report of January 31st, does SPMC have any information to the contrary? MR. PARTHEV: Same response. MR. PURDY: We'll mark that, please. EXHIBIT D-42: LETTER DATED FEBRUARY 7, 1997 FROM ARCHITECTS COLLABORATIVE TO MR. NEPPER, ENCLOSING REPORT BY MR. REICHERT DATED JANUARY 31, 1997 [11] The author of the letter has been added as third party to the action by the defendants (a copy of the letter was not provided to me on the application). have no way of knowing what observations the question referred to. There must be some reasonable degree of specificity to question of this nature when reference is made to document. I fail to see why a party to an action should be required to accept or reject an opinion of another party to the action. The plaintiffs are not required to answer the questions asked. note that Mr. Parthev invited Mr. Purdy to ask Mr. Nepper (the project manager in charge of the restoration after the fire) whether SPMC accepted the recommendations of Cochrane Engineering as laid out in the letter. Objection No. 4-P. 294, Lines 3-12 [12] The question asked was ""What cellulose fibre insulation was present at the time of the fire?"" Counsel for the plaintiffs asked for clarification for the question. No clarification was provided and the question was not followed up. Provided that the clarification requested is provided, the plaintiffs should answer the question. Objection No. 5-P. 297, Lines 7-25 [13] The defendants wanted to know whether a Mr. Miner was a participant in the investigation of the loss following the fire. [14] The plaintiffs refused to answer on the ground that names of possible expert witnesses are not discoverable. [15] An affidavit was filed by Wayne Miner, the manager of the Security and Special Investigation Unit on behalf of Saskatchewan Government Insurance (""SGI""), wherein he deposed as follows: 2. That SGI was the lead insurer involved in the Kelsey fire of January 5, 1997 and as such on SGI being notified of the fire, was assigned the duty of investigating the cause and origin on behalf of SGI. 3. That shortly after January 5, 1997, probably on January 6, assigned Larry Rollins of my department, whose specialty was determining cause and origin of fire, to conduct an investigation of the fire at the Kelsey Tower. Unfortunately Mr. Rollins has since passed away. Nonetheless Mr. Rollins reported to me throughout his investigation and worked closely with him through the investigation process. 4. That attended at the scene of the fire at the Kelsey Tower on numerous occasions during the week of January the 6th, 1997, and concluded almost immediately on my arrival at the scene that litigation would ensue. That reached this conclusion based on number of factors, including most specifically, the size of the loss and damages which would no doubt result in possible recovery against those deemed at fault. 5. That the investigations conducted by my department are done in most part and with the ultimate goal of reporting to our litigation department in anticipation of possible litigation and as such in our assessment these reports are considered privileged because they are prepared with the ultimate goal of assisting counsel. That this is also true of the investigations done as to the cause and origin of the Kelsey fire on January 5, 1997, which in my assessment were conducted with the dominant purpose of assisting in litigation which was imminent. 6. That immediately upon the appointment of Mr. Parthev of McKercher McKercher Whitmore, as counsel, which am advised by Mr. Parthev was January 13, 1997, was instructed to direct all of our reporting to Mr. Parthev to assist in the conduct of the anticipated litigation and that likewise passed these instructions onto members of the investigation unit including Mr. Rollins. Thereafter, our investigation team worked closely with Mr. Parthev in furtherance of pursuing claim. [16] The affidavit answers the question asked notwithstanding that the defendants are not entitled at the discovery stage to the names of possible expert witnesses. Objection No. 6-P. 297, Line 26 to P. 300, Line [17] Two questions were asked: (a) Was there meeting arranged and held between SPMC fire investigators and the fire marshal, Ed Solie? and (b) Assuming there was meeting, what was reported by fire marshal Ed Solie to investigators of SPMC? [18] The plaintiffs refused to answer the question claiming litigation privilege. The issue of litigation privilege was recently dealt with by the Saskatchewan Court of Appeal in Hill v. Board of Education of Arcola School Division No. 72 (1999), 1999 CanLII 12302 (SK CA), 180 Sask. R. 256. In that case demand was made during questioning on the examination for discovery for the name of the adjuster who interviewed potential witnesses and prepared report, and the names of the witnesses interviewed. After thorough review of prior jurisprudence, Sherstobitoff J.A. came to the following conclusion: [10] The appellant must succeed on this point. The criterion for discoverability is whether the information sought may be characterized as being ""facts that are or may be relevant to the determination of the facts in issue."" The names of all potential witnesses clearly fall into that category, but they have already been provided. However, the name of the insurance adjuster who investigated the accident and the names of potential witnesses from whom he took statements, written or otherwise, on behalf of the appellant during the course of his investigation just as clearly do not. These names do not reveal anything of the facts in issue that the respondent does not already have, but do reveal details of the appellant's investigation of the facts in issue. The respondent cannot be said to be seeking facts when he asks for this information; he is seeking details of the appellant's investigation. That is exactly the sort of information that litigation privilege is designed to protect. [Emphasis added] [19] The appellant in Arcola School Division also appealed part of an order which required the appellant to ""supply the facts contained in the investigator's reports, the information obtained from each student and the information obtained from Douglas Lupanko"". In setting aside that portion of the order Sherstobitoff J.A. made the following comments: ... Orders such as these normally deal with specific questions asked on the discovery which the person being examined has declined to answer so that the court is dealing with specific matters. In this case the court was asked for and gave an order granting relief of such general nature that the meaning of the order is uncertain. [12] If the order is read as requiring the appellant to supply, verbatim, all parts of the reports and statements which deal with facts relevant to the issues, (and that is the meaning attributed to it by the parties), the order cannot stand. As noted above, the respondent conceded that the written documents themselves were privileged. If the privilege is to mean anything, it must apply to the content as well as the physical document. The appellant cannot be compelled to, in effect, copy all parts of privileged documents dealing with facts and to hand the copies over. To rule otherwise would be to penalize the party who first investigated the matter by compelling him to hand over the complete fruits of his investigation of the facts to the other.[Emphasis added] (pp. 261-2) [20] Any meeting between the plaintiffs' investigators and the fire marshal clearly relates to its investigation and is privileged. It follows that any information obtained by the plaintiffs from the fire marshal is also privileged. There is nothing preventing the defendants from obtaining information directly from the fire marshal. Objection No. 7-Question 1399 [21] ""Was there any liaison set up between Mr. Bykowy and SPMC and SIAST insurers and their investigators?"" [22] Apparently Mr. Bykowy is fire investigator with the City of Saskatoon. I agree with the plaintiffs that the question relates to the manner of the plaintiffs' investigation and is not proper. Once again, questions can be asked of the third party City of Saskatoon. Objection 8-P. 317, Line to P. 318, Line [23] The question asked was: ""... is any engineer's report or any engineer's report that was prepared as a result of engineers retained by the plaintiffs' fire investigators, did any of their reports or were any of their reports shared with the City of Saskatoon fire department?"" [24] Once again the defendants are seeking details of the plaintiffs' investigation and that information is protected by litigation privilege. Objection No. 9-P. 330, Line 15 to P. 331, Line [25] The question objected to was ""... what observations were made of the damage post fire, the damage to the roof and its ... and the attic that would connect the point of breakout to the point where Hagblom were operating or were working?"" [26] The plaintiffs' claim in this law suit is in excess of $7,000,000.00. The question is too vague to answer In an application of this nature proper foundation must be laid in the context of specific questions asked and answers given or not given (Hill v. Board of Education of Arcola School Division No. 72, supra). The defendants might ask for example, what wood was burned, where the burned wood was located, whether it was burned on the inside or outside and similar questions. [27] also agree with the plaintiffs that the question appears to be asking for the plaintiffs' expert opinion on burn pattern. The defendants are entitled to disclosure of all facts that are or may be relevant to the determination of the facts in issue. They are not entitled to expert opinion. Objection No. 10-P. 351, Lines 6-14 [28] The question asked was whether SPMC's insurer's investigation team participated in the investigation with the City of Saskatoon fire department investigation team. Again the question relates to the plaintiffs' manner of investigation and is privileged. Objection No. 11-P. 355, Lines 6-18 [29] The defendants wanted to know whether certain documents (statements) referred to in the plaintiffs' statement as to documents and for which the plaintiffs claimed privilege were obtained from the City of Saskatoon fire department. The plaintiffs gave an undertaking to find out whether the plaintiffs' received the statements during the course of their investigation. If they were, they are privileged. In any event the defendants will have the opportunity to examine the City of Saskatoon in the third party claim. Objection No. 13-Question 1557 [30] The defendants asked for the name of the individual who prepared certain drawings by Consolidated Engineering Company, dated June 18, 1997 and which document had been produced to the defendants by the plaintiffs at mandated mediation session. [31] All discussions at the mediation proceedings are strictly confidential. Any questions arising out of anything disclosed during the mediation are clearly improper. [32] Furthermore, the name of the plaintiffs' expert who prepared the drawings in contemplation of litigation is privileged. Objection No. 14-P. 437, Lines 17-25 [33] can find no objection to the questions asked. fail to see why the defendants included this reference in the notice of motion. Objection No. 15-P. 459, Line to P. 461, Line 23 [34] The following exchange took place beginning at line 17 on p. 459 of the transcript: MR. PURDY: Okay. How the Soprema was applied. Then your answer isn't complete because was there any indication on the wall of direct contact between torch and wall? MR. PARTHEV: And it's SPMC's position that there is such indication. MR. PURDY: All right. And what is the observation made indicatingtorch application to wall? MR. PARTHEV: Well see that's-where we get into this distinction between expert opinion because what may look like nothing to you and me, may mean something to an expert who looks at wall, so think you're treading on expert opinion to say the least, and I've always had trouble with these questions because understand we're supposed to supply you with facts, but that line gets pretty blurry when it comes to what is obvious to an expert as opposed to lay person. MR. PURDY: There must have been some physical sign, some chemical sign, some sign of some kind of torch application to wall. MR. PARTHEV: Well you'll get that when the expert opinion is supplied to you- MR. PURDY: Well this- MR. PARTHEV: -in accordance with the rules. MR. PURDY: This is-no, this is physical evidence that was present, whether organic, whether chemical, whether or whatever kind, application of heat to material, results and chemical change. What is it? What was present to indicate the change? [Emphasis added] MR. PARTHEV: Well again, same answer. That stuff would mean nothing to me, but it may mean lot to an expert, so you're asking for an expert opinion. MR. PURDY: No, I'm not asking for an expert opinion. I' asking for the physical state observed with respect to direct heat application. What was there? MR. PARTHEV: Mr. Purdy, we could pull out piece of wood from that wall and it may be charred, but it's up to an expert to say whether it was charred because of blow torch or it happened as result of the fire, so it's totally unfair question. Same with burn marks on the wall, mean it means nothing to just simply say there were burn marks on the wall until an expert says yes, those are propane burn marks and this is why they are. It's my opinion that they are because X, and Z. MR. PURDY: All-well what want to know is X, and Z, if you want to put it that way, the physical characteristics present. MR. PARTHEV: Well again- MR. PURDY: How many times do have to go through that? What were the physical characteristics or the chemical characteristics? MR. PARTHEV: You'll get them all when you get the expert opinion. [35] The plaintiffs' objection that the defendants are really asking for an expert opinion would seem to be borne out by the portion of Mr. Purdy's comments which are underlined. [36] The defendants are entitled to all relevant facts but not opinions. They are entitled to know what was observable to anybody looking at the wall where the Soprema was being applied not to an expert's interpretation of what was observable, for example what chemical change took place. [37] The defendants ought to ask specific questions, for example, whether burn marks were observable, and if so, have the witnesses described the burn marks. In other words, the facts and observations upon which expert opinions are based must be disclosed. That would, in my view, include any photographs taken by the plaintiffs and upon which the plaintiffs' expert may have relied. Objection No. 16-P. 462, Line to P. 463, Line [38] The witness was asked what portion of the wall had torch application. The witness answered (line 2), ""I believe it's the northeast corner where they were working off the scaffold up the parapet wall."" Counsel for the defendants did not like the answer but nevertheless the witness answered the question. In fact, the witness answered it again at question 1811 when asked ""What's that answer?"" The witness replied ""The answer gave was the northeast corner of the Tower where they had the scaffold set up."" Objection No. 17-P. 466, Line to P. 467, Line 19 [39] The question asked was: ""Was there any particular pattern on this piece of wood that would indicate contact by propane flame?"" agree with counsel for the plaintiffs that the answer to that question requires an expert opinion which the witness is not required to provide. Objection Nos. 18, 19 and 20 [40] The following questions were asked of the witness: (a) Whether there is factual evidence indicating first ignition; (b) What material first ignited; (c) What physical evidence is there of ""first ignition"". [41] The defendants were advised that the plaintiffs were not there when the fire first started. The question can only be answered by having experts reconstruct what, in their opinion, occurred at the time the fire started. The defendants are not entitled to ask for that expert opinion. In due course they will receive the opinions of the expert witnesses as required by The Queen's Bench Rules. EXAMINATION OF MAURICE ARSENAULT Objection No. 4-P. 262, Lines 3-12 [42] The witness was asked whether ""In the 1967 construction of the Tower was there fire stop?"" The witness replied that he did not know the answer to that question. He was then asked ""What's SPMC's position? Was there fire stop?"" The defendants were advised that SPMC has no position one way or the other. [43] If the plaintiffs do not have position know of no rule requiring them to adopt position. They can be required to give an undertaking to provide the defendants with position if they adopt one at later date. Objection No. 5-P. 266, Questions 41 and 42 41 Okay. Now in connection with the question of whether there was fire stop constructed in 1967, are you-do you suggest that better get that information from others, and if that information is in the hands of others, who would have it? have made no suggestion in that regards. 42 That information should be somewhere within the capacity or capability of SPMC to determine? MR. PARTHEV: No, that's not what the witness said, Mr. Purdy. We made it quite clear that this building and SPMC's involvement goes back to 1986, and we've also made it clear that we're not going to search all provincial archives to get you that information. Secondly, that information is not relevant as far as we're concerned to whether your client burned down our building in 1997. It is obvious that the plaintiffs do not have the requested information. There is no obligation on them to seek that information from third parties when the defendants are as capable of obtaining that information as the plaintiffs. It would be another matter if the information was held by third parties under the control of the plaintiffs. If the party being examined has no control over or greater access to witness than the examining party, it need only disclose the evidence known to it. Objection No. 6-P. 268, Questions 47 and 48 [44] The witness was asked whether the parapet roof was constructed in accordance with the detail set out in FC. The witness replied that he did not know. [45] The witness was then asked whether SPMC had position on the matter. The response was that SPMC had no position on the matter. In their brief, filed on this application, plaintiffs' counsel gave an undertaking to advise if and when the plaintiffs develop position. Objection No. 7-P. 273, Line 22 and Objection No. 8-P. 274, Line 10 [46] The witness was shown plaintiffs' document production No. 94(c) which is sketch of the Tower parapet detail and was asked whether the plaintiffs have any position that the detail outlined in that document is right, wrong or otherwise. Although the transcript is not clear as to what the response from the plaintiffs was, the plaintiffs undertook in their argument to advise if and when the plaintiffs develop position. Objection No. 9-P. 310, Question 158 and P. 311, Line 16 158 Might that RFP [request for proposal] be available and can it be provided? The question must be examined by reading the previous question. 157 All right. And do you have or have you seen the RFP for this particular project? No, haven't. have not seen it and do not have it. The witness responds at p. 311 that all long range plans for SIAST Kelsey Campus are contained in document D-10 which has been produced. In my view that does not answer the question. If there is an RFP for Kelsey Campus which relates to the Tower, that document should be produced. If the RFP under discussion only relates to the Regina campus agree with the plaintiffs that the document is not relevant. Objection No. 10-Question 198 [47] The defendants' counsel referred to exhibit D-9 [a standard form contract between SPMC and Architects Collaborative] and in particular to the definition, sub-consulting 1.8. The witness was then asked whether ""it was considered anytime that Hagblom Construction would be sub-consultant within the terms of this agreement?"" [48] The plaintiffs refused to answer what they considered to be legal question. The objection was well founded, questions as to party's position in law are not proper. The trial judge will eventually interpret the terms of the agreement. Objection No. 11-P. 325, Line 18 to P. 328, Line [49] The defendants' counsel again refers to D-9 and in particular paragraph 3.2 and appears to ask whether Hagblom was retained pursuant to this paragraph. [50] Once again this is legal question. In any event the plaintiffs did advise that their position as to how Hagblom was retained was set forth in paragraphs and of the statement of claim which provide as follows: 8. Pursuant to contract between Hagblom and SPMC, Hagblom removed portion of the brick cladding from the northeast corner of the Tower on November 28, 1996, exposing the surface to facilitate inspection of the masonry construction by structural engineer. Said contract was made between Hagblom and Cochrane Engineering Inc., as agent of SPMC, in part by letter dated November 25, 1996 and in part orally. 9. Pursuant to contract between Hagblom and SPMC, Hagblom further agreed and undertook to supply and install an air vapour barrier to hoard in the exposed surface where the brick had been removed. Said contract was made between Hagblom and Cochrane Engineering Inc., as agent of SPMC, in part by letter dated November 29, 1996 and in part orally. Objection No. 12-P. 333, Question 14 to P. 337, Line [51] The question asked was whether the building was built in accordance with the 1960 fire code when constructed in 1967. The plaintiffs replied that the building did not come into their possession until 1986 or 1987 and they had no knowledge as to whether it was built according to the 1960 fire code. [52] The defendants' counsel then asked if the plaintiffs had position on the matter and requested that if they did not that the plaintiffs research the question and develop position. [53] stated earlier that party is not obliged to develop position. It is required if it later adopts position to advise the other party. The plaintiffs stated that they assumed the building was built according to the code. That was all that they could say. [54] Furthermore, the information is obtainable by the defendants and disagree with defence counsel's suggestion that there is no obligation on the defendants to obtain the information from third parties. refer him to my earlier comments in that regard. Objection Nos. 13 and 14 [55] The plaintiffs advise that these will be answered. Objection No. 15-P. 370, Question 136, Lines 11 to 18 [56] agree with plaintiffs' counsel that it is not clear why the defendants have listed this question. It was agreed that the document to which defence counsel was referring would be marked as an exhibit subject to qualification by the plaintiffs that they wanted to confirm with Mr. Hegel whether he received it or not. There was nothing presented to me to suggest that such confirmation was still an issue. Objection No. 16-Question 163 [57] The question asked was whether Dave Edwards or Jeff Reichert were on the scaffold. The plaintiffs advise that they did not know. [58] The plaintiffs did, in undertaking No. 38, agree that ""if SPMC has information as to the identity of architect who inspected parapet during or after brick removal, advise of same."" However, plaintiffs' counsel advised that the lawyer acting for the architects has already informed him that his clients will not talk to plaintiffs' counsel now that they are parties. [59] Furthermore, Edwards and Reichert are architects who have been added as third parties by the defendants. Any information that the defendants require can be obtained directly from Edwards and Reichert when they are examined for discovery. Objection Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 [60] fail to see why the defendants claim that the plaintiffs objected to answer the questions referred to in the above objections. My reading of the transcript indicates quite clearly that the plaintiffs gave an undertaking to answer each of the questions. (See undertakings 39, 40, 41, 42, 44, 45, 46, 47, 48 and 49). Objection No. 21-Question 200 [61] The question was answered. EXAMINATION OF PAUL NEPPER [62] There were 36 objections taken to questions asked of Mr. Nepper. Three of the questions have been withdrawn by the defendants. The remaining objections, except for objection 35, generally fall into two categories: (a) The defendants are examining on an area being D-10 already canvassed at the examination of Arsenault; (b) The defendants are asking repeat questions in areas already canvassed at the examination of Arsenault. [63] For the reasons which follow I have decided that these objections must fail. If question has already been asked and answered by one of the three proper officers put forward by the plaintiffs, there is no need for the question to be answered second time. It would be an abuse of the process for the defendants to ask the same question of a second officer hoping to obtain a different answer. In that event it is quite proper for the second officer to merely state that the question has been asked and answered by the first officer. If the first officer was unable to answer the question at the time of the examination and gave an undertaking to provide the answer, the defendants ought to wait for the undertaking and not ask the same question of the second officer. If the question was not answered by the first officer, see no reason why the same question cannot be put to the second officer. [64] The fact that there are three separate officers does not restrict the defendants to asking only certain questions of each of the officers. For example, during one exchange counsel for the plaintiffs stated ""You are asking questions which ought to have been asked of Mr. Arsenault."" Nor can counsel be heard to say that the defendants' counsel is now asking questions that he forgot to ask Arsenault. The fact that the defendants agreed to examine three officers does not mean that they agreed to restrict themselves as to the questions that they could ask each of the three officers. It may well be that defence counsel are asking Nepper questions which either they forgot to ask Arsenault or never thought to ask him at the time he was examined but that does not prevent them from now asking the question of Nepper. [65] The reason for having three officers, each with expertise in certain area, was to prevent the plaintiffs from having to give endless undertakings. Furthermore, the plaintiffs' counsel advises that the defendants would not agree to having all three officers present during each examination. In my view that would have saved not only time, but unnecessary legal fees. can appreciate Mr. Parthev's frustration over the fact that the process is not working as contemplated when it was agreed three officers would be examined. Objection No. 35-Question 542 [66] The plaintiffs say that the question is simply too complicated and that it will be answered if it is broken down. [67] The question asked was whether, referring to exhibit D-54, does SPMC accept that it represents an accurate reconciliation of the work recommended to be done by exhibit D-10 and actually completed in the 1997 renovations. [68] did not have either exhibit D-54 nor exhibit D-10 before me and am therefore unable to determine how complicated question 542 actually is. do note, however, that in the statement of claim the plaintiff SPMC claims fire damage repairs in excess of $4,780,277.43 and emergency repairs of $191,026.14. assume D-54 is referring to those damages as being the 1997 renovations as the fire allegedly occurred January 5, 1997. That being so can understand plaintiffs' counsel's suggestion that the question is too complicated. [69] Defence counsel should be able to break the question down so to enable the plaintiffs to provide the desired answers. THE UNDERTAKINGS [70] The examinations for discovery of SPMC's proper officers has not been completed. The defendants seek an order compelling SPMC to comply with the undertakings given during the course of the examination of all three officers. [71] There are 200 undertakings-60 from Brock, 37 from Arsenault and 103 from Nepper. do not propose to deal with them individually. Suffice it for me to say that as general rule, examinations for discovery should be completed before party being examined is required to comply with the undertakings. If further examinations are required after the undertakings have been complied with, those examinations will be limited to the undertakings. [72] agree with plaintiffs' counsel that some undertakings require considerable amount of time and effort before proper answer can be provided. If the examining party were to be allowed to simply adjourn the examination and demand that the undertakings be then complied with, this would lead to endless delay in examinations. [73] There may be exceptional circumstances where in some cases the court will order compliance with undertakings before the examinations are completed. The defendants have failed to satisfy me that any such exceptional circumstances exist in this case [74] leave the matter of costs to be dealt with by the trial judge.","The defendants brought an application to compel responses to a large number of questions objected to at examinations for discovery of the proper officer for SPMC, and sought an order requiring SPMC to comply with numerous undertakings. The objections were categorized as the questions sought to elicit the plaintiff's manner of investigation or expert opinions; it should have been asked of another witness better suited to answer or third parties as the questions relate to issues between the defendant and the third parties; it was irrelevant or improper. HELD: 1)The plaintiffs were not required to answer questions which would require them to accept or reject an opinion of another party to the action. 2)The plaintiffs should answer what cellulose fibre insulation was present at the time of the fire. 3)The affidavit answered whether Miner was a participant in the investigation notwithstanding the defendants are not entitled to the names of possible expert witnesses at the discovery stage. 4)Any meeting between the plaintiff's investigators and the fire marshal clearly related to its investigation and is privileged. The defendants could obtain the information directly from the fire marshal. 5)The question of whether there was any liaison between the city fire investigator and SIAST was improper as it relates to the manner of investigation. Questions can be asked of the city. 6)Details of the plaintiff's investigation, including an engineer's report, was protected by litigation privilege. 7)The question regarding what observations were made of the damage was too vague. The plaintiff's claim was in excess of $7 million. A proper foundation must be laid in the context of specific questions and answers given or not given (Hill v. Arcola School Division). The defendants are not entitled to expert opinion. 8)Whether SPMC's insurer's investigation team participated related to manner of investigation and was therefore privileged. 9)The defendant will be able to examine the city in the third party claim with respect to documents from the fire department. 10)All discussions at mediation proceedings are strictly confidential. The name of the plaintiff's expert, who prepared the drawings in contemplation of litigation, is privileged. 11)The facts and observations upon which expert opinions are based must be disclosed including any photographs.  12)Whether any pattern on the wood would indicate contact by propane flame required expert opinion. 13)Questions concerning what material first ignited could only be answered by having experts reconstruct what in their opinion occurred at the time the fire started. 14)If the plaintiffs do not have a position (on whether there was a fire stop in the 1967 construction of the tower), there is no rule the court is aware of requiring them to adopt a position. They can be required to give an undertaking to provide a position if they adopt one at a later date. Whether they believed the building was built in accordance with the 1960 fire code when constructed in 1967 was information obtainable by the defendants. 15)If the party being examined had no control over or greater access to a witness than the examining party, it need only disclose the evidence known to it. There is no obligation to seek information from third parties when the defendants are capable of obtaining that information. 16)An undertaking was given to advise if and when the plaintiffs develop a position on whether the parapet roof was constructed in accordance with the detail set out in FC and whether the detail in the sketch of the Tower parapet was correct. 17)If the request for the proposal related to Kelsey, the document should be produced, but if it only related to the Regina campus, the document was not relevant. 18)Whether it was considered anytime that Hagblom would be a sub-consultant was a legal question. The trial judge will interpret the terms of the agreement. 19)Any information required could be obtained directly from the architects who had been added as third parties by the defendants.  20)The plaintiffs gave undertakings to answer the other questions and did not object to answering them. 21)The 36 objections (less 3 that were withdrawn) failed. It would be an abuse of process for the defendants to ask the same question of a second officer hoping to obtain a different answer. The same question can be put if the first did not answer it. The fact there were three separate officers does not restrict the defendants to only asking certain questions of each. The reason for having three officers, each with a different expertise in a certain area, was to prevent the plaintiffs from having to give endless undertakings. Having all three present during each examination would have saved time and unnecessary legal fees. 22)The exhibit was not before the court to determine how complicated the question was. Defence counsel was to break it down. 23)There were 200 undertakings. As a general rule examinations for discovery should be completed before the party being examined is required to comply with the undertakings. It would lead to endless delay if the examining party were allowed to simply adjourn and demand the undertakings be complied with. There were no exceptional circumstances.  24)Costs were left to the trial judge.",c_2001skqb39.txt
48,"J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 61 Date: 20050512 Between: Docket: 1111 HDL Investments Inc. et al. Prospective Appellants (Appellants) and City of Regina and Saskatchewan Assessment Management Agency Prospective Respondents (Respondents) Before: Bayda C.J.S. Counsel: Leonard D. Andrychuk, Q.C. for the Prospective Appellants Byron G. Werry for the Prospective Respondent City of Regina Application: From: Assessment Appeals Committee Saskatchewan Municipal Board Heard: May 11, 2005 Disposition: Leave granted Written Reasons: May 12, 2005 By: The Honourable Chief Justice Bayda BAYDA C.J.S. [1] The applicants will have leave, pursuant to s. 33.2(2) of The Municipal Board Act, S.S. 1988-89, c. M-23.2, to appeal to this Court against the decision of the Saskatchewan Municipal Board Assessment Appeals Committee rendered in this matter on the 16th day of February 2005 on the questions of law arising out of the following grounds of appeal. A. The Committee erred by mischaracterizing, misreading or ignoring the decision of this Court in Harvard Developments Ltd. et al v. The City of Regina et al, 2004 SKCA 103 (CanLII) (the “HDL Decision”), which confirmed the decision of the Board of Revision in appeal 98-520 that the Wascana Energy Building sale could not be used for MAF purposes, when the Committee decided to overturn the Board’s decision to exclude the said sale from the MAF sales array. B. The Committee erred by grounding its decision on the premise that the only issue before the Board and the Committee was whether the assessor had properly adjusted the sale of the Wascana Building, and ignoring and failing to deal with one of the Appellants’ main arguments concerning the Wascana building sale, such argument being that the sale price of that building could not be adjusted to represent typical market value transaction per the Manual Document 1.1.6. C. The Committee erred in its interpretation or application of the HDL Decision or Document 1.1.6 of the Manual, or ignore the evidence before it, when it determined that the assessor had correctly performed all necessary adjustments under Document 1.1.6. D. The Committee erred in its interpretation or application of Document 1.1.6 of the Manual when it determined that the question of whether sale is capable of adjustment or is properly adjusted is to be determined by reference to the assessment Neighbourhood in which the building is placed. [2] There will be an order in accordance with the above. Costs in the cause. DATED at the City of Regina, in the Province of Saskatchewan, this 12th day of May, A.D. 2005. BAYDA C.J.S.",The applicants apply for leave to appeal pursuant to s. 33.2(2) of The Municipal Board Act to appeal to this Court against the decision of the Saskatchewan Municipal Board Assessment Appeals Committee. HELD: Leave is granted to appeal.,4_2005skca61.txt
49,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 94 Date: 20060828 Between: Docket: 1342 April Schoenthal and Ryan Dalrymple Prospective Appellants and MP Equities Ltd. O/A RDL Management Prospective Respondent Coram: Jackson J.A. (in Chambers) Counsel: Ms. April Schoenthal and Mr. Ryan Dalrymple in person Ms. Larke Kimpton for the landlord via conference call Appeal: From: QBG 1257 of A.D. 2006, J.C. of Regina Heard: August 23, 2006 Disposition: Application Allowed Written Reasons: August 28, 2006 By: The Honourable Madam Justice Jackson Jackson J.A. [1] Ms. Schoenthal and Mr. Dalrymple, “the tenants,” apply pursuant to s. 49(2) of The Residential Tenancies Act[1] for leave to appeal a decision of the Court of Queen’s Bench reviewing a decision of the Rentalsman. Deputy Rentalsman granted an order of possession and issued writ of possession on July 28, 2006. Her reasons were as follows: The rent was 15 days or more in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice. am satisfied that based on the evidence provided, the Landlord's claim has been sufficiently proven and that an Order should be made placing the Landlord in possession of the rental premises. [2] The file indicates that hearing was held on July 26 at which the tenants agreed to pay the August rent, as well as the July rent, on July 27. The tenants dispute that they agreed to pay the August rent. They indicate that they could not have agreed to pay the August rent on July 27 because they would not have been in position to pay future rent on that day. [3] The tenants advise that the landlord holds the equivalent of one month's rent as security for the payment of the last month's rent of the tenancy. The landlord contradicts this and indicates that it holds $640 as damage deposit only. [4] In any event, the parties agree that the rent for July in the amount of $640 was paid on July 27 plus late payment fee of $25, which the landlord accepted. The landlord, nonetheless, immediately applied for, and was granted, writ of possession. No further hearing was held. [5] The tenants allege that they tendered the arrears on the basis that the landlord would not apply for writ of possession and that the arrears were accepted on that basis. Ms. Schoenthal received and cashed her paycheque on July 27 to enable her to pay the July rent. Thus, there were no arrears of rent owing as of July 28. Because the tenants believe that the landlord holds the equivalent of one month's rent, they indicate they would not have tendered the rent if they were going to be evicted in any event. [6] The Rentalsman’s fiat does not speak to knowledge that the July rent had been paid, but to the rent having been in arrears when the original Notice of Termination was served, which the tenants allege was cured on July 27 when the landlord accepted the rent and late payment fee. [7] The tenants appealed the Rentalsman’s decision to the Queen’s Bench. Their appeal was heard on August 15, 2006, by which time the August rent was due not only under the disputed agreement but under the tenancy agreement. The Chambers judge dismissed the tenants’ appeal the same day, saying ""[d]ue to [the] fact rent for August has not been paid, and not paid by required time, appeal is dismissed”. [8] My jurisdiction is derived from s. 49 of The Residential Tenancies Act, which reads: 49(1) Any person who is aggrieved by decision or order of the Rentalsman may appeal the decision or order on question of law or of jurisdiction of the Rentalsman to judge of Her Majesty's Court of Queen's Bench for Saskatchewan within 30 days of the date of the decision or order. (2) Any person who is aggrieved by decision or order of judge of Her Majesty’s Court of Queen’s Bench for Saskatchewan pursuant to sections 47.1 to 47.3 or pursuant to subsection (1) of this section may appeal the decision or order to the Court of Appeal within 30 days of the date of the decision or order with leave of the Court of Appeal or judge of that court. [9] I have decided the following questions warrant leave to appeal:1. Did the Chambers judge err in finding that the Rentalsman had jurisdiction to make an order granting possession on the basis that “[t]he rent was 15 days or more in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice” if the landlord accepted the rent in lieu of seeking a writ of possession? 2. In answering the first question, did the Chambers judge err in considering that the subsequent month\'s rent was not paid? [10] The tenants have until 4:00 p.m. on August 31, 2006 to serve and file their notice of appeal and 15 days thereafter to file their appeal book and factum. [11] If the tenants serve and file their notice of appeal by 4:00 p.m. on August 31, 2006, but do not pay the August rent by the end of August 31, or do not pay their September rent, the landlord has leave to apply on 48 hours notice to lift any stay of execution. [12] There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 28th day of August, A.D. 2006. Jackson J.A. [1] R.S.S. 1978, c. R-22.","The tenants apply pursuant to s. 49(2) of The Residential Tenancies Act for leave to appeal a decision of the Court of Queen's Bench reviewing a decision of the Rentalsman. HELD: Application allowed.  1) The parties agree that the rent for July was paid on July 27. The landlord then immediately applied for and was granted a writ of possession. 2) The tenants advise that the landlord holds the equivalent of one month's rent as security for the payment of the last month rent of the tenancy. The landlord claims it is a security deposit. 3) The tenants claim they tendered the arrears on the basis that the landlord would not apply for a writ of possession and that the arrears were accepted on that basis. 4) The Court of Queen's Bench Chambers judge dismissed the appellant's appeal the same day saying 'the rent for August has not been paid and not paid by required time, appeal is dismissed'. 5) The first issue on appeal is whether the Chambers judge erred in finding the Rentalsman had jurisdiction to make the order granting possession on the basis that 'the rent was 15 days in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice' if the landlord accepted the rent in lieu of seeking a writ of possession. The second issue on appeal is whether the Chambers judge erred in considering that the subsequent month's rent was not paid.",7_2006skca94.txt
50,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 265 Date: 2014 08 22 Docket: Q.B.C.A. 29/2013 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and BRENT DARREN PLANTJE Counsel: Lana E. Morelli for the appellant Ronald P. Piche for the respondent JUDGMENT THOLL J. August 22, 2014 I. Introduction [1] On March 13, 2011, Mr. Plantje was charged with impaired operation of motor vehicle, contrary to s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C‑46, and operating motor vehicle when the concentration of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. [2] The investigation into the events which the charges were based on included demand from police officer that Mr. Plantje provide roadside sample of his breath into an approved screening device (""ASD""). At trial, Mr. Plantje challenged the reasonableness of the investigating officer's suspicion upon which the officer based his ASD demand. The trial judge determined the officer's suspicion was not reasonable, which resulted in breach of ss. and of the Canadian Charter of Rights and Freedoms (the ""Charter""). The trial judge excluded the Certificate of Qualified Technician, pursuant to s. 24(2) of the Charter, and Mr. Plantje was acquitted of both charges. [3] In its Notice of Appeal, the Crown appealed the acquittals of both of the charges. At the argument of the appeal, however, the Crown informed the court it was appealing only the acquittal with regard to the s. 253(1)(b) charge (exceed .08) and was abandoning its appeal with regard to the s. 253(1)(a) charge (impaired operation). [4] On November 12, 2011, Cst. Kowalenko, who is member of the Saskatoon Police Service, was on duty. His shift had commenced at 7:00 p.m. on the previous day. Cst. Kowalenko was in marked police vehicle and was on routine patrol with his partner in Saskatoon. At 5:12 a.m., Cst. Kowalenko observed car driving eastbound on College Drive. As he followed the car, Cst. Kowalenko observed the car drift to the left and strike the raised meridian which separated the westbound and eastbound lanes. The car then drifted slowly over to the right‑hand side of the lane coming close to the line marking the lanes. The car drifted again to the left and corrected again. Cst. Kowalenko observed the vehicle drift three times to the right hand side of the lane with the passenger tires driving on top of the line marking the lanes. The car would then drift back to the left. The car came within few inches of striking the meridian second time. The car was not speeding and, other than drifting back and forth, it was being driven in normal fashion. The car exited College Drive at the McKercher Drive exit and then turned onto Degeer Street, with Cst. Kowalenko continuing to follow. At that point, Cst. Kowalenko activated his emergency lights and sirens to conduct traffic stop. The car immediately pulled over to the side of the street and stopped in normal, safe manner. The time was 5:16 a.m. [5] Cst. Kowalenko exited his vehicle, approached the driver's side of the car and spoke to the driver through the window of the car. The driver was Mr. Plantje. Cst. Kowalenko observed Mr. Plantje's eyes to be red and bloodshot. Cst. Kowalenko asked Mr. Plantje if he had any alcohol to drink that ""evening"". Mr. Plantje responded that he had ""three beers"". Cst. Kowalenko observed Mr. Plantje to be nervous and not comfortable with talking to Cst. Kowalenko about what he was doing. [6] At that point, Cst. Kowalenko suspected Mr. Plantje had alcohol in his bloodstream and decided to conduct an ASD test with him at the roadside. Cst. Kowalenko asked Mr. Plantje to get out of the car and Mr. Plantje complied. Cst. Kowalenko did not notice any coordination problems or lack of motor skills by Mr. Plantje when he exited his car. Cst. Kowalenko then read the ASD demand to Mr. Plantje while they were standing beside Mr. Plantje's car. The demand was made at 5:17 a.m. [7] Mr. Plantje accompanied Cst. Kowalenko back to the patrol car where Cst. Kowalenko retrieved the ASD from the trunk. Mr. Plantje followed Cst. Kowalenko to the trunk area of the patrol car. At that point Cst. Kowalenko smelled alcohol on Mr. Plantje's breath. Mr. Plantje was placed in the back seat of the patrol car where the ASD test was administered. The ASD registered an ""F"" which represents fail of the test. At 5:29 a.m., Cst. Kowalenko arrested Mr. Plantje for impaired driving. Cst. Kowalenko provided rights to counsel, provided the police warning and made demand for sample of Mr. Plantje's breath pursuant to s. 254(3) of the Criminal Code. Cst. Kowalenko then transported him to the Saskatoon Police Service office for the purpose of conducting breath tests. [8] Cst. Kowalenko and Mr. Plantje arrived at the detention area of the Saskatoon Police Service office at 5:51 a.m. In due course, three breath tests were conducted by qualified technician, from the Saskatoon Police Service, resulting in two successful breath samples. While spending time with Mr. Plantje during the observation periods at the Saskatoon Police Service office, Cst. Kowalenko observed Mr. Plantje to be smacking his lips and tongue as if his mouth was dry, to have dried white saliva in the corners of his mouth, to be slurring his ""S"" sounds and to have redshot (sic) and glossy eyes. At no point did Cst. Kowalenko observe any coordination or balance issues being exhibited by Mr. Plantje. [9] The breath tests determined Mr. Plantje's blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. Those results were recorded on Certificate of Qualified Technician. Mr. Plantje was charged with impaired driving and driving while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. Mr. Plantje was served with the Certificate of Qualified Technician and he was released into the custody of sober person. The Certificate of Qualified Technician was subsequently served on Mr. Plantje second time because the certificate had not been signed by the qualified technician when it was served the first time. [10] At trial, Mr. Plantje challenged the reasonableness of Cst. Kowalenko's suspicion that Mr. Plantje had alcohol in his body when Cst. Kowalenko made the ASD demand. Mr. Plantje argued his rights under ss. and of the Charter were violated because there were not sufficient objective grounds for Cst. Kowalenko's suspicion. Mr. Plantje sought exclusion of the Certificate of Qualified Technician as remedy pursuant to s. 24(2) of the Charter. voir dire was held with regard to the Charter issues. Cst. Kowalenko was the only witness on the voir dire. [11] In his decision on the voir dire, the trial judge found Mr. Plantje appeared nervous when speaking to Cst. Kowalenko. The trial judge also found that, at the time of the ASD demand, there was no smell of alcohol, Mr. Plantje was not slurring his words and Mr. Plantje had no problems walking or standing. [12] The trial judge determined, at pps. 123, 127 and 128 of the transcript, that Cst. Kowalenko had based his suspicion Mr. Plantje had alcohol in his body solely on the following three facts: a. Cst. Kowalenko had observed erratic driving by Mr. Plantje. b. Cst. Kowalenko has observed Mr. Plantje's eyes to be red and bloodshot. c. When Cst. Kowalenko asked Mr. Plantje whether he had drank any alcohol that evening, Mr. Plantje stated he had drank three beer. [13] In considering the reasonableness of the ASD demand, the trial judge relied on the following cases: R. v. Beechinor, 2004 SKPC 49 (CanLII), 247 Sask.R. 194; R. v. Donald, 2010 SKPC 123 (CanLII), 363 Sask.R. 195; R. v. Lytle, 2008 SKPC 156 (CanLII), 327 Sask.R. 148; R. v. Anderson, 2010 SKQB 70 (CanLII), 347 Sask.R. 283; R. v. Nahorniak, 2010 SKCA 68 (CanLII), 359 Sask.R. 15; and R. v. Yates, 2013 SKQB 241 (CanLII), 424 Sask.R. 135 (overturned by R. v. Yates, 2014 SKCA 52 (CanLII), [2014] S.J. No. 233 (QL) subsequent to the decision in the matter at hand). [14] The trial judge was concerned Cst. Kowalenko asked Mr. Plantje whether he had been drinking that ""evening"" because it was no longer evening when that question was asked. It was 5:16 in the morning. Cst. Kowalenko made no inquiries as to when the three beer had been consumed. The trial judge was also concerned about the absence of the smell of alcohol at the time the ASD demand was made. The trial judge opined that if the beer had been consumed recently he would have expected the smell of alcohol to have been coming from Mr. Plantje's breath. At p. 129, line 13 of the transcript, the trial judge concluded as follows: Without any discernible odour of alcohol or any other signs that the accused had been recently drinking, reasonable person, placed in the shoes of Constable Kowalenko, would not conclude on these facts that the accused had alcohol in his body at the time that he was stopped by the officer. As result, am not satisfied that Constable Kowalenko had the requisite reasonable suspicion to make an approved screening device demand on the accused. [15] In his decision on the voir dire, the trial judge determined Cst. Kowalenko's suspicion was not reasonable and, there being no other reason for detaining Mr. Plantje, there was violation of Mr. Plantje's rights under ss. and of the Charter. [16] Having found violation of Mr. Plantje's ss. and Charter rights, the trial judge undertook an analysis pursuant to s. 24(2) of the Charter, relying on R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353. The trial judge determined Cst. Kowalenko was not deliberately trying to violate Mr. Plantje's rights, but his dealings with Mr. Plantje were less than what society should expect from police officer who has been trained in the use of the ASD. The trial judge found Cst. Kowalenko, through haste or carelessness, did not carry out his responsibilities and should have done further investigation before ""leaping straight to demanding that the accused provide incriminating evidence against himself"" (Transcript, p. 131, lines 19-21). Cst. Kowalenko's conduct was found to have shown an ""unfortunate disregard of the accused's Charter rights"" resulting in the trial judge categorizing the breaches as ""somewhat serious"" (Transcript, p. 131, lines 22-24). The impact of the breaches was found to be significant. The trial judge recognized society has strong interest in adjudicating cases of this nature on their merits and the evidence was reliable, relevant and necessary for the Crown's case. Balancing the three factors from Grant, supra, the trial judge excluded the Certificate of Qualified Technician pursuant to s. 24(2) of the Charter. [17] The Crown elected to call no further evidence on the trial proper and Mr. Plantje was acquitted of both charges. The Crown appealed the acquittals on both charges, but abandoned the appeal of the acquittal for impaired driving. [18] The issues in this matter are narrow. They are as follows: (a) Did the trial judge err in determining there were not reasonable grounds for Cst. Kowalenko's suspicion that Mr. Plantje had alcohol in his body? (b) If ASD demand was not based on reasonable suspicion, and therefore violated Mr. Plantje's ss. and rights under the Charter, did the trial judge err in excluding the Certificate of Qualified Technician pursuant to s. 24(2) of the Charter? IV. Jurisdiction and Standard of Review [19] The Crown appeals pursuant to s. 813 of the Criminal Code. Section 686(4) of the Criminal Code sets out the possible dispositions in this appeal. Section 686(4) of the Criminal Code is as follows: (4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial, or (ii) except where the verdict is that of court composed of judge and jury, enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. [20] The Crown has sought new trial, recognizing that the manner in which the proceedings below unfolded does not make it possible for this Court to substitute finding of guilt should the court decide to allow the appeal. [21] The standard of review applicable to an appeal of this nature was recently summarized by Barrington‑Foote, J. in R. v. Lomenda, 2014 SKQB 77 (CanLII), [2014] W.W.R. 525 at paras. 14 to 16, as follows: 14 The standard of review to be applied on an appeal under this section was summarized by Popescul J., as he then was, in R. v. Helm, 2011 SKQB 32 (CanLII), 368 Sask.R. 115, as follows: 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re‑examine and re‑weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. 20 On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469 (CanLII), 286 Sask. R. 154. 15 As noted by Ball J. in R. v. Kratchmer, 2012 SKQB 117 (CanLII), 392 Sask.R. 262: 23 .. An appeal will be allowed where the trial judge has made palpable and overriding error, but the appeal court must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. (R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 at 251, Sask. R. 96 (Sask. C.A.); R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] S.C.R. 909, [1991] S.C.J. No. 37 (QL)) 24 For appeals brought on the basis of an error of law, reversible errors in dealing with evidence can include misdirection respecting reasonable doubt, failure to consider the evidence in totality, and misdirection concerning specific relevant evidence (R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345). It may also include an error in erroneously interpreting Charter breach (R. v. Yuhas (1993), 1993 CanLII 9081 (SK QB), 114 Sask. R. 34 (Q.B.), [1993] S.J. No. 488 (QL)). 16 The distinction between questions of law and questions of fact was summarized by McLaughlin C.J. and Charron J. in R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527, as follows: 20 .. As with any issue on appeal that requires the court to review the underlying factual foundation of case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is question of fact. However, this Court has repeatedly affirmed that the application of legal standard to the facts of the case is question of law: see R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. [22] In the matter at hand, the Crown asserts the trial judge incorrectly determined Cst. Kowalenko's suspicion was not reasonable. The determination of whether the facts as found by the trial judge constitute reasonable suspicion is the application of legal standard. The application of legal standard to the facts is question of law. The trial judge's finding that Cst. Kowalenko's suspicion was not reasonable is, therefore, subject to review for correctness. (R. v. Yates, supra at para. 17) [23] The appeal of the s. 24(2) Charter remedy engages different standard of review. The standard of review of the trial judge's decision to exclude the Certificate of Qualified Technician under s. 24(2) of the Charter is set out in R. v. Shinkewski, 2012 SKCA 63 (CanLII), 289 C.C.C. (3d) 145, at para. 28, as follows: 28 In reaching this conclusion am mindful that the standard of appellate review of trial decision which has relied on s. 24(2) of the Charter is one of reasonableness (R. v. Buhay, supra) and that an appellate court should not second guess trial judge's findings or substitute its own view just because it would have decided the matter differently (see: R. v. Duguay, 1989 CanLII 110 (SCC), [1989] S.C.R. 93, at p. 98; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] S.C.R. 755, at p. 783; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at p. 626; and R. v. Chaisson, 2006 SCC 11 (CanLII), [2006] S.C.R. 415, at para. 7). Nevertheless, where trial judge has erred in principle when conducting s. 24(2) analysis, the decision will attract appellate intervention (see: R. v. Harrison, 2009 SCC 34 (CanLII), [2009] S.C.R. 494, at para. 37; and R. v. Borden, 1994 CanLII 63 (SCC), [1994] S.C.R. 145, at p. 167; and, with respect to sufficiency of reasons, see also: R. v. Buhay; R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869; and R. v. Feeney(per Sopinka J.)). [24] If the trial judge has weighed the proper factors in arriving at the remedy under s. 24(2) of the Charter, the reviewing court must accord considerable deference to the trial judge's determination of the remedy. (Grant, supra, at para. 86) V. Analysis a. Reasonable Suspicion Under Section 254(2)(b) [25] Section 254(2)(b) of the Criminal Code sets out the power of peace officer to demand person provide sample of his or her breath into an ASD. Section 254(2)(b) is as follows: 254 (2) If peace officer has reasonable grounds to suspect that person has alcohol or drug in their body and that the person has, within the preceding three hours, operated motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of motor vehicle, vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: ... (b) to provide forthwith sample of breath that, in the peace officer's opinion, will enable proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [26] The only issue raised in this appeal with regard to Cst. Kowalenko's demand under s. 254(2)(b) is whether he had reasonable grounds to suspect that Mr. Plantje had alcohol in his body. The Saskatchewan Court of Appeal in Yates, supra, at para. 33, has recently reiterated the two requirements for demand pursuant to s. 254(2)(b), as follows: 33 Based on Chehil, MacKenzie, Jacques and Bernshaw, to the extent the latter dealt with s. 254(2)(b), conclude the requirements for valid s. 254(2)(b) demand essentially are that: (i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and (ii) the police officer's subjective suspicion must be based on constellation of objectively verifiable circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in his or her body is reasonable. [27] If the investigating officer does not have subjective suspicion that driver has alcohol in his body, or that suspicion is not reasonable, it is violation of the driver's ss. and rights under the Charter. [28] Mr. Plantje concedes Cst. Kowalenko subjectively suspected Mr. Plantje had alcohol in his body. This appeal concerns whether that suspicion, based on the facts as found by the trial judge, satisfies the objective requirement of s. 254(2)(b). [29] As noted earlier, the trial judge determined Cst. Kowalenko based his suspicion on the following three factors: a. Cst. Kowalenko had observed erratic driving by Mr. Plantje. b. Cst. Kowalenko has observed Mr. Plantje's eyes to be red and bloodshot. c. When Cst. Kowalenko asked Mr. Plantje whether he had drank any alcohol that evening, Mr. Plantje stated he had drank three beer. [30] The trial judge correctly did not take into account factors, such as the smell of alcohol, slurred speech and dry mouth, that were observed after the ASD demand had already been made. The reasonableness of the suspicion must be evaluated based on the facts known at the time the ASD demand was made. [31] The Crown agreed the totality of the circumstances known to Cst. Kowalenko at the time the ASD demand was made should be taken into account when evaluating the reasonableness of the suspicion. This would include the absence of factors such as the absence of the smell of alcohol and the lack of other physical manifestations such as slurring or coordination issues. The Crown submitted, however, that the reasonableness of Cst. Kowalenko's suspicion should also be based on Mr. Plantje's nervousness, his lack of desire to tell Cst. Kowalenko what he was doing and the fact this incident occurred at 5:12 in the morning. The trial judge specifically found that Cst. Kowalenko relied only on three factors in forming his suspicion. This is a finding of fact. There is no basis for disturbing this finding of fact. As noted in R. v. Gunn, 2012 SKCA 80 (CanLII), 399 Sask.R. 170 at para. 18, albeit in the context of demand pursuant to s. 254(3), the reasonableness of the investigating officer's belief must be centered around the factors which actually led the officer to his belief. The nervousness and lack of desire to explain what he was doing and the time of the incident are not factors that will be taken into account in determining the reasonableness of Cst. Kowalenko's suspicion. The time of the incident is only relevant to the extent it provides context to the other factors. [32] The Supreme Court of Canada, and the courts in this province, have had several opportunities to discuss the meaning of reasonable suspicion. This recent jurisprudence was canvassed in the Saskatchewan Court of Appeal decision in Yates, supra. This is decision which postdates the trial decision in this matter. The decision addressed the analysis to be applied when evaluating the reasonableness of suspicion under s. 254(2)(b). In Yates, the officer observed erratic driving, noted the driver to have bloodshot and glossy eyes and detected the smell of alcohol flowing from the open driver's side window without specifically identifying the source of the smell. [33] The majority in Yates reviewed the meaning of reasonable suspicion set out by the Supreme Court of Canada in R. v. Jacques, 1996 CanLII 174 (SCC), [1996] S.C.R. 312, 139 D.L.R. (4th) 223; R. v. Chehil, 2013 SCC 49 (CanLII), [2013] S.C.R. 220; and R. v. McKenzie, 2013 SCC 50 (CanLII), [2013] S.C.R. 250. The majority also commented favourably on the decision by the Manitoba Court of Appeal in R. v. Mitchell, 2013 MBCA 44 (CanLII), 291 Man.R. (2d) 231. The principles that can be extracted from these decisions were set out at paras. 28 and 29 of Yates, as follows: 28 In R. v. Jacques, 1996 CanLII 174 (SCC), [1996] S.C.R. 312, the Court held the term ""suspicion on reasonable grounds"" in the Customs Act, R.S.C., 1985, c. (2nd Supp.) only required there be possibility of an offence having been committed. In R. v. Mitchell, 2013 MBCA 44 (CanLII), 298 C.C.C. (3d) 525, the Manitoba Court of Appeal adopted the following statement from R. v. Chipchar, 2009 ABQB 562 (CanLII): ""Thus, reasonable suspicion requires only that the belief be one of number of possible conclusions based on the supporting facts, not probability [italic emphasis added]"" (para. 20, bold emphasis in original). 29 The Supreme Court of Canada in Chehil and MacKenzie comprehensively reviewed the standard of ""reasonable grounds to suspect"" and the application thereof to potential criminal activity. Of particular significance are the following requirements stipulated in Chehil and discussed in MacKenzie: 1. Reviewing judges must be cautious not to conflate reasonable grounds to suspect with the more demanding reasonable and probable grounds standard (Chehil, para. 27); 2. The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime (Chehil, para. 28); 3. Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect (Chehil, para. 29); 4. The constellation of factors will not ground reasonable suspicion where they merely amount to ""generalized"" suspicion (Chehil, para. 30); 5. Factors that may ""go both ways"" by themselves may not support reasonable suspicion but do not preclude reasonable suspicion arising when they form part of constellation of factors (Chehil, para. 31); 6. Reasonable suspicion need not be the only inference that can be drawn from particular constellation of factors (Chehil, para. 32); 7. Exculpatory, neutral or equivocal information cannot be disregarded when assessing constellation of factors (Chehil para. 33); 8. The obligation of the police to take all factors into account does not require the police to further investigate or seek exculpatory factors or rule out possible innocent explanations (Chehil, para. 34); 9. When conducting an inquiry to ascertain whether reasonable suspicion was present, the court is to assess the circumstances the police were aware of at the time of execution of the search (Chehil, para. 34); 10. The objective facts must be indicative of the possibility of criminal behaviour in order to ground reasonable suspicion but the evidence itself need not consist of unlawful behaviour or evidence of specific known criminal act (Chehil, para. 35). [34] The majority in Yates, at para. 34, summarized the test to be applied to the evaluation of suspicion under s. 254(2)(b), as follows: 34 Consequently, the constellation of circumstances need not be sufficient to prove the detained person actually has alcohol in his or her body. Nor should each circumstance in the constellation be separated, analysed and evaluated apart from the constellation. Rather, the adequacy of police officer's suspicion is to be assessed under the de novo analysis called for in R. v. MacKenzie using this test: would reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body? The reviewing court is not to consider whether the investigating officer's suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to consider whether the investigating officer could have taken further steps to confirm or dispel prima facie reasonably held suspicion that alcohol was present in the driver's body. It is an error in law to dissect the constellation of circumstances and individually test each circumstance or the absence of other circumstances. [35] As set out in R. v. Nahorniak, at para. 26 and 27, the mere failure to detect alcohol on Mr. Plantje's breath is not determinative. It is, however, one of the factors to be included in the constellation of factors to determine if Cst. Kowalenko's suspicion was reasonable. [36] While Cst. Kowalenko could have proceeded further into his investigation before making the ASD demand, by asking follow up questions about the timing of alcohol consumption and taking more time to attempt to detect alcohol on Mr. Plantje's breath, an investigating officer is not required to conduct perfect investigation. As noted in para. 34 of Yates, supra, reviewing court is not to consider whether further investigative steps would have confirmed or dispelled prima facie reasonably held suspicion. The reviewing court must evaluate the totality of the circumstances as they were known to the investigating officer at the time of the demand. [37] Turning to the evaluation of the correctness of the trial judge's decision regarding the reasonableness of the suspicion, this Court's task is to determine whether reasonable person, standing in the shoes of Cst. Kowalenko, would reasonably suspect Mr. Plantje had alcohol in his body, knowing the following constellation of circumstances: a. Mr. Plantje was driving his car in manner that caused it to drift back and forth in his lane to the point of driving on the lines marking the lanes, striking the meridian once and almost striking the meridian second time. b. Mr. Plantje's eyes were red and bloodshot. c. In response to the question of whether he had drank any alcohol that ""evening"", when it was 5:16 in the morning, Mr. Plantje stated he had drank three beer without specifying when he had drank those three beer. d. Mr. Plantje pulled his vehicle over to the side of the road in proper and safe manner immediately upon Cst. Kowalenko activating his emergency equipment. e. No smell of alcohol was detected on Mr. Plantje. f. Mr. Plantje was not slurring his words. g. Mr. Plantje did not fumble with his documents or exhibit any muscle coordination issues. [38] The factor in this constellation which causes the most difficulty is the admission by Mr. Plantje, at 5:16 in the morning, that he had been drank three beer that ""evening"". This is the factor that the trial judge was particularly concerned about. At pps. 128 and 129 of the transcript, the trial judge noted it was early morning when the question was asked by Cst. Kowalenko. In response to the answer of ""three beer"", Cst. Kowalenko made no inquiries as to when the three beer had been consumed. The trial judge stated he would have expected there to be a smell of alcohol on the breath of the accused if he had recently consumed the beer. As a result, the trial judge disregarded the admission of drinking, and evaluated whether a reasonable person would suspect Mr. Plantje had alcohol in his body on the basis of the careless driving and his red eyes combined with the absence of a smell of alcohol or other signs of recent consumption. This Court finds the trial judge erred when he disregarded the admission by Mr. Plantje. This admission should have been included as part of the constellation of factors to be considered in an objective determination of the presence or absence of reasonable suspicion and not dissected as an individual factor and discarded. [39] Mr. Plantje did not testify on the voir dire as to what he thought Cst. Kowalenko meant when he used the word ""evening"". While Mr. Plantje's subjective belief of what Cst. Kowalenko meant by the word ""evening"" would not have been determinative, it would have provided some evidence as to what reasonable person would have thought such question from police officer meant. Without any such evidence, the court is left to evaluate how such question would be perceived by reasonable member of the public. It is the opinion of this Court that a reasonable person during a traffic stop after erratic driving, in the early hours of the morning, would perceive the question Cst. Kowalenko asked to be referring to recent consumption of alcohol. No reasonable member of the public would perceive Cst. Kowalenko's question as referring to consumption of alcohol at some earlier irrelevant time. A reasonable member of the public would perceive the question to be referring to alcohol consumption that could impair a person's current ability to drive. [40] It was also reasonable for Cst. Kowalenko, despite Cst. Kowalenko's imprecise use of words, to infer from the answer given by Mr. Plantje that Mr. Plantje had consumed three beer at a recent, relevant time. This did not prove that Mr. Plantje had consumed the three beer recently, but it is certainly reasonable for a police officer to infer the consumption was recent, for the purposes of a reasonable suspicion, when such an answer is given by a driver in these circumstances in an unqualified manner. [41] The failure of an investigating officer to inquire into the time of consumption, and the absence of the smell of alcohol, is part of the constellation of circumstances to be considered, but it is not fatal to reliance on the admission by Mr. Plantje. The court finds further support for this proposition in R. v. Drysdale, 2013 SKQB 392 (CanLII), 432 Sask.R. 46. [42] As result, this Court must respectfully disagree with the conclusion reached by the trial judge regarding the reasonableness of Cst. Kowalenko's suspicion. reasonable person standing in the shoes of Cst. Kowalenko, knowing the constellation of factors noted above, would reasonably suspect Mr. Plantje had alcohol in his body. reasonable person having observed driver having so little control of his car that he was drifting back and forth in his lane to the point of striking the meridian and almost striking it again, who then observed the driver to have red, bloodshot eyes and heard an admission by the driver that he had drank three beer this ""evening"" when asked by police officer, even if that admission came at 5:16 in the morning, would reasonably suspect that driver had alcohol in his body. This suspicion would be formed by reasonable person even in the absence of smell of alcohol, any slurring of speech, other unusual driving behaviour or lack of muscle coordination. [43] The court finds further support for this conclusion by comparing the constellation of circumstances in Yates, supra, to the constellation of circumstances in the matter at hand. In both matters there was erratic driving, the driver stopped his vehicle safely when pulled over by the police, the driver had bloodshot eyes, there was no slurred speech and there was no evidence of any muscle coordination issues. In Yates there was smell of alcohol emanating from the driver's window but there was no admission of drinking. In the current matter, there is an admission of drinking but no smell of alcohol. It is this Court's opinion that an admission of drinking by a driver, when questioned by a police officer, provides even stronger support for a suspicion that the driver has alcohol in his body than the generalized smell of alcohol emanating from a car window does. [44] The ASD demand was reasonably made and, therefore, there was no violation of Mr. Plantje's rights under ss. 8 and 9 of the Charter. The Crown's appeal must be allowed and a new trial ordered. b. Section 24(2) Exclusion of Evidence [45] As result of the determination on the first issue, the court need not address the issue under s. 24(2) of the Charter. [46] The Crown's appeal from acquittal with regard to the charge under s.253(1)(b) of the Criminal Code is allowed. The acquittal on the charge pursuant to s.253(1)(b) is set aside. A new trial on the s. 253(1)(b) charge is ordered pursuant to s.686(4)(b)(i) of the Criminal Code.",The determination of whether the trial judge’s conclusion regarding the officer’s suspicion was reasonable was question of law subject to the correctness standard. The respondent conceded that the officer had the requisite subjective belief that he had alcohol in his body so the appeal centered on whether the objective test had been met. The appeal court did not find any basis to disturb the trial judge’s finding of fact as to the factors the officer based his suspicion of alcohol consumption on. The court noted the trouble with the fact that the respondent admitted to drinking alcohol that “evening” but the stop was at 5:00 am in the morning. The trial judge disregarded the respondent’s admission to drinking because there was no smell of alcohol and the trial judge said there should be if the consumption was recent. The court concluded that the trial judge erred in dismissing the alcohol consumption admission. A reasonable person would have assumed that the officer’s question was with respect to recent consumption of alcohol not an earlier irrelevant time. It was also found reasonable for the officer to believe the consumption was recent. The court concluded that a reasonable person standing in the officer’s place would reasonably suspect that the respondent had alcohol in his body. An answer by an accused person that they have been drinking was found to be stronger support for a suspicion than the smell of alcohol. Because the respondent’s Charter rights were not breached a new trial was ordered.,e_2014skqb265.txt
51,"J. 1986 S.H. No. 57202 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: SKIPPER FISHERIES LIMITED, body corporate and WAYNE THORBOURNE, CLAUDETTE THORBOURNE, THOR SEINERS LIMITED, body corporate, PHOENIX FISHERIES LIMITED, body corporate, PAUL EDWARD BLADES, BRIAN ARTHUR BLADES, CLIFFORD V. GOREHAM, and S. CLIFFORD HOOD DECISION HEARD: Before the Honourable Justice D.W. Gruchy in Halifax, Nova Scotia, on November 8, 10, 15, 22, 23, 30, December 1, 2, 16, 22 and 23, 1993 DECISION RELEASED: April 18, 1994 COUNSEL: Douglas A. Caldwell, Esq., Q.C., and Lloyd I. Berliner, Esq. Counsel for the plaintiff Robert G. Belliveau, Esq., Q.C., Christopher C. Robinson, Esq., and J. David Connolly, Esq., Counsel for the defendants Phoenix Fisheries Limited, Paul Edward Blades, Brian Arthur Blades and Clifford V. Goreham Thomas E. Pittman, Esq., Counsel for the defendants WayneThorbourne, Claudette Thorbourne and Thor Seiners Limited James L. Connors, Esq., and David Bright, Esq., Q.C., Counsel for the defendant S. Clifford Hood GRUCHY, J. Introduction At the opening of Court before the commencement of the trial of this action the defendants Phoenix Fisheries Limited, Paul Blades, Brian A. Blades and Clifford Goreham (collectively, Phoenix) applied for the dismissal of the action pursuant to Civil Procedure Rule 20.09 which provides: 20.09 (1) Where party fails to make discovery of or produce for inspection any document under an order or Rule 20, he is liable to be punished for contempt, and if plaintiff, to have the proceeding dismissed, or if defendant, to have the defence struck out. (2) Where it appears that there has been failure on the part of party or his solicitor or, in the case of the Crown or body corporate, or an officer thereof, to make reasonable effort to give full discovery of all documents that relate to any matter in proceeding, the court may impose on the party, solicitor, or officer such terms or penalty as it thinks just. This application was made before Skipper called evidence. The basis of the application is that Skipper had failed to make reasonable effort to produce documents and information and to give full discovery relevant to the matters in issue. Phoenix and Skipper called various witnesses on this application and all parties have participated in the examination and cross‑examination of them. All parties have made oral submissions, supplemented by written briefs. Background In the action Skipper claims to have been deprived of its interest in fishing vessel, Sealife III, and the contribution to overhead and profit margin which that vessel would have made to Skipper's seafood plant by its landings. While the means by which the alleged deprivation is not directly involved in this application it will be necessary to touch upon the methods of quantification of the alleged loss employed by the parties' experts and to relate that information to the production‑of documents and discovery by the plaintiff. The cause of action, according to the pleadings, first arose in 1985. The action was commenced on June 27, 1986, and the pleadings appear to have closed in 1989. In view of the anticipated lengthy trial, the matter was assigned to me for case management. Various management meetings were convened and the date for the commencement of trial was set for November 1, 1993. The trial was to be of two months' duration. The plaintiff retained the chartered accountants, Doane Raymond, to prepare report on the alleged loss occasioned to it by the defendants. report dated March 31, 1992 has been filed. The defendants retained Mr. Grant Thompson, chartered accountant, on April 23, 1993 to review the Doane Raymond report and to make such investigations into the alleged loss as he deemed necessary or advisable. During the various pre‑trial meetings it was apparent that the defendants had experienced difficulties in obtaining the report needed. The reasons for this difficulty were not apparent to me until the eventual application made at the opening of trial. At the various pre‑trial conferences and applications for adjournment, pressed counsel to continue efforts for trial as scheduled as rescheduling two‑month trial might require an adjournment of year. The requests for adjournment were stated to have been necessitated by Mr. Thompson's inability to obtain information from Skipper for the preparation of his report. It was revealed to me during the pre‑trials and during this application that Mr. Thompson sought information which he considered vital in the calculation of the value of the Sealife III landings and the contribution that they would have made to Skipper's margin. Mr. Thompson had dealt with Mr. Douglas Murdock, the vice‑president, finance and administration of Comeau Seafood Group which includes Skipper. Mr. Thompson had inquired of Mr. Murdock as to the method Skipper used in calculating compensation to fishermen for the fish delivered to the plant. Mr. Murdock gave Mr. Thompson information to the effect that Skipper did not have record of the weight of raw fish received. Rather, Mr. Murdock told Mr. Thompson of its method of calculating the payment due to fishermen, but which method caused Mr. Thompson lot of difficulty. He was given to understand that certain information which he sought simply was not available. During discovery of Mr. Thompson, through questions directed to him, it was revealed that Skipper had information which Mr. Thompson felt he had been led to believe did not exist. That led to applications to adjourn and eventually to this application. At an application to adjourn, which refused, ordered the parties to meet together with their experts and to determine the precise information requested and what was available. am informed by affidavit (Iater acknowledged in evidence) that during that meeting Mr. Murdock informed the defendants that fish were not weighed on receipt at the Skipper plant and that there were no truck scales. There were no records of the weight of fish received. While still not understanding the full significance of the allegations being advanced by the defendants, and in order to attempt to salvage the time set aside for this trial, severed the issues of liability and quantum for the purposes only of receiving evidence, but on the understanding that would not make any determination as to liability until had heard all the evidence concerning quantum. Defence counsel submitted that the evidence concerning quantum would have an effect on the question of the credibility of Skipper and its officers. At the scheduled opening of the trial Phoenix asked for and received permission to make this application and to call evidence in support of it. The anticipated evidence was outlined to me and decided to hear it. While the evidence outlined appeared to be relevant to the matter of quantum, concluded that it was relevant also to the subject matter of the application. Two truck drivers were then called by Phoenix one an employee of Skipper and the other an independent contractor. They established to my complete satisfaction that truck scales were located, maintained and used by Skipper at its plant. There was an established practice of weighing herring on arrival at the plant. Notes were made in the scale house by the truckers of the weight and origin of the fish as it was received. In reply to that evidence, Skipper called Mr. Marcel Comeau, the President of Comeau Seafoods limited, which company is the owner of Skipper. He acknowledged the existence of the scales, but said that he had not been aware of their ongoing use. He only became aware of the ongoing use of the scales at or about the time the trial was to begin. He then gave evidence which brought to the fore the whole matter of the method of calculating payments to the fishermen. His evidence was to the effect that the weight of herring received at the plant is not relevant to the calculation of compensation and is therefore not relevant to the case as whole. That evidence crystallized the dichotomy between the parties as to the methods to be used in calculating alleged damages arising from the loss of the Sealife III contribution to the Skipper margin. will not dwell on the methods of determining compensation for the fishermen in any detail, but it is clear that one must be used to calculate the value of the Sealife III landings. which Skipper says ought to have gone to its plant. Skipper says that in the operation of its plant it does not concern itself with the weight of fish received and that only the production yield of the fish landed is relevant. Skipper knows the weight of its product produced from any given load of fish and applies formula to that weight, which formula includes factors of management discretion as to the quality of the fish received and the amount of trash (rejected species) fish, and thereby determines notional weight of the fish received. That notional weight is then used in determining the compensation for the fishermen. Mr. Comeau said there is no direct relationship between the notional weight (paid weight) and the landed weight. According to Mr. Comeau, any requests by the defendants for landed weight were requests for irrelevant information. Mr. Grant Thompson, on the other hand, when he commenced his investigation, wanted to know what method of calculating compensation was used by Skipper; he had understood that the industry uses one of two methods, either on the basis of whole weight or on the product produced. Mr. Thompson said he was informed by Mr. Murdock that Skipper did not use either method. Mr. Thompson, however, was faced with the problem of relating the gross landings of Sealife III during the period in question to the value of those landings to Skipper; there had to be devised method to determine that ratio. He only had the gross weight of the Sealife DI landings and that had to be related to value to Skipper. He was not given sufficient information to make that determination. In fact, Mr. Thompson produced report which ultimately had the effect of underlining the problems created by the lack of information needed to correlate the Skipper method with the Sealife III landings. Mr. Thompson, using the statistics and information supplied to him by Skipper and Mr. Murdock, together with certain industry standards, concluded that large quantity of raw material was unaccounted for. Further discovery examinations of Mr. Thompson and Skipper employees conducted even during the hearing of this application led to an apparent impasse on the correct methods of calculation and great deal of confusion as to what information Skipper actually had. The retrospective calculation of landings using the method said to be employed by Skipper to calculate the paid weight of the fish landings, according to Mr. Thompson, led to the conclusion of an improbably (if not impossibly) efficient production, or (I add) to the conclusion that the weight of the landings was greatly understated by the use of such method. The conflicting evidence and positions of the parties presented to me at this application make it necessary to make certain findings of fact and credibility. If find the plaintiff's evidence credible and acceptable, then the matters or questions involved in this application are resolved and may conclude that it had produced the information reasonably required of it and such other information requested is not relevant. am unable to do that for the reasons now set forth. Mr. Comeau's Evidence Mr. Comeau's evidence was unsatisfactory. find as fact that when Mr. Thompson had first met with Skipper he made it abundantly clear that he wanted to know the weight of the raw material received at the Skipper plant. find that Mr. Comeau had to know of the existence of the scales and their use. He bad to know of the record of that raw material. He said that the weight information was obtained and given to the fishermen for their benefit only. He gave no satisfactory explanation of that observation. He had either unilaterally concluded that the information sought by Mr. Thompson was irrelevant, or that for other reasons it would not be produced. reach these conclusions because: 1. The truck scales were used whenever they were in working condition and while Mr. Comeau said there were periods when difficulty was experienced with them, they were apparently then repaired; 2. The truckers delivering fish went to considerable trouble, time and consequently expense to obtain and record an accurate record; 3. The records produced by the weighing procedure were used in manner not made clear to me in settling accounts with the fishermen; 4. Accounting staff of Skipper knew of and used the data recorded from the weighing procedures; 5. Considerable effort was expended to keep the records which, although they have an informal appearance, did appear to be carefully done and kept. Mr. Comeau did not mention in his testimony before me the existence of any records of fish deliveries to the Skipper plant. During adjournments of the hearing of the evidence on this application, however, the parties continued their discovery examinations of various witnesses about the existence of records of weights of raw material received. During these discoveries it was revealed that there was set of scribblers in which Skipper employees kept record of herring receipts. That evidence was revealed in examinations of Skipper employees conducted after Mr. Comeau had given his evidence. The fact that Mr. Comeau did not mention the existence of this record is, to my mind, significant. Two possible explanations exist for this failure: 1. Mr. Comeau did not know of their existence; but as the controlling officer of Skipper he should have known of them; or 2. Mr. Comeau did know of them and decided not to reveal them. Either explanation is contrary to the spirit and intent of the Civil Procedure Rules. In addition, Mr. Comeau had reviewed Mr. Murdock's affidavit filed herein wherein it was stated that the number of pounds of herring taken in by the plant was not recorded. At that point Mr. Comeau, or Mr. Murdock, was under the distinct obligation to reveal that information which was subsequently found in the scribblers whether it was accurate or not and to give whatever explanation was necessary. On Mr. Comeau's review of Mr. Murdock's affidavit, he knew or ought to have known that the information contained in and put forth by it was either inaccurate or untruthful. As the spokesman of Skipper, be was under an obligation to inform himself fully of the relevant facts. He either ignored the incorrect information, did not detect it or decided to go along with deception. Neither explanation is acceptable in terms of required disclosure. There is worrisome aspect of Mr. Comeau's evidence which plays part in my decision. When fishing captains arrive in port with their catch they are required to file report with the Department of Fisheries and Oceans. That report's first figure is the ""hail weight"" of their catch. That is the captain's estimate of the weight of the catch. The next figure on the report is the ""true weight"" which is to be supplied by the processor in this case, Skipper. Mr. Comeau was ""generally aware"" of this practice. He also knew that the true weight reported was the weight the fishing captain instructed the processor to report. It is not true weight at all, but rather, fictitious figure used by the captain for his own purposes. Mr. Comeau attempted to justify that practice as being within the industry standard an explanation which may be true but which must be rejected. Mr. Comeau said that the true weight ""...is what the fishermen caused to be reported to the Department of Fisheries and Oceans...it might be combination of factors, but more of the time it would be what he could get away with, as fair way of putting it"" ...as little as possible. This evidence was, at the least, clear indication of lack of responsibility. That evidence combined with the evidence adduced subsequent to Mr. Comeau's testimony about scribblers in which weight records were kept poses real question as to the reliability of the testimony as whole. Counsel for Skipper have urged that there is no evidence before me that it was Skipper or Skipper's employees who supplied the fictitious true weight. The only such report or reports before me were not apparently signed by Skipper. The thrust of Mr. Comeau's evidence, however, is clear and draw the conclusion that Skipper probably like other processors participated in this practice. Douglas Murdock's Evidence Mr. Murdock's evidence was less satisfactory than that of Mr. Comeau. Mr. Murdock must have known what information Mr. Thompson sought as he commenced fact‑finding for his report. Mr. Murdock had been detailed to calculate the business loss arising from the loss of the Sealife III landings and had initially attempted that calculation using the same method adopted by Mr. Thompson or one very much like it. Vital to that calculation was the weight of the fish received. Mr. Murdock said he had inquired of the Skipper manager, Mr. Douglas D'Eon, and was informed that Skipper did not weigh the fish coming into the plant. He told Mr. Thompson, in the presence of Mr. D'Eon, that there were no records of the weight of fish received. Both assertions appear patently untrue. Mr. D'Eon's evidence on discovery is clear that Mr. Murdock did not inquire about the truck scales or about the practice of weighing fish on delivery until after this application was under way. He also seriously misled Mr. Thompson on the use and value of roe‑extracted herring carcasses for producing herring fillets. His explanation to the Court of the information given to Mr. Thompson was not credible; that was the explanation that while the production of fillets from roe‑extracted herring had been significant in one year, it was not significant over longer period of time. That explanation showed lack of candor by Mr. Murdock to Mr. Thompson, if not an intention to mislead. Skipper sought to explain the non‑use of the weight of fish received as it did not take into consideration the trash fish which had to be rejected after weighing. That explanation was unsatisfactory. The discovery evidence tendered to me showed that the weight of the trash fish was estimated on discharge from the plant. Mr. Murdock's evidence before me concerning the calculation of compensation for roe herring was also unsatisfactory. It is difficult again to understand why estimates of weight would be used when the fish is being weighed on arrival at the plant, unless, of course, the estimates, like the reports to the Department of Fisheries and Oceans are understated. Mr. Murdock lacked credibility when he sought to distance himself from the filing of deceptive reports with Department of Fisheries and Oceans. The fact of the matter was that Skipper participated in that activity, whether Mr. Murdock was directly involved or not. Mr. Murdock said that all requests by Mr. Thompson for information were complied with. But when Mr. Thompson asked for such matters as ""yields"" and related data, the necessity for raw material data was at least impliedly necessary, and probably express. As it developed, at least some of that data was available, should have been produced but was not. Murdock Thompson Credibility There are marked differences between the evidence of Mr. Murdock and Mr. Thompson, especially in relation to what information Mr. Thompson requested of Skipper. All such differences have resolved in Mr. Thompson's favour. Almost without exception, Mr. Thompson's evidence was consistent within itself and with other objective evidence available to me. Mr. Murdock's testimony cannot be so described; rather, it was inconsistent within itself, with the evidence of other Skipper employees given on discovery and with objective evidence. Wherever there is any difference between the evidence of Mr. Murdock and Mr. Thompson and any material particular, accept the latter. In reaching that conclusion, have kept in mind that Mr. Thompson did on one or more occasions overstate the amount of ""research"" he had performed in the preparation of his report, but such overstatements do not affect my assessment of ultimate credibility on essential matters. Additional Discovery Evidence On November 23 the hearing of this application was adjourned while Mr. Thompson was being examined. Due to his required attendance at court in New Brunswick the adjournment was of several days duration. In that interim period examination in discovery continued in relation to the evidence given by Mr. Comeau and Mr. Murdock. am informed that Skipper's employees Mr. Douglas D'Eon, Mr. Bennie D'Entremont and Mr. Raymond John Panter were examined. Portions of the transcripts of their discoveries have been produced by Phoenix and Skipper and have reviewed them in detail. will not draw conclusions of the credibility of those witnesses. Their evidence, however, has been helpful in understanding the processes involved in this case. Their evidence has also been invaluable in the evaluation of the evidence of Messrs. Comeau, Murdock and Thompson. D'Entremont and D'Eon both gave evidence in discovery of the weighing of herring as it was received at the plant and the method used to do so. They also testified as to their contribution to the record‑keeping involved in the operation. The evidence concerning the records kept in the scribbers by D'Eon was only produced after specific questions were asked; that is, the scribblers were not mentioned or produced until November 26, when as result of specific questions, they were produced. The scribbler records were kept on daily basis, between the efforts of D'Entremont who gathered the raw information and gave it to D'Eon who then entered it into the scribbler. Skipper questions the accuracy and validity of the scribbler information. The fact of the matter is, however, that the information was gathered and recorded in the ordinary course of business. It really did not matter whether the weights of fish received were actual or estimated. The scribblers contained at least some of the information sought by Mr. Thompson and Mr. Murdock ought to have known of their existence and in view of Mr. Thompson's inquiries of him ought to have produced them for inspection. If Mr. Murdock did not know of their existence or did not know of the existence of the data contained in them, he ought to have informed himself before the commencement of his discovery. find it equally difficult to accept that Mr. Comeau did not know of the existence of the record or at least of the data. The accuracy of the information should not have impacted on the decision as to whether it ought to have been produced; that was matter to be tested and explored during discoveries or at trial. There was also evidence of the weight of the discarded fish mentioned above which has apparently not been produced. The plaintiff's position is that only the weight of the usable fish is relevant and that is determined by working backwards from the weight of the finished product. The evidence produced at the discovery of D'Entremont showed that record of the weight of the fish received was kept in the scribblers and the weight of the discarded fish was estimated from the volume of the trash fish trucked away to processing plant and recorded on system of ""whiz‑slips"". That information was also the type of data which ought to have been recognized by Mr. Murdock as that sought by Mr. Thompson. The information contained in the scribblers was considered by the plaintiff's own staff in its own cost analysis and in determining the amounts owed to the fishermen. Skipper's local accountant, Mr. Panter, used the information in the scribblers to check the invoices received from the fishermen. Indeed, Mr. Panter referred to 'Doug's scribbler"" to obtain fish tonnages for the agreed purchase of fish. He entered the scribbler data into his computer. Although the scribblers were not produced to the defendant until November 26, 1993, the significance of the information contained in them relative to this lawsuit was recognized by the plaintiff's staff in 1990. Mr. Panter was then instructed by his superiors to prepare report concerning the loss of Sealife III's contribution to margin and was told to get the required information from the scribblers. Mr. Panter prepared report which was apparently discarded by the plaintiff as not being useful. That may well have been the case, but the important fact is that the first source of information considered was the scribblers. It is fact that Mr. Thompson asked Skipper for the information listed in paragraph 11 of his affidavit as follows: 1. the production summaries by month, tying into sales of each product for the years 1985 through 1990; 2. justification of prices for raw fish and backup invoices for the year 1985; 3. copy of the company general ledger showing direct labour for the period 1985 through 1990 and payrolls for the months of June and September of each year in question; 4. information concerning financing charges mentioned in the Doane Raymond report attributed to the Plaintiff company; 5. details of inventory of fish product held for the years 1985 through 1990; 6. selection of invoices for one year for salt, supplies, electricity and maintenance charges; 7. summary of the raw material used in the processing carried out by the plant for the years in question. Mr. Thompson says, and accept, that he was not supplied all the information he requested. Mr. Panter's discovery evidence is to the effect that information was available but not obtained. There may be question of the accuracy of the information which Mr. Panter would have been able to generate, but that was for counsel to explore during production of information and discoveries or interrogatories. It is obvious from the discovery evidence of Mr. D'Eon, Mr. d'Entremont and Mr. Panter that Skipper, through Mr. Murdock, had not made the required effort to obtain information requested by Mr. Thompson. In this regard find that Mr. Thompson had made it sufficiently clear to Mr. Murdock the information sought and it is equally clear that Mr. Murdock either did not make the required effort to obtain it or chose, rather, to filter the information supplied. Scribblers Weights Skipper had been obviously reluctant to produce the scribblers which contained record of weights of fish. While some questions or discrepancies seem apparent, it is clear that these books are record of weights of fish arriving at the plant. The scribblers are well kept and the entries appear to be carefully done. have considered the evidence given by Mr. D'Eon on discovery. It is apparent from the written transcript that Mr. D'Eon was evasive about the records, their meaning, their origin and their purpose. Yet the record had been carefully preserved and had been relied upon by other employees of Skipper. These facts must be considered in the context of Mr. Comeau's evidence of the deliberate participation by Skipper in the misreporting of catches to the Department of Fisheries and Oceans and Mr. Murdock's untruth about the existence and use of scales. Skipper's position is that the fishermen are paid on the basis of the production achieved from any given load of fish, but there is suggestion from the combined use of the scribblers and the invoices that it is far more likely that the fishermen' compensation was in direct relation to the size of the catch. Indeed, it is hard to conceive that fisherman would consent to sell his catch to fish plant, trust himself to the efficiency and conscientiousness of the employees of the plant and be paid only on what yield the plant managed to get. How then could the records of the calculation of the fishermen' compensation be maintained without originating record which will reflect the actual weight of catches? The obvious solution is to create an equation, the result of which will be to produce the compensation required without displaying the actual catch. That can be easily achieved by setting down the weight produced, modified by factors which appear to reflect the quality of the catch and the productivity achieved (both of which are variables) and which then produces the compensation required to be paid. The report to the Department of Fisheries and Oceans would be therefore satisfied and the fishermen would receive the compensation they had earned. Until the plant had received an invoice for the fish which it could approve, however, there had to exist some record of the fish actually received. Hence, the innocuous scribbler records would have been vital. Law Civil Procedure Rule 20 is clear and unequivocal. Litigants must make full and timely disclosure of documents. The adoption of this Rule was milestone in the road away from ""trial by ambush"" to the present. Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. R. v. Stinchcombe, (1992) 1991 CanLII 45 (SCC), 130 N.R. 277 (S.C.C.) per Sopinka J., at 282. The late Chief Justice Cowan, who oversaw the adoption of the Rules as they presently exist, said of Rule 20: The purpose of this rule is to provide full disclosure prior to trial, of all relevant documents in the possession, custody or control of party. Kynock et al v. Johnson (1975), 20 N.S.R. (2d) 586 at 588. See also McRae et al v. Historic Properties Ltd. et al (1988), 89 N.S.R. (2d) 201, and C.M.H.C. v. Foundation Co. of Can. et al (1984), 63 N.S.R. (2d) 403. The failure of party to produce documents has attracted the sanction of the Court, including the dismissal of actions or the striking of defence. See: Church of Scientology of Toronto v. Maritime Broadcasting Co. Ltd., (1989), 33 N.S.R. (2d) 500; Kynock et al v. Johnson (supra); Halifax (County) v. Fancy (1992), 115 N.S.R. (2d) 196; and Kin Franchising Ltd. v. Donco Limited, (1993), 14 C.P.C. (3d) 193 (Alta. C.A.). Of those cases, however, those which resulted in dismissals, involved repeated failures to obey specific orders of the Court for production, refusals to attend for discoveries and failures to live up to specific undertakings. In my view the failures of the plaintiff here fall short of the flagrant disregard for the Rules considered in those cases. American case law is more developed in the consideration of litigation abuse. have had cited to me as examples the following: National Hockey League et al v. Metropolitan Hockey Club Inc. et al (1976), 427 U.S. 639; Cine Forty, Second Sheet Theatre Group v. Allied Artists Pictures Corp. et al (1979) 602F (2d) 1062; Founding Church of Scientology v. Webster (1986), 82F. 1448 (D.C.Crt.); Morgan v. Massachusetts General Hospital (1990), 901 (2d) (1st Crt.). The text, Sanctions, the Federal Law of Litigation Abuse by Gregory P. Joseph (Michie Company, 1989) sets forth at p.449 list of factors for consideration where there has been failure by party to comply with the Rules: 1. Dismissal or Default The court has discretion to dismiss an action or enter default judgment as sanction for any of the violations set forth in Rule 16(f). Among the factors that the court considers in deciding whether to enter an order of dismissal or default are: 1. The extent of the party's (as opposed to counsel's) personal responsibility for the violation; 2. The prejudice to the adversary caused by the violation; 3. Whether there is clear record of delay or contumacious conduct by the offender; 4. Whether the offense was wilful or in bad faith; 5. Whether the purpose of the sanction can be substantially achieved by use of less drastic alternative; 6. The merits of the claim or defense that would be stricken; and 7. The prejudice to the court caused by the violation. One of the most remarkable aspects of the reported Rule 16(f) case law is the prevalence with which dismissal or default is ordered. This may reflect nothing more than the courts' disinterest in writing opinions dealing with lesser sanctions, or perhaps parties' disinclination to appeal them. Whatever the explanation, the result is rather developed body of law concerning the factors to be taken into account by the courts in deciding whether to order dismissal or default. Dismissals with prejudice or defaults are drastic sanctions ‑‑ termed ""extreme"" by the Supreme Court in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) (Rule 37 case) ‑‑ and may properly be imposed only as last resort. Poulis v. State Farm Fire Gas Co., 747 F.2d 863, 867‑68, 870 (3d) Cir. 1984); Callip v. Harris County Child Welfare Dep't, 757 F.2d 1513, 1519 (5th Cir. 1985); Ford v. Fogarty Van lines, Inc., 780 F.2d 1582, 1583 (11th Cir. 1986). See also Shea v. Donohoe Constr. Co. 795 F.2d 1071(D.C. Cir. 1986). Because of its harshness to the client, the courts scrutinize the various factors set forth above and any others they deem relevant. Not all of the listed factors need to be present in order to sustain dismissal or default sanction. The judge's decision is discretionary and based on the totality of the circumstances before him or her. The case before me is not one in which the plaintiff might have been taken by surprise by the documents which it unexpectedly found to be relevant. This action was commenced six years ago and from its initiation the matter of the calculation of Sealife III''s contribution to margin was relevant. The plaintiff has undoubtedly been pressed for time in the last month or so prior to trial, but that does not excuse its previous inactivity. It is this regard than the present case is distinguished from Visa International Service Association v. Block Bros. Realty Limited [19831 N.W.R. 665 (B.C.S.C.T.D.) Conclusion In the circumstances of this case conclude that the plaintiff has not complied with Civil Procedure Rule 20.09(2) in that it has failed ""...to make reasonable effort to give full discovery of all documents that relate to any matter in proceeding...."" While such failure is serious and with very considerable financial implications, I am not persuaded that it was of such a degree of contumacious conduct as to warrant dismissal of the action. Nor do I conclude that its failure warrants a dismissal of any damage claim arising from loss of contribution to margin. conclude that the appropriate remedy is to recognize that the plaintiff has incurred wasted costs and to redress that subject, but allowing the action to continue. The plaintiff will be liable for: (a) Costs to date on solicitor‑client basis of each of the defendants for all time spent on this particular application and reasonable time spent in preparation for it; (b) Costs to date on solicitor‑client basis for all discoveries (or portions thereof) dealing with the matter of the weight of fish received at the Skipper plant and any other time spent to date on attempts to quantify the alleged loss of Sealife III's contribution to margin; (c) All throw‑away costs incurred by Mr. Grant Thompson in the preparation of his report. In regard to each of the three areas of costs, recognize that certain amount of work will be of value to the defendants in any event. It is not my intention that the defendants will be compensated for work done which will be of value to it in the course of an eventual trial. am sure that the delineation of such costs will present difficulties which would best be resolved by familiarity with the case. ask that the parties first attempt to resolve any questions or issues arising from this ruling and then, if necessry, will supervise the taxing of costs. will at that time be able to determine if any special considerations should be given to any party relative to costs. Objections to Discovery Evidence During the course of reading in certain discovery evidence disagreements developed between the parties as to the admissibility of answers to leading questions put to witnesses by his own counsel on re‑direct examination. In view of my conclusion reached above those questions are now largely moot. will, however, state my understanding of the problem and the law. need not review each question and answer objected to; that would be wasteful process because each would have to be put into the context of hundreds of pages of other questions. Civil Procedure Rule 18.14(1) and (2) reads: (1) At trial or upon hearing of an application, any part or all of deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at an examination for discovery, or who received due notice thereof, for any of the following purposes, (a) to contradict or impeach the testimony of the deponent as witness; (b) where the deponent was party, or an officer, director or manager of party that is corporation, partnership or association, for any purpose by an adverse party; (c) where the deponent is dead, or is unable to attend or testify because of age, infirmity, sickness, or imprisonment, or is out of the jurisdiction, or his attendance cannot be secured by subpoena, or exceptional circumstances exist that make it desirable in the interest of justice to allow the deposition to be used, for any purpose by any party. (2) If only part of deposition is offered in evidence by party, an adverse party may require the introduction of any other part which is relevant to the part introduced, and the other party may introduce any further part. The witness D'Eon was an employee of the plaintiff, directly involved in an aspect of the plaintiff's operation significant to the matters in issue. He was examined by defendants' counsel. The form of that examination was wide and had the appearance of cross‑examination. That is undoubtedly the acceptable form of asking questions on discovery in Nova Scotia. Counsel for the plaintiff then examined Mr. D'Eon. Many of the questions objected to were unquestionably leading in that they: (a) called only for ""yes"" or ""no"" answer; or (b) suggested the answer; or (c) suggested fact which bad not been established. Defence counsel have submitted, therefore, that the plaintiff was not entitled to ask such questions of witness as the evidence so elicited was not admissible under the Rules of Evidence. Plaintiffs counsel has submitted that answers to leading questions may be read in to explain or qualify answers given under direct examination and disovery. He cites in support of his position Williston and Rolls, The Conduct of An Action (Butterworths, 1982) at p.79: question may be objectionable as leading on one of two grounds: (I) if it suggests the answer desired; or (ii) if the question assumes controverted fact about which the witness has not testified. However, not every question would suggest the answer is improper, and not all leading questions are objectionable.... What is leading question is not easily answered, because there is no absolute prohibition against it. On many occasions leading questions are not only proper but are to be recommended and, in other instances, what might have been leading question if looked at in isolation is not leading because of the context in which it was put. This is so because it is not always possible to tell whether question is leading without considering the evidence as whole. Thus 'leading' is relative, not an absolute term. There is no such thing as 'leading' in the abstract for the identical form of question which would be leading of the grossest kind in one case or state of facts might be not only unobjectionable, but the very fittest mode of interrogation in another. And at p.80: The general rule is not that no leading question may be asked, but rather that on material points in issue, one must not lead his own witness. But on points that are merely introductory and form no part of the substance of the inquiry, one should lead. If disputed fact is inserted as part of the question and the witness must assume such fact in order to answer the question, the question is leading. Mr. D'Eon was witness obviously allied to the plaintiff. Questions had been asked of him by defence counsel which elicited answers potentially harmful to the plaintiffs position. Some of the questions asked by the plaintiffs counsel suggested answers contrary to, and in some cases negating, the previous response. have considered that such questions and answers are inadmissible. do not consider unacceptable questions which lead in an introductory matter, recapitulate point in evidence, direct attention to particular point or to another witness's testimony, Indeed, such questions are not considered cross‑examination. Where, however, the question is leading and suggests answers on an important point, have for my purposes ignored that evidence. consider that D'Eon, as an employee of the plaintiff; should be governed by much of the same considerations as party. Choate's Discovery in Canada (Carswell, 1977) at p.150, states: (f) Re‑examination by own counsel A586 person examined for discovery may be further examined by his own counsel in relation any matter respecting which he has been so examined. It is an explanatory examination and is for no other purpose than to enable person who has been examined to give such explanation on further examination by his own counsel as may appear to be necessary for the purpose of making clear the matters upon which he has already been examined. The witness may by way of explanation add to the facts already given even though it may result in variation or change in his evidence. In this case many of the questions went beyond request for explanation and suggested the desired response. recognize that Choate refers to the practice in Ontario and there major distinction between the Ontario Hiles and Nova Scotia's Civil Procedure Rules. Mr. D'Eon was not party to the action but in my view he was so directly connected with the corporate party that the prohibition of leading questions ought to apply. In any event, those questions and answers objected to would not have changed the result of this application. The Continued Action recognize fully that the conclusions have reached in this application are based on partial information only; that is, they are not based on full trial. My conclusions with respect to credibility and facts should not be confused with the findings of fact and credibility necessary in the final determination of any cause of action. am satisfied, however, that in order to reach an appropriate conclusion in this particular application, findings of fact and credibility were essential. Therefore, this decision, while it will be printed and available to counsel, will not be placed in the file in the usual fashion and it will not be available for consideration until the trial is completed. There will be two orders granted. One will give the full effect of this decision which will be sealed with the decision. The other, public order, will simply order the trial be adjourned without day. The findings of fact and credibility which make now ought to prevent me from continuing to sit on this case. As this is an application made prior to the commencement of the trial, do not consider myself seized with the matter. Counsel are encouraged to approach Chief Justice Glube to obtain the assistance of case management for the furtherance of the matter. J. Halifax, N.S.","The defendants applied at the opening of the trial for dismissal alleging the plaintiffs had been misleading and had deliberately failed to disclose important information. Dismissing the application, that while the plaintiffs had failed to comply with Civil Procedure Rule 20.07, dismissal of the action was not warranted. The plaintiff was held liable for solicitor-client costs associated with the application and discoveries.",1994canlii4195.txt
52,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 019 Date: February 24, 2016 Information: 39123041 Location: Prince Albert Between: Her Majesty the Queen and Aiden Pratchett Appearing: Michael Segu, Lana Morelli For the Crown Mark Brayford, Q.C., Brian Pfefferle For the Accused JUDGMENT M.M. BANIAK, [1] The accused, Aiden Pratchett, stands charged as follows: 1) Between the 29th day of September, A.D. 2014 and the 16th day of October, A.D. 2014, at or near Fond-du-lac, Saskatchewan did have in his possession child pornography, contrary to s. 163.1(4) of the Criminal Code; 2) Between the 29th day of September, A.D. 2014 and the 16th day of October, A.D. 2014, at or near Fond-du-lac, Saskatchewan did access child pornography contrary to s. 163.1(4.1) of the Criminal Code. [2] The trial commenced on October 5, 2015, in Prince Albert, Saskatchewan. [3] The Crown’s first witness was Constable Christopher Lair, member of the Prince Albert Police Service for the last 1/2 years and for 10 years before that, Constable Lair served as member of the RCMP. Since October 2013, he has been member of the Internet Child Exploitation Unit, commonly referred to as the ICE Unit. [4] He testified that investigations of child pornography are usually initiated by either complaints or by monitoring file sharing networks for subjects who are accessing, possessing, or sharing child pornography using file sharing software on the Internet. [5] The early portion of his examination-in-chief was primarily focused on the technical aspects of the investigation. [6] Constable Lair went to some length to differentiate the peer to peer file sharing network from the centralized server model: “in most cases when people are receiving information from the Internet they’re contacting specific site and downloading information from that site that is stored on server at that site. [7] Constable Lair explained that persons accessing the centralized server model are accessing the same server, the same Internet address, and obtaining the same information from the same physical location. [8] In contrast, according to Constable Lair “peer to peer is much different set up. It would contact network that would contact other peers, people that had files that they might want and they could share files peer to peer systems are not centralized. Peer to peer network is information that is obtained from many different internet sites. Users can obtain files from many different sources on that network.” (T9 10) [9] When asked how one can be certain, keeping in mind the different sources of the information being obtained from, that one is getting what one asked for, Constable Lair answered as follows: Okay. Because these files are being obtained from multiple sources and we’re getting just pieces of it called packets, the file sharing network, the file sharing software has to be able to identify packets of that file. And in order for that to happen, the system needs to know that it is, in fact, the exact same file. If it differs in any way, the software then takes these packets from multiple users, re-assembles them into one file, unless the source of each of those pieces is from the exact file, the software can’t put those pieces together. So this software uses what’s called hashing algorithm. hashing algorithm is mathematical formula that represent we call it digital DNA signature of particular file. So the software hashes that file and returns string of alphanumeric characters that when the system sees the same string it knows that it’s the same file. (T-12) [10] follow up question of: Okay. And if two files have the same hash value, what can you conclude from that?” Constable Lair answered as follows: If two files have the same hash value, you can be certain that the file itself is the exact same file. You cannot be sure that someone has changed the file extension or the file name. Those things could be changed, but the inside of the file that needs to be that you need to be viewed or to be deconstructed and reconstructed, if it has the same hash value, you can be sure that that date is exactly the same. [11] He was next asked: “And why are hash values you’ve explained why hash values are important to the functioning of the peer to peer network but why are they important to you as an investigator?” [12] His response: Well, they’re important to me because when we monitor the file sharing networks we see that particular IP address has number of files that they’re currently sharing on file sharing networks and those files are displayed by file name and they’re also displayed by hash value. Now, law enforcement has database of hash values that have been that the files associate with those hash values have been entered into the database because another police officer in another jurisdiction at some point has categorized that image as being child pornography image. So the software that we use to patrol the internet looks for file with those hash values in that database. So when see when use my law enforcement program to patrol the internet and look to see who is on file sharing networks trading child pornography would see user and would be able to see the list of files that they have been flagged with. And when see hash value, can’t see the file. So don’t know by looking at the hash value that, in fact, is child pornography. However, once have the file, once I’ve downloaded it and know that the hash value is the same, can say that the file reported by that person is child pornography whether or not I’ve got the file from them. When know that they have that hash value, file with that hash value in their shared folder on their computer that was available to the network, can get that file from any source and can be sure that at that point they had child pornography on that system because the hash value is the same. (T14) [13] Constable Lair testified that the file sharing network that pertained to this case is the Gnutella Network, and that the program used to access the Gnutella network was Shareaza. [14] Constable Lair went on to state that once person is on file sharing network and downloads files, that folder by default goes into directory created when the file sharing software was started: Now, if you have whatever files you have in that shared folder while you are on the internet are potentially visible to any user on the internet when they have put in search term that is in the file names that are in your shared folder. (T17) [15] He would use the Child Protection System (CPS) program to browse and see what was in someone’s shared folder: And so when step into my virtual police car, that is what see when log onto the CPS system .IP address the second column is the user name of the user that is reporting files on that IP address. That user name can be couple of different ways. You can enter your own name when you are running your file sharing client. You can enter user name. Or you can just allow it to go by default to what we call G.U.I.D. Now, G.U.I.D. is an acronym for globally unique identifier. G.U.I.D. is what the file sharing program, or client we call program, the file sharing client, when it’s installed, this system assigns G.U.I.D. And it could be easily perhaps understood as the serial number of that search warrant installation. So when download and install Shareaza 2.7.0.0. the system would assign me G.U.I.D. and then that’s the serial number for that software installation on that computer. If Shareaza then updates to 2.7.0.0. and update that, it assigns me new G.U.I.D. because that’s how serial number for that installation. so every computer has that software installed has different serial number that we call G.U.I.D. (T19) [16] According to Constable Lair, if two people, in the same house downloaded Shareaza on their separate computers, they would have different G.U.I.D. numbers on their installation. [17] When asked if two people could have the same G.U.I.D. number at the same time, Constable Lair replied that it was mathematically possible but extremely unlikely. (T20) [18] During the course of his investigation, once Constable Lair logs onto the Child Protection System (CPS), he looks for locations that are in his area of responsibility to investigate and then proceeds to zero in on the IP address. [19] The accused came to the attention of Constable Lair during such an investigation into file-sharing. Exhibit P-1 shows how the investigation commenced. The image obtained from the original download Exhibit P-2) was described by Constable Lair as follows: In my view that is young female child approximately six to ten years old laying on couch with her pants pulled to her knees and her legs up in the air showing her anus and vagina. In my view, the size of the child, the lack of genital development and facial structure that see, in my view, that was child six to ten years old. [20] In order to obtain the physical address and the name of the subscriber, Constable Lair applied for Production Order on September 30, 2014. The Production Order, (P-3), asked SaskTel for the name of the customer that was assigned that IP address on that time and date. Constable Lair explained why the request was so specific: As said earlier, IP addresses can change depending on the needs of the internet service provided. Therefore, it is important that determine which internet account on the date that was exchanging the date and time that was exchanging data that received that download from. At that date and time, that’s when need to know the physical address and name of that subscriber because two hours later that IP address could be subscribed to someone else. (T35) [21] Further investigation revealed that Aiden Pratchett was member of the RCMP O.F.C., Fond-du-Lac, Saskatchewan. [22] Constable Lair next applied for search warrant on October 15, 2014. The search warrant was issued and it authorized the search of the duplex located within the RCMP campground at Fond-du-Lac between the hours of 10:00 a.m. and 6:00 p.m. on October 16, 2014. (Exhibit P-4) [23] The search warrant authorized search of the entire duplex. [24] The search warrant was executed on October 16, 2014. The search team consisted of Constable Lair; Corporal Jared Clarke, who is an ICE investigator in the RCMP; Constable Lindsey Wall who is forensic technician with the Saskatoon Police Service ICE unit; Constable Shannon Parker, Saskatoon Police Service technician with the ICE unit; Staff Sergeant Ron Weir of the Regina Police Service, who is the provincial co-ordinator for the Saskatchewan ICE Unit. [25] In addition to the ICE team, RCMP Inspector Shelly Dupont and Staff Sergeant Garfiel Elliott were involved. [26] One unit of the duplex was occupied by Mr. Pratchett and his spouse, Sarah Colter, while Constable Bobby Michaud lived in the other unit. [27] After arriving at the campground, Bobby Michaud and Sarah Colter were detained. Mr. Pratchett, who was at the residence following night shift, was summoned to the detachment by Inspector Dumont. He arrived within six minutes of being called and was promptly detained by Corporal Clarke. [28] Mr. Pratchett’s residence was searched three computers were seized: “one was laptop computer; one was desktop computer, and one was larger tower, red tower custom built computer.” (T50) [29] The red tower computer has the operating system encrypted, so that it could not be accessed without password. [30] The red tower computer had three hard drives inside it, and fourth was found later. Three of the four hard drives were encrypted. [31] search of the unit occupied by Constable Bobby Michaud revealed one computer which was non-password protected. Examination of his computer did not yield any child pornography. At that point Constable Michaud’s detention was terminated. [32] The first interview (Exhibit P-5) with Mr. Pratchett was conducted by Corporal Clarke, while Constable Lair monitored it. The second interview was conducted by Constable Lair, and it took place on the same day. The first interview lasted about an hour and twenty minutes, while the second one was approximately one-half hour. (Exhibit P-6) [33] Prior to getting into any serious discussions with Corporal Clarke, Mr. Pratchett requested an opportunity to consult with counsel. This request was granted and Mr. Pratchett was eventually successful in speaking to counsel of his choice. He indicated to Corporal Clarke that he was satisfied with his call. [34] Every attempt by Corporal Clarke to obtain the password from Mr. Pratchett proved futile. During an interval when Mr. Pratchett spoke with Sarah Colter, she had indicated to him that her computer was not locked, but that Mr. Pratchett’s was: “yours is locked like Fort Knox apparently which sounds like your computer.” (Exhibit P-5, pg 42) [35] During the interview with Constable Lair, Mr. Pratchett described himself as being computer savvy: “Ahm. don’t know if you talked to my boss but I’m kind of the Detachment IT guy, right? I’m not by any means an expert. don’t know how you guys do what you do, but am very familiar with computer hardware on the user end.” (Exhibit P-6, pg 3) [36] During the interview with Constable Lair, Mr. Pratchett again reiterated his position that he was not going to be providing passwords. He also expressed the view that no one he could think of could have been involved: “I can’t in all conscience say that there’s anyone can think of who would have done this.” (Exhibit P-6, pg 53) [37] Mr. Pratchett also stated that he has never had anyone service his computer as he was quite capable of doing it himself. [38] Exhibit P-8 was two page document which comprised the Fond-du-Lac RCMP detachment work schedule from August 21, 2014 to October 15, 2014. Constable Lair testified that he reviewed Mr. Pratchett’s work logs for that time frame: Well, went through and did an analysis and comparison of his shift schedule and his work logs. And compared it to the activity that was flagged by CPS and found that every time there was activity on the CPS log with respect to his IP address, was time when he was not on duty. [39] He was asked: “Between the offence dates that we are talking about on Information 041, so September 29, 2014, to October 16, 2014, what CPS activity did you find that occurred while Mr. Pratchett was on shift?” Answer: “None”. [40] Constable Lair testified that CPS has the ability to browse the contents of the shared folder and that he was able to obtain copies of all those files being shared during the entire offence date. [41] These files were contained on three DVDs labelled Volume 1, Volume and Volume (Exhibit P-9). [42] representative sample from each disc showed these images as described by Constable Lair: Volume 1: It is female child nude from the waist down on bed, approximately six to eight years old. She is now and now we have an adult’s hand fondling her buttocks and anus. And now there’s still image of an adult penis attempting anal penetration. The title says, “honey shit lover sex”. (T82) Volume 2: We see female child lying on top of an adult male, both are nude, and the adult male is attempting vaginal penetration. (T83) Volume 3: We’re seeing female child approximately five to seven years old performing oral sex on an adult male. (T85) [43] The last file being flagged by CPS was at 11:32 a.m. on October 16, 2014, the day the search warrant was being executed. This was minute before Mr. Pratchett was called to attend the RCMP detachment. [44] On December 22, 2014, Mr. Pratchett was arrested. [45] Constable Lair again decided to interview Mr. Pratchett and this time he asked Sergeant Parisien to take part. According to Constable Lair, “. wanted Sergeant Parisien here to be able to answer any technical questions that Mr. Pratchett had that were done above my level of expertise”. (T93) [46] As the interview progressed, it became apparent that Sergeant Parisien played much more active role than simply being around to answer Mr. Pratchett’s technical questions. However, when all was said and done, the investigation was not advanced appreciably by this interview. [47] Constable Lair presented Mr. Pratchett with spreadsheet (Exhibit P-11) downloaded from CPS which chronologically set out all of the activity related to his IP address during the time in question, namely September 29, 2014, to October 16, 2014. [48] The entry on October 16, 2014, was at 11:32 a.m., one minute before Inspector Dupont called Mr. Pratchett and requested that he come to the detachment. Mr. Pratchett arrived at the detachment at approximately 11:40 a.m., and the ICE team entered the Pratchett residence at 12:13 p.m. They used key to gain entry and the house was unoccupied. The computer was shut off. [49] Mr. Pratchett offered the opinion that Constable Lair did not have “very good understanding of how computers work”. (Exhibit P-10, 7) [50] When Sergeant Parisien suggested to Mr. Pratchett that he and only he could have logged into the “encrypted computer, connected to the internet, searched for and found vile child abuse videos, downloaded them on to your computer and then shared them with the world, just minute before you were called by the Superintendent. .”, Mr. Pratchett responded by asking “is your experience with computers, Sergeant, that they only do things that people who are sitting physically at them tell them to do?” [51] When Sergeant Parisien answered “yes”, Mr. Pratchett stated: “Okay. Then don’t think we have anything more to say to each other today. .” (Exhibit P-10, 25) [52] Constable Lair was not cross-examined. [53] The Crown’s next witness was Constable Shannon Parker, forensic computer technician, employed by the Saskatoon Police Service. She became member of the provincial ICE Unit some 18 months earlier. [54] Prior to travelling to Fond-du-Lac to take part in executing the search warrant of Mr. Pratchett’s residence she was briefed as follows: During the briefing Investigator Lair stated that between September 29 and believe it was October 15 he had received some partial downloads. He had indicated that it was peer to peer file sharing investigation and that the Shareaza version 2.7.7.0 was responsible. He also provided file name and the hash associated with that and G.U.I.D. (T110) [55] Her role was that of an exhibit officer. As the exhibit report (Exhibit P-13) shows, thirty exhibits were seized from the Pratchett residence. She took 104 photos, 44 of which were assembled and comprise Exhibit P-14. [56] She testified that the red tower was seized and three hard drives were found in that tower. Later, while looking for serial number of the tower, she discovered fourth hard drive. She described this fourth hard drive as exceptional with great storage capability. [57] She testified that all of the hard drives from the red tower were completely encrypted and, therefore, not accessible to police. (T122) [58] Another item seized was router. Constable Parker explained its function as follows: And so what router basically does is it directs traffic from the outside world, so the world wide web, the wide area network, and it acts as bridge from that wide area network to your inside world, to your home network or to your land, your local area network. So it’s bridge between two networks, first and foremost. And then second of all, it’s going to direct traffic. And we can get into that later. But traffic is going to come into your router, and the router is going to say, I’m going to direct this traffic to the desktop right beside me here. I’m going to direct the traffic to Ms. Colter’s computer. I’m going to direct this traffic to the laptop or to whatever devices he’s got in the residence. So that’s the gist of what router is. (T124) [59] In her opinion, “because the router assigns each device in your home its own internal IP” (T 152), it is not possible that the data packets would end up at some other device. [60] In this particular case, Cosntable Parker was certain that the Shareaza traffic was destined only for the red computer tower: “Because the internal IP is tied to that VIN number, that MAC address. And that physical MAC address has been found on the red computer tower.” (T 152) [61] Constable Parker described MAC (Media Access Control) as being similar to VIN (vehicle identification number). Any physical device that has the ability to have network capabilities is assigned MAC address. So each device, or piece of hardware, has different MAC address: just like the vehicle example. It’s completely distinct, unique address physically assigned to physical device. (T 140) [62] Constable Parker was not cross-examined. [63] The next witness was Sergeant Darren Parisien, who was qualified as an expert in the peer-to-peer file sharing investigation and techniques. [64] He describes his duties as follows: develop and update training as it relates to peer-to-peer file sharing investigation techniques and software. And coordinate training nationally and internationally regarding peer to peer investigative techniques. And I’m the lead instructor for that case and have been since 2008. (T 159) [65] He testified that there are multitude of file sharing programs, including the Shareaza peer-to-peer file sharing, which “I’ve used number of times and I’m quite familiar with the software”. (T 167) [66] Sergeant Parisien testified as to how he became involved in this particular investigation: Well, learned from the investigators that there was some encryption that was encountered during the search warrant, specifically at least one entire computer was encrypted with program called True Crypt. And the investigators were unable to link some of the suspected criminal activity to concretely to that computer. So reviewed some of the information in relation to the child protection system logs which are basically created when law enforcement servers and crawlers send out messages to peer networks looking for people who are sources of known illegal files. So in reviewing that child protection system information made some observations regarding port number and program that was used in relation to that computer and further assisted Constable Parker of the Tech Unit with her examination of router which was seized from the residence during the search warrant. (T 196) [67] With respect to the observations he made regarding the port number, he testified as follows: in the port number in relation to the peer-to-peer file sharing application is the conduit for which the activity between the client running on the suspect’s computer and the peer-to-peer network interact by way of sending messages back and forth. The default port number that is involved with the file sharing application Shareaza is port number 6346. But when you install Shareza on your computer, it needs to assign port number. So basically conduit is port number. If you do nothing when you install the program, it assigns 6346 to your computer, sorry, to that application. But the user has the ability to change that port number. There are about 64,000 ports associated to router and any one of those, for the most part, any one of those ports are available to transfer information back and forth through your computer to the router. And in this case the 32888, which was the port number identified through the child protection system all the activity associated to Constable Lair’s investigation, that 32888 is not the standard port number. And wouldn’t be surprised if saw 6346, 6347, 6348 because those sometimes your computer picks different one, if one is available. But to see port number 32888, that would be consistent with user manually changing the port number and entering that port number to be used by the Shareaza file sharing program. [68] Sergeant Parisien also testified about G.U.I.D. numbers, and his review of the G.U.I.D. numbers associated with Mr. Pratchett’s installation of Shareaza. He testified that there were multiple G.U.I.D. numbers and he explained how these could be generated. So in Shareaza, specifically this version, but number of Shareaza versions, the user, when they’re running program, they can simply click on button and change their G.U.I.D. number. So there’s button that says, generate new G.U.I.D. So just click on this area under security, you click on certificates and this is well-known kind of aspect of Shareaza that is not really present in lot of other peer-to-peer programs. But in Shareaza you can click on, in the security tab there’s an area that says generate new G.U.I.D. (T 207) [69] In response to question of whether another person online on Gnutella, using Shareaza, could change your G.U.I.D. number, Sergeant Parisien’s answer was no: so you can’t change my G.U.I.D. You couldn’t say, add more folders. You couldn’t say show me what else is on your computer. You can’t say auto update this application. None of that. You can send me message but other things such as update, change port, update G.U.I.D., update version, those are all things that an outside user who is interacting with your computer with Gnutella Network has no ability to control or send messages in regards to. (T 208) [70] Sergeant Parisien prepared report regarding his investigation of Mr. Pratchett (Exhibit P-17). The report covered the period from September 15 to October 16, 2014. [71] In reference to that report, Sergeant Parisien was asked the following: “. you indicated in your report that files were downloaded over multiple days during multiple peer-to-peer sessions all linked to the same client and identical port. Is that stating based on what you’ve been telling us here this afternoon?” He answered: Yes. So the internal or sorry, the public IP address which basically points us to say, house, is the same. So we’re arriving at the same house. And the port umber is the same through all of this. If you look under column of the whole entire report, every single instance in here is 32888. And the reason it’s 32888 is because the user, when they set up Shareaza, said, all my Shareaza activity is going to come to the house on port 32888. That’s what want it to come and go from. So that allows me to determine that it’s likely the same computer. In this case the G.U.I.D. changes and there’s some other factors that are in the lay here. But this progression of files, even with the G.U.I.D. number changing here, this progression of files indicates to me that this is the same user and the same computer. You can see in this instance there’s five, sorry, six different G.U.I.D.s. Every single sorry five. Two of them are the same, which is on the same date, both on September 27th. But the presence of identical files, identical file names, identical port, identical IP address over standard period of time indicates to me that this is the same computer, the same installation of the program, the same user, the same pool of shared files that are being shared from this computer during this time frame. And that’s consistent with multiple files across this report. (T 221) [72] Defence declined to cross-examine Sergeant Parisien. [73] The next witness was Sergeant Joel Bautista, member of the Saskatoon City Police force for thirteen years and with the ICE unit since 2009. He is forensic technician. His involvement in the investigation started November 19, 2014, when he was asked to analyze the My Cloud storage device which was one of the 30 exhibits seized during the search of Mr. Pratchett’s residence. [74] He described My Cloud as follows: Basically, Your Honour, My cloud device is device that can be accessed in your own network. So with My Cloud the advantage of My Cloud is the fact that it can hold large amount of data and since it’s connected within your network, it can be accessed via laptop, stand alone desk top computer, anything connected within your network. This device consisted of four hard drives. Each hard drive was terabytes in size for total data storage size of terabytes. Basically My Cloud is personal, want to say, cloud storage device for the home use. (T 231) [75] He testified that each hard drive was re-attached into the My Cloud, and, once operational, hooked up to forensic laptop. This meant that Sergeant Bautista could view on the laptop what the user would be viewing if he were to go into the My Cloud. (T233) [76] Sergeant Bautista testified that he went through every folder on this device. The database where the passwords are kept was encrypted. [77] He was asked: “So were you able to get into that database?” His answer: No. So what did was for period of roughly five days, attempted quick brute force attack. Brute force attack basically takes all possible character combinations and tries to force that into the program in order to get it open. It’s not 100% full proof, but wanted to see the complexity, possible complexity of this suspect’s password. And this was my first, if you want to say, introduction into it. Usually if password is simple, may be less than eight characters, may be all upper case, all lower case, depending on the brute force attack, it would be in matter of minutes or seconds. This was little test to see just the password strength of the actual key pass. And in this case from November 25, 2014 to December 2, 2014, it was unsuccessful. (T 235) [78] During that time, if the program used was averaging some 20,000 passwords per second, billions of attempts would have been made to get into this key pass. [79] Sergeant Bautista was not cross-examined. [80] The next Crown witness was Constable Lindsey Wall, member of the Saskatoon Police Service, and since October of 2013 assigned to the provincial ICE Unit. He described himself as forensic technician. [81] He prepared forensic report (Exhibit P-21), and much of his testimony related to that report. [82] He was member of the team that entered Mr. Pratchett’s residence. His objective was to gather as much evidence as possible in short period of time. To this end, he would attempt to access Mr. Pratchett’s computer. [83] He was asked: “And how successful were you in doing that when it came to Mr. Pratchett’s computer?” Answer: Not very successful. when first walked over to Mr. Pratchett’s computer, the monitor was off. moved the mouse. When moved the mouse, the monitor activated, and this is the screen that came up when moved that mouse. That’s again taken with my small camera. It’s not very clear. But True Crypt Boot Loader 7.1A, and it requires password. (T 250) [84] He described True Crypt: as an encryption program. So True Crypt it’s freely available on the internet for download and it basically locks your computer. It’s different than Windows password that in this instance, with the boot loader, you can’t even access the operating system. You need to provide password before the operating system will load. (T 250) [85] He described the difference between Windows password and True Crypt as follows: If we were to think of Windows password say just door to room, with Windows password with the forensic tools that we have, the forensic tools that we have don’t recognize that Windows password. So we’re able to view the system. The system is up and running. can view the system. can triage. can do can use any of my other tools on that system. So if that’s room, Windows password, you can get in through the window and can see everything in that room as it should be. If we’re still thinking of the computer as room with the encryption software True Crypt, need the keys to get into that room. If don’t have the keys, number 1, can’t get in. can’t get in through the window. Even if could get in through window, everything in that room would be so disorganized you wouldn’t even recognize what you’re looking at in that room. So even if manage to use my forensic tools to access this drive, all the information on that drive is completely useless to me unless have the proper keys to put everything back together. (T 251) [86] Constable Wall testified that he was allowed full access to Sarah Colter’s computer. It was running and he did not need password to view it. He did not find anything relevant to the investigation on Ms. Colter’s computer. [87] Constable Wall also examined Constable Michaud’s computer and did not find anything relevant on it. Constable Michaud’s computer had different IP address and different wi-fi address than Mr. Pratchett’s. [88] Constable Wall testified that Mr. Pratchett’s red computer had four hard drives PE 17, PE 18, PE 19 and PE 30. [89] He examined PE 17 at the Pratchett residence: At the scene did quick triage. So basically looked for items that believed would provide us evidence for our investigation. looked through file folders, ran some key word searches. looked specifically for Shareaza, the downloading program that we believed was used. did find the Shareaza version 2.7.7.0 executable file on PE 17. (T 258) [90] He described an “executable file” as being “the file that you would click on to launch the program, or to start the program”. (T 258) In other words, the executable file is only the springboard to start the program, but the program still needs the configuration files in order to actually function.” (T 259) [91] None of the configuration files were found on PE 17. According to Constable Wall’s testimony, the executable file for Shareaza version 2.7.7.0 was created on September 15, 2014. [92] Constable Wall was not able to access the other three hard drives (PE 18, PE 19 and PE 30) as all of those drives were encrypted. [93] By further analyzing the hard drive (PE 17), Constable Wall concluded that the files that he was able to locate on Mr. Pratchett’s computer were match for the files he was provided by Constable Lair: With the CPS list was given by Constable Lair, those files contained hash values as well. So the DNA to those files. What did was ran these files that found through hashing program. So hashed these files as well and found that they were an exact match for the files on Constable Lair’s CPS list. (T 265) [94] Constable Wall was asked: “So if understand your overall forensic analysis correctly, you found the Shareaza version that Constable Lair was investigating on the one unencrypted drive on the red tower computer?” Answer: “Yes.” (T 294) [95] Defence did not cross-examine Constable Wall. Crown did not call further evidence. [96] Mr. Pratchett testified. His examination-in-chief was brief and succinct so much in fact, that reproduce it here in its entirety: Mr. Pratchett, you’re the accused in these proceedings obviously. Yes. want to take you back to the day that the officers came to Fond-du-Lac, October 16th of last year, just not quite year ago. And we’ve heard you were residing there, correct? That’s correct. Who was your employer then? The RCMP. And the October 16th meeting with the police, as we’ve seen, you were interviewed twice, at the Fond-du-Lac detachment that day that was video taped, correct? Yes. And you had chance to watch those subsequently, here in court for instance, correct? That’s correct. And were you attempting to tell the truth when you were answering those questions? Yes, was. Subsequent to that, just over two months later on December 22nd, during that interval you hadn’t been charged, correct, during that interval? That’s correct. And you hadn’t been provided with disclosure during that interval. No, had not. And on December 22nd when charges were proceeded with you were interviewed again. Okay. At that time you’ve seen the video here in court. Yes. Were you attempting to tell the truth in that interview? Yes, was. Now, want to ask you specifically, have you ever downloaded child pornography? No, have not. Have you ever possessed child pornography? No, have not. Do you have any interest in children in sexual way? No, do not. Did you commit the offences that are alleged against you? No, do not. Cross-examination of Mr. Pratchett [97] Mr. Pratchett acknowledged that he had an interest in computers; that he was enrolled in the Bachelor of Science in Computer Technology program through Athabasca University; and that his understanding of computers exceeded that of most average persons. He, in fact, built the red tower computer. [98] He agreed that others at the RCMP detachment in Fond-du-Lac would look to him for advice and assistance if they encountered any problems with their computers. [99] He agreed that he was concerned with security as it pertained to his computer, but expressed no specific concerns about it being stolen from or tampered with, at the RCMP detachment. [100] Mr. Pratchett acknowledged that the laptop computer and Ms. Colter’s computer had single Windows passwords but were not encrypted with True Crypt. [101] He was questioned as to why he was prepared to provide some passwords, including his work drives, but not the password to his red computer. He responded that he was simply following legal advice to not provide personal passwords. [102] However, he also agreed that even after receiving legal advice he was prepared to give up some passwords, but not the one to the red computer. [103] Mr. Pratchett explained why he used encryption: was not using the encryption in that fashion. was not concerned that someone would come into my house and access my computer while was away. My concern was that the computer would be stolen in which case it would be turned off or powered off at which point the password would assert itself. But in the ordinary use, the computer is on and it’s logged in. The password isn’t necessary. (T 317) [104] That answer led to this exchange: Lines 32, page T318: Okay. And how do you activate your encryption, Mr. Pratchett? Sorry. What do you mean by activate? Well, if I’m using your red tower computer, how do we get to the black screen that we saw during Constable Wall’s presentation this morning. You turn What has to happen? You turn on the computer. Okay. But if I’m already using it and am surfing the web on Firefox and walk away from the computer, does it automatically go to that black screen? No. So what has to happen? It would have to be turned off or re-started. So when the police entered your home, it’s fair to say that before they entered your home, the computer had either been turned off or re-started. Yes. Okay. And for anything to work on that computer and to get past the True Crypt encryption, logically then it has to be turned on, right? The computer has to be on. Yes. And you and can agree that in the minutes before Inspector Dupont called you to come to the detachment you were inside your residence. Yes. And other than I’m guessing your cat, you were alone? [105] Mr. Pratchett was next asked if someone “is smart enough to know the user name and the password for your router, you would agree with me that it would be virtually impossible to randomly guess your password for your True Crypt encryption”. His answer: agree, yes.” [106] Further: “Yes, in fact, we’ve heard the evidence that the police have tried over trillion combinations and have not gained access, right?” Answer: “Yes”. (T 321) [107] Mr. Pratchett also conceded that he monitored his computer fairly closely and “. kept close eye on the band width being used” (T 322), and that band width would be affected by files being uploaded or downloaded. [108] In the same vein, Mr. Pratchett agreed that he had his computer locked up to keep people out: wanted to be there when they did the search warrant, just so could, you know don’t like the idea of people in my house when am not there. You know, the cat’s in her blanket. know they’re worried that we might somehow delete something, but cuff me. don’t care. just t[sic] be there when they’re in my house. I’m private about that kind of shit. Same reason had my computer locked up. (T 331) Position of the Parties [109] Defence submits that although Mr. Pratchett is probably the most logical suspect, that does not establish guilt. He took the stand in his own defence and categorically denied downloading or possessing child pornography. [110] He was not able to explain how the child pornography ended up on his computer, but the accused does not bear this burden. [111] Defence argued that the accused did not try to blame anyone else at the detachment, or his spouse, for accessing or tampering with his computer; fact that should bolster his credibility. [112] Further, defence argued that no negative inference should be made against the accused for not giving up or surrendering his password as he was simply following legal advice and exercising his right to remain silent. [113] Defence counsel concluded his remarks with these words: And in this case suggest that his evidence is that he is innocent and that he has met the burden that is upon him to raise that reasonable doubt. And the fact that we can’t prove who did it, that’s not our burden. (T 337) [114] The Crown submits that all elements of the offences have been established. That the material in question is child pornography within the definition of the Criminal Code, and that the accused had knowledge and control of the illegal material. [115] The Crown further argues that the massive body of evidence presented at trial by all of the Crown witnesses went completely unchallenged. Therefore, taking the totality of the evidence into account, and the inferences that can be drawn from that evidence, the Crown contends that it has proven the accused’s guilt beyond reasonable doubt. [116] Section 163.1(1) reads as follows: 163.1(1) In this section, “child pornography” means (a) photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for sexual purpose, of sexual organ or the anal region of person under the age of eighteen years; (b) any written material, visual representation or audio recording that advocates or counsel sexual activity with person under the age of eighteen years that would be an offence under this Act; (c) any written material whose dominant characteristic is the description, for sexual purpose, of sexual activity with person under the age of eighteen years that would be an offence under this Act; or (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for sexual purpose, of sexual activity with person under the age of eighteen years that would be an offence under this Act. [117] Section 163.1(4) of the Criminal Code states: (4.2) For the purposes of subsection (4.1), person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself. [118] At the outset, it is my finding that the material viewed (Exhibits P-2, P-7, and P-9) , meets the definition of child pornography as defined in the Criminal Code. These were very young children in sexually explicit situations. [119] With respect to possession, the Supreme Court addressed comprehensively the various requirements which the Crown has to prove in Morelli[1]: Firstly, the accused has to have knowledge of the material; secondly, the accused knowingly keeps or shares the material in specific or particular place; and, thirdly, the accused intends to have the material for his own use or benefit. In order to establish the above, the Crown has to prove that the accused had sufficient control over the material in question. By proving that the accused knowingly stored and retained the material throughout the time in question, the Crown would satisfy the mens rea requirement. [120] The accused is charged with possession of child pornography and, secondly, of accessing child pornography. [121] The evidence adduced by the Crown was not challenged as none of the Crown witnesses were cross-examined. [122] It is worth mentioning that all of the witnesses, including the accused, have great deal of technological expertise and sophistication. So even though only one of the witnesses was qualified as an expert, it could easily be said that all of the witnesses were experts in their own right when it comes to Internet and computer technology. [123] The first witness, Constable Lair, testified that he commences his investigation if the child protection system flags an IP address as being in possession of child pornography. [124] In this case, Constable Lair obtained Production Order which pointed to Mr. Pratchett of Fond-du-Lac, SK as being the person behind the IP address sharing the child pornography. [125] Following the execution of the Search Warrant, police seized number of devices including Mr. Pratchett’s red computer. [126] As already outlined previously when examining the various witnesses’ testimony, all evidence pointed towards the accused’s computer network and the Gnutella network. Only the accused had access to his computer and only he knew what the password was. No one at the RCMP detachment in Fond-du-Lac, or in the Pratchett residence had access to the red computer. Sarah Colter did not know the password to the red computer and there is no evidence that she ever used it. There was no child pornography on her computer. In my view, there is absolutely no evidence to suggest that she may have been involved in any way. [127] The evidence, primarily through Constable Parker, establishes that all the material, all the Sharaeza traffic, came into the accused’s residence through router that directed everything to the red computer only. [128] The notion that someone could, either through luck or skill, access Mr. Pratchett’s red computer seems extremely unlikely. The best forensic technicians from the ICE Unit after attempting some three trillion possible configurations or combinations were unable to figure out or get past the True Crypt Boot Loader. [129] Mr. Pratchett himself was not surprised that the encryption system was so formidable. [130] This fact, combined with Mr. Pratchett’s diligence in regularly checking his band width usage, makes it highly unlikely that he would not have been aware if hacker had been using his computer. He was sophisticated and frequent user of the system. He was on his computer on daily basis. It is unlikely that he would be unaware of someone downloading material onto his computer. Moreover, Mr. Pratchett had other material, like car manuals that he said were his and which he referred to, in the shared folder. Undoubtedly, when accessing such shared folder, it would have been virtually impossible not to notice the explicit and eye-catching pornographic files. [131] Further, the evidence (Exhibit P-11) shows that the only time the CPS is flagging files and noting activity is when Mr. Pratchett is off duty and at home. [132] On the day of the search warrant execution, October 16, 2014, at 11:32 a.m., the computer was running. The accused was summoned to the detachment few minutes later and when the police entered the locked residence short time later, it was turned off. No one was at home. The inescapable conclusion is that it was Mr. Pratchett who turned it off. [133] According to Constable Wall’s testimony, the operating system on Mr. Pratchett’s computer could not be accessed remotely. [134] All of the Crown witnesses, from Constable Lair to Constable Wall, were convinced that it was Mr. Pratchett who controlled the flow of traffic to the red computer and that only he had access. That testimony was not challenged. [135] Accessing child pornography is defined in subsection (4.2): For the purposes of subsection (4.1), person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself. [136] The accused took the stand and denied possessing or accessing child pornography. He had no explanation or knowledge as to how the child pornography ended up in his folders. In fairness, the accused is not required to explain anything or disprove anything. The burden falls on the Crown to prove its case beyond reasonable doubt. [137] While there is conflict, or contradictory evidence, particularly between an accused who gives exculpatory evidence, and one or more witnesses who contradict and call into question the accused’s credibility, the direction given by the Supreme Court in W(D)[2] is instructive. The test is as follows: Firstly, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [138] denial does not create reasonable doubt any more than complaint or charge establishes proof of an offence having been committed. The testimony of the accused should not be analyzed separately. Rather, it should be weighed and evaluated in light of all the evidence. [139] Having regard to all of the Crown’s evidence, reject the accused’s evidence. found all of the Crown witnesses to be forthright and credible. In contrast, Mr. Pratchett was less forthcoming. Segments of what he said to the investigating officers during the interviews, and later his testimony at trial, were contradictory and at odds to the evidence provided by other witnesses whom found credible. [140] He testified that usually his computer was on and logged in, so that password would not be necessary to use it (T 317). However, Sarah Colter, when speaking to Mr. Pratchett during one of his interviews, stated that he had the computer locked up like Fort Knox. [141] He told the interviewer that he took casual approach to the “pc hygiene” (Exhibit P-6, 28) and that as result he was some “80 Windows updates behind because don’t usually turn my computer off”. [142] Yet he acknowledged that he was very security conscious and didn’t like “people in my shit”. (Exhibit P-5, 63) [143] Mr. Pratchett stated during the interview that he used the Shareaza program previously, but not for the last couple of years. The expert testimony of Sergeant Parisien, which accept, suggests that the version used by Mr. Pratchett only came out on September 13, 2014, mere days before the alleged offence dates. [144] Having rejected the testimony of the accused, before can convict, have to be convinced beyond reasonable doubt of his guilt based on the whole of the evidence. [145] The reasonable doubt standard is an exacting standard of proof. It is not proof to an absolute certainty, or beyond any doubt[3], but it requires great deal of certainty. It relies to certain degree on reason and common sense. [146] Relying on this definitive standard, the Crown must prove guilt beyond a reasonable doubt. This burden carries with it the duty of excluding all rational conclusions alternative to guilt. [147] In this case the Crown has met this burden. found the Crown witnesses, without exception, to be knowledgeable and credible witnesses. Their testimony was not challenged. [148] Examining the totality of the evidence, there is no evidentiary foundation for the presence of the child pornography in the accused’s computer other than that the accused was responsible for it being there. [149] The presence of the pornography on the accused’s computer, computer he guarded assiduously, is powerful piece of evidence linking the accused to the offence. [150] There is no evidence that anyone other than the accused ever used the red computer. In light of this, the notion that someone other than the accused was responsible is without merit. [151] The accused was sophisticated and frequent user of the system. He was on his computer on daily basis. To suggest that he would be unaware of someone, perhaps hacker, let’s say, of downloading material onto his computer is fanciful and defies logic. In short, find that Mr. Pratchett had knowledge of the material stored in his computer; that he had control over it; and that he knowingly stored and retained the material throughout the time in question. [152] In short, all evidence points towards the accused as being guilty of the offences he is being charged with. Accordingly, find him guilty as charged. M.M. Baniak, [1] Morelli, 2010 SCC (CanLII), [2010] [2] W(D), 1991 CanLII 93 (SCC), [1991] [3] Lifchus (1997), 1997 CanLII 384 (SCC), CR (5th) SCC (para 36).","HELD: The court found that the material viewed met the definition of child pornography as defined by the Criminal Code. Only the accused had access to his computer and knew his password. There was no evidence that the accused’s spouse was in any way involved. The evidence established that all of the file-sharing traffic came into the accused’s residence through a router that directed everything to the red computer only. The encryption on the red computer was so formidable that the best forensic technicians from the RCMP were not able to get past it. The court found that it would be unlikely for the accused not to detect a hacker given the encryption and his monitoring of bandwidth usage. A witness also testified that the accused’s operating system could not be accessed remotely. The court rejected the accused’s testimony given all of the Crown’s evidence. The Crown witnesses were all forthright and credible, whereas the accused was less forthcoming. The court found that the Crown met their burden of proving the offences beyond a reasonable doubt.",d_2016skpc19.txt
53,"R.D. LAING REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 144 Date: 2015 05 20 Docket: FLD 423 of 2012 Judicial Centre: Saskatoon PETITIONER RESPONDENT BY COUNTER-PETITION RESPONDENT PETITIONER BY COUNTER-PETITION Counsel: Sherry L. Fitzsimmons for the petitioner Davin R. Burlingham for the respondent JUDGMENT KEENE J. May 20, 2015 Introduction [1] The petitioner [M.D.J. or Ms. J.] and the respondent [C.W.S. or Mr. S.] met in late August 2009. This quickly developed into an intimate relationship. Ms. J. discovered she was pregnant in early October 2009. Shortly after that Mr. S. moved in with Ms. J. at her house in Warman. Their child Z.P.J.S. [Z.] was born in June 2010. The parties separated on November 28, 2012. Ms. J. is presently 37 and Mr. S. is 43 years of age. II Pleadings and Proceedings [2] Ms. J. issued her petition December 3, 2012 claiming under The Children’s Law Act, 1997, SS 1997, C-8.2 [Act], sole custody of Z., specified and supervised parenting time for the respondent, restraining order against Mr. S. and costs. [3] Mr. S. filed his Answer and Counter-Petition on January 9, 2013 contesting Ms. J.’s claims for sole custody, specified and supervised parenting time, the request for restraining order and costs. He counter-petitioned, claiming division of property under The Family Property Act, SS 1997, F-6.3, joint custody of Z. with primary residence of Z. to be with himself and access for Ms. J., child maintenance for Z. under The Family Maintenance Act, 1997, SS 1997, F-6.2, and costs. Mr. S. filed an Amended Answer and Counter-Petition on April 10, 2013 requesting maintenance for himself under The Family Maintenance Act, 1997. [4] Ms. J. brought Notice of Application on December 12, 2012 requesting the return of Z. from Mr. S. This application had been preceded by two applications without notice to abridge time and to deal with service issues. The December 12, 2012 application resulted in the Court ordering Z. to be placed in the interim care of Ms. J. and Mr. S. to receive parenting time. The case was adjourned originally to January 4, 2013, but ultimately the interim application was heard before Dufour J. on January 25, 2013. large amount of conflicting affidavit material was filed. Justice Dufour decided that because of the conflicting evidence he would direct the parties proceed to an expedited pre-trial conference. In the meantime, the Court directed that the parents would have Z. on shared week-on/week-off basis. Justice Dufour ordered that Mr. S.’s mother be present during overnight access. [5] pre-trial conference was held on April 29, 2013 which resulted in provisional agreement to essentially tide things over until trial could be held. This interim agreement provided: Z.’s primary residence would be with Ms. J. and Z. would be in her care for period of nine overnights. Z. would be in the care of Mr. S. for period of five overnights (Tuesday to Sunday) when Mr. S. had his children T. and S. (children from previous relationship) in his care. Psychological counselling was to be undertaken by both parties with the duration of the treatment to be determined by the psychologist. Ms. J. agreed not to request child support from Mr. S. during the six months of the agreement. Exchange protocol and supervised overnight access would remain as per the interim orders. The agreement would remain in effect for six months. [6] The case was to proceed to trial. In the meantime, the parties appeared to have continued to follow the combination of interim orders granted and the minutes of settlement. The trial was commenced on March 16, 2015 and was completed on March 27, 2015. On the last day of the trial (March 27, 2015) Mr. S.’s counsel advised the Court his client was abandoning his claim for spousal support. However, would not have found he was entitled to such support in any event (based on the short duration of this relationship and his income) and will formally dismiss that claim for spousal support. III Evidence on Behalf of the Petitioner, M.D.J., regarding parenting, child support and common-law relationship Evidence of the Petitioner, M.D.J. [7] Ms. J. is 37 years of age. She lives in her home in Warman and is successful real estate agent. She met Mr. S. at the end of August 2009. At that time she was ending relationship. She had no children. [8] Ms. J. and Mr. S. had an instant attraction and started dating, and by October of 2009 she was pregnant. She testified that she did not want to get pregnant and had not made any plans with Mr. S. to get pregnant. In November 2009 Mr. S. moved into her home. According to Ms. J., he had virtually nothing. Mr. S. told her that he was going through divorce with “Lisa”, and that he had two young children (T. and S.) from previous relationship. Ms. J. was willing to let Mr. S. have T. and S. stay at her house while he had parenting time. Mr. S. spoke very negatively about T. and S.’s mother, P.B. [9] Christmas 2009 arrived. Mr. S. tried to give Ms. J. ring. She rejected it because she did not wish to be married. The parties decided to drive (in Ms. J.’s car) to see her parents for part of the Christmas holidays. Her parents live on farm about one hour outside of Winnipeg. Mr. S. brought his two young children, T. and S., with them. Unfortunately, while they were staying at her parents’ place, Mr. S. got drunk. Ms. J. testified he became extremely agitated when she told him she would like to have friend attend during her delivery. According to Ms. J., he became verbally abusive, calling her terrible names in front of her family. She says that he then stated he was packing up and leaving on foot with his two children to walk to Winnipeg. It was nighttime and winter. Ms. J.’s father, H.J., intervened. Ms. J.’s sister M.E.J.J. offered to drive Mr. S. and his two children to motel in Winnipeg. Ultimately Mr. S. agreed to this. M.E.J.J. drove them to Winnipeg. After 16‑hour bus drive back to Saskatoon, Mr. S. went to live at his mother’s residence. Ms. J.’s father encouraged her to end the relationship. [10] However, by January 20, 2010 the parties had reconciled, and Mr. S. was once again living in Ms. J.’s house in Warman. [11] Z. was born in June 2010. Her evidence indicates it was happy time. birth announcement was circulated. The baby was baptized in the Catholic faith. [12] Ms. J. testified that Z. became her priority. She adjusted her previous busy real estate career to level that accommodated Z. first and her career second. She took time off from work, and when she returned she was able to work at home for the most part. Her major client is developer in Warman, and she was able to balance looking after Z. and her career because of the good fortune of having this association with the developer. [13] Ms. J. testified that Mr. S. was not working because of workplace injury when she met him. This continued throughout the relationship. He was receiving Worker’s Compensation benefits [WCB] and top-up from SaskTel. She said he was in constant pain. It appears his neck was permanently injured. Ms. J. said that during her pregnancy and after the birth of Z. and right up to their separation, Mr. S. was constantly using pain medication. She said these medications and his pain caused him to nap lot and take it easy most of the day. According to her, Z.’s care fell almost exclusively to herself. [14] Things progressed in this manner with Ms. J. primarily caring for Z. and Mr. S. on disability and essentially being lethargic throughout much of the day. However, on occasion he appears to have undertaken number of under-the-table jobs for friends doing odd jobs and furnace and plumbing work. She noted he did some minor renovations in the house. She testified that he was quite moody and became irritated quickly when caring for T. and S. and at times Z. Ms. J. said he spent lot of time at his mother, M.S.’s, house in Saskatoon. [15] The couple had circle of friends. People came over for barbeques. They went out to friends’ homes. [16] Ms. J. broached the subject of cohabitation agreement with Mr. S. This appears to have become topic in 2010. She went as far as to get lawyer to draft an agreement. Mr. S. took the draft to his lawyer. However, he refused to sign it. Ms. J. says he became angry when she brought it up, and she finally gave up. [17] There was flare-up on Halloween night in 2010. The couple went to party. Arrangements were made to have Mr. S.’s mother babysit Z. Ms. J. testified she was simply enjoying herself at the party when Mr. S. suddenly became jealous. He left and went back to his mother’s. She and friend followed. confrontation erupted at the mother’s. Mr. S. would not let Ms. J. take Z. back to her house. The police attended. Ms. J. left without Z. The next day the couple reconciled, and Mr. S. again returned along with Z. to Ms. J.’s home in Warman. [18] Life went on. It appears Mr. S. provided some money to Ms. J. by way of what the parties referred to as rent. He was to pay $600. This was infrequently paid. Ms. J. noted that Mr. S. continued to be moody and impatient, especially when T. and S. came to visit. She became concerned about Mr. S.’s use of foul language, and he seemed to have no filter about crude comments. She became concerned because this was going on in front of Z. Ms. J. testified that Mr. S. was stressed out over money, his lingering divorce issues with Lisa, and his rather nasty parenting issues regarding T. and S. with their mother, P.B. Ms. J. noted high level of hostility exhibited by Mr. S. towards P.B.; hostility that he made no attempt to shelter his young children T. and S. from or for that matter Z. In order to deal with this, Mr. S. arbitrarily reduced his parenting time with T. and S. to every other weekend from an existing more lengthy parenting schedule. Ms. J. noted this did result in less stress for Mr. S. [19] According to Ms. J., she continued to be primarily responsible for Z.’s care and more so after Mr. S. had neck surgery. Additionally she testified she assumed most of the care for T. and S. when they came over. She noted Mr. S. found discipline issues difficult. Mr. S. seemed to get frustrated and angry easily. According to Ms. J., he never did any homework with his two children. She noticed Mr. S. developed quick temper with Z. [20] Ms. J. testified that the parties separated on November 28, 2012. On that evening they had arranged with Mr. S.’s mother to babysit Z. while they and group of friends went to rock concert. Mr. S. was the designated driver (of Ms. J.’s car). According to Ms. J., Mr. S. became jealous at the concert. He blew up, started yelling at her and calling her names in front of their friends and in the general public. She became frightened. He left the concert and drove to his mother’s home in her car. She decided that based on the last episode (Halloween 2010) there would be no point in having another confrontation at his mother’s residence, so she decided to go home and deal with Mr. S. the next morning. This time she decided that she needed to end their relationship. [21] Ms. J. testified that she telephoned Mr. S. the next morning principally to try and get Z. Mr. S. refused. The parties then resorted to communicating exclusively via text messages. Exhibit P-95 sets out the exchange. It starts on November 29, 2012 at 12:48 p.m. and ends December 8, 2012 at 6:42 p.m. find that this is important evidence, and set it out as follows (note: A. refers to their pet dog): Nov 29, 2012, 12:48 PM [Mr. S.] [Ms. J.] Can phone you? Not right now call me when you can Is it urgent? Not urgent How’s z. doing? I’d like to see him soon. Ur kidding me right Why would be kidding I’ll call you later Can you get some of my things and Z.’s things together for tonight please Yes can. can bring in your things. Ill put your pills in there too. do want to see him today. Z.’s stuff too Ok? Ya ill have stuff for Z. too Ya ok Not till about 8;30 Can see him when drop stuff off? Thanks Nov 29, 2012, 6:24 PM Can you bring the computer? Yes will bring it can come sooner to drop stuff off and see You can take A. home Ok thanks Do not come here Don’t text or call until after the weekend, you can see him then You changed the locks and couldn’t even tell me, nice work So you locked Z. and out of the house! Wow Nov 30, 2012, 6:57 PM think you should pop by tommorow and see the kids. Think about it if you want and let me know tommorow k? Dec 1, 2012, 7:55 PM If you wanna pop by tomorrow ,give me heads up. Dec 2, 2012, 5:32 PM Guess you’re not wanting to see the kids, give me text or call when you’d like to see them. Dec 4, 2012, 12:15 PM You have had Z. for while can come pick him up for couple of days. Dec 4, 2012, 3:09 PM You asked me not to call you or text you until after the weekend. would appreciate response. texted you during the weekend to come see the kids and you know it You said visit the kids. want to see Z. and you wanted time with him. Until this is figured out why won’t you share him and let me take him for few days. If you would like to see him, we can arrange time here at moms for now. don’t just want to see him want to have him with me for few days. You wanted him with you and respected that you said until Monday. can pick him up from your moms please. know you were upset and was giving you time. Given your state of mind think it would be best If you came to see him here. There is nothing wrong with my state of mind. I’m just concerned that you are holding him from me and don’t want to get you mad. Given the situation don’t think the tension between us is good for Z. to be around and it’s best if we spend time with him separately. Let me know time if you’d like to see him. can come pick him up from your moms for few days. can come anytime today to pick him up. How about pm? Dec 5, 2012, 1:54 PM We need our things put together and sent over before anything else occurs .We have been locked out. Dec 7, 2012, 9:52 AM C. can’t believe you are keeping Z. from me. had Amd. drop off your things like you asked. have not seen him for days. Your not looking out for Z.’s best interest. When can come see him. want our things like asked,let me know when our things are coming.thanx Why would you hold Z. from me until you get all you things. All your personal effects are there have done everything you asked. would never have done this to you. Please let me see him. No you haven’t,u gave me some of my clothes Now that you’ve started court proceeding, you can speak through my lawyer Fine who is your lawyer? How does this benefit Z.? How does locking us out help him? Who is your lawyer? Tell you Monday have right to see Z. before then. You said you were getting lawyer this past Monday Dec 7, 2012, 5:08 PM Can you please call me and let me speak to Z. on the phone Dec 8, 2012, 4:02 PM You could call later, but Z. does not want to speak with you.We do need our things What day do you plan to get it to us? You were supposed to take A. twice now and haven’t either. do want to speak with Z. does 6:00 tonight work for me to call? Can you please ensure that Z. is available at that time to talk with me. If this time does not work what time this evening would? When are you getting A. and when is our stuff coming? I’m asking about talking with Z. that is my concern right now. Amd. was supposed to get A. both times Nd she didn’t. told her to pick him up as you asked. Take some responsibility,stop blaming others.When? When can talk with Z. please? Answer my question will have A. picked up later this upcoming week. have dropped off nearly all your personal items and am working on having your other things packed up. will drop them off as soon as possible this upcoming week. Neither of these issues have anything to do with me seeing or speaking with Z. Does pm tonight work for me to call and talk with him or what other time this evening does? You brought some of my clothes, none of my papers,cell phone,passport, and other things.A. can get dropped off tommorow ,what time? Dec 8, 2012, 6:42 PM My lawyer said she will have your personal papers, passport, etc couriered to your lawyers office on Monday once you provide the name of your lawyer. What time is good for me to call to talk to Z. tonight please? ve asked numerous times for my things,you haven’t made an attempt. Is your lawyer picking A. up tommorow You said you were calling at 6,Z. is nappin right now Call in the am,@. 10:30 is good asked you if could call at and you never responded. will call him at 10:30 in the morning tomorrow will call your moms home number. will let you know tonight who will pick up A. tomorrow. What is good time? You can pick A. up at noon would like my phone tommorow when that person picks up A. at 12 noon Call at pm tommorow ,we have breakfast plans We will be at moms by Can come to your moms at tomorrow. will pick up the dog and then can see Z. at the same time. Not until see my lawyer.i want my things tommorow please, they aren’t big items can come pick him up from your moms for few days. can come anytime today to pick him up. How about pm? Let me know time if you’d like to see him. just did will come at then to pick him up. No you won’t pick him up, you may visit him And tonite does not work,tommorow at for visit here is fine [22] Ms. J. testified the parties have not spoken since. All communication goes through their lawyers. [23] Ms. J. stated that immediately after November 28, 2012 she changed the locks on her house and installed video surveillance cameras. She expressed fear of Mr. S. [24] Ms. J. testified that Mr. S. kept Z. (who was about years of age) for almost two weeks. She testified that when she was reunited with Z. he was very emotional, grabbing her and hugging her. She stated he would not leave her side. In short, she testified the child clearly missed her greatly and was overjoyed to see her. [25] Ms. J. testified that the parties followed Justice Wilkinson’s order of December 12, 2012. On February 7, 2013 Justice Dufour ordered interim shared custody. Ms. J. stated that following the week-on/week-off regime she noticed that Z. started to say disturbing things upon his return from his father. According to Ms. J., such comments, although seemingly diminishing now, continue to degree. find that her counsel has accurately summarized these verbalizations in the petitioner’s trial brief (pps 16-18), and for convenience repeat the same here: “Know what? When was baby daddy took me from you? He said you were bad mommy and he will protect me.” “You like baba but you don’t like daddy.” “Daddy said that T., S. and him all lived in this house with us. We were family.” “We used to be family but mommy doesn’t love us anymore.” “Know what mommy? Daddy doesn’t work cause he got cut with knife in his throat so now he just eats his pills.” “Daddy said you’re witch.” “Daddy says Mommy is mean.” “Daddy says you stole all his money.” “Daddy says Mommy stole his motor home that’s why we can’t go camping.” “Daddy says he’s not allowed to go to football games so shouldn’t go.” “Daddy says we aren’t going to have stuff. Daddy hired lawyer guy and he going to take all your things and all your money mommy.” “Daddy said he would take me skating but you stole my skates so he can’t.” “Daddy says we don’t have lots of things cause you stole everything from daddy.” “Why is your face going to bleed? Dad says when he cuts it your face it will bleed.” “Daddy says die bitch die.” “Daddy doesn’t like you.” “Mommy are you going to be an angel when you die? (The Petitioner responded with “I’m not going to die”.) “Yes daddy said he is going to kill you and I’m going to live with him and you will be dead.” “Aunty L. is bad. Daddy doesn’t like her.” “I don’t like Aunty L.” “When was baby Aunty L. had dog and it but [sic] me in the face was bleeding lots.” “I’m scared to go to Jamaica.” “I won’t go in ocean shark might eat me.” “The house is haunted daddy said there are ghosts here they are going to get me.” “Daddy says there are bad people in Warman.” “Daddy says this is where bad people live.” “Daddy doesn’t like R. he is mean guy and he doesn’t like me.” “Daddy said R. likes you not me.” “Daddy said we can be family but you like R. not him.” “I’m going to St. Paul’s school cause Warman school is stupid.” “Daddy said kids at Warman school are stupid.” “I don’t like activities.” “Mommy why did you dress me like girl. Daddy said you wanted girl so you dressed me like girl.” “Daddy doesn’t like P.” “Daddy said that Mommy kicked us out of the house.” “Daddy said that Mommy doesn’t love me or daddy.” “I don’t like L. he is bad kid” (This is D. and R.’s child and Z.’s good friend) “I don’t like O. Daddy says he doesn’t like O.” (J. and Amd.’s girl) “I don’t want to go to Manitoba.” “I’m going to have Christmas with daddy won’t be with you I’m going to be with him you will be all by yourself (since the summer up till Christmas 2014)” “Daddy can’t have birthday for me because you don’t let him.” “Daddy says you don’t love me.” “Daddy says he is going to take the hot tub and we have it at babas.” “Daddy is building us house for daddy T. me and S. and then won’t live with you anymore.” “I need to stay at daddy’s cause if don’t daddy is sad.” “Daddy and baba cry if come home to you mommy.” “Mommy are you strong enough to open the door? I’m scared to get locked in and can’t get out.” “Daddy said should wish for my mommy and daddy to be together when make wish.” “I don’t want to go in hot tub daddy doesn’t have hot tub.” “Daddy only has me days that’s not fair to daddy he needs more days it’s not fair.” “Daddy said shouldn’t play with R.” “Daddy says R. bad guy.” “It’s not fair daddy doesn’t have pool.” “I have cut now can’t go swimming daddy said no going in the pool.” “Know what mommy fell off the bunk bed daddy said not to tell you.” don’t want to go to Ak. and Ai.’s Daddy says they are bad.” “I don’t like taekwondo.” “Daddy has no money because of you.” “See this area daddy said when we were family you walked with me and seen bunny here that’s before you kicked us out.” [26] After their separation, Ms. J. became good friends with T. and S.’s mother, P.B. P.B. actually works with Ms. J. and lives in Warman. As result of this friendship, T. and S., along with their older sibling K., and P.B. are often guests at Ms. J.’s house. This allows Z. to have relationship with his two siblings while he is in Ms. J.’s care. Ms. J. states that she has good relationship with T. and S. [27] Ms. J. provided evidence that she has been responsible for registering Z. in preschool in Warman, sporting activities and playdates. She testified that she arranges the activities so that they are scheduled on days that do not conflict with Mr. S.’s time with Z. She reads with him in the evening. In short, she has been very active and involved parent. large number of photographs were entered into evidence depicting the child’s activities, her house, school projects, etc. Ms. J. carefully narrated the book of photographs for the benefit of the Court. She set out in detail his life with her, including Z.’s relationship with her new partner R. She depicts her house and community as comfortable and familiar to Z. The school is close at hand. She has made all the dental and public health immunization visits. The child has had extensive dental care that she has paid for. Ms. J. testified that she makes all such appointments on her time to avoid conflict with Mr. S. [28] Ms. J. describes Z. as an active, athletic, intelligent child who does well with other children. Ms. J. says he likes school. However, she expressed concern that Z. needs several days to readjust after returning from his visits with his father. Apparently Z. reeks of tobacco smoke and needs bath to remove the odour and his clothes must be laundered. He is still clingy upon his return from his father’s. Sometimes Z. expresses dislike for what are his favourite activities upon his return. Ms. J. expresses concern over this. [29] Z. was enrolled in two preschools, one at Warman and also one in Saskatoon that Mr. S. arranged for. It seems that Mr. S. insisted on the Saskatoon preschool and would not drive Z. to the Warman preschool. Ms. J. exhibited series of school-based artwork and crafts. Z. references his love for his mother in his drawings. Nothing is mentioned about his father in the artwork. [30] Ms. J. testified that she has enrolled Z. in kindergarten at the Warman school for this fall. These are full days (yet to be determined by the school), but will be either: Wednesday Every other Friday Thursday Every other Friday [31] Ms. J. testified that when she found out that Z. had been registered at preschool in Saskatoon by Mr. S. she called the school to introduce herself. She was advised by the school representative that the school had no record of mother or contact information. She testified that she had good conversation with the school representative, told her about Z.’s enrollment at the Warman preschool and invited the school to contact the Warman preschool if they wished to. [32] Ms. J. testified that whether it was Justice Wilkinson’s order, Justice Dufour’s order or the parenting agreed to at the pre-trial conference, she has done all of the driving for the exchanges. She notes that on one occasion because of delayed flight she could not pick Z. up at the agreed upon time from Mr. S.’s mother’s residence. She tried to have trusted adult that Mr. S. was quite familiar with pick up Z. Mr. S. refused and kept Z. overnight until Ms. J. could pick him up the next day. [33] Ms. J. stated that when she and her partner, R., and Z. wanted to go on holiday she needed Mr. S.’s cooperation to obtain passport for Z. He was uncooperative. She had to start court application, and ultimately Mr. S. agreed. She testified that despite the agreement at the pre-trial conference, psychological counselling never did take place. Ms. J. states her lawyer attempted to arrange for the psychological help, but Mr. S. essentially thwarted the process. Further, Ms. J. testified that it took lot of time and many lawyer letters to get Mr. S. to make arrangements to receive his and his children’s personal effects out of her home. She expressed considerable frustration at the difficulties involved with Mr. S. to resolve even the most mundane of family law issues. [34] She testified that Z. continues to be anxious as the exchange time approaches. [35] Ms. J. proposed sole custody and supervised access (i.e. Mr. S.’s mother to be present for overnight visits) of every other weekend, exchanges to take place at his mother’s residence without Mr. S. being present and the sharing of all school-based holidays and time in the summer. [36] Ms. J. was cross-examined. She denied that there was any discussion between Mr. S. and herself when they first started dating to determine her ovulation cycles for the purpose of her getting pregnant. She stated she had not even had “cycle” when she discovered she was pregnant in the first part of October 2009. [37] During cross-examination Ms. J. agreed: She bought Mr. S. presents. They shared the same bed and ate meals together. They jointly sent out Z.’s birth announcement (featuring picture of all three). She participated with Mr. S. in Z.’s baptism and agreed to raise Z. as Catholic. She allowed Mr. S.’s child S. to call her “mom”. She called Mr. S.’s mother “baba” and sent her Mother’s Day card. She visited Mr. S.’s father in nursing home. She and Mr. S. regularly attended family functions as couple. She and Mr. S. regularly visited and entertained friends as couple. Mr. S. did some of the cooking. Mr. S. and herself sometimes would go shopping together. No one asked for any reimbursement for the payment of groceries. When Z. was born, T. and S. thought of Z. (and were encouraged to do so) as their brother. Her 2009, 2010 and 2011 T1 general tax returns identified her relationship with Mr. S. as common-law. Mr. S. helped her with her rental properties. Through WCB Mr. S. arranged for housecleaning of the residence. She went with Mr. S. to WCB and medical appointments. The told each other on regular basis that “I love you”. They went along with Z. on Mexican holiday. They were faithful to each other. [38] Ms. J. was cross-examined regarding her work hours. Ms. J. calculated that at present she is working about 14 to 20 hours per week. Of that she said she was out of the house approximately seven hours per week. [39] Mr. H. is Z.’s taekwondo instructor. He testified Z. is nice boy who enjoys taekwondo. Ms. J. and her partner attend at the activity regularly. [40] M.E.J.J. is the adult sister (and only sibling) of Ms. J. She testified about the Christmas 2009 visit at her parents’ farm by Ms. J. and Mr. S. and his young children T. and S. She described Mr. S. getting drunk and then losing his temper with Ms. J. This was in front of her father and mother and herself. Mr. S. was screaming at Ms. J. and calling her very vulgar names. He said he was packing up and heading out on foot with his two small children in the dead of winter night for Winnipeg. His children became upset and were crying. She told him that she would drive him and his children to motel in Winnipeg. On the way there she attempted to soothe the two children. Mr. S. seemed to be oblivious to the children’s plight. Overall she was shocked by Mr. S.’s conduct. [41] M.E.J.J. testified that when she saw the parties’ parenting before the separation it was mostly her sister who attended to Z. Mr. S. seemed to be in constant pain. She noted Mr. S. swore lot and at times made lewd comments in front of Z. [42] M.E.J.J. described Ms. J. as being very active, nurturing and loving mother. [43] H.J. is the father of Ms. J. He testified about the Christmas 2009 visit which was the second time he had seen Mr. S. H.J. confirmed that Mr. S. ended up getting drunk. He said that Mr. S. was angry and directed very insulting and vulgar language towards his daughter. He was shocked and disturbed by this behaviour. He confirmed that Mr. S. said he was leaving with his two children on foot. He confirmed that his daughter M.E.J.J. drove Mr. S. and T. and S. to Winnipeg. He noted his daughter Ms. J. was very upset. He advised her to leave Mr. S. [44] H.J. and his wife visited the parties after the birth of Z. They continued to see Ms. J. and Z. at this time. He described his daughter as the main parent and good mother. He noted that Mr. S. had limited role in the parenting of Z. while the couple were together. H.J. testified that Mr. S. seemed to be in pain and took lot of painkillers. H.J. noted that Mr. S. used vulgar language around Z. [45] Mr. B. is the owner of the real estate business that Ms. J. works at. He describes how Ms. J. has been able to balance her work life and looking after Z. His business supports family values and the need to balance work with family. [46] R. is Ms. J.’s partner, and they have been residing together since August 2012. He is divorced but maintains cordial relationship with his previous spouse. R. has two teenage daughters that he sees through regular access. The two daughters enjoy Z. and have positive relationship with the child. [47] R. described Ms. J.’s parenting. He says she is concerned and attentive mother providing Z. with love and encouragement. As couple they do many things with Z. Overall he describes Z. as nice child. However, he has noticed that Z. says odd things such as that his dad has said there were ghosts in their house. This makes Z. afraid of the dark. He confirms hearing many of the disturbing utterances set out above. [48] R. noticed Z. is withdrawn for few days after seeing Mr. S. It takes time for the child to return to his usual outgoing self. He says that the child smells of cigarette smoke and cologne when he returns. [49] R. confirmed that Ms. J. has been able to maintain good balance between work and parenting Z. He testified she primarily works at home or in Warman. [50] Ms. P. is long-time friend of Ms. J. and has visited her on many occasions, both before and after separation. These are fairly lengthy visits of two or three weeks. She testified that Ms. J. is good parent. [51] Ms. P. noted that Mr. S. slept lot, waking around 11:00 a.m. He would take his pills, have lunch and then take nap. Mr. S. would then wake up for supper. He appeared to be in lot of pain. Ms. P. testified Mr. S. swore lot around not only his but also her young children. She testified that Mr. S. would get frustrated easily and yell at Z. [52] She testified to hearing Mr. S. openly insult T. and S.’s mother (P.B.) in front of them. [53] Throughout the pre-separation contact she had with the parties she said Ms. J. was the primary parent. Since the separation she has noticed positive change in Z. The child seems better adjusted and has fewer tantrums. [54] Ms. W. is friend of Ms. J., having known her for about nine years. She testified that after Z.’s birth she saw Ms. J. about once month. Ms. W. testified that Ms. J. did the actual parenting of Z., and Mr. S. seemed to only play with him. She testified that Mr. S. would say negative things about T. and S.’s mother (P.B.) in front of them. [55] Ms. W. testified that since the separation it seems Z. has started to behave better. She confirmed hearing Z. say some of the disturbing things related above upon his return from Mr. S. However, her evidence was that Z. was not saying these things as much now. Her thoughts were that as Z. was getting older his behaviour was getting better. [56] She testified that Ms. J. is good mother, and Z. gets along very well with Ms. J.’s partner, R. Ms. W. noted that Ms. J. seems to be able to balance her work and parenting of Z. [57] Mr. P. is the husband of Ms. P. He confirmed that when they visited before the separation Ms. J. was mostly responsible for Z.’s care. He also testified that Mr. S. got up late and napped lot. He supports Ms. J. as good parent. In cross-examination he agreed that he had no concerns about Mr. S. babysitting their young children from time to time when they visited. [58] Ms. C. is long-time friend of Ms. J. and Z.’s godmother. She testified that after Z.’s birth Ms. J. did most of the parenting. She noted Mr. S. slept lot. [59] After the separation Ms. C. has noted that Z. says disturbing things upon his return from his father (such as “mom’s witch” “mommy bad”) and confirms some of what Ms. J. has said up above in this regard. Ms. C. was disheartened by these utterances. She also noted Z. smells of smoke and cologne upon his return. She testified that even as recent as month ago Z. still was saying, “Daddy says there are ghosts in the house”. [60] Ms. C. is fellow real estate agent. She testified that Ms. J. has been able to balance successful real estate career and still prioritize parenting. She testified that for the most part Ms. J. is at home with Z. [61] Ms. C. describes Ms. J. as very involved, loving and caring parent. Ms. J. and Z. do crafts, colouring and other creative activities. She describes Z. as well-rounded little boy, smart and intuitive and generally well behaved. She notes that R. has good relationship with Z. [62] P.B. is the former partner of Mr. S. and mother of T. (age 11) and S. (age 9). She has an older son K. (age 13) from previous relationship. P.B. is real estate agent who not only is Ms. J.’s friend, but also co-worker. She and her children live in Warman. [63] P.B. testified that she and Mr. S. started dating in 2002. At that time Mr. S. was in the process of divorcing his wife “Erin”. P.B. and Mr. S. ended up living together, having T. and S. and then separating in 2005. [64] P.B. said they separated when she was pregnant with her daughter S. At that time she believed Mr. S. was dating “Wendy”. However, sometime after this Mr. S. married “Lisa”. According to P.B. this relationship lasted with Lisa about years. She notes his next relationship was with Ms. J. [65] P.B. testified Mr. S. verbally and physically abused her. She described her property being destroyed or being damaged by him. She stated that she had to seek medical care for injuries caused by his physical violence. She outlined list of problems she has experienced with Mr. S. These range from child support issues to trying to serve him with court papers to his unwillingness to cooperate in any meaningful manner with the parenting of T. and S. She pointed out that she diligently provides him with schedules of their activities, which he ignores. This ends up upsetting the children. She exhibited series of text messages (P-86) verifying her attempts to communicate these schedules to Mr. S. She testified that she has to proceed through the courts to get anything done. He has resorted to what she testified to be false accusations by reporting her to the police and social services regarding her care of T. and S. These complaints have been investigated, but were found to be groundless. She described the last eight years or so as “living hell”. P.B. indicates that the exchanges with Mr. S. regarding T. and S. do not go well. These exchanges take place at McDonald’s restaurant parking lot. On one occasion she tried to serve him with court documents, and he was difficult. [66] P.B. testified that her motivation in testifying on behalf of Ms. J. was to try and save Z. from what she perceives to be the considerable damage done to T. and S. by Mr. S.’s conduct. She notes that Z. has high anxiety, similar to her own children. She testified that the source of this anxiety appears to be Mr. S. [67] P.B. testified that Ms. J. has opened her house to not only herself but all three of her children. She testified that her children K. and T. and S. like Ms. J. [68] She describes Ms. J. as loving and attentive mother to Z. IV Evidence on Behalf of the Respondent, C.W.S., Regarding Parenting, Child Support and Common-Law Relationship [69] Mr. S. has training in sheet metal work and furnaces and air conditioning. He hurt his back in 2008 at work. He applied for and received benefits from WCB. Mr. S. received surgery for his injury. He then obtained employment at SaskTel doing lighter work. Mr. S. testified that he had another work-related accident, apparently shortly after starting at SaskTel. He stated he re-injured his back. Mr. S. is now not working and is receiving WCB and what he describes as top-up from SaskTel. He received further surgery on his neck while living with Ms. J. Mr. S. has been off work since his SaskTel injury. [70] Mr. S. testified that he met Ms. J. in August 2009, and they started seeing each other immediately. Ms. J. told him she was just getting out of relationship. He stated that they started talking about having children. Mr. S. advised her that he had two children (T. and S.). He testified that they talked about marriage but acknowledged both did not want to get married at that time because of their past relationship issues. [71] Mr. S. testified that Ms. J. and he started consulting an ovulation chart within the first 30 days of their relationship. [72] Mr. S. stated that within week of knowing each other they were staying together at Ms. C.’s residence while Ms. J.’s ex-boyfriend moved his things out of her house. He testified that by the end of September 2009 he had started to move his things into Ms. J.’s home in Warman. Ms. J. announced her pregnancy in October 2009. [73] Mr. S. testified he offered Ms. J. ring at Christmas in 2009, but claims that it was misconstrued. He said there was no talk of marriage. [74] He related the Christmas visit to Ms. J.’s parents’ home in Manitoba. Mr. S. initially denied drinking. Mr. S. acknowledged that there was an argument over the selection of the name of their unborn baby and having Ms. C. participate in the delivery room. He testified that he was deeply hurt by this and started crying. He denied saying he was going to walk to Winnipeg. Mr. S. then acknowledged having couple of drinks that evening. Mr. S. said Ms. J.’s sister, M.E.J.J., offered to give him ride. He denies his children T. and S. were upset. He testified M.E.J.J. did give him and his children ride to hotel in Winnipeg, and they took bus to Saskatoon the next day. He said because his back was sore from the bus ride he stayed at his mother’s house for few days. He and Ms. J. reconciled, and he moved back into her home. [75] Mr. S. testified that he did everything he possibly could to help Ms. J. during her pregnancy and was with her in the delivery room. [76] He emphasized the importance of raising Z. as Catholic. [77] He stated that after Z.’s birth he shared in the child care duties and denied sleeping late or lot. He said he woke in the middle of the night to feed what he described as heated-up mother’s milk to Z. [78] Mr. S. said that after the first six months Ms. J. went back to work, and it fell to him to do most of the care. He said he sometimes went to see his mother with Z., but not very much. Mr. S. noted that Ms. J. seemed to be working full time. He often made the breakfast and lunch for Ms. J. and himself. He testified that since Ms. J. was not around much, he did most of the domestic chores, including doing lot of the laundry. He also did renovations to the house. [79] Mr. S. testified about the Halloween party of 2010. He said Z. was not feeling well that day. Z. was left at Mr. S.’s mother’s house so that she could babysit. Mr. S. said he did not drink that evening, but Ms. J. ended up getting drunk. Mr. S. testified that Ms. J. was ignoring him at the house party they were attending. He stated he called back several times to his mother’s place during the evening to check on Z. He claimed his mother said that the child was not doing well and they should come home. He testified he told Ms. J. about this and urged her to come with him. According to his testimony she refused. He left the party and went to his mother’s residence. Mr. S. then called the police. This appears to have been prior to Ms. J. arriving. [80] Mr. S. testified that Ms. J. and her friend Ms. C. arrived at his mother’s residence sometime later. He refused to let her take Z. because of her condition. She returned the next day and according to Mr. S. apologized. He stated again in his testimony that she had been ignoring him at the party, and this bothered him. [81] He testified that he had neck surgery on February 18, 2010. This surgery did not end his pain. Mr. S. testified that he takes two types of hydromorphone one slow release and the other as needed. He also takes Effexor. He describes his medical condition as chronic pain requiring pain management. Mr. S. says the hydromorphone relieves his pain and makes him “mellow”. The Effexor is taken to calm him down. As part of all of this he has decided to stop drinking alcohol. [82] Mr. S. testified about Christmases in 2010 and 2011 where they had family get-togethers. He testified briefly about birthday parties for Z. [83] Mr. S. recounted being approached by Ms. J. to sign cohabitation agreement. He testified he was shocked she would consider such thing. He refused to sign it. [84] He testified that for brief time WCB (from October 2012 to November 2012) indicated his benefits might be stopped. Mr. S. stated Ms. J. expressed concern about this and according to his testimony then suggested that their relationship would not work out anymore. He stated at this time his pain was bad and yet he had to continue to care for Z. because Ms. J. was out lot. He admitted sometimes it was overwhelming because he not only had to care for Z. but also T. and S. when they stayed with him. His testimony seemed to be that things leading up to November 28, 2012 were difficult. [85] Mr. S. described the night of the rock concert on November 28, 2012. He described Ms. J. as being disinterested in himself. He was not drinking on that occasion. Mr. S. drove Ms. J. in her car, along with group of friends, to the concert. He tried to hold her hand at the concert. She refused. This “blew his mind”. He claims he caught her flirting. Mr. S. testified that all of Ms. J.’s friends were trying to push drinks on him, and he thought that something was going on. [86] He testified that he saw R. at the concert and thought something might be going on between R. and Ms. J. Mr. S. testified he announced that he was leaving the concert claiming that he was “done with this”. He states Ms. J. said she was calling the police for stealing her car. Mr. S. then went to his mother’s place where Z. was being babysat. Mr. S. testified he was crying to his mother and said he could not believe what was going on. [87] Mr. S. testified about the next day. He said he did not want Ms. J. to have Z. because he was concerned about her mental state. Mr. S. said he wanted Ms. J. to come over and talk about things. She refused. However, he denied wanting to keep Z. from Ms. J. [88] Mr. S. testified that after the separation he has supported Z.’s relationship with Ms. J. He told Z. that “mommy loves you” and denied saying any negative things about Ms. J. to Z. He testified that Z. watched the “Wizard of Oz” on TV and noticed the witch had warts. According to Mr. S., Z. then commented that his mommy had warts too. According to Mr. S. this was because Ms. J. has moles. This was Mr. S.’s explanation as to why Z. may have been calling his mother witch. [89] Mr. S. testified that his children T. and S. dislike Ms. J. According to Mr. S. this arose out of Ms. J. withholding some of his children’s personal effects at her house. He further testified that it may be his children T. and S. are the ones telling Z. to say all the negative things about Ms. J. referred to above. [90] Mr. S. then briefly described his post-separation life with Z. He describes getting Z. ready for school and how Z. loves school. The school is Catholic school relatively close to his mother’s residence. He testified that he wants Z. to attend kindergarten there this fall. He expressed concern that there is not Catholic school in Warman. Mr. S. seems opposed to driving Z. from M.S.’s residence to the Warman school, which would take about 15 minutes. He expressed that doing so would be difficult because it would interfere with his need to drive T. and S. to their school. [91] Mr. S. testified that 50/50 rotation would be best. He denies that this is high-conflict situation. He believes the parties could “make arrangements” for summer access and that the parties should not have to go through lawyers. Mr. S. believes that Ms. J. and he could just work things out themselves. He described his mother’s role as minimal and sees no reason for her supervision. [92] Mr. S. responded to P.B.’s testimony by blaming her and saying she was the aggressor at the exchanges of T. and S. He denies ever being violent to P.B. and testified that it was P.B. that assaulted him. If she was injured it was because she lost her footing and fell down. He claimed he was frightened of her because she threatened to put him in jail. [93] Mr. S. testified that he has never said anything negative about P.B. in front of his children. [94] Mr. S. testified that P.B. does not communicate T. and S.’s extra-curricular activity schedule or if she does it is at the last moment so he cannot participate. [95] Mr. S. denies high conflict with P.B. at present and said he would do anything he could to cooperate with her. [96] Mr. S. admitted that he had dated “Charlene” before he moved in with P.B. He testified that Charlene attacked him, and he pushed her away and she fell through window. The police attended. He admitted to being placed on an anger management course as result. [97] Mr. S. testified to some confusion regarding another lady that involved his using her PIN number and account. He stated it was alleged that he took money. Mr. S. testified that “they” made him pay the lady back $1,000. [98] Mr. S. acknowledged that the parties had agreed to psychological counselling. He says that he went with his children to counselling. He testified that he continues to receive counselling. Mr. S. denies any confusion over the selecting or use of psychologist. [99] He testified that he unilaterally reduced his time with T. and S. because of having to drive them from Warman to their school in Saskatoon and his other duties at the Warman household. [100] Mr. S. was cross-examined. He was shown the text messages arising out of the post-separation issues in December 2012. Mr. S. offered little explanation as to the texts. [101] Mr. S. admitted that he never disclosed to the family court any of his under-the-table income in the child support proceedings regarding P.B. [102] Mr. S. admitted he has never reported to WCB or the Canada Revenue Agency [CRA] his under-the-table earnings. [103] Mr. S. admitted to giving false testimony in court during his bankruptcy proceedings in that he provided inaccurate income reporting and property inventory. [104] Mr. S. admitted lying to the sheriff’s office about boat. He said it was Ms. J.’s boat when it was not. This was to avoid seizure by the sheriff of the boat. He admitted that he sold property that should have been given to his ex-wife Lisa to satisfy her judgment against him. [105] Mr. S. was asked about his three Criminal Code convictions for failing to appear in court [Criminal Code, RSC 1985, C-46]. He stated he could not remember what the underlying charges were that led to his three convictions. [106] He denied getting the text messages from P.B. containing the schedules (P-86). Mr. S. testified that he was not allowed to know of or go to S.’s dance classes. [107] Mr. S. confirmed that the source of Z.’s disturbing comments was possibly coming from his children T. and S. [108] In cross-examination he denied that he was being difficult or uncooperative in setting up psychological counselling as required under the minutes of settlement. [109] When Mr. S. was asked during cross-examination about what summer holidays he would like with Z., he declined to comment saying he would need to discuss this with his lawyer first. [110] Mr. Mc. is friend of Mr. S. They used to play in band together. He was at the couple’s home in Warman frequently before their break-up. He noted Mr. S. was an active parent seemingly doing most of the parenting. Mr. Mc. has only seen Mr. S. with Z. “a few times” after the separation. He believes Mr. S. to be good dad. [111] Ms. W. is in relationship with Mr. Mc. Ms. W. has known Mr. S. about six years. When she visited the parties’ residence she believed Mr. S. did most of the parenting of Z. She describes Mr. S. as fun guy with no physical limitations. The times she observed Mr. S. and Z. together were of relatively brief duration. [112] Mr. is long-time friend of Mr. S. Prior to the parties’ separation he was over to the house quite few times for barbeques and get-togethers. Mr. S. seemed to be helping out with Z. After the separation he has noticed that Mr. S. is good parent. He testified Mr. S.’s mother helps out with Z. [113] Mr. R. has been Mr. S.’s friend for 17 years. He spent lot of time at the Warman house because he also was on WCB. Mr. R. testified that Ms. J. was often not there during the day. Mr. S. looked after Z. when Ms. J. returned home from work. After the separation he has seen Mr. S. about once week. He testified that Mr. S. is good dad. [114] Mr. M.B.’s brother lives across the street from Mr. S.’s mother’s house. He goes for coffee with Mr. S. He has seen Mr. S. playing outside with his children. He supports Mr. S. as parent. [115] Mr. A.B. lives across the street from Mr. S.’s mother’s house. Mr. S. is an acquaintance. He sees the children outside. They seem happy. [116] Ms. T. is elderly and appeared over the telephone at the trial. Ms. T. received birth announcement card from the parties. She remembers that Ms. J. had signed the card “from the family”. [117] M.S. is Mr. S.’s mother. She is 72. M.S. ran private daycare in her house for 25 years. M.S. is widow. She has two other adult children, daughter who lives in Saskatoon and son who lives at Blackstrap. She has seven living grandchildren. Her daughter has two adult children, and her son at Blackstrap has two adult children. [118] M.S. testified that Mr. S. lived at home until he was 22 and then moved out. After Mr. S. and P.B. separated, he moved back home. He then met Lisa, got married, and he moved in with Lisa. After they separated he moved back home. He then met Ms. J. in 2009 and moved in with her. Mr. S. then moved back into M.S.’s home after the separation in November 2012. He has lived there ever since. [119] She testified that after Z. was born Mr. S. did most of the child care because he had experience with T. and S. M.S. was called upon to babysit. [120] M.S. stated that the last six months the parties were together they seemed happy. Their separation was shock to her. [121] M.S. described Mr. S.’s role as parent after separation. She testified that he does good job of looking after Z. and T. and S. He attends to meals, baths and getting them ready for school. Mr. S. does not nap. He is attentive. The sleeping arrangements in her house are that Mr. S. and Z. and T. sleep downstairs. Z. has his own bed. S. sleeps in her room upstairs. [122] M.S. testifies that Z. becomes apprehensive when it is time for him to go to see his mother. He wants to stay with his dad. [123] M.S. says that she smokes outside. Mr. S. stopped smoking couple of months ago. She does not know why Z. smells of smoke when he returns to Ms. J.’s. [124] It appears she believes that P.B. and Ms. J. are possibly conspiring together. She claims Mr. S. does not say very much about P.B. M.S. does not see any unhappiness in T. and S. and says their exchanges go well. [125] M.S. is fine with Mr. S. living with her, and she has no plans to move. She testified that she will be leaving the house to Mr. S. in her Will. There appears to be little communication between Mr. S. and his two siblings. [126] M.S. acknowledged that she swore in para. 24 of her affidavit of January 8, 2013 that she never knew Mr. S. to be violent. She agreed during cross-examination that at the time she swore the affidavit she was aware he had been previously ordered to take domestic violence program. She admitted that the paragraph therefore was not true. Analysis and Decision on Parenting, Child Support and Common-Law Relationship Parenting of Z. [127] Section 6(1) of The Children’s Law Act, 1997, provides this Court with the jurisdiction to decide parenting issues. Section of the Act sets out the factors to consider in making custody order. In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. [128] have set out in some detail what believe to be important aspects of the testimony. However, have not catalogued every bit of criticism or praise emanating from opposing witnesses over 10-day family law trial. However, have carefully considered all such evidence, whether specifically set out in my decision or not. [129] Credibility is at issue. will discuss that here. Mr. S. has not impressed me as trustworthy or reliable witness. say this for the following reasons: (i) During the first day of his testimony found that he attempted to give his evidence in an affected manner, often crying and seemingly overly emotional. The Court asked him to moderate this, and he quickly transformed from this type of demeanour to more calm presentation. found this transformation telling. (ii) find Mr. S.’s version of the pregnancy of Ms. J. unbelievable. He claims that even though the couple had just met, they immediately started planning Ms. J.’s pregnancy. His testimony that they consulted ovulation charts seems inexplicable. Not only were they virtually strangers, but the speed in which Ms. J. got pregnant would have rendered such alleged research unnecessary. In addition, they already had complicated lives: Ms. J. was ending relationship and Mr. S. was going through the aftermath of his divorce with Lisa and his ongoing issues with P.B. His version simply does not make sense, and while in the scheme of things it may not matter how Ms. J. got pregnant, have come to the conclusion his story about this affects his credibility nonetheless. (iii) do not accept that the Christmas 2009 ring was merely present. The fact that Ms. J. refused it (which Mr. S. did not contradict) tells the Court that there was greater significance placed on the ring than he testified to. (iv) do not accept Mr. S.’s version of the disastrous 2009 Christmas visit with Ms. J.’s parents in Manitoba. found Ms. J.’s father’s and sister’s testimony persuasive. It was told calmly and in believable fashion. They seem like solid, good people. Beyond that cannot understand why Mr. S. would decide to leave in the middle of winter’s night with his two small children other than he got drunk and started verbally abusing Ms. J. am puzzled why he would try and promote much different story in court. (v) Mr. S. admits to dishonestly not reporting income to WCB or CRA. (vi) Mr. S. admits to having misled the family court regarding his income in previous proceeding involving P.B. and T. and S. (vii) Mr. S. admits to having misled the bankruptcy court regarding income and assets. (viii) Mr. S. admits to having misled the sheriff’s office. (ix) am of the view that Mr. S. was trying to avoid service (or at least purposefully not being cooperative) regarding the original chambers application. do not accept either his evidence or his mother’s that he was just not around. Ms. J. provided evidence of his tendency to avoid service of documents while they were together. Mr. S. was no stranger to the court process when the process server attempted to serve him. At the very least, upon being told by his mother someone wanted to serve him (and of course knowing the controversy over keeping Z.), he should have made himself available. This was not game of hide and seek. The result was an ex parte application for substitutional service. (x) Although not specifically mentioned in my summary of evidence, find his manoeuvering of registrations and ownership of property points to an untrustworthiness and an intention to at the least frustrate, if not deceive, creditors. (xi) Mr. S. was cross-examined about his three previous Criminal Code convictions for failing to appear in court. He stated he could not remember what the underlying criminal charges leading to his fail to attend in court convictions were. find that he was not being forthright in this regard. find it hard to believe he could not remember such significant information. (xii) appreciate that this case is not contest between Mr. S. and P.B. However, cannot overlook Mr. S.’s response in cross-examination that he seemed to have no recollection of the many text messages presented to him arising out of P.B.’s attempts to communicate with him. do not believe him when he says he does not remember getting these text messages. (xiii) find it difficult to accept his explanation that Z. says the disturbing things because possibly T. and S. have encouraged him to do so. The child is reported to having said “daddy says”. That descriptor would not fit in with T. and S. setting the child up. That explanation defies logic and is unbelievable. further find his “mommy is witch” explanation unbelievable. [130] In regards to Ms. J.’s credibility, am prepared to accept her as truthful and reliable witness. note at times she was also emotional, but in the main her demeanour was appropriate. Her evidence did not suffer from any of the concerns set out above concerning Mr. S. Much of what she has testified to has been supported by independent witnesses. [131] In regards to the remaining witnesses (save the deputy sheriff and processor server), it of course would be unusual if litigant called witnesses in family law trial who were not supportive of his or her case. However, was impressed with Ms. J.’s supporters in that they were either close family members, long-time friends who frequented her household and also that of her live-in partner. Mr. S.’s witnesses primarily consisted of friends who he sees from time to time, neighbour from across the street and his mother, M.S. found his mother to be at times evasive and guarded. Her evidence was somewhat more detailed than Mr. S.’s regarding the day-to-day activities in the household, but nonetheless lacking. She was negative towards P.B. and seems to have implied conspiracy of sorts between P.B. and Ms. J. [132] Accordingly am critical of and concerned about Mr. S.’s testimony. Therefore will consider his evidence with caution. Decision on Parenting [133] Ms. J. has requested sole custody and access for Mr. S. to be every other weekend and some division of holidays. Mr. S. wants shared custody on 50/50 weekly rotation. The present arrangement is nine overnights with the mother and five overnights with the father. I will now go through the factors set out in s. 8 of the Act. (i) The Quality of the Relationship that the Child has with the Person who is Seeking Custody and any other Person who may have Close Connection with the Child. [134] was impressed with Ms. J.’s evidence and her supporting witnesses. I find that despite what Mr. S. states, she was the primary parent of Z. since birth and continues to be so. She has provided the Court with great deal of evidence that will not attempt to fully summarize. do note that she has pleasant home that is appointed with age appropriate furnishings and design for Z., including nice bedroom for him. Ms. J. has taken the time to encourage learning outside of school. She provides good nutrition for the child. Ms. J. sets up playdates. Ms. J. has arranged for dental, medical and public health visits. She has enrolled Z. in nearby school. She has age appropriate activities set up for Z. which he enjoys. Ms. J. clearly has prioritized her work life to ensure reasonable balance between work and caring for Z. [135] accept that Ms. J. has tried to encourage good manners and behaviour. She does not swear or act inappropriately around him. It appears she tries to foster sense of respect for others. Admirably she has welcomed T. and S. into her life so that Z. can benefit from having relationship with his siblings. find that T. and S. like Ms. J. do not accept Mr. S.’s testimony that they do not care for her. It appears her new partner is positive influence. [136] am satisfied that there is strong and loving bond between Z. and his mother that is being nurtured on daily basis. [137] On the other hand, Mr. S. presents little information as to what is going on at his mother’s house while Z. is with him. Indeed I learned more (although not much) from his mother’s evidence as to the day-to-day activities. I am left with a degree of uncertainty. Nor do accept that Mr. S. was the primary parent after birth as he has testified. prefer the evidence of Ms. J. and her witnesses that he was sleepy, in pain and generally not doing much. [138] However, do not doubt that Z. loves his father. The evidence seems to be that Z. does not do well during the exchanges not wanting to leave the parent he has just been with. That is, of course, understandable for little boy caught up in tense situation. also accept that Mr. S. loves Z. [139] As stated, have no doubt that both parents love Z. The Act mandates that consider the “quality” of the relationships.  find the evidence satisfies me that the quality of Ms. J.’s relationship with Z. substantially exceeds that of Mr. S.’s relationship with Z. (ii) The Personality, Character and Emotional Needs of the Child [140] Both parents (and other witnesses) describe Z. as an active, bright, lovable little boy. He still has difficulties. S.W. testified that Z. is doing better now than when the weekly rotation was occurring. However, P.B. detects the same anxiousness with Z. that she sees in T. and S. Both parents observe separation anxiety. Ms. J. outlined the disturbing things Z. says upon his return from his father. I accept that the child expresses these words. [141] appreciate taking the child’s second-hand comments as evidence is fraught with problems. However, as have said, find he is indeed saying these things (although perhaps in diminishing fashion now). further find that it is unlikely T. and S. are putting these words in his mouth. It is more likely that these words originate from the father. The child is in need of a stable, reassuring and positive home. I find that it is best provided in the mother’s home. Limiting the time child has with either parent is concern. I am concerned that Z.’s emotional needs have been adversely affected by the conduct of Mr. S. A lessening of Mr. S.’s time with Z. may ameliorate this. (iii) The Physical, Psychological, Social and Economic Needs of the Child [142] have answered much of this above. It would appear both parents can provide for the physical and economic needs of Z., although do have some concerns about the rather unsure financial circumstances of the father. He lives at present at his mother’s house. Apparently she will leave him her house in her Will. However, on balance am not too concerned about the financial issues. [143] However, am not persuaded the father has provided much social development for Z. heard nothing about this other than Mr. S. testified that Z. does well in school. It appears Z.’s main socialization is with T. and S. note Mr. S. appears to have little to do with his sister and brother, who live close by, and so that usual family interaction is absent. [144] Ms. J. on the other hand has developed rich network of little friends for Z. to play with. She continues to associate with her immediate family. She has opened up her household to T. and S. which provides an enhanced family network for Z. note T. and S. actually live in Warman. [145] Accordingly I am persuaded that Z. is afforded far more social fulfillment when in his mother’s care. The psychological issue has been addressed in favour of the mother under the “quality” of relationship tropic. (iv) The Capacity of the Person who is Seeking Custody to Act as Legal Custodian of the Child [146] For the reasons set out above, am persuaded that while both parents may have the “capacity” to act as legal custodian, the mother has demonstrated more organized, committed approach to parenting. Additionally (if this can be advanced here), the father seems to lack insight as to damage that can be inflicted on children by rude comments about the other parent and missing or not paying attention to their scheduled activities (here draw upon P.B.’s evidence about Mr. S.’s non-attendance at his children’s events). Additionally note that it has been Ms. J. who has arranged for medical and dental appointments. [147] Further note that Mr. S. seems to believe that this case is not high‑conflict file. Mr. S. seems to suggest that he and Ms. J. could just work things out without lawyers. It would be nice if it ends up that way. However, volumes of court files and 10-day trial where every element of family law is in contest suggest to me that these matters are not that simple. It appears Mr. S. lacks the insight to recognize this. (v) The Home Environment Proposed to be Provided for the Child [148] have already compared the respective households, and need not repeat that here. find the home environment provided by the mother superior to the relatively guarded and unknown circumstances of Mr. S.’s arrangements at his mother’s home. Additionally, Ms. J. owns her own house and has that stability. Mr. S. does not enjoy such certainty, seemingly having to rely on his mother’s generosity and the terms of her Will. note Mr. S. has moved around great deal. The evidence shows pattern of moving from relationship to relationship. Accordingly have no hesitation to find that the mother’s home environment is preferable to that of the father. (vi) The Plans that the Person who is Seeking Custody has for the Future of the Child [149] Ms. J.’s immediate plans are to enroll Z. in nearby school in Warman. She has contemplated higher education for her son. She plans on remaining in her home, and Z. can continue to be in community in which he is familiar. [150] Mr. S. lives at his mother’s. have discussed this above. did not hear any plans except he wants Z. to go to nearby Catholic school. Ms. J. has said she would raise Z. as Catholic. did not hear any evidence that either party was particularly religious. Z. was baptized, but beyond that he receives no religious instruction. Mr. S. also suggested he is bilingual. heard no evidence of that other than his testimony that he took French in school but did not continue in French immersion program in high school. am satisfied that neither his religious nor language concerns are significant factors. [151] find that the mother has taken steps to enroll the child in extra-curricular activities. She attends at these activities and supports him. Therefore on balance it is likely she will have the more constructive plans for Z.’s future. (vii) The Wishes of the Child, to the Extent the Court Considers Appropriate having Regard to the Age and Maturity of the Child [152] Z. is about five. He is little boy. Both parents suggest that he prefers living with each other. have no doubt the child senses the tension between the parties that boils over during the exchanges. The child’s behaviour probably reinforces the parents’ views on this. Z. undoubtedly has need to please both parents and confused sense of loyalty. It seems Z. does adjust back into his life with each parent after the exchange given some time. Therefore cannot place much weight on this factor because of his age. Decision on Parenting [153] wish to comment briefly on the rather potent (and find believable) evidence of P.B. and also the father’s relationships with other women (including Charlene). have specifically reminded myself of s. 8(b) of the Act. have set out above that this is not trial between Mr. S. and P.B. However, find P.B.’s evidence is relevant to Mr. S.’s ability to parent. Beyond what appears to be several failed relationships, detect nastiness in his approach to at least P.B. believe that this has been unfortunately exported by Mr. S. to not only T. and S., but also Z. note that it was more than just P.B. who testified about this. Ms. J. corroborated this, as did other witnesses (i.e. his negative comments about P.B. in front of the children). have concern that this pattern has been manifesting itself regarding Ms. J. The child’s reporting of negative things regarding his mother supports this conclusion. I find that this adversely reflects upon Mr. S.’s ability to parent. [154] Our Court of Appeal in Ackerman Ackerman, 2014 SKCA 86 (CanLII) at paras 31-36, 442 Sask 113 [Ackerman], directs that there is no presumption in favour of status quo. must only consider what is in the best interests of Z. [155] Additionally, while the principle of maximum contact (housed in the Divorce Act, RSC 1985, (2d Supp.), under s. 16(10)) has universal application, also note that each case depends on what is in the best interests of the child (Ackerman at para 40). [156] In considering all of the above, including my analysis of the evidence in light of s. 8(a) of the Act, come to the conclusion that it is in Z.’s best interests to primarily reside with his mother. reject Mr. S.’s claim for shared custody (i.e. 50/50 weekly rotation). As set out above, have found in favour of Ms. J. on all of the s. factors. This decision really boils down to what should be the legal status of the parents regarding custody and their respective parenting time. Sole or Joint Custody? [157] Section 3(1) of the Act sets out the presumption of joint custody for parents with equal rights, powers and duties. note in Ackerman: 48 While it stands to reason that generally, shared parenting requires modicum of cooperation and communication, there can be no hard and fast rules. Every case must turn on its own facts with the focus always being the best interests of the child. Sometimes trial judges are faced with impossible situations and they must craft parenting regime that they know will not be perfect but best addresses the child’s needs and interests. In exercising their discretion they should not be arbitrarily limited to certain types of orders because in other cases judges have found the presence or absence of certain things, such as effective communication, was deciding factor for them. Resolving custody issues requires balancing of factors to determine the best interests of the child. What those factors are and how they will be weighed will vary greatly depending on the circumstances of each case. It is for this reason that trying to determine custody based on review of “similar” cases is questionable practice. [158] In my view it is important to look at what was going on in the parties’ relationship up to and including the November 28, 2012 separation. Perhaps there were telltale signs of Mr. S.’s true temperament. Certainly his behaviour at the Manitoba family Christmas in 2009 was red light. Beyond the effect on Ms. J. and her family, note the effect on Mr. S.’s two small children. Clearly they were traumatized, and yet he failed to appreciate this. It was virtual stranger, Ms. J.’s sister, who took the time to comfort them. The sad end of this Christmas was what must have been miserable 16-hour bus ride back to Saskatoon. As stated above, Mr. S. seemed oblivious to how bad this was. [159] The parties had quarrel on Halloween night in 2010. curious part of this was that Mr. S. took the pre-emptive action of calling the police even before Ms. J. and her friend arrived. He would not have known their disposition or how the matters would have evolved at that stage. This seems somewhat reminiscent of his pattern of false claims to the police and social services regarding P.B. [160] The text messages that went back and forth between the parties after the separation on November 28, 2012 indicate selfish and mean-spirited approach by Mr. S. Despite what he said in court, he should have known Ms. J. was the primary parent and parent that Z. would greatly miss. The lengthy (two weeks) separation for little boy from his primary caregiver was clearly traumatic. Mr. S. should have understood this, yet he persisted. accept Ms. J.’s evidence that when Z. was returned to her he was extremely upset, confused and anxious. [161] The parties now only communicate through lawyers. Mr. S. has the unrealistic (if indeed truthfully held) belief that they could get together and sort all of this out. This is highly unlikely. Additionally and ironically for Mr. S.’s situation, Ms. J. and P.B. have become friends and confidantes. see nothing sinister in this. Ms. J. and P.B. have shared experience. also note that nothing has really ever been successfully resolved between the parties unless there was court proceeding. It seemed impossible to come up with simple solution for the psychological counselling. Even simple things such as travel documents prove to be big deal. [162] have little confidence that things will improve. am concerned that routine matters like dental appointments, eye examinations, sports activities, school events, travel, etc. will not go smoothly. The child will likely end up being further confused and upset. [163] am particularly concerned that Mr. S. may persist in casting Ms. J. in negative light (like he has with P.B.). can only think of one way to minimize this short of supervised access; that is to reduce Mr. S.’s time with the child from the present arrangement. [164] have considered the issue of whether Mr. S.’s mother should be present during Mr. S.’s time with the child. am not convinced that that is still required. Accordingly there will be no such supervision. [165] Therefore after carefully considering all of the above, I am of the view the following orders are in the child’s best interests, and I so order: (a) The petitioner, M.D.J., shall have sole custody of the child Z., born in June 2010, with his primary residence to be with the said petitioner. (b) The respondent, C.W.S., shall have alternate weekend access with the said child from Friday at 6:00 p.m. to Sunday at 6:00 p.m. to be extended to Monday at 6:00 p.m. in the event Monday is a school holiday. (c) The Christmas school holiday break is to be divided equally between the parties with the said petitioner to have Z. in her care for the first part of the break in 2015, including December 25, and alternating thereafter. (d) The February school break is to be alternated between the parties. (e) The Easter school break is to be alternated between the parties. (f) The regular parenting rotation will remain in effect for the summer school holiday break other than the respondent will have Z. in his care for one week of holidays in July and one week of holidays in August of each year with the weeks chosen by the respondent, not to be consecutive and not to include the August long weekend, unless the August long weekend falls on the respondent’s regular parenting time. The respondent shall be required to provide notice to the petitioner by June of each year which week in July and which week in August he intends to exercise his summer vacation time. (g) The petitioner is able to choose another adult to pick up or drop off Z. in the event she is unable to do so. (h) All exchanges shall continue to be done through the respondent’s mother, M.S., at M.S.’s residence, and the respondent shall not be present during such exchanges. Ms. J. will continue to be responsible for the transportation of Z. for exchanges. Child Support [166] As result of my decision, Ms. J. is entitled to receive child support for Z. payable by Mr. S., and correspondingly Mr. S.’s claim for child support is dismissed. She states that she is not requesting Mr. S. pay monthly child support, but rather his obligation to do so be considered as an equitable consideration in the division of property pursuant to s. 21(3)(m) of The Family Property Act should the Court find the parties cohabitated as spouses within the definition of The Family Property Act and the petitioner has to provide to the respondent an equalization. find that should make the necessary analysis regardless of my overall decision regarding family property. Accordingly the following is my analysis of Mr. S.’s obligations under ss. and of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] [Guidelines]. [167] Some controversy has arisen regarding Ms. J.’s actual income as opposed to what she has reported on her income tax return because of her claim of $12,842.91 for car expense. Counsel for the respondent points out that Ms. J. works mostly at home. This is only concern because the s. percentage must be calculated using both parties’ income. Her line 150 income was reported to be in 2013 $130,836. agree that while accept her accountant set this figure, it appears high for these calculations. Therefore I accept the respondent’s argument and will add back into her income $5,000, which I consider to be fair. Therefore for these purposes will impute income of $135,836 to Ms. J. [168] Mr. S.’s income is calculated to be $80,393 (see para. 52 of his counsel’s brief filed April 1, 2015). Counsel for Ms. J. actually suggests lower figure; however, will accept $80,393. This results in s. 3 child support of $676. [169] Counsel for the petitioner argues that there was evidence at trial that Mr. S. earned undeclared income. Indeed he admitted this. How much was unclear. Mr. S. says that he has stopped doing this. Since he had admitted to misleading two other courts on this topic, find it hard to accept his testimony. Ms. J. urges the Court to impute $10,000 under s. 19 of the Guidelines. K.R.’s evidence is that Mr. S. still likes to drive around looking for bargains. The Court does not know whether this means he remains an active handyman/furnace installer. On balance find that it is not possible to determine what, if any, unreported income is being presently earned by Mr. S. Accordingly decline to impute further income. [170] I am satisfied that Z.’s s. 7 expenses for health, dental, activities and pre-school are about $5,061.35 per year (see P-28, tab 19 in P-8). Therefore Mr. S.’s share should be 37 percent per year or $1,872.70. [171] wish to add that Ms. J. neither petitioned for child support nor requested child support in her oral or written argument, save as outlined above regarding consideration under The Family Property Act; however, wish to avoid any potential future confusion arising out of this judgment. have not adjudicated the issue of Ms. J.’s entitlement for child support for Z. The petitioner is reluctant to request such support from the respondent because she believes child support payments would be an irritation between the parties that she is anxious to avoid. However, if in the future Ms. J. wishes to apply for support for Z. she may. However, no such application shall be made by Ms. J. until at least one year has passed from the date of this judgment. Common-Law Relationship [172] have reviewed Ruskin Dewar, 2003 SKQB 514 (CanLII) (particularly paras 30-33), 243 Sask 126. am satisfied that the respondent, C.W.S., has discharged the onus of establishing common-law relationship of two or more years. Ms. J. all but admitted this during her cross-examination. The evidence reveals, inter alia: (i) Mr. S. moved into Ms. J.’s home in Warman in October or November 2009. (ii) The parties presented themselves as couple to the community. (iii) They shared the same bed, ate together, while not sharing their finances, nonetheless drew support from each other for food and other necessities. (iv) They considered themselves family after the birth of Z. and announced this to the community. (v) They went to family functions and hosted family functions as couple. (vi) They filed their income tax for 2009, 2010 and 2011 as common-law partners. (vii) Ms. J. attended with Mr. S. at WCB and medical appointments. (viii) Ms. J. tried to get Mr. S. to sign cohabitation agreement seemingly acknowledging that they were in spousal relationship. [173] Accordingly find that the parties started living together on November 1, 2009 and by November 1, 2011 had been in spousal relationship for two years. They separated about year later on November 28, 2012. VI Family Property [174] The respondent filed his counter-petition requesting, inter alia, division of family property on January 9, 2013. For the purposes of The Family Property Act, the date of application can be set at January 8, 2013. The date of adjudication is the commencement date of the trial, being March 16, 2015. Analysis of Property [175] There is some agreement between the parties. Where there is disagreement and finding of credibility is necessary, will (for the reasons already set out above) accept Ms. J.’s evidence over that of Mr. S.’s. will now endeavour to go through the property. Mr. S.’s Pension [176] The parties almost agree on Mr. S.’s pension. note Exhibit R-23 is letter from the Public Employees Pension Plan that establishes Mr. S.’s exemption (i.e. what the pension was worth on November 1, 2011) and what it was worth on January 8, 2013 (i.e. date of application). believe the correct math is family property value of $11,663.97 (and not the $12,642.88 set out by Ms. J.’s counsel). will consider using 25 percent discount rate on tax. Accordingly Mr. S.’s pension should have value of $8,747.97 for these purposes. Warman Residence [177] This was the family home. Even though there was brief spousal relationship, would not be prepared to grant an unequal division in favour of Ms. J. who owned the house previous to the commencement of their relationship. I do not find the evidence supports an “extraordinary circumstance” as per s. 22(1)(a) of The Family Property Act (see Phillips v Phillips, 2010 SKCA 117 (CanLII), 362 Sask R 124). There seems to be consensus that the house should be valued as of the date of adjudication. [178] Each party obtained appraisal reports regarding the house. The respective reports were filed by consent, and the appraisers were not called to testify. Unfortunately controversy arose as to which appraisal reports should accept. Without hearing the appraisers in court am left with weighing the written reports and considering counsel’s arguments. [179] have decided to accept the opinions set out in the Mumford and Lazeski reports (P-33, tab 41 in P-1) which set the value of the residence as of March 4, 2015 to be $360,000. As Ms. Fitzsimmons points out, this was not “drive-by appraisal” like the report submitted by Mr. S. It appears Mr. S.’s appraiser never stepped foot in the residence and received all his information about the residence from Mr. S. note Ms. J. was quite prepared to allow this appraiser access into her house, but Mr. S. did not take her up on that offer. The Mumford and Lazeski reports have the distinct advantage in that the authors attended at and in the residence. have no reason to see any bias in their report. It ends up simply being the best evidence and should be preferred. [180] further note that counsel for Mr. S. cross-examined Ms. J. about borrowing money against her house and her personal knowledge of lending practices. However, am not satisfied that establishes anything other than bank was prepared to lend her money. do not know what that particular bank’s policies were, and frankly that is not the issue. The issue is what does qualified appraiser(s) believe the fair market value of the house is. [181] Accordingly place the value of the residence at $360,000. [182] Controversy has arisen as to whether the date of adjudication (equity) in this house is divisible or (as argued by Ms. J.) only the “value” is considered at the date of adjudication. In other words, the date of application (January 8, 2013) is used to set the amount owing against the house for family property division purposes. [183] agree with Ms. J.’s argument. While it is common for court to recognize that the rising market results in date of adjudication value being used, it makes no sense to have party who has made no contribution to the mortgage payments since the date of application to receive windfall of half of the payments made solely by the other party. Accordingly do not accept the respondent’s argument. Equity Removed from House [184] However, do accept the respondent’s argument that Ms. J. borrowed $35,902.76 against the home and thereby received that as cash asset shortly before the counter-petition was issued. In my view it does not matter what the purpose of the cash was for; it should be considered as divisible family property asset regardless (see P-50, tab 20 in P-1, Exhibit P-47). Rental Properties [185] Mr. S. acknowledges that Ms. J. owned three rental properties on the west side of Saskatoon prior to their relationship. The only appraisals have are those provided by Mr. S., which Ms. J. accepts. Ms. J. testified that as far as she knew these rentals have not increased in value since they were appraised. Accordingly the Court will use the appraised values provided as of December 3, 2012: 302 26th Avenue West $230,000 1118 Avenue North $155,000 829 Avenue North $121,000 $506,000 The parties agree that the debt against these properties as of the date of application (January 8, 2013) is as follows: 302 26th Avenue West $175,893.34 1118 Avenue North $155,522.83 829 Avenue North $144,827.04 $476,243.21 Ms. J. has established that the debt against these properties as of approximately November 1, 2011 was: 302 26th Avenue West $179,154.11 (P-53, tab 23 in P-1) 1118 Avenue North 89,038.48 (P-65, tab 14 in P-8) 829 Avenue North $147,165.98 (P-51, tab 21 in P-1) $415,358.57 [186] Accordingly I accept that the exempt amount of the rental properties is $90,641.43 (i.e. $506,000 - $415,358.57). [187] The parties agreed on the value of bank accounts, that the Audi vehicle owned by Ms. J. had no equity, the approximate amount of Mr. S.’s RSP, the exemption for Ms. J.’s RSP, and the amount of Ms. J.’s tax refund for 2012. The following items remain in dispute: Mr. S.’s Tax Refund for 2012 (i) This requires adding back all the payments as set out in the exhibit to determine what Mr. S.’s refund would have been. accept Ms. Fitzsimmons’ calculations that this amounts to $10,084.50 that Mr. S. would have received by way of tax refund for 2012 (P-45, tab 13 in P-1). note the same approach was taken for Ms. J.’s tax refund calculations which appear to have been accepted by Mr. S. Mr. S. claims that he did not receive the refund. do not accept this. The official document from CRA indicates it would have been paid out on his behalf. Therefore will add $10,084.50 as family asset. (ii) Ms. J. has retained the MGB automobile. accept Mr. S.’s approach that the average of the two appraisals should be used resulting in value of $11,150. Motor Home and Avalanche Automobile (iii) am satisfied that despite the manoeuvering by Mr. S. to avoid creditors, he probably did receive $15,000 from his mother for the motor home and Avalanche. Therefore will not consider these as assets. Boat and Trailer (iv) Mr. S. agreed that he sold the boat. He did not recall to whom, and he did not produce receipt. However, am prepared to accept it was an old boat. Accordingly will accept his testimony that $2,300 was paid to him for the boat and motor. [188] It appears that Mr. S. will not acknowledge Ms. J.’s debts as of the date of application. find that these debts were occasioned by her during the course of the relationship for their mutual benefit. Accordingly will accept the same as per the chart set out in Ms. Fitzsimmons’ brief. However, will not allow the claim for legal fees made by Ms. J. [189] Using, with my changes, the helpful chart provided by Ms. Fitzsimmons under tab of her brief, summarize the family property and exemptions as follows: Exhibit Pension gross value $11,633.97 (net of exemption) $8,747.97 (net of exemption) R-23 Warman residence $360,000 as of March 6, 2015 P-32 (Tab 42 in P-1), and P-33 (Tab 41 in P-1) 829 Avenue North $121,000 as of December 3, 2012 R-16 (Tab 13 in Respondent’s binder) 302 26th Street West $230,000 as of December 3, 2012 R-17 (Tab 14 in Respondent’s binder) 1118 Avenue North $155,000 as of December 3, 2012 R-18 (Tab 15 in Respondent’s binder) RBC bank account $1,020 P-58 (Tab 31 in P-1), P-105 Assante RRSP gross value on date of application $4,898.97, gross value on November 1, 2011 $4,916.53 Nil after exemption P-59 (Tab 33 in P-1) 2012 Audi vehicle $39,800.00 P-34 (Tab 26 in P-1) MGB vehicle $11,150 P-35 and P-36 (Tabs 29 and 30 in P-1) Motorhome (no value, not an asset) Avalanche (no value, not an asset) P-67 Boat and trailer P-67 Income tax refund for 2012 $10,084.50 P-26 (Tab in P-1), P-45 (Tab 13 in P-1) Contributions to RRSP $1,098.96 Equity taken out of house Total $963,501.62 $23,251.43 Liabilities Mortgage on Warman Residence $324,097.42 P-50 (Tab 20 in P-1) Mortgage on 1118 Avenue North $155,522.83 P-55 (Tab 25 in P-1) Mortgage on 302 26th Street West $175,893.34 P-54 (Tab 24 in P-1) Mortgage on 829 Avenue North $144,827.04 P-52 (Tab 22 in P-1) Credit Card $4,970.46 P-64 (Tab 38 in P-1) RBC line of credit $1,927.63 P-60 and P-61 (Tabs 34 and 35 in P-1) RBC Visa Infinite Avion $22,575.68 P-62 (Tab 36 in P-10) Scotia Visa $2,970.31 P-63 (Tab 37 in P-1) $56,489.90 P-56 and P-57 (Tab 27 and 28 in P-1) Total liabilities $889,274.61 Net property $45,685.62 Less value of exempt property (only real property) $90,641.43 Net Property (-$16,414.42) [190] have applied the Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (CA) at para. 19, analysis including the application for exemptions. find that should allow for the exemptions for the rental properties. The result is that the respondent (petitioner by counter-petition) has failed to prove that he is entitled to any distribution under The Family Property Act, and I dismiss his counter-petition in this regard. [191] also note that the petitioner is prepared in essence to walk away from this case without any claim for money from the respondent. This covers any potential equalization under The Family Property Act. Accordingly will simply dismiss The Family Property Act claim as have done so above. need not consider any s. 21(3)(m) application under The Family Property Act. [192] order that the respondent shall within 10 days, at his expense, discharge any Certificate of Pending Litigation or Certificate of Lis Pendens he has registered against any real property owned by Ms. J. In the event Mr. S. does not do this, then Ms. J. can apply to myself for an order directing the registrar of land titles to vacate/discharge any such registration along with request for costs [193] Counsel for Ms. J. urges the Court to award substantial fixed amount of costs against Mr. S. and to order that he not be allowed to take any further proceedings unless these costs are paid. Ms. Fitzsimmons points to difficulties and frustrations encountered since this litigation started. [194] have considered the above, but conclude the following is appropriate here. Ms. J. has been predominantly successful in this case. see the most significant element of this litigation to be the issue of custody, and she has been substantially successful in this regard. note that Mr. S. (and quite correctly) abandoned his claim for spousal support on the last day of the trial. However, also note (although ultimately it was moot) he was able to establish that there was spousal relationship. Ms. J. should have conceded this. Finally, Mr. S.’s claim under The Family Property Act was entirely unsuccessful. [195] Considering all of the above, will order that Ms. J. receive costs. have decided not to impose restriction on Mr. S. from bringing further applications until he has paid his costs. am quite sure that if that becomes an issue counsel for Ms. J. will bring it to the attention of the Court. VIII Conclusion [196] In summary therefore: (1) Ms. J. shall have sole custody of Z., with Z.’s primary residence to be with Ms. J. and Mr. S. to receive parenting time as set out above; (2) Ms. J. shall be entitled to apply for child support, but only after one year; (3) The parties were found to be in common-law relationship as set out above; (4) Mr. S.’s claim for spousal support is dismissed; (5) Mr. S.’s claim under The Family Property Act is dismissed without any distribution to either party; (6) Mr. S. is to remove any registrations he has placed against Ms. J.’s real property; (7) Ms. J. shall receive her costs.","The court concluded that the respondent was not a credible, trustworthy, or reliable witness for many reasons. The petitioner, on the other hand, was found to be a truthful and reliable witness. The court was also impressed with the petitioner’s witnesses because they were close family members, long-time friends, and her live-in partner. By contrast, the respondent’s witnesses were friends seen from time to time, neighbours, and his mother. The court found the respondent’s mother to be evasive and guarded at times. To determine custody the court reviewed the factors set out in s. 8 of The Children’s Law Act, 1997. The petitioner was found to be the primary parent of the child since his birth. The court was left with a degree of uncertainty as to the day-to-day activities of the child when he was with the respondent. The quality of the child’s relationship with the petitioner was found to substantially exceed that of the respondent’s relationship with the child. The court accepted that the child said disturbing things upon his return to the petitioner from the respondent. The child’s need for a stable, reassuring, and positive home were found to be met in the petitioner’s home. The court indicated that decreasing the respondent’s time with the child may ameliorate the adverse effect on the child’s emotional needs. The child was also found to be afforded more social fulfillment in the petitioner’s care. The petitioner also had more constructive plans for the child’s future. The respondent’s negativity towards the petitioner was found to negatively impact his ability to parent. The court concluded that it was in the child’s best interests to primarily reside with the petitioner. The petitioner was granted sole custody of the child so as to minimize further conflict between the parties. The respondent was given unsupervised access every other weekend. The court added $5,000 to the petitioner’s line 150 income for the personal component of her vehicle expense deduction. After determining the respondent’s income the court found that the s. 3 Guideline child support due by the respondent to the petitioner was $676 per month and that he should be responsible for 37 percent of the s. 7 expenses. The petitioner did not request child support but instead asked the court to consider it in the distribution of property. The respondent discharged the onus of establishing a common-law relationship of two or more years. The respondent’s pension value available for division was found to be $11,663.97.  The court did not find an extraordinary circumstance to warrant an unequal division of the family home. The value of the home was $360,000. The court used the date of application to determine the amount owing on the home. The petitioner also had rental properties and was given an exemption of $90,641.43 for those properties. After taking into consideration all of the property and exemptions, the respondent failed to prove that he was entitled to any distribution under The Family Property Act. The petitioner did not claim an equalization payment. Costs were awarded to the petitioner and the respondent was restricted from bringing a further court application until those costs were paid.",8_2015skqb144.txt
54,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 084 Date: April 17, 2014 Ticket No: 7892112 Location: Pierceland Between: Her Majesty the Queen Appearing: Gregory Piper For the Crown Jim Dallyn On His Own Behalf Judgment M. F. Martinez, [1] Jim Dallyn is charged with the offence of driving faster than 60 kilometres per hour when passing highway workers or occupied highway equipment within a work zone. The offence is alleged to have occurred on September 5, 2013, on Highway 55 near Peerless, Saskatchewan. [2] Subsection 203(1) of The Traffic Safety Act governs the offence: Speed limits when passing highway workers 203(1) No person shall drive vehicle on highway at speed greater than 60 kilometres per hour when passing: (a) highway worker or flag person; (b) any highway equipment occupied by highway worker, whose presence on the highway is marked in the manner determined in the regulations made by the board; or (c) any highway equipment on highway that has its ministry issued warning lights in operation, whether it is in motion or not. [3] Jim Dallyn is not charged as the driver of the vehicle but as its registered owner. Section 273 of The Traffic Safety Act makes the registered owner liable for the driver’s misconduct when the vehicle is driven by anyone who has the owner’s actual or implied consent to do so. [4] Recent legislative amendments allow the Crown to prosecute contravention of subsection 203(1) of the Act without calling any witnesses (The Traffic Safety Act, S.S. 2004, c. T-18.1, section 259.1, and The Traffic Safety (Speed Monitoring) Regulations, c. T-18.1 Reg 10, sections and 5). [5] Consequently, the Crown’s evidence consisted of the following documents: 1. photograph of the offending vehicle taken by speed monitoring camera showing the date and time the photograph was taken and the speed of the vehicle when the photograph was taken, which in this case was 84 kms/hr, 2. the affidavit of Bradley George Christensen, the person who tested, deployed, and operated the speed monitoring device, 3. an SGI Motor Vehicle Division search certifying that Jim Dallyn was the registered owner of the vehicle on the date of the alleged offence, and 4. affidavits of service confirming service of the Summary Offence Notice, the photograph, Mr. Christensen’s affidavit, and the SGI Motor Vehicle Division certified search. [6] The Act allows the accused to ask for an order requiring Mr. Christensen to attend for the purpose of cross-examination, but Mr. Dallyn did not do so. [7] The accused was the only witness for the defence. [8] He testified that on September 5, 2013, he was driving and that he did not speed past any highway workers or occupied highway equipment in the work zone. He remembers following pilot truck with its warning lights operating. When it turned around on the highway and returned in the direction it had come, Mr. Dallyn said that he sped up as there weren’t any workers or equipment ahead of him. He believes that this is when the speed monitoring camera must have photographed his vehicle. [9] found Mr. Dallyn to be credible. [10] The Crown submits that the offence under subsection 203(1) of The Traffice Safety Act is strict liability offence and that its documentary evidence proves every element of the offence. The only aspect of the Crown’s case that Mr. Dallyn disputes is that he passed highway workers or occupied highway equipment when he was travelling faster than 60 kilometres per hour. [11] No workers or highway equipment can be seen in the photograph of the Dallyn vehicle. Bradley George Christensen’s observations of the vehicle appear in paragraphs and of his affidavit: “7. At 16:32 observed vehicle that appeared to be travelling above the posted speed limit of 60 kilometers [sic] an hour. The speed monitoring device indicated the motor vehicle was travelling at 84 kilometers [sic] an hour and at the same time it captured digital image and confirmed it was the same vehicle that had directed the laser beam at and accepted the image with the data as being accurate. The data embedded in the digital image included the event number #0017. 8. Also, at the time directed the laser at this motor vehicle there was worker activity in the speed monitored zone as indicated by my placement of an “X” beside the relevant circumstance(s): a) one or more highway workers or flag persons were present b) There were one or more pieces of highway equipment occupied by one of [sic] more highway workers present c) There were one or more pieces of highway equipment on the highway that had their ministry-issued warning lights in operation present [12] Mr. Dallyn is not charged with speeding in marked construction area with workers and equipment in the area. The offence is driving faster than 60 kilometres per hour when passing highway workers (whether or not they are in a marked construction zone), or when passing occupied highway equipment in a marked construction area, or when passing highway equipment actually on the highway and with its warning lights operating. None of the Crown’s documents prove that the Dallyn vehicle did anything of the kind. [13] In paragraph of his affidavit, Mr. Christensen says that he saw the Dallyn vehicle and that it appeared to be speeding. In paragraph of his affidavit, he says that there were highway workers and occupied highway equipment in the speed monitored zone. Nowhere does he say that:1. he observed the Dallyn vehicle apparently travelling above the speed limit when it passed highway workers or highway equipment and that he recorded the vehicle’s speed immediately after it passed the workers or equipment, or2. the Dallyn vehicle actually was passing highway workers or occupied highway equipment when the speed monitoring device recorded its speed. [14] For these reasons, I find Jim Dallyn not guilty. M.F. Martinez,","Criminal Law – Strict LiabilityStatutes – Interpretation – Traffic Safety Act, Section 203(1)Traffic Safety Act – Motor Vehicle Offences – Passing Highway Workers or Equipment The accused was charged with an offence contrary to s. 203(1) of The Traffic Safety Act, driving over 60 km/h passing highway workers or occupied highway equipment within a work zone. The accused was charged as the owner of the vehicle, not necessarily the driver. The offence was the result of a speed monitoring camera and the Act allows the Crown to complete their case without calling any witnesses. The accused testified that he did not speed past any highway workers or equipment. He said that he was following a pilot vehicle when he passed the workers and equipment and only sped up after the pilot vehicle turned around when there were no more workers or equipment. The picture of the accused’s vehicle from the speed monitoring camera did not show any highway workers or equipment. HELD: The person who tested and deployed the speed monitoring camera provided affidavit evidence that the picture was taken within a marked construction area but it did not say that the accused was speeding as he was passing highway workers or occupied highway equipment. Section 203(1) specifies that there is only an offence for travelling at a speed greater than 60 km/h when passing highway workers or operating equipment. The accused was found not guilty.",7_2014skpc84.txt
55,"S.C.C. 02386 S.C.C. 02387 S.C.C. 02388 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Chipman, JJ.A. BETWEEN: HER MAJESTY THE QUEEN, and DOUGLAS CHARLES ADSHADE, JAMES GELDERT BOYD, JAMES ARTHUR GOODWIN, Respondents Mr. K.W.F. Fiske and Ms. D.C. Smith, for the appellant Mr. R.J. MacDonald, for the respondents Appeal Heard: May 28, 1991 Judgment Delivered: May 28, 1991 BY THE COURT: Appeals allowed, acquittals set aside and convictions restored for violations of s. 172 (now s. 192) of the Motor Vehicle Act, per oral reasons for judgment of Clarke, C.J.N.S., Hallett and Chipman, JJ.A. concurring. The reasons for judgment of the court were delivered orally by CLARKE, C.J.N.S.: The respondents, Messrs. Boyd, Goodwin and Adshade were convicted, after their trials, and fined for operating overweight vehicles on the Bedford Highway in the County of Halifax. The offence with which each was charged was a violation of the Motor Vehicle Act, then s. 172 of R.S.N.S. 1967, c. 191, and now s. 192 of R.S.N.S. 1989, c. 293, and the Regulations made pursuant to the Act. Relevant to the offence are the following sub‑sections of s. 172 (now s. 192): 192 (I) Any peace officer having reason to believe that the weight of vehicle and load is in excess of the maximum permitted by any regulations made under this Act, the Public Highways Act or any Act or regulation is authorized to weigh the vehicle either by means of portable or stationary scales, and may require that the vehicle be driven to the nearest scales, in the event such scales are within distance of kilometres. (3) In lieu of proceeding to such scales, the weight of the load may be determined by portable weighing device provided by the peace officer and it shall be the duty of the driver of the vehicle to facilitate the weighing of the vehicle and the load by any such device. Also relevant to the issues at trial and on appeal is s. 174 (now s. 193) which provides: 193 In prosecution proof of the reading of any scale or weighing device is prima facie evidence of the accuracy of the scale or weighing device and of the reading. At the trial of each respondent, Judge Curran of the Provincial Court, heard the evidence adduced by the Crown. None was given by or on behalf of each of the defendants (now respondents). The evidence before the trial judge was that the truck of each defendant was weighed by peace officer, who first had reason to believe each vehicle was overweight. Mobile scales authorized by the Department of Transportation of the Province of Nova Scotia were used to weigh each vehicle in the manner provided by the Regulations. In each case each vehicle was substantially overweight. Each weighed considerably in excess of the allowable tolerance of 500 kilograms. Counsel for each defendant (now respondent) argued at trial that s. 174 (now s. 193) by providing that in his prosecution proof of the reading of any weighing device is prima facie evidence of the accuracy of the weighing device and of the reading, is contrary to s. II (d) of the Canadian Charter of Rights and Freedoms and is not saved by s. I. Counsel argued the Crown must be required to prove the accuracy of the weighing device: otherwise defendant is by s. II (d) not presumed innocent until proven guilty according to law. Judge Curran considered, but rejected, the Charter arguments. He found on the evidence that the Crown had proved each case by showing that each vehicle was substantially overweight and that the scales were generally accurate. Inspector Sadler testified that the scales were tested on monthly basis by Howe Richardson, an outside firm, described by him as ""a national scale company that services and maintains the scales for the Department of Transportation"". As to the weights, Mr. Boyd's vehicle was allowed 17,500 kilograms including the tolerance. His vehicle weighed in at 25,600 kilograms. On his first charge, Mr. Adshade's vehicle was allowed 17,500 kilograms including the tolerance. His vehicle weighed in at 23,600 kilograms. On his second charge, the vehicle weighed in at 26,500 kilograms. Mr. Goodwin's vehicle was allowed 18,000 kilograms. It weighed in at 27,900 kilograms. Judge Curran said that in the case of Mr. Boyd, on the evidence that was before me, can see no reason whatever to doubt the general accuracy of the scales that were used in this case. In the case of Mr. Goodwin, in the face of similar evidence from the Inspector, the trial judge said, am satisfied the particulars are made out here and don't think there is any need to go into them at any length. In the case of the first charge again Mr. Adshade, similar evidence having been given by Inspector Richard, the trial judge said, am satisfied, on the strength of the evidence, that it has been shown beyond reasonable doubt that Mr. Adshade, in fact, was operating his vehicle well above the permitted weight and tolerances, at the time in question, on highway. In the case of the second charge against Mr. Adshade, the trial judge said, ""I am satisfied that the Crown has proved its case against Mr. Adshade."" On appeal to the summary conviction appeal court, Judge Bateman allowed the appeals of the respondents, set aside their convictions and thereby acquitted them. While she concluded that the enabling legislation and the Regulations made pursuant thereto were intra vires, she found that s. 174 (now s. 193) was in violation of the Charter because ""it completely relieves the Crown of any requirement whatsoever to prove accuracy"" of the scales. Thus, she said, it ""goes too far in impairing the presumption of innocence"". She further decided that s. 174 (now s. 193), ""Is not saved by s. (I) of the Charter insofar as it does not conform with the second criteria set out in Oakes"", meaning the Supreme Court of Canada decision in R. v. Oakes (1986), 1986 CanLII 46 (SCC), 24 C.C.C. (3d) 321. The Crown now appeals, alleging that on both of these principal issues the summary conviction appeal court judge erred in law. We have studied the record in detail. We have reweighed and re‑examined the evidence and as well we have considered all of the written and oral arguments advanced by counsel. We have concluded that based on the evidence before the trial judge, there are no Charter issues in these appeals and that the summary conviction appeal court judge, with respect, erred in law in concluding that there were. There was evidence before Judge Curran of the weights of the vehicles, how they were weighed and the procedures followed by the Department of Transportation in determining and maintaining the accuracy of the mobile scales. The Crown witnesses were carefully cross‑examined by counsel of the respondents. Judge Curran made specific findings of fact on both of these issues against the respondents. Although the legal effect of s. 174 (now s. 193) was argued before Judge Curran, it was not necessary for him to either invoke or rely upon s. 174 nor did he in finding each of the respondents guilty of the offence with which each was charged. There may be cases where the defendants are able to advance evidence that causes a trial judge to rely on the prima facie effect of the Crown\'s evidence as stated in s. 174 (now s. 193). These three respondents do not fall in this category. It follows that here consideration of the application of the provisions of the Charter by the summary conviction appeal court judge was unnecessary. Thus there was error in law in allowing the appeals on the basis of Charter violations. Accordingly, we grant leave to appeal and we find, for the reasons that we have given, that the appeals succeed. We order that the acquittal of each respondent be set aside and the conviction of each respondent and the fine imposed upon him by the trial judge be restored. There will be no costs. C.J.N.S. Concurred in: Hallett, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 C.H. 69586 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and JAMES ARTHUR GOODWIN HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert MacCarroll, Esq., for the Crown/Respondent Ronald MacDonald, Esq., for the Applicant CASE ON APPEAL CANADA PROVINCE OF NOVA SCOTIA 1990 C.H.70076 C.H.69585 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and DOUGLAS CHARLES ADSHADE HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert P. MacCarroll, Esq., for the Crown/Respondent Ronald J. MacDonald, Esq., for the Applicant CASE ON APPEAL CANADA PROVINCE OF NOVA SCOTIA 1990 C.H. 69587 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and JAMES GELDERT BOYD Appellant HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert P. McCarroll, Esq., for the Crown/Respondent Ronald J. MacDonald, Esq., for the Appellant CASE ON APPEAL S.C.C. 02386/87/88 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN, and DOUGLAS CHARLES ADSHADE, JAMES GELDERT BOYD, and JAMES ARTHUR GOODWIN, Respondents REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.","The Crown appealed a decision which overturned the respondent's convictions on charges of operating overweight vehicles contrary to s.172 of the Motor Vehicle Act. The Court had overturned the convictions on the ground that the reverse onus provision of s.172, respecting the accuracy of the scale, violated s. 11(d) of the Charter. Allowing the appeal and restoring the convictions, that the trial judge did not rely on the prima facie effect of the Crown's evidence, but rather had ample evidence concerning the accuracy of the scales upon which to rely.",1991canlii2608.txt
56,"NOVA SCOTIA COURT OF APPEAL Citation: Electric Ltd. v. Oickle, 2006 NSCA 41 Date: 20060405 Docket: CA 254776 Registry: Halifax Between: Electric Limited, Ross M. Bunnell and Rosemary Fraser v. Larry B. Oickle and Valorie Oickle Respondents Judges: Bateman, Freeman and Hamilton, JJ.A. Appeal Heard: January 20, 2006, in Halifax, Nova Scotia Held: Leave to appeal granted, but appeal dismissed, as per reasons for judgment of Hamilton, J.A.; Bateman and Freeman, JJ.A. concurring. Counsel: Martin C. Dumke Rubin Dexter, for the appellant Victor J. Goldberg Martha L. Mann, for the respondent Reasons for judgment: [1] This appeal involves falling out among shareholders of closely held company, Electric Limited (the “Company”), one of the appellants. Ross M. Bunnell, the other appellant, and Larry B. Oickle, the respondent, each own or claim to own about 40% of the outstanding shares. Mr. Bunnell and Rosemary Fraser, another shareholder, continue to work for the Company. Mr. Oickle no longer works for the Company. The Company sued Mr. Oickle. He filed defence and counterclaim admitting certain allegations in the statement of claim. [2] On application by Mr. Oickle, Justice Gerald R.P. Moir permitted amendment of his defence to withdraw the admissions and to add claim for an “oppression remedy” to Mr. Oickle’s counterclaim for alleged misdeeds of Mr. Bunnell. The judge also granted leave to Mr. Oickle to commence derivative action in the name of the Company for alleged misdeeds of Mr. Bunnell and Ms. Fraser. Mr. Bunnell and the Company appeal the order permitting these alterations to the pleadings. [3] For the reasons hereinafter set out, I would grant leave to appeal, but dismiss the appeal. [4] The judge sets out some facts at the beginning of his decision, reported as (2005), 2005 NSSC 110 (CanLII), 233 N.S.R. (2d) 244: [1] Larry Oickle and Ross Bunnell were in business together for many years. They founded L&B Electric Limited in 1985, split the shares equally and took positions as officers and directors. They lent money to the company and underwrote its bank debts. Oickle provided labour and skill as an electrical technician. Bunnell was the manager. [2] Apparently the business relationship continued amicably until 2002. In the meantime, Oickle’s legal relationship with the company underwent changes. Not long after incorporation, he resigned as director and he transferred his shares to Bunnell to keep the business out of Oickle’s divorce. (His statement of property in the divorce proceedings was false or misleading.) In 1994, Oickle, Bunnell and group of eleven employees entered into an arrangement under which Oickle and Bunnell took 4000 shares and 3900 shares respectively, about 80% of the shares in the company, and the remaining 20% went to eleven employees. Although he claims he attempted to do so, Oickle never regained spot on the board of directors. Instead, Bunnell and the eleven employees elected the company’s controller, Rosemary Fraser, as director and officer along with Bunnell. [3] Mr. Oickle resigned from the company in early 2003. The company claims to have discovered misconduct after Oickle left and it sued him in March 2003. The statement of claim alleges that Oickle surreptitiously competed against the company during his employment, appropriated opportunities that would have been available to the company, and misused company resources to support his competition. The plaintiff claims an accounting, damages and an injunction on account of alleged breaches of fiduciary obligations and it claims declaratory and injunctive relief to give effect to provision in the shareholders agreement by which shares are forfeited upon termination for misconduct. [4] Mr. Oickle’s former solicitor filed defence and counterclaim. The defence denies the alleged competition. It admits averments in the statement of claim underpinning the claim that Oickle owed fiduciary duties to the company that prevented him from competing with it. The defence also denies the applicability of the provision in the shareholder’s agreement respecting forfeiture upon termination for misconduct. [5] The counterclaim seeks declaration that the company is obligated to purchase Oickle’s shares under buyback provision. It also alleges that, from the beginning, Oickle and Bunnell had agreed to draw equally from the company, an agreement allegedly breached by Bunnell or the company in recent years. So, the counterclaim seeks damages to re-balance the salaries. Finally, the counterclaim alleges Bunnell used his position of administrative control to direct funds to Bunnell’s personal use and to charity of his, the South Shore Waldorf School Association, where Ms. Fraser’s son is student. The counterclaim seeks an order for an audit of affairs of the company pertinent to both the Bunnell and the Oickle allegations of misconduct. [6] Mr. Oickle’s new counsel, Mr. Goldberg, applied for orders adding Ms. Fraser as defendant, amending the defence to remove the admissions of fiduciary duty and to include certain admissions about competition and amending the counterclaim to claim additional relief including shareholder oppression remedies. Further, Mr. Oickle applied for leave to bring derivative action on behalf of the company against Bunnell and Fraser. [5] There are additional relevant facts. [6] Mr. Oickle alleges in his counterclaim that his office at the Company was taken away from him without any notice in early 1995 forcing him to work out of his truck from then on. He alleges this led him to resign in February 1995, which resignation he later withdrew. [7] As set out in of the judge’s decision quoted in above, Mr. Oickle again resigned from the Company in early 2003 and the Company sued him. After commencing its law suit, the Company applied for an interim injunction restraining Mr. Oickle from soliciting the Company’s customers or from competing with it. Mr. Oickle applied for an injunction restraining the Company from holding planned shareholder’s meeting at which it was intended that final decision would be made to terminate his employment and invoke the forfeiture provisions respecting his shares of the Company provided for in the 1994 shareholder agreement. [8] Neither application was heard because the parties reached an agreement and consent order dated April 22, 2004 was granted by Stewart, J. That order provided: 1. The Plaintiff, Electric Limited, may proceed to hold the shareholders meeting on Friday, the 28th day of March, 2003 at 3:00 o'clock in the afternoon for the purpose of making final decision to permanently terminate the employment of the Defendant, Larry B. Oickle, and to invoke the token buy‑back share value of 1.00, as per the terms of paragraph 5.03 of the Shareholder Agreement dated the 3rd day of June, 1994. 2. The Defendant, Larry B. Oickle, hereby waives any notice requirement, formal or otherwise, of the said shareholders meeting. 3. The provisions of paragraph 5.03 of the said Shareholder Agreement: ""The date of surrender of shares and payout of TOKEN BUY BACK VALUE shall be within 30 days of employment termination."" shall be suspended pending the outcome of the within proceeding and the said thirty days shall commence to run only after the determination by this Honourable Court as to whether the Plaintiff, Electric Limited, had the right to terminate the employment of the Defendant, Larry B. Oickle, pursuant to paragraph 5.03 of the said Shareholder Agreement. 4. All other provisions of paragraph 5.03 shall remain in full force and effect and without restricting the generality of the foregoing, the rights of the Defendant, Larry B. Oickle, as shareholder of the Plaintiff, Electric Limited, are hereby suspended, save that the Defendant, Larry B. Oickle, shall be entitled to copies of any and all offers, if any, to purchase the Plaintiff, Electric Limited. 5. Until further order of this Honourable Court, the Plaintiff, Electric Limited, shall continue to operate in its usual and ordinary course. [9] As set out previously, Mr. Oickle subsequently retained new counsel in August of 2004. This was necessitated as result of his former lawyer’s suspension from the practice of law by the Nova Scotia Barristers’ Society. During discovery of Mr. Bunnell in November of 2004, Mr. Oickle’s new counsel sought an adjournment to allow him to bring the application that gave rise to the order under appeal. [10] Later in November of 2004, Mr. Oickle gave to the Company’s directors, Mr. Bunnell and Ms. Fraser, the notice required by s. 4(2)(a) of the Third Schedule to the Companies Act, R.S.N.S. 1989, c.81, indicating that if they did not cause the Company to commence law suit against themselves for alleged wrongdoings, that he intended to apply to the court for leave to commence derivative action in the name of the Company for this purpose. [11] As result of this notice the shareholders of the Company, other than Mr. Oickle, met on November 28, 2004 and unanimously passed resolution rejecting the suggestion that the Company commence law suit against Mr. Bunnell and Ms. Fraser. Mr. Bunnell and Ms. Fraser were present at the meeting but abstained from voting. At the same meeting the shareholders appointed Carolyn Selig, another shareholder and employee, as third director of the Company. [12] On learning of this resolution, Mr. Oickle made the application that gives rise to this appeal. Standard of Review [13] The standard of review on an appeal such as this is well settled: this court will not interfere with the discretionary interlocutory decision of the judge unless wrong principles of law have been applied or patent injustice would result, Minkoff v. Poole and Lambert (1991), 1991 CanLII 2516 (NS CA), 101 N.S.R. (2d) 143 (N.S.C.A.) at p. 145. An appeal from discretionary order is not an occasion that permits this court to re-weigh the various relevant considerations and exercise its discretion in place of that of the judge of first instance. Cluett v. Metro Computerized Bookkeeping Ltd. (2005), 2005 NSCA 84 (CanLII), 233 N.S.R. (2d) 237 at 2. [14] The four grounds of appeal raised by the appellants are that the judge erred in: (1) permitting Mr. Oickle to amend his defence to withdraw certain admissions he made in his defence; (2) permitting Mr. Oickle to amend his counterclaim to include claim for an “oppression remedy” pursuant to s. of the Third Schedule to the Companies Act; (3) granting Mr. Oickle leave to commence derivative action for and on behalf of the Company against Mr. Bunnell and Ms. Fraser pursuant to s. of the Third Schedule; and (4) imposing the terms he did on the derivative action, specifically the retention by Mr. Oickle of an accountant at the Company’s expense and requiring disclosure to the accountant. Withdrawal of Admissions [15] The first ground of appeal is that the judge erred in allowing Mr. Oickle to amend his defence to withdraw certain admissions he made. [16] In 4, and of the Company’s statement of claim, which paragraphs are set out in 13 of the judge’s decision, the Company described the type of work performed by Mr. Oickle for the Company over the years, alleged that an implied term of his employment contract was that he owed duty of good faith and fidelity to the Company and that he was senior and/or key employee of the Company who owed fiduciary duties to the Company. [17] These were the allegations Mr. Oickle admitted in his defence and later sought to withdraw. [18] In granting Mr. Oickle’s application, the judge stated: [18] Mr. Goldberg offers simple reason for withdrawing the admissions and making the other amendments in this case. new solicitor is seeing the defendants' case with different eyes. Mr. and Ms. Oickle cannot be represented by the counsel of their choice. The Barristers' Society has suspended him. Out of necessity, the Oickles have retained new counsel who clearly has different conception of their case. He is dropping cause of action in defamation. He is turning to legislated causes in commercial law. And, he has different assessment of the place Mr. Oickle truly occupied in relation to the company. The affidavits show that there may be real difficulties characterizing Mr. Oickle's legal relation to the company. The paragraphs at issue in the statement of claim allege duties and responsibilities of employment (para. 4), an implied term for good faith and fidelity (para. 5), and fiduciary duties (para. 6). The same lawyer could easily come to different conclusions on the accuracy of these averments as the lawyer becomes more aware of the evidence. Different lawyers could easily come to different conclusions on the same instructions. [19] In the circumstances of this case, new counsel\'s need to defend according to counsel\'s assessment of the facts is a strong reason for concluding that it would be unjust to hold the defendants to the admissions in the defence drawn by former counsel. There are no equities weighing significantly against the justice of the defendants' request. There was no agreement or undertaking. see no detrimental reliance, no estoppel. If counsel's efforts are lost or need to be duplicated for the plaintiff, the Court can adjust when costs are determined. am prepared to exercise my discretion in favour of the defendants request. (Emphasis added) [19] In their factum the appellants reviewed two lines of authorities specifying the test to be applied by court faced with an application to allow the withdrawal of admissions: the cases such as Phil Whittaker Logging Ltd. v. British Columbia Hydro and Power Authority, [1985] B.C.J. No. 2736 (B.C.S.C.) and Antipas v. Coroneos, [1988] O.J. No. 137 (Ont. H.C.J.) and the cases such as Abacus Cities Ltd. v. Port Moody, 1981 CanLII 402 (BC CA), [1981] B.C.J. No. 1668 (CA) and Norlympia Seafoods Ltd. v. Dale and Co. Ltd. (1982), 1982 CanLII 491 (BC CA), 141 D.L.R. (3d) 733 (B.C.C.A.). They noted that in the present case the judge applied what they state is the less restrictive test approved in Abacus, supra: “...a judicial admission should be allowed to be withdrawn if, in the circumstances, the court is satisfied that it is in the interest of justice to withdraw same.” [20] They also noted that the judge chose that test because he determined that it best fit the words used in Civil Procedure Rule 21.02(4): (4) The court may at any time allow any party to withdraw any admission or denial upon such terms as are just. [21] The appellants do not say the judge applied the wrong test but that the only difference between the two lines of cases is one of semantics not substance, relying on Tymkin v. Winnipeg (City) Police Service, [2003] M.J. No. 284, 20. Instead, they take issue with the result reached by the judge. [22] In light of the appellants’ position, have assumed without deciding, that the judge did not err in the test he applied when he determined that Mr. Oickle should be permitted to withdraw his admissions. [23] What the appellants did argue was that the judge erred by making his decision in the absence of evidence indicating that it was just to do so. They argued there was no evidence before the judge that there was triable issue disclosed in 4, 5, and of the statement of claim. They argued the judge allowed these admissions to be withdrawn solely on the basis there was change of counsel, and that this was an error of law. [24] am satisfied there was evidence before the judge on which he could conclude that it was just to grant the amendment and that there was triable issue with respect to the allegations in 4, and of the statement of claim. The judge concluded there was triable issue in 18 of his decision which is quoted at 18 above: “The affidavits show that there may be real difficulties in characterizing Mr. Oickle’s legal relation to the company.” [25] The judge had before him the affidavits of Mr. Oickle, Ms. Selig and Ms. Fraser. Each affiant was cross-examined before him over the course of nearly full day. The affidavits could be interpreted as disclosing that the nature of Mr. Oickle’s position within the Company was uncertain. Ms. Selig’s affidavit refers to Mr. Oickle’s resignation from the Company in early 1995, the resignation Mr. Oickle alleges occurred after his office at the Company was taken away from him without notice, forcing him to work out of his truck from then on. The affidavits could be taken to further suggest that there was refocusing of the Company to service industrial accounts at the instance of Mr. Bunnell. In she states: “Oickle consistently fought against such move.” An inference that could be drawn from the Selig affidavit is that Mr. Bunnell and Ms. Fraser took control of the refocused Company leaving Mr. Oickle behind. [26] Ms. Fraser indicates in 3. h. of her affidavit that she refused to comply with directions given to her by Mr. Oickle. Mr. Oickle’s affidavit refers to the alleged control Mr. Bunnell and Ms. Fraser had over the Company and its money, to his exclusion. Thus there was evidence before the judge from which he could conclude that there was triable issue raised by 4, and of the statement of claim and, therefore, that it was just to grant the amendment sought. [27] In addition to the affidavit evidence before him, the judge had the pleadings which revealed the fundamental nature of Mr. Oickle’s admissions. From this material the judge was aware of the alleged discord among the parties over long period of time causing him to draw an analogy between disputes of this kind among shareholders of closely held company and the acrimony which often accompanies divorce. For example, Mr. Oickle alleged that in 1986 Mr. Bunnell had encouraged him to transfer his shares of the Company to Mr. Bunnell and to resign as director until his divorce was concluded. Mr. Oickle described his unsuccessful attempts to regain his shares and directorship following the conclusion of his divorce, finally obtaining shares in 1994 but never being reinstated as director. [28] The judge was aware that Mr. Oickle was forced to obtain new counsel through no fault of his own after his defence was filed. He knew that it was during the discovery of Mr. Bunnell that Mr. Oickle’s new counsel decided to seek the amendment. The judge was aware that all of the requested amendments to the defence and counterclaim, which included the deletion of Mr. Oickle’s original claim for defamation, indicated significant change in focus for Mr. Oickle. He knew the action was in its early stages and that Mr. Oickle had not been discovered. He knew there was no agreement between counsel and no undertaking regarding the admissions that could give rise to promissory estoppel as it had in Wilson v. Sears Canada Inc. (1990), 1990 CanLII 2446 (NS CA), 96 N.S.R. (2d) 361 (C.A.). He knew any prejudice to the appellants in the form of lost counsel’s efforts could be compensated for in costs. [29] With this information before him am satisfied the judge did not apply wrong principle or make an unjust order in allowing Mr. Oickle to amend his defence to withdraw his admissions. It was not error for the judge to take into account the significant role that Mr. Oickle’s forced change of counsel had played in refocusing his defence. Rule 21.02(4) permits the withdrawal of admissions at any time. It is broad enough to allow judge to weigh the competing policies of the right of party to have triable issue tried with the need for expedient and responsible litigation, in determining what is just. Oppression Remedy [30] The appellants’ second ground of appeal is that the judge erred in permitting Mr. Oickle to amend his counterclaim to include claim for an “oppression remedy” pursuant to s. of the Third Schedule to the Companies Act. [31] Section of the Third Schedule permits “complainant” to seek redress in court for oppressive or unfairly prejudicial conduct or for conduct that unfairly disregards certain interests: (1) complainant may apply to the court for an order under this Section. (2) If, upon an application under subsection (1) of this Section, the court is satisfied that in respect of company or any of its affiliates (a) any act or omission of the company or any of its affiliates effects result; (b) the business or affairs of the company or any of its affiliates are or have been carried on or conducted in manner; or (c) the powers of the directors of the company or any of its affiliates are or have been exercised in manner, that it is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, the court may make an order to rectify the matters complained of. (Emphasis added) [32] Section 7(5)(b) of the Third Schedule defines the word “complainant”: (b) “complainant” means (i) registered holder or beneficial owner, and former registered holder or beneficial owner, of security of company or any of its affiliates, (ii) director or an officer or former director or officer of company or of any of its affiliates, (iii) the Registrar, or (iv) any other person who, in the discretion of the court, is proper person to make an application under this Section. (Emphasis added) [33] The appellants argued that the judge erred in exercising his discretion in favour of finding that Mr. Oickle was “complainant” under s. 7(5)(b) of the Third Schedule, and hence under s. 5(1), because he (1) misinterpreted the effect of the April 22, 2004 consent order, referred to in above, on Mr. Oickle’s rights as former shareholder, (2) failed to give proper weight to the lack of temporal connection between the time over which Mr. Oickle owned shares of the Company and the impugned acts of oppression, and (3) failed to consider whether Mr. Oickle had “significant interest” in the impugned acts. [34] After considering the effect of the consent order, the judge determined Mr. Oickle was “complainant” within s. 5(1) on the basis that he was former shareholder of the Company: [23] Mr. Oickle's present status as shareholder of L&B is clouded by both the dispute concerning the treatment of his shares and by the consent order suspending his rights as shareholder. However, his past status is clear. Clearly, he was shareholder of L&B. Indeed, he held the most shares. Whether he can presently assert rights as shareholder, he is plainly within the words ""a former registered holder or beneficial owner, of security"". His ownership of shares was contemporaneous with the events about which he complains. Therefore, he is within the definition of ""complainant"" and has status to apply for an oppression remedy. (Emphasis added) [35] The appellants admitted that Mr. Oickle was “former registered holder” of shares of the Company but they argued that the provisions of the consent order suspended any rights he had in that capacity, taking him outside the legislated meaning of “complainant.” [36] Clause 4. of the consent order states: All other provisions of paragraph 5.03 shall remain in full force and effect and without restricting the generality of the foregoing, the rights of the Defendant, Larry B. Oickle, as shareholder of the Plaintiff, L&B Electric Limited, are hereby suspended, save that the Defendant, Larry B. Oickle, shall be entitled to copies of any and all offers, if any, to purchase the Plaintiff, L&B Electric Limited. (Emphasis added) [37] The appellants have not satisfied me that the judge erred in rejecting this argument. The words used in clause of the order are that Mr. Oickle’s rights as shareholder “are hereby suspended.” A reasonable interpretation of these words is that which was given to them by the judge: that Mr. Oickle’s rights as an existing shareholder were suspended by the consent order, and not his rights as a former shareholder. In other words, that the order spoke prospectively not retroactively. Had the parties intended to provide for retroactive suspension, such should have been stated. [38] The appellants stated in their factum that Mr. Oickle was only shareholder from October 1985 to July 1986. Therefore, they say, there was no temporal connection between Mr. Oickle’s shareholding and the impugned acts of oppression. They relied on Jacobs Farms Ltd. v. Jacobs, [1992] O.J. No. 813 (Ont. Ct. Gen. Div.) (Q.L.) to support their argument that there must be temporal connection between the impugned acts and the time during which Mr. Oickle owned shares of the Company. [39] In Jacobs Farms, supra, the court refused to grant leave to former shareholders to bring derivative action where the corporate actions complained of took place after they ceased to be shareholders and where the value of the shares was not affected by the impugned acts: Frans Jacobs is former shareholder and former director of Jacobs Farms Limited. On the surface, then, he would appear to qualify as complainant. It could not have been the intention of the Legislature, however, to clothe every former shareholder and every former director with the status of complainant for purposes of bringing derivative action. Such an interpretation could lead to absurd situations. There must be some parameters within which the concepts of ""former"" shareholder and ""former"" director are confined. Those parameters can reasonably be drawn by requiring some connection between the timing of the events which are the subject matter of the proposed derivative action and the position of the applicant as shareholder or director. (Emphasis added) [40] While Jacobs Farms, supra, dealt with the question of who was “complainant” under s. 245(b) the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 in the context of derivative action, rather than who was “complainant” with respect to an “oppression remedy,” the issue in this ground of appeal, the case is relevant because s. 7(5)(b) of the Third Schedule defines “complainant” for both purposes and the definition of “complainant” in the Ontario Act is similar to that in the Companies Act. It is only “complainant” within the meaning of s. 7(5)(b) who can claim an “oppression remedy” pursuant to s. or seek the leave of the court to bring derivative action in the name of company pursuant to s. 4. Therefore similar considerations apply. [41] see no merit to the “temporal connection” argument of the appellants. Paragraph 23 of the judge’s decision, quoted in 34 above, makes it clear he considered this issue: “Mr. Oickle’s ownership of shares was contemporaneous with the events about which he complains.” The evidence before the judge could reasonably support the position that Mr. Oickle was registered shareholder from 1985 to 1986 before his divorce arose and that he was beneficial shareholder from 1986 to 1994. There is also no dispute he became registered shareholder again in 1994 and continued to hold shares of the Company until at least 2003. The alleged oppressive actions Mr. Oickle complains of took place during this time when he was shareholder. Therefore there is a temporal connection. [42] also see no merit to the appellants’ “sufficient interest” argument. They rely on the case of Michalak v. Biotech Electronics Ltd., [1986] Q.J. No. 1882 (Q.S.C.(C.D.)) for this argument. [43] In Michalak, supra, the court refused to order an investigation pursuant to s. 222 of the Canada Business Corporations Act, S.C., 1974-76-76, c. 33, into alleged oppressive actions by the company’s management which was sought by former shareholders who felt they had been earlier induced to sell their shares of the company by fraudulent misrepresentations of management. The definition of “complainant” in s. 231 of the CBCA, similar to s. 7(5)(b) of the Third Schedule, was relevant to the issue before the court. In obiter the court stated that in addition to being former shareholder, an applicant must have sufficient interest to justify allowing them to take certain steps under the CBCA: 22 Quite apart from the foregoing there is further test which the application must meet and that is the test of the interest of the applicants to initiate these proceedings. Quite apart from the fact that the applicants, as former shareholders, may enjoy statutory right to bring these proceedings that right, in my respectful view, does not automatically invest them with sufficient interest. Again if that interest does not appear from the face of the proceedings to be viable one then motion to dismiss will lie. (Emphasis added) [44] The “sufficient interest rule” was restated in Schafer v. International Capital Corp., (1996) 1996 CanLII 6845 (SK QB), 153 Sask. R. 241 at 22; Such rule is required to distinguish between applicants who have bona fide potential financial stake through the corporation in the outcome of the derivative action and applicants who seek leave for an improper purpose. [45] Once again, the evidence before the judge could reasonably support the conclusion that Mr. Oickle has sufficient interest in his claim for an “oppression remedy.” Unlike the situation in Jacobs Farms, the oppressive conduct alleged by Mr. Oickle could materially impact the value of his shares. It could also affect his position as current creditor of the Company and as guarantor of the Company’s line of credit to its bank. If the actions of Mr. Bunnell for instance, are found to come within the paragraph of the shareholder agreement giving rise to forfeiture of his shares, the value of the other shares of the Company including those of Mr. Oickle will rise significantly. [46] It should also be remembered that s. of the Third Schedule does not require leave of the court to commence claim for an “oppression remedy.” If the judge had refused to permit the amendment, Mr. Oickle could have commenced separate action. Therefore, as the judge noted in his decision, in essence the matter before him was one of consolidation of actions: [24] Mr. Oickle needs no assistance to apply for an oppression remedy. He could bring separate proceedings. Because the statute so provides, they would have to be started by way of application rather than action. In effect, Mr. Oickle is, by the present application, applying for consolidation and for trial of the oppression issue. The application is well within the principles for consolidation and for amendment of pleadings. [47] am satisfied the judge did not apply wrong principle or make an unjust prder in permitting Mr. Oickle to amend his counterclaim to include claim for an “oppression remedy.” Derivative Action [48] The appellants third ground of appeal is that the judge erred in granting Mr. Oickle leave to commence derivative action for and on behalf of the Company against Mr. Bunnell and Ms. Fraser pursuant to s. of the Third Schedule. [49] Mr. Oickle sought to commence derivative action to address his allegations that Mr. Bunnell and Ms. Fraser, as the only directors of the Company with unfettered control over the Company’s money, used the Company’s money for purposes other than the benefit of its stakeholders; that they used it as their “personal piggy bank.” The judge described the nature of the proposed derivative action: [29] The facts underpinning the cause would involve those asserted in Mr. Oickle’s personal claim against Mr. Bunnell. In summary: the officers permitted Mr. Bunnell to draw funds from the company for personal use (Defence and Counterclaim para.16), they cause the company to pay his personal expenses to be repaid at his discretion (para.16), they failed to account for revenue or expenses in division of the company (para.17), and they allowed the company to cover cash transactions of Mr. Bunnell without particulars (para.18). [50] The statutory authority to bring an action in the name of and on behalf of company is found in s. of the Third Schedule: (1) Subject to subsection (2) of this Section, complainant may apply to the court for leave to bring an action in the name and on behalf of the company or any of its subsidiaries, or intervene in an action to which any such body corporate is party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the body corporate. (2) No action may be brought and no intervention in an action may be made under subsection (1) of this Section unless the court is satisfied that (a) the complainant has given reasonable notice to the directors of the company or its subsidiary of his intention to apply to the court under subsection (1) of this Section if the directors of the company or its subsidiary do not bring, diligently prosecute or defend or discontinue the action; (b) the complainant is acting in good faith; and (c) it appears to be in the interests of the company or its subsidiary that the action be brought, prosecuted, defended or discontinued. (Emphasis added) [51] As stated in 40 above, it is only “complainant” as defined in s. 7(5)(b) of the Third Schedule who can seek the leave of the court to commence derivative action under s. and who can claim an “oppression remedy” under s. 5. have already dealt with the appellants’ status as “complainant” when dealt with the second ground of appeal. will not repeat it here. Suffice it to say that am not satisfied the judge erred in finding Mr. Oickle was “complainant” within s. 7(5)(b) of the Third Schedule for the purpose of commencing derivative action. [52] The appellants agreed Mr. Oickle met the first criterion in s. 4(2)(a) of the Third Schedule of giving reasonable notice to the Company’s directors. They argued however that the judge erred in his determination that Mr. Oickle met the second criterion of “good faith” in s. 4(2)(b) and the third criterion of being in “the interests of the company” in s. 4(2)(c). [53] will deal first with their argument relating to good faith. The judge found that the “onus”on Mr. Oickle to prove that he was acting in good faith was to satisfy the court by preponderance of evidence, not some higher burden: [52] In my respectful opinion, it is not appropriate to require the applicant to meet burden that is any higher than what the statute provides. The statute provides “No action may be brought under subsection (1) unless the court is satisfied that. (b) the complainant is acting in good faith”. This text is consistent with the ordinary rules on onus and burden. The proponent bears the onus of satisfying the Court. The Court will be satisfied by preponderance of evidence. have already discussed the history of this legislation towards ascertaining its purposes and scheme (see para. 34 to 42 above). With great respect for the contrary view expressed by Puddester, J. in Tremblett, the history, purposes and scheme of this legislation do not support the imposition of higher burden than the statutory text provides. Particularly, there is no indication of Parliamentary or Legislative intent to restrict access to the derivative action out of deference to the principles of indoor management or majority rule. [54] The appellants have not argued that the judge erred in applying the ordinary burden. Accordingly, for the purposes of this appeal have assumed, without deciding, that this is the correct burden. [55] The appellants argue, however, that the judge erred in finding that Mr. Oickle was acting in good faith when, they say, there was no evidence before him that could support such conclusion. They argued the only evidence before the judge supported finding that he was not acting in good faith. [56] The judge considered whether Mr. Oickle was acting in good faith: [53] Mr. Dexter's submission emphasises Mr. Oickle's position as defendant in the initial suit. He says that the allegations against Mr. Oickle are such that putting him in charge of litigation on behalf of the company against directors would be like putting fox in charge of the hen house. Self‑interest does not exclude finding of good faith: Richardson Greenshields of Canada v. Kalmacoff (1995), 1995 CanLII 1739 (ON CA), 123 D.L.R. (4th) 628 (ONCA) at p. 638. must consider all of the circumstances, including that the proposal to bring this suit follows upon the proponent having been sued for his alleged wrongdoing towards the company. [54] We have here breakdown of business relationship in closely held corporation. This is where commercial litigation most resembles contested divorce actions. The required findings are so circumstantial and the circumstances are spread over such long time that the disputes need trial to settle the facts. That is one indication that the disputes should be treated as bona fide. [55] have already found that there is enough substance to Mr. Oickle's allegations that suit is in the interests of the corporation. That there appears to be substance to the claims is factor going to good faith. [56] We have allegations of wrongdoing coming out of broken business relationship that had been almost equal. There is apparent substance to the allegations going both ways. That being so, it is unfair that the resources of the company should back one side and not the other. The fairness of having the company's substantial resources made neutral by being made equally supportive is another factor underlying my finding that the proposal for derivative action is made in good faith. (Emphasis added) [57] The judge’s statement in 55 of his decision quoted above in 55 above, that there appears to be substance to Mr. Oickle’s claims, refers to an earlier paragraph in his decision: [47] Mr. Oickle has presented evidence which, if accepted, could reasonably lead to the conclusion that Mr. Bunnell’s salary has been substantially overpaid. The evidence of Ms. Fraser and Ms. Selig is not so compelling that the claim fails to raise genuine issue for trial. On the contrary, if there was shareholders agreement limiting Mr. Bunnell’s salary, the evidence of Ms. Fraser and Ms. Selig might not undermine that agreement even if their evidence is accepted. Mr. Oickle has also presented evidence of unusual transactions that were to Mr. Bunnell’s benefit or that of his charity and at the company’s expense. Evidence of the kind offered by Ms. Fraser and Ms. Selig might show that these transactions were usual to the company and were authorized, albeit in casual way. However, am in no position to say that evidence will be accepted or, if accepted, will lead to finding that the expenditures were legal. am satisfied that the evidence presented by Mr. Oickle, coupled with that offered in reply and on cross-examination, shows that the company has claims that could reasonably be presented and would require trial to resolve. (Emphasis added) [58] The appellants say the evidence conclusively pointed to lack of good faith on Mr. Oickle’s part: He was in competition with the Company; he only wanted money from the Company for his shares and to equalize payments made to Mr. Bunnell and not the opportunity to run the Company himself (which allegation is denied by Mr. Oickle’s counsel); his application was made too late because he knew when he filed his defence and counterclaim that Mr. Bunnell had received more money from the Company than he had; the allegations he made in his proposed derivative action were the same allegations he made in his counterclaim; the relief sought in the derivative action of getting rid of the present management of the Company would “decapitate” it and he brought his application only after he was sued by the Company. [59] As set out by D. H. Peterson, Shareholder Remedies in Canada (Markham, ON: LexisNexis, 1989) at p. 17.22 “good faith” is question of fact: §17.39 Good faith is said to exist where there is prima facie evidence that the applicant is acting with proper motives, such as reasonable belief in its claim, and is ultimately question of fact to be determined on all of the evidence and the particular circumstances of the case. [60] This principle is restated in Winfield v. Daniel (2004), 2004 ABQB 40 (CanLII), 352 A.R. 82: 16 Section 240(2)(b) of the Act requires that the Court be satisfied that the complainant is acting in good faith. Good faith is said to exist where there is prima facie evidence that the complainant is acting with proper motives such as reasonable belief in the merits of the claim. Good faith is question of fact to be determined on the facts of each case. The typical approach by the Courts is not to attempt to define good faith but rather to analyse each set of facts for the existence of bad faith on the part of the applicant. If bad faith is found, then the requirement of good faith has not been met: D.H. Peterson, Shareholder Remedies in Canada, (Markham, ON: LexisNexis, 1989) at 17.39. [61] The determination as to whether Mr. Oickle was acting in good faith was for the judge as the trier of fact. He made his determination after reviewing the pleadings and the affidavits and after hearing the cross-examination and submissions. In 30 of his decision he commented on his advantage in hearing cross-examination of the affiants. This court will not interfere with finding of fact unless there is palpable and overriding error. Housen Nickolasen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235. [62] In reaching his decision the judge considered relevant factors. There was evidence before him from which he could conclude that Mr. Oickle was acting in good faith. The appellants have not satisfied me that this finding by the judge was palpable and overriding error. [63] The judge took into consideration that Mr. Oickle had been sued by the Company. He stated in the last sentence in 53 of his decision quoted above in 55 above; “I must consider all of the circumstances, including that the proposal to bring this suit follows upon the proponent having been sued for his alleged wrongdoing towards the company.” He also considered that Mr. Oickle had self-interest in bringing the derivative action, but found this did not exclude finding of good faith. This position is supported by Title (Estate) v. Harris (1990), 1990 CanLII 6784 (ON SC), 67 D.L.R. (4th) 619 (Ont. H.C.J.); Winfield v. Daniel, supra, 20; and Schafer v. International Capital Corp. (1996), 1996 CanLII 6845 (SK QB), 153 Sask. R. 241 at 32. [64] The judge considered whether there was genuine issue for trial in the derivative action and whether the proposed action was frivolous or vexatious. These are relevant factors in assessing the issue of good faith, Winfield v. Daniel, supra, at 17 and 27; and Re Marc-Jay Investments Inc. and Levy (1974), 1974 CanLII 786 (ON SC), 50 D.L.R. (3d) 45 (Ont. H.C.). In 47 of his decision quoted in 56 above, the judge reviewed the evidence that led him to conclude that there was genuine issue for trial. There is nothing unjust about the judge’s determination on the facts of this case that the Company’s resources should be equally supportive of both parties. [65] The fact some of the claims in the derivative action are the same as those in Mr. Oickle’s counterclaim is not determinative of bad faith, Winfield, supra, 20. While the claims are similar, the remedies sought in the derivative action are different from those sought in the counterclaim. The derivative action seeks declaration that Mr. Bunnell’s and Ms. Fraser’s employment with the Company be terminated for cause and that the termination fell within the section of the shareholders’ agreement that would cause the forfeiture of their shares of the Company. It seeks mandatory injunction requiring Mr. Bunnell and Ms. Fraser to sell their respective shares to the Company for $1.00 in accordance with the forfeiture provisions of the shareholders’ agreement. It seeks permanent injunction restraining Mr. Bunnell and Ms. Fraser from further participation in the affairs of the Company. These remedies were not available to Mr. Oickle in his personal action. [66] In addition, the only avenue available to Mr. Oickle to pursue remedies against Ms. Fraser was through the derivative action because the judge found, and his finding was not appealed, that the rule is Foss v. Harbottle, (1843), Hare 461, 67 E.R. 1989 (Ch.) prevented Mr. Oickle from adding Ms. Fraser as party to his counterclaim as he had sought to do: [10] The facts alleged by Mr. Oickle do not support any cause of action he personally may have against Ms. Fraser personally. [11] The law articulated in Foss v. Harbottle, (1843), Hare 461, 67 E.R. 1989 (Ch.) was under severe criticism by the mid‑twentieth century. Professor Dickerson referred to it as “that infamous doctrine” in Canada, Proposals for New Business Corporations Law for Canada by Robert W. V. Dickerson, John L. Howard and Leon Getz, vol. (Ottawa: Information Canada, 1971) at p. 161. Professor Gower himself wrote of “The major absurdity of the Foss v. Harbottle rule” in L.C.B. Gower, The Principles of Modern Company Law, 3rd ed. (London: Stevens Sons, 1969) at p. 582. However, the problem was not with the basic law in Foss v. Harbottle. The problem was with the lengths to which the courts, including the court in Foss v. Harbottle itself, had gone in making formalized and categorical rules that were supposed to give effect to the basic law in Foss v. Harbottle. The basic law was that shareholder cannot sue for diminished value of shares or for any other recovery on account of wrong done to the corporation. Any suit is to be brought by the corporation “or in the name of someone whom the law has appointed to be its representative” (Foss v. Harbottle at p. 490 in the Hare report or at p. 202 in the English Reports). That element of the common law was re‑affirmed by the Supreme Court of Canada at the very time that legislative reform was coming to Canada: Burrows and others v. Becker and others (1968), 1968 CanLII 57 (SCC), 70 D.L.R. (2d) 433 (SCC), p. 441. And, it remains sound to this day as long as one allows for the modification brought about by legislation creating derivate actions. “[I]ndividual shareholders have no cause of action for any wrongs done to the corporation and...if an action is to be brought in respect of such losses, it must be brought either by the corporation itself (through management) or by way of derivative action.”: Hercules Management Ltd. and others v. Ernst Young and others (1997), 1997 CanLII 345 (SCC), 146 D.L.R. (4th) 577 (SCC), para. 59. [12] The claims against Ms. Fraser allege wrongs she is said to have done to the company. Not one of these allegations involves “a wrong done to shareholder qua shareholder” in the meaning of Hercules Managements at para. 62. The claims allege wrongs done to the corporation which could only affect Mr. Oickle through the value of his shares. Consequently, decline to join Ms. Fraser as defendant in the existing litigation. [67] Accordingly, the appellants have not satisfied me that the judge erred in finding Mr. Oickle had met the second criterion in s. 4(2)(c) of acting in good faith. [68] will now deal with the appellants’ last argument with respect to the third ground of appeal, that the judge erred in determining that Mr. Oickle met the third criterion in s. 4(2)(c) of the Third Schedule, that the action “appears to be in the interests of the company.” [69] The appellants argued that the judge erred by applying the wrong test when he considered whether the derivative action appeared to be in the interests of the Company, by refusing to apply the presumption set out in Schafer, supra: [25] In determining this issue the ""Canadian version"" of the sound business judgment rule applies. The rule is in effect presumption that if the directors of the corporation make an informed decision that the disadvantages outweigh the advantages of commencing the action, then this is what is in the best interests of the corporation. The decision to commence or not to commence an action is like any other business decision that is ordinarily matter of internal management to be left to the discretion of the directors absent instruction from the shareholders. Courts seldom interfere with such intra vires discretion unless the directors are guilty of misconduct equivalent to breach of trust, or unless they stand in dual relation which prevents an unprejudiced exercise of judgment. If there is misconduct or dual relation then the presumption that the decision of the directors is in the best interests of the corporation will not apply. (Emphasis added) [70] It is clear the judge rejected the presumption approved in Schafer, supra, based on the wording of s. 4(2)(c) and the history of derivative actions in Canada. The judge determined that the history of this type of action in Canada was unique so that the approach of English and American courts to applications to commence derivative actions was not helpful in Canada. (See 33 to 41 of his decision). He set out his conclusion on this point in 42: [42] In my assessment, the broad purpose of s. is to allow minority shareholders to enforce rights of their corporations when management will not do so. There is no purposive reason to read the restraints in s. more restrictively than the text plainly provides. In my assessment, the scheme underlying s. involves the private use of civil remedies to enforce duties, as the alternative to public regulation. Again, this suggests there is no disharmony between the scheme and the plain text. Therefore, respectfully reject the reasoning in Schafer. There is no presumption in favour of the directors' opinion. Mr. Oickle bears the onus of satisfying the Court that he is acting in good faith and his proposed suit on behalf of the corporation appears to be in the interests of the corporation. Nothing less, but nothing more. [71] Despite his rejection of the Schafer presumption it is clear that his decision would have been the same had he applied it. This is so because the presumption referred to in Schafer, supra does not apply if the directors are partial, as suggested in the last sentence in 25 of Schaffer, supra quoted in 68 above and further explained in 28 of Schafer, supra: [28] The court went on at p. 134 to review whether the directors were impartial or independent to enable them to have reasonably concluded that the disadvantages to the company outweighed the advantages. The court held that the Chambers judge could have found that at the time the directors determined not to sue, they stood in dual relation which prevented them from exercising an unprejudiced judgment. [72] The basis of the judge’s decision not to defer to the directors and shareholders views of whether the action was in the interests of the Company, as disclosed by their rejection of Mr. Oickle’s request that they cause the Company to commence an action against Mr. Bunnell and Ms. Fraser, was that he found the directors and shareholders were partial: [43] The views of the directors are not of assistance in this case. None of them are impartial. Two of the three are the proposed defendants. As in Bellman v. Western Approaches Ltd., the recently appointed independent director is not impartial. As with all the other shareholders, she has sided with management's position that Mr. Oickle's shares have been forfeited on account of Mr. Oickle's wrongdoing. She has substantial interest in the outcome of that claim, as do all the shareholders. [45] Having chosen one claim it is not possible for Ms. Selig or any of her allied shareholders to be impartial. Therefore, am giving little weight to the opinions of the directors or the other shareholders. [73] The judge made his decision not to defer to the views of the directors and shareholders on the basis they were not impartial. The presumption referred to in Schafer, supra, does not apply where the directors are not impartial. Therefore, it is not necessary for me to consider if the judge’s decision not to apply the presumption set out in Schafer, supra, was an error unless am satisfied he erred in his conclusion that the directors and shareholders were not impartial. [74] In coming to his conclusion that the directors and shareholders were not impartial, the judge was entitled to draw inferences from the affidavits and cross-examination before him. The tenor of the pleadings and the affidavits and cross-examination of Ms. Selig and Ms. Fraser provided evidence to the judge on which he could infer that they were partial to Mr. Bunnell and opposed to Mr. Oickle. The November 28, 2004 shareholders’ resolution may suggest no other shareholder was willing to challenge Ms. Fraser and Mr. Bunnell, perhaps for fear of losing their jobs. Ms. Selig deposed that the derivative action would “decapitate” the Company. On cross-examination she testified that if Mr. Bunnell was fired (relief that was sought in the derivative action) the Company would not continue and her livelihood would be lost. The reliance of the directors and shareholders, other than Mr. Oickle, on Mr. Bunnell may have prevented them from acting impartially in determining if the derivative would be in the interests of the Company. None of the shareholders, including Ms. Selig, had independent legal advice. The foregoing was evidence upon which the judge could conclude the directors and shareholders were partial. [75] Accordingly, am satisfied that the judge did not commit reviewable error in concluding that they were not impartial. [76] After determining that the shareholders and directors were not impartial, the judge went on to consider whether there was an arguable issue raised by the proposed derivative action and what the amount at issue was, in order to determine whether it was in the interests of the Company to allow Mr. Oickle to commence derivative action. He concluded: [46] Whether the proposed suit will succeed is relevant to whether it is in the interests of the company. The onus is not “particularly heavy”: Henry v. 609897 Saskatchewan Ltd. (2002), 2002 SKQB 491 (CanLII), 31 B.L.R (3d) 36 (SQB) at para. 20. According to the Ontario Court of Appeal in Richardson Greenshields of Canada Ltd. v. Kalmacoff (1995), 1995 CanLII 1739 (ON CA), 123 D.L.R. (4th) 628 (OCA) at p. 636: “The court is not called upon at the leave stage to determine questions of credibility or to resolve the issues in dispute, and ought not to try. These are matters for trial.” The standard is similar to that on summary judgment application. Mr. Goldberg referred me to RE Marc‑Jay Investments Inc. and Levy (1975), 1974 CanLII 786 (ON SC), 50 D.L.R. (3d) 45 (OHC) where the standard was expressed this way at para. 9: “the intended action does not appear frivolous or vexatious and could reasonably succeed”. The British Columbia Court of Appeal referred to an “arguable case” in Bellman at para. 19, which the Court in Primex Investments Ltd. v. Northwest Sports Enterprises Ltd., [1995] BCJ 2262(SC) at para. 39 took to mean “a reasonable argument which would not be dismissed out of hand”. This is similar to our standard on summary judgment where the proponent must show there is no arguable issue to be tried, which is said to be the same as showing there is no genuine issue of material fact requiring trial: for the standard see United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 (CanLII), [2004] N.S.J. 66 (CA) at para. 9. The standard is the same but the onus is not, as the proponent bares it. Thus, should assess the prospects of success by asking whether the applicant has presented evidence demonstrating an arguable issue worthy of trial, genuine issue of material fact requiring trial. [47] Mr. Oickle has presented evidence which, if accepted, could reasonably lead to the conclusion that Mr. Bunnell's salary has been substantially overpaid. The evidence of Ms. Fraser and Ms. Selig is not so compelling that the claim fails to raise genuine issue for trial. On the contrary, if there was shareholders agreement limiting Mr. Bunnell's salary, the evidence of Ms. Fraser and Ms. Selig might not undermine that agreement even if their evidence is accepted. Mr. Oickle has also presented evidence of unusual transactions that were to Mr. Bunnell's benefit or that of his charity and at the company's expense. Evidence of the kind offered by Ms. Fraser and Ms. Selig might show that these transactions were usual to the company and were authorized, albeit in casual way. However, am in no position to say that evidence will be accepted or, if accepted, will lead to finding that the expenditures were legal. am satisfied that the evidence presented by Mr. Oickle, coupled with that offered in reply and on cross‑examination, shows that the company has claims that could reasonably be presented and would require trial to resolve. [48] Having assessed negatively the value of the opinion of the directors and having assessed positively the reasonableness of the proposed claim, have to consider whether anything remains by which the proposed suit would be contrary to the interests of the company. It is prudent business not to authorize suit without weighing the financial cost and intangible costs against the potential gains, financial or intangible. Although know of no authority for it, think this has to be part of the inquiry into the interests of the company in the proposed suit. [49] Mr. Goldberg was unable to give me an estimate of the value of this claim. He says the records produced to the Court do not give the full picture and we will not be able to make an assessment until accounts are taken. He says the amount involved could be very high. am satisfied that the amount involved is not so small as to make pursuit of the action frivolous. However, cannot be satisfied that suit would be in the interests of the company if it went forward unconditionally. If leave is to be granted, an order can be made under s. 4(3) controlling the course of the proceeding in such way that concerns over costs and benefits can be alleviated. With that in mind, am satisfied that the proposed suit is in the interest of the company. [77] The judge’s approach of considering whether there was an arguable issue raised by the proposed derivative action to determine whether it is in the interests of the Company, is in accordance with the cases cited by the judge in 46 of his decision set out above including Marc-Jay, supra, where the court stated in that the standard is that “the intended action does not appear frivolous or vexatious and could reasonably succeed.” [78] The appellants have not satisfied me that the judge erred in concluding that Mr. Oickle met the third criterion in s. 4(2)(c) of the Third Schedule, that Mr. Oickle’s proposed derivative action appeared to be in the interests of the Company. [79] The fourth and last ground of appeal is whether the judge erred by imposing the terms he did on the derivative action, specifically the retention by Mr. Oickle of an accountant at the Company’s expense and requiring disclosure to the accountant. [80] The judge ordered: 3. Larry B. Oickle shall retain an expert at reasonable rates to account for the claims set out in the Originating Notice (Action) and Statement of Claim as attached hereto as Schedule “B”. L&B Electric Limited shall pay for the expert and will make all disclosure the expert reasonably requires. The expert will report to Larry Oickle as representative of L&B Electric Limited in the said derivative action. Larry B. Oickle is to promptly deliver the expert’s report to Martine Dumke and Rubin Dexter after which any party may apply to the Court for new directions should the Court be satisfied that the suit as attached hereto as Schedule “B” is not in the interests of L&B Electric Limited in light of the amount involved. [81] The judge’s decision indicates he imposed these terms as protection against the derivative action continuing if the amount in dispute, once determined, is not large enough to make it in the interests of the Company to continue. [82] Section 4(3) of the Third Schedule provides: (3) In connection with any such action brought or intervened in, the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order authorizing the complainant or any other person to control the conduct of the action; (b) an order giving directions for the conduct of the action; (c) an order directing that any amount adjudged payable by defendant in the action shall be paid, in whole or in part, directly to former and present security holders of the company or its subsidiary instead of to the company or its subsidiary; (d) an order requiring the company or its subsidiary to pay reasonable legal fees incurred by the complainant in connection with the action. [83] The appellants agree s. 4(3) gave the judge broad discretion to make orders with respect to derivative actions. They argued however that his error arose from the fact the respondents’ application that was before him did not seek such an order and because the judge failed to give the appellants notice that he was considering granting such relief. [84] The appellants have not satisfied me that the judge erred in ordering these terms. The judge was satisfied from the evidence Mr. Oickle had been able to obtain about the Company, that it appeared there was substantial amount of money at issue making it in the interests of the Company to allow Mr. Oickle to commence the derivative action. Mr. Oickle’s counsel had estimated the amount may be $1,000,000. [85] At the same time the judge recognized the disadvantage Mr. Oickle was under trying to get full financial information from the Company while it continued to be controlled by Mr. Bunnell and Ms. Fraser. The way of determining the amount at issue was to have an audit done by an independent person. This was the next step. The audit is to be conducted in accordance with the scope of the pleadings and therefore the expert does not have unfettered access to the Company’s information. By granting this order the judge was able to ensure that the derivative action continued to be in the interests of the Company. [86] In light of the provisions in s. 4(3) giving the judge the ability to grant wide ranging directions, the appellants should have anticipated when faced with an application for leave to commence derivative action, the possibility of such an order, and requested the judge to give them an opportunity for input if he was going to make such an order. They did not do so. [87] The judge raised his concern about the amount at issue twice during argument at the hearing, once with each counsel. While it would have been preferable for the judge to have raised these specific terms with the parties more clearly to ensure he had their full input, his failure to do more than he did does not amount to reversible error. [88] Accordingly I would grant leave to appeal, but dismiss the appeal and order costs payable by the appellants to the respondents in the amount of $3,000 plus disbursements payable immediately. Hamilton, J.A. Concurred in: Bateman, J.A. Freeman, J.A.","The plaintiff company commenced an action against a former employee/shareholder for breach of fiduciary and employee duty. The shareholder defended and claimed that one of the directors had misappropriated funds from the company. The shareholder later retained a new solicitor, who successfully applied to amend the defence to withdraw certain admissions and amend the counterclaim to add a shareholder oppression remedy and for leave to bring a derivative action. The court found that, in the circumstances, the new counsel's assessment of his client's case was sufficient to allow the admissions in the defence to be withdrawn, the implied undertaking against the collateral use of discovery evidence did not apply because the pleaded material facts were the same facts material to the shareholder oppression action and the applicant bore an ordinary onus to establish the three statutory prerequisites. The court also directed the employee to retain an expert and for the company to pay that expert and make all reasonable disclosure that the expert reasonably required. The plaintiff company appealed. Appeal dismissed; there was evidence before the trial judge on which he could conclude that it was just that the admissions be withdrawn; with respect to the oppression remedies and the employee's status as a complainant, the wording of the earlier consent order could be interpreted as not suspending his rights as a former shareholder; there was a temporal connection between the impugned acts and his ownership of the shares and he had a sufficient interest in the oppression remedies. The terms the judge imposed were within the broad discretion conferred by the Third Schedule of the Companies Act and there was no breach of natural justice by the imposition of them.",5_2006nsca41.txt
57,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 462 Date: 20061013 Docket: Q.B.G. No. 655/2006 Judicial Centre: Saskatoon IN THE MATTER OF AN APPLICATION UNDER SECTIONS 135 AND 225 OF THE NON-PROFIT CORPORATIONS ACT, 1995, S.S. 1995, c. N-4.2 BETWEEN: ROBIN MOWAT and UNIVERSITY OF SASKATCHEWAN STUDENTS’ UNION and THE CANADIAN FEDERATION OF STUDENTS and THE CANADIAN FEDERATION OF STUDENTS-SERVICES ADDED RESPONDENTS Counsel: J. Pereira and M. Alexandre for the applicant G. J. Scharfstein, Q.C. and S. Buhler for the respondent T. J. Burke and A. McKennan for the added respondents FIAT R. S. SMITH J. October 13, 2006 Introduction 1) In October, 2005 referendum was held within the student body of the University of Saskatchewan to determine if the University of Saskatchewan Students Union should join The Canadian Federation of Students and its related corporation, The Canadian Federation of Students-Services. The result favoured joining the federation. 2) The applicant applies under The Non-Profit Corporations Act, 1995, S.S. 1995, c. N-4.2 (“Act”) seeking sundry relief, the net result of which would set aside the outcome of the referendum. 3) The Canadian Federation of Students (“CFS”) is federal non-share capital non-profit corporation which, among other things, advocates on behalf of university students across Canada. Its affiliated corporation, The Canadian Federation of Students-Services (“CFS-S”) is federal non-share capital non-profit corporation. CFS-S assists students by pooling resources in order to provide range of services and benefits. 4) In or about November, 2004, the executive council of the University of Saskatchewan Students Union (“USC”) passed motion which authorized USC to take steps on behalf of the University of Saskatchewan Students Union (“USSU”) to become member of CFS and CFS-S (hereinafter collectively “CFS”). After initial interaction between USC and CFS, USSU was awarded prospective membership and advised that in order to achieve full membership in CFS it was necessary for the USSU to conduct referendum within its student body. 5) Under the CFS constitution, any organization wishing to join it must hold referendum in accordance with CFS rules and procedures for referenda. This is somewhat anomalous as the USSU, as long-standing organization, had its own rules and procedures for referenda. The existence of two protocols for referenda would prove to be an issue as events unfolded. 6) The CFS referendum procedure required the creation of Referendum Oversight Committee (“ROC”) which consists of two members appointed by CFS, in effect, their organizers. The balance of the ROC is made up of two members from the local student organization, in this case, the USSU. 7) The USC was also aware that referendum was necessary under its own rules. The USSU constitution, specifically Article 11, requires referendum for the purpose of establishing or eliminating dedicated student fee. As membership in CFS exacted $9.00 per annum fee from each student, the USSU’s own constitution mandated referendum on the question. 8) The USSU had also adopted, as part of its general governance, an elections and referenda policy. That policy sets out the rules respecting the conduct of referendum such as notice, campaign registrations, spending limits and the like. 9) In early September, 2005, the USC appointed its representatives to the ROC which held its first meeting on September 11, 2005. Within few days thereafter, the USC met and passed motion declaring it was in support of the referendum to join the CFS. However, it was clear at that USC meeting that there was not unanimity among the council members regarding the question. 10) At September 22, 2005 meeting, members of the USC became alive to the issue that there were operational conflicts between the USSU elections and referenda policy and the rules dictated by CSF. In particular, the USSU’s elections and referenda policy did not contemplate the creation of an ROC. 11) There was some discussion about changing the USSU elections and referenda policy in order to give authority to the ROC for the purpose of the specific referendum dealing with CFS. In the end, the debate was postponed until September 29, 2005. 12) The USC benefited from legal advice and resolved on September 29 to take steps to meld the USSU’s elections and referenda policy and those procedures mandated by CSF. Specifically, the USC voted to amend the USSU elections and referenda policy by providing new section which read: In Referenda to federate in the CFS, the Oversight Committee shall have the authority over the Referendum. The CRO [chief returning officer] and ACRO [assistant chief returning officer] shall act as USSU Representatives on the Oversight Committee and that the Elections Board must ratify the results of this referendum. 13) The Elections Board is an entity that existed within the elections and referenda policy of the USSU governance documents. Extracts from that policy germane to the Elections Board and the debate at bar are: IV. REFERENDA 1. Elections Board shall have authority over the activities of the USSU membership as they relate to referenda. ... V. ELECTIONS OFFICIALS ELECTIONS BOARD 1. EB shall exist as outlined in Article 10 of USSU Bylaw 1: Governance Procedures. 2. The EB shall be responsible for the following: (i) Conducting elections and referenda as outlined in Article and Article 11 of the USSU Constitution and Article 10 of USSU Bylaw 1: Governance Procedures; (ii) Being knowledgable [sic] about other procedures and policies necessary for proper election; (iii) Interpreting and enforcing the Elections and Referenda Policy as it pertains to all members of the USSU; (iv) Appointing DROs; and, (v) Presiding over the vote-counting mechanism and election data. ... VII. VIOLATIONS COMPLAINTS 1. All violations of election procedures, arising from the first day of campaigning up to the date of the final ballot count shall be investigated by the CRO and dealt with by the EB. 2. Prior to the start of campaigning, the EB will create schedule for election violations and discretionary punishment of violations such that will standarise the process. 3. The Elections Board has the right to disqualify candidate, if it deems that this is an appropriate punishment for violations committed by the candidate. 4. All complaints arising out of any election must be submitted in writing to the USSU office, within five (5) days immediately following the date of the final ballot count. Each complaint shall be dealt with by the EB, which may declare any election invalid and shall be empowered to take such steps, as it deems necessary. 5. In the event of any discrepancies, the EB is considered to be the ultimate decision making authority. All disputes and/or complaints must be submitted in writing, and no member outside of this body is permitted to enforce policy or procedure. 6. Registered campaign committees shall be liable for any campaign violations, however they occur. Likewise, the said campaign committee is also responsible for any actions of any individual or group working on behalf of the campaign committee. 14) Accordingly, by September 29, 2005, approximately week before the referendum was to be held, the USC was confident it had appropriately fused the referenda procedure of the USSU and the CFS. 15) The ROC created protocol regarding the referendum, although, in fairness, the document was being drafted “on the fly”. Changes and additions were being made from time to time respecting the procedure for the referendum. The evidence is somewhat unclear, however, it would appear that the final protocol for the referendum was not settled until December 3, 2005, well over month after the vote. 16) Notwithstanding the issues confronting the USC over the governance documents respecting the referendum, it is clear from the material that within the student body the debate was lively and active, at least from September 19 forward. conclude that any student who was interested had available to him or her significant exposure to both sides of the issue. 17) The referendum was scheduled to be held on October 4, and 6, 2005. It is worth noting that the question on the ballot read: “Are you in favour of membership in Canadian Federation of Students?” The fact that the ballot lacked reference to the requirement of an annual fee is part of the cafeteria of wrongs alleged by the applicant in the conduct of the referendum by USC and CFS through its creation, the ROC. 18) As Article 11 of the USSU constitution mandates referendum when establishing dedicated student fee, it is, in my opinion, somewhat anomalous that the referendum question would not reference the fact of such fee. 19) The results of the referendum were: 1,968 in favour of federating with CFS; 1,584 against federating with CFS; 10 spoiled ballots. 20) The voter turnout for the referendum was approximately 20% of the student body. In the affidavits filed on behalf of USC, it is suggested that this is higher than usual turnout as 15% is the norm for USSU general elections. 21) For those members of the student body engaged in the debate of whether to federate with CFS, passions ran high. Throughout the course of the campaign there was considerable sturm und drang. After the referendum, the ROC met and considered smorgasbord of complaints each side had about the other and of the ROC itself. The ROC concluded: The members of the Referendum Oversight Committee are satisfied that the referendum results are an accurate reflection of the will of the members of the University of Saskatchewan Students Union. 22) However, the report of the ROC was not the end of the matter. The September 29, 2005 resolution of the USC required that the Elections Board must ratify the results of the referendum. The Elections Board received and considered the report of the ROC and then set about its independent task of reviewing what transpired through the course of the referendum. The relevant portions of its report are taken from Exhibit “CC” to the Affidavit of Lucy Watson. It sets out, in part: As body created under the USSU Bylaw No. 1: Governance Procedures, the Elections Board (EB) normally is empowered to ensure that the USSU bylaws and policies are met in conducting referendum or an election. In this case, the EB was given the task of ratifying the CFS membership referendum results. The USSU had indicated its support for students’ approving of becoming full members of the CFS. Nevertheless, the EB has found that it could not ratify the result, given what it sees as seriously flawed referendum process.... In its assessment, the EB’s underlying concern has been whether any issues in relation to the process would have significantly affected the will of voters. It restricted its considerations to the process, even though there were issues relating to campaign conduct. This report is also complemented by the documents “Elections Board’s Ratification Discussion Paper” and “EB Analysis of key concerns in the Referendum Process”. These reflect respectively (a) the Process Document crafted by the EB that guided its analysis of the Referendum process and (b) the EB’s deliberations based on the Discussion Paper. After the EB’s deliberations, it further considered whether each key concern would have significantly affected the will of voters. In terms of the process, this report only highlights the key issues which the EB believed would have significantly affected the will of voters: (1) the lack of preparation or groundwork prior to establishing the ROC, (2) the fact that there was no specific call for campaign teams to register, (3) the evolving nature of the ROC Protocol, the fundamental document which was to determine the “ground rules” for campaigning and for the complaints process. 23) Although the Elections Board refused to ratify the referendum result, it did recommend that another referendum be held with ground rules that were better settled and broadly disseminated. 24) The decision of the Elections Board came before the USC on February 9, 2006. The USC decided to canvass the matter with their solicitor and again addressed the matter at the USC meeting on March 30, 2006. The minutes of that meeting clearly demonstrate that much of what was worrying the USC were the legal consequences of not ratifying the vote. 25) In the end, the USC decided to ignore the protocol it had established for the referendum and dismissed the decision of the Elections Board. It then substituted its own judgment and ratified the referendum. In due course CFS was advised and at that juncture both USC and CFS assumed the table had been set for the USSU to become part of CFS federation. 26) The applicant, student in his final year at the University during the 2005/2006 academic year, took considerable umbrage at the conduct of the USC, CFS and ROC in relation to the referendum. In May, 2006, he brought an application under the Act. The notice of motion, as amended, sought the following relief: 1. An order pursuant to s. 135(2)(b) of The Non-Profit Corporations Act, 1995 declaring the referendum deciding the question, “Are you in favour of membership in the Canadian Federation of Students?” held at the University of Saskatchewan between October and 6, 2005 invalid. 2. An order pursuant to s. 135(2)(a) of The Non-Profit Corporations Act, 1995 restraining the University of Saskatchewan Student’s Union from joining the Canadian Federation of Students until the above noted issue is determined. 3. Or in the alternative, an order pursuant to s. 135(2)(c) of The Non-Profit Corporations Act, 1995 requiring new referendum be held in compliance with the University of Saskatchewan Student’s Union Election Protocol and further declaring that any ceding of referendum organizing authority or oversight to an external third party with direct, material financial interest in the outcome of the referendum is in violation of the University of Saskatchewan Students’ Union Constitution and Election and Refenda [sic] Policy. 4. Or further in the alternative, an order pursuant to s. 225(2)(a) of The Non-Profit Corporations Act, 1995 restraining the University of Saskatchewan’s Student Union from joining and/or participating as member of the Canadian Federation of Students until the validity of the referendum is determined. 27) At the hearing of the matter, the motion was further amended to include relief under s. 225(1) of the Act seeking an order declaring the referendum to be of no force or effect. 28) The motion brought by the applicant joined only the USSU as respondent. The CFS brought its own motion asking that CFS (meaning CFS and CFS-S) be joined as parties to the application. The CFS also sought an order permitting it to cross-examine the applicant, Robin Mowat. There was also the inevitable applications by all the parties applying to strike portions of affidavits submitted on behalf of others because they were scandalous, argumentative or irrelevant. 29) number of the applications were dealt with on preliminary and very summary basis. After modest argument, ordered that the CFS be added as party respondent to the application. Rule 39 of The Queen’s Bench Rules of Court governs the situation and provides: 39 Where person who is not party claims: (a) an interest in the subject matter of the action; (b) that he may be adversely affected by judgment in the action; or (c) that there exists between him and one or more of the parties question of law or fact in common with question in issue in the action; he may apply to be added as party, and the court may add the person as party and may give such directions and impose such conditions or make such order as may seem just. 30) There is no question CFS had an interest in the subject matter and could be adversely affected by the judgment. In my view, it would be counterintuitive not to add CFS as party to the application. 31) dismissed the application by CFS to cross-examine the applicant, Robin Mowat. In this jurisdiction such relief is discretionary. concluded that there was nothing Mr. Mowat could add in cross-examination that would assist in the resolution of the issue. The burden lies on the party seeking the right to cross-examine to show the examination will assist in resolving the issue before the chambers judge. That bar was not cleared. 32) With respect to the applications to strike the offending portions of the affidavits, conclude, as result of my analysis on the larger question, it is not necessary to address those complaints. 33) The substantive issues distill to: (i) Does Robin Mowat have standing under ss. 135 or 225 of The Non-Profit Corporations Act, 1995 (“Act”) to bring the within application? (ii) If the applicant does have standing, is he entitled to the relief sought? Applicant’s standing 34) Section 135 of the Act reads: 135(1) corporation or member or director may apply to the court to determine any controversy respecting an election or the appointment of director or an auditor of the corporation. (2) On an application pursuant to this section, the court may make any order it considers appropriate, including: (a) an order restraining director or auditor whose election or appointment is challenged from acting pending determination of the dispute; (b) an order declaring the result of the disputed election or appointment; (c) an order requiring new election or appointment and including directions for the management of the activities and affairs of the corporation until new election is held or appointment made; (d) an order determining the voting rights of members and of persons claiming to have membership interests. 35) Other relevant sections from the Act are in Division XVIII Remedies, Offences and Penalties. Those portions which are germane are: 222 In this Division: ... “complainant means” (a) member or registered holder or beneficial owner, and former registered holder or beneficial owner, of security of corporation or any of its affiliates; (b) director or an officer or former director or officer of corporation or of any of its affiliates; (c) the Director; or (d) any other person who, in the discretion of the court, is proper person to make any application pursuant to this Division. 225(1) complainant may apply to the court for an order pursuant to this section and the court may make an order to rectify the matters complained of where the court is satisfied that the result of any act or omission of the corporation or any of its affiliates, the manner in which any of the activities or affairs of the corporation or any of its affiliates are or have been carried on or conducted, or the manner in which the powers of the directors of the corporation or any of its affiliates are or have been exercised: (a) is oppressive or unfairly prejudicial to any member, security holder, creditor, director or officer or, where the corporation is charitable corporation, the public generally; or (b) unfairly disregards the interests of any member, security holder, creditor, director or officer or, where the corporation is charitable corporation, the public generally. (2) In connection with an application pursuant to this section, the court may make any interim or final order it considers appropriate, including an order: (a) restraining the conduct complained of; ... (h) varying or setting aside transaction or contract to which corporation is party and compensating the corporation or any other party to the transaction or contract. 36) The position of the USSU and CFS is that s. 135 is not applicable to the complaint raised by the applicant. Although there is no definition of an “election” in the Act, the respondents argue that plain and usual reading of s. 135 would confine the ambit of the word “election” to that of an election of director or auditor. They suggest that it would be an error, and clear misreading of the section, to provide an expansive definition of election so as to encompass referendum by non-profit corporation seeking membership in third party. 37) The USSU asserts the applicant has another barrier which he cannot clear. He convocated from the University of Saskatchewan in the spring of 2006. As this matter was argued in September, 2006, he is no longer member of the USSU, nor is he director. In sum, the USSU says the applicant has no standing to bring an application under s. 135 of the Act. 38) The applicant replies that notwithstanding his graduation from the university in May, 2006, he continued to be member of the USSU until August 31, 2006. Membership for USSU members who have paid their dues are by convention, he asserts, still members until August 31, 2006. Buttressing his position is the fact that many of the benefits associated with USSU membership continue in force until August 31, 2006 such as coverage under the health and dental plan. Additionally, the applicant argues that he gave notice of intention to seek judicial review as early as April 3, 2006 and therefore at the initiating steps of the matter he was “member” even by the respondent’s definition. 39) The applicant submits that if the Court employs narrow definition of election, then member of an organization in his circumstance is without remedy in the face of an improperly conducted referendum which affects the organization. 40) agree with the respondent’s interpretation of s. 135(1). To read the word “election” in the section as anything other than referring to the election of director or auditor requires interpretive contortions beyond my ability. 41) However, divining the true meaning of s. 135 is academic given the relief available to the applicant under s. 225. Section 225 addresses an application by complainant. complainant is defined in s. 222 and can be former director. It is common ground, by all, that the applicant is former director. 42) In my view, the conduct complained of by the applicant falls within the ambit of s. 225(1). He complains about the manner in which the activities or affairs of the corporation have been conducted. The authority in s. 225(2) gives the Court the necessary power to address such wrongs and are sufficiently broad so as to subsume an order declaring referendum of no force or effect. Should the referendum be set aside? 43) When addressing the relief requested by the applicant, the Court must first determine what approach it should take in the context of overturning vote. conclude the case law clearly directs that my mind set must be very circumspect. 44) In Abrahamson v. Baker and Smishek (1964), 1964 CanLII 380 (SK CA), 50 W.W.R. 664 (Sask. C.A.), the Court addressed an application to declare an election invalid due to irregularities and observed at page 672: ...to be successful on petition based upon the irregularities therein-stated, it must be shown to the satisfaction of the Court that the election was not conducted in accordance with the principles of the Act and that such non-compliance did affect the result of the election. The onus for establishing these two requirements rests upon the petitioner. That being so, the petition must include not only the allegations of irregularities but also allegations of the effect thereof on the election.... 45) In Reaburn v. Lorje, 2000 SKQB 81 (CanLII), (2000), 190 Sask. R. 235 (Q.B.), the Court articulated that the overriding theme that emerges from controverted elections case law is that the Court’s approach to its jurisdiction over the democratic process should be one of significant caution. The Court should hesitate to intervene with the will of the electorate unless an application shows, on its face, that non-compliance with election rules affected the ultimate result. 46) The Court in Re Bennett, (1972) Nfld. P.E.I.R. 543 (Nfld. S.C.), set out the common law rule respecting controverted elections by quoting from Crozier v. Rylands (1869), 19 L.T.R. 812. At pages 547 and 548 of Re Bennett, the Court noted: ...before judge upsets an election he ought to be satisfied beyond all manner of doubt that the election was thoroughly void.... think the law to be clear: if the election was carried out properly and in substantial manner in the spirit of the Act, and if the voters were able to express their choice clearly and decisively without any obstruction or hindrance an election should not be set aside because of some failure to observe the letter of the Act. This admits of only one qualification, and that is, that if the failure to observe the letter of the Act in the opinion of the election court could have altered the result of the election then it may be set aside. would add to this that by the result, mean the ultimate election of one of other of the candidates, and not the number of votes which one received more than another. and further at page 549: This view think accords with the general proposition of law which says that where the voters have had free and unfettered opportunity to express their choice, then the Court should not interfere without being satisfied that there was in fact no true election.... 47) The respondents also referred to Leroux v. Molgat, 1985 CanLII 229 (BC SC), [1985] B.C.J. No. 45 (B.C. S.C.) (QL), where Justice McLachlin (as she then was) of the British Columbia Supreme Court summarized the relevant legal principles with respect to the setting aside of the results of an election at para. 3: An election will be set aside only if substantial irregularity, calculated to affect the result, is shown: Anderson v. Stewart and Diotte (1921), 1921 CanLII 412 (NB CA), 62 D.L.R. 98 (N.B.S.C. App. Div.). If the plaintiff establishes irregularities, the onus shifts to the defendants responsible for the conduct of the election to show that those irregularities were not calculated to affect the result: Re the Queen ex rel. Marquette and Skaret (1981), 1981 CanLII 1147 (AB QB), 119 D.L.R. (3d) 497 (Alta Q.B.); Rex ex rel. Henry S. Ivison v. William Irwin (1902), O.L.R. 192; Giesbrecht et al. v. District of Chilliwack (1982), 18 M.P.L.R. 27 (B.C.S.C.). Thus the main issues are whether irregularities are established, and, if so, whether the defendants responsible for the conduct of the election have shown that such irregularities did not affect the result. (See also: Byers v. Wakefield, 2004 SKQB 26 (CanLII), (2004), 242 Sask. R. 228 (Q.B.); Maurice v. Daignault, 2001 SKQB 247 (CanLII), (2001), 206 Sask. R. 239 (Q.B.); and Goos v. Saskatchewan (1986), 1986 CanLII 3063 (SK QB), 53 Sask. R. 64 (Q.B.)) 48) The respondents urge the Court to stand back from election results even in the face of irregularities or problems. They argue that if, and only if, the Court is satisfied that the irregularities prevented the voters from having “free and unfettered” opportunity to express their choice, then the Court should not insert itself into the process.49) 50) The applicant joins issue with the respondent’s approach. He asserts the analysis in cases dealing with controverted elections for elected office are not easily transferrable to the within debate. The applicant urges the Court’s focus should be on the following: (i) Has the non-profit organization acted in good faith? (ii) Has the non-profit organization acted illegally? (iii) Has the non-profit organization acted within the rules of natural justice? 51) The applicant suggests the Court should seek guidance from Walton (Litigation Guardian of) v. Saskatchewan Hockey Association (1998), 1998 CanLII 14039 (SK QB), 166 Sask. R. 32 (Q.B.). Justice Rothery agreed with the Supreme Court of Newfoundland in Mugford et al. v. The Newfoundland Amateur Hockey Association et al (unreported 1982 No. C.B. 408) where it held: think it is relevant to consider the function of Court, which is to redress or correct or rectify an injustice or an unlawful act or where there has been breach of right. The Court is not interested in running the affairs of non-profit organizations or athletic associations or any other associations where they have acted in good faith, where they have not acted illegally or unlawfully, and have acted in accordance with the rules of natural justice ... 52) The applicant also invokes the Supreme Court of Canada in Martineau v. Matsqui Institution (No. 2), 1979 CanLII 184 (SCC), [1980] S.C.R. 602 where Dickson J. opined at para. 75: ...The fact that decision-maker does not have duty to act judicially, with observance of formal procedure which that characterization entails, does not mean that there may not be duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules. In general, courts ought not to seek to distinguish between the two concepts, for the drawing of distinction between duty to act fairly, and duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.... 53) Similarly, in Baker v. Canada (Minister of Citizenship Immigration), 1999 CanLII 699 (SCC), [1999] S.C.R. 817, at paras 21 through 28, under the heading “Factors Affecting the Content of the Duty of Fairness”, the Supreme Court of Canada has provided guidance on how the duty of fairness may arise and be applicable in various circumstances. The following summary is found in the Supreme Court Reports headnote, at page 819: The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive. (See also: Kanigan (Guardian Ad Litem) v. Castlegar Minor Hockey Association (1996), 1996 CanLII 1486 (BC SC), 141 D.L.R. (4th) 563 (Ont. S.C.); Beauchamp (Litigation Guardian of) v. North Central Predators AAA Hockey Assn. (2004), 2004 CanLII 48698 (ON SC), 247 D.L.R. (4th) 745 (Ont. S.C.); and Mirimichi Minor Hockey Club Inc. v. New Brunswick Amateur Hockey Assn., [1999] N.B.J. No. 631 (N.B. Q.B. T.D.) (QL)) 54) The applicant submits that the USC’s flagrant and arbitrary changing of the rules of the game, in relation to the ratification by the Elections Board, must be clearly determinative on the issue of breach of duty of good faith and natural justice. 55) On September 29, 2005, the USC, with forethought, laid down protocol for the referendum. The protocol was not precipitously created but was focussed attempt to dovetail the existing USSU rules for referenda and the requirements of the CFS. critical part of the protocol for the CFS referendum was that the Elections Board “must ratify the results of this referendum”. 56) The applicant submits that the entire referendum was put into question and the process tainted beyond redemption by the USC’s response to the report of the Elections Board. When the Elections Board had the temerity to act deliberatively and render decision at odds with the wishes of the USC, the USC simply changed the rules and substituted its own ratification for that of the Elections Board. 57) The respondents acknowledge, prima facie, the treatment of the Elections Board result was not consistent with the September 29, 2005 resolution. However, they remind the Court that the Elections Board is creature of the USSU and as result its function could be changed by the USC. The applicant replies that such power does not permit the USC to change the Elections Board function from critical last step to meaningless final charade. 58) am in accord with the judicial line of thought that the Court should be hesitant to involve itself in the democratic process. The question should always be: notwithstanding the missteps in the process, can it be said those missteps affected the result? 59) It is telling that the Elections Board, which was much closer to the ground than any Court could possibly be, concluded that it could not, in good faith, ratify the referendum result. It stated its underlying concern was whether any of the problems “would have significantly affected the will of the voters”. From its decision, must conclude it did. If employ the analysis from the controverted elections cases, the Elections Board’s report would lead to conclusion that there should be an order directing the referendum result should be set aside. 60) However, on balance, do not believe the test emanating from the controverted elections cases is applicable. believe that in debates of this type, the preferred guidance is from the test articulated in Walton (Litigation Guardian of) v. Saskatchewan Hockey Association, supra, and the related cases dealing with non-profit organizations. 61) In those cases, the Court does not ask itself whether the results have been skewed, but rather has the organization acted in good faith and generally in accord with the concepts of natural justice? This does not mean, as noted in Martineau, supra, that there must be an exacting legal process or an application of the full “panoply” of procedural natural justice rules. The question is, has the organization acted in fashion that meets the legitimate expectations of fair-minded observer? 62) In this case, it is instructive to reflect upon the USC’s reaction to the report of the Elections Board and the inconvenient truths noted therein. The USC’s response to the report was to ignore the very process it created to ensure there was fair referendum. Does that have the badges of good faith, fair play or the general notions of natural justice? 63) In my view, no reasonable observer could conclude that the USC approached the post-vote process in good faith or in a fashion that is in harmony with the broad rules of natural justice. When faced with a result (rendered by a procedure which it had specifically established for the referendum) which was not consistent with its wishes, the USC simply ignored its own rules and imposed its own preordained outcome. 64) Accordingly, I conclude that the USC breached its obligation to act in good faith and conducted itself in a fashion inconsistent with natural justice. The applicant is entitled to a portion of the relief he seeks. The portion am willing to grant is limited to the effect of the referendum. I order that the referendum held by the USSU on the issue of whether it should join the CFS is of absolutely no force or effect. 65) In all of the circumstances, decline to award costs. J. R. S. Smith","FIAT: In October 2005, a referendum was held within the student body of the University of Saskatchewan to determine whether the University of Saskatchewan Students Union should join the Canadian Federation of Students and its related corporation, the Canadian Federation of Students-Services. The result favoured joining the federation. The applicant applies under The Non-Profit Corporations Act, 1995 seeking sundry relief, the net result of which would set aside the outcome of the referendum. HELD: 1) The test emanating from the Controverted elections cases are not applicable. In debates of this type, the preferred guidance is from the test articulated in Walton (Litigation Guardian of) v. Saskatchewan Hockey Association and the related cases dealing with non-profit organizations. In those cases, the Court does not ask itself whether the results have been skewed, but rather has the organization acted in good faith and generally in accord with the concepts of natural justice? This does not mean that there must be an exacting legal process or an application of the full 'panoply' of procedural natural justice issues. The question is has the organization acted in a fashion that meets the legitimate expectations of a fair-minded observer? 2) No reasonable observer could conclude that the USC approached the post-vote process in good faith or in a fashion that is in harmony with the broad rules of natural justice. When faced with a result (rendered by a procedure which it had specifically established for the referendum) which was not consistent with its wishes, the USC simply ignored its own rules and imposed its own preordained outcome. Accordingly, the Court concluded that the USC breached its obligation to act in good faith and conducted itself in a fashion inconsistent with natural justice. The applicant is entitled to a portion of the relief he seeks. The referendum held by the USSU on the issue of whether it should join the CFS is of no force or effect.",2006skqb462.txt
58,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 446 Date: 2006 10 02 Docket: DIV. No. 002479/2005 Judicial Centre: Melfort, Family Law Division BETWEEN: RAELYN DIANE KNUDSON, and KIRK HAROLD KNUDSON, Counsel: Mark R. Carson for the petitioner Melvin R. Annand, Q.C. for the respondent JUDGMENT MILLS J. October 2, 2006 [1] The parties met, married, made children and then separated. The petitioner mother has custody of the three children. She is employed with local auctioneer. The respondent father, before, during and after the relationship, is part of farming partnership with two brothers and two cousins running mixed grain and cattle operation. They have not settled division of the matrimonial property. Issues [2] What amounts, if any, are to be added to the sources of income set out in the father’s total income in his T1 General form to come to the appropriate level of income for the purpose of calculating child maintenance payments? The individual items are as follows: (i) non‑arm’s length salaries; (ii) personal expenses claimed as farm expenses; (iii) capital cost allowance on real property owned by the father; (iv) capital cost allowance on personal property owned by the father; (v) personal expenses claimed in partnership returns as farm expenses; (vi) capital cost allowance on real property owned by the partnership; and (vii) capital cost allowance on personal property owned by the partnership. [3] The parties have approached this case on the basis that the most representative and fairest method of determining this self‑employed father’s income is three‑year average under s. 17 of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] (the “Guidelines”). The father’s income has fluctuated significantly in the last three years, and the inherent nature of farming is such that it is more appropriate in the circumstances of this operation to use three‑year average. In assessing each of the issues, will deal with them on year‑by‑year basis. Although the general rationale will apply to all the issues, the individual amounts will differ by year. (i) Non‑arm’s length salary [4] Under Schedule III, paragraph of the Guidelines, the non‑arm’s length salary paid in 2003 of $15,000 is to be added back into income unless the father establishes the payments were necessary and reasonable. There is evidence that the mother did perform services for the farming operation, mostly in the nature of bookkeeping, but no indication was provided as to whether the amount paid was reasonable. Given that in 2004 the amount of salary was $5,000, it would appear that the amount paid in 2003 and the healthy income to the farmer otherwise in that year, was means of splitting income, and as such, it has not been established that the value of the salary for 2003 was $15,000. It appears to me that more appropriate amount would be $5,000 utilized in 2004. In 2003, there will be added back income in the amount of $10,000 for non‑arm’s length salary. In 2004, no amount will be added back as the $5,000 appears to be reasonable amount. No claim was made for non‑arm’s length salary in 2005. (See Poff v. Fenell (1998), 1998 CanLII 13796 (SK QB), 173 Sask. R. 275 (Q.B.).) (ii) Personal expenses claimed as farm expenses [5] The father has expensed electricity, home heat, telephone, meals and office expenses of $4,675, some of which should be added back to income. It is clear in 2003 the father, in fact, added back $2,678 of these expenses based on certain percentages being allocated to personal use. In 2003, the total amount claimed on the return for business expenses is $2,000 and appears to be appropriate. It has not been established that the expenses claimed in 2003 in this area are not legitimate costs involved in running the farm enterprise. [6] The mother further wishes to have the sum of $2,000 of horse expense added back to income. The evidence does not support this approach. [7] In 2004, the amount claimed is similar to what have allowed in 2003 and is acceptable. [8] In 2005, the amount claimed is lower than the previous two years and is acceptable. (iii) Capital cost allowance on real property owned by the father [9] Schedule III, paragraph 11, of the Guidelines provides for the adding back of this expense claimed. Both counsel agree for 2003 the amount to be added back is $18; for 2004, $17; for 2005, $15. (iv) Capital cost allowance on personal property owned by the father [10] The decisions in Rudachyk v. Rudachyk (1999), 1999 CanLII 12271 (SK CA), 180 Sask. R. 73 (C.A.), and Beeler v. Beeler (1997), 1997 CanLII 10925 (SK QB), 161 Sask. R. 167 (Q.B.), acknowledged that capital cost allowance can be legitimate expense of self‑employed individual and should not be added back to income without some evidence to show all or part of the deduction is not appropriate. [11] In 2003, the majority of the claim by the father in this regard relates to his motor vehicle. He acknowledges portion of the vehicle is used for personal use and states that portion to be 10 percent. The mother says that the portions claimed as personal use should be 50 percent. Evidence was led by the father that he used the vehicle to efficiently combine personal and business use whenever he could. In looking at the last three years in total, the truck cost was listed at $23,283 with depreciation taken of $18,855 to date. The father testified he intends to use the truck for further significant period of time. The full amount claimed for capital cost allowance is not necessary for the replacement of the vehicle. This along with significant personal use of the vehicle makes it reasonable to add back 50% of the capital cost allowance claimed in each of the years in question which will result in an addition to income in 2003 of $2,882; in 2004, $3,829; in 2005, $2,733. (v) Personal expenses claimed in partnership returns as farm expenses (vi) Capital cost allowance on real property owned by the partnership; and (vii) Capital cost allowance on personal property owned by the partnership. [12] The next three categories involve the mother’s request to add back to the father’s personal income the amounts claimed in the partnership and then allocated to the individual partners. The analysis here is substantially different than that contained in the father’s personal farming statement. The father’s income tax return includes personal farm component which consists of much smaller income and expense statement on matters that are totally within his control and for which all benefits accrue to him. His tax return also includes the partnership statement which shows the same types of income and expenses but on partnership basis. There are five partners involved, two are his brothers, and it may be argued he has some substantial influence on them. The other two are his cousins. There was no evidence to suggest that the income statements of the partnership are fashioned in such way to reflect an inaccurate picture on cash basis of the operation of the farm partnership. There is nothing to suggest that the partnership is organizing its expenses or distribution to artificially lower the income of the father. This is not situation where the father is sole shareholder in corporation, and different analysis of add‑back becomes appropriate because of the benefit accruing in the corporation to the sole shareholder. This is not situation in which there is majority ownership in the partnership which would allow the father to control the activities of income distribution or asset purchase. There is nothing in the Guidelines to suggest that should be adding back any of the partnership amounts to the income of the father automatically. [13] The case law which focuses on the reasonableness of the expense as it relates to capital cost allowance and alleged personal expenses claimed on partnership returns acknowledges that these are legitimate expenses used to reduce income unless it is shown that they are unnecessary or unreasonable. There is nothing in the evidence that would lead me to the conclusion capital cost allowance being claimed by partnership is inappropriate or, indeed, that any of the expenses or accounting functions utilized by the partnership do not reflect the partnership business over the long term. Therefore, am not prepared to add back to income in any of the three years the amounts indicated in items (v), (vi) and (vii) by the mother. [14] therefore find that in 2003, 2004 and 2005 the income of the father is as follows: $12,822 Non-arm’s length salaries nan Capital cost allowance on real property 15 Capital cost allowance on personal property 2,733 Total income $15,570 [15] This total income averaged over three years comes to $29,983 each year. ear. The amount of maintenance payable is $568.00 per month. [16] The next issue becomes the starting date of this payment. The chambers judge, when setting the initial interim child support in October 2005, had significant difficulty in the affidavit evidence in coming to an appropriate determination of maintenance payable. [8] It is far from certain, at least for the purposes of this interim application, that the maintenance of $728 previously agreed (which represents an income of $40,000) is categorically wrong. It may well be, in final analysis, high or low but adjustment can be made in the account between the parties in due course. [17] It was argued by the father, and clearly contemplated by the chambers judge that an adjustment of child maintenance should take place when the issue was finally determined. When making the order in 2005, the chambers judge relied on the financial information in the years 2002, 2003 and 2004; however, review of the 2002 return shows his income level to be roughly similar to that in 2005. Therefore, the maintenance amount of $568.00 would have been appropriate in October 2005, and in accordance with the chambers judge’s comment, the adjustment can be made at this time. Assuming that the father had been making the maintenance payments as ordered, he will be in small credit position which he can offset against ongoing maintenance but in amount no greater than $50.00 per month so as not to cause any inappropriate financial hardship on the children. When arrears by the payor occur, this Court often allows those arrears to be paid monthly. see no reason why the overpayment by the payor should not be treated in the same fashion in these circumstances. [18] At the conclusion of the trial, an order for divorce, custody and access was made by consent. The issue of property division was adjourned to future trial date. The orders flowing from this trial are as follow (a) The respondent’s income is determined to be $29,983, and he shall pay to the petitioner for the support of Reidar Knudson, born December 18, 1998, and Bronwyn Knudson and Kadence Knudson, both born August 9, 2000, the sum of $568.00 per month commencing October 1, 2005, and continuing every month thereafter until a child is no longer a child within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provided that if he has overpaid child maintenance to this date, he may offset the overpayment against future maintenance payments but only to the extent of $50.00 per month so that the maintenance actually paid will not drop below $518.00 per month until the overpayment has been extinguished. (b) The income of the petitioner is found to be $24,300. (c) The respondent shall be responsible for 56 percent of the s. expenses, which, by agreement of the parties, consist of the non‑subsidized childcare and any health and medical costs in excess of $100.00 per annum. The payment of s. expenses in the percentage indicated shall commence on October 1, 2005, and in the event any shortfall exists in payment of s. expense payments by the respondent, they are payable forthwith. (d) The petitioner and the respondent are ordered to provide the other with copies of their income tax returns, including all schedules and partnership statements, no later than June 15, 2007, and by the same date in each year thereafter. [19] Although did not detect any animosity from the parties during their testimony, did detect lack of cooperation between counsel. This is one of those files where it appeared that the holding of trial, in fact, was more efficient and cheaper method of coming to conclusion regarding the issue of maintenance than ongoing negotiation or pre‑trial. Each party achieved partial success in their approach before me, and as such no costs are awarded to either.","The respondent father is part of farming partnership with two brothers and two cousins running mixed grain and cattle operation. Division of the matrimonial property is at issue. The issues include what amounts, if any, are to be added to the sources of income set out in the father's total income in his T1 General form to come to the appropriate level of income for the purpose of calculating child maintenance payments. HELD: 1) The father's income has fluctuated significantly in the last years, and the inherent nature of farming is such that it is more appropriate in the circumstances to this operation to use year average. 2) Non-arm's length salary will be added back into income unless the father established that payments were necessary and reasonable. In 2004 the amount of salary paid to the mother for bookkeeping was $5,000. It would appear that the $15,000 paid in 2003 was means of splitting income. $5,000 appears to be reasonable amount. 3) Some of the personal expenses claimed as farm expenses such as electricity, home heat, telephone, meals and office expenses should be added back to income. The father has added back portion of these expenses based on certain percentages being allocated to personal use. It has not been established that more amounts need to be added back. 4) The majority of the capital cost allowance on personal property owned by the father relates to his motor vehicle. He states the personal use of his truck is 10%. The full amount claimed for capital cost allowance is not necessary for the replacement of the vehicle. This along with significant personal use of the vehicle makes it reasonable to add back 50% of the capital cost allowance claimed in each of the years in question. 5) The mother has asked that the Court add back to the father's personal income the amounts claimed in the partnership and then allocated to the individual partners. The father's income tax return includes personal farm component which consists of much smaller income and expense statement on matters that are totally within his control and for which all benefits accrue to him. His tax return also includes the partnership statement which shows the same types of income and expenses but on partnership basis. There are five partners involved, two are his brothers and the other two are his cousins. There is no evidence to suggest that the income statements of the partnership are fashioned in such way to reflect an inaccurate picture on cash basis of the operation of the farm partnership. There is nothing to suggest that the partnership is organizing its expenses or distribution to artificially lower the income of the father. This is not situation where the father is the sole shareholder in corporation. This is not situation in which there is majority ownership in the partnership which would allow the father to control the activities of income distribution or asset purchase. There is nothing in the Guidelines to suggest that the Court should be adding back any of the partnership amounts to the income of the father automatically. There is nothing in the evidence that would lead the Court to the conclusion capital cost allowance being claimed by partnership is inappropriate or indeed that any of the expenses or accounting functions used by the partnership do not reflect the partnership business over the long term. The Court was not prepared to add back to the income of the father the personal expenses claimed in partnership returns as farm expenses, capital cost allowance on real property or personal property owned by the partnership. 6) The total income averaged over 3 years comes to $29,983 each year. Child maintenance shall be paid on that amount.",e_2006skqb446.txt
59,"Q.B. A.D. 1994 No.354 J.C.P.A. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: DARRYL WILLOUGHBY, Litigation Guardian for ANGELA WILLOUGHBY, An Infant and EDITH LARSEN, HAROLD LARSEN, and THE BOARD OF EDUCATION OF THE PARKLAND SCHOOL DIVISION NO. 63 OF SASKATCHEWAN, ROBERT EARL KRAFT and MORGAN DRIVE AWAY INC. DEFENDANTS R. J. Lane for the plaintiff (applicant) J. A. Bailey for the defendants, Edith Larsen and Harold Larsen R. J. Rath for the defendant, The Board of Education of the Parkland School Division No. 63 of Saskatchewan FIAT ROTHERY J. February 18, 1998 This is an application pursuant to Rule 188 of TheQueen's Bench Rules of Court for a determination of thesepoints of law: 1. Whether the defendant, Edith Larsen is liablepursuant to s. 86(1) of The Highway Traffic Act,R.S.S. 1978, c. H - 3.1, for the personal injuriessustained by the infant plaintiff, AngelaWilloughby, or whether Edith Larsen is immune fromsuch liability by virtue of s. 228 [now s. 232] ofThe Education Act, R.S.S. 1978 (Supp.), c. E - 0.1[now The Education Act, 1995, SS. 1995, c. E - 0.2]. 2. In the event Edith Larsen is immune fromliability by virtue of s. 228 of The Education Act,whether the co-defendant, Harold Larsen, is liablepursuant to s. 86(1) of The Highway Traffic Act forthe infant plaintiff's personal injuries. The parties proceeded on the following agreed statement of facts: 1. The infant plaintiff, Angela Willoughby, was student at Canwood School, school operated by the defendant, the Board of Education of the Parkland School Division, No. 63 of Saskatchewan. 2. On or about May 20, 1993, the infant plaintiff was passenger in an automobile driven by the defendant, Edith Larsen, owned by the co-defendant, Harold Larsen. At all material times, the automobile was not stolen or otherwise wrongfully taken out of the possession of Harold Larsen, nor out of the possession of any person entrusted by him with his care. 3. The said automobile was involved in collision with another vehicle owned by the defendant, Morgan Drive Away Inc., and operated by the defendant, Robert Earl Kraft, at or near Saskatoon, Saskatchewan, resulting in the infant plaintiff's bodily injury, loss and damage. 4. The aforesaid collision and the infant plaintiff's bodily injury and resulting loss and damage was caused by the negligence of the defendant, Edith Larsen. 5. The aforesaid motor vehicle accident occurred while the infant plaintiff was being transported to recreation area on field trip, approved by the defendant School Board, and Edith Larsen was the teacher within the meaning of the provisions of The Education Act, S.S. 1988 89, c. 0.1. The plaintiff discontinued its action against both Robert Earl Kraft and Morgan Drive Away Inc. Counsel for the plaintiff supports the position enunciated by counsel for the Board of Education. The Board argues that Edith Larsen is liable for the plaintiff's personal injuries. If she is not liable, Harold Larsen, the owner of the motor vehicle driven by Edith Larsen, is liable for the plaintiff's injuries. cannot find in favour of the Board. Edith Larsen is immune from liability byoperation of The Education Act. Harold Larsen, as theowner of the motor vehicle, is only liable to the sameextent as the driver. That is, Edith Larsen's immunity extends to Harold Larsen. STATUTORY PROVISIONS Section 86(1) of The Highway Traffic Act states: When any loss, damage or injury is caused to person by motor vehicle, the person driving it at the time is liable for the loss, damage or injury if it was caused by his negligence or improper conduct, and the owner of the motor vehicle is also liable to the same extent as the driver, unless at that time the motor vehicle had been stolen from the owner or otherwise wrongfully taken out of his possession or out of the possession of person entrusted by him with its care. Section 228(1) of The Education Act (basically the same as the present s. 232(1)) states: Where board of education, principal or teacher approves or sponsors activities during school hours or at other times on school premises or elsewhere, no teacher, principal or other person responsible for the conduct of pupils shall be liable for damage caused by pupils to property or for personal injury suffered by pupils during those activities. Section 91 (bb) [now s. 85(1)(bb)] of The Education Act requires the board of education to: keep in force policy of insurance for the purpose of indemnifying: (i) the board and its employees in respect of any claim for damages to property or for personal injury or death arising from any program, activity or service authorized or provided by the board, or from any approved activity mentioned in section 228, and the board may, in its discretion, also indemnify parents and citizen volunteers; (ii) the board and teachers employed by the board in respect of any claim for damages arising from the performance of duties and functions of teachers under this Act that are required or approved by the board; (iii) the division in respect of any claim for damages arising out of arrangements of the board for the transportation of pupils to and from school or to and from other places for the purpose of engaging in activities authorized by ANALYSIS Counsel for the school board argues that s. 86(1) of The Highway Traffic Act and s. 228(1) of The Education Act are in conflict. The Highway Traffic Act imposes liability on negligent driver, but The Education Act grants teacher immunity from liability. Counsel for the school board submits that the conflict may be avoided by applying the statutory interpretation principle of generali specialibus non derogant. This principle of statutory interpretation explained in Sullivan's text, Driedger on the Construction of Statutes (3d) (Butterworths Toronto) at pp. 186-187 refers to R. v. Greenwood (1992), 1992 CanLII 7750 (ON CA), O.R. (3d) (Ont. C.A.) at p. 7: The maxim generalia specialibus non derogant means that, for the purposes of interpretation of two statutes in apparent conflict, the provisions of general statute must yield to those of special one Applying this maxim of construction, the provisions of the special statute are not construed as repealing the general statute, but as providing an exception to the general By treating the special statute as creating an exception to the general, the two statutes are then brought into harmony. Counsel for the School Board argues that, in thiscase, The Education Act is the general statute dealingwith teacher's liability and immunity in a general way. Oppositely, The Highway Traffic Act is specifically directed to liability arising from motor vehicle negligence. Therefore, counsel submits the specific creates an exception to the general, and negligent teacher/driver, even acting within the scope of s. 228 of The Education Act, is liable for the injury to the plaintiff pupil. I cannot agree with this analysis. First, there isno apparent conflict between the statutes. When they are read together, the legislation provides that negligent teacher/driver is granted immunity from liability if the teacher has acted within the scope of s. 228 of The Education Act. Even if there were an apparent conflict between the two statutes, careful analysis would lead one to conclude that The Highway Traffic Act is the general statute, governing liability of all drivers of motor vehicles. The Education Act specifically provides an immunity toteacher's liability when acting within the scope of s.228 of The Education Act. The immunity only applies toteachers and principals. (See Thompson v. The Board of Education of the Eston-Elrose School Division No. 33 et al (1997), 1997 CanLII 11450 (SK QB), 154 Sask.R. 182 (Q.B.). Section 91(bb) [now s.85(1)(bb)] of The Education Act requires that the school board maintain insurance to indemnify the board and its teachers acting within the scope of their duties. This further illustrates that the teacher's immunity is an exception to the general liability provisions of The Highway Traffic Act. TheEducation Act ensures that the school board is liable forany negligence of its teachers and principals and thatplaintiffs have recourse for negligence against theschool board and its insurer. The injured plaintiff isnot denied a party to sue for negligent operation of avehicle. The party is the school board, not the teacher. On the basis of this analysis and the agreed facts,I find that Edith Larsen was acting within the scope ofher duties under s. 228 [now s. 232] of The EducationAct. She is therefore immune from liability in thisaction commenced by the plaintiff pupil. Secondly, find Harold Larsen, the owner of the motor vehicle driven by Edith Larsen, to be immune from liability as well. This conclusion is based on the wording of s. 86(1) of The Highway Traffic Act itself. Counsel for Harold Larsen submits that the case of Neault v. Pollard (1996), 1996 CanLII 6967 (SK QB), 140 Sask. R. 26 (Q.B.) is on point and ought to be followed. Neault is authority for the principle that because The Workers' Compensation Act restricts the right of action that worker might have against co-worker for injuries sustained while acting in course of employment, the wording of s. 86(1) of The Highway Traffic Act extends that restriction to the owner of the motor vehicle involved in the accident. Counsel for the school board argues that the Neault case is distinguishable on its facts, because the parties to that Rule 188 application agreed that the plaintiff and driver were both ""workers"" as defined by The Workers' Compensation Act. That distinction is illusory. The parties to the Neault case agreed The Workers' Compensation Act applied. The parties to this application agree that Edith Larsen falls squarely within the provisions of s. 228 of The Education Act. That being so, because s. 86(1) of The Highway Traffic Act provides that the ""owner of the motor vehicle is liable to the same extent as the driver"", the teacher's immunity extends to the owner. Counsel for the School Board asked me to consider the Thompson case, supra, and McKay and McKay v. Board of Govan School and Molesky (1967), 1967 CanLII 430 (SK CA), 60 W.W.R. 513 (Sask. C.A.) as authority for maintaining liability against the owner of the motor vehicle. Those two cases are of no assistance. They deal solely with the interpretation of The Education Act and the extent to which the school board remains liable, even though the teacher might be immune from liability. find the reasoning in Neault to be directly on point. Just as The Workers' Compensation Act and The Highway Traffic Act prevent the injured worker from suing the owner of the vehicle because he is prevented from suing the driver, The Education Act extends the same immunity to the owner as it does to the driver by operation of the same s. 86(1) of The Highway Traffic Act. For the reasons stated, find Edith Larsen's immunity under The Education Act extends to the owner of the motor vehicle, Harold Larsen. Because Edith Larsen is not liable to the plaintiff pupil, neither is Harold","FIAT. An application pursuant to Rule 188 for a determination of whether the defendant was liable pursuant to s86(1) of the Highway Traffic Act for the personal injuries of the infant plaintiff or was immune from liability by virtue of s228 [now s232] of the Education Act. The second point of law to be determined was whether the co-defendant as car owner was liable if the driver was found to be immune from liability. The motor vehicle accident occurred while the infant plaintiff was being transported during a field trip, approved by the defendant school board, and the defendant was the teacher. HELD: 1)The teacher/driver was acting within the scope of her duties and was immune from liability by virtue of the Education Act. 2)The owner was only liable to the same extent as the driver. The reasoning in Neault was directly on point. Just as the Workers' Compensation Act and the Highway Traffic Act prevent the injured worker from suing the owner of the vehicle because he is prevented from suing the driver, the Education Act extends the same immunity to the owner as it does to the driver by operation of s86(1) of the Highway Traffic Act. 3)There was no apparent conflict between the statutes. When read together, the legislation provides that a negligent teacher is granted immunity from liability if the teacher has acted within the scope of the Education Act. The Traffic Act is the general statute, governing liability of all drivers. The Court did not agree with the School Board's analysis that the Education Act was the general statute. 4)The injured plaintiff was not denied a party to sue for negligent operation of a vehicle as he had recourse against the school board and its insurer. The immunity under the Education Act only applies to teachers and principals.",c_1998canlii14058.txt
60,"1986 S.H. NO. 59705 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Gin Legorburu and Det Norske Veritas Defendant GLUBE C.J.T.D.: This is an action for wrongful dismissal. The plaintiff seeks an award which includes: loss of income for twenty‑four months less any amounts paid by the defendant or earned by the plaintiff; loss of vacation; loss of automobile allowance; plus interest on the foregoing amounts; and general damages for mental distress. Det Norske Veritas (DNV) is classification society with rules and regulations for number of functions including construction and design of vessels and offshore platforms. it is the Norwegian equivalent of Lloyds Registry of Shipping. Jon Legorburu, age 53; born in Spain, moved to France and then during the war to Britain, where he became British subject. He is now Canadian citizen. He received B.Sc (naval architecture) from the University of Durham and an M.Sc (ship building technology) from the University of Strathclyde. In 1965, after serving as lieutenant in the Royal Navy for three years (Short Service Commission) Mr. Legorburu joined Lloyds Registry of Shipping as surveyor. In 1974, he joined DNV as Station Manager at Inverness, Scotland. His duties included examination of newly constructed ships, ships in service, and oil platform construction and commissioning. From 1974 until December 31, 1986 he was continuously employed by DNV, holding various positions including Senior Surveyor and Station Manager in Aberdeen, Scotland from 1978 to 1980, and Regional Manager for Argentina, Uruguay and Paraguay from 1980 to 1982. In his first position with DNV in Inverness, Scotland, Mr. Legorburu had local status. Local status means his terms of employment such as salary, pension and benefits are under the local conditions of Scotland. When he went to Argentina to establish an office for DNV, he became an expatriate on four year term. As an expatriate, he received fully paid home leave for himself and his family after two years, along with free accommodation, motor vehicle, telephone and newspaper. His salary was in United States dollars and was tied to inflation. When the Falklands crisis occurred in 1982, British subjects were advised to leave Argentina. Mr. Legorburu and his family returned to the United Kingdom but after short time, he returned to try to run the office from Montevideo. This quickly proved impractical. DNV then gave Mr. Legorburu the option of going back to Glasgow or to Montreal or to Halifax. He chose Halifax, where there was an opportunity to set‑up new office for DNV, recruiting staff and organizing activities in Atlantic Canada. He considered that he was coming to vibrant area to which he was bringing offshore expertise. On June 30, 1982 he received minimum two year appointment as an expatriate and became District manager of the East Coast Area with duties which included dealing with ships in service, marketing and business development and advising on oil rigs in service. The letter outlining the terms and conditions of his employment provided additional benefits including company car with fixed monthly reimbursement to cover personal use, housing and furnishings with percentage payback plus the cost of utilities for his personal use, and four weeks annual vacation with free home leave every two years if the assignment continued beyond two year period. In early 1984 at the peak of the Halifax operation, eight surveyors were employed. Mr. Legorburu reported to Jan‑Erik Hagen, the Regional Manager of DNV in Canada. Initially, Mr. Legorburu was also responsible for Newfoundland. As more and more movement of offshore oil went to Newfoundland, an exclusive office was opened in St. John's with the person in charge reporting directly to Mr. Hagen. At all times during his employment in Halifax, Mr. Legorburu was informed by either Mr. Hagen or others at DNV who were in higher positions, that he was doing good job for the defendant company. Documentation was introduced into the trial to that effect. Throughout, he received regular salary increases. On March 27, 1984, Mr. Legorburu was advised by letter, that an expatriate contract was for specified duration following which an employee was to be repatriated to ""home division"", offered new expatriate terms in foreign country or converted to local status. The latter was ""conditional on the employer's agreement to maintain staff at given location"". He was advised that DNV wanted to retain him in Halifax and was prepared to give him ""grace period"" during which he would continue to receive certain expatriate benefits. They wanted him to convert to local status by January 1, 1985. Until that time, he would continue to have car leased by DNV, one free telephone with reimbursement of trunk business calls and one free daily newspaper. In 1984, he began to sense that the Halifax conditions were going down hill. He testified that he looked at the various options that were presented to him, while at the same time acknowledging he was concerned about keeping his children in one location until they finished school. As family, he considered local status or home division; on bachelor basis, he looked at the possibility of foreign posting (expatriate position). After confirming certain information with Mr. Hagen including the fact that he was not obliged to make final decision on converting to local status until approximately three months from the end of the year, he signed new expatriate agreement dated March 29, 1984. This agreement did not provide any housing allowances. Early in April he was notified of his promotion to Principal Surveyor effective May 1, 1984. In April 1984, Mr. Legorburu wrote to Mr. Hagen asking for information, indicating ""it is very likely"" he would convert to local status. Mr. Hagen responded advising what local status in Region Canada would entail, including that Mr. Legorburu would continue his position as District Manager in Halifax ""provided work prevails..."", which at trial he acknowledged he understood. The plaintiff and Mr. Hagen discussed the issue of changing to local status, including salary and additional benefits. The plaintiff denies that there was ever any discussion with him concerning termination of his employment. On July 23, 1984 Mr. Legorburu was advised by letter that his salary was adjusted to $67,389.00. The letter also praised his contributions to the growth of DNV. In August, 1984, Mr. Legorburu asked Mr. Hagen what positions were available in the United Kingdom and was told it was basically his responsibility to investigate. Although he did that, he learned there was nothing available for his qualifications and experience. He was advised to remain in Canada. An agreement dated February 13, 1985, signed by Mr. Hagen and the plaintiff and effective January 1, 1985, changed Mr. Legorburu from expatriate to local status. It confirmed his continued employment as Manager of the Halifax Office with responsibility for Nova Scotia and New Brunswick, his personal title as Principal Surveyor, and that his basic annual salary was not affected. Further clauses provided benefits including an unlimited use of leased company car with reimbursement to DNV for personal use, reimbursement by DNV of basic telephone rentals and cost of company trunk calls, daily free newspaper, four weeks paid vacation and pension. All of these clauses had been discussed before the agreement was signed. The clause which is in dispute is as follows: ""7. The mutual notice of termination of this Agreement is three (3) months following the end of the calender month in which termination notice is given in writing."" The plaintiff says this clause was not discussed with him nor read to him, however, it did not unduly worry him because it was in line with normal DNV policy, namely, that in moving employees from one station to another, it was normal to receive three months notice before the move was effected. (This is contained in DNV's document entitled ""Expatriate Employment Policies"".) On the other hand, surveyor looking to move outside DNV usually gave the company three months notice. In his mind, this clause did not refer to termination of his employment by DNV, it related to termination of the agreement. He said it was unnecessary for him to take the agreement to lawyer as he did not perceive it as way to fire him. He signed and returned copy on February 25, 1985. In cross‑examination, Mr. Legorburu stated he believed that he could leave the company on three months notice, but that the company had no right to give him three months notice of termination. In his discovery evidence, he acknowledged that either party could terminate on three months notice. At trial, he explained saying, this meant termination of the agreement, and not termination of his employment. He denied that his view of this agreement had changed or altered as result of reading the opinion of his expert witness, Professor Christopher L. Rigg. The down turn in the economy and the bottom falling out of oil prices caused dramatic reduction in the work of the Halifax Office. Mr. Legorburu realized that the Halifax office was gearing down to one or two man operation which would not be fulfilling for him. Towards the end of 1985, he started applying for expatriate positions with the defendant. He applied to number of locations in February, March and April 1986 without success. In June 1986 he was notified that there would be freeze on salaries at least until the end of September of that year without any guarantee of change at that time. Mr. Hagen advised by letter that this was not to be perceived as negative evaluation"" of his performance during the previous year. On September 29th, 1986, he was advised by telephone followed by letter of the same date, that his employment was terminated effective December 31st, 1986. He was told that the Halifax Office would be closed and his services would no longer be required. He was advised that DNV was prepared to offer him the agency as non‑ exclusive surveyor to DNV in the Maritimes if he was interested in setting up on his own in Halifax. Verbally, he was advised that the company was following up possible position for him in Australia. During meeting on October 8th, 1986 with Mr. Hagen, he discussed the agency proposal, the Australia position and repatriation to the United Kingdom, as well as alternatively requesting compensation along the lines of what was being offered in Norway. Mr. Hagen advised that the compensation was unlikely, but he would raise it with head office in Houston, Texas. Mr. Legorburu said that although several draft agreements were presented to him for the agency position, the terms were not acceptable as he was not permitted to do work for other classification societies, and if he did not do DNV work when it came up, he would lose some of the guaranteed income which was being offered for the first few months. He believed there would be virtually no other surveyor work in Halifax. He concluded that the several proposals could end up costing him money, and found none of these were acceptable. further portion of the plaintiff's discovery was read which asked why he took issue with the letter of September 29th which terminated his employment on December 31, 1986. His discovery response was that he did not take issue with that letter as far as the three months notice was concerned, he took issue with it on the basis that because of his seniority, he believed there would be alternative employment. At trial he explained that he was always given to understand that because of his seniority and the number of years of experience, he did not have to worry about DNV finding him other work. Mr. Legorburu testified that at meeting held in Calgary towards the end of 1985, Mr. Gudmundur Sigurthorsson (then the Executive Vice‑President, Field Division The Americas located in Houston, Texas) told him not to worry as they would find him other employment. The plaintiff claims this was also said to him by Mr. Sigurthorsson in telephone conversation early in 1986. Mr. Sigurthorsson cannot recall either of these conversations. Mr. and Mrs. Legorburu both testified about his mental state following September 29, 1986. He said he was quite devastated by the turn of events, and as result he went into deep depression. Mrs. Legorburu, who is nurse, said she was extremely concerned about him, as he was not functioning normally. Although he refused to see doctor, she was so concerned that she arranged for Dr. Michael P. Quigley to make house call which occurred on October 10th, 1986. The doctor prescribed tranquilizers and the further support of psychotherapy. Dr Ouigley's report relates agitation, restlessness, lack of self‑worth, feelings of hopelessness and crying which lasted over an eight to ten week period. Mr. Legorburu required an anti‑anxiety‑anti‑depressant medication until January 1987. The total treatment period was four months. Mr. Legorburu was off work until October 27th, 1986. He then returned to work until mid‑December when he was advised that he need not come into the office any longer. He received vacation pay and his regular pay until December 31, 1986. After receiving the notice of termination, the plaintiff registered with the Provincial and Federal Civil Service and he contacted Australia to see if there was position available. He wrote to the Technical University of Nova Scotia. He applied for position that had been advertised with Halifax Industries. When he was interviewed, the salary was more than $20,000.00 less than what he was earning, and he felt he could do better. He received two interviews with the Province concerning particular position which eventually was not filled. He had interviews with the Coastguard and the Department of National Defence in Halifax, however, by the time he was offered work he had already accepted new employment with Indal Technologies Inc. (Indal) in Mississauga, Ontario at salary of $55,000.00. This was lower salary than his departing salary from DNV which was $67,389.00. Also, in his first year with Indal, he only received six days vacation, moving to three weeks for the next four years. Again this was less than he received from DNV. He received funds from Indal for temporary location and relocation. He commenced this employment March 1st, 1987. As result of the reduction in his salary, his wife was obliged to supplement their income by returning to work as registered nurse. She was required to write examinations before obtaining employment. Although he has received regular increases since March 1987 along with two bonuses of $1,500.00 each, Mr. Legorburu's salary still remains below his departing salary from DNV. In explaining his difficulty in obtaining employment at level equivalent to his salary at DNV, he referred to the almost complete lack of opportunity relating to offshore oil and gas, that shipbuilding was substantially reduced and the highly specialized nature of his work as surveyor with DNV. Mr. Sigurthorsson now the President of DNV Industry USA Inc., described that the Halifax Office was set‑up to provide survey functions for ships and oil rigs. He confirmed the progress of Mr. Legorburu's previous employment with DNV. It was his belief that in 1985, Mr. Legorburu wanted to change to local status because he wanted to make Canada his permanent home, allowing him to settle down with his family. Describing the policies of DNV, Mr. Sigurthorsson stated that expatriate employees are asked to move from time to time from one location to another. Local status employees may be invited to move, but they cannot be forced to move by DNV. Normally an expatriate position is for three years at any one location, and is usually not extended beyond that time. The document entitled ""Expatriate Employment Policies"" prepared by DNV, contains section entitled ""Termination of assignment/Transfer expenses"". It refers to adverse business developments, war or war‑like conflicts or other catastrophic events leading to cancelling an expatriate contract by the Assignment Division who will provide three months notice, if possible, and offer every assistance towards reassigning or repatriation with transfer costs being assumed by the assignment division. According to Mr. Sigurthorsson, this does not apply to persons on local status. He described that early in 1985, the Canadian market was quite good, but weaknesses gradually reduced the offshore work initially affecting the Halifax and Calgary locations. By the end of 1985, the weaknesses were becoming much stronger. Halifax was losing money due to the recession in the offshore and shipping activities. When this down turn occurred, DNV had very few openings resulting in limited ability to move people to other assignments. He was unable to recollect making any comments or promises to Mr. Legorburu about obtaining employment for him at the meeting in Calgary. He claims that given the context of the times, he found such comment very, very unlikely. He also claimed to have no recollection of such conversation in 1986 saying it would be even more unlikely then because DNV was in fairly deep difficulty with excessive staff capacity. news communication which was sent to all employees in the 28th week of 1986 indicated the necessity of undertaking staff reduction. Mr. Sigurthorsson stated that in any lay‑off, DNV's policy was to make every effort to find positions for people, however, nothing was found for Mr. Legorburu although claiming he had his personnel officer call colleagues and that he probably personally tried as well. He acknowledged he has no specific recollection of seeking another position for Mr. Legorburu. He described the several proposed agency agreements as attempts on the part of DNV to make the situation bit easier for Mr. Legorburu. Mr. Sigurthorsson stated Mr. Legorburu's interpretation of paragraph of the February 1985 agreement relating to three months notice was entirely incorrect. He denied that person returned to expatriate status this way. memo from Mr. Hagen to Mr. Sigurthorsson, dated October 14th, 1986, refers to the October 8th meeting between Mr. Legorburu and Mr. Hagen. In part, that memo refers to Paul Bishop, Manager of the Newfoundland Office, and the possibility of his obtaining other positions, but that DNV was not considering doing the same for Mr. Legorburu. In the memo, Mr. Hagen stated: ""On this account, stressed the importance of retaining good junior staff with growth potentials. also made the following admission (direct quote): 'Perhaps you and I, Jon, have reached an age where it is much more difficult to use us, and therefore perhaps DnV is somewhat reluctant to find alternative employment for us'. (I don't think this is surprising although it is disillusioning). Jon Legorburu stated that he would be very disappointed if that was the case, and it was certainly not according to 'the DnV used to work with where senior people were always well looked after'."" At trial, Mr. Sigurthorsson testified that he did not necessarily agree with that philosophy nor with Mr. Hagen's position that it was not his responsibility to assist Mr. Legorburu in obtaining other employment with DNV. Mr. Sigurthorsson said it was the responsibility of Canada to assist the plaintiff. Over 500 people from DNV were laid off and Mr. Sigurthorsson said efforts were made to place each one of them. Of this number, only 40 lay offs were in Canada with the majority occurring in Norway. He acknowledged that Mr. Hagen's memo to him was totally inconsistent with their policy, but he has no recollection of responding to it. He said such statement of retaining juniors because of growth potential is an over‑simplification and number of factors are used to determine who is suitable for particular job. Apparently, the former manager of the Newfoundland office was re‑employed in DNV's New York location. The agreement between the parties signed February 13th, 1985 contains clause providing that the laws of the Province of Alberta, Canada govern the agreement. Both parties submitted expert reports setting out their understanding of Alberta law. The plaintiff's expert, Christopher L. Rigg, is an Associate Professor of Law at the University of Calgary and barrister and solicitor entitled to practise law pursuant to the laws of Alberta. After obtaining his law degree, Professor Rigg spent five years in private practice. His field was employment law, in particular labour relations, with some work relating to wrongful dismissal. Commencing in 1980, he studied for two years at Osgoode Hall in the area of employment and labour relations law. He then was employed at the University of Calgary where he currently teaches courses in labour law. He considers himself an expert on the subjects of employment law and labour relations law. His evidence was by way of written opinion and discovery evidence. The expert for the defence is Thomas W. Wakeling of the law firm of Milner and Steer in Alberta. He has taught labour related courses and since 1981 has practised 50% of his time in the area of employment law. He served first as Alternate Chairman and since 1989 as Chairman of the Alberta Public Service Employee Relations Board. Mr. Wakeling filed written opinion and testified at the trial. In his written opinion, Professor Rigg set forth an outline of the facts as he understood them. These facts are essentially the same as those previously set forth in this decision. The only fact not stated in this decision upon which Professor Rigg relied was the final one which states: ""P. The defendant did not have cause to dismiss the plaintiff."" Based upon the traditional meaning of ""cause"" which relates only to actions of the Employee, agree with that opinion. In his discovery testimony, Professor Rigg refers to one additional fact, namely, that clause of the agreement was not specifically drawn to the plaintiff's attention. After analyzing the law, he concluded that an Alberta Court would not limit Mr. Legorburu to months notice of termination of employment. It was his opinion that the court would imply term of reasonable notice of termination. Professor Rigg relies upon primary cases decided in Alberta; Chadburn v. Sinclair Canada Oil Company (1966), W.W.R. 477 (Alta. S.C.); Allison v. Amoco Production Company 1975 CanLII 247 (AB QB), [1975] W.W.R. 501 (Alta. S.C.) and Bagby v. Gustayson International Drilling Co. (1980), 1980 ABCA 227 (CanLII), 24 A.R. 181 (C.A.). He describes Allison as being the most important case. In summary, the Alberta courts have found that: ""...clear words are required to abrogate the implied term of reasonable notice of termination of employment."" (page 14‑15 discovery evidence Christopher L. Rigg, May 28, 1990) In the Allison case, the plaintiff, an American citizen, commenced working for the defendant company in July 1949. In 1952, the plaintiff was assigned to Canada as an expatriate employee. From January 1, 1969, he was on loan to Canadian subsidiary of the defendant. Since 1964, the defendant paid expatriates special allowance to balance their salaries with those paid to employees in the United States. This allowance, amounting to around one fourth of the basic salary, was paid to the plaintiff. In May, 1974 the plaintiff chose to become Canadian citizen. He was then told by his employer that the expatriate allowance was intended to only cover United States citizens and if he refused transfer to the United States, then he would be transferred to the Canadian payroll. He was not offered position in the United States. He was transferred to Amoco, Canada and his expatriate allowance was cut‑off. The plaintiff considered that his employment by the defendant was being terminated without cause and left his employment. He had been employed for approximately twenty‑four years by the defendant and received expatriate compensation for about 10 years. Between 1949 and June 13th, 1974 when the plaintiff ceased to work for the defendant, he received various promotions and appointments to various places. Throughout, his services were always highly regarded by his employer. Although there had been discussion about phasing out the expatriate compensation policy several months before the plaintiff ceased employment, this information was never communicated to the plaintiff nor did it become company policy until the following year. MacDonald, J. held that the proposals by the defendant requiring the plaintiff to terminate his employment with the defendant and be employed by another company even though subsidiary, and the reduction in his income by immediate elimination of the expatriate compensation amounted to repudiation of the terms of the contract of his employment. The court held that there was wrongful dismissal. The court then turned to consider what notice was required. When the plaintiff was first employed by the defendant, he had no written contract. The defendant's position is based on contract between the parties executed approximately nineteen years earlier when the plaintiff became senior geophysicist which states: ""If Company desires to terminate employment of an Employee Company shall give Employee thirty days' notice thereof;..."" (page 507) The court determined that reasonable notice is implied by law and held that the particular contract was to preserve confidentiality as condition of the employment and was not intended to deal with general terms of employment. As reasonable notice of termination was required initially when there was no written contract, MacDonald, J. could not accept that by being promoted into more senior position, the notice of termination would be reduced down to thirty days. At p.508 MacDonald J. states: ""If such was to be the intention of the parties, that intention must be expressly and clearly stated. The words used do not clearly state that the contract would terminate on 30 days' notice but only that if the company desires to terminate it it shall give 30 days' notice. These words do not consider sufficient to abrogate the doctrine of law that reasonable notice must be given. would consider that the 30‑day notice provision if applied would be harsh term."" After considering all the evidence, he concluded that the plaintiff was entitled to reasonable notice and since such notice had not been given, he was entitled to damages for breach of contract. MacDonald, J. determined that if the defendant desired to terminate the agreement, it had to give 30 days notice of its intention. The facts in Chadburn are that the plaintiff was employed for several years by one company which was taken over by the defendant company where he continued his employment for another nine years. He was given two days written notice of termination without cause. The reason for his termination was an internal reorganization which made the plaintiff redundant. When the plaintiff joined the defendant company, he signed an alleged employment contract which contained the following clause: ""Either party may terminate this contract at any time, with or without cause. In event of termination employer shall not be liable to employee for wages or salary, except as may have been earned at the date of such termination...."" (page 479) On termination he was given cheque amounting to one weeks' salary for each year he was employed with the defendant. The court found the agreement was payroll formality and at p. 480, Riley J. states: “It will be noted that there is no provision that either party can terminate without notice nor indeed specifying the notice required."" The court held that to terminate without reasonable notice requires the use of very clear words and added at p.486: “What is reasonable is in part founded on social and economic conditions of the time for the reason that these conditions would govern the opportunity of the employee in obtaining similar employment."" Bagby is 1980 decision of the Alberta Court of Appeal. The plaintiff was employed by predecessor company of one of the defendant companies. He eventually became President and General Manager. He went on to work for the purchaser of the predecessor company (another defendant) and after several years that company decided to look for buyer. In order to retain employees during this time memorandum was sent with terms of their employment. There was also an agreement with the plaintiff as to what would happen to him if the company was sold within twelve months and what would happen after twelve months if no sale resulted. The plans to sell were dropped and Mr. Bagby continued to serve as President and General Manager. Several years later, the company again decided to sell. Although Mr. 8agby was offered position with the new company, he refused it saying he had number of things to settle up with his current employer. As the company was sold, Mr. Bagby was terminated without notice. Although the company offered him monies that had been set out in the memorandum referred to, he was offered nothing in lieu of notice. Throughout twenty‑four years his performance was described as exemplary. The reason for his eventual termination was the sale of the company's assets and the end of this business. The court held that the agreement did not purport to deal with Mr. Bagby's termination of service when the sale occurred after twelve months. Laycraft J.A. (as he then was) states at p.191: “The rule is well established in contracts for service of indefinite duration that the implied term of reasonable notice of termination will not be negatived except by clear words."" The court found the memorandum did not contain the necessary clear words. Professor Rigg also discussed the case of Olson v. Sprung Instant Greenhouses Ltd., 1985 CanLII 1257 (AB QB), 41 Alta. L.R. (2d) 325 (Q.B. 1985). There the plaintiff worked for group of related companies. He signed an employment agreement with only one of them which provided for employment on an indefinite basis with right to terminate on two weeks prior notice in writing. Relying on Bagby and Allison, the court found that these provisions did not clearly negative the implied term of reasonable notice and held at p. 330: “It is significant, believe, that the agreement does not say that the employment may be terminated on two weeks' notice. It says that the agreement may be terminated by two weeks' prior notice in writing."" The court held the agreement which he had signed was not all‑inclusive and it did not set out the terms of employment with all of the groups. Professor Rigg's opinion is that Mr. Legorburu was employed ""without specific tenure"" when he signed the expatriate agreement in March of 1984. In accordance with that agreement, the plaintiff chose to transfer to local status which resulted in the February 1985 agreement. Professor Rigg believes the latter agreement dealt with various terms affecting the transfer to local status. He concludes by saying that paragraph #7 would be interpreted in Alberta as notice of termination of ""this agreement"", that is, the plaintiff's agreement about local status as compared to expatriate status, thus paragraph #7 did not relate to the termination of the plaintiff's employment with the defendant. Mr. Wakeling refers to Levitt, The Law of Dismissal in Canada (1985). At p.250 paragraph 1004.1 states: “The existence of an express contractual term dealing with dismissal from employment will govern to the exclusion of any implied term...However, such term must be clearly and unequivocally expressed since it will be interpreted, if ambiguous, against the interest of the party who drafted it."" He distinguished the three cases relied upon by Professor Rigg. He referred to the 1979 case of Pierce v. Krahn, 1979 CanLII 1091 (AB QB), 10 Alta. L.R. (2d) 49. The plaintiff, Ms. Pierce, was manager of the defendant company. There were certain written and oral agreements concerning her employment. There was authority for the directors of the company to forthwith terminate her employment if it was in the best interests of the company. Shortly after the business opened, because of dissatisfaction with her performance, the plaintiff's services as manager were terminated. The argument was that this was in breach of an implied term of employment requiring reasonable notice. The court held at p.55: ""When there is in existence an express contractual term governing dismissal from employment, that term governs to the exlusion (sic) of any implied term."" Mr. Wakeling also refers to the case of Krupka v. Board of Governors of Grande Prairie Regional College (unreported decision Alta. Q.B. September 12, 1984). In that case, there was an employment agreement with very specific terms concerning dismissal and severance allowance which in the view of the court negated the reasonable notice requirement because of the plain meaning of the words. With deference, find the clear words relating to employment in Krupka and Pierce, distinguish those cases from the case at bar. Mr. Wakeling says Krupka is not inconsistent with Bagby or Chadburn. He submits that in Bagby, the court found the agreement did not purport to deal with terminating his services where sale occurred after twelve months, therefore, there was no provision for termination and the court imposed reasonable notice. In Chadburn, Mr. Wakeling says the court determined that the contract was just payroll formality and therefore did not contain the terms of employment including termination provision, which was in contrast with the case of Pierce. agree with those analysis of Bagby and Chadburn but disagree with his conclusions. Mr. Wakeling says there is no basis to distinguish between termination of the agreement and termination of employment for Mr. Legorburu in his employment contract. In his opinion, paragraph is clear and unequivocal and therefore binding upon the parties. respectfully disagree based on the findings which are detailed below. Mr. Wakeling distinguished the Olson case from the present case. agree with that conclusion. find that Mr. Legorburu and Mr. Hagen held extensive discussions concerning the changes to be made in both benefits and employment of Mr. Legorburu, which eventually led to the signing of the February, 1985 agreement. During these discussions, find there was no mention of how employment termination would take place. The 1985 agreement was preceded by the March '84 agreement where there was also change from previous working conditions. Again, the 1984 agreement was preceded by discussion and there was no evidence led of the terms for terminating the employment of an expatriate. further find that Mr. Legorburu believed that DNV had commitment to continue to employ him based upon his seniority and years of experience. find Mr. Sigurthorsson gave him to understand that other employment would be found for him. Where the evidence of the witnesses differs, accept the evidence of Mr. Legorburu. On balance of probabilities find that these statements were made to the plaintiff. Perhaps they were not intended to be binding and were intended to placate him but find they were made and accepted as factual by the plaintiff. I find that based on the plaintiff's knowledge of the defendant's practises at the time that he signed the agreement in 1985, that his interpretation that clause #7 did not relate to termination of his employment, but rather to termination of the written agreement, was correct. find this was reasonable belief on the part of the plaintiff. In spite of his failure to make that position plain at discovery, accept the understanding that Mr. Legorburu had of this particular clause in the agreement as expressed at trial. In my opinion, the February '85 agreement was continuation of the March '84 agreement which was continuation of his previous employment, and therefore it simply amended his benefits as result of the change to local status. To have clause amount to the notice required to terminate his employment, the word ""employment"" or ""dismissal"" or other precise words should have been used to avoid any misunderstanding. Mr. Legorburu was entitled to believe that his employment with DNV would continue and that this clause would not permit DNV to terminate his employment with the defendant upon three months notice. I find that the terminology was unclear in that termination of employment was not specifically mentioned in the clause and had not been discussed with him previously in preparing the '85 or '84 or earlier contracts. Thus, this clause must be construed against the author of the clause, the defendant. In summary, there is no clear and unequivocal clause in the agreement which terminates Mr. Legorburu's employment with DNV. In my understanding of the law of Alberta this decision conforms to the case law and interpretation as presented by Professor Rigg. Having made this finding, it is unnecessary to examine argumnets on harshness and unconscionability. As result of this finding, Mr. Legorburu was entitled to reasonable notice. The question then arises was three months reasonable notice? Considering the lack of work in Mr. Legorburu's area of expertise and his efforts towards finding work, find that he did everything reasonably possible to mitigate his damages. He canvassed the local market. find his refusal to accept the agency proposal was also reasonable based on his opinion that he could well end up losing money. He was offered low salary by one company which he turned down. After three months, he obtained employment with Indal. although the salary was lower than he had been receiving from DNV, it was higher than the position he turned down in Halifax. The plaintiff submits that he should receive twenty‑four months pay less the three months for which he received notice and pay from DNV and also, less the pay which he received from Indal. He claims this is reasonable period of time given that he was the second most senior person in DNV in Canada, and second in seniority as surveyor only to Mr. Hagen. Also, he claims he had specialized expertise which did not readily find market for employment with an equivalent salary which is evident from the fact that even after two years he has not reached his departing salary level from DNV. Although the plaintiff provided the court with number of cases with varying years of service and awards, it would appear that each case must be looked at individually. ""The measure of damages is the amount the plaintiff reasonably would have expected to receive from his former employer during the period of reasonable notice less any amounts earned during that time."" (Sweet v. The Canadian Indemnity Co. (1981 43 N.S.R. (2d) 55 at p. 65) Thus, Mr. Legorburu is entitled to damages for breach of contract. In determining the length of notice one must look at reasonableness based upon the character of the employment; the length of the employment; the person's age; and the availability of similar employment having regard to the persons experience, qualifications and training. In this case the latter issue appears to have been the most difficult area for Mr. Legorburu as equivalent jobs at equivalent salary were unavailable. After taking into consideration all of the arguments made by the plaintiff, I find that Mr. Legorburu is entitled to eighteen months notice. From this amount must be deducted the three months pay which he received from the defendant and any income from his new employer over the balance of fifteen months. I also award the loss resulting from the difference in vacation for fifteen months, and loss of automobile allowance for fifteen months. On the issue of prejudgment interest, it appears that counsel are substantially in agreement on method of determining the interest for the period based on the figures presented by the plaintiff, and would ask that this calculation be made and agreed to. If counsel have any difficulty in reaching conclusion, they may contact the court. Finally there is the claim for the emotional trauma. The period of distress was fortunately short and apparently responded to treatment. I award $500.00. The plaintiff is entitled to his costs to be taxed. Constance R. Glube Halifax, Nova Scotia July 4, 1990 1986 S.H. No. 59705 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jon Legorburu and Det Norske Veritas Defendant DECISION OF GLUBE, C.J.T.D.","In a contract of employment, which involved an agreement changing the plaintiff from 'expatriate' to 'local' status, a termination clause providing that the agreement could be terminated upon 3 months' notice was held to be inadequate language to abrogate the implied term of reasonable notice. The plaintiff had correctly interpreted the clause as relating to the termination of the agreement, not of his employment. The agreement provided that it was governed by the laws of the province of Alberta. The plaintiff had been employed by the defendant for 12 years and was awarded compensation in an amount equivalent to 18 months notice less the three months pay he already received and any income from his new employment over the balance of the 15 months. He was also awarded the loss resulting from the difference in vacation and loss of an auto allowance for the 15 months. For emotional trauma, which lasted only briefly, he received $500.",d_1990canlii4118.txt
61,"Q.B.G. A.D.1996 No. 2464 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GREAT CANADIAN BINGO CORPORATION and THE REGINA EXHIBITION ASSOCIATION LIMITED DEFENDANT Patrick N. McDonald for the plaintiff J. Paul Malone for the defendant JUDGMENT GUNN J. September 16, 1996 This is an application by the Great Canadian BingoCorporation (""GCB"") for an interim injunction restraining TheRegina Exhibition Association Limited (""REAL"") frominterfering with GCB\'s enjoyment of certain leasehold premisesin the Jubilee Building in Regina Exhibition Park as tenantfrom and after September 1, 1996. In addition GCB seeks aninterim injunction restraining REAL from entering into anylease with Regina Central Bingo Association Inc. (""RCBA"") andpreventing REAL from permitting the operation of a bingo hallby RCBA within Regina Exhibition Park except as a subtenant ofGCB. FACTS REAL is an agricultural exhibition association operating at Regina Exhibition Park in Regina, Saskatchewan. It operates number of facilities, including buildings suitable for short or long term commercial leases. One of the buildings is the Jubilee Building, which was leased to FKJ Fundraising Ltd. (""FKJ"") pursuant to lease in writing dated April 17, 1991. The lease was for term of five years ending August 31, 1996. FKJ subleased the Jubilee Building to GCB for the term of the lease and REAL consented in writing to this sub-lease. GCB used the Jubilee Building to operate bingo hall. It entered into written agreements with RCBA for the day to day operation of the bingos, including further sub- lease by GCB to RCBA of the Jubilee Building. REAL was not aware of this sub-lease and was not asked to provide its consent, as required by the lease and the first sub-lease. Relevant provisions of the lease are as follows: 15.01 In the event that the Tenant is not, at the time of request, in default of any of the covenants on the part of the Tenant to be paid or performed, the Landlord will, at the expiration of the Term, at the cost of the Tenant and upon request mailed by the Tenant registered post to or delivered to the Landlord, not later than eight (8) calendar months, before the expiration of the Term, grant to the Tenant renewal term of five (5) years, on the same agreements as herein contained save and excepting this paragraph, at rent to be mutually agreed upon provided however, notwithstanding the option to renew hereby granted, the Landlord shall not be obligated to renew the lease for subsequent five year term if: a)the Tenant ceases to use the Leased Premises for bingo purposes; or b)the operations of the Landlord change such that it is no longer feasible to lease the Leased Premises to the Tenant or to any other person. The sub-lease contains the following provisions: 1. The Subtenant [GCB] covenants with the Headtenant [FKJ]: 1.09 not to assign, sublet or part with possession of any part of the Subpremises without the prior consent in writing of the Headtenant and of the Superior Landlord [REAL] which consent may be withheld notwithstanding any statutory provision respecting the withholding of consent without giving reason therefor 2. The Headtenant covenants with the Subtenant: 2.04 In the event that the Subtenant is not, at the time of request, in default hereunder, the Headtenant agrees to exercise the Option to Renew the Head Lease for further term of years in accordance with the Head Lease provided that the notice to renew from the Subtenant shall be received by the Headtenant no later than months prior to the end of the term and provided that the rent (as between the Headtenant and the Subtenant) shall be mutually agreed upon or determined by arbitration as set forth in the Head Lease. GCB did not provide notice to renew its sublease with FKJ. FKJ did not exercise the option to renew the lease with REAL. GCB did not give any formal or written notice to REAL indicating it wished the lease to be renewed. Written notice of renewal should have been delivered to REAL by December 31, 1995. GCB says it entered into negotiations with REAL in November of 1995 for possible relocation of the bingo hall to other premises as an alternative to renewal of the existing lease. GCB says these negotiations continued in January of 1996 but REAL terminated the negotiations and made deal with RCBA to lease the Jubilee Building premises directly to it commencing September 1, 1996. GCB says REAL's course of conduct should estop it from relying on the renewal terms of the lease. There is some dispute on the substance of these negotiations as reflected in the affidavits of Jim Hughston (""Hughston"") and Dwayne Bauer (""Bauer"") filed in support of GCB's position, and the affidavit of Tom Mullin (""Mullin"") filed by REAL. GCB is prepared, for the purposes of this application, to accept the facts presented by Mullin where there is conflict with its position. Mullin is the marketing manager for REAL and is responsible for negotiating all long term leases and contracts at Regina Exhibition Park. He says no representative of FKJ ever indicated to him it wished to renew its lease of the Jubilee Building. He says he had discussions with Hughston in August of 1995, but not about lease renewal. In November of 1995 Mullin says he met with Hughston to discuss the future of GCB at Regina Exhibition Park and says he told Hughston there were number of alternatives to the current lease one of which was the Heritage Building. At paragraph of his affidavit he says the following: There was no discussion at that time about GCB renewing the Lease and all of our discussions at that time were on the basis of exploring all the alternatives available to GCB regarding its future presence at Regina Exhibition Park. There was no clear indication from Hughston that GCB was definitely going to stay at Regina Exhibition Park when the current Lease expired. When we concluded our meeting did not give him any assurances about the future and did not undertake that would get back to him regarding leased premises or terms of new lease. And at paragraph 10 he said the following: [T]here has never been an indication from GCB that it ""intended to renew the lease of the existing space if necessary."" In all of my discussions with representatives of GCB on the topic they have indicated that they had far more space than they wanted under the current Lease and in fact would have preferred to get out of the Lease. When we have discussed space other than the Jubilee Building it has only been in the context of the various alternatives available to GCB. There has never been clear indication that they wanted to renew the Lease. Mullin says he has never been asked by GCB or by FKJ to negotiate the amount of rent to be paid under renewal of the current lease. Currently bingo is being conducted at the Jubilee Building by RCBA on month to month basis, but there is no agreement in writing between REAL and RCBA with respect to the operation of the bingo hall in the Jubilee Building. THE LAW In Deloitte, Haskins Sells v. Brooker, Robinson, Ogrady and Ernst Whinney (1982), 1982 CanLII 2443 (SK QB), 23 Sask. R. 58 (Q.B.) Vancise J. described the general principles to be applied at p. 62 of his judgment: The following principles determine whether or not an interlocutory injunction will be granted: (1) An interlocutory injunction will only be granted where the right to relief is clear. (2) The plaintiff in asserting that right must show strong prima facie case, in support of the right which he asserts and strong possibility that he will succeed at trial. (3) The plaintiff must be able to show that an injunction until the hearing, is necessary to protect him against irreparable damage and loss, mere inconvenience is not enough. (4) Where any doubt exists as to the plaintiff's right or if his right is not disputed, but if violation is denied, the court should determine on the balance of convenience to the parties the nature of the injury which the defendant on the one hand would suffer if the injunction is granted and he should turn out to be right and that the plaintiff on the other hand might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater that [sic] which the defendant will suffer lies on the plaintiff. (Halsbury's Laws of England (3d Ed.), vol. 21, p. 364. See also Govan Local School Board v. Last Mountain School Division No. 29 (1991), 1991 CanLII 8031 (SK CA), 93 Sask. R. 229 at 234. Estey J. in Aetna Financial Services Limited v. Feigelman et al., 1985 CanLII 55 (SCC), [1985] W.W.R. 97 (S.C.C.) at 103 and 104 states that the rule as to the availability of an interlocutory injunction generally is as stated by McRuer C.J.H.C. in The Chesapeake and Ohio Railway Company v. Ball, 1953 CanLII 102 (ON SC), [1953] O.R. 843 at 854-55: The granting of an interlocutory injunction is matter of judicial discretion, but it is discretion to be exercised on judicial principles. have dealt with this matter at length because wish to emphasize how important it is that parties should not be restrained by interlocutory injunctions unless some irreparable injury is likely to accrue to the plaintiff, and the Court should be particularly cautious where there is serious question as to whether the plaintiff would ever succeed in the action. may put it different way: If on one hand fair prima facie case is made out and there will be irreparable damage if the injunction is not granted, it should be granted, but in deciding whether an interlocutory injunction should be granted the defendant's interests must receive the same consideration as the plaintiff's. DISCUSSION DOES THE APPLICANT HAVE STRONG PRIMA FACIE CASE? REAL submits the legal issues are clear. The lease requires that notice must be given by registered mail or personally delivered eight months before the end of the term of the lease. By implication it would appear this notice ought to be in writing. There is no evidence FKJ, the party with whom REALcontracted, exercised or attempted to exercise the option torenew. REAL submits the injunction application should fail on this basis alone as there is no privity of contract between the parties to this lawsuit. The sublease contains provision whereby GCB could have compelled FKJ to renew the lease, but there is no indication it acted in any way to exercise that right. REAL cites in support of its position Saint John Shipbuilding Dry Dock Co. Ltd. v. Canada (National Harbours Board) (1983), 48 N.B.R. (2d) 27 (C.A.) where the New Brunswick Court of Appeal held that tenant wishing to exercise an option to renew lease must comply with the conditions in the lease respecting the time of its exercise. The right to renew will be lost if the tenant fails to give notice in time and the tenant shall not be entitled to relief from forfeiture. The court relied on several English decisions including West Country Cleaners (Falmouth) Ltd. v. Saly, [1966] All E.R. 210, in which the Court of Appeal held at p. 212: [A]n option [to renew] is privilege right which has always been treated by the law as requiring complete compliance with the terms and conditions on which the option is to be exercised. The basis of GCB's application is estoppel. It says REAL entered into negotiations with it with view to the relocation of the bingo hall and then began to deal directly with GCB's subtenant after the renewal date had passed. In Re 6781427 Holdings Ltd. and Alma Mater Society of University of British Columbia (1987), 1987 CanLII 2889 (BC CA), 44 D.L.R. (4th) 257 (B.C.C.A.) the British Columbia Court of Appeal found that landlord was estopped from relying on the strict notice provisions of an option to renew the lease because it had entered into negotiations with the tenant about expansion and had advised the tenant it would advise the tenant of its position on date well after the renewal option deadline. The court found that, in the circumstances it would be inequitable to permit the landlord to rely on the failure to give written notice as required in the lease. Here, it would appear there were no negotiationsbetween REAL and GCB. The parties met once to discuss GCB's future at Regina Exhibition Park generally, but there is no evidence that REAL made any representations to GCB at the time. There was no promise on the part of REAL to follow up on these discussions, nor was there any discussion about waiving any requirements with respect to its exercising the option to renew either through FKJ or directly. I am not satisfied on the basis of Mullin\'s affidavitthat GCB has a strong prima facie case on the merits. IRREPARABLE HARM Sharpe, in his text Injunctions and Specific Performance (Toronto: Canada Law Book, 1983) at para. 15, says in connection with ""irreparable harm"": In the context of preliminary injunctive relief, the phrase is given more specific meaning, namely that the plaintiff, before the trial, must risk some injury which cannot be compensated or remedied other than through the granting of an interlocutory injunction. ""Irreparable"" is not used in the literal sense of being incapable of repair. It has simply been interpreted as ""material"" injury and ""one which could not be adequately remedied by damages"": Kerr on Injunctions, 6th ed. (1927), p. 18. GCB managed the business and sublet the premises to RCBA. Under the current arrangements, the business of bingowill continue to be operated by RCBA. If successful at trial the damages to GCB will be easily calculated based on the time it was unable to occupy the premises. BALANCE OF CONVENIENCE In the case of Confran Holdings Ltd. v. Pope (1985), 1985 CanLII 2567 (SK QB), 43 Sask. R. 63 at 67 (Q.B.) Grotsky J. cited 21 Halsburys Law of England (3d) 366 (para. 766) where it was stated: Balance of convenience considered. Where any doubt exists as to the plaintiff's right, or if his right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff. It is clear there will be some inconvenience to REAL if the injunction is now granted as it has undertaken new course of conduct for bingo at the Regina Exhibition Park with RCBA. There will also be some inconvenience to GCB if the injunction is not granted as it wishes to ""renew"" or ""restore"" state of affairs which has been in place for some time. Onbalance GCB has failed to satisfy the burden of proof that theinconvenience it will suffer by the refusal of the injunctionis greater than that which will be suffered by REAL if it isgranted. Therefore for the above reasons, and in the exerciseof my discretion, I hereby dismiss the application for aninterim injunction. Costs will be costs in the cause.","An application for an interim injunction restraining the Regina Exhibition Association (REAL) from interfering with GCB's enjoyment of certain leasehold premises in the Jubilee Building and from entering into any lease with Regina Central Bingo (RCBA) and preventing the operation of a bingo hall by RCBA within Exhibition Park except as sub-tenant of GCB. The original five year lease for use of the Jubilee Building as a bingo hall between Fundraising td. and REAL was assigned to GCB with REAL's written consent. GCB further sublet the building without REAL's consent or knowledge. Written notice of renewal was not sent to REAL. The basis of GCB's application was estoppel on the basis that REAL entered negotiations regarding a relocation of the bingo hall and then began to deal directly with CGB's sub-tenant after the renewal date had passed. HELD: The application was dismissed. Costs in the cause. 1)There was no evidence that Fundraisers, the original party to the lease, attempted to exercise the option to renew. 2)GCB did not have a strong prima facie case on the merits. It appeared that there were no negotiations between GCB and REAL. 3)There would not be irreparable harm. Under the current arrangements, the bingo would be operated by RCBA. If successful at trial the damages to GCB can be easily calculated based on the time it was unable to occupy the premises. 4)On balance GCB failed to satisfy the burden of proof that the inconvenience it will suffer by the refusal of the injunction will be greater than that suffered by REAL if granted.",7_1996canlii6810.txt
62,"_Q.B. A.D. 1995 No. 1412 J. C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HEATHER JANE GRAY and DOW CORNING CANADA INC., DOW CORNING CORPORATION, THE DOW CHEMICAL COMPANY, MEDICAL ENGINEERING CORPORATION and BRISTOL-MYERS SQUIBB COMPANY DEFENDANTS N. W. Fursman for the plaintiff (respondent) R.G. Kennedy for the defendant (applicant) The Dow Chemical Company No one appearing for the other parties FIAT GEREIN J. April 24, 1996 The statement of claim in this action was served ex juris upon all the defendants. At this time the onedefendant, The Dow Chemical Company, seeks a declaration thatthis Court lacks jurisdiction to entertain the action insofaras it relates to that particular defendant. The Court is alsoasked to set aside the service ex juris. have concluded that the requested relief should not be granted. The Facts For the purpose of this application assume that all the allegations in the statement of claim are true and that they do form the basis of good cause of action in both tort and contract. These are the circumstances of the plaintiff. On May 1, 1980, she underwent bilateral augmentation mamoplasty and received silicone breast implants manufactured by Dow Corning Canada Inc. or Dow Corning Corporation. Ten years later on July 23, 1990, the plaintiff received replacement breast implants, bearing the trade name Surgitek, which were manufactured by Medical Engineering Corporation and Bristol- Myers Squibb Company. Finally, on October 1, 1992, she had the breast implants removed. The plaintiff presently suffers from fibromyalgia,chronic fatigue and a persistent immune mediated skin rash onher chest. It is alleged that her condition is a result ofthe silicone implants, the connection having been discoveredonly in 1994. It is further alleged that her condition was caused by negligence attributed to the manufacturers of the breast implants. Four of the defendants are American corporations with their respective head offices in the United States of America. The remaining defendant is Dow Corning Canada Inc. which is incorporated pursuant to the laws of Canada with its head office located in Mississauga, Ontario. To ensure that there was no uncertainty about its status and sphere of business activity, an affidavit was filed on behalf of the defendant, The Dow Chemical Company, setting forth the 2.Dow Chemical was founded in 1897 in the State of Michigan and incorporated in the State of Delaware in 1947. At present it is publicly held corporation organized under the laws of the State of Delaware having its principal offices at the Dow Centre in Midland, Michigan. 3.Dow Chemical was served with the Statement of Claim in this action at its offices in Midland, Michigan on or about November 7, 1995. 4.Dow Chemical does not now, nor has it ever carried on business within the Province of Saskatchewan, has no assets nor employees located within the Province of Saskatchewan, and is not licensed nor registered to carry on business within the Province of Saskatchewan. accept that The Dow Chemical Company has no presence in Saskatchewan. now quote those paragraphs in the statement of claim which particularize the claim and give details about the role of the various defendants. 11. The Plaintiff states that her symptoms and damages were caused by the negligence of the Defendant manufacturers of the breast implants. Such negligence includes, but is not limited to the following: (a) the design of the breast implants were defective: (i)the Defendants relied upon inadequate research and development tests in their design of the product; (ii)the Defendants failed to conduct appropriate clinical tests and investigations on human subjects following the design stage of the product; (iii)the Defendants misinterpreted the results of research and investigations which were undertaken; (iv)the Defendants deliberately or negligently ignored the tests which contraindicated the use of silicone breast implants; and (v)the Defendants incorporated material in the design of the breast implants which stimulated the formation of excess scar tissue within the breast, and have tendency to leak, and to harden. (b)the manufacture of the breast implants was defective: (i)the implants leak their viscous silicone filling into the breast tissues; (ii)the implants stimulate the formation of excess scar tissue within the breast; and (iii)the implants are made of foreign substance which is inappropriate for implantation within the human body. (c)the Defendants failed to properly warn the Plaintiff and her caregivers of the risks and dangers associated with the breast implants: (i)accordingly, the Plaintiff's consents to the surgical procedures were not informed as regards the nature of the material to be implanted in her body. 12. The Defendants delayed, concealed, and/or deliberately, negligently, or otherwise failed to reveal relevant test data and documents to the United States Food and Drug Administration (the ""FDA""), Health and Welfare Canada (""H&WC""), the medical profession, Heather June Gray, and the public at large. This failure to disclose pre- and post-dated the implant 13. The Defendants provided assurances to the FDA, H&WC, the medical profession, and the public at large that the symptoms of this Plaintiff were not related to the silicone gel breast implants, despite being possessed of information to the contrary. In the circumstances, the Defendants were under further obligation to advise individuals who had already received implants and their medical caregivers, of the dangers associated with those implants. 14. The Defendants negligently acted in concert with other manufacturers of silicone breast implants with respect to the amount of information they provided to or withheld from this Plaintiff, the appropriate regulatory authorities, the medical profession, and the public at 15. The Plaintiff further alleges that the Defendants designed, manufactured and marketed breast implants that were dangerous, not of merchantable quality and not fit for their purpose. 16. The Defendants expressly and implicitly warranted that these silicone breast implants were fit for the purposes intended as cosmetic aids, and that they were of merchantable quality. The Defendants were in breach of these express and implied warranties. 17. The Plaintiff, when purchasing these silicone implants, relied upon the representations of the Defendants with respect to the implants, that they were fit for the purpose intended and that they were of merchantable quality. The Plaintiff has acted and relied upon those misrepresentations to her own detriment. 18. The Plaintiff pleads and relies upon the provisions of the Sale of Goods Act, R.S.S. 1978, Chapter S.1, and amendments thereto, and The Consumer Products Warranties Act, R.S.S. 1989, c. C-30, and amendments thereto. 19. The Plaintiff further states that the Defendant Dow Chemical is at law responsible for the liabilities of Dow Corning with respect to silicone breast implants. Dow Corning Corporation was created by Dow Chemical for the sole purpose of designing, manufacturing and distributing silicone products, including silicone gel breast implants. Following the creation of Dow Corning Corporation, Dow Chemical continued to be involved in the field of silicone research and dominated and controlled Dow Corning Corporation in all respects. Dow Corning Corporation was in fact an agent, creature, or puppet of Dow Chemical with respect to silicone breast implants. 20. Dow Chemical's involvement with silicone breast implants includes, but is not limited to the following: (a)Dow Corning dominated and controlled Dow Corning Corporation's silicone breast implant operations such that Dow Chemical was the de facto operating mind; (b)Dow Chemical scientists provided the scientific basis for the use of silicone in medical devices; (c)Dow Chemical performed experiments and studies which contraindicated the use of silicone in medical devices and showed that the projects were potentially hazardous to those who received them; (d)Despite evidence to the contrary, Dow Chemical continued to represent to the medical and scientific community, and the general public, that silicone was an appropriate produce for insertion into the human body; (e)Dow Chemical provided scientific assistance and guidance, including use of their laboratories and researchers, to Dow Corning Corporation; (f)Dow Chemical conspired and/or acted in concert with Dow Corning Corporation to study the effects of silicone on the immune system in secret and deceptive 21. The Plaintiff states that the facts of this case entitle her to rely on the principle of res ipsa loquitur. On the basis of what is set out above, the question to be answered is whether this Court should accept jurisdiction in respect to the defendant, The Dow Chemical Company. As indicated earlier, believe that it should do so. The Submissions On behalf of The Dow Chemical Company it is acknowledged that on occasion Saskatchewan court will assume jurisdiction over matter even though the defendant does not reside within the province and cannot be served therein. However, it is submitted that this is not such an occasion for the statement of claim does not disclose an actionable wrong on the part of The Dow Chemical Company. Rather, it does no more than describe relationship between that company and another and that relationship in itself does not provide justification for this Court to assume jurisdiction. This is so even if there is derivative liability for that condition arises totally in foreign jurisdiction and it is there that the legal consequences of the relationship should be pursued. In opposition, the plaintiff points to the fact that she has suffered injury and consequent damages in Saskatchewan and says that this is sufficient basis upon which to generally assume jurisdiction. Contrary to the view of the defendant, the plaintiff submits that the statement of claim does describe wrongful conduct on the part of The Dow Chemical Company and that such conduct caused her damage in both tort and contract. It should be noted that the within application is founded solely on the argument that this Court has no jurisdiction over The Dow Chemical Company. The doctrine of forum non conveniens was not invoked and have not taken it into consideration in my deliberations. The Law There are two sources from which the Court of Queen's Bench in Saskatchewan acquires jurisdiction over an in personam action. The first is the common law which provides that this Court has jurisdiction where there is service of the process within the province. The second is what is frequently called ""assumed jurisdiction"" which is creation of legislation. It empowers court to assume jurisdiction over cause of action which arose in this province despite the fact that the defendant's residence is elsewhere and the process must be served ex juris. This new jurisdiction was introduced in England by The Common Law Procedure Act, 1852, 15 Vict., c. 76. That same jurisdiction was incorporated into the law of Saskatchewan by the enactment of s. 12 of The Queen's Bench Act, R.S.S. 1978, c. Q-1. As stated in Standard Trust Co. v. Ginnell (1993), 1992 CanLII 8118 (SK QB), 106 Sask. R. 27 (Q.B.), the exercise of the statutory jurisdiction is governed by Rule 31 of The Queen's Bench Rules of Court. The parts of that rule which are relevant to this application are the following: 31(1) Service out of Saskatchewan may be effected without order wherever: (f)the action is in respect of contract where: (v)a breach or alleged breach of contract wherever made has been committed in Saskatchewan or (vi)damages have been sustained in Saskatchewan, arising from breach committed elsewhere; or (g)the action is founded on tort committed in Saskatchewan; In applying rule 31(1)(g) it is necessary to determine the situs of particular tort. This problem confronted the Supreme Court of Canada in Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] S.C.R. 393. The unanimous resolution is well summarized in the headnote to the reported judgment. Where foreign defendant carelessly manufactures product in foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as result of his carelessness consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. Accordingly, the Courts of Saskatchewan had jurisdiction to entertain the present action. With the foregoing in mind, turn to the application itself. Analysis The defendant, The Dow Chemical Company, is not resident in Saskatchewan and has no direct or real connection to the province. As result, that defendant cannot be served with the statement of claim within the territorial jurisdiction of this Court. It therefore follows that this Court does not have jurisdiction over that defendant on the basis of the common law. One must then move on to determine whether there is statutory jurisdiction. The plaintiff herein is assumed to have suffereddamages both in contract and tort. Applying Queen\'s Bench Rule31(1)(f) and (g) and following what was stated in the Morancase, this Court should assume jurisdiction absent any reasonto the contrary, although any uncertainty or doubt is to beresolved in favour of the defendant. It is argued that such reason does exist in that the statement of claim makes no allegation that the plaintiff's damages were caused by the defendant, The Dow Chemical Company, and more particularly by any culpable conduct on the part of that defendant. In short, it is argued that there is no causalconnection between the defendant, The Dow Chemical Company, andthe plaintiff\'s damages. Rather, the pleadings portray nothing more than relationship, akin to that of vicarious liability, between the defendant, The Dow Chemical Company, and one of the other defendants, namely, Dow Corning Corporation. It is submitted that the existence of such relationship is not in itself sufficient to justify this Court assuming jurisdiction over the action. This submission may well have merit were the statement of claim drafted in the manner suggested. However, do not see it that way when read the pleading as whole and not in isolated segments. In my opinion, the statement of claim speaks to four main topics, vis-�-vis, the activities of the defendants. The first is the negligence in the design and manufacture of the breast implants. These allegations are contained in para. 11 and specifically refer to the negligence of the ""Defendant manufacturers"". take this phrase to mean those parties who actually created or fabricated the implants. This being so, the paragraph cannot be interpreted as including the defendant, The Dow Chemical Company, but rather it has reference to the other four defendants. The second topic, which is set out in paras. 12 to14, inclusive, addresses the failure to inform certainregulatory bodies and the public at large about the risk ofbreast implants. This failure to inform is attributed to all defendants without exception. Assuming that the defendants had duty to provide information and failed to do so with resultant damage to the plaintiff, then an action will lie in tort. In respect to this the court should assume jurisdictionand it should do so in respect to the defendant, The DowChemical Company, for that party is here included with theother defendants. The third topic is that of contract and those allegations are contained in paras. 15 through 18, inclusive. The allegations of non-merchantable quality and breach ofwarranties are made about all of the defendants. recognize that these paragraphs contain references to manufacturing and that the defendant, The Dow Chemical Company, was earlier omitted from that activity. However, there still remains thematter of marketing and distributing the implants and insofaras The Dow Chemical Company may have played a role in that areait could be accountable in contract. The pleading alleges such accountability on the part of that company and therefore this Court should assume jurisdiction over the claim in contract through the operation of Queen's Bench Rule 31(1)(f). The final topic is contained in paras. 19 and 20. Here the allegations are only in respect to the defendant, The Dow Chemical Company, and not the other defendants. The allegations are somewhat extensive, but in general they address two situations. The first is the plea that the corporate entity, DowCorning Corporation, was created for a specific task by thedefendant, The Dow Chemical Company, and that in the carryingout of that task they were in reality one and the same entity. The plaintiff here is suggesting that the corporate veil shouldbe pulled aside and any wrongful acts of Dow CorningCorporation should be treated as being those of The DowChemical Company. Were this to occur, the result would be something other than imposition of responsibility by reason of vicarious liability. If the plaintiff succeeds, the wrongful act or fault would be directly attributable to The Dow Chemical Company. This differs significantly from vicarious liabilitywhere no fault is attributable to the third party, butliability attaches because of the relationship such asemployer-employee, or principal-agent. If fault is found to bedirectly attributable to The Dow Chemical Company, then thereis a causal connection. The second situation is that the defendant, The DowChemical Company, breached its duty to disclose the riskinherent to the breast implants. This is largely repetition of what is stated earlier in the statement of claim, but what is significant is that the defendant, The Dow Chemical Company, is singled out. Thus, here also there is an allegation which suggests link between the alleged failure to disclose and the plaintiff's injuries. Accordingly, in respect to both situations, thereare allegations which I must assume have a factual basis. That being so, the statement of claim does disclose wrongful conduct on the part of the defendant, The Dow Chemical Company, and there is causal connection between that conduct and the alleged damages suffered by the plaintiff. Accordingly,liability may rest with the defendant, The Dow ChemicalCompany, in both tort and contract and it is appropriate forthis Court to assume jurisdiction in respect to the claim as itrelates to the defendant, The Dow Chemical Company. Conclusion In the result, the application is dismissed. Theplaintiff will have her taxable costs of the application in anyevent of the cause.","FIAT. The plaintiff brought an action against five defendants claiming fibromyalgia, chronic fatigue and a skin rash were the result of silicone implants. One of the defendants, Dow Chemical, sought a declaration that the Court of Queen's Bench did not have jurisdiction to hear the action and to have the service ex juris set aside. Dow Chemical argued that there was no causal connection between it and the plaintiff's damages. HELD: The application was dismissed. The plaintiff was awarded her taxable costs in any event of the cause. It must be assumed that the allegations have a factual basis and liability may rest with the defendant, Dow Chemical, in both tort and contract, therefore it was considered appropriate to assume jurisdiction.  1)The Court did not have jurisdiction over the defendant on the basis of common law. The defendant is not resident in Saskatchewan and has no direct or real connection to the province. 2)The plaintiff is assumed to have suffered damages in both contract and tort. Applying Queen's Bench Rule 31(l)(f)(g) and the Moran case, the Court should assume jurisdiction absent any reason to the contrary. 3)Three of the four main topics in the statement of claim have reference to Dow Chemical: the failure to inform certain regulatory bodies and the public at large about the risk of breast implants; marketing and distributing the implants which were of non-merchantable quality and breach of warranties. 4)The final plea was that Dow Corning and Dow Chemical were in reality one and the same entity. It was thus suggested that the corporate veil should be pulled aside and any wrongful acts of Dow Corning should be treated as those of Dow Chemical. This differs significantly from vicarious liability where no fault is attributable to the third party but liability attaches because of the relationship. If fault were found to be directly attributable to Dow Chemical there would be a causal connection. 5)The allegation that Dow Chemical breached its duty to disclose the inherent risk suggested a link between the alleged failure to disclose and the injuries.  6)The doctrine of forum non conveniens was not invoked and therefore not considered. Appeal to Court of Appeal dismissed Sept. 9/96.",9_1996canlii6809.txt
63,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 367 Date: 2007 10 12 Docket: Q.B.G. No. 943 of 2004 Judicial Centre: Saskatoon BETWEEN: DAVID KIRK TAYLOR and THE SASKATOON CIVIC EMPLOYEES’ UNION LOCAL 59 Counsel: Self for the plaintiff M. J. Torrens and C. G. Veeman for the defendant JUDGMENT R. S. SMITH J. October 12, 2007 Introduction 1) In June, 2004, the plaintiff, an employee of the City of Saskatoon and member of the Saskatoon Civic Employees’ Union, CUPE Local No. 59 (hereinafter the “Union”) commenced this action under the simplified procedure of Part 40 of The Queen’s Bench Rules, seeking judgment for $50,000. 2) The plaintiff’s claim is grounded on a provision of the Union’s by-laws which reads:Article XII - Indemnity Clause CUPE Local 59 shall pay the cost of: 12.1 a) Defending an action or proceeding against Union officer claiming liability on the part of that Union officer for acts or omissions done or made by the Union officer in the course of his/her duties or paying any sum required to settle the action or proceeding; b) Damages and costs awarded against Union officer as result of the finding of liability on the part of that Officer for acts or omissions done or made by the Union officer in the course of his/her actions. This Bylaw shall cover Executive officers of Local 59 only. 3) The plaintiff asserts he is involved in Union related litigation and is thus entitled to the benefit of the indemnity clause. The Union resists the claim asserting various defences, the primary being that the plaintiff misconstrues and misinterprets the indemnity by-law and, more to the point, the Court should decline to become involved in the dispute because the Union is voluntary association and is entitled to resolve its own disputes. 4) While the Union may well make the employees of the City of Saskatoon strong, it does not, apparently, make them all happy. The plaintiff had been president of the Union for roughly 10 years when he was defeated in an election for that office in 2000. recount was requested but the result was confirmed. Several months later, the position of vice-president was in contest and the plaintiff put his name forward. He also lost that bid. 5) Defeat did not rest easily with the plaintiff and he again proffered his name for election for the position of Reclassification Chair, in an election to be held in September, 2000. The third time was charm and he was elected to that office. 6) From the moment the plaintiff was defeated in his bid for the presidency in 2000, his relationship with the executive of the Union became rancorous. The plaintiff was constantly engaging the Union’s various officers in procedural objections and debates. General meetings and sessions of various committees for the most part descended into dysfunction. It reached such point that the Union executive actively considered giving up self-government and placing itself in the hands of CUPE National office. 7) Much was said and written by all the players to the drama which, in due course, gave rise to considerable litigation. The plaintiff, in 2001, initiated defamation action against three Union officers (Q.B. No. 664 of 2001) (the “First Action”). The Union defended and brought counterclaim against the plaintiff for defamation by him against certain Union officers. 8) Litigation of the type brought by the plaintiff was new to the Union. It carried no insurance to cover such costs and, accordingly, it was resolved that an indemnity by-law should be passed to ensure that the officers who had been sued in the First Action had the costs of their defence paid by the Union. Not surprisingly, the plaintiff was vociferous in his objection to the by-law and proposed motions and other procedural barriers. In the end, the by-law outlined in the Introduction was adopted. 9) The Union executive sought assistance from CUPE National office which led to report prepared by CUPE National representative. The report observed at page that: The local’s problems seem to have intensified immediately after the election of Sister Lois Lamon as president of the local. Former President, Brother Dave Taylor, and others have devoted much of their time to making life as difficult as possible for the democratically elected officers. This comment is supported by many documents. 10) The observation by the CUPE National representative did not sit well with the plaintiff. He responded by issuing statement of claim (Q.B. No. 2030 of 2002) (the “Second Action”), naming as defendants the Union, CUPE National office, the author of the report and local Union officer. As with the First Action, the primary complaint of the plaintiff was defamation. 11) In 2003, the plaintiff commenced Q.B. No. 1535 of 2003 (the “Third Action”), again alleging defamation by fellow Union member arising out of an e-mail. 12) In March, 2005, Klebuc J. (as he then was), granted an order directing that the First, Second and Third Actions were to be tried sequentially before the same judge with the evidence in each action to be applied to each of the others. 13) As noted, in June, 2004, the within action (the “Fourth Action”) was commenced by the plaintiff under the simplified Rules claiming $50,000 against both the Union and CUPE National for reimbursement of costs incurred by him in advancing his claims in the First, Second and Third Actions. The plaintiff grounds the Fourth Action on the basis of the indemnity by-law. In July, 2004, CUPE National successfully applied to have the Fourth Action dismissed as against it. Accordingly, the Union is now the sole defendant in the Fourth Action. 14) In addition to clamorous debates at Union meetings and the three civil actions, there was second front opened against the Union by Nadine Schreiner. From the Court file, it is reasonable inference to draw that Ms. Schreiner has joined with the plaintiff in his crusade. 15) Ms. Schreiner sought relief against the Union by way of various applications to the Labour Relations Board under sundry provisions of The Trade Union Act, R.S.S. 1978, c. T-17. All of those applications were unsuccessful. (See: Schreiner v. Canadian Union of Public Employees, Local 59 et al., [2001] Sask. L.R.B.R. 444; Schreiner (Re), [2001] S.L.R.B.D. No. 40 (QL); Schreiner (Re), [2001] S.L.R.B.D. No. 76 (QL); and Schreiner (Re), [2005] S.L.R.B.D. No. 35 (QL)). 16) The applications by Ms. Schreiner to the Labour Relations Board are not relevant to the current application, however, they are illustrative of the shock and awe litigation strategy employed by the plaintiff. 17) The plaintiff now applies under Queen’s Bench Rule 485 for summary judgment. Rule 485(1) provides: 485(1) After the close of pleadings, party may apply with supporting affidavit material either by notice of motion for summary judgment, or application for summary trial. 18) The plaintiff posits that as the merits of his case are self-evident, an immediate judgment against the Union in the amount of $50,000 should be granted. Analysis Appropriate forum 19) The Union submits in its brief: 44. Clearly, given the above-described nature of the membership contract, it would be inappropriate to treat the membership contract as simply an ordinary commercial contract. After all, the membership contract is essentially form of “social contract” establishing form of workplace government. It cannot function if the individual members can simply opt out when convenient for them, by for instance invoking the courts when the democratic process does not produce the results that they desire. It [sic] because of this that the members agree that they will abide by the democratic decision-making processes of the union. 45. By declining to get involved in such disputes, therefore, the Court is merely upholding basic term of the membership contract, without which the union cannot function effectively on behalf of its members. 46. The Union further submits that the case law in relation to the supervision of the affairs of voluntary associations, as well as the principles of statutory interpretation, support the above submissions in terms of the Court not becoming involved in this dispute. 20) Firstly, would observe that for employees of the City of Saskatoon, membership in and payment of dues to the Union is not voluntary. For all practical purposes, s. 36 of The Trade Union Act and the union security provisions of the Collective Bargaining Agreement impose both obligations on all in-scope employees as condition of their employment. As to the larger issue of whether the Court should exercise its jurisdiction over disputes between member and the Union, have benefited from the guidance of the Supreme Court in Berry v. Pulley, [2002] S.C.R. 493, 2002 SCC 40 (CanLII), where the Court observed at para. 48: [48] In light of the above, the time has come to recognize formally that when member joins union, relationship in the nature of contract arises between the member and the trade union as legal entity. By the act of membership, both the union and the member agree to be bound by the terms of the union constitution, and an action may be brought by member against the union for its breach; however, since the union itself is the contracting party, the liability of the union is limited to the assets of the union and cannot extend to its members personally. say that this relationship is in the nature of contract because it is unlike typical commercial contract. Although the relationship includes at least some of the indicia of common law contract (for example offer and acceptance), the terms of the contractual relationship between the union and the member will be greatly determined by the statutory regime affecting unions generally as well as the labour law principles that courts have fashioned over the years. With this in mind, for ease of reference will refer to the membership agreement between the individual member and the union as contract. [Emphasis added] 21) The core of the dispute in the Fourth Action is whether the plaintiff is entitled to benefit from an indemnity contained in the Union’s by-laws. The dispute distills to an interpretation of the terms of the Union membership contract in sum, the very type of debate contemplated by the Supreme Court in Berry v. Pulley. 22) The defendant also invokes the reasoning in Street v. B.C. School Sports, 2005 BCSC 958 (CanLII), [2005] B.C.J. No. 1523 (B.C. S.C.) (QL). In that case, Silverman J. declined to address the merits of dispute concerning high school athletic association. Silverman J. observed that, as general rule, courts are loathe to become involved in the internal business of voluntary organizations. 23) With all respect to the defendant, this case is very different than Street v. B.C. School Sports. The dispute in the Fourth Action involves contractual debate concerning the meaning and scope of an indemnity clause. This is substantially different from an internecine dispute in voluntary sports organization respecting the disciplining of high school coach over recruiting practices. The analysis in Street v. B.C. School Sports is not germane to the within debate. However, it is worth noting that in that case the Court did exercise supervisory jurisdiction to ensure the process was fair. 24) Accordingly, in the absence of some statutory regime precluding the Court’s involvement, the debate in the Fourth Action is totally appropriate for disposition by the Court. The statutory regime the Court must be sensitive to is The Trade Union Act. That legislation provides the Labour Relations Board with an exclusive domain on many matters dealing with industrial relations. 25) On this point, have sought guidance from the Court of Appeal in McNairn v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 179, 2004 SKCA 57 (CanLII), (2004), 249 Sask. R. 111 (C.A.). To provide context for the Court of Appeal’s analysis, quote from the judgment the following: [1] The question on this appeal is whether the Court of Queen's Bench has jurisdiction over an action for damages brought against union by one of its members alleging breach of contract by the union in violating the hiring hall rules governing the allocation of jobs among unemployed union members. [2] The action was brought by Rodney McNairn against United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry in the United States and Canada, Local 179. In essence, the statement of claim pleads the following cause of action: Mr. McNairn is welder and member of the Union. The relationship between the Union and its members is contractual and is governed by written set of ""Working Rules and Bylaws"" constituting terms of the contract between the two. Pursuant to the Rules the Union maintains an unemployment board containing the names of out of work Union members, listing them in the order in which the Union is to dispatch them as jobs become available. In violation of the Rules the Union moved Mr. McNairn's name from the top to the bottom of the board, depriving him of work for which he was qualified, causing him loss, and entitling him to damages. [3] On receipt of the statement of claim the Union applied for and obtained an order striking it out on the ground the Court lacked jurisdiction. At that, Mr. McNairn brought this appeal, contending the order was made in error. 26) At the Queen’s Bench level, the Court concluded that the dispute between the parties, in its essential character, was grounded in sections 25.1 and 36.1 of The Trade Union Act. Therefore, the debate between McNairn and his union fell exclusively within the jurisdiction of the Labour Relations Board. 27) The Court of Appeal was of different view and overturned the Queen’s Bench decision. The Court of Appeal concluded that the debate between McNairn and his union was one which fell within the purview of the Queen’s Bench Court. 28) The Court observed, at para. 34: [34] Were the dispute between the parties grounded in section 25.1, there could be no doubting the Board's exclusive jurisdiction to entertain it. However, the facts as pleaded in the statement of claim do not reveal dispute of that character. They reveal dispute over whether the Union removed Mr. McNairn's name from the top of the unemployment board in breach of its obligations pertaining to the maintenance of the board. The Union's obligation to place the names of its unemployed members on the unemployment board in appropriate sequence did not arise out of its statutory duty of fair representation. Rather, it arose out of the Working Rules and Bylaws.... and further, at para. 38, the Court of Appeal opined: [38] Thus subsection 36.1(1) imposes duty upon union (again correlative to the right thereby conferred upon an employee), to abide by the principles of natural justice in disputes between the union and the employee involving the constitution of the trade union and the employee's membership therein or discipline thereunder. As such, the subsection embraces what may be characterized as ""internal disputes"" between union and an employee belonging to the union, but it does not embrace all manner of internal dispute. For the subsection to apply, the dispute must encompass the constitution of the union and employee's membership therein or discipline thereunder. And when it does apply, it requires that the principles of natural justice be brought to bear in the resolution of the dispute. [emphasis added] 29) The essential nature of the debate between Taylor and the Union relates to the interpretation of the indemnity clause in the Union by-laws. In that respect, the contest in this case is indistinguishable from the dispute in McNairn. Moreover, the argument between the plaintiff and the Union is even further removed from those which the Labour Relations Board has exclusive jurisdiction. The dispute is, in its essential character, contractual in nature; namely, is the plaintiff entitled to the benefits of the indemnity clause in the Union by-laws? 30) In short, this is precisely the type of internal dispute that is not within the exclusive realm of the Labour Relations Board. The forum for this contest is The Queen’s Bench Court. Accordingly, this Court has jurisdiction to entertain the plaintiff’s claim and his application under Queen Bench Rule 485 for summary judgment. Exhausting internal remedies 31) The defendant also takes the position that the Court should not lend its process to the Fourth Action as the plaintiff has available to him further internal Union appeals. That appeal process is not self-evident in the Union’s by-laws, however the defendant posits that an expansive reading of CUPE National’s by-laws would lead to conclusion that the plaintiff has one last place to plead his position, namely, at the office of the president of CUPE National. 32) do not accept the position advanced by the defendant. The dispute in the Fourth Action revolves around the by-laws of the Union, not CUPE National’s. Nothing in the Union by-laws precludes the plaintiff from seeking relief from the Courts before making final appeal to the CUPE National office. In my view, it would be inequitable to prevent the plaintiff from bringing this application in the absence of clear and enforceable provision excluding his access to the Courts. Meaning of the indemnity clause 33) In advancing his application the plaintiff utilizes number of interpretive twists and turns. The heart of his argument is that because he is engaged in litigation respecting the Union, he is entitled to have his costs paid. He contends that those costs should notionally be set at $50,000. 34) The plaintiff represents himself. He has incurred no legal fees, other than disbursements, but, nonetheless, he asserts he is entitled to $50,000. The figure of $50,000 is proffered by the plaintiff as an appropriate sum as he expects the defendant has spent at least that much defending the four actions. 35) The Union replies that the plaintiff’s interpretation of the by-law is completely counter-intuitive, blatantly disregards the plain wording of same and totally ignores the context in which it was passed. 36) To assist the Court, the Union invokes Gilchrist v. Western Star Trucks Inc., 2000 BCCA 70 (CanLII), (2000), 73 B.C.L.R. (3d) 102 (B.C. C.A.). At para. 17, the Court summarized the traditional approach to the interpretation of contracts as follows: [17] The goal in interpreting an agreement is to discover, objectively, the parties' intention at the time the contract was made. The most significant tool is the language of the agreement itself. This language must be read in the context of the surrounding circumstances prevalent at the time of contracting. Only when the words, viewed objectively, bear two or more reasonable interpretations, may the court consider other matters such as the post-contracting conduct of the parties. 37) In interpreting contractual language, in this case the language of the by-law, it is important to do so in the context of the surrounding circumstances at the time the provision was drafted. In this instance, the Union found that it was being assailed by the plaintiff and drawn into litigation. The Union appropriately felt obligated to protect its officers from actions done in the course of their office that made them the subject of the plaintiff’s, or others, litigation. As result, the executive took steps to pass by-law which would indemnify the officers. observe the by-law is not dissimilar to one that would be found in many organizations and is logical and appropriate step to take in litigious world. 38) It is worth noting that the plaintiff, at the time of the debate concerning the indemnity clause, introduced motion to amend the indemnity by-law so as to exclude the First Action. That motion failed. The only inference to draw is that the members at that meeting knew that they were paying for the cost not only of the defence of the First Action, but also the counterclaim contained in the First Action. 39) The Union submits that there are two key reasons why the plaintiff is not entitled to be indemnified under the indemnity by-law: (a) The Indemnity Bylaw was not intended to be used to initiate actions or proceedings, but rather to defend actions or proceedings. The counterclaim against the Plaintiff is part and parcel of strategy to defend the officers who were sued by the Plaintiff. (b) The Plaintiff was either not an “Executive Officer” at the relevant time or was not acting in the course of his duties as an Executive Officer when he made the comments and published the material for which he is being sued. 40) The Union asserts that it would be clearly wrong and an error in law to interpret the indemnity clause so as to obligate the Union to fund the plaintiff in his activity of suing the Union and its officers. The Union further notes the apparent contradiction in the plaintiff’s claim for reimbursement of costs not incurred. 41) The Union asks that if the Court concludes, as have done, that it has jurisdiction to hear the plaintiff’s application for summary judgment under Queen’s Bench Rule 485, that it consider dismissing the plaintiff’s claim. The Union cites Wait v. Prince Albert (City), 2002 SKQB 374 (CanLII), (2002), 225 Sask. R. 113 (Q.B.), which stands for the proposition that in disposing of summary judgment motion, the Court may, in addition to granting judgment or directing trial, also grant judgment for the defendant by dismissing the action where such dismissal is appropriate. 42) As noted by Gerein C.J.Q.B., (as he then was) in the application by CUPE National to strike it from the Fourth Action: [3] claim should be struck only where it is plain and obvious that it cannot succeed. See The Attorney General of Canada v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; Marshall v. Saskatchewan, Government of, Petz and Adams (1982), 1982 CanLII 2387 (SK CA), 20 Sask. R. 309 (C.A.); and Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.). 43) The pith and substance of the Fourth Action is to compel the Union to provide the plaintiff with war chest for the sole purpose of suing the Union and its officers. It is plain and obvious that the plaintiff’s claim is grounded on an interpretation of the indemnity clause that is so illogical and inconsistent with its plain wording that it cannot succeed. The plaintiff’s claim for reimbursement of costs not incurred is equally incapable of success. 44) The Dickensian character, Mr. Bumble, upon being advised that the law supposes that his wife acts under his direction, exclaimed “if the law supposes that, the law is ass idiot”. Since that time, commentators and pundits of every stripe have embraced the phrase “the law is an ass”. Notwithstanding the best efforts of legislators and judges, expect, from time to time, the law is still an ass. Not this time. 45) The plaintiff’s application for summary judgment is dismissed. Further, the within action brought by the plaintiff is dismissed, in full. As per the agreement between the parties, there will be no order as to costs. J. R. S. Smith","The plaintiff is an employee of the City of Saskatoon and member of the Union. He commenced this claim based on the Indemnity Clause contained in the Union's bylaws. The plaintiff asserts he is involved in Union related litigation and is thus entitled to the benefit of the indemnity clause. HELD: The plaintiff's application for summary judgment is dismissed. The within action is dismissed in full. 1) The essential nature of the debate between the plaintiff and the Union relates to the interpretation of the indemnity clause in the Union bylaws. This is precisely the type of internal dispute that is not within the exclusive realm of the Labour Relations Board. The forum for this contest is the Queen's Bench Court and this Court has jurisdiction to entertain his claim under Queen's Bench Rule 485 for summary judgment. 2) The plaintiff represents himself. He has incurred no legal fees, other than disbursements, but he nonetheless asserts that he is entitled to $50,000. The figure of $50,000 is proffered by the plaintiff as an appropriate sum as he expects the defendant has spent at least that much defending all four actions. 3) It is plain and obvious that the plaintiff's claim is grounded on an interpretation of the indemnity clause that is so illogical and inconsistent with its plain wording that it cannot succeed. The plaintiff's claim for reimbursement of costs not incurred is equally incapable of success.",e_2007skqb367.txt
64,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fournier v. Green, 2005 NSSC 253 Date: 20050913 Docket: S.P.H. 225931 Registry: Sydney Between: Michelle Fournier v. Debra Green and Eric Craig Defendant Judge: The Honourable Justice Simon J. MacDonald Heard: June 10, 2005 in Port Hawkesbury, Nova Scotia Written Decision: September 13, 2005 Counsel: Gerald A. MacDonald, Q.C., for the Plaintiff Sandra Arab Clarke for the Defendants By the Court: [1] This is an application for an Order for summary judgement pursuant to Civil Procedure Rule 13 and an interim payment under Civil Procedure Rule 31.01. have read the affidavits on file as well as the briefs submitted by counsel. as well heard Counsel representing both sides in oral argument at the chambers hearing for this application. [2] Civil Procedural Rule 13.01 states as follows: 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed. [3] The Plaintiff, in order to succeed in summary judgement application, first has the obligation to prove her claim and then the burden shifts to the Defendant to satisfy the court that he has bonafide defence or at least an arguable issue to be tried before the court. He must disclose the nature of the defence or the issue to be tried with clarity through sufficient facts to indicate that it is bonafide defence or issue to be tried. [4] comprehensive review of the law applicable in summary judgement matters can be found in the judgement of Justice Jamie Saunders in Webber et al v. Canadian Surety Company (4) (1992) 112 N.S.R. (2d) 284. [5] The court must also be aware of the comments made by MacKeigan C.J.N.S. in Lunenburg County Press Ltd. v. Deamond (1977) 18 N.S.R. (2d) 689 at para. 5: We are very conscious, however, as Judge should be in dealing with an application of this sort, that summary judgment is summary proceeding which should not be lightly granted so as to deprive litigant of his right to have any bona fide case disposed of after full trial. We must accordingly allow the appeal and set aside the order of His Honour Judge Burke dated June 14, 1976. We direct that the costs of this appeal and of the application before Judge Burke be costs in the cause of the action.” [6] In this particular application involving rear-end collision, there is heavier burden upon the Defendant. This authority can be found in the words of Freeman, J.A. in MacNeil v. Black [1998] N.S.J. No. 83 at paragraph where he said as follows: “A further burden of proof, and considerably heavier one, falls on the defendant in rear‑end collision cases. The driver of the rear car must rebut presumption that the collision occurred as result of his negligence. See the judgment of Roscoe J. in Wilson v. McInnis (1992), 1992 CanLII 4671 (NS SC), 111 N.S.R. (2d) 78. [7] This accident happened at the intersection of Kings Road and Alexander Street in Sydney, Nova Scotia, on the 4th of March, 2004. The Plaintiff was operating her motor vehicle and said in her affidavit she was struck from behind by the Defendant, Eric Craig. [8] In describing how the accident occurred the defendant, Eric Craig stated in his affidavit: “4. THAT the intersection of Kings Road and Alexander Street is governed by traffic lights. As approached the intersection, noticed that there were three or four vehicles ahead of mine, including Pontiac Montana van (“Montana”) being operated by an individual who was later identified to me as the plaintiff, Michelle Fournier, and which was the vehicle immediately ahead of mine. 5. THAT two or three of the vehicles referred to in paragraph above proceeded through the traffic light. As advanced toward the traffic light, my speed was approximately 10 to 15 km per hour. As the traffic light turned red, did not see brake lights on the Montana and the front of my vehicle struck the rear bumper of the Montana.” [9] In second affidavit filed by Michelle Fournier, she stated as follows in paragraphs and 5: 4. THAT attached hereto and marked Exhibit “A” by the person swearing this my Affidavit is photo of vehicle similar to the vehicle that was driving, which is Pontiac Montana, and the tail lights are quite high off the ground and would have been visible to any person paying the slightest attention to the vehicle in front of them. 5. THAT have checked with Pat LeBlanc, who repaired my vehicle after the accident and have checked with Shawn Aucoin, who was the insurance adjuster for my insurance, Co-Op Insurance, and both have declared to me that the tail lights were working when took the vehicle to be appraised and took it in for repair. [10] The defendant argues summary judgment ought not to be allowed because there is an arguable issue to be tried, namely, that even if one accepts the evidence of the Plaintiff, one has to consider the issue of contributory negligence. Mr. Craig said in his affidavit, he did not see any brake lights on the Montana. Thus the defendant says there is an issue as to whether or not they were on or working. Secondly, the defence argues there might possibly be contributory negligence issue in this case because the Plaintiff suddenly stopped. [11] adopt the position of Freeman, J.A. in MacNeil Black, [1998] N.S.J. No. 83 where he said: “The threshold for showing the existence of defence worthy of trial is not high one, but the defendant has not met it. The standard pleading that the plaintiff stopped abruptly, without more by way of supporting facts, lacks an air of reality. It does not meet, nor suggest how the defendant hoped to meet, the plaintiff's assertion that she had been stopped for 45 seconds. It was necessary for the defendant in his pleadings or by way of affidavit or other evidence to assert facts capable, if proven at trial, of rebutting the presumption that the collision resulted from his negligence. The bald statement in the pleadings does not disclose the existence of an actual or probable defence and cannot fend off an application for summary judgment.” [12] have listened to the argument of the defendant and have read her affidavits and material attached thereto. I am satisfied there has to be an “air of realty” to the defendant’s argument. If the brake lights did not work then the defendant drove straight into the rear of the plaintiff’s car. Secondly if the plaintiff stopped suddenly and as the defendant noted in his affidavit, the traffic light turned red then the plaintiff’s vehicle was supposed to stop as well. To strike the plaintiff’s vehicle from behind on these facts then the defendant was travelling too close or didn’t have enough care or control of his vehicle. Consequently the collision occurred. In any event, I am satisfied when you read the material there was no “air of reality” to the defendant’s arguments. [13] The defendant also argued the plaintiff ought not to be successful in her application for summary judgment because she has not been able to establish the motor vehicle accident resulted in her suffering injuries. The defendant referred to the case of Griffiths Martell [1999] N.S.J. No. 285. At paragraph Hamilton J.A. states as follows: “I considered if this Rule authorizes me to issue summary judgment limited only to liability for the accident itself and not causation, because of its use of the words ""a part thereof"", but on reading the whole of Civil Procedure Rule 13.01, am satisfied that it means that summary judgment is not to be granted when there is any issue other than the amount of damages still in issue between the parties, which interpret to only be the case after causation has been determined as part of the summary judgment application.” [14] am satisfied upon reading the reports of Doctor Steve Crosby and Doctor Douglas Watt attached as appendices and to the plaintiff’s affidavit, the causation of certain amount of her physical injuries resulted from the accident. [15] am not satisfied the defendant has met the required burden and allow the application. Judgement is entered against the respondent/defendant as to liability with damages to be assessed. [16] INTERIM PAYMENT The Plaintiff, now having obtained summary judgement, fulfills the condition precedent in an application for interim payment under Rule 33.01 (A)(1). It states: “Nothwithstanding the provision of rule 33.01, the court may order the defendant to make an interim payment of such amount as it thinks just, not exceeding reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross-claim or counter-claim on which the defendant may be entitled to relay, if the court is satisfied: (a) that the defendant against whom the order is sought had admitted liability for the plaintiff’s damages or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed. [17] The general principles involving interim payments where summary judgment has been allowed was discussed in Bogaczewicz Faulkner, [1997] N.S.J. No. 237. See also Mahoney Almeco Leasing Limited [1999] N.S.J. No. 390 and MacDonald MacPherson [1999] N.S.J. No. 283 affirmed on Appeal 1999 N.S.J. No. 445. The case law may be summarized as follows: 1. It is not the function of the Court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. This might ultimately be for Trial Judge at an assessment of damages. 2. An Order of an interim payment is not mandatory. It is discretionary Order of the Chambers Judge. 3. The Court must exercise caution in assessing likely recovery of plaintiff in the early stages of litigation particularly where there is lack of medical opinion in the discovery of experts where necessary. 4. An application under Rule 33.01(A) is not to be trial or mini trial where an estimate of the plaintiff’s ultimate recovery can be difficult and may amount to nothing more than haphazard guess. In such cases the Court should refrain from making an order of interim payment. 5. In cases where there is considerable uncertainty existing as to what is likely to be recovered by the Plaintiff, the proper approach is that where the Court is faced with such degree of uncertainly, it should conclude that it is unable to make determination of reaching an opinion as to what is likely to be recovered in those damage areas of uncertainty. [18] The evidence submitted by way of the Plaintiff’s affidavits causes the court difficulty. The plaintiff is making a significant claim yet when one listens to defendant’s counsel and reads the material attached to the defendant’s affidavit, one finds there are significant other factors affecting the health of the plaintiff. There is no doubt this would impact on any assessment of damages that might be made in this particular case. am looking at the evidence submitted in the affidavits without the benefit of any examination or cross examination before me in an attempt to decide what is likely to be recovered by the plaintiff. have however, read the discovery evidence of the plaintiff submitted as attached to the affidavit of Ms. Sandra Arab Clarke, the defendant’s counsel. [19] The plaintiff blames her neck injury, shoulder injuries, tingling in her hands and arms as well as other injuries on the accident. There is conflict in her evidence about her depression and other problems she is having with her health. In the report of Doctor Watt dated November 8, 2004, for example, the plaintiff interpreted comments from her own family doctor that her problems were not related to her motor vehicle accident. [20] Defence counsel has gone to great extent to show the Plaintiff’s prior conditions would all combine to contribute in significant way to her current health complaints. These range from an injury to her right shoulder and elbow prior to the motor vehicle accident, tennis elbow in the right arm, malaise and fatigue, pain in joints, as well as obstructive lung defect to name but few. Defence counsel states there is long medical history involved here and has argued strenuously there are credibility issues in relation to certain claims relating to her injuries. [21] It is not the function of this court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. I am satisfied any amount of assessed damages which might be arrived at will depend largely upon credibility and the medical evidence at trial. The defendant argues there has yet to even be an independent medical examination of the plaintiff. [22] Serious issues exist between the parties as to whether or not the plaintiff’s injuries sustained in the motor vehicle accident have resulted in any ongoing inability of the plaintiff to work in any capacity. As well there are questions in her claim for loss of valuable service as to whether or not the amount claimed is appropriate when the plaintiff stated in discovery she was able to do some housework and in fact did so. [23] The plaintiff’s damage claim is further complicated in this particular matter as result of the recent amendments in 2003 to the Insurance Act, R.S.N.S. 1989, C-23, especially as it would relate to non-pecuniary general damages. On the information provided to the Court from both parties it is conceivable with the material before me, the plaintiff’s injuries could be described as minor. If, after trial, Court assessed that Ms. Fournier suffered minor injury, it would bring her under the new legislation. Her general damages could be capped at $2,500. [24] Thus, Court should be extremely cautious in approaching an award in this particular category in the absence of significant medical evidence which would clearly establish this injury classification could be overcome. It must be recalled that under the legislation the onus is on the plaintiff to prove any injuries she sustained are not minor in nature. [25] On a review of the material supplied for this application, I am not satisfied this is an appropriate case to order an interim payment at this point in time and I decline to do so. In my opinion, to assess any amount of interim payment on the facts presented would be most difficult task and would only be haphazard guess. This is not basis to fix an interim payment. [26] However, as I said before, I would order summary judgment be entered against the defendant with damages to be assessed. [27] Each party having been partially successful, would order no costs to either side. [28] Order accordingly.","The plaintiff in a rear end motor vehicle accident applied for summary judgment and an interim payment. The defendant argued that there was an arguable issue to be tried in that even if one accepted the plaintiff's evidence, there was the issue of contributory negligence to be considered. The defendant also argued that he did not see any brake lights on the plaintiff's vehicle and thus there was an issue as to whether or not they were working. Application for summary judgment granted as to liability with damages to be assessed; application for interim payment dismissed. There was no 'air of reality' to the defence; to strike the plaintiff's vehicle from behind on these facts meant that the defendant was travelling too close or didn't have proper care or control of his vehicle. However, the affidavit evidence showed that there were several other factors affecting the plaintiff's health besides the injuries sustained in the motor vehicle accident; serious issues existed between the parties at to whether or not the plaintiff's injuries sustained in the motor vehicle accident resulted in any ongoing inability to work in any capacity; any amount of assessed damages which might be arrived at would largely depend upon credibility and the medical evidence at trial.",4_2005nssc253.txt
65,"J. F. Y. No. 99BG0019 IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA [Cite as: K. J. S. v. M.T., 2001 N.S.F.C. 8] RESPONDENT HEARD BEFORE: The Honorable Judge John D. Comeau, Chief Judge of the Family Court for the Province of Nova Scotia DATE HEARD: April 28, 2000 Evidence taken in Cape Dorset, Nunavut, September 27/00 Received January 23/01 Final arguments by Counsel received April 23/01. DECISION DATE: May 14, 2001 PLACE HEARD: Barrington, Shelburne Co., NS COUNSEL: Timothy D. Landry Esq. On behalf of the Applicant Celia J. Melanson Esq. On behalf of the Respondent THE APPLICATION: This is an application for custody of the child, David Douglas Tunnillie, born August 28, 1992 in Cape Dorset, Nunavut and the parties are the natural parents of the child. On November 24, 1999 following written decision the Court issued an Order that it would take jurisdiction and hear the application under S. 18 of the Family Maintenance Act. There has been what may appear to be an unreasonable period of time from the date of the application to the decision of the Court. The problem has been with translation services and obtaining translator in Inuktitut, in Nova Scotia. Due to the unavailability of this service the Respondent has given evidence in Nunavut and translated transcript has been received. This took considerable time to arrange and complete and during this period of time the child has remained in Nova Scotia and although this status quo is consideration it is only one of number of factors to be considered in arriving at what is in David’s best interest. THE FACTS: The child David was born August 28, 1992, and prior to this in 1991 the parties resided together in Iqualuit. The Applicant is the father of the child and moved away from Nunavut before he knew the Respondent was pregnant with their child. In February of 1999, it was arranged with the assistance of social worker in Cape Dorset that letter of understanding between the parties confirmed the Respondent mother was not giving up her parental rights, but the child was to be sent to Nova Scotia to reside with his father. The agreement stated that this temporary arrangement was not to exceed year unless agreed upon by the Respondent mother. The reason for this move appears to be new relationship and the desire of the mother to have David know his father better. At the time she was also having baby and had problems with her older son (drug use). The father did not return the child but made an application to Family Court for custody. His reasons for doing this are that David was experiencing academic and behavioural problems when he arrived in Nova Scotia. He has received help and the Applicant father believes that he could have better life in Nova Scotia based on his experience in the north. In support of this, counsel on behalf of the Applicant called number of witnesses. Lori LeBlanc reading recovery teacher has been working with David and noted that he has made very good progress. Her school principal described academic and behavioural problems when he first arrived, but there were items being addressed and much had been accomplished. This is also confirmed by his home room teacher, Pamela Smith. David has and continues to participate in Summer Day Camp program, T-Ball, minor hockey and other sporting activities (i.e. wrestling). Photos of David’s residence and the family situation with the Applicant provide picture of very positive life there. review of the evidence received from Cape Dorset, Nunavut, shows mother who misses her son very much. She has not had what some may describe as an easy life. At the time the evidence was taken she did not have permanent residence and was on the waiting list from housing. She resided with her mother and this amounted to household of between ten and eleven people. This results in number of people sleeping in one bedroom or in the livingroom. She resided with boyfriend and slept on the sofa with her child. There was evidence she may be back in hers mother’s residence. The Respondent does not have regular income but has started carving again and sells her art. INUIT CULTURE: The Respondent describes some of the Inuit culture and her concern over her son David losing his language (Inuktitut): FOOD: Inuit food consists of caribou and fish and very few vegetables. LANGUAGE: The Respondent finds that David is speaking more English now when she speaks to him on the phone. An example of this is when she said to him “Qannuipit” and he guessed she was asking him to go play outside when in fact it meant “How old are you?” ACTIVITIES: These include hunting, fishing and learning how to make hunting implements. There are also sporting events and camping in the summer. EXTENDED FAMILY: The extended family is very important in the Inuit culture and the Respondent describes many aunts, uncles and cousins of David who he would and did have regular contact with. The evidence from Cape Dorset describe some negative things concerning the Respondent mother. Suicides have taken her nephew and niece and she knows of other families that have lost children to suicide. Counsel for the Applicant refers to an incident confirmed by the Applicant where she became very angry at David, took him outside, placed him on the ground and started kicking him in the head and stomach and then punching him until friends intervened. The Respondent admits to alcohol, drug and gambling abuse as problems she had in the past. her mother testified that this past spring she found the Respondent not to be very good mother, not with her youngest all the time and no permanent place to stay. There is no evidence that the Respondent is child protection concern for the Department of Community Services. Counsel for the Respondent asks the Court in considering the best interest of the child to take into account, “That the Inuit culture is not that of the Nova Scotia, white community and that the standards used to judge the care, likewise should not be based on the standards of the Nova Scotia white community, but include the standard and accepted lifestyle of the Inuit brought out through the evidence on behalf of the Respondent.” With this, the Court agrees. ISSUE: Which parent should have custody considering the best interests of the child. THE LAW: The relevant section of the Family Maintenance Act conferring jurisdiction on the Court to grant custody in Section 18. The Court has always found helpful, Justice Goodfellow’s decision in Foley v. Foley, 1993 CanLII 3400 (NS SC), 124 N.S.R (2d)198, which sets out seventeen factors the Court should consider in arriving at custody decision and taking into account the child’s best interest at page 201 and 202. 1. Statutory direction Divorce Act, SS. 16(8) and 16(9), 17(5) and 176(6); (Family Maintenance Act). 2. Physical environment; 3. Discipline; 4. Role model; 5. Wishes of the children if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable and, to the extent they are ascertainable, such wishes are but one factor which may carry great deal of weight in some cases and little, if any, in others. The weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of preference; 6. Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologists, psychiatrists, etcetera; 8. Time availability of parent for child; 9. The cultural development of child; 10. The physical and character development of the child by such things as participation in sports; 11. The emotional support to assist in child developing self esteem and confidence; 12. The financial contribution to the welfare of child; 13. The support of an extended family, uncles, aunts, grandparents, etcetera; 14. The willingness of parent to facilitate contact with the other parent. This is recognition of the child’s entitlement to access to parents and each parent’s obligation to promote and encourage access to the other parent. The Divorce Act, S. 16(10) and S. 17(9); 15. The interim and long range plan for the welfare of the children. 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by member of the extended family, and other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child’s reasonable needs; and 17. Any other relevant factors. Counsel for the Applicant has referred the Court to Mercer v. Clark (1989) 90 N.S.R. (2d) p.4 decision of the late Judge Daley, which is particularly relevant to this case. One of the considerations, major consideration might add, is the question of moving the child from its present environment, which included removal from the current care giver. Briefly, if one accepts that child becomes attached to an environment with which the child fells comfortable and happy and with care giver who meets the needs of the child in nurturing, caring way, then it necessarily follows that to remove the child from such situation would be upsetting, at least initially and perhaps lastingly, for the child. Generally, the courts have taken the view that when everything is at least equal, the court will not risk change in custody and leave the child where it is. Sometimes the evidence is so overwhelming that in spite of the current upset which may be caused, the court may conclude that it is in the long-term interests of the child to change custody. CONCLUSION/DECISION: The application came before the Court in September of 1999, while the child David has resided with his father the Applicant since February of 1999. This delay is outside the control of either of the parties. Counsel for the Respondent submits that because of the problem the Court should not take this status quo existing over two years into account. The paramount consideration of what is in the best interest of the child would require the Court to consider this as one of the factors to determine custody. The Court is aware of the action of the Applicant in establishing and promoting this status quo. Considering those factors set out in Foley v. Foley supra, the Respondent’s physical environment does not compare to this of the Applicant, she does not have permanent residence (a concern of her mothers) nor does she have steady income, (means of support). These two items are necessities for parenting in the Inuit culture as well as the white Nova Scotia or any community (culture). On the other hand the Applicant has permanent residence and steady income. In answer to question concerning her wishes for David the Respondent mother indicated: “I want to see happen is to get David to be with me and to be with his father. To be with me sometime, to be with his father sometime. That’s what me and his father should have did long time. want to see David to come want wish for David to come home. wish for David to go to live with me and to share him with his father. That’s my wish.” There is no evidence concerning any problems at the Applicant’s home. There appears to be very positive atmosphere there with good and happy family environment. David is an Inuit and his long term parenting and life plan must include retaining his first language (Inuktitut) and the Inuit culture. This should be the duty of both parents. In the south as his mother describes Nova Scotia, he will be at times considered different and the consequences that flow from that. So far the community support, teachers and friends have helped him progress in the white Nova Scotian community, as counsel for the Respondent describes it. Particular help has come from his father and extended family and he has adapted well. His mother has reason for sending him to Nova Scotia, in additional to wanting him to know his father. She had her problems with her older child, with new male relationship and with housing and means of support. September 2000 evidence does not disclose any change. It may be without any Court application she may have had to agree to extend the parties original agreement beyond the agreed year. The Court has great sympathy for the Respondent mother and the situation she found herself in. She was concerned about her son’s welfare and sent him to Nova Scotia and her wish is that his parents share parenting of David which is always the ideal. The dilemma the Court finds itself is to balance environment, parenting and cultural considerations. Given the situation the solution is not perfect, the Applicant father can provide the financial and environmental factors more satisfactorily while the Respondent mother has the cultural aspects which include an Inuit extended family and physical environment to enhance this and the Inuktitut language. Considering all the evidence before the Court, it is in the best interests of the child David, that custody be granted to the Applicant, his father. He has to spend considerable time with his mother to retain ties with her and his Inuit culture. Access will be every summer from the second week in July until and including the third week in August which is seven full weeks. For the purpose of this Order week starts on Sunday and ends on Saturday and as further clarification access shall take place in the year 2001, starting July 8, 2001 (travel day) to August 25, 2001 (return travel day). Given the financial situation of the Respondent mother, it shall be the responsibility of the Applicant father to provide transportation costs both ways. Counsel for the Applicant shall prepare the Order and have counsel for the Respondent consent to it with form. Order accordingly, John D. Comeau Chief Judge of the Family Court For the Province of Nova Scotia","This was a hearing to determine the proper venue for a custody hearing. The parties resided together in 1991 and 1992 in the Territory of Nunavut. The first language of the respondent mother and the child is Inuktitut. The child, born in 1993, lived with the mother in Nunavut until 1999, when he moved to Nova Scotia to be with the father by agreement of both parties. This arrangement was not to exceed one year unless agreed to by the mother. Determining that the courts in both Nunavut and Nova Scotia have jurisdiction to deal with the issue of custody, that it was in the best interests of the child to remain in Nova Scotia and for the custody hearing to be held in Nova Scotia.",c_2001nsfc8.txt
66,"D.I.V. A.D. 1996 No. 268 J.C.S. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: BONNIE MARY BIGGAR PETITIONER (RESPONDENT) and ALLAN WALTER ALEXANDER BIGGAR RESPONDENT (APPLICANT) S.J. Pillipow for the petitioner (respondent) Allan Walter Alexander Biggar on his own behalf FIAT M-E. WRIGHT J. July 13, 1998 [1] The applicant, Allan Walter Alexander Biggar, seeksto vary the child support provisions contained in a judgmentfor divorce granted September 17, 1997 to an amount thataccords with the Federal Child Support Guidelines [Divorce ActRegulations, SOR/97-175]. [2] The applicant and respondent, Bonnie Mary Biggar, married on June 21, 1985. They have two children, Kate Belinda, born November 19, 1988 and Robyn Claire, born October 4, 1990. The parties separated on July 3, 1995 and on July 23, 1997 enteredinto an interspousal agreement. [3] Pursuant to the terms of their agreement, the respondent has custody of the children and the applicant has reasonable access on reasonable notice. The parties agreed that child support payable by the applicant would be in accordance with an interim order made in this proceeding on June 10, 1996. That order required the applicant to pay child support in the amount of $700 per month for each of the two [4] The agreement also provided for final division of matrimonial property. The respondent waived any claim to further spousal support, subject to payment by the applicant of $500 per month continuing only until April 15, 1998. [5] A judgment for divorce was granted September 17,1997. The parties` agreements regarding custody, access andchild and spousal support were incorporated into the judgment. [6] The applicant is employed as the manager of coffee shop. His employer, Rita Bourgault, with whom he resides, confirms that his employment started April 1, 1998 and that his annual salary is $24,000. The respondent is on leave from her employment with the federal government. She first applied for leave in August, 1997 because she intended to return to Prince Edward Island where her family resides. She has delayed this move, but still plans to relocate to that province during the summer of 1998. She has requested transfer with the federal government. [7] At the time of their marriage, both the applicant and respondent were employed by the federal government and were residing in Prince Edward Island. They moved to Saskatoon in 1991. At the time of the separation the applicant continued to be employed by the federal government at the National Hydrology Research Institute. His annual salary was approximately $55,500. [8] By letter dated October 9, 1996, some four months after the interim order for child support was granted, the applicant was notified that his services were about to become redundant to departmental requirements. His last day of employment with the federal government was May 2, 1997. He received retiring allowance of $75,646, of which approximately $40,000 was rolled into registered retirement savings plan. [9] Since October, 1996 the applicant has searched for comparable employment. He filed in support of his application summary of the positions he has applied for and the inquiries he has made. His lack of success in this endeavour is not due to lack of effort on his part to secure more remunerative employment. The applicant explains his failed efforts as in part due to lack of broad range of experience. He was employed continuously with the federal government from 1980 and his experience is accordingly limited to middle management in the federal public service. [10] In 1997, the applicant`s total income as reported on his T1 General form for that year was $107,731 comprised of employment income of $27,111, his retiring allowance of $75,646 and RRSP income of $4,975. [11] The applicant has made all support payments required under the judgment. His spousal support obligation has terminated. He says he has depleted all of his savings over the last year of unemployment and that his child support obligation should now be varied to conform to that which he would be required to pay under the Guidelines, supra, based on an annual income of $24,000. [12] The respondent opposes the application. She says there has been no change in circumstances since the judgment was granted. Further, she has no income other than that she receives as support from the applicant and the child tax benefit. Alternatively, she asserts that there are special provisions in the parties` separation agreement which would permit the court to award an amount that differs from the amount prescribed by the Guidelines; in this case, greater amount. THE LEGISLATION [13] The Divorce Act, R.S.C. 1985, c. (2nd Supp.): 17.(4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. (6.2) Notwithstanding subsection (6.1), in making variation order in respect of child support order, court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, judgment or written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit child, or that special provisions have otherwise been made for the benefit of child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. [14] The Federal Child Support Guidelines, supra: 14. For the purposes of subsection 17(4) of the Act, change of circumstances is (a) in the case where the amount of child support includes determination made in accordance with the applicable table, any change in circumstances that would result in different child support order or any provision thereof; (b) in the case where the amount of child support does not include determination made in accordance with table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section of chapter of the Statutes of Canada, (1997). [15] The judgment which the applicant seeks to vary was made after the coming into force of the Guidelines. It does not however include determination of child support made in accordance with table. Accordingly, it is s. 14(b) of the Guidelines which applies to this application. Before varying the existing order, must be satisfied that there has been change in the condition, means, needs or other circumstances of the applicant or the respondent, or either child of the marriage. [16] There is no change in the circumstances of therespondent or either child disclosed in the material filed. At the time of the order the respondent was, as she is now, on leave from her employ with the federal government. [17] The applicant at the time of the order was unemployed. He was however still benefitting from his retiring allowance which raised his total income in 1997 to an amount in excess of $100,000. He no longer enjoys that income. He is now employed earning only $24,000 per annum. Iam satisfied that there has been a change in the applicant`sfinancial means and circumstances and that a variation of theexisting order is warranted. The applicant has experienced significant reduction in the level of his income since 1997 and has been unable to obtain employment which compensates him at level commensurate with that which he received while employed by the federal government. [18] The provisions of the Divorce Act require any variation order be made in accordance with the applicable Guidelines. Based on an annual income of $24,000, theapplicant`s child support obligation is $341 per month for thetwo children. However, s. 17(6.2) permits the court to make child support order that is different than the amount that would otherwise be determined in accordance with the Guidelines if it is satisfied that there are special provisions in previous order or agreement that directly or indirectly benefit child and that the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The respondent relies on this section in support of her assertion that an amount of child support greater than that prescribed by the Guidelines should be ordered. [19] Pursuant to the parties` separation agreement, the respondent assumed responsibility for and repaid loan to the applicant`s parents in the amount of $25,000. She did this by taking out mortgage on the former matrimonial home. She says that she agreed to this only as part of comprehensive agreement dealing with all outstanding issues between the parties, including child and spousal support. Had she not been obliged to make this payment, she says she would have agreed at that time to lower child support payment from the [20] cannot conclude on the evidence presented that there is any special provision in the parties` agreement that directly or indirectly benefits either child. The agreementprovides for child support in a specified amount greater thanthat provided for in the Guidelines based on the applicant`scurrent income, an obvious benefit to the children. However Ido not equate this with a ""special provision"" as contemplatedby s. 17(6.2) of the Divorce Act given the change in thecircumstances of the applicant. To conclude otherwise and to accept the respondent`s position would be to foreclose any future variation application seeking reduction in the existing child support obligation irrespective of and without regard to the applicant`s present condition, means and other circumstances. (1) The applicant`s total income is $24,000 per annum; (2) The applicant shall pay to the respondent asand for the support of the two children of themarriage, Kate Belinda, born November 19, 1988,and Robyn Claire, born October 4, 1990, the sumof $341 per month commencing the 1st day ofJuly, 1998, and continuing on the first day ofeach month until further order. [22] There shall be no order as to costs.","FIAT. The father sought to reduce the support contained in the 1997 divorce judgment which incorporated the parties' interspousal agreements regarding custody, access and child and spousal support. The parties were married in 1985 and separated in 1995. The mother was on leave from her employment. When his federal government management position was declared redundant, the applicant received a retiring allowance of $75,646 in May 1997. The respondent opposed the application on the basis there had been no change in circumstances since the judgment was granted; she had no other income than the support payments and child tax credit; alternatively, there were special provisions in the parties' separation agreement which would permit the court to award an amount that differs from the amount prescribed by the Guidelines.HELD: 1)The judgment the applicant sought to vary was made after the coming into force of the Guidelines. It did not however include a determination of child support made in accordance with the Guidelines. There was no change in the childrens' or mother's circumstances. The applicant was unemployed but was still benefiting from his retiring allowance at the time of the order which he no longer enjoyed. A variation was warranted as there had been a change in the father's financial means and circumstances. The Guideline support obligation for two children is $341 per month.  2)It could not be concluded on the evidence presented that there was any special provision in the parties' agreement that directly or indirectly benefited either child. The provision for child support in a specified amount greater than that provided in the Guidelines was not a 'special provision' as contemplated by s17(6.2) of the Divorce Act given the change in circumstances of the applicant whose annual income had dropped from $55,500 to $24,000 a year.  3)No order was made as to costs.",c_1998canlii13402.txt
67,"C.A.C. No. 104578 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Pugsley, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and MICHAEL RONALD PATRIQUEN and BARRY ALEXANDER NAGY Respondents James C. Martin and Christopher Bundy for the Appellant Warren K. Zimmer for the Respondent, Patriquen and Kevin Burke, Q.C. for the Respondent, Nagy Appeal Heard: October 5, 1994 Judgment Delivered: December 20, 1994 THE COURT: The appeal is allowed and a new trial is ordered as per reasons for judgment of Roscoe, J.A.; Chipman, J.A. concurring and Pugsley, J.A. dissenting. ROSCOE, J.A.: The respondents were charged with possession for the purposes of trafficking and cultivation of marijuana contrary to Sections 4(2) and 6(2) of the Narcotic Control Act. At the commencement of their trial in Supreme Court, after the jury selection, voir dire was held to determine the admissibility of evidence obtained by the police as result of seizure of marijuana plants. The respondents alleged that their Charter rights under s. 8, to be secure from unreasonable search and seizure, had been violated. Constable Furey, of the R.C.M.P. Bridgewater detachment, was the only witness to testify on the voir dire. On July 12, 1992, he received telephone call from casual acquaintance who informed him that marijuana plants were growing on piece of property at Lapland, Lunenburg County. Constable Furey and the informant drove to the property, which was accessed by leaving the paved highway, travelling few miles on woods road, then parking the vehicle and walking short distance on secondary woods road to clearing. At the clearing Constable Furey observed approximately 100 marijuana plants in various stages of growth, most of which were staked and surrounded by chicken wire. On July 31,1992, Constable Furey returned to the site with two other policemen and took photographs of the plants. It was on this visit that they first observed beaten path through the woods which led to residence approximately 500 yards from the crop. On August 20, 1992, the informant advised Constable Furey that two unknown people were in the area of the residence. The next day Constable Furey and another policeman attended at the site, hid in the woods and conducted surveillance. After an hour or so, the respondents arrived in truck carrying several five gallon jugs of water and commenced watering the marijuana plants. They were arrested and the plants were seized. Later in the day the police obtained search warrants to search the house. No evidence relevant to this case was seized from the house. Constable Furey indicated that prior to August 21st he did not know who owned the property where the plants were growing nor who occupied the house. Crown counsel at the trial agreed that the land and residence were owned by Louis Charette, and that the property was ""occupied and possessed"" by the respondents. The trial judge found that the police did not have reasonable grounds for their belief that the property searched contained narcotics, that they only had mere suspicion. He stated: “Therefore, there was no lawful entry and the warrant obtained after the three entries but before the search of the residence was invalid. The warrantless search was unreasonable. Clearly, s. of the Charter was infringed."" On the question of whether the evidence should be excluded pursuant to s. 24(2) of the Charter the trial judge considered the three part test established in R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 and found: (1) that the admission of the evidence would not render the trial unfair; (2) that the police were not acting in good faith because they ought to have known that warrantless searches are presumed to be unreasonable, therefore the breach was serious, and; (3) that the administration of justice could be brought into disrepute if the evidence were admitted. In concluding that the evidence was not admissible, he said: “. The courts cannot condone practice of deliberate, unlawful conduct which may intrude on individual privacy."" The respondents were acquitted when the Crown offered no other evidence. The issues raised by the Crown\'s appeal of the acquittal are: (1) Whether the learned trial judge erred by finding that the respondents' rights under s. of the Charter had been violated. (2) Whether the learned trial judge erred in excluding the evidence obtained as result of the search under s. 24 of the Charter. 1. Was there breach of s. of the Charter? Section provides: ""Everyone has the right to be secure against unreasonable search or seizure."" What is protected by s. is person's reasonable expectation of privacy (Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] S.C.R. 145). The question in this case is whether there is reasonable expectation of privacy in secluded plot of land surrounded by woods in rural area. It is not necessary for person to have proprietary interest in the place searched in order to establish rights pursuant to s. 8. The respondents do need to establish however that they had reasonable expectation of privacy in the place searched before s. protection can be found to have been violated. In Hunter v. Southam, Dickson, J. as he then was, adopted the reasoning of the United States Supreme Court in Katz v. United States (1967), 389 U.S. 347 when it interpreted the Fourth Amendment of the United States Constitution as providing protection ""of people, not places"". The issue in Katz was whether police use of an electronic listening device placed on the outside of phone booth contravened the Fourth Amendment. Stewart, J. for the majority said: ""Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was ""constitutionally protected area."" The Government has maintained with equal vigor that it was not. But this effort to decide whether or not given ""area"", viewed in the abstract is ""constitutionally protected"" deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What person knowingly exposes to the public, even in his own home or office, is not subject of Fourth Amendment protection. ...[citations omitted]... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."" Harlan J. in concurring opinion stated: ""As the Court's opinion states, ""the Fourth Amendment protects people, not places."" The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to ""place"". My understanding of the rule that has emerged from prior decisions is that there is twofold requirement, first that person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ""reasonable"". Thus man's home is, for most purposes, place where he expects privacy, but objects, activities, or statements that he exposes to the ""plain view"" of outsiders are not ""protected"" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable."" In Hunter v. Southam, after considering Katz, Dickson, J. accepted the reasonable expectation of privacy test as appropriate “for construing the protections in s. 8"" and said that the assessment in particular case must be whether: “. the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement."" (p. 159) Katz has also been approved in several other Supreme Court of Canada decisions, including most recently R. v. Plant, 1993 CanLII 70 (SCC), [1993] S.C.R. 281 where Sopinka for the majority said at page 291: “The purpose of s. is to protect against intrusion of the state on an individual's privacy. The limits on such state action are determined by balancing the right of citizens to have respected reasonable expectation of privacy as against the state interest in law enforcement. See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145, at pp. 159‑60. Section protects people and not property. It is, therefore, unnecessary to establish proprietary interest in the thing seized. See Hunter, supra, at p. 158; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] S.C.R. 417, per La Forest J., at pp. 426‑27; Katz v. United States, 389 U.S. 347 (1967). In this respect, must disagree with the Court of Appeal which relied on the absence of proprietary interest on the part of the appellant in the computer information. In balancing the reasonable expectation of privacy of the individual with the interests of the state in law enforcement, this Court has determined that electronic taping of private communication by state authorities violates the personal sphere protected by s. 8: R. v. Duarte, 1990 CanLII 150 (SCC), [1990] S.C.R. 30. Similarly, such investigative practices as videotaping of events in private hotel room (R. v. Wong, 1990 CanLII 56 (SCC), [1990] S.C.R. 36) and seizure by state agents of blood sample taken by medical personnel for medical purposes (Dyment, supra) have been found to run afoul of the s. right against unreasonable search and seizure in that the dignity, integrity and autonomy of the individual are directly compromised. While this Court has considered the possibility of violations of s. in relation to informational privacy (Dyment, supra, at p. 429), we have not previously considered whether state inspection of computer records implicates s. of the Charter."" In Plant, the Court adopted an American approach to the privacy expectations in information kept by third parties and found that there is no reasonable expectation of privacy in computer records of electricity consumption, since the records did not contain personal and confidential information. One of the factors taken into account in coming to that conclusion was that the records of energy consumption were ""subject to inspection by the public at large."" In this case, Crown counsel admitted at the trial that the respondents ""occupied and possessed"" the land in question. On the appeal, counsel for the respondents contend that this admission restricts the Crown's right to argue that the respondents had standing to rely on s. 8. However, as indicated in Plant, the propriety right alone, is not determinative of the privacy interest. The right of people to privacy on open privately‑owned land has not yet been considered by the Supreme Court of Canada, but similar question regarding cultivation of marijuana on Crown land was determined in R. v. Boersma, unreported, June 17, 1994 (Q.L., S.C.J. No. 63). In brief decision, lacobucci, J. for the Court said: “This appeal comes to us as of right. The appellants were charged with the possession and cultivation of marihuana on what was Crown land. The plants were being cultivated in plain sight and were observed by police officers walking by on dirt road. In these circumstances, we agree with Lambert J.A. of the British Columbia Court of Appeal that the appellants had no reasonable expectation of privacy with respect to the area on which marihuana was being cultivated and were thus not entitled to the protection of s. of the Canadian Charter of Rights and Freedoms. Accordingly the appeal is dismissed."" The trial judge in Boersma held that the accused had reasonable expectation of privacy in the remote land and that the warrantless search violated his s. Charter rights. Lambert, J.A. for the British Columbia Court of Appeal, (unreported, November 10, 1993, Q.L., B.C.J. No. 2748) said at paragraph 9: “The key question in this appeal, as it was the key question before the trial judge, relates to whether the two accused had established ""reasonable expectation of privacy"" protected by s.8 of the Canadian Charter of Rights and Freedoms with respect to the area in which marijuana was being cultivated. That corresponds to the second issue raised by the Crown. In my opinion, this case is quite different on its facts than Kokesch. There private house was involved. In this case the activity was being carried out on Crown land that is accessible to everyone. In my opinion, there is quite different expectation of privacy in private house and for activities being carried on in private house than there is for activities being carried out in the open air and particularly in the open air on Crown land. An argument advanced with some force on behalf of the two accused in this Court was that the police themselves were trespassers on the interest in the land on the road side of the fence as they passed through and around the chain and as they walked along the road. In my opinion, the conduct of the police in this respect has no relevance to the question of the reasonable expectation of privacy of the two accused on Crown land. They have, in my opinion, no reasonable expectation of privacy with respect to this kind of activity, and by that mean gardening activity on Crown land, when the privacy relates to whether they were susceptible to being seen by other people. If they do not have right of privacy or expectation of privacy with respect to being seen people who are also on the Crown land they do not acquire an expectation of privacy when they are on the Crown land in relation to people viewing them from land subject to private interest adjacent to the Crown land. For those reasons consider that the two accused in this case had no reasonable expectation of privacy in relation to the gardening type of activity and in relation to being seen engaging in that gardening type activity at the time when they were doing so. In the words used in the Supreme Court of Canada in Plant v. The Queen, in which judgment was rendered on 30 September 1993, it is my opinion that in this case there was no expectation that the dignity, integrity, and autonomy of the two accused would be free from being compromised in the circumstances have described."" In my view, the expectation of privacy on privately held woodland is not substantially different from that of Crown land, As with the computer records in Plant, woodlands in rural areas are in some respects ""subject to inspection by members of the public at large"". See for example the provisions of the Angling Act, R.S.N.S. 1989, c.14 which allow any resident to cross on foot any uncultivated land in order to access lake, stream or river for the purpose of fishing. ""Uncultivated"" is defined as land in its natural wild state and includes land that has been cleared. In Oliver v. United States, 104 S.Ct.1735 (1984), the United States Supreme Court confirmed that the Fourth Amendment protection does not extend to ""open fields"". Justice Powell, speaking for the majority, relied on Katz, supra, for the proposition that: ""... The Amendment does not protect the merely subjective expectation of privacy, but only those ""expectation[s] that society is prepared to recognize as 'reasonable'.""..."" (p. 1741) After referring to the fact that certain enclaves, most significantly the home, are free from interference Justice Powell remarked: ""In contrast, open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as practical matter these lands usually are accessible to the public and the police in ways that home, an office, or commercial structure would not be. It is not generally true that fences or ""No Trespassing"" signs effectively bar the public from viewing open fields in rural areas. And [the accused] concede that the public and police lawfully may survey lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that ""society recognizes as reasonable."" After explaining the distinction between open fields and the ""curtilage"", or the land immediately surrounding and associated with the home, Justice Powell asserts that the term ""open fields"" includes any unoccupied or undeveloped area outside the curtilage and has been extended to include thickly wooded areas. In the conclusion of his opinion he states: ""Thus, in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment."" Oliver v. United States was relied on by VanCamp, J. in R. v. Marchese, unreported, May 25, 1989, Q.L.; O.J. No. 796 (Ont.H.C.), case also involving search for marijuana in an open field. I adopt the reasoning of Justice Powell expressed in Oliver in concluding that the respondents did not have a reasonable expectation of privacy in the clearing in the woods where the marijuana plants were growing and therefore there was no breach of their s. 8 Charter rights It is not necessary to determine if the searches were unreasonable and if so, whether the evidence should be excluded or not pursuant to s. 24(2) of the Charter. The appeal should therefore be allowed and a new trial ordered. There is however another point that requires comment. In this case the respondents submit that the admission of Crown counsel at the commencement of the voir dire went beyond that referred to above and that there was also an admission that there was prima facie breach of s. because there were warrantless searches. It is submitted that ""in conceding prima facie breach of Section 8, the Crown was also conceding that the respondents had reasonable expectation of privacy with respect to their occupation and possession of the property."" do not agree that the Crown conceded there was reasonable expectation of privacy; those words were not used in the passage where the discussion of admissions took place. It is difficult to discern exactly what concessions were made because of Crown counsel's apparent confusion about what he was being asked to admit and the frequent interruption of his submissions regarding the procedure he intended to follow, both by defence counsel and the trial judge. In the event however that defence counsel had the understanding that the expectation of privacy was conceded and that to decide the appeal on that point would be unfair to the respondents, propose to address the other issues argued on the appeal. 2. Was the search reasonable? warrantless search is prima facie unreasonable. In order to prove that it was reasonable the Crown must establish, among other things, that it was authorized by law. (See R. v. Collins, supra.) The Supreme Court has decided in R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.R. 223 that ""... warrantless searches pursuant to s. 10 NCA must be limited to situations in which exigent circumstances render obtaining warrant impracticable. Warrantless searches conducted under any other circumstances will be considered unreasonable and will necessarily violate s. of the Charter. To the extent that s. 10 NCA authorizes search in the absence of the limiting circumstances, it is invalid."" (p. 241) Since there were no exigent circumstances in this case it must be concluded that the search was not reasonable, assuming at this point that there was reasonable expectation of privacy. 3. Should the evidence be excluded pursuant to s.24(2) of the Charter? When Court of Appeal reviews decision of trial judge made pursuant to s. 24(2) of the Charter, it should not substitute its view absent any unreasonable finding of fact, or error in law or principle. (See R. v. Grant, supra, p. 256.) In this case, the trial judge commenced the s. 24(2) analysis by saying: ""Evidence obtained as result of warrantless search is tainted. It usually is not admissible. But it may be admissible if its admission would not bring the administration of justice into disrepute."" With respect, the statement that ""the evidence ... is usually not admissible"" is an oversimplification and is inaccurate. An analysis of the twenty‑one cases decided by the Supreme Court of Canada since 1982, dealing with warrantless searches that were found to have breached s. of the Charter reveals that in eight of those cases, the evidence was excluded pursuant to s. 24(2). In the other thirteen cases, the evidence was admitted. The cases where the evidence was excluded are: R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265; R. v. Pohoretsky, [1987] R. v. Dyment, 1988 CanLII 10 (SCC), [1988] S.C.R. 417; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] S.C.R. 755; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] S.C.R. R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615; R. v. Dersch, 1993 CanLII 32 (SCC), [1993] S.C.R. 768; and R. v. Borden, unreported, September 30, 1994, Q.L. S.C.J. No. 82. The cases where the Supreme Court determined that the evidence was admissible despite the s. breach are: R. v. Seiben, 1987 CanLII 85 (SCC), [1987] S.C.R. 295; R. v. Hamill, 1987 CanLII 86 (SCC), [1987] S.C.R. 301; R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] S.C.R. 548; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] S.C.R. 30; R. v. Thompson, 1990 CanLII 43 (SCC), [1990] S.C.R. 1111; R. v. Wong, 1990 CanLII 56 (SCC), [1990] S.C.R. 36; R. v. Tessier, 1991 CanLII 21 (SCC), [1991] S.C.R. 687; R. v. Wise, 1992 CanLII 125 (SCC), [1992] S.C.R. 527; R. v. Erickson, 1993 CanLII 103 (SCC), [1993] S.C.R. 649; R. v. Plant, supra; R. v. Grant, supra; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] S.C.R. 263; and R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] S.C.R. 20. In addition to the inaccurate statement, the trial judge appears to have placed the onus on the Crown to prove that the evidence should be admitted, which is an error in law. Combined with the statement that the evidence is ""usually not admissible"", it amounts to saying that prima facie, the evidence should be excluded. However, the evidence is prima facie admissible. (See R. v. Brown (1987), 1987 CanLII 136 (NS CA), 76 N.S.R. (2d) 64 (N.S.S.C.A.D.)) It is the party applying to exclude the evidence who must establish on the balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. (Collins v. R., supra, at p. 280.) Because of these two errors, it is necessary for this Court to reconsider the s. 24(2) application to exclude the evidence. The three part test developed in Collins requires consideration of the following matters: (1) Does the admission of the evidence effect the fairness of the trial? (2) Is the Charter violation of trivial or serious nature? (3) Whether the justice system reputation will be better served by the inclusion or exclusion of the evidence? The admission of the evidence in this case would not effect the fairness of the trial. As indicated in Collins at page 284: ""... Real evidence that was obtained in manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair."" The second part of the test requires consideration of whether the police officers acted in good faith, whether it was technical or inadvertent breach, whether the breach was motivated by urgency to prevent the loss of the evidence and whether the evidence could have been obtained without Charter violation. In this case, the trial judge found that the officers acted in bad faith because they knew or ought to have known the law that warrantless searches are presumed to be unreasonable"". When questioned about the reason for not obtaining warrant, Constable Furey testified that he felt there was no reason to obtain warrant ""given the circumstances the information provided by the source and attending the property to confirm the information provided"". In answering questions by the trial judge as to why he did not apply for warrant, he stated that in the past ""searches have been conducted in similar circumstances of property excluding structures whether it be barns or homes and we've accessed land before to search land without warrant."" The officer was not questioned about what statutory authority or which case he was relying on as authority for conducting warrantless search of open land as were the officers in Grant, Wiley and Plant, supra. Section 10 of the Narcotic Control Act states: ""A peace officer may, at any time, without warrant enter and search any place other than dwelling‑house, and under the authority of warrant issued under section 12, enter and search any dwelling‑house in which the peace officer believes on reasonable grounds there is narcotic by means of in respect of which an offence under this Act has been committed."" The officers in Grant, Wiley and Plant, supra, were held by the Supreme Court of Canada to have been acting in good faith because they relied on the apparent statutory authority in s. 10 of the Narcotic Control Act and they had reasonable and probable grounds to believe that there were narcotics at the place searched. It was not until the decisions in Grant, Wiley and Plant that warrantless searches under s. 10 of the Narcotic Control Act were declared unconstitutional absent exigent circumstances. Before those cases in 1993, the Supreme Court of Canada had not addressed that question specifically in case where there were reasonable and probable grounds. In Kokesch, for example the warrantless perimeter search was unreasonable because the officers did not have reasonable and probable grounds required for warrantless search pursuant to s.10 of the Act. In Wiley, supra, the trial judge had concluded that the police had acted in bad faith because they did not undertake ""cautious and careful interpretation of previous court decisions"" In the Supreme Court however, Sopinka, J. found: (p.278) ""In this case, the Court of Appeal overruled the trial judge who excluded the evidence. It did so principally on the basis that the trial judge erred in respect of his determination that the police did not act in good faith. The Court of Appeal was of the view that the trial judge considered that the judgment of this Court ""turned back the clock"" in respect of investigations which pre‑dated that judgment. agree that this was an error on the part of the trial judge and that, for this reason, it was appropriate for the Court of Appeal to interfere with the trial judgment. Moreover, agree with McEachern C.J.B.C. that the police acted in good faith relying on the judgment of the Court of Appeal in Kokesch, supra, and s. 10 NCA.” In this case, one of the factors that led the trial judge to find bad faith was that he found that the police had only mere suspicion, not reasonable and probable grounds to believe that the crop existed. That is an assessment based on the reliability or credibility of the informant and the information he provided. In that respect, the officer said he had no reason to disbelieve the informant, person whom he had known for three years, although he had never acted as an informer in the past. In Plant, Sopinka, J. assessed the reliability of the ""tip"" as follows: (p.297) "". The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation and located the appellant's house in fairly specific geographic region, albeit without specifying an exact street address. It is impossible to determine whether the source was credible except by reference to the fact that the information was subsequently corroborated by police reconnaissance which resulted in identification of the exact address of the residence described by the informant. The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of the appellant's residence and corroborate the report of the informant. conclude that the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant."" In this case, the information received was ""compelling"" as it identified specific location in remote area and the informant was prepared to take the officer there to point out the exact site. At that point there was no other method of determining whether it was reliable other than by police reconnaissance. It was not feasible for example to check electricity usage as in Plant, since this crop was growing out‑of‑doors. In this case, it appears from the evidence that the crop could not be seen from the woods road, so it was necessary to enter upon the lands to corroborate the information. Having done that, and observed the crop firsthand, in minimally intrusive fashion, the police then had reasonable and probable grounds and could have obtained warrant. They did not because they did not understand that it was required. In my view, there was no evidence of bad faith in this case, and therefore, if there had been breach of s. 8, it should not have been classified as serious or flagrant. With respect to the third part of the test under s. 24(2), the conclusion of Sopinka, J. in Plant seems to be particularly applicable to the facts of this case: (p. 301) ""With respect to the third factor to be considered, have concluded that the administration of justice would not be brought into disrepute should the evidence be admitted. The guilt of the appellant with respect to cultivation of marihuana contrary to s. 6(1) NCA is clearly established on the real evidence. Further, as previously indicated, the offence is serious one punishable by imprisonment for maximum of seven years. Exclusion of the evidence would result in the absence of evidence by which the appellant could be convicted. In these circumstances, the seriousness of the offence militates in favour of the admission of the evidence: see Collins, supra, per Lamer J. (as he then was), at p. 286. agree with the Court of Appeal that, on balance, exclusion of the evidence would have greater negative effect on the repute of justice than would its admission."" In this case, it is my opinion that, having regard to all the circumstances, the respondents did not satisfy the onus of establishing that the admission of the evidence would bring the administration of justice into disrepute. Summary: To summarize, in conclusion, in my view, there was no breach of s. 8 of the Charter because the respondents did not have a reasonable expectation of privacy in the field where the marijuana crop was growing. In the event however that the respondents were under the misunderstanding that the issue of privacy interests had been conceded at the trial, the issue of whether the evidence should have been excluded pursuant to s. 24(2) has been addressed as if there had been breach of s. and unreasonable searches. The respondents did not meet the burden of proving that the administration of justice would be brought into disrepute by the admission of the evidence, so it should have been admitted. Accordingly, the appeal should be allowed and a new trial ordered. Roscoe, J.A. Concurred in: Chipman, J.A. PUGSLEY, J.A. (Dissenting) have had the benefit of reading the reasons for judgment prepared by Justice Roscoe. respectfully disagree that the respondents did not have reasonable expectation of privacy in the clearing where the marijuana plants grew. In my opinion, there was breach of the respondents' rights under s. of the Charter. I, as well, respectfully disagree with Justice Roscoe's conclusion that the evidence contained in violation of the s. right, should not be excluded under s. 24(2) of the Charter. The issues in this case, arise as consequence of members of the R.C.M.P., without warrant, entering upon land, known to be privately held, in rural forest setting, in search of evidence of crime. In location that could not be seen from any vantage point accessible to the public, the police discovered in excess of 100 marijuana plants. The discovery is apparently the only evidence to incriminate the respondents. The agreement reached by counsel for the Crown at trial, (on appeal the Crown was represented by counsel from the Department of Justice, Halifax) and for the respondents, are of importance when considering the issues: (1) The property, although owned by one Louis Carrette, was occupied and possessed at all relevant times by the respondents. Unfortunately the boundaries of the ""property"" were never specified and this failure leads to some difficulty in attempting to define the area over which the respondents had ""reasonable expectation of privacy"". It is clear from the transcript, that the property includes residence, clearing in which the marijuana was growing, and well travelled path of 500 yards in between (hereinafter referred to as the ""Property"". Constable Furey, testified that on July 31 he took photographs of the residence, the clearing, two or three outbuildings adjacent to the residence, as well as lake behind the residence. It is reasonable to infer all were included within the confines of the Property; (2) There were three warrantless searches of the Property by the R.C.M.P. on July 12, 31, and August 21, 1992. The trial evidence given by Constable Furey, the only witness on the voir dire discloses: Initial search on the morning of July 12, 1992 was prompted by telephone call to Constable Furey's home. He had known the caller in ""casual social manner"" for approximately three years. They had met occasionally over coffee. The caller had never acted as paid, or unpaid informant for the R.C.M.P. The caller stated that there was growth of what he ""felt to be marijuana plants"" on particular piece of land. Constable Furey was not advised by the caller of his source of knowledge, nor did Constable Furey inquire respecting the source. The caller took Constable Furey by car on paved road approximately 20 minutes distant from the Town of Bridgewater. Upon leaving the pavement, the vehicle was operated on gravelled or ""forest or woods"" road for one and one‑half to two miles. They then left the vehicle and walked, for approximately five minutes, on secondary woods road, not accessible by vehicle because of fallen trees and growth, to clearing. The clearing contained in excess of 100 healthy marijuana plants, appropriately staked, wired and attended. The Property is located in Lapland, wooded rural community, and the only industry is that of forestry. On July 31, Constable Furey returned to the Property with two members of the R.C.M.P., Bridgewater Drug Section, so they could have direct knowledge of the growth and take photos. While in concealed position at the end of the treeline, Constable Furey noted that there was vehicle at the residence ""as well as children playing going back and forth from the lake very close by to the residence itself.” beaten path extended from the clearing approximately 500 yards to residence and two to three outbuildings. The path appeared to be frequently walked. Another crop site was close to, and visible from, the residence. On August 21, 1992, Constable Furey attended with member of the provincial emergency response team. They were armed, dressed in camouflaged gear, and used two‑way walkie‑talkies. They waited, concealed in separate locations, at the edge of the treeline. After the respondents watered and spoke with the plants, Constable Furey and his associate, on the count of three and with weapons drawn, emerged from their observation posts, and arrested the respondents for violations of the Narcotic Control Act. search warrant was obtained in the afternoon authorizing search by the R.C.M.P. of the residence and outbuildings. There was no evidence to establish the existence of exigent circumstances, rendering it impractical to obtain warrant. Constable Furey testified he did not consider warrant was needed because ""in the past, searches have been conducted in similar circumstances of property excluding structures whether it be barns, or homes, and we've accessed land before to search land without warrant."" The visits of July 21 and August 21 were motivated primarily on the evidence discovered by Constable Furey on the warrantless search of July 12. While some additional information from the caller was received between July 12 and July 31, and again between July 31 and August 21, no attempt was made to verify the information given. In my opinion, it is reasonable inference from the evidence to conclude that all observations made by Constable Furey and his associates, of the clearing, the residence, the outbuildings, the lake and the pathways connecting them, were made while the R.C.M.P. were located on the Property and that the secondary woods road, only accessible by foot, was located on the Property as well. The evidence further discloses, in my opinion, that Constable Furey knew on the first warrantless search made on July 12, that the Property was, in fact, private property. Section of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. Some of the writers, interested in this section, have found it useful to refer to the case law developed in the United States relating to the Fourth Amendment to the Constitution. It provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Our Supreme Court has determined that the standards under s. only apply where person has reasonable expectation of privacy, following the American analysis that privacy, rather than property, is the interest that should be protected by the laws governing search and seizure. The conclusion have reached, respecting the respondents' reasonable expectation of privacy in the clearing, is inconsistent with that expressed by the majority of the Supreme Court of United States in Oliver v. United States (104 S.C.T 1735 (1984)). It is apparent from Justice Powell's reasons that he was, in part, influenced by the ""historical underpinnings"" of the open fields doctrine, as well as ""the historical and contemporary understanding"" of the purposes of the Fourth Amendment (at 1742) (an editor's note makes it clear that the use of the term ""open fields"" may ""include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither ""open"" or ""field"" as those terms are used in common speech.) The American approach is to be contrasted with the purposive approach adopted by the Supreme Court of Canada. Justice LaForest in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145 stated at p. 154: The American courts have had the advantage of number of specific prerequisites articulated in the Fourth Amendment to the United States Constitution, as well as history of colonial opposition to certain Crown investigatory practices from which to draw out the nature of the interests protected by that Amendment and the kinds of conduct it proscribes. There is none of this in s. 8. There is no specificity in the section beyond the bare guarantee of freedom from ""unreasonable"" search and seizure; nor is there any particular historical, political or philosophic contest capable of providing an obvious gloss on the meaning of the guarantee. In some areas of privacy analysis, the Supreme Court of Canada has rejected well developed American standards (R. v. Duarte (1990), 1990 CanLII 150 (SCC), 53 C.C.C. (3d) (S.C.C.)). The editors of Search and Seizure Law in Canada (Hutchinson, Morton and Bury, Carswell 1994, 1‑12) state: The development of the law in the cases noted above, made it clear that the guarantee in s. of the Charter will follow different course than that followed by the American cases. The cases referred to include Duarte. The question in this appeal, to paraphrase the comments of LaForest, J. in R. v. Wong (1991), 1990 CanLII 56 (SCC), C.R. (4th) (S.C.C.) is not whether the respondents, who may have engaged in illegal activity of cultivating and trafficking marijuana, have reasonable expectation of privacy because they carried out their activity in clearing of the forest in Lapland, but the ""neutral"" question of whether, in our society, persons who are in possession of large property in forested area, have reasonable expectation of privacy with respect to activities that take place on their property within 500 yards of their dwelling. The respondents have argued strenuously that statement at trial by Crown counsel that there ""was foray, that prima facie there's breach of s. 8"" constituted an acknowledgment that the respondents had reasonable expectation of privacy with respect to their occupation and possession of the Property. Constable Furey was the only witness during the voir dire. The transcript of the trial evidence placed before us also includes copy of counsel's submissions. It is noted that Crown counsel submitted during the course of its argument, that it was ""an unnatural interpretation to say that people in the woods have reasonable expectation of privacy."" While both counsel for the respondents addressed this issue in their subsequent submissions, neither advanced an argument to the trial judge that the concession made by the Crown of prima facie breach of s. 8, deprived the Crown from arguing that the respondents had reasonable expectation of privacy. This omission lends support to the Crown's submission on appeal that Crown counsel at trial had not conceded that the respondents had reasonable expectation of privacy in the clearing. conclude, therefore, the Crown is not barred from raising this issue on appeal. The critical question, therefore, is whether the respondents had reasonable expectation of privacy in activities carried on by them on the Property. conclude in the circumstances of this case, that they did. If the respondents had located their garden in the curtilage, directly outside the front door of the residence, there would, in my opinion, be no doubt that they would have reasonable expectation of privacy to that area. In the circumstances of this case, where the respondents are admittedly in possession and occupation of large property, their expectation should be no less because the garden is located in clearing some 500 yards from the residence, and connected to it by well travelled path. There is no evidence establishing active occupation of any other properties in the vicinity. There is no evidence to suggest that the Property was used by hikers, hunters or fishermen. There is some evidence that the Property, including the residence and the lake, was used by the respondents and their children in an ordinary domestic manner. number of urban conveniences are not available to those who decide to live in rural setting. Those who make that choice, obviously are prepared to give up the urban advantages to enjoy life free from interference. The comments of Justice Marshall, on behalf of the minority dissenters in Oliver v. United States, supra, are apposite: Privately owned woods and fields that are not exposed to public view regularly are employed in variety of ways that society acknowledges deserve privacy. Many landowners like to take solitary walks on their property, confident that they will not be confronted in their rambles by strangers or policemen. Others conduct agriculture businesses on their property. Some landowners use their secluded spaces to meet lovers, others to gather together with fellow worshippers, still others to engage in the sustained and creative endeavour. Private land is sometimes used as refuge for wild life, where flora and fauna are protected from human intervention of any kind. Justice LaForest echoed this theme in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] S.C.R. 417 at 427 when he stated: Grounded in man's physical and moral autonomy, privacy is essential for the well being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The respondents, being in lawful possession of the Property, would have available civil remedies exercisable against trespassers. In addition, s. 41 of the Code recognizes that certain amount of defensive force is justifiable in dealing with trespassers. (See also s. 42.) Unlike the fact situation in Oliver v. United States, supra, there is no evidence in this case that ""no trespassing signs"" were posted on the Property. do not consider that omission, in view of the location and lack of accessibility to the Property, affects the respondents' reasonable expectation to privacy. The location of the Property, mitigates against visits from those out for casual stroll in the woods. Justice Roscoe has referred to the decision of both the Supreme Court of Canada and the British Columbia Court of Appeal in R. v. Boersma, (unreported) June 17, 1994, Q.L. S.C.J. 63, November 10, 1993 Q.L. B.C.J. 2748. The key element in these two decisions would appear to be the location of the marijuana plants on Crown land. Lambert, J.A., on behalf of the British Columbia Court of Appeal, stated at p. 5: In this case the activity was being carried out on Crown land that is accessible to everyone."" In the present case, it was agreed that the cultivation occurred on Property in possession of the respondent. The evidence discloses that the clearing was located adjacent to woodland path some five minutes by foot from woods road. The facts, in my respectful opinion, are not comparable. conclude the respondents did have reasonable expectation of privacy for activities conducted in the clearing, and as there were no exigent circumstances, that the search was not reasonable. It remains to be considered whether the respondents have established on the balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. The evidence sought to be excluded is real evidence. The exclusion of real evidence, in these circumstances, will rarely be considered to affect the fairness of the trial (R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 at 284). It is relevant to consider the seriousness of the Charter violation to assist in assessing the disrepute that the administration of justice would suffer if the impugned evidence were admitted. The Crown justifies the three warrantless searches conducted in this case in its reliance on s. 10 of the Narcotic Control Act: peace officer may, at any time, without warrant enter and search any place other than dwelling‑house, and under the authority of warrant issued under section 12, enter and search any dwelling‑house in which the peace officer believes on reasonable grounds there is narcotic by means of or in respect of which an offence under this Act has been committed. To succeed in this argument, in this case, in my opinion the Crown must establish that: (1) The police had reasonable grounds to believe there was marijuana on the Property; (2) There was no authoritative case law reasonably available to the police in the summer of 1992, establishing that s. 10 was available only in exigent circumstances. In my opinion, the Crown has not satisfied either burden. In support of the police's position, on the first point, is the identification of specific location in remote area and Constables Furey's evidence that: had no reason to disbelieve any of the information he was providing. based my credibility on this particular individual on the proceeding three years where had come to know this individual in casual, social manner. The caller, however, was not known previously reliable informant, and the information was not corroborated by police investigation prior to making the decision to conduct the search. This is not the case of one warrantless search, but rather three separate warrantless searches, the first separated in time by almost six weeks from the third, with no attempt by the police to verify the information by independent investigation, or to determine the source of the caller's information. Constable Furey considered his attendance on the Property, on July 12, as confirmation of the information provided and hence the basis for the further warrantless searches. The comments of Sopinka, J. in Kokesch, 1990 CanLII 55 (SCC), [1990] S.C.R. (at p. 29) are particularly apposite: It should not be forgotten that ex post facto justification searches by their results is precisely what the Hunter standards were designed to prevent. The ""totality of circumstances"" in my opinion, do not meet the standard of reasonableness required by the section (Wilson, J.A., in R. v. Debot (1990), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at 215 (S.C.C.)). With respect to the second issue, the burden of which rests on the Crown, the three warrantless searches took place in the month of July and August, 1992. While it is accurate that the Supreme Court of Canada did not specifically consider the ""exigent circumstances"" principle until the trilogy of cases (Grant, Wiley, Plant), there was sufficient reference in Kokesch to alert the police to the Court's predisposition. Dickson, C.J.C., was in the minority in his conclusions concerning s. 24(2), but his opinion that the warrantless perimeter search conducted was unlawful, was adopted by the majority (Sopinka at p. 26). In the course of making this determination, Dickson, C.J.C. fully endorsed the ""comments of Martin, J.A., on the interpretation of s. 10(1) of the Narcotic Control Act"" as expressed on behalf of the Ontario Court of Appeal in R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 12 C.C.C. (3d) 97. In Rao, Martin, J.A., stated at p. 123: In my views, the warrantless search of person's office requires justification in order to meet the constitutional standard of reasonableness secured by s. of the Charter, and statutory provisions authorizing such warrantless searches are subject to challenge under the Charter. The justification for warrantless search may be found in the existence of circumstances which make it impracticable to obtain warrant: see, for example, s. 101(2) of the Code, s. 11(2) of the Official Secrets Act. The individual's reasonable expectation of privacy must, of course, be balanced against the public interests in effective law enforcement. However, where no circumstances exist which make the obtaining of warrant impracticable and when the obtaining of warrant would not impede effective law enforcement, warrantless search of an office of fixed location (except as an incident of lawful arrest cannot be justified and does not meet the constitutional standard of reasonableness prescribed by s. of the Charter. [emphasis added] The Kokesch decision was handed down on September 30, 1990, almost two years before the searches in this case occurred. To expect the R.C.M.P. of Bridgewater, Nova Scotia, in July of 1992, to be familiar with decision of the Supreme Court of Canada delivered in September 1990, on the important issue of limiting the rights of entry and search under s. 10 of the Narcotic Control Act, is not, in my opinion, to impose ""burden of instant interpretation of court decisions"" on the police (see Sopinka, J. in Kokesch at p. 33). This circumscription of police power in the field of search and seizure should have been known to Constable Furey. In this sense, the police cannot be said to have proceeded in good faith, as that term is ""understood in s. 24(2) jurisprudence"" (Sopinka, J. in Kokesch at p. 32). conclude that the Crown has not met the two burdens that suggest it is obliged to meet in this case, when it attempts to justify its position under s. 10. conclude the Charter violation to be serious one. The administration of justice could suffer some degree of disrepute from the exclusion of the impugned evidence since we are led to believe that the outcome of the trial will depend on this ruling. If, however, the government ""becomes law breaker, it breeds contempt for law"" (Brandeis, J. in Olmstead v. U.S. (1928), 277 U.S. 438 at 485). The police, in dealing with casual social acquaintance not previously reliable informant, conducted three warrantless searches without making any attempt to carry out any independent investigation to check the reliability of, or source of the caller's information, or to determine the current limits on their authority. In my opinion, the adminstration of justice would suffer far greater disrepute if the evidence were admitted than if excluded. would uphold the decision of the trial judge that the evidence from the search is inadmissible and accordingly dismiss the appeal. Pugsley, J.A. CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIAAPPEAL DIVISION on appeal from THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN versus MICHAEL RONALD PATRIQUEN and BARRY ALEXANDER NAGY HEARD BEFORE: Mr. Justice Hilroy Nathanson DATE HEARD: April 7, 1994 PLACE HEARD: Bridgewater, Nova Scotia COUNSEL: Michael K. Power, for the Prosecution Warren K. Zimmer and Kevin Burke, for the Defence APPEAL OF ACQUITTAL C.A.C. No. 104578 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN ‑and‑ MICHAEL RONALD PATRIQUEN and BARRY ALEXANDER NAGY Respondents REASONS FOR JUDGMENT BY: ROSCOE, J.A. PUGSLEY, J.A. (Dissenting)","The respondents were charged with possession for the purposes of trafficking and cultivation of marijuana, contrary to s. 4(2) and 6(2) of the Narcotic Control Act. RCMP had investigated a tip that a large crop of marijuana plants was being grown on a private property located in a clearing off a woods road. They did not have a search warrant to enter the property, and arrested the respondents after observing them care for the plants. At trial, the court held their right to be secure from unreasonable search and seizure had been violated, and acquitted them. The Crown appealed the acquittal. Per Roscoe, J.A., Chipman, J.A. concurring, allowing the appeal and ordering a new trial, that there was no s. 8 breach because the respondents did not have a reasonable expectation of privacy in the field where the marijuana crop was growing. The court reviewed case law regarding 'open fields', and 'uncultivated' lands, and adopted the reasoning in Oliver v. United States, 104 S.Ct.1735(1984) in reaching its conclusion. Per Pugsley, J.A., dissenting, dismissing the appeal, that the respondents had a reasonable expectation of privacy in activities carried on by them on their private property. As there were no exigent circumstances, the search was not reasonable and the evidence should be excluded.",6_1994canlii3963.txt
68,"J. V.D.V. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: KHAMSENG DOLGOPOL and DARRIN DOLGOPOL No one appearing for either side. FIAT WIMMER J. February 15, 1995 Acting under the authority of The Victims of DomesticViolence Act, S.S. 1994, c. V-6.02 a justice of the peace madean order granting Khamseng Dolgopol exclusive occupation ofthe family residence and, as well, restraining Darrin Dolgopolfrom having contact with his wife or daughter during thecurrency of the order. Now to be decided is whether the order should be confirmed as an order of this court, or whether it should be terminated or varied in its terms. The Victims of Domestic Violence Act came into force on February 1, 1995. It is novel piece of legislation intended to protect domestic antagonists from violence one against the other and, in an emergency, to provide immediate relief from turbulent predicament. The Act provides for two types of orders. One is ""a victim's assistance order"" which may be obtained from the Court of Queen's Bench upon an application brought in the ordinary way by victim of domestic violence or by some person authorized to act on the victim's behalf. Section 2, clause (d) of the Act defines ""domestic violence"" as meaning: (i) any intentional or reckless act or omission that causes bodily harm or damage to property; (ii) any act or threatened act that causes reasonable fear of bodily harm or damage to property; (iii) forced confinement; or (iv) sexual abuse. victim's assistance order may include any number of remedies directed at securing the safety of the victim and the security of the victim's property. ""An emergency intervention order"" is the second type of available order, although curiously, it is the one that gets the legislation's first focus. 3(1) An emergency intervention order may be granted ex parte by designated justice of the peace where that designated justice of the peace determines that: (a) domestic violence has occurred; and (b) by reason of seriousness or urgency, the order should be made without waiting for the next available sitting of judge of the court in order to ensure the immediate protection of the victim. Not until s. does the procedure for obtaining victim's assistance order appear. The sequence of these provisions may tend to encourage victims of violence and their advisers to see an application for an emergency intervention order as the primary route to relief when, in fact, that order is available only in limited circumstances. An emergency intervention order is granted without notice to the person whose conduct it restrains and without any representations from that person or on that person's behalf. It is an extraordinary remedy to be granted only where serious and urgent circumstances indicate need for prompt action to protect the victim. Absent such urgency, the application should be one for victim's assistance order brought to this court in accordance with The Queen's Bench Rules. It is upon this point that the order now under consideration founders. The evidence before the justice of the peace who made the order consisted of this statement taken from Mrs. Dolgopol at 10:35 a.m. on February 1. was in the bathroom getting ready to go out with my family to have breakfast at restaurant. told my husband he could go and warm up the car because would be ready in 10 or 15 minutes. Then what happened? went to my bedroom closet to get my blouse on. Then he walked in the bedroom and saw me wearing the blouse. He told me it looked dumb and stupid. Then he said my face is too red and he went on to criticize my makeup. He told me to wear something else because he doesn't like it. Then what happened? told him like the blouse and its the style. also told him to leave me alone. said don't tell you what to wear or criticize you. Then what happened? started to cry then he said go ahead and wear it if you like it that much. said, how am supposed to feel now that you've told me that you don't like it. Then he blew up. Then what happened? He went into the kitchen and smashed something glass on the floor. Then he picked up the recliner footstool and threw it across the living room. He then yelled that was the cause of him having to act this way. It was all my fault and then he called me ""fucking bitch"" times. After that was scared that he might hurt me so kept quiet for while. Then he tried to force me to go out to the restaurant. told him didn't want to go anymore. He said he'd wait 'till was ready replied that probably wouldn't feel like going out today at all. He then went berserk again and accused me of wrecking his fucking weekend every fucking weekend. Then what happened? Then he went into the bathroom and smashed the steel towel rod and broke it right off the wall. Then he tore down the shower curtain and the rod. Then got really scared and called for my daughter, year old Melissa who was very scared too. We tried to run to the front door. was 1/2 in and 1/2 out when he caught me. Melissa was still on the inside by the door. Darrin reached the door and started closing the door with me still in the way. managed to grab Melissa and run out the door. could hear Darrin swearing inside. Then he opened the door and came running outside and chased me to the car. He jumped in one door and me the other. saw that he was there so jumped out of the car and screamed twice for help. Then what happened? Then Darrin ran back into the house. jumped back in the car with Melissa, locked the doors and took off. was shaking badly and freezing because didn't have coat or any shoes on. drove down to the end of the street and there was police car parked on the side of the road. It was Constable B.D.Miller. He asked me what happened and told him. Cst. Miller asked me if Darrin had guns in the house and said, yes guns. Then later Constable Miller drove me and Melissa to Transition House where am still staying. This incident happened Saturday, January 28/95, approximately 11:00 am. The domestic violence complained of occurred on January 28. There was no evidence that on February 1, 1995, Mrs. Dolgopolwas at risk of immediate harm. There was by then no elementof urgency and the application for relief should have awaitedthe regular Queen\'s Bench Family Law Division chambersittings. In the ordinary course, an application under s. of the Act for victim's assistance order could have been brought on February and both sides given the opportunity to be heard. Section 5 of the Act requires that every emergencyintervention order be reviewed by a judge of this court whomay either confirm the order or ""direct a rehearing of thematter"". When the present order came before Madam JusticeDawson for review, she perceived a problem and directed arehearing. It is not easy to say from the language or scheme of the statute what the legislature intended by the phrase ""a rehearing of the matter"". Is there to be hearing de novo? Or is the rehearing to be seen as an appeal from the order of the justice of the peace; or is it matter of judicial review? Some definition of the process may be necessary to establish the parameters of the court's authority on rehearing. However, leave that for day when there is the benefit of argument from counsel. No one appeared on this rehearing and it is even unclear whether the parties were given notice. Nonetheless, am satisfied that the order should not stand. At the time of its making there was no urgency necessitating any extraordinary action. The order will terminate forthwith.","The Respondent and the Applicant had a violent argument after which the Applicant and the child left the matrimonial home and moved to Transition House. The Applicant sought and obtained an emergency intervention order under The Victims of Domestic Violence Act from a Justice of the Peace giving her exclusive occupation of the matrimonial home and restraining her husband from having any contact with her or their daughter during the currency of the order. This order was then brought before a Queen's Bench Judge as required by s.5 of the Act for review. The reviewing Judge refused to confirm the order and directed a rehearing as permitted by the section. The matter then came before this Judge for the rehearing ordered. HELD: Order vacated.  1)An emergency intervention order is granted by a Justice of the Peace under s.3 of the Act without notice to the person whose conduct it restrains and without any representations from that person or on that person's behalf. It is an extraordinary remedy to be granted only where serious and urgent circumstances indicate a need for prompt action to protect the victim. 2)Absent such urgency, the application should be one for a 'victim's assistance order' brought to a Queen's Bench Judge in Chambers under s.7 in accordance with The Queen's Bench Rules. 3)In this case the domestic violence complained of occurred on January 28. There was no evidence that on February 1, 1995, Dolgopol was at risk of immediate harm. There was by then no element of urgency and the application for relief should have awaited the regular Queen's Bench Family Law Division chamber sittings.  4)The Court commented that it was unclear whether this rehearing was to proceed de novo or as a review but determined that the order should not stand in any event and therefore terminated it forthwith.",8_1995canlii5717.txt
69,"J. _C.S. A.D. 1992 No. 1209 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE INFORMATION SWORN BY SERGEANT T.D. BLUM OF REGINA, SASKATCHEWAN, PEACE OFFICER, ALLEGING THAT HARRY EDWARD STIENWAND, ROBERT A. LAPORTE AND OTTO DAVID CUTTS, DID BETWEEN ON OR ABOUT THE 1ST DAY OF APRIL, 1988 AND ON OR ABOUT THE 30TH DAY OF SEPTEMBER, 1988 AT OR NEAR REGINA, SASKATCHEWAN CONSPIRE TOGETHER TO COMMIT THE INDICTABLE OFFENCE OF FRAUD UPON SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION CONTRARY TO SECTION 380(1) OF THE CRIMINAL CODE AND DID THEREBY COMMIT AN OFFENCE CONTRARY TO SECTION 354(C) OF THE CRIMINAL CODE AND DID BETWEEN ON OR ABOUT THE 1ST DAY OF APRIL, 1988 AND ON OR ABOUT THE 30TH DAY OF SEPTEMBER, 1988 AT OR NEAR REGINA, SASKATCHEWAN, DEFRAUD THE SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION OF MONEY IN AN AMOUNT EXCEEDING $1,000.00 BY DECEIT, FALSEHOOD OR OTHER FRAUDULENT MEANS, TO WIT: BY MEANS OF FALSE INVOICES TOTALLING $66,000.00 AND DID THEREBY COMMIT AN OFFENCE CONTRARY TO SECTION 380(1) OF THE CRIMINAL CODE. and IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS FOR AN ORDER COMPELLING DISCLOSURE OF CERTAIN INFORMATION IN THE POSSESSION OF HER MAJESTY THE QUEEN RELEVANT TO THE SAID CHARGES. BETWEEN: ROBERT A. LAPORTE, HARRY EDWARD STIENWAND, and OTTO DAVID CUTTS and HER MAJESTY THE QUEEN RESPONDENT F.J. Kovach for harry Edward Stienwand A.A. Fox for Robert A. Laporte Eric Neufeld for the Crown FIAT BARCLAY J. December 8, 1993 Further to my fiat of September 21, 1993, and the more recent chambers application, the only matters that reserved are MMM, NNN, OOO, PPP, number and number 10. will deal with them in order. MMM, NNN, OOO, PPP The Crown has already disclosed the contents of each of these blocks and the only matter remaining in issue is the name of the lawyer who released the information. This arose as result of the action of Regina lawyer who improperly revealed information from two of his divorce clients with respect to the charges against Stienwand et al. The Crown quite properly disclosed these statements which had been conveyed to the investigating officer, Sgt. Reid. The law is clear that the privilege applies only to the client and his solicitor. It does not extend to third party who learns of the communication. R. v. Kanester 1966 CanLII 530 (NS CA), [1967] C.C.C. 97 (S.C.C.). The information already disclosed is to some extent hearsay and is only marginally relevant. I, therefore, am of the view that it is not necessary to reveal the name of the solicitor and, therefore, unless the Crown intends to call the informant solicitor as a witness, his name is not to be disclosed. Item number 3. In respect to this issue Mr. Neufeld states in part as follows: Memorandum relating to the defence application for disclosure, concerns with respect to the release of his intelligence reports and references to matters and individuals unrelated to matters in issue. Not fruits of this investigation and irrelevant. Disclosure opposed save for an excerpt from paragraph of the memorandum. It notes conversation with material crown witness on matter with respect to which we understand she was questioned. We are unsure if it qualifies as fruits of the investigation but out of abundance of caution it is being disclosed. The excerpt reads as follows: 3.The day after Colleen Galenzoski testified in chief at the Preliminary proceeding regarding these matters, she contacted the writer to determine if she had given any written documentation to myself at the time of her complaints. The following sentence in that same paragraph indicates that there was discussion between the two relating to questions asked by defence counsel and states an opinion of the officer resulting from the same, but there is no further recording of what Ms. Galenzoski may have said or what if anything, Sgt. Reid may have said in response. In my view the contents of this report are marginally relevant and as there is no legal reason why they should not be disclosed, I, therefore, order their production. Item number 10. These matters do not appear to be relevant and, therefore, disclosure need not be made.","See also 108 Sask. R. 87; [1993] T.W.L. QB93357 QB93p186; and [1993] T.W.L. CA93115, CA93p60. The Court of Appeal had ordered the Crown to produce an itemized inventory of the information in its possession to enable the Queen's Bench to review the information the Crown should disclose to the defence. This fiat concerned several documents. The Crown had already disclosed the contents of each of these documents and the only matter remaining in issue was the name of the lawyer who released the information. This arose as a result of the action of a Regina lawyer who had improperly revealed information from two of his divorce clients with respect to the charges against LaPorte et al. The Crown quite properly disclosed these statements which had been conveyed to the investigating officer. HELD: It was not necessary to reveal the name of the solicitor and, therefore, unless the Crown intended to call the informant solicitor as a witness, his name was not to be disclosed.",1993canlii6711.txt
70,"J. C.A.C. No. 122673 NOVA SCOTIA COURT OF APPEAL Roscoe, Hart and Jones, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and EDWIN LEO SAVOURY Respondent Robert E. Lutes, Q.C. for the Appellant Pamela S. Hutt for the Respondent Appeal Heard: April 2, 1996 Judgment Delivered: April 2, 1996 THE COURT: Leave to appeal is granted, but the appeal is dismissed as per oral reasons for judgment of Roscoe, J.A.; Hart and Jones, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by ROSCOE, J.A.: This is an appeal by the Crown from a sentence imposed by a Provincial Court judge for a break, enter and theft charge to which the respondent pled guilty. The respondent was sentenced to pay fine of $2,500.00 or 50 days in default, plus victim fine surcharge of $250.00 and three years probation. The terms of the probation order included direction that the respondent pay restitution to the victims in the amount of $300.00, that he not have contact with the victims and that he continue treatment with his psychiatrist. The respondent used rock to break the patio doors of his neighbour's house, cutting his hand in the process. He removed lingerie from chest of drawers in the master bedroom, and dripped blood throughout the house. He has prior record for similar offence also involving break into house for which he received suspended sentence. The Crown contends the sentence inadequately reflects the element of deterrence, and that it is inadequate having regard to the nature of the offence and the circumstances of the respondent. The pre-sentence report indicated that the respondent, aged 24, was suffering from physical ailments that caused him to be depressed and that he had attempted suicide. He was seeing psychiatrist who recommended further treatment. Although the respondent was unemployed at the time of the offence, he had, by the time of sentencing, obtained full-time employment with the Armed Forces for six month term with the possibility of further extension. We have been advised that his employment has in fact been extended for another year. The sentencing judge was obviously persuaded that there was more hope for rehabilitation of the respondent if he was able to continue the sessions with his psychiatrist and retain the employment opportunity. He said: don't think incarceration is required for the protection of the public in this case. think it is important that Mr. Savoury deals with his underlying problem and obtains insight in his behaviour. think it is important, of course, that there is an address of the general deterrence aspect, but think it can be done through heavy fine and three year probation with the terms suggested by Crown Counsel. The role of this Court in sentence appeals is as stated by Macdonald, J.A. in R. v. Cormier (1974), 1974 CanLII 1577 (NS CA), N.S.R. (2d) 687 (S.C.A.D.) at pages 694 695: Thus it will be seen that this Court is required to consider the fitness"" of the sentence imposed, but this does not mean that sentence is to be deemed improper merely because the members of this Court feel that they themselves would have imposed different one; apart from misdirection or non-direction on the proper principles sentence should be varied only if the Court is satisfied that it is clearly excessive or inadequate in relation to the offence proven or to the record of the accused. This test was recently approved by the Supreme Court of Canada in its decision in R. v. Shropshire (1995), 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193. The trial judge, in our view, considered the correct principles of sentencing in this unique case. It is apparent that the respondent did not commit this break for the usual reasons and that he requires psychiatric assistance. While obviously extremely lenient, the sentence is not so manifestly inadequate, in all the circumstances, as to justify interference by this Court at this time. While we grant leave to appeal, we dismiss the appeal. Roscoe, J.A. Concurred in: Hart, J.A. Jones, J.A. 1995 C.A.C. No. IN THE NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN, and EDWIN LEO SAVOURY, RESPONDENT NOTICE OF APPLICATION FOR LEAVE TO APPEAL (SENTENCE) 1. Place of Proceedings: Dartmouth, in the County of Halifax 2. Judge: Honourable Judge Jean-Louis Batiot 3. Court: Provincial Court 4. Crown Attorney: John A. Feehan 5. Defence Counsel: Pamela Hutt 6. Offence of which Respondent sentenced: That he at or near Porters Lake, in the County of Halifax, Province of Nova Scotia, did break and enter certain place to wit: the dwelling house situate at Cheviot Hills, and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code. 7. Plea: Guilty 8. Sentence: Imposed fine of $2,500. plus 50 days in default; $250. VFS plus probation for three years 9. Date of Conviction: July 19, 1995 10. Date of Sentence: October 25, 1995 C.A.C. No. 122673 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN and EDWIN LEO SAVOURY REASONS FOR JUDGMENT BY: ROSCOE, J.A.","The respondent pled guilty in provincial court to a charge of break, enter and theft for breaking into his neighbour's house and removing lingerie from a chest of drawers in the master bedroom.. He was sentenced to pay a fine of $2,500 or 50 days in default, plus a victim fine surcharge of $250 and three years probation. The terms of the probation order included a direction that the respondent pay restitution to the victims in the amount of $300, that he not have contact with the victims and that he continue treatment with his psychiatrist. The Crown appealed the sentence, alleging that it inadequately reflected the element of deterrence. Dismissing the appeal, that the trial judge considered the correct principles of sentencing . This was a unique case where it was apparent that the respondent did not commit the offence for the usual reasons and that he required psychiatric treatment.",1996canlii5602.txt
71,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 95 Date: 2014-09-15 Between: Docket: CACV2582 Shirley Mae deBalinhard Appellant (Respondent) and John Canagy deBalinhard Respondent (Petitioner) Before: Caldwell J.A. (in Chambers) Counsel: Gerald Heinrichs, for the appellant Thomas Campbell, for the respondent Application: From: 2014 SKQB 239 (CanLII) Heard: September 10, 2014 Disposition: Dismissed Written Reasons: September 15, 2014 Caldwell J.A. [1] Shirley Mae deBalinhard wishes to appeal from the decision of the chambers judge (indexed as 2014 SKQB 239 (CanLII)), made pursuant to s. 47 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, not to vacate a certificate of pending litigation registered on behalf of her estranged husband, John Canagy deBalinhard, against title to certain lands. [2] Mr. deBalinhard is deceased and his estate is represented by his executors. Just prior to his death, Mr. deBalinhard filed petition for the division of family property. When he died, his solicitors filed the certificate of pending litigation. Ms. deBalinhard subsequently transferred the lands into her own name and then entered into an agreement to sell them, which sale will not proceed until the certificate of pending litigation is vacated. [3] When Ms. deBalinhard filed her notice of appeal, she did not consider whether the order appealed from was interlocutory or final in nature. She subsequently filed notice of motion seeking either leave to appeal or directions from chambers judge that leave was not required. Accordingly, as preliminary matter, Ms. deBalinhard was put to elect either to proceed with her appeal or to proceed with her leave application, as she may not do both (see: Mann Hawkins, 2011 SKCA (CanLII) (per Klebuc C.J.S. (as he then was) in chambers)). Since she had filed her notice of appeal and application before reasons were made available in O’Connor Garden, 2014 SKCA 90 (CanLII) (where Whitmore J.A., in chambers, dealt with an application for leave to appeal from decision not to vacate certificate of pending litigation), she elected to seek leave to appeal and, with no objection from counsel for the respondent, her application proceeded on that basis alone, with her notice of appeal deemed to be “draft” notice of appeal. [4] The power to grant or withhold leave to appeal, as contemplated by s. 8(1) of The Court of Appeal Act, 2000, SS 2000, C-42.1, is exercised on the basis of the criteria set forth in Rothmans, Benson Hedges Inc. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask 121, where Cameron J.A. said: [6] The power to grant leave has been taken to be discretionary power exercisable upon set of criteria which, on balance, must be shown by the applicant to weigh decisively in favour of leave being granted: Steier v. University Hospital Board, 1988 CanLII 215 (SK CA), [1988] W.W.R. 303 (Sask. C.A., per Tallis J.A., in Chambers). The governing criteria may be reduced to two each of which features subset of considerations provided it be understood that they constitute conventional considerations rather than fixed rules, that they are case sensitive, and that their point by point reduction is not exhaustive. Generally, leave is granted or withheld on considerations of merit and importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? Is it prima facie frivolous or vexatious? Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? Is it apt to add unduly or disproportionately to the cost of the proceedings? Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? does it raise new or controversial or unusual issue of practice? does it raise new or uncertain or unsettled point of law? does it transcend the particular in its implications? (Emphasis in original) [5] Turning to the first criterion, given the circumstances of this matter the proposed appeal is not prima facie frivolous or vexatious. Nor can say the proposed appeal is apt to unduly delay the proceedings, although an interlocutory appeal necessarily adds to the overall duration of an action. In addition, given what is at stake, an appeal would not, relatively speaking, add unduly or disproportionately to the cost of the proceedings. [6] However, as Whitmore J.A. noted in O’Connor Garden, orders of the nature under consideration in this matter are discretionary orders. This means there is genuine question as to whether the proposed appeal is prima facie destined to fail by reason of the nature of the adjudicative framework pertaining to the exercise of discretionary powers. Cameron J.A. set out that adjudicative framework in Rimmer Adshead, 2002 SKCA 12 (CanLII), [2002] WWR 119, where he said: [58] In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of the judge of first instance, not ours. Hence, our function, at least at the outset, is one of review only: review to determine if, in light of such criteria, the judge abused his or her discretion. Did the judge err in principle, disregard material matter of fact, or fail to act judicially? Only if some such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result must be so plainly wrong as to amount to an injustice and invite intervention on that basis. (See, for example, McKinnon Industries Ltd. v. Walker, 1951 CanLII 308 (UK JCPC), [1951] D.L.R. 577, at 579 (P.C.) and Saskatchewan Power Corporation v. John Doe, 1988 CanLII 216 (SK CA), [1988] W.W.R. 634 (Sask. C.A.)). [7] Ms. deBalinhard’s draft notice of appeal could be interpreted as setting out two grounds of appeal that appear to allege the chambers judge either committed an error in principle or disregarded material facts when he decided not to vacate the certificates of pending litigation against the lands in question. However, the draft notice of appeal is not confined, as it should be, to whether the chambers judge exercised his discretion within the criteria which bear upon the proper exercise of his judicial discretion. Rather, the broadly-framed draft notice of appeal invites the Court to retry matters and, to some extent, reweigh evidence so as to supplant the chambers judge’s findings and conclusions. Appellate review of discretionary decision is one of review for vitiating error; it is not hearing de novo. So while the proposed appeal might be of sufficient merit, the draft notice of appeal would have to be revised to frame the grounds of appeal as falling within the adjudicative framework applicable to appeals from discretionary orders. [8] Turning to considerations of importance, am hard pressed to conclude the proposed appeal is of sufficient importance to the proceedings before the Court of Queen’s Bench, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by panel of the Court of Appeal. [9] At its heart, the proposed appeal would involve revisiting an interlocutory order that preserves the status quo pending final decision after trial. The proposed appeal does not raise a new or controversial or unusual issue of practice. Nor does it raise new or uncertain or unsettled point of law; albeit the proposed appeal may raise valid question of law based on the facts of this matter, it does not transcend the particular in its implications. Further, given the nature of the impugned order, it does not bear heavily or potentially prejudicially upon the course or outcome of the action. understand money realised from the sale of other lands formerly subject to the certificate of pending litigation will be held for the benefit of the parties pending the trial in the within action. presume then that if the lands in question are later sold for less than the price at which Ms. deBalinhard proposes to sell them, or if later sold at that price and it is found to be less than fair market value, the party suffering the loss might have ready recourse to set off the loss. In sum, while there may be legitimate issues raised in the prospective appeal, on the whole, I find the issues would be better resolved by a judge of the Court of Queen’s Bench after hearing viva voce evidence at trial. [10] In short, while the proposed appeal might be of sufficient merit, it is not of sufficient importance to warrant determination by a panel of this Court. The application for leave is dismissed. The Registrar may close the appeal file opened upon the filing of the now draft notice of appeal. [11] As to costs, Ms. deBalinhard shall pay Mr. deBalinhard’s costs in this application, in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of September, A.D. 2014. “Caldwell J.A.” Caldwell J.A.","Civil Procedure – Appeal – Leave to AppealLand – Certificate of Pending Litigation The appellant sought leave to appeal the chambers decision not to vacate the certificate of pending litigation registered on behalf of her estranged husband, who was deceased. The respondent’s solicitors filed the certificate of pending litigation after his death. The appellant transferred the land subject to the certificate of pending litigation into her name only and entered into an agreement to sell the land, which could not proceed with the certificate of pending litigation. HELD: The appeal was of sufficient merit and it was not prima facie frivolous or vexatious. The appeal, however, was not found to be of sufficient importance to the practice of law or the Court of Queen’s Bench to warrant determination by the Court of Appeal. There was no new, controversial or unusual issue of practice raised by the appeal. The issues were determined to be better left for resolution by the Court of Queen’s Bench after hearing vive voce evidence at trial.",5_2014skca95.txt
72,"J. 2002 SKQB 250 Q.B. A.D. 2002 No. 1122 J.C.S. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPLICATION BY SASKATOON STAR PHOENIX GROUP INC. FOR ACCESS TO AN EXHIBIT FILED WITH THE PROVINCIAL COURT IN HER MAJESTY THE QUEEN v. GLEN IVOR JONES BETWEEN: SASKATOON STAR PHOENIX GROUP INC. and ATTORNEY GENERAL FOR SASKATCHEWAN RESPONDENT G.M. Currie for the applicant G. G. Mitchell, Q.C. for the respondent FIAT ROTHERY J. June 12, 2002 [1] Saskatoon’s daily newspaper applies for access to a CD-ROM entered in evidence at a sentencing hearing in the matter of R. v. Glen Ivor Jones on May 14, 2002. The CD-ROM contains the audio and text summaries of more than 200 intercepted conversations that had been obtained by warrant. [2] The applicant’s journalists had no prior opportunity to hear the contents of the CD-ROM, because Mr. Jones entered guilty plea. The CD-ROM, while filed by the Crown in his sentencing submissions, was not played for the sentencing judge. Now, the journalists wish to hear and view that evidence. The Registrar of the Provincial Court had advised the applicant that it must apply to the appropriate court with notice to the Crown for an order to obtain access to the CD-ROM. [3] Both counsel agree that this exhibit is now under the control of the Attorney General, and it is the appropriate respondent in this proceeding. Both counsel submit that the appropriate court to determine the issue of access to the CD-ROM is the Court of Queen’s Bench. The Attorney General does not oppose the application. It merely seeks the court order to release the CD-ROM to the applicant. [4] The applicant seeks an order for mandamus, or a declaration. The Court of Queen’s Bench is the appropriate court to obtain such relief. See: McIntyre v. Nova Scotia (Attorney General) 1982 CanLII 14 (SCC), [1982] S.C.R. 175. And see: Leader-Post v. Neuls, [1992] S.J. No. 686 (Q.B.). [5] The ratio in McIntyre, supra, and applied in Leader Post, supra, is that “the presumption is in favour of public access to court records, and the burden to the contrary proof lies upon the person who would deny the exercise of the right.” [6] This right is tempered somewhat by other factors. As stated in R. v. S.J.S., [2000] S.J. No. 49 (C.A.) at para. 8: The right of access to judicial records has never been considered absolute: ... The governing principle is that there is presumption in favour of public access but that access must be supervised by the Court to ensure the integrity of the exhibit is preserved and that no abuse or harm occurs to innocent parties. This comports with the hallmark of openness in our judicial system: ... [7] The applicant requests an order that it be entitled to make copy of the CD-ROM at its expense. Because the contents are extensive, it may take more than week to listen to all the conversations on the CD-ROM. It would like to do so at its own premises and own leisure. The Attorney General is agreeable to such copy being made. However, the court must be concerned that no harm befalls innocent parties. This CD-ROM will invariably hold conversations made by innocent parties. [8] Had the trial proceeded, the journalists would have heard the contents of the CD-ROM in open court and would have been able to report on what they heard. In granting access to the exhibit, the court should be mindful of possible harm to others. Requiring the journalists to attend at the offices of the Attorney General and playing the original CD-ROM balances those interests. [9] therefore declare that the applicant is granted access to the CD-ROM entered as an exhibit in the Jones sentencing. The respondent is ordered to make available to the applicant, during regular business hours, the said exhibit and the requisite recording devices to utilize the CD-ROM. The applicant is entitled to make its own notes on what it hears and sees. [10] Counsel are entitled to return the matter to me for further directions.","FIAT. Saskatoon's daily newspaper applied for access to a CD-ROM entered in evidence at a sentencing hearing in the matter of R. v. Glen Ivor Jones on May 14, 2002. The journalists had no prior opportunity to hear its contents because Jones entered a guilty plea. The application was not opposed. The applicant sought an order for mandamus or a declaration. HELD: The presumption is in favour of public access to court records and the burden to contrary proof lies with the person who would deny access. This right is tempered by other factors (see R. v. SJS). Requiring the journalists to attend at the offices of the Attorney General and playing the CD ROM and making their own notes balances the interests of innocent parties whose conversations were recorded.",b_2002skqb250.txt
73,"J. 1994 S. H. No. 112402 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN RESPONDENT Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 18, 2008. PLACE HEARD: At Halifax, Nova Scotia, before the Honourable Chief Justice Glube DATE HEARD: April 18th, 1995 DECISION: April 18th, 1995 (orally, at conclusion) WRITTEN RELEASE OF ORAL DECISION: April 20th, 1995 COUNSEL: Adrian C. Reid, Q.C., for the appellant Burnley A. Jones and Christine Driscoll, for the respondent TO PUBLISHERS OF THIS CASE: PLEASE TAKE NOTE that s. 38(1) of the Young Offenders Act applies and this decision may require editing before publication. Section 38(1) provides: ""38(1) Subject to this section, no person shall publish by any means any report (a) of an offence committed or alleged to have been committed by young person, unless an order has been made under section 16 with respect thereto; or (b) of any hearing, adjudication, disposition or appeal concerning young person who committed or is alleged to have commited an offence in which the name of the young person, child or young person who is victim of the offence or child or young person who appeared as witness in connection with the offence, or in which any information serving to identify the young person or child, is disclosed."" FURTHER NOTE there is ban on publication of the original Youth Court decision dated December 7th, 1994; as well as any portion of this decision which quotes directly from said decision. GLUBE, C.J.: (Orally) want to thank counsel for providing their material in advance and would indicate that have listened very carefully to what has been said this morning and it, for the most part, echoes what is in the briefs already. have had the opportunity, as said, of reading them and of reaching decision on this matter and I'd like to give it now. On November 10th, 1993, R.D.S was charged with three counts under the Criminal Code. The first, unlawful assault against peace officer engaged in the execution of his duty, contrary to s. 270(1)(a); the second, unlawful assault against the same peace officer, with intent to prevent the peace officer from lawfully arresting N.R., contrary to s. 270(1)(b); and the third, unlawfully resisting the same peace officer who was engaged in the lawful execution of his duty, contrary to s. 129(a). After appearing in Youth Court December 7th, 1993 and entering not guilty plea, and after numerous appearances in Youth Court, all resulting in adjournments, R.D.S. was finally tried on December 2nd, 1994, and following an oral decision on that date, was acquitted on all charges. On December 22nd, 1994 the Crown filed notice of appeal; on January 13th, 1994 the Learned Trial Judge filed Supplementary Reasons. Only two persons were called as witnesses at the trial before the Learned Trial Judge, namely: Constable Donald Stienburg, the peace officer named in the indictment, and the defendant, R.D.S. Although the facts have been set out in detail by both sides and have been presented here this morning as well in detail, do not propose to repeat them here. have read the transcript and the summaries provided by both counsel, as well as the briefs of both counsel. The appellant refers to both the reasons given orally at the conclusion of the case, as well as the document entitled ""Supplementary Reasons"" filed after the notice of appeal. The appellant sets out the grounds of appeal as follows: ""1. THAT the Learned Youth Court Judge based her decision on considerations which were not supported in the evidence. 2. THAT the Learned Provincial Court Judge made findings of credibility based on considerations which are not based upon or supported by the evidence. 3. THAT the Learned Youth Court Judge erred in ruling certain relevant and probative evidence to be inadmissible in particular statements made by the Respondent at the time of the commission of the offence."" Grounds one and two were argued together by the Crown. On the first two grounds the Crown submits the issuing of Supplementary Reasons following the filing of an appeal was inappropriate. am of the view that the Supplementary Reasons are not the proper basis for deciding this appeal. In my respectful opinion, the decision was made on December 2nd, 1994 and the Supplementary Reasons did not form the basis of the Crown's appeal. Although judge is not obliged to advise counsel they will receive additional reasons, it would be usual for judge to say something, either at the conclusion of the case and the oral reasons or very soon after that time. Although another issue intervened in this case relating to request from the press, there was no advice that further reasons on the actual decision would be forthcoming. They were not received until after the notice of appeal, and suggest the filing of those reasons was not practice that judge should follow. do not propose to consider the elaborated reasons in rendering this decision. Both parties this morning have agreed that the judge was functus at this time, as she had made decision. But would like to make some further comments because my research, as said, this past weekend did lead me to perhaps confirm that position which had come to without doing any further research. The release of the Supplementary Reasons by the Learned Trial Judge caused me some concern, and after writing the above, tried to research the issue but was unable to find any specific cases directly on point, except cases which fall under the provisions of s. 682(1) of the Criminal Code. believe they are analogous to the present situation and therefore may apply. R. v. A.W.E., [1993] S.C.R. 158 dealt with the gratuitous report sent to Court of Appeal by trial judge purporting to be under the provisions of section 682(1) of the Criminal Code. (The section deals with reports to the Court of Appeal.) At the present time, reports are only to be made upon request by the Appeal Court. At p. 173 of the decision, Lamer C.J.C. states: It is well established that trial judge, in furnishing the Court of Appeal with report, must be vigilant to avoid simply expanding upon reasons or rulings previously given or providing reasons where none were given at trial. In such circumstances, trial judge's report will be held invalid..."" Some years earlier, in the case of R. v. Hawke, 1975 CanLII 672 (ON CA), 22 C.C.C. (2d) 19 at p. 53, case in which again no report was requested, after discussing the Criminal Code section on reports, Dubin J.A. (as he then was) states at p. 53: In the case at bar, it would not be unreasonable for the accused to feel that the learned trial Judge has put himself into the appellate arena in support of his conviction. It is to be observed that this is not case where trial Judge had indicated the result that he had arrived at and announced that that he proposed to give his reasons later. In this case the trial was over, the rulings had been made after lengthy argument and supplementary reasons were delivered only by reason of the appeal. In this case, the appearance of justice would have been better served if the trial Judge had been content to let the matter stand as recorded in the transcript of the evidence."" Finally, as found in Tremeear's Criminal Code under s. 682, there is the case of R. v. Watkins (1986), Q.A.C. 210 (C.A.). As said, the quote in Tremeear's is somewhat misleading and the quote when you draw up the case from Quicklaw is different. It was sent back for new trial for reasons other than the report. The initial decision of the trial judge held the lack of serenity of the room where the accused's confession was made rendered the confession inadmissible; the report to the Court of Appeal said the statement was not admitted because of language difficulty. Essentially the Court of Appeal said that the trial judge ""erred in not admitting the statement at trial and that the judge's second thoughts, after notice of appeal was filed by the Crown should be ignored"". In the present case, the Supplementary Reasons add number of factors about the demeanour of the peace officer which were not contained in the original decision, and also contains specific reference to outside material which was not contained in the original decision. All of these decisions, as said, were read by me after had concluded that would not consider the Supplementary Reasons, and had written the remarks which made just few moments ago. Turning back to the decision of December 2nd, the Crown says that the decision on that date flows or appears to flow as much from the Trial Judge's own preconceptions regarding the attitude of the police towards minorities as it does from the evidence. The Crown cites remarks by the Trial Judge, such as, that there is tendency for police to overreact when dealing with non‑white groups. The Crown suggests that analyzing this and other remarks in the December 2nd decision show clearly the Trial Judge's conclusions on credibility flow from racially based bias against police, and not from the evidence. Further, the Crown submits that this creates an appearance of unfairness. The Crown goes further and alleges that the remarks exhibit real bias. The respondent submits that there is no appeal on questions of facts, however, believe the law is otherwise. The normal function of an Appeal Court is not to substitute its own view of the facts for the trial judge, as found in the case of R. v. Bursey (1982), 53 N.S.R. (2d) 353 (C.A.). The usual issue is whether there was evidence on which properly instructed jury acting judicially could reach the same conclusion as the Provincial Court judge. (R. v. Arthur (1981), 1981 CanLII 353 (BC CA), 63 C.C.C. (2d) 117 (B.C.C.A.) leave to appeal refused December 21, 1981 and there are many decisions on this philosophy.) Also, s. 813 of the Criminal Code deals with summary conviction appeals, and following it is reference to the case of R. v. Crocker (1986), 73 N.S.R. (2d) 151, where it states the Crown has the right to appeal on facts, but an acquittal will only be set aside where the verdict is unreasonable or not supported by the evidence. In the case at bar, if there is to be found an apprehension of bias, then the verdict would not be supported by the evidence. Before dealing with the apprehension of bias, wish to deal with one other matter raised in argument. The Crown submitted in argument that the apparent preconception of the Learned Trial Judge against the police generally, created the appearance of unfairness and with such preconceptions, Constable Stienburg could not hope for fair hearing. The respondent submits the Constable was not on trial, that the Learned Trial Judge's comments dealt with the police in general and not the specific actions of Constable Stienburg, and the respondent hoped for and received fair trial. In the case of R. v. Wald, (1989) 1989 ABCA 49 (CanLII), 47 C.C.C. (3d) 315, although in different context, namely, one of determining the validity of certain sections under the Criminal Code in relation to s. and 11(d) of the Charter, Hetherington J.A. states at p. 336: ""There will be prejudicial effect in the sense of an injury to the case for the Crown if the trier of fact forms an opinion of, or is biased against, the complainant as result of evidence as to her sexual reputation or as to her sexual activity with persons other than the accused.. Such prejudicial effect would render hearing unfair to the Crown. The principles of fundamental justice require that hearing be fair to both the Crown and the accused."" Fundamental justice requires impartial decision makers, and includes natural justice and duty to act fairly. These remarks were made in the context of an administrative tribunal in the Supreme Court of Canada case of Pearlman v. Manitoba Law Society, 1991 CanLII 26 (SCC), [1991] S.C.R. 869; however, they surely apply equally, if not even more, to court. Turning to the issue of the apprehension of bias, the defence submits that the Trial Judge made findings of fact based on the credibility of the witnesses before her, and that in no way has she suggested in her reasons for making the decision that they were based on racial attitude or predisposition against police officers. There is certainly nothing in the transcript of the actual evidence which was heard on December 2nd to suggest any bias or apprehension of bias, but when turn to the decision rendered the same day, and presume immediately following the evidence and counsel's submissions, it contains thorough review of the facts and finding based upon credibility in favour of the accused. Had the decision ended there, at p. 68 of the original transcript, where she states: [redacted]” had it ended there, there would have been no basis for this appeal as the Crown has already conceded. Unfortunately, the decision did not. The Learned Trial Judge went on to add two more paragraphs which read as follows: A[redacted]” On thorough review of the transcript, find no basis for these remarks in the evidence. There was no evidence before the trial court as to the ""prevalent attitude of the day"" or otherwise the remarks made relating to the police. With great respect, judges must be extremely careful to avoid expressing views which do not form part of the evidence. The test of apprehension of bias is an objective one, that is, whether a reasonable right‑minded person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. In my respectful opinion, in spite of the thorough review of the facts and the finding on credibility, the two paragraphs at the end of the decision lead to the conclusion that a reasonable apprehension of bias exists. Having found that, need go no further as such finding requires that new trial be ordered. As find there must be new trial, do not propose to deal with the suggested error in ruling certain evidence inadmissible. That will be matter for decision by the trial judge hearing the new trial. In conclusion, the appeal is allowed and a new trial is ordered in front of a different trial judge. J. Halifax, Nova Scotia","The young offender appealed his convictions contending an apprehension of bias on the part of the Youth Court Judge who made comments about the police and non-white accused. The Judge also wrote supplementary reasons after the appeal was filed. Allowing the appeal and ordering a new trial in front of a different trial judge, that there was no evidence before the Youth Court Judge as to the comments made. The court applied an objective test and concluded a reasonable apprehension of bias existed. Supplementary reasons should not be written without a request from the Court of Appeal.",b_1995canlii9321.txt
74,"J. _Q.B. A.D. 1994 No. 3760 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DIANE SORON and ALBERT LAVOIE, R. LORNE JAMIESON, GREGORY N. BAINS, SHEILA P. WHELAN, DENNIS P. LOEWEN and BRIAN McHOLM, being partners in the practice of law under the firm name of JAMIESON BAINS DEFENDANTS Mr. Timothy E. Turple for the plaintiff (respondent) Mr. Thomas J. Schonhoffer for the defendants (applicants) FIAT WRIGHT J. August 11, 1995 have good deal of sympathy for the applicants in this case. The application raises number of problems. The plaintiff has not explained why she waited for five years after she attained majority before consulting counsel, except to say that she did not believe she could do anything as result of the original advice she and her mother received from Judge Lavoie. That very significant delay is factor that must consider, but only one. Undoubtedly there will be some prejudice to the applicants by virtue of having destroyed their files, the death of Dr. Leakos and the diminution of memories over period of 11 years. Those factors must be weighed, however, against the interests of the plaintiff. am influenced by number of factors. Firstly, the notes produced from SGI of conversations with Ms. Mak, solicitor in Judge Lavoie's office, indicate that the Lavoie firm was continuing to represent the plaintiff some six months after the initial consultation, and were preparing to file statement of claim. That evidence flies in the face of Judge Lavoie's statement that he refused to act. Perhaps he was unaware Ms. Mak continued the firm's involvement. The death of Dr. Leakos is matter beyond the control of the parties. But one would expect there would be hospital, patient and SHSP records of treatment. There is no indication as to who took over Dr. Leakos' files or whether he practised with others who may have his case histories and patient records. It is difficult to believe that there are not medical records available from some source which would outline the scope of the treatment and his diagnosis and prognosis for the plaintiff. The applicants' decision to destroy their office files is understandable, but do see merit in Mr. Turple's argument that the decision did not recognize the contingent element involved in the situation of an infant plaintiff. was particularly struck by the comments contained in Brosseau v. Children's Aid Society of the District of Sudbury Inc. et al (1986), C.P.C. (2d) 312. It repeats an earlier statementthat infants with bona fide causes are privileged suitors. So, an infant ""should not be visited with the sins of the nextfriends and litigation guardians who preceded him in the sameaction."" agree the plaintiff's claims face some serious obstacles: (1)The plaintiff was guest passenger; (2)The plaintiff's mother rear-ended slow- moving vehicle in very adverse weather conditions. It is not my duty, however, to pass on these issues. The application is dismissed, but costs arereserved to the trial judge.",FIAT The Defendants were consulted by the Plaintiff and her mother 11 years earlier with respect to commencing an action for personal injuries arising out of a motor vehicle accident. The Plaintiff was only 12 at the time. No action was commenced with the result that the original action was now statute-barred. She waited 5 years after she attained the age of majority before taking this action against the Defendants. The Defendants applied to stay the action on the basis that they had never been retained. HELD: Application dismissed. Infants with bona fide causes are privileged suitors. An infant 'should not be visited with the sins of the next friends and litigation guardians who preceded him/her in the same action'.,1995canlii6138.txt
75,"Visitor IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. T.C., 2006 NSPC 61 Date: 20061208 Docket:1583602, 1583665,1592075,1637211,1637212,1637279,1658793,1658794,1660279,1660281,1660282, 1661027,1661028,1661029,1661030,1661031,1672891,1672892,1677544,1677545,1677546, 1682564,1682565,1686628,1690222,1690224,1693015,1693025,1693892,1697668,1697672, 1708843,1708844. Registry: Halifax Between: Her Majesty the Queen T.C. Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 6, 2008. Publication restriction: Section 110 and 111 of the Youth Criminal Justice Act Judge: The Honourable Pamela S. Williams Oral Argument: December 5, 2006 Written Decision Delivered Orally: December 8, 2006 Counsel: Gary Holt, for the Crown Megan Longley, for the Defendant Peter McVey, for the Department of Community Services Nancy Rubin, for the Chronicle Herald Alan Parrish, for the Daily News By the Court: INTRODUCTION: [1] Counsel on behalf of the media, the crown, the young person, T.C., and the legal parent/guardian of T.C., The Minister of Community Services seek a ruling from this Court as to whether the public, including the media, will be permitted to attend the court convened pre-sentencing conference, scheduled to take place on December 11, 2006. The crown, the young person and the parent argue that the conference should not be open to the public and the media. Counsel for The Chronicle Herald and the Daily News take the position that this is public proceeding to which they should have access. BACKGROUND: [2] On October 17, 2006 the young person, T.C. appeared before the Youth Justice Court and entered or confirmed guilty pleas to 31 offences involving assaultive behaviour, threats, property damage and breach of court orders in relation to group home placements over nearly 14 month time period between August 24, 2005 and October 13, 2006. [3] Section 36 findings of guilt were made by this Court on October 17, 2006 and pre-sentence report was ordered. Defence counsel on behalf of T.C. also asked this Court to consider using its discretionary power under s. 41 of the Youth Criminal Justice Act, (YCJA), to convene conference under s. 19 of the Act to consider recommendations on an appropriate youth sentence for T.C. Compelling reasons in favor of conference were advanced by both crown and defence. The Court thus ordered that conference be held prior to the sentencing hearing. [4] This case has attracted considerable media attention, at least in part, because of a concern, raised by some, as to the adequacy of government programs and support for the young person who apparently suffers from mental health issues and who is in the permanent care of the Minister of Community Services. In turn, this case has also raised interesting issues relating to the conferencing provisions of the YCJA, the ‘open court principle’ and the discretionary power of the Youth Court, pursuant to s. 132 to exclude members of the public from the conference. [5] preliminary issue was raised by counsel on behalf of the Daily News as to whether or not the parent, the Minister/Department of Community Services, has standing to argue the merits of this application, given that they are not party to the proceedings. Although parent is not party to Youth Criminal Justice proceeding per se, Parliament has, in my view, recognized the need for the parent to play vital role before the Youth Court. This is evidenced by numerous provisions in the YCJA which speak to the participation of the parent: (1) Parents should be informed of measures and proceedings involving their children and encouraged to support them in addressing their offending behaviour: YCJA s. 3(1)(d)(iv). (2) Notices and copies of reports orders, reasons for sentence and court records are to be provided to parents: YCJA ss. 11, 26, 96(3), 34(7)(a)(ii), 40(5)(a)(ii), 56(1) and (2), 94(12), 97(3)(c), 109(5), 119(1)(e). (3) The Court can compel the appearance of parent by court order: YCJA s. 27. (4) The Youth Court judge, before imposing or reviewing sentence, is to consider any representations made by parents: YCJA ss. 42(1) and 94(19). [6] In addition, in my experience, sitting as youth court judge, parents often provide valuable information and assistance to the Youth Court in the course of proceedings. am therefore of the view that the parent, the Minister/Department of Community Services can and should provide input into the question of whether or not the conference should be open to the public and the media. (1) Is the Youth Justice Court convened conference, presently scheduled for December 11, 2006 part of the court process? (2) If so, is it public proceeding which entitles the public and the media to attend? (3) If so, should the Youth Justice Court, nonetheless exercise it’s discretion to exclude the public and the media pursuant to s. 132 of the Youth Criminal Justice Act? [8] The use of conferences, to deal with youth in conflict with the criminal law, is statutorily authorized by the YCJA. ‘conference’ is group of persons convened to give advice in accordance with section 19 of the YCJA: YCJA s. 2(1). [9] Section 19 authorizes various individuals, including youth justice court judge, to convene conference for the purpose of making decision required to be made under the YCJA during the course of proceedings. [10] The mandate of conference may be, among other things, to give advice and provide recommendations on sentencing, which also is undoubtedly part of the court process: YCJA ss. 19(2). [11] When youth justice court finds young person guilty of an offence, the court may convene or cause to be convened conference under section 19 for recommendations to the court on an appropriate youth sentence: YCJA s. 41. [12] youth justice court shall, before imposing youth sentence, consider any recommendations submitted under section 41: YCJA s. 42(1). [13] Section 132 of the YCJA gives youth court judge discretionary power to exclude members of the public from court proceedings if the court considers that the person’s presence is unnecessary to the conduct of the proceedings and the court is of the opinion that either any evidence or information presented to the court would be seriously injurious or seriously prejudicial to the young person or it would be in the interest of the proper administration of justice to exclude any or all members of the public from the court room. Common Law: [14] The presumptive rule with respect to court proceedings is one of openness, public accessibility and judicial accountability. Often referred to as the ‘open court principle’ it is hallmark of democratic society and applies to all judicial proceedings. Public access to the courts guarantees the integrity of judicial processes by demonstrating ‘that justice is administered in non-arbitrary manner, according to the rule of law’: Re Vancouver Sun, 2004 SCC 43 (CanLII), [2004] S.C.J. No. 41 at paragraphs 23 25. [15] Section 11(d) of the Charter guarantees that everyone is presumed innocent until proven guilty in fair and public hearing. Public access to the hearing ensures that the judicial process is independent and impartial and that justice is administered, and is seen to be administered, fairly according to the rule of law. Openness is integral to public confidence in the justice system and the public’s understanding of the administration of justice. [16] The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein. The freedom of the press to report on judicial proceedings is core value as is the right of the public to receive such information. Often the press plays vital role in being the means through which the public receives information about judicial proceedings. “Consequently, the open court principle, to put it mildly, is not to be lightly interfered with”: Re Vancouver Sun, supra, at paragraph 26. [17] The open court principle applies to youth court proceedings but is subject to number of important statutory exceptions, in the way of enhanced procedural protections which ensure young persons are treated fairly and their rights, including the right to privacy, are protected: YCJA s. 3(1)(b)(iii). The Supreme Court of Canada in Re F.N., 2000 SCC 35 (CanLII), [2000] S.C.J. No. 34, commented on this as it pertained to the Young Offenders Act (many relevant provisions of which have been reproduced in the Youth Criminal Justice Act). At paragraph 10, Justice Binnie noted: It is an important constitutional rule that the courts be open to the public and that their proceedings be accessible to all those who may have an interest. To this principle there are number of important exceptions where the public interest in confidentiality outweighs the public interest in openness. This balance is dealt with explicitly in the relevant provisions of the Young Offenders Act, which may be interpreted in light of the Declaration of Principle set out in s. 3. [18] The Supreme Court of Canada acknowledges that these competing objectives are inherent in the scheme of the Act itself and that balancing is required. On the one hand there is the need for confidentiality to protect the identity of the youth so that stigmatization or premature labeling does not interfere with rehabilitation. On the other hand the youth court is open to the public and its proceedings are properly subject to public scrutiny. The legislation attempts to protect the privacy interests through the non-publication provisions, the restrictions on access to records and judicial discretion to exclude members of the public from proceedings if such exclusion is necessary to prevent serious risk to the proper administration of justice and it can be shown that the benefits of the exclusion order outweigh its negative effects on the rights and interests of the parties and the public: YCJA ss. 110, 119 and 132. [19] The public and the media have right to attend any court proceedings subject to the discretion of the court to exclude them. The burden of displacing the general rule of openness lies on the party making the application. The test to be applied, commonly referred to as the ‘Dagenais/Mentuck test’ as developed by the Supreme Court of Canada, requires balancing of competing interests, that is, freedom of expression and other important right and interests: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] S.C.R. 835; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] S.C.R. 480; R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.R. 442; and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] S.C.R. 522. [20] The two-pronged Dagenais/Mentuck test is as follows: (1) Is such an order necessary in order to prevent serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (2) Do the salutary effects of the order, outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to fair and public trial and the efficacy of the administration of justice: Mentuck, supra, at para. [21] The Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, under statute (as is the case here) or under rules of court. Public access will be barred only when court, in its judicial discretion concludes that disclosure “would subvert the ends of justice or unduly impair its proper administration”. party seeking to limit public access to legal proceedings must rely on more than general assertion that publicity would compromise” the proceeding or procedures related to it. In particular, the ‘risk’ addressed in the first prong of the analysis must be ‘real, substantial and well grounded in the evidence’, persuading the Court that there is ‘serious danger to be avoided’: Toronto Star Newspaper Ltd. V. Ontario 2005 SCC 41 (CanLII), [2005] S.C.J. No. 41 at para. and 9; Re: Vancouver Sun at para. [22] Though applicable at every stage of the judicial process, the Dagenais/Mentuck test must be applied in flexible manner, and regard must be had to the circumstances in which order is requested: Toronto Star Newspaper Ltd. v. Ontario, supra at para. 8. [23] Judges should expect to be presented with evidence credible on its face of the anticipated risks that an open inquiry would present, including evidence of the information expected to be revealed by the witness. “Even though the evidence may reveal little more than reasonable expectations, this is often all that can be expected at that stage of the process and the presiding judge, applying the Dagenais/Mentuck test in contextual manner, would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice”:Re: Vancouver Sun, supra at para. 31. [24] Evidence, in my view, can be by way of affidavit, viva voce testimony, including hearsay R. v. F.P. [1997] No. 285) or with agreement, by representations of counsel. [25] In Re Southam Inc. And The Queen (1984), 1984 CanLII 2169 (ON SC), 14 D.L.R. (4th) 683 (Ont.H.C.); affirmed 1986 CanLII 2859 (ON CA), 26 D.L.R. (4th) 479 (Ont.C.A.); leave to appeal refused May 22, 1986 (S.C.C.), decision which upheld the constitutionality of s. 39(1) of the Young Offenders Act, the precursor to s. 132 of the YCJA, one of the issues identified was the need to balance two conflicting public interests, freedom of expression, including freedom of the press, on the one hand, and the interest of society in the manner in which young persons in trouble with the law are dealt with on the other: On the first, it must be accepted that freedom of the press requires that, in all but exceptional circumstances, our courts be freely accessible to all members of the public. This concept has been pillar of our law for long time. On the other hand, it must be accepted that society’s interest is broad concept and includes the impact of the criminal justice system on youthful offenders and the resulting interface between the family and all members of the public. Re Southam Inc. and the Queen (Ont. H.C.) supra at page 688. And in the end, the court concluded that, ...the interests of society in the protection and rehabilitation of young people involved in youth court proceedings is value of such superordinate importance that it justifies the discretion given to youth court judge under s. 39(1)(a) [of the Young Offenders Act, now s. 132 of the Youth Criminal Justice Act]. Section 39(1)(a) is, in my view, reasonable limitation on freedom of expression including freedom of the press: Re Southam Inc. supra at page 705. [26] These two competing principles can also be found in the Preamble to the YCJA and in the Declaration of Principles in section of the YCJA: WHEREAS information about youth justice, youth crime and the effectiveness of measures taken to address youth crime should be publicly available; Declaration of Principle s. 3(1) The following principles apply in this Act: ... (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: ... (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (d) special considerations apply in respect of proceedings against young persons and, in particular,... (I) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [27] Conferencing is new tool under the YCJA. It can be utilized in variety of ways, by variety of persons for variety of reasons. The Act permits conferences to be called by the judge, the provincial director, police officer, justice of the peace, prosecutor or youth worker. Its mandate may be, among other things to give advice on appropriate extrajudicial measures, conditions for release, and sentences. Conferencing can be “available as tool for Youth Courts to delve into the reasons for offending and the best measure available to reduce offending behaviour and rehabilitate young people”: R. v. M.(B.) [2003] [28] Nova Scotia has established rules for convening and conducting conferences but those rules do not apply to conferences convened by youth justice judge. It is worth noting however that those rules do provide that participants to the conference are advised that information and records discussed during the conference are confidential: NS Department of Justice, Correctional Services Policy and Procedures No. issued April 1, 2003 and revised August 1, 2003. [29] This case, however, concerns court convened pre-sentencing conference. The purpose of the conference is to provide recommendations on sentence for T.C. This court is mandated to consider any recommendations or other representations made by the participants. This leads me to the inescapable conclusion that the conference is part of the court process just as, for example, the preparation of pre-sentence report is part of the court process. [30] In my view, conference is not always public proceeding. For example, as above, Correctional Services Policy and Procedures for convening conferences and conducting conferences could lead one to conclude that confidentiality concerns may well dictate that those conferences be conducted in private. It seems to me however, that when a judge attends a court convened conference, receives input and recommendations from various parties, and is mandated to consider them during the course of deliberations in arriving at an appropriate youth sentence, it is, prima facie, a public proceeding. [31] also agree with comments of Professor Bala YCJ Law (Irwin Law, 2003) cited at para 48 of R. v. M.(B.), supra: If youth justice court judge convenes and presides over conference under section 41, it will be held as part of the sentencing process. In this situation, the participants in the conference are technically not witnesses who are subject to cross-examination by counsel, although there may be dialogue involving the judge, lawyers, and members of the conference. If conference is attended by the judge, record of the proceedings should be kept and may be used by the judge for the purposes of making decisions about the youth. The judicially convened conference is intended to bring the community and the court together and requires trust and cooperation between members of the community and the [32] Public and media attendance at this court convened conference, is nonetheless subject to judicial discretion to exclude members of the public and the media pursuant to s. 132 of the YCJA. The power to order exclusion of the public from this proceeding is recognized to be an extraordinary remedy and great care must be exercised in deciding whether to use this discretion. The open court principle is not absolute. It is subject to the considerations set out in s. 132 and in the Dagenais/Mentuck test. The question becomes one of whether the various considerations weigh in favor of an exclusion order. Put another way, does the evidence before the court rebut the open court principle and support an order pursuant to s. 132 of the Act. [33] It must be made clear at the outset that the request for an exclusion order relates only to the conference itself. The sentencing hearing will be held in open court and the public and the media will have right to attend. Any recommendations flowing from the conference will be stated on the record in open court. will consider those recommendations and give reasons for either accepting or rejecting any recommendations made. [34] This conference can aptly be described as professional case conference. Invitees are members of the mental health and child welfare community who have voluntarily agreed to come together in one room, with the consent of T.C. to discuss issues relating to T.C., issues involving unique and incredibly intimate details of her life including her mental health, her challenging behaviour and in particular, her involvement with psychiatrists, psychologists and therapists. This is all extremely personal, private and confidential information, details of the kind often found in s. 34 assessment reports, which of course are subject to procedural protection under the YCJA. [35] The benefit of conference is that all professionals are able to come together in one room, share opinions and experiences as they relate to T.C. with view to arriving at recommendations that take holistic multi-disciplinary approach. These professionals have specific knowledge and experience with T.C. They are able to advise the court on complex personal issues that plague T.C., the attempts that have been made to address those issues in both the child welfare and the mental health context. Hopefully they will be able to advise the court as to what alternatives are available that are likely to meet the needs of T.C. and get at the root causes of her offending. This approach, combining the expertise of professionals in the fields of health, child welfare, education and justice, using restorative approach may be the best means available to assist the court in determining an appropriate sentence which addresses T.C.’s rehabilitation. [36] In my experience, having attended number of these conferences in the past, the information shared is of highly confidential nature. Both the consent and the cooperation of the young person is necessary in order for conference to be successful. Conferences involve very frank and open discussion and encourage the participation of the young person to ‘buy into the process’ and feel like he/she is part of the solution and not just part of the problem. Evidence in Support of the s. 132 Application: [37] Counsel for the young person has made application under s. 132 of the YCJA requesting that the court exclude the public and the media from the pre-sentencing conference scheduled for December 11, 2006. The crown and counsel on behalf of the Minister join in that application. [38] Ms. Longley, counsel on behalf of T.C. advises that T.C. consents to the disclosure, the sharing and the discussion of her confidential information amongst conference participants only. In other words, her consent to sharing otherwise confidential information is contingent upon the conference being closed to the public and the media. This information, received by way of representations of counsel, as opposed to viva voce or affidavit evidence is nonetheless compelling. Ms. Longley is agent for T.C. and is conveying her client’s instructions to the court. It may not be evidence, in the pure sense of the word but it is credible and compelling, worthy of considerable weight. [39] Counsel have determined that the list of invited attendees includes Denise Porelle, Ann Bond, Mona Bordage, Lynn Brogan and Leonard Doiron, all of whom are social workers from the Department of Community Services. They have been providing child welfare services for T.C. since 1999. Three individuals from T.C.’s most recent placement at [a group home] will attend as well. They include Jackie Woodford, supervisor, [group home worker], Kim Nicolaou, Youth Care Worker, and Dawn Hall, Clinical Social Worker. Dr. Carolyn Humpheys, psychologist who provided therapy to the young person will attend as will Dr. Suzanne Zinck, child and adolescent psychiatrist, I.W.K. Health Services, who is T.C.’s treating psychiatrist will likewise be attending. Dr. Ruth Carter, Director of Provincial Child and Youth Forensic Services, I.W.K. Health Centre has been invited to attend as has Sherry Bernard, probation officer tasked with preparing the pre-sentence report in relation to T.C.. [40] The crown called Denise Porelle to give viva voce evidence in support of the s. 132 application. Ms. Porelle is social worker who has been employed with the Department of Community Services for the past 18 years. Initially ‘long term protection worker’ with the […] District Office of the Department of Community Services, Ms. Porelle has, for the last 10 years, been ‘children in care worker’. Ms. Porelle testified that she has known T.C. since July 2005. She worked with T.C. from July to October 2005 and again from June 2006 to the present. [41] Ms. Porelle testified that if the media were to attend the conference she, and others from the Department would not be able to speak openly about their involvement with the child due to reasons of confidentiality. She indicated for example there would be lot of detail of the relationship with T.C. that she would not be at liberty to disclose. She was of the view that she was bound by policies relating to confidentiality which pertain to her as social worker. She indicated that those same policies would apply to her supervisors. [42] Ms. Porelle indicated that she has personal knowledge of T.C.’s residence at [the group home], place designated for young women with emotional and behaviourial issues. The care giver [group home] was required to sign confidentiality agreement which extends to all third parties except doctors and psychologists or to those whom consent has been given by the Department of Community Services. [43] Further Ms. Porelle testified that she spoke recently with Dr. Suzanne Zinck, who advised her that she, Dr. Zinck would not be able to participate in the conference if the media were present. It was Ms. Porelle’s impression that Dr. Zinck felt it would be ‘highly inappropriate’ for her to attend under those circumstances because of confidentiality concerns and rules with respect to same under her governing body. [44] Aside from confidentiality concerns, Ms. Porelle testified that as T.C.’s guardian, the Department have right to protect children in care from divulging information that could be harmful. As further aside, but perhaps relevant, is that Ms. Porelle stated that T.C. has not responded well to ‘things in the paper already’. [45] Ms. Porelle admitted that she has testified in court despite confidentiality policies, agreements or legislation but was not at all sure whether, even with the judge’s prompting, she would volunteer the same information at conference where her attendance and her participation were entirely voluntary. [46] To summarize the evidence: (1) T.C. does not consent to sharing her personal and confidential information at the conference if the conference is open to the public and the media; (2) Denise Porelle, her colleagues and supervisors are bound by policies of confidentiality relating to T.C. and are unable to divulge much information relating to T.C. in public forum and without T.C.’s consent. (3) The care giver [group home] has signed confidentiality agreement with the Department of Community Services relating to T.C. and they are bound by the terms of that agreement. (4) Dr. Suzanne Zinck, through Denise Porelle, has indicated that if the media attend the conference she will not be able to participate. [47] As indicated above, the court can receive evidence in variety of forms, including viva voce and affidavit evidence. The court requires credible evidence of the anticipated risks that an open inquiry would present. The evidentiary burden at this stage of proceedings is by no means proof beyond reasonable doubt. am guided by the case law that says may rely on evidence that reveals what is reasonably expected by way of anticipated information sharing. find Ms. Porelle’s evidence credible and compelling. There is no reason why should not rely on it. [48] remind myself of the context in which the anticipated information is to be shared. The conference is voluntary process. Attendance and participation is optional. The court has no power to order the attendance of anyone (except the young person and the parent). The court has no power to subpoena anyone to attend or to testify. Again the conference is an informal tool of the YCJA predicated on the need for consent and cooperation. It is not court hearing. [49] Counsel for the Minister of Community Services argues that public policy issues regarding children in care of child protection agency are an important consideration as well, as set out in the Children and Family Services Act (CFSA). He cites decision of the Honourable Judge David R. Hubley of the Family Court for the Province of Nova Scotia wherein he relied on s. 93 of the CFSA to exclude representative of the Chronicle-Herald newspaper form the secure treatment hearing held respecting this same young person on November 21, 2006. Though agree with Ms. Rubin, counsel on behalf of the Herald that the CFSA is not applicable here, it does highlight the ever present need to be mindful of the sensitive nature of information and the privacy rights of the child. [50] Counsel for the Minister also asks this court to take judicial notice of ss. 26 and 27 of the Freedom of Information and Protection of Privacy Act which govern the conduct of representatives from the Department of Community Services. Those sections prohibit the disclosure of personal information regarding young persons by department officials without the young person’s consent. have reviewed those provisions and nowhere does it allow for the voluntary sharing of information in forum such as conference without the young person’s consent. Section 27(e) provides for the disclosure of personal information for the purpose of complying with subpoena, warrant, summons or order issued or made by court...with jurisdiction to compel the production of information. This explains why Ms. Porelle is able to divulge such information under oath but not in conference setting, without the consent of the young person. With respect, can not accept Ms. Rubin’s argument that the Freedom of Information and Protection of Privacy Act does not include the subject matter of this application. Nor can conclude, given the very clear language of ss. 26 and 27 that disclosure of this information is possible under s. 31(1) as being in the public interest. [51] The very real distinction must be made here between the legal obligation to testify in court under oath and the voluntary participation in conference. There are significant legal implications that flow with respect to confidentiality in the voluntary conference setting. [52] take judicial notice of the fact that doctors too are bound by professional oaths that limit their ability to share confidential information about their doctor-patient relationships. This is evidenced by Dr. Zinck’s choice not to attend the conference if the media is present. [53] In assessing the evidence am to apply the Dagenais/Mentuck test in contextual manner and am entitled to issue s. 132 ban if am satisfied that publicity would unduly impair the proper administration of justice. Application of s. 132 of the YCJA: [54] Under the first prong of the test set out in s. 132 am to determine whether the presence of the public and the media is unnecessary to the conduct of proceedings. Ms. Rubin would have the court interpret the term ‘unnecessary’ broadly and conclude that, to the contrary, the media’s presence is vital to the process so as to ensure the process is open, transparent and accountable. [55] Counsel for both the crown and the young person argue that the presence of the public and the media is in no way necessary to further the process. They suggest that the public’s right to know what takes place at the conference does not make them necessary to the conduct of proceedings. [56] also agree with the view expressed by counsel on behalf of the Minister that if the media and others are deemed necessary to hold the conference, their attendance would always be necessary and the court should not accept the position taken by the media which amounts to ‘self-designated necessity’. [57] Although agree with Ms. Rubin that the issue is rooted in ‘need’ take the view that the plain meaning of the word unnecessary be applied in narrow context. In other words, is the public and the media unnecessary in the sense that they have nothing to offer, by way of recommendations or input at the conference convened to assist the court in imposing sentence. If we were to construe the provision more broadly than that we could be implying that the public’s presence is always necessary and party would not be able to satisfy the first prong of the test. [58] conclude that the presence of the public and the media at the conference is unnecessary to the conduct of proceedings as anticipated. [59] The second prong of the test requires that also consider whether the information presented to the court at the conference would be seriously injurious or seriously prejudicial to the young person or that it would be in the interest of the proper administration of justice to exclude any or all members of the public from the court room. [60] Ms. Longley submits that there may be safety issues relating to her client if the public, including the media know where she lives or knows what medication she takes. find that there is no evidence to support this position. It is speculation at best, the kind of thing that was rejected in R. v. Quintal [2003] ABPC 79 and Toronto Star Newspapers Ltd v. Ontario, supra. [61] Mr. McVey, on behalf of the Minister, makes valid point though. There seems to be little doubt that treatment issues and needs will be at the heart of this conference. If invitees are unwilling to attend or are unwilling to participate in meaningful way, in the presence of the public and the media, this does directly affect T.C.’s s. 11(d) Charter right to fair hearing because all the necessary information will not be before the Court. This could prove to be seriously prejudicial if the avenue for fruitful discussion were foreclosed. This argument though could better be advanced in terms of the proper administration of justice component in the second prong of the test. am not convinced that information to be presented to the court will be seriously injurious or seriously prejudicial to T.C. [62] The remaining point is whether it is in the interests of the proper administration of justice to exclude any or all members of the public from the conference. It is at this juncture that must turn my mind to the Dagenais/Mentuck test and apply it to s. 132 of the YCJA. must consider whether an exclusion order is necessary to prevent serious risk to the proper administration of justice because other reasonable alternatives will not prevent the risk and if so, then determine whether the positive effects of such an order would outweigh the negative consequences of restricting the public’s right to freedom of the press, to the accused’s right to fair trial and to the efficacy of justice. [63] The crown and defence argue that the public and the media are not privy to other information gathering processes (such as those which go into the preparation of pre-sentence reports and assessment reports) so why should they be privy to the information gathering that occurs at conference. Both are nonetheless part of the court process. am of the view that more than this is required in order to justify exclusion. have to weigh and balance the competing interests in my exercise of judicial discretion. [64] The administration of justice is furthered by obtaining the best possible information from those identified as best able to provide it so that recommendations will be produced which will lead to the best result (sentence) possible. ask myself how is that best to be accomplished in circumstances which require the voluntary involvement of professionals, many of whom are bound by confidentiality agreements, codes of conduct or legislation, who are permitted to share such information, by consent of the young person, only with other conference invited attendees. It has been suggested that under the glare of public scrutiny people would be reticent to participate. view the evidence as being much stronger than that. Confidentiality concerns expressed by professionals will likely prevent many from participating in any meaningful way. [65] This conferencing tool, in these circumstances, is used as part of unique and delicate process to gather information not otherwise available to the Court. It provides an excellent opportunity for all professionals to put their collective heads together and attempt to arrive at solution in the way of recommendations to the court for sentencing of T.C. The fear expressed by counsel on behalf of the Minister that “the conferencing tool will wilt on the vine” if open to the public and the media, is very real and well-grounded concern. We are faced with the very real probability that professionals will either bow out of the process altogether or they will not participate in the process in any meaningful way. That is the reality of the situation. [66] Counsel for the media suggests that this is simply fear-mongering on the part of the crown, the defence and the Minister and that the court should not be convinced to close the process simply because confidential and embarrassing information may be the subject of disclosure. They cite R. v. V.(J.W.) [2003] BCPC 234 and say even though potentially confidential and embarrassing information was going to be presented at transfer hearing, the judge in that case, nonetheless, ordered that the hearing be open to the public. But that was hearing, where witnesses were compelled to testify. This is conference. The Court can not compel professionals to participate. [67] The media also relies on R. v. A.A.B. [2006] NSPC 16 and R. v. R.D.S (Re Halifax Herald Ltd.) [1995] NSJ No. 207, both of which related to requests for “records”after the completion of youth court proceeding. In A.A.B. there was an attempt to ban access to records, some of which enjoyed the protection of the YCJA and others which did not. At pars. 14 and 17 Judge Burrill stated, in part: am not persuaded, after having carefully reviewed the contents of all exhibits in question, that there is any information contained therein that would harm A.B.’s rehabilitative prospects. Much information contained in the reports has already been placed in the public domain during the sentencing hearing. ...all of the exhibits which are the subject of this application are, however, inextricably linked and meaningful review of one can not occur without reference to the others. As result, in relation to exhibits and 10, grant an order pursuant to s. 119(1)(s) that will permit an accredited member of the media access to those exhibits because on the unique facts of this case find that it is desirable in the interest of the proper administration of justice that media be permitted access. [Emphasis added]. [68] In R.D.S., supra, the media requested an order for certiorari to quash the decision of the youth court judge denying the media access to the tape of proceedings of youth court matter. The information requested was the tape of proceedings, containing information already released in open court. The judge had imposed complete publication ban on an open court proceeding after proceedings were over. In granting the application for certiorari and an order for mandamus, the Supreme Court nonetheless imposed condition that the name of the young person and any other information that tended to identify him was not to be published. [69] Both of these cases are distinguishable. In both instances the media sought access to records which had already been the subject-matter of proceedings in open court. Here access is being sought to process which has yet to produce any information or record. And there is very real risk that should the public and the media be permitted to attend this process, the process itself will be rendered useless and will fail to produce any meaningful information or record. CONCLUSION: [70] comment was made by counsel on behalf of the media to the effect that it is not appropriate for conference to hinge on the cooperation of young person. The reality, however, is that it does just that. It also hinges on the cooperation of all others who have vital interest and role in the conference. [71] Going back to the Dagenais/Mentuck test, conclude, based on the foregoing, that an exclusion order is necessary to prevent serious risk to the administration of justice. There will be serious, real and imminent risks to the administration of justice if this conference is open because it will not produce the desired results. [72] There are no alternative measures which could prevent or reduce the risk of non-participation by the invitees to the conference. ban on the publication of the identity of the young person and the protection of record provisions in the YCJA do nothing to comfort or protect professionals bound by legal and ethical obligations related to confidentiality. [73] If the Court had the power to order attendance and order participation by way of subpoena wonder whether, even under those circumstances, we would be able to achieve the desired results. suspect there would not be the same spirit of cooperation or forum that encouraged frank and open dialogue amongst the participants. [74] The benefits of an exclusion order, obtaining vital information and recommendations needed to assist the court in arriving at a determination on sentencing, outweighs the deleterious effect of restricting the public’s right to freedom of expression and freedom of the press. There is no concern that such an order would detrimentally affect T.C.’s fair trial interests. In fact, an exclusion order will likely ensure that the best possible information is before the Court. [75] This is one of those rare circumstances in which an exclusion order is necessary to prevent serious risk to the administration of justice and the benefits of the order outweigh its drawbacks. This is in my view, reasonable limit on the open court principle, all things considered. [76] An order is granted pursuant to s. 132 of the YCJA excluding the public and the media from the pre-sentencing conference in relation to T.C. scheduled for December 11, 2006.","A young person who suffered from considerable mental health issues and was in the permanent care of the Minister of Community Services applied to have the court exclude the public and the media from her court convened pre- sentencing conference. The purpose of the conference was to assemble various professionals from diverse fields to discuss the complex issues surrounding the young person and to provide recommendations to the court as to an appropriate sentence. Various of the professionals had expressed their concern as to their ability to participate in the conference if the media was present. Application for access by the media denied; order granted excluding the public and the media from the pre-sentencing conference; the benefits of an exclusion order outweigh the deleterious effect of restricting the public's right to freedom of expression and the freedom of the press. Although the court convened hearing is a public proceeding to which, prima facie, the open court principle applies, the attendance, cooperation and participation of the invitees to the conference (all professionals who were bound by laws, policies and agreements of confidentiality) was strictly voluntary and many, if not all, would be unable and unwilling to participate in a conference that was open to the public and the media. The administration of justice was furthered by the court obtaining the best possible information from those identified as best able to provide it so that recommendations flowing from the conference would lead to the best sentence for the youth. There were no alternative measures which would prevent or reduce the risk of non-participation by the professionals.",7_2006nspc61.txt
76,"J. Q.B.G. A.D. 1998 No. 78 J.C.B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: MYRON WETZSTEIN, SHERRY WETZSTEIN, WAYNE HUDSON, MARY ELLEN HUDSON and GLADYS DOW Plaintiffs/Respondents and LOIS RETA HUDSON Defendant/Applicant Randy T. Klein for Applicant (Lois Hudson) Harvey Neufeld for Respondents/Plaintiffs FIAT KRUEGER J. FEBRUARY 02, 1999 [1] The applicant, Lois Hudson seeks an order declaring that the solicitors for the plaintiffs, Politeski Strilchuk & Milen have breached confidentiality and are in conflict of interest between clients. She asks that they be removed as solicitors of record in this action. [2] In 1995 Neil Hudson, spouse of the applicant, Lois Hudson, with assistance from some of his children, who are now plaintiffs, retained Celine-Rose J. Polischuk of the law firm, Politeski Strilchuk Milen for the purpose of having his wife, Lois Hudson admitted for treatment pursuant to The Mental Health Services Act. At that time Neil Hudson collected some personal letters, records and computer printouts (documents) prepared by Lois Hudson and delivered them to Ms. Polischuk. They were forwarded by her to Peter T. Johnson, Q.C., then solicitor for Lois Hudson. [3] In 1998, the plaintiffs, some of whom are children or spouses of children of Lois Hudson commenced defamation action against her. The documents are material in the present litigation. The same information as contained in the documents, although perhaps in some other form, was available to the plaintiffs from other sources. 1. What was the relationship between Lois Hudson and the law firm of Politeski Strilchuk Milen when the documents were delivered to them? 2. If solicitor-client relationship did not exist what duty, if any, was owed to Lois Hudson? [4] There can be no doubt that if solicitor-client relationship existed between Lois Hudson and Celine-Rose J. Polischuk when she received the confidential documents from Neil Hudson she owed duty to Lois Hudson. Unless otherwise satisfied the court would, in those circumstances, infer that all lawyers working with Ms. Polischuk shared her confidences. Her affidavit to the effect that she did not discuss with or reveal to other members of the firm the contents of the documents is not sufficient to satisfy the public requirement that there be no appearance of breach of confidentiality. See McDonald Estate v. Martin (1990), 1990 CanLII 32 (SCC), S.C.R. 1235 (S.C.C.). [5] No explanation was provided as to why Neil Hudson delivered the documents to Celine-Rose J. Polischuk or in what capacity she took delivery of them. The position of Lois Hudson is that fiduciary relationship was created between her and Ms. Polischuk when the documents were accepted. That relationship was close enough to solicitor-client retainer to give rise to need for confidentiality. Because the documents contained confidential information, it was submitted that the public’s confidence in the administration of justice would be undermined if any member of the law firm were now allowed to act for the plaintiffs. [6] Counsel for the plaintiffs took the position that no solicitor-client relationship existed and, therefore, Chapters IV and of the Code of Professional Conduct have no application. No breach of solicitor client confidentiality took place and no conflict of interest as between clients exists. [7] The Politeski Strilchuk Milen law firm acted for Neil Hudson in 1995. His interests were then adverse to those of Lois Hudson who had her own lawyer. Whatever documents Neil Hudson delivered to his lawyer in 1995 were not needed to support his legal proceedings. They were sent to Lois Hudson’s lawyer. Neil Hudson now supports his wife in the defence of the present action brought by the plaintiffs. He is not, however, party to that action. I do not accept the assertion by Neil Hudson that the documents were delivered to Ms. Polischuk for safekeeping. No instructions were given to that effect and at the time there was no need to keep the information confidential. [8] The freedom of litigants to counsel of their own choosing must be weighed against the high standards required of the legal profession. In the circumstances of this case, am satisfied that no duty was owed to Lois Hudson by Ms. Polischuk when she accepted delivery of documents from her client, Neil Hudson. I am unable to conclude that in delivering the documents, Neil Hudson was acting as an agent for or on behalf of his wife, Lois Hudson. At that time no duty was owed by the solicitors to anyone other than Neil Hudson. He did not give any instructions and as the documents were not required in the proceedings then underway, they were forwarded to the lawyer for Lois Hudson. [9] In my view no solicitor-client relationship was created between Ms. Polischuk and Lois Hudson when, what proved to be confidential documents, were received by her from Neil Hudson. Ms. Polishuk was not required to take any action or to refrain from doing anything. It cannot, therefore, be said that any breach of confidentiality occurred or conflict of interest arose as contemplated by Chapters IV and V of the Code of Professional Conduct. [10] Nor am I able to conclude that any fiduciary duty was owed to Lois Hudson resulting from the acceptance by Ms. Polischuk of documents from Neil Hudson. Whatever duty was owed by her was to Neil Hudson. The fact that Neil Hudson now supports his wife in her defence of the action brought by the plaintiffs does not, in my opinion, change the situation that existed in 1995. To extend the confidentiality of solicitor-client relationships to the circumstances of this case would, in my view, lead to unreasonable results. [11] Since no solicitor-client relationship and no other duty was owed by Ms. Polischuk to Lois Hudson, none existed relating to the law firm which she is a member of. [12] The application is dismissed with costs to the plaintiffs.","FIAT. The applicant sought a declaration that the plaintiffs' solicitors had breached confidentiality and were in a conflict of interest and asked that they be removed as solicitors of record in this action. The applicant's husband had given her personal letters, records and documents to his solicitor in 1995. These documents were relevant to a defamation action brought by her children or their spouses. The applicant argued that a fiduciary relationship was created when the documents were accepted which was close enough to a solicitor-client retainer to give rise to a need for confidentiality and that the public's confidence in the administration of justice would be undermined if any member of that law firm acted for the plaintiffs. HELD: The application was dismissed with costs to the plaintiffs. No solicitor-client relationship was created between the husband's lawyer and the applicant when the documents were received. There was no breach of confidentiality or conflict of interest as contemplated by Chapters IV and V of the Code of Professional Conduct. No fiduciary duty was owed to the applicant when the solicitor accepted the documents from the applicant's husband. The husband was not acting as agent for his wife nor was it accepted that he delivered the documents for safe keeping. The husband's solicitor had forwarded the documents to the applicant's lawyer. The fact that the husband now supported his wife in the defence of her action did not change the situation that existed in 1995.",8_1999canlii12948.txt
77,"Q.B. A.D. 1997 No. 929 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROYAL BANK OF CANADA PLAINTIFF (DEFENDANT BY COUNTER-CLAIM) and RONALD COMPAIN DEFENDANT (PLAINTIFF BY COUNTER-CLAIM) G.A. Richards for the Royal Bank of Canada G.M. Currie for Ronald Compain JUDGMENT ZARZECZNY J. March 29, 1999 [1] In January of 1993 Ronald Compain (""Mr. Compain"") sustained severe injuries in an automobile accident. As result of these injuries he was unable to work in the construction industry where he was employed prior to the accident. Although his wife Jayne continued to work during his period of disability, Mr. Compain's inability to work resulted in reduction of the family's income, particularly after Saskatchewan Government Insurance (""SGI"") weekly disability benefits were exhausted. [2] The Compain's banked with the plaintiff, Royal Bank of Canada (""Royal Bank""), and at the time of the accident the Compain's were indebted to the Royal Bank under Royal Bank Credit Line and Visa credit card account (the ""Bank Loans""). [3] Mr. and Mrs. Compain had other debts and while Mr. Compain was receiving the proceeds of SGI weekly disability benefits they maintained their various loans including the Bank Loans in good standing. After the weekly SGI disability benefits were terminated, the Bank Loans fell into default. The Royal Bank reported the particulars of these loan defaults to Equifax Canada (""Equifax""), credit reporting agency. [4] As result of negotiations between the solicitors for the Royal Bank and the Compains, the Royal Bank agreed to defer commencement of any action with respect to the defaulted Bank Loans until such time as Mr. Compain received an accident injury settlement from SGI. The Royal Bank requested a written assignment of those settlement proceeds, however, Mr. Compain declined to give an assignment. [5] Mr. Compain received his settlement. He had in the meantime, however, become aware of the Equifax credit report and through his solicitor insisted that the Royal Bank direct Equifax to eliminate any references to Mr. Compain's default or delinquency upon the Bank Loans. The Royal Bank replied that the were unable to direct Equifax to do so, however, they were in a position to require Equifax to put an explanatory note on their credit report confirming that the arrears and default were generated as a result of Mr. Compain's automobile accident, that he had undertaken to pay the Royal Bank from the proceeds of the accident settlement and once the loans were paid out that Mr. Compain had complied with his undertaking to the Royal Bank and settled his debt. [6] This was not acceptable to Mr. Compain with the result that he refused to pay his loans. The Royal Bank commenced this legal action for payment. The Compain's defended and counter-claimed against the Royal Bank for breach of the bank's duty of good faith, duty of confidentiality and by an amendment application made at trial, and allowed by this judgment, breach of contract. [7] At trial the Royal Bank's claim was admitted leaving to be tried the matter of the Compain's counter-claim against the Royal Bank for general, punitive, exemplary and aggravated damages. ISSUES 1. Did the Royal Bank of Canada breach its lending contract, its fiduciary duty or its duty of confidentiality to Ronald Compain? 2. If the Royal Bank of Canada is found liable for a breach of contract, fiduciary duty or duty of confidentiality what damages, if any, are appropriately awarded against the Royal Bank in favour of Mr. Compain? [8] Counsel for Mr. Compain asserted that it was breach of the Royal Bank's duty of confidentiality to Mr. Compain for it to have released to Equifax the information that it did. [9] It has been generally accepted that the contract between bank and its customer includes an implied term prohibiting the bank from disclosing information concerning the customer's financial affairs. (See: Canadian Imperial Bank of Commerce v. Sayani, 1993 CanLII 937 (BC CA), [1994] W.W.R. 260 (B.C.C.A.); Murano v. Bank of Montreal (1995), 1995 CanLII 7410 (ON SC), 31 C.B.R. (3d) (Ont. C.J.), affm. (1998), 1998 CanLII 5633 (ON CA), 163 D.L.R. (4th) 21 (Ont. C.A.)) These cases and cases similar adopt and follow the principles outlined by the English Court of Appeal in the case of Tournier v. National Provincial Union Bank (1921) K.B. 461 (C.A.) wherein Bankes L.J. at p. 473 enumerated four exceptions to the confidentiality obligation of the bank to its customers, namely: (a) Where disclosure is under compulsion by law; (b) Where there is duty to the public to disclose; (c) Where the interests of the bank require disclosure; (d) Where the disclosure is made by the express or implied consent of the customer. [Emphasis added] [10] During the cross-examination of Mr. Compain at trial, counsel for the Royal Bank produced the personal credit line agreement signed by both Mr. and Mrs. Compain May 30, 1990, when they applied for the credit line. Paragraph of that agreement under the heading CREDIT INFORMATION provides as follows: CREDIT INFORMATION: authorize and consent to the receipt and exchange of credit information about me by you from time to time, including the sharing and exchange of credit information about me with any credit reporting agency and credit bureau or any person or corporation with whom have or may have financial relations. [11] Although there was some argument as to whether or not this or some other credit agreement formed the basis for the credit and loan presently sued upon, no other credit agreement was produced by either party to suggest that an agreement other than the one referred to and marked as Exhibit P-3 existed. [12] have concluded that it was this credit line agreement which formed the basis of the agreement between Mr. and Mrs. Compain and the Royal Bank. Paragraph of the clause quoted clearly meets the ""express or implied consent of the customer"" enumerated exception in the Tournier case (whose principles were adopted in Canada in the CIBC and Murano cases). [13] I conclude that Mr. Compain expressly waived any contractual rights which he impliedly had to confidentiality of his credit information. By the provisions of paragraph 8 of the Personal Credit Line Agreement he authorized the Royal Bank to release to Equifax the information which it did. This part of Mr. Compain's claim against the Royal Bank is dismissed. [14] In the alternative, Mr. Compain claims that even if the Royal Bank was authorized to release credit information to Equifax nevertheless the information as it was reported by the Royal Bank to Equifax and as it was subsequently reported by Equifax in its credit report breached the Royal Bank's contractual or otherwise legal duty to him of fairness and/or good faith. These arguments were based upon the principles established by the cases of Warrington v. Great-West Life Assurance Co., 1995 CanLII 16126 (BC SC), [1995] W.W.R. 428 (B.C.S.C.); Frederikson v. I.C.B.C., 1990 CanLII 3814 (BC SC), [1990] W.W.R. 637 (B.C.S.C.); Shea v. Manitoba Public Insurance Corp. (1991), 1991 CanLII 616 (BC SC), 55 B.C.L.R. (2d) 15 (B.C.S.C.); Adams v. Confederation Life Insurance Co., 1994 CanLII 9244 (AB QB), [1994] W.W.R. 662 (Alta Q.B.); and Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] S.C.R. 701. [15] The bulk of these cases deal with the issue of implied or express contractual or fiduciary obligations of insurance companies to their insureds (excepting for the Wallace case which deals with the question of an employer's obligation to an employee in the context of dismissal). Nevertheless, counsel argued that the principles established by these cases applied, by analogy, to the relationship between bank and its borrowing customer. [16] am not satisfied that the analogy is complete or indeed even appropriate as suggested by counsel for Mr. Compain. Assuming, without deciding the point, that banks, much like an insurance company dealing with insureds, do have a duty of good faith and fair dealing towards their customers, I nevertheless conclude, based upon the facts and evidence proven at trial, that the Royal Bank did not breach such duties in their dealings with Mr. Compain. [17] Counsel for Mr. Compain argues that the Royal Bank did not act fairly or in good faith by reporting to Equifax his default or delinquency upon the two loans in all of the circumstances. He argues that the Royal Bank was well aware of his inability to work as result of his accident injuries and his undertaking to pay the loans in full from the accident proceeds. In these circumstances for the Royal Bank to report his default and delinquencies to credit reporting agency constituted bad faith and lack of fair dealing. [18] The Royal Bank argues in reply that all that it did was report an objective state of facts and circumstances to Equifax, namely; that Mr. Compain was in default of his payment obligations on these two loans. As result, in banking terms, the two loans were delinquent. At no time during the discussions between counsel for the Royal Bank and Mr. Compain (nor in any of the exchange of correspondence between them) did the Royal Bank undertake not to make any or its regular reports to Equifax with respect to Mr. Compain nor was such an undertaking ever requested on his behalf. Indeed, there was no suggestion that Mr. Compain was even aware of these reports until at or about the time that he received or expected to receive the accident settlement proceeds. have concluded from all of these facts and circumstances that the Royal Bank did not act in bad faith or in breach of its fiduciary or contractual obligation towards Mr. Compain in making the reports which it did to Equifax. [19] Mr. Compain specifically authorized the Royal Bank to provide credit agencies information with respect to his accounts. That is exactly what the Royal Bank did in this case. The Royal Bank's good faith and fair dealing with Mr. Compain is evidenced by the Royal Bank's acceptance of Mr. Compain's undertaking to pay the Royal Bank from the proceeds of his accident settlement even though the Royal Bank's reasonable request to provide written assignment of those proceeds was rejected by Mr. Compain. The Royal Bank agreed to forebear in its rights to commence legal action upon the loan defaults until such time as Mr. Compain settled his personal injury action. The action of the Royal Bank to enforce payment of these loans was only taken after (and precipitated by) the actions of Mr. Compain in refusing to pay the loans from his accident settlement proceeds except upon unilaterally imposed condition (that the Royal Bank direct Equifax to remove all reference to the loan defaults). This, Royal Bank indicated, it could not compel Equifax to do so. [20] As final gesture of its good faith and fairness the Royal Bank offered to direct Equifax to record certain explanatory comments upon Mr. Compain's credit report. These were proposed in letter sent by the Royal Bank's counsel to Mr. Compain's counsel dated April 24, 1997, (Exhibit P-6) stating as follows: As previously advised, our client is prepared, upon receipt of payment to advise the Credit Bureau/Equifax as follows: (a) That the loans are paid in full; (b) That Mr. Compain advises that his default occurred as result of serious car accident which he suffered and that as initially promised, he paid out the loans in full as soon as he received settlement proceeds from court action relating to his accident. Mr. Compain rejected this proposal. [21] It was further argued on behalf of Mr. Compain that the specific language used by Equifax in reporting upon these loans could be subject to improper interpretation. Since the Royal Bank was the source of the information it acted carelessly or in any event in breach of its duties including contractual, good faith and fair dealing in reporting the state of the loans to Equifax in the terms it did. [22] The credit report was filed as Exhibit D-8 and to illustrate the portions complained of it reports as follows: 603BB01124 Royal Bank (306)933-3635 last reported in 10/96 rating the open account as 09, meaning bad debt, collection account or unable to locate. Balance reported: $7888.... [23] Additional details are provided both in respect of this loan and the further loan containing the same comments (""R9, meaning bad debt, collection account or unable to locate"") and latter comment in error that the credit line was to limit of $10,000.00 (the actual limit was $5,000.00). Mr. Compain complains that the alternate characterization of the defaults as ""a bad debt, collection account or unable to locate"" might reasonably lead anyone to the inference that he ""skipped town"" or otherwise was not good credit risk. [24] No evidence was tendered by the Royal Bank or indeed Mr. Compain to suggest how anyone might have or did read the Equifax credit report if indeed any person did so. [25] When Mr. Compain received his accident settlement he changed bankers and applied for and obtained Visa Gold credit card. He did have some difficulty obtaining second Visa credit card for new business he had established however, with the assistance of his new banker, he did obtain second card as well. There was no suggestion that in the course of either of these new and successful credit card applications any reference was made by his new bankers to the Equifax credit report or, if so, that they had any negative impact upon his credit rating. [26] When one considers carefully the Equifax reports it is clear that an account reported as ""09"" means alternately bad debt, collection account or unable to locate. One or more of these circumstances might be applicable in any case. The characterization of Mr. Compain's accounts as ""collection accounts"" is fair, reasonable and accurate in the circumstances. The accounts were in the hands of both the Royal Bank's internal collection department and referred to its external solicitors for collection. Numerous letters between the Royal Bank's solicitors and Mr. Compain's solicitors respecting these accounts, the default and proposals for payment were exchanged and introduced as exhibits at trial. [27] There was no evidence lead to suggest that the characterization of these loans, as they appeared in the Equifax reports, were out of the normal course of business. It is fair and reasonable inference to be drawn, from all of the facts and circumstances, that persons using and relying upon the Equifax statements would be familiar with the various codes and classifications used to generate the credit report. [28] find no facts or evidence upon which an allegation of breach by the Royal Bank of its contractual obligation, duty of good faith or fair dealings occurred with respect to the nature and manner of the loan reports it issued to Equifax and which were reflected in the Equifax credit report issued. [29] find that the Royal Bank acted fairly and reasonably throughout consistent with its obligations to Mr. Compain and its general banking practices including its report to Equifax as credit reporting agency. [30] In conclusion none of the counter-claimant's claims are upheld and they are dismissed in total. The plaintiff Royal Bank will have its costs against the defendant (plaintiff by counter-claim) both with respect to the claim and counter-claim which, unless agreed, shall be taxed (pursuant to column II of the Court of Queen's Bench tariff of costs). [31] As final comment it should be noted that consistent with the finding in this judgment that the Royal Bank has throughout acted in good faith and in keeping with its contractual and fiduciary obligations towards Mr. Compain it is expected that the Royal Bank will now proceed to request Equifax to place upon Mr. Compain's credit report as appropriate commentary in the spirit of that proposed in its counsel's letter to Mr. Compain's solicitors April 24, 1997.","In issue was whether the Bank breached its lending contract, its fiduciary duty or duty of confidentiality; and if so, what damages, if any, should be awarded. The defendant's bank loans fell into default after SGI disability benefits were terminated. The Bank reported the particulars of the loan defaults to a credit reporting agency (Equifax). The defendant declined to give an assignment of any accident injury settlement he might receive from SGI and requested the bank direct Equifax to eliminate any references to his default or delinquency upon the bank loans. The bank offered to put an explanatory note on their credit report confirming the arrears were the result of the defendant's automobile accident and that he had undertaken to pay the bank from the proceeds of the accident settlement. The bank commenced this action for payment. The Compains sought general, punitive, exemplary and aggravated damages in a counterclaim for breach of the bank's duty of good faith, duty of confidentiality and breach of contract. HELD: The counterclaims were dismissed with taxed costs to the bank for both the claim and counterclaims. The bank's claim was admitted at trial. 1)Compain expressly waived any contractual rights which he had to confidentiality of his credit information by the provisions of paragraph 8 of the Personal Credit Line Agreement. The principles outlined by the English Court of appeal in Tournier enumerated four exceptions to a bank's confidentiality obligation to its customers. 2)The analogy between the insurance cases and a bank and borrowing customer was not complete or appropriate. Assuming, without deciding, that banks do have a duty of good faith and fair dealing towards their customers, the bank did not breach such duties in their dealings in this case. 3)The characterization of the accounts as collection accounts was fair, reasonable and accurate in the circumstances and were not out of the normal course of business.",d_1999canlii12581.txt
78,"NOVA SCOTIA COURT OF APPEAL Citation: 2301072 Nova Scotia Ltd. v. Lienaux, 2007 NSCA Date: 20070112 Docket: CA 271137 Registry: Halifax Between: Charles D. Lienaux and Karen L. Turner-Lienaux v. 2301072 Nova Scotia Limited and Marven C. Block, Q.C. Respondents and The Toronto-Dominion Bank Intervenor Judge: The Honourable Justice Thomas Cromwell in Chambers Application Heard: January 11, 2007, in Halifax, Nova Scotia Held: Leave to amend notice of appeal granted. Counsel: Charles D. Lienaux, for the appellants Gavin Giles, Q.C., for the respondent 2301072 Nova Scotia Ltd. Dufferin R. Harper and Barbara Kerr, Articled Clerk, for the Intervenor Reasons for judgment: [1] The appellants apply for leave to amend their notice of appeal. Leave is required because the notice was filed more than 20 days ago: Rule 62.04(4). The application is opposed by the respondent 2301072 Nova Scotia Limited and the intervenor. As, in my view, their arguments in opposition to the amendment relate to the merits of the point raised by it, those arguments are for panel and not chambers judge to consider. The amendment should be granted but without limiting the responding parties from arguing these points before the panel. [2] The underlying proceeding is an application for leave to appeal and, if granted, an appeal from an order requiring the appellants to post security for costs with respect to certain interlocutory applications in which they will be the moving parties. The appellants wish to add as ground of appeal that the respondent, the plaintiff in the main action, is not “lawful plaintiff” and, therefore, not entitled to security for costs. This point was raised before the chambers judge in the Supreme Court and is referred to in his reasons. The judge ruled that this was “[a]n interesting argument but not one that deserves much consideration whatsoever at this stage”: 2301072 Nova Scotia Limited. v. Lienaux, [2006] N.S.J. No. 328 (S.C.) at para. 19. [3] As noted, the Rules permit the appellants to amend their grounds without leave within 20 days of filing their notice. Had the appellants done so, the arguments advanced in opposition to the amendment would have had to be raised by way of an application to quash this ground of appeal. Such an application would have to have been heard by panel. The fact that leave to amend is now required does not, in my view, permit me, sitting alone in Chambers, to rule on the merits of the point raised by the amendment. That is what am being asked to do by the respondent and the intervenor. [4] The respondent and the intervenor oppose the amendment on three grounds: first, that the allegations of champerty and maintenance that underlie the proposed amendment were not justiciable issues before the chambers judge, were irrelevant to the security for costs application, were not ruled on by the chambers judge and, therefore, should not be raised on appeal; second, that the torts of champerty and maintenance have been all but eliminated by the common law and, therefore, the point raised is bad in law; and third, that the issues of champerty and maintenance are not reasonably necessary to the appellants’ presentation of their appeal. [5] The position advanced by the respondent and the intervenor in opposition to the amendment misconceives, fundamentally, the role of a chambers judge of this Court who is asked to grant leave to amend a notice of appeal. These points each relate to the substantive merit of the arguments the appellants wish to make on appeal if leave to amend the notice of appeal is granted. It is not the role of chambers judge in this Court to rule on the merits of complex legal points such as these. [6] The focus of the chambers judge is generally on the procedural aspects of getting an appeal ready to be heard by panel. With certain exceptions which are not relevant here, chambers judge does not deal with matters that effectively dispose of an appeal. The exceptional cases in which chambers judge does so are generally concerned with procedural or jurisdictional matters, not the merits of the appeal: see, for example, Rules 62.11(d) and 62.17(1)). [7] The merits of an appeal and of arguments to be advanced on appeal are to be heard and determined by panel of the court, not by single judge in chambers. As Saunders, J.A. put it in Lane v. Carsen Group Inc. (2003), 214 N.S.R. 92d) 108; N.S.J. 129 (Q.L.) (C.A. Chambers) at para 7, “[w]hether there is any merit to this or any other ground of appeal is for the panel to decide.” [8] The proposed amendment relates to matter that was raised before the judge of first instance and addressed, if not determined, by him. As for prejudice, my focus must be on the question of whether there is any prejudice to the respondent or the intervenor as result of the appellants raising this issue now by way of amendment rather than in the original notice of appeal. [9] The amendment will not interfere with the date set for filing the appeal book or result in any wasted effort to address the appeal as originally framed. Any prejudice to the respondent or intervenor which may result if the amended ground is found to be without merit is not prejudice which is attributable to the fact that the ground is advanced by way of amendment as opposed to having been included in the original notice of appeal. There is no suggestion of any prejudice in that sense resulting from the amendment. [10] In my view, the amendment is reasonably necessary for the presentation of the appeal and will not occasion prejudice in the sense which is relevant to this application. [11] Leave to amend the notice of appeal is granted. The permitted amendment is to add to the notice of appeal the following ground of appeal: 1. THAT the learned Chambers Judge erred in law when he ruled contrary to the law prohibiting champerty and maintenance that 2301072 Nova Scotia Limited is lawful plaintiff in proceeding S.H. No. 102390. [12] The amended notice of appeal shall be included in the appeal book and leave to amend is granted on the condition that the appeal book be filed, as previously ordered, on or before January 15, 2007. [13] As agreed in chambers, costs of this application will be costs in the cause of the appeal. Cromwell, J.A.","The appellants applied for leave to amend their notice of appeal in regard to an order requiring them to post security for costs with respect to certain interlocutory applications. The application was opposed, inter alia, on the basis that the allegations which underlie the proposed amendment were not justiciable issues before the trial judge, were irrelevant on the application and were not ruled on by the trial judge. Application to amend the notice of appeal allowed; the amendment is reasonably necessary for the presentation of the appeal and will not occasion prejudice to the respondent. The respondent's opposition to the application fundamentally misconceived the role of a chambers judge who is asked to grant leave to amend a notice of appeal. It is not the role of a chambers judge to rule on the substantive merits of the arguments the appellants wish to make. The focus in this situation is on whether there is any prejudice to the respondent as a result of this issue being raised by amendment rather than in the original notice of appeal.",c_2007nsca4.txt
79,"NOVA SCOTIA COURT OF APPEAL Citation: Sydney Steel Corporation v. MacQueen, 2012 NSCA 78 Date: 20120719 Docket: CA 393200 Registry: Halifax Between: Sydney Steel Corporation, body corporate and The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia v. Neila Catherine MacQueen, Joseph M. Petitpas, Ann Marie Ross, and Kathleen Iris Crawford, and The Attorney General of Canada representing Her Majesty the Queen in right of Canada Respondents Judge: The Honourable Justice Joel Fichaud Motion Heard: July 12, 2012, in Halifax, Nova Scotia, in Chambers Held: Motion for stay dismissed with costs of $1,000 in the cause of the appeal Counsel: Agnes E. MacNeil and Alison W. Campbell for the applicants (Appellants) Sydney Steel Corporation and the Attorney General of Nova Scotia Raymond F. Wagner, Michael Dull and Meaghan Gair (student) for the respondents Neila Catherine MacQueen, Joseph M. Petitpas, Ann Marie Ross and Kathleen Iris Crawford Melissa Chan for the Attorney General of Canada Reasons for judgment: [1] The Attorney General of Nova Scotia moves for stay pending the Attorney General’s appeal of certification order in class action. [2] take the background facts from Justice John Murphy’s decision that is under appeal (2011 NSSC 484 (CanLII)). [3] The Sydney Steel Works opened in 1903 and operated coke ovens and steel plant. Ms. MacQueen, Mr. Petitpas, Ms. Ross and Ms. Crawford (“plaintiffs”) owned land and lived near the Steel Works. They claim that the Steel Works’ facilities emitted lead, arsenic, PAH’s and other toxins. They sue in tort and for breach of fiduciary duty, and seek damages for their own exposure and for injury to their property and its value. The lawsuit began in 2004. Some claims against private entities were settled or abandoned. The remaining claims are against the Governments of Nova Scotia and Canada, and relate to the period between 1967 and 2000. From 1968 to 1974, Canada operated the coke ovens and Nova Scotia operated the steel plant. From 1974, Nova Scotia operated both the coke ovens and the steel plant until those facilities closed in 1988 and 2000 respectively. [4] In September 2007, the plaintiffs filed notice seeking certification as common law class proceeding. After the Class Proceedings Act, S.N.S. 2007, c. 28 (Act), came into force, the matter was continued under that Act. [5] Justice Murphy’s decision summarizes the tenor of this lawsuit: [5] During the more than seven years since this proceeding commenced, including while the certification issue has been pending, the scope of the plaintiffs' claim has been substantially reduced. The defendants have not filed notice of defence; pursuant to section 4(6) of the Act they are not required to do so until 45 days after certification order is issued, and the court dismissed plaintiffs' motion seeking earlier filing. Nevertheless, the defendants have demonstrated the intention to dispute all aspects of the claim. motion brought during 2006 to strike claims was considered by this court and by the Court of Appeal, and in written and oral submissions throughout the certification process the defendants repeatedly signalled that every cause of action advanced and remedy sought would be contested. The court has struck out claims for negligence and breach of fiduciary duty in relation to regulation of the Steel Works, and the plaintiffs have decided to narrow the claims, including by reducing the scope of negligence alleged and abandoning pursuit of some remedies, such as compensation for diminution of property value and for personal injuries. The plaintiffs continue to seek medical‑monitoring program to identify and provide information about health risks resulting from defendants' conduct, but they no longer seek damages for individual health problems. [6] Despite the statement of claim being amended approximately nine times, usually to reduce rather than expand the causes of action and remedies sought, the proceeding remains complex, with the most recent consolidated amended statement comprising more than 100 paragraphs, containing allegations of battery, strict liability and nuisance, trespass, negligence and breach of fiduciary duty. [7] The process seeking certification as class action has been complex, vigorously contested, and prolonged. The parties attended case management meetings and brought procedural motions, including defence motion concerning conducting both cross examinations and discovery of affiants, which was ultimately resolved by the Court of Appeal. [6] Section 7(1) of the Act states: Certification by the court (1) The court shall certify proceeding as class proceeding on an application under Section 4, or if, in the opinion of the court, (a) the pleadings disclose or the notice of application discloses cause of action; (b) there is an identifiable class of two or more persons that would be represented by representative party; (c) the claims of the class members raise common issue, whether or not the common issue predominates over issues affecting only individual members; (d) class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute; and (e) there is representative party who (i) would fairly and adequately represent the interests of the class, (ii) has produced plan for the class proceeding that sets out workable method of advancing the class proceeding on behalf of the class and of notifying class members of the class proceeding, and (iii) does not have, with respect to the common issues, an interest that is in conflict with the interests of other class members. [7] In June 2010, the plaintiffs sought certification of the class proceeding under s. 7(1), naming of two classes: (1) persons who owned property within stated radius (“Property Owner Class”) and (2) persons who resided within that radius for minimum period after January 5, 1968 (“Residential Class”). Justice Murphy dealt with the motion through case management conferences and hearings, as discussed in his decision (paras 8-73). The judge described the outcome of that initial motion: [74] The parties were advised following the Original Motion hearing that class action would be the preferable procedure for the representative plaintiffs to advance this litigation. For the reasons which have outlined, causes of action and common issues were approved for certification, subject to suitable definition of property owner and residential classes. [8] In October 2010, the plaintiffs filed an amended motion for certification, that proposed class boundaries with reduced area but extended seven year habitation requirement for the residential class. Justice Murphy heard that motion in December 2010. His decision comments on the amended motion: [76] The parties and the court approached the December 2010 hearing as addressing an amendment to the Original Motion, not replacement for the motion which had been presented at the earlier sessions. It was, in effect, ""continuation."" Accordingly, the evidence from the Original Motion and the June 2010 submissions, as well as documentation filed and submissions made after that hearing, were part of the record for deliberation in December 2010. Consistent with that approach, previous evidence and submissions did not have to be repeated, and, indeed, defence counsel sometimes referred to the evidence and the plaintiffs' argument from the initial hearing to dispute the boundaries proposed in the Amended Motion. [77] The defendants continue to maintain that no aspect of the plaintiffs' claim should be certified as class action and forcefully challenge the revised class definitions and boundaries proposed in the Amended Motion. Although nothing was conceded, and they object to certification on behalf of both potential property owner and residential claimants, the defendants did not appear to seriously dispute that if, despite their objection, the proceeding on behalf of the potential claimants on whose behalf the representative plaintiffs commenced the action were to be certified, it would be appropriate to have two plaintiff classes property owner and residential. [78] It is apparent from the statement of claim and representative plaintiffs' evidence that there are differences between the causes of action and common issues advanced and the remedies sought on behalf of plaintiffs who owned property and those who did not. Subject to satisfactory definitions, the plaintiffs' proposal to establish two classes of claimants property owner and residential is reasonable and logical and will facilitate the management and advancement of the case. [79] It is also sensible, as plaintiffs propose, that the geographic boundaries for both classes be the same. There is no evidence to suggest that locations in which residents would be affected by defendants' impugned activity would differ from areas where real property would be contaminated. The defendants (while maintaining full opposition to proposed boundaries) did not specifically challenge having common boundaries for both classes, if certification were ordered. In my view, defining the same geographic boundary for each class, as plaintiffs have done in the statement of claim and motion, is necessary to facilitate introduction of evidence and administration of the proceeding. [9] The judge’s decision (paras 80-124) then discussed the evidence and the parties’ positions and reached conclusions on the area boundaries of both the Property Owner and Residential Classes, and the temporal limit of the Residential Class. [10] The judge (paras 125-27) approved “in principle” the proposed litigation plan for the class proceeding, but suggested that the case management process be used to fine tune its procedural, scheduling and logistical features. [11] The judge concluded: [129] The plaintiffs’ amended motion for certification is accordingly granted, with the revisions reflected in these reasons. [12] Justice Murphy’s Order, embodying his decision, was issued on May 1, 2012. [13] On May 15, 2012, the Attorney General of Nova Scotia (“Province”) appealed. The Province challenges the judge’s finding that some causes of action were viable, his definition of the classes and conclusions as to commonality. The Province requests the Court of Appeal to deny any certification of class proceeding. [14] By separate notice of appeal (CA 392560), the Attorney General of Canada also appealed, and requested that certification of the class proceeding be denied. The Attorney General of Canada made no motion for stay, and observed but did not actively participate in the Province’s motion for stay. [15] The appeals are scheduled for hearing in March 2013. [16] On June 8, 2012, the Province moved for stay of Justice Murphy’s certification order. That stay effectively would suspend the class proceedings in the Supreme Court of Nova Scotia, pending the outcome of the Province’s appeal. heard that motion on July 12, 2012. The Test for Stay [17] Rules 90.41(1) and (2) say: 90.41 (1) The filing of notice of appeal shall not operate as stay of execution or enforcement of the judgment appealed from. (2) judge of the Court of Appeal on application of party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such judgment or order, on such terms as may be just. [18] The tests under Rule 90.41(2) remains those stated by Justice Hallett in Fulton Insurance Agencies Ltd. v. Purdy (1990), 1990 CanLII 2357 (NS CA), 100 N.S.R. (2d) 341, paras 28-30, under the former Rule 62.10(2). The applicant for stay must show that either: (1) there is an arguable appeal, and denial of the stay would cause him irreparable harm and the balance of convenience favours stay, or (2) there are exceptional circumstances making it just that stay be granted: Molloy v. Molloy, 2012 NSCA 28 (CanLII), para 11, and cases there cited. Fulton’s Primary Test [19] Much of counsel’s effort on the motion related to the merits of the Province’s challenge to the denominators of commonality for the definition of the classes. On stay motion, there is low bar for arguability. I accept that the Province’s grounds of appeal are arguable on their face. will not analyse the fine points of the Province’s submissions or the respondents’ reply. Those are merits issues for the panel on the appeal proper. [20] will turn to irreparable harm. As stated in Halifax (Regional Municipality) v. Casey, 2011 NSCA 69 (CanLII): [41] An applicant for stay must prove irreparable harm by evidence. General conclusory statements are insufficient: Myatt v. Myatt, 2004 NSCA 124 (CanLII), para 10, and cases there cited; Gill v. Hurst, 2010 NSCA 104 (CanLII), para 12. To similar effect C.B. v. T.M., 2012 NSCA 75 (CanLII), para 13. [21] The Province’s brief for this motion submits that denial of stay would cause two categories of irreparable harm: ... In this instance, the AGNS submits there are two elements which raise the issue of irreparable harm. One is the likelihood that the plaintiffs would not be in position to pay for the costs of the litigation leading up to the common issues trial in circumstances where the common issues set for trial may change significantly. The second is the confusion that the public might feel if the litigation of the common issues as currently stated proceeds to the common issues trial, should the appeal change the issues set for trial or significantly reduce the scope of the litigation. [22] The hearing of the appeal is scheduled for March 2013, meaning that, in the normal course, decision from the Court would be expected by mid to late spring of 2013. [23] The question for me is If there is no stay and if the Province’s appeal succeeds, would the course of the class proceedings in the Supreme Court, between today and late spring of 2013, cause irreparable harm in one of the two manners identified in the Province’s brief? [24] In my respectful view, the answer is No. will address the Province’s two categories of irreparable harm. [25] The Province’s first suggested category of irreparable harm is that “the plaintiffs would not be in position to pay for the costs of the litigation”. The Province’s submission assumes that: (1) the Province would succeed on the appeal; (2) between today and the release of the Court of Appeal’s decision, the Province would incur expense to defend the class proceeding additional to those expenses that the Province would have to pay anyway to respond to whatever claims would survive or emanate from the Court of Appeal’s decision; (3) the plaintiffs would be ordered to pay the Province’s additional costs; and (4) the plaintiffs would be unable to satisfy that judgment. [26] will discuss those assumptions. My concerns are with the second and fourth. [27] I said earlier that, for the purpose of this motion, the Province has an arguable appeal. On that basis, accept the Province’s first assumption. [28] It is premature to comment on the merits of the third assumption. The point is not capable of proof by the Province at this stage. For the purpose of this motion, will assume that, if the class proceeding fails, the Province will be entitled to an award of costs. [29] have two concerns with the Province’s second assumption. (a) This appeal does not involve a summary judgment motion that would dismiss the claims outright, in any form, against the Province. Rather, the appeal seeks to strike the Certification Order for common issues trial in class proceeding. The Province’s Notice of Appeal requests that “certification be denied”. If the Certification Order is struck, the Province will still face individual claims, first filed in 2004, involving similar issues. The expense of defending individual claims, whether litigated serially or jointly, might exceed the expense of defending common issues trial in class proceeding. One purpose of class proceeding is to try common issues once, instead of repeatedly, which delivers an expense efficiency to both sides. If the class certification is struck, that efficiency may be sacrificed. On the other hand, that efficiency may be inapplicable to these claims. am in no position to assess whether it is one or the other. The Province has offered no evidence on the point that establishes how defending individual actions would cost the Province less than defending one common issues trial. (b) am not satisfied that the Province will incur any substantially higher expenses between today and the release of the Court of Appeal’s decision. Under the litigation plan that Justice Murphy’s decision approved in principle, the next ten months would involve the completion of the pleadings, the exchange of documents and (after documents are exchanged) the discovery of the parties. There is no evidence to estimate, in any quantum I can grapple with, how the Province would incur expenses for its pleading or document disclosure that would be significantly higher because of points that are in issue on the appeal. The initial claim was filed in 2004. It is reasonable to assume that, over the ensuing eight years up to today, the Province has made significant progress toward drafting its Defence and accumulating its documents. If that assumption is accurate, then there may not remain significant level of marginal expense for pleading and accumulation of documents. If that assumption is mistaken, then the Province’s recourse is to seek permission to revise the milestones in the litigation plan, regardless of this appeal. That permission should be addressed directly with Justice Murphy in the case management of the Supreme Court litigation, not as side effect of stay from the Court of Appeal. The parties would be discovered whether there is common issues trial, under certification, or individual claims by those parties. It is true that the outcome of the appeal may affect lines of questioning. But have no evidence how that factor affects the Province’s marginal expense of conducting discoveries. If am to issue stay based on the Province’s costs as irreparable harm, need reliable indication of what remains to be done during the stay period, what component of that residue would be wasted if the Province’s appeal is allowed, and some estimate of that cost. There is no evidence on these points. Vague and conclusory statements of counsel, without evidence, do not establish the prerequisites for stay of an enforceable Order of the Supreme Court. [30] Neither has the Province established its fourth assumption that the Plaintiffs would be unable to satisfy costs award for any such additional expenses. The Province tendered, as evidence of the Plaintiffs’ financial condition, an affidavit of Ms. Laverne Gleeson, paralegal with the Provincial Department of Justice. Ms. Gleeson performed online searches of the realty owned by the named representative plaintiffs, and summarized the result in Exhibit to Ms. Gleeson’s affidavit. Exhibit lists nine properties, with columns entitled “Appraised Value (2012 Residential Taxable)” and “Mortgage Amount”. Ms. Gleeson’s affidavit says that the “Appraised Value” is the municipal assessment. The last six properties on the List in Exhibit show cumulative “Appraised Value”, or assessment, of $373,400, with no unreleased mortgages. take this as evidence of equity totalling $373,400 that is available for execution to satisfy hypothetical judgment to the Province for the Province’s litigation expenses. This amount does not include any other assets of the Plaintiffs, or their employment income, that would be available to satisfy judgment. [31] There is nothing in the evidence for this motion to suggest that, if the stay is denied and the Province later succeeds on the appeal, the Province would have incurred additional, wasted and taxable litigation expense that exceeds the plaintiffs’ proven equity $373,400. The Province has not met its onus to establish the first category of its suggested irreparable harm. [32] The Province’s second suggested category or irreparable harm (above para 21) is that the public would “feel confusion” if the Certification Order’s premise for the pre-trial procedures is changed by the Court of Appeal. [33] Section 22 of the Act says: (1) Subject to subsection (2), notice that proceeding has been certified as class proceeding must be given by the representative party for the class to the class members in accordance with this Section. (3) Subject to subsection (2), the court shall make an order setting out when and by what means notice is to be given under this Section ... [34] Justice Murphy’s Certification Order of May 1, 2012, paras 12-13, provides for publication of the Notice of Certification. The form of Notice, in Schedule “C” to the Order, describes the Property Owner and Residential Classes and states: Members of the Property Owner and Residential Classes who want to participate in the class action are automatically included and need not do anything at this time. Each Class Member will be bound by the terms of any judgment or settlement and will not be allowed to prosecute an independent action. If the class action is successful, he or she may be entitled to share in the amount of any award or remedy recovered. If unsuccessful, claims of all Class Members will be barred. You must opt out if you do not want to participate in the class action. Class Members who do not want to participate in the class action must opt out. If you want to opt out of the class action, you must send written, signed election, including your name, address, telephone number to: WAGNERS. No Class Member will be permitted to opt out of the class action unless the election to opt out is received by WAGNERS before [DATE]. [emphasis in the Notice] [35] The Certification Order states: 15. The Notice Program shall be implemented on date to be fixed by the Court upon the approval of the Notice. [36] understand from counsel that Justice Murphy has not yet fixed date for implementation of the Notice Program under para 15 of the Order, and that likely the date will not be fixed until after the Court of Appeal has issued its decision on these appeals. [37] If the Notice was published now, then there would be potential for prejudicial confusion. For instance, the Court of Appeal might change the class definitions, which might necessitate second correcting Notice. But, as understand it, the judge sensibly intends that there will be only one Notice, published after the Court of Appeal’s decision. Given that premise, there is no evidence of any confusion that would irreparably affect the progress of the litigation. [38] If the Province succeeds in its appeal, the public would observe decision of lower court altered by an appeal court. That is par for the course of appellate litigation, not irreparable harm. [39] The Province has not proven irreparable harm. It is unnecessary to consider the balance of convenience. There is no basis for stay under Fulton’s primary test. Fulton’s Secondary Test [40] There is no exceptional circumstance making it just that stay be granted, under Fulton’s secondary test. [41] The litigation began in 2004, before its conversion to class proceeding several years later. There is no imperative of justice that, eight years onward, would further defer the progress of pretrial disclosure and discovery. Civil Procedure Rule 1.01 says that the “Object of these Rules” is for “the just, speedy, and inexpensive determination of every proceeding”. The Rules assume that at some opportune moment in my view, before the passage of eight years the tale should mature from plot development to climax, and the preparation should culminate in trial. Conclusion [42] I dismiss the motion for a stay. quantify the costs of the motion at $1,000, to be payable in the cause of the appeal. Fichaud, J.A.",", motion denied. While the province has an arguable appeal, it does not concern a summary judgment motion that would result in the claims being dismissed outright. If the certification order is struck, the province will still face individual claims. The AG has not shown that defending individual actions will cost less than defending one class proceeding. There is no evidence to estimate how it may incur significantly higher expenses as a result of how the points at issue in the appeal are resolved. The matter has been ongoing for some time and it is reasonable to expect the province has already spent time and money to prepare the defence they will eventually file. To succeed on this basis, the court would require a reliable indication of what remains to be done during the stay period, what component of that residue would be wasted if the appeal is allowed, and some estimate of that cost.",c_2012nsca78.txt
80,"J. Q.B.G. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HUSKY OIL OPERATIONS LTD. and MINISTER OF FINANCE, PROVINCE OF SASKATCHEWAN RESPONDENT Murray W. Douglas and for the appellant Jeffrey W. Estabrooks Garry J. Moran for the respondent JUDGMENT McINTYRE J. February 5, 1996 This is an appeal by Husky Oil Operations Ltd.(""Husky"") from a decision of the Board of RevenueCommissioners of Saskatchewan (the ""Board""). The respondent, under the provisions of The Education and Health Tax Act, R.S.S. 1978, c. E-3, as am. (the ""Act"") and The Department of Revenue and Financial Services Act, S.S. 1983, c. D-22.02 as am. S.S. 1988-89, c. 42, s. 29 amending the title and chapter of the Act to read The Revenue and Financial Services Act, c. R-22.01, conducted an audit resulting in the assessment of sales tax in the amount of $37,842.07. Husky appealed to theBoard which upheld the assessment. The appeal to this Court arises under s. 21 of The Revenue and Financial Services Act which provides, in part: 21(1) Subject to subsection (2), person aggrieved by decision of the board made pursuant to section 20 may appeal to the court. (11) On appeal, the facts are deemed to have been conclusively established by the findings of the board, except where question is raised on the appeal that the finding of any particular fact or facts has been made by the board on evidence which does not warrant that finding. (12) At the hearing of the appeal, the court shall hear and consider the cause based on the material which was before the board at the hearing conducted before it and on any further material or evidence that the court may, on any terms that it considers appropriate, permit. (13) The court may: (a) affirm the decision of the board; (b) amend or reverse the decision of the board insofar as it is based on any error in law; or (c) refer the matter of assessment back to the minister for reconsideration. The Board's findings of fact included the following: 2.The assessment pertains to charges incurred by the Appellant in contract with Valtek Controls Ltd. of Alberta. Valtek supplied certain valves for use at the Appellants [sic] Upgrader project located in Lloydminster Saskatchewan. The valves, meeting the definition of tangible personal property as defined in the Act, were subject to Education and Health Tax which the Appellant paid. The Appellant did not pay taxon what is referred to as ""Documentation charges"". 3.The charges are for documentation specifically ordered by the Appellant from Valtek and consists of Certified Dimensional Drawings which include all valve parts and part numbers in metric units. The primary function of such documentation is ongoing technical support for the valves operation, maintenance, change of parts and modifications. This documentation is not supplied with or included in the price of valves as supplied by Valtek but was provided for in response to the Appellants [sic] specific request to meet its particular requirements. 4.The valves and documentation were ordered on the same purchase order and were identified as separate items. Clause 22 of the purchase order, terms and conditions, specifies that title passes upon payment. The documentation was separately invoiced. The payment and receipt of the documentation preceded the payment and receipt of the valves. Title to each item under contract passed from Valtek to the Appellant in Alberta at the time of each payment for the portion of the items invoiced. Title acquisition of the documentation was not conditional upon any action or status of the valves or vice versa. The documentation was designed for specific application as opposed to general application guide. 6.By letter of April 29, 1993 Valtek wrote the Appellant stating: ""Enclosed is summary listing of all purchase orders issued by Husky Oil for the Bi-Provincial Project, their respective values, and the position that was allocated to ""Documentation"". The documentation charge amounts to 10% of the value of the order. Documentation refers to certified drawings, bills of material, test result records, CMTR's final inspection, release notes etc."" The pertinent legislative provisions of the Act 3(1) In this Act: (b) ""consideration"" means money paid or agreed to be paid, property delivered or exchanged or agreed to be delivered or exchanged, things done or agreed to be done, rights or any other consideration whatsoever and includes service charge, transportation charge, or any other cost, or tax, levy or duty imposed by any level of government other than the tax imposed pursuant to Part IX of the Excise Tax Act (Canada), as amended from time to time, in respect of the sale of taxable service or tangible personal property whether or not the charge, cost, tax, levy or duty included is shown separately on any invoice or in the books of the seller or of the purchaser (n) ""value"" means, subject to subsections 5(1), (17), (17.1) and (17.2), the consideration given or agreed to be given by the consumer or user for taxable service or the transfer of the ownership of or title to tangible personal property and includes charges added for electrical energy under section 36 of The Power Corporation Act 5(9) Every person residing or ordinarily resident or carrying on business in Saskatchewan who brings into the province or who receives delivery in the province of tangible personal property for his own consumption or use, or for the consumption or use of other persons at his expense, or on behalf of or as agent for principal who desires to acquire the property for consumption or use by the principal or other persons at his expense, shall immediately report the matter to the minister or his appointee and forward or produce to him the invoice, if any, in respect of the property and any other information required by him with respect to the property and shall pay the same tax in respect of the consumption or use of the property as would have been payable if the property had been purchased at retail in the province at the price that would have been paid in Saskatchewan if the tangible personal property had been purchased at retail in the province. (12) The expression ""price"" in subsections (9) and (9.2) includes the value of the tangible personal property, transportation costs and any other costs whatsoever incurred in bringing the property into Saskatchewan and in preparing the property for use or consumption in Saskatchewan, borne or to be borne by the user or consumer or any person at his expense or on his behalf or as his agent. 8(1) The following classes of tangible personal property and taxable services are exempt from the tax imposed by this Act when purchased by retain sale in the province: (f) books, magazines and periodicals. And the relevant portions of The Education and Health Tax Act Regulations, R.R.S. c. E-3 Reg. (""Reg. 1"") include: 5(1) In subsection 8(1) of the Act and in these regulations: (b)""books"" means: (i) books that are printed and bound with permanent bindings; (ii) unbound literary and technical papers; (iii) loose-leaf sheets or pages that are printed and punched for insertion in ring or post binder; that are published solely for educational, technical, cultural or literary purposes and that contain no advertising, but does not include: (iv) albums; (v) catalogues; (vi)directories; (vii) fashion books; (viii) financial reports; (ix) loose-leaf sheets or pages that are printed and punched for insertion in albums, catalogues, directories, fashion books, price lists, rate books and time tables; (x) paper ruled for accounting or bookkeeping purposes; (xi) post and ring binders; (xii) price lists; (xiii) rate books; (xiv) time tables; (xv) any other reading materials or articles that are similar, or used for purpose similar, to any of the classes of materials described in subclauses (iv) to (xiv) The parties had agreed that the documents in issue fall within the definition of tangible personal property as set out in the Act and would constitute technical papers that would have technical purpose. As result, the Board framed the issue before it as follows: 1. Was the documentation purchased by the Appellant part of the consideration attributable to the purchase of valves or was it an independent purchase? 2. If it is determined the purchase was an independent one is it exempt from tax by virtue of Section 8(1)(f) of the Act? In response to the first issue the Board found: In the board's opinion the Appellant purchased the subject documentation independent of the valves. It could be said the purchases are interrelated and the documentation would be of no value without the valves. However, the evidence clearly shows the valves and documentation were purchased separately and it was not condition that the supply of one was dependant on the supply of the other. Documentation was an additional purchase by the Appellant and one the Appellant would have been responsible for without purchase of the valves, although, it is highly unlikely the Appellant would have ordered the documentation without valve purchase because of their obvious relationship. As previously stated the valves were ordered and shipped to the job site in Lloydminster, Saskatchewan where they were installed in the Appellant's plant. The documentation which [sic] was not on site during installation. In fact they it [sic] not arrive at the site until well after valve installation which leads the board to conclude the purchase of the documentation was not required for preparing the valves for use but rather for the ongoing maintenance of the valves as submitted by the Appellant. In response to the first question the board determined the purchase of documentation was independent of the valves and therefore not consideration in establishing the final price of the valves. Thus, the documentation stands as tangible personal property and is subject to tax as such by virtue of Subsection 5(9) of the Act unless the Appellant can claim an exemption under Section 8(1)(f) of the Act. The respondent argues the Board erred in its conclusion that the purchase of the documentation was not required for preparing the valves for use in Saskatchewan. In the respondent's view the material before the Board was more consistent with the documentation charges being part of the purchase of the valves and one cannot avoid the tax consequence by allocating the price to alleged components or by separately invoicing various charges. The respondent's position is based upon the combined effect of ss. 3(1)(b), 3(1)(n) and 5(12) of the Act. The respondent's view of the affect of these sections is accurate. The Board, however, correctly identified the issue as one of whether or not the drawings were required for ""preparing the property for use in Saskatchewan"" as required by s. 5(12) of the Act. Subsection 21(11) of The Revenue and Financial Services Act provides that on an appeal the facts are deemed to have been conclusively established by the findings of the Board unless made on evidence which does not warrant that finding. The respondent argues that the application of the statutory requirements in this instance whether the documentation was required for preparing the property for use in Saskatchewan to the evidence before the Board is question of law reviewable by this Court. Alternatively, the respondent argues the evidence did not warrant the findings made by the Board. The respondent's argument requires review of the role and jurisdiction of the Court on an appeal of this nature. The role of the Court is in the nature of judicial review. In Kroma Color Photo Labs Inc. v. Saskatchewan (Minister of Finance) (1993), 1981 CanLII 2186 (SK CA), 11 Sask. R. 28 (C.A.) the chambers' judge who had been hearing an appeal under s. 21 of The Revenue and Financial Services Act had taken the view that the board had not made determination as to whether certain items had been purchased for resale and it was therefore open to him to reach his own decision on this question. The Court of Appeal stated at pp. 29 and 30: The view of the Chambers judge that there was no factual determination by the Board is not accurate as the Board's decision contained the following statements: ""4. Kroma Kolor Photo Labs used the above-named items in the normal course of business. ""2) other items are provided as service and are not sold to the customer and therefore attracts tax pursuant to section 49 of the Education and Health Tax Act. These items include sleeving, masks, plastimounts and slide boxes."" (emphasis added) This indicates the Board addressed the question of whether the three items were purchased for resale and concluded they were not. Section 22 of the Revenue and Financial Services Act requires that findings of fact made by the Board are to be accepted and applied in any further judicial review of the Board's decision. It is of no consequence but might say find no difficulty in accepting the Board's conclusion on this important factual determination. [Emphasis added] The Court's role is supervisory in nature. Questions of law are within the purview of the Court. On questions of fact the Court's role is restricted to circumstances where the evidence does not warrant findings of fact made by the Board. By this take the legislators to mean that the Court is not to substitute its view of the evidence for that of the Board simply because it may be of different view. The observations of H. W. R. Wade in his text Administrative Law, 4th ed. (Oxford: Clarendon Press, 1977) at pp. 274 and 275 are, in my view, appropriate to the jurisdiction conferred by s. 21(11) of The Revenue and Financial Services Act on this Court insofar as issues of fact are concerned. Findings of fact are the domain where deciding authority or tribunal can fairly expect to be master in its own house. Just as the courts look jealously on decisions by other bodies on matters of law, so they look indulgently on their decisions on matters of fact. But the limit of this indulgence is reached where findings are based on no satisfactory evidence at all. It is one thing to weigh conflicting evidence which might justify conclusion either way. It is another thing altogether to make insupportable findings. ""No evidence"" does not mean only total dearth of evidence. It extends to any case where the evidence, taken as whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. In terms of the evidence before the Board on thismatter there was evidence which could support eitherinterpretation of the facts. There was not an absence of evidence such that the Board could not reasonably reach the conclusion which it did. Insofar as the respondent argues that the Board's application of the statutory requirement (that the documents were required to prepare the valves for use in Saskatchewan) to the evidence is question of law, disagree. The respondent's argument is in essence to distinguish between findings of primary fact based upon an assessment of the evidence before the Board and the application of statutory provision to those primary facts, characterizing the latter as question of law open to review by this Court. That gives rise to the question as to when is determination by the Board one of fact and when is it one of law? Bayda C.J.S. dealt with the dilemma in Re Peters et al. and University Hospital Board (1983), 1983 CanLII 2066 (SK CA), 147 D.L.R. (3d) 385 at 395 (C.A.): The answer to the question whether particular set of facts falls within the scope or purview of term in statute is one of fact or law depends largely upon the term itself. Where the term is simple and ordinary, and, as it were, can be reduced no further in simplicity or definition, and which to define would require words that themselves need definition, the question is one of fact. The terms ""resident"" and ""insulting"" are good examples. Where the term gives rise to some complexity, or has acquired special or technical meaning, the question is likely, but not always one of law. This view was ratified by the Court of Appeal in its subsequent decisions in Re Saskatchewan Human Rights Commission et al. and Canadian Odeon Theatres Ltd. (1985), 18 D.L.R. (4th) 93 and Re Pasqua Hospital and Harmatiuk (1988), 1987 CanLII 981 (SK CA), 42 D.L.R. (4th) 134. In my view the determination of whether the documents were required for preparing the property for use in Saskatchewan is question of fact. There is nothing complex or technical about the statutory requirement. The words used are simple and ordinary. The Board determined as finding of fact that the documentation was not required for preparing the valves for use in Saskatchewan and there was evidence before the Board upon which it was open to them to come to that conclusion. The issue raised by Husky on the appeal was theinterpretation adopted by the Board of the word ""published"" asused in s. 5(1)(b) of Reg. 1 when defining the word ""books"". This goes to the second issue before the Board. If, as theBoard found, the purchase of the drawings was an independenttransaction, was it exempt from tax by virtue of s. 8(1)(f) ofthe Act? The Board had the following to say: The Appellant and Respondent agree the subject documentation would constitute ""technical papers"" and accordingly fall within the definition of ""books"". The only obstacle remaining then is to qualify for an exemption under Section 8(1)(f) is that the technical papers must be published and that they contain no advertising. The board notes and accepts the definition of ""publish"" set out on page of the Respondents [sic] submission. The supplier, Valtek, according to the facts, shipped the documents to Engineering and Procurement Contractors offices in Calgary for use in preparing other documentation and then to the Appellant's Calgary office. Late in 1991 the Appellant shipped the documentation to its BPU site in Saskatchewan. It is apparent from the evidence submitted the supplier, Valtek, never published the documents. They were merely shipped to the destination designated by the Appellant which in the boards [sic] view would not represent the requirement of being ""published"" as provided for in the Act. Accordingly, it is the board's finding that the Appellant fails to meet the requirements of Section 8(1)(f) of the Act and is therefore not entitled to claim an exemption. Husky argues the word ""published"" is not meant to restrict the meaning of those words which precede it, that is (i) books; (ii) unbound literary and technical papers; (iii) loose-leaf sheets or pages; but rather it is an introduction to the purposes outlined solely for educational, technical, cultural or literary purposes. Alternatively the appellant argues the word ""published"" is to be interpreted broadly, i.e., the act of communicating to the public where the public can be one person or more. The respondent argues you cannot have publication in the context of papers passing between two private parties pursuant to contract. Publication contemplates distribution or availability to more than one person. The respondent relies upon the decision in Re Edmonton Journal and Attorney-General for Alberta et al. (1985), 1985 CanLII 1233 (AB QB), 22 D.L.R. (4th) 446 at 452 (Alta. Q.B.) which provided the following definition of ""published"", which was the definition adopted by the board herein: Dictionaries define ""publish"" as follows: Websters Third New International Dictionary: 1a: to declare publicly: make generally known 3a: to place before the public (as through mass medium) Blacks Law Dictionary, 5th ed.: To make public; to circulate; to make known to people in general. To issue; to put into circulation. To utter; to present (e.g. forged instrument) for payment. To declare or assert, directly or indirectly, by words or actions, that forged instrument is genuine. An advising of the public or making know [sic] of something to the public for purpose. The respondent argued that the Court could look to administrative policy as factor which may be considered in cases of doubt about the meaning of legislation. See Gene A. Nowegijick v. R. et al., 1983 CanLII 18 (SCC), [1983] S.C.R. 29 at 37. In that regard Husky noted that every province with sales tax exempts books. Most of the wording is very similar to Saskatchewan's exemption, but there are small variances in the structure of the wording and the punctuation. Nova Scotia and New Brunswick, it was noted, used wording very close to Saskatchewan's except that they do not use the word ""published"". Instead they introduce the restriction on books with the words ""that are solely for educational, technical, cultural or literary purposes ."" Despite not using the word ""published"" in the legislation, Nova Scotia's ""Vendor Guide G1035"" which is virtually the same as Saskatchewan's Information Bulletin No. EH-9 describes exempt books as ""Books that are printed and bound and are published solely for educational, technical, cultural or literary purposes"". Husky suggested that the term ""published"" in the context of the Nova Scotia sale tax does not have particular meaning other than to introduce the restrictions on the type of books that are exempt. Husky also noted that in the New Brunswick Sales Tax Guide No. 0008, the word ""publication"" is defined as follows: K. ""Publication"" means the printing and distribution, usually for sale, of books, magazines, newspapers, etc. Husky concludes that in New Brunswick publication does not require public distribution or sale to the public. In fact, it does not necessarily involve sale in all circumstances. If the word ""published"" restricts the words which precede it and requires an element of distribution or availability to the public, Husky argues it is sufficient if the documents are delivered to one member of the public and relies upon Re Peel Board of Education and et al. (1987), 59 O.R. (2d) 654 at 659 (H.C.J.) and R. v. Liversidge (1970), 73 W.W.R. 29 at 38 (B.C.C.C.). In Husky's view publication is an act of communication from one to another and the word public includes one person or more. The first question to be determined is whether the word ""published"" qualifies the words which precede it or whether it relates to the purposes for which the book, literary or technical papers or loose-leaf sheets were published. If the word ""published"" qualifies the preceding words, it draws distinction between published and unpublished books or published and unpublished technical papers and exempts from tax only those which are published. To take it one step further, if the interpretation adopted by the Board is correct, the Minister in determining whether an item is published book or technical paper, he must determine whether the production, distribution or availability is sufficiently public or broadly available so as to constitute published versus an unpublished technical paper. The alternative does not focus upon the extent to which the book or technical paper is produced, distributed or available to sufficiently broad audience but rather the purpose for which it was produced, distributed or made available, i.e., solely for educational, technical, cultural or literary purposes. find the latter consistent with the context in which the word ""published"" is used in s. 5(1)(b) of Reg. 1. Technical papers by their nature, are often going to be directed to narrow audience. To focus upon the extent towhich technical papers are directed at a public audience so asto determine their taxability makes no sense and is at oddswith the very proposition that technical papers can be exemptfrom tax. If the word ""published"" is intended to focus upon purpose that is, items produced, distributed or available solely for educational, technical, cultural or literary purposes, it is far more consistent and harmonious with the context in which the words appear and far more precise in terms of criteria to determine taxability. Having determined that the word ""published"" isintended to speak to purpose and not the extent of theaudience, it is probably not necessary to comment upon thedefinition adopted by the Board. would note, however, that the definition adopted does give rise to the artificiality noted earlier i.e. determining whether technical papers are produced, distributed or available to sufficiently broad audience. Is it one, two, ten? There is no guideline or criteria for the taxing authority to apply. If the word ""published"" were intended to qualify the preceding words, then would agree with Husky that an audience of one is sufficient. This eliminates having to focus upon whether the audience is sufficiently broad which as noted, is anomalous when one considers its application to technical papers. The broad interpretation eliminates this anomaly. In conclusion, the appeal is allowed and the decisionof the Board reversed. The appellant shall have its costs of the appeal.","The respondent conducted an audit resulting in the assessment of sales tax. Husky Oil appealed the decision by the Board of Revenue Commissioners which held Husky liable to pay tax on documentation charges. The primary function of the documentation was ongoing technical support for the valves operation, maintenance and modifications. The valves and documentation were identified as separate items on the same purchase order and arrived at the job site separately. The Board decided that the appellant purchased the documentation independent of the valves and were subject to tax under ss.5(9) unless exempted under ss.8(1)(f). The parties agreed the documents fell within the definition of tangible property as set out in the Act. At issue was the interpretation by the Board of the word 'published' as used in ss.5(1)(b) of eg. 1 when defining the word 'books' and whether the drawings were exempt from tax. HELD: The appeal was allowed and the decision of the Board reversed. Costs were awarded to the appellant. 1)The role of the Court was in the nature of judicial review and supervisory in nature. The Court's role on questions of fact is restricted to circumstances where the evidence does not support findings of fact. 2)There was evidence which could support either interpretation of the facts.  3)The determination of whether the documents were required for preparing the property for use in Saskatchewan is a question of fact. There was nothing technical about the statutory requirement. The words used are simple and ordinary. It was open to the Board to determine as a finding of fact that the documentation was not required for preparing the valves for use. 4)Technical papers by their nature are often going to a narrow audience. To focus upon the extent to which technical papers are directed at a public audience so as to determine their taxability makes no sense and is at odds with the proposition that technical papers can be exempt from tax. The broad interpretation eliminates this anomaly.  5)Having determined that the word published is intended to speak to purpose and not to extent of the audience it was not necessary to comment upon the definition adopted by the Board.",4_1996canlii6841.txt
81,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Nova Scotia Turkey Producer’s Marketing Board v. Nova Scotia (Attorney General), 2008 NSSC 18 Date: January 15, 2008 Docket: S.K. No. 276502 277508 Registry: Kentville Between: Nova Scotia Turkey Producer’s Marketing Board Respondent/Plaintiff v. Attorney General of Nova Scotia and Nova Scotia Natural Products Marketing Council and John Merks and Andre Merks Applicants/Defendants Judge: The Honourable Justice Charles E. Haliburton Heard: January 15, 2008, in Kentville, Nova Scotia Written Decision: January 21, 2008 Counsel: Byron G. Balcom, for the Respondent/Plaintiff, Nova Scotia Turkey Producer’s Marketing Board Dale A. Darling, for the Applicants/Defendants, Attorney General of Nova Scotia and Natural Products Marketing Council Andrew N. Montgomery for the Applicants/Defendants, John Merks and Andre Merks By the Court: [1] This application Inter Partes is brought by The Attorney General of Nova Scotia pursuant to an Interlocutory Notice, filed January 11th , 2008 seeking,“. . . an order pursuant to Civil Procedure Rules 14.25(1) and 38.11 to strike the affidavits of Ms. Sonya Lorette, dated January 22nd , 2007 and February 9th, 2007.” [2] The issue is procedural, it is being argued that the reception of the two affidavits into evidence would be inappropriate and contrary to case precedent. [3] This is the second Interlocutory Application seeking to have these affidavits struck. The earlier application taken by Andre and John Merks was dismissed by Warner, J. by order dated August 8th, 2007. understand the focus of that inquiry was the relevance and general propriety of the drafting of the content of the affidavits and evidentiary issues of the nature raised in Waverley (Village Commissioners) et al v. Nova Scotia (Minister of Municipal Affairs) 1993 CanLII 3403 (NS SC), [1993], 123 N.S.R. (2d) 46 (SC). [4] Perhaps brief history of this proceeding would be helpful in placing this application and the issues in context. The dispute between the parties has arisen under the Natural Products Marketing Act, chapter 308, R.S.N.S. 1989 and its regulations and its administration. This Statute which authorizes the regulating of production and marketing of particular natural products in Nova Scotia is administered by the Natural Products Marketing Council, one of the Respondents, represented on this interlocutory matter by The Attorney General. The Plaintiff, The Nova Scotia Turkey Producers’ Marketing Board, is one of the “commodity boards” constituted under the plan. While the “Council” is charged with the general oversight and administration of matters governing the production of various products pursuant to the Act, certain authority is delegated to the various boards, specifically, The Turkey Marketing Board. [5] It appears that the “Board” had made decision that the “license” of the Merks brothers to produce turkeys had been contravened and that their license should be suspended. The Board requested the Council to hold “show cause” hearing. After making that request there was procedural breakdown between the Board and the Council with respect to how that hearing would proceed, with the Board seeking and being denied, an adjournment. The hearing then was held as scheduled, without the participation of the Board, with the result that the Merks license was not suspended. [6] Flowing from that decision and the differing conceptions of the Board and the Council regarding their respective roles and or jurisdiction in the process, the Board initiated this proceeding. In its original application (S.K. No. 276502) the Board sought declaratory judgment raising these questions: 1. Does the Natural Products Marketing Council have jurisdiction to hold “show cause hearing” pursuant to section 10 of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended between the parties, having already delegated to The Turkey Producers Marketing Board the power to issue, refuse, revoke or suspend licenses pursuant to section of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended, and regulations 9(1)(b) and (e) and (4) and further under sub-regulation 12(4)? 2. If the answer to question (1) above is in the affirmative, does Section 10 of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended, confine the jurisdiction of the Natural Products Marketing Council to that of an Appellant function? 3. Who is the applicant as defined under section 10 of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended? [7] The Board made a further application Inter Partes (S.K. 277508) seeking writs of certiorari and mandamus requiring the Council to hold a new hearing. [8] In support of its applications the Board filed two affidavits of Ms. Sonya Lorette which provide some detail and background to the reasoning of the Board for its failure to attend the hearing before the Council and for their differing positions regarding their respective roles in the application of the management plan. [9] The Attorney General, in its brief, describes the current application in these terms (it) is being made by The Attorney General and the Council. The Applicants seek to have the affidavits of Sonya Lorette, dated January 22nd, 2007 (in aid of SK 276502) and February 9th, 2007 (in aid of SK 277508), struck out as an attempt to put evidence to the Court on matters not in or forming part of the Record of the Council Panel in its adjudicative setting. [10] The Applicants put forth the proposition that it is improper to introduce “facts” by way of affidavit evidence in “judicial review” proceeding (certiorari). It is argued that the Court ought to restrict itself to considering the record as produced by the tribunal. It is further submitted that surrounding circumstances and background facts are not to be admitted if not contained in “the Record”. Similarly with the application involving the interpretation of the law (The Statutes and Regulations) the positions taken by the parties over the past number of years (an issue raised in the imputed affidavits) are said to be irrelevant. [11] All this material was before Warner, J. when he made his decision on May 10th, 2007. He seems to have accepted the information contained in the affidavits as factual. It seems apparent that the essential accuracy of the contents were not challenged on that application and he made findings of fact about the past relationship of the two bodies. [12] Warner, J., presumably reviewed all the materials in the file including the imputed affidavits as well as, would assume, affidavits of Merks, also in the file and not having been raised as an issue. He reviewed various factors supporting his conclusion that the applications by the Board should not be struck on the alleged basis that no cause of action had been disclosed. At page 178 of his decision, “I recognize that in order for the Court to undertake an application, as application is which deals solely with the request for determination of rights, that there must in fact be real dispute. And to my mind, the Council’s record shows an ongoing and clear dispute with respect to the authority of the Board to suspend and deal with licenses, and the authority of the Council to be the exclusive administrative body to cancel or revoke or suspend licenses....from looking at Tab of the Council’s record, (there appears to be) clear ongoing running dispute... it’s not hypothetical issue. It is real issue.” At page 179, (the questions relating to), “declaratory relief deal directly with the issue of the right of the Board pursuant to Section 10 of the Act to have exclusive or sole authority to suspend and revoke producers’ licenses and the procedure and definition contained in paragraph 10 of what the procedure is, if they do have that authority.” At page 180, “It’s clear that the Council has told the (Turkey) Board on prior occasions that the Council has the sole authority to suspend”. (with respect to the timing of the dispute vis vis the decision the Board sought to challenge) The application for declaration...was obviously prepared before January 22nd...prepared in response to January 18th conference call...(when the Board) was refused the adjournment.” At page 182, “The fact that there was real dispute, dispute that apparently is repetitive dispute in terms that it’s not the only time that the Board and the Council have clashed, gives it more credibility and credence and more reason for Court to intervene.” Page 188, quoting from letter attached to one of the imputed affidavits, “The Council has made clear on previous correspondence that the authority to cancel or revoke licenses rests solely with the Council...that is not true voluntary waiver of any claim to dispute jurisdiction.” “It’s clear as matter of common sense, if not on the record itself, that on January 18th when the Board asked for an adjournment and were refused that they reverted to their position.” And page 192, (The affidavits), “were setting out matters of fact and not of opinion. They were setting out as matters of fact the positions of the respective parties contained in letters attached to the affidavit, sworn to by the manager of the Board who either wrote or received as part of her duties as general manager the documents of which she spoke...it’s just simply saying that the two parties respectively said (what) their positions were over period of time, and agree with that characterization.” [13] The issue, as reflected in the quote in the brief of The Attorney General, noted above, question whether or not it is appropriate to introduce evidence by way of affidavit on “judicial review” and or, in an application for certiorari. [14] Briefly, it seems to me that reason and fairness in the present circumstances militate against ruling the affidavits inadmissible. As mentioned above, there is an affidavit filed by Andre Merks, which has not been challenged. Both the affidavit of Merks and the affidavits of Lorette provide some historical background and in particular, the circumstances leading up to the request for an adjournment by the Board and the materials which were placed before the Council at the hearing of January 22nd. Furthermore, and think it somewhat important, that the record does not disclose any indication whatsoever that evidence was either taken before the Council or considered by them, with respect to the suspension of license which had been the reason for convening the hearing. Indeed, the first reason appearing in the record for their decision and arguably the Council’s primary consideration, reads as follows: “Without the presence of The Turkey Marketing Board at the oral hearing, the panel was unable to assess the recommendations of The Turkey Board regarding action on the licenses of John and Andre Merks.” It seems evident that The Turkey Board having refused to appear at the hearing because their request for adjournment had been denied, left council with no decision to make. The merits of the case and the reasons for holding the “show cause” were apparently never before the Council. [15] The Applicant proposes highly restrictive view of what the Court may take into consideration on the two applications brought by the Board. It is argued that affidavit evidence is only admissible if the record does not provide enough information regarding the issues in dispute. [16] frankly have some difficulty with the exact characterization of the Board’s two applications and whether they raise jurisdictional issues or whether they complain of an error in law. Circumstances surrounding the initial application, S.K. 277502, are obviously not reflected in the “Record” because the application was commenced before the hearing. The application made subsequent to the hearing raised questions of jurisdiction. [17] In this context the following quotation from R. v. Northumberland Compensation Appeal Tribunal [1952] All E.R. 122, page 131, Decision of Lord Denning is not all that helpful, to the Applicant. It is quoted as authority at page four of the Crown’s brief, “The next question that arises is whether affidavit evidence is admissible on an application for certiorari. When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as rule, admissible, for the simple reason that the error must appear on the face of the record. [authority omitted] Affidavits were, however, always admissible to show that the record was incomplete, as for instance, that conviction omitted the evidence of one of the witnesses .” [18] If I review this present application as a jurisdictional dispute (which seems to be the position of all parties). This quotation does not form authority for denying the parties the use of affidavits. On the other hand, if it is to be denied on the basis of error of law on the face of the record, then in my view the affidavits are admissable to complete the records. The fairness of doing so is underscored by the fact that on the hearing of the Board’s application the court will have before it the affidavit of Merks which is to much the same effect. [19] Our rules of Court do not preclude the admission of affidavits on an “application”. As described in Rule 37, all parties are entitled to prosecute an application with the aid of affidavits. Obviously, the extent of affidavit evidence which will be admissible is, in any event, governed by the Court which will hear the matter. Let me return to R. v. Northumberland Compensation Appeal Tribunal [1952] All E.R. 122, the head note relating to the Denning decision, says: “Affidavit evidence is admissible on an application for certiorari to show that the record is incomplete. When certiorari is granted on the ground of want of jurisdiction or bias or fraud, affidavit evidence is not only admissible but it is as rule, necessary.” (my emphasis) Lord Denning, in his decision, reviewed the authority of the Court of King’s Bench to review decisions made by tribunals noting that they, “are often made the judges of both fact and law with no appeal to the High Court”. .The Court of King’s Bench (as with the Supreme Court of Nova Scotia) has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity but in supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of power to quash any determination by the tribunal, which on the face of it, offends against the law. The King’s Bench does not substitute its own views for those of the tribunal, as the Court of Appeal would do. It leaves it to the tribunal to hear the case again and in proper case, may command it to do so.” later, quoting Chitty, “GENERAL PRACTICE”, “As an essential mode of exercising control over all inferior courts, (this Court) has most extensive power to bring before it their proceedings, and fully to inform itself upon every subject essential to decide upon the propriety of the proceedings below. This is effected by writ called certiorari. The writ issues in civil as well as criminal cases. .” In his Decision following the paragraph quoted by The Attorney General, Lord Denning observed at page 131, tab 1, Attorney General’s submissions; “Affidavits were, however, always admissible to show that the record was incomplete, as for instance, that conviction omitted the evidence of one of the witnesses.” And later he observed, affidavits were likewise always admissible by agreement of the parties and “treated by consent as if they were part of the record”...it is often very nice question whether an error which does not appear on the record is one that goes to jurisdiction or is only an error of law within the jurisdiction. If it goes to jurisdiction, affidavits are admissible but otherwise not. Continuing to refer specifically to the case, then before his Court, he concludes, “we have here simple case of error of law by tribunal...so long as the erroneous decision stands (the Applicant cannot be paid the money to which he is entitled) it would be quite intolerable if in such case there were no means of correcting the error.” [20] will not inquire further into the law. It is the duty of this Court to strive, to ensure that fairness and equity prevail in the proceedings before any tribunal or other authority over which we may be privileged to have the power of review. The issues which to my mind arise, in the present circumstance, with respect The Marketing Council and The Turkey Board may also arise in the context of the Council and other commodity boards. The Council is charged with enabling and authorizing system for controlling and limiting the production of various natural products. The Board is charged with the responsibility to see that fairness and equity prevail among the various licensed producers of that commodity. The contest represented by the application here is not contest between the Merks brothers and The Turkey Board as such, it is contest between the Merks brothers as turkey producers and all the other licensed producers in The Province of Nova Scotia who are represented by the Board. marketing scheme as intended by the Legislature cannot survive without the assurance that fairness and equity will prevail among the producers and that the rules which are set in place will be applied to all producers equitably. [21] As all parties have observed, this is not an appeal process. The result of these proceedings, will be that the decision taken by the Council will be validated, or the decision will be quashed and new hearing will be ordered. All the relevant materials with respect to the statute and regulations, the practices of the Council and the Board, will assist in determining the jurisdictional questions, likewise the circumstances relating to procedural fairness demand adjudication. It is to be hoped that the decision of this Court, when made will assist these two bodies in understanding their respective roles, their respective authority and assuring the rules of natural justice, with respect to adjournments or otherwise, are honoured. [22] The application to strike the two affidavits is denied for all the above reasons. Haliburton, J.","The defendant council, charged with the general oversight and administration of matters under the Natural Products Marketing Act, delegated certain authority to commodity boards such as the plaintiff. The plaintiff requested that the defendant hold a show cause hearing to determine whether certain producers had contravened their licence but when a procedural breakdown occurred as to how that hearing would be conducted, with the plaintiff seeking and being denied an adjournment, the hearing was held without the plaintiff's participation. The plaintiff brought an application for mandamus to compel the defendant to hold a new hearing and filed two affidavits providing some detail and background information as to its reasoning for its failure to attend the hearing and the parties' differing positions regarding their respective roles in the application of the management plan. The defendant brought an application to strike certain of the affidavits filed by the plaintiff on the basis that they were an attempt to put evidence to the court on matters not forming part of the record. Application to strike affidavits dismissed; the Rules do not preclude the admission of affidavits on an application and, in the present circumstances, reason and fairness militated against ruling the affidavits inadmissible. There was no authority for denying the parties the use of affidavits should this application proceed as a jurisdictional dispute and, should it proceed by way of an error of law on the face of the record, the affidavits were also admissible to complete the record.",9_2008nssc18.txt
82,"J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 87 Date: 2006 02 23 Docket: Q.B.C.A. No. 247/2005 Judicial Centre: Yorkton BETWEEN: WESTFAIR FOODS LTD. and HER MAJESTY THE QUEEN Counsel: Daryl E. Labach for the appellant Randy P. Kachur for the respondent JUDGMENT BARCLAY J. February 23, 2006 [1] Westfair Foods Ltd. (“Westfair”) is a corporation that was charged in an information which stated the following:THAT Westfair Foods Ltd., doing business as Extra Foods, 290 Prince William Drive, Melville, SK., on or about the 25th day of August, A.D. 2003, at or near the City of Melville, in the Province of Saskatchewan, did unlawfully furnish a tobacco product, to wit: cigarettes, to a young person in a public place, contrary to section 8(1) of the Tobacco Act, S.C. 1997, chapter 13. [2] On June 20, 2005, Provincial Court Judge Andrychuk convicted Westfair on the summary conviction offence. $3,000.00 fine was imposed as sentence. GROUNDS OF APPEAL [3] Westfair has appealed this conviction pursuant to s. 813 of the Criminal Code. This section confers the rights of appeal from adjudications made in summary conviction proceedings. Westfair is requesting that the conviction be quashed, the sentence vacated and an acquittal entered. Westfair has appealed its conviction on the following grounds: The learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case; The learned trial judge erred in law by failing to apply the doctrine of stare decisis; The verdict was unreasonable by being inconsistent with the acquittal of the appellant in the case of R. v. Westfair Foods Ltd. and Roy H. Friesen, Sask. P.C. Information No. 33262198, J.C. Regina, May 31, 2005, Smith P.C.J. [4] The facts, which are not in dispute, may be summarized as follows. On August 25, 2003, Westfair was operating grocery store in Melville, Saskatchewan under the trade name of Extra Foods. On that day, Kristy Schafer (“Kristy”), an employee of Westfair sold package of Players Light cigarettes to Josh Bray (“Josh”). Josh is 16-year-old test shopper employed by Health Canada. He was accompanied by DeLee Grant, Tobacco Enforcement Officer (“Ms. Grant”), during this compliance check. [5] At approximately 11:17 a.m., Josh entered the Extra Foods Store in Melville and went to the closest check out counter. Kristy was the 16-year-old sales clerk working that checkout counter. She had been hired on June 10, 2003 and had worked part‑time from that date until August 25, 2003. On the day in question, she was asked by Josh for package of Players Light cigarettes. Kristy got the package of cigarettes out of locked cabinet. She accepted Josh’s money for the cigarettes and then gave him his change, receipt, and the cigarettes. At no time did Kristy make any attempt to verify that Josh was at least 18 years of age nor was she shown any documentation verifying his age. [6] At approximately 11:20 a.m., Josh exited Extra Foods. He provided Ms. Grant, with the package of cigarettes, the change, and the receipt. These facts are not disputed by Westfair. Westfair relies on the statutory defence of due diligence. [7] The trial judge found Westfair guilty of violating s. of the Tobacco Act, S.C. 1997, c.13 (the “Act”). This section makes it an offence to furnish or sell tobacco to person under 18. The section states: 8.(1) No person shall furnish tobacco product to young person in public place or in place to which the public reasonably has access. (2) person shall not be found to have contravened subsection (1) if it is established that the person attempted to verify that the person was at least eighteen years of age by asking for and being shown documentation prescribed for the purposes of verifying age, and believed on reasonable grounds that the documentation was authentic. [8] Section 54 of the Act provides defence of due diligence for person that is charged with an offence under the Act. The section states: 54. In prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission. [9] Section of the Act is strict liability offence. The definition of strict liability offence was discussed by Dickson J. of the Supreme Court of Canada in v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] S.C.R. 1299. He categorized strict liability offences at p. 1326: 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability…. [10] Dickson J. in Sault Ste. Marie, supra, went on to discuss the defence of due diligence which was available to person accused of strict liability offence. He stated at p. 1331: Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused’s direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself.… [11] In R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] S.C.R. 154, the Supreme Court of Canada established that an accused who is charged with strict liability offence has the onus of establishing defence of due diligence which must be proved on balance of probabilities. [12] In R. v. Sobeys Inc. (2000), 2000 CanLII 1961 (NS SC), 181 N.S.R. (2d) 263; (2000), 45 W.C.B. (2d) 362; [2000] N.S.J. No. 32 (QL) heard in the Nova Scotia Supreme Court, Justice MacAdam dismissed an appeal from Sobeys Inc. who were convicted of selling tobacco to minor pursuant to the Tobacco Access Act, S.N.S. 1993, c. 14, s. 5(1). MacAdam J. discussed the defence of due diligence for this strict liability offence and stated at para.36: [36] Undisputed is that to establish the defence of due diligence, the accused must show, on balance of probabilities, that the conduct took place without its direction or approval, that it exercised all reasonable care by establishing proper system to prevent commission of the offence and, finally, that it took reasonable steps to ensure the effective operation of its system and supervised its operation.... SCOPE OF REVIEW [13] This summary conviction appeal was taken pursuant to s. 813 of the Criminal Code. The appeal procedure for summary conviction appeal can be found in Part XXVII of the Criminal Code (ss. 812‑839). Section 830(1) of the Criminal Code sets out the powers of the summary conviction appeal judge. An appeal can be heard from summary conviction court on the grounds that it is erroneous in point of law, it is excess of jurisdiction; or it constitutes refusal or failure to exercise jurisdiction. Section 830(2) states that the appeal of the summary conviction offence will be based on transcript of the proceedings or an agreed upon statement of facts. [14] This appeal was brought forward on three separate grounds. However, find that it is only necessary to address the first ground of appeal. [15] Westfair argues that the learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case. In the case at bar, whether Westfair proved the defence of due diligence on balance of probabilities is question of fact for the trial judge to determine: see R. v. Harris (1997), 1997 CanLII 990 (NS CA), 121 C.C.C. (3d) 64 (N.S.C.A.). This finding of fact cannot be disturbed by summary conviction appeal judge. However, in R. v. Fibreco Pulp Inc., [1997] B.C.J. No. 846 (QL), (1997) 88 B.C.A.C. 258, (1997) 23 C.E.L.R. (N.S.) 122 the British Columbia Court of Appeal confirmed that it is an error of law for judge to apply standard of perfection rather than standard of reasonable care when determining if defence of due diligence has been established for strict liability offence. [16] In R. v. Westfair Foods Ltd. and Roy H. Friesen, supra, the Provincial Court Judge who considered an identical charge against the same corporation held that Westfair Foods Ltd. had complied with its obligations under the Act. The learned Provincial Court Judge in conclusion stated: am satisfied that the evidence shows that Westfair Foods has completely complied with its obligation and is actually model, in my respectful opinion, for other people selling cigarettes as to how to conduct their business and, accordingly, acquit them of the charges. The system implemented by Westfair Foods Ltd. in R. v. Westfair Foods Ltd. and Roy H. Friesen to prevent the sale of tobacco to minors was essentially the same as the procedure followed by Westfair in this case. [17] The evidence tendered at the trial suggests that prior to the incident on August 25, 2003, Westfair had an established system created to prevent the commission of the offence of selling tobacco products to minors. Although the trial judge did not discuss this evidence in detail, will briefly summarize the facts surrounding the established system that Westfair had in place at the time of the offence in order to prevent the sale of tobacco to minors. [18] Each employee of the Extra Foods in Melville received written Tobacco Sales Policy when they were hired. The policy generally states that tobacco cannot be sold to anyone under the age of 18. If person looks as though there are under 25 years of age or if there is any doubt about the customer’s age, then the customer should be required to provide identification to the cashier before they can purchase tobacco. If the customer refuses to provide identification, the sale should be refused or the manager or supervisor should be called. The policy also states that failure to comply with the policy may result in charges being laid against the employee or the customer which could result in fines. Each employee is required to read the policy. The policy is then reviewed with them by the person conducting the training. If the new employee understands the policy then they will sign it. [19] On the first day of training, each newly employed cashier was required to participate in role playing. Valdeen Mathies, the head cashier in charge of training, would act as test shopper, fill her cart with products, and proceed through the check‑out line in order to train the cashier on the store’s policies and procedures. During this role playing exercise, Ms. Mathies would purchase tobacco so that the cashier could get comfortable with the stores policy and procedures surrounding the sale of tobacco. [20] Each cash register at the Extra Foods Store in Melville had cash register software which prompted the cashier to enter the customer’s date of birth when tobacco product was sold. The cashiers were advised that if customer appeared to be under 25 then their birth date must be entered into the till. If the cashier is satisfied that the customer looks 25 years or older then the cashier can enter the numbers 1909‑09‑09 into the till and this will override the screen prompt. [21] Ms. Mathies gave cashiers recognition tests every two to three weeks. These tests reviewed the store’s policies in relation to several areas and they always included questions about tobacco. Ms. Mathies testified that one of the possible questions she asked was in relation to the store’s policy on selling tobacco to minors. [22] Ms. Mathies testified that she conducted quarterly reviews with the cashiers based on the company’s Tobacco Sale Policy and their computer software policy designed to assist in preventing the sale of tobacco to underage customers. Each employee was required to sign sheet acknowledging that they had read and understood the policies. [23] There was sign located at every till which stated that it was illegal to sell tobacco to someone who is under 18. These signs were also on the locked cabinet that held the tobacco. [24] Ms. Mathies testified that the cashiers were trained to call supervisor, manager or assistant manager if customer was upset about being asked for identification when purchasing tobacco. The cashiers were told that they did not have to deal with the situation themselves. [25] Westfair had auditors that tested each store once year or at minimum once every two years. These audits may have included testing in relation to identification for tobacco sales. If there were any problems during the audit the store would be made aware of the results. [26] Westfair had implemented mandatory punishments for employees that sold tobacco products to minors. Probationary employees were terminated and regular employee would be subject to two week suspension. If regular employee sold tobacco to minor for second time, they were also dismissed. [27] The trial judge concluded that the appellant did not establish the defence of due diligence. There is no dispute as to the facts of this case. Although the trial judge correctly set out the state of the law surrounding the defence of due diligence, I am of the view that the trial judge erred in applying an unreasonably high standard for this defence. The question before the trial judge was whether the appellant had taken all reasonable care in establishing proper system to prevent their cashiers from selling tobacco to minors and whether they had taken reasonable steps to ensure the effective operation of this system. [28] In order to resolve this issue, the trial judge was required to consider what reasonable person would have done in these circumstances to avoid this offence. reasonable person is not required to possess extraordinary or great diligence. They are not required to exercise the extreme care that person of unusual prudence would apply. Instead, in establishing the defence of due diligence for strict liability offence, an accused must show that he took all reasonable steps to avoid the offence. [29] An analysis of the trial judge’s decision reveals that he applied higher standard of due diligence to the facts of the case than is warranted by the law. The trial judge applied standard of due diligence which required Westfair to be able to prove that there were no other possible precautions or actions that could have been taken to prevent the company’s cashiers from selling cigarettes. This standard exceeds the requirements of reasonable person. For the trial judge to find that Westfair had proven due diligence on the balance of probabilities, he implied that Westfair must be able to prove that there was nothing else that could have been done by the company to prevent the sale of tobacco to minors. The trial judge suggested that this burden had not been satisfied because Westfair could have given the cashiers training on age evaluation, they could have used in‑house test shoppers, they could have had older cashiers exclusively sell cigarettes, and they could have made it difficult to override the cash register software which prompts the cashier to enter the customer’s date of birth when tobacco product is sold. This burden is consistent with standard of perfection and essentially implies zero tolerance. Provincial Court Judge Fitzpatrick in R. v. Courtaulds Fibres Canada (1992), 1992 CanLII 12826 (ON CJ), 76 C.C.C. (3d) 68 (Ont. Prov. Ct.) held at p. 77: Reasonable care and due diligence do not mean superhuman efforts. They mean high standard of awareness and decisive, prompt and continuing action. To demand more, would, in my view, move strict liability offence dangerously close to one of absolute liability. [30] The trial judge should have inquired whether Westfair “exercised all reasonable care by establishing proper system to prevent the commission of the offence and, finally, that it took reasonable steps to ensure the effective operation of its system and supervised its operation” (Sobeys Inc., supra, at para. 36). By applying a higher standard of due diligence, the trial judge erred in law. Had the appropriate standard of due diligence been applied to the facts of this case, Westfair would have succeeded in establishing the defence of due diligence as was decided in R. v. Wesfair Foods Ltd. and Roy H. Friesen, supra. CONCLUSION [31] In summary then, this appeal is allowed, the conviction quashed and a verdict of an acquittal shall be entered. J. R. L. Barclay","The appellant appeals its conviction of selling tobacco to a minor contrary to s. 8(1) of the Tobacco Act. The appellant argues that the learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case. HELD: The appeal is allowed, the conviction is quashed and a verdict of acquittal is entered.  1) The court reviewed in detail the steps the appellant had in place. 2) The court was of the view that the trial judge erred in applying an unreasonably high standard for this defence. The trial judge applied a standard of due diligence that required the appellant to be able to prove that there were no other possible precautions or action that could have been taken to prevent the company's cashiers from selling cigarettes. This standard exceeds the requirements of a reasonable person. By applying a higher standard of due diligence, the trial judge erred in law. Had the appropriate standard of due diligence been applied to the facts of this case, the appellant would have succeeded.",c_2006skqb87.txt
83,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 534 Date: 2006 12 14 Docket: D.I.V. 331/99 Judicial Centre: Regina, Family Law Division BETWEEN: KIMBERLY SUZANE SMITH (formerly GOETHALS) and JEFFREY MAURICE GOETHALS Counsel: Terence G. Graf, Q.C. for the petitioner W. Timothy Stodalka for the respondent JUDGMENT SANDOMIRSKY J. December 14, 2006 HISTORICAL REVIEW [1] The respondent applies to vary the child support orders of Mr. Justice Kraus dated September 10, 1999, and December 7, 1999, and/or the alleged agreement struck by the petitioner and respondent in or about July, 2003. The respondent seeks this variation pursuant to s. 17(1) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and also pursuant to s. 10 of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. In addition to variation of the amount of child support, the respondent asks that the variation order apply retroactively to July 1, 2003. Finally, the respondent seeks costs to be assessed on solicitor/client basis. This application to vary is opposed in many, but not all, respects by the petitioner. [2] The petitioner and respondent consented to the order of Kraus J. dated September 10, 1999. At that point in time the petitioner and respondent were sharing the custody and care of both of their children, Meghan Elizabeth Goethals, born July 4, 1988, and Ryan Nicholas Goethals, born April 17, 1991. The children resided an equal amount of time with each party. Having agreed upon the division of the Canada Child Tax Benefit and GST quarterly rebate, the manner in which income credits (equivalent to spousal deduction) and the respondent having accepted exclusive responsibility for Ryan’s child care costs and other extraordinary expenses, the petitioner and respondent agreed that despite the petitioner having an annual income of $21,000.00 and the respondent having an annual income of $47,000.00, no interim basic Table child maintenance would be paid as between the parties. The respondent agreed to pay to the petitioner $250.00 per month as his share of Meghan’s special and/or extraordinary costs. [3] The consent order of Kraus J. dated November 25, 1999, varied the earlier consent order of September 10, 1999, when the respondent became unemployed and received employment insurance only. It was agreed that each of the petitioner and the respondent each had equal incomes of $21,000.00 and that as consequence of their equal sharing of parental care, neither the petitioner nor the respondent would pay basic nor special/extraordinary child support to the other. [4] The third consent order of Kraus J., dated December 7, 1999, arose as consequence of pre-trial conference conducted that day. The previous two consent orders were agreed to become permanent rather than interim orders. [5] On July 4, 2000, the parties were divorced. [6] fourth consent order was granted on July 6, 2001, and was captioned as an “Order Amended Pursuant to Q.B. Rule 343A”. This order amended the earlier shared custody and parenting regime upon which the previous orders were based. The primary residence of both children changed to be with the respondent. The petitioner was provided reasonable access only. The petitioner’s annual Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”) income was agreed to be $25,000.00 and she was therefore ordered to pay to the respondent child support for both children in the amount of $375.00 per month, commencing August 1, 2001. [7] The petitioner appealed this fourth order, dated July 6, 2001, to the Saskatchewan Court of Appeal. The Court of Appeal rendered judgment on November 16, 2001, remitting the following issues back to the Court of Queen’s Bench (a) Should the consent order of Kraus, J. dated December 7, 1999, be varied? and; (b) If there is no variation, for determination how to access specified in the order of Kraus, J. shall be specifically exercised. The Court of Appeal restored the order of Kraus J. dated September 10, 1999, pending the further determination of those issues by the Court of Queen’s Bench. [8] review of the transcript of the oral reasons of the Court of Appeal stated the panel of judges were unanimous in granting the petitioner’s appeal. The transcript reads, nan In our opinion, the trial judge failed to properly consider the issue of access and the underlying reasons for the appellant being unable to exercise the access specified in the consent order of December 7, 1999. [3] The order of Kraus J. dated September 10, 1999 is hereby restored pending the determination of the issues by the Court of Queen’s Bench. [9] Without further explanation or evidence, the court record is silent until the present application for variation was filed. The court assumes that the petitioner and respondent continued to equally share the responsibility of caring for Meghan and Ryan pursuant to the order of Kraus J. dated December 10, 1999, for the ensuing years of 2002 and 2003. No rehearing occurred pursuant to the Court of Appeal judgment. The Court of Appeal had in part found no material change of circumstance had occurred triggering the application to vary at Queen’s Bench. [10] In or about the month of May, 2003, the respondent and both children chose to move to the province of Manitoba thereby ending the shared parenting regime. This clearly represents material change of circumstance (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27). Rather than returning to the court to assess and determine the petitioner’s responsibility to pay child support to the respondent, the parties negotiated through their lawyers corresponding, as well as the petitioner and respondent personally discussing the child support issue. It is based upon this dialogue that the respondent today alleges an agreement was struck, whereas the petitioner denies such an agreement. An examination of the correspondence exchanged between counsel on the following dates was, therefore, undertaken: 1) MacLean Keith (for the respondent) to Ms. Duncan (for the petitioner), June 4, 2003; 2) Ms. Duncan to MacLean Keith, July 2, 2003; 3) MacLean Keith to Ms. Duncan, July 14, 2003, with draft consent order unexecuted enclosed; 4) Ms. Duncan to MacLean Keith, September 11, 2003; and 5) MacLean Keith to the petitioner, July 18, 2006. [11] To summarize the essential and relevant components of each of the above letters, find the following material facts: 1) On June 4, 2003, the respondent requested child support be paid by the petitioner in the sum of $460.00 per month per the Guideline Tables. The respondent refused the petitioner’s suggestion that the said Table amount be reduced due to the alleged hardship of excessive access costs claimed by the petitioner. 2) On July 2, 2003, Ms. Duncan wrote indicating the petitioner and respondent had agreed between themselves the following: (a) They shall continue to have joint custody of the children; (b) Ms. Smith shall have reasonable access; (c) Ms. Smith shall pay child support to Mr. Goethals in the sum of $380.00 per month commencing July 1, 2003. Ms. Smith will be sending Mr. Goethals cheque in this amount tomorrow. Mr. Goethals has agreed to accept less than the Guideline amount given Ms. Smith’s cost in exercising access. Consequently Ms. Smith will bear all of the costs of exercising access; (d) The Heritage Scholarship Trust accounts will be equally divided. Each parent will hold one half in trust for the post secondary education requirements of the children. Meghan’s account number is: 7008554 and Ryan’s is 7390629. 3) On July 14, 2003, MacLean Keith replied to Ms. Duncan enclosing draft consent order for consideration. The respondent acknowledged his acceptance of the sum of $380.00 per month as child support to be paid by the petitioner. This represented reduction of $80.00 from the Table amount to offset access costs between Saskatchewan and Manitoba. However, the respondent asserted such payment would have to be effective June 1, 2003, and not July 1, 2003, as the petitioner had proposed. The respondent also introduced into the draft order clause providing that the petitioner provide copy of her annual tax return and notice of assessment by June 30, 2004, and each June 30 thereafter to monitor whether child support should be adjusted. 4) On September 11, 2003, Ms. Duncan replied to MacLean Keith disagreeing that the proposed child support of $380.00 per month commence June 1, 2003, as opposed to July 1, 2003. She asserted that the petitioner and respondent verbally agreed to start date of July 1, 2003. In the second paragraph of her letter Ms. Duncan states: Therefore, we are prepared to execute Consent Order on the basis that the child support commencement date would be July 1, 2003. We suggest that the Order contain provision that both parties exchange income information in the form of tax returns and notices of assessment by May 15th of each year. 5) Communications ceased until MacLean Keith wrote to the petitioner on July 18, 2006, in which Mr. Stodalka stated, at paragraph 2: As you may recall, although we negotiated an agreement in September of 2003 which provided that you would pay child maintenance of $380.00 per month for Ryan and Meghan Goethals, no actual court order was ever taken out. Mr. Goethals acknowledges that you continued to pay this amount. CONCLUSION RE ALLEGED 2003 AGREEMENT [12] It is clear to the court that no legal and binding agreement was created in the year 2003. Offers and counter-offers were exchanged as summarized above. No counter-offer was ever unconditionally accepted upon which binding agreement arose at law. The petitioner and respondent proceeded forth on an informal basis which provided that the petitioner would pay to the respondent $380.00 per month commencing July 1, 2003, and on the first day of each month thereafter until August, 2006. The evidence establishes that Meghan concluded high school and registered to attend Red River College to take health care aide program commencing in September, 2006. [13] While Meghan’s status as child of the marriage has been continuous, the evidence establishes that Meghan left her father’s home and took up residence in Selkirk, Manitoba, with view to attending Red River College. The petitioner’s obligation to pay child support at the level of $380.00 per month for both children ceased. Here material change of circumstance again arises permitting this Court to proceed in fresh review of matters including evidence of the change in circumstances. [14] In Chambers the petitioner and respondent agreed that commencing September 1, 2006, the petitioner would be responsible for the maintenance of Meghan and the respondent would be responsible for the maintenance of Ryan. The parties agree that Meghan should complete her course of studies by the end of February, 2007. Therefore, commencing March 1, 2007, the petitioner would be obliged to pay to the respondent child support for Ryan. REMAINING ISSUES [15] What the parties vigorously dispute is: 1) The respondent’s claim to retroactive support commencing July 1, 2004, a date the respondent advances rather than July, 2003. 2) Whether the petitioner’s obligation to pay child support for Ryan commencing March 1, 2007, should be reduced given her allegation that undue hardship would accrue to her given the cost of exercising access between the provinces. THE LAW OF RETROACTIVITY [16] Counsel agreed with the court that the recent decision of the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII); (2006), 270 D.L.R. (4th) 297, hereinafter referred to as “DBS”, is the applicable law on the topic of retroactive child support. This proceeding was brought under s. 17 of the Divorce Act and DBS therefore has application to this action. [17] have previously found that there was no agreement which legally obliged the petitioner to disclose her income tax return and notice of assessment annually as the respondent alleges. Therefore, s. 25 of the Guidelines applies: 25(1) Every spouse against whom child support order has been made must, on the written request of the other spouse or the order assignee, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, provide that other spouse or the order assignee with (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents; (b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); and (c) as applicable, any current information, in writing, about the circumstances relied on by the court in determination of undue hardship. (2) Where court has determined that the spouse against whom child support order is sought does not have to pay child support because his or her income level is below the minimum amount required for application of the tables, that spouse must, on the written request of the other spouse, not more than once year after the determination and as long as the child is child within the meaning of these Guidelines, provide the other spouse with the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents. (3) Where the income information of the spouse in favour of whom child support order is made is used to determine the amount of the order, the spouse must, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, on the written request of the other spouse, provide the other spouse with the documents and information referred to in subsection (1). [18] At paragraph 61 of DBS the Supreme Court of Canada states that there are three separate situations in which it may be appropriate for court to order that retroactive support order be made. [19] At paragraph 62 the Supreme Court describes the first situation as being, ¶62 where there has already been court order for child support, but this amount has been inadequate for some time. The most common cause for an application of this variety would be an increase in the payor parent’s income that is not reflected by an increase in the amount of child support paid. In addition to request for prospective variation, parent in this situation would ask for retroactive award representing an additional amount due. [20] The Supreme Court then addresses the concern for certainty from the payor’s perspective versus the parent’s responsibility to continually insure that their children receive the appropriate amount of support. The court summarizes the balancing of these interests at paragraph 74 of DBS. ¶74 In summary, payor parent who diligently pays the child support amount ordered by court must be presumed to have fulfilled his/her support obligation towards his/her children. Acting consistently with the court order should provide the payor parent with the benefit of predictability, and degree of certainty in managing his/her affairs. However, the court order does not absolve the payor parent or the recipient parent, for that matter of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes. In situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for court, acting pursuant to the Divorce Act or the Parentage and Maintenance Act, to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable. [21] The second scenario identified by the Supreme Court of Canada in DBS is that where there has been previous agreement between the parties. The Supreme Court of Canada reasoning for the second scenario is also important in this application given the hybrid situation which the unique facts of this case present. The hybrid is that we commence the variation analysis afresh using the 1999 child support orders to be varied. Yet, the petitioner and respondent made an informal adjustment to the monthly quantum of child support to become $380.00 effective July 2003. This became the prevailing course of conduct without the formality of either court order or formal agreement. The reasoning of the Supreme Court of Canada under the second scenario is necessary and therefore quote paragraphs 75 to 78 inclusive, from DBS: ¶75 similar, but not identical, situation arises where child support obligations have previously been set out in an agreement between the parents. While many of the same considerations apply to this situation that applied to the situation of previous court order e.g., the payor or parent’s expectation that his/her support obligations have been fully defined the difference between an agreement and court order cannot be ignored. ¶76 In Miglin v. Miglin, [2003] S.C.R. 303, 2003 SCC 24 (CanLII), and Hartshorne v. Hartshorne, [2004] S.C.R. 550, 2004 SCC 22 (CanLII), (along with Arbour J. in the former case) discussed the importance of encouraging spouses to resolve their own affairs, as well as the complementary importance of having courts defer to that resolution. These cases dealt with spousal support issues, but many of the same considerations apply in the child support context. Prolonged and adversarial litigation is just as troubling if not more so in the child support context as in the spousal support context. ¶77 The fact that we are dealing with children must remain of primary significance in court’s analysis. Thus in the Divorce Act, Parliament has provided that court may depart form the Guidelines if both parents consent, but only “if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates”: s. 15.1(7). What is “reasonable” will be determined with reference to the Guidelines: s. 15.1(8). Because of this, payor parent who adheres to separation agreement that has not been endorsed by court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does payor parent acting pursuant to court order. ¶78 In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that smaller amount of child support may be explained by larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order retroactive award so long as the applicable statutory regime permits it: compare C.(S.E.) v. G.(D.C.) 2003 BCSC 896 (CanLII), 2003, 43 R.F.L. (5th) 41, 203 BCSC 896. [22] What the Supreme Court of Canada demonstrates in the above quotations is the need for trial court or Chambers judge to balance certainty and predictability, particularly from the payor’s perspective, against the right of children to be supported at level commensurate with the payor parent’s prevailing economic ability, ergo, income. [23] The third scenario, one of awarding retroactive support when there has not already been court order for child support to be paid, need not be pursued by me upon the facts of this application. have now defined the balancing of interests underlying this application. Next turn to the factors which are relevant in this application so as to determine whether retroactive child support should be ordered. [24] None of the factors discussed in DBS is decisive of the question whether retroactive child support should be ordered. At paragraph 99 the Supreme Court states, “at all times, court should strive for holistic view of the matter and decide each case on the basis of its particular factual matrix”. This caveat being stated, DBS then explores four factors: (a) Reasonable excuse for why support was not sought earlier (paras. 100–104); (b) Conduct of the payor parent (paras. 105–109); (c) Circumstances of the child (paras. 110–113); and (d) Hardship occasioned by retroactive award (paras. 114–117). [25] This judgment need not restate the Supreme Court of Canada’s reasoning as set forth in paragraphs 100–117. The reader can do that for him or herself. will consider each factor in light of the particular facts of this application. [26] There is no evidence before me that the respondent’s delay between June, 2004 and July, 2006 (the first time the respondent broached the issue of revising child support by sending letter to the petitioner) is reasonable excuse for inaction. First, there was no agreement that the petitioner disclosed her tax return on June 30, 2004 and each June 30 thereafter, as the respondent alleges. The respondent has been content to accept $380.00 per month as fair level of child support for both Meghan and Ryan. What precipitated the respondent’s review in July 2006 was Meghan’s departure from his home where she began to live independently with the prospect of attending college. What further propelled the continued action on the respondent’s part believe was the publicity attendant with the Supreme Court of Canada’s release of its judgment in DBS on July 31, 2006. I cannot find any reasonable excuse as to why the respondent did not seek a variation earlier, other than concluding that the respondent accepted $380.00 per month as reasonable in the circumstances that prevailed from July, 2003 until July, 2006. [27] The second factor is to examine the conduct of the petitioner as the payor parent. Is there evidence of blameworthy conduct on the petitioner’s part? The respondent argues that the failure to disclose her tax returns on June 30, 2004 and each subsequent year constituted a breach of their alleged 2003 agreement. I have found that there was no such agreement or obligation to disclose. Section 25 of the Guidelines therefore applies in the absence of covenant to disclose. No written request was made by the respondent within the meaning of s. 25. No verbal request was made by the respondent which might fall within Justice Bastarache’s definition of “effective notice”, that is the mere broaching of the subject of reviewing child support. [28] The increase in the petitioner’s level of income over the years 2002 to 2005, inclusive, is not so dramatic in my opinion as to constitute blameworthy conduct that privileges the petitioner’s own interests over her children’s right to an appropriate amount of support. The petitioner earned the following annual amounts for child support and Guideline purposes: 2002 $32,800.00 2003 $36,262.00 2004 $44,299.00 2005 $43,310.00 An increase of these proportions would not lead me to conclude that the petitioner was not contributing to her children’s support in a satisfactory manner. The respondent calculates the alleged shortfall from strict annual adjusted Guideline between July 1, 2004 to August 30, 2006, amounts to $4,322.00. This is the equivalent of $172.00 per month shortfall on the average. [29] am troubled by the definition of “blameworthy conduct” which Bastarache J. provides at paragraph 106 of DBS. He states, “I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”. That definition is far too wide in my respectful opinion. It blurs the line of demarcation between majority and minority opinions in DBS. Given that liberal and generous definition, virtually all increases of the payor’s income would privilege the payor’s own interests over the children’s right to an appropriate amount of child support. am certain that Justice Bastarache did not intend minute or even slightly modest increases in the payor’s income would trigger blameworthy conduct. Deminimus non curat lex. My view of the evidence in this application is that the annual increases equivalent to roughly 10% per annum, when adjusted for the annual rate of inflation, are not so significant that the petitioner would have reasonably thought that she was feathering her own nest at the expense of her children. [30] When considering the circumstances of Meghan and Ryan over the same period of years, 2003 to 2005, no evidence was provided that their standard of living was compromised as a direct consequence of the petitioner not taking the initiative to adjust her child support payments annually. Nor was there evidence of financial hardship experienced by the children in this time period. [31] Finally, must consider the probability of hardship which might be occasioned to the petitioner if were to order her to pay the sum of $4,322.00 as retroactive adjustment of child support. At paragraph 116 DBS confirms that “the courts should attempt to craft retroactive award in way that minimizes hardship While hardship for the payor parent is much less of concern where it is the product of his/her own blameworthy conduct, it remains strong one where this is not the case”. [32] I do not find the petitioner’s conduct blameworthy. To order retroactive support of $4,322.00, whether payable in a lump sum or by installments over time, would, in my opinion, represent a hardship to a wage earner in the petitioner’s category. [33] The court file discloses that the respondent’s income was $67,986.00 in 1996. In 1997 his income was $59,375.00. In 1998 his income was $61,870.00. By 2000 his income had dropped to $37,771.00 and currently it is estimated to be $22,272.00 in this year. The respondent appears to have experienced steady and remarkable decline in his personal income since the commencement of these proceedings in 1999. Since 2003 the respondent’s income is not relevant consideration in that he has been the custodial parent. However, the respondent’s declining income can be considered as evidence when the court surveys the circumstances of the children over period where retroactive child support is being sought. am neither blindfolded nor required to use tunnel vision when interpreting the evidence as pursue an understanding of the relevant financial history of this family. However, must not draw any improper or unwarranted inferences from the evidence available. [34] The effective date in this case find to be July 18, 2006. This is when the matter of financial disclosure and review of child support was first raised or broached by the respondent. None of the factors reviewed above require that look behind the effective date. The petitioner has not engaged in blameworthy conduct. have attempted to balance the petitioner’s interest in certainty with the need for fairness and flexibility. I, therefore, dismiss the respondent’s application for retroactive child support. [35] In DBS the Supreme Court summarized this point at paragraph 133: ¶133 In determining whether to make retroactive award, court will need to look at all the relevant circumstances of the case in front of it. The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, court should consider whether the recipient parent has supplied reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail. PROSPECTIVE CHILD SUPPORT [36] The parties have agreed that the petitioner will support Meghan and the respondent will support Ryan without further adjustment befitting split custody arrangement for the period between September 1, 2006, and February 28, 2007. Absent such an agreement, s. of the Guidelines would require set-off based upon the parents’ respective incomes. The petitioner, with the higher income, would have to pay the respondent child support, the latter having the lower income. [37] The parties ask the court to determine the prospective amount of child support commencing March 1, 2007. This assumes Meghan will cease to have status as child of the marriage at that date. If that fact materializes, then the petitioner will have an obligation to pay child support for her son, Ryan, based upon her current income. The evidence establishes her income to be approximately $52,000.00 in year 2006 (para. 11 of her affidavit). That income extrapolates to monthly obligation of $443.00 payable by the petitioner to the respondent for Ryan’s maintenance, commencing March 1, 2007, and payable on the first day of each month thereafter while Ryan is child of the marriage. Ryan will be 16 years old on April 17, 2007. No claim has been advanced for s. contribution toward special or extraordinary expenses incurred for Ryan. [38] further find that reduction in the amount of child support is not warranted in the absence of the petitioner establishing claim that she would suffer undue hardship under s. 10(2)(b) of the Guidelines that is an unusually high expense in relation to exercising access to Ryan. Section 10(3) of the Guidelines states: 10(3) Despite determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections to 5, or 9, have higher standard of living than the household of the other spouse. [39] The petitioner has significantly higher income than the respondent alleges he will earn, that is $52,000.00 versus $22,000.00. Neither the petitioner nor respondent have testified to any other household income other than the Canada Child Tax Benefit or GST rebate. cannot conceive that the petitioner could demonstrate that the standard of living in her household would be lower than the standard of living in the respondent’s household. The plaintiff’s claim for reduction in the Table amount of child support must, therefore, fail. [40] The arguments of each of the parties were meritorious and the success mixed upon the two issues left to the court. In these circumstances there shall be no order as to costs. J. N.S. Sandomirsky","The primary issue in this application is the respondent's claim to retroactive support. HELD: 1) The Court reviewed the cases from the Supreme Court of Canada regarding retroactive child support and in particular D.B.S. v. S.R.G. et al, 2006 SCC 37. 2) The respondent has been content to accept $380 per month as fair level of child support for both children. What precipitated the respondent's review in July 2006 was Meghan's departure from his home where she began to live independently with the prospect of attending college. What further propelled the continued action on the respondent's part was the publicity attendant with the Supreme Court of Canada's release of its judgment in July 2006. There is no reasonable excuse as to why the respondent did not seek a variation earlier, other than concluding that the respondent accepted $380 per month as reasonable in the circumstances that prevailed from July 2003 to July 2006. 3) There is no evidence of blameworthy conduct on the petitioner's part. There was no agreement or obligation to disclose tax returns. No written request was made pursuant to s. 25 of the Guidelines. No verbal request was made by the respondent which might fall within the definition of 'effective notice'. The increase in the petitioner's level of income over the years 2002 to 2005 is not so dramatic as to constitute blameworthy conduct that privileges the petitioner's own interests over her children's right to an appropriate amount of support. In 2002, the petitioner earned $32,800 and, by 2005, she earned $43,310. An increase of these proportions would not lead the Court to conclude that the petitioner was not contributing to her children's support in a satisfactory manner. The Court's view of the evidence is that the annual increases equivalent to roughly 10% per annum, when adjusted for the annual rate of inflation, are not so significant that the petitioner would have reasonably thought that she was feathering her own nest at the expense of her children. 4) There was no evidence that the children's standard of living was compromised as a direct consequence of the petitioner not taking the initiative to adjust her child support payments annually. Nor was there evidence of financial hardship experienced by the children. 5) To order retroactive support of $4,322, whether payable in a lump sum or by installments over time, would represent a hardship to a wage earner in the petitioner's category. The application for retroactive child support is dismissed.",e_2006skqb534.txt
84,"E. J. GUNN IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 153 Date: November 12, 2010 Information: 24164524 Location: La Ronge Between: Her Majesty the Queen and Jason Paulsen Appearing: Inez Cardinal For the Crown Peter A. Abrametz For the Accused INTERIM RULING F.M. DAUNT, [1] Jason Paulsen stands charged with seven counts on a single information, including the following: Count 1. Between the dates of September 20, 2009 AD and September 25, 2009 AD at/near Waterbury Lake in the Province of Saskatchewan didWithout lawful authority, angle in Saskatchewan waters without a licence to wit: angle on Waterbury Lake, contrary to section 11(1) of The Fisheries Regulations F-16.1 Reg 1. Count 2. On or about June 14, 2009 AD at/near Prince Albert in the Province of Saskatchewan didWithout lawful authority apply for or obtain a licence while disqualified or prohibited, contrary to section 9 of The Fisheries Regulations F-16.1 Reg 1 Count 3. On or about September 25, 2009 AD at/near La Ronge in the Province of Saskatchewan didWithout lawful authority, possess fish except in accordance with any licence or any provision of The Fisheries Act (Saskatchewan), 1994 or the Fisheries Act (Canada), contrary to section 13 of The Fisheries Act (Saskatchewan), 1994. [2] At the close of the Crown’s case, defence brought Charter application challenging the constitutionality of section 35 of The Fisheries Act, 1994, alleging it breaches sections and 11(d) of the Canadian Charter of Rights and Freedoms. [3] Section 35 of The Fisheries Act, 1994 states: In any prosecution pursuant to this Act in which the validity or existence of licence is in question, the onus is on the person charged to prove the validity or existence of the licence. [4] Defence argues that section 35 is unconstitutional in that it creates reverse onus, infringing the right of the accused to be presumed innocent until proven guilty, and is not saved by section of the Charter. The Crown argues that section 35 is constitutionally valid, citing numerous decisions upholding the constitutionality of reverse onus provisions in regulatory context. [5] There is side issue, fully argued by both sides, which is mostly irrelevant to the Charter argument. Mr. Paulsen did possess fishing licence, valid on its face. The issue is whether person named Kevin Callele had the authority under The Fisheries Act to prohibit Mr. Paulsen from applying for or obtaining an angling licence. To put it another way, the issue is this: was there a valid ministerial order revoking Mr. Paulsen’s licence and prohibiting him from applying for or obtaining a licence at the relevant times? FACTUAL BACKGROUND [6] On December 3, 2008, letter was prepared from Saskatchewan Environment, 3211 Albert Street, Regina, Canada S4S 5W6 in the name of Kevin Callele, Acting Executive Director, Fish and Wildlife Branch. It was addressed to Mr. Jason Paulsen, RR#3 Site Comp 19, Prince Albert SK S6V 5R1. The letter was signed by some unknown person, “for” Kevin Callele. Entered as Exhibit P1 on the trial was photocopy of photocopy of the original letter. The text of the letter is as follows: Dear Mr. Paulsen: This is in response to your conviction under subsection 13(4) of The Fisheries Regulations (Saskatchewan) for the offence of exceeding the angling limit which occurred on September 25, 2007. The Ministry of Environment is mandated to manage, enhance and protect Saskatchewan’s natural and environmental resources for conservation, social, economic and recreation purposes, and to ensure they are sustained for future generations. The public expect that people appreciate, respect and comply with the policy and legislation governing the management of the provincial fish resource. Blatant abuse of this precious resource is viewed as very serious matter. Accordingly, due to your conviction, your current angling licence is revoked and you are prohibited from applying for, or obtaining an angling licence for the Province of Saskatchewan for period of five years from the date of your conviction. You will be eligible to purchase an angling licence on October 15, 2013. Please contact Lyle Galloway, Compliance Manager, La Ronge Compliance Area at telephone number (306) 425-4244 if you have any questions regarding the suspension imposed. [7] On December 9, 2008, William Zimmer, Conservation Officer for the Ministry of Environment in Prince Albert, Saskatchewan, tried to serve Mr. Paulsen personally with the original letter. There was no indication in the evidence why he was not served by registered mail, as is allowed in The Fisheries Act. [8] In any event, Officer Zimmer drove to what he “firmly believed” was the residence of Mr. Paulsen. This was west of Prince Albert. Mr. Paulsen’s mailing address was Rural Route number and did not identify his specific residence. Officer Zimmer drove into the yard. There was diesel truck parked and running. Officer Zimmer knocked on the door to the residence. There was no answer. Officer Zimmer then did registered licence check through their enforcement centre dispatch in Prince Albert. Although Officer Zimmer recalled that the truck was registered to Jason Paulsen, in reality it was registered to his business, Paulsen Son Excavating Ltd. [9] Officer Zimmer then called the “Jason Paulsen residence” on his cell phone. He could not recall where he got the number that he called, whether from the phone book or from calling information. Although he could recognize Jason Paulsen to see him, he did not know him well enough to recognize his voice. He testified: received an answer. talked to, at that point, an unknown male person. was asking indicated that wanted to meet with Jason Paulsen. The conversation led to why am there. indicated why was there, who was with. indicated was with the Ministry of Environment and had to speak with him, and the conversation didn’t really go much beyond that…. Mostly that was there and needed to serve him letter. needed to speak with him regarding an angling suspension. Those kind of things. The conversation was short, fairly abrupt. [10] He says the unknown male was belligerent with him, and said the case was under appeal. The male person did not identify himself on the telephone. [11] Officer Zimmer then went back to the yard site. He walked up to the front porch and knocked on the door. He heard somebody talking, but there was no invitation to enter. He opened the door crack. As man inside yelled profanities at him, Officer Zimmer said he had an “angling fishing licence suspension.” He put his arm through the crack in the door and set that letter on small stand or table inside the house. He did not see any of the occupants of the house at any time. Officer Zimmer could not be sure that the occupant heard him when he said anything about the licence suspension. He also could not say whether anyone in the house saw him place the envelope on stand inside the door. Officer Zimmer then left the house and yard. [12] The original letter signed on behalf of Kevin Callele was placed inside this doorway. Officer Zimmer kept photocopy for his records. Tendered in Court was photocopy of that photocopy. [13] The next happening of interest was on September 20, 2009, when Jason Paulsen went on fishing trip to Waterbury Lake, along with his sister, Nicole, and three small children. Mr. Paulsen had fishing licence which was dated June 14, 2009, issued by Vendor 36640, the Prince Albert Co-op gas station. Nicole also had fishing licence. The children did not require licences, and had none. Through an elaborate covert operation, Mr. Paulsen was observed “actively angling” numerous times between September 20th and September 25th. [14] On September 25th, Mr. Paulsen and his companions packed up for the long drive back to Prince Albert. Mr. Paulsen was driving the same truck observed by Officer Zimmer in the yard west of Prince Albert. Just before midnight, the vehicle approached La Ronge from the north. The group still had two and half hours to go before they got home. Rather than continue on home to bed, however, the group was stopped by local conservation officers, who were in possession of search warrant. The three little boys, Nicole and Mr. Paulsen were redirected to the Sask. Environment maintenance compound. [15] The search warrant was executed over the course of about two hours. From the vehicle were seized (among numerous other items, including boat and motor) stainless steel cooler with the name and address of the accused scratched into it, blue cooler, and plastic food cooler, all of which contained fish. In total, there were 20 fish: lake trout, pike and arctic grayling. Assuming their licences were valid, there is no suggestion that these amounts were over limit for any of the anglers, or that the manner of transportation was against any regulations. [16] It took about another hour before the group could rearrange the non-seized items and put them into the truck. They resumed their long journey shortly before 3:00 a.m. 1. Was there valid revocation and prohibition? [17] As previously stated, this is side issue and irrelevant to the constitutional issue. However, if defence is correct and Mr. Callele had no authority to prohibit Mr. Paulsen from applying for fishing licence, counts 1, and must fail and the burden of proof issue under section 35 becomes irrelevant. If there was no valid prohibition, Mr. Paulsen possessed valid licence and did not fish or possess fish except in accordance with that valid licence. [18] Section 27 of The Fisheries Act (Saskatchewan), 1994 states as follows: (1) The minister may revoke person’s licence or revoke person’s licence and prohibit that person from applying for or obtaining licence for not more than five years where the minister is satisfied that the person has contravened: (a) any provision of this Act; (b) any provision of the Fisheries Act (Canada) or any regulations made pursuant to that Act; or (c) any terms or conditions specified in the person’s licence. (2) Where the minister revokes person’s licence or revokes person’s licence and prohibits that person from applying for or obtaining licence, the minister shall serve the person with written notice of the revocation or revocation and prohibition by personal service or registered mail. (3) revocation or revocation and prohibition takes effect on the later of: (a) ... (b) the day on which it is served in the case of personal service[.] [19] prerequisite to the prohibition is that the minister must be satisfied that person has contravened any provision of “this Act,” i.e. The Fisheries Act (Saskatchewan), 1994. Section 27 does not give the minister the power to revoke when a person contravenes The Fisheries Regulations. Paragraph (b) allows revocation upon contravention of Regulations made pursuant to the federal Act. Had the legislature intended that power to be extended to violations of the provincial Regulations, certainly they would have specified such, as they did in paragraph (b). Section 27(1) of The Interpretation Act, 1995 defines “Act” as “an Act of the legislature and includes an Ordinance of the Northwest Territories in force in Saskatchewan.” The definition of Act does not include its Regulations. The letter addressed to Mr. Paulsen states specifically that the prohibition is in response to his conviction under subsection 13(4) of The Fisheries Regulations (Saskatchewan). Section 27 of The Fisheries Act (Saskatchewan), 1994 does not give the minister that power. For that reason alone, the prohibition is not valid on its face, as being without authority. [20] “Minister” is defined in section 2(1)(j) of the Act as “the member of the Executive Council to whom for the time being the administration of this Act is assigned.” The Crown has conceded that Kevin Callele is not a member of the Executive Council. Defence argues that, therefore, he had no authority to prohibit Mr. Paulsen from applying for or obtaining fishing licence. The Crown, however, points to sections 23 and 23.1 of The Interpretation Act. They read as follows: 23(2)Where an enactment directs or empowers minister of the Crown to do an act or thing, that act or thing may be done on the minister’s behalf by any person appointed to serve in the department over which the minister presides if: (a) (b) that person is appointed to serve in capacity appropriate to the doing of the act or thing whether or not he or she, or any other person, was authorized by the minister to do the act or thing. 23.1(1) Unless an enactment expressly provides otherwise, section 23 applies to every act or thing that minister may do pursuant to an enactment, whether it is administrative, legislative, judicial or otherwise and whether or not it involves the holding of an opinion or the reaching of conclusion by minister. [21] Section 23 applies, even if the act is judicial one, to allow the minister to delegate to others to act “on the minister’s behalf.” However, because the minister had no power to revoke, that power could not be delegated to Mr. Callele pursuant to section 23(2) of The Interpretation Act. If remember my law school maxims correctly, nemo dat quod non habet: no one can give what he does not have. [22] Exhibit P1 is letter from Kevin Callele, “A/Executive Director, Fish and Wildlife Branch”, on Saskatchewan Environment letterhead. It is not signed by him. It is signed by an unknown person “for” Kevin Callele. It would seem that there is no other record of this ministerial decision separate from the letter that provides notice of the decision. That is, there is no independent document recording the decision or the process required to reach the decision. Because Mr. Callele did not sign the letter, do not know if he wrote it himself, had someone write it for him, dictated it to someone else or if he typed it himself. If he was the author of the document, do not know if he read it before it left his office, to make sure it was correct and that it accurately reflected the decision he made. [23] find that the unknown person who signed on behalf of Mr. Callele had no authority to act on behalf of the minister. signature confirms that the document is correct and reflects the intention of the author. For most letters prepared in the ordinary course of business, it is common practice to have secretary or colleague sign on one’s behalf. If there are mistakes, they can be corrected later or they are not that important. For letter of this nature, however, which serves as notice of ministerial decision, nothing in The Interpretation Act allows this further level of delegation. [24] Furthermore, even if Mr. Callele or his delegate had the power to issue the revocation and prohibition, Mr. Paulsen was neither served personally nor by registered mail with notice of that revocation and prohibition. It was never explained why he was not served by registered mail, which would have been the simplest, least confrontational way, and easy to prove. However, no matter who has the burden of proof, shoving letter through crack in the door is not “personal service” by any definition. No further attempts were made to serve Mr. Paulsen, either personally or by registered mail. According to The Fisheries Act, the prohibition takes effect on the day on which it is served, in the case of personal service. Here, Mr. Paulsen was never properly served. Nor was he served by registered mail, in which case it would take effect on the delivery date or on the date the signed post office receipt is returned to the sender. [25] Exhibit P1 is not document valid on its face. It purports to revoke Mr. Paulsen’s licence and prohibit him from applying for licence because of specific conviction. That conviction does not give the minister or anyone else the power to revoke and prohibit. It is signed by an unknown, unidentified person. This is not collateral attack on ministerial order, valid on its face. It is void ab initio, having been made without authority. It is invalid on its face. [26] In conclusion, I find that there was no prohibition order in effect within the meaning of section 27 of The Fisheries Act. Counts 1, and all depend on the fact that Mr. Paulsen was prohibited from obtaining fishing licence at the relevant times. As result, they all must fail. This is so, no matter who has the burden of proof of the validity of Mr. Paulsen’s licence. If the Crown bears the onus, whether on reasonable doubt standard or on balance of probabilities, they have failed to meet it. If the accused bears the burden, he has met it through the Crown’s evidence. Mr. Paulsen had licence, valid on its face. He acted in compliance with that licence. There was no valid section 27 revocation or prohibition in place so as to invalidate his licence. Counts 1, 2 and 3 are dismissed. [27] Therefore, do not have to decide the constitutional question, as it is moot, and decline to do so. F.M. Daunt,","The accused was charged with angling without a license, applying for a license when prohibited and possessing fish without a license contrary to various sections of The Fisheries Act and The Fisheries Regulations. The accused raised a Charter defence arguing that section 35 of The Fisheries Act was unconstitutional. The issue for the trial judge was whether there was a valid ministerial order revoking the accused's license and prohibiting him from applying for or obtaining a fishing license. A conservation officer had attempted to serve the accused with a copy of letter signed by an unknown person on behalf of the Acting Executive Director, Fish and Wildlife Branch. The letter purported to advise the accused that due to a previous conviction his current fishing license was revoked and he was prohibited from obtaining another one. The letter referenced a prohibition under s. 13(4) of The Fisheries Regulations. The conversation officer testified that he opened the door of a house that he thought belonged to the accused and left the letter on a stand near the door. The conservation officer was unable to say if the occupant heard him say anything about a license suspension or whether anyone in the house saw him place the envelope on the stand inside the door. HELD: Section 27 of The Fisheries Act (Saskatchewan) does not give the minister the power to revoke the a license when a person contravenes the The Fisheries Regulations. Further, the Acting Executive Director, Fish and Wildlife Branch is not a member of Executive Council as required by the definition of 'Minister' in the Act. The letter was signed by an unknown person who clearly did not meet the definition of 'Minister.' Finally, the letter was not served on the accused personally or via registered mail. There was no prohibition order in effect within the meaning of section 27 of The Fisheries Act. The accused was acquitted of all three counts. It was unnecessary to decide the constitutional issue.",2010skpc153.txt
85,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 257 Date: 20050602 Docket: Q.B. CRIM 1963 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and MARGARET JEAN FITCH Counsel: Ronald J. Balacko for the Crown Kenneth S. Westlake for the Margaret Jean Fitch FIAT ON APPLICATION FOR DISCLOSURE MacDONALD J. June 2, 2005 [1] Thank you to both counsel for providing their arguments and extensive authorities. [2] The essence of the authorities is that on motions of this kind the Court ought to guard against the pursuit of what have been termed “fishing expeditions”—speculative quests for information without any real expectation about the outcome of the quest or its relevance to the case. [3] Here, however, the defence has already indicated that issues around s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) will be raised at trial. [4] Defence now wants further disclosure of information for the purpose of preparing for and pursuing inquiry into the facts that relate to those important issues. [5] To pursue the fishing analogy so often used in the authorities, the purpose of such an inquiry will in part be to determine whether, in comparison with the guarantees given by the Charter, the investigation in this case “cast too wide net”. [6] Accordingly, the Crown shall make timely disclosure of: (a) The number of stops of out-of-province vehicles made by Constable Chornecki in each of the years 2002, 2003 and 2004; (b) The reason for each stop in the first place; (c) How many such stops resulted in search for contraband, including narcotics; (d) How many of those searches were done using the “consent” form used by Constable Chornecki; (e) How many of those searches were conducted using search warrant; (f) Specifics of any other grounds for those searches that were applied and how many times; (g) On how many occasions did the searches result in the finding of contraband, including narcotics; [7] The parties will note that have not ordered that the names of the drivers stopped be disclosed and that have not ordered the actual notes of the officer to be reproduced. The notes of course will presumably supply some details of the required disclosure as ordered above and as usual will need to be made available for the purposes of evidence at trial if required and shown to be relevant to the proceedings as they unfold. J. L. B. MacDonald",FIAT: The defence has indicated that issues around s. 8 and s. 9 of the Charter will be raised at trial. Defence now wants further disclosure of information that relate to those important issues. HELD: Further disclosure is ordered. The names of the drivers stopped will not be disclosed and the actual notes of the officer are not ordered to be produced.,2005skqb257.txt
86,"J. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Pellicer v. Williams 2012 NSSC 359 Date: 20121019 Docket: 1201-063597 Registry: Halifax Between: Rocio (Williams) Pellicer and Paul Edward Williams Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Submissions: Written Submissions on costs were received on August 22, 2012 Issues: Whether costs should be awarded following separate custody and child support hearings on October 25, 2011 and June 20, 2012 respectively. An oral decision on October 27, 2011 followed the October 25, 2011 hearing. written decision followed the June 20, 2011 hearing on child support. The later decision is reported at 2012 NSSC 267 (CanLII). Summary: The Court concluded the Respondent should pay costs of $3,000 Keywords: Costs; custody and child support Legislation: Costs and Fees Act, R.S.N.S., 1989, c.104 and Rule 77 Cases Considered: L.(N.D.) v. L.(M.S.), 2010 NSSC 159 (CanLII) Robar v. Arseneau, 2010 NSSC 175 (CanLII) R.(A.) v. R.(G.), 2010 NSSC 377 (CanLII) Shurson v. Shurson, 2011 NSSC 344 (CanLII) THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Pellicer v. Williams, 2012 NSSC 359 Date: 20121019 Docket: 1201-063597 Registry: Halifax Between: Rocio (Williams) Pellicer and Paul Edward Williams Respondent Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Submissions: Written Submissions on costs were received from Ms. Rocio (Williams) Pellicer, counsel only Related Decision(s): 2012 NSSC 267 (CanLII) Counsel: Janet M. Stevenson, for the Applicant Paul E. Williams, Self Represented By the Court: Background [1] This is a costs decision. The parties litigated the apportionment of custody and access rights and the quantification of child support and special expenses for their two children. [2] An oral decision on October 27, 2011 followed custody/access hearing on October 25, 2011. written decision followed the June 20, 2012 hearing on child support. This later decision is reported at 2012 NSSC 267 (CanLII). 1. If the court is to make costs award, what is the appropriate order? General Principles Governing Costs [4] The new Rule on costs is Rule 77. It contains the tariffs when applying an amount involved assessment to determine costs payable by party. Justice Dellapinna, in Tamlyn v. Wilcox, 2010 NSSC 363 (CanLII), 2010 NSSC 363, reviewed the transition from the 1972 Rules to the new Rules. His commentary is helpful guide in tracing the changes. [5] Justice B. MacDonald of this court summarized the applicable principles to apply when determining an appropriate costs award in L. (N.D.) v. L. (M.S.), 2010 NSSC 159 (CanLII), 2010 NSSC 159. She stated the following at paragraph 3: 3. Several principles emerge from the Rules and the case law. 1. Costs are in the discretion of the Court. 2. successful party is generally entitled to cost award. 3. decision not to award costs must be for ""very good reason"" and be based on principle. 4. Deference to the best interests of child, misconduct, oppressive and vexatious conduct, misuse of the court's time, unnecessarily increasing costs to party, and failure to disclose information may justify decision not to award costs to otherwise successful party or to reduce cost award. 5. The amount of party and party cost award should ""represent substantial contribution towards the parties' reasonable expenses in presenting or defending the proceeding, but should not amount to complete indemnity"". 6. The ability of party to pay cost award is factor that can be considered; but as noted by Judge Dyer in M.C.Q. v. P.L.T. 2005 NSFC 27 (CanLII), 2005 NSFC 27: ""Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves (because of public or third‑party funding) but at large expense to others who must ""pay their own way"". In such cases, fairness may dictate that the successful party's recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65 (CanLII), 2004 BCSC 65]."" 7. The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8. In the first analysis the ""amount involved"", required for the application of the tariffs and for the general consideration of quantum, is the dollar amount awarded to the successful party at trial. If the trial did not involve money amount other factors apply. The nature of matrimonial proceedings may complicate or preclude the determination of the ""amount involved"". 9. When determining the ""amount involved"" proves difficult or impossible the court may use ""rule of thumb"" by equating each day of trial to an amount of $20,000 in order to determine the ""amount involved"". 10. If the award determined by the tariff does not represent substantial contribution towards the parties' reasonable expenses ""it is preferable not to increase artificially the ""amount involved"", but rather, to award lump sum"". However, departure from the tariff should be infrequent. 11. In determining what are ""reasonable expenses"", the fees billed to successful party may be considered but this is only one factor among many to be reviewed. 12. When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and also examine the reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court. [6] Justice Gass, in Pelrine v. Pelrine, 2007 NSSC 123 (CanLII), 2007 NSSC 123, decision of this court dated April 18, 2007, considered the issue of costs claimed by both parties, following divorce proceeding which was heard over four days. Post‑trial submissions were filed. The petitioner sought approximately $11,000.00 in costs, including HST and disbursements, and the respondent sought approximately $9,000.00 plus disbursements of approximately $3,600.00. [7] Of particular interest is that Justice Gass found failure to timely disclose on the part of the petitioner. She also assessed the relative “success” of the parties and the presence or absence of offers to settle. Justice Gass ordered costs to the respondent in the amount of $3,031.00 plus $2,000.00 towards disbursements. [8] In Robar v. Arseneau, 2010 NSSC 175 (CanLII), 2010 NSSC 175, ordered costs of $5,138.00 inclusive of HST and disbursements to be paid at rate of $150.00 per month. In that case, the applicant’s case to set aside the parties’ separation agreement was dismissed and Ms. Robar was found to have been unreasonable. She was also found to have rejected offers to settle. The matter required court time on two days. applied scale of Tariff “A.” The amount involved was within the $40,001.00 ‑$65,000.00 range. Ms. Robar was subject to significant financial hardship at the time. This was factor weighing against higher costs award. [9] The case of Provost v. Marsden, 2009 NSSC 365 (CanLII) involved an assessment of child support obligations. applied Tariff “A”, there being decision following half‑day hearing. The amount involved was in the $40,001.00 $65,000.00 range. Success on the issues was mixed but Mr. Marsden was found to have been the more successful party. This case also involved an offer to settle. Costs totalling $3,000.00 inclusive of HST and disbursements were ordered (2010 NSSC 423 (CanLII)). [10] The case of R. (A.) v. R.(G.), 2010 NSSC 377 (CanLII) resulted in costs award of $3,000.00 inclusive of HST and disbursements. The hearing concerned the parenting arrangement for the parties’ two children. The conduct of the applicant was found to have been aggravating. The amount involved was $20,000.00 this representing the amount involved when full day of court time is consumed (2010 NSSC 424 (cost decision) (CanLII). [11] In Burchill v. Savoie, 2011 NSSC 163 (CanLII), ordered costs of $35,000 inclusive of taxes and disbursements. [12] In Shurson v. Shurson, 2011 NSSC 344 (CanLII), ordered the parties to pay their own costs given the mixed success of the parties. [13] Justice Jollimore, in Peraud Peraud, 2011 NSSC 80 (CanLII), 2011 NSSC 80, reviewed the law governing when litigant may be permitted to deduct legal expenses from total income for income tax purposes. At paragraph19, she wrote: [19] The amount of fees, disbursements and taxes billed to party are not necessarily the same as the amount the party pays when the expenses are incurred in matters relating to support. The Income Tax Act, R.S.C. 1985 (5th Supp), c. 1, s. 18, allows that legal and accounting fees may be deducted from total income to determine taxable income. Canada Revenue Agency's Income Tax Technical News Release Number 24 of October 10, 2002 changed the terms of the Agency's Interpretation Bulletin IT‑99R5: Legal and Accounting Fees, making it possible for party to deduct expenses incurred to obtain spousal support under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, the Maintenance and Custody Act, R.S.N.S. 1989, c. 160 and other similar provincial legislation across Canada. If litigant is able to deduct legal expenses from total income, the resulting reduction in total income serves to diminish the litigant's tax bill. [14] Arriving at costs assessment in matrimonial matters is difficult given the often mixed outcome and the need to consider the impact of an onerous costs award on families and children in particular. The need for the court to exercise its discretion and to move away from strict application of the Tariffs is often present. Position of the Parties [15] Ms. Williams’ counsel seeks an award of costs valued at $3,000 based on an application of Scale of Tariff “A” of the Costs and Fees Act, R.S.N.S. 1989, c.104. Ms. Williams argues that no costs should be awarded to either party. [16] Should deem the award of costs warranted, as mandated by Rule 77.06, party and party costs should be fixed in accordance with the tariffs. am satisfied that Scale of Tariff “A” of the Costs and Fees Act, supra is the governing tariff for the purpose of determining an appropriate costs award. The tariff is reproduced following Rule 77.18. [17] This proceeding required Court time on two days and additional chambers time when the Court was required to resolve disagreements between the parties. assigned an additional one half day of Court time to this aspect of the case. [18] The Applicant, Ms. Williams was the successful party. [19] On the important parenting issue, the evidence established that the Applicant was the appropriate primary care parent. [20] Mr. Williams’ initiative in seeking to vary the existing order was not reasonable and responsible. [21] The assessment of child support was central issue. Again, Ms. Williams clearly prevailed. Income was imputed to Mr. Williams by the Court. Mr. Williams did not persuade the Court to reduce his child support obligation. It is my conclusion that Mr. Williams’s submissions needlessly resulted in the expenditure of time and effort by all involved and delayed the issuance of an order herein. In the end, the Court imputed an income level to Mr. Williams that Ms. Pellicer was prepared to accept prior to the commencement of the hearing ($25,000). [22] Costs of $3,000 are assessed against Mr. Williams. They are payable at rate of $150 per month until paid in full, commencing December 1, 2012.","Rule 77.01 – Scope of Rule 77 This is a costs decision following litigation between the mother and father regarding apportionment of custody and access rights, quantification of child support and special expenses for the parties' children. The mother was the successful party and income was imputed by the court to the respondent.  Held, costs in the amount of $3,000 are awarded against the father. The father's position caused unnecessary time, effort and delay. The court referenced L. (N.D.) v. L. (M.S.) (2010) to summarize the principles and case law relevant to determining a cost award under Rule 77. Determining costs in a matrimonial manner is more complex given mixed outcomes and the burden of costs placed on families and children such that the court may need to exercise discretion and move away from a strict application on tariffs.",2_2012nssc359.txt
87,"J. F.L.D. A.D. 1996 No. 299 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SUSANNE ARNDT APPLICANT (PETITIONER) and DOUGLAS DUNN RESPONDENT Anna M. Crugnale-Reid for the applicant (petitioner) Margot A. Dynna for the respondent JUDGMENT MALONE J. September 19, 1997 The only issue to be determined in this applicationis the amount of monthly maintenance to be paid by therespondent to the applicant as support for their child who wasborn on September 30, 1986. Both parties are medical practitioners and each enjoys significant income. The average income of the respondent over the past three years was approximately $180,000.00. In 1996, the applicant earned approximately $128,000.00, although she claims this was extra- ordinary because she received payment for projects completed during the previous two years. In addition to regular maintenance the applicantclaims pursuant to s. 7 of the Divorce Act Regulations,SOR/97-175 (the ""Federal Child Support Guidelines""),additional maintenance to cover special or extra-ordinaryexpenses. These expenses are approximately $1,200.00 permonth to cover nanny and child care costs, approximately$125.00 per month for medication, $250.00 per month forrecreation and $200.00 per month for a university fund for thechild. In the present circumstances s. 4 of the guidelinesis applicable and it provides as follows: 4. Where the income of the spouse against whom child support order is sought is over $150,000, the amount of child support order is (a) the amount determined under s. 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under s. 7. In my opinion, and in the absence of any authority,the significant income enjoyed by the applicant is a factor tobe taken into consideration when determining the amount ofmaintenance to be paid by the respondent, particularly when Iam prepared to recognize a significant portion of theapplicant\'s claim for extra-ordinary expenses. Accordingly, order the respondent to pay maintenance on the basis of an annual income of $150,000.00, or the sum of $1,076.00 per month. With respect to the claims for special extra-ordinaryexpenses I am not satisfied the applicant has established thatthe claims for recreation and a university fund are expensesthat are ""special"" or ""extra-ordinary"". However, I amsatisfied that the claim for nanny and child care costs isjustified pursuant to s. 7(1)(a) of the guidelines and theclaim for medication is justified pursuant to s. 7(1)(c) ofthe guidelines. On the basis of their respective incomes, therespondent should be responsible for approximately 2/3 of theseexpenses which I calculate as follows:Nanny costs $1,200.00 x 12 $14,400.00Less income tax benefit availableto petitioner 3,000.00$11,400.002/3 x $11,400.00 = $7,600.00 � 12 = $634.00Medication costs 2/3 $125.00 = 84.00$718.00. The parties agree that any order made shall beeffective as of May 1, 1997 and accordingly the monthlypayments to be made by the respondent from that date untilfurther order is $1,794.00. The respondent of course is entitled to the benefit of any monies already paid since May of this year. make no order as to costs.","The only issue was the amount of monthly maintenance to be paid by the respondent for the one child. The average income of the respondent over the past three years was approximately $180,000. The applicant claimed her 1996 income of $128,000 was extra-ordinary as payment was received for projects completed in the previous two years. The applicant claimed special monthly expenses of $1,200 to cover nanny and child care costs, $125 for medication, $25 for recreation and $200 for a university fund. HELD: 1)The respondent was to pay $1,794 per month. Section 4 of the guidelines was applicable. The significant income of the applicant is a factor to be taken into consideration. 2)The applicant did not establish that the claims for recreation and the university fund were expenses that were 'special' or 'extra-ordinary'. 3)The respondent was responsible for 2/3 of the nanny and child care costs which were justified pursuant to s7(1)(c) of the guidelines.",8_1997canlii10895.txt
88,"J. 2001 SKQB 347 Q.B. A.D. 2001 No. 376 J.C.P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT and HIS HONOUR JUDGE T.W. FERRIS RESPONDENT G.A. Chovin for the applicant J.E. Syrnick for the Crown JUDGMENT WILKINSON J. July 6, 2001 [1] This is an application for orders of certiorari and mandamus concerning a decision of a Youth Court judge not to appoint counsel to represent a young person. [2] The issue is whether the Court has discretion to refuse, having regard to the provisions of s. 11(4) of the Young Offenders Act, R.S.C. 1985, c. Y-1, which states: 11(4) Where young person at his trial or at hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth court before which the hearing, trial or review is held or the review board before which the review is held (a) shall, where there is legal aid or assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or (b) where no legal aid or assistance program is available or the young person is unable to obtain counsel through such program, may, and on the request of the young person shall, direct that the young person be represented by counsel. [3] It has been held that once young person makes request of the Youth Court for representation by counsel the language of s. 11(4)(b) on plain reading makes it abundantly clear that the exercise of discretion is no longer an option and the making of an order becomes mandatory (see R. v. T.W.P., [1996] O.J. No. 2668 (Prov.Div.)). [4] In the context of s. 11(4)(b) as it applies to the circumstances before me, the issue involves the meaning of the word ""unable"". On April 4, 2001 the young person appeared before the Youth Court judge and requested that the Court appoint him counsel after his Legal Aid lawyer withdrew. The young person was facing variety of charges including failure to comply with conditions of an undertaking, failure to attend court, possession of property obtained by crime and obstructing peace officer. The Youth Court judge was told that the young person's parents were both on social assistance and would likely be unable to provide financial assistance to him. The young person indicated he had no resources. The matter was adjourned to investigate the possibility that an aunt might be able to provide financial assistance in the matter of obtaining counsel. [5] When the matter resumed on April 11, 2001, the young person advised the Court that his aunt was unable to assist him financially. The Youth Court judge then asked why the young person did not stick with his Legal Aid lawyer. The response was ""I don't know. Because was messing up in court and not coming to court"" and ""not phoning them and stuff"". As the court records indicate the young person failed to appear on the trial date and bench warrant issued. [6] Counsel for the young person suggests the judge relied simply on the Crown's contention that the matters the young person was facing were uncomplicated and fact-driven in deciding not to appoint counsel. If that was the case, there would be grounds for complaint. However, the judge goes on to state at p. 23 of the transcript: In my view, relying on my decision in R. v. DJB which was another young offender who wanted the Judge to appoint lawyer for him at the taxpayers' expense it appears to me that it's not case where you were unable to obtain counsel through Legal Aid initially, which is what section 11(4)(b) of the Act refers to. You had counsel and they quit on you because you didn't bother to go see them, you didn't come and attend at your trials. You now want me to appoint private counsel. There's no reason for me to believe that you would be any more cooperative with him. decline to appoint lawyer for you. [7] That excerpt sets out the basis on which the learned judge declined to appoint counsel. was not favoured with copy of the decision in R. v. DJB and it does not appear to be reported. Nonetheless, it would appear to be premised upon the ordinary and natural meaning of the words in s. 11(4)(b), supra. Here, it is not case where the young person was unable to obtain counsel through the Legal Aid program. He had Legal Aid representation but disentitled himself to continued representation by his own misconduct. [8] Counsel for the young person cited two concurrent decisions of the Ontario Court of Appeal, R. v. J.H., [1999] O.J. 3894 and R. v. M.(B.) (1999), 1999 CanLII 3795 (ON CA), 139 C.C.C. (3d) 480, where, at p. and p. 8, respectively, the court stated: In the final analysis, this case is about the simple matter of the proper administrative process to be followed before youth court judge is required to order state-funded counsel for young offender. Before the state pays for counsel, the inability of the young person to obtain counsel must be established. This question cannot completely be answered without reference to the finances of the young person's parents. That is all that has been decided in this case. Nothing in this decision should be read as in any way denigrating or casting doubt on the proposition that young people in this province have the right to counsel. [9] Counsel for the young person argues that the Court's discretion in s. 11(4)(b) is limited to inquiries regarding the ability of parent or family member to provide financial assistance. If the result of the inquiry is that the young person has no financial resources whatsoever available to him, as is the case here, then counsel must be appointed. The use of the word ""shall"" in s. 11(4)(b) means the court has no jurisdiction to decline the request. [10] Prior to the decisions of the Ontario Court of Appeal, the cases had predominantly held that the youth court had no jurisdiction to inquire into the means of the parents. note that an application for leave to appeal the decision in R. v. J.H. was dismissed by the Supreme Court of Canada on May 25, 2000 at [1999] S.C.C.A. No. 611 (Q.L.). [11] It is noteworthy that in R. v. M.(B.), at para. 15, the Court of Appeal said that because the Act makes inability to obtain counsel the touchstone for the analysis, the youth court judge has every right to determine inability and has discretion to determine on case by case basis whether such inability exists. [12] In my view, the Youth Court\'s discretion to determine inability is not limited solely to considerations of financial inability. Inability may be asserted for other reasons and the court is entitled to inquire into the foundation. In R. v. B.W., [1997] B.C.J. No. 3056 (Q.L.) (B.C. Youth Courts), the young person refused to be represented by legal aid counsel and applied for court appointed counsel of his own choice. He argued he ought to be able to discharge his counsel without disclosing reasons. The court held that such broad reading of s. 11(4)(b) of the Act was not warranted and that in the absence of substantive reason for the discharge of his legal aid counsel the court would not appoint counsel at public expense. The court noted such broad interpretation begs the question as to what would occur if counsel of choice refused to act for whatever reason. [13] Here, if counsel for the young person is correct and the inquiry as to inability to obtain counsel is limited solely to financial inability some manifestly absurd results could follow. young person without financial assistance could, ad infinitum, disqualify himself from legal representation by his own misconduct or discharge his counsel for whatever reason and repeatedly insist on the appointment of substitute counsel. [14] Accordingly, I am of the view the learned Youth Court judge did not err in refusing to direct that the applicant have counsel appointed to him. The application is accordingly dismissed.",An application for certiorari and mandamus. In issue is whether the Youth Court judge has the discretion to refuse to appoint counsel to represent a young person having regard to the provisions of s.11(4) of the Young Offenders Act. The meaning of the word 'unable' in s.11(4)(b) was in issue. The youth was facing a variety of charges including failure to comply with conditions of an undertaking; failure to attend court; possession of property obtained by crime; obstructing a police officer. He requested the Youth Court appoint counsel after his Legal Aid lawyer withdrew. Both parents were on social assistance. The matter was adjourned to investigate the possibility of an aunt providing financial assistance but the youth advised in April that she was unable to do so. HELD: The application was dismissed. The Youth Court judge did not err in refusing to direct counsel be appointed. The Youth Court judge's discretion is not limited solely to considerations of financial inability. The youth disentitled himself to continued Legal Aid representation by his own misconduct.,3_2001skqb347.txt
89,"1994 S.H. No. 111838 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PICK O'SEA FISHERIES LIMITED and NATIONAL UTILITY SERVICE (CANADA) LIMITED DEFENDANT HEARD: at Halifax, Nova Scotia, before the Honourable Justice Jamie W. S. Saunders in Special Chambers, April 4, 1995 DECISION: April 5, 1995 (Orally) RELEASE OF ORAL: April 28, 1995 COUNSEL: Jonathan C.K. Stobie, Esq., for the Plaintiff D. Kevin Latimer, Esq., for the Defendant SAUNDERS, J. (Orally): Were time available, my preference would have been to give written reasons which would have been more elaborate than these. However, would not have had time to do that this month and it is in the best interests of the parties that they know the outcome and my basis for arriving at the following conclusions. In that way, should the unsuccessful party wish to appeal my decision or should transcript of these proceedings be required for any ancillary matters in Ontario, that could be arranged in short order. glean the following summary of the facts from the pleadings. The plaintiff is the successor corporation of an amalgamation which included Sweeney Limited, Yarmouth, Nova Scotia based company involved in catching, processing and marketing of fish and fish products. The defendant corporation has offices in Ontario and Quebec and held itself out as an energy efficiency consultant. The parties entered into so‑called Letter Arrangement whereby the defendant would conduct detailed energy performance evaluations of the plaintiff's operations and make recommendations for improvements and reductions in costs. The plaintiff paid the defendant what the plaintiff terms deposit and what the defendant calls service fee of Eight Thousand Dollars ($8,000.00) and agreed to pay Fifty Percent (50%) of every energy savings enjoyed for period of sixty months, provided such savings were the result of whatever of the defendant's recommendations were approved by and implemented by the plaintiff. The plaintiff complains that the defendant failed to conduct the detailed analysis it undertook and that any recommendations were superficial and of no help to the plaintiff. The plaintiff has rejected the defendant's efforts to claim substantial payments alleged by the defendant to represent its share of the plaintiff's energy savings, the plaintiff taking the position that such savings were entirely unrelated to any advice from the defendant and were, instead, the result of price reductions offered by its own suppliers of fuel. The plaintiff has claimed, first, return of its Eight Thousand Dollar ($8,000.00) ""deposit""; second, declaration that the Letter Arrangement does not constitute an enforceable contract; third, if it does, that the plaintiff is not liable under the contract to the defendant, and fourth, if the plaintiff is liable, then only to the extent of liability determined by this court. On the hearing yesterday, had the benefit of lengthy arguments from Messrs. Latimer for the defendant, and Stobie for the plaintiff. typed statement confirming two agreements reached by counsel was filed. also gave leave to Mr. Stobie to tender an Affidavit sworn by Mr. Weld, March 8, 1995. Mr. Latimer confirmed that he did not oppose such tender by Mr. Stobie. The Statement of Claim was issued December 7, 1994. The defendant was served in Ontario on December 9, 1994. The Prothonotary issued default judgment on December 23, 1994 for the sum of Eight Thousand Dollars ($8,000.00), plus Two Thousand, Eight Hundred and Eighty Dollars ($2,880.00) in interest, plus Four Hundred and Four Dollars and Forty Two Cents ($404.42) in costs, for total of Eleven Thousand, Two Hundred and Eighty Four Dollars and Forty Two Cents ($11,284.42). By Interlocutory Notice filed March 2, 1995, the defendant applied, pursuant to Civil Procedure Rule 12.06, to set aside the default judgment. The matter was originally set down for Regular Chambers to be heard on March 9, 1995. asked that it be assigned to Special Chambers before me on April 4, 1995. The defendant makes three arguments in support of its application to set aside the default judgment. The first two arguments are procedural, going to the substance of the relief obtained, in that the plaintiff, it is said, did not meet the requirements for obtaining a default order from the Prothonotary and that, therefore, such order should be set aside for irregularity as of right. In the alternative, the defendant argues the merits relying upon Affidavit evidence, including that Affidavit deposed to by Ms. Lois Roberts, one of its counsel in Ontario. The defendant says that there are legitimate triable issues between the parties and that there is a reasonable excuse to explain its failure to file a defence. There were attempts to resolve this matter. The defendant offered to pay One Hundred Dollars ($100.00) as throw‑away costs, provided the plaintiff consented to setting aside its default judgment. That was unacceptable to the plaintiff which was loath to relinquish its default judgment without first securing promise from the defendant that it would either forthwith file defence, or if so advised, apply for stay of the plaintiff's action based on the doctrine of forum non conveniens. It is obvious to me that the question of trying this case in Nova Scotia or in Ontario and the tactical advantages or disadvantages to each party, has been an underlying consideration driving the positions adopted by this plaintiff and by this defendant. The defendant does not want strings attached to it securing setting aside of the default judgment. The plaintiff does not relish giving up its present leverage in way that would allow the defendant to pursue the litigation in Ontario at considerable cost and inconvenience to the plaintiff, who is without any presence there. Were the default judgment to be set aside, then the plaintiff asks for directions pursuant to Civil Procedure Rule 25.01, to ensure that this underlying issue, that is, whether Nova Scotia or Ontario is the appropriate forum, is addressed. It should be noted that on December 23, 1994, the defendant commenced its own action against the plaintiff which arises from the same events which form the subject of the plaintiff's Nova Scotia action. In Ontario, the defendant claims damages from the plaintiff for Three Hundred and Ninety Five Thousand Dollars ($395,000.00) plus associated relief. The plaintiff herein has engaged Ontario counsel to apply for judgment in that Province, based on the default judgment in these proceedings here and for an Order dismissing the Ontario action on grounds of res judicata or abuse of process or, in the alternative, for an Order staying the Ontario proceedings on the grounds of forum non conveniens. The defendant\'s application to set aside the default judgment is dismissed for the following reasons: agree with Mr. Stobie that any irregularities which may have prompted the issuance of the Prothonotary's default judgment are not such as to cause me to find that the Order is nullity. Although technically, the plaintiff ought to have sought the court\'s leave to take default under Civil Procedure Rule 12.03 (1), because the statement of claim had combined a request for declaratory relief with a claim for what I consider to be liquidated damages, such a procedural omission did not, in my view, in the circumstances of this case, materially affect the defendant. It is difficult to see how the defendant was possibly prejudiced as it had already made it clear to the plaintiff that it was not going to file a defence in this jurisdiction. think the cases relied upon by the defendant to support its principal arguments are distinguishable and will now turn to some of those cases. First, Anlaby v. Praetorius (1888), 20 Q.B. Div. 764 and also the case of Baker v. Abunnadi (1980), 12 C.P.C. 1. In those cases, the plaintiff had made premature filing of default judgment before the time of delivery of defence had expired. In such cases, it is obvious to me that the defendant would be prejudiced. It is to be remembered, as highlighted by Mr. Stobie in his pre‑hearing memorandum, that the decision in Baker was criticized in an accompanying annotation which made the point that the right to set aside the judgment was qualified by the British Columbia Rule 2(4) which required the application to be made within reasonable time. have considered the remarks by Cameron, J. as she then was, in Saunders v. Lewis (1990), 1990 CanLII 7221 (NL SC), 83 Nfld. and P.E.I. Reports 1, where she wrote at page ""Generally, judgment obtained on the basis of an error of substance will be set aside. Irregularities will not automatically result in the default judgment being considered nullity, nor with (sic) judgment be set aside for technical imperfections in the procedure used."" (underlining mine). also note in the case of Szczesniak v. Farocan Inc. (1992), 1992 CanLII 4533 (NS SC), 115 N.S.R. (2d) 292, the following remarks of Justice MacAdam in paragraph 38 ""In the absence of any authority indicating that, in exercising my discretion under Civil Procedure Rule 12.06, am unable to vary the default judgment so as to give effect to those claims that were liquidated and to set aside the judgment in respect to those claims that were unliquidated, am not prepared to order that the totality of the default judgment is to be set aside on account of irregularity nor that the defendant is entitled to any costs."" Mr. Latimer has argued that the plaintiff's failure to obtain default judgment in compliance with Civil Procedure Rule 12.03, was to use the language of some of the cases, breach of procedural requirement which goes to the root of our conceptions of the proper procedure in litigation, thereby entitling his client to have the default judgment set aside as of right ex debito justitiae without terms imposed by the court. He placed considerable reliance on the 1888 Court of Appeal decision in Anlaby. My attention was drawn to that portion of Lord Justice Fry's speech at page 768 and Lord Justice Lopes' at page 270. must say was initially attracted to the defendant's submission. However, on further analysis, do not think they are applicable here. In that case, the plaintiff's judgment was irregular because he did not have right to such judgment in the first place. It was premature. It was obtained before the time limit for making an appearance had expired. In word, the plaintiff had no right to his judgment. In such circumstances, do not doubt but that the defendant's remedy was automatic ex debito justitiae. That is not the case here. This plaintiff had the right to obtain default judgment the moment this defendant failed to defend by the latest possible date, that being December 22, 1994. The plaintiff filed its default, as forewarned, the next day, December 23, 1994. There are other important differences between the cases. The English Rule, excusing non‑compliance, which drew comments from Lords Fry and Lopes and upon which Mr. Latimer relies, provides ""non‑compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or judge shall so direct..."" In England, this non‑compliance with any rule of practice would not avoid proceedings, unless the court otherwise directed. think our own Civil Procedure Rule 2.01 goes further than that. It states that any failure to comply is to be treated as simple irregularity which will not nullify any of the proceedings, unless otherwise ordered. do not think the difference is mere semantics. The result is presumed unless or until the court determines otherwise. The other provisions of Civil Procedure Rule 2.01(1) give clear indication of the court's supervisory and remedial powers. Further, Rule 2.02 places responsibility on the applying party to take certain actions and avoid certain other actions if it intends to seriously impugn the irregularity. Finally, in Praetorius the court held that they were not dealing with an instance of non‑compliance with rule nor with an irregularity in acting under any rule. As Justice Fry said at page 769 ""The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all.. There is strong distinction between setting aside judgment for irregularity, in which case the Court has no discretion to refuse to set it aside..."" (underlining mine) That is both materially different from the facts before me and think quite different than the scope of our own Civil Procedure Rules. In Nova Scotia, do have clear discretion not to nullify proceedings for reasons of irregularity. Whereas, my reading of the old English cases is that there was no such discretion to refuse to set aside in those specific circumstances. So to, in Baker v. Abunnadi, to which have already made reference and which is relied upon by this defendant. In that case, the plaintiff's default judgment was set aside as being premature, as it was obtained before the expiry of the time available to the defendant to file an appearance. Similarly, in Craig v. Kanssen, (1942) K.B. 256, the English Court of Appeal held it was beyond question that the default judgment ought to be set aside following an admitted failure to serve that defendant with the very summons upon which the order was based. In summary, find that the cases relied upon by the defendant to support its primary argument, are not applicable to the circumstances with which am faced. The older cases which held that an irregularly obtained judgment was nullity, are, think, inconsistent with the interpretation and application of our own Rules to which have earlier made reference. Here, the plaintiff's mistake was not one of substance rendering its claim for relief nullity. It had the right to default. It attempted to exercise it. It merely erred in choosing the Prothonotary as being the appropriate authority to grant it. Further, find that the claim for return of the sum of Eight Thousand Dollars ($8,000.00) meets the definition of ""liquidated"" damages in the authorities presented to me and is, therefore, claimable and recoverable upon default. think it also significant that had the plaintiff's Statement of Claim been restricted to the demand for Eight Thousand Dollars ($8,000.00), which is what, in fact, the plaintiff eventually obtained in the Prothonotary's default order, that order would be unassailable. Were it necessary for me to decide, would likely have found that the defendant had failed to bring itself within the requirements of Civil Procedure Rule 2.02. Given the flurry of communications between Mr. Stobie and Ms. Roberts in December 1994 and the obvious state of readiness evident between them both, the defendant could have acted much more promptly in applying to set aside the plaintiff's default order, rather than waiting until mid February 1995 before deciding to engage Mr. Latimer to apply to set it aside. now turn to the third and final argument of the defendant which will require brief analysis of the merits of the defendant's defence and excuse. deal first with the law applicable to this part of the application. Civil Procedure Rule 12.06 provides ""The court may, on such terms as it thinks just, set aside or vary any default judgment entered in pursuance of Rule 12."" The leading case in Nova Scotia is Ives v. Dewar, 1948 CanLII 275 (NS CA), [1949] D.L.R. 204 where Mr. Justice Parker said at p. 206: ""Before the interlocutory judgment should have been set aside, it was necessary for the appellant to show by affidavit, facts which would indicate clearly that he had good defence to the action on the merits; not necessarily defence that would succeed at the trial because the action was not being tried on that application; but facts which would at least show beyond question that there was substantial issue between the parties to be tried. He must also show by affidavit why his defence was not filed and delivered within the time limited by the Rules. The reasons thus disclosed are material matters which the judge or Court should consider in determining whether the application to set aside the judgment should be granted or refused."" The first branch of the two‑fold test may be dispensed with quickly. Mr. Stobie concedes that there are triable issues between these parties. However, he says that the defendant has failed to establish any reasonable excuse for its failure to file a defence. agree with Mr. Stobie. This was not a mistake or an oversight. This was not an omission through inadvertence or insufficient time or other pressing business. It was not a failure to file a defence but rather, a deliberate decision not to file a defence. can come to no other conclusion from clear reading of the correspondence passing between Mr. Stobie and Ms. Roberts. will now refer to some of those letters in detail. The first important letter is that of Mr. Stobie to Ms. Roberts sent by telecopier and dated December 19, 1994. He begins by acknowledging receipt of her letter dated December 15, 1994. He refers back to his letter of December 8, 1994 by which he told her he was in the process of preparing an Originating Notice and Statement of Claim and, in fact, enclosed with that communication, copy of the draft. He points out that it was served upon the corporate secretary of Ms. Roberts' client on December 12, 1994. In the second paragraph, Mr. Stobie goes on to explain to Ms. Roberts the application of Civil Procedure Rules relating to service and the time limits within which defence must be filed. He indicates the specific date, that is, the final date by which defence ought to be filed and confirms very clearly in the fourth paragraph of his letter, that if defence is not received by that date, he will be filing default judgment against Ms. Roberts' client on Friday December 23, 1994. He goes on to refer to her earlier communication which described her preparation of Statement of Claim on behalf of her client. He asks her to disclose whether it will be originating out of this jurisdiction or that of the Province of Ontario. He goes on to suggest that if the former, then it appeared to him the appropriate procedure would be for her client to add its counterclaim to the Nova Scotia proceedings. If, on the other hand, the action were commenced in Ontario, then he advises he would have to obtain instructions to determine whether he was authorized to accept service of such pleading. Her letter to Mr. Stobie is dated the next day, December 20, 1994, sent by facsimile confirming receipt of his and indicating that her client intends to commence action in Ontario as being, in her words, ""the most appropriate forum for the resolution of their dispute."" She goes on to indicate that her client does not submit to nor attorn to the jurisdiction of Nova Scotia, that being the place where Mr. Stobie commenced his action. The next communication appended to the Affidavit of Ms. Roberts, is telecopier communication from Mr. Stobie to Ms. Roberts dated December 23, 1994, confirming receipt of her December 20th letter and indicated that having regard to the position she articulated in her letter, he has proceeded to enter default judgment. He encloses copy of the order for default totalling Eleven Thousand Two Hundred and Eighty Four odd dollars. He asks her to say whether the judgment will be paid forthwith or whether he will be obliged to take enforcement proceedings. In his letter to her dated December 23, 1994, also sent by telecopier, he advises that he is not authorized to accept service. This is acknowledged by Ms. Roberts' letter dated December 28, 1994, simply enclosing copy of her client's Statement of Claim which she is in the process of having served upon the defendant in that action. consider the communications to which have made reference, to be clear evidence of strategic position deliberately adopted by the defendant. Having been forewarned by Mr. Stobie, Ms. Roberts was well aware that the consequences of not filing defence would be default in Nova Scotia. The defendant has not brought itself within the scope of the remarks of Chief Justice Cowan in Pinard and Pinard v. Bushell et al. (1975), 20 N.S.R. (2d) 317 at p. 333: ""It is not sufficient...for him to give reasons, but the reasons must show that he has reasonable excuse for the delay..."" Nor the observations of Mr. Justice Cooper in Errol B. Hebb and Associates v. Enterprises Ltd. (1977), 23 N.S.R. (2d) 369 at p. 375: ""...an explanation for delay capable of furnishing basis for the exercise of the discretion of the chambers judge."" find there is no basis for me to exercise my discretion in favour of this defendant. With respect, cannot accept Mr. Latimer's submission that the plaintiff rushed to judgment; that the defendant had impliedly sought an extension of time within which to file defence, or that Ms. Roberts was waiting for Mr. Stobie to reply on the subject of the most appropriate forum. The letters to which have referred belie that. Even after the default judgment was entered, there is not the slightest complaint raised in the correspondence from Ms. Roberts that she was taken by surprise, or mistaken, or was dealing with Mr. Stobie under some misapprehension. If she had any such concerns, they were not matters which Mr. Stobie was ever asked to address. He had obtained his default judgment just as he said he would. It was not as if Ms. Roberts had invited Mr. Stobie's participation on the forum question. She announced her client's position by letter to Mr. Stobie of December 20, 1994. In the face of that letter, it would be self‑evident to Mr. Stobie that the defendant had no intention of defending in Nova Scotia. As such, the defendant is, in my view, barred from relief. find the circumstances of this case similar to that which faced Justice Trainor in the British Columbia Supreme Court in Bank of Montreal v. Thompson (1977) C.P.C. 72. There, the defendant had allowed default judgment to be entered in British Columbia on the basis of advice from California lawyer, that the judgment would not be enforceable in California. Justice Trainor held that this amounted to wilful and deliberate decision to ignore the proceedings in British Columbia. Notwithstanding the faulty legal advice in California, the defendant knew that there would be judgment against him in British Columbia. The application to lift the default judgment was dismissed. Counsel for the defendant here, has referred to and relied upon the decision of the Nova Scotia Court of Appeal in the case of Ross, Barrett Scott v. Simanic (1994), 30 C.P.C. (3d) 145. There, the court dismissed an appeal from the decision of Justice Bateman wherein she allowed the defendant's motion to set aside the plaintiff's default judgment. She concluded that there were number of triable issues and that the defendant had presented reasonable excuse for his failure to defend. Her reasons for the latter were expressed in these words and am now referring to the extract quoted by Justice Hallett writing for the Court of Appeal at page 148 of the case report cited earlier. These are Justice Bateman's findings ""I am satisfied that Mr. Simanic in failing to defend the Nova Scotia action did not appreciate the consequences of doing so, and that he understood that the action in Nova Scotia was not properly constituted or could be adequately responded to in Ontario... In the circumstances, find that there was no wilful or excessive delay on Mr. Simanic's part in moving to set aside the default judgment. The applicant has met the burden of establishing that there is substantial issue to be tried and that he has reasonable excuse for failing to file defence."" Leaving aside that portion of the Court of Appeal Judgment which dealt with whether the chambers judge had erred in admitting certain evidence challenged as hearsay, Justice Hallett, after dismissing that ground of appeal, then went on to consider the ""second ground"" which was really the first of the Appellant's Factum, that being that there was no evidentiary justification for Justice Bateman's finding that the defendant had reasonable excuse. The Appellant complained that the only basis for her coming to that conclusion, was the deliberate decision made by the defendant not to defend the Nova Scotia action. On the contrary, Justice Hallett in writing for the Court of Appeal, determined that there was sound evidentiary basis for the chambers judge to have come to that conclusion. In his argument yesterday, Mr. Latimer stressed this statement from the decision of Justice Hallett appearing at page 153 ""I cannot accept counsel's argument that the deliberate decision not to attorn to the jurisdiction of the Nova Scotia courts should not be regarded as reasonable excuse for failing to file defence."" (emphasis per Hallett, J.A.) Mr. Latimer urges me to apply that statement here. With deference, do not think Justice Hallett would wish to be taken to say, that by his rejecting the Appellant's submission, that therefore refusal to defend for fear of attorning to jurisdiction would always amount to reasonable excuse. Every case depends on its own set of facts. The observation of Justice Hallett may well be dicta and in any event, it is qualified by his frequent references to the fact that the defendant did not appreciate the consequences of not appearing to the action in Nova Scotia and that the defendant, lay person, had relied upon defective legal advice. To illustrate, will refer to at least six such references by Justice Hallett. ""The respondent did not defend in Nova Scotia because of the legal advice he received; although it would appear to be questionable advice it was the reason why the respondent did not file defence to the Nova Scotia action.. Nor is the fact that he agreed to the course of action that was proposed by his counsel. His agreement does not negate the fact that underlying the respondent's decision not to file defence was the advice he had received."" (p. 153). And back at page 151 ""She...""(referring to Justice Bateman)""found that the respondent did not appreciate the consequences of not defending; the respondent's testimony supports this finding. She also found that he understood the action in Nova Scotia may not have been properly constituted; the respondent's testimony supports this. She also found that he understood an adequate response could be made in Ontario; the respondent's testimony supports this finding."" All of those factors are materially different than the case before me. In the result, see no evidentiary basis sufficient to persuade me that in order to do justice between these parties, should exercise my discretion in favour of the defendant. This is especially so, where as here, the defendant (hardly neophyte to litigation elsewhere) was not willing to cure its default by either agreeing to commit itself to forthwith defend in Nova Scotia or bring motion to stay on the basis of forum non conveniens. The defendant\'s apparent intention to avoid the jurisdiction of the Nova Scotia Supreme Court, while simultaneously drawing the plaintiff into litigation in Ontario where it has no presence, is, in my view, incapable of constituting a reasonable excuse, as contemplated by this court\'s interpretation of Civil Procedure Rule 12.06 in previous cases. For all of these reasons then, the defendant\'s application is dismissed with costs to the plaintiff in the amount of One Thousand Dollars ($1,000.00). It is, therefore, unnecessary for me to consider the plaintiff's subsidiary request for directions, pursuant to Civil Procedure Rule 25, nor the issue of appropriate forum.","The plaintiffs statement of claim was served on the defendant in Ontario two days after it was issued. Two weeks later the prothonotary issued default judgment for $8,000, plus $2,880 in interest and $404.42 in costs. The defendant applied, pursuant to Civil Procedure Rule 12.06, to set aside the default judgment, on the ground that the plaintiff did not meet the requirements for obtaining a default judgment from the prothonotary or, in the alternative, on the merits that it had, by affidavit evidence, raised triable issues and provided a reasonable excuse for its failure to file a defence. Dismissing the application with costs of $1,000 to the plaintiff, that although the plaintiff ought to have sought the court's leave to take default judgment such a procedural ommission did not, in the circumstances, prejudice the defendant. Further, while there were triable issues between the parties, the defendant's failure to file a defence was neither a mistake nor an oversight, but rather a deliberate decision so as not to attorn to Nova Scotia jurisdiction, and therefore was not a reasonable excuse.",1995canlii4465.txt
90,"J. 2001 SKQB 163 D.I.V. A.D. 1996 No. 02446 J.C.S.C. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: GORDON CLARK McMILLAN PETITIONER (RESPONDENT) and WENDY LEE McMILLAN RESPONDENT (APPLICANT) P.G. Alberts for the applicant, Wendy Lee McMillan Gordon Clark McMillan on his own behalf FIAT BAYNTON J. March 20, 2001 [1] The applicant mother applies to vary the terms of the child support order made against her on March 1, 1999. It provided that she pay $400 per month support for the three children of the marriage, namely Brady McMillan born November 19, 1996, Jessica McMillan born May 2, 1989, and Kory McMillan born February 2, 1991. The order was made in connection with previous variation application brought by the applicant to vary former $450.00 per month child support order. [2] The March 1st, 1999 order imputed annual income of $18,000 to the applicant and set ongoing support at $400.00 per month (consisting of regular support of $334.00 plus $66.00 towards s. 7 medical and extraordinary expenses consisting primarily of hockey expenses). The applicant in her second variation application seeks cancellation of the arrears of $3,800 on the basis that she will otherwise in effect be required to overpay child support had it been calculated in accordance with the Guidelines on the basis of her actual (not imputed) income for the years 1999 and 2000. She also seeks a variation of the ongoing child support to $17.00 per month, being the Guideline amount based on her projected annual income for 2001 of just over $7,000. [3] acknowledge that if the basic level of child support for the two years in question was based on the applicant's actual adjusted average income for those two years rather than on her imputed income of $18,000, there would be no arrears of child support outstanding at this time. But the applicant must accept responsibility at least in part for permitting the arrears to accumulate over the two years. The court is reluctant to encourage irresponsibility on the part of applicants by rewarding them when they bring applications to retroactively vary court orders. However, the applicant is entitled to some relief in the circumstances. I order the cancellation of arrears of $1,900, being one-half of the total of $3,800 in arrears. [4] also acknowledge that it is unlikely the applicant will earn $18,000 during the year 2001. But on the basis of the material filed, am satisfied that she is capable of earning $15,000 during the year. Applicants are not entitled to variation order setting child support at the level that automatically flows from the choices they make respecting their employment and income. The court must factor in as well, the ability of the applicant to pay reasonable level of child support. The applicant is clearly capable of paying more than $17 per month for her three children. I fix basic child support for the three children under the Guidelines at $250.00 per month based on an imputed annual income of $15,000. [5] Neither party filed current information respecting the s. expenses which, as claimed by the respondent in 1999, appear to be exorbitant. I reduce the applicant\'s share of the s. 7 expenses to $50.00 per month for total ongoing child support of $300.00 per month commencing April 1, 2001. [6] Had the applicant been more reasonable in her submission for variation, would have awarded her costs. In the circumstances, there will be no order as to costs.","FIAT. The mother applied to vary the terms of the 1999 child support order under which she was to pay $400 per month composed of $334 for regular support plus $66 for s.7 medical and extraordinary expenses for their three children based on an imputed annual income of $18,000. She sought to cancel arrears of $3,800 on the basis she will overpay if child support had been calculated in accordance with the Federal Child Support Guidelines on the basis of her actual income for 1999 and 2000. She also sought to reduce child support to $17 per month based on a projected income of $7,000. HELD: 1)One-half of the arrears were cancelled. The mother must accept responsibility in part for allowing arrears to accumulate over the 2 years. 2)The mother was to pay $250 per month based on an imputed income of $15,000. She was capable of contributing more than $17 per month. Her share of s.7 expenses was reduced to $50 per month. Neither filed current information. 3)Costs would have been ordered if the mother had been more reasonable in her submission for variation.",7_2001skqb163.txt
91,"J. 2003 SKQB 58 Q.B.G. A.D. 2002 No. 23 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: VICTOR DANIELS, STELLA MARJORIE SEVEREIGHT and RUSSELL LAMBERT SINCLAIR PLAINTIFFS (APPLICANTS) and ATTORNEY GENERAL OF CANADA DEFENDANT (RESPONDENT) Fran Huck and for the plaintiffs (applicants) Clint G. Docken Mark R. Kindrachuk and for the defendant (respondent) Elaine Lee JUDGMENT McLELLAN J. February 4, 2003 [1] The plaintiffs apply for certification of an action under The Class Actions Act, S.S. 2001, c. C-12.01 (the “CAA”) on behalf of the following classes as set forth in paragraph 5 of the statement of claim: (a) Veterans Resident Class Any Indian person who, as defined by the Indian Act, R.S.C. 1985, c. I-5 at the time of their discharge was not informed, nor was offered some or any of the veterans benefits that they were entitled to by reason of their service in World War I, World War II or the Korean War and/or their dependants who received some or all of the veteran benefits. (b) Veteran Non-Resident Class (c) Dependent Resident Class (d) Dependant Non-Resident Class [2] The plaintiff, Victor Daniels (“Daniels”), an Indian as defined under the Indian Act, enlisted in the Canadian Army on October 3, 1950 and served in the Korean War. He was discharged from the army on November 3, 1953. In paragraphs and 10 of the statement of claim, Daniels makes the following allegations: 9. At the time of his discharge in November, 1953, the Plaintiff, VICTOR DANIELS, was not informed of nor was he offered any benefits that he was entitled to by reason of his service either under the Indian Act or any other relevant Act or Statute in force under the laws of Canada including the Veterans Affairs Act, The War Veterans Allowance Act, The Pension Act and The Canadian Soldier Veterans Settlement Act or other applicable legislation. 10. The Plaintiff, VICTOR DANIELS, alleges that he was entitled to the full benefits available from the Crown payable to discharged veterans and that veterans who were Indians did not receive any or any full benefits for their service either in World War II or in the Korean War as did non-aboriginal veterans. [3] The plaintiff, Russell Lambert Sinclair (“Sinclair”), is resident of Alberta who claims individually and as representative subclass plaintiff who is non-resident of Saskatchewan on behalf of Indian war veterans residing outside the Province of Saskatchewan. [4] Sinclair enlisted in the Canadian Armed Forces in February, 1951 and was discharged in March 1972. He served in the Korean War between 1951 and 1953. In paragraphs 12 and 13 of the statement of claim Sinclair makes the following allegations: 12. At the time of his discharge in March of 1972, the Plaintiff, RUSSELL LAMBERT SINCLAIR, was not informed of nor was he offered any benefits that he was entitled to by reason of his service either under the Indian Act or any other relevant Act or Statute in force under the laws of Canada including the Veterans Affairs Act, The War Veterans Allowance Act, The Pension Act and The Canadian Soldier Veterans Settlement Act or other applicable legislation. 13. The Plaintiff, RUSSELL LAMBERT SINCLAIR, alleges that he was entitled to the full benefits available from the Crown payable to discharged veterans and further that veterans who were Indians and resided outside the Province of Saskatchewan did not receive any or any full benefits for their service either in World War II or in the Korean War as did non-aboriginal veterans. [5] The plaintiff, Stella Marjorie Severeight (“Severeight”) claims she was dependant of an Indian veteran of World War II and she sues both individually and on behalf of all dependants that did not receive benefits to which they were lawfully entitled to from the Crown as dependants of Indian war veterans. NATURE OF CLAIM [6] The plaintiffs claim damages for loss of benefits and base their claims on systemic negligence, breach of trust, breach of fiduciary duty, and unjust enrichment. [7] The plaintiffs claim: (a) That they were treated differently than non-native war veterans by requiring any benefits they were entitled to receive to be administered by officials of the Department of Indian Affairs or through Indian agents assigned to the reserves of returning war veterans; (b) That the officials and Indian agents were negligent in carrying out their duties to inform the plaintiffs of their rights to receive full and complete benefits and that Indian agents in some cases misappropriated benefit funds that were properly payable to the plaintiffs. The benefits which the plaintiffs say were not paid to Indian war veterans and their dependants, include, inter alia; (a) dependant’s allowances; (b) veteran loans and grants; and (c) educational and other benefits; (c) That the Crown is vicariously liable for the wrongful and negligent acts of the agents and employees; (d) That the Crown breached its fiduciary duty and trust obligations that it owed to the plaintiffs and other Indians who served in the Armed Forces of Canada by systematically discriminating against Indian war veterans and their dependants by improperly administering benefits and in failing to properly carry out the obligation placed on the Crown to protect the rights of Indian war veterans and their dependants by reason of the relationship and duties owed to Indians pursuant to the Indian Act; (e) That the Crown has been unjustly enriched by the improper withholding of benefits due to the plaintiffs since the date of their retirement or, alternatively from 1953, the date of passage of the Crown Liability Act, S.C. 1952‑53, c. 30 and further that by reason of the unjust enrichment and resulting constructive trust, the defendant ought to make full restitution. [8] Under the CAA “class” is defined as two or more persons with common issues respecting cause of action or potential cause of action. Common issues are defined as: (a) common but not necessarily identical issues of fact; or (b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts. [9] Section provides that an action shall be certified as class action if the Court is satisfied that: (a) the pleadings disclose clause of action; (b) there is an identifiable class; (c) the claims of the class member raise common issues, whether or not the common issues predominate over other issues affecting individual members; (d) class action would be the preferable procedure for the resolution of the common issues; and (e) there is person willing to be appointed as representative plaintiff who: (i) would fairly and adequately represents the interests of the class; (ii) has produced plan for the class action that sets out workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members. [10] Certain matters are not bar to certification. Section of the CAA states: The court shall not refuse to certify an action as class action by reason only of one or more of the following: (a) the relief claimed includes claim for damages that would require individual assessment after determination of the common issues; (b) the relief claimed relates to separate contracts involving different class members; (c) different remedies are sought for different class members; (d) the number of class members or the identity of each class member is not ascertained or may not be ascertainable; (e) the class includes subclass whose members have claims that raise common issues not shared by all the class members. POSITION OF THE DEFENDANT [11] The Crown opposes the certification application on the following grounds: (a) The applicants have failed to discharge the onus on them to demonstrate that the pleadings disclose cause of action: (i) All claims brought pursuant to the Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, as am. based on acts or omissions occurring prior to 1953 are statute barred by virtue of s. 24 of the Crown Liability and Proceedings Act or by predecessor legislation to the same effect and therefore cannot constitute cause of action; (ii) After 1953, the only liability of the Crown is vicarious, arising from the alleged actions or omissions of Crown servants and agents. There are no pleadings to support the existence of any vicarious liability; (iii) All of the claims are out of time and statute barred by virtue of The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am., the Crown Liability Act, the Crown Liability and Proceedings Act, or by predecessor legislation to the same effect; (iv) Claims potentially originating from the alleged actions or omissions of any person now deceased are additionally barred by The Trustee Act, R.S.S. 1978, c. T‑23, as am., or its predecessors, and/or by The Survival of Actions Act, S.S. 1990‑91, c. S‑66.1, as am.; (v) The claims in negligence do not disclose any cause of action against the Crown or its agents; (vi) The claims of discrimination have no legal foundation either pleaded, or in existence at the time of the causes of action are claimed to have arisen, and do not disclose any cause of action against the Crown or its agents; (vii) The claims of breach of fiduciary duty do not disclose any cause of action against the Crown or its agents; (b) The applicants have failed to adequately describe an identifiable class of two or more persons who are appropriately represented by the proposed plaintiffs; (c) The applicants have failed to demonstrate that the claims of the class members raise common issues, the resolution of which will advance the litigation proposed; (d) The applicants have failed to demonstrate that class proceeding would be the preferable procedure for the resolution of the claimed common issues; (e) The applicants have failed to demonstrate that there are representative plaintiffs who would fairly represent the interests of the proposed class; (f) The applicants have not produced workable litigation plan, or demonstrated they have the resources to represent the class claimed; and (g) The plaintiffs have not demonstrated that the proposed plaintiffs do not have conflicts with the interests of the other class members. CAUSE OF ACTION [12] do not intend to deal with all of the submissions by the Crown that the plaintiffs’ pleadings fail to disclose cause of action. [13] Suffice it for me to say that although the onus is on the plaintiffs, on certification application, to satisfy the Court that the pleadings disclose cause of action, it is not very high onus. [14] The test to be applied in certification applications is similar to those used in applications to strike statement of claim as disclosing no cause of action. Firstly, all allegations of fact pleaded are to be accepted as true and secondly, pleadings will only be struck if it is plain and obvious that the plaintiffs cannot succeed. In my view court should be reluctant to deny plaintiff his or her day in court. [15] In Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, the Supreme Court of Canada pointed out: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19; assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat.” Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of plaintiff’s statement of claim be struck out under Rule 19(24)(a) (per Wilson J. at p. 980) [16] Madam Justice Wilson continued at pp. 990-91: ... [W]here statement of claim reveals difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society. [17] The issue was considered in the context of certification application in Abdool v. Anaheim Management Ltd. (1995), 1995 CanLII 5597 (ON SCDC), 21 O.R. (3d) 453 (Ont. Gen. Div.). In that case Moldaver J. sitting in the Division Court stated: The principles to be applied when considering whether pleadings support legal cause of action are as follows: (a) All allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proved; (b) The defendant, in order to succeed, must show that it is plain and obvious beyond doubt that the plaintiffs could not succeed; (c) The novelty of the cause of action will not militate against the plaintiffs; and (d) The statement of claim must be read as generously as possible, with view to accommodating any inadequacies in the form of the allegations due to drafting deficiencies. (at p. 469) [18] The generous approach to be adopted on this application is specifically spelled out in s. of the CAA which provides: 7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. (2) An order certifying an action as class action is not determination of the merits of the action. [19] In Hollick v. Toronto (City), 2001 SCC 68 (CanLII), (2001), 205 D.L.R. (4th) 19, the Supreme Court pointed out, when considering the Class Proceedings Act in Ontario, that the Act should be construed generously. Chief Justice McLachlin also pointed out at pp. 28-29 that: [15] The Act reflects an increasing recognition of the important advantages that the class action offers as procedural tool. ...[C]lass actions provide three important advantages over multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.... In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in way that gives full effect to the benefits foreseen by the drafters. [16] It is particularly important to keep this principal in mind at the certification stage. In its 1982 report, the Ontario Law Reform Commission proposed that new class action legislation include “preliminary merits test” as part of the certification requirements. The proposed test would have required the putative class representative to show that “there is reasonable possibility that material questions of fact and law common to the class will be resolved at trial in favour of the class”: Report on Class Actions, supra, vol. III, at p. 862. Notwithstanding the recommendation of the Ontario Law Reform Commission, Ontario decided not to adopt preliminary merits test. Instead it adopted test that merely requires that the statement of claim “disclose ... cause of action”: see Class Proceedings Act, 1992, s. 5(1)(a). Thus the certification stage is decidedly not meant to be test of the merits of the action: see Class Proceedings Act, 1992, s. 5(5) (“An order certifying class proceeding is not determination of the merits of the proceeding”); see also Caputo v. Imperial Tobacco Ltd. (1997), 1997 CanLII 12162 (ON SC), 34 O.R. (3d) 314 at p. 320, 148 D.L.R. (4th) 566 (Gen. Div.) (“any inquiry into the merits of the action will not be relevant on motion for certification”). Rather the certification stage focuses on the form of the action. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as class action .... [20] In very extensive and well researched brief the Crown, in addition to the arguments relating to the deficiencies in the pleadings, raised number of arguments as to why certification should be denied. [21] Among the submissions are suggestions that the plaintiffs have failed: (a) To adequately describe an identifiable class; (b) To demonstrate that the proposed claims raise common issues which will advance the litigation proposed; (c) To demonstrate there are proposed plaintiffs who would fairly and adequately represent the interests of the class; (d) To produce workable litigation; (e) To demonstrate that the proposed plaintiffs do not have any interest potentially in conflict with other class members. [22] Time does not permit me to deal with all of the submissions. The deadline for Indian War Veterans to apply for an ex gratia payment from the Crown expires on February 15, 2003. The argument on this certification application concluded on January 30. Any members of the proposed class who are eligible to make application ought to be provided with as much time as may reasonably be possible to decide whether they will make an application for the ex gratia payment or continue with litigation. The fact that do not refer to those arguments in this judgment should, in no way, be construed as suggesting that the positions taken by the Crown are without merit. find it necessary to only deal with the limitation issues raised by the Crown which, in my view, provide complete answer to the application. SHOULD LIMITATION ARGUMENTS BE DEALT WITH ON THE CERTIFICATE APPLICATION? [23] The plaintiffs suggest that the limitation arguments advanced by the defendant should not be dealt with at the certification stage but rather as the following common issues: (a) Are the claims by the class members governed by limitation periods found in The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am., and/or the Crown Liability Act, S.S. 1952-53, c. 30, as am.? (b) If so, what are the applicable limitation periods and when do they commence running? [24] The plaintiffs rely on the decision of Allan J. of the British Columbia Supreme Court in Brogaard v. Canada (Attorney General), 2002 BCSC 1149 (CanLII), [2002] B.C.J. No. 1775 (QL) in support of their position. The factual underpinnings in that certification application were outlined by Allan J. as follows at paras. ¶1 ... The proposed class members are “British Columbia residents who are Same-sex Common-law Partners of Contributors who died during the Class Period”. ¶2 “Same-sex Common-law Partner” is person who was in same-sex common-law relationship with Contributor who meets the definition of “common-law partner” within the Canada Pension Plan Act, R.S.C., c. C-8 as amended (the “Act”), and includes the estate of such person who died after their Contributor partner. ¶3 “Contributor” is person who made Canada Pension Plan (“CPP”) contributions pursuant to the Act. ¶4 The proposed Class Period is between April 17, 1985 and January 1, 1998. April 17, 1985 is the date that the Canadian Charter of Rights and Freedoms (the “Charter”) came into effect. January 1, 1998 is the date that Same-sex Common-law Partners obtained the right to claim Survivors’ Pensions pursuant to legislation enacted July 31, 2000. The proposed class members claim entitlement to “Survivors’ Pensions” during the Class Period as common-law partners of Contributors. ¶5 The plaintiffs say that the defendant Crown collects CPP contributions from all working Canadians regardless of their sexual orientation, but, until July 31, 2000, it discriminated against Same-sex Common-law Partners on the basis of their sexual orientation by denying them the right to receive Survivors’ Pensions. The plaintiffs assert that by doing so, the Crown has breached its fiduciary duty to the proposed class members and has been unjustly enriched. The plaintiffs also claim that the Crown has breached s. 15(1) of the Charter .... [25] Crown counsel correctly point out that the issue before Allan J. was essentially Charter challenge to legislation enacted on July 31, 2000, attacking provision which made an amendment retroactive only to January 1, 1998. The plaintiffs were persons whose same sex partner had died before January 1, 1998, and after the enactment of the Charter in 1985. [26] In Brogaard, supra, there were number of limitations issues, including the constitutionality of various limitations periods contained within the challenged statute itself. Allan J. points out at paras. 110 and 111: ¶110 The Crown also alleges that the plaintiffs are statute-barred from receiving the Survivors’ Pensions that they seek. In my view, there are number of limitations issues, some of which are common and others that will be individual to the class members. ¶111 With respect to the Charter issues, the Crown submits that because other limitations in the Act are not challenged (specifically, ss. 60(2) and 70(1) and (2)), the resolution of the proposed common issues relating to the Charter will not advance the plaintiffs’ claims in any meaningful way. The plaintiffs challenge the applicability of those limitations to the relief they seek. Moreover, they may decide to amend their statement of claim to plead that those sections are also unconstitutional. [Emphasis added] [27] In his opinion “only if the class members succeed in this litigation and reach the bureaucratic stage of applying for individual Survivors’ Pensions, will the question of individual issues arise.” [28] In my view the circumstances of this case are different. There is no suggestion that Indian War Veterans were denied the “right” to apply for veteran’s benefits. The issue in this case is their allegation that they were not properly informed of their right to apply. [29] Another case relied on by the plaintiffs is Harrington v. Dow Corning Corp., 2000 BCCA 605 (CanLII), [2000] 11 W.W.R. 201 (B.C.C.A.). In that case the court pointed out that: ... The possibility that some claims may be barred by limitations period or that others may require the consideration of negligence by the plaintiffs or third parties, is not reason to refuse certification of the common issue. It is equally possible that the determination of the common issue will reduce the number of active claimants as well as the size of some claims. (at p. 226, para. 64). [30] It is obvious that in both cases there would certainly be number of proposed plaintiffs whose claims were within the relevant time limits in British Columbia. [31] On the other hand, if the claims of all the plaintiffs in proposed class action are statute barred, that issue ought to be decided at the very outset of certification application. It would make no sense if it were otherwise. [32] The Ontario Court of Appeal came to that conclusion in Stone v. Wellington (County) Board of Education (1999), 1999 CanLII 1886 (ON CA), 29 C.P.C. (4th) 320. In that case the plaintiff commenced an action pursuant to the Class Proceedings Act in that Province alleging that she and other members of the proposed class suffered serious personal injuries from exposure to toxic emissions from hazardous waste allegedly lying below the City of Guelph. McKenzie J. dismissed the action by reason of limitation period in the Public Authorities Protection Act. [33] The plaintiff argued in the Court of Appeal that an action brought pursuant to the Class Proceedings Act could not be dismissed solely on grounds personal to the plaintiff. The court dismissed the appeal holding that: 10 Where representative plaintiff, for reasons personal to that plaintiff, is definitively shown as having no claim because of the expiry of limitation period, he or she cannot be said to be member of the proposed class. The continuation of the action in those circumstances would be inconsistent with the clear legislative requirement that the representative plaintiff be anchored in the proceeding as class member, not simply nominee with no stake in the potential outcome. 11 For both these reasons we conclude that there is no bar to the bringing of these motions, even at the pre-certification stage of the proceedings. [Emphasis added) [Stone v. Wellington (County) Board of Education, supra, paras. 10-11]. [34] In Burke v. American Heyer-Schulte Corp., [1994] O.J. No. 141 (QL) (Ont. Gen. Div.), (1994), 25 C.P.C. (3d) 177, Montgomery J. also dismissed class action which he concluded was statute-barred. The headnote in that case reads as follows: The defendants moved for summary dismissal of the class action based on limitation defence. The plaintiff alleged that she suffered damages arising from silicone breast implants designed, manufactured and marketed by the defendants. She had the implants inserted in 1975. By 1976, she was suffering tenderness, hardening of the breasts, lumps, inflammation, fatigue, numbness, cysts, headaches, swelling in her fingers, and arthritis. The statement of claim, framed in negligence, misrepresentation and breach of warranties, was issued on September 3, 1993. HELD: The action was dismissed as statute-barred. In both tort and contract, the limitation period in Ontario is six years. The lengthy delay between the plaintiff’s awareness of the symptoms in 1976 and her suit in 1993 could not simply be due to lack of medical-legal report. There was nothing before the court to indicate that she had such report today. All the elements necessary for cause of action were manifest in 1976. [[1994] O.J. No. 141 (QL)]. LIMITATION ARGUMENT [35] The Crown argues that if any claim by the plaintiffs existed, it cannot be brought 30-60 years after the claimed entitlement to benefits arose—that all claims are statute-barred and have been so for decades. [36] The relevant sections of the Crown Liability and Proceedings Act (“CLPA”) are as follows: 3. The Crown is liable for damages for which, if it were person, it would be liable ... (b) in any other province [other than Quebec], in respect of (i) tort committed by servant of the Crown, or (ii) breach of duty attaching to the ownership, occupation, possession or control of property. 10. No proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in respect of any act or omission of servant of the Crown unless the act or omission would, apart from the provisions of the Act, have given rise to cause of action for liability against that servant or the servant’s personal representative or succession. 24. In any proceedings against the Crown, the Crown may raise (a) any defence that would be available if the proceedings were suit or an action between persons in competent court; and (b) any defence that would be available if the proceedings were by way of statement of claim in the Federal Court. 32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of cause of action arising otherwise than in province shall be taken within six years after the cause of action arose. corresponding section is found in the Federal Court legislation. [37] Section 32 was first enacted in the Crown Liability Act in slightly different form. The section clearly incorporates, by reference, the Saskatchewan Limitation of Actions Act (the “LAA”) with respect to proceedings by or against the Federal Crown. The relevant sections of the LAA are the following: 3(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: ... (h) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within six years from the discovery of the cause of action; ... (j) any other action not in this Act or any other Act specifically provided for, within six years after the cause of action arose. (2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. [38] In two very recent decisions Mr. Justice Ball dealt with limitation periods as they apply to the Crown. Firstly, in Kaiswatum v. Attorney General of Canada and Les Oblats De Marie Immaculee Du Manitoba, 2003 SKQB 46 (CanLII), the plaintiff claimed he was physically assaulted and that he suffered loss of his traditional language and culture from 1944 until 1952 when attending residential school. He claimed the physical assaults were perpetrated by employees and staff at the residential school. The plaintiff claimed that his damages were caused by the negligence, breach of trust and breach of fiduciary duty of the Crown. [39] Secondly, in [P.G.] v. Attorney General of Canada and William Brittain and Douglas Ross, 2003 SKQB 41 (CanLII), the plaintiff claimed that he was sexually assaulted by two employees of the residential school he attended between 1974 and 1977. The plaintiff claimed the Crown was vicariously liable for the conduct of the two employees. In the alternative the plaintiff claimed damages caused by the negligence, breach of trust, and breach of fiduciary duty of the Crown. [40] In this application the Crown advances the following arguments with respect to limitation periods: 1) All claims brought pursuant to the Crown Liability and Proceedings Act based on acts or omissions occurring prior to 1953 are statute barred by virtue of s. 24 of the Crown Liability and Proceedings Act or by predecessor legislation to the same effect and therefore can not constitute cause of action; 2) After 1953, the only liability of the Crown is vicarious, arising from the alleged actions or omissions of Crown servants and agents. There are no pleadings to support the existence of any vicarious liability; 3) All of the claims are out of time and statute barred by virtue of The Limitation of Actions Act, the Crown Liability Act, the Crown Liability and Proceedings Act, as amended, or by predecessor legislation to the same effect; 4) Claims potentially originating from the alleged actions or omissions of any person now deceased are additionally barred by The Trustee Act, as amended, or its predecessors, and/or by The Survival of Actions Act, as amended. [41] In Kaiswatum, supra, Ball J. rejected the argument that Crown immunity extended to all claims prior to 1953. He reviewed the history of Crown immunity at paras. [25] Before May 14, 1953, the Crown was subject to claims for negligence pursuant to s. 19(c) of the Exchequer Court Act, which provided: 19. The Exchequer Court shall also have exclusive original jurisdiction to hear and determine the following matters:— (c) Every claim against the Crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment. [26] This liability for the negligence of the Crown’s officers or servants was expanded to include intentional torts by s. 3(1) of the Crown Liability Act which provided: 3.(1) The Crown is liable in tort for the damages for which, if it were private person of full age and capacity, it would be liable (a) in respect of tort committed by servant of the Crown, or (b) in respect of breach of duty attaching to the ownership, occupation, possession or control of property. [27] The Crown’s liability for intentional torts was confined to acts occurring after the proclamation of the Crown Liability Act on May 14, 1953 by virtue of s. 24(1), which states: 24.(1) No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to. [28] Peter W. Hogg and Patrick J. Monahan in Liability of the Crown, 3d ed. (Toronto: Carswell, 2000) review the history of Crown liability for intentional torts at c. 6.1, pp. 108-110: (a) Crown Immunity The history of proceedings against the Crown was briefly traced in chapter 1. In the nineteenth century, the petition of right, which had become the principal means of suing the Crown, was held not to be remedy in tort. The reasoning in those early tort cases—that “The King can do no wrong”—we can now see to be misconceived, but the cases became firmly established as the law. Since no remedy other than the petition of right was available to sue the Crown in tort, the Crown became immune. (b) Early statutory reform ... Until the 1950s, Quebec was the only Canadian jurisdiction in which the Crown was generally liable in tort. However, the Federal Exchequer Court Act did impose an important measure of liability on the Crown in right of Canada. In 1887, provision was included which conferred jurisdiction on the Exchequer Court over claims against the Crown for the negligence of Crown servants, but only if the negligence occurred “on public work”. This provision, although in terms only conferring jurisdiction on the Exchequer Court, was interpreted as imposing liability on the Crown for the negligence of Crown servants on public work. Inevitably, however, the meaning of the “public work” limitation provoked litigation, and in 1938 the limitation was removed. From then until the broader reform of 1951, the Crown in right of Canada was liable for “the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment”. This imposed an extensive area of liability; but it excluded torts other than negligence, and even in the case of negligence its scope was incomplete. [29] The “broader reform of 1951” to which the authors refer led to the enactment of the Crown Liability Act which was proclaimed on May 14, 1953. That legislation imposed liability on the Crown in respect of all torts committed by its servants. The Act has been renamed the Crown Liability and Proceedings Act [S.C. 1990, c. 8, s. 20] and substantially amended, but s. 3, the provision imposing tortious liability, remains the same. [30] In 1952, even as the Crown Liability Act was being considered by Parliament, the Exchequer Court held that the Crown was immune from tortious claims not expressly permitted by s. 19(c) of the Exchequer Court Act. In Magda v. R., [1953] Ex. C.R. 22, President Thorson stated at pp. 29-30: The only matter that is before the Court is the bare question of law, namely, whether the suppliant has any legal claim against the Crown even if he should be able to prove that the allegations in his petition of right are true and establish that he was unlawfully imprisoned and interned and that the acts of which he complains were wrongful. The answer to this question must, in the present state of the law, be in the negative. Consequently, must hold that even if the allegations in the petition of right are true and even if the suppliant was unlawfully imprisoned and unlawfully interned and even if the acts of which he complains were wrongful he is not entitled to any relief as against the Crown and his claim for damages must be wholly denied. The reason for this is that in the present state of the law no petition of right lies against the Crown in right of Canada for any tort, or “faute”, to use the language of Article 1053 of the Civil Code of Quebec, committed by an officer or servant of the Crown while acting within the scope of his duty or employment except for such tort or segment of “faute” as will give rise to claim expressly permitted by statute, as under section 19(c) of the Exchequer Court Act, R.S.C. 1927, chap. 34, and that the allegations in this petition are not allegations of acts of negligence within the meaning of that section. And further on at p. 30: ... measure of reform that will remove this defect in the law is before the present session of Parliament but it cannot affect the present case. [31] In 1993, s. 24(1) of the Crown Liability Act was interpreted as continuing Crown immunity for intentional torts committed by an officer or servant of the Crown before 1953. (See Mayrhofer v. Canada (T.D.), 1993 CanLII 2919 (FC), [1993] F.C. 157 (F.C.T.D.), per Teitelbaum J. at pp. 170-171. [32] More recently, the Ontario Superior Court of Justice reviewed the history of that court’s jurisdiction over claims against the Federal Crown for matters predating May 14, 1953. In M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (QL), Haines J. stated at paras. 14-16: Conduct Prior to 1953 ¶14 The 1953 Crown Liability Act gave provincial courts jurisdiction to deal with claims under s. 3(1) but it also included provision that limited the Crown's liability to acts that occurred after the proclamation of the Act. Subsection 24(1) reads: No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to. ¶15 The defendants submit that this provision bars the taking of proceedings against the Crown or her agents for anything that occurred or existed before May 14, 1953, the date the Act came into force. They also contend that the Crown Liability and Proceedings Act is the only vehicle available for bringing proceedings against the Attorney General of Canada in provincial court: ss. 21 and 23. The defendants, therefore argue that insofar as the plaintiffs purport to bring this action against the Crown pursuant to the Crown Liability and Proceedings Act and against the other defendants as Crown agents, they have failed to plead cause of action that this court has jurisdiction to entertain with respect to anything that occurred before May 14, 1953. agree with this submission. ¶16 It seems to me that the language of s. 24(1) is clear and its meaning unambiguous. It may be that the plaintiffs have cause of action they can pursue under the Exchequer Court Act or its successor, the Federal Court Act, R.S.C., 1985 c. F-7, as amended, but, in my view, it is plain and obvious that any claims arising from acts or omissions that predate May 14, 1953 cannot succeed in this court under the Crown Liability and Proceedings Act. [33] The law is clear that the plaintiff cannot pursue claim against the Federal Crown for the intentional tort of trespass, assault and battery of its officers and servants occurring prior to May 14, 1953. Although Haines J. in M.C.C. v. Canada (Attorney General), supra, decided that provincial court has no jurisdiction to entertain any claim against the Federal Crown arising from acts or omissions that predate May 14, 1953, my decision is based on the narrower ground that this Court has no jurisdiction to entertain claims arising from the intentional torts of officers and servants of the Crown occurring before the proclamation of the Crown Liability Act on May 14, 1953. [34] limit my conclusion for two reasons. First and foremost, the Attorney General makes no application to strike the plaintiff’s claim in negligence (or any other claim) on the ground that it must be brought in another court. Second, the plaintiff’s claims based on breach of trust and breach of fiduciary duty are claims for equitable relief. The ability to obtain equitable relief against the Crown by means of an ordinary action against the Attorney General was upheld in Dyson v. Attorney-General, [1911] K.B. 410 (C.A.) in which the English Court of Appeal decided that the Court of Exchequer’s power to give equitable relief could be exercised by all divisions of the High Court. Obtaining declaration against the Crown in an action in which the Attorney General is named as the defendant became known as the Dyson procedure—a procedure that was and is available in Canada in every jurisdiction except New Brunswick and Nova Scotia. (See Hogg and Monahan, Liability of the Crown, c. 1.3(b), p. and c. 2.3(d), pp. 27-28 and authorities cited therein. See also Canex Placer Ltd. v. Attorney General of British Columbia (1975), 1975 CanLII 944 (BC CA), 58 D.L.R. (3d) 241 (B.C.C.A.) and Borowski v. Canada (Minister of Justice), 1980 CanLII 2238 (SK QB), [1980] W.W.R. 283 (Sask. Q.B.) per Hughes J. ). [Emphasis added] would add that the plaintiffs’ claim for unjust enrichment is also claim for equitable relief. [42] agree with Ball J. that prior to May 14, 1953, no action may be brought against the Crown for intentional torts such as trespass and assault and battery. The claims by the plaintiff in this case are not claims for intentional torts. In the main they are claims for equitable relief. [43] The Crown argued that the Dyson procedure was not applicable by reason of the fact that the plaintiffs are claiming damages and the only remedy available in Dyson, supra, is declaration. [44] Firstly, can find nothing in the CLPA which precludes plaintiff from obtaining equitable relief against the Crown. declaration is defined by Peter W. Hogg ad Patrick J. Monahan in Liability of the Crown, 3d ed. (Toronto: Carswell, 2000), c. 2.3, p. 26: declaration is judgment that declares the law applicable to the parties but does not include any coercive order. Breach of declaration is not contempt of Court and does not attract any other penalty. This deficiency in the remedy is sometimes cured by accompanying declaration with coercive relief such as damages or an injunction or specific performance, but this is not necessary. The Court has the power to make declaration “whether or not any consequential relief is or could be claimed”. [45] If the trial judge were to decide that the Crown breached fiduciary duty or was guilty of breach of trust, or was unjustly enriched, with respect to the claims of the plaintiffs and that the plaintiffs suffered damages, it is inconceivable that the Crown would ignore the declaratory judgment. [46] That point is made clear in Hogg and Monahan in Liability of the Crown, c. 2.3, p. 27 where the learned authors point out: (b) Crown liability Declaration is remedy that is available against the Crown. The absence of coercive decree avoids the problems of commanding the Crown and enforcement against the Crown, which led the Courts to create Crown immunity from injunction, specific performance, mandamus and discovery. And yet the absence of coercive decree is seldom disadvantage when the Crown is the defendant, because public officials can usually be relied upon to obey the law once it has been declared by Court. [Emphasis added] [47] In its amended statement of defence the Crown alleges that the claim of the plaintiffs is barred by s. 269 of the National Defence Act, R.S.C. 1985, c. N-5. [48] The limitation period referred to in s. 269 would only provide limitation argument to the Crown if the allegations of negligence, breach of trust and breach of fiduciary duty in the statement of claim were confined to alleged acts or omissions of military personnel. The statement of claim contains allegations against the Department of Indian Affairs and Indian agents, the Department of Veterans Affairs and the Director of the Veterans Land Act. At best, it is possible that s. 269 may provide complete answer with respect to few Crown servants or agents who might otherwise be found guilty of negligence in this action. It does not bar claims made directly against the Crown for breach of trust and breach of fiduciary duty. [49] The Crown also argues: (a) That pursuant to s. 59 of The Trustee Act, R.S.S. 1978, c. T-23, as am., and its predecessor legislation in force in Saskatchewan until June 22, 1990, person who claims to have been the victim of tortious conduct by deceased person, has maximum of one year from the date of death to maintain an action against the executor or administrator of the estate; (b) For any benefit due before 1990, no action lies more than one year after the date of death of the employee who is alleged to have breached any duty owed; (c) Liability of an employee or agent is the only foundation for claimed liability of the Crown; (d) If an action cannot be brought against an individual employee or agent, it cannot be brought against the Crown. [50] The above argument is based on the combined effects of ss. 10 and 24 of the CLPA and s. 59 of The Trustee Act. Section 59 of The Trustee Act provides as follows: 59. If deceased person committed wrong to another in respect of his person or of his real or personal property, except in cases of libel and slander, the person so wronged may maintain an action against the executors or administrators of the person who committed the wrong, but such action shall be brought within one year after the decease. [51] The argument was effectively dealt with by Ball J. in Kaiswatum, supra, in the following paragraphs found on pp. 18 and 19: [38] Section 10 of the Crown Liability and Proceedings Act has generally been regarded as applicable to actions against the Crown based upon vicarious, not direct, liability. In order for liability to fall on the Crown, plaintiff must show that Crown servant or servants, acting within the scope of employment, breached duty that was owed to the plaintiff. The plaintiff must additionally establish that the breach caused the plaintiff’s injury of sort that would attract personal liability against private person. (See Air Canada v. Canada (Minister of Transport), 1999 CanLII 7953 (FC), [1999] 165 F.T.R. 60 at para. 38 (F.C.T.D.); Olympia Janitorial Supplies v. Canada (Minister of Public Works), [1(997] F.C. 131 at para. 22 (F.C.T.D.), per Wetston J. (See also P. Lordon, Crown Law (Toronto: Butterworths, 1991) at pp. 327, 335 and 340). Once the plaintiff has satisfied the requirements of s. 10, the Crown’s vicarious liability follows. [39] have already decided that this Court has no jurisdiction to entertain claim against the Federal Crown based on its vicarious liability for assaults said to have occurred before May 14, 1953. It is therefore unnecessary for me to decide whether the same claim, to the extent that it may be based on the intentional tort of the now deceased Sister Greyeyes, is also barred by the combination of legislation relied upon by the Attorney General. Nevertheless, it seems apparent that s. 59 of The Trustee Act does not bar any aspect of the plaintiff’s claim described in s. 3(3.1) of the LAA for the same reason s. 2(1) of the POPA does not do so: the time limitation periods are abrogated by s. 3(3.2) of the LAA (see para. 22 above). Since there is no limitation period barring the cause of action against Sister Greyeyes or her estate, there can be no provincial limitation period available to the Federal Crown under s. 24 of the Crown Liability and Proceedings Act. [41] The plaintiff’s claims of negligence, breach of trust and breach of fiduciary duty are claims of direct liability alleging the breach of duty owed to the plaintiff by the Federal Crown independently from any duty owed to the plaintiff by Sister Greyeyes. Claims based on the direct liability of the Crown are not affected by time limitation periods applicable to Sister Greyeyes or her estate. [52] There is another short answer to the argument, namely, there is no evidence to suggest all Crown employees who administered the benefits claimed by the plaintiffs are deceased, and if they are, when they died. [53] In paragraph 22 of the amended statement of claim, the plaintiffs allege: ... [T]hat the Crown cannot limits [sic] its constitutional responsibility to Indians by limiting their right to sue the Crown by involving Provincial Limitation Acts that prevent actions from being sustained against the Crown by Indians as it has exclusive jurisdiction over Indians pursuant to the Constitution Act, 1867 30 and 31, Volume C. (U.K. sec. 91(24), Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms. find no merit in that argument. [54] agree with the Crown that this argument was disposed of conclusively by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII), [2002] S.C.J. No. 79 (QL), at para. ¶116 Parliament is entitled to adopt, in the exercise of its exclusive legislative power, the legislation of another jurisdictional body, as it may from time to time exist: Coughlin v. Ontario Highway Transport Board, 1968 CanLII (SCC), [1968] S.C.R. 569; Ontario (Attorney General) v. Scott, 1955 CanLII 16 (SCC), [1956] S.C.R. 137. This is precisely what Parliament did when it enacted what is now s. 39(1) of the Federal Court Act. [55] also agree with the Crown that Wewaykum, supra, deals with the plaintiff’s argument that alleged misconduct of the kind at issue in this case gave rise to “continuing breach” which escapes statutory limitations. Binnie J. observes in Wewaykum at para. 135: ¶135 Acceptance of such position would, of course, defeat the legislative purpose of limitation periods. For fiduciary, in particular, there would be no repose. In my view such conclusion is not compatible with the intent of the legislation.... [56] To conclude the limitation argument the equitable claims of the proposed plaintiffs under s. 3(1)(h) of the LAA are statute barred after six years from the discovery of the cause of action. All other claims are barred under s. 3(j) within six years after the cause of action arose unless they are saved by the common law doctrine of discoverability. DISCOVERABILITY [57] In [P.G.], supra, Ball J. reviewed the decisions relied on by the plaintiff and the Crown in support of their respective arguments as to whether or not the doctrine of discoverability applies to the claims advanced by the plaintiffs. [58] Ball J. came to the conclusion that all of the limitation periods in The Limitation of Actions Act were subject to discoverability. His reasons are as follows: [20] Discoverability is common law rule of interpretation applied by courts in construing statutory limitation provisions. Briefly, the principle is that where limitation period begins to run from the accrual of cause of action or the occurrence of some component of cause of action, the time will not begin to run until the plaintiff has discovered, or should with reasonable diligence have discovered, the wrongful nature of the defendant’s acts and the nexus between those acts and his injuries. [21] In [R.J.G.], Barclay J. stated at para. 10 that none of the provisions of the LAA appear to codify the common law discoverability doctrine: [10] It is critical to underscore that there appears to be no “ultimate limitation period” or “longstop provision” in the Act. Furthermore, the Act does not appear to codify the common law discoverability doctrine in any of its provisions. This is significant in that they provide salient contrast with other jurisdictions and lend support to the conclusion that the common law doctrine of discoverability applies in this case. [22] And at para. [17] Some provinces, notably, Manitoba and British Columbia, have incorporated discoverability into certain sections of their limitation legislation. The Saskatchewan legislation does not appear to codify the doctrine. Of course, this does not mean that the common law doctrine does not apply to the interpretation of the Act’s provisions. The Supreme Court has held that very strong legislative language would be required to displace the operation of the common law rule of discoverability.... [23] And again at para. [21] It is clear that s. 3.1 [sic] does not codify the rule of discoverability, but rather removes the limitation periods with respect to specific sexual abuse claims. Therefore, in my view, with respect to all the other sections of the Act, discoverability would apply. This conclusion is supported in recent decision by the British Columbia Supreme Court. In B. (K.L.) v. British Columbia, 2001 BCCA 221 (CanLII), [2001] W.W.R. 47 at 66, MacKenzie J.A. of the British Columbia Court of Appeal said that in case where there is claim for physical abuse which cannot fall into the exemption for sexual abuse, discoverability still applies. At para. 11, Barclay J. referred to series of decisions of the Supreme Court of Canada as follows: .. As LeDain J. held on behalf of the Supreme Court of Canada in Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147 at 224, discoverability is “general rule” that cause of action arises for the purposes of limitation period when the material facts on which it is based have been discovered or ought reasonably to have been discovered by the plaintiff by the exercise of reasonable diligence. [12] The Supreme Court of Canada has subsequently held that the discoverability rule is an interpretive tool that ought to be applied every time limitation provision is in issue: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] S.C.R. 549 at para. 38. The court in that case held that very clear legislative language indeed would be required to “displace the general rule of discoverability”. Marceau J. of the Alberta Court of Queen’s Bench stated in Brown (Next Friend of) v. University of Alberta Hospital, 1997 CanLII 14750 (AB QB), [1997] W.W.R. 645 at para. 68, that “[i]n my view, the Supreme Court has plainly said that they will apply the discoverability rule to all statutes of limitation ....” [13] The general rule that time begins to run when the material facts of the cause of action have been (or ought to have been) discovered was extended by the Supreme Court in M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] S.C.R. at 24. As result of the decision in that case, plaintiff now must not only know the material facts but must realize the nexus between the harm and its likely cause. As the court stated, the cause of action does not accrue “until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and her injuries.” [14] Further expanding the scope of the discoverability doctrine was the 1999 decision of the Supreme Court of Canada in Novak v. Bond (1999), 1999 CanLII 685 (SCC), 172 D.L.R. (4th) 385 (S.C.C.). In that case, the Court held that in applying the discoverability rule, time does not begin to run until reasonable person would conclude that someone in the plaintiff’s shoes could reasonably bring an action, “[i]n light of his or her particular circumstances ...” (headnote at p. 386). Although the Supreme Court in Novak was particularly concerned with the interpretation of statutory discoverability provision in the British Columbia legislation, the reasoning in Novak has since been extended to the common law rule of discoverability. Indeed, the recent decision of Zarzeczny J. in P.R.A. v. Orange Benevolent Society, 2002 SKQB 211 (CanLII), [2002] S.J. No. 307 suggests that it applies specifically in Saskatchewan. [25] In Plotnikoff, supra, Kyle J. decided that the common law discoverability principle is incorporated into the LAA by s. 3(1)(h), which applies to actions grounded on accident, mistake or other equitable grounds of relief, and that this indicated legislative intention to exclude the principle for other claims, including those in negligence. Beginning at para. 7, Kyle J. stated: [7] The plaintiff in seeking to support its claims for negligence, breach of trust and breach of fiduciary duty, argues that the discoverability rule has broader application than that which is found in paragraph 3.1(h) of the Act which says: (h) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within six years from the discovery of the cause of action; [8] This section of the Act recognizes the existence of the discovery rule and limits its application to equitable claims as therein described. The clear intent of the legislation is to place time limits upon all causes of action and to limit the discovery rule to equitable grounds of relief.... [9] It is argued in support of the discoverability rule that precedents based on the limitations of action legislation in British Columbia should be followed. note, however, that the case of Novak v. Bond, 1999 CanLII 685 (SCC), [1999] S.C.R. 808 related to and should be confined to the unique provision of the British Columbia act. It would be unwise to import that precedent into Saskatchewan where the law is in no way similar. [10] note too that several cases which tended to broaden the discovery rule pre-dated the statutory amendments such as ss. 3(3.1) of the Act and had the effect of preserving causes of action for sexual abuse. Legislative action has now made the discovery rule unnecessary in such cases. [11] Accordingly, the reference to negligence in paragraphs 15, 16, 17 and 23 will be struck by reason of negligence actions being statute barred. [26] The above excerpts illustrate why the Court came to very different conclusions in [R.J.G.]. and Plotnikoff. [27] First, in Plotnikoff, the Court decided that s. 3(1)(h) of the LAA is codification which confines discoverability to equitable claims. In [R.J.G.], the Court did not refer to s. 3(1)(h) but decided that all limitation periods are to be interpreted having regard to discoverability. [28] Second, in [R.J.G.] the Court relied upon number of decisions of the Supreme Court of Canada confirming that as general rule the discoverability principle ought to be applied when limitation provision is in issue, so that time begins to run when the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and the plaintiff’s injuries. Those decisions include Novak v. Bond (1999), 1999 CanLII 685 (SCC), 172 D.L.R. (4th) 385, Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] S.C.R. 549 at para. 38, M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] S.C.R. at 24 and Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147 at 224. In Plotnikoff the Court referred only to Novak v. Bond, supra, which it distinguished on the basis that the case related to and should be confined to unique British Columbia legislation. [29] Third, in Plotnikoff the Court reasoned that the enactment of s. 3(3.1) of the LAA “... had the effect of preserving causes of action for sexual abuse ... [making] the discovery rule unnecessary in such cases.” In [R.J.G.], the Court suggested that while s. 3(3.1) may have made the discovery rule irrelevant in the limited circumstances referred to therein, it did not change the application of the doctrine as it had previously existed for other claims. [30] While the current law is not settled on the point, have decided to follow the decision of this Court in [R.J.G.], supra. Sections 3(1)(d) and 3(1)(h) of the LAA have existed in their current forms since at least 1932 (see S.S. 1932, c. 18, s. 3). They are indistinguishable from much of the counterpart legislation in other jurisdictions considered by the Supreme Court of Canada in the decisions referred to above. All of those judgments were rendered after the enactment of ss. 3(1)(d) and 3(1)(h). Accordingly do not view the reference to discoverability in s. 3(1)(h) as codification which eliminates discoverability as consideration in all other claims. Although the enactment of s. 3(3.1) of the LAA in 1993 made issues of discoverability irrelevant for claims of trespass in limited circumstances, if those issues were previously relevant to other claims then in my view s. 3(3.1) did not serve to make them irrelevant. [31] Although the plaintiff’s claim in negligence may well be barred by the two year limitation period prescribed by s. 3(1)(d)(i) of the LAA, find that discoverability may be relevant to determining when that limitation period began to run. In the absence of agreement on the facts, there will be requirement for factual determination at trial with respect to when or over what period of time the plaintiff achieved substantial awareness of the wrongfulness of the actions sued upon and their consequential effects upon him. [59] agree with Mr. Justice Ball. [60] The causes of action proposed by the plaintiffs can only survive by application of the doctrine of discoverability. That gives rise to the critical question on this application—is class action the preferable procedure to determine issues of discoverability? [61] The decision in Brogaard, supra, is clearly distinguishable. The issue in that case was, in essence, question of law as to whether the plaintiffs would have the right to apply for survivor benefits. It was not dependant on the individual state of knowledge or circumstance of each plaintiff. [62] In McKay v. CDI Career Development Institutes Ltd. (1999), 1999 CanLII 5599 (BC SC), 30 C.P.C. (4th) 101, Blair J. of the British Columbia Supreme Court dismissed an application for certification when he concluded that the causes of action, the damages alleged and the issue proposed by the representative plaintiff as being common were dependant upon the class members individually establishing their claims against the defendant. Blair J. pointed out the difficulties in proceeding by way of class action in circumstances such as exist in this case. He stated at para. 47, p. 115: 47 further find that the individuality of the claims pose substantial difficulties in proceeding with certification as class action and conclude that these difficulties outweigh those likely to be experienced if relief were sought by other alternative means. In Mouhteros v. DeVry Canada Inc., supra [(1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (Gen. Div.)],Winkler J. stated at para. 31: The presence of individual issues will not be fatal to certification. Indeed, virtually every class action contains individual issues to some extent. In the instant case, however, what common issues there may be are completely subsumed by the plethora of individual issues, which would necessitate individual trials for virtually each class member. Each student’s experience is idiosyncratic, and liability would be subject to numerous variables for each class member. Such class action would be completely unmanageable. He later continued at para. 33: In my view, certification in this case will result in multitude of individual trials, which will completely overwhelm any advantage to be derived from trial of the few common issues. 48 In Sutherland v. Canada (Attorney General) (1997), 15 C.P.C. (4th) 329 (B.C.S.C.), Smith J. dealt with class certification application by persons affected by the operation of third runway at Vancouver airport. Mr. Justice Smith held there were no common issues because of the variables impacting on the various members of the proposed class, stating at p. 341: Moreover, they [the issues] are intrinsically individualistic and would inevitably reduce to discrete adjudications for each plaintiff. Little or no benefit would accrue to class members from common trial of any of these issues and, in the circumstances, class proceeding would not be fair and efficient method for resolving them. 49 In Tiemstra v. Insurance Corp. of British Columbia (1996), 1996 CanLII 2819 (BC SC), 22 B.C.L.R. (3d) 49 (B.C.S.C.) Chief Justice Esson (as he then was) denied an application for certification of class proceeding for individuals whose no fault claims were rejected under the defendant’s policy known as “no crash-no cash”. At p. 61, the Chief Justice concluded: On the other hand, class actions have the potential for becoming monsters of complexity and cost. In this case, am persuaded that the gloomy picture painted by I.C.B.C. is much closer to reality than the rosy one painted by the plaintiff. am therefore persuaded that class proceeding would not be the preferable procedure for the fair and efficient resolution of these claims. find that the conclusion of Chief Justice Esson is applicable to Mr. McKay’s application and that, even were there common issues for consideration, the certification of this action would lead to series of individual trials as each member of the class sought to establish their action and damages against CDI. The complexity and costs would be substantial and the organization of such proceeding would be exceedingly difficult. [63] case even more directly on point is M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (QL) decision of Haines J. of the Ontario Superior Court. In that case the plaintiffs were former students and the families of former students of Mohawk Institute Residential School located in Brantford, Ontario. The claims which the plaintiffs sought to have certified as class proceeding ranged from non-sexual assault to breaches of aboriginal and treaty rights. [64] In dealing with the limitation and laches arguments advanced by the Crown, Haines J. made the following comments: ¶74 The limitations and laches defences also make these claims difficult, if not impossible to deal with in common. This action was commenced long past the proscription dates that would apply to the claims arising from the allegations of negligence, assault and battery. To the extent any such claims may be saved by the discoverability rule, there will have to be an independent inquiry conducted of each member of the class to determine if they took action within reasonable time once they were aware of the harm and its likely cause. Similarly, with respect to the claims for breach of fiduciary duty and aboriginal rights for which no limitation periods exist, the doctrines of laches and fraudulent concealment will have to be addressed and an inquiry of each claimant would be required to determine if they acquiesced or took action within reasonable time after discovering the cause of action that was fraudulently concealed. (p. para. 74) [65] The comments of Winkler J. in Mouhteros v. DeVry Canada Inc. (1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (Gen. Div.) and Haines J. in M.C.C. v. Canada (Attorney General), supra, are equally applicable to this case. It is not possible to determine issues of discoverability in any global fashion. It will be necessary to have an inquiry into the state of mind of each individual plaintiff over a period of 40 years. As Winkler J. pointed out in Mouhteros, such a class action would be completely unmanageable and certification will result in a multitude of individual trials which would completely override any advantage that might be derived from a trial of a few potential common issues. [66] Furthermore, leaving aside the limitation problems, individual determinations will be required of each individual plaintiff in order to ascertain whether that plaintiff has a cause of action. [67] For example, finding that the Crown had fiduciary duty to properly inform every Indian war veteran as to the benefits they were entitled to receive would not amount to finding that each such war veteran had cause of action. A determination would still be required as to whether there had been a breach of the duty to properly inform every proposed plaintiff. An individual inquiry would be required as to what information each Indian veteran received, whether he understood the information and whether he made an informed decision. Similarly, a finding that there was a trust relationship between the veterans and the Crown as to the administration of the benefits would not determine whether there was a breach of any such relationship without an inquiry into the facts and circumstances of each individual veteran. [68] Again, those determinations cannot be made in manner that would apply generally to the members of the class. They are fundamental to the existence of each class member’s right of action and must be made on a case by case basis. The individual findings that would be necessitated in this case go far beyond the matters enumerated in s. of the CAA, supra, p. 6, as not being bars to certification. [69] In Abdool v. Anaheim Management Ltd., supra, O’Brien J. set forth what he considered to be the main objects of class proceedings legislation at p. 461: It seems clear the three main objects of the class proceeding legislation are: (i) judicial economy, or the efficient handling of potentially complex cases of mass wrongs; (ii) improved access to the courts for those whose actions might not otherwise be asserted. This involved claims which might have merit but legal costs of proceeding were disproportionate to the amount of each claim and hence many plaintiffs would be unable to pursue their legal remedies; (iii) modification of behaviour of actual or potential wrongdoers who might otherwise be tempted to ignore public obligations. [70] fail to see how those objectives will be achieved by certifying this action as class proceeding. [71] Counsel for the plaintiffs indicated in argument that in their estimation, the damages sought by individual plaintiffs range from approximately $280,000.00 to $368,000.00. Those are significant claims which can otherwise be asserted. [72] The refusal to certify this action will not, of course, prevent individual plaintiffs from proceeding with their respective claims if so advised. In other words, they are not “driven from the judgment seat”. [73] In conclusion, a class action is not the preferable procedure in the circumstances of this case. The issues of discoverability relating to each individual plaintiff overwhelms any common issues. [74] The application is therefore dismissed. Crown counsel advised that the Crown is not seeking an order for costs.","Canadian veterans of the Korean War or World War II applied for certification of an action under the Class Actions Act. The plaintiffs claimed they and their dependents were treated differently than non-native war veterans by requiring benefits to be administered by the Department of Indian Affairs or through Indian agents and claimed damages for loss of benefits based on systemic negligence, breach of trust, breach of fiduciary duty and unjust enrichment. They alleged officials and Indian agents were negligent in carrying out their duties to inform the plaintiffs of their right to receive full and complete benefits and in some case agents misappropriated benefits. HELD: The application was dismissed. A class action is not the preferable procedure in the circumstances. The issue of discoverability relating to each plaintiff overwhelms any common issues. It is not possible to determine issues of discoverability in any global fashion. It will be necessary to have an inquiry into the state of mind of each individual plaintiff over a period of 40 years. Such a class action would be completely unmanageable and certification would result in a multitude of individual trials, which would completely override any advantage that might be derived from a trial of a few potential common issues. A finding that there was a trust relationship between veterans and the Crown as to the administration of benefits would not determine whether there was a breach of any such relationship without an inquiry into the facts and circumstances of each veteran on a case by case basis. Aside from limitation problems, individual determinations will be required in order to ascertain whether the individual has a cause of action including for breach of a fiduciary duty, if one existed, to properly inform each proposed plaintiff, what information each received, whether he understood the information and made an informed decision. The Crown did not seek costs.",c_2003skqb58.txt
92,"J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LABOUR STANDARDS ACT, BEING CHAPTER L-1 OF THE REVISED STATUTES OF SASKATCHEWAN, 1978 AND IN THE MATTER OF THE CLAIM OF THE LABOUR STANDARDS BRANCH OF THE DEPARTMENT OF LABOUR FOR UNPAID WAGES BETWEEN: THE CITY OF REGINA and MINISTER OF LABOUR, LABOUR STANDARDS BRANCH and ALBERT MORGAN RESPONDENTS J.R. McLellan for the applicant G.J. Moran for the director of Labour Standards JUDGMENT LAWTON J. March 23, 1994 The Director of the Labour Standards Branch of theDepartment of Labour issued a certificate pursuant to s. 60 ofThe Labour Standards Act, R.S.S. 1978, c. L-1 (the ""Act""),stating that the City of Regina (the ""City"") owed its transitemployee, Albert Morgan, $511.08 in wages. At the hearing,the Director filed a March 8, 1994, letter reducing theassessment to $318.41 (including annual holiday pay). The City brings this application to review theassessment. By ss. 10(1) and 6(2) of the Act, an employer isrequired to pay an employee at the rate of time and one-halffor every hour worked in excess of 32 hours in any weekcontaining a public holiday (""holiday""). The Director contends that from April, 1990, to January, 1994, there were five such weeks in which Morgan worked 40 hours but was not paid overtime for the eight excess hours. The hours in question were worked on April 12 and November 17, 1990, July 6, 1991, and January and December 31, 1992. It is noted that none of these days is holiday, but is the day in the week containing holiday when Morgan worked the eight excess hours. The Director says it is not holiday issue, but whether the City is obliged to pay overtime as required by the Act for hours worked over 32 in week which has holiday in it. The City says it is holiday issue, because the overtime arises only because there is holiday in the week in question. agree with the City. The existence of the holiday is an essential part of the issue. No holiday means no issue. The City filed various documents, including copies of the collective bargaining agreement (the ""agreement"") it has with the Amalgamated Transit Union, Local #588, which covers Morgan's employment with the City, and asked me to compare the agreement's holiday pay with the Act's holiday pay. Thematerials satisfy me that pursuant to the terms of theagreement: 1. during the period December 31, 1989, to January 2, 1993, the City paid Morgan 87 hours of pay in excess of the Act's requirements for hours worked in week containing holiday; and 2. for each of the specific weeks questioned by the Directorit paid Morgan 4 hours pay in excess of the Act\'srequirements. Both parties referred to s. 72 of the Act. 72(1) Nothing in this Act or in any order or regulation made under this Act affects any provision in any Act, agreement or contract of service or any custom insofar as it ensures to any employee more favourable conditions, more favourable hours of work or more favourable rate of wages than the conditions, the hours of work or the rate of wages provided for by this Act or by any other order or regulation. (2) Where any provision in this Act or in any order or regulation made under this Act requires the payment of wages at the rate of time and one-half, no provision in any Act, agreement or contract of service, and no custom, shall be deemed to be more favourable than the provision in this Act or in the order or regulation if it provides for the payment of wages at rate less than the rate of time and one- (3) Any provision in any Act, agreement or contract of service or any custom that is less favourable to an employee than the provision of this Act or any order or regulation made under this Act is superseded by this Act or any order or regulation made under this Act insofar as it affects that employee. The leading authority in interpreting ss. 72(1) and (2), formerly ss. 62(1), is Regina v. Caxton Printing Ltd. and Central Press (1953) Ltd., 1977 CanLII 1452 (SK CA), [1977] W.W.R. 410, decision of the Saskatchewan Court of Appeal. Caxton, found guilty at trial of failing to pay overtime wages as required by the Act, appealed and won in the Court of Appeal on the ground that the collective bargaining agreement was more favourable to Caxton's employees than the Act. The Court held that ""deemed"" in ss. 71(2) meant ""deemed until the contrary is proved"", and the Court was satisfied by the material before it that the collective bargaining agreement was more favourable to the employees than the terms of the Act. Bayda J.A. (as he then was) stated at pp. 419 and 421: In determining whether any provision in an agreement prescribing rate of pay is more favourable than its counterpart contained in the Act, should that provision be isolated from the rest of the agreement and be treated as unaffected by the other provisions of the agreement dealt with in vacuo so to speak and the comparison between it and its counterpart in the Act then made, or should that provision and its effect be first evaluated in the light of the other provisions of the agreement then, only after such evaluation has take place, should the comparison be made. [M]y conclusion is that the legislature intended the rate-of-pay provision in any agreement to be read and evaluated in the light of the other provisions of the agreement before comparison is made with its counterpart in the Act. That the legislature contemplated that it should be left open to demonstrate that provision (in an agreement) on its face less favourable than its counterpart in the Act is, in fact, more favourable than the latter is evident not only from the wording of the section but from the decision itself to include the second branch of S62(1) in the section. note that in Justice Bayda's view the ""manifest"", ""avowed"" purpose of the Act is ""to provide employees with working conditions and standards as favourable to them as possible."" Unlike the Caxton, supra, case, do not have great deal of evidence before me to show just how much more favourable the agreement is than the Act. There is some, but not much. do have, however, the admission of the Director that such is the case. He admits that over all the agreement is more favourable to the employee than the minimum standards set out in the Act. He further admits that the agreement's provisions governing pay for holidays are more favourable than the comparable provisions in the Act. have no difficulty therefore in concluding that in the circumstances of this case the provisions of the agreement are more favourable to Morgan than the terms of the Act. That being the case, in light of the Caxton, supra, decision, the provisions of the agreement should govern, and not those of the Act. The City\'s application is allowed, and thecertificate is amended to show that there are no wages due orowing to Albert Morgan. There will be no order as to costs.","The Director of Labour Standards issued a certificate against the City of Regina certifying that it owed a transit employee $318.41 in wages for hours worked in weeks containing a statutory holiday in excess of 32 hours as provided in the Labour Standards Act. The City applied for a review. HELD: The City's application was allowed. Under the terms of the collective agreement in force, the employee was actually paid 4 hours pay in excess of the Act's requirements for each of the weeks in question. Pursuant to section 72 of the Act, therefore, these particular terms of the collective agreement applied since they were, when considered in light of the balance of the agreement, more favorable to the employee than the requirements of the Act.",1994canlii5095.txt
93,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 052 Date: September 28, 2018 Information: 24004723 Location: Canoe Lake Between: Her Majesty the Queen and Marcien Richard Desjardin Appearing: R. James Fyfe For the Crown Dwayne J. Stonechild For the Accused JUDGMENT D.A. LAVOIE, [1] The accused stands charged as follows:that on or about the 15 of May, A.D. 2015 at Jans Bay, in the Province of Saskatchewan did unlawfully fish for or catch and retain any species of fish in the waters of Jans Bay at approximately 55°10' N 108°08' W, Wepooskow Bay at approximately 55°12' N 108°07' W, and Wepooskow Narrows of Canoe Lake at approximately 55°10' N 108°09' W, all lying within Townships 71 and 72, Range 14, all West of the Third Meridian, and including all waters of Canoe Lake lying within a radius of 2.4 km from the intersection of the centre-line of Wepooskow Narrows with the easterly bank of Canoe Lake at approximately 55°10'30"" N 108°08'50"" W, contrary to: section 7(2)(b) of the Saskatchewan Fishery Regulations, 1995, made pursuant to The Fisheries Act, RSC 1985, c F-14. Authorities Considered by the Court 1) Treaty No. 10, August 28, 1906 2) The Saskatchewan Natural Resources Act, SC 1930, 41 3) Saskatchewan Fishery Regulations, 1995, SOR 95/233 4) Section 35 of the Constitution Act, 1982 5) Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 6) Gladstone, 1996 CanLII 160 (SCC), [1996] SCR 723 7) Nikal, 1996 CanLII 245 (SCC), [1996] SCR 1013 8) Horseman, 1990 CanLII 96 (SCC), [1990] SCR 901 9) Badger, 1996 CanLII 236 (SCC), [1996] 10) Marshall, 1999 CanLII 666 (SCC), [1999] SCR 533 11) Couillonneur, 2002 SKPC 10 (CanLII) 12) Couillonneur, 1996 CanLII 12082 (SKPC) 13) Goodstriker, 2012 ABPC 319 (CanLII) 14) Lefthand, 2007 ABCA 206 (CanLII) 15) Bruce McKenzie, 2006 SKPC 51 (CanLII) 16) Kristjan Pierone, 2018 SKCA 30 (CanLII) 17) Keepness 1999 CanLII 12424 (SK PC), 1999, 187 Sask (SKPC) 18) Dubois Saskatchewan, 2018 SKQB 241 (CanLII) 19) Jesse Bitz, 2009 SKPC 138 (CanLII) 20) First Nation of Nacho Nyak Dun Yukon, 2017 SCC 58 (CanLII) 21) Ktunaxa Nation British Columbia (Forests Lands and Natural Resource Operations), 2017 SCC 54 (CanLII) 22) Haida Nation British Columbia, 2004 SCC 73 (CanLII) 23) Ron Laviolette, 2005 SKPC 70 (CanLII) Introduction and Issues [2] The accused gave Notice under the The Constitutional Questions Act 2012, SS 2012, C-29.01 setting forth the following: Information: #24004723 TAKE NOTICE THAT PURSUANT to section of the Constitutional Questions Act, Ch. C-29.01, SS 2012, you are hereby given Notice that constitutional question will be argued by defence on the validity of section 7(2)(b) of the Saskatchewan Fisheries Regulations, 1995, made pursuant to The Fisheries Act, RSC, 1985, F-14 that purports to: a.) Restrict the accused’s Treaty and Aboriginal right to fish for food in the Jans Bay (Canoe Lake) geographical area as defined by the Saskatchewan regulation; b.) Infringe upon the accused’s Treaty and Aboriginal right to fish for food, as protected by Section 35(1) of the Constitution Act, 1982. c.) Infringe upon the accused’s Treaty and Aboriginal right to fish for food, as protected, recognized and affirmed by section 25 of the Canadian Charter of Rights and Freedoms. The particulars of the challenge are as follows: That the accused is status Treaty Indian, with Aboriginal and Treaty 10 rights to fish for sustenance; That on May 15, 2015 the accused was seen fishing from an unmotorized boat with his child, close to shore and the accused’s residence, with two poor quality nets in restricted area. It seems to be uncontroverted evidence that the accused was fishing for food. The accused was caught with eight sucker fish, two walleye and one northern pike; Jans Bay is approximately 15 meters behind the residence of the accused on the Canoe Lake First Nation, and is the preferred area for the accused to fish for food. The accused is unemployed and lives in low income household; and Jans Bay was originally closed on April 19, 1993 for regulation because of the overfishing impact of the local commercial fishery industry. This cannot be relied on to infringe upon the Treaty right to fish for food twenty-three years later, when there has been no recent studies, information, consultation or evidence that the infringement is reasonably justified. FURTHER TAKE NOTICE that the remedy the accused will be asking for is stay of the charge. [3] During the course of the trial and in written and oral argument defence somewhat expanded the scope of Constitutional and Treaty rights issues to be considered beyond what was set out in the written Constitutional Notice. The following is summary of the issues that arose and questions to be determined or adjudicated on by the Court: 1) The broad issue is whether the accused, as Treaty Indian fishing for sustenance/food was bound by section 7(2)(b) of the Saskatchewan Fishery Regulations, 1995, SOR 95/233made pursuant to the Fisheries Act, RSC, 1985 F-14?; 2) If he was so bound, does the regulation violate his Treaty right to fish for sustenance/food?; and 3) If his Treaty right was violated, can the regulations be saved or justified by the test set forth by the Supreme Court of Canada in Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 [Sparrow]? [4] The following is summary of the evidence and legislative provisions presented before the Court. [5] Mr. Desjardin is Treaty Indian and on May 15, 2015 he was fishing for food in Jans Bay in the Province of Saskatchewan from boat located within few hundred meters of his house which he built on the shores of Jans Bay around 1991. These waters at the time, were closed to all fishing, including Treaty sustenance fishing pursuant to the Saskatchewan Fishery Regulations, 1995, SOR 95/233. He was using net and had caught eight white sucker fish, two walleye and one northern pike. [6] He in essence admitted to the actus reus of the substantial charge but puts forth as defence his Treaty rights to fish for food in any water and at any time he so chooses. [7] Defence called three witnesses. However, the main constitutional and fisheries evidence was given on behalf of the Crown by Mr. Chad Doherty who was qualified as an expert in fish biology with considerable experience and educational background in fisheries management and ecology. [8] Canoe Lake is fairly large lake the size measuring approximately 14.5 km 18 km, which is little over 21,000 hectares or over 210 square kilometres. Numerous fish population studies describe it as eutrophic lake which is ideal for sustaining large fish populations. [9] The closed fishing areas in question in these proceedings are Jans Bay, Wepooskow Bay and Keeley River which are interconnected to Canoe Lake by the Canoe Narrows. [10] summary of Mr. Doherty’s evidence in relation to the closed fishing areas is that, these water bodies are the main spawning areas for all fish populations in Canoe Lake. The fish congregate in an area at the mouth of Canoe Narrows then move into Jans Bay and Keeley River to spawn. [11] During this process and time period the fish congregate into small areas and are very vulnerable to overfishing. Transcript 197, lines 30 34 Can you explain why that area is closed, the whole area? So so the actual bay itself is closed, including the actual radius that goes into the lake. It is known area for the walleye spawning stock to congregate, making it unique and important area for conservation and sustainable management for the Canoe Lake walleye population. Transcript 198, lines 33 41, 199, lines Sir, just one of the things that occurs to me when look at this geography is that there’s lake, and then there’s little Narrows, and then big bay, and then river. Can you give us any idea of of whether that’s something that you see with other lakes across the province, or how does it’s just it it’s something that I’ve never seen before, but haven’t looked at lot of lakes, like you have. No. Certainly, having an area such as this that is known for the congregating and staging of walleye before going in is an important and and unique area, particularly on Canoe Lake. There are other lakes that will have areas that the walleye populations will stage in front of rivers before moving, but certainly this is an unique and important area on Canoe Lake. Transcript 266, lines 17 30 MR. FYFE: just want to give you an opportunity to summarize. There’s been lot of information that you’ve provided to the Court. And want to just give you an opportunity to, kind of, summarize lot of it now. What is your view on whether the current closure needs to be in place or not into the future? Certainly. The the current closure the recommendation of the 2011 report and its stance today is that the current closure needs to be maintained. The Jans Bay area, including the extension into the river, the or into the lake the radius. And this is directly related to the closure on the Keeley River, as well. Is that it’s unique unique area that is known to have walleye spawning stock congregation. The closure represents conservation measure that is in support of the walleye population recovery efforts and future sustainability of the walleye population for the benefit of of the users of the lake. Transcript 268, lines 35 41, 269, lines What what would, in your opinion what what’s your view of opening up the closed area only to sustenance fishing, and leave it closed for commercial and angling? That would given the nature of what we know about the spawning walleye stock congregating in that area, that that would that would jeopardize the walleye population recovery efforts, future sustainability, and the relationships that have been established with multiple users of the lake in in with regards to overall fisheries management of Canoe Lake. Relationships what do you mean by that? Relationships well, the the support that we have received from from the Band, chief-and-council regarding maintaining of the closure, as well as the support from the commercial Co-op regarding the the closure, as well. And and the the reduction to 5,000-kilogram quota for the commercial quota or or commercial fishery for walleye was done in discussions with the commercial Co-op. [12] The Agreed Statement of Facts confirmed Mr. Desjardin’s Aboriginal Treaty status and right to sustenance fishing. The extent of that right is confirmed by his common law Aboriginal rights set forth in numerous decisions of the Supreme Court of Canada together with written treaties, acts and regulations. [13] The genesis of this is the written text of Treaty No. 10 signed at Isle-à-la-Crosse on August 28, 1906. [14] The signatories to the same were “Chipewyan, Cree and other Indian chiefs and headmen on their own behalf and on behalf of all the Indians whom they represent” which included the Canoe Lake Band members who historically inhabited the shores of Canoe Lake, Jans Bay, Keeley River, and the Wepooskow Bay which are relevant to these proceedings. [15] Other relevant texts of Treaty No. 10 set forth the following: and other Indian inhabitants of the territory within the limits hereinafter defined and described by their chiefs and headmen And whereas the Indians of the said tract, duly convened in council at the respective points named hereunder and being requested by His Majesty’s said commissioner to name certain chiefs and headmen who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon and to become responsible to His Majesty for the faithful performance by the respective bands of such obligations as shall be assumed by them, And His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the territory surrendered as heretofore described, subject to such regulations as may from time to time be made by the government of the country acting under the authority of His Majesty and saving and expecting such tracts as may be required to as may be taken up from time to time for settlement, mining, lumbering, trading or other purposes. [16] The wording of the representatives of the Aboriginal peoples of Treaty No. 10, has some relevance to subsequent documents and written representations made on behalf of the Canoe Lake Band members in relation to Treaty fishing rights on Canoe Lake and its interconnected waters and tributaries. [17] Other historical legislative documents include The Saskatchewan Natural Resources Act, SC 1930, 41; s. 35 of the Constitutional Act, 1982; and the Saskatchewan Fishery Regulations, 1995, SOR 95/233. See also: Sparrow; Badger, 1996 CanLII 236 (SCC), [1996] SCR 771 [Badger]; Lefthand, 2007 ABCA 206 (CanLII) [Lefthand]; and Kristjan Pierone, 2018 SKCA 30 (CanLII). [18] Over the years Canoe Lake proved to be very important resource for economic activity and sustenance food source for the Canoe Lake Band members. The three main types of fishing on the lake are significant commercial fishery, significant angler/sport/outfitter fishing and traditional Treaty sustenance fishing. Transcript 204, lines 24 29: …that the walleye numbers were low, based on your results. Why is there such concern about walleye? Walleye are of primary interest to multiple users of of the lake. Canoe Lake is managed as multi-use lake. It has sustenance fishing, commercial fishing, recreational fishing, outfitting. And walleye is one of the primary species for for all of those. [19] The evidence shows Treaty sustenance fishing is the much smaller portion of the total fish harvest but the opinion of experts gleaned from numerous fishery studies on the lake, is that sustenance fishing would have definite negative impact on total fish numbers if it was allowed in the Jans Bay no fishing zone. [20] The commercial fishery has been such significant part of Canoe Lake such that commercial fishery co-op was established in the 1950's. From its inception to this day the co-op, with the authority of the provincial government, manages and has sole discretion in determining who gets commercial fishing licence. [21] Tyler Pouteaux, Conservation Officer with the Provincial Ministry of the Environment gave evidence in relation to his knowledge of the commercial fishing co-op. His evidence remained unchallenged by any defence evidence. They monitor and enforce fishing regulations around Canoe Lake all year round. [22] Since its inception the co-op decides who is eligible to acquire commercial licence. To his knowledge the licence holders are all of status First Nation or Metis heritage from Jans Bay, Canoe Lake/Narrows and Cole Bay communities. The Ministry gets list each year of who has licences. None are non-status or non-Metis. All nets on Canoe Lake are monitored regularly and on daily basis during commercial season. Individuals tag their nets with their commercial licence number or their Treaty card number. [23] They are in regular contact with representatives of Canoe Lake Band office. To his recollection at no time has anyone asked to lift the ban on sustenance fishing in Jans Bay, the waters relevant to these proceedings. Other than the Jans Bay area, Treaty sustenance fishing, with no limits, is allowed all year round on Canoe Lake. [24] The province has been significantly involved with the Canoe Lake Band in monitoring and managing the Canoe Lake Fishery since the 1930's. [25] The evidence discloses that the fish population of Canoe Lake were biologically tested in 1957, 1968 and 1973. The Crown filed written reports of significant testing studies done in April 1969, November 1973, April 1985, February 1990, July 1996 and June 2011. [26] The essence of the studies and the expert opinions formulated from them establishes number of observations: 1) the commercial fishery has always been significant part of Canoe Lake. The records show that the Commercial Fishery catch varied from year to year since 1934-35. The total catch achieved total numbers of 307,790 pounds with 162 licences in 1962-63; 2) upgrading of the provincial highway system in the 1960's increased access to Canoe Lake and the number of sport and outfitter recreational anglers; 3) the number of licences remained high in the 1990's and peaked at approximately 150 in 2001-02; 4) to no one’s surprise the total commercial fish harvest grew exponentially with the number of licences. Coupled with that was the increase in sport fishing from the 1960's on. This resulted in extreme stress on the total fish population of the lake with significant reductions in the same; and 5) this resulted in constant monitoring of fish populations coupled with periodic changes in regulations reducing the commercial and angler fish harvesting quotas. [27] Since 1995 commercial and recreational fishing was closed for the entire lake from March to May 14 each year. Limits for walleye for anglers was reduced from 10 to five to three and today to one per day. Other fish harvest numbers were reduced as well. [28] This did not go unnoticed by the Canoe Lake Band members. The evidence presented to the Court is relevant to the final analysis of Treaty fishing rights in this case. [29] letter dated April 19, 1993, signed individually by the Canoe Lake Chief and Council and the Canoe Lake Fisherman’s Coop was received by the Government of Saskatchewan, and read as follows: April 19, 1993 Dear Sir: On the above date, joint meeting was held between the Canoe Lake First Nation Council and the Fisherman’s Cooperative to discuss Closure of the Narrows and Jans Bay. The Narrows in particular has been concern in recent days due to overfishing by local residents along with allegation of illegal sale of fish to outside and out of province agencies. Those matters prompted the call for the meeting in addition to the fact that these locations are fish spawning areas and the fish are running at this time of the year and this added pressure by anglers will diminish our stock. The consensus of the Members present agreed to re-activate or continue the policy and recommendations agreed upon as per letter dated December 16, 1980 by the Canoe Lake Commercial Fisherman. This will mean the Closure of Jans Bay and the Narrows area from all fishing all year. The Narrows shall be closed within one mile from the shoreline. Canoe Lake Chief and Council Canoe Lake Fisherman’s Coop [30] The result was the passing of regulations by the provincial government in 1995 closing Jans Bay and other waters to all fishing all year round including one mile radius at the Narrows. Today that radius is 1.5 miles. [31] An almost identically worded letter dated October 27, 1997 was also received by the Ministry. It was also signed by the Chief and Council and the Cooperative. [32] The significant difference from 1993 to 1997 was suggesting “the Narrows shall be closed within one and half miles from the shoreline”. [33] This was an increase from the one mile radius in the 1993 letter. [34] The Crown evidence was to the effect that these letters were relied upon by the Government of Saskatchewan each time the applicable legislation was established or amended. [35] For whatever reason copy of the letter dated December 16, 1980 referred to in the 1993 and 1997 letters was never located by any of the parties. Suffice to say that the inference to be drawn is that closure of Jans Bay to “all fishing” appears to have been an issue, within the purview and discussion of the Canoe Lake Band and Council since at least 1980. [36] Norman Opekokew, Conservation Officer with the Saskatchewan Ministry of the Environment gave considerable evidence in relation to fishing in Canoe Lake. It should be noted that all his evidence remained uncontradicted by any defence evidence. He is status member of the Canoe Lake First Nation Band and was raised in that area. His parents still live in the community. He was the officer who investigated and charged Mr. Desjardin with the within offence. [37] His evidence in relation to Jans Bay being closed to Treaty sustenance fishing reads as follows: Transcript 346, lines 14 23, 31 37, 39 41, 347, lines Okay. Now, you’re aware of the the current closure on Jans Bay and the the Keeley River and then the area that juts out into the lake, you’re you know about that closure, of course? Yes. As well as at Weepooskow Bay. Okay. It’s all one all closure. Yeah. And we and and everybody here is familiar with that closure Okay. So you would have you would be aware of that closure in your capacity as conservation officer with the Ministry? Yes. Were you aware of that closure as member of the community, before you were an officer with with the Ministry? Yes. Okay. Can can you describe that for the Court? Were you able to what what to your understanding, when did that closure come into place? How long has it been in place, to your recollection? As long as can remember. don’t remember the details because never did pay attention too much when it was closed. just know that my relatives so my like, my grandfather and my uncles told us that we couldn’t fish there. And we were not allowed to question our uncles and aunts, grandfathers. [38] He then explained how after he charged Mr. Desjardins he spoke to the Band Chief and his brother, Denis Opekokew, who is employed as the Justice Worker for the Band. He was seeking support and clarification in relation to Jans Bay being closed to sustenance fishing. This resulted in him receiving letter dated November 9, 2016 written on Canoe Lake Cree First Nation letterhead which states: November 9, 2016 To Whom it may concern: We the Canoe Lake Cree First Nation and our members do support JANS BAY closure for all fishing. Thank you for your immediate attention to this important matter. If you require further information and/or clarification, please do not hesitate to contact myself and that above number. On behalf of the Chief and Council, Wilfred Iron, Councillor Canoe Lake First Nation [39] He estimated there are 600 700 residents on the Reserve and 300 400 residents at Jans Bay and Cole Bay. There is an annual meeting with the Ministry and the Fishing Co-op to establish commercial fishing dates for Canoe Lake and surrounding waters. [40] To be member of the Co-op you must be resident of the community and one of your parents must have come from one of the three communities. All Co-op members must be Treaty or Metis status members. [41] Officer Norman Opekokew also knows the accused and is familiar with the location of his house. He estimates the accused can access Canoe Lake proper which is open to unlimited Treaty sustenance fishing all year round. His estimates of travel time are as follows: Transcript 360, lines 15 19 MR. FYFE: How far is it drive from the accused’s house to an area any area on Canoe Lake that isn’t subject to the closure? How far would it take person to drive? It looks like about five-minute drive. And if you go by boat, through Jans Bay, through the Narrows, maybe ten minutes, 15 minutes [42] Mr. Joseph Guy Lariviere testified for the accused in relation to the 1993 and 1997 letters. He was Chief of the Canoe Lake band from 1992 to 2010. He has three years of University education at the University of Regina (1971, 72 and 73). He in fact signed the 1993 and 1997 letters as Chief of the Canoe Lake Band. He is presently Senator of the Federation of Sovereign Indian Nations of Saskatchewan. He confirmed the meeting with the Fishing Co-op, which was the genesis for the two letters. [43] His explanation was as follows: Transcript 46, lines 18 28 Oh, okay. So there so there came time in in in the in 1993 when when these two parties here, the the the the chief-and-council and the and and the Fishermen’s Co-op these two parties met. And there came time where they decided that that that that conservation efforts are needed in in Jans Bay? Yes. Why did that happen? Well, just just because what what had said earlier. They they wanted to conserve the fish. They they didn’t want to have they didn’t have the the lakes over over-fished. [44] He confirmed that the members of the Co-op were all band members. In fact the Co-op built fish processing plant on the shores of Canoe Lake with the support of Band Council. He then went on to interpret the wording of “all fishing” in the letters to apply only to commercial fishing and not “Treaty sustenance fishing rights”. [45] From his evidence it appears the letters came from initiatives of Band Council and not at the request of the Provincial Government. He confirmed the Chief and Council are usually the main authority for band members. He also confirmed concern at the time that “there was overfishing by local residents.” [46] In the end Mr. Lariviere was very aware of the conflicts he faced in relation to the wording “this will mean the closure of Jans Bay and the Narrows area from all fishing all year” and his attempt to explain this did not include “Treaty fishing rights”. [47] It was also very clear that he understood the difference between the words “commercial fishing”, “Treaty fishing” and “all fishing”. Further he stated: Transcript 69, lines 28 39 Are you aware of any documents from chief-and-council ever provided to the Government of Saskatchewan in which chief-and-council objected to the Government closure or expressed any concerns about the closure? No, I’m not aware of that. No. And so, again, you were you were chief from 1992 until 2010? That was it, yeah. And at no time during that period that you were chief did you ever write letter or make phone call to representatives of the Government of Saskatchewan expressing your concerns about the closure? Yeah. no, can’t remember. If if did, don’t don’t remember. [48] In the end Mr. Lariviere’s evidence in trying to interpret the letters was of little assistance to the Court. His recollections at the time of signing the letters were somewhat selective and the Court finds it can place little weight on his interpretation of the wording found in the letters. [49] Mr. Francis Xavier Iron, who is the present Chief of the Canoe Lake Band also testified in relation to the November 9, 2016 letter. From his evidence he clearly understood the difference between commercial fishing and “Treaty Sustenance Fishing Rights”. He acknowledged the 1993 and 1997 letters did not differentiate between the two and referred to “all fishing” and could be interpreted to prohibit sustenance fishing by local residents. [50] He also confirmed the November 9, 2016 letter from the Band was signed by Council member and was provided to the Government. He was aware of both the charges against Mr. Desjardin and the 2016 letter. He acknowledged since then he has not initiated any contact with Government nor within Band council to retract the letter or proffer different wording for the letter. [51] He himself knows of the Jans Bay closure and does not fish in those waters. He has always been aware of the Jans Bay closure. His response to the same is as follows: Transcript page 159, lines 21-24, 160, lines 17 And during any of the time that you’ve been in First Nation government, either as counselor or as as Chief, have you expressed any concerns or objections to government about the closure? No. MR. FYFE: So we’ll just put that aside for now. When you were councillor. What about about as Chief, would you have had the capacity to express an objection or concern with anything that Government was doing, whether it’s the closure or anything else? No. But they’ll be getting it now. You’re beginning it now? Oh, yeah, it’ll come. Oh, it will come? Okay. As result of this litigation? No, no. Just it’s such big issue, that we should have addressed it long time ago. [52] Mr. Desjardin gave evidence in his own defence. At the invitation of defence the Court visited his residence and viewed the location where he was fishing on May 15, 2015. summary of his evidence is as follows: he is age 62 and has fished and hunted all his life. On the date in question he was fishing for food for their evening meal. Over the years he had different employment including heavy equipment operator. He owns truck and often transports his boat to Canoe Lake, which is five minute drive, and other nearby lakes to partake in sustenance fishing. He has certain pension income and his wife is also employed. As he ages his preference is to fish in Jans Bay, however he can clearly access other bodies of water to fish. Analysis and Conclusions [53] Mr. Desjardins admits to the actus reus but puts forth his Treaty right to fish wherever and whenever he wants. The onus and evidentiary burden to prove violation of his Treaty rights shifts to Mr. Desjardin to prove the same on balance of probabilities. (Sparrow at para 112). [54] His Treaty right to fish is expressly subject to government regulation within the wording of Treaty No. 10 “subject to such regulations as may from time to time be made by the government.” See also: Goodstriker, 2012 ABPC 319 (CanLII) [Goodstriker]; Lefthand Bruce McKenzie, 2006 SKPC 51 (CanLII) [McKenzie]; and Kristjan Pierone, 2018 SKCA 30 (CanLII) [Pierone]. [55] In other words, the right to fish is internally limited by the scope of the regulations closing Jans Bay to all fishing. [56] The Alberta Court of Appeal’s decision in Lefthand is closely on point. In Lefthand Justice Slatter held that conservation and safety regulations are contemplated by the Treaties as an internal limit to fishing and hunting rights: [99] First, are the regulations part of bona fide scheme of management and conservation of the game stocks? Second, are the regulations contrary to any express promises or covenants in the Treaty or elsewhere? Third, is there any evidence that the scheme has been structured in way that discriminates against the aboriginal fishery, and to what extent do the regulations give others priority to the game stocks? Fourth, are the regulations reasonable, in the sense that they are rational and proportional to the conservation objective? Fifth, what practical effect do the regulations actually have on the Indians ability to exercise their right to hunt and feed themselves? See also: McKenzie; Pierone; and Couillonneur, 2002 SKPC 10 (CanLII). [57] “No absolute priority or exclusivity need be given to the Aboriginal fishers, so long as meaningful recognition is given to their rights.” Lefthand, para 111, Badger, 1996 CanLII 236 (SCC), [1996] SCR 771, para 70. [58] The evidence, which is unchallenged by any defence expert evidence, clearly establishes the regulations are solely based on an integrated, absolutely necessary conservation scheme. The closure area applies to all users of the resource. The waters outside the closure area, the balance of Canoe Lake, are subject to number of severe restrictions on recreational and commercial fishing, both in terms of seasonal closures and catch limits. At the same time those waters are open to sustenance fishing all year round with no catch limits. In other words, the balance of the conservation scheme puts no infringement whatsoever on Treaty fishing. [59] If the Court is wrong on the internal restriction then it must turn to the principles established by the Supreme Court of Canada in Sparrow. These guidelines were set out in Lefthand at para 79: The Sparrow Principles [79] The leading case in this area is still Sparrow (which involved fishing rights in British Columbia), as it has been interpreted by some of the later cases. The facts in Sparrow can be distinguished in some important respects from the present two appeals. Sparrow concerned fishing rights in British Columbia, and did not concern treaty, or the Transfer Agreements of 1930. It therefore did not consider aboriginal rights that were inherently subject to an express “right to regulate”. Sparrow covered number of important topics: (a) it set out the scope and meaning of s. 35 of the Constitution Act, 1982; (b) it confirmed that aboriginal fishing rights evolve over time; (c) it held that any extinguishment of aboriginal rights prior to 1982 must have been plain and obvious; (d) it held that the scope of pre‑contact, unsurrendered aboriginal right must be determined by examining how the right was historically exercised; (e) it recognized trust‑like relationship between the Crown and the aboriginal peoples, and held that aboriginal rights must be recognized and interpreted with that in mind; (f) it held that not every interference with an aboriginal right constitutes an infringement of that right (at pg. 1112). The interference must be examined for unreasonableness, undue hardship, and interference with the preferred means of exercising the right. An interference that meets this test and “unnecessarily” infringes right is then said to be “prima facie infringement”. (g) it concluded that aboriginal rights are not immune from regulation, but that government regulation that “infringes upon or denies” an aboriginal right (i.e. is prima facie breach) must be “justified” (at pp. 1101, 1109‑10, 1113). To be justified the regulation must be in furtherance of valid objective, and must meet fluid test having regard to the fiduciary duties of the Crown, the allocation of scarce resources, the priority to be given to the aboriginal food fishery, whether the infringement has been minimized, whether compensation is possible, whether the aboriginal communities have been consulted, and other relevant factors. [60] The generous approach to the interpretation of Indian treaties was elaborated upon by Cory, in Badger at para 41, where he states: First, it must be remembered that treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. See R. v. Sioui, 1990 CanLII 103 (SCC), [1990] S.C.R. 1025, at p. 1063; Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] S.C.R. 387, at p. 401. Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of ""sharp dealing"" will be sanctioned. See Sparrow, supra, at pp. 1107-8 and 1114; R. v. Taylor (1981), 1981 CanLII 1657 (ON CA), 34 O.R. (2d) 360 (Ont. C.A.), at p. 367. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. See Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] S.C.R. 29, at p. 36; Simon, supra, at p. 402; Sioui, supra, at p. 1035; and Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] S.C.R. 85, at pp. 142 43. [61] Having concluded that Treaty No. 10 provides the right to fish for food, the question now turns to whether the Jans Bay closure regulations is an infringement of that right. In Goodstriker, para 60, 61 and 62 the Court stated: [60] Having concluded that Treaty provides right to fish for food within the parameters established by the NRTA, the question now turns to whether the fishing regulation that closes all fishing on specific parts of the St. Mary’s River and its tributaries for period is an infringement of that right. The Defendants have the burden of showing that the effect of the legislation is to interfere with the exercise of their right so as to demonstrate prima facie infringement, which would then require the Crown to justify such infringement: (R Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075 at p.1112). [61] What amounts to prima facie infringement has been described in various ways. Some of them are as follows: “an adverse restriction on the ... exercise of the right to fish for food” (Sparrow, p.1112) circumstances that “clearly impinge upon”, the right (R Nikal, 1996 CanLII 245 (SCC), [1996] SCR 1013 at para.106) “unnecessarily infringe the interests protected” by the right (Sparrow, p.1112-1113) meaningful demonition of the ... “rights” (R Gladstone, 1996 CanLII 160 (SCC), [1996] SCR 723 at para.43) “more than mere inconvenience” (Nikal, para.100) [62] In Morris 2006 SCC 59 (CanLII), [2006] SCR 915 para.47-53 the Court makes it clear that an “insignificant interference” with treaty right is not an infringement. [62] In this case, the evidence establishes Mr. Desjardin could easily fish in other nearby waters. It is just that his preference is and more convenient to fish in Jans Bay. He has not established on balance of probabilities “prima facie” infringement as contemplated by the jurisprudence. [63] If the Court is in error about prima facia infringement then it must proceed to an analysis of what is often referred to as the test in Sparrow. [64] In Sparrow, 1990 CanLII 104 (SCC), [1990] SCR 1075, [1990] WWR 410, the Supreme Court of Canada, dealing with case involving an Indian’s right to fish for food off the coast of British Columbia, set out guidelines to use in looking at legislation that might affect an existing Aboriginal right. At page 437, Chief Justice Dickson and Mr. Justice La Forest, speaking for the Court, said: The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents prima facie infringement of s. 35(1) [of the Constitution Act, 1982]. To determine whether the fishing rights have been interfered with such as to constitute prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving prima facie infringement lies on the individual or group challenging the legislation. [65] Upon full analysis the Court would be of the view that the Saskatchewan Fishery Regulations, 1995, SOR 95/233 are not prima facie infringement of the accused’s Treaty fishing rights. [66] If the Court is in error on that point then it must proceed to the next step in Sparrow which is the justification process. [67] The justification test set out by the Supreme Court in Sparrow involved two main questions: 1) Is there valid legislative objective? [68] In Sparrow the Chief Justice stated at 438: If prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question of what constitutes legitimate regulation of constitutional aboriginal right. The justification analysis would proceed as follows. First, is there valid legislative objective? Here the court would inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also be scrutinized. An objective aimed at preserving s. 35(1) rights by conserving and managing natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial. [69] This suggests valid objective will be one that is important enough to outweigh the Aboriginal right. The Supreme Court has stated valid objective would be one aimed at the conservation or management of natural resource. [70] As stated earlier, the uncontradicted evidence clearly establishes the need to protect the fish stocks which was the sole intent of the regulations. 2) Second stage involves the honour of the Crown? This in turn raises two questions: a) Has there been as little infringement as reasonably possible in order to affect the desired outcome? Considering the evidence the answer to that is yes. b) Has the Aboriginal group in question been consulted with respect to the regulation? Considering the three letters of 1993; 1996 and 2016 the logical interpretation of the letters and inference to be drawn is that the answer is yes. [71] It may be that some Aboriginal leaders feel the closure could or should maybe be revisited. However, there is no expert evidence presently available to create foundation for logical revisitation. In addition, the evidence establishes this has been very cooperative effort over the last thirty plus years between Canoe Lake community and the Government to deal with this in logical, objective, conservation focussed way to protect the fish population while still respecting the Treaty right to fish. [72] In conclusion, the accused has failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him:1) The challenged regulations are within the implied common law limitations on Aboriginal fishing rights;2) Alternatively the regulations are within the proviso of Treaty No. 10 and constitutional legislative enactments for “regulations to be made” by government;3) Alternatively, if the regulations are not within the implied or express limitations of the right, evidence does not establish a prima facie infringement of the right;4) Alternatively, if there was a breach, said breach meets the justification principles set out in Sparrow and Pierone. [73] The Court finds the accused guilty as charged. D.A. Lavoie,","/n The accused was charged with violating s. 7(2)(b) of the Saskatchewan Fishery Regulations, 1995 by unlawfully fishing in an area of Canoe Lake, specifically Jans Bay, that had been closed to all fishing since 1993 because of overfishing by the local commercial fishery industry. The accused, a status Indian with Aboriginal and Treaty 10 rights, was fishing for food. He had used a net in the restricted area and had caught eight suckers, two walleye and one northern pike. The Bay was very close to the residence of the accused on the Canoe Lake First Nation and was his preferred area to fish. The remainder of Canoe Lake was subject to restrictions governing all fishing but open to unlimited Treaty sustenance fishing all year round. The accused admitted to the actus reus of the offence. Under the Constitutional Questions Act, 2012 the accused gave notice that he would argue that s. 7(2)(b) of the regulations was invalid because it restricted his Treaty and Aboriginal right to fish food in the restricted area as defined by the Regulations; infringed his Treaty and Aboriginal right to fish for food as protected by s. 35(1) of the Constitution Act, 1982; and infringed his Treaty and Aboriginal right to fish for food as protected by s. 25 of the Charter of Rights. The agreed Statement of Facts confirmed the accused’s Aboriginal Treaty status and right to sustenance fishing. The Crown’s major witness was an expert in fish biology and he testified that the restricted area had been closed to protect it for walleye spawning. He stated that the closed area could not be opened for sustenance fishing. The conservation effort had been supported by the Canoe Lake Band Council./n HELD: The accused was found guilty. The court found that the accused had failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him: 1) the challenged regulations were within the implied common law limitations on Aboriginal fishing rights; 2) alternatively, the regulations fell within the provisions that permitted such regulations in Treaty 10; 3) alternatively, if they were not within the implied limitations of the right, the evidence had not established a prima facie infringement of the right; 4) alternatively, if there was a breach, it met the justification principles set out in Sparrow and Pierone.",b_2018skpc52.txt
94,"QBC 40 of A.D. 1997 IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF REGINA PROVINCE OF SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and CHAD J. D. DELAITTRE Bryce Pashovitz for Her Majesty The Queen Aaron Fox, Q.C. for Chad J. D. Delaittre JUDGMENT ALLBRIGHT J. MARCH 10, 1998 The accused, Chad J. D. Delaittre, has pleadguilty to a charge: THAT HE, the said Chad J. D. Delaittre,on or about the 21st day of July, A.D. 1996 at or nearRegina, in the Province of Saskatchewan did operate amotor vehicle on the streets of the City of Regina towit: 200 North Albert Street, in a manner dangerous tothe public, and did hereby cause the death of VernonKeith Ward contrary to Section 249(4) of the CriminalCode of Canada. In addressing the matter of an appropriate sentence, the Crown suggests that range of sentences for such an offence runs from low of fifteen months to high of four and one-half years. In this instance, the Crown argues that incarceration should result, somewhere within that range and that under the circumstances of this offence conditional sentence would not be appropriate. The defence suggests range of sentences which is broad, and lower than that suggested by the Crown. Specifically the defence argues that a sentence in the lowerend of the range is one which should be imposed and that sucha sentence should be a conditional sentence to be served inthe community, rather than in a corrections facility. CIRCUMSTANCES OF THE OFFENCE This accident occurred at approximately 10:30 p.m. on Sunday, July 21, 1996 at the intersection of Albert Street and 3rd Avenue North in the City of Regina. At that intersection, there are two through driving lanes proceeding in northerly direction, with left turn lane and right curb lane. The intersection is not controlled by traffic lights. The accused was driving black 1986 Volkswagen model G.T.I. and had been travelling along Albert Street from the south side of Regina in northerly direction. He was accompanied by friend, Trevor Leibel. Alcohol does not appear to have been in any way involved in the accident, and breathalyzer reading taken approximately one and one-half hours after the accident revealed no alcohol in the blood of the accused. Conflicting accounts of the driving leading up to the accident and the accident itself have been provided by various witnesses. The following is summary of the observations of those witnesses. Alan Cassidy Alan Cassidy prior to the accident was travelling north bound on Albert Street having just passed 1st Avenue North. Two vehicles passed him at high rate of speed, one being light colored Audi which passed his vehicle on the left, the other being black Volkswagen, that being driven by the accused which passed on his right. He noticed number of vehicles stopped in front of him at the intersection of Albert Street and 3rd Avenue North and at about that same time, he observed pedestrian crossing at the intersection from the west side of Albert Street towards the east side of Albert Street. He noted, after the Volkswagen had passed him, the brake lights on the vehicle activate and he saw the vehicle strike the deceased, Vernon Keith Ward in the intersection. Trevor Ellis Trevor Ellis was driving south on Albert Street intending to turn on to 3rd Avenue North and proceed in an easterly direction. He stopped to await oncoming traffic and noted vehicle go by quickly to his left in what would be the left hand lane for traffic proceeding north. Vehicles were stopped in the driving lanes and he then observed the Volkswagen approach those vehicles from behind, and turn into the right hand curb lane. He heard squealing of tires and the sound of ""bang"" and saw something go flying. Following the accident he observed that Mr. Delaittre was upset and went over to the victim, Mr. Ward, indicating ""I'm sorry, I'm sorry"". He was uncertain as to what happened to the light colored Audi. Paul Benson Paul Benson was passenger in the Audi being driven by Dallas Black. He and Mr. Black, shortly after 10:00 p.m., had started driving up Albert Street from the south area of Regina. Early on, he noted the black Volkswagen driven by Mr. Delaittre also travelling north on Albert Street. He observed that the Volkswagen was travelling in and out of traffic and noted that for some period of time he was driving along with an Accura automobile. He estimated the Volkswagen to be travelling 70 to 80 kilometers per hour. He described the Volkswagen as pulling around vehicles whenever possible and ""jousting with the Accura"". At the intersection of Albert Street and 5th Avenue, the Audi driven by Mr. Black, and Mr. Delaittre's vehicle stopped at the traffic light. Mr. Black was in the right lane and Mr. Delaittre was in the left lane. When the light turned green both vehicles accelerated and the Audi moved into the left lane while the Volkswagen shifted into the right driving lane. They stopped for another light at Albert Street and 1st Avenue again with the Audi occupying the left driving lane and the Volkswagen in the right driving lane. Mr. Benson indicated the accused gestured as if he wanted to race and both vehicles accelerated hard when the light turned green. The Audi left the intersection first followed by the Volkswagen and Mr. Benson estimated that both vehicles reached speeds of 70 kilometers per hour. The Volkswagen, however ended up approximately one-half block behind the Audi. As the vehicles approached the intersection where the accident occurred, Mr. Benson saw two vehicles in his lane, the left driving lane and three vehicles in the right driving lane, that being the lane in which the Volkswagen was driving. These vehicles were either stopped or slowing to stop at the intersection. He then observed pedestrian crossing the intersection and immediately observed the Volkswagen on his right, drive into the curb lane, and lock its brakes. That was the end of the observations of Mr. Benson. Mr. Benson indicates that he and Mr. Black stopped, however that does not appear to be consistent with the evidence of Mr. Ellis, and indeed it would appear that the Audi left the scene of the accident immediately. Dallas Black Dallas Black confirmed Mr. Benson's description of the events leading up to the accident, although he recalls first seeing the black Volkswagen in the area of Albert Street and College. At the intersection of Albert Street and 1st Avenue, approximately three blocks from the accident, both vehicles were stopped, Mr. Black in the left driving lane and the black Volkswagen driven by Mr. Delaittre in the right driving lane. Mr. Black accelerated to approximately 70 kilometers per hour, then looked up, and continued to accelerate. He noticed vehicles at the intersection at Albert Street and 3rd Avenue and observed the Volkswagen turn into the right hand curb lane, lock its brakes and slide into the intersection. Mr. Black did not remain at the scene of the accident and only later was his identity made known to the authorities. Trevor Leibel Trevor Leibel was passenger in Mr. Delaittre's vehicle and indicates that Mr. Delaittre sped up to keep up with the Audi and that at the time of the accident, the accused had run out of room and had to go to the right lane to avoid hitting the cars which were in front of them in the driving lanes. The accused saw the pedestrian at that time and hit the brakes, however the vehicle could not stop and Mr. Ward was struck. Vernon Keith Ward, was 64 years of age at the time of the accident and lived in the vicinity. He was dressed in dark clothing that night and crossed in the southerly unmarked pedestrian crosswalk proceeding from the west to the east. Mr. Ward had almost completely crossed the intersection walking in front of the vehicles which had stopped to allow his passage. Upon impact he was thrown onto the hood of the vehicle, then the roof, and came to rest just in front of the vehicle in the intersection. passer-by called 911. The accused, as well had asked someone to call 911. Mr. Ward passed away short time thereafter as result of the injuries sustained in the accident. An investigator who attended at the scene estimated the speed of the Volkswagen at approximately 85 kilometers per hour prior to brake lock-up and further estimated the speed to be 56 kilometers per hour at impact. An expert, secured by the defence, indicated from his reconstruction that the accused could have been going approximately 65 kilometers per hour just prior to the brake lock-up. The Crown does not dispute this estimate. CIRCUMSTANCES OF THE ACCUSED The accused, Mr. Delaittre, was 19 years of age at the time of the accident and has now turned 21. He has minor youth record, that being charge of mischief proceeded with in Youth Court in September of 1993. In addition, Mr. Delaittre has six speeding convictions on his highway traffic record, two of them having been entered after the accident, in July and November of 1997. The accused lives with his parents in Pilot Butte and has worked steadily since the accident. He hopes in the future to attend University and pursue career in engineering. His work as of recent times has been involved in the oilfield. letter of support was offered by Mr. Delaittre's employer indicating Mr. Delaittre to be an ""honest, reliable and hard-working individual with desire to better himself at all times."" The letter is supportive of Mr. Delaittre and indicates that the accused has work with the company. further letter was provided by friend of Mr. Delaittre, retired Sgt. Ron Coleman of the Regina City Police. He has known Mr. Delaittre for fifteen years and has observed him as teenager and young adult. He speaks highly of Mr. Delaittre and has observed him to be polite and respectful towards others. He has undertaken job responsibilities that Mr. Coleman does not believe other young people would or could be in position to handle. Mr. Delaittre's parents were present in Court and have continued their support of him. While the accused had not prior to the entry of the guilty plea, directly expressed remorse to the family members of Mr. Ward, in Court he did express such remorse and from all accounts at the accident scene, expressed immediate remorse for his actions. THE LAW In determining what is fit and appropriate sentence in this matter, am required to consider and give effect to the principles set forth in the following statutory provisions contained in the Criminal Code of Canada: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal 742.1 Where person is convicted of an offence, except an offence that is punishable by minimum term of imprisonment, and the court: (a) imposes sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of conditional sentence order made under section 742.3. Gerein J. in R. v. Melnyk (unreported July 4, 1997), commencing at p. analyzes the procedure which sentencing judge is to adopt in giving effect to these statutory sentencing provisions. He observes: From my reading of the legislation and the judicial commentary, conclude that court should proceed in this way. Initially there must be determination as to what is fit sentence taking into consideration what is set forth in the legislation, including ss. 718.2(d) and (e) which mandate somewhat new emphasis in the process. At the same time reference must be had to the jurisprudence contained in earlier cases, particularly with view to ensuring degree of parity as amongst like situations. If it happens that the appropriate sentence is one of more than two years imprisonment, then that sentence is imposed and that is the end of the matter. However, if the appropriate sentence is one of imprisonment for less than two years and such is not minimum sentence, then the court must go on to decide whether the sentence should be served in the community. In deciding this question, the court must first make determination about whether the accused presents danger to the community. If not, the court must then decide whether serving the sentence in the community will be consistent with ss. 718 to 718.2. To this extent consideration must be given to what is set forth in these sections and on that basis decision made as to whether the sentence will be served in the community. find support for the described process in R. v. Pierce (1997), 32 O.R. (3d) 321 (Ont. C.A.); R. v. Wismayer (unreported February 28, 1997, Ont. C.A.); R. v. Pederson (unreported May 9, 1997, Sask. C.A.); R. v. D.W.C. (unreported May 13, 1997, Sask. C.A.); R. v. Faubert (unreported May 14, 1997, Sask. C.A.); and R. v. Horvath (unreported June 16, 1997, Sask. C.A.). In this jurisdiction our Courts have canvassed appropriate sentences for the spectrum of driving offenses resulting in death or bodily harm. This spectrum includes the offences of criminal negligence in the operation of motor vehicle causing death or bodily harm, impaired driving causing death or bodily harm and dangerous driving causing death or bodily harm. In this instance, the offence is that of dangerous driving causing death. The Saskatchewan Court of Appeal to this time has not considered the question of whether it is appropriate that sentence of imprisonment be served in the community where the offence before the court is that of dangerous driving causing death. Prior to the implementation of the conditional sentence provisions contained in s. 742.1, the Saskatchewan Court of Appeal has imposed sentences of incarceration of different lengths in relation to various driving offences resulting in death. summary of some of these cases is as follows: In R. v. Hagen (unreported January 9, 1987) where the accused, with no prior record, was driving approximately 50 miles per hour on city street and while attempting to get around line of traffic, stopped for traffic light and struck and killed boy on bicycle. He then fled the scene of the crime. sentence of two years less day was upheld by the Court of Appeal. In R. v. Reynolds (unreported September 9, 1988) the sentence was 15 months where the accused had been drinking alcohol and fell asleep at the wheel. The vehicle rolled over causing the death of his passenger. In R. v. Awasis (1990), 1989 CanLII 4761 (SK CA), 78 Sask. R. 156 the accused pleaded guilty to two counts of dangerous driving causing death. The accused had been involved in night of drinking and partying without sleep. He had only one eye and drove in an erratic manner on the wrong side of the road killing two people. He had series of prior convictions including three impaired driving offenses. The Court of Appeal sentenced him to term of three years. In R. v. Osiowy (unreported October 8, 1993) the accused attempted to pass vehicles on the right hand shoulder of main highway at peak traffic conditions at high speeds. He struck and killed the victim who was riding his bicycle on the right shoulder. The accused left the scene, abandoned his vehicle and attempted to avoid detection by removing his license plates. He was driving while his license was suspended and had been consuming alcohol. He had substantial criminal record. He was sentenced to four and one-half years. R. v. Arcand unreported September 14, 1995) is case where the accused had consumed alcohol and entered ditch on the opposite side of the highway where he continued to drive until he ran into deep gully. One passenger was killed and all of the others injured. The accused was aware he was driving vehicle which was mechanically unsound and took the risk. He was sentenced to two years less day. It is significant to note that in almost all of these instances, the accused was consuming alcohol and that consumption of alcohol appeared to be either the major cause of the fatality or contributing factor. thorough canvass of these decisions and other sentencing precedents involving fatalities resulting from driving offenses is set forth in R. v. McKay unreported June 27, 1997). In v. McKay, Scheibel J., detailed series of relevant decisions in canvassing the question of what an appropriate sentence would be for Mr. McKay following his conviction for dangerous driving causing death. Mr. McKay was 20 years old at the time of the accident, and had committed five vehicle offences prior to the accident, however, he did not have prior criminal record. Scheibel J. described his driving; ""although criminal, was not extremely erratic or bizarre. He was not driving at an excessively high speed, had not consumed any alcohol or drugs and he did not intend any harm. He stopped at the scene and attempted to render assistance. He is remorseful for what occurred."" Following detailed analysis of the existing jurisprudence, and the sentencing principles set forth in ss. 718, 718.1, 718.2 and 742.1, Scheibel J. concluded that an appropriate sentence was term of imprisonment for eighteen months, to be served in the community pursuant to s. 742.1. The first six months of the sentence were subject to intensive conditions, to be served on the electronic monitoring program, and additionally the accused was required to perform 240 hours of community service work and prohibited from operating motor vehicle for three years. In R. v. Melnyk (supra) Gerein J. following detailed review of sentencing principles, sentenced the accused to term of 15 months to be served in the community, the first six months thereof to be served on the electronic monitoring program with intensive conditions. In addition the accused was placed on probation for term of 18 months, required to perform 200 hours of community service and prohibited from operating motor vehicle for three years. The accused was 21 years of age at the time of the offence and had consumed moderate amount of alcohol. He and two passengers were involved in single vehicle accident when he failed to navigate portion of the changing roadway, struck sign and entered the ditch where the vehicle flipped over. One of the passengers died. There was some evidence of speed over the posted speed limit, however not to excess. The Crown did not appeal from either of the sentences in R. v. McKay or R. v. Melnyk. The Saskatchewan Court of Appeal has consistently endorsed sentences of incarceration for the offence of impaired driving causing death. Towards that end, they haverejected alternatives to incarceration as not adequatelyreflecting the gravity of the offence and as not serving todeter either the offender or the general public fromcommitting like offences. One such case is R. v. Schneider (1994), 1994 CanLII 4670 (SK CA), 123 Sask. R. 162 (C.A.), decision prior to the conditional sentence amendment to the Criminal Code. In that case, the Court of Appeal upheld the 15 month sentence of imprisonment imposed upon an accused convicted of impaired driving causing death. The accused argued on appeal that she should have had the benefit of electronic monitoring as part of the sentence, as opposed to incarceration due to her lack of past criminal record and the low likelihood of re-offending. The Court, however held that where death had occurred, electronic monitoring would not maintain public confidence in the administration of justice. Recently, in R. v. Keller, the Court of Appeal dismissed an appeal by the accused from refusal by the learned trial judge to sentence the accused pursuant to s. 742.1 of the Criminal Code allowing her to serve the sentence in the community. The learned trial judge had sentenced the accused to term of imprisonment of two years less day. The accused had consumed significant quantity of alcohol and was in no shape to drive vehicle. With passengers in her vehicle, she accelerated constantly swerving in and out of traffic, and ran traffic light as she sped down Broad Street. She was travelling at 100 to 120 kilometers per hour, lost control of her vehicle, mounted concrete barrier, and skidded along the barrier. The deceased was thrown from the vehicle during this process. She had blood alcohol level of .180. At p. of the unreported decision, the court observes: In sentencing for crimes of the nature of those committed in this case, the public interest weighs heavily in the balance, point this and other courts have often been at pains to make, stressing the need to denounce strongly conduct of this character, to try diligently to deter it, and to strive continually to overcome the attitudes that spawn it. And so this court has said many times, having regard for these objectives in particular, that crimes of this nature will be met with firm sentencing hand in the interests of the safety of the public. In addition to R. v. Schneider, see, for example, R. v. Powell (1990), 1989 CanLII 5069 (SK CA), 81 Sask. R. 301; R. v. Pearman (1991), 1990 CanLII 7638 (SK CA), 89 Sask. R. 156; R. v. Paul (1991), Sask. R. 199; and R. v. Kahpeepatow (1992), 1991 CanLII 7956 (SK CA), 97 Sask. R. 90. The sentence appeal was dismissed. ANALYSIS As result of the actions of the accused, Vernon Keith Ward is deceased. The offence must be considered consequently as being serious. Indeed, the sentence imposed must reflect the seriousness and the gravity of the offence. Family members of the deceased have provided victim impact statements which express their personal sorrow. They keenly feel the loss of loved one and are troubled by the senseless death of Mr. Ward. The events of July 21, 1996 have been tragic for everyone concerned. In considering sentence, must be mindful of all of the circumstances. It is germane to consider the driving of the accused and do not believe it can be fairly said that he drove in bizarre fashion over protracted period of time. His actions were clearly inappropriate and imprudent and his failure to drive in normal fashion resulted in tragic consequences. For whatever reason, he failed to monitor and perceive the situation in front of him and drove at speed in excess of that permitted by law. He along with the occupants of the Audi had chosen to accelerate from stop lights and change lanes somewhat randomly. Neither vehicle was driven prudently. However, alcohol was not factor in this accident. That in my view is significant feature in this factual backdrop. Had the accused been paying attention to his surroundings the accident would not have occurred. It ishis lack of attention together with excessive speed thatresulted in the accident. Immediately following the accident, the accusedstopped to render what assistance he could to Mr. Ward andthis should be contrasted with the driver of the Audi who leftthe scene of the accident immediately. I am concerned in this matter with the principles ofgeneral deterrence, denunciation, protection of the public,and maintenance of public confidence in the administration ofjustice. I must also be concerned with the principles ofspecific deterrence and rehabilitation of the accused. A troubling factor in this instance arises from thesubsequent convictions of the accused for two speedingoffences. It is difficult to understand how the trauma of the accident could not have altered the accused's driving habits to prevent speeding infractions. These convictions must beviewed as an aggravating circumstance requiring some emphasison specific deterrence. am of the view that the range of sentencing sought by the Crown is higher than called for under these particular circumstances. am of the further view that conditional sentence would not be appropriate in this matter. It is important that members of the public be constantly aware that motor vehicles have the potential to be inherently dangerous if not operated with care and where misuse of motor vehicle occurs the sentences must serve as meaningful reminder that consequences will result. Upon considering all of the objectives and principles of sentencing, along with the particular circumstances of this offence, including its gravity, and the degree of responsibility of the accused, find that there must be some period of imprisonment. am of the view that an appropriate sentence is one which may be served intermittently. believe that this will effectively address the principles of general deterrence, specific deterrence, denunciation, and rehabilitation. Therefore, in respect to the offence of dangerousdriving causing death, I sentence the accused to be imprisonedfor 90 days in the Provincial Correctional Centre at Regina,Saskatchewan, said sentence to be served intermittently. While doing so, the accused shall comply with the followingconditions of probation: (1) He shall present himself to the keeper of the said Correctional Centre not later than 7:30 p.m. on Friday, March 20, 1998, and each succeeding Friday until the sentence is served and remain for release on the Monday next following each Friday at time not later than 7:00 a.m. (2) He shall keep the peace and be of good behavior. (3) He shall appear before the court whenever required to do so. (4) He shall refrain absolutely from the consumption ofalcohol and non-prescription drugs for 24 hoursprior to his attendance on each Friday at theCorrectional Centre. In addition, I direct that the accused enter into aprobation order which shall commence after he has served hissentence of imprisonment for 90 days and which shall be for aterm of 18 months. The conditions of the order shall be thefollowing:(1) keep the peace and be of good behavior;(2) report to this court if and when required to do so;(3) report to the Chief Probation Officer for theProvince of Saskatchewan, or his designate, withineight weeks of this date and thereafter as requiredby him or his designate;(4) that you perform 200 hours of community servicework at the direction and to the satisfaction of theChief Probation Office for the Province ofSaskatchewanor his designate;(5) that you shall register in a program of eduction ofdefensive driving under the direction of and to thesatisfaction of the Chief Probation Officer or hisdesignate. In addition you are ordered to pay a surcharge of$250.00 and in default you will be incarcerated for a periodof ten days. The time for payment is extended until May 31, 1998. Pursuant to s. 259(2)(b) of the Criminal Code ofCanada, you are prohibited from operating a motor vehicle onany street, road, highway or other public place for a periodof three years from this date. G.N. Allbright, Q.B.J.","The accused who had plead guilty to a charge of dangerous driving causing death sought a conditional sentence to be served in the community. Various witnesses gave conflicting accounts of the driving leading up to the accident and the accident itself. Two vehicles driving at a high rate of speed, one in the left lane and one in the right hand curb lane passed vehicles stopped at a cross walk, the later striking and killing a pedestrian. The vehicles had been observed pulling around other vehicles whenever possible and 'jousting' with each other. HELD: A sentence of 90 days to be served intermittently in a provincial correctional centre was imposed. Conditions of probation included restraint from the consumption of alcohol and non-prescription drugs for 24 hours prior to attendance at the centre. An 18 month probation order required him to perform 200 hours of community service and to enroll in a defensive driving course. He was prohibited from operating a motor vehicle for three years and was to pay a surcharge of $250.  1)The Saskatchewan Court of Appeal had not to date considered the question of whether it was appropriate that a sentence of imprisonment be served in the community where the offence is that of dangerous driving causing death. It has consistently endorsed sentences of incarceration for the offence of impaired driving causing death. Alternatives to incarceration were rejected as not adequately reflecting the gravity of the offence and as not serving to deter either the offender or the general public from committing like offences. 2)The driver's lack of attention together with excessive speed caused the accident. Alcohol was not involved. He stopped to render assistance whereas the driver of the second car which had been racing with him left the scene of the accident immediately. Principles of general and specific deterrence, rehabilitation, denunciation, protection of the public and maintenance of public confidence in the administration of justice were to be considered. 3)Specific deterence had to be emphasized in view of the driver's subsequent convictions for two speeding offences. The accused had six speeding convictions. He had a minor youth record involving mischief.",9_1998canlii13836.txt
95,"S.C.A. No. 02318 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Hallett, Matthews and Freeman, JJ.A. BETWEEN: ATLAS SUPPLY COMPANY OF CANADA LIMITED, body corporate and YARMOUTH EQUIPMENT LIMITED, and JOHN M. MURPHY Respondent Charles Peter McLellan Bernard Francis Miller for the appellant D.A. Caldwell, Q.C. Dennis James for the respondent Appeal Heard: January 14, 1991 Judgment Delivered: April 23, 1991 THE COURT: Appeal dismissed per reasons for judgment of Matthews, J.A.; Freeman, J.A. concurring; Hallett, J.A. dissenting by separate reasons MATTHEWS, J.A.: The principal issue before us is whether an exclusionary clause in written agreement between the parties precludes giving effect to acts and statements made by the agents of the appellant to the respondent Murphy. The appellant is a wholly owned subsidiary of Imperial Oil involved in the distribution and sale of automotive parts and related products. Prior to 1985 that activity, exclusively wholesale, was achieved through nation wide network of outlets leased from the appellant and operated by agents on commission basis. Those agents were not required to make personal investment nor were they financially responsible for the inventory. There were nine such agencies in Atlantic Canada. The appellant became concerned respecting its position in the market place. For example, the total revenue from sales for the Atlas agency at Yarmouth, Nova Scotia, had declined from $700‑$750,000.00 in the early 1980's to $450‑$500,000.00 during 1983‑85. Franchises such as Canadian Tire, together with specialty operations dealing directly with the public, were adversely affecting the appellant's business. In or about 1985‑6 the appellant carried out an intensive and extensive assessment of its total operations with view to changing its manner of conducting business by way of an agency to offering franchise to business people. Atlas had no previous experience in retailing. However, it is obvious, Imperial Oil had. Atlas took about year to prepare franchise program to replace the existing agencies. The appellant would enter the retail market and challenge its competitors. In essence this new system would require that local business people make personal investment in the franchise, provide among other things, premises, chattels, personnel and vehicles and assume control and financial responsibility for the inventory. John MacDougall, the appellant's regional manager for Atlantic Canada, had the duty to obtain franchisee suitable to the appellant for Western Nova Scotia, to replace its Yarmouth agency. As the trial judge, the Honourable Mr. Justice W.J. Grant, in his decision rendered April 4, 1990 said: ""The recent experience Atlas had. with Yarmouth was anything but encouraging. It was declining operating as an independent agency. It reached the point where it was no longer independent but had to be combined with Metro. When it became satellite of the Dartmouth agency it declined even more."" MacDougall prepared promotional brochure incorporating some of the material he received from his head office. At trial, MacDougall admitted that the purpose of the brochure was to inform, induce and entice prospective franchisees. Before advertising for franchisees, MacDougall sent the brochure to the appellant's national sales manager R.M. Ritchie, who was specifically responsible for the franchise program. In memo dated October 23, 1985, Ritchie informed MacDougall that: ""We have taken the liberty of producing pro forma financial outlook for the above (Yarmouth) agency as franchise operation. The sales mix is based on the data obtained through the Inventory Turns Report. Based on the typical type of operation, as we know it today, the outlook indicates that we do not have viable case for development."" After detailed analysis, the net earnings after finance costs as disclosed in the pro forma financial outlook for wholesale and retail sales totalled $11,000.00. However, MacDougall prepared his own projections. These were in several important aspects more enthusiastic than those‑ of his superior, Ritchie. His material was in much less detailed form than Ritchie's and, importantly, showed the combined net earnings for wholesale and retail sales at $33,000.00. The respondent, Yarmouth Equipment, expressed interest in the Yarmouth franchise. It had only been in operation for short period, having been incorporated in late 1985. It was hardware venture, selling nuts and bolts in bulk, hydraulic hoses, rubber products, industrial vee belts and line of fire extinguishers. Its targeted market included fishing plants, service stations, contractors and auto body shops. Its principal officer, the respondent Murphy, was business man, primarily involved in real estate and rental properties. He had high school equivalency; had been partner in Shell Service Station and part owner of used car business; was president of construction company, company involved in building and selling fishing boats, and company in the wholesale and building supply business. He had little prior experience in the automotive parts industry or retail sales. In each of his enterprises, Murphy had knowledgeable partners or employees who carried out the majority of the work and management. All of this was known to the appellant. MacDougall did not give Murphy the Ritchie calculations, nor did he inform Murphy until the discovery stage of this litigation that, in the opinion of Ritchie, the Yarmouth operation, as discussed with Murphy, was not viable. The following exchange took place during MacDougall's cross‑examination: ""Q. Yeah, and in Atlantic Canada the plan was virtually to convert all nine agencies to franchise agencies? A. As recall that is correct. Q. Yeah, and the purpose of the promotional literature that was put together was to inform prospective franchisees was it? Q. And ultimately to induce them to come into the franchise program if they were otherwise suitable? Q. Right. And so the object of the promotional literature was that, to entice prospective franchise operators, correct? A. Yes. That's correct."" Ritchie subsequently, on January 15, 1986, adjusted some of the MacDougall figures. The result was somewhat brighter than his October 23, 1985 figures, but they were projected over three year period. Ritchie sent that information to MacDougall. Again MacDougall did not give this material to Murphy. The appellant argues that MacDougall's adjusted projections only showed ""marginally greater potential"" than Ritchie's. Twenty‑two thousand dollars may not be great difference if few hundred thousand dollars were estimated as the combined earnings, but here that is not the case. The point is, that MacDougall was in possession of figures prepared by Ritchie and his staff. Ritchie was the national sales manager specifically responsible for the franchise program. Ritchie's projections were such that Atlas did ""not have viable case for development"" in Yarmouth. MacDougall's projections were prepared to induce franchisee to enter into the agreement. They did not display Ritchie's gloomy forecast. The respondents' argument is that in order to induce Murphy to enter into the franchise agreement MacDougall gave his projections to Murphy and refrained from informing Murphy that other projections had been prepared by his head office which led Ritchie to conclude that the proposed Yarmouth franchise was not viable. The trial judge remarked: ""MacDougall said he knew that Murphy did not have the resources to check out the accuracy of the Atlas projections. He said he knew Murphy was relying on them. He said he told Murphy that they 'put the resources of Atlas into the program'. He also knew Murphy had no experience in the sale of retail auto parts. He said the figures for specialty sales were 'guess work', put up arbitrarily."" And further: ""Murphy said he relied on the Atlas projections. He had no means to check them out nor did he have any reason to doubt the figures as he knew Atlas was owned by Esso. He said he was assured by MacDougall that Atlas had done its homework."" MacDougall did not give the ""Atlas projections"" or its ""homework"" to Murphy. He gave Murphy instead his more favourable projections. The following is an exchange from MacDougall's direct examination: ""Q. Now what comment could you make as to the, what this showed you when you prepared these projections as to the viability of the, of the operation operating as you've shown here? A. Well it was marginal, $33,000 for the investment plus the effort and responsibility, it was marginal type operation."" When MacDougall showed Murphy his projections, Murphy immediately raised some concerns as to the retail sales figures. Ultimately, it was this aspect of the business which led to the failure of both the Yarmouth and Charlottetown franchises. The following is from Murphy's direct examination: ""Q. Yeah, let's go to those projections and now think they're found at page 11 of tab one My Lord. What discussion was there about the projections then Mr. Murphy? A. We asked Mr. MacDougall how they arrived at that figure of $93,000 because there was no retail sales of Atlas never before in Yarmouth and we knew that, and Mr. MacDougall quickly went to this population. Q. Yes? That's page 16 My Lord. That's the one headed Franchise Program Yarmouth, Bridgewater, Kentville, ...population. A. That's the one yes. And he assured us that these figures and the projections were all done scientifically through believe himself, or head office at Toronto and that it was based on figures that they had received from competitors of theirs that 20% of the wholesale business should be retail and from there relied, we relied on his projections, Atlas's projections. Q. Did you have any way or any means yourself to check or confirm or not, the projections that were made? A. had no reason to doubt these figures because know Atlas is wholly owned subsidiary of Esso and Mr. MacDougall was representing Atlas so at that time when they tell me they've done their homework, was assured and had no reason to further check."" The figures and projections were not those done scientifically and as result of investigation and research by Atlas's head office. They were MacDougall's but held out to be from head office to persuade Murphy to rely upon them. Some of the MacDougall projections, particularly respecting retail sales, were guess work; they were based upon assumptions which, the evidence discloses, could not be justified. Those assumptions included: ""(a) the potential of the retail market; (b) the profit potential of the franchise; (c) the target for the specialty sales; (d) staff of two, rather than three; (e) the franchisee was required to devote full time to the business without pay."" Murphy was not informed that the MacDougall projections were based on two employees, rather than three as determined by Ritchie; or that both the projections of MacDougall and Ritchie were based upon franchisee spending full time in the business without remuneration. MacDougall in cross‑examination, when commenting upon the projections of the total earnings after finance costs at $11,000.00 said: ""A. Well, that's certainly not viable, would think not. Q. No that's not viable at all is it, especially if you are, assuming as you say you did, that the owner is going to donate his labour free, then it's not viable at all is it? A. That's absolutely correct, yes. Q. No, no, and note that Mr. Ritchie has inserted here manpower from two, vehicles two, and there's no place there for the assumption that the owner donates his time for nothing is there? [Actually Ritchie had altered MacDougall's required manpower from two to three] Q. In fact, in any of these documents that we see that were provided by Atlas, we do not see the state of assumption that the owner is expected to donate his time for nothing, do we? A. That is correct. Q. Nor was that discussed with, with Mr. Murphy, that he was expected to donate his time for nothing, correct? A. Mr. Murphy was aware that the franchise program was designed for the franchisee to assume full time responsibility at the franchise location. Q. Oh no doubt about that, since he's the owner, but there's great difference between him being one of the employees and him being the owner isn't there? A. Yes. Q. Yeah, because you, you knew, believe you knew in your own mind that it took at least three people to run the franchise operation in Yarmouth, not two. But you say your assumption was he was expected to be the third of them? A. believe that he was aware of that as well. Q. Oh, did you tell him that? A. think we discussed it yes. Q. In your discovery however, you haven't mentioned anything about that discussion have you, even after asked you to relate all of your discussions with Mr. Murphy. You don't recall ever having said that before do you? A. guess this is the first time. Q. Yeah, yeah, and in any event, it's, it's very important assumption to make in these kind of projections that the owner is expected to devote his time as an employee to the company on full time basis. That's very important assumption isn't it? A. Yes it certainly is. Q. And it makes great deal of difference whether the net result of the operations makes the thing viable, true? A. Yes. Q. For example, on net, net earnings after finance costs of $11,000 there simply is no room for the employer to get either paid for his work or to get an adequate return on his investment of $106,000, is there? A. cannot believe because it's such an important assumption that we would not have discussed it, you know, at sometime. Q. But you just don't recall having discussed it though do you? A. No not at this stage; not specifically."" agree that is such an important assumption that it should have been discussed with Murphy. It was not. The trial judge said: ""It would require full time franchisee who, from MacDougall's financial assessment, would be required to work without pay. MacDougall knew Murphy was not prepared to spend much time at the business because he had other irons in the fire including real estate, manufacturing and sales operations."" Murphy said that he informed MacDougall ""immediately"", that is, in the early discussions that he was involved in other enterprises and he could not devote full time to the franchise. There can be no doubt MacDougall and Ritchie knew that to be the fact. Atlas was in possession of the figures produced from all of its resources over substantial period of time. That information was not made available to Murphy. Indeed it was withheld from him. He was led to believe that the MacDougall figures were those of Atlas's head office. As result, Murphy did not have equal opportunity with Atlas to properly assess the project. MacDougall meanwhile was inducing Murphy to enter into the agreement, holding out that the appellant had scientifically done its homework. As the trial judge concluded, MacDougall not only expected and intended Murphy to rely upon MacDougall's financial forecast, he knew Murphy was relying upon it. He also concluded that Murphy had neither the resources nor ability to check the financial forecast given to him and that indeed MacDougall knew that Murphy did not do so. All of this led the trial judge to the reasonable conclusion that: ""It seemed to me that if MacDougall had been open with Murphy and told him what Ritchie thought and what Ritchie expected, the deal would never have been completed. As well had MacDougall inquired into the viability of Yarmouth Equipment and passed that information on to Ritchie probably the deal would have been squelched. At no time was MacDougall up front with the defendant Murphy by telling him that the Atlas experience in latter years with Yarmouth had been bad or that he was required to marry up the franchise with an otherwise successful business."" That conclusion, based as it was upon evidence adduced before the trial judge, should not be disturbed unless it is demonstrated to be clearly wrong. In the circumstances, as will later discuss, in my opinion, these parties were not in an equal bargaining position. It is significant that Ritchie did not testify. In late January, 1986, MacDougall and Ritchie met with Murphy in Yarmouth. They visited the proposed site for the franchise and found it adequate. The trial judge found that: ""There were discussions of the franchise and its viability. Ritchie raised no concerns of the projections or the viability of the operation."" This despite Ritchie's prior memo to MacDougall concluding that the proposal, without alternatives, was not viable. These alternatives, as set out in Ritchie's memo of October 23, 1985, were: ""1. Marriage with an existing jobber business in the Digby, Yarmouth, Liverpool, Shelburne, Bridgewater areas. 2. Possibility of development of the Cash'n Carry business to $100,000.00 rather than the $60,000.00 indicated on the outlook. The additional margin generated from retail would present viable case. 3. Operation of the franchise as wagon jobber, which would eliminate sales vehicle and driver and make the offer viable one."" MacDougall neither informed Murphy of the existence of the memo nor of any of its contents. On February 28, 1986, the respondent Yarmouth Equipment, entered into franchise agreement with the appellant. The respondent Murphy signed the agreement on behalf of Yarmouth Equipment and as guarantor of the obligations of Yarmouth Equipment. The trial judge remarked: ""The franchisee operation transferred the financial responsibilities to the franchisee who purchased direct from Atlas. It was responsible to pay Atlas. It dealt in cash with the public and was responsible for any credit extended. It also penetrated the retail market for the first time. It was certainly in the interests of Atlas to transfer these responsibilities to the franchisees. The Atlas agency concept may not have been exactly sinking ship but it was certainly leaking, particularly the Yarmouth agency."" And also: ""Atlas of course, wanted successful franchisee. If it was the sole operation then of course it would depend on its own merits. These merits apparently were not there, at least Mr. Ritchie concluded that Yarmouth was not viable and he so instructed MacDougall."" MacDougall and Ritchie knew that Murphy was engaged in other businesses and could not spend full time with the franchise. Also the appellant knew after the franchise began that Murphy was not spending full time there and also knew that in June, 1986 Murphy moved to Ottawa due to the special education requirements of two of his children. However, the appellant did not inform Murphy that the financial assumptions in the material given to Murphy were based upon the fact that Murphy was to spend full time in the franchise without pay. The trial judge concluded that: ""During March, April, May and early June of 1986 Murphy spent 50‑60% of his time at the franchise, which was more than he had anticipated. Murphy said he discussed his Ottawa move with MacDougall in mid‑May. He told him that the former employees of Atlas could handle the operation. He said there was no disagreement from MacDougall. On June 6th he and his wife and family moved to Ottawa."" It certainly is reasonable to assume that had Murphy been informed of the appellant's adjustment in the figures, based as they were on ill founded assumptions, and the conclusions reached, then as the trial judge said ""the deal would never have been completed""; it ""would have been squelched"". In October and November, 1986, Murphy's new accountant expressed great concern about the profitability of both Yarmouth Equipment and the franchise. He later prepared projections which demonstrated that both businesses were losing propositions. Unfortunately Ritchie's dire predictions came true and the Yarmouth franchise suffered from an ""horrendous failure"" in its retail sales. On February 12, 1987, the appellant delivered notice of default to the respondents, thus bringing the franchise to an end. Indeed, by 1987, the only two Atlas retail franchises in the Atlantic provinces, Yarmouth and Charlottetown, were not in business. The appellant (plaintiff) had sued for damages claiming that the respondent (defendant) Yarmouth Equipment had defaulted in its obligations to pay to the appellant certain amounts due under the terms of the franchise agreement. Those obligations were guaranteed by the respondent (defendant) Murphy. The respondents counterclaimed for damages. The trial judge found that Yarmouth Equipment was ""doomed to failure regardless of Atlas"". Its inventory and other assets were sold and the proceeds of that liquidation sale used to pay down the bank indebtedness. The appellant was adjudged to recover judgment against the respondent, Yarmouth Equipment, for $206,344.00 being the sum agreed upon by counsel. There has been no appeal from that ruling. The trial judge made certain findings of fact: ""1. The projections of Ritchie showed that the franchise was not viable on its own merits. 2. MacDougall held out to Murphy through the material that the project was viable on its own merits. He held out that the profits were reasonably achievable. 3. MacDougall had an honest belief that all the material he got from head office was factual and accurate. However, it was not all either factual or accurate. 4. Ritchie found the forecasts showed the retail figures too high, the expenses too low and the projected profit too high. 5. The projections of MacDougall were inaccurate as to expenses and grossly inaccurate as to retail sales and profits. 6. MacDougall knew that Murphy was relying on the financial forecasts he had given him. He expected Murphy to rely on them and intended Murphy to do so. 7. MacDougall knew that Murphy did not have the resources and other ability to check out the Atlas financial forecasts and that he did not do so. 8. MacDougall knew that Murphy had questioned his retail sales forecast but was reassured by MacDougall telling him the resources of Atlas had gone into the forecasts. 9. It was the financial forecast which induced Murphy to enter into the contract and MacDougall knew that fact. The purpose of the financial forecast was to induce purchasers to enter into the contracts. 10. MacDougall knew and Ritchie knew that Murphy was not going to operate the franchise fulltime himself but would rely on the former Atlas employees. 11. Murphy went to Ottawa with the knowledge of Atlas and with no objection from Atlas.” After review of some of the relevant law the trial judge said: ""FINDING: find the projections of MacDougall for Atlas relating to retail sales, expenses and profit were warranty. find they were meant to be relied upon by Murphy as an inducement to contract. find they were relied upon by Murphy and induced him to contract. Atlas was in position to have that information, purported to have that information and gave that information as being accurate. find the warranty was breached."" The franchise agreement contained an exclusionary clause. The trial judge held that the clause did not foreclose the respondents' right to rely upon the breach of warranty. The trial judge weighed and evaluated all of the evidence. have carried out the duty of re‑examining the evidence as expressed in Stein v. The Ship 'Kathy K', 1975 CanLII 146 (SCC), [1976] S.C.R. 802. In my opinion, the appellant has not established that the trial judge made some palpable and overriding error which affected his assessment of the facts. It is evident from the decision that the trial judge must have concluded that Murphy was credible witness. have set out the facts, comments thereon and the trial judge's findings in some detail as they pertain to the representations made by the appellant's agents to the respondent Murphy. The effect of these representations upon the exclusionary clause in the agreement must now be considered. The exclusionary clause, sometimes referred to as disclaimer and the other relevant clauses in the agreement are: ""2.06 Entire Agreement This Agreement, any documents incorporated by reference herein and the Schedules hereto constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions with respect to the subject matter hereof whether oral or written. Except as provided herein, there are no conditions, representations, warranties, undertakings, inducements, promises or agreements, whether direct, indirect, collateral, express or implied made by ATLAS to the Franchisee. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the Guarantor and authorized signing officers of ATLAS and the Franchisee. Failure to deliver or accept delivery of Automotive Products which is excused by or results from the operation of any provision of this Agreement shall not extend the term of this Agreement."" ""4.02 Other Business The Franchisee shall not, directly or indirectly, carry on, be engaged in, be concerned with or interested in any business (other than the Franchised Business) that is carried on or conducted from the premises or adjacent thereto, whether or not related in any manner to the Franchised Business, hereunder, except with the express written permission of ATLAS."" ""6.01 Operation In order to maintain the high quality and uniform standards, methods, procedures and specifications of the System and to promote and protect the goodwill associated therewith, the Franchisee shall, except where otherwise agreed to in writing by ATLAS:... (o) subject to Section 4.02, cause the Guarantor to provide direct supervision and devote full time and attention to the Franchised Business in order to ensure the proper, efficient and effective operation thereof, and maintain at all times sufficient number of trained personnel to service all Customers of the Franchised Business;"" ""18.10 Investigation The Franchisee acknowledges that it has conducted an independent investigation of the Franchised Business and ATLAS and recognizes that the business venture contemplated by this Agreement involves business risks and that its success will be largely dependent upon the business ability of the Franchisee. ATLAS expressly disclaims the making of and the Franchisee acknowledges that it has not received any warranty or guarantee, express or implied, as to the potential volume, profits or success of the Franchised Business."" ""18.11 Review of Agreement The Franchisee acknowledges that it has received, has had ample time to read and has read this Agreement. THE FRANCHISEE FURTHER ACKNOWLEDGES THAT IT HAS HAD AN ADEQUATE OPPORTUNITY TO BE ADVISED BY ADVISORS OF ITS OWN CHOOSING REGARDING ALL PERTINENT ASPECTS OF THE FRANCHISED BUSINESS, ATLAS AND THIS AGREEMENT."" In respect to clauses 4.02 and 6.01, the appellant knew from the time of the initial interview with Murphy that Murphy had no attention of spending his full time in respect to the franchise; that he did not do so; that Murphy had other businesses which required his time and attention; and indeed one of Ritchie's alternate proposals was that there should be ""Marriage with an existing jobber business"". The trial judge remarked: ""MacDougall and Ritchie on behalf of Atlas both knew that Murphy intended only to work on the franchise part‑time. From the tenor of Tab this franchise would only be granted in violation of this Article."" The appellant now wishes to seize upon the existence of Yarmouth Equipment to demonstrate that Ritchie's concerns were alleviated because of Murphy's involvement with that company. In so doing it follows that the appellant is forced into the position that it had no intention of applying the provisions of clauses 4.02 and 6.01. With hindsight, the appellant cannot contend that Ritchie's forecast was relieved because of the existence of Yarmouth Equipment. That company could not fit within the category of ""an existing jobber business"", as intended in Ritchie's memo of October 23, 1985. Yarmouth Equipment was new and different type of venture for Murphy, having been incorporated in late 1985. No one on behalf of Atlas suggested to Murphy that the viability of the franchise would depend upon the success of Yarmouth Equipment. The trial judge said: ""Apparently MacDougall did not inquire in detail into the health of Yarmouth Equipment, otherwise he would have learned that it had just started and was having very rocky beginning"". In respect to clause 18.10 the appellant knew full well that Murphy had not conducted any such independent investigation; that he did not have the resources and other ability to do so or to check the Atlas financial forecasts; that MacDougall and Ritchie intended that Murphy be induced to enter into the agreement by having him rely upon the projections produced by MacDougall. Not only did the appellant know that Murphy had not conducted any such independent investigation, but by MacDougall's conduct, Murphy was encouraged not to do so. That is, the appellant participated in breach of the terms of the agreement which it prepared. The trial judge held respecting clause 18.10: ""MacDougall, being Atlas, knew Murphy was not doing any independent investigation as he did not have the ability or means to do so. MacDougall gave the material on volume and profits to Murphy. This clause is totally in. conflict with the facts of what actually happened. Atlas cannot have MacDougall on its behalf do these acts, acquire this knowledge and make these inducements and also have their drafters deny that which in fact happened."" He had earlier commented: ""MacDougall said he knew that Murphy did not have the resources to check out the accuracy of the Atlas projections. He said he knew Murphy was relying on them. He said he told Murphy that they 'put the resources of Atlas into the program'. He also knew Murphy had no experience in the sale of retail auto parts. He said the figures for specialty sales were 'guess work', put up arbitrarily."" And further: ""Murphy said he relied on the Atlas projections. He had no means to check them out nor did he have any reason to doubt the figures as he knew Atlas was owned by Esso. He said he was assured by MacDougall that Atlas had done its homework."" must now consider clause 2.06 and the applicable law. have reviewed the case law cited by counsel, other cases and articles. In particular both counsel rely upon the following cases: 1. Beaufort Realties, 1980 CanLII 47 (SCC), [1980] S.C.R. 718; 2. Esso Petroleum, [1976] All E.R. 5; 3. Harry v. Kreutziger (1978), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231; 4. Heilbut, Symons, [1913] A.C. 30; 5. Hunter Engineering, 1989 CanLII 129 (SCC), [1989] S.C.R. 426; 6. Lister v. Dunlop (1978), 1978 CanLII 2165 (ON SC), 85 D.L.R. (3d) 321; 7. Lloyd's Bank v. Bundy, [1974] All E.R. 757; 8. Midland D. Central Trust (1985), 68 N.S.R. (2d) 103; 9. Pao On and Others, [1979] All E.R. 65; 10. Photo Production, [1980] All E.R. 556; 11. Pizza Hut v. P.M. Foods (1985), 1985 CanLII 1301 (AB QB), 61 A.R. 340; 12. Sodd Corp. v. Tessis (1977), 1977 CanLII 1415 (ON CA), 79 D.L.R. (3d) 632; 13. Kathy K., 1975 CanLII 146 (SCC), [1976] S.C.R. 802; 14. Stephenson v. Hilti (1989), 1989 CanLII 191 (NS SC), 93 N.S.R. (2d) 366. agree with appellant's counsel, the contracts considered in some cases contain no exclusionary clause and thus the conclusions reached in those cases cannot be given the weight of those where the clause is present. Historically, the common‑law sought, as far as possible, to give effect to the presumed intention of the contracting parties. There was reluctance to impugn the certainty of the written contract. Hence the so‑called parol evidence rule. ""Extrinsic evidence is generally inadmissible when it would, if accepted, have the effect of adding to, varying or contradicting the terms of judicial record, transaction required by law to be in writing, or document constituting valid and effective contract or other transaction."" Cross on Evidence, sixth edition, 1985 at pp. 615‑6. Exclusionary clauses are often fair and necessary. However, when evidence discloses otherwise, courts have devised various methods to avoid injustice. For example, the contra proferentum principle, collateral warranty, fundamental breach and unconscionability. Waddams, in the Law of Contracts, 1984, traced the development of the doctrine of unconscionability and its use to control exclusionary clauses which, as he said, ""are commonly found in standard form printed documents"" and stated at pp. 348‑9: ""It is submitted that the only workable criterion is rule of unconscionability, for exclusions can be perfectly fair and limitations very unfair. ... more direct attack has come in the form of the doctrine known as 'fundamental breach'."" Waddams traced the evolution of the ""rule"" that ""an exemption clause cannot be construed to excuse liability for 'fundamental breach' of contract or for 'breach of fundamental term'"" (p. 350), and suggested ""a deep rooted unwillingness [on the part of courts] to enforce agreements they see as unfair"". (p. 352). The Supreme Court of Canada recently considered the issue of fundamental breach in Hunter Engineering Co. Inc. v. Syncrude, 1989 CanLII 129 (SCC), [1989] S.C.R. 426. The facts there differ considerably from the instant case. This case and others are cited only for the principles contained therein. In Hunter there was an express warranty in the contract and outside the contract, statutory warranties. The contract included clause stating that the: ""Provisions of this paragraph represent the only warranty...and no other warranty conditions, statutory or otherwise shall be implied"". Dickson, C.J., with LaForest, J. concurring, reviewed number of English and Canadian authorities, including some will mention later, demonstrating the changes in the law over the years. He and Wilson, J. approached the doctrine of fundamental breach in different fashion. He said at pp. 455‑6: ""I have had the advantage of reading the reasons for judgment prepared by my colleague, Justice Wilson, in this appeal and agree with her disposition of the liability of Allis‑Chalmers. In my view, the warranty clauses in the Allis‑Chalmers contract effectively excluded liability for defective gearboxes after the warranty period expired. With respect, disagree, however, with Wilson J.'s approach to the doctrine of fundamental breach. am inclined to adopt the course charted by the House of Lords in Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827, and to treat fundamental breach as matter of contract construction. do not favour, as suggested by Wilson J., requiring the court to assess the reasonableness of enforcing the contract terms after the court has already determined the meaning of the contract based on ordinary requiring the court to assess the reasonableness of enforcing the contract terms after the court has already determined the meaning of the contract based on ordinary principles of contract interpretation. In my view, the courts should not disturb the bargain the parties have struck, and am inclined to replace the doctrine of fundamental breach with rule that holds the parties to the terms of their agreement, provided the agreement is not unconscionable.""(My emphasis) With respect to counsel, in my opinion this passage cannot be relied upon to demonstrate the sanctity of contract, for the caveat is there: the parties will be held to the terms of their agreement ""provided the agreement is not unconscionable"". Parenthetically add that Wilson J. in Hunter made similar comments. The chief justice commented at p. 456: ""The doctrine of fundamental breach in the context of clauses excluding party from contractual liability has been confusing at the best of times. Simply put, the doctrine has served to relieve parties from the effects of contractual terms, excluding liability for deficient performance where the effects of these terms have seemed particularly harsh. Lord Wilberforce acknowledged this in Photo Production, supra, at p. 843: 1. The doctrine of 'fundamental breach' in spite of its imperfections and doubtful parentage has served useful purpose. There was large number of problems, productive of injustice, in which it was worse than unsatisfactory to leave exception clauses to operate. In cases where extreme unfairness would result from the operation of an exclusion clause, fundamental breach of contract was said to have occurred. .. Thus, even if the parties excluded liability by clear and express language, they could still be liable for fundamental breach of contract. This rule of law was rapidly embraced by both English and Canadian courts."" He remarked at p. 462: ""Professor Waddams makes two crucially important points. One is that not all exclusion clauses are unreasonable. This fact is ignored by the rule of law approach to fundamental breach. In the commercial context, clauses limiting or excluding liability are negotiated as part of the general contract. As they do with all other contractual terms, the parties bargain for the consequences of deficient performance. In the usual situation, exclusion clauses will be reflected in the contract price. Professor Waddams second point is that exclusion clauses are not the only contractual provisions which may lead to unfairness. There appears to be no sound reason for applying special rules in the case of clauses excluding liability than for other clauses producing harsh results. In light of the unnecessary complexities the doctrine of fundamental breach has created, the resulting uncertainty in the law, and the unrefined nature of the doctrine as tool for averting unfairness, am much inclined to lay the doctrine of fundamental breach to rest, and where necessary and appropriate, to deal explicitly with unconscionability. In my view, there is much to be gained by addressing directly the protection of the weak from over‑reaching by the strong, rather than relying on the artifical legal doctrine of 'fundamental breach'. There is little value in cloaking the inquiry behind construct that takes on its own idiosyncratic traits, sometimes at odds with concerns of fairness. This is precisely what has happened with the doctrine of fundamental breach. It is preferable to interpret the terms of the contract, in an attempt to determine exactly what the parties agreed. If on its true construction the contract excludes liability for the kind of breach that occurred, the party in breach will generally be saved from liability. Only where the contract is unconscionable, as might arise from situations of unequal bargaining power between the parties, should the courts interfere with agreements the parties have freely concluded. The courts do not blindly enforce harsh or unconscionable bargains and, as Professor Waddams has argued, the doctrine of 'fundamental breach', may best be understood as but one manifestation of general underlying principle which explains judicial intervention in variety of contractual settings. Explicitly addressing concerns of unconscionability and inequality of bargaining power allows the courts to focus expressly on the real grounds for refusing to give force to contractual term said to have been agreed to by the parties. wish to add that, in my view, directly considering the issues of contract construction and unconscionability will often lead to the same result as would have been reached using the doctrine of fundamental breach, but with the advantage of clearly addressing the real issues at stake."" am inclined to similar approach in the instant case. We must explicitly address ""concerns of unconscionability and inequality of bargaining power"" in order to determine the force to be given to relevant clauses in the agreement and, in particular 2.06 and 18.10. As read the reasons of Dickson, C.J. in Hunter, issues of unconscionability and inequality of bargaining power are to be determined from the facts. contract may be found to be unconscionable when there is unequal bargaining power between the parties. However, unequal bargaining power is not the only situation where unconscionability may arise. The Chief Justice did not review the law of unconscionability. He concluded at p. 464: ""I have no doubt that unconscionability is not an issue in this case. Both Allis‑Chalmers and Syncrude are large and commercially sophisticated companies. Both parties knew or should have known what they were doing and what they had bargained for when they entered into the contract. There is no suggestion that Syncrude was pressured in any way to agree to terms to which it did not wish to assent."" What then constitutes unconscionable behaviour? The task of determining whether acts are unconscionable is at times difficult because the meaning of the word is far from precise. suggest that it cannot be determined by recourse to dictionary or precedents. Those can assist but they cannot precisely apply. The answer must be found within the particular facts of the case: the result will differ as do the facts. As explained by Fridman in The Law of Contract in Canada, second edition, 1986, at p. 303, in contractual setting there may be present features which encourage and entitle court to apply equitable principles to intervene and grant rescission: those features are the ingredients of what might be termed ""equitable fraud"". It is not fraud in the classical, common‑law sense, involving misrepresentations of the truth. Nor is there any improper application of pressure amounting to duress or its equitable analogue of undue influence. ""Nonetheless, the conduct of one party in obtaining the assent of the other to particular contract was of such character that court might well consider that to uphold the ensuing contract would be to perpetrate an injustice and produce an unfair result. contract may be rescinded if the behaviour of one contracting party was unconscionable."" He continued at p. 304: ""Where bargain is held to be unconscionable, it is not the consent of the victim that is impugned, but the reasonableness of the bargain, the conscientiousness of the other party, the equitable character of the transaction. In making such decisions, court may be concerned with the internal state of mind of the party seeking rescission. But it is also concerned with external matters, the state of affairs surrounding the making of the contract, to the extent that such externalities operated on the mind of the party seeking rescission."" For our purposes his following comments (pp.304‑5) distinguishing unconscionability and undue influence are useful: ""Moreover finding that there had not been undue influence does not preclude decision in favour of party who also alleges unconscionable conduct. In contrast with an attack upon consent, which is what is involved in plea of undue influence, plea that bargain is unconscionable, or has been obtained by unconscionable means or methods, permits court to invoke relief against an unfair advantage gained by an unconscientious use of power by stronger party against weaker. Where such misuse of power is shown, it creates presumption of fraud, in the equitable not common‑law sense. That presumption the stronger party must repel by proving that the bargain was fair, just and reasonable. The two doctrines are closely related. Indeed the latter is obviously an offshoot of the former. But they are distinct, even though their parentage is the same."" In Lloyd's Bank v. Bundy, [1974] All E.R. 757 (C.A.), Lord Denning focused his attention on inequality of bargaining power while the majority of the court focused on undue influence in the traditional sense and the fiduciary duty which was found to exist between the bank and Mr. Bundy. After commenting upon Bundy, Fridman at p. 307 said: ""...the traditional view of unconscionability is that it involves conduct that is tantamount to fraud in moral, if not strictly legal sense."" In the author's view: ""...it may be suggested that between traditional conceptions of what is unconscionable and the reformulation of what is unjust in terms of inequality of bargaining power there is not wide gap. To judge by recent Canadian authority, the two notions appear to be almost interchangeable."" Lord Scarman in National Westminster Bank v. Morgan, [1985] All E.R. 821, after discussing several cases including Lloyd's Bank v. Bundy said at p. 831: ""There is no precisely defined law setting limits to the equitable jurisdiction of court to relieve against undue influence. This is the world of doctrine, not of neat and tidy rules. The courts of equity have developed body of learning enabling relief to be granted where the law has to treat the transaction as unimpeachable unless it can be held to have been procured by undue influence. It is the unimpeachability at law of disadvantageous transaction which is the starting point from which the court advances to consider whether the transaction is the product merely of one's own folly or of the undue influence exercised by another. court in the exercise of this equitable jurisdiction is court of conscience. Definition is poor instrument when used to determine whether transaction is or is not unconscionable: this is question which depends on the particular facts of the case."" In DeWolfe v. Mansour et al (1986), 73 N.S.R. (2d) 110 Nunn, J. refused to set aside contract between developer and real estate agent by reason of unconscionability because the parties had received independent legal advice; the party alleging unconscionability was not forthright in his dealings surrounding the execution of the contract; and there was no unfair advantage or inequality of bargaining power between the parties. He referred to Fridman and Lord Denning's reasons in Lloyd's Bank v. Bundy and then said (p. 114‑5): ""In the same case Sir Eric Sachs, whose judgment was held by the House of Lords to be the real essence of the Lloyd's Bank case in National Westminster Bank v. Morgan, [1985] All E.R. 821, stated at p. 768: 'It may in the particular circumstances entail that the person in whom confidence has been reposed should insist on independent advice being obtained or ensuring in one way or another that the person being asked to execute document is not insufficiently informed of some factor which could affect his judgment. The duty has been well stated as being one to ensure that the person liable to be influenced has formed ""an independent and informed judgment"", or to use the phraseology of Lord Evershed, M.R. in Zamet v. Hyman, ""after full, free and informed thought""."" It should be noted that in Bundy the court was discussing fiduciary relationships. However, in my view, the‑statement of Sir Eric Sachs is applicable to situation where there is an inequality of bargaining power due to one party not being informed of all of the relevant and pertinent information, keeping in mind all of the surrounding circumstances. Sodd Corporation Inc. v. Tessis (1977), 1977 CanLII 1415 (ON CA), 79 D.L.R. (3d) 632 is in many respects similar to that at bar, other than the exemption clause preceded, rather than followed, the impugned statements. The Ontario Court of Appeal, per Lacourciere, J.A. at p. 633 commented that the trial judge found: ""...that the defendant was negligent in misrepresenting the quantity and value of the items included in the assets of the bankrupt advertised for sale, and that the defendant was not entitled to rely on an exemption clause in the advertisement which reads as follows: 'Tenders will be accepted on the basis that the Purchaser has inspected the assets and title thereto, and no warranty or condition is expressed or can be implied as to designation, classification, quality or condition or in any manner whatsoever.'"" He continued at p. 635: ""However, the present case did, in fact, involve pre‑contractual negligent misrepresentation which induced the plaintiff to submit its tender, and the defendant's liability follows on the authority of Esso Petroleum Co. Ltd. v. Mardon, [1976] All E.R. 5; see also Walter Cabott Construction Ltd. v. The Queen (1974), 1974 CanLII 1263 (FC), 44 D.L.R. (3d) 82; varied (1975), 1975 CanLII 1054 (FCA), 69 D.L.R. (3d) 542, 12 N.R. 285. In our view, the trial Judge was correct in finding that the plaintiff was not negligent in relying on licensed trustee who had caused an inventory of the stock to be taken, when the plaintiff's opportunity for inspection was, at best, limited. There is one further aspect to consider with respect to liability. While the plaintiff's claim was pleaded on the basis of contract, it was clearly presented at trial as being founded upon the tort of negligent misrepresentation, without any amendments being sought or granted. In our view, while an amendment at this stage would not be unfair, it is unnecessary inasmuch as the defendant's negligent misstatement also constituted collateral warranty inducing the plaintiff to submit its tender. The defendant's stipulation amounted, in our view, to binding promise, depriving him of the terms of the exemption. On that basis, the conclusion can be supported in contract: Couchman v. Hill, [1974] K.B. 554; Esso Petroleum Co. Ltd. v. Mardon, supra. It is clear from the cases that the defendant's representation, whether characterized as negligent misstatement or as collateral warranty, falls outside the exemption clause.""(My emphasis) McIntyre, J. A. in Harry v. Kreutziger (1978), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231 (B.C.C.A.) after reviewing series of cases dealing with unconscionability due to the unequal bargaining powers of the parties stated at p. 237: ""From these authorities this rule emerges. Where claim is made that bargain is unconscionable, it must be shown for success that there was inequality in the position of the parties due to the ignorance, need or distress of the weaker, which would leave him in the power of the stronger, coupled with proof of substantial unfairness in the bargain. When this has been shown presumption of fraud is raised and the stronger must show, in order to preserve his bargain, that it was fair and reasonable. Like many principles of law, it is much easier to state than to apply in any given case. In the cases cited above the facts were such that the application of the remedy was clearly required. In the case at bar the facts do not speak as clearly. None the less, am of the view that this appeal should succeed and the contract be rescinded."" He continued at p. 239: ""It is true, as he (the trial judge) has pointed out, that appellant could have sought advice; he could have torn up the cheque; he could have refused to have any dealings with the respondent; but this will be true of almost any case where an unconscionable bargain is claimed. If the appellant had done these things, no problem would have arisen. The fact remains, however, he did not, and in my view of the evidence it was because he was overborned by the respondent because of the inequality in their positions and the principles of the cases cited apply."" This observation by Maclntyre, J.A. is apt here. Applying that reasoning, albeit to different factual situation, if Murphy had given more thought to the specifics of the contract and had obtained legal advice or had prepared his own proposal, then the problems would not have arisen at the stage they did. However, he did not do so. He relied upon the representations made by MacDougall and MacDougall intended him to do so. As result he should not be denied consideration of the principles of unconscionability, as so urged by the appellant. The most frequently cited cases respecting the principle of unconscionability are Morrison v. Coast Finance Ltd. et al (1965), 1965 CanLII 493 (BC CA), 55 D.L.R. (2d) 710; Lloyd's Bank v. Bundy, supra; and Harry v. Kreutziger, supra. These cases represent somewhat different approaches to unconscionability, however, all of them are interrelated. In Morrison the traditional view of unconscionability (pre Bundy) was applied. As earlier mentioned, Bundy focused more on the inequality of the bargaining positions of the parties. However, all three have similar base. In Harry, Lambert, J. A. proposed community standards approach. He commented that he was not satisfied that the principle, as stated by Davey, J.A. in Morrison and by Maclntyre, J.A. in Harry, ""exhausts all cases where rescission might be ordered under the rubric of unconscionable bargain"". (p. 240). He then said: ""I agree wholeheartedly with McIntyre, J.A., when he says that it is easier to state the principle than to apply it in given case. Indeed, to my mind, the principle is only of the most general guidance. It is not principle of the type which can be applied to facts to produce, by logical process, clear conclusion. To think of. it as such principle is to obscure the real process of consideration and judgment that leads to decision in this kind of case."" He continued at p. 241: ""In my opinion,questions as to whether use of power was unconscionable, an advantage was unfair or very unfair, consideration was grossly inadequate, or bargaining power was grievously impaired, to select words from both statements of principle, the Morrison case and the Bundy case, are really aspects of one single question. That single question is whether the transaction seen as whole, is sufficiently divergent from community standards of commercial morality that it should be rescinded. To my mind, the framing of the question in that way prevents the real issue from being obscured by an isolated consideration of number of separate questions; as, for example, consideration of whether the consideration was grossly inadequate, rather than merely inadequate, separate from the consideration of whether bargaining power was grievously impaired, or merely badly impaired. Such separate consideration of separate questions produced by the application of synthetic rule tends to obscure rather than aid the process of decision.""(My emphasis) In Stephenson v. Hilti (Canada Ltd.) (1989), 1989 CanLII 191 (NS SC), 93 N.S.R. (2d) 366, Hallett, J., then of the Trial Division of this court, considered bargain struck to terminate an employment contract. The parties clearly were not in an equal bargaining position. He commented at pp. 369‑70: ""The courts must be very slow to set aside an agreement made between parties for valuable consideration. However, agreements that are unconscionable will be set aside. The law on the subject has been stated by Mr. Justice Jones of the Appeal Division of this court in Stevens v. Stevens (1983), 57 N.S.R. (2d) 141; 120 A.P.R. 141, at p. 145 as being 'well settled'. Mr. Justice Jones then referred to the decision of Valta v. Valta and Johansson (1979), 1978 CanLII 410 (BC CA), R.F.L. (2d) 133, where Taggart, J.A., of the British Columbia Court of Appeal quoted from decision in Morrison v. Coast Finance Ltd. as setting out the law on unconscionable transaction. In the latter decision, the court stated: '...a plea that bargain is unconscionable invokes relief against an unfair advantage gained by an unconscientious use of power by stronger party against weaker. On such claim the material ingredients are proof of inequality in the position of the parties arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of substantial unfairness of the bargain obtained by the stronger. On proof of those circumstances, it creates presumption of fraud which the stronger must repel by proving that the bargain was fair, just and reasonable.' He continued at p. 370: ""Professor Fridman further stated with respect to employment contracts at p. 311: 'Reading these cases, and those which have turned on the traditional idea of unconscionability; the impression is obtained that, whichever test is being utilized and applied, the basic question for the court is the same: has there been an unconscientious use or abuse of power or position by one party against the other. In the final analysis, there does not seem to be too vast difference, if any at all, between rescission for unconscionable behaviour and rescission for taking advantage of an inequality of bargaining power. Whichever test is used, however, one issue does arise. How far is it valid and desirable for courts to exercise some discretionary power over contracts that have been negotiated without fraud, duress or undue influence in the classical sense, and without there having been some kind of misrepresentation, albeit innocent, giving rise to mistake that induced the making of the contract?' In Harry v. Kreutziger (1979), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231, the British Columbia Court of Appeal reviewed the authorities on unconscionable transactions. Mr. Justice Lambert proposed fairly simple test for determining whether transaction was unconscionable where he stated at p. 241 that the single question is whether the transaction, seen as whole, is sufficiently divergent from community standards of commercial morality that it should be rescinded. To put it even more succinctly, is the transaction so unconscionable that it requires the intervention of the court considering all the circumstances surrounding the making of the agreement."" The approach of Lambert, J. in Harry is similar to that later expressed by Chief Justice Dickson in Hunter. Both cut through the artificial concepts surrounding this aspect of contract law. For emphasis, again refer to the statements of the Chief Justice in Hunter at p. 461‑2 earlier set forth. In Hunter Wilson, J. with L'Heureux‑Dube, J. concurring, agreed with the conclusion reached by the Chief Justice, but preferred as the test whether it would be fair and reasonable to enforce clear and unambiguous exclusion clause after breach had occurred. court must determine the boundaries of tolerable conduct. She referred (pp. 514‑5) to the decision of Anderson, J. in Davidson v. Three Spruces Realty Ltd. (1977), 1977 CanLII 1630 (BC SC), 79 D.L.R. (3d) 481 (B.C.S.C.) and his proposed criteria to ascertain whether freedom to contract had been abused so as to make it unconscionable for one of the parties (the bailee) to exempt itself from liability due to an exculpatory clause. She then said: ""Anderson J.'s judgment in Davidson drew on Gillespie Brothers Co. v. Roy Bowles Transport Ltd., [1973] Q.B. 400 (C.A.), in which Lord Denning said at pp. 415‑16: The time may come when this process of 'construing' the contract can be pursued no further. The words are too clear to permit of it. Are the courts then powerless? Are they to permit the party to enforce his unreasonable clause, even when it is 'so unreasonable, or applied so unreasonably, as to be unconscionable? When it gets to this point, would say, as said many years ago: 'there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused': John Lee Son (Grantham) Ltd. v. Railway Executive [1949] All E.R. 581. It will not allow party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so. (Emphasis added). At pp. 509‑10 she set out the fair and reasonable test: ""It is however, in my view an entirely different matter for the courts to determine after particular breach has occurred whether an exclusion clause should be enforced or not. This, believe, was the issue addressed by this Court in Beaufort Realties. In Beaufort Realties this Court accepted the proposition enunciated in Photo Production that no rule of law invalidated or extinguished exclusion clauses in the event of fundamental breach but rather that they should be given their natural and true construction so that the parties' agreement would be given effect. Nevertheless the Court, in approving the approach taken by the Ontario Court of Appeal in Beaufort Realties, recognized at the same time the need for courts to determine whether in the context of the particular breach which had occurred it was fair and reasonable to enforce the clause in favour of the party who had committed that breach even if the exclusion clause was clear and unambiguous. The relevant question for the Court in Beaufort Realties was: is it fair and reasonable in the context of this fundamental breach that the exclusion clause continue to operate for the benefit of the party responsible for the fundamental breach? In other words, should party be able to commit fundamental breach secure in the knowledge that no liability can attend it? Or should there be room for the courts to say: this party is now trying to have his cake and eat it too. He is seeking to escape almost entirely the burdens of the transaction but enlist the support of the courts to enforce its benefits."" critique of Hunter is contained in an article by Robert Flannigan in (1990) 69 C.B.R. 515. To return to the instant case, in respect to clause 2.06, the trial judge held: ""The wording of this (exclusionary) clause is very broad. The agreement and the forecasts were all given to Murphy at the same time or came in the same mail. The agreement attempts to create an artificial situation. MacDougall who gave the material to Murphy and discussed the projections with Murphy, also gave him copy of the Agreement. MacDougall, being Atlas, knew that Murphy was relying on that forecast. MacDougall considered it an inducement and knew that in reliance upon that inducement Murphy was signing up. find Atlas cannot divorce itself from the other material it gave out. find that in looking at all the circumstances the financial forecasts formed part of the documentary material upon which the contract was based and the inducement made. Atlas held MacDougall out as the inducer. It cannot now disassociate itself from his acts of inducement."" He also found that the appellant was desirous of transferring the operation of the business to franchisees with the consequential relief of responsibilities and obligations. He found that the MacDougall projections were represented to Murphy to be factual and accurate and intended to be relied upon by Murphy to induce him to sign the contract. At the same time the appellant knew that Murphy did not have the resources or ability to check the accuracy of those projections. The trial judge found that the projections ""were inaccurate as to expenses and grossly inaccurate as to retail sales and profits""; that even though MacDougall knew that Murphy had questioned the retail sales forecast, MacDougall reassured him ""telling him that the resources of Atlas had gone into the forecast"". It was Ritchie who produced the proforma financial outlook in detail. He concluded that ""we do not have viable case for development"" in Yarmouth. Ritchie's figures and his conclusion were not given to Murphy although there was ample opportunity to do so prior to the signing of the agreement. What can be said of the appellant's conduct? Was it such that it should be termed unconscionable? Counsel did not draw Hunter to the attention of the trial judge nor was the issue of unconscionability argued before him as it was before us. The trial judge had the unique opportunity to see the witnesses and evaluate their testimony first hand, perspective not given to us. It is evident from his comments that he believed the testimony of Murphy. Assessments of credibility were, of necessity, involved in the trial judge's conclusion. His various comments and findings of fact are pertinent to the issues of unconscionability. In the case at bar it is of importance to note that the franchise agreement was entered into on the one hand by large national company with international connections through its parent, Imperial Oil, and on the other by small business man who, though no neophite, had little or no retail experience. The agreement was prepared by the appellant and affords it protection including the exclusionary clause, while imposing obligations upon the franchisee. MacDougall admitted that the promotional brochure given to Murphy was not only for the purpose of informing a prospective franchisee, but of inducing and enticing such a prospect to enter into the contract. Murphy was informed that the appellant carried out an intensive and costly assessment of the market for such franchises. The MacDougall projections were given to Murphy with the intent that he rely upon them. Simply put: they should not have been relied upon. Even if MacDougall believed his own calculations, they ignored those of Ritchie which had forced Ritchie to the conclusion that the proposed operation was not viable without alterations. Indeed, MacDougall admitted that the assumption that on net earnings of $11,000.00 ""there simply is no reason for the employer to get either paid for his work or to get an adequate return on his investment"" was so important that he could not believe that it was not discussed with Murphy. It was not. MacDougall, in an attempt to induce Murphy to enter into the agreement gave only his financial forecast to Murphy, telling him ""the resources of Atlas had gone into the forecast"". He did this knowing, as the trial judge found, that ""Murphy did not have the resources and ability to check out the Atlas financial forecast and that he did not do so."" The MacDougall projections were based upon assumptions which could not be justified even to Ritchie. In addition MacDougall knew that, in respect to Murphy, they were false, for they were based on the rather startling proposition that the franchisee was expected to work full time without pay. Murphy was not informed of this ""important assumption"". Placing only the MacDougall projections forward, alleging that they had the full force of Atlas (and Imperial Oil) behind them, in these circumstances, these parties were not bargaining as equals. Not only that, but it is clear that the appellant had information which would have dissuaded any but the foolhardy to enter into the agreement and it withheld that information from Murphy. It appears to me that, having made certain statements respecting projections to Murphy, intending him to rely upon them, which statements were determinative respecting the viability of the franchise and knowing that Murphy did so rely, the appellant had an obligation to inform Murphy of the fact that MaDougall's projections were flawed to the extent that the project was not viable. Withholding that information from Murphy, deprived him of ability to then determine the extent of the flaws and if he wished to enter into the agreement. can only conclude, as did the trial judge, that ""if MacDougall had been open with Murphy and told him what Ritchie thought and what Ritchie expected, the deal would never have been completed."" In these circumstances, would apply the comments of Sir Eric Sachs in Bundy: the appellant should have ensured ""in one way or another that the person being asked to execute document is not insufficiently informed of some factor which could affect his judgment."" Business people entering into contract must have some certainty that its provisions will be applied and that courts will refrain from rewriting the contract. That proposition however is subject to the important caveat: the court will intervene, and properly so, when the party desiring to enforce its exclusionary clause has engaged in unconscionable conduct. To paraphrase Sir Eric Sachs in Bundy: Murphy reposed confidence in the appellant, for the reasons previously set out. The appellant knew that he did. The appellant also knew that by withholding the Ritchie figures and conclusion as expressed in his memo of October 23, 1985, Murphy was ""not sufficiently informed of some factor which would affect his judgment"". The trial judge said and repeat: ""It seemed to me that if MacDougall had been open with Murphy and told him what Ritchie thought and what Ritchie expected, the deal would never have been completed. As well had MacDougall inquired into the viability of Yarmouth Equipment and passed that information on to Ritchie probably the deal would have been squelched. At no time was MacDougall up front with the defendant Murphy by telling him that the Atlas experience in latter years with Yarmouth had been bad or that he was required to marry up the franchise with an otherwise successful business.” There can be no doubt that Murphy had the agreement in sufficient time for him to have studied it and indeed he had time to give it to his solicitor for advice. However, it is equally clear, that he was relying upon MacDougall and Ritchie. In the circumstances, in my opinion, the position statements made by MacDougall and the withholding of contrary information, categorized MacDougall's projections as unconscionable. Although the principle of unconscionability should be used sparingly to avoid an exclusionary clause, this appellant should not be permitted to engage in such conduct secure in the knowledge that no liability could be imposed upon it because of the exclusionary clause or, as Wilson, J. said at p. 510 in Hunter: ""...this party is now trying to have his cake and eat it too. He is seeking to escape almost entirely the burdens of the transaction but enlist the support of the courts to enforce its benefits."" Employing the words of Fridman, supra, the appellant's conduct here, in my opinion, has been such that ""it creates presumption of fraud, in the equitable not common‑law sense"" and the appellant has not proved that ""the bargain was fair, just and reasonable"". To enforce the exclusionary clause in these circumstances would, in my opinion, produce an unconscionable bargain. In determining that Murphy should be discharged from his guarantee under the agreement the trial judge said: ""I consider most of the debt arising from the Atlas franchise was owed to Atlas. It purchased all or nearly all of its stock from Atlas. The stock for its nuts and bolts operation was purchased through its credit arrangement with the bank. Atlas had the opportunity to have its account reduced by taking back inventory. It was not prepared to do so. Had it done so rather than expose the stock to the liquidation sale and its reduced prices the amount owing to Atlas would be less than at present. It did so to the prejudice of Murphy as guarantor. Atlas put the franchise on C.O.D. basis in January 1987. Notice of default was given on February 12, 1987. Under Article 16.05 the plaintiff had the obligation to take back the inventory at the current sale price less restocking charge. Murphy said the bank was prepared to waive its lien and the evidence disclosed no other encumbrances to 'good and marketable title'. find in failing to do so the plaintiff has acted in way which has compromised the rights of the guarantor. The details of the liquidation sale are not in evidence. The evidence was that the normal retail sales for the inventory were not there. The liquidation sale was reasonable act after the refusal of Atlas to take the inventory back. There was no suggestion that the defendants squandered the profits or the proceeds of the sales. In The Law of Guarantee, McGuinnes, Article 10.57 (page 283): 'A creditor must deal with security in reasonable manner so as to ensure that the maximum amount is derivable from it to satisfy the guaranteed debt'. find the failure of Atlas to accept the inventory was unreasonable. accept the evidence of Murphy that it was twice offered to Atlas with the bank's encumbrance waived. In the circumstances here find the defendant Murphy discharged from his guarantee. dismiss the claim against Murphy."" Earlier he commented: ""Murphy said he offered to return the stock to Atlas. He made arrangements with the bank that it would permit the return as the bank held some security. However, Atlas was not prepared to take the stock back. He said the stock, clear of encumbrances, was twice offered to Atlas and twice refused. This was not contradicted."" study of the transcript discloses that Murphy testified that he had asked his brother, who was his lawyer, to contact Atlas and to offer all of the stock to them. There is no evidence that this was ever done. The brother did not testify. Mr. Murphy said that his bank manager had told him he was willing to let the stock go back, but no one from the bank testified. Murphy admitted in cross‑examination that he could not say that Atlas was ever told that the bank would permit the return of the inventory. He further admitted that the bank manager did not tell him ""that the bank waived any claim to the proceeds of that inventory"". An employee of Atlas testified that the inventory was not offered back to Atlas and that the bank had seized it. There was no admissible evidence that the inventory was offered to the appellant prior to the liquidation sale or that the bank was prepared to release its charge. The money realized from the sale of the inventory was paid to the bank to reduce its claim against Yarmouth Equipment and, as well, against Murphy under the guarantee he had given to the bank. In my opinion Murphy should not be released from his guarantee to the appellant to the extent of the value of the Atlas inventory. In all other respects Murphy should be released from that guarantee due to the unconscionable conduct of the appellant. As to the counterclaim of Murphy the trial judge said: ""The defendant Murphy shall recover from the plaintiff his payment of $7,000.00 for the franchise and the sum of $16,500.00 which he paid for start‑up expenses of the franchise including renovations to meet the requirements of Atlas and the sign. accept the evidence of Murphy on these expenditures which were well detailed in his very thorough cross‑examination. He shall have pre‑judgment interest. will hear counsel orally or by letter on the relevant date and percentage."" The pleadings were vague as to this claim. However evidence was produced, counsel argued and the trial judge made his findings. In the circumstances would not disturb his conclusions. In summary, I would allow the appeal in part. The appellant shall have judgment against Murphy for the value of the inventory together with pre‑judgment interest. In all other respects would dismiss the appeal. As the claim in respect to the inventory took but small portion of the argument, would divide the costs 80/20 in favour of Murphy, both here and in the court below. The contention was not pressed on appeal: there will be no costs to any party on that contention. J.A. FREEMAN, J.A.: (Concurring with separate reasons) In 1986 Yarmouth, Nova Scotia, businessman purchased an automative parts franchise from subsidiary of major multinationalcorporation and combined it with his newly established hardware business, the respondent, Yarmouth Equipment Limited. In nine months the new venture was dead with substantial losses all around. More accurately, the new venture was stillborn and collapsed after nine months of losses. It appears to have had no real chance of succeeding. The claim of the appellant, Atlas Supply, the vendor corporation, to recover its losses under guarantee signed by the businessman, the respondent Murphy, was dismissed at trial. Atlas has appealed. The failure did not result from any identified negligence or mismanagement on the part of Mr. Murphy or his company. It did not result from sudden change in the market; the vendor corporation was well aware of downtrend. The failure was the inevitable result of the inherent unsoundness of the whole enterprise. The respondents did not have the resources to identify that unsoundness. They were relying on the. appellant, which did. As part of the consideration for the franchise, Mr. Murphy signed personal guarantee to pay the losses of the appellant, Atlas Supply Company of Canada Ltd., subsidiary of the Imperial Oil Company. With the greatest respect for the reasoning of Mr. Justice Hallett, concur with the conclusions of Mr. Justice Matthews that the respondent should not be fully liable on the guarantee. These, briefly, are my reasons; have relied on the facts developed in both of the other judgments. The parties signed an agreement at the conclusion of negotiations in which the retail ""nuts and bolts"" business of Yarmouth Equipment came under consideration by Atlas as suitable vehicle for franchise. The agreement contained the guarantee and an exclusionary clause that the document was complete on its face with no further warranties. Mr. Murphy had the legal advice of his brother, lawyer, before he signed. No amount of legal scrutiny of the document could have uncovered the underlying weakness concealed by the flawed negotiations. Because there were no disclosures to the contrary, all parties were entitled to believe, and to believe that the other parties believed, that they were entering into the written agreement with reasonable expectations the business could succeed. If Atlas actually believed the venture could succeed, its belief was not reasonable one for national business with illustrious parentage. Mr. Murphy paid his money and signed the guarantee with the expectation that the transaction was sound within the business judgment of Atlas: that nothing in the experience and expertise of Atlas and its parent company indicated the new business could not succeed. He had, in fact, been given express assurances that Atlas considered it to be viable. The appellant's evidence is that Atlas considered that the Yarmouth franchise combined with Yarmouth Equipment would make ""reasonable return."" That acknowledgement, measured against the reality, discloses the measure of care and business judgment Atlas brought to its negotiations with Mr. Murphy. To large extent the facts speak for themselves. Such an early and thoroughgoing calamity, preceded by consistent losses, must have been predictable by any sophisticated modern business corporation which examined the facts. Mr. Murphy was told Atlas had done its homework. He was given no warning the venture was doomed. He committed his company and signed the guarantee. The calamity occurred. If Atlas had been unable to see the obvious, it had not done its homework. It had not exercised reasonable standard of care. It did not enter into the contract with reasonably held belief that the venture could succeed. Mr. Murphy was misled. John MacDougall, the Atlas representative, must bear much of the blame. Instead of protecting the best interests of his employer, which in the end would have protected Murphy, he assumed the role of broker between Murphy and Atlas. He overcame the valid misgivings of his superior, Mr. Ritchie, with unjustified assurances about Yarmouth Equipment based on inadequate inquiry. He overcame Murphy's concerns by assuring him that Atlas, with its substantial resources, believed in the viability of the venture on the basis of proper investigation and research. Initial projections by Atlas indicated only marginal profitability for the parts franchise. Mr. Ritchie pointed this out to Mr. MacDougall, and told him it was not viable unless it could be joined to an established business, essentially as sideline. Mr. MacDougall persuaded him that Yarmouth Equipment was suitable partner. Mr. MacDougall, and thus Atlas, should have known better. Yarmouth Equipment was new‑‑in business only two months‑‑and off to rocky start. Mr. Ritchie himself would have known that if he had made rudimentary inquiries. Atlas did not take Yarmouth Equipment's performance to the date of the agreement properly into account. It had suffered $40,000 loss. It should have been obvious to Mr. Murphy, as well, that wedding losing operation to marginal one is not formula for success. He appears to have been lulled by Mr. MacDougall's enthusiasm. After all, would Atlas and its mighty parent give their blessing to foredoomed union? As an independent broker, MacDougall's handling of information would have been questionable. As the employee who represented Atlas to Murphy, his smudging of the picture was less than conscientious. His projections for wholesale sales of Atlas parts were reasonably accurate; those for retail sales were disastrously short of the mark. The new combined operation created by his machinations, the Atlas parts business grafted to Yarmouth Equipment, fluttered weakly and fell. do not think it likely that would have happened to an enterprise founded on proper exercise of Atlas' business judgment. Mr. Murphy was entitled to expect that Atlas would not sell him franchise and enter into business relationship with him and his company without measure of care. He paid to associate himself with Atlas, its name, reputation and business acumen. Mr. Murphy did not get what he paid for: franchise operation deemed reasonably capable of succeeding in union with his own business by large corporation with access to substantial resources for market studies and great experience in the sales field. He was not entitled to expect guarantees of success or iron‑clad projections. But he was entitled to reasonable care‑‑reasonable business judgment applied to reasonably developed data. Atlas was not merely selling franchise; it was concerned with the new combined operation as an outlet for its parts. Mr. Murphy knew this. He says he was told Atlas was looking at the venture with scientific methods. He was no doubt swayed by Mr. MacDougall's unbased optimism: he needed lifeline. He was thrown an anchor. There are echoes here of the old doctrine of fundamental breach, failed consideration, mistake, breach of collateral warranty, reliance on the seller's skill and judgment. However the concept of unconscionability says it all. (See: Hunter Engineering Co. Inc. v. Syncrude, (1989] 1989 CanLII 129 (SCC), S.C.R. 426.) Atlas sold Mr. Murphy and Yarmouth Equipment on an enterprise that it should have known had no reasonable chance of success. Atlas now seeks to make Murphy pay for its losses under personal guarantee. It would have been reasonable for Murphy to sign the guarantee if he had been getting what he had the right to expect he was getting. It is not reasonable for Murphy to have to pay to protect Atlas from the effect of its own shortcomings. Atlas could afford to be careless. It knew it could not lose, whatever those shortcomings might be: as the major player it could demand guarantee from purchaser as term of doing business. It had the clout to shift the risk. Atlas could sell junk franchise and not be hurt. Only the purchaser would be hurt. In addition to paying his own losses he would have to pay any losses of Atlas. He would have to honour his guarantee. The arrangement is neat, but find it offensive to conscience. have no difficulty in finding it unconscionable that Atlas should recover from Murphy on the guarantee. would, however, find him liable to the extent that he should pay Atlas the value received for inventory received from Atlas which was sold by the bank and applied to his own debts. In the result, concur with Mr. Justice Matthews. Freeman, J.A. HALLETT, J. A.: (Dissenting) have read the reasons of Matthews, J.A., for allowing this appeal in part. With respect, cannot agree with his conclusion that the withholding of Mr. Ritchie's initial financial forecasts that the Yarmouth franchise operating on its own would only provide return of $11,000.00 was so unconscionable as to warrant the Court's refusal to enforce the clauses in the franchise agreement that sales volumes and profit projections were not warranted by the appellant. As the essential facts in the case are set forth in some detail in his decision, there will be no need for me to refer to the facts except with respect to the specific points that are relevant to my reasoning for allowing this appeal in full. The franchise agreement (the ""franchise agreement"") entered into between the appellant and the respondents, Yarmouth Equipment Limited and Mr. John M. Murphy as guarantor, was business contract negotiated between parties experienced in business. The terms of the franchise agreement were clear; there were no representations or warranties by the appellant respecting sales volumes or profitability of the franchise. The franchise agreement was stated to be the entire agreement between the parties. It was signed by Yarmouth Equipment Limited as the franchisee and signed by the respondent Murphy as the guarantor of Yarmouth Equipment Limited's obligations. Parties must be bound by the terms of their written contracts unless there was some form of fraud or duress that induced the making of the contract or the contract was so unconscionable that the weaker party could satisfy Court that the contract should not be binding upon the parties. There are no allegations of fraud or duress. In my opinion, the terms of the franchise agreement were reasonable and exactly what one would expect that is, that sales volumes and profitability were not guaranteed or warranted. These terms are not unconscionable in the circumstances of this case. THE TRIAL JUDGE'S FINDINGS In my opinion, the learned trial judge was in error when he found, despite the terms of the written agreement stating that there were no warranties respecting sales volume or profitability of the franchise, that certain projections by the appellant's representative with respect to both, which were presented to the respondents prior to the signing of the franchise agreement, were binding collaterial warranties. On the appeal, the respondents' principal argument was that the exculpatory clauses in the franchise agreement were unconscionable. However, will say word about the key cases relied on by the respondents to support the trial judge's findings that there was collateral warranty. The first is decision of the Ontario Court of Appeal in Sodd Corporation Inc. v. Tessis (1977), 1977 CanLII 1415 (ON CA), 79 D.L.R. (3d) 632, relied on to support the argument that the collateral warranty found by the learned trial judge to have been given by the appellant to the respondents with respect to the sales projections and profitability of the franchise continued to exist notwithstanding the clause in the franchise agreement stating that there were no such warranties. review of the Sodd decision shows it turned on the fact that the defendant, professional accountant, was in special relationship that created duty of care to the plaintiff. The accountant was negligent in the representation made to the plaintiff concerning the retail value of the stock that the defendant was selling in connection with liquidation of business. That case is distinguishable from the present appeal as the representation in the Sodd case was made after the advertisement for the sale of the goods appeared in the newspaper. The advertisement contained the statement that there were no warranties respecting the condition of the goods. In the present case, the franchise agreement between the appellant and the respondents was executed after the so‑called collateral warranties had been made; the terms of the franchise agreement stated there were no such warranties. Therefore, it ought to have been clear to the respondent Murphy at the time of execution that whatever he may have thought were representations or warranties respecting sales and profit projections were not to be part of the agreement. Secondly, the disclaimer in the advertisement in the Sodd case was vaguely worded whereas the franchise agreement in the case under appeal clearly stated the projections were not warranties. Thirdly, there was no special relationship between the appellant and the respondents; both were experienced in business and were. entering into standard business contract. would add that there does not appear to be any evidence supporting finding that the sales and profit projections had been warranted by the representative of the appellant in discussions between the parties. The projections, although found to have been made to induce the signing of the contract, were never put forward as being guaranteed. The parties subsequently agreed in the written franchise agreement that the projections were not warranted or guaranteed. In short, the terms of the franchise agreement represent the intention of the parties at the time the contract was made. Under these circumstances, subject to any finding of unconscionability, the Court must give effect to the contractual terms. Jirna Limited v. Mister Donut of Canada Ltd., 1971 CanLII 42 (ON CA), [1972] O.R. 251, and affirmed by the Supreme Court of Canada in [1975] S.C.R. 2. would note that the Jirna case involved franchise agreement and the circumstances were not unlike those presented in this case. In arriving at his decision, the learned trial judge stated that this case is very similar to Esso Petroleum Co. Ltd. v. Mardon, [1976] All E.R. 5. With respect, there is very basic difference between the two cases. In Esso Petroleum v. Mardon there was no clause in the written contract stating that there were no representations or warranties with respect to projected sales; in this case, there was such clause. It also appears that the learned trial judge relied on the following obiter statement by Lutz, J., in P. M. Foods Ltd. et. al. v. Pizza Hut Inc. et al. (1985), 1985 CanLII 1301 (AB QB), C.P.R. (3d) 330 at p. 358: ""It is true that disclaimer clause does not affect liability where the representation complained of is to an overriding or collateral matter."" That is too broad statement and cannot be applied to the facts of this case where the written contract very specifically states there were no representations or warranties respecting sales projections or profits. The learned trial judge seems to have taken the view that since all the material, including the projections and the draft of the franchise agreement, were presented to the respondents by the appellant, the appellant could not divorce itself from the projections and rely on the franchise agreement. With respect, that is exactly what the appellant could do. In my opinion, the learned trial judge was in error in reaching this conclusion in face of the clear written terms of the contract subsequently signed between the parties which provided that there were no warranties respecting projected sales or profits. The projections were just that, ""projections."" Mr. Murphy, an experienced businessman, would not have considered them to be anything else and the evidence indicates that he did not consider them to be anything other than ""projections"" even if the projections induced him to enter the franchise agreement. The franchise agreement was the contract between the parties and its terms must be given effect unless unconscionable: The learned trial judge did not give effect to the terms of the franchise agreement and therefore erred in finding there was collateral warranty. UNCONSCIONABILITY At trial, the respondents did not plead or raise the issue that the franchise agreement should be set aside as being unconscionable but on appeal that was the principal issue argued by the respondents' counsel. Counsel for the appellant agreed the Court could deal with the issue. The Court allowed the appellant to file supplemental factum. Argument was adjourned for week. Courts should be very slow to set aside contract on the ground of unconscionability, particularly where it is business contract made by experienced business people. That the respondent Murphy was an experienced businessman is clear from review of his business career which began in 1968, after he had been an insurance agent for some four years. In 1968, he became partner in Shell Service Station and part owner of used car business. In 1975, he started construction company and became its President. In the same year, he acquired family business, Murphy Boat Shop Limited, which was in the business of buying and selling fishing boats. In 1978, he became involved in real estate sales with Central Trust and Roy Andrews Realty in Yarmouth. In 1979, he started Millworks Limited to operate wholesale and retail supply business. As it would be in competition with the customers of the boat business, he ceased to operate the boat business. Millworks Limited was still in business at the time of the trial and Dun Bradstreet Business Information Report tendered at the trial shows this company in 1986 to have had annual sales of approximately $1.2 million and equity in excess of $200,000.00. In 1984, he acquired the majority interest in 1761 Realty Limited. By 1985 he had acquired eight small apartment buildings that he managed up until that time when he turned them over to real estate management firm. In 1985, he established Yarmouth Equipment Limited and became its President. He began this business because he felt from his experience there was need for such ""nuts and bolts"" business, as he described it, in that area of the province. In 1986, he decided to start an Atlas franchise to be operated with the existing Yarmouth Equipment Limited business. The principal focus of Mr. Justice Matthew's reasoning in concluding that the so‑called exculpatory clauses in the franchise agreement cannot be enforced on the grounds of unconscionability revolves around the fact that Mr. MacDougall, as the appellant's representative, had advised Mr. Murphy in December, 1985, or January, 1986, that the appellant had projected annual profits at $33,000.00 but did not bring to Mr. Murphy's attention an October 23, 1985, memo from Mr. Ritchie, the National Sales Manager, expressing his view to Mr. MacDougall, the Atlantic Regional Manager, that franchise in Yarmouth was not ""viable"". Mr. Ritchie had projected profit of $11,000.00 unless the business could be operated with an existing business. At that time (October, 1985), Mr. Ritchie was considering franchise in the Yarmouth area that would be operating on its own rather than in combination with another business. Mr. MacDougall, the Atlantic Regional Manager, was more optimistic about sales. He testified that with good businessman as the franchisee, the appellant would recover good part of its lost share of the market in that area. He projected that with two employees and an investment of about $100,000.00 the Yarmouth franchise would provide return of $33,000.00 to the franchisee for his full time work and his investment. Mr. MacDougall's projection of wholesale sales of $550,000.00 was not proven to be that far off the mark as evidenced by report will refer to later. However, the retail sales were far below those projected. In early January, 1986, Mr. Ritchie, after considering Mr. MacDougall's projection of profit of $33,000.00 for stand alone franchise in Yarmouth and taking into consideration the fact that the franchise would be operated in conjunction with Yarmouth Equipment Limited's existing business, revised his original projection of an $11,000.00 annual profit for the Yarmouth franchise to $19,000.00. His expense projections for the franchise allowed for three employees. This is significant because the evidence indicates the franchise required three persons to operate efficiently. Mr. MacDougall had assumed the franchise would be manned by the franchisee and two employees and would make profit of $33,000.00 if the franchisee did not take salary. Therefore, the revised Ritchie profit projection was not that much different from Mr. MacDougall's original projection as Ritchie provided for the expense of an additional employee to recognize that Mr. Murphy would not be working full time as he had other business interests. Counsel for the respondents takes the position and Mr. Justice Matthews has agreed that as Ritchie's initial opinion of an $11,000.00 projected profit for the Yarmouth franchise was not passed on to Mr. Murphy, coupled with the fact that the subsequent projections prepared by Mr. MacDougall of profit per year of $33,000.00 was used to induce Mr. Murphy to enter the franchise agreement and that Mr. Murphy was not advised he would personally have to work full time to meet that projection if there were only two employees as was the basis of MacDougall's projections, the appellant acted in such an unconscionable manner in inducing Mr. Murphy to enter the franchise agreement that the exculpatory clauses are not enforceable. With respect, this reasoning does not give due consideration to number of factors. Mr. Murphy became interested in taking on the franchise and operating it in conjunction with his existing Yarmouth Equipment Limited business. The trial judge's decision makes it clear that both Mr. Ritchie and Mr. MacDougall were very impressed with Mr. Murphy's ability as businessman. After meeting with Mr. Murphy in late January, 1986, Mr. Ritchie reviewed the MacDougall projections and made some adjustments, including providing for three employees; reduced the royalty payable by Yarmouth Equipment Limited to the appellant from 3% to 2% as agreed and increased projected ""specialty"" sales from $20,000.00 to $30,000.00 per year, ending up with projected profit of $19,000.00 for Yarmouth Equipment Limited (roughly 18% on investment). These projections recognize that Mr. Murphy would not be working other than providing supervision. In late January, 1986, it was agreed that Yarmouth Equipment Limited be made the franchisee for the area. The franchise agreement was signed on February 28, 1986. It seems to me that once the appellant was considering granting the franchise on the basis that it be operated in conjunction with Yarmouth Equipment Limited's existing business, the situation was so altered that Ritchie's initial income and expense projections for Yarmouth franchise operating on its own which showed return of $11,000.00 for work and investment were no longer relevant. But most important is the fact that these sales volumes and profit projections were never more than simply projections. Mr. MacDougall was of different opinion on the wholesale sales potential of the Yarmouth franchise. His projection of $33,000.00 return to the franchisee was not misleading; it showed two employees and he never represented that included in the expenses was salary for the franchisee. MacDougall's projections were prepared before he was in touch with Mr. Murphy. do not think Mr. MacDougall had duty to beat Mr. Murphy over the head to let him know that if he did not work, his profit would be reduced or any obligation to beat him over the head to show $33,000.00 was marginal return for the investment and the work of the franchisee. That aside, it was for Mr. Murphy to assess what return was acceptable to him and what his manpower requirements were in operating the combined businesses and for him to assess what time he would have to spend in supervising the combined businesses. also find it hard to conceive that the appellant had some obligation to the respondents to check out Yarmouth Equipment's business to make sure it was operating successfully before franchising it as inferred by the trial judge and referred to by Mr. Justice Matthews. Mr. Murphy appeared to be successful businessman and had made favourable impression on both Mr. MacDougall and Mr. Ritchie. THE EVIDENCE As the respondents did not allege at trial that the franchise agreement was unconscionable, Mr. Justice Grant did not address that issue. It is therefore appropriate to look at the evidence in relation to this issue. Mr. Murphy testified respecting the sales forecasts prepared by Mr. MacDougall. His evidence on direct examination about his reliance on the sales and profit projections of the appellant is in marked contrast to that which he had given at prior discovery. The direct examination went as follows: ""Q. So he presented you with that blue book from Atlas on franchise agreements, what discussion was there about the contents of that or anything else? Just relate for His Lordship whatever you recall of your discussions with him that day. A. Well at that time we sat down and Andy Fitzgerald, Wayne Nickerson and myself quickly looked at projections and that they had projected for the Yarmouth area and raised some concerns immediately to retail sales. Q. Yeah, let's go to those projections and now think they're found at page 11 of tab one My Lord. What discussion was there about the projections then Mr. Murphy? A. We asked Mr. MacDougall how they arrived at that figure of $93,000 because there was no retail sales of Atlas never before in Yarmouth and we knew that, and Mr. MacDougall quickly went to this population. Q. Yes? That's page 16 My Lord. That's the one headed Franchise Program Yarmouth, Bridgewater, Kentville,...population. A. That's the one yes. And he assured us that these figures and the projections were all done scientifically through believe himself, or head office at Toronto and that it was based on figures that they had received from competitors of theirs that 20% of the wholesale business should be retail and from there relied, we relied on his projections, Atlas's projections. Q. Did you have any way or any means yourself to check or confirm or not, the projections that were made? A. had no reason to doubt these figures because know Atlas is wholly owned subsidiary of Esso and Mr. MacDougall was representing Atlas so at that time when they tell me they've done their homework, was assured and had no reason to further check. Q. You at first did doubt the validity or accuracy of that figure though? A. At first yes we questioned it. Q. Did you have any basis for doubting it other than some instinct? A. None whatsoever, just that gut instinct felt that it was high. Q. Alright, was there any other discussion of anything, these projections or anything else during that second meeting? A. Not that can recall...."" (my italics) This testimony makes it clear that there was never another discussion respecting the financial projections. It is to be noted that he was not sure whether the projections had been prepared by head office or Mr. MacDougall personally. Furthermore, he was told how the retail sales projections were estimated (on information, from others in similar businesses, that one could expect retail to be about 20% of wholesale). Mr. Murphy knew the appellant had never been in the retail sales business. Therefore, one should not put lot of stock in his assertion that he relied on having been told that the projections were ""scientifically"" done. Mr. Murphy, when asked in cross‑examination whether he disputed the accuracy of any of the projections, reiterated his evidence in direct examination that Mr. John MacDougall assured him that the retail sales should be 20% of wholesale. It is to be noted MacDougall's projections were based on more conservative figure of about 13%. He went on to say that Mr. MacDougall assured him that was all done from Toronto and that they had checked on the industry and that is ""exactly right and he laid any fears had to rest."" He was then asked if he ""discounted"" the information. He responded that he could not say that he did. He was then pressed on this matter with respect to the projected retail sales of $60,000.00 to $73,000.00.. He acknowledged that at the time he felt they were bit high. He was then asked if he discounted Mr. MacDougall's retail sales projections and he responded not totally. He was then asked whether he considered that if there was any shortfall he could make it up in his nuts and bolts business. He responded “I can’t say for sure that did, no."" After these self‑serving responses, he was then asked if he recalled giving evidence on discovery. He was confronted with the following: ""Q. Examination of these proceedings, 28th day of March, 1989 and do you recall page 35 of the transcript? I'll go back bit further, at page 31 being asked the question line 10 What was your reaction to those projections, did you make any comment? Answer: Such as? Question: Did you look at them at all? Answer: Oh yes, certainly. Question: Did you have them reviewed by anybody? Answer: Yes Wayne Nickerson who was former employee of Atlas and myself and Andy Nickerson who is an employee of Atlas, we all sat down and went over the figures. Question: And you felt they were acceptable? Answer: Yes. Question: Did you have any concerns about any of the numbers that were provided to you by Atlas? Answer: think we had concerns with the retail sales. Question: Did you express those concerns? Answer: can't say for sure. Question: So you may not have expressed those concerns? Answer: I'm sure we discussed it but to what length can't remember, okay. Question: Did you discuss it with Mr. MacDougall? Answer: Yes sir. Question: And your concerns is that because you felt the retail sales were too high or too low? Answer: Too high. Question: And what response if any do you recall if any that you got from Mr. MacDougall when you raised those concerns? Answer: can’t remember. Question: You don’t recall any response that he made? Answer: No don’t really. And further at page 33, line 7, Okay did you make any suggested changes in the numbers? Answer: No sir. And further at page 35 Question: So take it that in your own mind then that you discounted somewhat kind of revenue that was shown here for that part of the business? Answer: would guess that probably figured could make it up with my nuts and bolts. Question: Right, so that when you analysed or you saw what was coming you said that what's shown for wholesale looks reachable by yourself or obtainable? Answer: Yes sir. Question: What's shown for retail is too high but you would make it up on your other business? Answer: Yes. Question: So that in the bottom line it would work out to about what you have here? Answer: Close to what's here."" (My italics) It is clear that at the time of his discovery he could not remember what response Mr. MacDougall had given him when he raised concerns about the retail sales projections being too high. However, by trial, in his direct evidence and initial cross‑examination he seemed to have recalled in detail this conversation which has now taken on so much importance as to his reliance on Mr. MacDougall's assurance that the sales projections were reliable, had been done in the head office and that these assurances induced him to enter the franchise agreement. The trial judge does not make any reference to this cross‑examination.This is very relevant on the issue of unconscionability. Mr. Murphy finally acknowledged under cross‑examination, after being confronted with his discovery evidence, that he did discount the retail sales figures somewhat and acknowledged that he was confident at the time that he could have made up any shortfall in retail sales from his nuts and bolts business. He acknowledged that he had not done any studies himself about the retail side of the Atlas business and that he never raised the matter of the projections again with either Mr. MacDougall or Mr. Ritchie. Considering these extracts from Mr. Murphy's testimony, it is clear Mr. Murphy had reservations about the retail sales projections based on his experience and that of his associates. They were able to assess and did make their own assessment that the retail sales figures were high. Furthermore, Mr. Murphy ought to have realized from what Mr. MacDougall stated that there was not much ""science"" in the appellant's projection of retail sales. The appellant was relying on data from competitors and population statistics to make its projections and Mr. Murphy was so advised. would infer from the cross‑examination that Mr. Murphy was not particularly concerned about the retail sales as he felt any shortfall could be made up from his nuts and bolts business. He also testified that he had not given any thought to the manpower requirements of the business. He and his employees felt the wholesale sales were obtainable; they were former employees of Atlas' Yarmouth operation and would have been aware of any problems associated with that business and have feel for the manpower requirements. Mr. Murphy was not without resources to assess the merits of the proposed franchise. Assuming the conversation between Mr. Murphy and Mr. MacDougall took place as he testified in his direct examination, notwithstanding his direct evidence appears suspect as result of the cross‑examination, Mr. Murphy would have been aware that the figures for projected retail sales were simply based on population counts and information from competitors and should have realized their possible unreliability. will now deal in more detail with projections of profitability as it relates to the issue of unconscionable conduct. Mr. MacDougall as the Atlantic Regional Manager worked out projections that showed the Yarmouth franchise operating by itself could make return of $33,000.00 year. Mr. Murphy was given the $33,000.00 projection. In January, 1986, after talks had been initiated with Mr. Murphy to grant him the franchise to be operated in conjunction with Yarmouth Equipment Limited, Mr. Ritchie revised his projections and, based on three‑man operation in Yarmouth, calculated profit of $19,000.00 on retail sales of $60,000.00 and wholesale of $550,000.00. This is not at all that far off the return of $33,000.00 per year as projected by Mr. MacDougall with the franchisee working full time. The investment required to set up in Yarmouth was $106,000.00. When considered in relation to the sales volume required to generate these various profit projections, there is not significant variance between any of the profit projections and it does not seem to me that very much should turn on the failure of Mr. MacDougall to have shown Mr. Murphy the original projection of Mr. Ritchie of profit of $11,000.00, particularly where Mr. Ritchie had revised his projection of profit to $19,000.00 plus the fact that the situation had altered so much since that figure was initially calculated as the franchise was to be operated with an existing business. The appellant had no experience in retail sales. Mr. Murphy knew this. He was advised how Mr. MacDougall arrived at his projections. As businessman, he ought to have realized, and in my opinion from review of his testimony did realize, the possible unreliability of these sales forecasts. The appellant was not an established franchisee operator; Mr. Murphy knew this was new venture for the appellant. Business involves risks and sales forecasts are always speculative. Mr. Murphy himself had projected substantial profit on his nuts and bolts business. As it turned out, he too was very wrong. No doubt Yarmouth Equipment Limited failed for number of reasons. Some insight as to the failure of Yarmouth Equipment Limited can be gleaned from review of proposal made on January 26, 1987, by R. W. Murphy, the then Atlantic Regional Manager of the appellant, to his head office. He proposed that because of the financial difficulties of Yarmouth Equipment Limited, the appellant should forego interest charges on Yarmouth Equipment Limited's overdue accounts payable. In his proposal, he set out the justification for this request and, in doing so, commented on the operation of Yarmouth Equipment Limited over the previous year. He stated: ""In April 1986, Jack Murphy owner of Yarmouth Equipment Limited became the Atlas Franchisee for the Yarmouth area. Yarmouth Equipment handles industrial hoses nuts and bolts and it was felt this business and the Atlas franchise would complement each other. The Yarmouth Atlas franchise with its low volume was marginal and it was felt the two businesses combined would make reasonable return. Mr. Murphy is very well‑known in the area and this was obvious by the sales improvements seen after he took over. Unfortunately, for personal reasons, Mr. Murphy had to move to Ottawa in August and has been an absentee owner since then. His staff however is very competent (ex‑Agent and ex‑Agency counterman) thus the strong sales have continued. Surprisingly, an income statement for Yarmouth Equipment for the year ending October 31, 1986 revealed the company had lost $85,685 in its first 12 months (see attached). On review of these statements it was realized that Yarmouth Equipment had lost approximately $40,000 prior to becoming an Atlas Franchise and these losses continued to grow to year end. When the writer reviewed the statements on December 15, it was found that the nuts and bolts operation had yielded only $65,000 in sales versus annual projections of $250,000. The Atlas wholesale sales volume for the first seven months totalled $321,000 or $500,000 annualized which was slightly short our pro forma projections of $550,000 but 25% greater than 1985. The retail side of the business fell horrendously short of sales projections at $3,200 for seven months versus $35,000."" (my italics) It is to be noted that it had been the appellant's view that the Yarmouth franchise, when combined with Yarmouth Equipment Limited's nuts and bolts business, would make ""reasonable return"" rather than simply marginal one. This is significant because the learned trial judge seems to imply in his decision that the appellant, seeing that Mr. Murphy had some means, duped him into taking on its failing Yarmouth business and if it failed, Murphy would be liable. This report shows the appellant expected the franchise would make reasonable return. It is also of great significance that Mr. Murphy's projected sales for the nuts and bolts business of $250,000.00 were never met; in fact, the shortfall was almost $200,000.00 for the year ending October 31, 1986. The shortfall in projected retail sales for the franchise operation for the seven months was just over $30,000.00. It is obvious that sales in both businesses never reached projected levels; that is not uncommon. However, Mr. MacDougall's projection of wholesale sales, which was more optimistic than Mr. Ritchie's initial projection of October, 1985, was as accurate as Mr. Ritchie's initial projection which showed Ritchie projected an increase from $445,000.00 wholesale to $464,000.00. MacDougall projected increases to $550,000.00. Based on the seven month figures, the annual sales would have worked out to about $500,000.00. Projecting sales is difficult even in business one knows, let alone new business. Mr. R. W. Murphy, in his report, pointed to several causes of Yarmouth Equipment Limited's financial problems, including ""poor sales on the equipment side""; ""the lack of well planned business strategy and operating guidelines had left the business rather vulnerable in Mr. Murphy's absence"" and ""inefficient accounting"". The major problem in Yarmouth Equipment Limited was the fact that the sales of the nuts and bolts business were so far below the projections of the respondent Murphy. Not only could the sales from the nuts and bolts business not supplement the marginal profits of the franchise business as Mr. Murphy had anticipated, but were resulting in substantial losses in Yarmouth Equipment. The respondent Murphy was apparently unaware of this when he entered into the franchise agreement. It would appear his business was not well run. The fact is that Mr. Murphy had entered into two new ventures and it would appear in hindsight that he made two bad business judgments. As. to the conduct of the appellant, it does not seem to me that deficient judgment in projecting sales and profits for new ventures or the failure to put before Mr. Murphy all their projections before he signed the franchise agreement can be equated with unconscionability. By the time the appellant began to talk to Mr. Murphy, the Ritchie projection of $11,000.00 profit was obsolete as it was made on the basis of franchise operated on its own and on the basis of wholesales estimated by Mr. Ritchie which, as it turned out, were below what was achieved over the first seven months. Furthermore, Mr. Ritchie in January, 1986, had revised the return on investment to $19,000.00. The trial judge found ""the projections of MacDougall were inaccurate as to expenses and grossly inaccurate as to retail sales and profits."" As have previously noted, deficient judgment in forecasting of sales does not equate with unconscionability. Furthermore, the fact that the business lost money was not solely related to the inaccurate retail sales forecast for the franchise operation. The trial judge found that MacDougall knew that Murphy was relying on the financial forecasts and that MacDougall intended that he do so. Again, in my opinion, that does not constitute conduct which can be equated with unconscionability. Mr. Murphy was businessman familiar with the Yarmouth area. The retail sales were but small percentage of the total franchise business which was primarily focused on wholesale. Mr. Murphy had in his employ two former employees of Atlas who would be familiar with the wholesale side. It was the shortfall in sales of the nuts and bolts business that appears to have been the primary cause of the failure of Yarmouth Equipment Limited. There was never any suggestion by the appellant's representatives that the projections of sales and profitability were guaranteed; projections never are and every businessman knows how unreliable projections can be. do not attach any significance to the fact Mr. Ritchie did not testify as the respondents had merely alleged ""collateral warranties"" at trial. Certainly, Mr. Ritchie, who had met Mr. Murphy only once, had not made any such warranties. Therefore, there was no particular reason to call him in view of the fact the appellant had written agreement stating there were no such warranties. Nor do attach great deal of significance to the fact that Mr. MacDougall was more optimistic in his projection of wholesale sales than Mr. Ritchie. His projections turned out to be at least as accurate as Mr. Ritchie's. Nor do consider it significant that the projections of retail sales, about 13% of wholesale, were little more than guesses as the appellant had not been in the retail sales and was relying on information from others and, most importantly, this was known to Mr. Murphy. do not consider it significant that Mr. MacDougall's projection of $33,000.00 profit did not provide in the expenses for salary for the franchisee, even though it was anticipated he would work full time. There was no suggestion made to him that he would not have to work. do not consider it significant or, for that matter, relevant that Mr. MacDougall did not advise Mr. Murphy what Mr. Ritchie had initially projected as profit as this projection was based on conservative wholesale sales volumes and on the basis of the franchise being operated by itself. do not attach any significance to the fact that MacDougall did not tell Mr. Murphy that sales in the Yarmouth agency had been declining in recent years. Mr. Murphy's employees would have known this and Mr. Murphy discussed this with them and they collectively thought the MacDougall wholesale sales projections were attainable. It is neither significant nor relevant that Mr. Ritchie did not question if Yarmouth Equipment's existing business was, to use that vague phrase, ""viable"". It is of no great significance that the material in the brochure prepared by Mr. MacDougall was intended to induce persons to enter franchise agreement. There was nothing fraudulent about the information; it was MacDougall's forecast of what was attainable in sales and profits and as subsequently shown was not out of line with Mr. Ritchie's revised projection of $19,000.00 profit with three employees. With respect, differ with those who attach significance to the foregoing points. The projections were never put forward as anything but projections. As to their having been prepared scientifically in the head office, Mr. Murphy in testifying on this subject stated he was not sure whether Mr. MacDougall had told him the projections had been prepared by himself or head office. Whether prepared by Ritchie or MacDougall before the franchise agreement was signed, both had come to the same conclusion that the franchise, operated in combination with Yarmouth Equipment, could make reasonable return. As it turned out, they were wrong in their forecasts for the franchise agreement just as Mr. Murphy was wrong in his forecast for the nuts and bolts business. The respondent Murphy had an opportunity to review the franchise agreement as he had received it month before it was executed. He had an opportunity to consult with his lawyer respecting its terms which, as have noted before, were very clear. His lawyer, who happens to be his brother, witnessed the execution of the franchise agreement. In short, Mr. Murphy was an experienced businessman familiar with the Yarmouth area and it is reasonable to infer he knew that the projections of the appellant respecting sales were just that, ""projections."" He knew the appellant, having previously been only involved in the wholesale business, had no prior experience in retail sales of its products. Most importantly, the respondent Murphy was under no pressure to sign the franchise agreement as presented; he could have walked away from the transaction. He did not request that the projections of sales and profits be incorporated as warranties or guarantees into the franchise agreement. He had full freedom of contract. Sales and profit projections made by the franchisor are not normally warranted by the franchisor. On its facts, the case is not unlike that of 447927 Ontario Ltd. v. Pizza Pizza Ltd. (1987), 1987 CanLII 4332 (ON SC), 44 D.L.R. (4th) 366. In that case, the learned trial judge dismissed the franchisee's claim for breach of collateral warranty re sales forecasts by the franchisor. He stated at p. 375: ""This clause must be considered in deciding whether warranty should be found (quite apart from any result the clause might have upon the right to enforce warranty, if one were found). It seems to me more difficult to conclude that collateral oral warranty was intended, when, after it was alleged to have been made, formal written agreement was submitted for consideration by the plaintiff, was negotiated and amended, and ultimately executed, containing clause flatly asserting that no warranty had been made. It is significant that in Esso the agreement contained no such clause. Had it done, in the light of what was said by Shaw L.J. at p. 833 supra, the result might have been different."" Counsel for the respondents focuses on the inequality of the parties large national company with international connections versus small businessman and failure of MacDougall to have advised Mr. Murphy that Mr. Ritchie initially had estimated that the Yarmouth franchise would only produce profit of $11,000.00. For the reasons have set out, this information had become irrelevant before the franchise agreement was signed. There is always degree of inequality in the bargaining position of parties to contract; that is insufficient reason standing alone to set aside business contract on the ground of unconscionability. If that were the case, business would become impossible. The Courts have always required more; there must be something that would make it unconscionable to enforce the right of the stronger party. Before Court should refuse to enforce clear terms of contract on the ground of unconscionability, there not only must be marked inequality in the bargaining position of the parties due to ignorance or distress of the weaker but the contract must be ""substantially unfair"" and the stronger party has taken such advantage of the situation that it would be ""unconscionable"" to enforce it. Morrison v. Coast Finance Ltd. et al. (1965), 1965 CanLII 493 (BC CA), 55 D.L.R. (2d) 710. The respondents' position is that the appellant's conduct in putting forward the MacDougall sales and profit projections while not advising Mr. Murphy about Ritchie's initial projections was unconscionable to the point that the clauses in the franchise agreement stating there were no such warranties should be set aside. This leads to the question what was the conduct of the appellant that should require this Court to refuse to enforce the clear terms of the franchise agreement. Was it the fact that the appellant's representatives did not advise Mr. Murphy of Mr. Ritchie's initial doubts about the profitability of the franchise operating alone? In my opinion, clearly not. have dealt with this issue. Was it the fact the representatives did not advise Mr. Murphy that, in their opinion, for the franchise agreement to be ""viable"" (whatever that means), it required the full time participation of the franchisee? That cannot be the case; it would have been apparent, from the face of the projections which showed two employees were required. No one represented to Mr. Murphy he would not have to work to earn the $33,000.00 profit MacDougall projected. Mr. Ritchie's revised figures showed the franchise would produce $19,000.00 annual profit while allowing for three employees; reasonable return on an investment of $106,000.00. This would provide for the hiring of the three persons needed to operate the business while Mr. Murphy could provide some overall supervision. Was there an obligation to advise Mr. Murphy that Mr. Ritchie had revised his figures to reflect the reality of the deal being struck with Mr. Murphy which showed profit of $19,000.00? think not; this was reasonable return on investment for Mr. Murphy and not out of line with MacDougall's projection of return of $33,000.00 with the franchise participating full time. In short, the appellant, prior to signing the franchise agreement with the respondents, had come to the conclusion that the franchise agreement, operating in combination with the existing business, could provide reasonable return to the franchisee. Was it the fact that the appellant's representatives did not tell Mr. Murphy the business may not have been very profitable as stand alone? No, because it was not going to operate as stand alone business. Was it unconscionable not to have advised Mr. Murphy that the projected profit of $33,000.00 as made by Mr. MacDougall was higher than that initially projected by Mr. Ritchie. think not. Who is to say that Mr. Ritchie's initial opinion sitting in the head office in Toronto was more valid than the Atlantic Regional Manager's. They were just opinions and never put forward as anything but opinions. In fact, after meeting Mr. Murphy, his revised projection showed return of about 18% on investment for Yarmouth Equipment. Was it unconscionable not to suggest to Mr. Murphy that whether the return was $11,000.00, $19,000.00 or $33,000.00, it may not have been particularly good return considering the risks and the investment of time and money. The answer must be no. Mr. Murphy could assess that for himself. Was it unconscionable not to advise Mr. Murphy that he should question the retail sales forecasts? The answer must be no. Mr. Murphy, being an experienced businessman, would know that such forecasts are not always reliable and knew the potential unreliability of the retail sales forecasts as based on information from competitors. Also, he felt any shortfall could be made up from the nuts and bolts business so he was not concerned. These were assessments Mr. Murphy had to make. Finally and most importantly, was it unconscionable to have provided in the franchise agreement that the sales and profit projections were not warranted when no such warranty had been given during the discussions between the appellant's representatives and Mr. Murphy prior to signing the franchise agreement? The answer must be no; the projections were merely estimates of what the representative of the appellant felt the business if operated properly could achieve. No reasonable person would consider them to be anything but estimates. The franchise agreement was not unusual in not guaranteeing projections of sales or profits and in stating that it constituted the entire contract between the parties. This was standard commercial franchise agreement and, applying the test developed by Lambert, J.A., in Harry v. Kreutziger (1979), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231, the transaction was not sufficiently divergent from community standards of commercial morality that it should be set aside. An intervention by the Court in this case would not on this test appear to be warranted. At the time the franchise agreement was signed, there did not exist on the facts of this case what Robert Flannigan in an Article entitled ""The Judicial Regulation of Exculpatory Clauses"" in (1990), 69 .C.B.R. 514 referred to as ""severe situational disability"". The respondents cannot, on the facts of this case, come close to meeting any of the tests for setting aside contracts on the ground of unconscionability as set out in the cases referred to in Stephenson v. Hilti (Canada) Ltd. (1990), 1989 CanLII 191 (NS SC), 93 N.S.R. (2d) 366. Mr. Murphy was an experienced businessman; he knew the basis upon which the ""projections"" were made; there was no compulsion to sign and the terms of the agreement were clear. Applying another recognized test although there was degree of inequality between the parties, there was nothing ""substantially unfair"" about not guaranteeing sales volumes or profits. No one would expect sales and profit projections to be guaranteed by the franchisor and it is perfectly reasonable for franchisor to provide that such projections are not warranted as success of the franchise depends on the way in which the franchise is operated. The failure to advise Mr. Murphy of Mr. Ritchie's initial projections was not unconscionable under the circumstances. In summary, and with respect, the learned trial judge was in error in finding collateral warranty on the evidence and in face of the clear terms of the franchise agreement that there were no such warranties. Secondly, in my opinion, considering all the circumstances of this case, the respondents have fallen far short of proving the franchise agreement was unconscionable. THE RESPONDENT MURPHY'S GUARANTEE The learned trial judge found that Yarmouth Equipment Limited was liable to the appellant for the sum of $206,344.00 but found the respondent Murphy, despite the broad terms of the guarantee that he signed as part of the franchise agreement, was not liable. The terms of the guarantee signed by the respondent Murphy for the obligations of Yarmouth Equipment Limited to the appellant were, as one would expect, comprehensive. Those provisions relevant to the issues raised on this appeal are contained in paragraph 15.04 of the franchise agreement, subparagraphs (a), (b), (c) and (f) of which set out as follows: ""15.04 Guarantee In consideration of the sum of Two ($2.00) Dollars and good and other valuable consideration now paid by ATLAS to the Guarantor, the receipt of which and the adequacy of which is hereby expressly acknowledged by the Guarantor, and in consideration of ATLAS entering into this Agreement at the specific request of the Guarantor, to the extent that the Guarantor shall become primarily liable under the provisions hereof to ATLAS as if it were the Franchisee in this Agreement, the Guarantor hereby agrees as follows: (a) Guarantor guarantees to ATLAS the due payment by the Franchisee of all monies payable under this Agreement by the Franchisee to ATLAS at the time or times appointed therefor, and the due observance and performance by the Franchisee of all the covenants, terms, provisions, stipulations, agreements and conditions contained in the Agreement and on the part of the Franchisee to be observed and performed; (b) this shall be continuing guarantee and shall be binding upon the Guarantor as well after as before default until all monies due under this Agreement have been fully paid and satisfied, and all covenants, terms, provisions, stipulations, agreements, and conditions have been fully observed, performed, and carried out; (c) ATLAS shall not be bound to exhaust its recourse against the Franchisee before requiring payment of any monies or the observance or performance of any obligation by the Guarantor; (f) neither release or releases, indulgence or extension of time or waiver granted by ATLAS to the Franchisee with respect to the observance or performance of this Agreement, or any defaults or breaches thereunder on the part of the Franchisee, nor any dealings between ATLAS and the Franchisee shall in any way prejudice ATLAS or modify, alter, diminish or affect the liability of the Guarantor under this Agreement; ..."" The learned trial judge not only concluded that the respondent Murphy was discharged from his guarantee, despite finding Yarmouth Equipment Limited liable, but went on to find that the appellant was liable in damages to the respondent Murphy for the sum of $23,500.00 to reimburse him for $7,000.00 franchise fee paid to the appellant and $16,500.00 incurred as franchise start‑up expenses. This finding was made even though there was no counterclaim for reimbursement of these expenses. Furthermore, the pleadings did not allege that the appellant had breached the franchise agreement in its dealings with Yarmouth Equipment Limited's inventory after the decision was made to close out Yarmouth Equipment Limited because of the losses it was suffering in both operations. In order to deal with this issue, it is necessary to set out in full that part of the learned trial judge's decision relating to these findings. He dealt with these issues starting at p. 29 of his decision under the heading of Damages: ""DAMAGES: find the measure of damages to be the loss suffered by the parties. THE DEFENDANT YARMOUTH EQUIPMENT: It operated about two months before the Atlas franchise came on. It was thought that it would probably have loss in the first year. Instead of modest loss, as forecast, it was massive. It may be that too much effort was made by staff to start up the Atlas franchise thus depriving it of the attention it would have had if Atlas was absent. The projections for the Company may have been overly optimistic. The months prior to Atlas were not successful. In fact Robert Murphy said the losses were $40,000.00 (Tab 9). That being the case it was doomed to failure regardless of Atlas. The proceeds of the liquidation sale were used to pay down the bank indebtedness. Even with that Murphy was required to honor his personal guarantee to the tune of $70,000.00. Personnel of Atlas attended the sale. [p. 30] Atlas was not interested in taking the stock back. The bank had security which it was prepared to waive to permit Atlas to take the stock back. As of December 31, 1986 the Company had total assets of $174,700.00 including inventory of $90,000.00. This defendant cannot put the plaintiff back in its original position as it cannot now return the inventory. It had the inventory and had the use of it. It would not be reasonable or conscionable to permit it to retain the inventory without compensating the plaintiff for that inventory. The value of the inventory as realized from the liquidation sale was used for the credit of this defendant at the Bank. This defendant had its statements merged with Atlas and cannot accurately tell what it owed the bank for the 'nuts bolts' operation. The amount of the plaintiff's claim is not in issue. am unable to say that the loss of the Yarmouth Tourist Association loan was solely attributable to the plaintiff. The plaintiff shall recover judgment against this defendant for $206,344.00 (the sum agreed upon by counsel). LOSS TO THE DEFENDANT MURPHY: [p. 31] Murphy was required to pay out on his personal guarantee to the Bank. This entailed $73,640.00 raised by mortgage and cash. The defendant submits that it was the merger with Atlas which brought Yarmouth Equipment down. do not believe that was the case. consider Yarmouth Equipment was not viable before the merger and of course less viable after the merger. consider most of the debt arising from the Atlas franchise was owed to Atlas. It purchased all or nearly all of its stock from Atlas. The stock for its nuts and bolts operation was purchased through its credit arrangement with the bank. Atlas had the opportunity to have its account reduced by taking back inventory. It was not prepared to do so. Had it done so rather than expose the stock to the liquidation sale and its reduced prices the amount owing to Atlas would be less than at present. It did so to the prejudice of Murphy as guarantor. Atlas put the franchise on C.O.D. basis in January, 1987. Notice of default was given on February 12, 1987. Under Article 16.05 the plaintiff had the obligation to take back the inventory at the current sale price less restocking charge. [p. 32] Murphy said the bank was prepared to waive its lien and the evidence disclosed no other encumbrances to 'good and marketable title'. find in failing to do so the plaintiff has acted in way which has compromised the rights of the guarantor. The details of the liquidation sale are not in evidence. The evidence was that the normal retail sales for the inventory were not there. The liquidation sale was reasonable act after the refusal of Atlas to take the inventory back. There was no suggestion that the defendants squandered the profits or the proceeds of the sales. In The Law of Guarantee, McGuinnes, Article 10.57 (page 283): 'A creditor must deal with security in reasonable manner so as to ensure that the maximum amount is derivable from it to satisfy the guaranteed debt'. find the failure of Atlas to accept the inventory was unreasonable. accept the evidence of Murphy that it was twice offered to Atlas with the bank's encumbrances waived. In the circumstances here find the Defendant Murphy discharged from his guarantee. dismiss the claim against Murphy. COUNTERCLAIM OF MURPHY: [p. 33] The defendant Murphy shall recover from the plaintiff his payment of $7,000.00 for the franchise and the sum of $16,500.00 which he paid for start‑up expenses of the franchise including renovations to meet the requirements of Atlas and the sign. accept the evidence of Murphy on these expenditures which were well detailed in his very thorough cross‑examination. He shall have pre‑judgment interest. will hear counsel orally or by letter on the relevant date and percentage. COSTS: The plaintiff shall have its costs of the action against the defendant Yarmouth Equipment. The defendant Murphy shall have his costs of his defence of the plaintiff's claim and on his own counterclaim."" (my italics) The appellant argues that the learned trial judge misconstrued the evidence in reaching his conclusions that the respondent Murphy was not liable on the guarantee of Yarmouth Equipment Limited's debts to the appellant. In addition to the part of the learned trial judge's decision have just set out, the learned trial judge had stated at p. 15 of his decision: ""Murphy said he offered to return the stock to Atlas. He made arrangements with the bank that it would permit the return as the bank held some security. However, Atlas was not prepared to take the stock back. He said the stock, clear of encumbrances, was twice offered to Atlas and twice refused. This was not contradicted."" (my italics) The learned trial judge found that under Article 16.05 the appellant had an obligation to take the inventory back. Clause 16.05 provides: 16.05 Purchase of Identified Inventory Within ten (10) days from the expiration or other termination of this Agreement and provided the Franchisee can pass good and marketable title to ATLAS, the Franchisee agrees to sell and ATLAS agrees to purchase the Franchisee's fully paid inventory of Automotive Products at ATLAS' then current sale price to the Franchisee plus applicable taxes less any restocking fee in effect at the time and freight costs on the purchased inventory. ATLAS' obligation to purchase the Franchisee's inventory of Automotive Products shall extend only to those products which were previously purchased from ATLAS and, in ATLAS' discretion, are in saleable condition at the time of the expiration or other termination of this Agreement (the 'Identified Inventory'). ATLAS may exclude from such assets to be purchased hereunder any assets which in the sole opinion of ATLAS are obsolete, damaged or otherwise not in marketable or useable condition. The Franchisee covenants and agrees that ATLAS shall have thirty (30) days from the date of the delivery of the Identified Inventory in which to make the payment contemplated above. ATLAS has the right to set‑off this payment obligation against any other indebtedness owed to ATLAS by the Franchisee, and ATLAS shall be entitled to enter the Premises of the Franchisee and perform any audit and inspection of the inventory it deems necessary to protect its rights herein. Any transfer and sale of the Identified Inventory shall include such instruments of conveyance and transfer as may be effective to vest good and marketable title in ATLAS free from all liens, charges and encumbrances. The Identified Inventory shall not include any inventory that should have been previously cleared in accordance with ATLAS' exchange and return policies. Any purchase and sale completed by ATLAS pursuant to this Section 16.05 shall be completed in accordance with applicable bulk sales legislation."" (my italics) In summary, under this clause the parties agreed that on the termination of the franchise agreement, the respondent Yarmouth Equipment Limited would sell, and the appellant would purchase, the inventory provided Yarmouth Equipment Limited could transfer the inventory free from encumbrances. There is no dispute that the inventory had been pledged to Yarmouth Equipment Limited's bankers to secure its substantial bank loan. After finding that the bank was prepared to waive its lien, the learned trial judge concluded that in failing to purchase the inventory under Clause 16.05 of the franchise agreement, the appellant acted in way that compromised the guarantor. The learned trial judge then stated that the liquidation sale which Mr. Murphy decided to have was reasonable act after the appellant's refusal to take the inventory back. The learned trial judge concluded this issue by finding the appellant's failure to accept the inventory was unreasonable and that he accepted the respondent Murphy's evidence that the inventory was ""twice offered to Atlas with the bank's encumbrance waived."" The learned trial judge then found that, in the circumstances, the respondent Murphy's guarantee of the Yarmouth Equipment Limited debt was discharged. review of the transcript of evidence reveals the fact findings which formed the basis for discharging the respondent Murphy from his guarantee are not supported by the evidence. On the contrary, the evidence leads to only one inference: the appellant was never advised the bank was prepared to waive its charge on the inventory and thus enable the respondent Yarmouth Equipment Limited to sell the inventory to the appellant pursuant to Clause 16.05. During the cross‑examination, Robert W. Murphy, the Atlantic Regional Manager of the appellant who was responsible for the dealings of the appellant with Yarmouth Equipment Limited at the time it ceased to do business, having succeeded Mr. MacDougall, was asked about the liquidation sale being held by Yarmouth Equipment Limited: ""Q. In fact he was holding liquidation sale wasn't he? A. Yes. Q. And he, at one point, offered to deliver this inventory back to Atlas didn't he? A. No, no the bank had taken that sir. Because I, in fact, in one of my communications, asked to let us know if he wanted to exercise his right to take it back. We wouldn't be out $100,000 today. We would have wanted to take the inventory. The bank seized it, it was my understanding."" (my, italics) In light of this evidence, the learned trial judge was in error when he stated at p. 15 and p. 32 of his decision that there was uncontradicted evidence that the inventory was twice offered to the appellant free from encumbrances and twice refused. During direct examination of the respondent Murphy, he was asked the following line of questions regarding whether he had offered to sell the inventory back to the appellant: ""Q. Alright, in March then you say you made the decision to come down and close the business out and you informed Mr. Murphy. What were the next steps you then took to liquidate the business? A. Well started an advertising. put an ad in the paper that we were going out of business sale and that we were selling goods at cost or below cost. Q. Do you recall whether you or someone on your behalf, ever offered to sell the stock back to Atlas? A. Yes. Q. What happened there? A. advised my lawyer, at least on two occasions, to contact Atlas and to offer all the stock to them; that would have been much much easier for me than to go down and have liquidation sale. So offered whatever was left, to Atlas, on, believe, two occasions and they refused. Q. This was your brother Rick was it that did that? A. That's correct. Q. Alright, was this, take it from what you say, was before the liquidation sale was it? A. This was just before the liquidation sale, yes. Q. Alright, so in any event, you liquidated it and closed the premises down and that was the end of it was it? A. That's correct."" This evidence that the inventory had been twice offered to the appellant and refused by it was, of course, hearsay but it indicates the inventory was supposedly offered to the appellant before the liquidation sale and the appellant supposedly refused. The respondent Murphy's lawyer was not called by the respondents to testify on this matter. On cross‑examination, the respondent Murphy's evidence on this subject was far from persuasive. He was asked: ""Q. Your direct evidence believe was, you requested your lawyer, your brother, ... A. Yes. Q. ...to see if Atlas would take the product back? Q. Did you receive any confirmation that such request had been made? A. No other than the fact that my brother told me that they said they couldn't take it back guess. Q. They couldn't take it back? A. That's right. Q. And, guess that would indeed be, be correct would it not, Atlas could not legally take it back? A. Sure they could. Q. You had given an account, assignment of inventory to your bankers? A. That's right. Q. This was your inventory? Q. And what makes you say sir that he could have given the inventory back to Atlas? A. Because I, had talked to the Bank Manager and he said it was my inventory and he was willing to let it go back. There was no, he was not going to put hold onto it. That's why offered to send it back. Q. So you went to your Bank Manager? A. But obviously, from what got from my brother was, it was Atlas's opinion that they could not take it and that's why they would not take it. Q. Did you, did you tell Atlas that your Bank Manager had agreed to give it up? Give any claim it had on it? A. I'm not sure if did, no. At that point it was my brother that was talking to Atlas. Q. Alright. Did you tell your brother to make sure that Atlas was told that, that the bank had no problems? A. can't say that did no. Q. And Mr. Murphy was in there during the, the close‑out sale? Q. And you didn't mention it to him? A. No. No. mean we were too far along guess in the close‑out sale at that point. Q. Mr. Murphy took back the, the defective products? Q. He had no problems with that? No. Q. And, did you have anything in writing from your Bank Manager that it could be released to Atlas without any claim? Q. But the assignment of inventories that signed with the bank as shown in your financial statements was still, actually in place? A. would imagine yes."" (my italics) It is clear from this evidence that the respondent Murphy could not even say if he had told his brother, who was dealing with the appellant, that the bank had agreed to give up its charge on this inventory. It will become apparent from the following testimony that the respondent Murphy was not at all sure the bank manager was prepared to forego the bank's claim on the inventory: ""Q. Did he tell you that the bank waived any claim to the proceeds of that inventory? A. I, don't think so. Q. He just said you could send it back to Atlas? Did he say that the assignment of inventories the bank had under the Bank Act was waived? A. can't recall if he said, you know like that. Q. Or released? No. Q. And, by you having that product and receiving some, some monies, meant that you were able to reduce your indebtedness to the bank? A. guess that's what he was relying on because as sold product brought the money to the bank."" (my, italics review of this evidence reveals that Yarmouth Equipment Limited held liquidation sale and the money realized was applied against the bank debt that was secured by Yarmouth Equipment Limited's inventory. There is no admissible evidence that the inventory was ever offered to the appellant before the liquidation sale or at any time, let alone twice as found by the learned trial judge. There is no evidence that the appellant was advised the inventory would be offered to the appellant free from the bank's charge; on the contrary, the respondent Murphy testified he did not know if the bank was prepared to release its charge. In fact, the money realized from the sale of Yarmouth Equipment Limited's inventory was paid to the bank, thus reducing the respondent's liability under the guarantee he had given to the bank. There was no admissible evidence that permitted the learned trial judge to find as he did that the inventory, clear of encumbrances, was twice offered to the appellant and ""twice refused"" before the liquidation sale. The evidence points conclusively to decision by the respondent Murphy to have liquidation sale and pay down Yarmouth Equipment Limited's bank loan which he had guaranteed. Had the bank waived its lien and the inventory returned for credits against the respondents' debt to the appellant, the respondent Murphy would have been liable for an even greater amount than he was required to pay to Yarmouth Equipment Limited's bankers under his guarantee of its debt to the bank. The learned trial judge apparently accepted the hearsay evidence of the respondent Murphy that his brother had offered the appellant the inventory notwithstanding it was hearsay and notwithstanding the doubts the respondent Murphy had as to whether he even told his brother the bank was prepared to waive its charge against the inventory. His doubt is easily understood as the respondent Murphy acknowledged under cross‑examination that he did not know if the bank was prepared to waive its charge on the inventory. In fact, the bank took all the money realized from the sale of the Yarmouth Equipment Limited inventory. Both the appellant and the respondents knew the bank had charge on the inventory and that Yarmouth Equipment Limited was not in position to offer the inventory to the appellant unless the bank waived its claim. There is no evidence that this ever happened, yet the learned trial judge made such finding at several points in his decision and, most particularly, immediately before he stated at p. 32 of his decision that in the circumstances the respondent Murphy was discharged from his guarantee. The duty of an Appeal Court where the appellant asserts that the findings of fact made by the trial judge are not supported by the evidence is described by Ritchie, J., in Stein v. The Ship ""Kathy K"", 1975 CanLII 146 (SCC), [1976] S.C.R. 802, at p. 808: ""These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to be reversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts. While the Court of Appeal is seized with the duty of re‑examining the evidence in order to be satisfied that no such error occurred, it is not, in my view, part of its function to substitute its assessment of the balance of probability for the findings of the judge who presided at the trial."" The trial judge's findings on this issue are not supported by the evidence and therefore cannot stand. Under the terms of Clause 16.05, the appellant had an obligation to purchase the inventory on termination of the franchise agreement, provided the inventory could be transferred to the appellant free from encumbrances. The respondents could not comply with the terms of Clause 16.05 without obtaining release of the bank's charge; that was not done. The respondent Murphy elected to liquidate the inventory and pay down Yarmouth Equipment Limited's bank loan which he had guaranteed. Under the circumstances, there was no obligation on the appellant to purchase the inventory. Therefore, with respect, the learned trial judge was in error when he found, based on his finding that the appellant had acted unreasonably in not accepting the inventory, that the respondent Murphy was discharged from his guarantee to the appellant of the Yarmouth Equipment Limited's debt. It is not necessary to deal with other provisions of the guarantee which clearly state that the guarantor Murphy was not relieved of his obligations under the guarantee, notwithstanding how the appellant dealt with Yarmouth Equipment Limited. The terms of the guarantee are very clear. The respondent Murphy is liable for the full amounts owing by Yarmouth Equipment Limited to the appellant under the franchise agreement. The respondent Murphy is therefore liable for the amount the parties agreed was owing by Yarmouth Equipment Limited, $206,344.00. The Order of the trial judge should be set aside. There was no basis for the trial judge finding the appellant was required to repay to Murphy the amount he paid for the franchise and start‑up expenses totalling $23,500.00. The Order granted after trial provided that the appellant would have judgment against the respondent Yarmouth Equipment Limited in the amount of $206,344.00. This figure had apparently been agreed to by the parties. The Order is dated June 14, 1990. would assume that it would be inclusive of pre‑judgment interest as there was no reference in the Order to pre‑judgment interest other than in respect to the respondent Murphy's counterclaim. The appeal should be allowed and the appellant should have judgment against the respondent Murphy in the amount of $206,344.00 with interest in accordance with the Interest on Judgments Act, R.S.N.S. 1989, c. 233, from June 14, 1990. The appellant should have its costs at trial and on appeal against both Yarmouth Equipment Limited and John M. Murphy. Hallett, J.A. 1987 S.H. No. 61042 IN THE SUPREME COURT OP NOVA SCOTIA TRIAL DIVISION BETWEEN: ATLAS SUPPLY COMPANY OF CANADA LIMITED, body corporate, and YARMOUTH EQUIPMENT LIMITED, and JOHN M. MURPHY, Defendants HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice William J. Grant, Trial Division, on January 10, 11, and February 9, 1990. DECISION: April 4, 1990 COUNSEL: P. McLellan, Esq., B. Miller, Esq., for the plaintiff D. A. Caldwell, Q.C., D. J. James, for the defendants S.C.A. No. 02318 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: ATLAS SUPPLY COMPANY OF CANADA LIMITED, body corporate and YARMOUTH EQUIPMENT LIMITED, and JOHN M. MURPHY Respondent REASONS FOR JUDGMENT BY: MATTEWS, J.A.","The appellant, which was a wholly owned subsidiary of a major international company, induced the respondent to enter a franchise agreement by making representations as to the viability of the venture. The appellant sought to recover its losses from the respondent and relied on an exclusionary clause. Allowing the appeal in part, that (1) the agreement was unconscionable, having regard to the unequal bargaining power of the parties, the fact that the agreement was prepared by the appellant, and the fact that the appellant induced the respondent with its promotional brochure and its verbal representations as to the venture's viability to enter the franchise agreement; (2) the appellant cannot rely on an exclusionary clause given its unconscionable conduct; and (3) the appellant's claim for the value of the inventory together with pre-judgment interest was payable by the respondent. In a dissenting opinion, it was held that neither the appellant's conduct nor the franchise agreement was unconscionable; rather the respondent was an experienced businessman and the representations as to the venture's viability were mere projections, which he should have realized were unreliable.",d_1991canlii2552.txt
96,"J. Q.B.G. A.D. 1995 No. 3050 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: THE OWNERS: CONDOMINIUM PLAN 84R16835 and JEFFREY JAMES SOUTH, KAREN JOAN RILKOFF, WESTERN LITHO LIMITED, GORDON JAMES KEIR NEILL, THE ROYAL BANK OF CANADA, HELEN RILKOFF, KEVIN JACQUES, and BALFOUR MOSS and JEFFREY JAMES SOUTH and KAREN JOAN RILKOFF PLAINTIFFS BY COUNTERCLAIM and THE OWNERS: CONDOMINIUM PLAN 84R16835 DEFENDANT BY COUNTERCLAIM P.J.D. Tyerman for The Owners: Condominium Plan 84R16835 D.D. Kowalishen for Jeffrey James South and Karen Joan Rilkoff FIAT MATHESON J. September 22, 1997 The plaintiffs have applied for an order, pursuant toQueen's Bench Rule 173, striking out the statement of defenceand counterclaim of Jeffrey James South and Karen Joan Rilkoff(the defendants) and the separate statement of defence ofHelen Rilkoff. It has been asserted that the issues raised in thedefendants statement of defence, and in the statement ofdefence of Helen Rilkoff, do not disclose a reasonabledefence, nor do the issues in the counterclaim show areasonable cause of action. The plaintiffs have also alleged that paragraphs 6, and of the defendants statement of defence, which are incorporated into paragraph 10 of the counterclaim, raise issues which have been dealt with in final decision of court of competent jurisdiction and the defendants are therefore barred by the doctrine of res judicata, or issue estoppel, from pursuing such issues. Consequently, it has been asserted that the raising of such issues is an abuse of the process of the court. Finally, it has been submitted that the defendants statement of defence and counterclaim are frivolous, vexatious and otherwise an abuse of the process of the court. CLAIMS The plaintiffs claim against the defendants as owners of condominium unit number 14. The plaintiffs claim that the defendants have not paid, since 1994, their share of assessments against all unit owners. It is alleged that the plaintiffs claim forms charge against the defendants condominium unit which is analogous to municipal tax lien and can therefore be enforced against, and survives the enforcement by, prior encumbrances. It has been further alleged that the plaintiffs' claim can be enforced in the same manner as mortgage charge. Consequently, the principal claim against the defendants is for an order foreclosing their equity of redemption in their condominium unit. No claim has been asserted against Helen Rilkoff. She has been added as defendant on the basis that she has registered mortgage against condominium unit number 14. It has been alleged that because the plaintiffs' charge against condominium unit number 14 takes priority to all encumbrances, Helen Rilkoff appears to have an interest in the equity redemption. The amount claimed to be owing by the defendants, as of June 1, 1997, is $29,598.19, calculated as follows: Arrears of assessment 7,665.21 Interest on arrears 5,860.67 Solicitor/client costs 16,072.31 Total $29,598.19 DEFENCES The defendants have admitted that they have not paid assessments since 1994 but assert that they are entitled to set off against the assessments damages incurred to their condominium unit as result of the plaintiffs failing to have maintained the common property immediately adjacent to their condominium unit. The defendants have also counterclaimed for those damages. It has also been asserted that the resolutions, pursuant to which the plaintiffs made the assessments, were enacted under the authority of The Condominium Property Act, R.S.S. 1978, c. C-26 but that none of the resolutions make provision for charging interest or solicitor/client costs. It has further been alleged that the bylaws enabling the plaintiffs to claim interest and solicitor/client costs are ultra vires the powers granted to the plaintiffs by the foregoing statute. The defendants have also asserted that the right of the plaintiffs to claim lien against the condominium unit arose only by virtue of The Condominium Property Act, 1993, S.S. 1993, c. C-26.1, which did not come into force until January 1, 1995. Helen Rilkoff has alleged that her mortgage charge was registered prior in time to the lien claimed by the plaintiffs in their caveat and should therefore not be affected by the claim. If the plaintiffs' lien does take priority, however, it has been alleged that it can only do so with respect to unpaid assessments arising after January 1, 1995. SUBMISSIONS The plaintiffs have argued that the doctrine of resjudicata applies to the defendants claim for damages by virtueof two Small Claims court judgments in 1989 and 1992. Thedefendants have asserted that their damages arose in 1994 andthat the cause thereof was a different cause than those causesdealt with in the 1989 and 1992 judgments. The defendants have referred to judgment of this Court in support of their allegation that if the resolutions authorizing the assessments do not also contain resolutions authorizing the plaintiffs to recover interest and solicitor/client costs, the plaintiffs are not entitled to do so. The plaintiffs, on the other hand, have insisted that the judicial decision referred to is erroneous. The plaintiffs have submitted that no right of set off for damages exists with respect to the claim for arrears of mortgage loan. Both parties have referred to statutory provisions, and judicial decisions, in support of their respective positions as to the validity of the bylaws of the plaintiffs allegedly entitling the plaintiffs to claim interest on unpaid assessments and solicitor/client costs. The plaintiffs filed a 55 page brief in support oftheir submissions, and the defendants filed a 14 page brief inresponse thereto, evidencing, to some extent, the fact thatthe issues raised do not appear susceptible of being simplyresolved, and certainly not on a summary basis. CONCLUSION When plaintiff applies for an order striking out statement of defence, and counterclaim, on the basis that no justiciable issue is raised in the defence, or any reasonable cause of action in the counterclaim, or that the pleadings are frivolous, vexatious, and an abuse of the process of the court, the court is not permitted to embark upon the resolution of legal questions in order to determine whether the pleadings should be struck as requested. If no facts are in dispute, the parties may resort to Queen's Bench Rule 188, which permits resolution of questions of law prior to trial if the resolution thereof will resolve the dispute between the parties or significant aspects of the dispute. Counsel for the plaintiffs proposed that the court convert the plaintiffs' application, as matter of convenience, into Queen's Bench Rule 188 application. However, it was pointed out that the preconditions for hearing applications pursuant to Queen's Bench Rule 188 are quite different to those relating to Rule 173, in that an application to strike out pleadings basically permits only an examination of the impugned pleadings to determine if any justiciable dispute is revealed. Only if the defendants consented to the application being converted into an application pursuant to Queen's Bench Rule 188 could the court proceed to resolve what appeared to be rather serious questions of law. The consent by the defendants to do so was not forthcoming. The application of the plaintiffs must therefore bedismissed with costs to the defendants in any event of thecause.","FIAT. The plaintiffs applied for an order striking out the statement of defence and counterclaim and separate statement of Helen Rilkoff as not disclosing a reasonable defence or cause of action. The plaintiffs claimed the doctrine of res judicata applied to the claim for damages by virtue of two Small Claims court judgments in 1989 and 1992. The defendants asserted their damages arose in 1994 and that the cause thereof was different than those previously dealt with. HELD: The application was dismissed with costs to the defendants in any event of the cause. 1)The fact that the plaintiffs filed a 55 page brief in support of their submissions and the defendants filed a 14 page brief in response evidenced that the issues were not easily resolved and certainly not on a summary basis.  2)An application to strike out pleadings basically permits only an examination of the impugned pleadings to determine if any justifiable dispute is revealed. If no facts are in dispute, the parties may resort to Rule 188. Only if the defendants consented to the application being converted into an application pursuant to Queen's Bench Rule 188 could the court proceed to resolve the questions of law.",b_1997canlii10986.txt
97,"$10,000.00 2001 SKCA 15 Docket: 145 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Gerwing Lane JJ.A. HER MAJESTY THE QUEEN and RANDOLPH DAVID BUSH COUNSEL: Mr. K.W. MacKay, Q.C. for the Crown The Respondent in Person DISPOSITION: On Appeal From: Provincial Court Appeal Heard: February 1, 2001 Appeal Allowed: February 1, 2001 (orally) Written Reasons: February 7, 2001 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron, and The Honourable Madam Justice Gerwing LANE J.A. (orally) [1] The Crown appeals a conditional sentence of two years less one-day imposed on the respondent after he pled guilty to the following charges:On or about the 5th day of February, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a place, to wit, a dwelling house situated at 190 Carleton Drive, Saskatoon, and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 5th day of February, A.D. 2000, at or near Saskatoon, Saskatchewan, did have in his possession property to wit, jewellery the property of Marlene Brower of a value not exceeding five thousand dollars knowing it was obtained by the commission in Canada of an offence punishable by indictment contrary to Section 355(b) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did being at large on his undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, keep the peace and be of good behaviour fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a certain place, to wit, a dwelling house situated at 65 Red River Road and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 4th day of March, A.D. 2000, at or near Saskatoon, Saskatchewan, did break and enter a place, to wit, a dwelling house situated at 1202 Elliott Street and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code;On or about the 17th day of June, A.D. 2000, at or near Saskatoon, Saskatchewan, did being at large on his undertaking given to a justice or a judge band being bound to comply with a condition thereof, to wit, keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code. [2] The respondent is 38 years old with 49 prior convictions. The sentencing judge had this to say in response to the Crown’s proposal of sentence of three to four years: “... when one reviews the record it is easy to understand the position taken by the Crown which is for penitentiary sentence.” The judge noted the respondent’s alcohol problem, his three and one-half years of sobriety, and that the respondent did so well on probation he was released early at his own request in December of 1999. The judge noted the community support for the respondent, his education, and technical trade training. She further considered a positive pre-sentence report and the fact the respondent spent time on remand. She was of the view community disposition was likely to be more effective than incarceration at rehabilitating the respondent. [3] We are all of the view the Crown’s appeal must be allowed. A conditional sentence was not available in these circumstances. The sentencing judge acknowledged it was easy to understand the position taken by the Crown when the Crown asked for penitentiary sentence. The judge ignored the danger to the community presented by the respondent. The respondent had no sooner finished his parole when he began to commit the subject offences. As well, the judge, in our view, failed to consider the gravity of the offences, the need for deterrence, and above all of the protection of the public. [4] The circumstances and the respondent’s lengthy record require penitentiary term be imposed (see R. v. Prendenchuk[1]). However we have considered the time already spent on electronic monitoring and the post–sentence efforts of the respondent to change and simply remove the conditional provision imposed below. [1](2000) S.J. No. 644.","The Crown appealed a conditional sentence of 2 years less a day imposed after the respondent pled guilty to three break and enters of dwelling houses and theft and possession of stolen property in February and March as well as two breaches of undertakings in March and June 2000. HELD: The conditional provision was removed as time spent on electronic monitoring and post sentence efforts were considered. A conditional sentence was not available in the circumstances. The 38 year old had 49 prior convictions. The sentencing judge noted the accused's 3.5 years of sobriety, community support, education and technical trade training, and positive pre-sentence report but failed to consider the gravity of the offences, the need for deterrence, and above all, protection of the public. The respondent had no sooner finished parole than he began to commit these crimes.",8_2001skca15.txt
98,"IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Woods v. Gates, 2008 NSSC 358 Date: 20081015 Docket: 1201-060295 Registry: Halifax Between: Lana Dawn Wood v. Andrew William Gates Respondent LIBRARY HEADING Judge: The Honourable Justice Leslie J. Dellapinna Heard: October 14, 2008 in Halifax, Nova Scotia Oral Decision: October 15, 2008 Written Decision: October 15, 2008 Subject: Application by former wife to vary the child support terms of the Corollary Relief Judgment, pursuant to Section 17 of the Divorce Act. Summary: The parties were married in November 1993. They had two children, aged 12 and 7. They separated in October 2004 and were divorced in March 2007. Their Corollary Relief Judgment incorporated an agreement that the parties would share joint custody of the children and share parenting of the children approximately equally. The parties also agreed that child support would be based on the difference between what the husband would otherwise pay to the wife for the support of the two children and what the wife would otherwise pay to the husband if the shared custody arrangement did not exist. Because of the significant discrepancies in their income, the husband agreed to pay to the wife $1,268.00 per month in child support. In November 2006 the former wife applied to vary child support. Because of the husband’s increased income, the child support, based on the same formula, was increased $1,506.00 per month. The former wife now seeks to again increase the level of child support based on the former husband’s increased income and a decline in her income. The former wife operated her own business which produced negligible income. However, in each of the four years prior to the application she had withdrawn from her RRSP between $10,000 and $14,000. She argued that her RRSP income should not be considered when calculating her contribution to the support of the children. She also asked the Court to review the amount of child support paid by the Respondent going back to when the parties first separated and asked that he be ordered to pay any deficiency between what he did pay and what the Court considers he should have paid. Issue: Should the child support amount be varied? Should the former wife’s RRSP income be taken into account for determining the quantum of child support? Should the Court review the child support paid back to the date of the parties separation and should retroactive award be granted? Undue Hardship, the imputing of income for child support purposes. Result: The previous variation order was a consent order. Both parties agreed to its terms and both parties had legal advice prior to agreeing to its terms. The order was approved by the Court and was not appealed. Under those circumstances the Court was not prepared to retroactively vary the terms of the Corollary Relief Judgment or the terms of the last variation order effective on a date prior to the date of the last order. There were, however, changes of circumstances since the granting of the last order. The Court was not asked to change the method or formula used by the parties and their original agreement when calculating the amount of child support to be paid. The monthly amount of child support was therefore increased. The former wife’s RRSP income was considered in the calculation of child support. It was a recurring income figure over the past four years, including 2008. It is income that forms part of Line 150 and is not an adjustment contemplated by Schedule III. The Court was also asked by the former wife to increase the level of child support based on undue hardship. The Court did not conclude that she would suffer undue hardship as result of the level of the child support ordered. The former Husband asked the Court to impute income to the former wife because in his view she was intentionally underemployed by continuing to operate a business that failed to produce a reasonable level of income rather than obtain employment. The Court did not impute income to the Wife. Most businesses require time to become established. If in the near future the former wife could not draw a reasonable level of income from the business it would be open to the Court at that time to reconsider that issue. Costs of $1,000.00 were ordered payable to the former Husband (to be paid within 60 days). THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Woods v. Gates, 2008 NSSC 358 Date: 20081015 Docket: 1201-060295 Registry: Halifax Between: Lana Dawn Wood v. Andrew William Gates Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: October 14, 2008, in Halifax, Nova Scotia Written Decision: October 15, 2008 Counsel: Lana Dawn Wood, Self-Represented Andrew William Gates, Self-Represented By the Court: [1] This is an application by Ms. Lana Wood to vary the child support terms of the Corollary Relief Judgment herein as varied by way of consent order dated May 1, 2007. The parties were married on November 19, 1993 and have two children, Dylan who is now 12 and Julianna who is now 7. They separated on or about October 31, 2004 after almost 11 years of marriage. [2] With the assistance of counsel they signed separation agreement dated February 9, 2005 by which they settled the various issues arising out of their separation including the division of their assets and debts, the parenting of their children, spousal support and child support. Among other things, the agreement provided that the parties would share joint custody of the children, that each would have relatively equal time with the children and each would contribute financially to the support of the children. Specifically, paragraphs 15 (a) (b) (c) and (e) of the Agreement reads as follows: (a) The parties agree that the income of the Wife is approximately $5000.00 per annum and the income of the Husband is approximately $102,500.00 per annum. (b) The Husband covenants and agrees to pay child support to the Wife pursuant to the Federal Child Support Guidelines and in accordance with the Nova Scotia table in the amount of $1,268.00 per month, payable in two installments of $634.00 each on the 1st and 15th of each month, commencing December 1, 2004. (c) The parties covenant agree to share, in proportion to their respective incomes the net cost of child care expenses incurred for the children of the marriage taking into account any subsidies, benefits or income tax deductions or credits relating to the childcare expenses. ... (e) The parties agree to exchange Income Tax Returns by July 1st of each year, commencing July 1, 2005. The parties agree that the amount of child support payable shall be adjusted as of September 1st of each, commencing September 1, 2005, and shall be set out in accordance with the Federal Child Support Guidelines, Nova Scotia table. The amount of child support payable shall be calculated by calculating the difference between the amount that each party would otherwise pay if the child support order were sought against each of the parties based on each party’s Line 150 Total Income as disclosed in his or her Income Tax Return from the previous year. [3] The Respondent, Andrew Gates, also agreed to pay spousal support of $500.00 per month to the Applicant with the amount and duration of the spousal support reviewed as of September each year, beginning September 1, 2005. [4] The parties were divorced on March 7, 2006 and the Corollary Relief Judgment, granted the same day, incorporated the terms of their separation agreement. [5] In November 2006 the Applicant applied to vary the child and spousal support terms of the Corollary Relief Judgment. That application was resolved by way of consent order dated May 1, 2007. By way of that Order, the Respondent transferred to the Applicant by way of RRSP spousal rollover $40,000.00 and in return the Applicant waived her entitlement of spousal support. Regarding child support, clauses 15 (c) and (e) to which have referred earlier were repealed and replaced with the following: 5(a) With the exception of private school tuition, the parties covenant and agree to share, in proportion to their respective incomes for the previous calendar year, Section expenses pursuant to the Child Support Guidelines as they relate to the children of the marriage, taking into account any subsidies, benefits or income tax deductions or credits relating to any such expenses. 5(b) With regard to private school tuition, the father agrees that he shall assume full responsibility for tuition costs for each of the two children for the school years 2007-2008, 2008-2009 and 2009-2010. Private schooling shall continue for the children beyond the 2009-2010 school year only if there is agreement by both parents and an agreement with regard to funding of this expense in future years. 5(c) The parties acknowledge they have exchanged income tax returns as of July 2006 and the amount of child support for the period September 1, 2006 to August 1, 2007 has been calculated such that the father pays to the mother $1,506.00 per month ($753.00 paid on the 1st and the 15th of each month). The parties shall continue to exchange income tax returns by July 1st of each year and child support shall be adjusted as of September 1st of each year based upon the previous calendar year incomes of the parties. These incomes shall be based on the income tax return, line 150 Total Income of each party, plus or minus such adjustments as are appropriate pursuant to the Child Support Guidelines. The amount of child support payable shall be calculated by determining the difference between the amount that each party would otherwise pay if child support order was sought against each of the parties based upon their incomes for child support purposes. [6] The Applicant now seeks to vary the child support terms of that order. The Applicant submits that as of September 1, 2007 the Respondent’s net child support payment to her should increase for number of reasons including that his income increased, that her contribution to child support should decrease because other than her RRSP income, she has no other income for child support purposes, and she argues that the RRSP income should not be considered when calculating her contribution. It is also argued that if the RRSP income is to be considered then her contribution to the support of the children should be reduced as the amount that she would be required to pay under the Variation Order and the Child Support Guidelines, that is to say the amount set off against the Respondent’s contribution, would cause her undue hardship. She has also asked the Court to review the amount of child support the Respondent should have paid going back to when the parties first separated. [7] Subsections 17 (1) (a) and (4) of the Divorce Act read as follows: 17 (1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [8] The Court is to determine if there have been changes in circumstances as provided for in the applicable guidelines since the making of the last variation order when considering further variation order. [9] Section 14 of the Child Support Guidelines says: For the purposes of subsection 17(4) of the Act, any one of the following constitutes change of circumstances that gives rise to the making of variation order in respect of child support order: (a) in the case where the amount of child support includes determination made in accordance with the applicable table, any change in circumstances that would result in different child support order or any provision thereof; (b) in the case where the amount of child support does not include determination made in accordance with table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section of chapter of the Statutes of Canada, (1997). [10] The last variation order was consent order. Both parties agreed to its terms and both parties had legal advice prior to agreeing to its terms. The Order was approved by the Court and was not appealed. There is no evidence that the terms of that Order had been obtained by fraud or misrepresentation or for any other reason should be disregarded by this Court. There is no reason for the Court not to accept the terms of that Order or the Corollary Relief Judgment before it as being appropriate at the time. The Court is therefore not prepared to retroactively vary the terms of the Corollary Relief Judgment or vary the terms of the last variation order effective on any date before the date of the last Order. [11] The Court is satisfied however, that there have been changes in the incomes of the parties since the last variation order which would permit the Court to consider variation of the last variation order. [12] The Consent Variation Order addressed the issue of child support up to and including August 2007. The amount of support would then be subject to change as of September 1, 2007 based on the parties’ income earned in 2006, and reviewed again on September 2008 based on their incomes earned in 2007. [13] The Court has not been asked to change the method by which the child support is to be calculated each year other than the respondent has asked for some kind of certainty being put into the Court’s order to minimize, if not eliminate, the possibility of ongoing disputes between the parties each summer, of the child support that is to be paid the following year. The methodology agreed to by the parties with the assistance of their lawyers is reasonable and sound and it conforms with the Child Support Guidelines. [14] The Court cannot predetermine years in advance the income of either of the parties. The Court should not prevent either party from exercising their right to apply to the Court to vary child support in the appropriate circumstances. If either party abuses that right the Court can sanction their conduct, at the time, appropriately. [15] The calculation of the Respondent’s income for the support that is to commence in September of 2007 is relatively straight forward. In 2006, his line 150 total income was $126,874.00 including dividends that were grossed up for tax purposes from $2,000.00 to $2,500.00. That $500.00 gross up is to be adjusted pursuant to Schedule III of the Guidelines. He also had professional fees, which is another Schedule III adjustment, of $515.00. After adjusting his income for child support purposes, his income was $125,859.00 in the year 2006. The table amount for two children based on that amount of income is $1,643.00 per month. In 2007 his total income on line 150 of his tax return was $145,344.31. Again, that is to be adjusted by the $500.00 gross up of his dividends and $481.04 for professional fees, leaving him with total income figure for child support purposes of $144,363.27 which would require child support payment for two children of $1,850.00. The Court is satisfied that the Respondent’s tax returns accurately reflect his actual income. should mention though that included in the Respondent’s income in most years, including 2007, was his bonus income paid based on the performance and profitability of the engineering firm for which the Respondent works and in which he is shareholder. Many years, including 2007, the Respondent, like other shareholder/employees in this firm, is required to spend all or part of his net or after tax bonus money on the purchase of shares in the firm, thus receiving no added funds in his hands in spite of his bonus. Sometimes he can even be required to spend more on the purchase of shares than he received in net after tax bonus income. The firm requires that of all their employee/shareholders in order to buy out retiring members or to keep the business adequately funded. Therefore, there are years when the Respondent is paying child support based on level of income significant portion of which he does not actually have at his disposal. 2007 was one of those years. [16] The Applicant’s income for child support purposes is also fairly easy to calculate. In 2006 her line 150 total income was $25,793.00 including $6,000.00 in spousal support, $12,500.00 in RRSP income and $1,200.00 being her universal child care benefit. The spousal support and UCCB should be deducted as an adjustment pursuant to Schedule III. She asked the Court not to include her RRSP income as it is non-recurring item. There are no reasons in the Court’s view not to include her RRSP income for child support purposes. It is in fact recurring income figure according to her tax returns. She deregistered between $10,000.00 and $14,000.00 in RRSP income in each of the last years, including 2008. She relies on this income as part of her household revenue. It is income that forms part of line 150 and is not an adjustment contemplated by Schedule III. The Court is aware of the cases where RRSP funds were not included in income for the purposes of calculating child support but those cases can be distinguished from the Applicant’s circumstances. So, after adjusting her line 150 by deducting spousal support and the University Child Care Benefit received in 2006, her income for child support purposes in that year was $18,593.00 which would require child support payment pursuant to Section of the Guidelines for two children of $277.00 per month. The applicant asked the Court to reduce that amount based on undue hardship. Section 10 of the Guidelines says (1) On either spouse’s application, court may award an amount of child support that is different from the amount determined under any of sections to 5, or if the court finds that the spouse making the request, or child in respect of whom the request is made, would otherwise suffer undue hardship. [17] Subsection lists number of circumstances which may cause spouse or child to suffer undue hardship and that list is not exhaustive. am not convinced that the Applicant would suffer undue hardship by having her share of the child support offset against the Respondent’s payment. She has not provided sworn statement of how she and her partner spend their income. She has not provided her statement of property and debts. She has not provided current sworn statement of her partner’s income, although the Court does have copy of his 2007 tax return. She and her partner only work part time. [18] Based on the evidence, the Court cannot say that the Applicant or her family would suffer undue hardship as contemplated by the Guidelines. They live in nice area. The children go to private school, paid for by the Respondent. The children take part in many activities. The Applicant’s business paid for the Applicant and her partner to travel to the Carribean number of times in the past year. The Court does not know of anything that they are doing without or may do without if the Applicant is required to pay her share of the child support. [19] Using the formula in the Variation Order, the Applicant’s contribution to the children’s financial support is modest and there is no reason to decrease it. [20] In 2007 her line 150 was $14,042.28 including UCCB of $700.00 and spousal support of $2,500.00. After adjustment of those two figures, her income for child support purposes is only $10,842.28 requiring child support payment of only $97.00 per month. For all of the same reasons am not prepared to reduce that amount. [21] The Applicant has her own business. It is incorporated and over the past four years it has shown profit at times but overall has been losing money. The Respondent has asked the Court to impute income to the Applicant. He argues that many of the company’s expenses benefit the Applicant-such as rent in her house and travel to the Carribean. He has also suggested that if the Company isn’t profitable it is time for the Applicant to get “real job” even it if it is part-time position. He argues that throughout their marriage, the Applicant worked and earned an income in the $30,000 to $52,000 range. [22] The Applicant says she is limited in what she can do because of an injury she suffered as result of motor vehicle accident in November 2004. She also says that if given another year, her Company can be profitable. [23] seriously considered imputing income to the Applicant. She claims she is limited in what she can do and yet she puts long hours into her business and apparently travels great deal as result of her business. She, in the Court’s opinion, is capable of working at least part-time. Still, every business needs some time to be established. [24] The Court is prepared to give the Applicant another year, that is to say until the end of her Company’s fiscal year in the Spring of 2010 to show meaningful profit, and by then, be in position to provide the Applicant with an income by way of employment income or dividends. If the Company is not profitable by then and if the matter is brought back before the Court, the Court may seriously consider imputing income to her if she doesn’t already by then seriously consider other options. [25] In summary, beginning September 1, 2007 to and including August 1, 2008, the Respondent shall pay to the Applicant net child support of $1,366.00 per month, calculated by deducting $277.00 from $1,643.00. Assuming he has paid $1,506.00 each of those months, he has overpaid by total of $1,680.00. [26] Beginning September 1, 2008 to and including August 1, 2009, the Respondent shall pay the net sum of $1,753.00 per month, calculated by deducting from $1,850.00 the Respondent’s contribution of $97.00 per month. Assuming in September and October of this year he paid $1,506.00 for each of those months, he has underpaid total of $494.00 for those two months, leaving net overpayment due back to him of $1,186.00 which overpayment can be deducted from the Respondent’s November child support payment. [27] Regarding Section expenses, will not be varying paragraph (a) of the Variation agreement that was incorporated into the Consent Variation Order, but for clarification purposes the orthodontic expenses that are being incurred for Dylan both past and future are to be shared by the parties proportionate to their incomes as and when those payments are due. The amount to be shared is the net amount after taking into account any insurance coverage or tax savings, if any. [28] Costs are awarded to the Respondent in the amount of $1,000.00 to be paid by the Applicant within 60 days of October 15, 2008. J.S.C. (F.D.) Halifax, Nova Scotia","The corollary relief judgment provided that the parties would share parenting of their two children approximately equally. Child support would be based on the difference between what each party would otherwise have paid if the shared custody arrangement had not been in effect. The wife now applied to have the amount paid by the husband increased due to his increase in income and a decline in her income. Following the divorce, the wife had opened her own business which only produced negligible income and in each of the past four years, she had withdrawn between $10,000 and $14,000 from her RRSP, which amounts she argued should be not considered when calculating her contribution to the children's support. She also sought to have the court go back to when the parties first separated to have the husband pay any deficiency which the court might find. The husband requested that the court impute income to the wife on the basis that she was intentionally underemployed by continuing to operate a business that failed to produce a reasonable level of income. Application granted in part; monthly amount of child support payable by the husband is increased based on his increased income; the wife's RRSP income was considered in the calculation of child support as it had been a recurring income figure over the past four years; no income imputed to the wife but if she could not draw a reasonable level of income from the business within the next year, it would be open to the court to reconsider this issue. Given that the previous variation order was a consent order and both parties had legal counsel at the time and had not appealed that order, the court was not prepared to retroactively vary its terms.",8_2008nssc358.txt
99,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 59 Date: 2014 02 28 Docket: DIV 1595 of 2010 Judicial Centre: Weyburn, Family Law Division BETWEEN: BRENDA MARIE KYLE and GEORGE ALLAN BENNETT KYLE Counsel: Mary Lou Senko for the petitioner Drew Filyk for the respondent FIAT SANDOMIRSKY J. February 28, 2014 [1] On November 18, 2010, the petitioner commenced this family law proceeding by issuing petition in which she sought divorce and equal division of the family property estate. The petitioner did not seek any form of corollary relief pursuant to the provisions of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). Specifically, she did not claim for spousal support. Nor did the petitioner seek spousal support under the provisions of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. [2] On August 13, 2013, the petitioner sought to amend her petition by including claim for spousal support in an amount to be determined in accordance with the Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) (“SSAG”). An application to amend the petition, amongst other relief sought, was consented to by the parties on October 17, 2013 and granted October 22, 2013. [3] On January 20, 2014, the petitioner filed the within application for interim spousal support, “retroactive to the date of the parties’ separation”. [4] In the decision Malinowski v. Malinowski, 2010 SKQB 27 (CanLII), 349 Sask. R. 210, McIntyre J. makes the following statement at para. 12 As rule retroactive child support preceding commencement of the proceedings ought not to be granted in an application for interim support. L.R. v. D.T. 1998 CanLII 13814 (SK QB), [1998] S.J. No. 733; (1999), 178 Sask R. 115 (Sask. Q.B.). Also see Dram v. Foster 2009 MBCA 125 (CanLII). [5] This rule is generally applicable to an interim application for spousal support as it is to an interim application for child support. [6] The petitioner applied for judgment for divorce which was granted August 14, 2013. She did not seek spousal support at that time. At para. 28 of the petitioner’s affidavit, sworn January 10, 2014, the petitioner avers: 28. request for support based on the Respondent’s income was made in October, 2013 and denied. Given the Respondent’s income, am claiming spousal support from the date of separation. [8] In the same decision, Malinowski, supra, McIntyre J. adopts and summarizes the Supreme Court of Canada’s decision in D.B.S., v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII); [2006] S.C.R. 231 at para. 10, which reads: 10 The Supreme Court of Canada in D.B.S., v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra 2006 SCC 37 (CanLII); [2006] S.C.R. 231 has observed that when it comes to the question of retroactive support award the court is to strive for holistic view of the matter and decide each case on the basis of the particular facts. Factors to be considered by the court include the reason for the recipient's delay in seeking child support, the conduct of the payor, the past and present circumstances of the child including the child's needs at the time the support should have been paid, and whether retroactive award might entail hardship. If retroactive child support is to be awarded it will as general rule be retroactive to the date of effective notice by the recipient, but to more than three years in the past. Effective notice does not require the recipient to take legal action. All that is required is that the topic be broached. Where payor has engaged in blameworthy conduct the presumptive start date is not that of effective notice but when the circumstances materially changed. [9] The petitioner’s evidence herein is that she first gave effective notice or broached the subject of spousal support with the respondent during the month of October, 2013. She took similar legal action in the same month leading to the order allowing an amended petition to include claim for spousal support. [10] There is ample authority for the proposition that retroactive spousal support should be left to final adjudication and not be granted upon an interim application: see Lapp v. Lapp, 2008 ABCA 15 (CanLII), 425 A.R. 232; K.B.A.S. v. G.E.S., 2006 SKQB 439 (CanLII), 286 Sask.R. 16. [11] For the foregoing reasons, and in accordance with the quoted case law, this Court will not grant retroactive spousal support prior to the respondent being put on effective notice that the petitioner was now seeking spousal support. [12] The evidence establishes that the respondent’s gross income in the year 2013, to his pay period ending December 14, 2013, was $95,275.73. This latter sum included $28,553.68 of overtime income. [13] The respondent is 61 years old. His regular hourly rate of pay is $28.50. The respondent argues that he cannot keep up the pace of working overtime hours as he did in previous years. In assessing support, whether child support or spousal support, court does not compel payor to work overtime. At the respondent’s age and given his state of health, this Court will not compel the respondent to work more than a 40 hour work week by attributing to him an income which is based upon significant overtime. [14] The respondent indicates that he intends to work standard 40 hour work week at the rate of $28.50 per hour. This represents an annual income of $59,280.00. The respondent also earns rental income from leasing farm land. The net rental income, after payment of property taxes, yields $8,000.00 to the respondent. The petitioner and respondent are now splitting oil lease revenue, each party receiving $5,500.00 per year. The respondent is in receipt of CPP benefits of $6,540.00 per annum. The sum of the respondent’s annual income is adjudged to be presently $79,320.00. [15] The total income earned by the petitioner is adjudged to be $56,103.00, consisting of wages of $50,603.00 and $5,500.00 derived from oil lease revenue. [16] Following the provisions of the Divorce Act for awards of spousal support, as interpreted by the Supreme Court of Canada in the decision Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577, this Court considers the economic disparity between the respondent and petitioner’s incomes, that is $79,320.00 versus $56,103.00, is sufficiently disparate and upon which an interim award of non-compensatory spousal support is appropriate. Referencing the SSAG, as a guide only, the court orders the respondent to pay to the petitioner interim spousal support in the sum of $700.00 per month commencing effective November 1, 2013, and on the first day of each and every month thereafter until further order of the court. [17] The petitioner, having been the successful applicant, shall have her costs fixed at $1,200.00, payable by the respondent, forthwith. J. N. S. SANDOMIRSKY","Family Law – Spousal Support – RetroactiveThe petitioner commenced a family law proceeding requesting divorce and equal division of family property in 2010. She did not seek spousal support as part of her original application to the Court. In August of 2013, the petitioner sought to amend her petition to include a claim for spousal support based on the Spousal Support Advisory Guidelines. In January of 2014, the petitioner filed an application for interim spousal support retroactive to the date of separation. HELD: The petitioner was awarded spousal support, but the award was not retroactive to the date of separation. The petitioner was entitled to spousal support from the date that she put the respondent on notice of her application for spousal support. The respondent, at age 61, should not be forced to work overtime in order to meet his spousal support obligations. The Court found there was economic disparity between the income of the petitioner and the income of the respondent and awarded an interim award of non-compensatory spousal support in the amount of $400 per month, retroactive to November 1, 2013, until further order of the Court.",6_2014skqb59.txt
100,"R.D. LAING QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 355 Date: 2007 10 03 Docket: Q.B. 577/2004 Judicial Centre: Regina BETWEEN: HUSKY OIL OPERATIONS LIMITED and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF SASKATCHEWAN AS REPRESENTED BY THE MINISTER OF FINANCE FOR SASKATCHEWAN and SANJEL CORPORATION, TRICAN WELL SERVICE LTD., BJ SERVICES COMPANY CANADA THIRD PARTIES Counsel: H. George McKenzie, Q.C. Kurt Wintermute for the plaintiff Linda A. Christensen for the defendant Laurie A. Goldbach for the third parties FIAT BALL J. October 3, 2007 [1] The plaintiff applies for orders requiring the defendant and third parties to answer questions and respond to undertakings arising from the examinations for discovery in this action. The plaintiffs also apply for orders requiring the third parties to provide further and better disclosure of documents in their power, possession or control, including documents over which a claim for privilege is asserted, and to identify the basis for such claim. [2] The plaintiff carries on the business of oil and gas exploration and development in Saskatchewan and elsewhere in Canada. In the course of its business the plaintiff engages contractors to drill oil and gas wells. The plaintiff also engages cementing services contractors, including the third party contractors (herein “Sanjel”, “Trican” and “BJ Services” respectively), to cement casing in the well bores. This is done by mixing dry cement with additives and water into slurry which is then injected around the casing in the well bore using high pressure pumps. [3] The plaintiff claims that between January 1, 1996 and February 28, 2001 the third party contractors collected and remitted provincial sales tax (PST) to the defendant in respect of cement supplied and used by the third parties in the performance of their well cementing services. The plaintiff says that pursuant to the governing legislation it was not liable to pay the PST because the cement was supplied, used and installed into the real property of the plaintiff. The plaintiff seeks judgment against the defendant for the amount paid. [4] During the period for which the claim is made the governing legislation was The Education and Health Tax Act, R.S.S. 1978, c. E-3, as replaced by The Provincial Sales Tax Act, S.S. 2000, c. P-34.1. Subsections 5(1), (2) and (6) of the former The Education and Health Tax Act were identical to ss. 5(1), (2) and (6) of The Provincial Sales Tax Act (the “Act”) which provide: 5(1) Subject to subsections (9), (18), (20) and (21), every consumer of tangible personal property, purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the consumption of the property and such tax shall be computed at the rate of 5% of the value of the property to be consumed. (2) Subject to subsections (9), (18), (20) and (21), every user of tangible personal property purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the use of the property, and such tax shall be computed at the rate of 5% of the value of the property to be used. (6) Subject to the regulations, where contractor or manufacturer enters into contract for the supply and installation of tangible personal property and during the carrying out of the contract consumes or uses tangible personal property produced, fabricated, processed, printed or imprinted by him the contractor or manufacturer shall be deemed to be consumer or user of the tangible personal property and to have purchased the tangible personal property at retail sale in the province at the time of consumption or use at value that includes the total cost of the tangible personal property together with the total cost of its production, fabrication, processing, printing or imprinting to the time of such consumption or use. [5] It is common ground that the cement supplied by the third party contractors constituted “tangible personal property” (TPP) for the purposes of s. of the Act. The plaintiffs plead that the third party contractors are deemed to be the consumer or user of the cement and that there was no sale of TPP by the third parties to the plaintiff for the purposes of the Act. [6] An amended statement of defence filed by the defendant pleads in part: 6. In reply to paragraphs 16-20 of the Claim, the Government of Saskatchewan says that the contracts entered into between the Plaintiff and the Contractors provided for the distinct sale of both services, and tangible personal property as that term is defined in The Provincial Sales Tax Act, and that this was the intention of the Plaintiff and the Contractors in entering into the contracts. The Government of Saskatchewan specifically pleads that the contracts between the Plaintiff and the Contractors consist of more than the document referred to in the Plaintiff’s Reply to the Government of Saskatchewan’s Demand for Particulars. The Government of Saskatchewan specifically pleads that the contracts referred to in the Plaintiff’s Reply to the Demand for Particulars are ambiguous, and that the true and full intention of the Plaintiff and the Contractors is not contained exclusively in the terms and conditions of those contracts. The Defendant specifically pleads that other documents outside the contracts referred to in the Reply to the Demand for Particulars form part of those contracts and set out additional terms and/or set out the intentions of the Plaintiff and the Contractors in entering into the contracts. And as such, the Contractors properly levied and collected tax from the Plaintiff on the sale of the tangible personal property pursuant to section of The Provincial Sales Tax Act. [7] By notice of third party claim the defendant pleads that if it is liable to refund the PST to the plaintiff that was collected and levied in error by the third parties, then the defendant is entitled to payment of PST from the third parties on the cement consumed in the performance of their contracts with the plaintiff. [8] The third parties deny all allegations made by the plaintiff and the defendant as third party claimant and specifically deny that the plaintiff is entitled to judgment in any amount against the defendant. THE EXAMINATIONS FOR DISCOVERY [9] Examinations for Discovery have been held by all parties. The plaintiff has conducted examinations for discovery of Robert Dobson, the proper officer of the defendant (the “Dobson Examination”); of John Edward Wilson, the proper officer of BJ Services (the “Wilson Examination”); of Michael Grant Kelly, the proper officer of Trican (the “Kelly Examination”); and of Andreas Manfred Wienecke, the proper officer of Sanjel, (the “Wienecke Examination”). During the course of the examinations for discovery counsel for the plaintiff asked certain questions which the proper officers of the third parties refused to answer. The plaintiff applies for orders requiring the third parties to provide complete answers to those questions. It has been agreed that if such answers are ordered they will be provided in written form with leave to the plaintiff to reconvene examinations for discovery as may be necessary. [10] As well, during the examinations for discovery the defendant and third parties gave undertakings to respond to certain questions. Most of those undertakings have been satisfied; however, the plaintiff says that there have been no responses to some of the undertakings and that number of the responses to other undertakings have been evasive or incomplete. The defendant and third parties say they are not obligated to provide any responses, or any further responses, to certain undertakings at this time or at all. Accordingly, the plaintiff applies for orders requiring them to provide full and complete responses to undertakings as discussed below. THE QUEEN’S BENCH RULES OF COURT [11] The following Queen’s Bench Rules are relevant to the plaintiff’s application for further and better disclosure of documents: 212(1) Parties to an action shall, within ten days after statement of defence has been filed, and without notice, serve on each opposite party statement as to the documents which are or have been in his possession or power relating to any matter in question in the action. (2) The statement mentioned in subrule (1) shall be made in Form 15 and shall be signed by the solicitor of the party making discovery or by the party himself if he sues or defends in person and the statement shall clearly state: (a) the documents in the possession, custody or control of such party which he is ready and willing to produce but not including the pleadings and proceedings in the action; (b) the documents which have been, but are not, at the time of making the statement, in the possession, custody or control of such party, the nature of such documents, and when they were last in his possession, custody or control, and where they are likely to be found; (c) the documents which are in the possession, custody or control of such party and which he objects to produce, the general nature of such documents (which shall be identified with reasonable certainty) and the specific grounds upon which he objects to produce the same. (3) If any such party has no documents to disclose or which should be disclosed, the said statement shall so state. 215(1) If any party: (a) neglects, refuses or objects to make discovery of documents as required by Rule 212; or (c) has filed and served statement pursuant to Rule 212 which statement is not satisfactory to party entitled to be served with same; or (c) shall in such statement so filed and served have made claim to privilege in respect of documents referred to therein then the party so desiring production may apply to the court for an order requiring the other party to make production of documents or for further or better production or for inspection or determining whether documents in respect of which privilege is claimed are in fact privileged and upon such application the court may make an order for production or inspection in such manner as may be just. (2) If upon such application any privilege is claimed for any document the court may inspect such document for the purpose of deciding as to the validity of the claim for privilege and to consider all relevant evidence which may be adduced tending to establish or destroy such claim for privilege. [12] Rule 212 imposes upon each of the parties to an action duty to disclose all relevant documents in manner that identifies them sufficiently to enable the receiving party to understand what is being disclosed and to prepare for trial. See: Fishbach and Moore Canada Ltd. v. Noranda Mines Ltd., Potash Division (1973), 1973 CanLII 928 (SK QB), 73 Sask. R. 308 (Sask. Q.B.); Saskatchewan Trustco (Liquidation) v. Coopers and Lybrand 2001 SKQB (CanLII); (2001), 204 Sask. R. 29 (Sask. Q.B.). [13] While the Rules of Court do not mandate specific language for identifying documents, the disclosing party must use format that will enable other parties to understand what the documents listed are about and how to identify them in the future. Where party claims that documents need not be disclosed because they are privileged, they must provide description of those documents sufficient to enable the party receiving the statement to assess and challenge the claim of privilege. [14] The following Queen’s Bench Rules are relevant to the plaintiff’s application for orders requiring the defendant and third parties to answer questions put and respond to undertakings given at the examinations for discovery: 222 Subject to Part Forty-Eight, any party to an action or issue may, without order, be orally examined for discovery before the trial touching the matters in issue in the action by any party adverse in interest, and may be compelled to attend and testify in the same manner, upon the same terms with respect to conduct money and otherwise, and subject to the same rules of examination as witness except as hereinafter provided. 231 Anyone refusing or neglecting to attend at the time and place appointed for his examination or refusing to be sworn or to answer any lawful question put to him by any party entitled to do so or his counsel or solicitor or having undertaken at the examination to answer at later date any lawful question put to him fails to do so within reasonable time after the examination shall be deemed guilty of contempt of court and proceedings may be taken forthwith to commit him for contempt. He shall be liable if plaintiff to have his action dismissed, and if defendant to have his defence, if any, struck out and to be placed in the same position as if he had not defended. If the party so neglecting or refusing is an officer or servant of corporation the corporation itself shall be liable if plaintiff to have its action dismissed, and if defendant to have its defence, if any, struck out and to be placed in the same position as if it had not defended; and in either case the party examining may apply to the court to that effect and an order may be made accordingly. 232(1) If any one under examination objects to any question or questions put to him the examiner shall take down the question or questions so put and the objection of the witness to the question or questions. (2) The examiner shall file the questions and objections mentioned in subrule (1) with the local registrar in whose office the proceedings are pending. (3) The court shall decide the validity of any objections. [15] The “broad relevance test” applies to both disclosure of documents and questions put at examinations for discovery. See: Cominco Ltd. v. Phillips Cables Ltd. et al. (1987), 1987 CanLII 200 (SK CA), 54 Sask. R. 134 (Sask. C.A.) and Steier v. University Hospital (1998) 1988 CanLII 215 (SK CA), 67 Sask. R. 81 (Sask. C.A.). In Cominco Ltd., supra, Cameron J.A. in describing the “broad relevance test” under Rule 222 stated at paras. 12-14, as follows: [12] As has been said time and again, the purpose of the rule is twofold: (i) to allow the parties to ascertain if the plaintiff has good cause of action, or the defendant such defence as would render further litigation useless: Carney v. Carney (1913), 1913 CanLII 137 (SK CA), W.W.R. 849 (Sask. S.C.); and (ii) to enable the parties to secure from one another such admissions as will advance one’s own cause or weaken that of one’s opponent: Collins v. Belgian Dry Cleaners, Dryers and Furriers Limited (1951), W.W.R. (N.S.) 341 (Sask. C.A.). In that way, neither will be taken by surprise at trial, or be required, beyond adducing the admissions, to prove undisputed facts. [13] It has also been said repeatedly that discovery has wide scope that while relevance imposes some broad limits, issues of admissibility and weight have little if anything to do with the matter: Mount Hope v. Findlay, 1919 CanLII 231 (SK QB), [1919] W.W.R. 397 (Sask. K.B.); R. and Minister of Highways v. W.C. Wells Construction Ltd. (1970), 1969 CanLII 578 (SK QB), 72 W.W.R. (N.S.) 121 (Sask. Q.B.), Tucker, J.); Massey Ferguson Industries Ltd. et al. v. Government of Saskatchewan et al. [1975-77] Sask. D. (Practice-Examination for Discovery) (Q.B.) (Walker, L.M.), affirmed [1975-77] Sask. D. (Practice Examination for Discovery) (Q.B.) (Sirois, J.) [14] As for the scope, generally, of discovery, reference may usefully be had to Czuy v. Mitchell, 1976 ALTASCAD 161 (CanLII), [1976] W.W.R. 676; A.R. 434 (Alta. C.A.). Haddad, J.A., after an extensive review of the authorities, including Mount Hope v. Findlay, supra, and Harvie v. C.P.R., 1927 CanLII 173 (SK CA), [1928] W.W.R. 187 (Sask. C.A.), said at p. 683: “In my view then, it is the scope of the examination for discovery with which we are concerned in this appeal. Wide latitude is permitted. The examination may be searching and exploratory. Questions on discovery are relevant so long as they touch ‘the matters in question’ and fall within bounds that are reasonable. If the questions asked are relevant to the matters in issue or can possibly affect the issues between the parties if they are questions which may be permitted on cross-examination then they must be answered.” In that same case Prowse, J.A., at p. 679, noted that on applications respecting the propriety of questions on discovery the court “. will not conduct minute examination of each question to determine its relevancy. In my view, court, in ruling on such applications, should not unduly restrict an examination by excluding questions broadly related to the issues when it appears that their relevance may well be resolved by other evidence not before the court on the application.” [16] In Garrett et al. v. Cameco Corp. et al. (2000), 2000 SKQB 329 (CanLII), 197 Sask. R. 115 (Sask. Q.B.), Laing J. (as he then was) succinctly summarized the purposes of the “broad relevance test” at para. [6] The examination for discovery rules have number of purposes to serve in our adversarial litigation procedure. These include; the obtaining of admissions, obtaining facts that will lead to lines of inquiry, knowing the case to be met, avoiding being taken by surprise at trial, and defining the issues in the law suit. APPLICATION FOR ORDERS AGAINST THE DEFENDANT [17] During the Dobson Examination the plaintiff asked Mr. Dobson for statement of the defendant’s position with respect to three matters: when the alleged sale of TPP from the third parties to the plaintiff took place; when title to the TPP passed from the third parties to the plaintiff; and, when the incidence of PST arose on those transactions. The plaintiff says that Mr. Dobson gave variety of inconsistent answers which, considered as whole, were evasive and unresponsive. [18] Shortly before this motion was heard the defendant filed an affidavit sworn by Mr. Dobson in which he stated that the sale of TPP “would have taken place when the TPP was delivered to the well site” and further that title to the TPP “would have transferred at the well site prior to the TPP being mixed and installed into the well bore”. The plaintiff accepts those answers and seeks no further order with respect to this aspect of its application. [19] However, the plaintiff does seek orders requiring the defendant to fully respond to two undertakings given during the Dobson Examination. One was listed as undertaking #10; the other as undertaking #11. [20] Undertaking #10 and the defendant’s response stated: Undertakings #10 Provide specific references in the documents referred to in the contracts relied upon in support of the assertion that there is separate contract for the distinct sale of tangible personal property. Response: The Defendant was not party to the contracts between the Plaintiff and the Third Parties which are at issue in this Action. The Defendant has no direct or personal knowledge of those transactions. The Plaintiff in this undertaking is essentially calling for the Defendant’s legal arguments on the interpretation of the contacts. The Defendant has not yet finalized its legal arguments as to the way in which the contracts should be interpreted as the discovery process is not yet complete. The Defendant has specifically pled that the contracts provide for the sale of cementing materials, and the Defendant maintains this position. The Defendant will provide its legal arguments to the Plaintiff and the Third Parties on its interpretation of the contacts both at the pre-trial and the trial. [21] Undertaking #11 and the defendant’s response stated: Undertakings #11 Provide the references to the provisions in the contract that are considered to be ambiguous in terms of the question of whether or not there is sale of taxable personal property. Response: This undertaking is essentially calling for the Defendant’s legal argument on ambiguity in the contracts. The Defendant has not yet finalized its legal arguments on ambiguity as the discovery process is not yet complete. Ambiguity was specifically pled in the Amended Statement of Defence in response to the Plaintiff’s claim that the Defendant’s original Defence was not broad enough to allow discovery on the intention of the parties in entering into the contracts. The Defendant did not think the amendment was necessary but made the amendment anyway to make it abundantly clear that the intention of the parties in entering into the transactions was an issue open for exploration at discovery. The Defendant will provide its legal arguments on ambiguity to the Plaintiff and the Third Parties both at the pre-trial and trial. [22] During the Dobson Examination counsel for the defendant proposed to disclose the defendant’s positions with respect to undertakings #10 and #11 prior to the pre-trial conference. Although counsel for the plaintiff did not object to the proposal at that time, orders are requested requiring the defendant to respond to both undertakings now so that, if necessary, Mr. Dobson can be examined further on the responses. [23] The defendant replies that it is not obligated to provide responses to these undertakings prior to the completion of examinations for discovery of all parties; that it is premature to require responses to be provided at this time; and that counsel for the plaintiff agreed to accept replies after the examinations for discovery were concluded. The defendant proposes providing responses to the two undertakings “within 90 days of the conclusion of the discovery process”. [24] party to litigation cannot decline to answer questions on an examination for discovery that are intended to elicit the facts on which that party has based its pleading. party is required to divulge the facts that it has now or admit that it has none if such is the case. That principle is in keeping with the “broad relevance test” which requires party to answer all questions asked on discovery that are relevant to the matters in issue. [25] Both of the undertakings given by the defendant were directly related to positions taken in the statement of defence. The defendant is obligated to provide its responses to the undertakings before the examination for discovery of its proper officer is concluded so that, if necessary, he can be further examined on the responses. If the defendant revises the position set forth in its initial response based on after acquired information, it may supplement its initial response. [26] Accordingly, the defendant shall provide the plaintiff with responses to undertakings #10 and #11 within 30 days. If the position of the defendant as set forth in those responses changes as result of after acquired information, the defendant shall so inform the plaintiff by way of supplemental responses within 90 days following the completion of the defendant’s examinations for discovery of the third parties. If it is necessary for the plaintiff to further examine for discovery on the defendant’s responses or supplemental responses, the defendant’s proper officer shall attend such examination at the defendant’s cost on date and at place to be agreed upon by the parties or as determined by the court. There will be no further order as to costs. APPLICATION FOR ORDERS AGAINST THE THIRD PARTIES [27] Two matters apply to all of the third parties. One relates to the Petroleum Services Association of Canada (“PSAC”) which is an organization of contractors engaged in the service sector of the oil and gas industry. The other relates to third party application for Federal Manufacturing and Processing tax credits (“M&P tax credits”). [28] The third parties are members of PSAC and participate in its affairs. Discussions have taken place between and among PSAC and its members, including representatives of the third parties, with respect to the liability of cementing services contractors and their customers to pay PST to the defendant. [29] Discussions and correspondence have also taken place between PSAC and the defendant regarding the PST issue. Two letters written by PSAC to the defendant regarding the PST issue are of particular interest to the plaintiff. One was dated October 17, 2000; the other September 27, 2001. [30] In the letter dated October 17, 2000, PSAC enclosed Commentary in response to draft PST information bulletin prepared by the defendant. In that Commentary, PSAC questioned why cementing services contractors would not be exempt from paying PST on the cost of materials used in providing their services, stating in part: Why are contract services such as cementing not included in this list for exempt services? The services, including drilling and perforating, are real property contracts where the contractor uses or consumes materials in providing these services. [31] In the letter to the defendant dated September 27, 2001, PSAC stated: With regard to the issue of Saskatchewan PST on well cementing and servicing contracts, would like to reply to your request for comments on the commercial nature of these contracts, as referred to in your letter to the Petroleum Services Association of Canada (PSAC) of July 20, 2001. The well servicing industry typically characterizes these commercial relationships in manner consistent with that articulated in the following federal court cases: Halliburton Services Ltd. v. R., (1985) C.T.C. 52, 85 D.T.C., 5336 (Fed. T.D.) Nowsco Well Service Ltd. v. Canada (sub nom. R. v. Nowsco Well Service Ltd.) 90 D.T.C. 6312, (1990) C.T.C. 416 In this regard, our members have indicated that they will continue to bill these contracts as separate sale of materials and separate sale of labour services for the installation of the materials on real property. We will support any legislative framework, which clarifies these relationships for Saskatchewan PST in manner consistent with the findings of the above-mentioned court cases. [32] The third parties have disclosed PSAC documents in their possession relating to the Saskatchewan PST issue, but have not disclosed PSAC documents in their power or control. Although they have acknowledged that they intend to claim litigation privilege over certain PSAC documents, they have not identified the documents they object to disclose. Accordingly, the plaintiff applies for orders requiring each of the third parties to provide detailed list of documents in their control, including PSAC documents relating to the tax issue in this action, and to identify documents which they object to produce by reason of claim of privilege. [33] The plaintiff says that the third party contractors pay reduced rate of income tax on manufacturing and processing profits. The plaintiff refers to Canada Revenue Agency Interpretation Bulletin IT-145R, dated January 6, 2004 (“Canadian Manufacturing and Processing Profits Reduced Rate of Corporate Tax”) which states that the reduced rate of corporate income tax applies only to income from manufacturing or processing activities of goods for sale and not to income arising from the supply of goods through contracts for work and materials. [34] The plaintiff contends that the third parties claim M&P tax credits in respect of income earned on the processing of cement and materials at the well site. The plaintiffs submit that the third party claims to M&P tax credits are incompatible with their claim that cement is sold to the plaintiff upon its delivery to the well site and before any manufacturing or processing occurs. The plaintiff seeks additional information regarding third party claims to M&P tax credits, as more fully set out below. [35] The plaintiff applies for variety of other orders against the third parties. Some of the proposed orders would apply to all three of the third parties; others to one third party. The specific orders applied for in relation to each of the third parties will be addressed one at time. 1. Orders Applied For Against BJ Services: [36] The plaintiff applies for orders requiring BJ Services: a) To answer questions asked during the Wilson Examination about PSAC documentation related to the PST issue; and b) To provide detailed list of documents in its possession or power which it objects to produce including, in particular, documents “between or among” members of PSAC relating to the PST issue over which claim of privilege is asserted, and the basis for such privilege with respect to each document. [37] BJ Services acknowledges that it is member of PSAC; that its representatives have participated in PSAC affairs by way of membership on the PSAC board and committees; and that PSAC has engaged in correspondence and meetings with the defendant concerning the PST issue. [38] BJ Services acknowledged during the Wilson Examination that it is aware of documents in the possession of PSAC relating to the PST issue. Counsel for BJ Services was then asked to provide an undertaking “to, on the best efforts basis, obtain from PSAC copies of minutes of any meetings, correspondence, memoranda, e-mails, copies of e-mails and similar documentation which are in the possession of PSAC relating to the Saskatchewan sales tax issue”. BJ Services refused to give that undertaking. [39] The plaintiff submits that as PSAC member BJ Services will have control over copies of all PSAC documents relating to the PST issue and as such must disclose and produce those documents. The plaintiff says that the documents may disclose the reasons why the third parties have taken the positions they have regarding the nature of their cementing services contracts with the plaintiff and other customers. [40] Counsel for BJ Services responds that “PSAC is not party to the action”; that “PSAC does not make commitments on behalf of BJ Services”; that “PSAC is not mentioned in the pleadings”; and that the plaintiff “has not established how it is that any of PSAC’s documents are specifically related to the practices of [BJ Services] with regard to provincial sales tax in Saskatchewan or their business relationship with Husky”. [41] Rule 212(1) requires disclosure of documents in the “possession” or “power” of the litigant. Documents that are not in the possession of the litigant must be disclosed if they are or were within litigants power. If the litigant has sufficient control over the document to obtain it from the party who has possession, then the document is within the power of the litigant. [42] The material filed on this motion satisfies me that PSAC documents relating to the PST issue are at least broadly relevant to the issues and that BJ Services likely has the power to obtain and produce them. The fact that BJ Services may intend to claim a litigation privilege over the documents, or that PSAC may not produce them, does not relieve BJ Services of the obligation to disclose their existence. (See Spencer v. Canada (Attorney General) 2000 SKCA 96 (CanLII); [2001] W.W.R. 476 (Sask. C.A.) at paragraph 18; R. v. Popowich (1996), 1996 CanLII 5034 (SK CA), 144 Sask. R. 166 (Sask. C.A.) at paragraph 17). [43] Accordingly, BJ Services must exert its best efforts to disclose and produce all relevant PSAC documents. If BJ Services is unable to produce copies of relevant PSAC documents after exerting its best efforts to obtain them, it shall inform counsel for the plaintiff, who may then take alternate steps to access them. [44] If BJ Services objects to producing any relevant PSAC documents within its control, it must identify the general nature of such documents and the specific grounds of the objection in accordance with the requirements of Queen’s Bench Rule 212(2)(c). The identification of documents in this case must include, the name of the sender, the date, and the names of all recipients. The date of each document must be provided to permit an assessment of whether it was prepared in contemplation of litigation, while the names of recipients will be important in determining whether litigation privilege has been waived. [45] In summary, BJ Services shall answer the questions asked during the Wilson Examination about PSAC documentation related to the PST issues. BJ Services shall also provide further and better disclosure of documents within 30 days by providing a detailed list of documents referred to in the second part of the first schedule of its statement as to documents. The list shall include, in particular, list of documents in the possession of PSAC or its members that are in the control of BJ Services and relate to the PST issue. If a claim for privilege is asserted over such documents, BJ Services shall identify the basis of such claim, the date of the documents, the name of the sender and the names of the recipients. c) To answer questions asked during the Wilson Examination which dealt with M&P tax credits claimed by BJ Services; [46] Mr. Dobson stated during the Dobson Examination that representatives of the third parties informed him they had intentionally structured their transactions as separate sale of manufactured goods in order to obtain M&P tax credits. This means that they have likely reported income derived from the sale of cement as manufacturing and processing income. The plaintiff submits that third party contractor claims to the M&P tax credits were inconsistent with, and affect the credibility of, their claims in this litigation that sale of TPP to the plaintiff occurred at the well site separately from the provision of services. [47] have earlier referred to two letters written by PSAC to the defendant dated October 17, 2000 and September 27, 2001, respectively. In the letter dated September 27, 2001, reproduced at paragraph 31 above, PSAC stated that its members characterize their commercial relationships “in manner consistent with that articulated in Halliburton Services Ltd. v. R., (1985) C.T.C. 52, 85 D.T.C. 5336 (Fed. T.D.) and Nowsco Well Service Ltd. v. Canada (sum nom. R. v. Nowsco Well Service Ltd.) 90 D.T.C. 6312, (1990) C.T.C. 416"". [48] In Halliburton, the Federal Court, Trial Division held that profits received by an oilfield contractor from the processing of specialized products could be treated as manufacturing and processing income entitled to M&P tax credits. In Nowsco the Federal Court of Appeal held that an oilfield contractor providing on-site cementing and well stimulation services did not enter into pure service contracts, but processed goods to the customer’s specification which were then utilized in performing specialized services for those customers. The court stated that the contractor was, therefore, processing goods for sale and that it was inappropriate to make distinction between contracts for the sale of goods and for the sale of services. As such, the contractor was entitled to claim M&P tax credits. [49] During the Wilson Examination, counsel for the plaintiff asked the following questions relating to the period 1996 to 2001, being the period for which the plaintiff claims entitlement to refund of PST: 1750 Q. MR. McKENZIE: So my first question is, does BJ claim the federal Manufacturing Processing Tax Credit in respect of its oil well or well cementing activities? 1751 Q. MR. McKENZIE: If it does claim that credit, is BJ’s claim based on the fact that the slurry, which it makes at the wellhead, is good which has been manufactured or processed in Canada for sale? 1752 Q. MR. McKENZIE: If that is not the basis upon which BJ is making its claim with respect to the Manufacturing Processing Tax Credit, what is the good in respect of which BJ is claiming the Manufacturing Processing Tax Credit? 1753 Q. MR. McKENZIE: Does BJ include in the numerator of the equation that’s provided for in calculating the entitlement to the Federal Manufacturing Processing Tax Credit, does BJ include the labour and equipment at the well site at the well head in the calculation of its manufacturing and processing labour and manufacturing and processing capital? 1754 Q. MR. McKENZIE: In claiming the Federal Manufacturing Processing Tax Credit, does BJ take the position that the materials delivered to the well site to enable it to perform the cementing of the well belong to BJ right up until the point they are installed in the well? [50] Counsel for BJ Services objected to each of the above questions and Mr. Wilson declined to answer them. In response to this motion, counsel for BJ Services argues that the M&P tax credit relates to tax on income, while PST is tax on property. Claims for M&P tax credits are “not material to the pleadings” and “not relevant to determining liability for PST”. [51] If the third parties have characterized what occurs under their contracts with the plaintiff in one manner for the purposes of claiming M&P tax credits and in different manner for the purpose of avoiding liability for PST, it may be broadly relevant to this litigation. Specifically, if the third parties claim and receive M&P tax credits on the basis that mixing, blending and pumping of the cement slurry at the well site constitutes manufacturing or processing of goods for sale in Canada, the plaintiff may argue that the position taken for M&P tax credit purposes is inconsistent with the contention that the cement (that is, the TPP for PST purposes) is sold separately to the plaintiff at the well site before the slurry is produced. Similarly, if the third parties have included the cost of the cement in their claims for the federal M&P tax credit, it may be broadly relevant to the interpretation of provisions in the cementing services contracts which the defendant and the third parties plead are ambiguous. [52] It will be for the trial judge to determine how, if at all, the evidence is significant. For these reasons BJ Services must answer the questions 1750 to 1754 inclusive asked during the Wilson Examination with respect to M&P tax credits. d) To provide response to undertaking #30 given during the Wilson Examination, which was to advise if BJ Services “takes any issue with” the statement in the second paragraph of the letter dated September 27, 2001 written by PSAC to the defendant. [53] Although BJ Services gave an undertaking during the Wilson Examination to provide the plaintiff with response to undertaking #30, the response provided was: Answer: BJ Services maintains its objection to any questions regarding the Federal Manufacturing and Processing credits as being irrelevant to this action. [54] have decided that the manner in which BJ Services characterized its cementing services contracts for the purpose of claiming M&P tax credits may be broadly relevant to its characterization of the contracts for the purpose of the plaintiff’s liability to pay PST. It follows that BJ Services must provide full and complete answer to undertaking #30 given during the Wilson Examination. e) To provide answers to questions asked during the Wilson Examination with respect to BJ Services’ general denial of the plaintiff’s entitlement to judgment against the defendant; and f) To provide response to undertaking #32 given during the Wilson Examination, which was to “provide summary statement of the basis of the defence”. [55] In its statement of defence to the third party claim, BJ Services generally denied that the plaintiff is entitled to judgment against the defendant. During the course of the Wilson Examination, BJ Services undertook to provide summary statement of the basis of that defence. However, the response to undertaking #32 stated only: Answer: BJ Services will defer to its legal counsel to provide response to this question in due course. [56] Counsel for BJ Services objects to providing response to the undertaking on the basis that it is legal rather than factual question. do not agree. The plaintiff is entitled to know the case it must meet from the third parties. party may raise any point of law in his or her pleading (Queen’s Bench Rule 141) and is required to plead any statute or regulation on which his or her case is founded (Queen’s Bench Rule 142). If the pleadings do not state the facts and legal principles being relied upon by the third parties, then the plaintiff may clarify this on examination for discovery. The fact that the plaintiff did not demand particulars of the third parties’ pleading does not preclude it from exploring the issues during the examinations for discovery. [57] BJ Services is required to answer the questions asked during the Wilson Examination with respect to the general denial of the plaintiff’s claim against the defendant, and to provide summary statement of the basis of the defence in response to undertaking #32. g) To provide answers to questions relating to documentation used by BJ Services in British Columbia. [58] During the course of the Wilson Examination counsel for the plaintiff asked the following questions: Q. 1779: So now let me ask you. Is the documentation used in respect of B.C. Cementing Services the same as the documentation that is used in Saskatchewan? Q. 1780: And am going to ask the next question does BJ charge its customers B.C. sales tax in respect of its B.C. cementing contracts? Q. 1781: If BJ does not charge B.C. sales tax, why not? Q. 1782: Did BJ ever charge B.C. sales tax to its customers in respect of its cementing business in British Columbia? [59] Mr. Wilson declined to answer the above questions on the basis that BJ Services’ practices in other jurisdictions are not broadly relevant to the question of its liability to pay PST in Saskatchewan. agree. Apart from the bare contention that the questions are broadly relevant and should be answered, the plaintiff does not explain how answers to these collateral questions might potentially assist in or relate to the determination of liability for payment of PST in this province. find that BJ Services is not obligated to answer the above questions. h) To provide full and complete replies to undertakings #8, #9, #25 and #26 given during the Wilson Examination. [60] Following the hearing of this motion, counsel for BJ Services informed the court that responses to undertakings #8, #9 and #25 have now been provided to the plaintiff. Accordingly, no further order will be required. [61] BJ Services has not yet responded to undertaking #26, which was: Undertaking #26 Advise if BJ agrees with the statement or takes issue with the statement and advise why: “It has become normal practise in the oil and gas industry for contractors providing reservoir stimulation and cementing services to itemize their charges to the customer and collect tax on the material portion of their service contracts”. “This appears to be [sic] with the other real property contracts where contractor supplies and installs materials for the improvement to real property. The cementing service and well stimulation service contractors are the user and consumer of the materials used or consumed in his performance of the real property contract. These contractors want to be treated the same as any other contractor.” This statement was extracted from the commentary enclosed in PSAC’s letter to the defendant dated October 17, 2001, which has been referred to at paragraph 30 above. BJ Services provided its unqualified undertaking to respond to this undertaking during the Wilson Examination held mid-March 2007, but it has not yet done so. It will be required to provide its written response to undertaking #26 within 30 days. i) Provide complete reply to the following undertaking #23 given during the Wilson Examination, including an income statement for BJ Services Company Canada with the numbers redacted; Undertaking #23 Produce copy of the chart of accounts with the numbers redacted; provide an income statement with the numbers redacted. BJ Services initial response stated: Answer: copy of the Chart of Accounts with the numbers redacted is attached. BJ Services is still considering its response with respect to the request for an income statement. supplementary response stated: Supplementary Answer: The first portion of this question was previously answered. The Chart of Accounts previously provided is the most detailed information available on BJ Services system. That is, BJ Services only reports its gross revenue. Unlike public company, it does not provide income statements Its accounting system can provide various reports based on the input parameters. The Chart of Accounts is, however, the most detailed of those inputs. Thus, all other reports would, necessarily, provide less detailed information. In any event, since Quantum is not an issue at this stage in the proceedings, an income statement is not relevant to the issues in dispute. [62] In its response to subsequent undertaking (#24), BJ Services informed the plaintiff that it in fact separates revenue derived from the sale of cement from revenue derived from the sale of services. Nevertheless, it objects to providing copy of an income statement with the numbers redacted, arguing that it is “unnecessary, inappropriate and redundant”. do not agree. The purpose of the plaintiff’s inquiry is to ascertain if the income statements are formatted in manner that supports the position taken by BJ Services. The plaintiff is not obliged to accept whatever it is told by an adverse party; it is entitled to be shown. [63] BJ Services will be required to fully comply with undertaking #23 by providing an income statement with the numbers redacted. If there is dispute as to the year or years for which the statement is to be provided, either party may apply for further directions. [64] The application for orders requiring BJ Services to answer questions relating to documentation used in British Columbia as set forth in paragraph 58 above is dismissed. All other orders applied for by the plaintiff in relation to BJ Services, including orders for further and better disclosure of documents, are granted on the terms set out above. In addition, to the extent BJ Services is required to provide the plaintiff with complete answers to questions asked or complete responses to undertakings given during the Wilson Examination, each answer and each response shall be in written form and provided to the plaintiff within 30 days. If further examination for discovery is necessary as result of compliance with this decision the proper officer shall attend for examination at the expense of BJ Services at time and location to be agreed upon or determined by the court. 2. Orders Applied For Against Trican Well Service Ltd. [65] The plaintiff applies for orders requiring Trican: a) To disclose non-redacted version of two documents marked as Exhibits D-62 and D-73 respectively during the Kelly Examination. [66] portion of the document marked as Exhibit D-62 (Trican disclosure document number 17) is Trican cement project costing document dated 98/11/24 which relates to Trican’s bid for providing cementing services to the plaintiff. portion of the document marked as Exhibit D-73 (Trican disclosure document number 21) consists of letter to the plaintiff from Trican dated December 4, 1998, enclosing cost estimates for Trican’s “cement service charge”. Although Trican did not apply for an order authorizing disclosure of these bid documents in redacted form, they were disclosed to the plaintiff with the numbers redacted. [67] During the Kelly Examination counsel for the plaintiff inquired into whether the un-redacted documents contained numbers for “cost of sales” and “product”. He attempted to determine if Trican separated set-up costs and charges for cement from the overall cost of the job. He also asked how Trican went through the process of costing job and then making its bid, because the disclosed bid documents did not itemize the costs. [68] Subsequent to the Kelly Examination, counsel for the plaintiff asked for production of non-redacted copy of the documents. Trican’s counsel responded: “. in light of the confidential nature of this business information, the fact that actual dollar values are not in dispute at this stage in the law suit and the fact that you had full opportunity to explore the significance (if any) of this document with Mr. Kelly, we reject your request for the non-redacted version of the document”. [69] The plaintiff submits that non-redacted copies of the documents will enable it to demonstrate whether Trican included charge for services in the charge for materials. In particular, counsel submits that non-redacted copies will demonstrate that Trican included service charges in its charges to the plaintiff for cementing materials charge inconsistent with the defendants position that there is separate sale of materials and separate sale of services. [70] am persuaded that partially non-redacted copies of the documents would be both relevant to the issues raised by the litigation and relevant to understanding the facts. Trican offers no support for its assertion that providing non-redacted copies would disclose sensitive business information. The services were provided in 1998 and the costs are likely to have little relevance to what Trican now charges for cementing services. As well, Trican may disclose the relevant portions of the document (namely, those portions disclosing whether Trican included charge for services in its charges for materials) while leaving the remaining portions redacted. Again, the significance of the disclosed facts will be for the trial judge. [71] For these reasons, Trican shall, within 30 days, disclose to the plaintiff copies of Kelly Examination Exhibits D-62 (Trican disclosure document number 17) and D-73 (Trican disclosure document number 21) which include information relevant to the question of whether Trican included charge for services in its charges for materials levied in providing cementing services to Husky in 1998. If the parties cannot agree on the extent to which additional information must be disclosed, either may apply for further directions. b) To reply to undertaking #21 given during the Kelly Examination by advising the plaintiff of the basis on which Trican denies Husky’s entitlement to the refund of PST claimed in its statement of claim. [72] Having already determined that BJ Services is obligated to outline the basis of its general denial to the plaintiff’s claim, it follows that Trican has the same obligation. Trican shall provide summary of the basis for its general denial on the same terms as those applicable to BJ Services. c) To answer questions asked during the Kelly Examination relating to Trican’s claims for M&P tax credits. [73] During the Kelly Examination counsel for the plaintiff asked the following questions: Q. 548: So in fact Trican does claim the Manufacturing Processing Income Tax Credit in filing its income tax returns? Q. 549: Was it Trican’s position in filing its income tax returns that the mixing, blending, pressurizing and pumping of the cement and additives into slurry, which is installed in the well bore outside the casing to cement the casing, constituted the manufacturing and processing of goods for sale for the purposes of the Manufacturing Processing income tax credit? Q. 550: Did Trican include in the numerator of the equation used in the calculation of the manufacturing and processing revenue for income the labour and the cost of equipment employed at the well site in performing the well cementing services? [74] For the reasons set forth at paragraphs 46 to 51 above, Trican shall provide written answers to questions 548, 549, 550 and 551 asked during the Kelly Examination. d) To answer whether Trican agrees with the statement contained in the second paragraph of the PSAC letter to the defendant dated September 27, 2001. [75] The letter in question is set out in paragraph 31 above and for the reasons already provided in paragraphs 52 to 54, Trican shall provide written response to the question. [76] The orders applied for by the plaintiff in relation to Trican are granted on the terms set out above. In addition, to the extent Trican is required to provide the plaintiff with complete answers to questions asked or complete responses to undertakings given during the Kelly Examination, each answer and each response shall be in written form and provided to the plaintiff within 30 days. If further examination for discovery is necessary as result of compliance with this decision, the proper officer shall attend for examination at the expense of Trican at time and location to be agreed upon or determined by the court. 3. Orders Applied For Against Sanjel Corporation [77] The plaintiff applies for orders requiring the third party, Sanjel: a) To answer questions asked during the Wienecke Examination related to claims made by Sanjel for federal M&P tax credits. [78] The following questions were asked with respect to M&P tax credits: Q. 636 Are you able to describe to me generally how it [federal manufacturing and processing tax credits] works? Q. 637 Would you agree with me that one of the key elements to entitlement to the Manufacturing and Processing Tax Credit is the manufacturing and processing of goods for sale, and that the Manufacturing and Processing of goods alone is not good enough? The goods must be for sale. Do you agree with that? Q. 638 In filing its Federal and Provincial Income Tax Returns for the period 1996 2001, did Sanjel take the position that the mixing, blending, pressurizing, and pumping of the cement and additives into slurry, which is installed in the well bore outside the casing to cement the casing in place, constituted the manufacturing and processing goods for sale for the purposes of the Manufacturing and Processing Income Tax Credit? Q. 639 Did Sanjel include in the numerator of the equation used in calculating the manufacturing and processing revenue for Federal and Provincial income tax purposes the labour and cost of equipment employed at the well site in performing the well cementing services? [79] For the reasons given with respect to BJ Services at paragraphs 46 to 51 above, Sanjel shall provide written answers to the above questions. b) To answer whether or not Sanjel Corporation agrees with the statements contained in the letter written by PSAC to Mr. Dobson dated September 27, 2001. [80] For the reasons given with respect to BJ Services at paragraphs 52 to 54 above, Sanjel shall provide written answer to the question. c) To provide response to the following undertaking #41 given during the Wienecke Examination: Undertaking #41 Advise if there are additional factors that are pleaded relative to the following question: “On what facts is Sanjel relying in asserting that Husky is not entitled to the refund of PST paid in respect of the materials used in cementing services”. [81] The essence of this question is to secure summary statement of Sanjel’s general denial of the plaintiff’s claim to refund of PST paid to the defendant. For the reasons already provided with respect to essentially the same undertakings given by both BJ Services and Trican, there will be an order requiring Sanjel to provide substantive response to this undertaking. [82] The orders applied for by the plaintiff in relation to Sanjel are granted. In addition, Sanjel is required to provide the plaintiff with complete answers to questions asked or complete responses to undertakings given during the Wienecke Examination, each answer and each response shall be in written form and provided to the plaintiff within 30 days. If further examination for discovery is necessary as result of compliance with this decision, the proper officer shall attend for examination at the expense of Sanjel at time and location to be agreed upon or determined by the court. [83] The costs of this application against the defendant will be in the cause. The plaintiff shall be entitled to receive one set of taxable costs only from the third parties, to be divided equally between the third parties and paid by them in any event of the cause.","FIAT: The plaintiff applies for orders requiring the defendant and third parties to answer questions and respond to undertakings arising from the examinations for discovery in this action pursuant to Rules 222, 231 and 232 of the Queen's Bench Rules and an order requiring the third parties to provide further and better disclosure of documents in their power pursuant to Rules 212 and 215. HELD: 1) A party to litigation cannot decline to answer questions on an examination for discovery that are intended to elicit the facts on which that party has based its pleading. A party is required to divulge the facts that it has now or admit that it has none if such is the case. The defendant is obligated to provide its responses to the undertakings before the examination for discovery of its proper officer is concluded so that he can be further examined on the responses. If the position of the defendant as set forth in those responses changes as a result of after acquired information, the defendant shall so inform the plaintiff by way of supplemental responses within 90 days following the completion of the defendant's examinations for discovery of the third parties. If it is necessary for the plaintiff to further examine for discovery on the defendant's responses or supplemental responses, the defendant's proper officer shall attend such examination for discovery. 2) The material filed satisfies the Court that PSAC documents relating to the PST issue are at least broadly relevant to the issues and that BJ Services likely has the power to obtain and produce them. The fact that BJ Services may intend to claim a litigation privilege over the documents, or that PSAC may not produce them, does not relieve BJ Services of the obligation to disclose their existence. BJ Services shall provide further and better disclosure of documents by providing a detailed list of documents referred to in the second part of the second schedule of its statement as to documents. If a claim for privilege is asserted over such documents, BJ Services shall identify the basis of such claim, the date of the documents, the name of the sender and the names of the recipients.",c_2007skqb355.txt
101,"INFORMATION 24202906 2005 SKPC 38 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT YORKTON, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- TODD R. TYNDALL Brent Klause for the Crown Arliss Dellow for accused GREEN, R.G., PCJ JUDGMENT April 11, 2005 I. INTRODUCTION [1] Todd Tyndall is charged with driving without due care and attention at Yorkton, Saskatchewan on February 18, 2004, contrary to section 44(1) of the Highway Traffic Act. Section 44(1) provides “no person shall drive vehicle on highway without due care and attention”. This offence is in effect careless driving, as distinguished from dangerous driving under the Criminal Code. [2] At trial, the Crown called three witnesses: Rebecca Banga, Justin Banga and Lance Kuchar. The defence then called four witnesses: Michael Rostotski, Corporal Pelzer, Constable Kinellson and Mr. Tyndall. [3] On this date, Mr. Tyndall, who is Constable with the Royal Canadian Mounted Police stationed in Yorkton, was on duty in marked police car. With him was an authorized “ride-along” passenger named Michael Rostotski. While driving south on the road that passes beside Tim Horton’s restaurant, Mr. Tyndall received radio message asking him to assist another officer on “non-priority” matter in the south-west part of Yorkton. accept Mr. Tyndall’s evidence that the most direct route to the area he was called to was proceeding straight south along this road, passing directly to the east of Super Store, and then connecting to Highway and subsequently to the bypass leading to the south-west area. [4] As he drove his vehicle down the road past Super Store on his right, with the parking lot on his left, Mr. Tyndall stopped his vehicle, and backed up to where Justin Banga and Rebecca Banga were standing with their infant girl. There was then discussion between Mr. Tyndall and Mr. Banga, and shortly thereafter Mr. Tyndall’s vehicle moved forward and collided with Lance Kuchar, man who just come out of Super Store and was crossing the road on foot directly in front of this police vehicle. [5] The issue to be determined is whether Mr. Tyndall’s actions in operating his vehicle on the road beside Super Store constituted driving without due care and attention. The standard to be applied was set out by the Saskatchewan Court of Queen’s Bench in R. v. Kozun 1997 CanLII 11313 (SK QB), [1997] S.J. No. 98, where Madam Justice Hunter, in applying the Supreme Court of Canada’s decision from R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] S.C.R. 1299, held that an offence under section 44(1) is strict liability offence “in which the prosecution need not prove state of mind, but it is open to the accused to prove due diligence defence” including “taking all reasonable steps to avoid the particular event”. As result, the standard of proof in this case is whether the Crown has proved that Mr. Tyndall drove without due care and attention applying an objective test in assessing carelessness and if so, whether Mr. Tyndall has then shown, on balance of probabilities, that he exercised due diligence in the context of the circumstances he encountered. [6] The actions of Mr. Tyndall which could be considered careless are, firstly, the speed at which he drove past Super Store, and, secondly, his driving forward into Mr. Kuchar. [7] Regarding the issue of speed, Mr. Banga said, after he and his family left Super Store, that car “zipped past”. He thought this car was going too fast based on the short time it took to pass by them, as they stood at the cross-walk preparing to cross this road. Mrs. Banga said the car was moving by them very fast. Neither witness estimated the actual speed of this vehicle. [8] For the defence, Michael Rostotski testified that the vehicle he was in was travelling at between 20 and 25 kilometres per hour. Mr. Tyndall testified he was not driving too fast, but did not state any speed. As no evidence was lead by the Crown on what the speed limit was at the point Mr. Tyndall drove by the Bangas, there is insufficient evidence to conclude, even on an objective standard, that Mr. Tyndall’s act in initially driving past the Bangas constituted driving without due care and attention. [9] The issue of Mr. Tyndall’s vehicle striking Mr. Kuchar is more complex. In considering whether this action by Mr. Tyndall constituted an offence under section 44(1), will review four areas where there was inconsistency and conflict in the evidence given by Crown and defence witnesses. 1. Why did Mr. Tyndall come back, and was he justified in doing so? [10] At trial, the Crown questioned, in considering the totality of Mr. Tyndall’s driving, why he would have stopped his vehicle, and then backed up to speak with Mr. Banga. In effect, the suggestion was that Mr. Tyndall had an oblique motive for doing so, perhaps thinking that Mr. Banga was being insolent and returning to set him straight. The Crown argued Mr. Tyndall should have simply continued driving. [11] This assertion was based on the evidence of Mr. and Mrs. Banga that neither was waving their arms, or giving any other cause for concern other than Mr. Banga’s statement to his wife saying “that vehicle could slow down”. No specific reference was made by Mr. or Mrs. Banga about how loud this statement was, although Mr. Banga, who described himself as shocked, annoyed and concerned by the situation, did say he was not shouting at the officer. Both Mr. Rostotski and Mr. Tyndall said they passed by where the Bangas were standing, heard someone they later determined to be Mr. Banga holler, and then reversed to his position to find out what his concern was. [12] In these circumstances, as there could be no other reason on the evidence presented for Mr. Tyndall to stop his vehicle, find that Mr. Banga did use raised voice in speaking to his wife, and that his voice was overheard by Mr. Tyndall and Mr. Rostotski. also find that Mr. Tyndall could have reasonably concluded that Mr. Banga was in need of assistance. Clearly, as police officer, Mr. Tyndall was placed in difficult position. Had he not responded through this inquiry, and had Mr. Banga been seeking assistance for some emergency situation occurring in or near Super Store, this officer may well have been criticised for simply driving off. 2. What was said between Mr. Tyndall and Mr. Banga after he reversed his vehicle? [13] Although not recalling Mr. Tyndall's exact words to Mr. Banga, Mrs. Banga said the officer asked ""Did you say something, sir?"" She gave no other evidence about further conversations between the two. Mr. Banga initially said Mr. Tyndall first asked him what he had said. Later in his evidence, Mr. Banga said the officer first asked if Mr. Tyndall had problem with him, and what he had said. Mr. Banga then testified that he replied he had told his wife ""that car could slow down"", and that Mr. Tyndall then told him he was on call, and presumably had to leave. Mr. Banga claimed he didn't lose his temper, and that the exchange was not heated. He gave no evidence about discussions between Mr. Tyndall and Mr. Kuchar. [14] Defence witness Michael Rostotski said, after reversing his vehicle, Mr. Tyndall asked Mr. Banga if he could help him, referring to him as “sir”. He said Mr. Banga replied ""Slow the fuck down"" and ""you should have had your fucking lights and sirens on"". Mr. Rostotski then said that, after some conversation between Mr. Tyndall and Mr. Banga, Mr. Tyndall told Mr. Banga he did not have time as he was on call. [15] Mr. Tyndall testified that, after backing up to where Mr. Banga was, he said to him ""Sir, can help you?"" Mr. Banga responded that Mr. Tyndall should slow ""the fuck"" down and then said if Mr. Tyndall had call he should ""fucking go"". [16] This incident happened over year ago. note elsewhere in Mr. Banga's evidence that he claimed Mr. Tyndall got out of his police vehicle after striking Mr. Kuchar, contrary to the evidence of Mr. Tyndall and Mr. Kuchar who both said the officer remained in his vehicle. As result and given the stressful situation Mr. Banga found himself in, question whether Mr. Banga, while testifying, had complete and accurate recollection of what was said. Given the contradictions in evidence on this point, am not able to determine the exact words spoken between these two. do, however, accept that Mr. Banga was upset at Mr. Tyndall this day, and did use an angry and raised voice towards Mr. Tyndall. further accept that Mr. Tyndall did initially inquire about whether he could assist Mr. Banga, and that the conversation then became heated between the two, and ended when Mr. Tyndall said he had to leave on his call. 3. What was said between Mr. Tyndall and Mr. Kuchar after Mr. Tyndall's vehicle struck him? [17] Mr. Kuchar said that as he was leaving Super Store, he passed in front of stopped vehicle, which turned out to be Mr. Tyndall's vehicle. Mr. Kuchar looked to his right and began to cross the road. He was then struck from the left by Mr. Tyndall's vehicle, and fell onto that vehicle's hood. He suffered swelling in his hip, and was later taken to the emergency ward of Yorkton Regional Hospital by another police officer. After being struck by the vehicle, Mr. Kuchar said he approached Mr. Tyndall, and said ""What the hell are you doing"", after which Mr. Tyndall lifted up his hands. Mr. Kuchar said he then advised Mr. Tyndall that he would sue him if he was injured, to which Mr. Tyndall responded he had insurance. Mr. Kuchar questioned Mr. Tyndall about whether he was drinking, and why he had not been watching. He admitted to losing his temper, and wasn't sure if he swore at the officer. He also said Mr. Tyndall may have asked him whether he needed an ambulance. Mr. Kuchar claimed Mr. Tyndall initially would not give his name, but later did. [18] Mr. Rostotski said Mr. Kuchar, after being struck by the vehicle, was angry, and said ""Where the fuck where you going"" and said he could sue Mr. Tyndall. He said Mr. Tyndall apologised, saying this was an accident and asked whether Mr. Kuchar wanted ambulance assistance. He also said Mr. Kuchar initially refused to give his name. [19] Mr. Tyndall said, after striking Mr. Kuchar, he immediately apologized to him, at which time Mr. Kuchar ""went off” on him, questioning whether Mr. Tyndall was “high”, and saying he was going to sue Mr. Tyndall, and he was going to have Mr. Tyndall fired. He said Mr. Kuchar initially refused to give his name, and continued his angry accusations toward Mr. Tyndall. Given the nature of this confrontation and as an accident had occurred, Mr. Tyndall said he rolled up his window, and called for other police officers to attend the scene. [20] There is no doubt Mr. Kuchar was very angry. This is understandable, given that he was struck by vehicle shortly after emerging from Super Store. find that Mr. Tyndall did apologise to him, and did offer to have an ambulance summoned. find that Mr. Kuchar, who was crossing the road outside of the cross-walk, did swear at Mr. Tyndall, and did threaten to sue him and cause him to be fired from his employment. do not find much significance in which of the two, if any, would not provide their names, as this exchange eventually occurred between the two in an incident that was relatively short in duration. 4. How far did Mr. Tyndall's vehicle move before he struck Mr. Kuchar? [21] key issue in this trial was how far Mr. Tyndall's vehicle moved before striking Mr. Kuchar. Mr. Kuchar said it moved five to six feet, although he was guessing about that. Mr. Banga said the vehicle moved between fifteen and twenty feet, then said it was ten to fifteen feet, then said two to fifteen feet. On cross-examination, Mr. Banga admitted he had given statement saying Mr. Tyndall's vehicle was not going very fast when it struck Mr. Kuchar, and that the vehicle only moved short distance. Mr. Banga also admitted saying that his judgement regarding distances was ""not great"". Mrs. Banga, on cross-examination, testified that the vehicle moved between six inches and two feet before striking Mr. Kuchar. [22] Mr. Rostotski said the car only moved one half tire rotation before striking Mr. Kuchar, who was less than one foot from the car when he first saw Mr. Kuchar. Corporal Pelzer, of the RCMP, attended immediately to the scene that evening, and photographed and measured skid mark on the pavement below this police vehicle's left front tire. accept that this vehicle had not been moved at the point Corporal Pelzer attended. He said this skid mark measured thirty-four centimetres, distance of approximately one foot. Corporal Pelzer also said he could find no sign of damage to the front end of this vehicle at the point where contact was made with Mr. Kuchar. Mr. Tyndall, in his evidence, said after concluding his conversation with Mr. Banga, he took his foot off the brake, not touching the accelerator, and rolled forward striking Mr. Kuchar, who was directly in front of the vehicle. He said the vehicle moved less than one foot, and didn't not strike Mr. Kuchar with any significant degree of force, saying (as did Mr. Rostotski) that their seat belt harnesses did not lock upon impact. [23] Based on the evidence of Corporal Pelzer, as confirmed by the picture filed as #4 in Exhibit P1, and the evidence of Mrs. Banga, taken together with the evidence of Mr. Rostotski and Mr. Tyndall, accept that this vehicle only moved very short distance forward before striking Mr. Kuchar. accept that distance was at most one foot. also accept Mr. Tyndall's evidence that he did not touch the accelerator, and briefly took his foot off the brake, and then immediately reapplied the brake after seeing Mr. Kuchar, who find was positioned directly in front of the police car at this time. also accept that neither seat belt, belonging to Mr. Tyndall or Mr. Rostotski, locked upon striking Mr. Kuchar, and that this vehicle did not accelerate and did not move forward quickly before striking him. [24] The first part of the test set out by the Supreme Court of Canada in R. v. Sault Ste. Marie, as adopted and applied to this offence in Kozun, is whether the Crown has proved that the driving by the accused was careless. Here, we have pedestrian crossing road adjacent to parking lot, and while walking directly in front of stopped vehicle, he is then struck by that vehicle as it rolls forward into him. Viewed objectively, and before considering any explanation from and on behalf of Mr. Tynadall, am satisfied that this driving was careless. [25] The second part of the Sault Ste. Marie test is whether Mr. Tyndall has shown, on balance of probabilities, that he exercised due diligence, or took reasonable care, on this date. Based on his evidence, and the findings of fact have made, am so satisfied. In particular, I accept that his vehicle rolled forward only a short distance of not more than one foot, and not at a fast or accelerating speed, that Mr. Kachur was directly in front of the police vehicle and was crossing the parking lot road outside of the cross-walk, and that Mr. Tyndall - without having applied any force to his accelerator peddle - immediately applied his brake when he saw Mr. Kachur, and immediately took steps both to assist Mr. Kachur by asking if he required an ambulance, and to have other officers attend at the scene. [26] In conclusion, I am satisfied, on a balance of probabilities, that, given the situation Mr. Tyndall found himself in, he could not have reasonably anticipated that a person would have been so close in front of him, and further that Mr. Tyndall did exercise due diligence both before and after striking Mr. Kachur. [27] As a result I find him not guilty of this charge. Dated at Yorkton, Saskatchewan, on this 11th day of April, 2005. GREEN, R.G., PCJ","The accused is charged with driving without due care and attention contrary to s. 44(1) of the Highway Traffic Act. A pedestrian was crossing a road adjacent to a parking lot and, while walking directly in front of a stopped vehicle, was struck by the vehicle when it rolled forward. HELD: The accused is not guilty. The court accepted the accused's evidence that his vehicle rolled forward only a short distance of not more than one foot and not at a fast or accelerated speed and that the pedestrian was crossing outside of the cross walk and that the accused applied his brakes as soon as he saw the pedestrian. The accused did exercise due diligence.",2_2005skpc38.txt
102,"J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Jeffery v. Naugler, 2006 NSSC 43 Date: 20060210 Docket: S.H. No. 193869 Registry: Halifax Between: Girth Ruth Jeffery Plaintiff/Respondent v. Chris Naugler Defendant/Applicant Judge: The Honourable Justice M. Heather Robertson Heard: September 28, 2005, in Halifax, Nova Scotia Written Decision: February 10, 2006 Counsel: Sarah L. Harris, for the plaintiff/respondent Christa M. Hellstrom, for the defendant/applicant Robertson, J.: [1] The defendant’s motion for summary judgment arises out of an automobile accident that occurred on May 22, 2001. The plaintiff was driving from Halifax to Seabright on Highway 103. She alleges that when the defendant driving tractor-trailer passed her vehicle, piece of metal came off of his vehicle, fell to the pavement, bounced on to the engine bonnet of her car, hit the left front fender near the aerial and then the wind blew it in through her open driver’s side window. [2] The plaintiff says that this caused her to remove her hands from the steering wheel to brush the metal away from her face. The plaintiff says her glasses were knocked off her face to the floor of the vehicle. The plaintiff says that in grabbing the steering wheel, her hand became caught in the opening of the wheel and this resulted in an injury to her as she turned the wheel, attempting to regain control of her vehicle. The plaintiff claims damages for injuries to her arms, shoulders and neck. [3] The defendant engaged two experts who examined the piece of metal and reported that the metal did not come from the tractor-trailer. The defendant says that the claim is factually unsupported and cannot be proved and there is therefore no issue to be tried. [4] The defendant correctly relies upon the operation of Civil Procedures Rule 13.01(a) and Supreme Court of Canada judgments, Hercules Management Ltd. v. Ernst Young, 1997 CanLII 345 (SCC), [1997] S.C.R. 165 (S.C.C.) and Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 (S.C.C.). They also rely upon the Nova Scotia Court of Appeal’s decision in United Gulf Developments Ltd. v. Iskander, 2004 CarswellNS 67 (N.S.C.A.) where that court adopted the Supreme Court of Canada’s test for summary judgment applications as outlined by Moir J. in Binder v. Royal Bank, 2003 CarswellNS 309 (N.S.S.C.). [5] It is now well established law that the applicant for summary judgment must meet threshold test and establish that there is no genuine issue of material fact requiring trial. Once the applicant has succeeded in meeting this test the respondent must then establish that his or her claim is one with real chance of success. [6] In Selig v. Cook’s Oil Co. 2004 CarswellNS 328 (N.S.S.C.) MacAdam J. adopted useful outline of five propositions that had been accepted by Rooke J. in Jagar Industries Inc. v. Canadian Occidental Petroleum Ltd., [2000] A. J. No. 994 (Alta Q.B.). (1) It is not open to Respondent on summary judgment application to argue that triable issue exists based upon facts or evidence not currently available but which may emerge at discovery or trial. (2) Where an Applicant has shown there are no facts in issue for trial, it is incumbent upon the Respondent to adduce evidence that it has reasonable chance of success at trial. (3) It is not sufficient for Respondent who resists summary judgment to present only bare allegations of fact; the Respondent must present evidence which lends some support to the claims it advances. (4) It is appropriate to summarily dismiss Third Party action for indemnity where the evidence shows no claims are advanced in the Plaintiff's pleadings which give rise to an obligation to indemnify. (5) summary judgment application may be made at any time. There is no need for an Applicant on summary judgment application to await the outcome of examinations for discovery before applying for and obtaining judgment. [7] The respondent in reply must therefore not simply rely upon the allegations made in the pleadings, but must present, by way of affidavit or other evidence, specific facts showing that there is genuine issue to be tried. [8] In considering the motion, the Chambers judge must consider not only the pleadings, but the other available documentation such as discovery evidence, admissions of fact, affidavit evidence or other evidence then available. Dawson v. Rexcraft Storage Warehouse Inc. 1998 CarswellONT 3202 (Ont. C.A.). [9] As stated by Justice Borins in Dawson, supra, at para. 13: The essential purpose of summary judgment is to isolate and then terminate, claims and defences that are factually unsupported. ... He then continues However, as most motions for summary judgment focus on the factual foundation of the claim or defence, their legal sufficiency does not arise frequently on motion for summary judgment. Even though there is no genuine issue for trial with respect to the facts, plaintiff is not entitled to summary judgment if the facts do not establish cause of action which entitles the plaintiff to some remedy from the defendant. [10] The plaintiff acknowledges the defendant’s expert reports, but says that nevertheless her evidence on discovery is that she saw the piece of metal dangling from the defendant’s trailer as it passed her motor vehicle. The plaintiff asserts that she has therefore established the factual underpinning to support her cause of action and is entitled to have her credibility on this evidence tested at trial. The plaintiff argues that neither of the expert reports refute her eye witness testimony. [11] The report of Bryden G. Ryan, Licensed Mechanic and Stuart D. Smith, B.Eng., Ph.D., Ph.Eng., of C.R. Tyner and Associates Ltd. included an appendix of photocopies of the piece of metal. It measured 13 18 centimetres (5 inches) and weighed approximately 140 grams (5.0 ounces). Also attached to the report were photos of the defendant’s vehicle and trailer, as well as photograph of pair of new original equipment brake backing plates (dust shields) purchased to compare them to the existing brake backing plates on the trailer to eliminate the suggestion that the piece of metal examined could have been piece of corroded brake backing plate on the trailer. An original brake backing plate examined on the trailer showed some corrosion and had dissimilarly sized piece missing from it. This was the reason for this line of inquiry as every other area of the trailer was upon inspection found to be in tact and in good repair. [12] The conclusion reached by Mr. Ryan after his examination of the metal and the vehicle and trailer was “The piece of metal is not and never has been part of the tractor-trailer.” Nor upon examination of the tractor-trailer was he able to find any location near the drive wheels or near the trailer wheels where the piece of metal could have been dangling. [13] H. A. Hancock metallurgical engineer examined the piece of metal in question and compared it to the purchased original equipment brake backing plate which he called dust shield in his report. He stated: In my opinion, the two samples of metal examined do not come from common source. They were both made from low carbon steel sheet which had been partly work hardened. This is common material used in the manufacture of motor vehicles. However, there was small but significant difference in the thickness of the sheet and also in the type of coating applied to it. The dust shield was painted which is the usual method used by the automotive industry to protect against corrosion. Given the exposed location of the dust shield, might have expected an additional coating of zinc as added corrosion protection but have no experience with truck parts of this type. The metal fragment has been coated with an aluminum-silicon alloy, probably by hot dipping process. The aluminum-silicon alloy formed metallurgical bond with the steel which is the second layer between the outer alloy coating and the steel. This type of coating may be used to protect the steel from corrosion but the most common application is to protect the steel from oxidation due to exposure to elevated temperatures. The fragment seems to have been exposed to road salt. One possible source of the fragment is the exhaust system from car or truck. He concluded: 1. In my opinion, the two samples tested did not come from common source. 2. Both samples were made from low carbon sheet steel which had been lightly cold worked. They had similar microstructures and hardness. 3. There was small but significant difference in the thickness of the coated steels. 4. The coating systems used on the two samples were quite different. The dust shield was painted and the fragment was coated with an aluminum-silicon alloy, probably by hot dipping. 5. The coating employed on the metal fragment strongly suggests that it was intended for an application where high temperatures were expected. [15] The defendant asks the court to conclude from their expert reports that the piece of metal the plaintiff alleges hit her vehicle and caused her injury did not come from the defendant’s vehicle and could not have been dangling from the defendant’s vehicle. [16] The defendant acknowledges the possibility that if the metal piece was lying on the highway it could have become airborne as the defendant’s vehicle passed the plaintiff’s vehicle. In this event they submit that the remoteness of cause would save the defendant harmless from liability. [17] In her discovery testimony the plaintiff gives varying answers when questioned as to where, on the defendant’s vehicle, she saw the piece of metal dangling. [18] The plaintiff indicated that she saw the metal dangling “between the two back wheels of the truck” and upon examining photo of the truck and trailer she pointed to an area between the second tire and third tire of the trailer in the area of the tool box. She agreed that she saw the metal dangling from the truck as it was passing her vehicle but expressed less certainty about where she might have seen the metal she variously described as “dangling” or “hanging” or “swaying back and forth.” [19] The plaintiff said in discovery that she was worried about the piece of metal and said to her son “I think that’s going to come off.” Her son Russell Parker when questioned at discovery did not remember this conversation. He testified that he just saw the piece of metal hitting the mirror of his mother’s vehicle. He agreed that since he was in the passenger seat he did not see the metal actually dangling from the trailer and said “I seen it come from underneath the wheels of the trailer.” He then suggested to his mother that they follow the tractor-trailer and get its license number although they did not flag it down and speak to the driver. [20] The plaintiff submits that her discovery evidence is not bare allegation, but material fact that if accepted at trial gives the plaintiff real chance of success. The plaintiff relies on Doug Beohner Trucking Excavating Ltd., 2004 CarswellNS 70 (N.S.S.C.) at para. 17 “There must be real distinction or difference of evidence requiring the court to make determination of credibility.” [21] The plaintiff further submits that the only way in this case that there could not be material fact in issue is if there was an agreement between the parties that this piece of metal was in fact dangling from the defendant’s tractor-trailer prior to the plaintiff being hit by the same piece of metal. [22] In asserting that the defendant is liable in negligence for her injuries the plaintiff relies on s. 248 of the Motor Vehicle Act: Onus of proof of liability 248 (1) Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of motor vehicle upon highway, the onus of proof (a) that such injury loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent; (b) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the motor vehicle, shall be on the owner and operator of the motor vehicle. [23] The plaintiff argues that having established by her eye witness testimony that the piece of metal flew in the window and caused her injury the onus has shifted to the defendant to show that the injuries were not entirely or solely arising through his negligence. [24] The plaintiff cited two cases where objects have been airborne and caused damage or injury and defendant’s were found liable. [25] In Amos v. Watkins [1995] N.J. No. 409, the plaintiff made claim for property damage to the sunroof of his vehicle and alleged that rock flew from the dump truck that proceeded ahead of him. [26] The trial judge found direct causal link between the defendant carrying gravel and the plaintiff suffering the loss, as he found that the defendant trucker could have reasonably foreseen that the small rock sighted by the plaintiff bouncing out of the truck, would pose hazard to vehicle driving behind. [27] The respondent argues that the foreseeability is matter that should be left to the trial judge. [28] And similarly, in the case of Thomas v. Scott [1976] N.J. No. 63 the plaintiff says foreseeability was an issue determined by the trial judge where plaintiff had alleged that rock had flown from the rear wheels of the defendant’s truck toward his vehicle smashing the windshield and striking him in the chest. The defendant had acknowledged to police officer that large rock was jammed between the dual wheels and tires of the rear of his vehicle and that on the previous day he had tried to remove it without success. At trial he gave evidence that he had succeeded in removing the rock. This explanation was rejected by the trial judge. It was the defendant driver’s knowledge of the presence of the rock that led to finding that he ought to have foreseen that the rock constituted hazard to others. [29] However, these cases are distinguished on their facts. In Amos, supra, it was found that the truck driver hauling rock might reasonable foresee that his cargo could create hazard for vehicles travelling behind his. In Thomas, supra, the driver was actually aware of the presence of rock lodged between his double rear tires, that subsequently caused the damage and injury. [30] Here there is no evidence before me to suggest that the cargo of lumber hauled is in any way related to this mishap and there is no suggestion that the defendant was aware of or ought to have been aware of the 5"" 7"" piece of metal that allegedly flew from between the rear tires of the trailer. Further, plaintiff’s counsel had full opportunity to examine the defendant driver on discovery to explore these matters and no evidence arose respecting foreseeability or causation. [31] The plaintiff’s claim more closely mirrors the situation in Dorey .v. Oosterhoff 1989 CarswellONT 1645. [32] In that case it was found that the defendant had not seen the object that she drove over, which flew from beneath her vehicle and caused the plaintiff to swerve in avoidance of it hitting his windshield. He lost control and was hit by an oncoming van. The object was piece of muffler, not from the defendant’s vehicle, that was actually road debris. The defendant bore no liability for this unforeseeable event. [33] Having considered the pleading and the other evidence before me, I find that the defendant has met the threshold test. There is no genuine issue for trial with respect to these facts. [34] In responding to this application, the plaintiff has failed to adduce evidence to support the bare allegation made in these pleadings. [35] In the plaintiff’s pleadings the acts of negligence asserted are the defendant driver’s failure to maintain his vehicle, poor driving skills and lack of qualifications and driving at an excessive rate of speed. [36] However, the plaintiff has not offered any further evidence to support these claims. On the documentary evidence before me can only conclude that the defendant’s vehicle was well maintained, according to his expert Bryden Ryan and that the defendant has good driving record and the proper licensing to drive tractor-trailer. [37] Apart from the allegation made in the pleading see no further indication that the driver was speeding. The plaintiff’s evidence on discovery was that the driver was going fast and that to catch up to the defendant they needed to drive between 100-110 kph, not an inappropriate speed on 100 series highway. Nor has the plaintiff shown connection between the alleged rate of speed and the mishap of the flying metal piece. [38] Therefore, am left to consider the plaintiff’s bare allegation that the piece of metal that hit her car was dangling from the tractor-trailer, flew off in the manner earlier described, hit her vehicle and caused her injury. [39] Yet, the experts’ reports establish that this piece of metal did not belong to the tractor-trailer, nor upon inspection was there any place for such a piece of metal to dangle. [40] also note that this application was adjourned from August 2, 2005, to allow the plaintiff to secure their own expert report, although none was filed prior to this proceeding. [41] The expert reports filed by the defendant therefore remain uncontradicted. [42] claim in the tort of negligence can only succeed if the plaintiff can show that (i) that the defendant owed her duty of care, (ii) that he should have observed particular standard of care in meeting his duty, (iii) that he breached his duty by failing to observe this standard of care, (iv) that his breach of duty caused the damage or injury to the plaintiff, (v) that the damage or injury is not too remote consequence of breach so as to render the defendant liable for its occurrence. (The Law of Torts in Canada, Fridman, Vol. Toronto: Carswell, 1989.) [43] In my view, no trial judge or jury properly instructed would make finding of negligence against the defendant driver, having considered the body of evidence that is before me, in this application. [44] The plaintiff has therefore failed to show that this claim has any real chance of success. [45] The plaintiff cannot resist this summary judgment application by simply asserting that there are matters of the plaintiff’s credibility that can only be decided by a trial judge. [46] The plaintiff must demonstrate that if the matter proceeded to trial there would be remedy available to her. No evidentiary foundation has been laid to support or underpin the allegations made in the pleadings, apart from the plaintiff’s bare allegation. [47] The defendant should not be required to bear the expense of trial where the result is foregone conclusion that he would not bear liability for this mishap. [48] The defendant shall have summary judgment and costs for this application. In the absence of agreement by the parties the court is prepared to address the issue of costs. Justice M. Heather Robertson","The plaintiff alleged that a small piece of metal seen dangling from beneath the defendant's tractor trailer flew out from under the trailer as it passed the plaintiff's vehicle and hit her engine hood, bounced in the open window and caused her to lose control of her vehicle. She suffered injuries to her hands, arm and shoulder as she brought her vehicle under control. The defendant applied for summary judgment, presenting expert's reports to show that the metal did not come from his vehicle, nor upon inspection was there any location from which it might have dangled. Application for summary judgment granted; the defendant met the threshold test and the plaintiff failed to adduce any evidence beyond a bare allegation that this claim had a chance of success. The plaintiff cannot resist a summary judgment application by simply asserting that there are matters of the plaintiff's credibility that can only be decided by a trial judge.",5_2006nssc43.txt
103,"J. 1999 SKQB 18 Q.B. A.D. 1998 No. 1940 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SASKATCHEWAN INSTITUTE OF APPLIED SCIENCE AND TECHNOLOGY and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION and HAGBLOM CONSTRUCTION (1984) LTD., MARCEL FORTIER, GREG MARQUIS and JOHN MACAROCO and CITY OF SASKATOON and WILLIAM HEWITT THIRD PARTIES B. J. Kot for the defendants G.D. Young, Q.C. for the third parties JUDGMENT BARCLAY J. August 18, 1999 [1] This is an application by the City of Saskatoon and William Hewitt (the ""third parties"") to strike out the third party claim on the basis that it does not disclose a reasonable cause of action. FACTS [2] Saskatchewan Institute of Applied Science and Technology and Saskatchewan Property Management Corporation (the ""plaintiffs"") allege that the action of the defendant, Hagblom Constructions (1984) Ltd. (""Hagblom"") caused a fire in the plaintiffs building occurring January 5, 1997. The claim is advanced in contract and in tort. [3] The essence of the defendant\'s allegations in the third party claim may be characterized as follows:(a) In paragraphs 8 to 12 of the third party claim, the defendants allege that the actions or omissions of the City of Saskatoon\'s fire department either caused the plaintiffs\' loss, or contributed to it. This claim is made only against the City of Saskatoon, not William Hewitt. The defendants say that the fire department failed to properly fight the fire, and that they omitted certain actions prior to the fire that, supposedly, contributed to its spread. The defendants' claim for contribution and indemnity arises out of these paragraphs. (b) In paragraphs 13 and 14, the defendants advance their own claim, independent of the plaintiffs claim against the defendants. This claim is advanced against both the City of Saskatoon and William Hewitt. In these paragraphs the defendants allege that the third parties spoliated or destroyed evidence, and failed to assist the defendants in gathering evidence. [4] By notice of motion, the third parties ask that the third party claim be struck out. ISSUES (1) Do the provisions of s. 136.1(2) of The Urban Municipality Act, 1984, S.S. 1983-1984, c. U-11, and s. 34 of The Fire Prevention Act, 1992, S.S. 1992, c. F-15.001 prevent the defendants from taking proceedings against the third parties in this case and, if so, should the entire third party claim be struck out pursuant to Queen\'s Bench Rule 173(a)? (2) Should paragraphs 13, 14 and 16 be struck out, pursuant to Queen\'s Bench Rule 173(a), on the basis that these paragraphs do not disclose a reasonable cause of action in that the common law does not recognize a cause of action for the spoliage or destruction of evidence, nor for the failure to assist in the gathering of evidence, and, further, on the basis that the Third Parties did not owe a statutory duty to the defendants in this respect? (3) Should paragraphs 8 through 12 and paragraph 15 be struck out on the basis that the defendants have not obtained the leave of this Court to bring third party proceedings, as required by s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31? [5] Rule 173 of the Queen's Bench Rules provides: 173 The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be. It is well settled that substantial onus is placed upon the applicant in Rule 173(a) motion. [6] As stated in McKeague and Voroney, The Queen's Bench Rules of Saskatchewan: Annotated (Regina: Law Society of Saskatchewan, 1995), this Rule is codification of the court's power under its inherent jurisdiction to stay actions that are an abuse of process or that disclose no reasonable cause of action. [7] It is inherent in the jurisdiction of every court to ensure that its process is not used simply to harass parties through the initiation of actions that are obviously without merit. The summary procedure of the Rule is only appropriate to cases which are plain and obvious. [8] The purpose of Rule 173 is to save the court and the parties the cost, time and inconvenience of dealing with seriously defective or unmeritorious pleadings, claims or defences (See RoyNat Inc. v. Northland Properties Ltd., 1993 CanLII 8877 (SK QB), [1994] W.W.R. 43 (Sask. Q.B.)). [9] It has long been the practice of the courts not to strike out statement of claim under Rule 173 unless it is abundantly clear that the pleadings disclose no reasonable cause of action. [10] In Great Northern Railway Co. v. Cole Agencies Ltd. (1964), 1964 CanLII 321 (SK QB), 49 W.W.R. 153 (Sask. Q.B.), Disbery J., on an application to strike out statement of claim as disclosing no reasonable cause of action brought under Rule 154(a), the predecessor to the present Rule 173(a), said at pp. 155-56: It is quite clear from the authorities that pleading should only be struck out when the application is made under R. 154 or its equivalent elsewhere, where the case is clear, obvious and beyond doubt so that, in the words of Lindley, M.R., ""any master or judge can say at once"" that the pleading is insufficient. [11] The only documents to be considered on an application under Rule 173(a) are the notice of motion, the statement of claim itself and the particulars furnished pursuant to demand therefor, and any document which is referred to in the statement of claim upon which the plaintiff must rely for the establishment of his claim (Lackmanec v. Hoffman (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. 1; [1982] W.W.R. 714 (Sask. C.A.)). [12] On an application to strike out statement of claim on the ground that it discloses no reasonable cause of action, the court must assume that every allegation of fact in the statement of claim is true, even if it appears to be very unlikely allegation that will be difficult to prove (Schmeichel v. Lane (1982), 1982 CanLII 2471 (SK QB), 28 Sask. R. 311 (Sask. Q.B.); Davies v. Dustin (1980), 1980 CanLII 2013 (SK QB), Sask. R. (Sask. Q.B.)). [13] The court cannot consider the statement of defence on an application to strike out statement of claim under Rule 173(a) (B Contracting Ltd. v. Atamanenko, [1987] Sask. D. 3702-02 (Q.B.)). [14] The Saskatchewan Court of Appeal in Sagon v. Royal Bank (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133, reviewed the principles that should be applied on motion to strike out pleading. At pp.139-140, Sherstobitoff J.A. stated: In determining whether claim should be struck as disclosing no reasonable cause of action, the test if whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Marshall v. Saskatchewan, Government of, Petz and Adams (1983), 1982 CanLII 2387 (SK CA), 20 Sask. R. 309 (C.A.); The Attorney General of Canada v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; 33 N.R. 304. The court may consider only the statement of claim, any particulars furnished pursuant to demand, and any document referred to in the claim upon which the plaintiff must rely to establish his case: Balacko v. Eaton's of Canada Limited (1967), 1967 CanLII 369 (SK QB), 60 W.W.R. (N.S.) 22 (Sask. Q.B.); Lackmanec v. Hoffman and Wall (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. (C.A.). [15] This proposition was articulated by the Supreme Court of Canada in the case of Canada (Attorney General) v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] S.C.R. 735, in which it stated that the court should only strike out statement of claim ""in plain and obvious cases and where the court is satisfied that the case is beyond doubt"". (1) Do the provisions of s. 136.1(2) of The Urban Municipality Act, 1984, S.S. 1983-1984, c. U-11, and s. 34 of The Fire Prevention Act, 1992, S.S. 1992, c. F-15.001 prevent the defendants from taking proceedings against the third parties in this case and, if so, should the entire third party claim be struck out pursuant to Queen's Bench Rule 173(a)? [16] The essence of the third parties' position, on this issue, is that, subject to their duty to act in good faith, they cannot be found to be liable to the defendants in negligence. In this respect, the relevant portions of ss. 136.(2) of The Urban Municipality Act, 1984, read as follows: 136(1) council may: (a) by bylaw establish fire department or one or more fire brigades, and may by contract or otherwise provide for the prevention and suppression of fires and provide for services of any kind at the site of an emergency, including but not limited to: (i) fire prevention and protection; (ii) emergency response services; (iii) inspections of premises for conditions that may cause fire, increase the danger of fire or otherwise increase danger to persons or property. (iv) inspections for compliance with municipal fire prevention bylaws and The Fire Prevention Act, 1992; 136.1(1) For the purposes of this section, ""firefighter"" means person performing duties for an urban municipality, whether for wage or otherwise, pursuant to section 136 of The Fire Prevention Act, 1992 or regulations made pursuant to that Act. (2) No action lies or shall be instituted against firefighter for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by the firefighter while performing his or her duties as firefighter. [17] The material sections in The Fire Prevention Act, 1992, are as follows: In this Act: (h) ""local assistant"" means: (i) in city, town, village, resort village or northern municipality where fire department is established, the fire chief or acting fire chief. 11 Every local assistant shall: (a) administer and enforce this Act within the local assistant's jurisdiction. 15(1) Every local assistant shall investigate, or cause to be investigated, the cause, origin and circumstances of every fire in the local assistant's jurisdiction. 34 No action lies or shall be instituted against the minister, fire inspector, municipality, fire department or member of fire department, or peace officer, where the minister, fire inspector, municipality, fire department or member of fire department, or peace officer is acting pursuant to the authority of this Act, the regulations or an order made pursuant to this Act, for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any order made pursuant to this Act or any duty imposed by this Act or the regulations. [18] characterization of the position of the third parties is that subject to their duty to act in good faith, they cannot be found to be liable to the defendants in negligence. [19] This section was judicially considered by Hrabinsky J. in the case of Hunters Trailer Marine Ltd. v. North Battleford (City), [1993] S.J. No. 634 (Q.L.) (Sask. Q.B.). Hrabinsky J. was faced with the interpretation of ss. 34(2) of The Fire Protection Act, 1980, S.S. 1979-80, c. F-15.01, s. 34(2). This section reads as follows: 34(2) No action lies against any municipality or against any member of fire department for any loss or damage suffered by reason of anything done with reasonable care or omitted to be done in good faith in carrying out the provisions of section 10. Althought that section has now been amended, the amendments, in my view, are not relevant to the issues in the case at bar. [20] Hrabinsky J. held that this statutory limitation does not nullify the action since determination must be made as to whether the defendants did what they did with reasonable care or omitted to do what was to be done in good faith. Hrabinsky J. states in part as follows: §9 In the Attorney General of Canada v. Inuit Taparisat of Canada et al., 1980 CanLII 21 (SCC), [1980] S.C.R. 735 at p. 740 (S.C.C.), the court stated: all the facts pleaded in the statement of claim must be deemed to have been proven. On motion such as this court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that ""the case is beyond doubt"". §10 The statement of claim clearly alleges that the individual defendants were employees of the corporate defendant and that they were negligent in the course of their employment which negligence resulted in loss to the plaintiff. §11 In Halsbury's Laws of England, 4th Ed., Vol. 16, p. 519, para. 753, there is the following: 753. Liability independent of contract of employment. As general rule an employee who commits tort is liable in damages to the person injured, and his liability is not affected by the existence of contract of employment or, where he commits the tort in the course of his employment and within the scope of his authority, by the existence of the corresponding liability of his employer for the same tort, since he is the actual tortfeasor. An employee cannot, therefore, excuse himself from liability for his own act on the ground that he did it solely in his capacity as the employee of another, and that, but for the existence of the contract of employment, he would not have done it at all. Thus, it is no defence to the employee that, in doing the act complained of, he was obeying his employer's express orders, or that his employer subsequently adopted or ratified it, unless the act is thereby deprived of its tortious character. Similarly, it is no defence that he himself gained no personal benefit by his tort, but that he acted solely on his employer's behalf and in his employer's interest; nor can he escape responsibility on the ground that he did not know and had no reason to know or to suspect that the act in question was tortious, unless the act is incapable of being regarded as tort in the absence of actual or imputed knowledge that it is wrongful. Even the fact that the employer who commanded the act to be done was innocent of any intention to do any wrong, and genuinely believed that he was entitled to command the employee to do it, does not excuse his employee if the act, when done, is in fact tort. §12 In recent decision of the Supreme Court of Canada, London Drugs Ltd. v, Kuehne and Nagel International Ltd. (1992), 1992 CanLII 41 (SCC), 97 D.L.R. (4th) 261 the majority decision held that the individual employees whose negligence resulted in loss to the plaintiff owed duty of care to the plaintiff and upheld the decision of the British Columbia Court of Appeal which held that both the employer and the individual employees were liable. The majority decision held that the question of whether duty of care arises will depend on the circumstances of each case. §13 find that the statement of claim discloses cause of action. The question of whether the individual defendants owed duty of care is matter to be determined by the trial judge and is not to be decided on summary application such as this. §15 This statutory limitation does not nullify the action since determination must be made as to whether the defendants did what they did with reasonable care or omitted to do what was to be done in good faith. Since have concluded that on its face the statement of claim discloses cause of action it is not appropriate to make any decision with respect to s. 34(2) of The Fire Prevention Act on an application pursuant to Rule 173. This is matter for the determination of point of law which will be determined by the trial judge unless the parties perceive this may be decided pursuant to Queen's Bench Rule 188. [21] The third parties submit that Hrabinsky J. was in error when he held that s. 34 did not nullify an action for omitting what was to be done in good faith. On the face of the statement of claim, it is submitted that the allegation of negligence for an omission to act cannot possibly have succeeded. It was argued that the court need not embark on determination as to whether the defendants' omissions were ""in good faith"" unless lack of good faith is raised in the statement of claim. [22] I agree with Hrabinsky J. Here in the third party claim it is alleged that the fire department of the City of Saskatoon was negligent in managing the fire and in the post-fire investigation. It is arguable on the pleadings that the third parties did not act in good faith in that it is alleged that they deliberately set out to suppress information and destroy evidence. On that basis alone I am satisfied that the defendants have an arguable case and that the third party claim discloses a reasonable cause of action. (2) Should paragraphs 13, 14 and 16 be struck out, pursuant to Queen's Bench Rule 173(a), on the basis that these paragraphs do not disclose reasonable cause of action in that the common law does not recognize cause of action for the spoliage or destruction of evidence, nor for the failure to assist in the gathering of evidence, and, further, on the basis that the Third Parties did not owe statutory duty to the defendants in this respect? [23] In my view, the allegations are relevant in respect to the contention that the third parties have not acted in good faith. If this is established then it is clear that the statutory limitations would not nullify the third party claim. (3) Should paragraphs through 12 and paragraph 15 be struck out on the basis that the defendants have not obtained the leave of this Court to bring third party proceedings, as required by s. of The Contributory Negligence Act, R.S.S. 1978, c. C-31? [24] It is conceded by the defendants that leave to commence the proposed third party claim is prescribed pursuant to s. of the act. The defendants have therefore served notice of motion requesting leave. This order is sought nunc pro tunc. [25] In Lepage v. Board of Education of Regina School Division No. (1996), 1996 CanLII 6908 (SK QB), 150 Sask. R. 233 (Sask. Q.B.) Zarzeczny J. applied the test prescribed in Saskatchewan Transportation Co. v. Royal Bank of Canada and Reid Crowther Partners Limited et al. (No. 2) (1986), 1986 CanLII 3086 (SK QB), 56 Sask. R. 157 (Sask. Q.B.) which requires the applicant to allege prima facie claim which, if established, would entitle the defendants to take proceedings against the third party. This is analogous to the case at bar. CONCLUSION [26] As the third parties have not established that it is plain and obvious that the impugned claim cannot succeed, the application is dismissed. [27] As to s. 7 of The Contributory Negligence Act, I hereby grant the defendants leave nunc pro tunc to bring third party proceedings against the third parties. [28] Costs of these application shall be costs in the cause.","An application to strike out the third party claim as not disclosing a reasonable cause of action. The plaintiffs brought a claim in contract and tort alleging Hagblom caused a fire in their building. The third party claim alleged negligence by the city's fire department in managing the fire and in the post-fire investigation. The third parties argued that, subject to their duty to act in good faith, they could not be found liable to the defendants in negligence. In issue was whether s.136.1(2) of the Urban Municipality Act and s.34 of the Fire Prevention Act prevented the defendants from taking proceedings against the third parties; whether certain paragraphs should be struck on the basis the common law does not recognize a cause of action for spoiled or destroyed evidence and failure to assist in gathering evidence on the basis the third parties did not owe a statutory duty to the defendants; whether certain paragraphs should be struck as the defendants had not obtained leave to bring third party proceedings as required by s.7 of the Contributory Negligence Act. HELD: The application was dismissed. Leave was granted nunc pro tunc to bring third party proceedings. (1)The third party claim disclosed a reasonable cause of action. It was not plain and obvious the claim could not succeed. It was arguable on the pleadings that the third parties did not act in good faith in that it was alleged they deliberately set out to suppress information and destroy evidence. (2)The statutory limitations will not nullify the third party claim if the allegations relevant to the contention that the third parties did not act in good faith are proven.",6_1999skqb18.txt
104,"E.J. Gunn IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Boucher v. Boucher, 2006 NSSC 88 Date: 20060328 Docket: 1211-000053 Registry: Halifax Between: Charles Benjamin Boucher v. Christine Delores MacLellan Boucher Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: February 1, 2006, in Halifax, Nova Scotia Final Written Submissions: February 8, 2006 Respondent February 10, 2006 Applicant Counsel: M. Louise Campbell, for the Applicant J. Walter Thompson, Q.C., for the Respondent By the Court: [1] This application to terminate spousal support was commenced on the 22nd day of September, 2005. [2] The parties were married in Halifax on the 21st day of November, 1980, and began living separate and apart on August 3, 1993. They entered into Minutes of Settlement in February, 1996. This agreement was incorporated into the Corollary Relief Judgment and the Divorce Judgment pronounced the 24th day of April, 1996. [3] The parties had four children, Gillian, born May 6, 1981; Sheena, born October 31, 1982; Logan, born October 31, 1985; and Tessa, born April 8, 1987. The children remained with their mother in her custody at the date of separation. They are now 24, 23, 20 and 18 years old respectively. [4] Prior to the Minutes of Settlement there was consent order out of the Family Court wherein Dr. Boucher was to pay $6,000 per month. The Minutes of Settlement required the father to pay the mother the sum of $15,000 to settle all outstanding maintenance arrears accumulated to December 1, 1995. [5] Commencing December, 1995 until July, 1996, the father paid to the mother for her support and the support of the children the sum of $2,000 every two weeks. In July, 1996, the combined support increased to $2,500 every two weeks. [6] The Minutes of Settlement allocated responsibility for the Revenue Canada debt in the amount of $9,000 to the mother and any other debt then in her name. The father took responsibility for $69,500 in matrimonial debt and any other debt in his name. [7] There has been no variation of this order by court order since the Corollary Relief Judgment dated the 24th day of April, 1996. [8] The standard variation clause is contained in the Separation Agreement and refers to s. 17 of the Divorce Act. [9] Both parties were represented for the purposes of entering into the Minutes of Settlement. [10] The changes that have occurred since then are considerable: (1) (a) In June, 1999, Gillian graduated from high school. She went to Scotland for one-half year to pursue her education. The father provided financial support directly to her. Her father noted her tuition was “exceptionally high”. She started working in Edinburgh, once she left university. [11] The Applicant continued to pay the full child and spousal support to the Respondent, notwithstanding Gillian was in Scotland and he was assisting her directly. [12] For the period September, 1999 to and including June, 2000, while in school in Scotland, the cheques and deposits provided by Dr. Boucher totalled $11,181.44. In addition, in 2001 he paid her airfare to and from Scotland, repairs to her fiddle in the amount of $800, and in April, 2002, assisted to purchase her airline ticket back to Nova Scotia. He has continued to provide assistance to his oldest daughter, assisting her in her travel costs back to Scotland in September, 2002. (2) (a) In August, 1999, Sheena moved in with her father in Port Hood. At the time, she was attending grade 11 and continued to live with her father until graduation; (b) Sheena commenced massage therapy program, stopped and eventually returned to it. As result, it took her three years to complete the full program. In September, 2001, she attended Northumberland College in Halifax for this massage therapy course and left the program in 2002. She moved to New York, worked as nanny, returned to Nova Scotia in December, 2002. She returned to the massage therapy program in January, 2003 and graduated with her diploma in June, 2004. She worked in Halifax until August, 2005 and then left to live in Ireland. From August, 2001 to and including August 5, 2005, he contributed $43,430.97 to his daughter's course and living arrangements. These payments included her rent, food, utilities, phone, transportation, spending money and tuition. (3) (a) Logan graduated from high school in June, 2004. Logan took year off school to work and decide on an appropriate career. During that period of time he lived, for the most part, with the father and his spouse, Karen Boucher, in Port Hood; (b) He is currently enrolled in two-year program in environmental studies at community college in Vancouver. His transportation costs have been provided by the father, and the father has contributed $11,129.04 to January 18 with another $645 for the end of January. Exhibit 4, Tab also suggests total of 21,430.76 has been paid to support Logan in his education, the cost of an apartment, food, utilities, tuition and books while he is completing this program; The father has attached as an exhibit summary of expenses paid by him for Logan to fly to B.C., to cover portion of his tuition, and to provide damage deposit and rent etc.. This summary has not been challenged. (4) (a) The youngest child, Tessa, graduated from high school in June, 2005. She enrolled in hair design college in Halifax and her expenses are being paid for by her father directly. This is 10-month program to be completed in June, 2006; (b) The father has provided summary sheet listing the expenses paid by him for Tessa as of October 4, 2005. They total $5,580.76 and include tuition, damage deposit, September's rent, bus pass, groceries, full tuition, October's rent and bus pass and other items necessary for her maintenance. [13] Dr. Boucher has provided extensive records supporting these payments and these records have not been challenged by the Respondent. Oral Agreement [14] As result of the two older children leaving the mother's home, the parties entered into an oral agreement that the biweekly payments would be reduced to $2,000. There was no financial contribution by the mother to the children in the father's care. [15] This agreement was recognized by Maintenance Enforcement and by the parties. It is evidenced by their conduct, their reliance on the terms of the agreement, and the return of the original cheques in the amount of $2,500. The father paid by way of post-dated cheques directly to the mother and the mother destroyed any cheques she received from Maintenance Enforcement in the previous $2,500 amount. Maintenance Enforcement was also given instructions to return what cheques they had. [16] The Maintenance Enforcement records are current up to January 14, 2006. They show consistent payment of $2,000 every two weeks from July, 2003 to July, 2004. Thereafter, there are consistent payments of $1,836 through Maintenance Enforcement and the balance up to $2,000 to GMAC for the Respondent’s car loan. Maintenance Enforcement show payments of $2,500 biweekly November and December and one for January. [17] The $2,000 maintenance cheques were cashed. This arrangement continued until June, 2003. Maintenance Enforcement returned the post dated cheques to Dr. Boucher, including the January 9th and June 26th post dated cheques reflecting the acceptance of the agreement of the parties. [18] The Applicant testified he had no difficulty in the past and has no difficulty continuing in future to pay the costs of his children's post secondary education. He wishes to do so directly and provides information to confirm that they do not have any difficulty dealing with their father directly to obtain support. The Respondent does not contest this method of providing child support for the children. There is no need for the court’s intervention at this stage between the father and his children. [19] Therefore in 1999, in addition to spousal and child support as mandated, the record shows that Dr. Boucher paid for his daughter in Scotland approximately $6,981 for the period of time between September and December with balance of $4,200 between January and June, 2001. [20] The additional payments documented in 2001 for Gillian include expenses such as airfare to Scotland, $800 for repairs to fiddle. Dr. Boucher paid $10,857 of the total $43,000 for the massage therapy course. [21] In 2002, he would have paid the regular maintenance payments plus $10,857, plus airfare back and forth to Scotland for the oldest child. [22] In 2003, he paid the $52,000 in child and spousal support, plus $10,857 towards the ongoing massage therapy course and the cost of living. [23] In 2004, again he paid approximately $10,857, plus the $52,000. [24] 2005 is the final year for the massage therapy course. It is also the first year for Logan and the 10-month course for Tessa. The total payments in excess of the child and spousal support payments as mandated by court order, would equal $32,786, approximately. [25] In consideration of an attempt to get some kind of approximation at what percentage of his net professional income went to child support and spousal support between 2000 and 2005, one has to consider the excess payments over and above the mandatory child support payments. [26] While the Applicant may receive the benefit of the tuition credits for some of the children, many of the expenses that he is paying towards rent and food are not expenses for which he can claim deduction and thus, the additional amounts can only be compared to the $52,000 child and spousal support figure which is deductible on his income tax return, if one adjusts for tax implications to Dr. Boucher. [27] Finally, in reflecting on the total financial picture, it ought to be noted that Dr. Boucher, while married, entered into two business ventures, neither of which was successful; resulting in two bankruptcies. There is no information that these businesses were entered into without the consent of Ms. Boucher. These parents and spouses come away from this relationship with few, if any, assets and very little by way of retirement plans. [28] In addition to the support payments over and above the court ordered payments, Dr. Boucher has also provided to the Respondent additional financial support. In September, 2000, the Respondent requested that he co-sign for the purchase of leased vehicle for her, in order to assist her to obtain financing for the vehicle. She was to pay the monthly payments of $326. [29] In September, 2002, her account was in arrears. GMAC contacted the Applicant and required him to pay the monthly payments. He deducted these payments made from her maintenance. [30] At the expiry of the lease agreement of December, 2003, GMAC contacted Dr. Boucher to pay, in addition, $8,000 worth of excess kilometres and repairs, relating to the Respondent’s use of her car, which the Respondent refused to pay. Dr. Boucher has made arrangements for monthly payments to GMAC in the amount of $163.92 and has deducted that from the Respondent's ongoing support payments. [31] The Applicant has submitted letter from GMAC dated April 5, 2004 indicating that the arrangements established with their office to pay $163.92 have been accepted. They warn him, however, that one missed payment would bring the full balance due. [32] The Applicant has been unable to negotiate with the Respondent for reduction in the current combination child and spousal support. He attempted to seek reduction of $500 every two weeks, when his third child, Logan, graduated from high school in June, 2004 and moved in with him. [33] At the time the request was made, Gillian, Sheena and Logan were not residing with the Respondent. The Respondent was receiving $2,000 biweekly, in addition to which she was not contributing to the costs of these children. [34] The Applicant provided written notice to the Respondent in August, 2003, that when the children of the marriage were no longer dependent he would seek change in the support. He encouraged her to develop strategy for employment and self sufficiency. Dr. Boucher's Financial Situation: Current earnings [35] Dr. Boucher prepared statement on October 19, 2005 showing net professional income of $294,735 or $24,561 per month before tax. Given his circumstances and his obligations, his monthly expenditures are not excessive. They include the secondary school expense for his children. His 2004 income tax return shows line 150 income of $296,567. He paid $52,000 in spousal and child support in the 2004 year. [36] His income for 2005 appears to be similar. He ceased paying support to the Respondent in the month of August, 2005. His wages were garnished as result of enforcement action requested by the Respondent. [37] In 2005, as in some previous years, he would have paid additionally at least $10,000 directly to Sheena’s for her course and living expenses and at least 10,629 for Logan, as well as $5,580 for Tessa. Historical earnings [38] The Applicant has provided the history of his earnings from 2000 to 2005. The Applicant was born November 28th, 1949. He commenced his practice in the Margaree area for two years when he met the Respondent. He was 30 when he married. He is currently 56 years old. [39] Subsequent to the separation, the Applicant continued his practice in Margaree. The Respondent moved with the children to Antigonish and commenced taking some courses in Antigonish. She did not complete these courses. year after this move she moved back to Broad Cove with the children. [40] In 1994, the Respondent told the Applicant that if he continued to live in the Margaree area in close proximity to herself that she would move again with the children. [41] After discussions between the two, the Applicant agreed, wanting his children to remain close to their friends and school. He gave up his practice in Margaree of approximately 2,500 patients and moved to commence practice in the Strait Richmond area. [42] am satisfied that this move was initiated at the request of the Respondent and that the Applicant willingly complied for the betterment of the children. This move was mutually beneficial and, while causing him to begin again, also met with his expectation to reduce his workload. [43] Dr. Boucher experienced reduction in his income to accommodate this move. The maintenance was reduced to $2,000 every two weeks commencing December, 1995, continuing every second week thereafter until July, 1996 to accommodate the anticipated reduction in his income. They agreed, however, that in July, 1996, the maintenance would be increased to $2,500 every two weeks, and the agreement to settle all outstanding arrears which accrued until December 1, 1995 resulted in $15,000 lump sum payment by Dr. Boucher to the Respondent, which was incorporated into the Corollary Relief Judgment and payable on or before January 5, 1996. [44] The Applicant worked in the Strait Richmond Hospital from 1994 to 1998. Save for few exceptions, he continued to pay the support as originally ordered under the Corollary Relief Judgment. He believed that during the initial period, the Respondent was actually taking in more income as result of his child and spousal support payments than he was retaining himself. do not have his income tax statements from that year to verify his assertion. [45] The history of the children leaving their mother’s care and either moving in with their father or being supported by their father has been discussed and his financial contribution proven. [46] The Respondent was less certain about her contributions. She believes that she contributed $1,000 to set her daughter up in an apartment in Halifax when she first commenced her course. She provided little accurate financial disclosure. She has no serious contest with the Applicant's financial documentation. [47] The Applicant ceased paying support in August, 2005. The Respondent took action with Maintenance Enforcement. She requested enforcement of the amount in the original order and she received $10,000 in November and December, 2005. She also received directly $2,000. She has not verified by her records or memory what she received in August 2005. [48] Her calculation of arrears under the old order is not reliable. There are gaps in her records and her memory is mostly speculative recall not supported by documentation. She admits she has not been good bookkeeper. She denies the existence of voluntary agreement in the original reduction of support payments from $2,500 every two weeks to $2,000 every two weeks. The documentation and her conduct disprove her allegation that she had no part in this agreement. [49] Once this garnishee was in place, the parties reached an interim understanding that if the Respondent were to receive the garnished amount she would have to pay directly to the children that which was required to sustain them in their post secondary pursuits. [50] The Respondent was born on September 12, 1952. She attended high school in Inverness and went to Sydney where she completed medical secretarial course. She lived in Halifax for approximately 10 years working at the Grace Maternity Hospital and the Nova Scotia Rehabilitation Centre and assisted health professionals with their research. She attended St. Mary's University and Dalhousie University to take some courses training her to work in medical libraries and complete data analysis. [51] The Respondent was 28 when she married the Applicant and was working as librarian at the Nova Scotia Rehabilitation Hospital in Halifax. They met in 1980 and she advised him that she was pregnant within two weeks of their meeting. They married in November, 1980. She is currently 52 years old. [52] have no record of her earnings pre marriage for the 10 years she worked. have the income tax summary for the Respondent from 2000 to 2002. She was bankrupt in 2000, declared income of $48,000 in 2001 and $46,000 in 2002. She declared support payments of $43,388 in 2003 paying tax on that in the amount of 10,541 (she is in arrears of taxes). She declared support income of $38,244 for 2004. Her current income statement shows income of $3,978, as she does not declare the payment to GMAC for her car as earnings. [53] The Respondent left Halifax and moved to the Inverness area. She did not work outside of the home once they were married. Up to separation, this was almost 13 years occupied with raising the children. She was 40 years old when they separated. The Respondent was 46 when the first two children left home and 51 and 52 when the last two children left home. [54] Neither she nor Mr. Boucher had any children from prior relationships when they entered into this marriage. When they married in November, 1980, the Respondent moved from Halifax to Inverness County and occupied herself with care of the four children while Dr. Boucher continued his practice in Margaree Forks. She acknowledges she did her husband's bookkeeping. [55] She moved away from Inverness taking the children with her in 1994. She returned to Inverness and the parties were divorced by Divorce Decree in 1996. [56] Neither she nor he have savings, pre separation RRSP's or equity in the home. [57] She and the four children lived in large, old home previously used as rectory. She was charged $300 month rent. The cost of fuel for heat and propane is enormous. She testified she pays approximately 8-$9,000 year on propane and furnace oil. Nonetheless, she continues to reside in this rectory, even after the four children have left. [58] Since the separation and divorce, in spite of her educational background, she has not pursued seriously, if at all, any educational retraining or furthered her education in her field of expertise. Since the children have become independent, she occupies herself with volunteer work in the community. She confirmed she has made little to no effort to find serious employment, does not believe there is employment in Inverness, and prior to this hearing was not prepared to leave the area. She indicated in her testimony she may visit her family outside of Nova Scotia after the Divorce. [59] She has taken in sewing but it has not been practical course of employment. While she has done some personal care work for elderly and infirm, she does not wish to pursue this by increasing her credentials and doing more extensive personal care work, as she does not think this is suited to her. She believes that there is no appropriate work for her in Broad Cove. [60] She expects the Applicant to continue to support her unabated and without termination, while paying all expenses related to the children’s education. She believes she is entitled to this support. Absent in her testimony and her conduct is any insight or appreciation that she has responsibility to pursue employment or retraining to assist in her own support. [61] She fell behind in her income tax; was forced into bankruptcy second time; and was subsequently in difficulty with Revenue Canada who eventually served Dr. Boucher with third party demand to garnishee the support payments. This garnishee was withdrawn. She believes she owes them in the vicinity of $29,672, most of which his penalty for non payment of tax. [62] Ms. Boucher believes she has lived hand-to-mouth for 11 years. She acknowledges she has no credit. She spends $450 per month on medications. She confirmed that she sold many of her possessions to obtain money to fly to Scotland to visit her daughter on one occasion and had three yard sales to get money to live. [63] In August, 2005, after her children Logan and Tessa left for school, Dr. Boucher ceased payment maintenance. At that point, without his support and job, she had no income. She sought enforcement through Maintenance Enforcement. [64] In October, 2005, Maintenance Enforcement began to collect on her behalf, under the old Corollary Relief Judgment. Dr. Boucher sent letter to the Respondent’s counsel advising that the Respondent would have to pay one-half of the expenses associated with Logan and Tessa, pending the outcome of this hearing, if the children’s expenses were to be current. They have abided by this arrangement pending this decision. [65] At 53 years old, the Respondent believes that she has only one option and that is to continue to receive spousal support. She worked at raising children and has not worked outside the home since she married. She believes she has no marketable skills and no ability to find employment in Cape Breton. [66] She acknowledges that it is time that she left the rectory and found other accommodation. [67] She has received $10,000 as an advance from friend in order to purchase car. [68] She has provided no documentation to support her calculation of arrears. Despite her agreement of taking reduced amount of money by way of $2,000 biweekly, she has included that calculation in her arrears back to 1999. [69] It is my finding that the agreement to reduce the monthly child and spousal support was done with the consent of both parties. This agreement was accepted by Maintenance Enforcement. [70] She has used her bank statements, which are not complete, to calculate actual payments made. [71] Because of the nature of the evidence, the exhibits, and her clear admission that her information is based on memory and some account records, prefer the evidence of Dr. Boucher with respect to the accounting as it relates to the actual payments made, verified by documentation. [72] The Respondent acknowledges full payments, in accordance with their agreement in 2001 and 2002. [73] For the 2003 year, Ms. Boucher claims support payments received in the amount of $43,388. Dr. Boucher claims on income tax returns, payments of $52,000. His cheques verified $51,758, except for $200 transfer to Sheena Boucher on February 18, 2003. This $200 to Sheena took place by direct transfer in February, 2003 when Ms. Boucher received the full maintenance payment pursuant to their agreement. Therefore, Dr. Boucher is either missing cheque or the accounting reflects total payments of $51,754; $42 of which must relate to bank charges, leaving balance owing of $200. [74] Cross-referencing that with the Applicant's Affidavit 4, Tab 2, he claims expenses for Sheena's education of $43,430. [75] The difference in the accounting comes when GMAC began to require Dr. Boucher to pay the lease payment of $328. Thus, in 2003, from January to July, all payments reflect $2,000 directly to Ms. Boucher. In August, the cheques begin to reflect payment directly to Ms. Boucher, minus the direct payments to GMAC. [76] Her 2004 T-1 General shows spousal support payments of $38,144 for the 2004 year. Dr. Boucher shows payments of $52,000 on his tax return for the 2004 year. [77] In reviewing the Applicant's Affidavit 3, at Tab 5, the actual payments provided by way of post-dated cheques show total of $50,164. However, review of the Respondent's bank statements indicates there was transfer deposit on July 8, 2004 for $1,836, making up the $52,000 for that year. [78] Her Affidavit shows that she is uncertain as to what the arrears might be for the 2004 year, claiming that she was entitled to receive $65,000. have already concluded that the parties entered into an agreement and advised Maintenance Enforcement of their agreement. They varied their agreement outside of the court process by their words, their conduct, and their subsequent actions. The amount due under their varied agreement would be $52,000 and that is, in fact, what his records show he paid. [79] The cheques to Maintenance Enforcement were adjusted to reflect his third-party payment to cover the lease agreement that she was obliged to pay. [80] For the 2005 year, again, she claims an amount owing of $65,000 while, in fact, it should reflect $52,000. She believes she received 40-$41,500. She is unclear as to which figure to rely on. Dr. Boucher acknowledges payments with receipts of $35,148. He does not have summary sheet similar to that which is provided for 2004 in his Affidavit 3, Tab 7. In addition, with the garnishee in place, it is difficult to determine the total amount paid. [81] She testified that she received no money in September and October, 2005. Maintenance Enforcement garnished Dr. Boucher's wages at the end of October and she received $10,000 in November and December. She also received directly from Dr. Boucher $2,000 in November for total of $12,000. In January, 2006, she has received $2,500 from Maintenance Enforcement. [82] If calculate from the Maintenance Enforcement statement, commencing January 5th, he paid 16 payments of $1,836 for total of $29,376; five payments garnisheed at $2,500 for total of $12,500; and if he paid for her lease, the damages and the extra kilometres, $327.64 per month for period of 26 months commencing April 16, 2004, concluding in or about May, 2006, it would equal an additional $3,931.68 (for 2005) for total of $45,807.68, according to their amended agreement, reflecting an underpayment of $6,188, subject to Dr. Boucher proving with Maintenance Enforcement other payments. [83] The calculation for the arrears, if any, in 2005 should consider all payments made to Ms. Boucher, including those made to GMAC on her behalf. The total owing for 2005 to December 31 should be $52,000. Employment and Self-sufficiency: [84] The parties have lived separate since 1994. The Respondent gave evidence she is not seriously pursuing any retraining or education to become employable. She criticized the Applicant for providing the children with computer in her home. She professed to be against computers as the children grew up and refuses to consider computer training as an option. [85] She is able to do personal care work but does not like this avenue of employment. She sews and favours interior design but thinks no one in her geographical area can afford her services. She testified she won literary award for her writing and sample of her writing for local paper was provided by the Applicant. She is articulate. [86] In this case, the parties have lived together for little under 13 years. Four children were born of this union. Certainly, during the early years, they demanded the bulk of the Respondent’s time and efforts. Later in their lives, after high school, they have spent more time in their father’s home and now all live outside the home. It is an error to suggest the mother has been the sole parent. Clearly, she was during their early years the primary parent. [87] Dr. Boucher has been and continues to be generous parent. He has historically provided for his children and supported their residence in familiar area, leaving his own practice to allow the children to remain in familiar environment. He continues to exhibit patience and generosity with his children supporting them through the sometimes rocky and interrupted road to independence. He has been generous to his former spouse outside the agreement. It does neither party nor the children any good to diminish or distort either parents' contribution historically. [88] Section 15.2 of the Divorce Act sets out the legislative framework for the assessment of spousal support. It reads as follows: “15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). (3) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) The functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of spouse in relation to the marriage. (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time.” [89] After almost 13 years of cohabitation and since separation, the mother has continued to receive spousal and child support; initially in the amount of $6,000 per month, then in 1995, $4,000 per month; then in July, 1996, $5,000 per month and, when the first two left home, in the amount of $4,000 per month. [90] Other than the $1,000 she referred to, she did not bear the financial responsibility for the support of the first two children in their educational pursuits. Up until 2004 and 2005, the money she received supported her and the two teenage children until they left home. [91] The legislation must be looked at globally. The Respondent ignored her responsibility to move towards some sort of self sufficiency. She is intelligent, able, articulate, not disadvantaged by physical illness and has not been subject to the ordinary restraints of children for some considerable period of time. [92] What is the Respondent entitled to at this stage? [93] The parties cohabited for little less than 13 years between November, 1980 and August, 1993. They separated. The children were 12, 11, and 6, respectively. In 1999, the two oldest children were outside the mother's residence and being supported by the father. The remaining two children were 14 and 12 at that time. Logan left school in 2004 and Tessa in June, 2005. Both of these children were supported by their father to date and look forward to graduation in June, 2006 and June, 2007. [94] The mother was fully engaged in the employment market for 10 years prior to marriage. At least since 1999, the mother ought to have begun to invest some energy and effort into refresher courses, retraining, upgrading and otherwise plan how she intended to assist in her own support. By that time, she had been separated for six years. She was 46 at the time and both children were in high school. [95] Given her circumstances, her qualifications, her ability, her prior history of employment, the length of the marriage and age at separation, it is unrealistic to expect to be supported for life and not to have to contribute in some way to her own support. [96] Four children require considerable effort. Each parent has participated and the children are nearing self sufficiency and independence. Dr. Boucher worked 70 hours per week until he moved in 1994 to the Strait Richmond area. He proposed to carry on practice in two offices. Whether that has required extensive hours is unknown to me. However, he has financially supported his children through their various endeavours. He is 56. It is unrealistic to expect he can continue working without serous thought to restructuring his work to plan for retirement. Both parties must plan for their future. [97] While cohabiting for only 13 years, four children is relatively large family by today’s standards. The effort and the Respondent’s absence from the workforce during their early childhood is a significant factor. have considered all factors in the Divorce Act respecting spousal support and the submissions of counsel including reference to the Spousal Support Guidelines. [98] This is considered medium-term marriage. In this case, the higher income spouse is paying for the children directly to the children and paying spousal support directly to the Respondent. The Respondent has no children living with her and income only from spousal support. Thus, the payor is paying support in two different directions with obvious and differing tax consequences. [99] The formula suggested by the Spousal Support Guidelines reduces the payor spouse's income by the grossed up notional table amount and grossed up actual expenses. In this case, we have the actual historic and ongoing support being given by the father. In 2006, one child graduates and will need transitional support into the workplace. The third child will remain in university until June, 2007. To December, 2005, the Applicant testified this cost him in excess of $20,000. Another year, one can assume, he will spend 15-$20,000 as the child is in B.C.. That is at least $30,000 for the 2006 year, figure which must be grossed up and deducted from the payor’s income. [100] The third stage is to determine the adjusted gross income difference which is the same, given the Respondent has no independent income. The duration at maximum is 13 years. [101] Using current figures and projecting backward would have put the parties at the high end of the range of spousal support, if consideration of child support were not then in issue. Using the guidelines, we are already approaching the end of the 13-year period where, on the facts of this case, the Respondent should have been well within realizing some sort of independent living. She has not begun to address this. [102] Given the number of children, I am extending the guideline beyond the maximum suggested of 13 years but at a rate well within the ability of the Applicant. He has high-end costs for the next one and one-half years. Thereafter his children, in accordance to their current plans, will be mostly independent, unless post graduate work is considered. The father has shown no reluctance to assist them in their educational plans and transitional stages. [103] The current figures directed to finalize his obligation and assist the mother to retrain are within his means and ability to pay. The mother must develop a reasonable strategy immediately to ensure September enrollment is possible. [104] The mother has put forward no plan or strategy to assist herself or the court in determining what would support her efforts towards self sufficiency. She can decide to find work in an area with better employment prospects or immediately attend courses to upgrade, refresh or enhance her ability to support herself. Community colleges offer wide variety of course selection that provide realistic prospect of employment, if not in Cape Breton, elsewhere. [105] The option to retrain or reeducate herself must be built on her current strengths and historic employment such that she maximizes her potential. am not suggesting course that begins anew without the necessary foundation to put her in state of employability within two years. [106] To assist her in effecting this goal, the Applicant shall continue to pay $3,000 per month from January, 2006 to December, 2006. do not have any household maintenance figures for the Respondent once she moves from her current location. The $3,000 month will allow her to cover her basic reasonable living expenses and pay tuition at community college or other educational institution. The Respondent can supplement her income through employment. [107] In January, 2007 to December, 2007, the support will be reduced to $2,500 per month. If tuition is due in September, summer earnings can be put towards this tuition. During the summers, the Respondent should be able to find summer and supplementary work. [108] Thereafter, between January, 2008 to December, 2008 he shall pay $2,000 per month, to assist in a transition to the workplace completely. Support will cease at that point. [109] In the event the Respondent seeks to continue support, the onus shall be on her to show her efforts at retraining and employment and her continuing entitlement. [110] The father will continue his direct support of the children remaining dependant as they complete their current courses according to their current schedule. [111] The third party payments for her car shall, in accordance with the allowable tax law, be considered third party payments by way of support. [112] Arrears for 2003 and 2005, if any, shall be payable by September 1, 2006. [113] Counsel for the Applicant shall draft the order. Legere Sers, J. March 28, 2006 Halifax, Nova Scotia","The parties were married for thirteen years and had four children, who resided with the mother immediately following the divorce. The father paid one monthly sum ($6,000) comprised of both spousal and child support. Over a ten year period, all of the children had graduated from high school; two of the children had moved in with the father and he provided support directly to the other two children while they continued their education. After the first two children moved out of the mother's home, the parties orally agreed to reduce the child support payments. The parties were unable to negotiate a further reduction in the combined child and spousal support after the third child moved out of the mother's home. Since the parties' separation and divorce, the mother had not seriously pursued any educational retraining or furthered her education in her field of expertise; since the children had become independent, she occupied herself with volunteer work. The father now applied to terminate spousal support. The father shall continue to pay the sum of $3,000 per month as spousal support for one year; for the following year, the support will be reduced to $2,500 per month; in the following year, support shall be reduced to $2,000 per month, after which support will cease completely; the father shall continue his direct support of the children remaining dependant as they complete their current courses. Although the mother's effort in looking after four children and her absence from the workplace during the children's early years were significant factors, she had ignored her responsibility to move towards some sort of self sufficiency; given the number of children, the court extended the formula under the Spousal Support Guidelines beyond the maximum 13 year period; however, the mother must develop a reasonable strategy immediately to ensure that she either begins work in an area with better employment prospects or immediately attends courses to upgrade, refresh or enhance her ability to support herself.",4_2006nssc88.txt
105,"nan Saskatchewan Provincial Court Prince Albert, Saskatchewan IN THE MATTER OF Information No. 32921631 Between Her Majesty the Queen, And Lee Aaron Zoerb Counsel: J. Morall, for the Crown. S. Loewen, for the defence. JUDGMENT Goliath Prov. Ct. J. August 28, 1998 1 GOLIATH PROV. CT. J.:- Lee Zoerb is charged with anassault causing bodily harm to Jason Baikie. The charge arisesout of an altercation which occurred at Uncle Charlie's BarDecember 14, 1997, in which Baikie suffered significant injuriesabout the head and face. The events surrounding the altercation were described by three Crown witnesses, and by five defence witnesses including the accused. As is usually the case, there are discrepancies. The accused admits that he threw punch but says that Baikie struck him first. He also says that he does not think that he caused Baikie's injuries. nan The facts leading up to the incident in question include previous incident in October at Uncle Charlie's in which the accused subdued patron with head-lock and removed him from the bar. The patron happened to be penitentiary employee, and it is suggested by the defence that his co-workers were out to ""get"" the accused or to exact some manner of revenge. There are other facts tending to show that Jason Baikie, who works at the penitentiary, was not favourably disposed toward the accused, and that he was indeed instrumental in bringing about the events which resulted in his injuries. His remarks made to Mr. Green in the washroom prior to the alleged assault support the defence's theory that he may indeed provoked the incident. nan The facts relevant to the determination of the issues are as follows: nan Jason Baikie arrived at Uncle Charlie's around 11:00 p.m. on the date in question. He met some friends and associates, and spent the rest of the night socializing and dancing. The accused was employed by Uncle Charlie's as adoorman and relief bartender. During the course of the evening there were two minor incidents and exchanges between Baikie, his associates, and the accused, neither of which progressed beyond the verbal stage. At about 3:00 a.m., Baikie says he observed the accused make motion or gesture which he interpreted as an invitation to become involved with him, or ""bring it on"" (i.e. get involved or get into fight). It is at this point in the proceedings that the witnesses' descriptions of events begin to nan Baikie says that he approached the accused and said ""what's your problem?"". Jason Layman got between him and the accused and turned him around, to defuse the situation. Baikie says that as he was turning around he was hit on the back of the head, saw stars, and woke up in the off-sale part of the bar. Baikie had been drinking at Uncle Charlie's since about 11:00 p.m. He had had one beer before going there, and probably six or more shots of gin in ""mini pitchers"". He was clearly intoxicated. nan Jason Layman also says that the accused motioned to Baikie to ""bring it on"". When Baikie got involved, he says, he got between them and turned him around, saying ""we don't need this shit"". He says at this time the accused punched Baikie and knocked him down. He says that accused gave Baikie two more shots, one on the nose, and another around the eye. Layman had had about three drinks on the night in question as he was designated driver. He was not intoxicated. nan Jennifer White also says that the accused was pointing at Baikie and inviting to come over to him. She confirms the testimony of Baikie and Layman to the effect that Baikie had turned to walk away when the accused got off his perch on the d.j. booth and hit him. White had had two drinks and was not intoxicated. She drove Baikie to the emergency department of the Victoria Hospital. nan At the conclusion of the case for the Crown, defence counsel advised that there were issues of consent and self defence, and that the trial should be adjourned to permit the calling of defence witnesses. The trial was adjourned accordingly. nan For the defence, Derrill Bannerman testified that it was the ""little guy"", meaning Baikie, who was the more aggressive, and who he says took swing at Lee Zoerb. He says that the ""bigger guy"", who was Jason Layman, was trying to hold him back. He says he did not see Zoerb hit Baikie. Bannerman was the ""d.j."" at Uncle Charlie's and the self-proclaimed ""eye and ears"" for the doorman. He had had about three beers and was not intoxicated. 10 George Villeneuve was at the beer and wine entrance when he says he saw Baikie ""taking swing"" at Zoerb. He says ""Lee (Zoerb) went at him, to restrain him"". He says he did not see Zoerb swing. Villeneuve had consumed about three rye-and- cokes and was not intoxicated. 11 Robert Green spoke with Baikie in the washroom one half hour to three-quarters of an hour before the incident. He gathered from the conversation that Baikie had something against Zoerb, and he accordingly warned Zoerb that he should watch out for him. Green says he did not observe the incident, but only the beginning of it, when he says, ""they grabbed onto each other"", and the ""tail-end"", when he says he saw ""two people falling to the carpet"". Green is an AA member and does not drink. 12 Cory Lillis says that he saw Baikie move towards Zoerb and saw Layman intervene. He says that Baikie was trying to push past Layman, that he had started to raise his arm, and that Zoerb then hit him. Lillis said that he tried to restrain Layman and that they fell back down three steps, landing upon Baikie ""causing him to be knocked out"". He says he did not see any injuries. Lillis says also that he observed the two previous exchanges between Baikie and the accused, which did not develop. He says that punch which Zoerb threw at Baikie was ""not that hard"", and that he does not know how Baikie sustained the injuries. Lillis had not been drinking on the occasion. 13 The accused testified that he had been warned that some penitentiary employees were out to get revenge upon him for his handling of the incident in October, and that he should ""watch his back"". On the night in question, Robert Green had told him about the conversation with Baikie in the washroom. He says that when Baikie approached him, he jumped off the d.j. booth and whistled for assistance. He says that Baikie became agitated and aggressive, and that Layman then intervened. He says that Baikie was trying to swing at him over Layman's shoulder, and that Layman then stood out of the way so that he (Baikie) could ""get clear shot"". He says that Baikie then hit him on the shoulder, and he swung back and hit him on the back of the head. He says that Layman then came at him, that Lillis grabbed him, and that they then fell down the steps onto Baikie. He says he does not think that anything he did caused Baikie's injuries. He was not drinking on the occasion. He says he rarely drinks on the job. 14 The testimony of the three Crown witnesses is consistent, and is corroborated by the actual injuries which Baikie sustained. Bannerman's evidence indicates that Baikie was more aggressive than the Crown witnesses would have us believe, and that he in fact threw punch at the accused. Villeneuve agrees with this observation, while Lillis says only that Baikie was trying to push past Layman and had raised him arm before Zoerb hit him. Green saw the accused and Baikie grab onto each other, and people falling down. The accused says that Baikie was swinging at him over Layman's shoulder. 15 I find the facts to be as stated by the Crownwitnesses, with the qualification that Baikie did indeed attemptto ""get at"" the accused whilst being restrained by Layman. He may have thrown punch at the accused or attempted to do so, but his efforts were quite ineffectual. I find that in hisinebriated state, he was no threat to the accused, and that theaccused in fact took advantage of the situation to administer abeating to him. find that the accused administered several blows to Baikie, either at the beginning of the altercation, or as he took him out. do not accept the accused's view that Layman was trying to set him up by allowing Baikie ""clear shot"" at him. Layman was simply attempting to prevent Baikie from getting involved in fight with the accused. Nor do I acceptthe accused's evidence that he threw only one punch, or Lillis'evidence that he and Layman knocked Baikie out by falling onhim. The injuries are simply not consistent with this scenario. 16 I do not accept the argument that the accused wasacting in self defence. Even if he was, he used more force than was necessary. Neither Section 34 or Section 37 of the CriminalCode justifies the assault. find that the accused did assault Jason Baikie and did thereby cause bodily harm to him. I findhim guilty. GOLIATH PROV. CT. J.","The accused, employed as doorman and relief bartender at the time of the altercation, was charged with assault causing bodily harm in which the complainant sustained significant injuries to his head and face. Three crown witnesses and five defence witnesses testified as to the altercation in the bar. HELD: The accused was found guilty. 1)The self-defence argument was not accepted. Neither s.34 or s.37 of the Criminal Code justified the assault. 2)The testimony of the Crown witnesses was accepted. The complainant was no threat to the accused in his inebriated state and the accused took advantage of the situation to administer a beating to him. The injuries were not consistent with the scenario described by the accused and the witnesses.",e_1998canlii13359.txt
106,"J. 1993 C. R. 12836 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN T.V.G. DECISION ON SENTENCING Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 27, 2008. HEARD BEFORE: The Honourable Justice Nancy J. Bateman (and Jury) in the Supreme Court of Nova Scotia on May 2, 3, 4, 1994 DECISION: June 24, 1994 (Orally) WRITTEN RELEASE August 5, 1994 OF ORAL: COUNSEL: Robert Fetterly, for the Prosecution Delores O'Neill, for the Defence BATEMAN, J. (Orally) T.V.G., you were convicted by a jury of sexually assaulting B.S., your common‑law spouse. The offence is contrary to s. 271(1) of the Criminal Code. The evidence presented to the jury was that you and Ms. B.S. had separated few days before this offence. She continued to reside in her home where you had lived together. You called her late in the night preceding the offence. As result of that call, she was afraid to remain in her home and took the children next door to her father's house. After spending the night there she came back to her residence to pick up some clothing before work. You had entered her house sometime during the night you confronted her forced her into the bedroom and raped her, despite her struggles. According to her evidence, during your repeated penetration of her you questioned her about other boyfriends. Ms. B.S. testified, as well, that before raping her, you said that you did not care if you went to jail for this. Clearly, you appreciated the nature of your conduct and the possible consequences. Sexual assault is crime of violence. In crimes of violence, general deterrence is the primary focus, although not the only consideration. General deterrence is usually effected through incarceration, although in exceptional circumstances, other dispositions have sufficed. The case law presented to me on similar offences overwhelmingly supports incarceration the significant question being the appropriate length. Any form of spousal assault is cowardly, violent crime of domination and intimidation. It speaks of control exercised by the physically stronger partner over the weaker. It has recently been referred to as 'domestic terrorism', and that is an apt term. It is crime which shows little evidence of abating. In R. v. McCraw, 1991 decision of the Supreme Court of Canada, Justice Cory spoke of the impact of sexual assaults upon the victim. He says: ""For women rape under any circumstances must constitute profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have substantial effect upon the life and health of every woman. Rape is not just sexual act but is basically an act of violence."" He goes on to say: ""Rape throughout the ages has been synonymous with an. act of forcibly imposing the will of the more powerful assailant upon the weaker victim. The victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence. Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last lifetime."" In case of our Court of Appeal, R. v. Works, decision dated December 3rd, 1991, Justice Matthews writing for the court made the following comment: ""Women must be free to walk the streets in safety. Even more so, women must, in circumstances such as before us, be able to trust men and if man violates that trust, then he must receive sentence commensurate with the offence and the offender."" The impact of the crime on a victim is relevant to the sentence in two ways. In the general sense, the presumed impact of this type of crime on any victim is considered in the context of the gravity of the offence and the range of sanction it attracts. Additionally, the impact of this particular offense on this victim is also to be considered in fixing sentence, but is only one of many factors. Sentences must always be tailored to the individual. The goal of sentencing is protection of the public elements of general and specific deterrence as well as rehabilitation must be considered. must weigh factors particular to you, T.V.G, and particular to the circumstances of this crime. In any crime there may be mitigating and aggravating factors which bear on sentence. The sentence which impose, T.V.G.., is one which must reflect society's outrage generally at violent crime of any form, and outrage, specifically, at your assault on Ms. B.S.. In R. v. G.M., decision of the Ontario Court of Appeal dated November 2nd, 1992, Justice Abella, writing for the Court, explains the role of denunciation in sentencing sexual offenders. She says: ""The public can logically be expected to infer from the nature of the sentence the extent to which court views as serious, certain conduct by given individual ......Sentences which appear on their face to be exceptionally lenient in the circumstances can be presumed to generate neither deterrence nor denunciation."" The factors which am about to address T.V.G. are, in some cases, aggravating and in others mitigating and otherwise simply factors to which must turn my mind in fixing the proper sentence. In many instances they overlap and they are not necessarily cumulative. Sentencing is not scientific process of adding up debits and credits. In my view, the fact that you committed this assault on your former common‑law wife, someone with whom you had had longstanding intimate relationship and had fathered child, is aggravating. Surely this is of more serious nature than an assault on stranger. While the fact that you assaulted Ms. B.S., not stranger, may be relevant in assessing your danger to the community at large, the fact that she was close to you does not make the crime less serious. It was form of breach of trust and that is an aggravating factor. In passing sentence, it perhaps puts the matter into perspective to consider what would be an appropriate sentence had you entered the home of stranger and raped her. The pre‑sentence report indicates that you came from stable, hardworking family. You live with your mother and, notwithstanding this offense, continue to have her support. You have been source of support to her, presumably both emotionally and physically. You and Ms. B.S. have an eleven year old daughter. Ms. B.S. has fifteen year old daughter of another relationship. Ms. B.S. indicates in the pre‑sentence report that while you have never been abusive to the children, you are father in name only, as you have not provided necessities. According to Ms. B.S., you have cocaine abuse problem. You do not acknowledge that you abuse cocaine, although admitting you have tried it. Notwithstanding your denial of substance abuse, the probation officer concludes you would benefit from drug counselling. In fixing this sentence, have not emphasized your past unrelated record, although you do not come to the court as first offender. Ms. B.S. has filed victim impact statement. She indicates that since this rape, she and the children have continued to live at her father's home. Although they have tried to return to their home, they are afraid to spend the night there. Your daughter is afraid to go to bed alone and waits for her mother to go to bed. Ms. B.S. indicates that she is nervous and finds it difficult to sleep. It is aggravating that this offense occurred in Ms. B.S.' home the place, of all places, where person is entitled to feel safe. Nor can the offense be characterized as totally spontaneous, to the extent that you had previously entered the home and stayed until Ms. B.S. appeared. Indeed, you stayed even after she had fled, until apprehended there by the police. Had B.S. been reckless about her safety, that would not have been mitigating factor. It is worthy of mention, however, that she had, the night before, fled her home, with her children, for fear of what you might do. She took all reasonable steps to protect herself in the circumstances. She could hardly have sent her blind father, or one of the children, to collect her clothes in the morning. Notwithstanding the care that she took, she was brutally raped. In fixing sentence, find the older cases of less guidance, as the custodial term for such crime has been increasing of late in response to the number of cases appearing before the courts, and the recognition that past sentences have apparently had little deterrent effect. We have not, in this Province, endorsed starting point approach, as has been done in some of the Western provinces. However, find the comments in R. v. Sandercock, decision of the Alberta Court of Appeal, of assistance, and note that it has been referenced in decisions of our Court of Appeal in particular, R. v. Blackburn. The court in Sandercock categorizes rape, not surprisingly, as major sexual assault. In R. v. Blackburn, the court approved that classification by citing the following words from Sandercock: ""This category, which we would describe as major sexual assault, includes not only what we suspect will continue to be called rape, but obviously also many cases of attempted rape, fellatio, cunnilingus, and buggery where the foreseeable major harm which we will later describe is present."" Without question, T.V.G., you have committed a major sexual assault, and must be sentenced accordingly. The court in Sandercock describes at p.85 the effect of sexual assault on the victim. It says: ""This harm includes not just the haunting fear of another attack, the painful struggle with feeling that somehow the victim is to blame, and the sense of violation or outrange, but also lingering sense of powerlessness. What we mean by this last is that, while we all are aware in an intellectual way about the fragility of normal existence, to experience sudden and real threat to one's well‑being, threat so intense that one must beg to be spared, tends to destroy that sense of personal security which modern society strives to offer and humanity so obviously wants."" am mindful, given the frequency with which these cases are appearing in the courts, that there is risk of becoming desensitized to the horror and trauma sexual assault inflicts upon the victim and the fear that radiates to society generally from reports of such crimes. The court must take care not to underestimate the gravity of this offence. It carries possible maximum sentence of ten years. In R. v. Brooks, decision of the Nova Scotia Court of Appeal, in January of 1993, an offender who had raped his former common‑law wife received sentence of forty‑two months. There are some factors present in that case not present here he was on parole at the time, and had conviction for previously assaulting his wife. Defense counsel has indicated, as well, that Mr. Brooks had received prior sentence of three years for sexual assault on his wife. In R. v. Blackburn, the accused broke into the home of an eighty‑six year old woman and raped her. His sentence was increased on appeal from three to six years. The additional aggravating factor there, not present here, was the conviction for break and enter. T.V.G., you maintain your innocence, as you are entitled to do however, jury of twelve has found you guilty of sexual assault upon Ms. B.S.. You must understand what you have done. This was not stolen romantic moment with hesitant partner, but violent assaultive act, the effects of which will stay with Ms. B.S. always and what sad example for your daughter. Sir, I am persuaded that a fit and proper sentence for your crime, taking into account the circumstances of this offence and the requirements of denunciation and general deterrence, is a period of incarceration of two years and eight months, the total being thirty‑two months. In addition, under s.100(1) of the Criminal Code, I order that you shall not have in your possession any firearm, ammunition, or explosive substance for a period of ten years. In view of T.V.G.'s financial circumstances, and the fact that he is facing lengthy period of incarceration, am not going to impose victim fine surcharge.","The defendant was convicted by a jury of sexually assaulting his common law spouse. They had separated; she continued to reside in the home with the children. Because of his repeated phone calls, she became afraid to stay in the house. She took the children to her father's house. The defendant entered the house in the night and assaulted the complainant when she returned to pick up some clothes. Imposing a sentence of two years eight months, plus a ten year firearm prohibition, that this offence could be categorized as a major sexual assault. The principles of sentencing and the impact on the victim, especially in view of the fact that she was his common-law spouse, made this sentence fit.",5_1994canlii7588.txt
107,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 99 Date: 2007 03 14 Docket: DIV. No. 07124/2005 Judicial Centre: Prince Albert, Family Law Division BETWEEN: CORY WADE PATRICK, Petitioner (Respondent by Counterpetition) and LOUISE VALERIE PROULX PATRICK, Respondent (Petitioner by Counterpetition) Counsel: Dale N. Blenner‑Hassett for the petitioner (respondent by counterpetition), Cory Wade Patrick Trent E. Forsyth for the respondent (petitioner by counterpetition), Louise Valerie Proulx Patrick JUDGMENT GOLDENBERG J. March 14, 2007 [1] The parties were recently before me in an action for custody, access, support, divorce and division of family property. Due to change in circumstances, it was necessary to sever of the matters of custody, access and support. This judgment deals with divorce and division of family property. DIVORCE [2] Grounds for divorce having been proven, it is ordered that Cory Wade Patrick and Louise Valerie Proulx Patrick who were married on the 17th day of August, 2002, are divorced and, unless appealed, this judgment takes effect and the marriage is dissolved on the 31st day after the date of this judgment. DIVISION OF FAMILY PROPERTY [3] Cory and Louise are young couple who, when together, resided in the family home on the SE¼‑27‑52‑05‑W3rd, in the Debden district, in the Province of Saskatchewan. [4] They met and dated when Louise was still in high school. lasting relationship was not formed at that time. [5] After completing grade 12, Louise moved to Saskatoon where she worked for period of time. She then returned to Prince Albert and obtained employment there. [6] The parties began seeing each other again at the end of May or the beginning of June 1999. Upon finding out that Louise was pregnant, they moved in together. The date they moved in together is uncertain from the evidence. However, find that they would have been living together by August 1, 1999. They resided in the home on the SE¼‑27‑52‑05‑W3rd (162 acres). [7] Upon his father’s death in 1996, Cory had inherited the SE¼ along with Ptn. NE¼‑27‑52‑05‑W3rd (23 acres). [8] The parties’ first child was born March 18, 2000. They had planned to marry thereafter, but upon Louise becoming pregnant again, the wedding was postponed. Their second child was born October 20, 2001. Cory and Louise were married August 17, 2002. [9] Cory began working at the Weyerhaeuser saw mill in Big River in January 2000. This continued until he was laid off by Weyerhaeuser in April 2006. He then took up employment as municipal labourer and also at waste management site. [10] Louise remained at home with the children until the youngest was about two years of age. In approximately October 2003, Louise began cosmetology course in Saskatoon. She would leave the farm home Tuesday mornings at about a.m. and return immediately after Saturday classes. Cory did not contribute to her tuition costs. To save costs Louise stayed with relatives in Saskatoon. Upon completion of the cosmetology course, Louise began working in hair salon in Debden in July 2004. This proved to be unprofitable. Louise terminated this in July 2005. She worked at Weyerhaeuser at Prince Albert from mid‑July to December 2005 and for few days in January 2006. [11] The parties separated on May 21, 2005. Louise left the family home and moved into vacant house on her parent’s farm in the Shell Lake district. Cory continued to live in the family home. [12] The principle asset is the family home, that is to say the SE¼‑27‑52‑05‑W3rd. In his evidence at trial, Cory indicated that he was willing to put it up for sale. specifically find that prior thereto, Cory never indicated that he was prepared to sell the SE¼‑27‑52‑05‑W3rd. The outset issue [13] One of the issues arising from the trial is the value of SE¼‑27‑52‑05‑W3rd. The parties arranged for an appraisal of the SE¼‑27‑52‑05‑W3rd and the Ptn. NE¼‑27‑52‑05‑W3rd and split the costs of same. As agreed, the appraisal was placed into evidence before me. The appraisal is what will simply call the usual type of appraisal that is accepted in this Court. The appraiser physically inspected the property with Cory in attendance. The Direct Comparison Approach to Value was utilized based on market data obtained as explained therein. Highest and best use was also analysed as explained therein. The appraised value as of the date of application, July 19, 2005, is $101,600. In cross‑examination Cory agreed that the appraised value for the SE¼‑27‑52‑05‑W3rd, including the house and yard site, was $95,100. [14] As part of Cory’s evidence, and as agreed, letter from real estate agent was placed into evidence. In the letter the real estate agent valued the SE¼‑27‑52‑05‑W3rd at $65,000 to $70,000 as of April 17, 2006. [15] The trial was held in November and December 2006. [16] can well understand why, given the limited value of the family property and the limited means of the parties, the evidence was placed before me as it was. However, must determine value. The appraisal is in format and follows procedure long recognized by this Court. The letter is simply that, letter from real estate agent. Cory’s counsel acknowledges that have no evidence as to the real estate agent’s knowledge or expertise in the area of land appraisal. There is no explanation as to how the value was arrived at other than an inspection of the property. There is no evidence before me as to any factors that would result in reduction, in the intervening nine months, from the application date value set out in the appraisal. [17] consider it appropriate to value the SE¼‑27‑52‑05‑W3rd as of the date of application, July 19, 2005, and find the value to be $95,100. [18] That, however, is not the end of the matter. Cory’s counsel, in his written submission, raises an issue which now refer to as the “outset issue”. Counsel, in effect, says that the value of the SE¼‑27‑52‑05‑W3rd is not material, that the SE¼‑27‑52‑05‑W3rd should be sold and from the sale price, be it “much or little”, the net proceeds is what is to be divided by the parties. With all due respect to learned counsel, this position is not in accordance with the legislation and the practice of this Court. [19] In Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17 (C.A.), the Saskatchewan Court of Appeal set out the approach to be taken by judge when rendering decisions pursuant to The Family Property Act, S.S. 1997, c. F‑6.3. At paras. 18 and 19 of that decision, Justice Cameron set out the methodology as follows: [18] Section 21(1) of the Act requires that the “matrimonial property or its value”, both as defined in s. 2, be distributed and distributed equally, subject only to the exceptions, exemptions, and equitable considerations mentioned elsewhere in the statute. “Matrimonial property” is defined by s. 2(h) to mean all manner of property that, “at the time an application is made under this Act”, is owned by one or other of the spouses or in which either has an interest. “Value” on the other hand is defined by s. 2(1) to mean the fair market value “at the time an application is made under this Act, or at the time of adjudication, whichever the court thinks fit”. [19] In the light of these and other provisions of the Act, the practice is to resolve these cases along the lines suggested by Carter, J., in Rathie v. Rathie (1980), 1980 CanLII 2016 (SK QB), Sask.R. 361, 17 R.F.L. (2d) 265 (Q.B.), determining, first, the property and its value subject to distribution. This ordinarily entails compiling an inventory of the property owned by the spouses as of the time of application and establishing the net value of that property as of that time or the time of adjudication. Exceptions aside, this is the property and its value which is subject to distribution. It is the practice to go on from there to next determine whether any of that property or its value is exempt from distribution; then to determine whether any of it ought not to be distributed equally having regard for the equitable considerations mentioned in the statute; and finally to decide how the distribution should be effected. [20] That certainly is the practice followed by the Court. See for example Crowe v. Crowe, 2001 SKQB 202 (CanLII), 205 Sask. R. 241, cited by Cory’s counsel and also the recent decision of Guderyan v. Meyers, 2006 SKQB 535 (CanLII), [2006] S.J. No. 797 (QL). [21] The Family Property Act, S.S. 1997, c. F‑6.3, as amended, provides in part: 2(1) In this Act: ... “family home” means, subject to subsection (2), property: (a) that is: (i) owned by ... one or both spouses, ... (ii) ... and (b) that is or has been occupied by one or both spouses as the family home ... and that is: (c) house or part of house, including the land appurtenant to it consisting of not more than 65 hectares; ... “family property” means any real or personal property, regardless of its source, kind or nature, that, at the time an application is made pursuant to this Act, is owned, or in which an interest is held, by one or both spouses, ... ... “household goods” means personal property that is ordinarily used, acquired or enjoyed by one or both spouses for transportation, household, educational, recreational, social or aesthetic purposes, but does not include heirlooms, antiques, works of art, clothing, jewellery or other articles of personal use, necessity or ornament or any personal property acquired or used in connection with trade, business, calling, profession, occupation, hobby or investment; ... “spouse” means either of two persons who: (a) at the time an application is made pursuant to this Act, is legally married to the other or is married to the other by marriage that is voidable and has not been voided by judgment of nullity; ... (c) is cohabiting or has cohabited with the other person as spouses continuously for period of not less than two years; ... “value” means: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. ... 20 The purpose of this Act, and in particular of this Part, is to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses, and that inherent in the spousal relationship there is joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the family property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act. 21(1) On application by spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act, order that the family property or its value be distributed equally between the spouses. (2) Subject to section 22, where, having regard to the matters mentioned in subsection (3), the court is satisfied that it would be unfair and inequitable to make an equal distribution of family property or its value, the court may: (a) refuse to order any distribution; (b) order that all the family property or its value be vested in one spouse; or (c) make any other order that it considers fair and equitable. (3) For the purposes of subsection (2), the court shall have regard to the following: (a) any written agreement between the spouses or between one or both spouses and third party; (b) the length of time that the spouses have cohabited; (c) the duration of the period during which the spouses have lived separate and apart; (d) the date when the family property was acquired; (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the family property; (f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse; (g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the spousal relationship; (h) the fact that spouse has made: (i) substantial gift of property to third party; or (ii) transfer of property to third party other than bona fide purchaser for value; (i) previous distribution of family property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2); (j) tax liability that may be incurred by spouse as result of the transfer or sale of family property or any order made by the court; (k) the fact that spouse has dissipated family property; (l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as result of the death of his or her spouse; (m) any maintenance payments payable for the support of child; (n) interests of third parties in the family property; (o) any debts or liabilities of spouse, including debts paid during the course of the spousal relationship; (p) the value of family property situated outside Saskatchewan; (q) any other relevant fact or circumstance. 22(1) Where family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. (2) Where clause (1)(a) or (b) applies, the court may: (a) refuse to order any distribution; (b) order that the entire family home or its value be vested in one spouse; or (c) order any distribution that the court considers fair and equitable. 23(1) Subject to subsection (4), the fair market value, at the commencement of the spousal relationship, of family property, other than family home or household goods, is exempt from distribution pursuant to this Part where that property is: (a) acquired before the commencement of the spousal relationship by spouse by gift from third party, unless it can be shown that the gift was conferred with the intention of benefitting both spouses; (b) acquired before the commencement of the spousal relationship by spouse by inheritance, unless it can be shown that the inheritance was conferred with the intention of benefitting both spouses; or (c) owned by spouse before the commencement of the spousal relationship. (2) Subject to subsection (4), property acquired as result of an exchange of property mentioned in subsection (1) is exempt from distribution pursuant to this Part to the extent of the fair market value of the original property mentioned in subsection (1) at the commencement of the spousal relationship. (3) Subject to subsection (4), family property, other than family home or household goods, is exempt from distribution pursuant to this Part where that property is: (a) an award or settlement of damages in tort in favour of spouse, unless the award or settlement is compensation for loss to both spouses; (b) money paid or payable pursuant to an insurance policy that is not paid or payable with respect to property, unless the proceeds are compensation for loss to both spouses; (c) property acquired after decree nisi of divorce, declaration of nullity of marriage or judgment of judicial separation is made with respect to the spouses or, where the spouses are spouses within the meaning of clause (c) of the definition of “spouse” in subsection 2(1), property acquired more than 24 months after cohabitation ceased; (d) property acquired as result of an exchange of property mentioned in this subsection; or (e) appreciation on or income received from and property acquired by spouse with the appreciation on or income received from property mentioned in this subsection. (4) Where the court is satisfied that to exempt property from distribution would be unfair and inequitable, the court may make any order that it considers fair and equitable with respect to the family property mentioned in this section. (5) In making an order pursuant to this section, the court shall have regard to the following: (a) any of the matters mentioned in clauses 21(3)(a) to (p); (b) contributions in any form made by the spouses to their relationship, children or property prior to the commencement of their spousal relationship; (c) contribution, whether financial or in any other form, made by spouse directly or indirectly to the acquisition, disposition, preservation, maintenance, improvement, operation, management or use of property mentioned in this section; (d) the amount of other property available for distribution; (e) any other relevant fact or circumstance. (6) All family property is presumed to be shareable unless it is established to the satisfaction of the court that it is property mentioned in this section. 40 The court may, in any proceeding pursuant to this Act, take into consideration any agreement, verbal or otherwise, between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable. Determining the Property Subject to Distribution and its Value [22] As set out in Benson, supra, this requires the creation of an inventory of the property owned by either of the parties as of the date of application (July 19, 2005) and establishing its value as of that time or, alternatively, as of the time of adjudication. There is dispute between the parties as to what the assets are and their values. shall now proceed to deal with the various items. (a) What constitutes the family home and its value? [23] As counsel point out, pursuant to s. 22(1)and s. 23(1) of the Act, there is no exemption with respect to the family home. Accordingly it is the entire value of the family home as of application or adjudication that is to be determined. [24] Cory’s counsel takes the position that the “family home” to be divided does not necessarily have to be the entire piece of real property, that the “family home” may include “not more than 65 hectares” (s. 2(1) definition of the Act), and accordingly, the divisible property does not have to be the full piece of property and all the adjoining land. [25] Counsel goes on to cite from Crowe, supra, at paragraph 33, as follows: .. While the matrimonial home may include up to 65 hectares of adjacent land, the focus of the special status is the interest of the spouse in the home itself and not the adjacent land. ... [26] Counsel goes on to state that an “artificial carving out” of portion of section is not desirable, and is not what was contemplated by the legislature. (Crowe, at paragraph 33). Counsel points out that according to the appraisal, only three acres are occupied yard site, including the home itself, the balance of the quarter being comprised of field, grass, bush pasture and waste slough. [27] Cory’s counsel goes on to suggest that the Court order the sale and distribution of proceeds from something less than the entirety of SE¼‑27‑52‑05‑W3rd. By way of example, counsel suggests sale and distribution of 10 acres (including the home and yard site) with the remaining 152 acres being Cory’s to do with as he determines. Cory’s counsel also suggests that if the Court orders the sale of the entirety of the 162 acres of SE¼‑27‑52‑05‑W3rd, then some percentage of the proceeds would be divided 50:50 (not exempt, “family home”, divisible), and the remaining percentage would go to Cory (exempt, not divisible). As understand his submission, he also says that if the Court orders the entirety of the SE¼‑27‑52‑05‑W3rd be sold with the proceeds distributed equally, then an amount should be deducted from Louise’s share and added to Cory’s share to recognize the debt Cory has paid since the separation. [28] The issue then becomes, what is the family home? Cory’s counsel takes the position that while the three acres of occupied yard site constitute “family home” and are thus not exempt from distribution, the balance of the acres or some part of them (up to 159 acres) are not necessarily “family home” and should not be subject to distribution. [29] do note the SE¼‑27‑52‑05‑W3rd contains 162 acres. “Family home” as defined in s. of the Act, refers to “a house or part of house, including the land appurtenant to it consisting of not more than 65 hectares”. calculate 65 hectares to equal 160.62 acres (on the basis of hectare equals 2.4710 acres) Also, on the basis of acre equals 0.4047 hectares, calculate 162 acres to equal 65.5614 hectares. Accordingly, the SE¼‑27‑52‑05‑W3rd is in excess of 65 hectares (160.62 acres) by 0.5614 hectares (1.38 acres). consider Crowe to be distinguishable on its facts. Save for 0.5614 hectares (1.38 acres) and on the basis of what is before me, consider the SE¼‑27‑52‑05‑W3rd to be the family home. The SE¼‑27‑52‑05‑W3rd is to be distributed equally between the parties. The slight overage in the size of the SE¼‑27‑52‑05‑W3rd does not bring into play s. 22(1)(a) of the Act, “unfair and inequitable to do so, having regard only to any extraordinary circumstance”. In my subsequent calculations herein, an adjustment must be first made for the portion of 0.5614 hectares 1.38 acres) that is not the family home. [30] The appraisal fixed value for the land SE¼‑27‑52‑05‑W3rd and Ptn. NE¼‑27‑52‑05‑W3rd of $61,600. The appraisal sets out the yard site as being three acres. Cory agreed the Ptn. NE¼‑27‑52‑05‑W3rd (23 acres) had an appraised value of $6,500. Accordingly take the appraised value of the remaining 159 acres of SE¼‑27‑52‑05‑W3rd to be $55,100 or $346.54 an acre. Cory must receive an adjustment for the value of the 1.38 acres in the sum of $478.23 ($346.54 1.38). [31] There is no preference in The Family Property Act as between the date of application and the date of adjudication. The Courts have indicated generally preference for using the date of application. In Metz v. Metz (1991), 1991 CanLII 7873 (SK QB), 96 Sask. R. 95 at 102 (Q.B.), Dickson J. said: [34] Neither party has said much about the date of valuation, probably because there is not much difference in value of their property on the two dates open for selection: the date action was commenced or the date of adjudication. The date usually selected by the court is the former. The respondent receives notice that day that claim is being made. It follows that the interest of the parties should crystallize then. The court will select the date of adjudication only if some unusual circumstance, like substantial changes in value caused by market forces, will create an artificial result if the date of commencement is selected. ... [32] As to the family home, the evidence that have accepted is as of the date of application. There is nothing in the evidence that would lead to conclusion that the date of adjudication is to be preferred over the date of application. [33] As to the balance of the family property, I am again taken to the date of application. [34] I fixed July 19, 2005 (application date) for the valuation of the family home. For distribution purposes I fix that value at $94,621.77 as follows:Appraised value for SE ¼ & ptn. NE ¼ $101,600.00Less value ptn. NE ¼ ( 6,500.00)Less adjustment for 1.38 acres ( 478.23)Value for distribution $ 94,621.77 (b) Ptn. NE 27‑52‑05‑W3rd [35] Cory inherited this parcel from his father prior to the commencement of the spousal relationship. Cory claims it as exempt from distribution. Louise’s counsel in his written submission advises: “In this case the Respondent is not making any claim against the ptn. NE 27‑52‑05 W3rd”. Accordingly this parcel of land is not included in the family property to be distributed. (c) Division of other property [36] The parties are in agreement that other family property be divided equally between them. However, as indicated, there is dispute as to the composition of the remaining family property and their values. [37] do not have appraisal evidence as to values. have the evidence of Cory and Louise as to what each says is the value of the various items. In some instances Louise based her values on values from persons involved with that type of item, for example, tractor dealer, or from looking in catalogues. [38] Given the limited amounts involved and the costs of appraisals, understand why evidence was not provided in such fashion. accept that. However, must keep in mind that the evidence is not independent evidence; it is the evidence of the parties. Where the value is based on third party information, that party was not produced at trial in order that the value could be tested. Cory’s valuations are basically without explanation. They are his figures. Louise offers some explanation for her valuations, that she researched in order to arrive at the values she testified to at trial, and that this resulted in values higher and lower than those set out in her property statement at the outset of proceedings. (i) Household goods left in the house [39] Cory, in his property statement entered at trial at page 12, lists as divisible family property deepfreeze, kids’ beds, dressers, table and chairs. On the basis of Cory’s cross‑examination, find that he had other items but that he owned them prior to the commencement of the spousal relationship Cory did not give details as to what all these items were and their values. [40] Louise, in her evidence, detailed the items and their values. The items left in the house with Cory total $12,780 by Louise’s valuation. reduce that sum by 25 percent and arrive at valuation of $9,585 for the items of household goods left in the house with Cory. [41] will deal with the exemption claim when have completed my determination of what the family property is and its values. (ii) Household goods taken by Louise [42] Each party testified as to items of household goods that Louise took with her when she left the family home. There is dispute between them as to certain items taken and as to values. Cory arrives at total value, as of the time of the trial, of $8,000. Louise arrives at total value, as of the date of separation (May 21,2005, two months before the application) of $855. [43] Cory valued riding Yardman lawn tractor and bagger at $2,500. From the sales invoice it is clear that the lawn tractor was purchased at the end of May 2001 for $2,199 plus tax. Cory subsequently purchased bagger for it. Cory says the price now for new lawn tractor and bagger is $2,500. The tractor would have been four years old at the time of application. It may well be “practically brand new” now, but it is still used machine. cannot understand why assumably someone would want to pay new price for used machine, no matter how good its condition. While this unit is not household goods item, it certainly calls Cory’s valuations into question. [44] Cory also valued rocking chair at $800. From the sales invoice find the rocking chair was purchased mid December 1999 for $199 plus taxes. cannot accept his valuation. [45] do not consider Cory’s listing of household goods taken by Louise to have an air of reality to it, both as to contested items and as to values. prefer Louise’s evidence. Her value totals $855. increase that sum by 25 percent and arrive at valuation of $1,068.75 for the items of household goods that Louise took with her when she left the family home. (iii) Jewellery [46] Cory places value of $7,000 on Louise’s jewellery. Cory arrives at $7,000 on the basis that he paid $5,000 for her engagement and wedding ring. He made no effort to ascertain the value of her rings or other jewellery. [47] In her property statement filed at the outset of the proceedings, Louise placed value of $3,000 on her jewellery. Louise later made enquires. She says there is no jewellery store market for used engagement and wedding rings and that it would be necessary to go on the internet or to pawn shops to see if there was any such market or to sell the rings at pawn shop. Louise places sentimental value of $500 on the rings. [48] look to Louise’s evidence to find value. However, do not think it is appropriate to proceed by simply adjusting her sentimental value by 25 percent. am of the view that as part of her research, the internet and pawn shops should have been pursued. Doing the best can, fix the value of Louise’s jewellery at $2,000. (iv) Vehicles [49] There is blue F150 ½‑ton truck that Cory had owned prior to the commencement of the spousal relationship. He inherited it from his father. Without explanation he values the truck at $1,000. Louise values the truck at $1,500. She says when they were together, they were looking at trading it off and this is what they were quoted for value. In his written submission, Louise’s counsel acknowledges that the midpoint is $1,250. On that basis value the blue F150 truck at $1,250. [50] There is also 2001 Windstar van, and Cory places value of $10,000 on it. Cory says he was once offered $15,000 for it, and that at the time of their separation, the van was selling in newspapers for $10,000 to $15,000. He made no specific enquiries as to the value of the van. [51] Louise places value of $5,000 on the van. In July 2005, she obtained this value from Tom Naber, sales manager/owner of Ford dealership. Mr. Naber inspected the van. It had 145,000 kilometres on it. He valued it at $5,000. The evidence is silent as to the basis on which he arrived at his value. In her property statement (November 1, 2005) Louise, after “guesstimates from persons” swore value of $8,500 for the van. value the Windstar van at $8,500. (v) Sawmill [52] Cory values the sawmill and gooseneck trailer at $4,000. Louise, in her property statement, valued the sawmill at $2,000. Cory and Louise say they acquired the sawmill by trading truck plus $1,000. The transaction was in the late summer of 2004. Louise says that truck had been purchased for $3,000 and so she values the sawmill at $4,000. Cory acknowledges that the disposition of the truck is shown in his 2004 income tax return. note the value is shown as $3,000. Cory’s 2004 income tax return shows that he acquired sawmill valued at $4,000. Accordingly value the sawmill at $4,000. (vi) Gooseneck trailer [53] As indicated, Cory values the sawmill and the gooseneck trailer at $4,000. He says he has the bill of sale receipt for at home. He did not produce it at trial or disclose the document prior to trial. In cross‑examination Cory said he got fair deal on the trailer purchase and that the gooseneck trailer was worth $2,500 at the time of the purchase. He based this value on looking in newspapers. Based on the condition of the deck, Cory did not think the gooseneck trailer was worth $3,500 as of trial. [54] In her 2005 property statement, Louise valued the gooseneck trailer at $2,500. Louise examined the deck’s condition prior to their separation. She examined it again in October when she took photographs of the trailer. She took the photographs to the trailer dealership and told them about the trailer including the condition of the deck. She obtained value of $3,500 (November 14, 2006). Louise says that she values the gooseneck trailer at that value as of date of separation. reduce that sum by 25 percent and value the gooseneck trailer at $2,425. (vii) MF 135 285 tractors [55] Cory owned these tractors prior to the commencement of the spousal relationship. He claims them as exempt. The tractors had been in the family since Cory was child and he got them from his father. Counsel for Louise does not include these tractors in his written submission. take it therefore that there is no contest as to them being exempt, and do not include them in family property to be distributed. (viii) 1070 Case tractor [56] Cory purchased this tractor, used, from neighbour friend in 2003 for $8,500. He was aware that there was some “blow by”problem with the engine. Cory says the tractor has engine and tire problems. It was used around the farm for hauling hay for animal bedding, and for landscaping. It was also used in the field to pull cultivator. After separation it was used around the yard to move dirt and for landscaping. Cory placed value on the tractor as of time of trial at $3,000. [57] At trial Louise placed value of $9,000 on the tractor. Just prior to trial Louise attended at Martodam Motors to obtain value for the tractor. She told the salesman the year of and the hours on the 1070 Case tractor, that there was some “blow by” and that the tires were worn. Louise showed him photographs of the tractor and of the hours on the hour meter. These photographs were entered at trial. She was given written valuation of $9,000 which was entered into evidence. Louise adopted that valuation as the value she placed on the tractor. [58] The Martodam valuation is based on the tractor having been used for 5,979 hours. Five thousand nine hundred seventy‑nine is certainly the number of hours shown on the tractor’s hour meter as is set out in the photograph shown to the salesman. In cross‑examination Cory initially said that the hour meter had between 8,000 and 9,000 hours on it and that the meter was broken. Later in cross‑examination Cory said that when he bought the tractor from his neighbour, he was told that the hour meter had been broken for long time and the neighbour figured the tractor had between 8,000 to 9,000 hours on it when Cory purchased it from him. have reviewed my notes of Cory’s evidence. am unable to determine the number of hours that Cory says would have been on the tractor either at the time of application or at trial. do accept that the meter was broken. [59] Cory’s valuation is simply that. His value is without explanation as to how he arrived at that value. note that he never had anyone value the tractor for him, and never took it to repair shop to be looked at or repaired. [60] In her November 1, 2005, property statement, Louise swore to value of $5,000 for the tractor. At trial Louise explained this lower value on the basis that she had access to Cory’s statement at the time, she looked at his numbers and tried to put her numbers close to or halfway equal to his, and that she did subsequent research, and this proved not to be the case. [61] am unable to accept either party’s value for the tractor. Under the circumstances must determine fair market value that consider to be reasonable. do note that in his written submission, Cory’s counsel acknowledges that Cory’s $3,000 value may be low and that value of $5,000 or $6,000 was appropriate. place value of $6,000 on the tractor. (ix) Riding Yardman lawn tractor [62] Cory valued riding Yardman lawn tractor and bagger at $2,500. From the sales invoice it is clear that the lawn tractor was purchased at the end of May 2001 for $2,199 plus tax. Cory subsequently purchased bagger for it. Cory says the price now for new lawn tractor and bagger is $2500. The tractor would have been four years old at the time of application. Louise says that at the date they separated she sought information from the store where the riding Yardman lawn tractor was purchased as to its value. She was given value of $500 and that is the amount she values the tractor at. have no evidence from anyone as to the original cost of the bagger or of its subsequent value. Doing the best can, determine the value of the riding Yardman lawn tractor and bagger, by increasing the Louise’s value for the tractor by 25 percent and then adding on $100 for the bagger. therefore value the riding Yardman lawn tractor and bagger at $725. (x) Ice auger [63] In cross‑examination Cory acknowledged the existence of an ice auger. He agreed it was worth around the $400 mark somewhere. Louise values it at $400. increase the value by 25 percent and value the ice auger at $500. (xi) Boat motor and trailer [64] Cory made no mention of the boat, motor and trailer in the property portion of his financial statement, nor in his evidence‑in‑chief. In cross‑examination he acknowledged the existence of this item. He had bought SeaDoo in 1997 and had traded it for the boat and motor in 2001. He later made trailer for it. Cory says the boat, motor and trailer are probably worth $2,000 to $2,500. [65] Louise, in her 2005 property statement, valued the boat and motor at $1,500. She acknowledges that this value of $1,500 was to the best of her knowledge and belief. have no evidence as to how she arrived at this value. Louise took photographs of the boat, motor and trailer in October 2006 and then obtained information from boat dealer that the approximate value of the unit was $2,500. Louise values the unit at $2,500. In light of Cory valuing the unit as of trial at $2,000 to $2,500, value the unit as of date of application at $2,250. [66] Arising from the written submission of Cory’s counsel, there is an exemption issue which will deal with later on. (xii) Cory’s income tax refund from his 2004 return and received in 2005 [67] In the spring of 2005 Cory received an income tax refund of $5,647.11. Included in this refund was the sum of $1,350 as result of Louise transferring educational credits to him. Cory’s counsel, in his written submission, says that the tax refund was used to pay down debt owed by them. The evidence is clear that subsequent to separation, Cory certainly payed debts. However, the evidence is not clear as to role, if any, that this income tax refund played in the payment of debt. On balance of probabilities, am unable to find that the income tax refund was used for or had role in the payment of debt. consider the income tax refund of $5,647.11 to be family property. (xiii) Cheque from Weyerhaeuser [68] In cross‑examination Cory acknowledged that he had delivered lumber to Weyerhaeuser and month or so later got cheque for it. Cory initially said that the delivery was prior to their separation. He then said he did not know if the delivery was before or after separation. Cory did not recall Louise being with him when he delivered this particular load. Cory was uncertain as to the amount of the cheque, but thought it was around $1,500. Cory said he declared all the lumber sales on his 2005 income tax return. When shown the $2,800 line item on his income tax return, Cory said that this must have included lumber sold in the fall. Cory then said that he did not know if the amount he got for wood was included or not, but he was sure he hauled wood after they separated. [69] Louise says Cory was selling trim blocks to Weyerhaeuser. Trim blocks are the square blocks that go in between piles of lumber. Louise says that at the end of April 2005, they hauled load of trim blocks to Weyerhaeuser using the gooseneck trailer. They were not paid for the load at the time, but they knew how much they would be paid for it as they got printout as to how much they had hauled in and the amount they would be paid. That amount was $2,800. She was there when they got the printout. Louise says she does not have the printout, but that is her recollection. [70] must determine if the payment constitutes family property. When was the load delivered, when was payment made, and what was the amount of the payment? [71] In Lisitza Estate v. Van Oirschot (2003), 2003 SKQB 162 (CanLII), 234 Sask. R. (Q.B.), varied in part but appeal otherwise dismissed (2004), 2004 SKCA 21 (CanLII), 241 Sask. R. 300 (C.A.), said: [9] must deal with the conflict in the evidence, the credibility of the witnesses. [10] As have said previously: (Purdy v. Olson, 1996 CarswellSask 164 (Q.B.), at para. 40, [1996] S.J. No. 176, Q.B. No. 960 of 1993, J.C.S.; Hill v. Hill (1990), 1990 CanLII 7548 (SK QB), 88 Sask.R. 170 (Q.B.), at 174; Hannah v. Pollard (1991), 1991 CanLII 7676 (SK QB), 91 Sask.R. 67 (Q.B.), at 70): “Hrabinsky, J., dealt with the matter of assessing credibility in Grimwood v.Grimwood (1988), 1988 CanLII 5291 (SK QB), 68 Sask.R. 179, at p. 184: ‘.. However, where there is conflict of evidence, as is the case here, the credibility of witnesses cannot be determined solely on the demeanour of the witnesses even where they testify before the presiding judge. refer to the decision of O’Halloran, J.A., in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] D.L.R. 354, where at pp. 356‑357 there is the following: “If trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 1919 CanLII 11 (SCC), 50 D.L.R. 560, at p. 566; 59 S.C.R. 452, at p. 460, 17 O.W.N. 295. witness by his manner may create very unfavourable impression of his truthfulness upon the trial judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. am not referring to the comparatively infrequent cases in which witness is caught in clumsy lie. “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of witness in such case must be its harmony with the preponderance of the probabilities which practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can court satisfactorily appraise the testimony of quick minded, experienced and confident witnesses, and of those shrewd persons adept in the half‑lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For trial judge to say ‘I believe him because judge him to be telling the truth’, is to come to conclusion on consideration of only half the problem. In truth it may easily be self‑direction of dangerous kind.”’” [72] Louise’s evidence is of specific occasion, with specific events. Cory’s evidence contains uncertainty as to date and amount. find that the delivery took place prior to separation, and that the amount owed to them was $2,800. The payment received by Cory in that amount constitutes family property. (xiv) Cory’s Weyerhaeuser pension [73] Cory started working at the Big River Lumber plant of Weyerhaeuser on January 24, 2000, and continued working there until he was laid off as of April 19, 2006, due to an indefinite plant shut down. Cory contributed to pension plan while working at the plant. He is entitled at age 65 to pension of $339.25 per month based on 5.9 years of credited service. [74] The issue is what portion of the pension is family property. Cory’s counsel submits that: (i) the portion of the pension earned from the date of marriage (August 2002) to date of separation (May 2005) should be divided equally, with 50 percent thereof being transferred to Louise; and (ii) the portion earned before the date of the marriage (August 2002) and after the date of separation (May 2005) should remain in the plan, with Cory only. Louise’s counsel submits that the pension should be divided equally between them from the date Cory commenced working for Weyerhaeuser at the Big River Lumber plant until the date the petition issued. [75] have found that the parties were living together by August 1, 1999. The definition of spouse in the Family Property Act includes: ... ... either of two persons who: ... (c) is cohabiting or has cohabited with the other person as spouses continuously for period of not less than two years; [76] And in Rimmer v. Adshead, 2004 SKQB 536 (CanLII), 259 Sask. R. 161, Dawson J., at page 171‑172, said: [20] One of the issues to be determined is the period of the pension accumulation which is subject to division. The parties commenced cohabiting in March 1984. The Courts have, in number of cases, determined that where parties have cohabited, the appropriate commencement date for calculation of the division of assets is two years from the date the parties starting living together. see no reason to differ from that reasoning in this case. The pension benefits accumulated by John prior to March 1986 are exempt property pursuant to s. 23(1)(c) of The Family Property Act. The period of the pension benefits which are divisible is from March 1986 to the date of application. [21] The other issue is whether the pension should be divided other than equally, having regard to the fact that after the parties separated in October 1996 and John continued to contribute to the pension, thereby increasing its value. ... [23] ... Likewise, although John continued to contribute to the pension after the parties separated, during that period he continued to earn an income that was substantially greater than Donna’s and no spousal support was payable. During the period post‑separation to date John held the majority of the family assets without payment to Donna. In the circumstances of this case, do not find it unfair or inequitable to divide the pension equally. ... [77] consider the above quotations to have application to the matter before me. The parties separated May 21, 2005. The date of application is July 19, 2005. Cory would have contributed to his pension during this short period. From the evidence, the exact date of the commencement of the cohabitation is unknown. have found that the parties were living together by August 1, 1999. Taking all of that into account, do not find it unfair or inequitable to divide Cory’s pension for that period in question equally. [78] Accordingly do order that Cory’s pension accumulation, based on the period from August 1, 1999, to July 19, 2005, be divided equally between Cory and Louise and that Louise’s 50% entitlement be transferred to her at source. Leave is given to either party to apply to me or to any Judge of this Court if anything further is required in that regard. (xv) Severance package [79] The evidence before me is that there is no severance package available to Cory arising from his layoff. Assuming, without deciding that such severance package is family property, leave is granted to either party, upon the granting of severance package to Cory, to bring an application before me or before any Judge of this Court to have the matter determined and, if applicable, divided. (xvi) Equipment [80] Cory says he has miscellaneous equipment, discers, etc. which he valued at $1,000. In his written submission, Cory’s counsel raises an issue of exemption. In the property portion of his financial statement, under property exempt from distribution, Cory did list equipment. Cory did not lead evidence as to the history of the equipment. Louise led no evidence with respect to this equipment. have no knowledge as to condition, age, etc. Louise’s counsel does not deal with equipment in his written submission. Accordingly consider the equipment to be exempt. (xvii) Cory’s tools [81] In the property portion of his financial statement, Cory lists table saw, router table, deepfreeze, kids’ beds, dressers, table and chairs, and places value of $1,500 for all of them as of trial. Cory provided no explanation for his values. Cory’s counsel, in his written submission, says value of $1,500 should be used for the table saw and router table. [82] Louise values the table saw at $1,200, and the router table (router and router mount) at $300. Louise also prepared listing of Cory’s other tools that she says he had and values them at $2,000. Louise says she looked through tool catalogues to arrive at her cash values as of date of separation. As of the date of application, value the table saw at $1,200 and the router table at $300. reduce the other tools value by 25 percent and value the other tools at $1,500. (xviii) Cows and calves [83] must first determine if all of the cattle in question belonged to Cory and Louise. find as fact that four of the cattle bore the brand of Louise’s parents, and that these cattle were not given to Cory and Louise as gift. These cattle were placed with Cory and Louise as breeding stalk, and they were entitled to all offspring. [84] Cory valued all the cattle at $9,500. Reducing this total for these four cattle (two heifers at $1,600 and two cows at $1,000), Cory’s valuation is $6,900 for the remaining cattle. [85] Louise took all the cattle with her upon separation. Louise values the remaining cattle at $4,435 as of the date of separation. She attended at Heartland Livestock Services and told them about the cattle and obtained valuation in that sum from them. [86] am not prepared to fully accept either valuation. Cory has been involved with cattle all his life. He last sold cattle in 2004. He was not familiar with exact cattle prices in May 2005. Louise’s valuation is based on the value she obtained from Heartland. That value, in turn, is based on what Louise told them. do note and accept Louise’s evidence that May 2005 market values were bad due to BSE (mad cow disease). As of the date of application, value the cattle that belonged to Cory and Louise at the midpoint of their values, namely, $5,667.50. (xix) Louise’s horse [87] Louise had horse which she had owned prior to the commencement of the spousal relationship. Cory acknowledges that it is exempt. Accordingly it is not included in the family property. (xx) Chickens and turkeys [88] Chickens and turkeys were purchased from hatchery on April 12, 2005, for $180.67. They were not purchased for resale but were to be butchered at later time for family consumption. [89] Louise took the chickens and turkeys with her upon separation. They were then about six weeks old. Cory, in the property portion of his financial statement, lists the chickens and turkeys and values them at $1,500. The chickens and turkeys are family property. value them as of the date of application at $180.67. Determination of family property (excluding agreed exemptions) Cory Louise has/had has/had Family home (SE 27‑52‑05‑W3rd) 94,621.77 Household goods left in house 9,585.00 Household goods taken by Louise 1,068.75 Jewellery 2,000.00 Blue F150 ton truck 1,500.00 Windstar van 8,500.00 Sawmill 4,000.00 Gooseneck trailer 2,425.00 1070 Case tractor 6,000.00 Riding Yardman lawn tractor 725.00 Ice auger 500.00 Boat, motor trailer 2,250.00 Income tax refund 5,647.11 Weyerhaeuser cheque 2,800.00 Table saw 1,200.00 Router table 300.00 Other tools 1,500.00 Cattle 5,667.50 Chickens turkeys 180.67 $132,328.88 18,141.92 Total $150,470.80 *# (* plus Cory’s pension for the period from Aug 1, 1999 to July 19, 2005) (# leave granted to apply re Cory’s severance package if one comes into being) Determination of opposed exemptions [90] In Gaetz v. Gaetz (1996), 1996 CanLII 5033 (SK CA), 144 Sask. R. 268 (C.A.), the Court of Appeal considered s. 23(1)(c) of The Matrimonial Property Act, S.S. 1979, c. M‑6.1, repealed, and the definition of “household goods” in that Act. The Court held that: (i) as to household goods previously acquired, absent s. 40 agreement, there was no exemption; (ii) vehicles used for transportation came within the definition of household goods and even if previously acquired there was no exemption; (iii) boat, motor and trailer used for recreation came within the definition of household goods and even if the boat, motor and trailer had been obtained as result of trade of boat, motor and trailer previously acquired, there was no exemption. [91] look to the evidence. There is no s. 40 agreement. There is nothing in the evidence before me to suggest that the truck was not used for transportation or that its predominant use was for another purpose. There is nothing in the evidence to suggest that the boat, motor and trailer were not used for recreation or that the predominant use was for another purpose. Cory is the one raising the exemption claims. It is incumbent on him to lead evidence to support his claims. He has not done so. [92] None of the claims for exemption as to the (i) household goods left in the house; (ii) blue F150 ½‑ton truck; or (iii) boat motor and trailer, are made out. The family property remains as have set it out previously. Equitable considerations [93] Cory raises two issues: (a) whether he should be given credit for debt payments in the sum of $19,887.46 that he has made since separation; and (b) what is to be done with the outstanding debt, with Cory suggesting that portions of that debt be assigned to Louise. (a) Whether he should be given credit for debt payments in the sum of $19,887.46 that he has made since separation. [94] firstly look to the $19,887.46 sought to be credited. [95] am not, on balance of probabilities, satisfied that the following have been proven: (a) CIBC overdraft of $1,000; and (b) Debden C.U. of $500. [96] The $300 insurance bill for the van is not creditable item. Cory was uncertain what this debt was. Louise wanted Cory to transfer the van to her but he refused to do so for considerable period of time. Cory paid the insurance on the van while it was in his name. The insurance is an ongoing expense item. Further, Cory cannot claim credit for the insurance when he was refusing to transfer the van. [97] The applicable portion of the account at Debden Farm Sales (to May 21, 2005) totals $4,835.80, not $6,000.00 as claimed by Cory and not $4,868.80 as claimed by Louise. [98] consider property taxes ($1,000) and insurance on home and real property ($1,500) to be ongoing expenses and not pre‑existing debt. [99] find that Cory made the following debt payments: CIBC consolidated loan re vehicles 6,357.46 Debden Credit Union 3,230.00 Debden Farm Sales 4,835.80 Total $14,423.26 [100] In Guderyan v. Meyers, supra, Ryan‑Froslie J., commencing at paragraph 32, said: [32] Section 20 of The Family Property Act describes the purpose of the Act which is to distribute family property equally between spouses, subject to the exceptions, exemptions and equitable considerations mentioned in the Act. One of those equitable considerations is debts (s. 21(3)(o)). [33] Justice Jackson of the Saskatchewan Court of Appeal in Russell v. Russell, [(1999), 1999 CanLII 12313 (SK CA), 180 Sask. R. 196 (C.A.)], at paras. 109 to 110, discussed how debts should be dealt with in the division of family property as follows: [109] The phrase “matrimonial debt” does not appear in The Matrimonial Property Act. The only mention of debts in that Act is as factor in making an unequal distribution. Subsection 22(1) of the Act directs the court to have regard to debts or liabilities “pertaining to the matrimonial home,” but debts which do not pertain to the matrimonial home are only factor in making an unequal distribution under s. 21. If the Court is satisfied, having regard for number of factors enumerated in s. 21(2), that it would be unfair and inequitable to make an equal distribution, it may make any order pursuant to s. 21(2)(t) that it considers fair and equitable. The factors which the Court can consider include the following: 21(2) Subject to section 22, where, having regard to: (a) any written agreement between the spouses or between one or both spouses and third party; ... (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the matrimonial property; ... (n) interests of third parties in the matrimonial property; (o) any debts or liabilities of spouse, including debts paid during the course of the marriage; ... (q) any other relevant fact or circumstance. Debts could be taken into account under any of the above clauses, but are specifically referred to in s. 21(2)(o). It should be noted that this clause does not mandate that “debts or liabilities” must be divided equally. [110] Like many other considerations under The Matrimonial Property Act, adjusting matrimonial property division for debts incurred during the marriage is matter left solely to the discretion of the trial judge. Obviously, that discretion must be exercised in fair and just fashion. There are, however, few additional constraints. [34] In applying s. 21, the court may make any order “.... it considers fair and equitable ...” in the circumstances. [101] am of the view that no credit should be given to Cory for the payments as have determined them to be, for the following reasons: (a) Cory has had possession of and has lived in the home on SE¼‑27‑52‑05‑W3rd since the date of separation and has paid no occupation rent; (b) Cory has had possession of the bulk of the remainder of the family property since the date of the separation; and (c) Cory has refused to pay and continues to refuse to pay spousal or child support absent court order. (b) What is to be done with the outstanding debt, with Cory suggesting that portions of that debt be assigned to Louise? [102] Louise’s counsel, in his written submission, acknowledges, that in order to obtain fairness the outstanding debt should be taken into account. [103] The outstanding debt is as follows: CIBC consolidated loan re vehicles $10,901.55 Debden Credit Union 2,831.31 Total $13,732.86 [104] The CIBC loan is consolidation of two vehicle loans loan on the Windstar van that Louise has and loan on Ford F250 truck. Cory sold the F250 truck not long after separation with the proceeds going to the consolidated loan. have no evidence as to how much of the $10,901.55 owing to CIBC can be attributed to the Windstar. [105] The matter is best dealt with by an order that Cory shall assume and pay the outstanding debts totalling $13,732.86, being $10,901.55 to the CIBC and $2,831.31 to the Debden Credit Union, and he shall indemnify and save harmless Louise from any liability pertaining thereto. so order. Cory is to be credited with such sum by reducing the value of the family property attributed to him by $13,732.86 as follows: Value of family property attributed to Cory $132,328.88 Less outstanding debt to be paid by Cory 13,732.86 Adjusted value of family property attributed to Cory $118,596.02 Total adjusted value of family property attributed to Cory and Louise: Adjusted value of family property attributed to Cory $118,596.02 Value of family property attributed to Louise 18,141.92 Total adjusted value of family property attributed to Cory and Louise $136,737.94 Equalization payment [106] Each party is entitled to one half of $136,737.94, that is to say, $68,368.97. The amount of family property attributed to Louise is $18,141.92. Accordingly, Louise is to receive from Cory an equalization payment of $50,227.00 ($50,227.05 rounded). [107] Section 26 of The Family Property Act provides for effecting distribution pursuant to Part IV of the Act. am of the view that the appropriate order at this time is that the Cory pay to the Louise the sum of $50,227.00, with interest thereon at the rate of percent per annum, within 90 days of the date of this judgment. In the event that such payment is not made, leave is given to the Louise to bring an application before me or any Judge of this Court for further order directed to ensuring receipt by Louise of the sum of $50,227.00, together with interest as above. [108] To secure the monies so owing to Louise by Cory, Louise is now to register charge against the following land Surface Parcel #133153488, Reference Land Description: SE Sec 27 Twp 52 Rge 05 W3 Extension 0, as described on Certificate of Title 97PA08553. Upon payment of those monies to Louise, the charge created by this judgment is to be removed from the said land. [109] Additionally, and by way of equalization: (a) Louise is to receive one half of Cory’s pension for the period from August 1, 1999, to July 19, 2005, and that entitlement is now to be transferred to her at source; and (b) Leave is granted to either party to apply with respect to Cory’s severance package if one comes into being. [110] There shall be no order as to costs as the results of this action are mixed.","This judgment dealt with divorce and division of family property. At issue was the value of the matrimonial home and the balance of family property. HELD: Decree of divorce issued. Valuations of the family home and property were made, and exemptions and equitable considerations were addressed. Equalization payments were prescribed. As the results of the action were mixed, no costs were ordered.",2_2007skqb99.txt
108,"J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and ANGELA GWEN LARSON CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing COUNSEL: Mr. R. Kergoat for the appellant Mr. D. Rayner for the Crown DISPOSITION: Appeal Heard: March 12, 1996 Appeal Allowed: March 12, 1996 (orally) Reasons: March 14, 1996 On Appeal From: QBCA 18 of 1995, J.C. of Saskatoon Appeal File: 6793 Reasons by: The Honourable Madam Justice Gerwing In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Cameron GERWING J.A. The appellant was acquitted after trial in the Provincial Court of communicating with another person for the purpose of engaging in prostitution, contrary to s. 213(1)(c) of the Code. However, on appeal to the Court of Queen’s Bench, a new trial was ordered, and it is from that judgment that this appeal arises. There is no need, in view of our disposition, to conduct an extensive review of the facts. police officer, on duty as an undercover person, had conversation with the accused which formed the basis for the charge. The Queen’s Bench judge, in reviewing the decision of the Provincial Court judge in acquitting, interpreted her oral reasons to include a requirement as an element of the actus reus for an offence under s. 213 that there be a specific conversation with respect to payment of money for specified sexual services. The Queen’s Bench judge concluded that this was an error in law and cited as a correct test a comment in R. v. Schmidt (1987), 1986 CanLII 3096 (SK QB), 53 Sask. R. 75 at pp. 77-78: Applying these principles to the present case, it is my view that the facts before the learned Chief Judge constituted evidence from which properly instructed jury could reasonably infer that the respondent was communicating with female person for the purpose of engaging in an act of sexual intercourse and for which he intended to pay. In summary, the evidence is that the respondent approached woman unknown to him in an area where prostitutes were plying their trade, invited her into his automobile, inquired if she was interested in sex and wanted to know if she was police officer. The fact that the conversation did not reach the point where the matter of payment was discussed would not preclude jury from reasonably concluding that an act of prostitution involving the payment of money for sexual favours was contemplated. It was strongly urged by the Crown, and conceded by counsel for the defence, that this is the correct test. That is, if indeed the Provincial Court judge had found that under s. 213 the actus reus must include a specific conversation specifying the sexual services and the money to be paid for them, she was incorrect. We agree with this. However, as we have repeatedly said in the exercise of our appellate capacity both with respect to judgments and jury charges, the entire reasons must be read to understand the true ratio. Here the Queen’s Bench judge in his appellate capacity focussed on one sentence where the trial judge said: ... think the evidence ... has to be relatively specific on the issue of money for specific sexual services. However on a reading of the entire oral judgment, we are of the view she was, in effect, saying that the evidence failed to convince her beyond a reasonable doubt that the offence had taken place. The fact that she was not adding the need for specific conversation is buttressed by the submission of counsel for the appellant that immediately before giving oral judgment she had refused motion for nonsuit. Were she to have been of the view that such an element was necessary it is probable she would have granted the nonsuit. Thus, while noting that the statement of law by the judge of the Court of Queen’s Bench in his appellate capacity was correct, we are the view that the appropriate disposition is to set aside his judgment and restore the decision of the Provincial Court acquitting the appellant of the offence.",The appellant was acquitted of communicating with another person for the purpose of prostitution. A new trial was ordered on the basis that the Provincial Court judge included a requirement as an element of the actus reus for an offence under s.213 that there be a specific conversation with the respect to payment of money for specified sexual services. The Queen's Bench judge concluded that this was an error in law and cited as a correct test that set out in R. v. Schmidt. HELD: The proper disposition is to set aside the judgment and restore the decision of the Provincial Court acquitting the appellant of the offence. 1)On reading the entire oral judgment the court concluded that the judge was saying in effect that the evidence failed to convince her beyond a reasonable doubt that the offence had taken place. 2)The trial judge was incorrect in finding that under s.213 the actus reus must include a specific conversation specifying the sexual services and the money to be paid.,8_1996canlii4963.txt
109,"J. 2004 SKQB 62 D.I.V. A.D. 1998 No. 003884 J.C. M.J. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF MOOSE JAW BETWEEN: JANICE LEE (OVERS) PETERSEN and GARY JOSEPH OVERS RESPONDENT T.G. Graf, Q.C. for the petitioner D.M. Chow for the respondent FIAT MATHESON J. February 20, 2004 [1] When the judgment, dated December 14, 1999, was amended to provide that the primary residence of the child, Cassie, should be with her father, the question of the payment of maintenance by the mother was adjourned pending fulfilment of the requirement that the mother, Janice Petersen, produce all information relating to her ability to pay maintenance, and for her examination by the respondent to determine her income. [2] The examination has been completed, and by agreement of counsel the questions to be resolved are whether Janice Petersen has produced all relevant financial information, and whether a trial should be directed as to the amount of maintenance payable by her. FINANCIAL INFORMATION [3] When the foregoing order was made on June 4, 2003, Janice Petersen was engaged in farming enterprise with her father, who owned, or leased all of the farmlands and equipment involved in the enterprise. Janice Petersen testified that the arrangement entailed her working on the farm with her father. She would be charged 20 percent of the expenses and would receive 20 percent of the profits. [4] Janice Petersen has produced her income tax returns, prepared by her accountant. But counsel for Mr. Overs has complained that “Mrs. Petersen has no farm/cattle income or expense banking accounts of her own, she has no permit book and offers nothing to substantiate her annual income from the farming and cattle operation with her father other than her annual tax returns”. Counsel for Mr. Overs has asserted that Janice Petersen should be required to produce her father’s farming accounts. [5] It is difficult to comprehend exactly what an examination of Janice Petersen’s father’s books of account would reveal which would assist Mr. Overs in establishing that Janice Petersen has earned more income than the amount revealed in her income tax returns. Although counsel for the respondent has stated that Janice Petersen “and her family members continue to shelter financial information relevant to these proceedings”, there is not shred of evidence to support that statement. [6] It has also been submitted that the financial records of the trucking corporation, owned by Janice Petersen’s husband, should be disclosed. The reason therefor is that “counsel for Mr. Overs cannot effectively determine the amount of income that should be attributed to Mrs. Petersen from the numbered corporation”. [7] Although it has been asserted that Janice Petersen “performs significant duties for the numbered corporation but draws no income from it”, Janice Petersen testified that she devoted but one hour per month performing such duties. When one considers that the corporation owns but one truck, operated by Mr. Petersen, from which all of the income of the corporation is derived, the suggestion that income from the corporation should be imputed to Janice Petersen is nothing less then ludicrous. [8] The fact that Mr. Petersen’s income is deposited into joint account with Janice Petersen is no different than occurs in many households. Because spouses maintain joint bank account, into which the breadwinner deposits his or her earnings, does not justify imputing portion of that income to the homemaker spouse. [9] Counsel for Mr. Overs also seeks financial information relating to Mr. Petersen’s ranching operations, where the Petersens resided. Janice Petersen looked after the ranch while Mr. Petersen was operating the truck. It has been submitted that income should be imputed to Janice Petersen from the ranching operation. Whether that submission has any more merit than the other assertions by counsel for Mr. Overs need not be canvassed, because Mr. Petersen could not, because of the recession in the cattle business, continue his trucking operation from the ranch; the Petersens have moved their residence to Lloydminster. Janice Petersen is therefore not at the present time looking after the ranch nor engaged in farming with her father. [10] Neither Janice Petersen’s father, nor Mr. Petersen, are parties to these proceedings. To require them to produce their financial records, in the absence of even the slightest evidence such production would disclose anything which would in any manner assist in determining the amount of child maintenance payable by Janice Petersen, would be totally unjust. TRIAL OF THE ISSUE [11] Counsel for Mr. Overs has stated “the only way to obtain the full and complete picture of the petitioner’s income and entitlement to income on an annual basis is to hear from witnesses at viva voce hearing”. [12] On the basis of the material presently available, the only benefit which would be derived from ordering trial of the issue as to the amount of child maintenance to be paid would be to enhance counsels’ fees. The parties can ill afford such expense, and they would be poorly advised to pursue such course. [13] Both applications are dismissed, with costs to Janice Petersen in the amount of $500.00. [14] The application for calculation of the amount of child maintenance is returned to the Chamber list for March 8, 2004.","FIAT: The issue to be resolved was whether the petitioner had produced all relevant financial information in order for the Court to determine the amount of maintenance to be paid by her. HELD: The application was dismissed with costs in the amount of $500 to the petitioner. Neither the petitioner's father nor the petitioner's husband was a party to the proceedings. To require them to produce their financial records, in the absence of even the slightest evidence such production would disclose anything which would in any manner assist in determining the amount of child maintenance payable by the petitioner, would be totally unjust.",2_2004skqb62.txt
110,"J. F.L.D. A.D. 1998 No. 275 J.C. Y. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: MICHELLE O'BRIEN and KEVIN O'BRIEN RESPONDENT Doreen K. Clark for the applicant No one appeared for the respondent JUDGMENT FOR PROVISIONAL ORDER MacLEOD J. October 16, 1998 [1] The applicant is the mother and has sole custody ofCynthia Kelsey O'Brien, born December 4, 1989, a child of theparties. By order dated June 7, 1996, the respondent, KevinO'Brien is required to pay $750.00 per month to the applicantas maintenance for the said child. [2] The applicant applies, pursuant to s. 17 of theDivorce Act, R.S.C. 1985, c. 3 (2nd Supp), to vary this orderand to obtain an order that the respondent provide maintenancein accordance with the Federal Child Support Guidelines(SOR/97-175). The applicant swears, inter alia, that ""his income is at least $111,178.00 per year and can be imputed to be more"", and further ""from April 1, 1997 to March 31, 1998, the respondent's income was salary of $65,122.00 taxable income and $46,056.00 non-taxable income"" and ""he gets salary plus extra pay for working on commissions created by the government"" and, finally, she expects he would earn income from other sources. [3] Her further affidavit shows that he receives annualgross rental income of $10,800.00 from which is to be deductedinsurance of $495.00, interest of $3,460.13, repairs andmaintenance of $1,644.00, property taxes of $462.00 andcapital cost allowance of $1,800.00, leaving a net income of$2,937.69. She does not believe the respondent should beallowed to deduct all of the interest or any of the capitalcost. However, it seems to me that these may be justifiable expenses, and take the net rental income to be $2,937.69. [4] For purposes of this order, it is declared that therespondent, Kevin O'Brien has been found to have a grossannual employment income of $63,500.70, a gross rental incomeof $2,937.69 and additional net income of $22,716.00 beingthat portion of his living allowance deemed to be income, fora total of $89,154.39. He shall pay to the petitioner,Michelle O'Brien, $754.19 per month for the support of CynthiaKelsey O'Brien, such payments to be made on the first day ofeach month, commencing (and being retroactive to) September 1,1998. [5] The respondent, Kevin O'Brien, shall also pay to thepetitioner, Michelle O'Brien, one-half of all extracurricularexpenses within 60 days of the time the petitioner provideshim with receipts therefor. [6] The respondent, Kevin O'Brien shall also pay to thepetitioner, Michelle O'Brien, one-half of all orthodontist'scosts, to the extent that the orthodontist's costs are notcovered by the dental plan of the petitioner, within 60 daysof the time the petitioner provides him with receipts forthese costs. [7] This order and the supporting material shall be transmitted in accordance with the requirements of s. 17(11) of the Divorce Act.","The mother who had sole custody of the nine year old applied pursuant to s17 of the Divorce Act to vary an order requiring the father to pay $750 as child support and to obtain an order for maintenance in accordance with the Federal Child Support Guidelines. The mother argued the father should not be allowed to deduct all of the interest or any of the capital cost associated with his rental income. HELD: 1)The father was to pay monthly child support of $754.19, retroactive to September 1/98. The father's annual net rental income of $2,937.69 and a portion of his living allowance deemed to be income were added to his gross annual employment income. 2)The father was to pay one-half of all extracurricular activities within 60 days of receiving the receipts and one half of orthodontist's costs to the extent they are not covered by the petitioner's dental plan.",d_1998canlii13765.txt
111,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: McGean Estate (Re), 2008 NSSC 145 Date: 20080512 Docket: Probate No: 20,357 Registry: Sydney In the Court of Probate for Nova Scotia In the Estate of David McGean, Deceased Judge: The Honourable Justice Frank Edwards Heard: March 31 and April 25, 2008, in Sydney, Nova Scotia Counsel: Andrea Rizzato, for the applicants Elizabeth Cusack, Q.C., for the respondent By the Court: [1] This is an Application for an Order removing Joan McGean as one of the Personal representatives of the Estate of David Raphael McGean. [2] Introduction: David Raphael McGean died intestate on May 3, 2007 in North Sydney, Nova Scotia. The Applicant, Theresa McGean, and the Respondent applied for Grant of Administration by application, dated May 4, 2007. By Grant of Administration, issued by the Court of Probate for Nova Scotia, the Applicant Theresa McGean, and the Respondent were appointed Co-Administratrices of the Estate of David Raphael McGean. [3] The intestate, was employed by Marine Atlantic Inc. for approximately thirty-one (31) years. During that period he contributed to pension plan, which was valued following his death in June, 2007 by Marine Atlantic Inc. at two hundred eighty-three thousand two hundred thirty-seven dollars ($283,237.00). [4] Marine Atlantic Inc. determined that the Respondent is spouse within the meaning of the Pension Plan for Employees of Marine Atlantic Inc. and the Pension Benefits Standards Act R.S.C. 1985, c.32 (2nd Supp.), and therefore, began paying survivor benefits to her. As result of the survivor benefits being paid to the Respondent, the Estate received no monies from Marine Atlantic Inc. The Applicants contend that the pension should have been paid to the Estate, rather than the survivor benefits to the Respondent. It is the Applicant’s position that the Respondent was not spouse, within the meaning of the legislation and plan, and is therefore not entitled to the survivor benefits. As such, the Applicants believe that the Estate should commence an action in the Supreme Court of Nova Scotia against Marine Atlantic Inc. and the Respondent for payment into the Estate of the pension plan entitlement earned by the Intestate, and for reimbursement by the Respondent of the amounts already paid to her. [5] The Applicants further contend that the Respondent is in position of direct conflict. The continuing payment of the survivor benefits is an immediate benefit to her, which would be lessened if it were to be paid to the Estate and divided amongst all of the heirs. Unless the Respondent agreed that the pension funds should be paid into the Estate and divided amongst the heirs, the Respondent, as Adminstratrix of the Estate, would be required to bring action against herself, in her personal capacity. [6] Based on the foregoing, the Applicants believe that the Respondent should be removed as Adminstratrix of the Estate. Then the Estate could pursue claim for payment of the Marine Atlantic pension into the Estate. [7] Facts: The Intestate resided at North Sydney, Nova Scotia, at the time of his death. The Intestate had two children, the Applicants, and was separated from his wife, the Respondent. The Respondent is not the biological mother of the Applicants. The Intestate and the Respondent had been separated from one another for approximately twelve (12) years at the time of his death. The Intestate had no common law spouse. [8] The Intestate was employed by Marine Atlantic Inc. from January 1975 until he retired in October 2006. The Intestate was collecting the pension from Marine Atlantic Inc. at the time of his death. Marie Atlantic Inc. has indicated that the total lump sum value of the pension, as of May 31, 2007 was, as was noted above, two hundred eighty-three thousand two hundred thirty seven dollars ($283,237.00). [9] As noted, the Intestate died on May 3, 2007. The Administratrices were unable to locate Will of the Intestate and therefore filed for Grant of Administration. The Applicant, David McGean, did not apply for the Grant, as he is resident in Kellowna, British Columbia. [10] As also noted, Marine Atlantic Inc. has commenced payment of the pension survivor benefit to the Respondent. Marine Atlantic Inc. has refused to make any payment to the Estate. [11] Legislation: The New Act: The Applicants rely upon the Probate Act, S.N.S. 2000, c. 31. Section 61 provides in part: “61(1) On the application of any person, the court may remove personal representative where the court is satisfied that removal of the personal representative would be in the best interests of those persons interested in the estate and, without limited the generality of the foregoing, if the court is satisfied that (a) the personal representative has not complied with an order of the court; (b) the personal representative (I) is neglecting to administer or settle the estate, (ii) is wasting the estate” (Emphasis added) [12] The Application must fail. It is clear that the removal of Joan McGean as personal representative is not in the “best interests of those persons interested in the estate”. It would only be so if the intended lawsuit with Marine Atlantic were feasible. It is not. [13] Section 7.1.1(a) of the Pension Plan reads:“7.1.1 Except as provided under Section 7.1.2 and Section 7.1.3, on the death of the pensioner, survivor benefits shall be paid(a) equal to sixty-six and two-thirds percent of the member’s pension to the person who was his spouse at the time of retirement, during the spouse’s lifetime and to the spouse’s estate as a lump sum on the basis of the commuted value of the payments for the remainder of a five-year period from the date of the member’s retirement if his surviving spouse dies within that period.” (Emphasis added) [14] “Spouse” is defined in Section 1.32 which reads: “Spouse means person of the opposite or same sex who is cohabiting with the member in conjugal relationship at the relevant time, having so cohabited with the member for at least one year or, if there is no such person, person who is married to the member or who is party to void marriage with the member, except that prior to July 1, 1999. ... Prior to December 31, 1986, spouse meant person whom the member was married prior to his date of termination and at least one year prior to his death or retirement.” (Emphasis added) [15] Joan McGean and the Intestate never divorced. They separated in December 1996. Consent Order dated December 10, 1996 obliged the intestate to make payments in lieu of spousal support. He continued to make such payments until two months before his death. [16] On July 18, 2002, the Intestate signed an affidavit of status on deed which reads: “That am the spouse of Joan McGean and have no other spouse or, with respect to the within property, any former domestic partner with the rights contemplated by Section 55 of the Vital Statistics Act, or any former spouse with rights under the Matrimonial Property Act.” [17] Theresa McLean says that, prior to his death, the Testator had made arrangements with Marine Atlantic Inc. to designate himself as single. There is no documentary support for this assertion. Even if there were, the Intestate took no steps to change the Respondent’s status in law, that is, he never divorced the Respondent. [18] There is no question but that Joan McGean was the spouse of the Intestate at the time of his death. As such, she is entitled to be paid survivor benefits pursuant to the plan. Those are the terms that bound the intestate. They now bind his Estate. There is no reason to remove Joan McGean as personal representative of the Estate because there is no feasible action for the Estate to pursue. [19] I am therefore dismissing the application. Jean McGean failed to respond to the notice on the original scheduled date for hearing. She therefore necessitated second date. The Applicants needlessly incurred costs on the original date because of Joan McGean’s failure to respond. Joan McGean is entitled to costs for the second day but these are offset by the expense she caused the Applicants on the first date. The parties therefore will each bear their respective costs. Order accordingly.","The intestate's biological child, who was one of the personal representatives of the estate, wished to sue the intestate's former employer to have the pension to which he was entitled at the time of his death paid into the estate. The other personal representative of the estate, who was the intestate's spouse, was in receipt of survivor benefits under the pension and, as such, was opposed to the intended court action. The biological child applied to have his stepmother removed as a personal representative of the estate. Application dismissed; the removal of the personal representative would only be in the best interests of those persons interested in the estate if the intended lawsuit was feasible, which it was not. The estate was bound by the terms of the pension plan, which provided that the respondent was clearly entitled, as the spouse of the intestate, to survivor benefits and the payment of a lump sum into her estate if she died within five years of the intestate's retirement.",d_2008nssc145.txt
112,"J. U.F.C. of A.D. 1988 876 J.C. S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SANDRA CAROL RIEL and RAYMOND ANTHONY JOSEPH RIEL RESPONDENT L.G. TALLIS for the petitioner D.Z. BRAUN for the respondent JUDGMENT HUNTER J. DATE: JUNE 20, 1996 The Respondent father applies to reduce the amountof on-going maintenance of $600.00 per month for his 2 daughtersand to reduce the accumulated arrears of approximately$14,600.00. The original corollary relief judgment was made in 1989. An application for variation was dismissed in 1993 except that an order suspending enforcement of arrears during periods when the respondent is unemployed was granted. The Petitioner resides in Winnipeg, Manitoba and has custody of both daughters. She is employed and while her income has increased since 1989, her expenses have increased correspondingly. Petitioner chose to file material in response to this application and wants the matter dealt with summarily on affidavit evidence and does not want trial of the issue directed. Since the judgment, respondent's employer closed the Saskatoon operation and he has since been working as pipe- fitter. The respondent is hired on jobs in accordance with the union hiring hall practices. The respondent started to fall behind in his child support obligations in 1993. He has worked sporadically since that time. The respondent deposes to the following gross income levels for respective years as follows: 1993 $40,000 1994 $1,792 and some public assistance 1995 6,837 and some public assistance 1996 to date 5,410 Respondent's annual child support obligation is $7,200.00. The records from the maintenance enforcement office indicate the following credits to the child support payment obligation: 1993 $3,172 1994 $1,200 1995 154 1996 828 and $6,257 income tax refund garnisheed for total of $11,611.00 paid and the amount required to be paid was $25,600.00. The respondent has not provided specific informationabout the number of months he was in receipt of social assistancebenefits. However, it is clear that his income during 1995 and1996 does not allow him to meet his support obligations. The respondent proposes that his support obligation be eliminated or at least reduced during his months of unemployment. It is difficult to ascertain an appropriate amount as it is unknown whether any income replacement benefits may be available to the respondent during his periods of unemployment. Counsel did suggest that the obligation be reduced by one-half. Given the significant reduction in incomeexperienced by the respondent since 1994, there has been amaterial change in circumstances. Since his employment isuncertain in his trade a flexible order would be appropriate. Accordingly, there will be an order that the respondent pay childsupport of $300.00 per month per child during months when hisgross monthly earnings are $2,200.00 or greater and $150.00 permonth per child when his gross monthly earnings are less than$2,200.00. Further the arrears are reduced by $7,000.00 andwhen the respondent earns $2,200.00 per month or more he shallpay $200.00 per month on arrears in addition to the on-goingchild support obligation. The order of Dickson J. of September 22, 1993 iscontinued and it is further ordered that the respondent filequarterly, a financial statement or cheque stubs evidencingincome received from employment with the maintenance enforcementoffice commencing September 30, 1996 and every three monthsthereafter until the arrears are paid in full.","The respondent applied to reduce on-going maintenance from $600 per month for his two children and to reduce the accumulated arrears of approximately $14,600. The original corollary relief was made in 1989. An application for variation was dismissed in 1993 except that an order suspending the enforcement of the arrears during the times the respondent was unemployed was granted. The petitioner who had custody of the children and resided in Manitoba was employed. She requested that the matter be dealt with summarily on affidavit evidence and did not want a trial of the issue. HELD: The respondent was to pay $300 per month per child in the months when his gross earnings are $2,200 or greater and $150 per month per child when they are less. Arrears were reduced by $7,000. When he earned more than $2,200 per month he was to pay $200 per month on arrears in addition to the on-going child support obligation. The 1993 order was continued and it was further ordered that the respondent file quarterly a financial statement or cheque stubs evidencing his income with the maintenance enforcement office. 1)There was a significant reduction in the respondent's income since 1994, therefore there was a material change in circumstances. 2)The respondent had not provided specific information about the number of months he was in receipt of social assistance. It was clear, however, that his income during 1995 and 1996 did not allow him to meet his support obligations. Since his employment was uncertain a flexible order was appropriate.",7_1996canlii7107.txt
113,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 97 Date: 20090826 Between: Docket: 1827 William Stocks and Joy Stocks Proposed Appellants and Robin Gardner Proposed Respondent Before: Smith J.A. (In Chambers) Counsel: Heather L. Nord for the Proposed Appellants Ryan M. Hrechka for the Proposed Respondent Application: From: 2009 SKQB 318 (CanLII) Heard: August 26, 2009 Disposition: Leave to Appeal Granted (Orally) Written Reasons: August 28, 2009 By: The Honourable Madam Justice Smith [1] The proposed appellants and the proposed respondent were involved in litigation involving the ownership of some valuable breeding dogs which were in the possession of the proposed respondent, but claimed by the proposed appellants. The proposed appellants sought and obtained writ of replevin in relation to the dogs pursuant to Rules 406-10 of The Queen’s Bench Rules. The proposed appellants provided an irrevocable letter of credit in the amount of $12,000 as security in accordance with the requirements of Rule 408. The proposed respondent did not provide security, as she was entitled to do by Rule 409A, and the sheriff therefore seized two of the disputed dogs then in her possession. She then applied to the Court of Queen’s Bench for an order setting aside the writ, and ordering the dogs to be returned to her, on the grounds that the affidavit filed in support of the writ contained false and misleading information. [2] The chambers judge granted the application, finding, on the basis of affidavit evidence filed before him, that the affidavit filed in support of the writ contained false and misleading information and that to allow the writ to stand would therefore constitute an abuse of the process of the Court. [3] Rule 407 provides as follows: 407(1) writ of replevin shall be issued by the local registrar upon the plaintiff filing his affidavit or that of his duly authorized agent, (a) Embodying description of such property and the value thereof, to the best of the deponent’s belief, and stating that the plaintiff claiming is the owner, or is entitled to the possession of the said property; (b) Further stating, if replevin is sought in the case of property distrained for rent or damage feasant, that the property was taken under colour of distress for rent or damage feasant, as the case may be, or (c) In the case of property wrongfully taken out of the possession of the plaintiff, or fraudulently got out of his possession, stating in addition to the particulars required by clause (a) of this rule the time when and the wrongful and fraudulent manner in which the same was taken, or gotten out of his possession, and such facts and circumstances as show that the plaintiff is entitled to the possession of the property; (d) Naming the judicial centre nearest to which the property sought to be replevied is situated. (2) Where the affidavit substantially complies with the requirements of Subrule (1) the validity of the writ of replevin shall not be questioned in any interlocutory proceeding. [4] The question raised on the proposed appeal is whether the chambers judged erred in enquiring into the accuracy of the facts sworn to in the proposed appellants’ affidavit, in light of the provision in Rule 407(2) that provides that the validity of the writ shall not be questioned in any interlocutory proceeding where the affidavit substantially complies with the requirements of subrule (1). The proposed appellants argue that, in effect, the chambers judge treated the application to set aside the writ as trial of the very issue of the on-going litigation. [5] Where leave to appeal is sought in relation to an interlocutory order, the test to be applied was articulated in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask.R. 121. Essentially, the judge in chambers is required to determine whether the issue sought to be raised on the appeal is of sufficient merit and importance to warrant the attention of the Court of Appeal. [6] have concluded that the proposed appeal in this case meets the test set out and that leave should be granted. In light of the clear wording of Rule 407(2), the question is clearly not frivolous or vexatious. While the value of the dogs is relatively low, they are clearly highly valued by the parties, and they are, in effect, unique chattels. The appeal should not unduly delay the proceedings, for it raises very narrow issue and can proceed to appeal quickly. Most significantly, it is my view that the ruling of the chambers judge in this case raises an issue of considerable significance to the general operation of the remedy of a writ of replevin as provided in the Rules of Court, and merits consideration by this Court. [7] Leave to appeal is granted.","The proposed appellants and the proposed respondent were involved in litigation involving the ownership of some valuable breeding dogs that were in the possession of the proposed respondent, but claimed by the proposed appellants. The proposed appellants sought and obtained a writ of replevin in relation to the dogs. The proposed respondent applied for an order setting aside the writ, and ordering the dogs returned. The chambers judge granted the application finding that the affidavit filed in support of the writ contained false and misleading information and that to allow the writ to stand would constitute an abuse of process. The issue on appeal is whether the chambers judge erred in inquiring into the accuracy of the facts sworn to in the proposed appellant's affidavit, in light of the provision in Rule 407(2) of the Queen's Bench Rules that provides that the validity of the writ shall not be questioned in any interlocutory proceeding where the affidavit substantially complies with the requirements of the Rule. HELD: Leave to appeal is granted. The ruling of the chambers judge raises an issue of considerable importance to the general operation of the writ of replevin as provided for in the Rules of Court.",6_2009skca97.txt
114,"nan INFORMATION Y245194 2004 SKPC 82 IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT BETWEEN: HER MAJESTY THE QUEEN H. (A.R.) Inez Cardinal for the Crown Catherine Knox for the Youth September 14, 2004 P. S. KOLENICK PCJ JUDGMENT [1] The accused youth is charged that on April 27, 2002, near Dundurn Saskatchewan, he did operate a motor vehicle while his ability to do so was impaired by alcohol or a drug, contrary to Section 253(a) of the Criminal Code. [2] The issue which arose herein was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. Review of Evidence for the Crown Sgt. Ian Mitchell [3] At about 6:00 p.m., Sgt. Mitchell of the RCMP received dispatch in regard to possible impaired driver. Therefore he patrolled south on Highway 11, hoping to intercept it. At approximately 6:53 p.m., he met vehicle which matched the description in the complaint, being operated by the accused. It appeared to be speeding. Therefore, he crossed the median on the four lane highway, followed behind, and observed. [4] He estimated the speed of the accused vehicle to have been at least 120 kilometres per hour, which was over the speed limit. As well, he noted the accused’s vehicle to make an abrupt lane change twice, without signalling. Further, it was wandering somewhat within the lane, but did not cross into the adjacent one. [5] At 6:55 p.m., after only about two minutes of observation, Sgt. Mitchell engaged the vehicle emergency flashers and shortly thereafter the accused pulled onto the shoulder and stopped. He suggested that there was some brief delay by the accused’s vehicle and that the braking was abrupt. On the evidence, the accused had passed another vehicle just prior to responding to the emergency lights and stopping, which presumably resulted in the lane changes which the officer had noted. [6] When Sgt. Mitchell first spoke to the accused behind the wheel, he was aware of strong smell of beverage alcohol in the vehicle. He asked him on two occasions if there was alcohol in the car, and the accused responded that there was not. However, the officer located part-full bottle of beer behind the front driver’s side seat, which, on the evidence belonged to Ashley Beaton. She was seated in the rear driver’s side seat, and testified for the defence. There were also two other male passengers. [7] Once the accused was out of the vehicle, Sgt. Mitchell was aware of very strong smell of beverage alcohol on his breath. He confirmed from him that he had one bottle of beer with his lunch, at approximately 2:30 p.m. In regard to other signs of impairment, he noted flushed face, eyes which were glazed and bloodshot and movements which were slow and deliberate, but no problems with balance. He described him as being “cocky” but cooperative. [8] At the scene, he also conducted field sobriety test known as the horizontal gaze nystagmus, which purports to note the degree of involuntary jerking of the eyes as they follow beam of light. According to the officer, he failed six out of six of the clues. Failing four of six indicates seventy-seven percent possibility of the presence of blood alcohol concentration of one hundred milligrams percent or more. The officer had learned this procedure at training course which he had attended in February 2002, and has only used it three times since then. He also administered heel and toe test to determine balance. The parameters of it require the presence of at least two out of eight of the indicators in order to fail. However, the accused had displayed only one, so it was regarded as inconclusive. At the detachment, Sgt. Mitchell also conducted Romberg test, in which the accused is required to tip his head back, while the officer observes for eyelid flutter. Again, the accused allegedly failed, which would indicate recent use of marijuana. [9] Sgt. Mitchell was not qualified as an expert in respect to the prior-mentioned field sobriety tests, nor was there any other expert testimony on the issues of the proper method, interpretation, and their relative reliability. [10] In any event, at the scene, at 7:00 p.m., he read the accused breath demand and rights to counsel, both of which he understood. They arrived at the Saskatoon detachment at approximately 7:45 p.m., after which the accused spoke to legal aid duty counsel for approximately ten minutes. Once that was concluded, he provided two breath samples of eighty milligrams percent each, at 7:54 p.m., and 8:15 p.m., respectively. [11] In cross-examination Sgt. Mitchell confirmed that there was no smell of marijuana use in the motor vehicle, nor were drugs located, despite his claim that the accused having failed the Romberg test was reliable indicator of marijuana consumption. [12] He indicated further that the policy of the RCMP in Saskatchewan is to charge “over .08"" only when subject blows one hundred milligrams percent or higher, unless there is an injury in motor vehicle accident. However, it is discretionary matter, and in the past he has charged impaired driving with blood alcohol concentration as low as fifty milligrams percent. Evidence for the Defence The Accused [13] The accused is now twenty years old, and resides in Regina. He testified that the only alcohol which he had consumed on the day of the alleged offence was one bottle of beer, with his lunch, at approximately 2:30 p.m. The day before however, he had been partying with friends, and did not arrive home until 2:00 or 3:00 a.m. He was unsure how much he had consumed, but estimated that it was probably more than twenty bottles of beer, as well as having shared marijuana joint with four friends. [14] The next morning he awoke at roughly 11:00 a.m. or noon. As he was feeling somewhat hung over, he had one beer only, and no drugs. He decided with his friends that they would go to Saskatoon to skate, and they headed out for that purpose at 3:30 or 4:00 p.m. [15] He confirmed also that Ashley Beaton had brought 1.1 litre of Colt 45 beer. He had told her not to bring alcohol in the car, but she had insisted, so he relented. On route, the other three drank the beer with some small glasses, but the accused did not consume any of it. As well, the others had raised their glasses in toast to some of the other vehicles which they encountered on the trip. [16] The accused indicated that he was not feeling the effects of his prior consumption, and did not believe that his ability to operate motor vehicle was impaired by alcohol or drug. Further, there was nothing unusual in his manner of driving and the trip was in all respects normal, during which he was listening to music and talking with his friends. [17] He agreed that he may have been speeding, as observed by the officer, but that he was also in the process of passing another vehicle, and normally travels at approximately ten kilometres per hour over the speed limit on the highway. As well, he was unsure if he had signalled the lane changes, and may not have done so, because traffic was light, and he might not normally signal to pass the other vehicle on the divided highway with no other traffic being affected by the lane change. [18] He testified further that it was windy at the time, which may have caused him to weave somewhat in his lane, but on the evidence his vehicle did not cross into the other lane. Also, he pulled over as soon as he was aware of the police emergency lights, which he may not have immediately noticed because he was talking with his friends. As well, he did not feel that there was anything unusual in the manner in which he braked, and the process of stopping had to be delayed about thirty seconds for safety, because of the presence of the other vehicle which he had just passed. [19] He disputed that at the time he was displaying any worthwhile signs of impairment. In regard to the smell of alcohol on his breath, he suggested that perhaps it was from his substantial consumption of alcohol the day before, but he had only one beer that date, before they headed for Saskatoon. Specifically, he denied drinking any of Ashley Beaton’s beer in the car, although he allowed the others to do so. [20] He explained further that his bloodshot eyes may have been from his consumption the night before. As well, he is chain smoker and some were smoking in the vehicle, which could have caused the redness. Further, he suggested that his flushed face was perhaps the result of nervousness from his encounter with the police. Ashley Beaton [21] Ashley Beaton, age twenty, has been friend of the accused since they were children. She indicated that she in unable to recall all of the details of the event, presumably because of the passage of over two years from the date of the alleged occurrence. [22] However, she confirmed that she had brought the beer in the car, but that the accused did not drink from it, because he was driving. As well, she believed that he only had one beer at home that day before they departed. Further, during the trip, she was not aware of any nature of erratic driving by the accused which caused her any concern for her personal safety. [23] In cross-examination she indicated that she could not recall when she had first seen the accused that date, but believed it had been in the early afternoon. Apparently therefore she was not with him for the whole day. As well, she did not remember seeing him the previous day during the party, nor did she notice the smell of alcohol on the day of the alleged offence. Analysis Is the evidence sufficiently credible to prove beyond reasonable doubt the offence of impaired operation of motor vehicle, contrary to s. 253(a) of the Criminal Code? [24] In general, the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the accused is presumed to be innocent until proven guilty. In assessing credibility, am guided by the principles restated in R. v. McKenzie (P.N.) (1996) 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v. Rose (A.) (1992) 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), at paragraph 4: “First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” [25] The determination of credibility does not involve the court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidence of the Crown, it must still consider whether the evidence of the accused raises reasonable doubt. [26] In R. v. Huot (M.) (No. 3) (2001) 2001 CanLII 368 (SK PC), 209 Sask. R. 171, referred to the appropriate legal principles to be applied by the court in the assessment of evidence of alleged impairment, commencing at paragraph 26: “[26] In respect to this issue, in R. v. Arevalo (B.), [2001] S.J. No. 218; 2001 CanLII 394 (SK PC), 205 Sask. R. 315 (Prov. Ct.), noted the following commencing at paragraph 8: ‘[8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R. v. Stellato (1994), 1994 CanLII 94 (SCC), 31 C.R. (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 C.R. (4th) 127, at paragraph 14: ‘In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.’ [9] In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs of impairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness of one’s feet. Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on the circumstances in the case.” [27] Further, in R. v. Landes (T.) (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B., Klebuc, J.), the court referred to Stellato, supra, and made the following observations, commencing at paragraph 16: ‘[16] An opinion as to impairment, be it by the trial judge or nonexpert, must meet an objective standard of “an ordinary citizen” or “reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences. To that end list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive motor vehicle. Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, trial judge must carefully review all of the reported tests and observations which inferentially support or negate any impairment of the accused’s mental and physical capabilities, and then be satisfied beyond reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of the Criminal Code. piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall, at p. 66 (R. v. Hall (S.J.) (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62).’” [27] Therefore, these principles must be considered on the basis of the evidence. Evidence of Improper Driving [28] In Landes, supra, the court made the following observations, in the context of the evidence therein, at paragraph 19: “[19] Manner of Driving It is well-established that erratic driving may evidence impairment of the driver’s mental faculties or physical capability, or both, to drive motor vehicle due to the effects of alcohol. However, before any driving may be classified as “erratic”, it must be referable, in the context of all of the evidence, to the impairment of the driver’s skills by alcohol and not to another cause, e.g., mere negligence. Cst. Briant testified people run stop signs when they are sober and when they do, accidents often occur. similar observation may be concerning the quick turn and loss of control. The reference to speed of at least 60 kilometres per hour has little probative value in the absence of evidence as to the posted speed limit for the thoroughfares in question.” [29] On the Crown evidence herein, the accused was operating his vehicle on divided highway, in light traffic. He was exceeding the speed limit and had failed to signal lane changes, which he made in an abrupt manner as he passed the only other vehicle in the immediate vicinity. As well, although the vehicle wandered somewhat within its lane, it did not stray into the other lane of traffic. The officer noted also that the accused’s response in stopping was somewhat delayed, and that when he did stop, he braked abruptly. The opportunity to make the observations was only during roughly two minutes. [30] However, the accused took issue with the suggestion that there had been anything of note either in the timing of the stop, or the manner of braking. At that time, he was visiting with his companions, and as soon as he was aware of the emergency lights, he began to slow and pull over to the shoulder, being required to do so safely because he had just previously passed the other vehicle in the immediate vicinity. He indicated also that it was not unusual for him to speed to some extent on the highway, which may have been more on this occasion, as he passed the said vehicle. He did not dispute that he may have not bothered to signal, because the traffic was light and he was on highway. He agreed as well that the weaving within the lane may have occurred, but that there was some wind, and on the evidence the vehicle had not entered into the other lane to any extent. [31] Having given careful consideration to the evidence of the alleged erratic driving, and the accused’s explanation for it, in my view, the aspects which were observed may well have been the result of driver inattention which could have occurred whether or not his ability to operate motor vehicle was impaired by alcohol or drug. Therefore, that evidence will not be given any weight herein. Evidence of bloodshot or watery eyes [32] The accused suggested that his bloodshot eyes may have been the result of his chain smoking, and that his companions and himself had been doing some smoking on route before they were stopped by Sgt. Mitchell. That description of possible cause has an air of reality to it. As such, the bloodshot eyes will not be considered as reliable indicator herein. Further, the evidence of glazed eyes is inconclusive, in the absence of reliable evidence of bloodshot eyes. As well, the officer did not observe at all watery eyes in the accused as an indicator of impairment. Evidence of flushed face [33] The accused suggested that he may have been blushing at the time from nervousness in his encounter with the police. However, he did not indicate that he tends to get flushed face when he is under stress, and it was not particularly evident when he testified herein that the stress of the trial was causing him to blush. Therefore, the flushed face will be considered as reliable sign of impairment. Odour of alcohol [34] There is no expert evidence in these proceedings as to the rates of absorption and elimination of alcohol, and in any event, the accused was uncertain as to his precise consumption the previous day except that it was probably in excess of twenty bottles of beer, as well as single bottle of beer he had during the day. In any event, the evidence of very strong odour of beverage alcohol is reliable indicium of impairment, due to the consumption of alcohol by the accused, and it will be considered herein. Lack of coordination or inability to perform physical tests [35] On the evidence, the accused did not have any problems with balance, but rather he was moving in slow and deliberate manner. In my view, if the accused was not displaying difficulty with balance and coordination, the suggestion that he was moving slowly is not a credible indicator of impairment and will not be given undue weight for that purpose. [36] In regard to the matter of physical tests, as noted previously, the Crown purported to rely on the results of standardized field sobriety tests, including horizontal gaze nystagmus, heel and toe, and the Romberg. Sgt. Mitchell had learned at least some of the methods at training course in February 2002. Although he had used them since, it was only on few occasions, and he did not suggest that he was an expert. He claimed that the accused had failed the nystagmus because he had failed six out of six indicia, and when there are at least four out of six, it indicates seventy-seven percent chance of blood alcohol concentration of one hundred milligrams percent or more. As well, the heel and toe test was regarded as inconclusive because the accused displayed only one of eight indicators and at least two of eight are required to indicate impairment. He also failed the Romberg test, which involved the officer observing the accused’s eyelids fluttering while tipping his head back, and failure indicated recent marijuana use. In any event, I have concluded that in the absence of expert evidence to explain the scientific basis for these tests, the proper method of application, and to comment on their relative reliability, it is not appropriate for the court to rely upon them on the issue of guilt or innocence, to the prejudice of the accused. [37] In regard to the other potential indicators of impairment, as per Stellato, supra, and Landes, supra, the accused did not display slurred speech. As well, he appeared to fully comprehend his legal rights and obligations in his communications with the peace officer, and legal aid duty counsel. He did not display any mental confusion, or noteworthy inappropriate behaviour. He was described as being “cocky” but cooperative. In general, he conducted himself in rational and reasonable manner. The effect of the Intoxilyzer readings [38] As noted, the accused blew eighty milligrams percent on two occasions. Of course, he was not charged with an offence of being over .08, contrary to s. 253(b) of the Criminal Code, and indeed the policy of the RCMP is to charge only on results of one hundred milligrams percent or higher, unless there is motor vehicle accident in which an injury occurs. Further, Sgt. Mitchell indicated that in the past he had charged an accused with impaired operation, contrary to s. 253(a) of the Criminal Code, with blood alcohol concentration as low as fifty milligrams percent. Every situation in that respect will depend on its own circumstances, and obviously the particular tolerance to the same amount of alcohol consumption will vary from one individual to the next. Further, the accused did not dispute the accuracy of the Intoxilyzer results, and as such, he must be presumed to have consumed sufficient alcohol at some point to have achieved same. [39] However, regardless of that alcohol consumption, and the accused’s blood alcohol concentration, the only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused has offered a reasonable explanation for them. As a result, the evidence is so frail as to leave a reasonable doubt as to impairment, and the accused must be acquitted. Therefore, he is not guilty of impaired operation, contrary to s. 253(a) of the Criminal Code.","The accused youth is charged with driving a motor vehicle while his ability to do so was impaired by alcohol or drug contrary to s. 253(a) of the Criminal Code. The issue was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. HELD: The only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused offered a reasonable explanation for them. The evidence is so frail as to leave a reasonable doubt as to impairment and the accused was acquitted. 1) The accused was exceeding the speed limit and failed to signal lane changes. His vehicle wandered somewhat in the lane, but did not stray into the other lane. The observations of his driving were made over 2-minute period. The aspects of the driving that were observed may have been the result of driver inattention. 2) The bloodshot eyes may have been the result of chain smoking. Further, the evidence of glazed eyes is inconclusive in the absence of reliable evidence of bloodshot eyes. 3) The evidence of flushed face was reliable evidence of impairment. 4) The evidence of strong odour of alcohol is reliable indicia of impairment, due to the consumption of alcohol by the accused. 5) The accused did not have any problem with balance, but was moving in slow and deliberate manner. If the accused was not displaying difficulty with balance and coordination, then the suggestion that he was moving slowly is not a credible indicator of impairment. The accused did not display slurred speech and appeared to comprehend his legal rights and obligations. He did not display any mental confusion or inappropriate behaviour. In the absence of expert evidence to explain the scientific basis for the physical tests administered, the proper method of application and their reliability the Court could not rely on them. 6) The accused blew 80 milligrams on two occasions. However, regardless of the alcohol consumption and the accused blood alcohol concentration, the only reliable indicia of impairment were a strong odour of alcohol and a flushed face.",e_2004skpc82.txt
115,"2007 SKPC 74 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON, SASKATCHEWAN Between HER MAJESTY THE QUEEN and Brian Erwin Gamble J. Plemel, Q.C. for the Crown M. Brayford, Q.C. for the Accused B.M. SINGER, PCJ DECISION June 27, 2007 [1] This is a decision, following a voir dire, on the admissibility of statements made by the accused to a police officer. [2] The Crown called Constable McGunigal. This officer testified that while investigating another matter he received word of single vehicle roll-over accident that had taken place outside Vanscoy on Highway #7. While continuing his investigation of the first incident, he attended at the parking lot of St. Paul’s Hospital in Saskatoon where he was approached by the accused. The accused called out to him and said; “Excuse me, I was in a roll-over accident and I am intoxicated.” [3] His interest piqued, the officer spoke with the accused and received identification information from his licence and advised him to check into the injuries he displayed by seeing the nurse at the emergency department. [4] The officer abandoned his previous investigation. He accompanied the accused to the triage nurse and stayed with him while the accused checked in. During this process the officer observed symptoms of impairment and asked the accused how much he had to drink and was told that he had consumed about 15 beer. [5] The police officer formed the opinion that he should ask the accused for blood sample to determine the quantity of alcohol in his blood. He therefore placed the accused under arrest for impaired operation of motor vehicle, read him his Charter rights, the Police Warning and Demand for Blood Sample. According to the officer, the accused understood his rights, the warning and the demand for the blood sample and was “relatively co-operative” through out. The officer then detained the accused, by remaining with him while awaiting the Blood Kit to arrive and for blood technician to take the blood. During this time, the accused was also awaiting treatment for his injuries. [6] While they were waiting the officer interrogated the accused about the accident and the accused provided additional information to the officer. [7] The accused testified on the voir dire. He said that after the roll-over, he received ride to Saskatoon with truck driver, who dropped him off near his cousin’s home. While walking there he phoned his father, cousin and the 9-1-1 operator. He received advice that there was legal obligation to report the accident promptly to the police. Indeed, the 9-1-1 operator gave him the police phone number to do this. He then went to the hospital to attend to his injuries. [8] He testified, that when he talked to the police officer, it was only because he felt he had legal obligation to do so. Perhaps, that is why he approached the officer in the way he did and was co-operative throughout. However, he had no recollection of the officer ever placing him under arrest, giving him the warning or making the blood demand. [9] It is useful for me to divide the series of statements that the accused made into groups. Those before the arrest and those given after. [10] The Crown concedes that the accused did have a legal obligation to report the accident promptly, and if I find that the accused believed he was reporting the accident when he gave self-incriminating statements to the police officer as a result of this belief, then the law requires me to exclude those statements. The concession made by the Crown is correct. As stated in R. v. White, (1999) 1999 CanLII 689 (SCC), 24 C.R. (5th) 201 S.C.C. any self-incriminating statements believed to be made under compulsion of provincial statute would be breach of the accused’s section Charter rights and would result in an unfair trial. [11] I find in this case that the accused did approach the police officer with the intention of reporting the accident as is required by the Traffic Safety Act. There really is no other reasonable explanation for his statement to the police. As such his initial statement, anything said by the accused while providing his personal information and the answer to any question while registering at the hospital are excluded from this trial. [12] This leaves us with the statements made after his arrest, rights and warning. The accused testified that he did not recall being placed under arrest, being given his rights and warning or even the blood demand. The officer was sure that he had done so and had made contemporaneous note, in his notebook, of these statements to the accused and his responses. find as fact that the arrest, rights and warning were read to the accused and that he understood them. [13] The accused testified that when he continued to talk to the officer he was only doing so because he still felt compelled to do so by his statutory obligation. The Crown contends that if I accept that he was given the police warning then it would be clear to the accused that he did not have to continue to answer questions of the officer. [14] The Defence also argues that since the arrest and the blood demand were based upon evidence that was obtained by breach of the accused’s section 7 rights and was self- incriminating, I should find that the arrest was illegal and exclude all evidence obtained thereafter, or at least that the information obtained was illegally obtained and the police cannot rely on that information to make the demand. These are two distinct arguments. [15] The latter argument is somewhat supported by the British Columbia Court of Appeal in R. v. Powers, [2006] BCCA 454. That case holds that where police officer’s grounds for making demand for sample are as the result of self-incriminating statements of the accused, that have been excluded as they are in breach of section (as they were made under compulsion of statute), the results of the demand must be excluded. In other words, evidence of the certificate of analyses may be excluded if the evidence which resulted in the demand for the samples was illegally obtained. That is not however the subject of this voir dire, which is the admissibility of statements made to the police officer after the accused was placed under arrest. However, that case is instructive as to the effect of the continuing belief of the accused that he was obliged to answer the questions of the officer under the compulsion of statute. [16] In the case before us, the self-incriminating statements, that were made under compulsion of statute have been excluded. Does is it not follow that any evidence that came about as a result of the officer following up on those excluded statements are also in breach of the accused’s section 7 rights? I believe so. [17] Having concluded that the evidence received by the officer was as the result of breach of his section rights, must now determine if the evidence so gathered must be excluded from the trial pursuant to section 24(2) of the Charter. [18] This is more difficult decision. The evidence must only be excluded based upon the factors expressed in R. v. Collins, [1987] S.C.R. 285 and R. v. Stillman (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321. In making this analysis it is important for me to state that believe that the officer was acting in good faith. Indeed, he did not know that the accused was only saying things because he believed he had to under compulsion of statute. Constable McGunigal was not acting with serious, intentional disregard of the accused’s rights nor was he taking statement under the Traffic Safety Act. He was interrogating the accused after he had arrested him, explained what he was arrested for, explained to him his rights to counsel and further warned him that he was not obligated to say anything further to the police. accept that the accused responded to the police officer that he knew his rights and understood the warning. [19] On the other hand, the evidence obtained, the statements in particular were self- incriminating and conscriptive. As the Supreme Court held in Stillman, at paragraph 110 where evidence would not have been discovered in the absence of the conscription of the accused in violation of the Charter, its admission would render the trial unfair. In those circumstances it is not necessary to consider the seriousness of the violation or the repute of the administration of justice. Evidence obtained though process of self-incrimination will generally be excluded in order to ensure that the accused has fair trial. The fair trial test tends more towards an absolute rule of exclusion because courts are instructed not to concentrate on the motives behind the Charter violation. Of course, the rule is different if we are dealing with “real” evidence. [20] That being the case I have concluded that even though the investigator did nothing that violated the accused’s rights, they were nevertheless violated. Because the result of that violation was that there were statements made that amounted to self-incriminating evidence, following the logic of the case law, it is necessary to exclude those statements. Therefore, all of the statements of the accused including those made after the arrest are excluded and will not form part of the Crown’s case. [21] The result of the voir dire is that none of the statements of the accused will be admissible in evidence in this trial. Dated at Saskatoon this 27th June 2007. B.M. Singer, P.C.J.","Decision, following a voir dire, on the admissibility of statements made by the accused to a police officer, beginning with: 'Excuse me, I was in a roll-over accident and I am intoxicated.' The officer, who observed symptoms of impairment, asked the accused how much he had had to drink and was told he had consumed about 15 beers. The officer placed the accused under arrest for impaired operation of a motor vehicle, and read him his Charter rights, the Police Warning and a Demand for Blood Sample. The officer then detained the accused by remaining with him while awaiting the Blood Kit to arrive and for a blood technician to take the blood. During this time, the officer interrogated the accused about the accident and the accused provided additional information. The Crown contended that if he was given the police warning then it would be clear to the accused that he did not have to continue to answer questions the officer's questions. The Defence argued that since the arrest and the blood demand were based upon self-incriminating evidence obtained by breach of the accused's s. 7 rights, the arrest was illegal and all evidence obtained thereafter should be excluded; or, at least, that the information obtained was illegally obtained and the police could not rely on that information to make the demand. The accused testified that he talked to the police officer only because he believed he had a legal obligation to do so, based on advice he had received from others that there was a legal obligation to report the accident promptly to the police. The Crown conceded that the accused did have a legal obligation to report the accident promptly, and that if the accused believed he was reporting the accident when he gave self-incriminating statements to the police officer as a result of that belief, those statements must be excluded according to law. HELD: All of the statements of the accused, including those made after the arrest, are excluded and will not form part of the Crown's case. The evidence obtained, and the statements, in particular, were self-incriminating and conscriptive. The officer was acting in good faith, not with serious intentional disregard of the accused's rights. He was not taking a statement under the Traffic Safety Act. He did not know that the accused was only saying things because he believed he had to under compulsion of statute. Even though the investigator did nothing that violated the accused's rights, they were nevertheless violated. Because the violation resulted in the making of statements that amounted to self-incriminating evidence, following the logic of the case law, it is necessary to exclude those statements. The accused did approach the police officer with the intention of reporting the accident as is required by the Traffic Safety Act. As such, and as the Crown correctly concedes, his initial statement, anything said by the accused while providing his personal information and the answer to any question while registering at the hospital are excluded from this trial. As the self-incriminating statements made under compulsion of statute have been excluded, it follows that any evidence that came about as a result of the officer following up on those excluded statements are also in breach of the accused's s. 7 rights.",5_2007skpc74.txt
116,"SCC/jmj 2003 SKQB 257 Q.B.G. A.D. 2003 No. 733 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH BETWEEN: GLORIA TRUITT and GLORIA TRUITT as Litigation Guardian of TARYN TRUITT and SASKATCHEWAN WORKERS’ COMPENSATION BOARD RESPONDENT Gregory A. Thompson for the applicant Wayne P. Dale for the respondent JUDGMENT ALLBRIGHT J. June 4, 2003 [1] The applicant, by way of notice of motion seeks the following relief: a. An Order by way of certiorari, pursuant to Rule 664 of the Queen’s Bench Rules of Court, to quash the decision of the Workers’ Compensation Board dated November 20, 2002; b. An Order by way of mandamus, pursuant to Rule 674 of the Queen’s Bench Rules of Court, remitting the matter of the Applicants’ claim for benefits back to the Workers’ Compensation Board of Saskatchewan to be dealt with according to law; c. Costs of this Application. [2] The notice of motion, in support of the application, sets forth the following grounds: i. That the Workers’ Compensation Board of Saskatchewan acted outside of the jurisdiction prescribed to it in The Workers’ Compensation Act, 1979, R.S.S. W-17.1, when it denied the Applicants’ claim for compensation, based upon its finding that Mr. Truitt’s death was not compensable, because he was not found dead within the meaning of section 30 of The Workers’ Compensation Act, 1979. ii. That the Workers’ Compensation Board of Saskatchewan acted outside of its jurisdiction, as prescribed in The Workers’ Compensation Act, 1979, R.S.S., W-17.1, when it failed to apply statutory presumptions in favour of Gloria Truitt and Taryn Truitt; and iii. The Workers’ Compensation Board of Saskatchewan took into account irrelevant considerations in its decision of November 20, 2002. [3] In advance of the hearing, Mr. Dale, as counsel for the Saskatchewan Workers’ Compensation Board, filed with the court the “appropriate Return” pursuant to Rule 669(3). The Relevant Rules of Practice and Procedure [4] The relevant Rules of Practice and Procedure relating to judicial review are: 664(1) An application for judicial review by way of mandamus, prohibition, quo warranto, certiorari or to quash proceedings may be commenced by notice of motion. (2) In an application for judicial review, other than proceeding to which the Criminal Code applies, an applicant may claim: (a) declaration as collateral or alternate relief; or (b) an injunction or damages as collateral relief; and the court may grant such relief if it considers that having regard to all the circumstances of the case it would be just and convenient to do so. (3) Every application shall state the grounds on which it is made and the relief sought. 669(3) On receiving notice of motion so endorsed, the court, tribunal or other authority shall return forthwith to the court the conviction, order, decision, (or as the case may be) and reasons therefor together with the process commencing the proceeding, with certificate in the following form: “Pursuant to notice in these proceedings herewith return to this Honourable Court the following papers and documents, that is to say, (1) the conviction, order or decision (or, as the case may be) and the reasons therefor; (2) the process commencing the proceeding and the warrant issued thereon; and hereby certify to this Honourable Court that have above truly set forth all the papers and documents in my custody or power to be returned to this Honourable Court pursuant to the notice.” (Name, set out legibly, and signature.) 674 Where the court is satisfied that there are grounds for quashing or declaring void decision to which the application relates, the court, in addition to granting such relief, may remit the matter to the court, tribunal or other authority concerned with the direction to rehear it or to reconsider it and reach decision according to law. [5] In decision dated November 20, 2002, the respondent, Saskatchewan Workers’ Compensation Board, dismissed the applicant’s claim which had been brought forth both on her own behalf and on behalf of Taryn Truitt for compensation for the death of Scott Truitt on March 2, 1998. [6] The facts giving rise to the instant application are not particularly in dispute. [7] Scott Truitt was Gloria Truitt’s husband and Taryn Truitt’s father. He passed away while working at St. Thomas More College at the University of Saskatchewan on March 2, 1998. At the time of his death he was master’s student who also worked as student assistant in order to earn some income while completing his studies. He would have expected to have completed his master’s degree at the end of the spring session in 1998. [8] On March 2, 1998, in the morning, Scott Truitt, became ill during the course of teaching class at St. Thomas More College at the University of Saskatchewan. He displayed flu-like symptoms, including headache, nausea and vomiting. With the assistance of his students Mr. Truitt was escorted to the faculty lounge. While in the lounge student service advisor, Claude Lang, attended to Mr. Truitt. Mr. Lang left him in the lounge while he departed to conduct personal business and to make arrangements for Mr. Truitt to be picked up and taken home. Upon his return to the lounge, approximately 30 to 45 minutes later, Mr. Lang discovered that Mr. Truitt was no longer present and he went to find him. Mr. Lang went to the faculty washroom and found the door locked. He opened it with key and found Mr. Truitt lying on his back on the floor of the faculty washroom. Mr. Truitt was unconscious and “looking blue with no breathing”. This occurred at about 9:30 a.m. [9] Mr. Lang administered CPR on Mr. Truitt for approximately five minutes during which, female student stopped to assist him, however they were unable to revive Mr. Truitt. [10] Emergency Medical Technicians arrived on the scene shortly after the call from Mr. Lang. They continued to attend to Mr. Truitt for approximately one-half an hour, and then transported him to Royal University Hospital. The Emergency Medical Technicians were unsuccessful in resuscitating Mr. Truitt. At the Emergency Department at Royal University Hospital, the ambulance report indicates that there were “no life signs” at the scene “unchanged O/A at RUH”. [11] Further attempts occurred at Royal University Hospital to revive Mr. Truitt, however these attempts were unsuccessful and he was pronounced dead by Dr. Lipka at 11:36 a.m. [12] Following Mr. Truitt’s death, his employer, the University of Saskatchewan, did not notify the Workers’ Compensation Board regarding his death. Mrs. Truitt was not advised by anyone that she and her daughter might have any potential entitlement to receive benefits from the Board as result of the death of Mr. Truitt. Accordingly in the period of time immediately following Mr. Truitt’s death, she did not submit an application for benefits to the respondent Board. [13] Ultimately, an application for dependants’ benefits was submitted to the Saskatchewan Workers’ Compensation Board by a representative, Mr. Alex Taylor, on behalf of the applicant, on July 16, 2001. [14] Gloria Truitt had become aware of the potential rights in early July 2001 during casual conversation at her workplace. It was suggested to her that because Mr. Truitt’s death took place while he was performing work duties at the University of Saskatchewan, and not while he was on campus to attend class or to study that there might be an entitlement to benefits. It was shortly thereafter, that the claim was submitted. [15] In an internal memorandum prepared by Allan Basnicki of the Workers’ Compensation Board, dated September 14, 2001, it is first documented that Gloria and Taryn Truitt’s claim was going to be disallowed. In this memorandum, the following is noted: .AGREE THAT SCT 30 DOES NOT APPLY. THE PURPOSE OF THAT SCT IS THAT THE WORKER IS UNABLE TO ADVISE WHAT HAPPEN [sic] TO CAUSE THE DEATH AND THEIR [sic] ARE NO WITNESSES TO IT. The memorandum also notes that: .IT IS QUITE CLEAR WORKER OBSERVED BY OTHERS OF WHAT WAS THE EVENTUAL CAUSE OF DEATH. SO THIS WAS WITNESSED. [16] Through correspondence dated September 18, 2001 the applicant was advised for the first time that the Board was unable to accept responsibility for Mr. Truitt’s death because Mr. Truitt had not been “found dead at work”. The applicant thereupon notified the Board on October 14, 2001 that she wished to appeal the September 18, 2001 denial of her claim, and on October 29, 2001, the Board issued a formal written decision, denying Gloria Truitt’s appeal because “Mr. Truitt was not found dead at his place of employment on March 2, 1998.” No other ground was set forth as reason for denying the applicant’s claim. [17] At the applicant’s request, the Board held hearing to explore the claim further on March 21, 2002 in Regina, Saskatchewan. Alex Taylor attended at this meeting with the applicant, to act as her agent. [18] By correspondence dated May 8, 2002, Deb Roberts, assistant to the Board, advised the applicant that the Board members had reached an “impasse” with respect to the claim. Ms. Roberts advised that the applicant had two options: to have the Board conduct full review of the file, including review of the transcript from the March hearing, or to have full rehearing of the case, before full board panel, including two board members and the board chairman. [19] The applicant chose full board hearing and this occurred on July 31, 2002. [20] By letter of May 23, 2002 the Chairman of the Saskatchewan Workers’ Compensation Board wrote Mr. Taylor as the agent for the applicant in part as follows: As stated previously in the letter from Ms. Roberts dated May 8, 2002, the Board Members are at an impasse and are unable to resolve the appeal. Therefore, the full Board (Chair and Board Members) will hear the case, along with the Board’s legal counsel. Although you have argued this appeal under Section 30 of the legislation, the Board would like to discuss the application of Section 45 at the hearing. [21] Section 45 pertains to the statutory six month claims reporting. [22] On July 31, 2002, the applicant attended at the second hearing accompanied by Mr. Taylor and Mr. Thompson as counsel. In preparation for that hearing, the applicant’s counsel had obtained an opinion from Dr. J.R. Donat, MD, FRCPC, practising neurologist at the Department of Medicine at Royal University Hospital, University of Saskatchewan. After reviewing the autopsy report, the ambulance attendant’s report and the emergency room reports, Dr. Donat concluded that Mr. Truitt “suffered subarachnoid hemorrhage from Berry aneurysm” and that “it is unequivocal that he died at work”. [23] On November 20, 2002, the Board released its decision, again denying the applicant’s claim for benefits for the death of her husband on her own behalf and on behalf of her daughter as dependants of Scott Truitt. The decision was based upon two alternative grounds: the delay in bringing the claim, and the fact that Mr. Truitt was not “found dead at work”. [24] On January 1, 2003, The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1, was amended and s. 30, relevant section, was affected by the amendment. [25] The issues raised by this application are as follows: (a) Did the Board act outside its jurisdiction in denying dependant benefits to the applicant based upon determination that the applicant’s deceased spouse was not “found dead” within the meaning of s. 30 of the Act? (b) Did the Board act outside its jurisdiction in not applying the presumption contained in s. 30 of the Act in favour of the applicant? (c) Were the Board’s determinations of November 20, 2002 relating to ss. 45 and 47 of the Act within its jurisdiction? Relevant Provisions of The Workers’ Compensation Act, 1979 [26] The applicable sections of The Workers’ Compensation Act, 1979, supra, are as follows: 19 Subject to subsection 21.1(4), the board shall sit at any time and conduct its proceedings in any manner that it considers advisable for the conduct of its business and affairs. 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; (c) the existence and degree of functional impairment to worker by reason of an injury; (d) the permanence of functional impairment resulting from an injury; (e) the degree of diminution of earning capacity caused by an injury; (f) the average earnings; (g) the existence of the relationship of any member of the family of worker and the degree of dependency; (h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned; (i) whether any worker is within the scope of this Act. (2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. 28 Where, in an industry, worker suffers an injury, he is entitled to compensation which shall be paid by the board out of the fund. 30 Where worker is found dead at place where the worker had right to be in the course of his or her employment, it is presumed that the worker’s death was the result of injury arising out of and in the course of his or her employment, unless the contrary is shown. [*The above s. 30 is the current wording of that section. This wording came into being as result of an amendment to The Workers’ Compensation Act, 1979, on January 1, 2003. The section existing prior to this amendment provided: 30 Where worker is found dead at place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment this particular provision was in place at the time of Mr. Truitt’s death.] 45(1) Subject to section 47, no compensation is payable to worker unless: (b) the claim for compensation is made within six months from the date he sustained the injury or, in the case of death, within six months from the date of death. 47 Failure to give notice mentioned in section 45 or any defect or inaccuracy in that notice does not bar the worker from compensation where the board considers that the claim for compensation is just and should be allowed. The Saskatchewan Worker’s Compensation Board’s Decision: Decision of November 20, 2002 [27] The respondent Board in its decision set forth detailed factual backdrop and catalogued the relevant provisions of The Workers’ Compensation Act, 1979. Thereafter the Board’s decision was follows: A. Application of Section 45 The application for dependent benefits was submitted to the Board over three years after the death had occurred and, on that basis alone, the claim for compensation could be denied. Section 45(1)(b) of the Act states: 45(1) Subject to section 47, no compensation is payable to the worker unless: b) the claim for compensation is made within six months from the date he sustained the injury or, in the case of death, within six months from the date of death. However, the inquiry does not end there, as the Board must consider the effect of Section 47, which reads: 47 Failure to give the notice mentioned in section 45 or any defect or inaccuracy in that notice does not bar the worker from compensation where the board considers that the claim for compensation is just and should be allowed. The Board sees that two interpretations could be given to the phrase “. .where the Board considers that the claim for compensation is fair and just. .” These two interpretations are: a) The justice of waiving the six-month limitation period involves an examination of the reasons for the delay. Are the reasons for the delay such that it would be just to allow the claim?; or b) Do the substantive merits of the claim lead to conclusion that the claim should be allowed in spite of the delay? As for the first interpretation of Section 47, there is little evidence as to why Ms. Truitt did not apply for benefits within the six-month period contemplated in Section 45. Her counsel indicated that she was unaware, and uninformed of her rights under the Act. Ms. Truitt, when asked by the Board for an explanation for the delay, offered that her husband was mostly student, although he also had teaching duties, and she just never thought of applying for benefits. The Board considers it likely that no claim was submitted within six months as neither the employer, nor Ms. Truitt believed that Mr. Truitt’s death was related to his employment. While the Board is sympathetic to Ms. Truitt’s circumstances, the Board does not see that there are compelling reasons for the delay that would warrant waiving the six-month limitation period contained in Section 45. The second possible interpretation of Section 47 involves an analysis of whether the circumstances of the death or injury are such that claim for compensation is clearly valid and compelling. In Ms. Truitt’s case it is the Board’s opinion that the claim for compensation is not just in that sense, as the cause of her husband’s untimely death was not his employment. The autopsy report clearly indicated that Mr. Truitt died as result of ruptured Berry Aneurysm. There is no evidence to indicate that the aneurysm and its subsequent rupture were related, in any way, to Mr. Truitt’s employment. In fact, medical evidence suggests that such condition is likely genetic, and the reasons for rupture are largely unknown. It is also worth noting that medical research has not established connection between sedentary activities, of the kind engaged in by Mr. Truitt, and the onset of ruptured aneurysm. In effect it appears to be mere happenstance that Mr. Truitt died at work rather than, for example, at home. It is for the above reasons that the Board does not feel it would be just to waive the six-month reporting requirement in Section 45 of the Act. Counsel for Ms. Truitt argued that the Board could no longer consider the issue of Section 45, as it had already ruled on the merits of her claim. The Board respectfully disagrees with this submission, as the decision of October 29, 2001 dealt with the narrow issue of whether or not Mr. Truitt was “found dead” within the meaning of Section 30 of the Act. B. Application of Section 30 In the alternative, the Board considered the application of Section 30 of the Act. It is the Board’s view that the purpose of Section 30 is to address those circumstances in which it is impossible to determine whether the death was work-related or not. This view is in keeping with the overall purpose and scheme of the Act and workers’ compensation principles in general. This purpose is to provide benefits to workers and their dependents for injuries or death caused by their employment. This principle is clearly stated in the full title of the Act: An Act to provide for Compensation to Workers for Injuries sustained in the Course of their Employment. The Board also notes that when the Act was amended in 1979, the basis for many of the changes was the 1978 Committee of Review Report authored by Mr. Justice Alistair Muir. At page 51 of this report the committee commented on the presumptive clause as it relates to death that occurred in the workplace: The fourth issue was the issue of death occurring at the place of work. The present legislation is based on presumption that if worker’s death occurs at his workplace, it shall be presumed that the death occurred because of work. Some concern was registered over this section of the Act. It is the committee’s belief that this concern is based on misunderstanding of the term “presumption”. This term is based on the expectation that there will be complete and thorough investigation. As such, if there is no evidence to show the cause of death, then it is assumed that he died in the course of his employment. If the evidence shows that the death is not work-related, then the claim is not accepted. An example of the type of situation to which Section 30 was intended to apply would be where lone shift worker arrives for midnight shift, and is discovered dead by fellow workers arriving for the morning shift. There is no evidence to connect the death to their employment, nor any evidence to establish that the death was not work-related. In short, no one knows of the circumstances leading up to the death of the worker. The Board must approach the application of Section 30 by firstly determining if the worker was “found dead”. In the case of Mr. Truitt, the Board finds that he was not found dead. The symptoms leading up to Mr. Truitt’s death were first present at approximately 8:30 a.m. on the morning of his death. Several students assisted Mr. Truitt and observed the symptoms that were being displayed at that time, namely severe headache and nausea. Mr. Claude Lang, who attended to Mr. Truitt while he was in the Faculty Lounge, also observed these symptoms, which were later identified as being consistent with the rupture of Berry Aneurysm. While Mr. Truitt was left alone for 30 to 45 minutes, in order to make arrangements to have him return home, the symptoms of his death were already observable prior to this, and the Board finds that Mr. Truitt was not found dead, within the meaning of the Act. There is no uncertainty as to the cause of his unfortunate demise. Based upon the foregoing application of Sections 45 and 47, or in the alternative Section 30, the appeal is denied. The noted decision was signed by the Chairman of the Workers’ Compensation Board and member of the Board. There was board member’s dissent which provided as follows: In my considered opinion, Mr. Truitt was ‘found dead’ at work, where he had right to be. This is supported by the evidence that the Student Services Advisor and the ER Team administered CPR with no resulting response as to breathing or other vital life signs. Accordingly, it is my opinion that Section 30 of the “Act” should apply. The court’s interpretation of this Section includes ‘conclusive presumption’, thus the cause of death is not rebuttable. Therefore, in my opinion, Section 30 would apply and Ms. Truitt would be entitled to compensation benefits. The appeal should be accepted. Analysis (a) Did the Board act outside its jurisdiction in denying dependant benefits to the applicant based upon determination of the applicant’s deceased spouse was not “found dead” within the meaning of s. 30 of the Act? [28] The Supreme Court of Canada considered the appropriate standard of review that is to be applied to decisions of the Saskatchewan Workers’ Compensation Board in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] W.W.R. 517. In that case, the court considered the privative clause found in s. 22 of the Act and, in light of that privative clause determined that the standard of review will generally be one of patent unreasonableness. This, however, is not the case when “the tribunal has made an error in the interpretation of legislative provision limiting the tribunal’s powers”. In other words, s. 22 does not shield the Board’s decision from judicial review when the Board exercises its discretion to decide matter but the legislation did not “intend to commit the matter exclusively to the Board”. [29] In Baker v. Canada (Minister of Citizenship and Immigration) (1999), 1999 CanLII 699 (SCC), 174 D.L.R. (4th) 193 (S.C.C.), Madam Justice L’Heureux-Dubé considered the standard of review to be applied to matters of discretion. At p. 226 she observed: .However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter. [30] Thus, while the Board does have discretion to create policy that enable it to carry out its statutory mandate, the policies must not take the Board beyond the discretion afforded to them by the statute. [31] In Henry v. Saskatchewan (Workers’ Compensation Board) (1999), 1999 CanLII 12241 (SK CA), 172 D.L.R. (4th) 73, the Saskatchewan Court of Appeal considered the standard of review that is properly applicable to s. 30 of the Act, and found it to be the correctness standard, rather than the patent unreasonable one. Chief Justice Bayda specifically reconciled this with the privative clause when he comments at p. 98 as follows: .while s. 22 vests the Board the tribunal with the exclusive power of determining whether worker’s death was the result of an “injury”, s. 30 limits that power where particular set of circumstances exists. It is obvious from the foregoing that it is the second and not the first proposition summarized in Bibeault [U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048] that applies to this case. Accordingly, the standard of review is the “mere error” of law standard and not the “patently unreasonable” standard. [32] Chief Justice Bayda further commented on the jurisdictional issue involving s. 30 wherein he comments in the following fashion at pp. 81-82: The jurisdictional issue raises this critical question: Where the facts as determined by the Board are that worker was found dead at place where he had right to be in the course of his employment, does s. 30 of The Workers’ Compensation Act, 1979 leave any discretion to the Board to determine whether the worker’s death was the result of injury arising out of and in the course of his employment? Section 30 reads as follows: 30. Where worker is found dead at place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment. Ordinarily, by reason of s. 22(1)(a) and (b) of the Act the Board would have complete discretion to make the determination of the matters stated in the presumption. Section 22(1)(a) and (b) read: 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; The critical question, in effect, addresses itself to the limits, if any, s. 30 places on the “exclusive jurisdiction” bestowed by s. 22. If the answer to the critical question is “no” two things follow: (i) the Board has no jurisdiction to inquire into the circumstances of worker’s death for the purpose of determining whether the death was the result of injury arising out of and in the course of his employment; the resolution of that issue has been legislated and the Board is bound by that legislated resolution. (ii) evidence showing the category or kind of the worker’s death (e.g. accident or suicide) and evidence showing the cause of the worker’s death is irrelevant. [33] Chief Justice Bayda continues further at pp. 82-83 wherein he observes: In my respectful view, the wording of the enactment, its context and the purpose of the Act are all important considerations. approach the interpretation of s. 30 from that perspective. Any consideration of the wording requires clear understanding of the difference between an irrebuttable (sometimes called “conclusive”) presumption of law and rebuttable presumption. Sopinka, Lederman Bryant in The Law of Evidence in Canada (Toronto: Butterworths, 1992) capture that distinction in these excerpts: conclusive presumption is rule of substantive law clothed in the language of presumptions. For example, at common law it was conclusively presumed that child under seven was incapable of committing any criminal offence and proffered evidence that the child was capable of committing the offence was inadmissible. [34] At p. 97 Chief Justice Bayda offers the following conclusion: In the result, have concluded that the presumption housed in s. 30 is irrebuttable. answer the critical question posed at the start “no”. That section leaves no discretion to the Board to determine whether worker’s death was the result of injury arising out of and in the course of his employment where the facts, as determined by the Board, are that the worker was found dead at place where he had right to be in the course of his employment. It follows, the Board had no jurisdiction to inquire into the circumstances of Mr. Henry’s death for the purpose outlined and no jurisdiction to make determination contrary to the presumption. [35] In considering the issue of whether Mr. Truitt was “found dead” in the workplace within the meaning of s. 30 of the Act, am of the view that the majority decision of the respondent was such as to regard s. 30 as housing rebuttable presumption. This is particularly so in considering the evidence placed before the Board, including that of the ambulance records, hospital records and opinion of Dr. Donat. All of the evidence placed before the Board clearly indicates that Mr. Truitt was “found dead” at his place of work. No one was present at the time of Mr. Truitt’s actual passing and when last seen by anyone in the workplace, while he was experiencing discomfort, he was alive. When Mr. Lang next found Mr. Truitt, he was clearly deceased and accordingly found dead within the meaning of s. 30. To that end am in agreement with the minority decision of the respondent Board. Accordingly, whether one views the standard of review as correctness or patent unreasonableness, the decision of the majority of the Board is in error and subject to the reviewing jurisdiction of this court. Accordingly, I am of the view that the Board did act outside its jurisdiction in denying dependant benefits to the applicant based upon a determination that the applicant’s deceased spouse was not found dead within the meaning of s. 30 of the Act. The majority decision in Henry v. Saskatchewan (Workers’ Compensation Board), supra, clearly precludes approaching an analysis of s. 30 as in any way representing a rebuttable presumption. Rather the contrary is clearly articulated, s. 30, (as it was at the relevant time 1998) embodies an irrebuttable presumption. Therefore, any framework of analysis which commences to explore possible or probable causes of death runs afoul of the rationale as articulated by the majority decision of the Saskatchewan Court of Appeal. (b) Did the Board act outside its jurisdiction in not applying the presumption contained in s. 30 of the Act in favour of the applicant? [36] For the fundamental reasons set forth in the above analysis, I am of the view that the Board did act outside its jurisdiction in not applying the presumption in favour of the applicant. In pursuing the analysis, once it is presumed that the worker, in this case Mr. Truitt, was found dead in the workplace, the presumption contained in s. 30 must be applied in favour of the applicant. The Board’s failure to do so amounts to reviewable error of law. (c) Were the Board’s determinations of November 20, 2002 relating to ss. 45 and 47 of the Act within its jurisdiction? [37] Sections 45 and 47 of the Act, in short, provide limitation period for an application for benefits, and the attendant discretion to the Board to waive this period. [38] The Saskatchewan Court of Appeal in Goertzen v. Saskatchewan (Workers’ Compensation Board) (2002), 2002 SKCA 125 (CanLII), 227 Sask. R. 146 dealt with the interpretation of s. 21(5) of The Workmen’s Compensation (Accident Fund) Act, R.S.S. 1930, c. 303 (the “1930 Act”) which was similar to the current s. 47. Mr. Justice Cameron on behalf of the court comments upon the factual backdrop at p. 147 in the following fashion: On January 30, 1950, Issac Fehr, 23 year-old man employed as log roller by Carrot River sawmill and planing company, collapsed and died on the job. According to fellow worker, he and Mr. Fehr had rolled log and were walking back to the log pile when Mr. Fehr fell to the ground. The two of them had been doing their usual work of rolling logs with cant hooks and nothing out of the ordinary had occurred. Forty seven years later, on July 21, 1997, Mr. Fehr’s wife, Mary Goertzen, applied to the Workers Compensation Board for compensation. [39] The court further comments at p. 152 in the following fashion: We might add, having regard for the two remaining grounds upon which the application to the Court of Queen’s Bench was made, that we can see nothing in either of them to warrant upholding the decision of the chamber judge on that basis. We might also add that, in light of the passage of time, it was open to the Board throughout to act on subsection 21(5) of the Act. Indeed compensation for Mr. Fehr’s death could not have been paid unless the Board, in exercise of the discretionary power conferred upon it by subsection 21(5), was of the opinion the claim was “just one and should be allowed.” The combined effect of this and the patently unreasonable standard of review leaves no room for interference with the decision of the Board. [40] am of the view that the current situation is distinguishable from that in Goertzen v. Saskatchewan (Workers’ Compensation Board), supra. [41] In this instance the applicant’s claim was promptly brought once she became aware of her right to do so. The applicant provided an explanation for delay in bringing the matter. From the outset, the Board canvassed the claim being aware of the fact that the claim was brought outside of the six month prima facie limitation period. [42] After denying the claim on two occasions, in September and October of 2001, without any mention of the issue of delay, the respondent Board held first oral hearing to further assess the merits of the claim. Following this hearing, the Board acknowledged that it had reached an “impasse” about the claim and invited the applicant to participate in second hearing before larger panel of three Board members including the chairperson. [43] The initial hearing, as noted earlier, occurred on March 21, 2002. Section 45 and the six month limitation was not raised in any fashion at that hearing or in the steps leading up to the March 21, 2002 hearing. The issue of delay (s. 45) arose for the first time after the applicant requested full board hearing following the impasse arising out of the March 21, 2002 hearing. As noted, at the second hearing, resulting in an adjudication, s. 45 and s. 47 were substantively relied upon by the Board. [44] In Goertzen v. Saskatchewan (Workers’ Compensation Board), supra, the issue of delay was raised at the stage of both the appeal committee and the Board’s initial written decision, as well as in the decision under review and the certiorari application giving rise to the court process. That situation is markedly different from what occurred in the instant case wherein the Board on October 29, 2001, in written decision dismissed the claim without mentioning that delay was in any way substantive reason for doing so. The Board’s October 29, 2001 decision deals with the issue of the application of s. 30 to the progression of events leading up to Mr. Truitt’s death. That decision in its entirety provides as follows: An appeal has been received by Ms. Gloria Truitt, surviving spouse of Mr. Scott Truitt. Ms. Truitt is appealing the Board’s decision to deny her husband’s claim, under Section 30 of the Workers’ Compensation Act. Mr. Truitt was working at the University of Saskatchewan as Master student at St. Thomas Moore [sic] College on March 2, 1998. While teaching class he felt ill and left the classroom with the help of students who took him to lounge. His symptoms at that time included headache, vomiting and flu-like symptoms. He was left alone for approximately 30 to 45 minutes while arrangements were made to get him and his vehicle home. He was found in locked washroom, lying on the floor apparently unconscious. CPR was performed by colleague and then by First Responders before transferring him to the Royal University Hospital where he was pronounced dead. An autopsy report showed Mr. Truitt had berry aneurysm of the right middle cerebral artery which caused his death. Client Services has determined Mr. Truitt’s family is not entitled to any benefits as Mr. Truitt passed away as result of congenital aneurysm. Section 30 of the Act states, “Where worker is found dead in place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment.” Mr. Truitt was not “found dead” at his place of employment on March 2, 1998. He presented with symptoms while he was still in the classroom and he was taken to the faculty lounge. These symptoms were indicative of the congenital aneurysm which was later determined to have caused his death. As Mr. Truitt was not found dead and there were witnesses at the time of his symptomology, Section 30 of the Act does not apply. The appeal is denied. [45] In this instance, the Board’s ultimate decision, as well as preliminary decisions leading to it, demonstrate that the respondent Board delved into the merits of the claim in variety of ways, including collection of background information, and by holding two oral hearings. Even after the second hearing, where the respondent Board raised the delay issue for the first time, the Board continued to solicit further medical information, again illustrating that it was substantively considering the merits of the applicant’s claim. [46] I am of the view, for the foregoing reasons, that the Board has waived the right to rely upon the delay in bringing the claim. Here, the Board participated in a variety of levels of proceeding, including two hearings, and only raised the issue of delay at the final hearing. This cumulative conduct in my view amounts to waiver by the respondent. [47] Accordingly, have concluded that it was not open to the Board as part of its concluding process to deny the applicant’s claim based upon ss. 45 and 47. [48] In the event that am wrong in my perception of the principle that the Board has waived the right to raise this issue, am of the alternative view that in any event the Board’s decision involving delay was patently unreasonable. [49] The Board’s decision suggests that the phrase “where the Board considers that the claim for compensation is fair and just” in s. 47 of the Act is subject to two possible interpretations: (a) The justice of waiving the six month limitation period involves an examination of the reasons for the delay. Are there reasons for the delay such that it would be just to allow the claim? or (b) Do the substantive merits of the claim lead to conclusion that the claim should be allowed in spite of the delay? [50] In considering the first of these potential interpretations, the Board does not appear to consider the full impact of the fact that the applicant was unaware of her right to apply for such benefits. Her husband’s employer neither notified the Board of Mr. Truitt’s death nor did it explain to Ms. Truitt that she had right to consider potential claim under the legislation. The Act in fact mandates that an employer is required to report injuries which may prevent an employee from working. Despite the clear onus and significant reporting responsibility that the Act places upon employers, the omission by Mr. Truitt’s employer to report the claim or to advise Ms. Truitt of her right to do so was not considered in examining the question of whether Ms. Truitt had demonstrated justifiable excuse for the delay. [51] Further, the Board states that it “considers it likely that no claim was submitted within the six months as neither the employer, nor Ms. Truitt believed that Mr. Truitt’s death was related to his employment”. This comment appears to be contrary to the proposition in Henry v. Saskatchewan (Workers’ Compensation Board), supra, wherein it is established that it does not matter whether worker’s employer or his dependants believe that worker’s death was related to his employment, as circumstantial, medical, and opinion evidence to that end is irrelevant when worker is found dead. [52] In determining that it would not be just to waive the six month reporting requirement in s. 45 of the Act, the Board focuses on its belief as to the cause of Mr. Truitt’s death, an inquiry which the presumptive portion of s. 30 indicates should not occur. [53] The applicant has demonstrated an entitlement to an order by way of certiorari, pursuant to Rule 664 of the Queen’s Bench Rules of Court, quashing the decision of the Workers’ Compensation Board dated November 22, 2002, and further for an order by way of mandamus, pursuant to Rule 674 of the Queen’s Bench Rules of Court, remitting the matter of the applicant’s claim for benefits back to the Workers’ Compensation Board of Saskatchewan to be dealt with according to law, and so order. Further, there shall be an attendant order of mandamus compelling the Board to perform its statutory duty to apply the presumption set forth in s. 30 of The Workers’ Compensation Act, 1979, supra, in the applicant’s favour. [54] The applicant shall have her costs of the motion, on a party and party basis, to be taxed. [55] Order accordingly.","The deceased was a master's student who also worked as a student assistant at the University of Saskatchewan. He became ill while teaching a class. His students helped him to the faculty lounge. He was found in the faculty washroom unconscious and not breathing approximately 30 minutes later. Emergency medical technicians were not able to resuscitate him and he was pronounced dead at the Royal University Hospital. An application for dependants' benefits was submitted over 3 years later. The Workers' Compensation Board denied the claim finding that the deceased was not found dead at work and because of the delay in bringing the claim. The applicant brought an application for an order of certiorari pursuant to Queen's Bench Rule 664 and mandamus pursuant to Queen's Bench Rule 674. HELD: 1) The Board acted outside of its jurisdiction in denying dependant benefits to the applicant based upon a determination that the deceased was not found dead within the meaning of s. 30 of The Workers' Compensation Act, 1979. The case law clearly precludes an analysis of s. 30 of the Act as in any way representing a rebuttable presumption. 2) The Board acted outside its jurisdiction in not applying the presumption in s. 30 of the Act in favour of the applicant. 3) The Board waived the right to rely upon the delay in bringing the claim after the Board participated in a variety of levels of proceeding, including two hearings, and only raised the issue of delay at the final hearing. 4) The application was allowed with costs to the applicant on a party and party basis.",3_2003skqb257.txt
117,"nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 31 Date: 20040309 Between: Docket: 906 [J.D.L.] Appellant (Respondent) [T.E.T.] Respondent (Applicant) Before: Jackson J.A. (in Chambers) Counsel: E.F. Anthony Merchant, Q.C. for the Applicant (Respondent) Tiffany M. Paulsen for the Respondent (Appellant) Appication: From: FLD 463 of A.D. 1998, J.C. of Saskatoon Heard: March 5, 2004 Disposition: Dismissed Written Reasons: March 9, 2004 By: The Honourable Madam Justice Jackson JACKSON J.A. [1] On this application to lift the stay imposed by Rule 15 on the judgment of Klebuc J. dated February 25, 2004, I decline to do so for these reasons. [2] believe this case is more like Faber v. Retzlaff,[1] Fiacco v. Fiacco[2] and Fick v. Fick [3] than Latsay v. Latsay,[4] Kuhn v. Bitternose,[5] Burke v. Burke[6] and Murray v. Murray.[7] In the former cases, the chambers judge determined that the best interests of the children required the status quo to be maintained. reach the same conclusion in this case. [3] While father’s counsel argues that the delay since interim reasons were filed on December 4, 2003 has resulted in new status quo, there has been one occasion only during that period when the children did not have access to both parents in any six-day period (leaving aside the January vacation which appears to be part of the status quo). This is to be contrasted with the access proposed by the father for the upcoming two months which would see the children not having overnight access, or indeed, any access, to their mother during four six-day periods until the appeal is heard. [4] note also that my decision parallels that of Gerwing J.A. who decided on February 25th, on an interim basis, prior to the final reasons being filed, not to lift the stay, and to maintain the schedule existing prior to the decision under appeal. As it turns out, final reasons were filed that day, but because notice of appeal in relation to those reasons was filed almost immediately, Wright J.’s order came into effect and has been in effect for the past two weeks. [5] Accordingly, the parties are to be governed by the order of Wright J. unless otherwise agreed and until further order. For greater clarity, they are now in week no. as described in that order. [6] Under the order of Wright J., $600.00 maintenance is payable by the father on the first of each month. Klebuc J. did not order either the father or the mother to pay maintenance. The judgment roll “vacates” the order of Wright J. [7] Since have refused to lift the stay, the immediate question is the effect of my order on the obligation to pay maintenance. The first issue that arises in considering this question is whether it is appropriate for me to interpret the effect of my order declining to lift the stay. [8] Since oral argument, when the mother assumed that maintenance would be paid, the father’s counsel filed detailed brief arguing that staying the execution of Klebuc J.’s judgment does not revive the prior maintenance order and that Court of Appeal chambers judge does not have the authority to make such an order. [9] My decision reviving the custody and access provisions in place prior to Klebuc J.’s order gives the mother custody of the children for slightly more than 50% of the time. This raises the question as to whether she has sufficient resources to care for these children appropriately. Given all the circumstances of this case, it appears that Wright J. was of the view the mother did not when she imposed the maintenance order of $600.00. [10] While a chambers judge acting under section 20 of The Court of Appeal Act[8] may not have the independent authority to make a maintenance order, a chambers judge has the authority to stay a judgment in its entirety in the Court of Queen’s Bench in certain cases as long as doing so does not decide the appeal. On this point see the dicta in Re Blackwoods Beverages Limited et al.[9] and International Harvester v. Baschuk.[10] [11] The fact that we are dealing with relatively short period of time cannot be determinative of whether maintenance should be payable particularly in light of Wright J.’s order. Accordingly, the decision of Klebuc J. is stayed, which leaves the order of Wright J. in place. This decision leaves the effect of stay of execution in case such as this one for consideration on another day, but nonetheless maintains the existing maintenance obligation. The father is to pay $600 maintenance for March 1st as soon as is reasonably possible and for April 1st on that day. [12] The mother is directed to file her appeal book and factum 15 days after receiving the transcript (which should be March 15, 2004 or shortly thereafter). The father is directed to file his factum 15 days after receiving the mother’s factum. The appeal is fixed for hearing on Monday, May 3, 2004. [13] Costs are left to the division of the court hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of March, A.D. 2004. Jackson J.A. [1](1986), 1986 CanLII 3262 (SK CA), 50 Sask.R. 243 (Sask. C.A.). [2](1988), 1988 CanLII 5102 (SK CA), 68 Sask.R. 40 (Sask. C.A.). [3](1993), 1993 CanLII 6598 (SK CA), 109 Sask.R. 67 (Sask. C.A.). [4][1989] S.J. No. 34 (Sask. C.A.) (QL). [5](1991), 1991 CanLII 8019 (SK CA), 33 R.F.L. (3d) 25 (Sask. C.A.). [6][1993] S.J. No. 681 (Sask. C.A.) (QL). [7](1995), 1995 CanLII 4025 (SK CA), 134 Sask.R. 273 (Sask. C.A.). [8]R.S.S. 1978, c. C-42. [9](1956), 18 W.W.R. (N.S.) 481 at 486 (Sask.C.A.). [10](1985) 44 Sask.R.228 (C.A.).","This was an application to lift the stay imposed by Rule 15 of The Court of Appeal Rules. HELD: The Court declined to lift the stay. While a chambers judge acting under s. 20 of The Court of Appeal Act may not have the independent authority to make a maintenance order, a chambers judge has the authority to stay a judgment in its entirety in the Court of Queen's Bench in certain cases as long as doing so does not decide the appeal. The Court of Appeal stayed the decision of Klebuc J., which left the order of Wright in place, which maintained the existing maintenance obligation.",e_2004skca31.txt
118,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Taylor, 2006 NSSC 280 Date: 20060925 Docket: SH 257619 Registry: Halifax Between: Terry E. Taylor v. Her Majesty the Queen Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: March 27th April 11th, 2006, in Halifax, Nova Scotia Counsel: Duncan Beveridge, Q.C., for the Applicant Christa MacKinnon, for the Respondent By the Court: Introduction [1] This is an application for an Order in the nature of certiorari (pursuant to Rule 58 and s. 482(3)(c) of the Criminal Code) relating to the issuance of a search warrant on May 3, 2005. The warrant was based on an Information to Obtain sworn by Paul Patterson, Canada Revenue Agency (CRA) officer. The warrant authorized the search and seizure of the applicant’s accounting records for the period January 1, 2001 to December 31, 2003. The warrant alleged that the applicant, an accountant who runs his business out of his home, filed fraudulent T4 and created false T4 income in order to obtain tax refund, and misreported HST sales. An earlier Information, sworn on April 21, 2005 had been basis for prior warrant issued that day. The warrants were identical except for clarification in the May warrant specifying what records were to be the object of the search. The May warrant was executed by Mr. Patterson and other CRA officers on May 5. [2] The applicant seeks ancillary relief of declaration that his rights under ss. and of the Charter of Rights and Freedoms were infringed. The specific grounds are as follows: 1. THAT the information Sworn to Obtain the search warrant contains incomplete and misleading information and, in any event, the learned Justice of the Peace erred in concluding that the necessary grounds existed for the issuance of the search warrant; 2. THAT the learned Justice of the Peace ought to have recused himself from considering the application to issue a search warrant, having previously acted in a solicitor/client relationship with the spouse of the Applicant, creating a reasonable apprehension of bias and depriving the Applicant of natural justice. [3] After the search the applicant demanded the return of the seized documents. He says that some of the documents, but not all, were eventually returned. Standard of Review [4] The warrant was issued by Justice of the Peace pursuant to section 487 of the Criminal Code. Subsection 487(1) sets out the requirements for an information to obtain search warrant: 487. (1) justice who is satisfied by information on oath in Form that there are reasonable grounds to believe that there is in building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of person who is believed to have committed an offence, against this Act or any other Act of Parliament, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which person may be arrested without warrant, or (c.1) any offence‑related property, may at any time issue warrant authorizing peace officer or public officer who has been appointed or designated to administer or enforce federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1. [5] The entry and search of private premises by public officers without legal warrant is severe infringement of civil rights: The Queen v. Paint (1917), 51 N.S.R. (2d) 114 (S.C.) at pp. 117-118. In order to comply with section of the Charter of Rights and Freedoms search must be authorized based on reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found on the premises: Hunter et al. v. Southam Inc. 1984 CanLII 33 (SCC), [1984] S.C.R. 145. [6] Hill J. discussed “reasonable and probable grounds” in R. v. Sanchez and Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at p. 367: Section 487(1) of the Code requires reasonable grounds as the standard of persuasion to support issuance of search warrant. Judicially interpreted, the standard is one of credibly based probability.... Mere suspicion, conjecture, hypothesis or ""fishing expeditions"" fall short of the minimally acceptable standard from both common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond reasonable doubt or prima facie case.... The appropriate standard of reasonable or credibly based probability envisions practical, non‑technical and common sense probability as to the existence of the facts and inferences asserted. Not only must the affiant subjectively or personally believe in the accuracy and credibility of the grounds of belief, but lawful issuance of warrant also requires that the peace officer establish that, objectively, reasonable grounds in fact exist. In other words, would reasonable person, standing in the shoes of the police officer, have believed that the facts probably existed as asserted and have drawn the inferences therefrom submitted by the affiant.... [Emphasis in original. Citations omitted.] [7] In Re Carroll and Barker and The Queen (1989), 1989 CanLII 206 (NS CA), 88 N.S.R. (2d) 165 (S.C.A.D.) MacDonald J.A. said, at para. 7: From its earliest beginnings, English law has recognized the sanctity of person's home and, therefore, the issuance of warrant to search private dwelling is not perfunctory matter. Warrants must not be issued to enable the police to go on ""fishing expedition"" but rather can only be issued after the justice of the peace is satisfied that the information offered in support of the request for search warrant meets the requirements of s. 487(1) of the Code. [8] MacDonald J.A. went on to describe the scope of review at para 9: justice of the peace in deciding to grant search warrant is performing judicial function. The scope of review of his decision is limited to an inquiry whether or not there was some evidence upon which he, acting judicially, could be satisfied that reasonable grounds existed for believing any of the things set out in s. 487(1)(a) to (c) of the Criminal Code. The reviewing court cannot substitute its opinion as to the sufficiency of the evidence. The test is, therefore, not whether the justice of the peace should have been satisfied on the evidence presented to him, but rather could he have been satisfied on such evidence that there were reasonable and probable grounds for believing that the articles sought would be of assistance in establishing the commission of an offence and would be found in the premises sought to be searched.... [Citation omitted.] [9] In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.R. 1421, Sopinka J., writing for the majority, said, at para. 56: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non‑disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [10] Garofoli involved wiretap authorizations, but the principles are relevant in the context of search warrants: R. v. Morris (1998), 1998 CanLII 1344 (NS CA), 173 N.S.R. (2d) (C.A.) at para. 37. [11] An informant seeking search warrant is obliged to make full and frank disclosure to the presiding judicial officer. Errors in the information presented to the Justice of the peace must be removed from the Information Sworn to Obtain the warrant: R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.). However, such errors, even if they are fraudulent, do not automatically vitiate the issuance of the warrant. The question is whether there is “sufficient independently verifiable information ... upon which an authorization could reasonably be based”: R. v. Bisson, 1994 CanLII 46 (SCC), [1994] S.C.R. 1097 at para. 2. The process requires candour on the part of the informant, as Cromwell J.A. noted in Morris at para. 34: The nature of the process demands candour on the part of the police. They are seeking to justify significant intrusion into an individual's privacy. This is especially so when it is proposed to search dwelling house which has long been recognized as the individual's most private place. The requirement of candour is not difficult to understand; there is nothing technical about it. The person providing the information to the justice must simply ask him or herself the following questions: ""Have got this right? Have correctly set out what I've done, what I've seen, what I've been told, in manner that does not give false impression?"": see R. v. Dellapenna (1995), 1995 CanLII 428 (BC CA), 62 B.C.A.C. 32 (B.C.C.A.) per Southin J.A. at para 37. [12] Under the heading “Things to be Searched For” in the Information, the informant, Mr. Patterson, stated that he had reasonable and probable grounds to believe that certain things namely “the business records for the accounting periods of Terry E. Taylor for the period from January 1, 2001, to December 31, 2003"" would be found at Mr. Taylor’s place of business, located in his and Ms. Taylor’s residence, and in any storage facilities occupied by Mr. Taylor at that location. [13] The “things to be searched for” included banking records (including statements, cancelled cheques, deposit slips, debit and credit card memoranda, cheque stubs; cheque registers credit card statements and bank drafts); correspondence, documents, memoranda, agreements and contracts; and working copies of T1 and HST returns, including financial statements, correspondence, documents memoranda and notes relating to the taxation years 2001, 2002 and 2003, belonging to or pertaining to Mr. Taylor, or Mr. Taylor and Ms. Taylor jointly. The Information also sought Mr. Taylor’s accounting records, including sales invoices, purchase orders, lease documents, expense vouchers and supporting documents, invoices for capital dispositions and invoices for capital expenditures for the same period. Finally, the informant intended to search for computer storage media containing records pertaining to the same matters, as well as the hardware and software required to access the records. [14] The Information to Obtain alleged that the applicant had made false or deceptive statements in tax return with respect to refund, an offence pursuant to s. 239(1.1)(a) of the Income Tax Act, and claimed refund exceeding that to which he was entitled, an offence pursuant to s. 239(1.1)(e). large part of the April 21 Information which was adopted by the May Information described the inquires made by the informant, Mr. Patterson, with respect to an allegedly false T4 slip filed by Mr. Taylor. The informant then stated that these inquiries had raised question about Mr. Taylor’s HST returns: 20 In the course of his inquiry, the Informant confirmed that the professional accounting services that Terry E. Taylor provides are considered as fully taxable supplies with regards to HST sales in accordance to the Excise Tax Act. The Informant confirmed with the audit division of CCRA that reported annual T1 income should be consistent with reported HST annual taxable sales. 21 In the course of his inquiry, the Informant conducted comparison of Terry E. Taylor’s reported annual HST taxable sales amounts and his reported annual T1 Returns of Income and as result revealed significant discrepancies.... [15] The alleged discrepancies were set out in table purporting to show discrepancies between “Total HST Sales” and “Reported Net Income” for the years 2001-2003. It showed discrepancy of $209,583.49 over the three years. The informant continued: 22. During the course of his inquiry, the Informant noted that Terry E. Taylor reported his total gross income for the calendar year 2001 as $4,478.00, which is the same amount he reported for HST sales for the last quarter, October 1st to December 31st 2001. As the table shows in paragraph 21, Terry E. Taylor did not include the remaining $53,204.00 as T1 business income. [16] Mr. Patterson stated that this inquiry provided the reasonable and probable grounds necessary to justify search warrant: 23. As result of the Informant's inquiry in paragraph's [sic] 20, 21, and 22, the Informant has reasonable and probable grounds to believe and does verily believe that he needs to seize and secure the items listed in paragraph 1, (a) to (g), inclusive, of the Things to be Searched For, in order to address the discrepancies listed therein. [17] Paragraph 26 summarized the basis for seeking the warrant: 26. As result of the Informant’s inquiry in paragraphs one (1) to twenty-four (25) [sic] above, the Informant has reasonable and probable grounds to believe and does verily believe that Terry E. Taylor has reported fraudulent T4 employment income 2001, 2002 and 2003 and has also improperly reported his T1 Returns of Income for 2001, 2002 and 2003, and/or his HST sales, for the purpose of claiming tax refunds from CCRA. [18] The applicant, Mr. Taylor, claims that paragraphs 20–23 of the April 21 Information were misleading. With respect to the 2001 shortfall (paragraph 22) he says his HST returns were amended in 2002 and that he received Notice of Reassessment. He says Mr. Patterson had no explanation for not knowing this, even though he had in his file materials confirming statement of audit adjustments (for the period July 1-September 30, 2001) in February 2002. Further, the applicant says, the entries on the table for 2002 and 2003 suggest that he over-reported his income, which could have been explained by “genuine inquiry” to CRA auditor. [19] In cross-examination Mr. Patterson agreed that there were errors in paragraphs 20, 21 and 22 of the April 21 Information. When asked whether paragraphs 20-23 were the “crux” of the Information, he said, “I would say so.” He agreed that he would not have sought the warrant without those paragraphs. On redirect, however, he was directed to paragraph 26, which he said “wraps up” Information. Counsel then asked whether, if the defective paragraphs were removed, “would you still have gone to get ... search warrant.” Mr. Patterson answered “[i]f those were excluded, yes, based on that paragraph, probably would feel more comfortable.” [20] The applicant argues that the impugned paragraphs must be struck from the Information, and alleges that but for the allegations in paragraphs 20-23 the respondent would not have sought the warrant. The respondent does not claim that paragraphs 20-23 can be preserved, but argues that there is no evidence that Mr. Patterson intended to deceive the Justice of the Peace. The Agency claims that the “things to be searched for” had relevance beyond the discrepancies, and argues that if paragraphs 20-23 are removed the Court must still consider what remains in order to determine whether the Justice of the Peace could have found reasonable and probable grounds upon which to issue the search warrant. The respondent suggests that even without paragraphs 20-23, there were reasonable and probable grounds to issue the warrant. [21] In dealing with the issue of whether Mr. Patterson would have sought warrant in the absence of the defective paragraphs, it is important to be mindful that he had in his file information that would have addressed his concern about HST reporting. [22] In his answers on redirect, Mr. Patterson did not say that he would have sought the warrant in the absence of the defective paragraphs, but only that he would have been “more comfortable” without them. As I understand his comment, he meant that he would be more comfortable omitting information that he now knows to be erroneous. In light of his clear statement on cross-examination, I am satisfied that Mr. Patterson’s own evidence supports the inference that he would not have pursued a warrant without paragraphs 20-23 in the Information. [23] As to the allegations arising from the allegedly fraudulent handwritten T4 employment form submitted by Mr. Taylor, Mr. Patterson stated that he was advised Mr. Taylor did not appear as an employee on the T4 summary prepared by the trustee in bankruptcy on behalf of AMTL for 2003. He was advised that John William Perry, the president of AMTL, and Sean MacNeil, the trustee’s representative, stated that Mr. Taylor was not an employee of the company. Furthermore, Mr. Patterson also contacted the Nova Scotia Assessment Office to determine if Mr. Taylor was assessed for business occupancy purposes at 110 Thornhill Drive, Halifax and was advised there was no such assessment. Mr. Taylor had filed T4 employment slip reporting income of just over $108,000. On cross-examination, Mr. Patterson acknowledged that Mr. Perry would have been exposing himself and the company to liability if the company had failed to remit taxes and necessary deductions on Mr. Taylor’s income. He also agreed on cross-examination that he was familiar with the practice of “income averaging, which might cause an employee to report income higher than that which was actually received in particular year. [24] The material that remains in the Information essentially relates to the T4 slip and payroll anomalies. am satisfied from his evidence that Mr. Patterson would not have proceeded on the strength of an allegedly fictitious T4 employment statement alone, without first pursuing other avenues short of the extreme measure of searching private home. The Agency did not approach the applicant for clarification, for instance by commencing an audit or seeking an explanation from him directly. note that the search of Mr. Taylor’s home produced letter signed by Mr. Perry stating that Mr. Taylor was an employee. While this letter was, of course, not available to Mr. Patterson before the search, Mr. Taylor could have produced it in response to an inquiry without the need for search. [25] The errors in paragraphs 20-23 of the Information are undisputed, and serious. The errors occurred despite the presence of contrary information in the informant’s file. The informant regarded these paragraphs as the “crux” of the Information and stated that he would not have proceeded without them. accept this. Once the allegation of misleading and inaccurate HST reporting is removed, the substance of the Information rests upon the handwritten T4 submitted by Mr. Taylor that did not appear to be reconciled with the company payroll. Without denying the potential seriousness of these allegations, I cannot conclude that they rise above the level of “suspicion” to make out reasonable and probable grounds for a warrant to search the applicant’s (and his wife’s) home. Bias and Apprehension of Bias [26] Mr. Taylor testified that Mr. Angus MacIntyre, the Justice of Peace who issued the Search Warrant, had provided independent legal advice to his wife, Lisa Taylor, in respect of mortgage transaction around 1998. He had contacted Mr. McIntyre to represent his wife. Initially, both he and Ms. Taylor went to Mr. McIntyre’s office. Mr. MacIntyre provided advice and presumably his fees were paid by Mrs. Taylor or by the lending institution. Any documents completed by Mr. McIntyre would likely have been forwarded to the lending institution. [27] Several years later, Mr. Taylor estimates around 2000, Mr. and Ms. Taylor were having marital difficulties and Ms. Taylor retained Mr. McIntyre. Mr. McIntyre did not prepare separation agreement or write to Mr. Taylor. It appears that office consultations occurred. There were no court proceedings under the Divorce Act or the Matrimonial Property Act. It appears that these marital difficulties were resolved and Mr. McIntyre did not have continued involvement. [28] Mr. MacIntyre also represented Ms. Taylor with respect to claim against her by Canada Trust. Apparently she had signed either the mortgage or guarantee on the covenants. [29] On behalf of the agency, it is pointed out that Mr. MacIntyre did not act on Ms. Taylor's behalf in respect of any tax investigation. Furthermore, his representation occurred five to seven years before the issuance of the warrant. Mr. McIntyre did not appear in court on behalf of Ms. Taylor, and did not correspond with Mr. Taylor on her behalf. [30] Mr. Taylor said he was unaware that Mr. MacIntyre had been consulted by his wife in relation to any of the income tax investigations carried on by the CRA. At no time did Mr. MacIntyre make any claim against him, directly or indirectly. He added that Mr. MacIntyre had never represented him and he had not appeared in court in any proceeding where Mr. MacIntyre represented the opposite party. [31] The issue is whether there is bias or reasonable apprehension of bias. The applicant maintains that the contacts between Ms. Taylor and Mr. McIntyre give rise to reasonable apprehension of bias. The agency suggests that the contacts here were too indirect or inconsequential to raise the issue of bias, citing the following passage in R. D. Kligman, Bias (Toronto: Butterworths, 1998) at p. 14: For the issue of bias to arise, the relationship must not be too indirect or inconsequential. Thus, the mere fact that someone involved in the decision-making process has previously acted for party in professional capacity does not necessarily give rise to reasonable apprehension of bias… Of course, the result can be different where the relationship is recent or is one that can be said to have touched on matters in issue. Thus, in Turpin v. Wilson,[(1995), 1995 CanLII 7429 (ON SC), 130 D.L.R. (4th) 158 (Ont. Gen. Div.)] it was held to be inappropriate for an arbitrator of matrimonial property dispute who was lawyer, to act where he had represented the husband in previous matrimonial proceedings. [32] And at p. 12: In R.v. Godin, [(1996), 1996 CanLII 3608 (PE SCAD), 141 Nfld. P.E.I.R. 88 (P.E.I.S.C.A.D.)] it was held that the fact that trial judge once acted as counsel for the accused in another matter did not necessarily give rise to reasonable apprehension of bias or constitute an infringement of the right guaranteed by section 11(d) Canadian Charter of Rights and Freedoms.... [33] The Agency refers to Chisolm v. MacDonald (1985), 68 N.S.R. (2d) 337 (S.C.T.D.), where an accused charged under the Criminal Code sought an Order for Prohibition to remove provincial court judge from presiding at his trial because the judge, when he was lawyer, pursued civil action against the accused. Further, the judge had publicly proclaimed an attitude towards sentencing for offences of the kind with which the accused was charged. The issue was whether there was reasonable apprehension of bias. The civil action had been settled short of trial. There was no evidence of what stage proceedings had reached at the time of settlement or of any further contact between the judge and the accused. At para 10 Grant J. said: As understand the state of the law, it must be shown that there is real likelihood of bias, or that it is perceived that there is real likelihood of bias: see De Smith, Judicial Review of Administrative Action, p. 250: “In developing the modern law relating to disqualification of judicial officers for interest and bias, the superior courts have striven to apply the principle that it ‘is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done,’...” and at p. 399: “The usual remedy for breach of the rules of natural justice is certiorari to quash; but in proper case prohibition may issue to prevent tribunal that is disqualified for interest or likelihood of bias from proceeding further with matter over which it has assumed jurisdiction.” [34] Grant J. concluded that the facts did not support reasonable apprehension of bias. [35] In R. v.Dunn (1996), 1996 CanLII 3702 (PE SCTD), 138 Nfld. P.E.I.R. 46 (P.E.I.S.C.T.D.), affirmed (1996), 1996 CanLII 3607 (PE SCAD), 140 Nfld. P.E.I.R. 269 (P.E.I.S.C.A.D.), application for leave to appeal dismissed, [1996] S.C.C.A. No. 359, the application sought the disqualification of provincial court judge from hearing his trial on the basis of an apprehension of bias. The applicant claimed the judge had represented him in criminal matters when she was legal aid lawyer, and that he had dismissed her as her counsel in the last matter on which she had been retained. The charges before the Court were not related to those in respect of she had acted as lawyer. DesRroches J. stated that provincial court judges were trained to disregard facts not in evidence and were bound by an oath to truly and faithfully execute his or her duties as judge. At para. 10, the Court noted: It has been judicially held that prior judicial contact with an accused will not, per se, satisfy the test. In R. v. Bolt (R.I.) (1995), 1995 ABCA 22 (CanLII), 162 A.R. 204 Russell J.A., speaking for the Court, says this: “… It is inevitable that there will be occasions when an experienced trial judge will have had some prior judicial contact with an accused. We are confident that trial judges are capable of disabusing their minds of that fact in considering the guilt or innocence of the accused in relation to the specific charge before them. Unless real bias can be shown, such prior contact is not factor in determining an appearance of bias.” [36] DesRoches J. referred to Chisolm and stated that where the judge had acted in civil case against the accused that was unrelated to the matter before the court it was necessary to establish real likelihood of bias. He also referred to the Supreme Court of Canada decision in R. v. Genereux 1992 CanLII 117 (SCC), [1992] S.C.R. 259 which provided guideline for assessing impartiality under s. 11(d) of the Charter Rights and Freedoms. In that decision, Lamer C.J.C. stated: To assess the impartiality of tribunal, the appropriate frame of reference is the ‘state of mind’ of the decision maker. The circumstances of an individual case must be examined to determine whether there is reasonable apprehension that the decision-maker, perhaps by having personal interest in the case, will be subjectively biased in the particular situation. [37] The applicant also refers to relies the comments of Vancise J.A., for the majority of the Saskatchewan Court of Appeal, in R.v. Baylis (1988), 1988 CanLII 5166 (SK CA), 66 Sask. R. 268 (C.A.). In Baylis the accused, charged with various drug offences, argued that the search violated s. of the Charter because the Justice of the Peace who issued the warrant was not neutral and impartial. The Justice of the Peace was an airport commissionaire who reported to the RCMP at the airport. Vancise J.A. said: [37] justice issuing search warrant is acting judicially. Dickson J., in Attorney-General of Nova Scotia et al. v. MacIntyre (1982), 1982 CanLII 14 (SCC), 65 CCC (2d) 129 at 141, 132 D.L.R. (3d) 385 stated: “The issuance of search warrant is judicial act on the part of the justice, usually performed ex parte and in camera, by the very nature of the proceedings.” justice required to decide whether there is sufficient evidence to justify issuing the search warrant must be unbiased, neutral, detached, as between the State and the citizen, and there must be no real or apprehended perception of partiality. [38] The concept of impartiality and neutrality embraces the concept of bias or reasonable apprehension of bias. The principle that person exercising judicial function must be free of bias was expressed by Viscount Cave in Frome United Breweries Co. Ltd. et al. v. Bath Justices, [1926] A.C. 586, at 590: “My Lords, if there is one principle which forms an integral part of the English law, it is that every member of body engaged in judicial proceeding must be able to act judicially; and it has been held over and over again that, if member of such body is subject to bias (whether financial or other) in favour of or against either party to the dispute or is in such position that bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called courts, have to act as judges of the rights of others.” [39] The test to be applied to determine whether bias or reasonable apprehension of bias exists is that set forth by Laskin C.J.C., speaking for the majority, in Committee for Justice Liberty et al. v. National Energy Board et al., 1976 CanLII (SCC), [1978] S.C.R. 369; ... 68 D.L.R. (3d) 716 at 733: “This Court in fixing on the test of reasonable apprehension of bias ... was merely restating what Rand, J., said in Szilard v. Szasz, 1954 CanLII (SCC), [1955] D.L.R. 370 at p. 373, [1955] S.C.R. at pp. 6-7, in speaking of the ‘probability or reasoned suspicion of biased appraisal and judgment, unintended though it be’. This test is grounded in firm concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and think that emphasis is lent to this concern in the present case by the fact that the National Energy Board is enjoined to have regard for the public interest.” [40] The trial judge concluded that there was no evidence of bias. In so finding he relied on the fact that Pearce had not been subject to any disciplinary action, and that there had been no inquiry with respect to the quality of her work. With respect, that determination misses the mark. The question to be decided is whether any reasonable person would have reasoned suspicion that the person authorizing the search could not assess the evidence presented to him or her in an impartial, neutral, and detached manner. [41] The purpose of requiring prior authorization of warrant to search and seize by neutral and detached person is to ensure that the individual's right to privacy and to be secure against search and seizure will only be breached if the State demonstrates that the appropriate standard has been met judicially in neutral, detached and impartial manner. The neutral and impartial assessment of the evidence of probable cause, which has long been guaranteed by the Fourth Amendment in the United States, is concept similar to the requirement that there is reasonable cause for believing that things exist in the place to be searched prior to the issuance of search warrant.... [38] Vancise J. A. held that the Justice’s close contact with the RCMP created reasonable apprehension of bias such that reasonable person would believe that there was “real danger of bias” on account of the Justice’s “perceived susceptibility ... to intimidation or coercion by the R.C.M.P.” There was no evidence that this had actually occurred, August 22, 2006 but, Vancise J.A. said, this was not the issue. The issue, rather, was “that of impartiality, of neutrality, and detachment in the performance of judicial duties, and the requirement that there be no reasonable suspicion of partiality, bias or lack of neutrality.” In the circumstances there was reasonable apprehension of bias, and, as such, the search was made under an inappropriately obtained warrant, rendering it illegal and unreasonable under s. of the Charter. The evidence was excluded pursuant to s. 24(2). The infringement was not technical or inadvertent one, nor was it an isolated incident or case of urgency. The fact that the search was made in good faith was irrelevant. Vancise J.A. summarized: [90] To summarize, the factors which support the exclusion of the evidence are that it was obtained in an illegal and unreasonable search of dwelling‑house; the warrant was obtained as result of deliberate course of conduct followed by the R.C.M.P.; good faith can be ruled out; the violation was deliberate and blatant, and not trivial. The factors which support the admission of the evidence include the fact that the evidence was real, it existed notwithstanding the violation of the Charter; it was crucial for the successful prosecution and conviction of the accused; the offence is drug offence; the evidence could have been obtained in any event by the proper obtainment of search warrant. [91] This, in my opinion, is one of those circumstances where the administration of justice could, and indeed will, be brought into disrepute if the evidence is admitted. If the police can violate fundamental rights and freedoms guaranteed by the Charter in order to obtain evidence, the Charter will become meaningless document. Confidence in the administration of justice and respect for the judicial system will be diminished and seriously impaired. The rights and human dignity of the individuals must be respected and protected. In my opinion, the administration of justice will be brought into disrepute if the right to be secure against unlawful search and seizure is seen by the average citizen as being diminished when the police can commit warrantless searches and seizures and only have the evidence excluded when they do something unreasonable in the course of the search. The system of justice will be better served by the exclusion of the evidence. The insistence that there be valid warrant will not hamper or inhibit the police in their investigative function, if they carry out their functions in lawful manner. [39] In the case at bar the search warrant authorized search of the premises of Mr. Taylor and also those of Lisa Taylor. The applicant maintains that Mr. MacIntyre was not completely impartial, neutral and detached as to whether search warrant ought to issue for the home of him and his wife. [40] It is impossible to determine what information Ms. Taylor imparted to Mr. McIntyre when she retained him to act on her behalf with respect to marital difficulties. It is possible that she could have related to him her knowledge of the business and financial affairs of the applicant. Though it was outside the period for which the search warrant was issued, it is possible that Ms. Taylor discussed her husband’s business affairs or his approach in dealing with matters within the purview of the Agency. There is, however, no evidence to suggest the nature of the discussions between Mrs. Taylor and Mr. McIntyre, except that it involved the provision of independent legal advice in respect of mortgage security, and advice and general representation regarding a family dispute or marital difficulties. [41] In the circumstances, would an objective person have reasonable apprehension that the justice of the peace would be biased against Mr. Taylor? The justice of the peace is required to swear an oath whereby he will act impartially in carrying out the duties of his office: see s.6(1) of the Justices of Peace Act. The last time Mr. McIntyre represented Ms. Taylor was approximately five years prior to the issuance of the warrant. This militates against an apprehension of bias by a reasonable person. [42] I am satisfied that a reasonable person, given all of the facts, would not conclude that there was a reasonable apprehension of bias. To paraphrase DeRoches J. in Dunn, am satisfied that Mr. McIntyre would have been capable of disabusing his mind of the previous professional contact with Mrs. Taylor at the time of considering the Application for search warrant. Conclusion [43] For the reasons above, I allow the application to quash the search warrant. [44] If the parties are unable to agree on costs, will ask them to submit their representations within three weeks of the date of the filing of this decision.","The accused applied to quash a search warrant, which authorized the search and seizure of his accounting records for a two-year period. The warrant alleged that the accused, an accountant who ran his business out of his home, filed a fraudulent T4 and created false T4 income in order to obtain a tax refund and misreported HST sales. Although the correct information was contained in the informant's file, there were two errors made in the Information to Obtain the warrant; the Crown argued that the errors were inadvertent and not intended to deceive the Justice and that the things to be searched for had relevance beyond the discrepancies. The applicant also argued that the issuing Justice should have recused himself due to being in a conflict of interest situation from having provided independent legal advice to the applicant's wife in respect of a mortgage transaction approximately seven years ago and later being consulted by the wife when the parties were experiencing marital difficulties. Application to quash the warrant allowed on the basis that there were not reasonable and probable grounds for its issuance; there was no reasonable apprehension of bias on behalf of the Justice. The court drew the inference that the informant would not have pursued the warrant without the undisputed and seriously erroneous information and noted that these errors occurred despite the presence of contrary information in the informant's file. There was no evidence as to what information the wife had imparted to the Justice in their previous encounters; the oath sworn by the Justice and the fact that the last time the Justice represented the wife was approximately five years prior to the issuance of the warrant militated against a reasonable person having an apprehension of bias.",d_2006nssc280.txt
119,"Date: 2002October23 Docket: 2002NSPC032 IN THE PROVINCIAL COURT OF NOVA SCOTIA [Cite as: R. v. Burton, 2002NSPC032] HER MAJESTY THE QUEEN versus TROY DANIEL BURTON HEARD: At Baddeck, Nova Scotia, before the Honourable Judge A. Peter Ross, on March 1, 2002, March 15, 2002, May 3, 2002, May 17, 2002, May 24, 2002 and August 9, 2002 DECISION: Orally: October 11, 2002 Written: October 23, 2002 COUNSEL: Mr. Darcy MacPherson, for the Prosecution Mr. Alan Nicholson, for the Defendant INTRODUCTION [1] The defendant, Troy Burton, is charged under s. 253(b) of the Criminal Code with operating a motor vehicle when his blood alcohol level exceeded the prescribed limit. He is also charged with impaired driving under s. 253 (a). [2] Mr. Burton lost control of his vehicle as he rounded curve at the top of hill near the Fire Hall at Cape North, Victoria County, Nova Scotia. Witnesses put the time at shortly after 8:00 a.m.. He was the lone occupant. [3] Kirk Lawrence viewed the driving from the rear. The sound of squealing tires drew his attention to the vehicle. He saw it lose control at the top of the hill. He described the car as being half on the road and half on the shoulder. Although he then lost sight of the vehicle, he heard it go down over the bank second or two later. [4] Ms. Podanovich had side view of the driving through the breakfast window of her house. She heard the noise of the vehicle and saw it put up dust as it went over the bank on the opposite side of the road. [5] Yvonne Daisley had front view of the oncoming vehicle through her windshield. She first heard the vehicle accelerating towards her. When she saw Mr. Burton’s vehicle it was sideways, with its back end in the gravel. She took evasive action and saw the vehicle go over the embankment. She thought the car had been accelerating prior to going sideways. She figured that the driver had hit the gravel on the shoulder of the road and then tried to “correct it”. [6] There is no indication from any of these eye witnesses of poor road or weather conditions, or any unusual hazards, that might contribute to an accident of this sort. There is no evidence of mechanical defects or failures in the defendant’s vehicle. [7] paramedic with EMS Nova Scotia, Greg Lawrence, happened to be nearby. His daughter had just boarded the school bus at its usual stop about 100 metres from the accident. He thus put the time as 8:05. He went to the scene immediately and found Mr. Burton unconscious. He extracted Mr. Burton from the driver’s seat, put him on board, and placed him in the ambulance for transportation to the local hospital in Neil’s Harbour. Owing to the acidic dust from the airbags, he was unable to make any observations regarding the smell of alcohol at the scene. Mr. Burton was transported by helicopter to hospital in Halifax somewhat later that morning. Mr. Lawrence was with Mr. Burton for most of the intervening time. [8] According to the uncontradicted evidence of the defendant’s uncle, William Burton, evidence which accept, the defendant had been to William Burton’s house at South Ridge Road at approximately 7:30. He wanted his uncle to drive him down to the gas station. The defendant had two pints of Labatt’s Blue beer with him. William Burton declined an offer to have one, but the defendant managed to drink them both between 7:30 and 8:00. In the opinion of William Burton, the defendant was “impaired”. He considered taking his keys but thought it would not be necessary if the defendant, as his comments suggested, had run out of gas. He said the defendant staggered, and twice fell, before leaving, by himself, in his vehicle. [9] Word of this accident got to Sergeant Pembroke of the Ingonish Detachment of the RCMP. He went to the scene and after conversation with various people instructed one of his constables, Flanagan, to attend at the hospital and investigate possible impaired driving. He instructed Constable Flanagan that the blood demand should take “back seat” to medical treatment. During second telephone conversation they arrived at an agreement to pursue blood demand. [10] Constable Flanagan arrived at the hospital at 8:54. He spoke to staff and observed Mr. Burton lying on gurney. He watched as Mr. Burton was taken to x-ray and otherwise treated by Dr. Buffett and other hospital staff He did not approach Mr. Burton directly until shortly before 9:49, the time that the blood demand was actually read. He was satisfied, having spoken to Dr. Buffett, that blood sample could be taken safely. There was some brief conversation with Mr. Burton. He detected the smell of liquor from Mr. Burton’s breath. blood demand was given and eventually acceded to, preceded by the usual Charter rights to counsel. The sample, once drawn, made its way to the RCMP Forensic Lab in Halifax, where an analysis revealed blood alcohol level of 92 milligrams of alcohol in 100 millilitres of blood. Pursuant to s. 258(5) the sample was also tested for the presence of drugs. Bromazepam was found at concentration of .32 micrograms per millilitre of blood, and lesser amounts of two related chemicals. [11] will return to the conversation between Mr. Burton and Constable Flanagan, and make further mention of events at the hospital, later in these reasons. PROOF OF BLOOD ALCOHOL LEVEL [12] The Crown tendered Certificate of Qualified Medical Practitioner and certificate of an analyst and also presented viva voce expert evidence from Elizabeth Dittmar. She addressed questions of absorption, elimination and extrapolation. Her evidence, and the combined effect of s. 258(1)(h) and (i) of the Criminal Code establish that the defendant’s blood alcohol level at the time of driving was at minimum 86 milligrams per 100 millilitres of blood, and quite likely the 92 that the certificate reads. Her calculation of possible blood alcohol range of 60 to 80 was given in response to hypothetical question in cross, but the assumptions were not borne out by later evidence. Specifically, there is no reason to think that Mr. Burton “chugged” both bottles of beer in the final five minutes of his visit at the uncle’s. Rather, the evidence tends to show that the drinking took place throughout that one-half hour period. [13] Mr. Archibald, toxicologist at the RCMP Forensic Laboratory in Halifax, gave expert opinion evidence that concentrations of Bromazepam found here are twice the average therapeutic level. His evidence establishes that this amount would have significant impairing effect on one’s ability to operate motor vehicle an effect, moreover, which would be cumulative to the effect of alcohol. VALIDITY OF THE BLOOD DEMAND [14] Owing to Mr. Burton’s physical condition, Constable Flanagan made demand for blood samples under s. 254(3). The necessary assurances were given and the usual medical pre-conditions met. At issue, however, is whether the peace officer had reasonable and probable grounds to make the demand. find from the evidence that the grounds relied upon may be broken down into the following components. [15] First, Constable Flanagan knew from Sergeant Pembroke that Mr. Burton had been in single car accident in which his vehicle had hit the shoulder and left the road. Further, the Constable testified that “he also informed that someone, two people had let him know that the defendant was either high or intoxicated”. Hearsay, of course, may be used to formulate grounds. [16] Second, Constable Flanagan said that “I smelled Mr. Burton and got the mild odour of liquor off of him”. Elsewhere in his evidence he said “I could smell the liquor on his breath or coming from his head”. While the medical technician, Mr. Lawrence, did not note the smell of liquor from the defendant, despite the fact that he was close to him for significant period of time afterwards, Mr. Lawrence gave reasons why he may not detect such an odour. In any event the accuracy of the police officer’s observations and contradictory evidence of other witnesses is not factor here, so long as accept, as do, that the officer’s belief was real and reasonable. [17] Possessed with the foregoing information, Constable Flanagan said that he explained to the defendant that he had “reasonable and probable grounds to believe that he had been drinking”. He further testified “I was going to read the blood demand to him. At that point the defendant said that he only had three beer - ‘I only had three beer, I swear to God’, were his words”. After voir dire ruled the foregoing utterance admissible, though not in proof of the assertion per se. It thus forms third component of the officer’s belief. [18] Defence has argued that only the first two of the foregoing three factors ought to be assessed in deciding whether the grounds were sufficient. While do not agree with this submission, note that in previous decision of this Court, upheld on appeal, concluded that the occurrence of single vehicle accident, with no apparent explanation, coupled with smell of alcoholic beverage from the breath of the driver, constitutes sufficient grounds to make breathalyzer demand[1]. This alone would dispose of the issue. However, think the grounds here are stronger still. While Constable Flanagan had apparently decided to make the demand before hearing the utterance about the “three beer”, the fact remains that he heard this utterance before the demand was actually given. When asked what effect that statement had with respect to his grounds, he answered “I supposed that reinforced it”. It was thus third and substantiating element of his reasonable and probable belief as of the time the demand was made. [19] In sum, the information in possession of the police officer gave him an honest and reasonable understanding of facts sufficient to constitute proper grounds for blood demand. It is thus not necessary to consider whether the taking of the sample constitutes violation of Mr. Burton’s s. or s. Charter rights. [20] believe it is settled law that in cases such as this, where police visit suspected drinking driver confined by injuries to hospital, that there is no “detention” until the demand is made.[2] This leads to consideration of the next issue. THE ACCUSED’s UNDERSTANDING OF THE DEMAND and s. 10 CHARTER RIGHTS [21] The more difficult issues in this trial concern Mr. Burton’s mental state during the time the police officer assumed some control over his situation, imposed upon him the obligations arising from s. 254(3) and (5) of the Criminal Code, and read him his s. 10 Charter rights. THE LEGAL FRAMEWORK [22] The Supreme Court[3] makes clear that consent plays no part in s. 254. As the law is presently written the Crown need not prove an accused’s “consent” to properly take blood samples. The test, rather, is “compliance” which is equated roughly to failure to object. [23] Upon detention, Mr. Burton had the right under s. 10(a) of the Charter to be informed promptly of the reasons therefor and under s. 10(b) to retain and instruct counsel without delay and to be informed of that right. It seems obvious that if his thinking was clear enough to appreciated the 10(b) advice it would be sufficient to comprehend the 10(a) aspect. Considering, therefore, the duties of the police under s. 10(b) proceed from the summary contained in R. v. Bartle[4]. extract the following portion of the judgement of Lamer, C.J.C. beginning at paragraph 17. (b) The Duties Under Section 10(b) This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if detainee has indicated desire to exercise this right, to provide the detainee with reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again except in cases or urgency or danger). (See for example, Manninnen, at pp. 1241-42; R. v. Evans 1991 CanLII 98 (SCC), [1991] S.C.R. 869, at p. 890 and Brydges at pp. 203-4). The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until detainee indicates desire to exercise his or her right to counsel. Importantly the right to counsel under s. 10(b) is not absolute. Unless detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay [1978] S.C.R. 435 at p. 439, and R. v. Black 1989 CanLII 75 (SCC), [1989] S.C.R. 138 at pp. 154-55. Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit. Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 983-94 Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in “timely and comprehensible” manner: R. v. Dubois, [1990] R.J.O. 681 (C.A.), (1990), 1990 CanLII 3298 (QC CA), 54 C.C.C. (3d) 166 at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Herbert. Moreover, in light of the rule that, absent special circumstances indicating that detainee may not understand the s. 10(b) caution, such as language difficulties or known or obvious mental disability, police are not required to assure themselves that detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig 1987 CanLII 40 (SCC), [1987] S.C.R. 537, at p. 540, and Evans, at p. 891. Indeed the pivotal function of the initial information component under s. 10(b) has already been recognized by this Court. For instance, in Evans, McLachlin, J., for the majority stated at p. 891 that “person who does not understand his or her right cannot be expected to assert it”. In that case, it was held that in circumstances which suggest that particular detainee may not understand the information being communicated to him or her by state authorities, mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. Likewise, this Court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith (Norman MacPherson), [1991] S.C.R. 7114, at pp. 724-29, and Brydges, at p. 205. [24] Bartle was considered by the Newfoundland Court of Appeal in case rather similar to the one at hand. In R. v. Kennedy[5] the Court found error in the “trial Judge’s focussing exclusively upon the detainee’s understanding of the substance of the communication rather than on whether the communicator acquitted her duty to inform Mr. Kennedy in comprehensible terms of the essential substance of his right to counsel”. The Court further went on to state[6]: The detainee’s right, therefore, is to be properly informed. There is no absolute protection against lack of appreciation of the information conveyed. The fulfilment of the informational component of the right to counsel does not hinge on whether the detainee understood the communication but whether the essential elements of the right were adequately communicated. It is not, therefore, so much question of whether the message was comprehended, but whether it was comprehensible. By focussing entirely upon Mr. Kennedy’s understanding of the communication of his right, the trial judge made an error of law in his interpretation of the import of s. 10(b) of the Charter. This is not to say that the detainee’s comprehension may not be factor in assessing whether the police or other public authority has discharged its informational obligation. Thus, if there are indications that the person under detention has not sufficiently understood or appreciated his or her right to counsel when conveyed to him or her, the duty will entail such steps as are necessary to facilitate adequate comprehension. In the absence of signs of lack of such comprehension, however, adequate communication will satisfy the requirements. [25] The Newfoundland Court of Appeal is concerned about imposing an impossible burden upon police where there are “no detectable signs of misapprehension”. However, underscoring again that the analysis is not entirely one-sided, the Court later suggests that in proper case the Court may “impute constructive knowledge of any defect in comprehension”[7]. This would require the Court to consider not only what the police knew but what they ought to have known. As far as it goes this seems fair enough. If it is not simply question of whether the message was comprehended but whether it was comprehensible, it has the fairness of symmetry, at least, to say that it is not simply question of whether an inability to understand was detected, but whether it was detectable. [26] In some situations it is not obvious whether the analysis should proceed to consideration of proof of waiver. In R. v. Baig[8] the Court stated that there was no need to determine whether, under the circumstances of that case, the accused’s conduct amounted to waiver of his right to counsel. The Court adopted the following statement of the law.[9] Absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it. [27] Given the foregoing statement in R. v. Baig, it may be going further than is necessary here to consider whether there is proof of valid waiver. However, think it is the better and proper course that do so. It is difficult to make neat separation of the issues. Perhaps it is best not to try. As MacLachlin, J. stated in .v. Smith[10], ...these cases establish that, regardless of whether the focus is on the sufficiency of the initial 10(b) advice or on the waiver, what is required is that the accused understands generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. [28] also agree with the general proposition advanced in R. v. Demont[11] that special care must be taken by persons in authority who attempt to obtain samples of blood for non-medical purposes from person in hospital who has sustained any injury which might reasonably be expected to affect adversely that person’s ability to comprehend the consequences of complying with such demand. APPLICATION OF THE LAW TO THE FACTS EVENTS AT THE HOSPITAL [29] have read and considered various cases where police gave right to counsel or demand for samples to an accused in hospital after motor vehicle accident. While the reading of such cases is helpful, it also underscores the importance of the facts in the particular case.[12] [30] According to Mr. Burton, his last memory from September the 8th, 2000 is getting gas at MacKinnon’s garage. His next recollection is from the ICU at the Cape Breton Regional Hospital. He thus professes amnesia not only from the moment he was injured but of the events immediately preceding the accident, including his ascending the hill and rounding the curve just prior to leaving the road. This profession of amnesia thus eliminates Mr. Burton as potential source of evidence not only as to what took place in the hospital regarding his right to counsel but also as to his driving just prior to the accident. Clearly such evidence has the potential to be contrived, convenient and self-serving. This concern was heightened when Mr. Burton, in cross-examination, seemed to recall hitting the shoulder of the road and losing control, when earlier in direct he claimed to have no memory after getting gas. However, even if accept his claim of amnesia as truthful, it is not clear how this proves an inability to understand at the hospital. While it may be tempting to jump from amnesia to conclusion that he was unable to understand the events subsequently forgotten, there is no medical evidence in this case to support such conclusion. am thus discounting the weight of Mr. Burton’s evidence considerably. As it relates to his ability to comprehend events at the hospital. [31] The first person to attend to Mr. Burton after his vehicle left the road was Greg Lawrence, the paramedic. He said that Mr. Burton was unconscious with “classic signs of head trauma”. He said Mr. Burton “did not know what his environment was around him”. Mr. Burton was given oxygen and became “semi-conscious” once he was in the back of the ambulance. Mr. Lawrence stated that he stayed in the emergency room with Mr. Burton until he was loaded on the helicopter at which point he said Mr. Burton was “still disoriented”. He described Mr. Burton as being at times “combative” which he said was consistent with head injury. Although Mr. Lawrence was apparently present when Constable Flanagan dealt with Mr. Burton, and during other exchanges between Mr. Burton and medical personnel, he was not questioned about Mr. Burton’s participation in these conversations. There is no other evidence from medical personnel in this case. There is no expert opinion evidence on Mr. Burton’s cognitive abilities at the relevant times. [32] Mr. Burton’s father attended the hospital and testified in his son’s defence. He described him as “passing out and coming to”. Regarding any attempted conversations he said “if you asked him anything, all he would do is curse and swear and holler”. Angus Burton evidently expressed these concerns to the police officer and the doctor. He testified that his son would repeat the last thing he heard. [33] Crown counsel asked Constable Flanagan whether he had “any concerns when you made the demand that he might not understand it”. Constable Flanagan stated “no didn’t....after the conversation with Dr. Buffett”. This must not be route by which the Crown adduces hearsay evidence from Dr. Buffett as to Mr. Burton’s understanding. It is, in any event, question about understanding the demand, not the right to counsel. Further, looking at other responses, there is some concern that the police officer may have conflated advice from the doctor regarding possible endangerment to health with advice as to ability to comprehend and comply. [34] think that an appreciation of the right to counsel involves higher degree of “cognitive processing”, if may call it that, than does an appreciation of the blood demand itself. To locate the distinction within the facts of this case, one might infer from the fact that Mr. Burton stuck out his arm for the police officer that he was complying with the blood demand and thus understood it. However, more than this would be required to find that Mr. Burton appreciated the right to counsel. The inquiry concerns not only what the state authorities did based on reasonable belief. It entails an assessment by the Court of the detainee’s ability to comprehend. [35] Despite the foregoing, have concluded that Mr. Burton possessed sufficient understanding of each of the following: (a) the reason for the police officer’s attendance at the hospital, (b) the demand which was made on him, (c) the opportunity which was being given to him to consult with lawyer and (d) that what was being sought, the blood samples, related to impaired driving and would put him in legal jeopardy. My conclusion derives not so much from the police officer’s view that Mr. Burton understood what was going on; rather, it comes from an evaluation of things that Mr. Burton said and did during the relevant time period. [36] While his degree of alertness may have been fluctuating, and his emotions unstable, Mr. Burton nevertheless displayed an understanding of his situation through words and actions spanning a significant period of time. First, early in his encounter with Constable Flanagan, when he learned that he was going to receive blood demand, Mr. Burton said “I only had three beer, swear to God”. While this does not come in as proof of alcohol consumption, it nevertheless displays an understanding of what Constable Flanagan had said to him. It shows an appropriate concern for how much he had been drinking. It is given as though in an attempt to deflect Constable Flanagan from his proposed course of action. Second, short time later, after the Charter rights and demand were given, Mr. Burton asked Constable Flanagan “How am going to speak to lawyer?”. Again, this is an appropriate and valid question, showing an understanding of his predicament, and what speaking to counsel would entail. When told that phone would be brought into the room for his use, he then declined the call and agreed to give the samples. Once again, this is indicative of person mentally engaged in conversation and responding appropriately. Third, once Dr. Buffett was recruited to procure the blood samples, Mr. Burton said he did not want them taken. When advised of this, Constable Flanagan returned to the room and spoke to Mr. Burton again. When he advised Mr. Burton that refusal of the demand was an offence carrying the same penalty as impaired driving, Mr. Burton became emotional and, saying that he would give the samples, stuck out his arm. This again shows an awareness of what was expected of him, of the difficult predicament that he was in, and the incriminating nature of the evidence that would be revealed from the blood sample. [37] Unlike the police in certain other cases, Constable Flanagan did not attempt to deal with Mr. Burton immediately upon entry to the hospital. Rather, the officer waited considerable time until all medical procedures had been completed, before undertaking blood demand and right to counsel. [38] thus conclude that Mr. Burton was afforded his s. 10(v) Charter rights at time when he was capable of appreciating and understanding the rights and that Mr. Burton gave an informed waiver as that is understood from R. v. Clarkson[13] and subsequent cases. As was stated in Smith[14], supra, am satisfied that ...in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he made the decision to dispense with counsel. CERTIFICATE OF ANALYST/PRESUMPTION OF BLOOD LEVELS AT TIME OF DRIVING [39] With the foregoing conclusion, there is no Charter basis on which to exclude the Certificate of Analyst, which, on the evidence in this case serves to prove that Mr. Burton’s blood alcohol level was 92 milligrams of alcohol in 100 millilitres in blood. While there was some questioning of expert witnesses regarding the applicability of the presumption in s. 258(1)(d), this argument was not developed by counsel in submissions. Nevertheless, have considered the evidence on this point. In particular, take from the evidence of William Burton that any consumption of alcohol by the defendant Troy Burton occurred over the one-half hour period that they were together. There being no “evidence to the contrary” Mr. Burton’s blood alcohol level is presumed to be 92 at the time, shortly after 8:00 a.m., when he drove his car off the road. While there is some ambiguity and minor inconsistency over times, these are either clarified by other evidence or put to rest by acknowledgements from defence counsel. [40] Accordingly, Mr. Burton is found guilty of the offence under s. 253(b). As noted earlier, the vive voce evidence indicates minimum blood alcohol level of 86. Whether one follows the documentary or the testimonial path, the result is still finding of “over 80"". IMPAIRED DRIVING s. 253(a) [41] S. 253(5) provides that blood samples taken pursuant to demand may be tested for the presence of drugs. Such was done in this case, and expert toxicology evidence given as to the levels and toxicological effects of such. Impairment by drugs, or alcohol, or combination thereof, can constitute impairment under s. 253(a). Although there is no evidence what drugs or medications Mr. Burton may have received in hospital, the toxicologist described the amount of Bromazepam in Mr. Burton’s system as being in the “toxic” range. thus agree with Crown’s submission that even if the drug had been administered as medication (a possibility which finds no support in the evidence) it is highly unlikely that it would be administered at toxic levels. The evidence in this case would thus lead to finding of guilty on the 253(a) charge. However, given the finding already made on the 253(b) offence, stay of proceedings is entered on the impaired driving charge. [42] As footnote, might say that even had agreed with the defence submissions and found breach of the s. 10(b) right, and had gone on to exclude the certificate under s. 24(2), there would remain considerable evidence of impaired driving in this case. It would be found in part from the evidence of the defendant’s uncle, William Burton. short time before the accident, the defendant arrived at William Burton’s home asking for car to get some gas. William Burton said “I was going to take the keys off him but figured he doesn’t have any gas so there’s no point in my bothering to do that”. This evidences his opinion that the accused was too impaired to drive. He said the accused staggered. He said he fell down twice: once on the way into the house at which time he struck his head, and second time inside when he fell off chair. He knew the accused well. Laymen may give an opinion about intoxication[15] His familiarity with the accused gives this opinion added weight. Further, the accused brought two bottles of beer into the house and drank them while he was there. From the evidence of Ms. Dittmar, it is reasonable to conclude that this would add significantly to the degree of intoxication which he already displayed. To this would be added consideration of the circumstances of the accident itself, occurring as it did on fine day, on stretch of road which would have been familiar to the defendant, when other traffic on the road had no difficulty navigating, with no evidence of any untoward hazards. Dated at Sydney, Nova Scotia, this 23rd day of October, A.D., 2002 A. Peter Ross, J.P.C. [1] R. v. Musgrave [1996] N.S.J. No. 200 (Q.L.) [2] R. v. Kay 1990 CanLII 388 (BC CA), [1990] B.C.J. No. 210 (B.C.C.A.) [3] R. v. Knox, 1996 CanLII 171 (SCC), 109 C.C.C. (3d) 481 (SCC) [4] (1994) 1994 CanLII 64 (SCC), 33 C.R. (4d) (SCC) [5] (1995) 1995 CanLII 9863 (NL CA), 103 C.C.C. (3d) 161 at p. [6] Kennedy, supra at p. [7] Kennedy, supra, at p. [8] 1987 CanLII 40 (SCC), [1987] S.C.J. No. 77 (Q.L.) [9] From R. v. Anderson (1984) 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont. C.A.) at p. [10] 1991 CanLII 91 (SCC), [1991] S.C.R. 714 at par. 26 [11][1992] N.S.J. No. 541 (Q.L.) (NSSC) [12] See for example, R. v. McAvena (1987) 1987 CanLII 201 (SK CA), 34 C.C.C. (3d) 461 (Sask. C.A.); R. v. O’Donnell (1991) 1991 CanLII 2695 (NB CA), 66 C.C.C. (3d) 56 (N.B.C.A.); R. v. Sanderson [1999] S.J. No. 564 (Q.L.); R. v. MacDonald [1999] M.J. No. 124 (Q.L.); and R.v. Kennedy, supra. [13] 1986 CanLII 61 (SCC), [1986] [15] R. v. Graat, 1982 CanLII 33 (SCC), 31 C.R. (3d) 289 (S.C.C.)","The accused was charged with operating a vehicle when his blood alcohol level exceeded the prescribed limit and impaired driving. After being involved in an accident, the accused was taken to hospital where a blood demand was given and eventually acceded to. The accused challenged the validity of the blood demand and argued that his right to counsel was violated. Accused guilty of operating a vehicle when his blood alcohol level exceeded the prescribed limit; there was no violation of the accused's right to counsel. The officer had valid grounds to make the demand, having been advised that the accused was in an accident, that someone had said the accused was either high or intoxicated, having smelled a mild odour of alcohol on the accused and the accused having advised him that he only had three beer. Even if the accused's claim to amnesia for all the events around that time was believed, there was no medical evidence to suggest that he could not understand what the officer said to him at the hospital. Although his degree of alertness may have fluctuated, he displayed an understanding of the situation by showing appropriate concern for how much he had been drinking and asking questions which showed an understanding of his situation and what speaking to counsel would entail.",b_2002nspc32.txt
120,"J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: JULIUS CHORNEY and HER MAJESTY THE QUEEN RESPONDENT Orest Rosowsky, Q.C. for the appellant Daryl B. Bode for the Crown JUDGMENT ARMSTRONG J. January 24, 1995 The appellant, Julius Chorney (herein sometimes""Chorney""), seeks to overturn a conviction by Andrychuk J. inthe Provincial Court that he:. . . did operate a motor vehicle while his ability to operatethe vehicle was impaired by alcohol and/or a drug contrary toSection 253(a) and Section 255 of the Criminal Code. The powers of this Court on this appeal are set forth in ss. 686(1)(a) of the Criminal Code: 686.[613](1) On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice. The notice of appeal cites six grounds, one of them an alleged violation of the Charter. There is an added catch all ""any other grounds that may appear from reading of the transcript"". There is no mention in the notice of appeal, at least in the language of the section, of any of the grounds set out in ss. 686(1)(a). However at the opening of argument theappellant abandoned all but the Charter matter and oneinvolving the ""principle of reasonable doubt"". The Charter allegation reads:. . .d)That the accused's right to life, liberty and security ofthe person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice as setout in Section 7 of the Charter were infringed by virtue ofthe fact that the Crown failed to provide disclosurerespecting crucial evidence of impairment to the accused orhis counsel after being requested to do so, thereby denied theaccused his right to make full answer and defence. Notices of this allegation were served on the Attorneys General of Canada and Saskatchewan as required by The Constitutional Questions Act, R.S.S. 1978, c. C-29, in the following terms: TAKE NOTICE that the accused JULIUS CHORNEY through Counsel on his behalf intends to make an application for dismissal of the charge on the grounds that the accused's right to be provided with timely disclosure of the Crown's evidence was infringed as guaranteed by Section of the Canadian Charter of Rights and Freedoms. Particulars are noticeably absent from the notice of appeal and even more so from the notices for the Attorneys General. Neither Attorney General was represented at the trial. The information that was not disclosed by the Crown before trial was that the investigating officer had received telephone call in which she was informed that Chorney ""had left [the town of] Endeavour and was driving intoxicated."" The fact of the telephone call was revealed when it was volunteered in the examination in chief of the investigating officer. It is agreed that counsel for the Crown knew nothing whatsoever about the telephone call prior to hearing it from the witness at trial. Failure to disclose was not raised before the trialjudge. (Counsel for Chorney on this appeal was not counsel at the trial). It should have been if it was to be raised atall. See Mark Joseph Cartier v. Her Majesty the Queen, Sask. Q.B.C.A. No. 12/93, J.C. Prince Albert, August 31, 1994, Baynton J. (as yet unreported) and the cases cited by Baynton J., R. v. Anaquod (1990), 1990 CanLII 7459 (SK QB), 88 Sask. R. 205 and R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 12 C.R. (4th) 152 159. Had the objection of failure to disclose been raisedat trial the trial judge would then have had to decide whetherthere was a reasonable possibility that the withholding ofinformation had impaired the right of the accused to make fullanswer and defence  R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 340. If the information could be of some use to the accused,it is relevant and should have been disclosed. The trialcould have been adjourned if wanted. There being no complaint at the trial, of nondisclosure, this appeal on this point could justifiably be dismissed. However invited counsel in argument to advance any idea as to how knowledge of the telephone call might have prompted anything different in the action or inaction of the defence. The defence did not call evidence at the trial. In R. v. Durette (1994), 1994 CanLII 123 (SCC), 88 C.C.C. (3d) (S.C.C.), Sopinka J. held that an accused should not be required to demonstrate the specific use to which information the accused had not even seen, might be put. But in the present case the information that the telephone call was made has been known since the trial (if not before as to which see below). do not see how Chorney was prejudiced in making full answer and defence by not knowing that someone other than the investigating officer thought he was inebriated the night in question. Counsel argues that it is impossible to tell what use could have been made if the information had been available before trial. But this does not bring this case within the Durette provision. It is not ""Catch 22"" situation. In Durette, the appellants did not know what had not been disclosed. In the present case the appellant has now had the information seven months, if not longer. Besides, Durette dealt with securing wire tap evidence which Sopinka J. said formed substantial part of the evidence against the appellants in that case. In the present case, neither the telephone call nor the information conveyed thereby was any evidence against the accused. The telephone call was no more than part of the investigating officer's narrative of how she came to be out on the highway on the night in question. do not know how the appellant might have benefited from disclosure of the telephone call before trial but more significantly, Chorney does not offer any idea. Accordingly reject this ground of appeal. should mention that even if allowing the appeal on this point, the proper disposition would be to order new trial. Durette, p. 59. There may be another and disquieting ground for rejecting the appellant's Charter argument. The following is from the cross-examination of the investigating officer (transcript, p. 25): QNow you'd indicated earlier you'd received call with respect to Mr. Chorney. When did that call come in? AApproximately five to 6:00. QAnd where did that one where did the call come from? AI just took it that it came from Endeavour. There was no name given. The caller just said that he had left Endeavour, driving intoxicated. QFrom what understand, you're aware of the identity of this person? AHe's an anonymous caller. QWell understand, from what you're saying, that he didn't give his name but understood also that you do know who it is, regardless of whether he named name or not? AI do. The foregoing exchange taken together with the fact that there was no objection raised at trial over the nondisclosure by the prosecution of the telephone call suggests very strongly, if not conclusively, that the defence knew before trial about the telephone call and accordingly knew more than counsel for the Crown. There is then the ground and argument ""involving the principle of reasonable doubt"" so described by counsel for the appellant. Although not specifically so characterized by the appellant it has to be under ss. 686(1)(a)(i) that the verdict is unreasonable or cannot be supported by the evidence. Chorney is deaf. The investigating officer knew Chorney prior to the incident resulting in Chorney's conviction. She knew he was deaf. When Chorney's car was stopped by the officer he was not wearing his boots but they were on the floor beside him in his car. The officer wanted him to leave his car and come back to the police car but wanted him to first put his boots on. She said that he refused to do so. The following brief exchange took place in cross-examination of the officer: QDid you ask him why he was why he didn't want to wear his boots? AI no, just asked him to put them on and he refused to put them on. QWere they taken with you back to the detachment? AYes, they were. There were few more questions that concerned the alleged condition of the boots but nothing relating to how the officer ""asked"" Chorney to put on his boots. When Chorney got out of his car as requested by the officer he did so in his stockings only. It was the 12th of January, there was snow on the ground and it was very cold. The fact that Chorney did not put his boots on was emphasized by the trial judge in his decision. He said this: Over and above everything that have just commented on insofar as the officer's evidence is this issue of the shoes. Now it's twenty below, Officer Grimsrud's evidence think is in the low twenties, whether that means twenty-one is low number in the twenties or twenty-nine is also low because you're close to thirty, but accept as fact that her evidence is that it's in the twenties. She's trying to get the Defendant to put his shoes on and he won't and, if you are visualizing or attempting to visualize in your mind's eye what the actions would be of person who is impaired by alcohol, it seems to me that sensible, sober person may well complain if he is not given an opportunity to put his shoes on in these circumstances, or indeed may refuse to exit the vehicle. Here the driver is refusing to put his shoes on. And the trial judge went on to find Chorney guilty. Now counsel (and again, present counsel was not counsel at trial) argues that the evidence of the officer asking Chorney to put on his boots should never have been considered because Chorney is deaf and wouldn't know he was being asked to put his boots on. He goes on to argue that without this particular evidence there is not enough other evidence to convict ""beyond reasonable doubt"". First of all, if the evidence was to be challenged it should have been challenged at first opportunity. It was not challenged; the officer was not even cross-examined on how she ""asked"" Chorney to put his boots on. In examination-in-chief she testified how she wrote out the required warning to him, that she wrote out the demand for breathalyser test and wrote out questions regarding calling lawyer. She knew Chorney was deaf and there is nothing in the evidence to indicate that he did not get her message. But even if one assumes that Chorney did not get the message, is it any less ""different"" that he gets out of his car in only his stockings? The trial judge observed that sober person might refuse to exit his vehicle without his boots, never mind any request to put them on. Secondly, even if one could find merit in counsel'sargument, which I do not, and even if it was accepted, thetrial judge could reasonably convict on the other evidence heconsidered. In the so often referred to case R. v. Andres (1980), 1979 CanLII 2238 (SK CA), Sask. R. 96 (C.A.) Culliton C.J.S. said (p. 99): The right of the Appeal Court to set aside conviction on the evidence is set out in Section 613(1)(a)(i) namely that the verdict is unreasonable or cannot be supported by the evidence. The Court of Appeal cannot and should not set asidea conviction merely because it would have taken a differentview of the evidence than did the trial Judge. The Court of Appeal must remember that it is neither its duty or its function to re-try cases its function is one of review. Thus while the Appeal Court may differ with the trial Judge as to the facts established by the evidence, it will only disturb his findings of fact if it is satisfied that such findings are not supported by the evidence or that the conclusion reached by the trial Judge is so clearly wrong as to make that decision unreasonable. See the judgment of Branca, J.A., in R. v. Dhillon (1973), 1972 CanLII 1356 (BC CA), C.C.C. (2d) 414, for correct statement of the principles to be followed and very helpful review of authorities. The appeal is dismissed.","The accused appealed his conviction by a Provincial Court Judge on a charge of impaired driving. The accused argued that the Crown had failed to make proper disclosure contrary to s.7 of the Charter and that the trial judge has misapplied the concept of reasonable doubt. HELD: Appeal dismissed. 1)The failure of the Crown to disclose was not raised at trial as it should have been. If the matter had been raised at trial and the judge then thought that the evidence not disclosed impacted the accused's defence, he could have adjourned the trial. 2)The evidence not disclosed would not have affected the accused's defence in any event. 3)On the issue of reasonable doubt, the trial judge could reasonably have convicted on the evidence, and the Court would therefore not substitute its own view of the evidence.",d_1995canlii5983.txt
121,"TICKET NO. 32413443 2007 SKPC 41 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON Between: HER MAJESTY THE QUEEN AND BUYAKI (J.C.) Cory Bliss for the Crown Tyla Olenchuk for the Accused P.S. Kolenick, PCJ JUDGMENT June 22, 2007 [1] The accused is charged that he did, on or about February 17, 2006, at Saskatoon, drive while disqualified, contrary to s. 89(1) of The Highway Traffic Act, as it was then. The alleged driving occurred when the accused was involved in motor vehicle accident and engaged in other alleged misconduct, including driving without due care and consideration for others, and failing to identify himself to the other driver before departing from the scene. [2] Mr. Buyaki is 25 years of age. It is apparent from the Driver History, which has been filed by the Crown, that his S.G.I. driving record since the year 2000 includes numerous entries for motor vehicle accidents, summary offence tickets, and other administrative actions by S.G.I., which have, on occasion, resulted in the disqualification of his driving privileges for varying lengths of time. [3] Further in that regard, the Crown filed letter dated July 11, 2005 from S.G.I. to the accused. In it, he was advised of his eligibility for provisional license, effective July 11, 2005, because he had successfully completed the Driving Without Impairment course. That letter included the following paragraph: Please note that restricted or provisional drivers who drive after consuming any amount of alcohol will have the original driver’s license suspension period reinstated and will be required to attend an addictions screening and prescribed program. [4] Also included in the evidence for the Crown herein is Certificate of Disqualification or Prohibition, signed on behalf of the Administrator under The Vehicle Administration Act (since repealed). It confirmed that, on December 18, 2005, the accused had been disqualified from holding or securing license, continuously, to and including the date of the Certificate, namely August 15, 2006. That had arisen for failing to participate in program prescribed by the Driver Licensing and Regulations. EVIDENCE FOR THE DEFENCE The Accused [5] The accused indicated that the motor vehicle accident in issue had occurred on February 17, 2006, at time when it was his belief that he had valid provisional driver’s license. In that regard, he had earlier participated in the Driving Without Impairment program and Addiction Screening, which S.G.I. had required as condition thereof. Pursuant to the prior mentioned letter dated July 11, 2005, from S.G.I., he had proceeded shortly after receiving it to obtain the said provisional license. [6] The accused testified further that, on December 18, 2005, while driving near Carrot River, Saskatchewan, he was stopped by member of the RCMP and issued 24 hour driving suspension. At the time, he advised the officer of his provisional license, and learned that the suspension would be for 24 hours only and otherwise, he could drive thereafter unless advised to the contrary by S.G.I. [7] He had indeed been disqualified on December 18, 2005, and continued to be so on the date of the motor vehicle accident. Despite that the accused denied herein he had received any notice of suspension from S.G.I. between December 18, 2005 and the date of the motor vehicle accident, February 17, 2006. Indeed in that regard, he produced herein letter from S.G.I., dated February 16, 2006, and postmarked February 20, 2006. In it, S.G.I. confirmed that, as result of the roadside suspension on December 18, 2005, his driver’s license was suspended until October 16, 2006, and until he had completed the required education or recovery program. Unfortunately, he had not received the said letter until subsequent to the motor vehicle accident in issue. [8] In cross-examination herein the accused was reminded of the contents of the letter dated July 11, 2005 from S.G.I., in which he was told that consumption of any alcohol would cause the original driver’s license suspension period to be reinstated, and require him to attend programming. He confirmed that he was aware of those repercussions, but had not bothered to contact either S.G.I. or the police, to confirm the legal effect of the December 18, 2005 roadside suspension. [9] In re-examination he confirmed his belief that, on February 17, 2006 he was able to legally drive because there had been no contact from S.G.I. stating otherwise. ANALYSIS Should the offence of driving while disqualified contrary to the provincial statute be regarded as a full mens rea offence? Is the evidence sufficiently credible for the Court to conclude that the accused had knowingly operated a motor vehicle while subject to a driving disqualification? [10] During argument, I had suggested to counsel that the driving while disqualified matter herein should be regarded as a full mens rea offence, rather than one of strict liability requiring the accused to establish due diligence on a balance of probabilities. I am still of that view, given that the accused’s liberty is jeopardized with the potential of incarceration. Likewise the automatic disqualification and surrender of driver’s license are serious sanctions. [11] Further in that regard, in R. v. Kraftchick (S.J.K.), (2006), 37 M.V.R. (5th) 228, (Sask. Prov. Ct., Kovatch, P.C.J.), the Court made the following observations on the facts therein, commencing at para. 6: The issue in these proceedings for this accused is what is the mens rea or criminal intent that must be established by the Crown. In this regard, have reviewed the decision of R. v. Cote, 2006 SKPC 45 (Sask. Prov. Ct.) (CanLII), decision of His Honour Judge Green. In that case, Judge Green was dealing with charge of drive while disqualified under Section 259(4) of the Criminal Code. He referred to the Supreme Court of Canada decision in R. v. Baril, 1979 CanLII 227 (SCC), [1979] S.C.R. 547 (S.C.C.) [hereinafter “Prue”], and that the mens rea for this offence was knowledge of the driving disqualification. He had reasonable doubt as to whether the accused had the requisite knowledge, and accordingly acquitted. The case at bar involves charge under the Saskatchewan Highway Traffic Act, as opposed to the Criminal Code. However, in the Prue decision, the Supreme Court made it clear that there is presumption against strict liability offences, and in favour of some element of mens rea or criminal intent. As result, do not believe this is strict liability offence. Rather, believe that some mens rea must be established. would conclude, as did Judge Green in the Cote decision, that the requisite mens rea is knowledge of the suspension of the driver’s license, and an attempt to drive in the face of that knowledge. On the basis of all of the evidence, have reasonable doubt that the accused had knowledge of the suspension of his driver’s license. Accordingly, do not believe the Crown has established the offence and the accused must be acquitted. [12] It is therefore necessary to assess the credibility of the witnesses who testified in the context of whether the evidence is sufficient for the Crown to prove beyond reasonable doubt the accused had committed the offence as alleged. The accused is presumed innocent until proven guilty. In the assessment of credibility, the court is guided by the principles restated in R. v. McKenzie (P.N.) (1996), 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (From R. v. Rose (A.) (1992), 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do not accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [13] The determination of credibility does not involve the court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises reasonable doubt. [14] In assessing the accused’s credibility on that basis, he was adamant in asserting that he had no knowledge of his license suspension at the material time. There are some concerns with his claim in that respect. In particular, he was not able to offer compelling explanation for ignoring the admonition to him in the letter of July 11, 2005 that if he consumed any alcohol, the original driving suspension would be reinstated. Obviously that could have caused him to make further inquiries of S.G.I. or the police. [15] To his credit, however, the accused believed it was appropriate to rely on the advice of the peace officer on December 18, 2005, that it was only 24 hour suspension, unless he heard further from S.G.I. Likewise, it did not appear that the accused had any further communication from S.G.I. subsequent to December 18, 2005, until shortly after the motor vehicle accident, roughly two months later. At that time, it was confirmed that the suspension had been extended to October 16, 2006, contrary to his earlier belief. [16] Apparently it is an important part of the S.G.I. administration of driver’s license suspensions that there be communication by letter, as has occurred here twice, with the purpose of attempting to ensure accused persons are advised in writing of changes in the legal status of their driving suspensions, with clarity and precision. As such, this accused should be able to rely on that procedure, even when that communication was not as timely as one would hope. Not having heard from S.G.I. in the interim, after December 18, 2005, it was reasonable for him to rely on the advice received from the peace officer. In the meantime, it was unfortunate the updated status of the suspension had not been conveyed by S.G.I. in the normal course, any earlier that it actually was. [17] Therefore, applying the principles in McKenzie supra, while do not necessarily believe the evidence of the accused am left in reasonable doubt by it. As such the evidence is not sufficient to prove that the accused had knowingly operated a motor vehicle while disqualified as alleged, and he is not guilty.","The accused was charged that he did drive while disqualified, contrary to s. 89(1) of The Highway Traffic Act, as it was then. The issues were as follows: 1) should the offence of driving while disqualified contrary to the provincial statute be regarded as a full mens rea offence? 2) is the evidence sufficiently credible for the court to conclude that the accused had knowingly operated a motor vehicle while subject to a driving disqualification? HELD: The accused is not guilty. 1) Driving while disqualified should be regarded as a full mens rea offence, rather than one of strict liability requiring the accused to establish due diligence on a balance of probabilities, given that the accused's liberty is jeopardized with the potential of incarceration. Likewise the automatic disqualification and surrender of a driver's license are serious sanctions. 2) The accused was adamant in asserting that he had no knowledge of his license suspension at the material time. Although he was not able to offer a compelling explanation for ignoring the admonition to him in a letter from Saskatchewan Government Insurance (S.G.I.) of July 11, 2005 that if he consumed any alcohol, an original driving suspension would be reinstated, the accused believed it was appropriate to rely instead on the advice of the peace officer on December 18, 2005 that it was only a 24 hour suspension, unless he heard further from S.G.I. Likewise, it did not appear that the accused had any further communication from S.G.I. subsequent to December 18, 2005, until shortly after the motor vehicle accident, roughly 2 months later. At that time, it was confirmed that the suspension had been extended to October 16, 2006, contrary to his earlier belief. Apparently it is an important part of the S.G.I. administration of driver's license suspensions that there be communication by letter, as has occurred here twice, with the purpose of attempting to ensure accused persons are advised in writing of changes in the legal status of their driving suspensions, with clarity and precision. As such, this accused should be able to rely on that procedure, even when that communication was not as timely as one would hope. Not having heard from S.G.I. in the interim, after December 18, 2005, it was reasonable for him to rely on the advice received from the peace officer. As such, the evidence is not sufficient to prove that the accused had knowingly operated a motor vehicle while disqualified as alleged, and he is not guilty.",c_2007skpc41.txt
122,"Morgan, QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 516 Date: 2009 12 31 Docket: Q.B.G. No. 252/2007 Judicial Centre: Saskatoon BETWEEN: TORONTO‑DOMINION BANK, and WHEATLAND INDUSTRIES (1990) LTD., Counsel: David G. Gerecke for the applicant, PricewaterhouseCoopers Inc., Receiver and Manager of Wheatland Industries (1990) Ltd. Jeffrey M. Lee for the plaintiff, Toronto-Dominion Bank Murray R. Sawatzky, Q.C. for CNH Capital Canada Ltd. and CNH Canada Ltd. and Sonia L. Eggerman JUDGMENT KOCH J. December 31, 2009 [1] Beginning in the 1990s and leading up to February 2007, Wheatland Industries (1990) Ltd. (“Wheatland”) carried on business as farm equipment dealer at separate locations at Rosetown, Saskatchewan, and Elrose, Saskatchewan. Wheatland entered into dealership agreements with equipment suppliers, including New Holland Canada, Ltd./ Ltée, Case Canada Corporation and Flexi-Coil Ltd. The respective financing corporations of each of the supplier corporations granted Wheatland lines of credit on the security of present and after‑acquired product inventory. By 2003, the three suppliers mentioned had become part of CNH Canada Ltd. (“CNH Canada”). Dealer financing for CNH Canada has been provided by CNH Capital Canada Ltd. (“CNH Capital”). [2] In 1999 Toronto‑Dominion Bank (“TD”) granted Wheatland credit facility of $500,000 plus an additional $20,000 in Visa credit, all financed by means of general security agreement pledging Wheatland’s present and after‑acquired personal property with personal guarantees from two individuals. On April 13, 1999, TD registered its security interest with the Saskatchewan Personal Property Registry. [3] On May 18, 1999, TD, New Holland (Canada) Credit Company and Wheatland entered into priority agreement whereby TD postponed its Wheatland security in favour of New Holland as to what is described in the agreement as “NHCC Financed Collateral”. New Holland postponed its Wheatland security in favour of TD as to assets of Wheatland, other than NHCC Financed Collateral. On May 15, 2002, TD entered into virtually identical agreement with Case Canada Corporation, Case Credit Ltd. and Wheatland. There may be similar agreement involving Flexi‑Coil, but it has not been provided. The existence and circumstances of the priority agreements are not contentious. The interpretation of them is. In general terms, the agreements provide that the security of New Holland (Canada) Credit Company and Case Credit Ltd. is to have priority over the TD security with respect to property sold to Wheatland by New Holland Canada, Ltd./Ltée and Case Canada Ltd. that Wheatland has not paid for in full. TD security is to have priority with respect to other chattel property which it contends includes property supplied by New Holland and Case that Wheatland has paid for. The CNH companies contend that TD does not have priority with respect to credits for returned parts. That is the primary issue now before the Court. It is not in dispute that CNH Canada and CNH Capital stand as successors to the respective contracting parties, and have assumed their respective rights and obligations relating to the TD priority agreements. [4] By April 2006 Wheatland was having financial difficulties. It was in default in its obligations to TD. On May 11, 2006, when Wheatland owed TD approximately $470,000, TD demanded payment and gave notice pursuant to s. 244 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3, of its intention to enforce its security. [5] In July and August 2006 CNH Canada applied to the Court under s. of the Agricultural Equipment Dealerships Act, S.S. 1999, c. A‑9.1, for determination as to whether CNH Canada had cause to terminate the Wheatland dealership agreement with New Holland Canada, Ltd./Ltée, dated January 1, 2000, and the Wheatland dealership agreement with Case Canada Corporation, dated July 18, 2002. Thereafter, Wheatland attempted to sell the dealership properties as functioning businesses but was unsuccessful. In orders dated February 8, 2006, and February 9, 2006, the respective applications of CNH Canada to terminate the dealership agreements were granted. [6] On February 27, 2007, TD commenced the present action against Wheatland, claiming $490,404.02 with ongoing interest. On February 28, 2007, the ex parte application of TD to appoint PricewaterhouseCoopers Inc. (“PwC”) as interim receiver of Wheatland pursuant to s. 47 of the Bankruptcy and Insolvency Act was granted. The order was to expire March 15, 2007, unless extended in the meantime upon notice to Wheatland and other interested parties. It was extended to March 26, 2007. When the matter came before the Court again on March 26, 2007, TD applied to terminate the appointment of PwC pursuant to the February 26, 2007 order and to appoint PwC as receiver and manager in respect of all of the Wheatland assets, undertakings and properties pursuant to ss. 65(1) of The Queen’s Bench Act, S.S. 1998, c. Q‑1.01, and ss. 64(8) of The Personal Property Security Act, 1993, S.S. 1993, c. P‑6.2. Both aspects of the application were granted. [7] PwC, as receiver/manager, liquidated the Wheatland property. However, disputes arose between PwC and CNH Canada and CNH Capital. The first was as to the priority of the CNH Capital security over the TD security as to credits to Wheatland arising from the return of parts inventory. The second related to whether CNH Canada was obligated to accept the return of parts ordered by Wheatland from Case Canada but shipped directly to Wheatland by third party suppliers. Accordingly, PwC has applied for the advice and direction of the Court as to the following: (a) whether the Case New Holland group (“CNH”) is obliged to pay certain amounts to the Receiver, as set out in the Report of the Receiver dated July 10, 2008 re: Issues Concerning CNH Group (the “Report”), in respect of credit balances of Wheatland and parts returned by the Receiver; and (b) whether CNH was required to purchase certain parts from the Receiver, mainly comprised of Direct Ship Items (as defined in the Report) from the Receiver, and whether CNH is obliged to pay certain amounts to the Reciever [sic], as set out in the Report, in respect of such parts. [8] The Receiver, as an officer of the Court, has filed report outlining the background facts in detail. The parties have filed affidavits with exhibits. However, as counsel have advised, there are no facts in dispute. The issues relate only to the interpretation of the respective priority agreements between TD and the CNH companies and to the interpretation of s. 50(14) of The Agricultural Implements Act, R.S.S. 1978, c. A‑10 (the “AIA”) as to the return of direct ship parts. [9] The CNH companies object to the propriety of court‑appointed receiver taking the side of competing creditor in priority dispute amongst creditors. In the context in which the issue has arisen here, this is collateral matter which has no impact on the outcome, except as to costs. Therefore, reject the objection, relying on the Saskatchewan Court of Appeal decision in Andersen (Arthur) Inc. v. Merit Energy Ltd., 2002 SKCA 105 (CanLII), 227 Sask. R. 44. The Receiver, in bringing this application, is acting on behalf of all creditors to determine priority between competing claimants. That is not the same as the Receiver seeking to change the priorities as between the respective claimants. Parts and service manuals returned by the Receiver to CNH Canada [10] In the course of liquidating the personal property of Wheatland, the Receiver returned parts and service manuals to CNH Canada. These returns, along with warranty credit of $1,861.40, resulted in credits in four distinct parts accounts totalling $235,336.96. The Receiver contends that these credits are assets of Wheatland and seeks to recover the total value of them from CNH Canada and CNH Capital. CNH Canada and CNH Capital, relying on the provisions of the respective priority agreements, claim that they are entitled to set off these credits against debits in other Wheatland accounts relating to the sale of whole goods and against debits in Wheatland accounts relating to the financing of trade‑in inventory. This issue turns on the wording of certain provisions of the priority agreements. As the provisions of the New Holland (Canada) Credit Company agreement and the Case Canada Corporation agreement relevant for present are identical, references herein will be only to the New Holland (Canada) Credit Company agreement. [11] The operative provisions of the priority agreement are in paragraphs 4.1 and 4.2 as follows: 4.1 The Bank hereby agrees that the Bank Security is hereby postponed and subordinated in all respects to the NHCC Security on the NHCC Financed Collateral. The Bank further agrees that NHCC shall also be absolutely entitled to any conditional sale contracts or other chattel paper.... The Bank further agrees that the NHCC Security in the Credits included in the NHCC Finance [sic] Collateral and all Proceeds thereof shall at all times remain prior to and rank ahead of the Bank’s Security in such Credits. 4.2 NHCC hereby agrees that the NHCC Security is hereby post‑poned [sic] and subordinated in all respects to the Bank Security on all the present and future assets of the Dealer [other] than the NHCC Financed Collateral. NHCC further agrees that the NHCC Security related to any new or used Goods forming part of the NHCC Financed Collateral, and all Proceeds of the Goods, is hereby postponed and subordinated in all respects to the Bank Security related to the new or used Goods and the Proceeds thereof, effective upon NHCC having been paid by the Dealer in full for such Goods. NHCC further agrees that the NHCC Security related to any trade‑in Goods forming part of the NHCC Financed Collateral and all Proceeds of such trade‑in Goods is hereby postponed and subordinated in all respects to the Bank Security related to the Trade‑in Goods and the Proceeds thereof, effective upon the purchase price for the new Goods acquired by the Dealer’s customer who delivered the trade in Goods to the Dealer as part consideration for the new Goods acquired by such customer, having been paid in full. The parties are on common ground that in order to correctly express what was agreed upon, the word “other” must be added in the first sentence of paragraph 4.2 to correct typographical omission. [12] To construe these paragraphs, it is necessary to refer to the following definitions in paragraph 2.1: 2.1 In this Agreement, the following terms shall have the meanings attributed to them: ... (b) “NHCC Financed Collateral” means the following present and future assets of the Dealer: (i) All of the Dealer’s present and after‑acquired inventory financed by NHCC consisting of new, used and trade‑in Goods and all parts and supplies for such Goods (the NHCC Inventory); (ii) all present and after‑acquired Credits relating to any item of NHCC Inventory and including all credits due or accruing due to the Dealer from NHCC; and (iii) all choses in action, rights and contracts relating to the NHCC Inventory and all Proceeds realized by the Dealer from such contracts, the NHCC Inventory and Credits, other than choses in action, rights and contracts arising from the sale by the Dealer of parts and services in the ordinary course of its business. (c) “NHCC Security” shall mean any security documentation now or in the future held by NHCC from the Dealer charging the present and future assets of the Dealer, including without limiting the generality of the foregoing, the documents listed in Schedule hereto, if any. (d) “Credits” includes all factory rebates, credits, advertising and promotional allowances, and all other amounts, credits or claims due or accruing due to the Dealer from manufacturer or distributor of goods, parts, and supplies. (e) “Proceeds” means personal property in any form derived directly or indirectly from any dealing with the Dealer’s assets or that indemnifies for assets of the Dealer that are destroyed or damaged. The term “NHCC Inventory” in accordance with para. 2.1(b)(i) refers to after‑acquired inventory financed by NHCC consisting of new, used and trade‑in Goods and all parts and supplies for such Goods. [13] Paragraph 1.1 of the agreement stipulates that the recitals in the preamble are to be read and construed as part of the agreement. The preamble provides: WHEREAS the Dealer is in the business of selling, leasing and repairing tractors, agricultural and industrial equipment, and implements (hereinafter referred to as “Goods”); AND WHEREAS the Bank has loaned money or made other financial accommodations to the Dealer and may in future loan further monies or make further financial accommodations to the Dealer to enable the Dealer to operate its business; AND WHEREAS NHCC is supplying credit and may in the future supply further credit to the Dealer to enable the Dealer to acquire and hold for sale or lease, Goods and parts and supplies therefor; AND WHEREAS the Bank and NHCC have taken and may in future take security documents from the Dealer to secure payment of the respective present and future indebtedness and obligations of the Dealer to each of them; The first and third recitals are particularly notable. [14] The CNH companies contend that they are entitled to claim priority on the parts credits pursuant to paragraph 4.1 of the agreement because parts are “NHCC Financed Collateral” as defined in paragraph 2.1(b)(i). This argument is supported by the first recital paragraph wherein the word “Goods” is stated is to include tractors, agricultural and industrial equipment and implements, without explicit reference to parts and supplies. It is also supported by the third recital which specifically refers to “Goods and parts”, leading to the inference that parts are not included in “Goods” and must be something different than “Goods”. The reference in paragraph 2.1(b)(i) is also consistent with the contention that the reference to “Goods” does not include parts or supplies. In subparagraph (i) the word “Goods” is used conjunctively with the words “parts and supplies”. As well in the definition of “Credits” in paragraph 2.1(d), the word “Goods” is separated from the word “parts”, albeit in different context. The definition of “Credits” in paragraph 2.1(d) also refers to “goods” and “parts” separately and conjunctively, although in that definition, the word “goods” commences with lowercase letter “g”. This does not appear to support the CNH position. Credits are not included in the “NHCC Financed Collateral” and the “Proceeds” thereof, but they are obviously included in the present and future assets of the dealer other than the “NHCC Financed Collateral” in accordance with the first sentence of paragraph 4.2. [15] TD’s priority claim is based on the first two sentences in paragraph 4.2. TD contends that the NHCC priority does not extend to parts or credit for parts. It is TD’s position that the NHCC security is postponed in favour of TD as to any new and used Goods effective upon NHCC having been paid by the dealer in full for them. For this contention to prevail, the word “Goods” must be interpreted to include “parts” which in common English language usage would surely be the case. [16] The CNH companies contend that they are entitled to claim prior security to the credits generated by the parts returned based on the reasoning that parts, the proceeds of parts returned and the credits thereby generated are not included in the assets in respect of which TD is entitled to claim priority pursuant to paragraph 4.2. CNH contends that the priority extended to TD by paragraph 4.2 includes only assets that are not “NHCC Financed Collateral”. Notwithstanding that the parts in issue have been, in effect, paid for, CNH contends that those parts are nevertheless “NHCC Financed Collateral”. [17] am not able to follow the fine distinctions required to support the CNH position. [18] do not accept the submission of the CNH counsel that the goods/parts issue is the cornerstone of the priority agreement. The critical issue is the distinction between inventory and credits paid for by Wheatland and inventory and credits financed by NHCC that Wheatland has not paid for. see that as the essential intent of the contracting parties and the impact of the agreement. If that were not the case, it would have been logical for the agreement to have contained an explicit provision that parts and supplies are not “Goods” or “inventory” for the purposes of the agreement. note that the contrary intention of CNH is indicated in the NH policy manual. However, there is no reference to any manual or manuals in the priority agreement itself, nor is there any acknowledgement or recognition of the provisions of any NHCC policy manuals by TD. [19] should comment on the CNH submission that the fact that the specific reference to new goods, used goods and trade‑in goods indicates that the omission of the word “parts” in these categories indicates that parts are something separate or different. This does not, in my view, serve to identify an intention on the part of TD to relinquish any rights to its security claim against paid‑for parts. [20] Notwithstanding the possibility of a contrary interpretation, in accordance with the submission on behalf of CNH on this application, it seems clear that objective of the contracting parties when they entered the priority agreement was that the NHCC security would have priority over the TD security as to Wheatland inventory supplied by New Holland but not paid for by Wheatland or returned for credit. But once the inventory supplied by New Holland was paid for by Wheatland, the TD general security on Wheatland’s present and after‑acquired property would prevail. [21] Based on the foregoing, find that the Receiver has proven it is entitled to recover the credits in the parts accounts. PwC is entitled to recover from CNH Canada and CNH Capital the full balances of the credit accounts totalling $235,336.96. This does not affect the rights of creditors of Wheatland, other than CNH, to contest the validity of the TD security claims. The Direct Ship Issue [22] The second issue only arises as the result of the Receiver succeeding on the first issue. It relates to the Receiver’s right to require CNH Canada to repurchase parts inventory acquired from CNH Canada or its predecessors, notwithstanding that these parts were shipped direct to Wheatland by third party suppliers at the request of CNH Capital. direct ship transaction occurred when Wheatland ordered part from Case or New Holland, and Case or New Holland passed on the order to third party supplier, instructing the supplier to direct ship to Wheatland. The third party supplier would bill Case or New Holland; Case or New Holland would bill Wheatland; Wheatland would pay Case or New Holland. The only link between Wheatland and the third party supplier was that the supplier would deliver the product directly to Wheatland rather than first delivering it to Case or New Holland for shipment to Wheatland. Orders placed by Wheatland in respect of which direct shipment was contemplated were identified by code number on the requisition form submitted to CNH by Wheatland. Wheatland had no control over whether any particular product was to be supplied directly by Case, New Holland or CNH Canada, or by third party supplier. However, because of the use of the direct ship code number on the orders, Wheatland was presumably aware when it placed orders, that certain items were going to be direct shipped to Wheatland by third party suppliers. Pursuant to explicit provisions in the respective dealership agreements, CNH Canada was not obligated to restock direct ship parts inventory. [23] The matter does not end there, however. The contractual right of CNH Canada to refuse to restock direct ship inventory (and the corporate policy of CNH Canada to refuse to restock direct ship inventory) is subject to the provisions of s. 50 of the AIA. Section 50 provides in part: (2) Within 90 days after the day an agreement expires or is terminated by the dealer or the supplier for any reason, dealer may give to the supplier written notice to purchase containing request by the dealer that the supplier purchase: (a) all unused implements, unused parts, signs, computer hardware and computer software obtained from or required by the supplier; and (b) any special tools and service manuals obtained from or required by the supplier. (3) If notice to purchase is given to the supplier in accordance with subsection (2), the supplier shall, subject to this Act and the regulations, purchase from the dealer: (a) all unused implements obtained by the dealer from the supplier; (b) all unused parts purchased as parts by the dealer from the supplier; (c) all signs carrying the supplier’s current logo obtained from or required by the supplier within five years before the expiration or termination of the agreement; (d) all computer hardware that: (i) was purchased from the supplier or required by the supplier within two years before the expiration or termination of the agreement; and (ii) was used exclusively to do business with the supplier; (e) all computer software that: (i) was created and owned by the supplier; (ii) was sold directly to the dealer within two years before the expiration or termination of the agreement; and (iii) was used exclusively to do business with the supplier; (f) all service manuals that the dealer was required to purchase from the supplier within the two years before the expiration or termination of the agreement; and (g) all special tools that the supplier required the dealer to purchase within the two years before the expiration or termination of the agreement and that are used exclusively for servicing the supplier’s products. (14) supplier is not required to purchase any of the following: (a) an unused part that is not clearly identified by its part number; (b) an unused part that: (i) is not listed in the supplier’s current price list; and (ii) is for use in an implement that was manufactured more than 10 years before the expiry or termination of the agreement; (c) an unused part specially ordered by the dealer from the supplier on the understanding that the part was not returnable by the dealer; (d) unused implements, unused parts, signs, computer hardware, computer software, service manuals and special tools that are subject to lien, charge, encumbrance or mortgage in favour of third party in an amount in excess of the amount that the supplier would be required to pay to the dealer pursuant to this section; (e) unused implements, unused parts, signs, computer hardware, computer software, service manuals and special tools that have not been adequately prepared for shipment in accordance with clause (18)(b) within the 91‑day period mentioned in subclause (16)(b)(i) or in any extension of that period granted pursuant to subsection (10). (22) This section applies to supplier and dealer notwithstanding any provision to the contrary in an agreement or any other contract or arrangement between the supplier and the dealer, and, if provision of the agreement is more advantageous to the dealer than the provision of this section pertaining to the same subject‑matter, the more advantageous provision of the agreement applies. Also relevant is s. 25(d) of The Agricultural Implements Regulations, 1982, R.R.S. A‑10 Reg 1, which provides: 25 In section 50 of the Act and in these regulations: ... (d) “supplier’s current price list” means the latest comprehensive price list or lists of the supplier that includes all parts that may be ordered by dealer from the supplier including parts that are ordered from the supplier that are shipped directly to the dealer from third party; [24] The issue arises pursuant to s. 50(14)(c). While it is obvious that direct ship parts are contractually excluded but the question is whether the direct shipped parts in this case were “specially ordered” by Wheatland as stipulated in ss. 50(14)(c). The direct ship parts in issue consist of very ordinary articles such as nuts and bolts, washers, O‑rings, seals, gaskets and bearings. [25] It is not in dispute that the value for restocking purposes of the direct ship parts that the Receiver sought to return that CNH Canada refused to accept is $107,783.85. However, the Receiver’s claim is adjusted to $88,724.59 because, by agreement between CNH Canada and the Receiver, the direct ship items were sold at auction, yielding net sale proceeds to the Receiver of $19,059.26. The Receiver’s net claim, therefore, against CNH Canada and CNH Capital with respect to the restocking of direct ship parts is $88,724.59. [26] The contractual provisions clearly entitle CNH Capital to refuse to restock direct ship parts. However, ss. 50(2) and (3) serve to override the contrary contractual provisions in certain circumstances. Subsection 50(14) describes situations in which supplier is not required to repurchase. In accordance with s. 50(14)(c), the supplier’s obligation to repurchase does not extend to unused parts “specially ordered” by the dealer from the supplier on the understanding that the part was not returnable by the dealer. [27] The Receiver contends that for parts to be “specially ordered”, they must be unique or “one‑off” items. CNH Canada contends that the word “specially” as used in s.50(14) does not mean “special”, only “different”, and what is different in this case is that CNH Canada and Wheatland had mutual understanding that parts specially ordered would not be returnable. As previously indicated, there is no basis to contend that the kinds of articles involved were in any way unique. Indeed, they were commonplace articles of personal property required by a farm machinery dealer for its use and for use by its retail customers. The employment of the direct ship inventory model was supposedly for the mutual benefit of CNH Canada and Wheatland. Obviously, it would be way to supply parts inventory more quickly. Probably the shipping costs were lower than if the respective third party suppliers shipped to CNH. There was nothing special about the product, about the dealer’s use of it, about the customer’s use of it or about the ability of Wheatland or any other dealer to sell the product to retail customers in the normal course of business. The single identifiable element to distinguish direct ship parts from parts shipped by CNH Canada is the mode of delivery. [28] Counsel for TD cites the decision of R. v. T. Eaton Co. Ltd. (1973), 1973 CanLII 1505 (MB QB), 14 C.C.C. (2d) 124 (Man. Q.B.), wherein Wilson J. offers comment on the meaning of the words “special” and “specially”, at page 127: The word “special”, or phrases incorporating that word or its adverbial derivative “specially”, is not without meaning. For the lawyer, one thinks perhaps of “special damages”, “special agent”, or “special jury”, and no doubt there are other phrases of less technical significance, say “special leave”, or “special circumstances”. These last bring us closer to the every‑day meaning imported by the word “special”, namely, something out of the ordinary, thing exceptional, designed for particular purpose, occasion, or person. So that, in reading the phrase “specially priced”, one is entitled to expect that the amount asked represents exceptional value. It appears that the contractual arrangements were intended to enable CNH Canada to opt out of its AIA obligations to repurchase inventory from a terminated dealer (ss. 50(22)). The AIA does not permit or accommodate such opting out. As well, the provisions of s. 50 appear to be designed to protect the supplier as well as the dealer. To be eligible for return, part must be unused; it must be clearly identified by part number; it must be listed in the supplier’s current price list; it must be for use in an implement that was manufactured not more than 10 years before the termination of the agreement. In addition, the supplier is entitled to discount the invoice price, supposedly to compensate for restocking. [29] I am not persuaded that the parts in issue in this case were specially ordered. On that account, the second issue is resolved in favour of the Receiver. [30] The Receiver, PwC is entitled to its costs of this motion, one set of costs against CNH Canada and CNH Capital together. TD, although represented before me, is not separate party to the application, notwithstanding that the application is within the procedural framework of its action against Wheatland. Therefore TD is not entitled to costs.","In 1999 the plaintiff Bank granted the defendant, Wheatland, a credit facility of $500,000 plus an additional $20,000 in Visa Credit, all financed by means of a general security agreement pledging Wheatland's present and after acquired personal property with personal guarantees from two individuals. In April 1999 the Bank registered its security interest with the Personal Property Registry (PPR). Wheatland carried on business as a farm equipment dealer. Wheatland entered into dealership agreements with equipment suppliers (CNH). The Bank entered into a priority agreement whereby the Bank postponed its interest in favour of CNH. The issue in the present application is the Bank's priority with respect to credits for returned parts. The issues require an interpretation of the respective priority agreements between the Bank and the CNH companies. HELD: 1) The critical issue is the distinction between inventory and credits paid for by Wheatland and inventory and credits financed by CNH that Wheatland has not paid for. The objective of the contracting parties when they entered the priority agreement was that the CNH security would have priority over the Bank security as to Wheatland inventory supplied by the suppliers but not paid for by Wheatland or returned for credit. But once the supplied inventory was paid for by Wheatland, the Bank's general security on Wheatland's present and after acquired property would prevail.  2) The second issue only arises as the result of the first issue. It relates to the Receiver's right to require CNH Canada to repurchase parts inventory acquired from CNH Canada or its predecessors, notwithstanding that these parts were shipped direct to Wheatland by third party suppliers at the request of CNH. The issue arises pursuant to s. 50(14)(c) of The Agricultural Implements Act (AIA). While it is obvious that the direct ship parts are contractually excluded, the question is whether the direct shipped parts in this case were 'specially ordered' by Wheatland as stipulated in s. 50(14)(c) of the Act. The direct ship parts at issue consist of very ordinary articles such as nuts and bolts, washers, O-rings, seals, gaskets and bearings. The contractual provisions entitle CNH to refuse to restock direct ship parts. However s. 50(2) and s. 50(3) override the contrary contractual provisions in certain circumstances. It appears that the contractual arrangements were intended to enable CNH to opt out of its AIA obligations to repurchase inventory from a terminated dealer. The AIA does not permit or accommodate such opting out. The provisions of s. 50 appear to be designed to protect the supplier as well as the dealer. The Court is not persuaded that the parts in this case were in any way unique or specially ordered. They were commonplace articles of personal property required by a farm machinery dealer for its use and for use by its retail customers.",2_2009skqb516.txt
123,"1999 SKQB 276 Q.B. A.D. 1998 No. 549 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GLEN CAUDLE and LOUISVILLE SALES SERVICE INC. and MERLIN MOTORS INC. DEFENDANTS R. P. Piché for the plaintiff C. A. Sloan for the defendants FIAT LAING J. December 30, 1999 [1] The plaintiff applies for summary judgment in his claim for dismissal without just cause brought pursuant to the simplified procedure outlined in Part Forty of the Rules of Court. The defendant opposes the application and requests summary trial. [2] Rule 488 sets out the test for summary judgment. 488 On an application for summary judgment the presiding judge shall grant judgment unless, (a) the judge is unable to decide the issues in the action in the absence of cross-examination; or (b) it would be otherwise unjust to decide the issues on the motion, whereupon the judge shall order summary trial, or the trial of specified issue or issues. [3] The foregoing rule, by its use of the words “... shall grant judgment unless ...” requires the presiding judge to grant judgment except in those circumstances outlined in s. 488(a) and (b). As noted in Kostuchuk v. Bombardier Credit Ltd., 1994 CanLII 3870 (SK CA), [1994] 10 W.W.R. 257 (Sask. C.A.) per Cameron J.A. at p. 271-72, and Royal Bank of Canada v. Melnick, 1995 CanLII 6093 (SK QB), [1996] W.W.R. 752 (Sask. Q.B.) per Klebuc J. at p. 757-59 with respect to granting judgment pursuant to the summary judgment Rules, the basic question is whether there is genuine need for the trial of an action. In the context of Rule 488, there will only be such need where the judge concludes upon the material filed in the motion that s. 488(a) and/or (b) are applicable, which sections simply identify why there may be need for trial. As with the summary judgment rules, the defendant bears the burden of demonstrating there is genuine need for trial. (Kostuchuk v. Bombardier Credit Ltd., supra per Cameron J.A. at p. 273) [4] It follows from the foregoing that the test is not whether there is contradictory evidence in the affidavit material filed, but rather, whether despite the contradictory evidence, the issue(s) can be decided in the absence of cross-examination and it would not otherwise be unjust to do so. One way that contradictory evidence can be decided in the absence of cross-examination, is where for the purposes of the application the Court accepts the defendant’s evidence wherever it conflicts with that of the plaintiff and still concludes the plaintiff is entitled to judgment. The analogy is the law related to the striking of pleading for disclosing no reasonable cause of action or defence (Rule 173(a)) where the Court must assume any allegation of fact to be true. If the Court can assume the defendant’s evidence is true and still grant summary judgment, there is no genuine need for trial. Such is the case in this matter. [5] The plaintiff commenced employment with the defendant’s predecessor, Merlin Motors Ltd., on February 18, 1991 as bodyshop foreman after working in the bodyshop industry for various employers over the previous ten years. At some point in his employment, the date of which is not in evidence, he also acquired the title of assistant manager of the bodyshop. On January 1, 1997, the defendant, Louisville Sales Service Inc. purchased the bodyshop business from Merlin as result of an internal corporate reorganization. Employees were advised that all employee benefits offered by Merlin would be continued, and there is no issue that the plaintiff’s employment for the purposes of his claim is continuous from February 18, 1991. There is no suggestion by the employer in the affidavit material filed by it that there were any problems with the plaintiff’s performance prior to May, 1997. [6] In early May, 1997, Cecil Dust, the bodyshop manager, became ill and was off work large portion of the time up until the plaintiff’s notice of termination dated July 30, 1997. The work load of Mr. Dust fell to the plaintiff in addition to his duties as bodyshop foreman and assistant manager. It was his performance in this period between early May and July 30, 1997 which resulted in his termination. [7] The defendant’s evidence in support of the plaintiff’s termination for just cause is an affidavit by Debbie Anderson who, in 1997, was the office manager for the defendant and more recently is the quality manager. The relevant paragraphs in her affidavit are as follows: 5. Beginning in approximately early May of 1997, Cecil Dust, the Bodyshop Foreman, became ill and was off work for large portion of the time for the next three months undergoing medical treatment. Most of Cecil Dust’s duties were taken over by Glen Caudle, and assisted with some of the work assignments. 6. It was during the time of Mr. Dust’s illness, that Glen Caudle became extremely difficult to work with. Glen Caudle would repeatedly complain about having to undertake Mr. Dust’s duties in his absence, and yet also complain that was taking too much authority by making work assignments in the shop. 7. Glen Caudle would complain about Mr. Dust to myself and other junior employees and say that Mr. Dust should be reprimanded for his absences and work performance. 8. Glen Caudle criticized Mr. Dust and Louisville in front of customers on at least four or five occasions in my presence. On one particular occasion, customer, Ray Conner, brought in vehicle for repairs. Cecil Dust had earlier advised Mr. Conner that it would take approximately ten days to repair the vehicle. Mr. Dust was not in when Mr. Conner brought the vehicle in to the shop. When Mr. Conner asked about the ten days to repair, Glen Caudle responded “oh sure, he’s (Cecil Dust) going to make me be the heavy and tell you it can’t be done. There’s no way we can have it done in ten days. I’ve got to do everything around here.” 9. During the period of Mr. Dust’s illness, Louisville had Quality Manager by the name of Corey Rissling. When Corey Rissling would ask questions of Glen Caudle, Glen Caudle would simply ignore him and walk away without saying anything. Glen Caudle told me several times that he thought that Louisville paid Corey too much when he did not know his job. 10. In approximately mid July, 1997, during work hours, noticed Glen Caudle pull his personal vehicle into the shop’s car wash, and that Deven Amendt was cleaning the vehicle. When asked him what he was doing, Deven responded, “I’m just doing what I’m told.” 11. few days after Deven Amendt cleaned Glen Caudle’s vehicle, Gary Bews, the President of Merlin Motors Inc., stopped by my office and asked how things were going. responded that they were not good, and thereafter, met with Gary Bews and Reid Bews to discussed [sic] the atmosphere in the shop and Glen Caudle’s behaviour towards Cecil Dust, the junior employees, and the customers. We discussed the incidents have referred to above, and at the time, prepared handwritten summary of Glen Caudle’s behaviour which summary is attached hereto and marked as Exhibit “A”. [8] Exhibit “A” referred to in paragraph 11 states as follows: Ray Conner cutting down Cecils time frame to customer talking to guys in back how mad he is that Cecil’s gone on holidays he thinks he shouldn’t of [sic] taken any telling customers that he is doing everything around here telling the guys how mad he is for me giving out jobs making Deven clean dog poop out of his personal vehicle on company time telling Deven how he wants to repremand [sic] Cecil not being cooperative with Corey i.e. if he asks question he just walks out the door without saying anything telling guys out back he doesn’t like Corey. getting mad because Cecil wanted to hire Lorne but Glen didn’t want him so Cecil didn’t, Glen said he should hire someone without any bodyshop knowledge and when Cecil does that complain that Corey doesn’t know anything. [9] The defendant also filed an affidavit by Leon Lohman who is the paint foreman for the defendant. The operative portions of his affidavit are: 2. As Paint Foreman, work closely with the technicians in the Bodyshop. was informed by various employees in the Bodyshop, and verily believe the same to be true, that Glen Caudle was not well liked by the employees in the Bodyshop, particularly those in the shop itself. also believe this from my own observations of Mr. Caudle’s interactions with the staff. This situation worsened significantly during the time when Cecil Dust was away from the Shop due to illness beginning in approximately May of 1997. 3. Beginning in approximately May of 1997, noticed that Glen Caudle’s attitude deteriorated and he became quite negative about his job and Louisville. [10] third affidavit of Deven Amendt, the car washer at the time, was filed by the defendant. In paragraphs and of this affidavit he states: 3. In approximately mid July, 1997, during work hours, Glen Caudle requested that clean his personal vehicle as it was soiled with dog feces. cleaned his vehicle as requested. 4. recall that after cleaning Mr. Caudle’s vehicle, Debbie Anderson, the then office manager, asked what was doing, and responded, “I’m just doing what I’m told.” [11] The final affidavit filed by the defendant is that of Reid Bews, president of the defendant, who received all of the information on which he based his decision to terminate Mr. Caudle from Ms. Anderson. He states in part in paragraph of his affidavit: 2. In or about mid July, 1997, met with Debbie Anderson, Louisville’s Quality Manager. At that time, Ms. Anderson expressed to me her concerns respecting Glen Caudle, and the effect of his then recent behaviour on the morale of the staff in the Bodyshop and customers. It will be noted from the foregoing that Mr. Bews refers to “recent” behaviour, and makes reference to that behaviour only with respect to its effect on “... the morale of the staff in the Bodyshop and customers.” [12] At paragraphs to 10 Mr. Bews states as follows: 8. Shortly after my conversation with Ms. Anderson, met with Cecil Dust. This meeting took place few days after my conversation with Ms. Anderson as Mr. Dust was away from work. 9. During this meeting, explained to Mr. Dust my conversation with Ms. Anderson and that my inclination was to terminate Mr. Caudle’s employment as Louisville could not retain Bodyshop Foreman who was critical of the Bodyshop Manager and Louisville to both staff and customers. explained to Mr. Dust that believed Mr. Caudle’s behaviour was detrimental to the company’s interests both in terms of employee and customer relations. did not wish to terminate Mr. Caudle’s employment without first obtained [sic] Mr. Dust’s input. 10. At the conclusion of our meeting, both Mr. Dust and agreed, that Mr. Caudle’s employment should be terminated as he was harming both the staff and customers at Louisville. As result of Mr. Caudle’s behaviour, had lost confidence and trust in him. [13] On July 30, 1997, Mr. Bews met with the plaintiff in his office at which time he had written notice of termination dated July 30, 1997 prepared. In paragraphs 11 and 12 he states: 11. On July 30, 1997, met with Mr. Caudle in my office at Louisville. No one else was present at this meeting. explained to Mr. Caudle my concerns respecting his behaviour as they had been related to me by Ms. Anderson and Mr. Dust, and gave Mr. Caudle an opportunity to respond. Mr. Caudle did not deny any of the incidents, and admitted that he had told others at Louisville that he wanted Mr. Dust reprimanded for his absences. 12. At the conclusion of our meeting, and in light of the fact that Mr. Caudle had no dispute with any of the concerns that expressed to him, offered him the opportunity to resign which he refused. Mr. Bews then handed the plaintiff notice of termination effective six weeks hence. He stated he concluded it would be easier for Mr. Caudle to find new employment while still employed. Mr. Caudle was granted time off work with full pay until September 11, 1997. [14] It should be stated that the plaintiff does not agree with Mr. Bews’ description of the meeting or what was said by him during the meeting, but will not review the same because for the purposes of this application am assuming everything that Mr. Bews states is correct. [15] The position of the defendant is that the plaintiff’s behaviour as reported after the fact by Debbie Anderson, amounted to inexcusable serious misconduct which justified it in terminating the plaintiff’s employment without resort to any warning or any form of progressive discipline. The position of the plaintiff is that if everything the defendant states is accepted, those facts do not individually or collectively amount to serious misconduct, and did not cause any actual prejudice to the employer’s interests. [16] As has been noted in numerous decisions, whether an employer is justified in summarily dismissing an employee, is ultimately question of fact. Previous case law can be helpful when the facts in the previous case bear some resemblance to the facts in the case under consideration, but general statements of the law from cases where the facts bear no resemblance to the facts under consideration are of little or no assistance. It is for this reason that text writers on the law of dismissal categorize types of misconduct and thereafter review case law within that category. D. Harris, Wrongful Dismissal, looseleaf ed., 1999 Release (Toronto: Carswell), categorizes the misconduct alleged by the defendant in this case, at para. 3.23, as “Personality Conflict and Attitudinal Problems”. [17] As to what may constitute just cause in any particular fact situation, accept the definition of Saunders J. in Leung v. Doppler Industries Inc. (1995), 1995 CanLII 2530 (BC SC), 10 C.C.E.L. (2d) 147 (B.C. S.C.), aff’d (1997) 1997 CanLII 3435 (BC CA), 27 C.C.E.L. (2d) 285 (B.C. C.A.), which Harris, supra, at p. 3-54 describes as definition in practical and functional terms. At p. 152 Saunders J. stated: Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the result that the employment relationship is too fractured to expect the employer to provide second chance. [18] In this case, assuming all of the defendant’s evidence is true, have to agree with counsel for the plaintiff who characterized the plaintiff’s conduct as “griping”, whether it related to Mr. Dust’s absences, Mr. Dust’s estimates of time to perform work on Mr. Conner’s vehicle, or his comments on Mr. Rissling’s lack of knowledge. The one incident that does not relate to griping; namely, requesting the car washer, whose job it is to clean vehicles, to also clean his on company time, as an isolated incident, has to be regarded as minor infraction. There is no suggestion in the evidence that the car washer objected to doing so or lacked the time to do so. [19] The plaintiff’s griping occurred after it fell to him to perform the duties of the bodyshop manager in addition to his own duties as bodyshop foreman and assistant manager. There is no suggestion in the material that the plaintiff was asked if he was prepared to assume both jobs, or if he felt qualified to do so. One does not have to be psychologist to infer that performing both duties placed additional stress on the plaintiff which he had not previously been exposed to. His unblemished record for the previous six years confirms this. The plaintiff’s vocal complaining of the matters referred to during the course of attempting to perform both functions indicates he was not necessarily prepared for the role which was thrust upon him. So in the end result, the plaintiff was not terminated because of poor job performance in performing his contractual duties as bodyshop foreman and assistant manager, but because of his alleged poor performance in doing the job normally assigned to two persons. [20] The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment, and certainly not to clients or customers of the employer. However, griping is not exactly unusual in a work place, and the type of conduct alleged against the plaintiff would not justify dismissal the first time it came to the employer’s attention, if he had been guilty of such conduct while performing only his own job function. In my brief review of the case law, it seems uniform that one or more warnings to an employee must be given before it can be said such activity “fractures” the employment relationship. Where dismissal does result after one or more warnings, the category of misconduct can be said to change from one of poor attitude to one of disobedience or insubordination. [21] In this case the alleged misconduct of the plaintiff would have justified him being warned to not continue such conduct, but it falls far short of conduct justifying cause for termination. The plaintiff is entitled to enter judgment for the damages which flow from this dismissal without just cause as set out hereafter. THE PERIOD OF REASONABLE NOTICE [22] As noted above, the plaintiff did receive six weeks’ notice of his termination or pay in lieu thereof (it is not altogether clear whether he worked at all during this period). The defendant did not seriously argue, despite its pleading to this effect, that six weeks’ notice is adequate for person terminated from junior managerial position after period of six and one-half years of employment. There is no issue of lack of mitigation on the part of the plaintiff as he did accept job with another autobody shop effect November 1, 1997 at much lower rate of pay. [23] At the time of his dismissal, the plaintiff was 35 years old and earned approximately $55,000 per annum in his previous year of employment made up of salary and bonuses paid on percentage of the profit earned in the bodyshop. In this fiat I intend to set only the amount of notice the plaintiff was entitled to, and leave it to the parties to work out the damages the plaintiff is entitled to for the notice period based on his income and value of benefits for the previous 12-month period, less the six weeks’ pay he received, and less the wages and the value of the benefits he has received in his new employment during the notice period. If the parties are not able to agree, reserve jurisdiction to have the matter brought back before me for further evidence and decision. [24] The remarks of McRuer, C.J.H.C. in Bardal v. The Globe and Mail Ltd., 1960 CanLII 294 (ON SC), [1960] 24 D.L.R. (2nd) 140 (Ont. H.C.) at p. 145, are generally accepted as itemizing most, if not all of the considerations to be taken into account in any one case when determining an appropriate notice period for an employee. McRuer, C.J.H.C. stated: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. [25] In the case of a person in the plaintiff’s position, who occupied a junior managerial position in a very specific industry, the notice period selected should reflect that management positions are fewer in number than non-management positions, and that there is a considerable wage difference between a management position and a non-management one. [26] In this case the plaintiff was able to obtain employment within approximately two and one-half months of the end of the notice period given to him by the employer at wage considerably below what he had earned with the defendant. The evidence establishes the plaintiff applied to numerous autobody businesses prior to accepting the employment he did and was not successful in obtaining an equivalent position at an equivalent salary. Plaintiff’s counsel put forward a realistic assessment of an appropriate notice period of seven months. Taking all factors into account, I consider this is an appropriate notice period to which the plaintiff was entitled. [27] The plaintiff’s damages are to be calculated in the manner set out in the foregoing. [28] The plaintiff is entitled to taxable costs.","FIAT. The plaintiff applied for summary judgment in his claim for dismissal without just cause. The plaintiff was initially hired as body shop foreman but additionally acquired the title of assistant manager. When the body shop manager became ill that work load also fell to the plaintiff. It was during this period that the performance of the plaintiff, described by the defendant as serious misconduct, resulted in his termination. There was no issue of a lack of mitigation as the plaintiff accepted a job with another autobody shop but at a much lower rate of pay. The action was brought pursuant to the simplified procedure outlined in Part 40 of the Rules of Court. HELD: Damages were to be calculated by the parties for the 7 month notice period based on his income and value of benefits over the previous year, less the 6 weeks pay received, and less wages and benefits received from his new employment. Jurisdiction was reserved to hear further evidence should the parties not reach agreement. 1)By using the words 'shall grant judgment unless', Rule 488 requires the presiding judge to grant judgment except in the circumstances outlined in s.488(a)and(b). The test is not whether there is contradictory evidence in the affidavits but whether despite the contradictory evidence the issue(s) can be decided in the absence of cross-examination and it would be otherwise unjust to do so. If the court can assume the defendant's evidence is true and still grant summary judgment there is no genuine need for a trial. 2)As noted in numerous decisions, whether an employer is justified in summarily dismissing an employee is ultimately a question of fact. The plaintiff was not terminated because of poor job performance in performing his contractual duties as foreman and manager but because of his alleged poor performance in doing the job normally assigned to two persons. The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment and certainly not to clients or customers of the employer. The type of conduct here would not justify dismissal the first time it came to the employer's attention if the employee had been guilty of such conduct while performing only his own job function. 'Griping' is not uncommon in the workplace. The case law seems uniform that one or more warnings to an employee must be given before it can be said such activity 'fractures the employment relationship'. The category of misconduct can be said to change from poor attitude to disobedience or insubordination where dismissal results after one or more warnings. 3)The plaintiff was entitled to 7 months notice to reflect the fact that junior management positions are fewer in number and the considerable wage difference between management and non- management positions.  4)The plaintiff was entitled to taxable costs.",d_1999skqb276.txt
124,"QB 1997 NO. 471000309 J.C. M.J. IN THE COURT OF QUEEN’S BENCH FAMILY LAW DIVISION JUDICIAL CENTRE OF MOOSE JAW BETWEEN: MILDRED BEATRICE OLSON vs- VERA MILDRED WILLETS RESPONDENT D. ANSELL for the applicant B.R. CRAIK for the respondent JUDGMENT MacLEAN, J. September 15, 1997 The applicant seeks an order pursuant to s. 130 of The Land titles Act S.S. c. L-5 and s. 56 of The Enforcement of Maintenance Orders Act (EMOA)S.S. c. E-9.2 for an Order relieving the LORNE EDWARD WILLITS Estate (the deceased) from payment of maintenance order by Johnson J.(as he then was) on November 28, 1972. Section 130 of the Land Titles Act in part reads as follows: 130 For the purposes of this section, “claimant”, “maintenance order” and “respondent” have the same meanings as ascribed to them In The Enforcement of Maintenance Orders Act. (2) When maintenance order is filed pursuant to s. 33(1) of The Enforcement of Maintenance Orders Act, no certificate of title is to be granted and no transfer, mortgage, lease or other instrument executed by the respondent is to be effectual, except subject to the rights of the claimant. (3) The registrar, on granting certificate of the title and on registering any transfer, mortgage or other instrument executed by the respondent affecting such land, shall be memorandum upon the certificate of title state that the certificate, transfer, mortgage or other instrument is subject to such rights. (4) maintenance order may be discharged by filing in the Land Titles Office in which the maintenance order is filed. (a) not relevant (b) the judgment or order of the court setting aside the maintenance order or certificate of local registrar of the court, under seal of the court, that the maintenance order has been discharged or set aside. Section 56 of the EMOA in part reads: Section 56 where moneys are recoverable pursuant to s. 55, judge of the court in which the maintenance order was made or registered may, on the application of any interested party, relieve the respondent or, if the respondent has died, the estate of the respondent of the obligation to pay, in whole or in part, the amount in default if the judge is satisfied that: (a) having regard to the interests of the respondent or the estate of the respondent, as the case may be, it would be grossly unfair and inequitable not to do so; (b) having regard to the interests of the person in whose favour the maintenance order was made or his estate, as the case may be, it is justified; Mildred Beatrice Olson purports to bring this application on behalf of Lorne Edward Willits Estate, even though she is nether the executrix named in the Will nor a beneficiary. The Will has not been admitted to Probate. The respondent objects to the application being brought on behalf of the estate. She contends the applicant has no standing. Counsel concedes, however, that Ms. Olsen is an “interested party” within the meaning of sec.56 of the EMOA and entitled to bring this application on her own behalf. The motion is signed by Ms. Ansell as solicitor for the applicant Mildred Beatrice Olson. The respondent is not mislead and has not been prejudice. There will be an order amending the Style of Cause to show Ms. Olson as applicant and to amend the motion so that it is Ms. Olson seeking relief. On November 28, 1972 the respondent Vera Mildred Willits was granted decree of Divorce from the deceased. The decree gave her custody of their two children who were then 10 and and child support of $60.00 per month. It also awarded spousal support of $40.00 per month, lump sum of $500.00 and her costs. The lump sum and costs were paid as result of garnishee proceedings. No further payments were ever made despite periodic requests for payment by the respondent. In 1978 the deceased began cohabiting with the applicant in her home at 1001 Hastings Street, Moose Jaw, Saskatchewan. In about November 1980 the applicant transferred her home to the deceased and herself as joint tenants. At about the same time the deceased transferred his two and one-half quarter sections of farm land to the applicant. The then value of the land according to copies of titles which have been filed was $33,000.00. The respondent claims the land is presently worth between $80,000.00 and $160,000.00. Upon the deceased death, which occurred on August 18, 1994, the applicant as surviving joint Tennant obtain title to the Hastings Street property. According to the title it was then worth $16,000.00. During her marriage and following the divorce the respondent resided in the matrimonial home at Mossbank, Saskatchewan. There is no evidence who owned the home or when the respondent vacated the property or what became of it. The applicant suggests there may have been an agreement between the deceased and the respondent whereby the respondent lived in the matrimonial home rent free in lieu of support. The respondent denies such an agreement. The respondent received Welfare to support herself and the children until 1981. During these years she had no funds with which to hire lawyer to enforce the support payments which were due to her. In about 1981 she learned the deceased had transferred his farm land to the applicant but did nothing then or later to enforce her Maintenance Order against the land. The applicant asserts she paid overdue mortgage installments to Farm Credit Corporation although she does not state the amount of the arrears. She also claims to have paid off $4,000.00 execution and $9,575.00 taxes and arrears of taxes. II In the circumstances s.130 of the Land Titles Act is of no assistance to the applicant. This application fails to be determined upon s.56 of the EMOA. The question for resolution in whether it would in the words of the section be “grossly unfair and inequitable” from the applicants perspective to refuse the application and whether such an order can be “justified” in so far as the respondent is concerned. See: Kent vs Kent (1985) 1985 CanLII 3120 (MB CA), 44 R.F.L. (2d) 263 (Man. C.A.) The maintenance order constitutes a charge upon the land and the applicant obtained title to the land subject to that charge. See: Briggs vs Carson (1924) 1924 CanLII 133 (SK CA), 3W.W.R. 465 (Sask.C.A.) The applicant has presented no evidence of the circumstances surrounding the transfer of the land to her. There is no evidence of any consideration being paid nor is there evidence of what became of the income generated by the land prior to the deceased’s death. In Flamand vs Flamand (1987) 1987 CanLII 7121 (MB CA), R.F.L. (3d) 51 the Manitoba Court of Appeal considered s. 61(4) of the Manitoba Family Maintenance Act which is similar to s. 56 of our Act. At pp 52-53 O’Sullivan J.A. noted: These arrears must now be considered as vested debt owning by husband to wife subject to being divested only on its being shown that it would be “grossly unfair and inequitable not to do so” and also that such divestment is justified having regard to the interests of the wife. It is up to party seeking to deprive wife of these payments to establish on balance of probabilities the conditions set out in s. 31.3(4) (now s. 61 4) of the Act. cannot determine on the basis of the affidavit evidence what if any portion of the arrears should remain as charge upon the lands. Some of the evidence conflicts. There is no evidence of the circumstances surrounding the transfer from the deceased to the applicant. The court should hear evidence viva voce. order the trial of an issue. The respondent will assert her right to recover arrears of maintenance pursuant to the order of November 29,1972. The applicant will defend the action and assert her right to discharge of the order pursuant to s. 56 of the EMOA. The costs of this application will be determine, by the trial judge.",The applicant sought an order pursuant to s.130 of the Land Titles Act and s.56 of the Enforcement of Maintenance Orders Act for an order relieving the estate from payment of maintenance ordered in 1972. The respondent objected to the application being brought on behalf of the estate as Olson was neither executrix nor a beneficiary under the Will. The Will had not been admitted to probate. The respondent had divorced testator in 1972 and was granted child support of $60 per month and monthly spousal support of $40. The applicant who cohabited with the deceased since 1978 transferred her home to him in 1980 as joint tenants and he transferred his two and one-half quarter sections of farm land to the applicant. The applicant suggested there was an agreement whereby the respondent lived rent free in the matrimonial home in lieu of support. The respondent received welfare to support herself and the children and had had no funds to pursue enforcement of the unpaid support payments. HELD: 1)The style of cause was amended to show Olson as applicant. She was an interested party within the meaning of s.56 of the EMOA and entitled to bring the application on her own behalf. The respondent was not misled and there was no prejudice. 2)The Land Titles Act was of no assistance to the applicant. The application was to be determined upon s.56 of the EMOA and whether it would be grossly unfair and inequitable to refuse the application. 3)The maintenance order constitutes a charge upon the land and the applicant obtained title to the land subject to that charge. There was no evidence presented either of consideration being paid nor of what became of the income generated by the land prior to the deceased's death.  4)A trial of an issue was ordered to determine what if any portion of the arrears should remain a charge upon the lands. Some of the evidence conflicted. Viva voce evidence should be heard.,1997canlii9636.txt
125,"J.C. Y. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: JAMES RYAN SAVENKOFF APPLICANT (PETITIONER) and KATHRYN JOAN MACKAY RESPONDENT Patrick R. Koskie for the applicant David K. Rusnak for the respondent FIAT GUNN J. September 25, 1995 James Savenkoff (the ""applicant"") applies for anorder varying the support provisions of a judgment granted byLane J. of the Supreme Court of Ontario, on February 27, 1989,and seeks an order requiring a total payment of $570.75 permonth for both children. Kathryn Joan MacKay (the ""respondent"") opposes the application. He also seeks an order expunging any arrears. The relevant terms of the divorce judgment are as 1. THIS COURT ORDERS AND ADJUDGES that the respondent wife shall have custody of the children of the marriage, namely, Ryan Douglas Savenkoff born October 4, 1981, and Brett James Savenkoff born April 4, 1983. 3. THIS COURT ORDERS AND ADJUDGES that (a) The petitioner husband shall pay to the respondent wife for her support and for the support of the two infant children the sum of $1,200.00 per month payable to the Support and Custody Order Enforcement Office. (b) The respondent wife shall no longer be entitled to the petitioner husband's support upon the respondent wife obtaining full time employment or January 1, 1990, whichever occurs first. Upon the happening of the first of the above events, the support payable by the husband shall be exclusively for the support of the infant children. (c) Upon the wife obtaining full time employment or January 1, 1990, whichever first occurs, the parties shall confer either personally or through their solicitors or, if agreed, through mediator to reassess the quantum of support payable. The obtaining of full time employment alone shall not automatically constitute material change in circumstances that warrants reduction in support. It shall, rather, constitute an event that shall make support reviewable based on the new financial circumstances of each child and the parties. In this regard, the parties shall co-operate fully with each other and provide such financial information as is reasonably requested from either party. In the event that agreement cannot be reached within 30 days of the commencement of negotiations either party shall be entitled to apply to this Honourable Court to determine the quantum of support. Until new determination of the quantum of support is made, the quantum of support shall not change. (d) Any monies payable by the petitioner husband to the respondent wife on account of child support will be increased on the anniversary date of the order herein and every year thereafter in accordance with Section 34(6) of The Family Law 5. THIS COURT ORDERS AND ADJUDGES that the petitioner husband shall maintain all medical, dental, drug and other health benefit plans currently available through his employment with General Motors of Canada Limited or available through such other employment as he may obtain for the benefit of the children for so long as they are entitled to his support The applicant submits an agreement was reached inAugust of 1989 in accordance with paragraph 2(c) of thejudgment reducing the maintenance from $1,200 per month to$500 per month, which amount was paid from August, 1989 up toand including August, 1993. further agreement was then made increasing the monthly maintenance commencing September 1, 1993 to $554.13 and further increasing the maintenance in January, 1994 to $570.75. The applicant says in addition to the above maintenance, he provides $50 per month directly to the children as allowance, contributes approximately $1,500 per year for hockey expenses and pays annual return air fare of approximately $2,200 in order that he may exercise access to his children. The applicant became unemployed in 1993, having accepted severance package with General Motors. Due to his father's poor health he moved to the Pelly District to assist with his parents' farming operation. He is currently helping with the farm and is working part time as the rink superintendent in the Town of Pelly earning $320 per month during the winter months. The respondent denies any agreement to reduce themaintenance from the original order. However, she does suggest there were agreements to pay additional costs which have not been honoured. She says the arrears pursuant to the judgment are nowin excess of $55,636.21. The respondent submits her expenses for the children are high as result of their desire to participate in sports activities (which include travel), the need for orthodontic treatment, and her desire to enrol one of the children in private school for gifted children. I have reviewed all of the material filed and havedetermined it will not be possible to deal with this matter in asummary way. The respondent alleges the arrears are in excess of $55,636.21 on the basis of the original order. The applicant alleges there were agreements to amend the original order as contemplated by the order and that he has complied fully with the original order and with all amendments thereto. He denies there are any arrears. This cannot be resolved on the basis of theinformation before the Court. The Court must also determine whether or not there has been change in circumstances justifying variation, and the appropriate level of maintenance at this time. I direct there be a trial of the issue: 1. To determine the quantum of the arrears, if any, pursuant to the original order or pursuant to any subsequent agreements found by the Court. 2. To determine whether there has been change in circumstances justifying variation, and if so the appropriate level of maintenance at this time. The action shall be proceeded with in accordance with The Queen's Bench Rules including the right to conduct examinations for discovery if desired and participation in pre- trial conference.","FIAT The Husband alleged that a child support order, originally in the amount of $1,200.00, had been reduced by mutual agreement to $500.00 per month in 1989 when the Wife commenced employment. He applied to vary the order to correspond to the alleged agreement. The Wife denied any agreement to reduce the original order and sought judgment for arrears in the amount of $55,000.00. HELD: On a review of all material filed, the Court concluded that it was not possible to resolve the matter summarily. The Court directed a trial of the issues between the parties.",3_1995canlii6115.txt
126,"J. Q.B. A.D. 1994 No. 2980 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: RICHARD ALLEN KLASSEN and HER MAJESTY THE QUEEN RESPONDENT Richard Klassen for himself W. Holmes for the Crown FIAT BAYNTON J. September 30, 1994 The accused applicant applies for a review of theterms of his judicial interim release. Although he has referred to his Charter rights in his application, he acknowledges that the required notice has not been given and that he is not seeking Charter remedy. He declined an adjournment to enable him to bring Charter application and with the co-operation of the Crown, copies of the record were produced and filed with the court to enable the accused's review hearing under s. 520 of the Code to proceed. The accused is charged with four counts of defamatory libel under ss. 300 and 301 of the Code. He and his counsel consented to judicial interim release order containing certain terms. The term objected to by the accused is that he ""refrain from picketing of any kind or carrying placards of any kind"". He seeks an amendment by adding thephrase ""regarding Sgt. Brian Dueck or Carol Bunko-Ruys"". These two individuals are the complainants named in the four charges. The charges arose as result of picketing by the accused while carrying placard exhibiting words that allegedly constitute defamatory libel. Presumably the picketing prohibition term of the accused's release from custody was considered necessary by the justice who made the order to address the issue of the substantial likelihood that the accused would commit criminal offence if he were not prohibited from picketing prior to his trial. In his submission, the accused indicated that he wants to be permitted to continue to picket or carry placards pending his trial. He stated that if the desiredamendment is made he will restrict his picketing to lawfulactivity. Yet he maintains that the picketing he did, which resulted in the charges on which he now has been released pending trial, was lawful. I am satisfied in the circumstances and nature ofthis case, that the picketing prohibition term imposed by thejustice with the consent of the accused, was reasonablyjustified as a condition of the release of the accused fromcustody. But for this condition the justice might well have ordered that the accused be detained in custody on the ground that there was substantial likelihood that the accused would commit criminal offence pending his trial. I am also satisfied that if the amendment isgranted as sought by the accused, there still remains asubstantial likelihood he will commit a criminal offence or aninterference with the administration of justice. have come to this conclusion on consideration of the nature of the offences with which the accused has been charged, on the circumstances surrounding the alleged commission of the offences, on the accused's stated intention to continue picketing, and on his view of what is lawful activity. Theapplication is denied and the existing order stands.",FIAT The accused was charged with four counts of defamatory libel. The alleged defamatory words were on a placard he exhibited while picketing in a public place. He was released from custody on his consent to a term that prohibited him from picketing or carrying placards pending his trial. He later applied for a review of the order and sought an amendment permitting him to picket lawfully. HELD: Application dismissed. Amendment refused. If the accused was permitted to picket there was a substantial likelihood that he would commit another offence while on bail pending his trial on the four existing charges. The justice granting the judicial interim release order was therefore correct to impose a complete prohibition on picketing.,1994canlii5055.txt
127,"The judge feels that this fiat does not warrant publication. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 35 Date: 20060126 Docket: Q.B.G. No. 574/99 Judicial Centre: Battleford BETWEEN: MARK RONALD BAERT, LISA MARIE DAWSON by her Litigation Guardian Mark Ronald Baert, JAMESON JACK BAERT by his Litigation Guardian Mark Ronald Baert and DEVIN FRANK BAERT by his Litigation Guardian Mark Ronald Baert and KENNETH GRAHAM, LLOYDMINSTER DISTRICT HEALTH BOARD, MARILYN MANN, ANN LEER, NURSE JANE DOE, STAFF SALLY ROE #1, STAFF SALLY ROE #2 and RUTH WOOD Counsel: Sandra J. Weber and David D. Risling for the plaintiffs Christine J. Glazer, Q.C. and Michelle J. Ouellette for the defendant Kenneth Graham Gary A. Zabos and Heather J. Laing for the Defendants Lloydminster District Health Board, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood FIAT KRUEGER J. January 26, 2006 [1] There are number of chamber applications brought on behalf of both the plaintiffs and the defendants. They may be summarized as follows: (A) The plaintiffs apply pursuant to Rules 222 and 232 of The Queen’s Bench Rules for:(i) An order compelling the defendant, Kenneth Graham, to respond to written interrogatories;(ii) an order permitting further oral examination for discovery of Kenneth Graham on issues arising from his responses to the written interrogatories;(iii) an order directing Kenneth Graham to provide a copy of the report of neurologist Dr. Vrbancic to counsel for the plaintiffs. Application (A)(iii) has been adjourned sine die. It and all other applications that have been adjourned are to be brought back by the parties contacting the Local Registrar and arranging for chamber date before Krueger J. (B) The plaintiffs also apply pursuant to Rules 215, 222 and 232 of The Queen’s Bench Rules for: (i) An order requiring the Lloydminster District Health Board to provide the investigations, communications, documents, information or reports claimed as privileged under s. 35.1 of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16; At the hearing this application was limited to the review conducted by Lois Sonnega and the formal review initiated by Saskatchewan Health. It too was adjourned sine die. (ii) an order compelling the said defendant Board to provide the plaintiffs with the identity of the roommate of the plaintiff, Lisa Dawson, in her hospital room on July 14, 1999, after undergoing tubal ligation surgery; Due to confidentiality requirements the Board could not provide this information without court order. During the hearing the requested order was granted. (iii) an order compelling the said defendant Board to respond to undertaking number 32 of Gayle Ann Almond, an officer of the defendant Board, during an examination for discovery of March 8, 2001. This application was withdrawn at the hearing. (C) The defendant, Kenneth Graham, applies for: (i) An order pursuant to Rule 173 of The Queen’s Bench Rules striking out para. 33(b) of the plaintiffs’ Amended Amended Statement of Claim; This application was adjourned sine die. (ii) an order pursuant to Rule 173 of The Queen’s Bench Rules that paras. 21, 31(f) and (g), 32(i) and (j) and 33(e) and (f) of the plaintiffs’ Amended Amended Statement of Claim be struck [These paras. deal with a claim for aggravated and punitive or exemplary damages.]; (iii) in the alternative, an order pursuant to Rule 164(4)of The Queen’s Bench Rules requiring the plaintiffs to provide particulars of their claim for aggravated and punitive damages as set out in the Demand for Particulars dated November 25, 2005; (iv) an order pursuant to Rule 231 of The Queen’s Bench Rules requiring the plaintiffs to respond to undertakings number 37, 42, 43, 46 and 52 given at the examination for discovery of the plaintiff, Mark Baert; (v) an order entitling the defendant, Kenneth Graham, to further examine the plaintiff, Mark Baert, on responses given to the undertakings; (vi) an order that failing the providing of responses the plaintiffs’ action be dismissed without further application. (D) The defendants, Lloydminster District Health Board, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood, apply for: (i) An order pursuant to Rule 164 of The Queen’s Bench Rules requiring the plaintiffs to provide further and better particulars of their claim as set out in the Demand for Particulars dated November 28, 2005; This is the same application as is made by Kenneth Graham pursuant to (C)(iii). (ii) an order pursuant to Rule 231 of The Queen’s Bench Rules requiring the plaintiffs to provide better responses to undertakings number 13, 14, 16, 17 and 76; For the most part these responses have been provided. (iii) an order entitling the defendant applicants to further examine the plaintiff, Mark Baert, on particulars and undertaking responses given; No longer applicable. (iv) an order that failing the providing of better particulars and responses the plaintiffs’ action is to be dismissed with costs; No longer applicable. (v) an order pursuant to Rule 173 of The Queen’s Bench Rules striking the claims of the infant plaintiffs, Jameson Jack Baert and Devin Frank Baert; This application was adjourned sine die. (vi) separate application pursuant to Rule 173 of The Queen’s Bench Rules that paras. 21, 31(f) and (g), 32(i) and (j) and 33(e) and (f) of the plaintiffs’ Amended Amended Statement of Claim be struck. These paragraphs relate to aggravated and punitive or exemplary damages and is the same application as has been made by Kenneth Graham pursuant to para. (C)(ii). FACTUAL BACKGROUND [2] The plaintiff, Lisa Dawson, underwent tubal ligation operation at the Saskatchewan Lloydminster Hospital performed by the defendant, Dr. Kenneth Graham, on July 14, 1999. She was discharged from the hospital later the same day. Early on July 16, 1999, Lisa Dawson was taken back to the Lloydminster Hospital where she underwent emergency surgery to repair two millimeter bowel perforation. During the partial bowel resection operation she suffered cardiac arrest. The second surgery was also performed by Dr. Graham. [3] Upon revival, Lisa Dawson was airlifted to the Royal Alexandra Hospital in Edmonton. Surgical procedures there included the amputation of all four of her limbs. She also suffered brain and organ damage and is currently living in long-term care facility in Saskatoon. [4] Mark Baert and Lisa Dawson, together with their two children, Jameson Jack Baert and Devin Frank Baert, are the plaintiffs in this action. They allege failure by the defendants to meet the required standard of care in conducting the laparoscopic tubal ligation surgery on the plaintiff, Lisa Dawson, and during subsequent care and treatment to repair puncture to the bowel. Their allegations of negligence or breach of duty are set out primarily in paras. 25(a) to 25(uu) of their Amended Amended Statement of Claim. In addition to claim by each plaintiff for pecuniary and non-pecuniary damages resulting from negligence and/or breach of duty, each claims aggravated damages and punitive or exemplary damages. pretrial settlement conference has been scheduled for April 28, 2006. [5] The applications shall be dealt with in the order raised herein, starting with the application by the plaintiffs relating to the defendant, Dr. Graham. Where any application has been adjourned sine die it will not be further commented on and where more than one of the defendants raised the same issues in separate applications those applications will be dealt with only once. Should Dr. Graham be compelled to provide full and complete responses to written interrogatories and, if necessary, be orally examined on his responses? [6] On May 6, 2005, counsel for the plaintiff forwarded to counsel for Dr. Graham the following interrogatory questions: 1. Since the surgery on Lisa Baert (Dawson) in July 1999, has your performance, including your skills or technique, of laparoscopic gynecological surgery been reviewed by: a. Quality of Medical Performance Committee of any College of Physicians and Surgeons? b. By some other Committee, or other method, by any College of Physicians and Surgeons? c. Any other body, such as Health Authority, for example. 2. If your performance of laparoscopic gynecological surgery has been reviewed by any of the bodies listed above, advise whether the review related to the puncture of bowel in the performance of the laparoscopic gynecological surgery? If it did relate to the puncture of bowel, advise whether you have had other occasions (excluding the case of Lisa Baert) where you have punctured bowel during the course of laparoscopic gynecological surgery. If so, provide particulars of those occasions including the patient name, type of surgery and date. 3. From any reviews that have been undertaken of your performance of laparoscopic gynecological surgeries, advise if there have been any criticisms of your performance of laparoscopic gynecological surgeries or criticism of your judgment in proceeding with surgeries. If so, provide particulars of those criticisms. 4. Confirm at what level you are qualified to perform laparoscopic gynecological surgery. Explain the difference between Level 1, Level and Level laparoscopic skills. 5. Since the surgery performed on Lisa Baert (Dawson) on July 14, 1999, have you voluntarily or otherwise discontinued performance of laparoscopic gynecological surgery? 6. If you have voluntarily or otherwise discontinued performance of laparoscopic gynecological surgery since July 14, 1999, provide the reasons for the discontinuance as well as the time period for which you discontinued the performance of laparoscopic gynecological surgery. 7. Since the surgery performed on Lisa Baert (Dawson) on July 14, 1999, have you voluntarily or otherwise taken retraining or upgrading with respect to your performance of laparoscopic gynecological surgery? 8. If you have voluntarily or otherwise taken retraining or upgrading with respect to your performance of laparoscopic gynecological surgery, provide particulars of the retraining or upgrading, the time period for the retraining or upgrading and provide the results of the retraining or upgrading. If there are any written documents related to the retraining or upgrading, provide copies. [7] In response dated July 18, 2005, counsel for Dr. Graham advised that Dr. Graham, who by then had moved to British Columbia, continues to be licenced as an obstetrician and gynecologist in good standing and is qualified to perform Level laparoscopy without restrictions. He suffered heart attack and has been on medical leave from his practice since May, 2003. The response went on to indicate that Dr. Graham’s skills or technique of laparoscopic surgery have not been reviewed by any professional body as result of the surgery performed on Lisa Dawson. Counsel would not agree to reopening the examination for discovery of Dr. Graham. [8] It is the position of the plaintiffs that review of the skills, technique, judgment and competency of the defendant, Dr. Graham, in performing laparoscopic gynecological surgery is relevant, whether in relation to the plaintiff, Lisa Dawson, or anyone else. The examination for discovery of Dr. Graham took place on December 1, 2000. The Amended Amended Statement of Claim issued on February 28, 2001. Undertaking surgical procedures which Dr. Graham did not have adequate knowledge, skill and experience to perform (para. 25(k)) was alleged in the Amended Amended Statement of Claim. The “broad relevance” test was urged by counsel for the plaintiffs. [9] The position of the defendant, Dr. Graham, is that except in special circumstances party to an action is not entitled to re-examine for discovery an adverse party. See Kelly v. Burns Estate (1999), 1999 CanLII 3141 (NS SC), 176 N.S.R. (2d) 398 (N.S.S.C.); Hosie v. Hosie, 1974 CanLII 904 (SK QB), [1975] W.W.R. 597 (Sask. Q.B.). Further the defendant, Dr. Graham, argues that the quality assurance reviews where complications occurred are all subsequent to the events of this case and irrelevant. In any event, Dr. Graham has already been extensively examined relating to his training, experience, techniques and procedures. [10] Further, if any of the interrogatories on which the plaintiffs wish to re-examine are relevant, it was argued, both British Columbia and Saskatchewan legislation prohibit the use of information derived from investigations/reviews conducted by hospital board or the College of Physicians and Surgeons. The privilege, it was suggested, is absolute and cannot be waived. Further it was argued that the information sought falls within the Wigmore principle of common law privilege. [11] In the response dated July 18, 2005, to the plaintiffs’ list of interrogatories, the following information was provided or can be surmised: (a) There has been no review of Dr. Graham’s skills or techniques of laparoscopic gynecological surgery by any professional body relating to Lisa Dawson’s surgery. There may have been reviews relating to other patients. (b) There have been no competency or disciplinary proceedings taken against Dr. Graham. (c) Dr. Graham remains qualified to perform laparoscopic gynecological surgery at Level 1. What Level qualification entails is easily ascertainable from any physician who performs laparoscopic surgery. (d) Since July 14, 1999, Dr. Graham has discontinued performing laparoscopic gynecological surgery due to heart attack. (e) Dr. Graham had been on medical leave of absence for over two years at the time of responding on July 18, 2005. At that time he remained qualified at Level 1. Any training or upgrading could possibly relate solely to prolonged period of absence from the medical practice. In those circumstances, the answer to questions and may not be particularly relevant to these proceedings. [12] Rule 222 of The Queen’s Bench Rules allows party to proceeding, without order, to examine for discovery, before trial, an adverse party touching matters in issue. Generally broad scope of relevance as to matters in issue is granted on examinations for discovery. See Cominco Ltd. v. Phillips Cables Ltd. [1987] S.J. No. 143 (Sask. C.A.). [13] It is the position of the plaintiffs that they require particulars of reviews and inquiries in order to determine the level of skill of Dr. Graham in performing laparoscopic gynecological surgery. His performances both before and after the surgery performed on the plaintiff, Lisa Dawson, they claim, are relevant to that issue. The plaintiffs maintain that they are not seeking documents relating to the inquiries or reviews, only factual information. agree that the skills, technique, judgment and competency of Dr. Graham are relevant to the issues in this action, but only to the extent that they relate to breach of duty or standard of care in performing the laparoscopic surgery on the plaintiff, Lisa Dawson. [14] Counsel for Dr. Graham argue that, although “blind” procedure, laparoscopic tubal ligation surgery is common and uncomplicated procedure. Evidence of experts in the field will be called at the trial to testify as to the competency of Dr. Graham in meeting the required standard of care when performing the operation on the plaintiff, Lisa Dawson. The plaintiffs are, it is suggested, seeking particulars of quality assurance review in case not involving the plaintiff, Lisa Dawson. There is no authority for permitting that line of inquiry, either as similar fact evidence or as an exception to privilege. [15] am satisfied that if the plaintiffs are in effect seeking to obtain particulars of similar fact circumstances, the prejudicial effect of such evidence far outweighs any probative value. See Williams v. Wai-Ping, [2005] O.J. No. 1940 (Ont. S.C.). At the same time s. 60(2) of The Medical Profession Act, 1981, R.S.S. 1980-81, c. M-10.1, protects against disclosure of information or evidence given during proceedings conducted by the College of Physicians and Surgeons for Saskatchewan. Likewise, s. 35.1 of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, grants similar privilege relating to quality assurance committees that have evaluated care given to patients in hospitals. Kerr v. Saskatchewan (Minister of Health), 1994 CanLII 4586 (SK CA), [1994] W.W.R. 153 (Sask. C.A.), appears to make that privilege absolute. Other jurisdictions have similar legislation. [16] Insofar as the interrogatories relate to patients, surgical procedures or proceedings not related to the subject litigation, they are either not relevant or privileged. Since the Statement of Claim has twice been amended I am satisfied that special circumstances exist permitting further examination for discovery and/or interrogatories. Wide latitude is permitted at this stage of the proceedings. The trial judge will be in the best position to determine the admissibility of information obtained in relation to Dr. Graham’s skills, technique, judgment and competency. [17] The plaintiffs are entitled to responses, if not already provided, from Dr. Graham in relation to, but limited to, the following: (a) The approximate number of occasions that Dr. Graham performed laparoscopic tubal ligation or similar gynecological laparoscopic procedures on patients prior to that performed on the plaintiff, Lisa Dawson; (b) whether bowel puncture occurred during any of those procedures, and if so, on how many occasions; (c) whether punctured bowel during those laparoscopic gynecological procedures prompted quality assurance review by the College of Physicians and Surgeons of the province where the procedure was conducted or by any other body; (d) when Dr. Graham obtained his Level qualification to perform laparoscopic gynecological procedures; (e) whether Dr. Graham has taken any retraining or upgrading since obtaining his Level qualification and, if so, the dates of such retraining or upgrading and the nature of the courses attended. [18] The defendant, Dr. Graham, should be able to provide these responses in writing. If elaboration is required, the plaintiffs may at their own initial expense re-examine Dr. Graham. Such re-examination should, however, not include or involve inquiries as to other patient names, hospitals involved or details of the surgical procedures or surgeries performed. Counsel may return to the Court for further clarification if required. Should paragraphs 21, 31(f) and (g), 32(i) and (j) and 33 (e) and (f) be struck as failing to disclose reasonable cause of action or because they are scandalous, frivolous or vexatious? [19] The above paragraphs of the Amended Amended Statement of Claim seek aggravated and punitive or exemplary damages from the defendants by all of the plaintiffs. Punitive and exemplary damages are the same and will be referred to herein as “punitive” damages. It is the position of the defendants that even with particulars of aggravated and punitive damages as provided by the plaintiffs there is no basis for claim for either of those forms of damage. The plaintiffs point in particular to para. 25 of the Amended Amended Statement of Claim to support their argument that it is open to the court to find aggravated and punitive damages particularly in the case of Dr. Graham. [20] The parties are in agreement that for the impugned paragraphs to be struck as offending Rule 173(a) of The Queen’s Bench Rules it must be “plain and obvious” that those paragraphs disclose no reasonable cause of action. The court is limited to looking at the claim and particulars provided, if any, when deciding whether to strike paragraphs pursuant to Rule 173(a). The test for striking paragraphs pursuant to Rule 173(c) on the basis that they are scandalous, frivolous or vexatious is different. There the court embarks upon an assessment of the merits of the claim and the motives of the plaintiff in making the claim. See Sagon v. Royal Bank of Canada et al (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 at para. [21] In Turner v. Bederman, (1996) Carswell Ont. 1766 (Ont. Ct. of Justice), aggravated damages was described as “the mental aspect of damages caused by defendant granted to compensate for additional mental suffering caused by the defendant’s objectionable conduct.” In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130, the Supreme Court of Canada described aggravated damages as those awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive; conduct that increases the plaintiff’s humiliation and anxiety. In order to award aggravated damages there must be finding of conduct motivated by malice. At para. 183 of Hill, supra, Cory J. wrote: There will of necessity be some overlapping of the factors to be considered when aggravated damages are assessed. This can be seen from further reference to the Gatley [on Libel and Slander, 8th Ed.] text at pp. 593-94 where this appears: 1452. Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are thus all matters which the plaintiff may rely on as aggravating the damages. “Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.” “In awarding ‘aggravated damages’ the natural indignation of the court at the injury inflicted on the plaintiff is perfectly legitimate motive in making generous, rather than more moderate award to provide an adequate solatium...that is because the injury to the plaintiff is actually greater, and, as the result of the conduct exciting the indignation, demands more generous solatium.” Aggravated damages conduct as described by Cory J. is not limited to libel and slander situations. Such conduct may apply to any tort situation. [23] Punitive damages are awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. Such damages are only awarded where the combined award of general and aggravated damages are insufficient to achieve punishment and deterrence. Such damages are likened to fine. See Hill, supra, at para. 196. The defendant’s misconduct does not have to be an independent actionable wrong to attract punitive damages. The breach of duty owed that is flagrant and deliberate misconduct will attract an award of punitive damages: See Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085 at para. 25. [24] The defendants take the position that “mere” negligence is not enough to justify an award of aggravated or punitive damages. am unable to subscribe to that criteria. It is not the degree of negligence, i.e. gross, but the mental element that accompanies the negligence that gives rise to claim for aggravated or punitive damages. [25] The plaintiffs point to paras. 25(a) and 25(b) of the Amended Amended Statement of Claim where it is alleged that Dr. Graham failed to fully or reasonably inform Lisa Dawson of the risks associated with the proposed laparoscopic surgery, leading her to believe that there were no risks involved. Such negligence, if proven, could lead trier of fact to conclude that both aggravated and punitive damages are warranted as against Dr. Graham. [26] It would be somewhat presumptuous at this stage of the proceedings to conclude that it is plain and obvious pursuant to Rule 173(a) of The Queen’s Bench Rules that the plaintiffs do not have a cause of action for aggravated or punitive damages against Dr. Graham. Nor can it be said when assessing the merits of the considerable allegations that have been made that claim for aggravated or punitive damages is scandalous, frivolous or vexatious pursuant to Rule 173(c). In my view, humiliation, indignity, degradation or shame could be the consequence of the wrongful behaviour pleaded. However, if those emotions must be specifically pleaded, the plaintiffs can apply for further amendment of their claim. [27] The defendant, Lloydminster District Health Board, likely cannot be held vicariously liable for any aggravated or punitive damages assessed against Dr. Graham as result of assault and battery by him. The Board may be held vicariously liable for acts of negligence by its employees. It is alleged that the defendants, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood, negligently advised the plaintiff, Lisa Dawson, regarding her care both before and after her discharge from the hospital (paras. 25(mm) to (uu) of the Amended Amended Statement of Claim). Such advice could be found by trier of fact to be “malicious behaviour”(McBeth v. Boldt (1998), 1998 CanLII 7051 (BC CA), 164 D.L.R. (4th) 247 para. 21 (B.C.C.A.)) or reprehensible conduct that attracts punitive damages. See Wilcott v. Ellis (2001), 2001 SKQB 219 (CanLII), 206 Sask. R. 219 (Q.B.). [28] Similar to the situation with Dr. Graham, am unable to conclude that it is clear and obvious that the aggravated and punitive damage claims will fail as against the remaining defendants. Further the allegations that could lead to such damages are not scandalous, frivolous or vexatious. [29] All of the defendants in this case are health care givers. It will be difficult to prove that any of them acted in bad faith, with deliberate or reckless disregard for the plaintiff, Lisa Dawson, or with extreme or malicious behaviour causing additional suffering or deserving of punishment. also agree that the jurisprudence in medical malpractice cases does not favour granting aggravated and punitive damages. That having been said, it is the evidence presented at trial and not the allegations contained in the pleadings that will determine the mental elements that give rise to claim of both aggravated and punitive damages. The result is that paras. 21, 31(f) and (g), 32 (i) and (j) and 33(e) and (f) will not be struck at this time. Should the plaintiffs be required to respond to undertakings number 37, 42, 43, 46 and 52 given during the examination for discovery of Mark Baert? [30] The obligation of party to comply with undertakings given at an examination for discovery is contained in Rule 231 of The Queen’s Bench Rules: Anyone refusing or neglecting to attend at the time and place appointed for his examination or refusing to be sworn or to answer any lawful question put to him by any party entitled to do so or his counsel or solicitor or having undertaken at the examination to answer at later date any lawful question put to him fails to do so within reasonable time after the examination shall be deemed guilty of contempt of court and proceedings may be taken forthwith to commit him for contempt. He shall be liable if plaintiff to have his action dismissed, and if defendant to have his defence, if any, struck out and to be placed in the same position as if he had not defended. [Emphasis added] [31] Undertaking number 37 is to advise of any facts on which the plaintiffs may rely in the future to establish claim of incompetency against Dr. Graham (taken under advisement). In Cominco Ltd., supra, Cameron J.A. of the Saskatchewan Court of Appeal, writing for the court, stated at para. 12: As has been said time and again, the purpose of the rule [222] is twofold: (i) to allow the parties to ascertain if the plaintiff has good cause of action or the defendant such defence as would render further litigation useless [Citations omitted]; and (ii) to enable the parties to secure from one another such admissions as will advance one’s own cause or weaken that of one’s opponent [Citations omitted]. [32] To the extent that the defendant, Dr. Graham, has been required to respond to interrogatories relating to his skill and training and to the extent that any further cross-examination may show defects in his competency, undertaking number 37 must be answered. If the plaintiffs have further or other facts, those facts must be provided. Failure to provide further facts may prevent the defendants at trial from relying on any facts not disclosed. [33] Undertaking number 42 is to produce particulars of the first trust fund which started with the ICU doctors at the Royal Alexandra Hospital (taken under advisement). Undertaking number 52 is related. It is an undertaking to produce bank records relating to Lisa Dawson’s account and any accounting provided to the public trustee or the court in relation to the plaintiff Mark Baert’s position as trustee for Lisa Dawson (taken under advisement). The defendants are of the view that if trust funds were created and used for medical or rehabilitative equipment and services, double recovery may result. It is the position of the plaintiffs that trust funds that are gifts from the public cannot be brought into account in determining damages. See Herbert v.Misuga, [1994] S.J. No. 35 (Sask. C.A.); Dawson v. Sawatzky 1945 CanLII 185 (SK CA), [1946], D.L.R. 476 (Sask. C.A.); Myers and the City of Guelph v. Hoffman, 1955 CanLII 161 (ON SC), [1955] O.R. 965-976 (Ont. H.C.). [34] Clearly the defendants are not entitled to know or to take advantage of or receive any credit for or accounting relating to trust funds gratuitously set up for the plaintiff, Lisa Dawson. No response to undertaking number 42 need be made. Undertaking number 52 is in somewhat different position. To the extent that funds contained in trust account administered by the plaintiff, Mark Baert, for Lisa Dawson to which there is claim of subrogation on behalf of the Minister of Health for Saskatchewan or the Minister of Health for Alberta (para. 31(e) of the Amended Amended Statement of Claim) an accounting is required. An accounting of funds held in trust by the plaintiff, Mark Baert, for the plaintiff, Lisa Dawson, may also impact on the claim by him of loss of income as a result of being required to be in attendance to provide care for Lisa Dawson (para. 27(c) of the Amended Amended Statement of Claim). In the final analysis such an accounting may not provide any usable information, but at this stage of the proceedings is justified. An accounting by the defendant, Mark Baert, pursuant to undertaking number 52 must be provided. [35] Undertaking number 43 is to provide details of the allegations made against the plaintiff, Mark Baert, by Kathy (taken under advisement). This undertaking is related to undertaking number 46, which is to produce copies of the information, summons, and disclosure documents in relation to the assault charge against the plaintiff, Mark Baert. The defendants argue that the nature of the assault may have been at least partially responsible for counselling required by the infant plaintiffs. The plaintiff, Mark Baert, advised through counsel that the children were not present during the assault and that as result of the charge he was granted conditional discharge. The children were not, it was suggested, affected by this incident. [36] The information (summons) filed is public document and can be obtained by the defendants from the relevant court house. Further responses to undertakings number 43 and 46 would, in my view, serve no useful purpose and are not ordered. All of the defendants are entitled, at their initial expense, to further examine for discovery the plaintiff, Mark Baert, on the responses ordered to be given to his undertakings. [37] Where responses are required by party in these applications, the responses shall be provided within 30 days of the date of this fiat. Further examinations for discovery arising out of those responses shall be conducted within 30 days of receipt of the responses unless otherwise agreed to by the parties. number of applications have been adjourned. Those applications may be brought back; if so, the matter of costs can then be spoken to. If no further matters are brought back to the court, costs may be spoken to at the request of any party. J. D. K. KRUEGER","FIAT: The plaintiffs apply for an order requiring the defendant doctor to answer the interrogatories and attend a further examination for discovery. The defendants seek an order striking portions of the statement of claim, and requiring the plaintiff to provide answers to undertakings given at his examination for discovery. HELD: 1) Rule 222 of The Queen's Bench Rules allows a party to a proceeding without order to examine for discovery, before trial, an adverse party touching matters at issue. If the plaintiffs are in effect seeking to obtain particulars of similar fact circumstances, the prejudicial effect of such evidence far outweighs any prohibitive value. At the same time, s. 60(2) of The Medical Profession Act, 1981 protects against disclosure of information or evidence given during proceedings conducted by the College of Physicians and Surgeons. Likewise, s. 35.1 of The Saskatchewan Medical Evidence Act grants a similar privilege relating to quality assurance committees that have evaluated care given to patients in hospitals. Insofar as the interrogatories relate to patients, surgical procedures or proceedings not related to the subject litigation, they are either not relevant or privileged. Since the statement of claim has twice been amended, the court was satisfied that special circumstances exist permitting further examination for discovery and/or interrogatories. Wide latitude is permitted at this stage of the proceedings. The trial judge will be in the best position to determine the admissibility of information obtained in relation to the doctor's skills, techniques, judgment and competency. The plaintiffs are entitled to responses to specific interrogatories. If further elaboration is required, the plaintiffs may at their own expense re-examine the doctor. Such examination should not include inquiries as to other patient names, hospitals involved or details of the surgical procedures or surgeries performed.  2) Pursuant to Rule 173(a) of the Rules of Court it must be plain and obvious that the paragraphs of the statement of claim disclose no reasonable cause of action. Punitive damages are awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Such damages are only awarded where the combined award of general and aggravated damages are insufficient to achieve punishment and deterrence. The defendant's misconduct does not have to be an independent actionable wrong to attract punitive damages. The breach of a duty that is owed will attract an award of punitive damages. It is not the degree of negligence but the mental element that accompanies the negligence that give rise to a claim for aggravated or punitive damages. The amended statement of claim alleges the doctor failed to inform one of the plaintiff of the risks associated with the surgery leading her to believe there were no risks involved. Such negligence, if proven, could lead a trier of fact to conclude that both aggravated and punitive damages are warranted against this doctor. It would be somewhat presumptuous at this stage to conclude that it is plain and obvious that the plaintiffs do not have a cause of action for aggravated or punitive damages against the doctor. In the courts view humiliation, indignity, degradation or shame could be the consequences of the wrongful behaviour pleaded. If those emotions must be specifically pleaded, the plaintiffs can apply for a further amendment of their claim. 3) The obligations of a party to comply with undertakings given at an examination for discovery are contained in Rule 231 of The Queen's Bench Rules. To the extent that the doctor has been required to respond to interrogatories relating to his skill and training and to the extent that any further cross-examination may show defects in his competency, the plaintiff's undertaking must be answered. If the plaintiffs have further or other facts, those facts must be provided. 4) The defendants are not entitled to know or to take advantage of or receive any credit for or accounting relating to trust funds gratuitously set up for the plaintiff. However, an accounting regarding the bank records and the records produced for the Public Trustee by the Trustee for the trust fund will be complied with as it may impact on the claim by him for loss of income as a result of being required to be in attendance to provide care for the plaintiff.",d_2006skqb35.txt
128,"J. D.I.V. A.D.1996 No. 701 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: JOY ANNE BARTCH and ROBERT CLARENCE BARTCH RESPONDENT M.L. Elliott on behalf of Joy Anne Bartch L.A. Schienbein on behalf of Robert Clarence Bartch FIAT ARCHAMBAULT J. January 31, 1997 On January 29, 1997, awarded interim custody of Kimberley and Lauri to the respondent, Robert Clarence Bartch. I reserved decision on the questions of child and spousalmaintenance, including costs of access and counselling. believe it is common ground that the respondent's 1996 income included the following: Employment 22,950.00 Unemployment insurance benefits 5,197.00 Town councillor's indemnity 700.00 Total $28,847.00 It is argued on behalf of the petitioner, Joy Anne Bartch, that in addition to that income, the respondent has, as shareholder and officer of Bartch Building Movers Ltd., access to additional funds. He and his brother each own 38% of the voting shares of the company. The assets of the company increased significantly in 1996 ($103,752.00) from 1995 ($88,399.00). Wages to officers increased from $50,550.00 in 1995 to $80,900.00 in 1996. Notwithstanding this increase the company showed an operating profit compared to deficit in 1995. It should be noted that the shareholders' loan payable to Robert and Joy Bartch was reduced from $6,400.00 to $2,549.00 in 1996. That clearly was to the respondent's benefit ($3,851.00). In addition, the company advanced the sum of $16,952.00 to the respondent's brother, Greg, and his wife, Olivia. During 1996 the petitioner was paid $781.66 per month by the company. This was done for income splitting purposes. Now that this payment to her has been terminated (as of November 30, 1996), it is reasonable to assume that that amount will revert to the respondent, thereby increasing his receipts from the company by an equivalent amount. am satisfied that the respondent has had and will continue to have access to drawings from the company over and above his stated income. For the purposes of determining maintenance, attribute him yearly income of $38,000.00. The petitioner's position is less rosy. She is currently in receipt of unemployment insurance benefits of $318.00 every two weeks, plus whatever casual work she can obtain. As previously indicated, her employment with Bartch Building Movers, which yielded her $781.66 per month, has been terminated. Her total income, apart from maintenance in the sum of $1,600.00 paid to her by the respondent, for December, 1996, and January, 1997, totalled $1,404.44. As her income from casual employment is sporadic, it is difficult to determine her level of income for the purpose of her application for maintenance. It is to be noted that any income she earns in excess of $42.75 bi-weekly will be deducted from her UIC benefits. Hence believe that an attribution of income of $800.00 per month is fair for the current determination of maintenance. If there is significant change in her income level an application to vary may be brought by the respondent. The oldest child, Brianna, is residing with her mother in Regina and, accordingly, the petitioner must support her. The respondent is supporting the two other children, Kimberley and Lauri, who reside with him. In terms of child support, at an income level of$38,000.00 the respondent, in accordance with the Guidelines,would be required to pay $1,165.00 per month for threechildren, or $388.00 per month per child. Given thepetitioner's modest revenue, I believe he should pay thatamount without any abatement. There is no question that the breakdown of the marriage has resulted in hardship for the petitioner. She has had to set up new home in Regina and despite her good efforts, she is having problems securing employment. She is in need and the respondent is, in my view, in position to assist her. There is no question that the maintenance of two homes, as result of the marriage breakdown, taxes to the limit the available family income. There must, therefore, be an equitable sharing. The petitioner's monthly income at $800.00, together with child maintenance of $388.00 yields $1,188.00 for two persons. The respondent's monthly income ($38,000.00 � 12) is $3,167.00. After payment of maintenance for Brianna at $388.00 per month, the remaining gross monthly income for three persons is $2,778.00. An adjustment in favour of the petitioner should be made to better distribute available income among the five members of the family. In so doing am mindful of the fact that there will be tax implications for both parties. am also taking into account the costs of access and counselling which shall be borne by the respondent. The respondent shall be responsible for the travel expenses for Kimberley and Lauri for the purpose of access twice monthly. Any access exercised by the petitioner in excess of two times per month, shall be at her own expense. It is accordingly ordered as follows:(1) The respondent shall pay interim maintenance to thepetitioner in the sum of $388.00 per month for the supportof Brianna, payable on the first day of each and every monthcommencing on February 1, 1997, and until further order ofthis Court. (2) The respondent shall pay to the petitioner interim spousalmaintenance in the sum of $350.00 per month, payable on thefirst day of each and every month commencing on February 1,1997, and continuing until further order of this Court. (3) The respondent shall assume and pay the transportationcosts for the petitioner's exercise of access to Kimberleyand Lauri twice monthly. Any costs for additional access shall be at the petitioner's expense. (4) The respondent shall pay for the cost of counselling forKimberley and Lauri. (5) The petitioner shall within three months from the date ofthis order and every three months thereafter keep therespondent informed of her employment status and revenue. (6) The matter of interim custody and access shall be reviewedon July 4, 1997, if the parties have not settled the matterprior thereto.","FIAT. Interim custody of two of the children was awarded to the respondent in January 1997. The eldest resided with her mother. Decisions on child and spousal maintenance, including costs of access and counselling had been reserved. HELD: 1)The respondent was to pay interim maintenance of $388 per month for the child residing with the mother and $350 per month for interim spousal maintenance. Under the guidelines he would be required to pay $1,165 per month for three children at an income level of $38,000. No abatement was made in view of the petitioner's modest income. 2)The respondent was to assume costs of twice monthly access by the petitioner and counselling costs. 3)The petitioner was to keep the respondent informed of her employment status and revenue. 4)Interim custody and access was to be reviewed July 4/97 if the parties had not settled the matter.",d_1997canlii10919.txt
129,"J. F.L.D. A.D. 1998 No. 391 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: YVETTE CYNTHIA ANDERSON and CHRISTOPHER ANDERSON RESPONDENT E. F. Anthony Merchant, Q.C. for the petitioner Linda A. Christensen for the respondent JUDGMENT PRITCHARD J. May 21, 1999 [1] The petitioner obtained an ex parte order under s. 8(1) of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 (the “Act”) which:(a) restrains the Attorney General of Canada from releasing or paying any monies to the respondent or his solicitors, MacPherson, Leslie & Tyerman (“MLT”), in relation to the respondent’s claim in Queen’s Bench Action No. Q.B.G. No. 2270/97, J.C. Regina (the “Action”), pending the petitioner’s application or further court order;(b) restrains MLT from releasing or paying to the respondent any monies that they have received or may receive in relation to the Action;(c) restrains MLT from releasing or paying to any Chris Anderson or Christopher Anderson, any monies that they have received or may receive in relation to a claim by a Chris Anderson or Christopher Anderson against the Attorney General of Canada; and(d) restrains the respondent from disposing of any of the monies that he has received or may receive in relation to the Action or any claim against the Attorney General of Canada pending the petitioner’s application or further court order. [2] By notice of motion, the petitioner has applied to have the ex parte order set aside insofar as it applies to the Attorney General of Canada but seeks to continue the restraining order against the respondent and his solicitors, MLT. The respondent has applied to have the interim order set aside. Both parties agree that the provision in the ex parte order referred to in (c) above is not required and should terminate. It is so ordered. Likewise, the ex parte order is lifted as against the Attorney General of Canada. [3] As to the balance of the order, the respondent argues that restraining order granted under s. of the Act is preservation of property order and should not be granted, whether ex parte or otherwise, because the petitioner has not met the tests that governs the granting of such orders. He submits that the criteria for the granting of preservation order are identical to those that must be considered in an application for an interlocutory injunction. He therefore argues that the court must consider: the strength of the plaintiff’s case; whether the plaintiff will suffer irreparable harm if the injunction is not granted; and whether the balance of convenience (i.e. the risk of injury to the plaintiff if the injunction is not granted, versus the probability of harm to the defendant if it is) favours the granting of the injunction. [4] The Court is not satisfied that the jurisprudence with respect to injunctive remedies based on inherent or equitable jurisdiction of the court applies to an application under s. of the Act. If the criteria required to grant restraining order pursuant to the Act were meant to be the same as those required to grant an injunction pursuant to s. 45 of The Queen’s Bench Act, R.S.S. 1978, c. Q-1, there would have been no need for the unique provision in s. of the Act or its immediate predecessor. In view of s. 10 of The Interpretation Act, 1995, S.S. 1995, c. 11.2, the Court interprets s. as remedial provision which is intended to fill gap in the existing legislative scheme. As s. was enacted to provide solution where none had previously existed, it is to the terms of the statute itself that the Court must primarily look for determination of the appropriate considerations upon which it may exercise its powers thereunder. Section provides: 8(1) On application by claimant, the Court of Queen’s Bench may make an interim or final order restraining the disposition or wasting of assets that would impair or defeat claim pursuant to this Act. (2) An application pursuant to this section may be made ex parte at the discretion of the court. [5] Section of the Act grants the court authority to restrain the “disposition or wasting of assets”. This authority is limited to circumstances where the disposition or wasting “would impair or defeat claim pursuant to this Act”. Under the Act, the Court is allowed to exercise its discretion in deciding whether an application for restraining order should be granted. This section also allows the claimant to make an ex parte application for restraining order. Section creates new but very limited form of injunctive relief with this extraordinary remedy being available for the sole purpose of preventing the impairment or defeat of the Act. [6] The respondent also argues that before the Court can exercise its discretion to grant restraining order it should have some evidence that the party to be restrained could or would impair or defeat claim under the Act. The respondent submits that in this case, no such evidence is available. [7] The evidence establishes that the respondent has never had assets of significant value and the Court agrees that it has insufficient evidence upon which it could reasonably conclude that if the respondent acquired substantial funds that he would imprudently or improperly dispose of such funds or otherwise fail to use them to support his family. The respondent submits that the existing ex parte interim order wrongly assumes that he will dissipate his assets; that the entire underpinning of the order is based on an uninformed and biased assumption that person who has received social assistance for the majority of his adult life and then receives significant lump sum of money will somehow squander his money without regard to his moral and legal support obligations. He argues that such an assumption is highly prejudicial and results in an unfair treatment of those who have previously not had the ability to adequately support their families. [8] This argument is appealing, but to embrace it, the Court must find that before s. restraining order can be granted, the Act requires it to have some evidence of respondent’s predilection or intention to waste assets. Here, the statute contains no such requirement and if the legislature had intended it as precondition to the granting of this extraordinary remedy, it could easily have done so by express language as it is in other statutes. In this regard, the Court has compared the wording of s. of the Act with s. 55 of The Enforcement of Maintenance Orders Act, 1997, S.S. 1997, c. E-9.21, and s. 29 of The Matrimonial Property Act, 1997, S.S. 1997, c. M-6.11 which also permit the Court to grant ex parte orders restraining respondent’s ability to deal with his or her assets. Section 55 of The Enforcement of Maintenance Orders Act, 1997 very specifically circumscribes when restraining order may be granted. 55(1) On an ex parte application by the claimant and where the court is satisfied that the respondent is hindering or defeating or is attempting to hinder or defeat the enforcement of maintenance order by dissipation, gift or transfer of assets, the court may make an order: (a) restraining any dealing with, or gift or transfer, of, the property; or (b) appointing receiver in accordance with section 49. (2) On an ex parte application by the claimant and where the court is satisfied that the respondent is attempting to hinder or defeat the enforcement of arrears under maintenance order by leaving Saskatchewan, the court may issue warrant for the arrest of the respondent for the purpose of bringing the respondent before the court to be examined with respect to his or her ability to meet his or her obligations pursuant to the maintenance order. [Emphasis added] [9] Section 29 of The Matrimonial Property Act, 1997, also carefully circumscribes the authority of the Court to restrain the conduct of property holding spouse. The section states: 29(1) The court has the powers conferred by subsection (2) where the court is satisfied that spouse: (a) is about to commit an act amounting to dissipation, and that action may defeat claim of the other spouse pursuant to this Act; (b) is about to abscond with any matrimonial property, and that action may defeat claim of the other spouse pursuant to this Act; (c) intends to transfer matrimonial property to person for less than adequate consideration, and that action may defeat claim of the other spouse pursuant to this Act; or (d) intends to make substantial gift of matrimonial property, and that action may defeat claim of the other spouse pursuant to this Act. (2) For the purposes of subsection (1), the court may do any of the following: (a) make an order restraining the making of the transfer or gift or the absconding with the property; (b) make receiving order or any other order that it thinks fit for the purpose of restraining the dissipation or further dissipation of the property or for the possession or delivering up, safekeeping and preservation of the property. (3) An application for an order pursuant to subsection (2) may be made as an application in proceedings commenced pursuant to this Act, by notice of motion or in any other manner that may be prescribed in the rules of court. (4) An application for an order pursuant to subsection (2) may be made ex parte and, where an application is made ex parte, the court may: (a) dispense with service of the notice of the application; or (b) direct that the notice of the application be served at any time and in any manner that the court thinks fit. (5) Every person who knowingly and wilfully refuses or neglects to comply with an order made pursuant to subsection (2) is, in addition to any other liability that person may incur, guilty of an offence and liable on summary conviction to fine of not more than $1,000.00. [Emphasis added] [10] In contrast, the Act does not require the Court to be satisfied that the respondent is hindering or defeating, will hinder or defeat, or will attempt to hinder or defeat claim. Nor does the Act limit the circumstances in which restraining order may be granted as does The Matrimonial Property Act, 1997. The only requirement is that the disposition or wasting of the asset would impair or defeat claim under the Act. [11] When a respondent has only one asset that could reasonably become a source of satisfying a claim under the Act, not only his or her dependants, but society as a whole has an interest in ensuring that the asset will be used first and foremost for such purpose. If the asset is not available for claim under the Act, then it is society who will inevitably assume respondent’s responsibility for his or her dependants. Perhaps this is why the court’s primary focus under s. is directed to determining whether, in the circumstances before it, disposition or wasting of the specified asset would impair or defeat claim under the Act. Where there is any risk that claim may be impaired or defeated, whether or not an intention to do so has been evidenced, the court has the discretion to issue restraining order. In framing s. of the Act as it has, the legislature has apparently determined that the protection of dependants outweighs an individual’s rights in property. Unfortunately, this may result in restraining orders being more frequently available where the parties have limited resources, but these are also the circumstances where it is most critical to ensure means of protecting source of income for dependant children and spouses. [12] In this case, the Court is satisfied that the respondent’s personal claim for damages in the Action is the only asset that he has at this time that might give him an ability to satisfy the claim under the Act that has been made by the petitioner on behalf of herself and the children, Joel Kelly Morgan Raphael, born August 27, 1990 and Tosha Lauren Anderson, born February 5, 1992. Although there is no persuasive evidence that upon success in his Action the respondent would not voluntarily ensure that any claim under the Act is satisfied, the Court accepts that if the entire proceeds from the Action were disposed of, the petitioner’s claim under the Act would be impaired or defeated. However, if the Action results in proceeds of between $100,000.00 to $143,500.00, as hoped for by the respondent, it is unlikely that the full amount would be required to satisfy any claim under the Act. No evidence was presented regarding the potential value of the petitioner’s claim. Without prejudging the merits, if any, of the petitioner’s claim for herself and the children, the court is prepared to arbitrarily determine that the sum of $40,000.00 will likely be sufficient security for the claim under the Act. Accordingly, for the time being, the restraining order will attach only to the first $40,000.00 of funds received by the respondent if and when any amount, whether by judgment or settlement, becomes payable to him pursuant to the Action. As indicated, this $40,000.00 figure is purely arbitrary and either party may at any time apply to raise or lower it based on evidence available at the time of such application. [13] The Court is not satisfied that the restraining order should extend to any one other than the respondent. Section only authorizes restraining orders against those against whom claim under the Act may be made since it is only they who may dispose of or waste assets from which claims may be satisfied and thereby impair or defeat claim. The ex parte restraining order against MLT shall therefore be lifted. [14] Costs are reserved to be dealt with on the hearing of the application for maintenance under the Act which may be brought back before any presiding judge upon ten days’ notice.","The petitioner obtained an ex parte order under the Family Maintenance Act which restrains the Attorney General from paying any money owing under an action in Queen's Bench to the respondent and his solicitor and restraining the respondent from disposing of any monies received in the action. The respondent applies to have the order set aside. The respondent argues that a restraining order under the Act is a preservation of property order and should not be granted because the petitioner has not met the tests that govern the granting of such orders. He submits that the criteria for the granting of a preservation order is the same as for a interlocutory injunction. The respondent argues that before the Court can exercises its discretion and grant an order, is should have some evidence that the party being restrained would defeat a claim under the Act. HELD: The Court is satisfied that the respondent's personal claim for damages is the only asset the he has to satisfy the claim under the Act. Without prejudicing the applicant's claim, the Court will arbitrarily determine that the sum of $40,000 will likely be sufficient security. For the time being, the order will attach to the first $40,000 of funds received by the respondent, if and when any amount becomes payable to him. The parties may apply to vary this amount in future. Costs are reserved to be dealt with on the hearing of the application for maintenance. The Court is not satisfied that the jurisprudence with respect to injunctive remedies based on inherent jurisdiction of the court applies to an application under s.8 of the Act. If the criteria for granting a restraining order under the Act were meant to be the same, there would be no need for the unique provision of the Act. As s.8 was enacted to provide a solution where none had existed, the Court must primarily look to the statute itself for a determination of the appropriate considerations. Section 8 of the Act grants the Court the authority to restrain the disposition of assets and creates a new, but limited, form of injunctive relief with this remedy being available solely to prevent the impairment or defeat of the Act. The statute does not require the Court to be satisfied that the respondent is hindering or defeating a claim. When a respondent has only one asset that could reasonably satisfy a claim, his dependents and society as a whole have an interest in ensuring that the asset will be used for such purpose.",9_1999canlii12597.txt
130,"L.A. KYLE 2005 SKQB 32 Q.B. A.D. 1999 No. 245 J.C.S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: CECILE SCHMIDT APPLICANT (PLAINTIFF) and THE SOUTHWEST DISTRICT HEALTH BOARD, WHO NOW REPRESENTS THE FORMER WESTERN SENIOR CITIZENS’ HOME INC. BOARD by AMALGAMATION AGREEMENT dated June 1, 1996 and REGIONAL HEALTH AUTHORITY #3 and SASKATCHEWAN HOSPITAL ASSOCIATION and SASKATCHEWAN ASSOCIATION OF HEALTH ORGANIZATIONS RESPONDENT E. Holgate for the applicant R.A. Watson, Q.C. and L. Ferguson for the respondents Saskatchewan Hospital Association and Saskatchewan Association of Health Organizations Not represented the respondent, The Southwest District Health Board FIAT LAING J. January 17, 2005 [1] The applicant’s motion seeks to amend the statement of claim dated December 31, 1999, in which she alleges wrongful dismissal by her employer on January 10, 1994. The purpose of the requested amendments, apart from housekeeping amendments, is to join the Saskatchewan Association of Health Organizations (“S.A.H.O”) to the action. S.A.H.O. is the long-term disability insurer for members of the Saskatchewan Health Care Association whose employees are certified by the Saskatchewan Union of Nurses. The applicant seeks to make S.A.H.O. a party for the purpose of claiming from it a disability pension from the date of her termination until she turned 65 years old on July 29, 2000. [2] Counsel for the applicant takes the position that the limitation period can be waived pursuant to s. 30 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01. He acknowledges that before s. 30 is applicable, it must be first established that the claim against the party to be added arose out of the same transaction or occurrence as the existing claim. Counsel then argues for very broad interpretation of the words “transaction” or “occurrence”. However, this is not matter being argued in the first instance. The Saskatchewan Court of Appeal has in the case of Fillion v. Wolverine, 2001 SKCA 30 (CanLII), (2001), 203 Sask. R. 288, indicated the terms “same transaction” or “occurrence” are to be given restrictive meaning. At para. 13, the Court noted: Properly construed and applied, the clause cannot accommodate the subsequent claim, bearing in mind that the section allows for an exception to limitation period and must be construed and applied accordingly. [3] As a starting point, the claims do not arise in the same time-frame, but are separated by a minimum of 120 days being the disability qualification period under the disability plan. minimum of 120 days having elapsed between the factual basis for one claim and the earliest the new claim could be brought makes it difficult to say they arise out of the same occurrence or transaction. The alleged wrongful termination by the employer did not cause the applicant’s health problems, at least not in the 120-day qualifying period. However, the fact is, there is no other legal or factual connection between the two claims. The applicant’s existing claim alleges breach of contract of employment. The claim proposed against S.A.H.O. alleges breach of contract of disability insurance. There is no legal connection. Similarly, there are no common facts relevant to either claim. The facts related to the breach of contract of employment are the applicant’s performance on the job and the actions of the employer. The facts relevant to the disability claim are, or would be, the applicant’s health commencing at least 120 days after her employment terminated. [4] As the applicant cannot bring herself within s. 30 of The Queen’s Bench Act, 1998, there is no basis for this Court to waive the limitation period. Having arrived at this conclusion, it is not necessary to address the other arguments advanced by the applicant or the respondent. The application to join S.A.H.O. as a party to the action is dismissed. [5] The amendments sought by the applicant had S.A.H.O. been joined as party are not allowed. These include reference to “[e]ach of the Defendants” in paras. (a)(x)-(xiii) inclusive, and para. (a)(xv). If the applicant wishes to substitute “the defendant” in each of the foregoing paragraphs, she may do so. The amendments sought by the applicant [6] There is obviously some duplication in some of the facts and allegations included in the “housekeeping” amendments with facts and allegations contained in the original statement of claim. However, as there has not been any opposition to these amendments, the same are allowed. [7] The respondent, S.A.H.O., is entitled to taxable costs against the applicant. [8] Order accordingly.","FIAT: The applicant's motion seeks to amend the statement of claim dated December 31, 1999 in which she alleges wrongful dismissal by her employer on January 10, 1994. The purpose of the amendment is to join the Saskatchewan Association of Health Organizations (SAHO) to the action. The applicant seeks to make SAHO a party for the purpose of claiming from it a disability pension from the date of her termination until she turned 65 on July 29, 2000. HELD: The application to join SAHO is dismissed. The claims do not arise in the same time frame but are separated by a minimum of 120 days being the disability period under the disability plan. There is no connection between the two claims. The existing claim alleges a breach of contract of employment. The claim proposed against SAHO alleges a breach of a contract of disability insurance. There are no common facts. The facts relevant to the breach of contract of employment are the applicant's performance on the job and the actions of the employer. The facts relevant to the disability claim are the applicant's health commencing at least 120 days after her employment terminated.",d_2005skqb32.txt
131,"J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Walker and Walker, 2003 NSSF002 Date: 20021210 Docket: SH 1201-55269 SFHD-008382 Registry: Halifax Between: Virginia TheresaWalker and Russell Edward Walker Respondent Judge: The Honourable Gordon A. Tidman Heard: December 10, 2002, in Halifax, Nova Scotia Written Decision: January 16, 2003 Counsel: Virginia T. Walker (The Applicant, in Person) Judith Ann Schoen, for the Respondent [1] This is an application to determine whether this court has jurisdiction to vary consent order of the Ontario Court (General Division). Background: [2] On June 13, 1994 the Ontario Court (General Division) granted judgment by consent which incorporated by reference an agreement made between the separated married couple of Virginia and Russell Walker. Part one of the Order incorporates the following term which was agreed to by the parties: That the defendant, Russell Edward Walker, shall pay to the plaintiff, Virginia Theresa Walker, on or before April 9th, 1994 to (sic) [the] sum of THIRTY SEVEN THOUSAND DOLLARS ($37,000.00) in full and final satisfaction of all claims with respect to property, division of property and an equalization payment. [3] At the time of the granting of the Order, the Walkers resided in Ontario, thus the Ontario court had jurisdiction to grant the Order. Mrs. Walker now resides in Nova Scotia where she has commenced against Mr. Walker an action for divorce. In the action Mrs. Walker also seeks a division of assets under the Matrimonial Property Act. The asset she seeks to have divided is the interest of Mr. Walker in federal government pension. [4] Since the Ontario court order purported to finalize a property division between the parties, Mrs. Walker, who claims a portion of Mr. Walker’s pension entitlement, seeks to set aside the agreement she made with Mr. Walker, which was incorporated into the Ontario court order. She does so on the grounds that she was not aware of her entitlement to share in her husband’s pension benefits at the time she entered into the agreement. Her claim is based on the equitable grounds of fraud, duress and unconscionability. [5] The issue the parties present to the court is whether this court has jurisdiction to hear Mrs. Walker’s claim to set aside the agreement. The real question embodied in that issue is whether this court has jurisdiction to set aside or vary consent order of the Ontario court. Deliberations: [6] First of all, as agreed by the parties, there is no question that Mrs. Walker is entitled to commence the divorce action in Nova Scotia. She is also in the same action entitled to seek division of assets under the provisions of the Nova Scotia Matrimonial Property Act. [7] Section 22(1) of the Nova Scotia Matrimonial Property Act provides: Conflict of laws 22 (1) The division of matrimonial assets and the ownership of movable property as between spouses, wherever situated, are governed by the law of the place where both spouses had their last common habitual residence or, where there is no such residence, by the law of the Province. [8] Therefore, although the Nova Scotia court has jurisdiction to hear the property division application, the court in determining the division must in doing so, apply the law of the last common habitual residence of the parties. Since it would appear that Mr. And Mrs. Walker had their last common habitual residence in Ontario, the division of matrimonial assets would be governed by Ontario law. [9] Section 29 of the Nova Scotia Matrimonial Property Act provides: Harsh or fraudulent contract or agreement 29 Upon an application by party to marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. [10] Under the provisions of s.29 of the Act Mrs. Walker is also entitled to seek to vary the terms of the separation agreement entered into between her and her husband upon the equitable grounds as set out in the Act. But does the Nova Scotia court have jurisdiction to vary the terms of separation agreement embodied within the terms of consent order? [11] Ms. Schoen, on behalf of Mr. Walker, submits that the Matrimonial Property Act while, by s.29, providing the court with jurisdiction to vary marriage contract or separation agreement on grounds of fraud, harshness or unconscionability, does not provide the court with jurisdiction to vary court order. Ms. Schoen submits further that there have been findings by the Family Division of this court that it has no jurisdiction to vary an order incorporating such an agreement. Ms. Schoen provides no citations or case names for her submission. [12] The Nova Scotia Court of Appeal in Bank of N.S. v. Golden Forest Holdings (1990), 1990 CanLII 2489 (NS CA), 98 N.S.R.(2d) 429, dealt with consent orders and approved the following passage from Citel v. Rothbart (1987), 19 C.P.C. (2d) 48 (Ont. S.C.): consent order is contract and must be treated as such. Such an order can only be set aside or varied by subsequent consent, or upon grounds of common mistake, misrepresentation or fraud, or on any other ground which would invalidate contract. [13] Based on that passage, it seems to me that the court has jurisdiction to vary the consent order upon the grounds as alleged by Mrs. Walker, notwithstanding that s.29 of the Matrimonial Property Act does not specifically provide the court with jurisdiction. [14] Additionally, as set out by Mrs. Walker in her brief, the English Court of Chancery in Wilding v. Sanderson, [1897] Ch.C.A., had previously determined that that court had jurisdiction to vary consent order. The court in that case stated: ..a consent order based on and intended to carry out an agreement come to between the parties, ought to be treated as an agreement which could be properly set aside on any ground on which an agreement in the terms of the order could be set aside. [15] Section 41(a) of the Judicature Act R.S.N.S. 1989 c.240 provides: If plaintiff claims to be entitled to any equitable...right, or to relief upon any equitable ground against any deed, instrument or contract...the court shall give to the plaintiff the same relief as would have been given by the court of the Equity Judge or the High Court of Chancery. [16] It follows then that Mrs. Walker by virtue of the Judicature Act is entitled to the same relief the English Court of Chancery accorded to the plaintiff in Welding v. Sanderson (supra). It then seems clear, and so find, that this court has jurisdiction to vary consent order. [17] The only question remaining is whether this court has jurisdiction to vary an order of the Ontario court. [18] There is no question that this court has jurisdiction to hear Mrs. Walker’s claim for divorce and her claim for division of property under the Matrimonial Property Act. precondition to hearing her claim for division of property requires finding as to the validity of the contract embodied in the consent order. [19] In my view it follows that the court must also have jurisdiction to deal with the precondition. In reaching that conclusion, have also considered that the Divorce Act has provided for jurisdictional difficulties arising because of the increased mobility of the population in Canada and no doubt it was with that same concern in mind that resident of the province may commence an action for divorce in this province and incorporate therein claim under the Matrimonial Property Act regardless of where the applicant’s spouse resides, where the married parties were residing at the time separation agreement was entered into or where the parties had their last common habitual residence. In the latter case, however, as provided by s.22(1) of the Nova Scotia Matrimonial Property Act the law of Ontario would govern the division of the parties’ assets. In this case the asset is personal; i.e., federal pension entitlement. Decision On Issue: [20] Under the circumstances as set out, find that the Nova Scotia court has jurisdiction to vary the Consent Order of the Ontario court. Forum Conveniens Issue: [21] Ms. Schoen argues that even if this court finds that it has jurisdiction to deal with the matter, the Ontario court would also have jurisdiction to vary the terms of its own order. would agree with that submission. Ms. Schoen submits that since both courts have jurisdiction, under the circumstances here, the Ontario court is the more convenient forum for hearing the matter. Mrs. Walker disagrees and submits that this court should be determined as being the forum conveniens. [22] The court declines to make finding on this issue on the basis that no factual body of evidence has been submitted with the application upon which the court could make such finding. No evidence relating to the issue was adduced at the hearing and no affidavits were filed by the parties setting out the facts relied upon for such finding. Tidman, J. Halifax, Nova Scotia","The applicant commenced a divorce action against her husband incorporating a claim for a division of assets under the Matrimonial Property Act. The Ontario Court had previously granted a consent order incorporating an agreement between the parties purporting to divide matrimonial assets. The applicant sought to set aside the agreement on the grounds of unconscionability, harshness or fraud. The court has jurisdiction to vary the agreement on the grounds alleged notwithstanding that the Act does not specifically provide the court with jurisdiction .",d_2003nssf2.txt
132,"C.A.C. No. 108237 NOVA SCOTIA COURT OF APPEAL Chipman, Freeman and Roscoe, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and JOHN WAYNE MacLENNAN Respondent Robert C. Hagell for the Appellant Curtis C. Palmer, Esq. for the Respondent Appeal Heard: January 30, 1995 Judgment Delivered: February 20, 1995 THE COURT: The appeal is allowed, the conviction restored. Notices of contention dismissed. Freeman, J.A.: While constable Karen Byrne of the Royal Canadian Mounted Police and her partner were patrolling in police vehicle on Commercial Street in New Minas, Kings County, on the evening of June 21, 1993, they fell in behind vehicle in which they saw the passenger putting on his seat belt. It is an offence under the Motor Vehicle Act for the passenger not to have been wearing it. Constable Byrne turned on her emergency lights and the vehicle pulled over at about 10:45 p.m. Constable Byrne asked the respondent to accompany her back to the police cruiser. From her observations of him she concluded that he was impaired by alcohol and gave him the breathalyzer demand without requiring test with an ALERT screening device. The driver subsequently failed the breathalyzer test. The Issues He was convicted of driving with an illegal blood alcohol level after trial in Provincial Court. His summary conviction appeal to the Supreme Court was allowed on the basis that he had been arbitrarily detained contrary to s. 9 of the Canadian Charter of Rights and Freedoms. His counsel had argued that his s. right to be free of unreasonable search and seizure had been infringed. The Crown has appealed on the ground that the summary conviction appeal court erred respecting arbitrary detention and the exclusion of evidence of the breathalyzer result under s. 24(2) of the Charter. The respondent has filed notices of contention alleging the trial judge erred in finding Constable Byrne had reasonable and probable grounds for breathalyzer demand, and that the respondent's right to counsel under s. 10(b) of the Charter was infringed. The major concern in the context of the alleged Charter infringements is that the police officer based her conclusions for the breathalyzer demand on observations made after she requested that the respondent accompany her from his own car to the police cruiser. The respondent argued this was search contrary to s. of the Charter. The Facts The respondent, John Wayne MacLennan, whom Constable Byrne had not known previously, was the driver of the vehicle. He pulled over in response to the emergency lights and opened the door as she approached his side of the car. She asked him if the window worked and he closed the door and opened the window. ""Immediately,"" she said, ""I could detect the odour of alcohol quite strongly coming from the vehicle and asked Mr. MacLennan where he had been and where he was going. He was bit evasive about that."" Mr. MacLennan was entitled to remain silent. Questioning by police which might conscript the detained person against himself is improper at this stage, when the right to counsel under s. 10(b) of the Charter is suspended. On cross examination she said that ""When stopped Mr. MacLennan could detect alcohol in, coming from the area of the vehicle, that's why brought him back to the car so could determine that that was not just from the vehicle as there had been beer spilled on the floor of the vehicle."" Once she got him back to the police car she was able to say there was an odour of alcohol coming from Mr. MacLennan. Constable Byrne gave Mr. MacLennan the breathalyzer demand and then read him his rights to counsel under the Charter from prepared form. This was at about 10:55 p.m. She said she gave him the demand because she thought he had been impaired in his driving by alcohol: ""I felt that he had been consuming alcohol excessively. could smell the odour coming from him, that's why brought him back to the police car. He also was very slow, speech and movements, when he was looking for his documents he was fumbling and observed him to sway somewhat when he left his vehicle on the way to the police car."" They proceeded to the detachment, arriving at 11:02 or :03 p.m. and Constable Byrne asked Mr. MacLennan if he wanted to contact lawyer. When he said he did not wish to do so. Constable Merrell, Constable Byrne's partner, administered the breathalyzer test. Mr. MacLennan failed. Both his readings were 170 milligrams of alcohol in 100 millilitres of blood, more than twice the legal limit of 80. Trial Result On these facts Mr. MacLennan was convicted after trial in Provincial Court by Judge Crowell. Constable Byrne was the only witness to testify. Judge Crowell made clear finding that she had reasonable and probable cause for making the demand. Summary Conviction Appeal The conviction was quashed by Justice MacDonald of the Supreme Court, sitting as summary conviction appeal court judge. He found that Mr. MacLennan's detention by Constable Byrne had been arbitrary and therefore infringed his rights guaranteed by s. of the Charter, which provides: ""9. Everyone has the right not to be arbitrarily detained or imprisoned."" Section of the Charter had not been specifically argued at trial, but the defence had argued s. 8: ""8. Everyone has the right to be secure against unreasonable search or seizure."" Justice MacDonald stated: ""Counsel for the appellant argued that there was an improper search contrary to section of the Charter. The trial judge answered this with the following comments at p. 24 of the transcript: ‘Defence further argues that Rilling does not apply here because of the Charter breach that is an improper search under Section of the Charter. The Court is in agreement that Rilling is still good law unless there is Charter breach. Charter breach prior to the taking of the test would prohibit the introduction of the results of those tests. So the whole issue boils down to very simple one of whether or not the officer had reasonable and probable grounds. have already cited her basis for her opinion.' In this case, do not believe that section of the Charter can be answered without also examining section 9. in these circumstances there has to be 'stopping' before search can be initiated. 'stopping' can be detention and, if arbitrary, would be contrary to section 9. After 'stopping' search would begin when the constable looks into the detainee's motor vehicle and, without grounds would be unreasonable and contrary to section 8. On the evidence here, the learned trial judge did not give consideration to the potential application of section 9. It appears to me that the stopping of the appellant's motor vehicle was arbitrary and, therefore, the appellant was being 'arbitrarily detained' contrary to the Charter. It was from this arbitrary detention that the search (questions, requests and observations of the appellant) of the appellant was made, followed by the determination of the constable that there was 'reasonable and probable grounds' for the making of the demand. The gravamen of the case for the defence herein is not whether the constable had reasonable and probable grounds for making the demand, but whether there was breach of section of the Charter because the search only took place following the arbitrary detention of the Appellant‑‑a breach of section of the Charter. The Charter argument, although not too precise, was introduced by the appellant and believe that the introduction was sufficient to warrant consideration of sections and 24 by the court."" Justice MacDonald did not consider whether the arbitrary detention was justified under s. of the Charter. ALERT Considerations The focus of inquiry in this appeal is on the period between the engagement of the police emergency lights and the decision whether or not to give the breathalyzer demand. While the issues were different in R. v. Bernshaw (S.C.C. Unreported‑‑January 27, 1995) the same time period was relevant and the Supreme Court of Canada made number of observations providing useful guidance. Not least of these is Justice Cory's compelling reminder of the reasons it is necessary to have strong drunk driving laws and an effective police presence on the highways: ""Every year, drunk driving leaves terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. Statistics Canada recently noted: Impaired driving is serious crime. Every year thousands of Canadians are killed and many more injured in traffic‑related accidents. Alcohol is contributing factor in an average of 43% of these cases...."" The issues in Bernshaw arose from decision of the British Columbia Court of Appeal rejecting the results of an ALERT test when the police officer had not waited for fifteen minutes before administering it to allow for the dissipation of mouth alcohol, which might result from recent drink, burping or regurgitation, and which could cause an erroneous result. Sopinka J., writing for majority of the Court consisting of LaForest, Sopinka, Gonthier, McLachlin and Major, JJ., adopted the flexible approach proposed by Arbour J.A. of the Ontario Court of Appeal in R. v. Pierman; R. v. Dewald, (Ont. C.A., August 24, 1994), in which it was held permissible but not mandatory for police officers to wait fifteen minutes when aware of circumstances making the delay reasonable to ensure proper analysis of the breath. Sopinka J. acknowledged that the fifteen minute delay ""unduly expands the detention without access to counsel"" but stated: ""Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat the purpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would be rendered totally unreliable and flawed. The flexible approach strikes the proper balance between Parliament's objective in combatting the evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure."" Cory J., writing with the concurrence of Lamer C.J.C. and laccobucci J., held there was no basis for fifteen‑minute delay in any circumstances: ""Since R. v. Thomsen, supra, this Court has repeatedly held that if driver is stopped by police officer, that driver is detained for the purposes of s. 10(b) of the Charter. The driver, accordingly, has the right to retain and instruct counsel. ... in R. v. Thomsen it was recognized that although the absence of the opportunity to retain counsel violated s. 10(b) of the Charter, it was justified under s. because it was urgent that the breath sample be obtained quickly in order to be effective. The right to retain counsel was incompatible both with the effective use of the ALERT device and with the purpose of demonstrating police presence which would convince drinking drivers that there was high probability that they would be quickly and readily detected. The section's use of the word 'forthwith' in the context of roadside screening test clearly indicated that there was to be no opportunity granted to driver to call lawyer. The test was to be performed immediately and to fail it had no penal consequences. It is testing device used to protect the public. Quite simply, it is not possible to conduct roadside test 'forthwith', that is immediately, and at the same time require the driver to be subject to detention which is sufficiently lengthy to provide an opportunity to retain and instruct counsel under s. 10(b) of the Charter. delay of that length without the right to instruct counsel might well not only be inconsistent with s. 10(b) of the Charter but also might be such that it could not be saved by s. 1. An impaired driver is potentially lethal hazard that must be detected and removed from the road as quickly as possible. The ability to administer the test immediately helps to protect the public by detecting those who may be danger. The relatively rare occasions on which an ALERT test may be erroneous as result of the driver consuming very recent drink must be tolerated in the interest of the safety of the public."" Elsewhere in the decision, it was pointed out that if an ALERT test does result in an erroneous ""fail"", no penal consequences follow. The more accurate breathalyzer test will correct the ALERT error. Cory J. continued: “This requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flows from the right to drive. In Galaske v. O'Donnell, 1994 CanLII 128 (SCC), [1994] S.C.R. 670, at p. 686, it was noted that the driving of motor vehicle is neither God‑given nor constitutional right. Rather, it is privilege granted by license. Attached to every right are concomitant duties, obligations and responsibilities. This is true of the licensed right to drive. One of the prime responsibilities of driver is to see that reasonable care is exercised in the operation of the motor vehicle, and specifically, that it is driven in manner which does not endanger members of the public. That duty or responsibility cannot be fulfilled by an impaired driver who, by definition, endangers others. In furtherance of the duty not to endanger others, there exists an obligation to comply with police officer's reasonable request to supply breath sample. Complying with reasonable request to take an ALERT test is very small price to pay for the privilege of driving."" While Constable Byrne did not find it necessary to give the ALERT demand in the circumstances of the present case, that was merely one of the options resulting from the same legislation and subject to the same rationale that were relevant in Bernshaw. The Motor Vehicle Act The ALERT demand is not the only price to be paid for the privilege of driving. It is also necessary to comply with the provincial motor vehicle legislation. Relevant provisions of the Nova Scotia Motor Vehicle Act R.S.N.S. 1989 c. 293 must be examined. It was first necessary for Constable Byrne to bring the respondent's motor vehicle to stop. Her authority to do so is found in s. 83 (1) (formerly s. 74(1)) which provides: ""83(1) It shall be an offence for any person to refuse or fail to comply with any order, signal or direction of any peace officer."" When this is read in the context of the common law authority of police to control traffic on the highways, other provisions of the Motor Vehicle Act and provisions of the Criminal Code, and note is taken of long standing customary practices, I am left in no doubt that s. 83(1) authorizes peace officers to require vehicles on the highway to come to a stop in response to an appropriate order, signal or direction. Comparable provisions in other provinces have been held not merely to impose duty upon drivers but to provide peace officers with corresponding authority. S. 119 of the Alberta Highway Traffic Act was considered by the Supreme Court of Canada in R. v. Wilson, 1990 CanLII 109 (SCC), [1990] S.C.R. 1291, where it was argued that it did not grant statutory authority for random stops. The court did not accept that contention. That section reads: ""119 driver shall, immediately upon being signalled or requested to stop by peace officer in uniform, bring his vehicle to stop and furnish any information respecting the driver or the vehicle that the peace officer requires and shall not start his vehicle until he is permitted to do so by the peace officer."" The court held: ""Though s. 119 imposes duties upon motorists rather than conferring powers on the police, the language of this section is broad enough to authorize random stops of motorists by police officers. in contrast to the legislative provisions considered in Dedman v. The Queen, 1985 CanLII 55 (SCC), [1985] S.C.R. 2,],supra, s. 119 requires driver not merely to surrender his licence on demand, but when 'signalled or requested to stop', to 'bring his vehicle to stop and furnish any information respecting the driver or the vehicle that the peace officer requires'. Constable MacFarlane's actions in stopping the appellant were therefore statutorily authorized by s. 119 of the Highway Traffic Act."" While s. 83(1) of the Nova Scotia Motor Vehicle Act, which is under Part of the Act respecting Traffic on the Highway, authorizes police officers to stop vehicles, it does not require drivers to furnish information. Once vehicle comes to halt further authorization must be sought elsewhere in the Act. It was held in Baroni (1989) 1989 CanLII 195 (NS CA), 91 N.S.R. (2d) 295 at p. 301: ""I do not find that, after vehicle has effectively ceased to be part of the traffic moving on the highway and the driver has been detained, s. 74 can justify requirement that the driver perform coordination tests which conscript him against himself through evidence other than confession emanating from him."" While randomly stopped driver cannot be conscripted against himself by way of statements or unauthorized tests, he or she can be properly asked to produce his license, permit and insurance. This provides an opportunity for police officer to make observations of the indicia of impairment passively emanating from the driver. Section 78 (2) of the Motor Vehicle Act provides: ""78 (2) Every person shall have valid driver's license in his immediate possession at all times when driving motor vehicle and shall display the same at all reasonable times on demand of peace officer. (A provision similar to s. 78(2) was considered in Dedman and found insufficient, in itself, to justify random stops. Ontario did not have statutory provision similar to our s. 83(1) authorizing police to stop vehicles until the enactment of s. 189a(1) subsequent to Dedman.) S. 18 of the Motor Vehicle Act is similar provision with respect to vehicle permits. Proof that the driver carried liability insurance must also be produced. Police also have the right to stop vehicle to check its equipment and mechanical condition. In my view the authority of peace officers in Nova Scotia under ss. 83(1), 78(2) and s. 18 of the Motor Vehicle Act is equivalent to that of peace officers in Alberta under s. 119 of the Highway Traffic Act. Therefore consider Wilson to be binding authority in Nova Scotia. am also of the view that the authority of peace officers under s. 83(1) is essentially similar to that flowing from Section 189a(1) of the Ontario Highway Traffic Act, which provides: ""189a(1) police officer, in the lawful execution of his duties and responsibilities, may require the driver of motor vehicle to stop and the driver of motor vehicle, when signalled or requested to stop by police officer who is readily identifiable as such, shall immediately come to safe stop."" Therefore the pronouncements of the Supreme Court of Canada in such definitive cases as Dedman v. R, Hufsky v. 1988 CanLII 72 (SCC), [1988] S.C.R. 621 and Ladouceur v. R. 1990 CanLII 108 (SCC), [1990] S.C.R. 1257 are of binding authority with respect to the relevant provisions of the Nova Scotia Motor Vehicle Act. Random Stopping R. v. Dedman was decided year prior to the enactment of s. 189a(1) and two years prior to the Charter but the statement of former Chief Justice Dickson defining arbitrary detention in his dissenting judgment is convenient starting point for considering the laws as to random stops: Short of arrest, the police have never possessed legal authority at common law to detain anyone against his or her will for questioning, or to pursue an investigation. He cited R. v. Waterfield, [1963] All E.R. 659 (C.C.A.), as the case which is "". [O]ften relied upon as enunciating the test for the common law basis of police power. The English Court of Appeal stated at p. 661: In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have duty to prevent crime and duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of private person, the powers of constables are not unlimited. Waterfield has been applied by this Court in R. v. Stenning, 1970 CanLII 12 (SCC), [1970] S.C.R. 631 and Knowlton v. The Queen, [1974] S.C.R .443, and in two English cases of note, Hoffman v. Thomas, [1974] All E.R. 233 (Q.B.D.), and Johnson v. Phillips, [1975] All E.R. 682 (Q.B.D.)."" The majority in Dedman applied Waterfield in concluding that, in the context of Ontario's R.I.D.E. program there was common law authority in police officers to stop vehicles at random. in the course of the court's analysis the following observation was made with respect to police powers: ""It has been held that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property, from which is derived the duty to control traffic on the public roads. See Rice v. Connolly, [1966] Q.B. 414, at p. 419; Johnson v. Phillips, [1975] All E.R. 682, at p. 685; Halsbury's Laws of England, 3rd ed., vol. 30, para. 206, p. 129."" The headnote of the Dedman case describes the police activities that the court considered: ""Appellant voluntarily complied with police officer's request to stop his vehicle. There was nothing improper about his driving or the condition of his car. The stop was ordered as part of spot check program, known as R.I.D.E., whose principal aim is to detect, deter and reduce impaired driving. The police go to location where they believe there has been high incidence of impaired driving and, on random basis, request motorists to pull over and stop. They then ask for valid driver's licence and proof of insurance to initiate conversation with the goal of detecting the otherwise undetectable drinking driver."" (Emphasis added.) In Wilson the court stated: ""With regard to the second point, the appellant's arguments that the stopping was unconstitutional can be dismissed on two bases. First, if the stopping of the appellant's vehicle is considered to be random stop then for the reasons given in Ladouceur, supra, would conclude that although the stop constituted an arbitrary detention, it was justified under s. of the Charter. Second, in this case the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of rural community. in case such as this, where the police offer grounds for stopping motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. of the Charter."" In Ladouceur Cory J., writing for the majority, went considerably beyond the cautious approach expressed in Wilson. He stated the conclusion of the court: ""While the routine check is an arbitrary detention in violation of s. of the Charter, the infringement is one that is reasonable and demonstrably justified in free and democratic society. As result, s. 189a(1) of the Highway Traffic Act is valid and constitutional legislative enactment. There is no need to read the section down as did Tarnopolsky, J.A. in the Court of Appeal or to qualify it in any way. Having come to this result, it is not necessary to deal with the arguments raised under s. 24(2). The answers to the constitutional questions posed are: 1. Is section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, as amended by s. of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, inconsistent with ss. 7, and of the Charter of Rights and Freedoms to the extent that it authorizes the random stop of motor vehicle and its driver by police officer acting without any reasonable grounds or other articulable cause to believe that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. programme? Answer: Section 189a(1) of the Highway Traffic Act, R.S.O. 190, c. 198 as amended by s. of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, is not inconsistent with ss. or of the Canadian Charter of Rights and Freedoms but is inconsistent with s. 9. 2. If the answer to question lies in the affirmative, can s. 189a(1) of the Highway Traffic Act be justified pursuant to s. of the Charter? Answer: Section 189a(1) of the Highway Traffic Act can be justified pursuant to s. of the Charter."" Hufsky v. R. was considered in Cory J.'s judgment in Ladouceur: ""Hufsky had been randomly stopped by police officer in Metro Toronto. The officer asked to see the appellant's driver's licence and proof of insurance and verified their validity. While speaking to Hufsky, the officer detected alcohol on his breath and noticed that his speech was slightly slurred. The officer asked Hufsky to accompany him to his police car to conduct roadside breath test. But when the officer made the breath demand, Hufsky refused to comply. The officer then told Hufsky that he would be charged with failing to provide breath sample and informed him of his right to retain and instruct counsel without delay. Le Dain J., writing for unanimous Court, held that the random stops conducted under the spot check program and authorized by s. 189a(1) of the Highway Traffic Act did not violate the Charter. He concluded that although the random stop constituted arbitrary detention in violation of s. of the Charter it was justified under s. 1. He also held that the random stop did not constitute an unreasonable search and seizure in violation of s. of the Charter. in holding that the random stops, though violating s. 9, were justified under s. 1, he stated at pp. 636‑37: In view of the importance of highway safety and the role to be played in relation to it by random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving, am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained guaranteed by s. of the Charter is reasonable one that is demonstrably justified in free and democratic society. The nature and degree of the intrusion of random stop for the purposes of the spot check procedure in the present case, remembering that the driving of motor vehicle is licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served. There are few distinctions between the random stop under consideration in the case at bar and the random stop dealt with by this Court in Hufsky. In both cases, the stop was conducted in order to check licences, insurance, mechanical fitness and, although never explicitly stated at the appellant's trial, the sobriety of the driver. in both cases, the police actions were authorized primarily by s. 189a(1) of the Highway Traffic Act which granted them absolute discretion to stop motorists if in the lawful execution of their duties. Finally, the respondent the Attorney General of Ontario relied on exactly the same extrinsic evidentiary material in each case to justify the random stops. It might be sought to distinguish the Hufsky decision on the ground that it applied to an organized program of roadside spot checks, whereas this case concerns the constitutionality of completely random stops conducted by police as part of routine check which was not part of any organized program. It might well be that since these stops lack any organized structure, they should be treated as constitutionally more suspect than stops conducted under an organized program. Nonetheless, so long as the police officer making the stop is acting lawfully within the scope of statute, the random stops can, in my view, be justifiably conducted in accordance with the Charter."" Cory J. referred to Hufsky again in considering whether routine check random stop violates ss. 7, or of the Charter? ""In Hufsky, supra, Le Dain J. held that random stop of motorist for the purposes of the spot check procedure violated s. of the Charter. He found that motorist stopped at check point was detained as that term was defined in R. v. Therens, 1985 CanLII 29 (SCC), [1985] S.C.R. 613, and R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] S.C.R. 640. He stated at p. 632: 'By the random stop for the purposes of the spot check procedure the police officer assumed control over the movement of the appellant by demand or direction that might have significant legal consequence, and there was penal liability for refusal to comply with the demand or direction.' Le Dain J. also determined that the detention was arbitrary, since there were no criteria for the drivers to be stopped and subjected to the spot check procedure. He stated at p. 633: 'The selection was in the absolute discretion of the police officer. discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.' The conclusions reached in Hufsky, supra, determine the arbitrary detention issue raised in this case. Although the police officers differed as to whether the appellant would have been arrested if he had attempted to flee, there can be no question that he was detained. The police officers had assumed control over the movement of the appellant by demand or direction. In addition, while the detention involved only traffic offences rather than violations of the Criminal Code, the maximum penalties which provide for $2,000 fine or six months' imprisonment, demonstrate that the legal consequences of the detention were significant. The detention was arbitrary, since the decision as to whether the stop should be made lay in the absolute discretion of the police officers. There can thus be no doubt that the routine check random stop constituted an arbitrary detention in violation of s. of the Charter. The appellant's challenge under s. is also governed by the decision in Hufsky. There Le Dain J. stated at p. 638: In my opinion the demand by the police officer, pursuant to the above legislative provisions, that the appellant surrender his driver's licence and insurance card for inspection did not constitute search within the meaning of s. because it did not constitute an intrusion on reasonable expectation of privacy. Cf. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145. There is no such intrusion where person is required to produce licence or permit or other documentary evidence of status or compliance with some legal requirement that is lawful condition of the exercise of right or privilege. Section might be brought into play in circumstances where the police, in the process of random stop, found in the car marijuana or an item of stolen property. But the police in this case did no more than request the appellant's licence and insurance papers. The appellant quickly admitted that his licence was under suspension and as result he was unable to produce these documents. It follows that it cannot be argued that ""seizure"" within the meaning of s. occurred. The action of the police in this case cannot be regarded as violation of s. of the Charter. Since it has been determined that routine check random stops violate s. of the Charter, it is unnecessary to decide whether these random stops infringe s. 7."" The conclusion the Supreme Court of Canada has consistently reached in the cases referred to above is that police are authorized, at least under the Alberta and Ontario legislation, to make random stops for the purposes of inspecting documents and with view to detecting drinking drivers. These may be made within or without the context of publicized anti drunken driving campaigns, such as the Ontario R.I.D.E. program. Random stops are infringements of the s. 9 Charter right to be free of arbitrary detention, but they are saved by s. 1 of the Charter. If police do not go beyond what is reasonably justified for purposes of highway safety, s. of the Charter is not infringed. am satisfied that the Alberta and Ontario legislation is similar in material respects to that of Nova Scotia. Therefore the conclusions of the Supreme Court of Canada in the relevant cases have equal application in this province. Anatomy of the Incident Perhaps enough underlying principles have been stated to permit an examination of the anatomy of what the Crown described, with some accuracy, as ""routine"" breathalyzer incident. As in Wilson, Constable Byrne was justified in engaging her emergency lights and stopping Mr. MacLennan's vehicle both as random stop and stop made for an articulable cause. The observation of the passenger putting on his seat belt was sufficient to give them reasonable cause to believe an offence had been committed under s. 175(4) of the Motor Vehicle Act, which requires every passenger to wear seat belt while motor vehicle is being operated on highway. There was nothing in the manner in which Mr. MacLennan himself was driving his vehicle to suggest to the police officers that anything was amiss. The police officers were not engaged in publicized campaign to combat drunken driving such as the Ontario R.I.D.E. program. They were exercising common law duty to control traffic on highway coupled with statutory authority to stop vehicles. They had the authority to stop Mr. MacLennan's vehicle. To the extent that the stop was random and arbitrary, it was an infringement of s. of the Charter that was justified under s. 1. From the moment the vehicle stopped the driver was detained, but he was not entitled to the right to counsel pursuant to s. 10(b) of the Charter. The necessity for this is explained in Bernshaw. This state of affairs, which must be kept as brief as possible, continues until the driver is either permitted to go on his way or is subjected to breathalyzer demand, usually but not necessarily after failing an ALERT test. This period breaks into two divisions. The second, which begins the moment the police officer has formed reasonable suspicion that there is alcohol in the driver's body, was the focus of Bernshaw. Then the ALERT demand must be made ""forthwith"" within flexible limits. This presupposes an earlier time division beginning with the detention while the reasonable suspicion is taking shape in the officer's mind. During this incubation period the officer is able to keep the driver under observation while inspecting his or her driver's license, certificate of registration and proof of insurance. if the inspection and observation are related solely to the officer's duties to control traffic, which includes the detection of drinking drivers, no breach of s. of the Charter occurs. Mellinthin v. 1992 CanLII 50 (SCC), [1992] S.C.R. 615 illustrates how police powers at roadside may be exceeded. vehicle driven by Mellinthin was stopped and police shone flashlight into the interior, noting an open gym bag on the front seat. He was asked what it contained and replied that it was food. When police searched it, vials of cannabis resin were discovered. Cory J., writing for the majority, stated: “There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of flashlight and it is necessarily incidental to check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can place any particular significance upon the fact stressed by the appellant that the police only made use of flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as necessary incident to the check stop routine. However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into means of conducting either an unfounded general inquisition or an unreasonable search."" In the present case Constable Byrne requested that Mr. MacLennan go to the police cruiser. This was reasonable incident of her duty to check his papers and observe him for signs of impairment. It may be noted that police routinely check the validity of licenses by radio call from their vehicles, and it was appropriate for him to be present. He had passenger with him, and the Crown suggested it is police practice intended for their own protection to separate the driver with whom they have their commerce from others in the vehicle. This would seem to be reasonable safeguard. Cory J.'s remarks as to use of the flashlight are apposite. The request was perfectly proper one and while Mr. MacLennan was not obliged to comply with it, the fact that he did so can hardly be considered breach of his rights. It is true that Constable Byrne wished to observe Mr. MacLennan away from his vehicle so she could tell whether the odour of alcohol was coming from him or the spilled beer in the car. She was entitled to ask him to come to the police vehicle, and there was nothing improper about her using that as device to further her legitimate objectives. The jurisprudence cited above makes it clear the Supreme Court of Canada approves of police making use of the opportunities provided by their right to inspect documents to make the observations necessary to detect drinking drivers. No infringement of s. occurred. Observing Mr. MacLennan in the course of proper police procedures is different matter from conscripting him to perform sobriety tests for the purpose of incriminating himself which was found objectionable in Baroni. There was no statutory or common law authority validating the sobriety tests. There is strong authority for the observation of indicia of impairment emanating from the respondent in the course of routine procedures during roadside stop. The indicia of Mr. MacLennan's impairment observed by Constable Byrne were passive emanations flowing from the fact he had had so much to drink that it showed it in his odour, his speech and his movements. In these circumstances there was no improper intervention by the officer in conscripting him against himself or which violated his reasonable expectations of privacy. He knew he could be asked to produce his documents if he drove his vehicle on highway, and that in doing so he might be requested to attend at police cruiser. Knowing that, he consumed the alcohol voluntarily and then chose to drive on highway. Constables Byrne and Merrell protected Mr. MacLellan, his passenger and the public by alert police work. In this case Constable Byrne did not give Mr. MacLennan an ALERT demand. She gave him the breathalyzer demand instead. There was nothing inappropriate about this. As noted above, there is an incubation period while driver is observed during the inspection of documents when police officer may form the reasonable suspicion prerequisite to the ALERT demand. There are two other possibilities. The usual one is that no suspicion of drinking may arise and the driver is free to leave. The other possibility is that during the incubation period the indicia of impairment strike the officer so forcefully that there is no need for the screening test; the officer forms reasonable and probable belief that the driver is impaired and no further evidence is required. In that event either the driver is given the breathalyzer demand or arrested for impaired driving. While the reasonable and probable grounds necessary to support the breathalyzer demand or an arrest are of much higher standard than the reasonable suspicion needed for the ALERT demand, this is only matter of degree. While the framework was created to permit screening tests with the ALERT machine as discussed in Bernshaw, an ALERT demand is not necessary to justify the preceding period of detention without the right to counsel. In most circumstances failing result on the ALERT is all the evidence needed to support breathalyzer demand, but the ALERT result is not necessary part of the evidence if other grounds exist. In the present case Judge Crowell in his well considered judgment found himself to be ""satisfied that the officer did in fact have reasonable and probable grounds for making the demand that she did."" The evidence was sufficient to meet the test in R. v. Yebes 1987 CanLII 17 (SCC), [1987] S.C.R. 168. If he had not been able to make that finding he indicated that he would consider applying Rilling v. R. 1975 CanLII 159 (SCC), [1976] S.C.R. 183, which was approved by Cory J. in Bernshaw. Absence of reasonable and probable grounds is defence to refusing breathalyzer demand, but when the test has been taken, proof of the existence of the grounds is not necessary element of the Crown's case if there has been no Charter infringement. am satisfied there was no Charter infringement in the present case. The finding as to reasonable grounds disposes of the respondent's first ground of contention. The second, alleging an infringement of the s. 10(b) right to counsel, relates not to the initial incident at roadside but to the sufficiency of the right to counsel given him following the breathalyzer demand in light of the recent decision of the Supreme Court of Canada in Bartle v. R. (Unreported‑‑1994 S.C.C.). While Bartle may well cause police to reexamine the form of information provided to accused persons under s. 10(b), it does not shift the burden from the accused to assert Charter infringement. This issue was not raised at the trial and do not find it is properly before this court on the appeal. Summary Police in Nova Scotia are justified in stopping vehicles at random, independently of any articulable cause or publicized enforcement program, for the purpose of controlling traffic on the highway by inspecting licensing, registration and insurance documents, the mechanical condition of vehicles, and to detect impaired drivers. Random stops are arbitrary detentions which infringe s. 9 of the Charter but which are saved under s. 1. The driver is not entitled to the right to counsel guaranteed by s. 10(b) of the Charter during the period, which must be as brief as possible, between detention which begins when the vehicle is stopped and the conclusion of the inspection of documents, when the driver must be released if no demand has been given. If police officer forms reasonable suspicion under s. 254(2) the ALERT demand must be given forthwith, which is to be interpreted flexibly if there is reason to believe the ALERT test will not be accurate. Observations of drivers made in the course of inspecting documents and reasonably incidental, or safety related, activities such as examining the interior of vehicles by flashlight or requesting drivers to attend at the police cruiser are relevant to the formation of reasonable suspicion of the presence of alcohol in the driver's body sufficient to justify an ALERT demand under s. 254(2) of the Criminal Code. They may also result in the formation of reasonable belief sufficient to justify breathalyzer demand or arrest for impaired driving without the necessity of an ALERT test. The suspension of the right to counsel and the guarantee against arbitrary detention under s. of the Charter do not justify the taking of statements or searches unrelated to the control of traffic; i.e. the inspection of documents or mechanical condition and detection of drinking drivers. Conclusion In my view the summary conviction appeal court was in error in determining there had been an arbitrary detention in breach of s. of the Charter which was not saved by s. 1. Accordingly I would allow the appeal on this ground and restore the conviction entered by Judge Crowell. There is therefore no need to consider s. 24(2) of the Charter. would dismiss the notices of contention. Freeman, J.A. Concurred in: Chipman, J.A. Roscoe, J.A. CANADA PROVINCE OF NOVA SCOTIA Case 404440 404441 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus JOHN WAYNE MACLENNAN HEARD BEFORE: His Honour Judge K. L. CROWELL PLACE HEARD: KENTVILLE, Nova Scotia DATE HEARD: February 3rd, 1994 CHARGE: on or about the 21st day of June 1993 at or near New Minas, Kings County, Nova Scotia, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate motor vehicle, contrary to Section 253(b) of the Criminal Code, AND FURTHER SECTION 253(A) of the Criminal Code. COUNSEL: Darrell Carmichael, For the Prosecution. Curtis Palmer, For the Defense. C.A. No. 108237 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN and JOHN WAYNE MacLENNAN Respondent REASONS FOR JUDGMENT BY: Freeman, J.A.","The respondent was convicted at trial with illegal blood alcohol level while operating a motor vehicle. The police had stopped the respondent when they observed the passenger putting on a seat belt. When the respondent went to the police cruiser, the police observed signs of impairment. The summary conviction appeal court held the stop was random and constituted an arbitrary detention infringing the respondent's s.9 Charter rights. The Crown appealed. Allowing the appeal and restoring the conviction. Random stops are arbitrary detentions infringing the Charters. 9 but are saved by s.1. They are authorized in Nova Scotia under Motor Vehicle Act provisions. In the course of checking licences, registration, insurance policy and mechanical condition police are justified in making observations to detect drinking drivers; the right to counsel under s. 10(b) is suspended during this period.",7_1995canlii4340.txt
133,"J. IN THE PROVINCIAL COURT OF SASKATCHEWAN SMEATON, SASKATCHEWAN HER MAJESTY THE QUEEN UPON THE INFORMATION OF MANLEY J.K BURLEIGH, PEACE OFFICER against CALVIN JOHN KLIMEK OF CANDLE LAKE, SASKATCHEWAN ACCUSED Mr. Gary Parker ........................................................................ Crown Prosecutor Mr. Ron Piche ............................................................... Counsel for the Accused Decision B.D. HALDERMAN, P.C.J. April 18, 2000 R. v. Calvin John Klimek S. 264.1 Criminal Code Decision Background and Initial Findings of Fact [1] Calvin John Klimek is charged that on October 12, 1999 at Candle Lake and Prince Albert District he did knowingly utter a threat to Lena Klimek to cause death to Lena Klimek, Merril Klimek and Garry Klimek, contrary to s. 264.1 of the Criminal Code. [2] Lena Klimek, age 77, has lived on a farm approximately 30 km. east of Prince Albert for some 64 years. She is the mother of the Accused Calvin Klimek, age 44. One of Mrs. Klimek’s sons, Merril, lives with her. [3] Adam Klimek, another son of Lena Klimek, had recently passed away, and very bitter family fight had developed over dealings with and entitlement to his rather substantial estate. The Accused, and to some extent one other sister, were in opposition to Lena Klimek and her other children, including Merril Klimek and Garry Klimek. [4] Sometime after 10 a.m. on October 12, 1999 Michael Klimek, age 29, dropped in to visit his grandmother Lena at her farm home. Michael is the son of Merril Klimek. female friend of Lena Klimek’s was there when he arrived, as the two women were preparing to go bowling in Prince Albert. The friend, though present throughout the telephone conversation which forms the basis of the charge before the Court, was not witness at trial. [5] Soon after Michael Klimek arrived the telephone rang and Mrs. Klimek answered it. It is common ground that the Accused was the caller, and that he was calling from his residence about 100 km. away. Calvin Klimek was extremely agitated about the sale of Adam Klimek estate cattle that was taking place at that moment. His voice was very loud, and his speech was full of coarse language. The Accused’s wife, Camille, was present at the Calvin Klimek residence and testified that during the course of the conversation, the Accused became so angry, and his voice was so loud that he woke the baby granddaughter sleeping in the next room. [6] Although Michael Klimek said there were some parts of the conversation he didn’t catch or ceased listening to, he said that he was sitting about four feet from the phone, and that Lena Klimek held the phone away from her ear because the Accused was speaking so loudly. find that Michael Klimek was able to clearly hear those portions of the conversation which he testified to with respect to the alleged threat. [7] Michael Klimek testified that his uncle’s voice was extremely high-tempered about the selling of cattle which was going, that the Accused said everybody at the farm was bunch of liars, that he was going to blow away Lena, Merril and Garry Klimek, and that they would be put in plastic bags. Michael’s interpretation of what Calvin Klimek said was that these three individuals would no longer be living. Michael also heard the Accused say he was coming down to the farm to take some pictures off the walls, and anything else he thought was his. He said his grandmother didn’t talk much during the telephone call, which lasted 10 to 15 minutes. He said he saw fear in his grandmother’s face. Her friend whispered to him couple of times during the course of the conversation that this was “a terrible thing to happen”. He said that at the conclusion of the conversation, Lena wasn’t sure what to do, that she and her friend went to their bowling, that Michael went to the cattle auction to report the incident, and that Garry Klimek immediately called the RCMP. [8] Lena Klimek testified with respect to the phone conversation. She said there was lot of anger in the Accused’s voice, and lot of swear words. The Accused had never spoken to her this way before, she hadn’t expected it, and it was hard to take. She said her friend was “just petrified” and that she, Lena, was “really shook up”. [9] Lena said that the Accused asked her who gave Merril permission to sell the cattle, and that “I will kill that crippled son of bitch”, (referring to Merril who had had back operation), and that “you will all go out in plastic bags”. She testified he said he would come and would take his pictures and his kid’s pictures off the wall, or if not off the wall would smash all the pictures. Lena told him not to come, and he said he would come any damn time he wanted. He further said he would come and bring friend, and they would “clean us all out”. [10] In cross-examination, Lena Klimek agreed that nowhere in her statement to police had she used the word “kill”. She said Calvin probably used both the words “kill” and “get rid of”. She wasn’t sure in her statement to the police whether the Accused had used the words “blow away”. In her evidence, she was adamant that the Accused had spoken of blowing someone away, referring to herself, Merril and Garry. She said she had looked at her statement before testifying, but that she didn’t really need it because it wasn’t hard to remember the gist of what was said. She agreed that she didn’t remember everything that was said during the conversation word for word. She was prepared to say that her memory was better on the stand than at the time she gave her statement to police, “but it was good then too”. [11] In his testimony, Calvin Klimek agreed that during the course of the telephone call, his tone “elevated somewhat”, that he spoke loudly and that he probably did use profane language. He said that this was not the case at the start of the conversation his tone of voice was “concerned”, and he was not yelling. He said that prior to making the call, he had had call from his sister advising him of the imminent sale of cattle, and that he had only made the call to his mother after being advised to do so by his sister, and after telling his wife, daughter and daughter’s fiancé what was happening. He said he had never been verbally abusive to his mother previously although they had had disagreements, they had walked away from them. [12] The Accused testified that he told his mother he was going to come out to the farm and get his belongings, which he estimated were worth $15 $20,000. (On cross-examination, he estimated his net worth at $155,000). He said that he was going to bring someone from the law with him, that she couldn’t sell off the estate assets. He said that by his reference to “the law”, he intended to bring with him Cst. Jim Kidney of the Prince Albert City Police. He said his mother said to him that if he brought the police out, “we’ll shoot them”, and that he said “If you point firearm at them, they’ll shoot you.” In examination-in-chief, he said he did not recall using the words “I will kill you” to his mother, but that he did say that “if you pull gun on policeman they will shoot you”. He also said he said to his mother that “the police will take you away in body bags”. He said he was tired of hearing that the cattle were hers, that his mother spoke very loudly to him, and told him “you’re not wanted here”. In answer to his counsel’s question “Did you say anything you would construe as threat to any of the three, or cause them death”, the Accused answered “No”. [13] In cross-examination, the Accused said that during the telephone conversation, he did not name the police officer, but that the officer would be along to help him get justice. He said that he was taking the officer along so he wouldn’t get shot at. He said his mother had never threatened to shoot him, but that his brothers Merril and Garry had on some occasions threatened to shoot him or to create bodily harm. He initially agreed he had said he wanted to physically cut his family members out of the pictures hanging on his mother’s wall, then denied that he said he wanted to cut them out. He admitted using the words “body bags” in the conversation, and agreed he had used the words “blown away”, but maintained that what he said was “they will probably blow you away”. He believed there was conspiracy amongst the other brothers to get Adam Klimek’s estate for less than it was worth. He would not admit that he “lost it” in talking to his mother. [14] Camille Klimek is the wife of the Accused. They have been married 19 years. As noted above, Camille related how loud the telephone conversation was at her end of the line. She said that as the conversation proceeded, her husband got louder, red in the face, was using profanity, and that “when he starts swearing, he swears”. She heard reference to “bags” but not to body bags. Significantly, her evidence regarding the reference to “getting the law involved” was somewhat different than her husband’s: she said the Accused said he was going to take “Jim” with him, understanding the above-mentioned Jim Kidney. [15] As permitted by s. 12 of the Canada Evidence Act the Accused was questioned as to his criminal record. With respect to an alleged conviction for theft in Saskatoon in 1987, he said it was possible he had been so convicted. He also admitted to number of convictions in the 1970's, including break and enter, possessing stolen credit cards and property, and Narcotic Control Act convictions for trafficking and possession for the purpose of trafficking. He denied having been convicted for certain other offences during the period 1972 to 1987. The convictions denied were not proven by the Crown. Admissibility and Weight to be Given to Evidence of Previous Record: [16] At the point the Crown commenced questioning the Accused on his record, Defence Counsel objected, arguing that the convictions were dated and highly prejudicial. permitted the application, based on s. 12 of the Canada Evidence Act and the case law. [17] It is always open to the Accused to make Corbett application and have ruling on it before electing to call evidence. See R.v. Underwood (1998) 1998 CanLII 839 (SCC), 12 C. R. (5th) 241, per Lamer, C. J.; R.v. Corbett (1988) 1983 CanLII 28 (SCC), 36 C.R. (3rd) (S.C.C.). [18] Most reported cases respecting Corbett applications deal with jury trials, where it is of fundamental importance to keep the jury from hearing potentially-prejudicial evidence until its admissibility is determined. In those situations, voir dire is mandatory, as stated in Underwood., supra, at p. 245. [19] As noted in the very useful annotation by Peter Sankoff at (1994) 12 C. R.(5th) 228 at p. 240 respecting post-Corbett decisions: “... it is worth pointing out that with the jury trial comprising small percentage of the criminal persecutions (sic) in Canada, there has yet to be serious discussion as to whether Corbett has any real application in trial by judge alone. In practice, it seems as if criminal records are tendered as matter of course in non-jury trials, with the assumption made that trial judge can properly ignore the prejudicial effects of the record.[footnote omitted] So long as the prevailing approach in Canada is to have all pre-trial and interlocutory motions heard by the trial judge, there would seem to be little point in raising Corbett application as the evidence will have to be put before the trier of fact in order to get ruling on the motion anyway....” [20] In non-jury trial, it is my view that there is ordinarily no need for the defence to formally make Corbett application, requesting an order excluding evidence of convictions whose prejudicial effect outweighs their probative value. Rather, at whatever point the issue of the Accused’s record is raised (either on formal application prior to calling defence evidence, or when the prosecutor proceeds under s. 12), the duty of the judge sitting alone is to indicate that he is instructing himself that he must not treat the record of the Accused as tending to show that the Accused is the kind of person who would be disposed to commit the offence charged that is, that he must not infer from the record that the Accused has propensity to commit criminal offences. See for example R. v. McIlvride 1979 CanLII 3090 (BC CA), [1979] W. W. R. 93 (B.C.C.A.), where the trial judge wrongly instructed the jury that “having criminal record brands the Accused as an unreliable person to give evidence under oath”. [21] In most cases involving judge alone, (and in this case), the evidence adduced during the Crown’s case, together with the submissions of Defence counsel during or at the close of the case, will enable the judge to properly instruct him or herself without the need for voir dire or the attendant concerns regarding defence disclosure. In the event counsel wishes to specifically draw particular convictions to the Court’s attention, in order to highlight probative or prejudicial effect and consequent inclusion or exclusion from the Court’s consideration, this can ordinarily be done during final argument. [22] In this case, have instructed myself as follows: 1. The Accused’s record may not be taken as tending to show that the Accused has propensity to commit crimes, or that he has criminal disposition; 2. The probative versus prejudicial effect of any particular conviction must be weighed, in the context of preserving the right to fair trial; 3. It is then discretionary whether to include or exclude any particular conviction when considering and weighing the evidence; complete exclusion means that the judge treats the excluded evidence as if he or she never heard it; 4. It is proper for the judge to take into account and have “full picture” of who the Accused is, especially if the Accused in cross-examination has launched strong attack on the Crown witnesses’ credibility, i.e. the ability to tell the truth as opposed to the ability to recall events accurately; 5. Convictions for offences involving dishonesty are ordinarily admissible, as they may especially bear on the assessment of credibility permitted by s. 12 of the Canada Evidence Act. See Corbett, supra, at p. 37, per LaForest, J.; R.v.Saroya (1995) 1994 CanLII 955 (ON CA), 36 C.R.(4th) 253 at p. 257 (Ont.C.A.). [23] In the process of giving his or her decision regarding guilt or innocence, the judge should ordinarily acknowledge the self-instruction regarding the admissibility of prior convictions, and should relate the self-instruction to how and why the discretion to admit or exclude has been exercised. Depending on the length and nature of the record, this may merely necessitate reiteration of the prohibited inferences regarding criminal disposition. The purpose of the exercise is to provide asssurance that the judge has not decided the matter on an improper basis, as in McIlvride, supra, but which because the basis is unstated is immune from review. [24] In the present case, the most recent dishonesty-related conviction to which the Accused admitted was in 1978. The most recent such conviction to which the Accused did not admit but which he said was “possible” was 1987. [25] In R.v. S.G.G. (1997) 1997 CanLII 311 (SCC), C.R.(5th) 198 (S.C.C.), Sopinka, J. (in dissent) said at para. 123: “... when evidence as to disposition is tendered for the purpose of proving guilt, it is logically relevant. It is excluded by reason of our system’s aversion to convicting person charged because he or she is bad person. If an accused could be convicted on the basis of past misconduct which disclosed disposition to commit the offence charged, an old offender might never be able to obtain fair trial on the basis of evidence relating to that charge....” [26] accept the Crown and defence evidence that the Accused is presently in the contracting business. He has been married for 19 years, and has an adult daughter and grandchild. He appears to have built up modest net worth. In my view, where there is lengthy period (in this case 12 years, or 22 years if the alleged 1987 conviction is excluded) between the date of the alleged offence and the last conviction, the Court should look charily at admitting such convictions or giving them any probative value whatever. Common experience suggests that for many people convicted in their younger years, rehabilitation occurs and many such individuals become honest law-abiding citizens. Absent evidence to the contrary, their dated criminal past should not be prejudicially used against them forever. [27] Given the age of the record, and the above-noted factors, have concluded that all of the prior convictions should be disregarded insofar as they relate to the Accused’s credibility. While none of the convictions is for an offence that would prima facie be expected to prejudicially influence jury, and hence might properly be put before them, have completely excluded the Accused’s record from my consideration regarding credibility. The only conclusion draw from the record is that the Accused has in the past been familiar with the workings of the criminal justice/court system, and that he accordingly is not neophyte witness. This is not negative inference it is merely the common sense proposition that every witness brings his background with him to the stand, and that the fact-finder is entitled to consider it. Further Findings of Fact and Credibility: [28] If believed, the evidence of Calvin Klimek respecting the telephone conversation would raise reasonable doubt, and would entitle him to an acquittal. As noted, he agreed that he used the words “body bags” and “blown away”. He said that what he would have said was “they will probably blow you away”, and that he was responding to his mother’s alleged comment to him that “if you bring the police with you, we’ll shoot them”. [29] disbelieve the evidence of the Accused regarding his version of this portion of the conversation. find that he did not tell Lena Klimek that he was going to bring Prince Albert City Police officer with him. He admitted on cross-examination that he didn’t tell his mother the officer’s name; his wife’s evidence, however, was that she heard the Accused say during the conversation that he was going to take “Jim” with him, meaning Cst. Kidney. Significantly, in my view, no question was put to Michael Klimek as to whether he heard his grandmother say anything about the police attending or that she would shoot them. Even accepting that Michael agreed that he did not hear everything that the Accused said, he could not have missed hearing his grandmother talk about shooting someone. It is not the sort of remark that grandson would ordinarily forget if his grandmother said it during such telephone conversation. [30] also disbelieve the Accused’s evidence that he wanted police officer along with him so that he wouldn’t be shot at, and that his brothers had threatened to shoot him some five times. There is no suggestion that he reported any such threats. Given his high degree of anger regarding the estate winding up, both during and before the conversation (he believed that there was conspiracy among his brothers to get the Adam Klimek estate for less than it was worth), reporting of such threats to police would be likely, to say nothing of prudent step for him to have taken. [31] disbelieve the Accused’s evidence that he did not say anything to his mother which he would construe as threat to cause death to his three family members. An indicator of his level of anger, in addition to the loud vulgar manner he admitted he had never used with his mother before, is his stated intention to come and take certain family pictures off the walls. find that he did say to his mother that he intended to physically cut out those parts of the pictures portraying him or his immediate family. Although the Accused would not admit to the prosecutor that he “lost it” during the conversation, the common meaning of which is to completely lose control of one’s emotions, actions or speech and act in an irrational, unpredictable and possibly violent or criminal manner,) find based on the overwhelming evidence of the Crown witnesses and his wife, that the Accused did in fact “lose it”. [32] find the evidence of Michael Klimek to be straightforward and believable. There was no basis to find that his evidence was coloured by the bad feelings which obviously existed between his aunts and uncles regarding the estate, nor that he was in any way part of the family fight. He happened to drop in to see his grandmother, and his only emotional involvement was that he was offended by what he heard Calvin Klimek say to his grandmother. [33] am not left in any doubt as to whether Michael Klimek was able to hear those portions of the telephone conversation regarding the alleged threats. His own evidence was clear in this regard, and was not weakened on cross-examination. number of questions were put to other witnesses concerning the location of the telephone vis vis an adjoining wall, and the extent to which the wall would interfere with Michael’s ability to hear what the Accused was saying. However, no questions were put to Michael, who drew the diagram of the kitchen/telephone area, which caused me to have any doubt about what he heard. [34] find that he heard the Accused say that he would come to the farm, that he would blow away Lena, Merril and Garry Klimek, and that in immediate temporal proximity, he said that they would be put in plastic bags. Michael Klimek interpreted those words to mean that the three people would no longer be living. Mr. Piche objected to Michael Klimek being permitted to give his interpretation. In my opinion, the meaning of most words must be taken from the context in which they are used. Many words have, in context, powerful and precise connotations. Having regard to any ordinarily-informed adult in today’s society, use of the words “blown away” and “being put in plastic bags”, in temporal proximity, connote death and admit of no non-lethal interpretation. In this regard, also find that Michael Klimek did see fear in his grandmother’s face as result of the words which were spoken by the Accused. [35] At trial, Lena Klimek said that the Accused said he was coming out to kill her. She agreed that in her earlier statement to police, she did not include the word “kill”. She told Mr. Piche that the Accused probably used the words “kill” and “get rid of” during the call, and that in this regard her memory was better at trial than it was when she gave her statement to police. find that her recollection of the actual words spoken was not as accurate as that of Michael Klimek. also find, however, that the words said to her were clearly understood by her to be menacing that she and her sons were being threatened with death. [36] Mr. Piche argued that there must be precision as to what was said during the conversation, and in what order. In the absence of tape recording, it is not reasonable, in my view, for anyone to be able to recall verbatim everything that is said in the course of 10 15 minute telephone conversation, and to relate the precise order in which each sentence was spoken. Mr. Piche’s submission puts the matter too broadly. The Crown is required to place sufficient evidence before the Court as to each of the elements of the offence which, when taken in the context of all the evidence presented, satisfies the Court beyond reasonable doubt that the offence is made out. Obviously, in case such as this, the words used and the meaning of those words, is important. have doubt as to whether Lena Klimek heard the Accused use the word “kill” do not have doubt that the other words were spoken by the Accused, in the manner referred to previously. [37] Having decided that the Defence evidence is not believable, is there any other evidence which raises doubt in my mind? Mr. Piche suggested that Lena Klimek did not take the words seriously, as evidenced by the fact that instead of calling the police immediately, she proceeded unconcernedly to her bowling with her friend. He suggested to her in cross-examination that the conversation couldn’t have been as scary for her as she alleged that she was so scared that she went bowling. [38] do not find this argument to have merit. Although it is clear in observing and listening to Mrs. Klimek on the witness stand that she can be feisty herself and can make her own decisions when required, conclude the following: a) she had already arranged to go bowling. Her friend was there, and Lena was embarrassed that her friend heard the conversation. The friend was petrified; b) she wasn’t sure what to do after hanging up the phone. She told Michael to go to town and report the conversation to his father, which he did. The police were immediately notified. For 77-year-old woman to be uncertain as to what to do, and to want her sons to deal with the police on difficult family matter makes eminent sense; c) if Calvin Klimek was coming to the farm to do as he said he would do, she would be safer away from the farm; d) Mrs. Klimek and Michael both took the words of the Accused seriously there was no delay in calling the police and giving statements. [39] In R.v.Clemente (1994) 1994 CanLII 49 (SCC), 31 C. R. (4th) 28 at paras. ,7 and 12, the Supreme Court held that the mens rea, or requisite intent, required under s. 264.1 is established (a) if the words were uttered with the intent to intimidate or instill fear, or (b) if it is shown that the threat was uttered with the intent that it be taken seriously. At para. 13 and 14, Cory J. said: “To determine if reasonable person would consider that the words were uttered as threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed. “Obviously words spoken in jest or in such manner that they could not be taken seriously could not lead reasonable person to conclude that the words conveyed threat....” [40] In Clemente, the accused did not testify, and Cory J. referred to the court making its determination in the absence of any explanation of the accused. In the present case, there has been an explanation by the Accused, but have disbelieved the evidence given on his behalf in this regard. Therefore, the statement of the law set out above is equally applicable with respect to Klimek. [41] Mr. Piche argued that the Accused didn’t mean what he said, and that he was simply making idle threats, blurted out in anger and frustration in the context of family disagreement. He referred to R. v. LeBlanc (1989) 1988 CanLII 131 (NB CA), 66 C. R. (3rd) 134 (N.B.C.A.), reversed and trial judgement upheld, (1989) 1989 CanLII 56 (SCC), 70 C.R (3rd) 94 (S.C.C), in support of the proposition that the words used by Klimek could not lead reasonable person to conclude that the words conveyed threat. [42] In LeBlanc, the hypothetical example used by the trial judge was to situation where person is playing cards, and says to his partner after the partner’s misplay caused them to lose the hand, “Oh gees! could kill you”. In such case there would be no threat, because there was no actual menace or hostile determination of pain or suffering or death. In my view, an analagous instance of lack of menacing intent is that referred to in the evidence of the Accused in the present case, is when he alleged that his mother said to him “I should have drowned you”. The bare words “I should drown you” won’t ordinarily attract criminal liability. However, all of the surrounding circumstances will bear on whether the words are innocently spoken, or whether there is something in all the circumstances which would convey to reasonable person the menace that harm or ill will befall you. [43] In my view the words spoken by the Accused were clearly meant to be taken seriously, and implied menace to the listeners They cannot on any reasonable construction of their meaning lead reasonable person to doubt that they conveyed threat. Decision [44] As indicated, I disbelieve the Accused’s evidence. do not consider it reasonably capable of being true. In my opinion, the Accused, in much cooler frame of mind than on the day of the incident, has constructed story in explanation of what occurred. The story does not “hang together”, for the reasons I have given. Considering all of the evidence, I find that the Crown has proven its case against Calvin Klimek beyond a reasonable doubt, and I accordingly find him guilty of the charge as amended. Dated at Melfort, Saskatchewan on April 18, 2000. B. D. Halderman, P. C. J.","The accused was charged with uttering threats to his 77 year old mother to cause death to her and his brothers contrary to s.264.1 of the Criminal Code. HELD: The accused was found guilty. 1)The words spoken by the accused were clearly meant to be taken seriously and implied menace to the listeners. The accused's evidence was disbelieved. His constructed story did not 'hang together'.  2) In a non-jury trial there is ordinarily no need for defence to formally make a Corbett application, requesting an order excluding evidence of convictions whose prejudicial effect outweighs their probative value. The judge must not infer from the record that the accused has a propensity to commit criminal offences. Given the age of the record and other factors considered including his present work and family life, it was concluded that all of the prior convictions should be disregarded as they relate to the accused's credibility. The only conclusion drawn was that the accused had been familiar with the workings of the criminal justice system which was not a negative inference.",c_2000canlii19597.txt
134,"IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 108 Date: September 8, 2011 Information: 46743807 Location: Saskatoon Between: Her Majesty the Queen Appearing: Tom Macnab For the Crown Tanis Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of name or other information that would identify someone as either young person being dealt with under the Act, or as child or young person who is victim or witness in relation to an offence alleged under the Act. JUDGMENT P.S. KOLENICK, [1] The accused is charged that he did, on or about November 29, 2010, at Saskatoon, commit common assault against the complainant contrary to s. 266 of the Criminal Code. The issue which has arisen is whether the evidence of the Crown is sufficiently credible to prove beyond a reasonable doubt that the only physical contact he had on the complainant was for the purpose of defending himself from the alleged aggression of the complainant. Related to that was whether, on the evidence the Crown was able to prove non-consent beyond a reasonable doubt. Regardless, the accused bears no onus whatsoever in these proceedings. [2] For roughly two months prior to this alleged matter, the complainant, age 17, had lived in blended family with her father as well as, the accused and his mother. Their parents also had baby between them, 10 months old at the time. disagreement arose between the accused and the female complainant when he had accidentally allowed the baby to slip from his grasp while removing him from the Jolly Jumper. The child had struck the floor, but suffered no injury, and was quickly comforted. The actions of the accused had been unintentional with no harm to the baby. Despite that, it led to sharp verbal exchange, as the circumstances between the parties deteriorated, leading to more. EVIDENCE FOR THE CROWN Evidence of the Complainant [3] The complainant confirmed that she had asked the accused to take the child out of the Jolly Jumper. When the infant ended up on the floor, having slipped from the accused’s grasp, she told the accused he had dropped the baby. That led to an exchange between them, when she had said to the accused he had dropped the child, to which the accused replied words like “no didn’t fucking drop him”. When she said again that he had, once more he said “no didn’t fucking drop him”. The argument started. She went upstairs and entered one of the bedrooms as the dispute continued. As she tried to close the bedroom door, he forced his way into the room. He pushed her down on the floor, with both hands on her chest, causing her to strike her head on either the dresser or the bed and suffering slight headache. The accused departed from the room. In due course, the complainant called 9-1-1, and the police attended at the scene. There had been nobody else but the complainant and the accused in the bedroom at the time. [4] Initially the accused had been okay in his demeanour, but became more agitated when he believed the complainant was accusing him of intentionally dropping the baby. She was scared by the accused’s actions, ran to the bedroom and told him to stay away. He had also made some threatening comments to the complainant’s father. The whole incident was over in less than five minutes. [5] In cross-examination the complainant advised that there had been tension, arguments and yelling between them on more than one occasion prior to this alleged matter. This time she had tried to stay calm, because the baby was on the floor, even if it had been accidental. Once they started yelling at each other things happened very quickly. [6] She claimed as well that the accused had pushed her causing the strike to her head and disputed taking swing at him. On the evidence she was 5’5” and the accused 6’2”. On that basis, she denied any intention to be physically aggressive with him because of the size difference. The Complainant’s Father [7] The complainant’s father had observed the verbal exchange between the accused and his daughter, when the child had fallen from the accused’s grasp as he was removed from the Jolly Jumper. While he comforted the child, the dispute between the accused and his daughter continued. At one point, the accused started to go downstairs to the area of his own bedroom, to cool off, and the complainant went upstairs to the bedroom. However, the argument continued between the accused and the complainant. The accused’s mother was in the vicinity as well. [8] Suddenly, the accused ran from the lower landing to the bedroom, where his daughter was headed. The accused’s mother tried to grab him as he ran by, to no avail. Both the accused and his daughter ended up in the bedroom. He heard thump, but could not see what had happened because there was nobody else in the vicinity other than those two. The complainant told the accused to get away from her, as did he, as the accused made his way to the bedroom. [9] The accused’s mother had attended to console the complainant, because she was hysterical. That, however, did not go well, so he suggested that she attend to the accused, while he looked after the complainant. As result of his comments made to the accused’s mother, the accused had said words to the effect “don’t talk to my mom you bitch. I’ll fucking stab you.” [10] In cross-examination he confirmed that both the accused and complainant were engaged in an emotional situation. They were both yelling and swearing. Neither one would back down. However he denied that the complainant had walked toward the accused. Rather, the accused had entered the bedroom where the complainant was located and he heard thump. He denied also that he was angry by what the accused had allegedly done, but was only in defensive mode for the complainant. EVIDENCE FOR THE DEFENCE The Accused [11] The accused claimed that, while removing the baby from the Jolly Jumper, he had jumped, slipped out of his hands and was crying. Initially the complainant had said words like “you fucking dropped him”. He explained the child had slipped, initially speaking in normal tone. Soon the dispute had escalated and they were both shouting at each other, so the accused went toward his bedroom downstairs in order to cool off. In the meantime, the accused’s mother was speaking in normal tone, attempting to find out what had happened. An argument between the complainant and the accused’s mother ensued, with the complainant calling her bitch. [12] The complainant walked upstairs toward the bedroom and everybody was yelling and swearing at each other. The complainant went into the bedroom and shut the door. The accused went there and opened it. When the door had been opened, the complainant struck the accused in the shoulder. As result of that blow, the accused raised his arm to push back the complainant and not get hit, in an act of self-defence. That caused the complainant to step back and he had only pushed her with one hand. He told her not to speak about his mom in that nature, and departed from the bedroom. He also could not recall yelling threats at the complainant’s father as alleged. [13] In cross-examination the accused confirmed he had walked fast because he was angry with the complainant. She had closed the door and the accused had opened it. He did not hear the complainant say that he should stay away from her, nor did he push the complainant first. Rather the complainant had struck the accused first in the shoulder. Only after that did he push back, in order to defend himself. He also disputed making any nature of threats against the complainant’s father even though he was angry for the comments made by him to the accused’s mother. The Accused’s Mother [14] At the material time, she had requested the accused remove the baby from the Jolly Jumper. dispute ensued between the accused and the complainant when the baby fell or slipped from the accused’s grasp. [15] In the course of the argument, the complainant went to the upstairs bedroom and entered into it. In the meantime the accused had gone from the living room to the bedroom door. The complainant went to slam it, but the accused pushed it open. She was not able to see what happened in the bedroom, but heard the complainant screaming. She went to the complainant and tried to console her but the complainant pushed her away. Likewise she had sent the accused to his bedroom. She was also aware that the accused had made some nature of comment that he would stab or hit the complainant’s father for him calling her bitch. Regardless, the whole scenario was very stressful. [16] In cross-examination, she had confirmed that the accused may have been upset because of being accused of dropping the baby. As well, the complainant had attempted to slam the bedroom door in order to ensure to exclude the accused therefrom even though he was upset and went to the bedroom. The incident had only taken couple of minutes, and then things calmed down. ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond reasonable doubt that the complainant had not consented to the alleged aggression of the accused, or that the accused had not acted in self-defence? [17] The constituent elements for this alleged matter are set forth in s. 265(1)(a) of the Criminal Code, which provides as follows: 265. (1) person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; [18] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by the principles restated in R. v. McKenzie (P.N.) (1996), 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v. Rose (A.) (1992), 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [19] The determination of credibility does not involve the Court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises reasonable doubt. Therefore, credibility of the material witnesses needs to be considered, in that context. [20] The complainant had claimed in her evidence that, as she tried to close the door to the bedroom, the accused had forced his way in, pushing her down on the floor with both hands on her chest, she striking her head. She disputed any suggestion of having taken swing at the accused, particularly because of the size difference. [21] Her father advised that he had heard thump from the bedroom when the two of them were in there alone. He had not been in the bedroom at the time. [22] In his testimony, the accused claimed that after he had opened the door to the bedroom, the complainant had struck him with one blow in the shoulder. In order to defend himself he had pushed the complainant with one hand, which caused her to step back. The accused’s mother as well was not able to see what had happened in the bedroom. When the complainant had gone to slam the door, the accused had pushed it open. She had heard the complainant screaming. The accused had also made some nature of comment that he would stab or hit the complainant’s father, because he had called her, the accused’s mother, bitch. [23] Regardless, it is apparent that there was great deal of animosity and bad blood which made it difficult for the witnesses to recall and relate in reliable way what may have happened on the spur of the moment between the parties. As well, there were no other witnesses in the bedroom, except the two of them, at the material time. [24] In any event, after having given careful consideration to all of the testimony, there is nothing from any of the witnesses who testified which undermines credibility to the extent that the evidence should be regarded as having less value, sufficient to support the conviction of the accused. As such, perhaps it is possible that the complainant had initiated the physical aggression by hitting the accused on the shoulder in frustration at how matters had unfolded to which he reacted with blow. None of that scenario supports the Crown being able to prove that the complainant had not consented to the application of force which had allegedly occurred, and the accused must receive the benefit of the doubt in that regard. [25] As such, applying the principles in McKenzie, supra, the Court does not know who to believe, and he is not guilty of the offence of common assault contrary to s. 266 of the Criminal Code. P.S. Kolenick,",The accused was charged with committing a common assault against his step-sister being the complainant. The question was whether the Crown's evidence was sufficiently credible to prove beyond a reasonable doubt that the only physical contact he had on the complainant was for the purpose of defending himself from the alleged aggression of the complainant and whether the Crown was able to prove non-consent beyond a reasonable doubt. HELD: The Court did not know whom to believe and the accused was acquitted.,d_2011skpc108.txt
135,"R. Green, IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 089 Date: June 1, 2011 File: 9/10 Location: Yorkton 101093126 Saskatchewan Ltd. (The Whitewood Inn) and BMR Business Systems Ltd. Jeffrey Deagle For the Plaintiff Ms. An For the Defendant JUDGMENT BRENT KLAUSE, [1] The Defendant sold business equipment to the Plaintiff in September of 2007. The Defendant alleges that the equipment sold never worked properly and seeks damages for breach of contract and in the alternative, damages for fraudulent misrepresentation, damages for negligent misrepresentation, damages for unjust enrichment, all in the amount of $20,000.00. [2] The majority of the facts are not in serious dispute. The Plaintiff operates the Whitewood Inn in Whitewood, Saskatchewan and in September of 2007, entered into an agreement with the Defendant to supply and install business equipment at the Inn. [3] The equipment consisted of two groups of computerized business equipment which can be loosely categorized as the “Cash Equipment” and the “Camera Equipment”. The Cash Equipment as its name implies is designed to enter and receive payments for purchases at the Inn, mostly restaurant purchases. The Camera Equipment is designed to provide security and to monitor the actions of the employees of the business. [4] Rod Kletcho was at all times the operating mind of the Defendant and he entered into an agreement with the Plaintiff to supply and install number of pieces of equipment which were to be compatible with each other. The cost of the Cash Equipment was invoiced July 10, 2007, in the amount of $10,939.05 and the cost of the Camera Equipment was invoiced on July 27, 2007, in the amount of $10,983.45. No service contract was ever signed between the Plaintiff and the Defendant. [5] Contemporaneously with this agreement, the Plaintiff entered into financing agreement with Irwin Financial Canada Corporation dated October 31, 2007. Irwin owned all the equipment and amortized the cost back to the Plaintiff over time frame of 66 months at an agreed rate of interest with the monthly payment being $445.11. [6] The equipment was subsequently installed by employees of the Defendant in September and October of 2007. On October 31, 2007, the Plaintiff signed the Equipment Rental Agreement between The Whitewood Inn and Irwin Financial: Exhibit P1 and D1. [7] The last paragraph of that agreement which contains the date of the agreement and the signature of the officers for the Plaintiff states as follows: You have read, understand, and accept this Agreement, including the attached Terms and Conditions, and hereby affirm that you are authorized to execute this Agreement. You agree that facsimile copy of this Agreement with your facsimile signature(s) and Irwin’s original signature shall constitute the original of this Agreement. You further confirm and acknowledge: (1) that the Equipment described in the Equipment Rental Details has been inspected and received in satisfactory condition not more than ten (10) days prior to the date you execute this Certificate; (2) that there are no maintenance, service, or other agreements which attach to this Agreement; (3) that Irwin is not an agent of the Vendor(s) nor manufacturer or distributor, and that the essential element of this Agreement is equipment rental only; and (4) that Irwin is authorized to pay the Vendor(s) for the Equipment and to commence the Agreement on the date to be established by Irwin. [8] In the pleadings of the Plaintiff, he alleges that the Cash Equipment is not working and has never worked properly. This was supported by his testimony in-chief. He testified that the technicians sent by BMR did not know how to successfully install the equipment and that despite repeated efforts by their technicians and repeated calls to BMR, that the equipment was never installed properly and is unusable. [9] The Plaintiff has always made his payments to Irwin Financial and is not in breach of any of his financial obligations to Irwin. When questioned as to why he would sign P1 and D1, and thereby affirm that the equipment was working, he stated that Irwin forced him to sign as he believed that BMR would not come back to finish the installation unless he signed the document and further avers that the document was not true when he signed it. [10] He further testified that he made repeated efforts to have BMR’s technician “Jerry” return to finish the installation and to ensure that all the equipment was working but that at no time did the Cash Equipment work and that to this day, it sits idle. The last contact he had with BMR was early in 2009 and at that time, the Defendant wanted more money to come out and correct the problem. [11] Essentially the Plaintiff feels he has been deceived by the Defendant and that he has not received the product he contracted and has paid for. The lawsuit was commenced January 27, 2010 and the trial heard January 5, 2011. [12] The Defendant agrees that he had business arrangement to supply and install the equipment as described in his invoice of July 2007, but differs with the Plaintiff in many respects. He indicates that as far as he was aware his technicians had installed the equipment and that the Plaintiff was satisfied with the installation as evidenced by his agreement with Irwin. He further indicated that he tried to respond to the Plaintiff’s complaints but that some of the things that the Plaintiff wanted done were not part of any agreement that he had with the Plaintiff (ie. the installation of cable) and that after point in time, the Plaintiff no longer seemed to be interested in following through on his suggestions; essentially the arrangement had fallen apart. [13] He further testified that his technicians were familiar with this equipment and its installation and that it had been done successfully over 150 times and that in this case, as far as he was aware the installation had been successful, and that as part of his arrangements with Irwin, he has to certify to Irwin that it had been installed, the leasing company then confirms the install as was evidenced by the agreement dated October 31, 2007 and then Irwin pays him out his costs. His position is that any further difficulty with the equipment was because of improper use or programming by the Plaintiff and that he cannot be held responsible for that. [14] He further testified that his technician “Jerry” died in January of 2009 of cancer and this makes it nearly impossible to discover what was done or what was said by one of his most competent technicians. It is also his position that former employee of his is now one of his competitors in the business and that he has ‘tinkered” with the equipment he originally installed. It is his position that he tried at all times to make things right with the Plaintiff but that the Plaintiff was difficult to deal with and that he would not try to reach mutually acceptable compromise with the Defendant or his agents. Position of the Plaintiff [15] The Plaintiff’s position is that the Defendant is in breach of the agreement to successfully supply and install the business equipment; that they had continuing agreement until at least the summer of 2009, due to the continuing representations of the Defendant; that P2 is valid written contract between the two parties; and that the Defendant is in fundamental breach of their contract. Position of the Defendant [16] The Defendant’s position is that the claim of the Plaintiff is statute barred as any agreement they had was entered into prior to October of 2007; that there was never any written agreement between the two parties; that they have performed their part of the agreement and are therefore not in breach and that no service agreement was ever entered into between the two parties. [17] There are two questions which are required to be answered: (1) Is this action barred by The Limitations Act? (2) If not, is the Defendant liable for breach of contract or for fraudulent and or negligent misrepresentation or unjust enrichment? [18] In my view there was never valid written contract entered into between the Plaintiff and the Defendant. There was certainly an oral agreement to provide and install certain equipment and the parties had agreed upon price for those services. This was reduced to an invoice which later became the subject of financing agreement and contract between the Plaintiff and Irwin Financial. [19] find that when the Plaintiff entered into that agreement with Irwin in October of 2007, he acknowledged that the equipment was in proper working order and that he was essentially happy with the work that had been done. Why else would responsible adult businessman sign such an agreement? If he was in fact unhappy with the work and the installation which he now says he was, why would he sign this agreement and why would he continue to make payment after payment for equipment that was at best, in his opinion, only working part-time. It makes no sense for business person who can be assumed to routinely enter into complicated business transactions on regular basis to make that sort of error. [20] In my opinion, The Limitations Act, s. and does apply in this situation. Those sections read as follows: Unless otherwise provided in this Act, no proceedings shall be commenced with respect to claim after two years from the day on which the claim is discovered. Unless otherwise provided in this Act and subject to subsection (2), claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known; (a) that the injury, loss or damage has occurred; (b) that the injury, loss or damage appeared to have been caused by or contributed to by an act or omission that is the subject of the claim; (c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (d) that, having regard to the nature of the injury, loss or damage proceeding would be an appropriate means to seek or remedy it. (2) claimant is presumed to have known of the matters mentioned in clauses 1(a) to (d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. [21] Section 18 of the same Act states: 18 If in proceeding, limitation period is raised against claimant, the claimant has the burden of proving that: (a) the limitation period has not expired; or (b) there is no limitation period that applies to the claim. 19 If, after the commencement of proceeding, it is established that limitation period applicable to the claim had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained. [22] As far as the Defendant knew in October of 2007, the Plaintiff was content with the installation and that the equipment had been properly supplied and tested to his satisfaction. The Plaintiff now claims that he signed that agreement under duress and that to his knowledge, the equipment was not working prior to October 31, 2007. [23] The Limitations Act allows an action to be commenced within two years of the claim being discovered. This claim here was discovered prior to October 31 of 2007, and therefore the Plaintiff had at the latest, until October 31, 2009, to commence his action. His action was not commenced until January of 2010. [24] The Limitations Act sets forth finite period so that the party being sued can properly defend an action. It is precisely the sort of situation that occurred in this case that The Limitations Act is designed to prevent. [25] The Saskatchewan Court of Appeal in Josvanger v. Fold, 2005 SKCA 138 (CanLII), 275 Sask. R.101 at paragraph 20 stated as follows: [20] One of the purposes is that of “Peace and Repose”, which has been described this way: 3.1 “Peace and Repose” It is said that statutes of limitation are acts of “peace” and “repose”. The theory is that, at some point after the occurrence of conduct that might be actionable, defendant is entitled to peace of mind. When period of limitation has expired, potential defendant should be able to assume that he is no longer at risk from stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which has been taken; discharge his solicitor if he has been retained; and order his affairs on the basis that his potential liability has gone. That is the whole purpose of the limitation defence. [21] This need to give defendant peace of mind is based on concerns that over time the quality and availability of evidence will diminish and memories will fade. There are also economic and public interest considerations, and there may be judgmental reasons arising from changes in values and standards. [26] Our Supreme Court considered similar issue in Stoddard and Watson, 1993 CanLII 59 (SCC), [1993] S.C.R. 1069 at paragraph 11: 11 This Court recently described the purpose of limitations legislation in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] S.C.R. 6. M. (K.) v. M. (H.) was claim for damages for incest brought well after the expiration of the limitation period, even allowing for the plaintiff to reach majority. La Forest J. stated at pp. 29-30: In order to determine the time of accrual of the cause of action in manner consistent with the purposes of The Limitations Act, believe it is helpful to first examine its underlying rationales. There are three, and they may be described as the certainty, evidentiary, and diligence rationales: see Rosenfeld, ""The Statute of Limitations [page 1080] Barrier in Childhood Sexual Abuse Cases: The Equitable Estoppel Remedy"" (1989), 12 Harv. Women's L.J. 206, at p. 211. Statutes of limitations have long been said to be statutes of repose; see Doe on the demise of Count Duroure v. Jones (1791), T.R. 301, 100 E.R. 1031, and A'Court v. Cross (1825), Bing. 329, 130 E.R. 540. The reasoning is straightforward enough. There comes time, it is said, when potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations ... The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim ... Finally, plaintiffs are expected to act diligently and not ""sleep on their rights""; statutes of limitation are an incentive for plaintiffs to bring suit in timely fashion. While these rationales benefit the potential defendant, the Court also recognised that there must be fairness to the plaintiff as well. Hence, the reasonable discovery rule which prevents the injustice of claim's being statute barred before the plaintiff becomes aware of its existence: Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] S.C.R. 2; Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147; M. (K.) v. M. (H.), supra. limitations scheme must attempt to balance the interests of both sides. [27] In my opinion, both of these Superior Court cases have an instant application to this case and adopt and follow their rationales explicitly. [28] Here the technician who installed the equipment and who had the most direct contact with the Plaintiff is now deceased and cannot offer his opinion or evidence on what occurred past October of 2007. That evidence in my opinion would be critical to the proper defence of this case and that is one reason why this statute was enacted. The mere fact that there was some communication between the parties after that time does not in my opinion help the Plaintiff as there was never service contract entered into between these two parties. The only agreement that they had was to supply and install the equipment - not to maintain, service or reprogram it. Their contract, if it can indeed be termed that was complete by October 31, 2007, when on that date the Plaintiff entered the formal financing agreement with Irwin Financial. [29] If however, I am incorrect in my application of the law in regard to The Limitations Act, I would further find that there was an agreement to supply and install the business equipment but that in my view of the evidence, the Defendant completed his part of the transaction. He supplied and installed the equipment and as far as he was aware, the Plaintiff was satisfied with the work done. He tried to address subsequent complaints but in my opinion, these were outside the parameters of the original agreement as no service contract between the parties existed. [30] I further find there was no material representation and no fraud. The Defendant supplied the equipment that they agreed to provide and in their view, and which accept, installed it correctly. The Plaintiff signed the agreement with Irwin indicating that they were satisfied with that equipment and have had two and half years with the equipment to inspect it or have someone else look at it to establish if anything was wrong with it. Apparently they have not done this and despite continuing to make all the regular payments on that equipment, have done nothing further to ensure that it is working for the purposes for which it was designed. One would assume that if business owner continues to make payments on equipment, that he is content with that equipment. [31] I must conclude from the evidence I have heard that there is no evidence of fraud or any concealment of facts that would allow the Plaintiff’s claim to succeed. There is further no evidence of unjust enrichment. The Defendant supplied the equipment that they agreed to supply and it has been in the exclusive possession of the Plaintiff at all material times. [32] In my opinion, the Plaintiff has not established any element of its case on a balance of probabilities and I therefore must dismiss this action. B.M. Klause,","The plaintiff entered into a verbal agreement for the defendant to supply and install business equipment. The plaintiff alleged that the equipment sold never worked properly and sought damages for breach of contract and, in the alternative, damages for fraudulent misrepresentation, damages for negligent misrepresentation, and damages for unjust enrichment in the amount of $20,000. HELD: The Court dismissed the action as the plaintiff did not establish its case on a balance of probabilities.  The Limitations Act applies and the action was barred. The defendant agreed to supply and install the equipment which was done; there was no agreement to maintain, service or reprogram equipment. There was no material misrepresentation or fraud or concealment of facts, nor unjust enrichment.",4_2011skpc89.txt
136,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 219 Date: 2017 07 17 Docket: FLD 269 of 2008 Judicial Centre: Saskatoon (Family Law Division) BETWEEN: MEGAN ASHLEY WOLFE and SHAWN SCOTT DIEDERICHS and COLLEEN WOLFE THIRD PARTY Appearances: (Megan A. Wolfe deceased) Shawn S. Diederichs appearing on his own behalf Davin R. Burlingham appearing for the third party JUDGMENT WILSON J. July 17, 2017 Introduction [1] The third party in this matter is the maternal grandmother of the two children, Gage Arthur Diederichs [Arty], born September 18, 2006 and Haydn Lee Dion Wolfe, born May 1, 2008. The respondent, Shawn Diederichs, is the biological father of the two children. Sadly, the petitioner, Megan Wolfe, died of cancer on January 19, 2015. She was the biological mother of the two children. [2] The grandmother argues she is person of sufficient interest with respect to the two boys. Her position is that she and the father should have joint custody of the boys but her home be the children’s primary residence. She also seeks an order providing her with sole decision-making authority regarding medical care, counselling and education. She is willing to provide the father with parenting time with the children. [3] The father takes the position that it would be in the best interests of the children to move from the primary care of the grandmother to his primary care. He seeks an order that he have custody of the children. He is not opposed to the grandmother having reasonable and liberal access with the children. [4] Finally, the grandmother requests an order obligating the father to pay child support for the children if she is successful in her request for primary care of the children. [5] The following issues must be determined: 1. Is the maternal grandmother person of sufficient interest with respect to the children; 2. If the grandmother is person of sufficient interest, what parenting arrangement would be in the best interests of the children; and 3. If conclude that the children should remain in the primary care of the maternal grandmother, what, if any, child support should be payable by the father to the grandmother. History of Proceedings [6] The mother and father lived together as common-law spouses from January 2005 until January 2008. After the parties separated the mother proceeded with Petition, issued August 26, 2008, claiming custody of the children. The father did not respond to the Petition and was noted for default on October 7, 2008. However, the father subsequently obtained the services of counsel, and motion was made to set aside the noting for default. With the consent of counsel for the mother, the noting was set aside January 26, 2009. The father then filed his Answer and Counter-Petition. [7] In the father’s Answer he did not dispute the mother’s claim for declaration of parentage, her claim for child support or her request that the children be designated as beneficiaries of any life insurance, pension plan or health care plan he owned. He opposed the mother’s claim for custody and her request that she be allowed to appoint person to have custody of the children and be guardian of the property of the children upon her death. [8] The father brought notice of motion in March of 2009 requesting an interim order for joint custody of the two children. He also asked for liberal access to the children and declaration by the Court that he was the father of the children. After reviewing the extensive affidavit material filed and hearing from counsel on behalf of both the mother and father, Mills J. granted an interim order on March 27, 2009. Pursuant to the terms of the interim order, the father was declared to be the father of the two children. The father was granted supervised access to the two children through the Supervised Access Program offered by Family Justice Services. His access was stated to be “no more than one hour per week for the first month from the date of this order” and “no more than two hours per week for the next four months following”. [9] In August 2009 Family Justice Services filed with the Court the Supervised Access Program Reports regarding the father’s supervised access visits for the time period from April 2009 to August 2009. The issue of the father’s access was then argued before Dufour J. on October 9, 2009. Dufour J. amended the father’s access from supervised to unsupervised. He granted the father access every second weekend from Friday evening to Sunday evening. He did, however, specify that all access would be exercised in Saskatoon. Further, due to continuing conflict between the parents, exchange of the children was to be supervised by the Family Justice Services Supervised Exchange Program. Finally, Dufour J. indicated that the matter should once again come before the Court on December 11, 2009 for an update on the father’s access. [10] At the December 11, 2009 court appearance, Maher J. continued the access as set out by Dufour J. However, he added conditions to the father’s access. Specifically he ordered that the father not have in his residence alcohol or non-prescription drugs and not be under the influence of alcohol or non-prescription drugs for minimum of 12 hours prior to him obtaining access to the children and throughout the time the children were with him. [11] It was not until after the mother’s death in January 2015 that matters regarding the children came back before the Court. In May 2015 the grandmother brought an application requesting she be joined as party to the proceedings and she be named person of sufficient interest regarding the children. Further, she requested an interim order granting her sole custody of the children and an order that the father have supervised access to the children. [12] On May 20, 2015 Gabrielson J. made an interim order designating the grandmother as person of sufficient interest to the children and added her as party to the action. With respect to the father’s access with the children, he ordered the father’s access to be supervised by his aunt, Arlene Viden. [13] To their credit, the grandmother and father were able to come to an agreement and an interim consent order was granted by Dufour J. on July 15, 2015. In accordance with the terms of that order, the father’s access went from supervised to unsupervised and was to continue to occur every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. The parties further agreed that the father would have telephone access to the children once per week. The matter was then adjourned over to the specific date of August 14, 2015. [14] On August 14, 2015 Tholl J. made an order that the grandmother and father have interim joint custody of the children. However, he granted the grandmother sole authority to make all decisions and provide all authorizations and consents regarding medical care, counselling and education for the two children. In his order he indicated that the father would have the right to be provided with all information regarding medical, counselling, educational issues directly from the care providers or the school or educational institution in the same manner as parent with sole custody would have. Finally, Tholl J. ordered the father would continue to have access to the children as ordered by Dufour J. and the children would continue to reside primarily with their grandmother. Tholl J. then directed the matter to proceed to an expedited pre-trial. [15] On January 7, 2016 the matter proceeded to pre-trial settlement conference. After settlement discussions, the parties agreed to an interim parenting arrangement whereby the father would have access with the boys for three weekends in row with no access on the fourth weekend. The parties also agreed to split the spring break and Easter holidays on an equal basis. This agreement was considered an interim arrangement to be tried by the parties. On November 16, 2016 the pre-trial conference was reconvened. Unfortunately, no agreement could be reached regarding the ongoing parenting arrangement for the two children. The matter then proceeded to trial before me. [16] At the conclusion of the trial made an order respecting access for the summer of 2017. In essence, set out specific dates such that the grandmother and the father would share the summer holidays in an approximately equal arrangement. Person of Sufficient Interest [17] There is an interim order designating the grandmother as a person of sufficient interest. This designation was made pursuant to s. 6 of The Children’s Law Act, 1997, SS 1997, c C-8.2. The designation of the grandmother as person of sufficient interest on an interim basis does not bind me when considering whether or not to grant person of sufficient interest status to the grandmother after having heard all of the evidence at trial. It is only if grant the grandmother the appropriate status that she can apply for custody of the children. Section 6.1 of The Children’s Law Act reads as follows: 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; (b) determine any aspect of the incidents of the right to custody or access; and (c) make any additional order that the court considers necessary and proper in the circumstances. [Emphasis added] [18] The Saskatchewan Court of Appeal decision in S.(G.E.) C.(D.L.), 2006 SKCA 79 (CanLII), 285 Sask 19 [S.(G.E.)], provides guidance regarding the steps must take when applications are brought by individuals other than mother or father. At para. 47 of that decision, Richards J.A. (as he then was) stated as follows: 47 The proper focus of an inquiry in relation to the “sufficient interest” question, in my view, is the nature of the relationship between the applicant and the child. The question of the child's best interests does not enter the analysis at that point. In determining whether non-family applicant is person with sufficient interest, the court should consider variety of factors including, but not necessarily limited to: (a) the extent or degree of the applicant’s involvement in the child’s life, (b) the duration of that involvement, (c) the level of intimacy and the quality of the relationship between the applicant and the child, (d) how the relationship between the applicant and the child was represented to the world, and (e) whether the applicant provided financially for the child. Further, at least in relation to situations such as the one at issue in this appeal where there is no traditional family or blood relationship between the applicant and the child, it is necessary to consider whether the applicant can show settled commitment to the child and an intention to be continuing and meaningful presence in the life of the child. Overall, in the kinds of circumstances involved here, s. generally should be applied to screen out applicants who do not have both significant relationship with the child and demonstrated and settled ongoing commitment to the child. [19] The Court of Appeal in S.(G.E.) was dealing with request by third party “friend” of the children’s biological mother. He sought access visits with the mother’s twins. In the matter before me, the applicant is the maternal grandmother who is making an application for custody of the two boys. The two-stage analysis is equally applicable when family member pursues custody. [20] It is not disputed that the mother and father commenced cohabitating relationship in January 2005 when the mother was 18 and the father was 25 years old. The mother and father resided together until their separation in 2008. At the date of the separation the parties’ youngest child, Haydn, had not yet been born. The mother left with the oldest child, Arty, after police involvement. The father was charged with assault of the mother, but he denies having assaulted her. He did, however, acknowledge he signed peace bond to, as he put it, “get it over with”. The mother moved into the maternal grandmother’s home with Arty. The parties’ second child, Haydn, was born while the mother was continuing to reside with the maternal grandmother. As set out previously, the father’s initial access with the children was supervised and then proceeded to unsupervised access. [21] The mother and the two children lived with the maternal grandmother until the mother moved in with her boyfriend, Josh Melnyk, in approximately February 2011. The mother gave birth to twins from her relationship with Josh on November 26, 2011. The mother lived with Josh, the twins and Arty and Haydn until she went into the hospital in February of 2014. [22] The grandmother testified she looked after the children lot while the mother was living with her from 2008 to 2011. Further, even after the mother moved out to live with Josh, the maternal grandmother indicated that she stayed very involved. In February 2014 the children, Arty and Haydn, moved into the grandmother’s home as the mother needed to be hospitalized. The mother was in hospital for almost year before she passed away January 19, 2015. [23] The maternal grandmother was looking after the children full time, and she brought them to the hospital to see their mother every day. She ensured the children attended school and did everything she could to support the children as their mother was dying. [24] I have no difficulty determining that the maternal grandmother is a person of sufficient interest regarding Arty and Haydn. Not only does the grandmother have “blood tie” to the children, but the children have lived with the grandmother for significant portion of their lives. The grandmother has standing under The Children’s Law Act to bring her application for custody. CUSTODY AND ACCESS [25] The father was born July 7, 1979. He is now 38 years old. [26] The father currently resides at home in Saskatoon located at 3421 Harrington Street. There are four people living full time in the home. The father’s sister Tammy lives in the home and works days. The father’s nephew Gabriel lives in the home and attends school at Evan Hardy Collegiate. Finally, Arlene Viden, the father’s aunt, resides in the home on Harrington Street. She is currently not working as she is receiving disability as result of car accident. The father testified that the home is huge home located in friendly and safe neighbourhood. [27] The father filed photo album which includes number of photos of the home. There is delightful photo showing the front of the house with the children all dressed up for Halloween. There is photo of the bedroom where the two boys sleep when they stay at the father’s home. Each of the boys has single bed, and they appear to have decorated their room with movie posters. There is photo of the backyard of the home. There is large deck and large green space where the father said trampoline can be set up, and the kids can play catch. The large backyard is also used for activities like bonfires and tenting. photo taken in the summer of 2016 shows the father, the two boys and their cousin having fun in great tent in the back yard. [28] Across the street from the father’s home is very large park. The father testified that the children play in the park frequently. He also testified that there are three schools within walking distance of the home surrounding the park. If granted custody of the children, the father would move the children before September of 2017 from their current school into school closer to the home. [29] The father says he will remain in the Harrington Street home indefinitely. He acknowledged he was renting the home as opposed to purchasing the home but indicated that he had signed lease. Under cross-examination the father agreed he had moved many times in the past. The mother and father moved to Prince Albert when the mother was pregnant with the parties’ oldest son, Arty. The mother and father returned to Saskatoon and lived on Avenue North for few months and then separated while they were living at home on Avenue L. The father then lived at home on Wiggins Avenue, in trailer court on Rayner Avenue in Sutherland and has now moved into the College Park area with the home on Harrington Street. [30] The father is currently working in the construction industry doing renovations. He testified he is not employed for any one company and works on contract basis. He earns approximately $2,000 $3,000 per month. The father works from 9:00 a.m. until approximately 5:00 p.m. each day. [31] The father has had numerous employment positions in the past. When the parties were in Prince Albert, he worked for Husky Gas. He has subsequently worked for Night Owl Confectionery, Gas Plus, Saskatoon Wash World, Ramada Hotel in maintenance, the City of Saskatoon and Got Mold. [32] When asked why he had so many employment positions, the father said he had to quit or was fired as result of false allegations being made about him. He testified that the police were always showing up with accusations. This was during the time period after he had separated from the mother. He acknowledged, however, that not long after the mother left he was experiencing extreme stress and had to stop work as result of his health. [33] As set out previously, an interim order in this matter was granted in March 2009 specifying the father would have supervised access to the children. It is clear there were concerns regarding the father’s use of alcohol and drugs. Under cross-examination he conceded he smoked marijuana and “maybe” hashish. He acknowledged that when he was 20 he used crystal meth but said he never did meth on regular basis. [34] After the father’s supervised access returned to court for review, an order was made that he would have unsupervised access every second weekend from Friday to Sunday evening. The father’s access to the children was to be reviewed approximately two months later by the Court. The Maher J. order of December 11, 2009 continued the father’s every second weekend unsupervised access. However, there remained concerns about the father’s possible addictions to alcohol and drugs. Maher J. ordered the father not have any alcohol or non-prescription drugs in his residence. Further, Maher J. ordered the father not be under the influence of alcohol or non-prescription drugs for minimum of 12 hours prior to him obtaining access to the children and throughout the time the children were with him. [35] The father testified he stopped doing drugs approximately three years ago and only has one beer on occasion. He said “I do drink, but not lot”. He further clarified that the two children were not in his care when he would have drink. [36] In accordance with the order of Maher J. the father was to be having time with the children every second weekend. There is some conflict in the evidence as regards the father’s reliability in his access visits with the children. The grandmother testified that approximately year or so after his unsupervised visits started in December 2009, the father’s visits “fizzled out”. From the father’s evidence, which is not entirely clear, he was regularly having every second weekend with the children until August 2013. [37] It is not disputed that the mother entered into relationship with Josh Melnyk and commenced cohabitation with him in approximately February 2011. As set out previously, the mother and Josh had twins in November 2011. The mother and Josh originally lived in Saskatoon and subsequently lived in Young and Watrous, Saskatchewan. [38] The grandmother testified it was her understanding the father had not been involved with the children between 2011, when the mother moved in with Josh, until he expressed interest in seeing them month after the mother’s death. The father says he was seeing the children until August 2013 when the mother “abducted” the children. The father testified he could not contact the mother even though he sent messages to her numerous times. He said he went to the police, Social Services and the legal organization CLASSIC but was unable to get any help. However, the father admitted he was aware the mother had moved to Young, then to Watrous. He further acknowledged he knew where the grandmother resided at all times. Despite his knowledge, the father took no steps to bring this matter back to court requesting continuation of his access visits with the children. do not condone the mother’s actions of moving with the children without the consent of the father or an order of the Court. At minimum she should have given him notice of her intention to move. However, the father could have served her with an application for contempt by obtaining an order for substitutional service on the grandmother. am sure he would have been assisted by CLASSIC to represent himself. The father represented himself at trial. He was very prepared, and he more than adequately conducted his case before me. [39] If accept the father’s evidence, he was not seeing the children from August 2013 to May 2015, period of approximately two years. If accept the grandmother’s evidence, he was absent for approximately four years. It is likely that the father’s access visits were sporadic prior to the mother’s move. The father’s testimony on this point was weak. However, there are photos of the father with the children in the summer of 2011, the spring and summer of 2012, and the spring and summer of 2013. [40] In August 2014 the father found out the mother had been diagnosed with cancer. He connected with the mother via Facebook to express his sympathy and asked her to call him. This did not happen. Subsequently he saw the Facebook message saying that the mother had passed away on January 19, 2015. [41] The father first contacted the grandmother via Facebook January 21, 2015. After expressing his condolences, his message to the grandmother says that he is “hoping that we can talk about the boys. Would love to hear from them so much”. This was the day before the mother’s funeral. He did not hear back from the grandmother. [42] The father went to the children’s school on January 26, 2015 and showed the secretary copy of the court order providing him with every second weekend time with the children. He was told the principal would need to contact him. On February 5, 2015 he again went to the school. At that time he met with the grandmother and the school principal. He said he asked if his every second weekend time with the children could be reinstated. The grandmother said no. She told him the children were too emotional to see him at that time. [43] The grandmother applied for custody of the children. She was granted interim custody. By court order the father began seeing the children in late May 2015. His time with the children was supervised by his aunt, Arlene. His time with the children went from supervised to unsupervised by July 2015. In January 2016 the father and grandmother reached an agreement whereby the father would have access with the boys for three weekends in row with no access on the fourth weekend. In addition, the grandmother and the father were to split the spring break and Easter holidays on an equal basis. This agreement was considered an interim arrangement by the parties. This arrangement is currently the arrangement in place. However, at the conclusion of the trial, ordered specific access for each of the grandmother and the father during summer holidays of 2017. During this summer, the parties are having the children in their respective care in an approximately equal arrangement. [44] The father’s aunt, Ms. Viden, testified at the trial. She confirmed she currently resides with the father and two others in the home located on Harrington Street in Saskatoon. She has had the opportunity of watching the father parent the children during the times the children are in his care. She testified the father is very attentive, helping the children do homework, ride bikes and other activities. She believes the relationship between the father and the children to be “great”. She says the children are always saying “dad, dad, let’s do this”. She has seen the father attend to matters such as hygiene with teeth brushing and showers every night. [45] The father has been seeking custody of the children for some time. Originally he suggested that the children move to his full-time care as at July 1, 2016. His position at trial was that the children should be moved to his care during the summer of 2017 so that they could commence attending their new school, close to the father’s home, in September 2017. The father was clear he did not want to be weekend dad or what he referred to as “Disneyland dad”. [46] The father said he would have lot of help and support if the children were to come into his sole custody. He was of the view that the change in custody would go very smooth and that the children’s lives would “continue as normal” for the most part. The Grandmother [47] The grandmother is 48 years old and is the mother of four children. Her oldest child was the mother of Arty and Haydn. The grandmother resided in common-law relationship with Dion Palmer for 25 years. Dion was employed as long-haul truck driver. Sadly, Dion died in workplace accident in November 2013. The grandmother is not in relationship at this time. [48] The grandmother resides at 135 Avenue South in Saskatoon. She has lived in this home for 18 years. The grandmother owns the home in her sole name, and there is no mortgage on the home. There are five people currently residing in the home. In addition to the grandmother, Arty and Haydn, two of her other children live in the home. Macayla is 20 years old and works as nail technician. Kody is 24 years old and drives for moving company. [49] The grandmother had been working at pharmacy when the mother went into the hospital in February 2014. She left her employment to stay home to look after Arty and Haydn full time. The grandmother says it is not necessary for her to return to work as she receives monthly workplace insurance funds as result of the death of Dion. She will receive the approximate sum of $2,000 per month for the rest of her life. In accordance with the letter to the grandmother from the Workplace Safety and Insurance Board, the grandmother’s monthly payments will be adjusted every year to account for cost of living. In addition to the monthly pension funds, the grandmother received lump sum payment of $69,000. Finally, she receives approximately $1,000 for the children. [50] The grandmother has been one of or the primary care provider for the two boys for significant portion of their lives. The mother and the two boys moved into the grandmother’s home after the mother’s separation from the father and stayed from 2008 to 2011. The grandmother, once again, commenced providing daily care to Arty and Haydn when the mother went into the hospital in February 2014. After the death of the mother, the grandmother’s home has continued to be the primary residence for the children with the father commencing visits with the children in May 2015. In total, the children have resided with the maternal grandmother for period of seven years during their lives. The children are now 10 and 9 years old. It is apparent the youngest boy, Haydn, has known his grandmother’s home as the only home where he resides, as seven of his nine years have been spent living in the grandmother’s home. [51] During the year the mother was in the hospital prior to her death, the grandmother took the children to the hospital every day. The children were attending St. Marie Goretti school where they continue to attend. The oldest child, Arty, had been at that school before when the mother and two children were living with the grandmother after the mother’s separation from the father. [52] The grandmother provided numerous photos of the children. The first photos she submitted into evidence are heartbreaking. One of the photos shows the two boys with large teddy bear they brought to their mother in the hospital. The second photo shows their mother in her hospital bed with tiara on her head and the two boys standing around her bed. The next two photos show the urn containing the mother’s ashes. The grandmother said the urn sits on the fireplace hearth and the children decorate around the urn on Mother’s Day and other special occasions like Christmas. One photo shows two beautiful Mother’s Day cards beside the urn. [53] After their mother’s death, the grandmother wanted the children to attend counselling to deal with their grief. The father would not agree. The grandmother needed his consent before counselling became available to the children. According to the grandmother, the father said the children do not need counselling, “they just needed him”. The father, on the other hand, says he was unwilling to agree to counselling at Catholic Family Services as he wanted the children to move into his full-time care and do counselling at Sutherland school where he anticipated they would attend. At this time, the father was living in trailer court in Sutherland. [54] As result of the refusal of the father to allow for counselling, Tholl J. made an order on August 2015. Pursuant to that order, the grandmother was granted sole authority to make all decisions and provide all authorizations and consents regarding medical care, counselling and education for Arty and Haydn. After receiving this court order, the two children were in counselling for approximately year. The grandmother filed receipts showing her payments to Catholic Family Services for the counselling. The father did not contribute to the costs of the counselling. [55] The grandmother testified the boys were devastated by the loss of Dion in November 2013 and even more so with the loss of their mother in early 2015. She said the boys talk about their mother lot, as well as Dion. She is of the view the children are doing much better at this time, which is reflected in their school marks and achievements. [56] The grandmother wants the children to remain in her primary care and attend the same school they have been attending. She would like to see the children proceed on to college, and she has put money away, from the accident settlement, in order to pay for college. As regards the relationship with their father, the grandmother said she wanted the children to have good relationship with their father and believed she and the father had been working well together on planning holidays, changing the schedule to provide extra nights for the father and arranging phone calls between the children and their father. It is the grandmother’s view that the two children have settled into the current parenting arrangement and enjoy the time they have with their father. [57] The two children enjoy many activities while in the home of the grandmother. Each summer the children swim in the large above-ground pool in the grandmother’s backyard. They like to bake, and there are lovely photos of the boys making biscuits for supper as well as gingerbread cake at Christmas. The boys like to play games with the grandmother as well as Macayla and Kody. There are number of photos of the boys playing “Speak Out”. The children also go to parks and Ruckers with the grandmother or their aunt Macayla or uncle Kody. [58] According to witnesses who testified on behalf of the grandmother, the grandmother has very close relationship with the children. Macayla testified the boys are “so good” with their grandmother. Dave McCrea has been friend of the grandmother for 20 years. Dion and Mr. McCrea had close friendship, and after Dion died, Mr. McCrea maintained relationship with the grandmother. He was there to help the family after Dion died. His observations of the grandmother are very positive. He observes the grandmother interacting with the children as if she was their mother. It was his view the children feel safe with her and rarely misbehave. He indicated that if the grandmother ever needed anything, he and his wife, Melanie, would be there for her, day or night. [59] heard evidence from Darlene Callaghan, who described the grandmother as one of her best friends. Ms. Callaghan has weekly contact with the grandmother either by text, phone or visits. She has observed the interaction between the grandmother and the children and says they are “very close”. She testified that in her view Haydn was “nanny’s” boy. Further, she has witnessed their excitement to see the grandmother when they return from visit from their father’s home. She describes the grandmother as being very loving, supportive and kind. The Children [60] As set out previously, Arty is now 10 years old and Haydn is now years old. heard wonderful things about the children from the individuals who testified at trial. [61] The grandmother testified that the two children are quite different. She said that Arty is quieter than Haydn and more of thinker. She said Haydn was the “goofy” one. According to the grandmother, Arty is particularly interested in science and math and has told the grandmother that he wants to go to college. He has said he may want to be policeman, or perhaps join the army. The grandmother said Arty loves books and movies like The Chronicles of Narnia. [62] As regards Haydn, the grandmother said he liked school but not as much as his brother Arty. According to the grandmother, Haydn is very interested in cooking and consistently helps her make supper. He also watches cooking shows. Some days Haydn tells her he will go on to college and on other days he says he will complete grade 12 and then work as chef. [63] The children’s aunt, Macayla, confirms the grandmother’s testimony about the personalities of the children. She said that Haydn was very outgoing and adventurous. Arty is more laid back and more emotional. [64] Mr. McCrea saw the children couple weeks prior to the trial. It was his impression that the children were doing well and appeared happy. He said the children were “good kids”. Ms. Callaghan remarked that the children were very polite, very well-behaved, kind and generous. [65] The father talked lot about the activities he and the children do when the children are in his care. He did not provide his view as to the children’s personalities. Likewise, his aunt, Ms. Viden, talked primarily about the home the children live in when they are in the father’s care and the activities the children do with the father. [66] reviewed the children’s school report cards for the years from 2013/2014, 2015/2016 and to March 2017. The report cards reflect the struggles of the children during the year after their mother died. Haydn had more difficulty than Arty in school after his mother’s death. However, school reports show great improvement by March 2017. As testified to by the grandmother, Haydn received lot of “Y’s” but also some “S’s”. The stands for “usually evident” with the standing for “sometimes evident”. [67] Arty’s report card of March 2017 shows how well Arty is doing in school. He received solid Y’s and was meeting expectations in almost all subject matters. In fact, in “participation” he was shown as surpassing expectations. [68] Both Arty and Haydn have been awarded certificates for various activities and doing well in school. Arty has received the following awards: 1. Award for personal success for being humble and respecting others (December 10, 2014); 2. certificate from Run Jump Throw Athletics Canada for successfully completing their program (June 2015); 3. personal success award for continuing to be friendly, energetic and helpful classmate (May 12, 2016); 4. certificate of achievement for having completed program called Kids Kitchen (May 3, 2016); 5. further certificate for having completed the Run Jump Throw program (June 9, 2016); and 6. personal success award for being an example of participation to others (November 28, 2016). [69] Haydn has also received certificates from school. The two certificates filed with the Court are: 1. An award for personal success for being courageous person (June 9, 2015); and 2. certificate where he is named BOKS Kid of the Day for being friendly, showing good effort, having good attitude and being team player (October 15, 2016). The grandmother described the BOKS program as standing for Building Our Kids’ Success. It requires Haydn to go in early to school and do physical activity like running. The grandmother said that Haydn was very excited when he got his certificate as he had worked very hard on running laps. [70] was very pleased to receive evidence that the two children are basically healthy and have come long way after their mother’s death towards being happy. Legal Principles [71] This action is governed by The Children’s Law Act. The relevant portions of The Children’s Law Act are as follows: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. 4(1) Subject to subsection (3), if parent is deceased, the surviving parent of child: (a) is the legal custodian of that child. 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; (b) determine any aspect of the incidents of the right to custody or access; and (c) make any additional order that the court considers necessary and proper in the circumstances. (5) When making an order pursuant to subsection (1), the court shall: (a) give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (a) the division and sharing of parental responsibilities; and (b) the granting of access. nan In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. [72] The father argued that he was entitled to custody of the children pursuant to s. 4(1) above. He said he is the surviving parent of the children and is, therefore, automatically the legal custodian of the children. However, the father failed to consider s. 6(1) which provides the Court with jurisdiction to order custody to parent or other person. Section 6(1) commences with the words “Notwithstanding sections to 5” allowing the Court to order custody to someone other than the surviving parent. [73] The father also argued that he has constitutional right to have custody of his children. He did not point to any provision of the Canadian Charter of Rights and Freedoms where such right is granted. In fact, there is no constitutional right. This case is not about the rights of the father. It is about the best interests of the children. [74] The father’s status as the biological father of the children is, however, factor that must be considered when determining the best interests of the children. As set out by Ryan-Froslie J. (as she then was) in S.A.L. K.H., 2011 SKQB 397 (CanLII), 384 Sask 263 [S.A.L.], the relationship between child and his biological parents is special one. In her decision she refers to the approach adopted by the Supreme Court of Canada in King Low, 1985 CanLII 59 (SCC), [1985] SCR 87. She states at paras. 106 and 107 of her decision as follows: 106 In King v. Low, supra, an unwed mother gave her son up for adoption few days after his birth to couple she had chosen. Less than three months later, she requested the child be returned to her care. The adoptive parents refused and an application for custody was initiated. In unanimous decision by the Supreme Court of Canada, McIntyre J. set out the law at para. 27 as follows: [27] This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. [Racine v. Woods, 1983 CanLII 27 (SCC), [1983] S.C.R. 173; Beson v. Director of Child Welfare (Nfld.), 1982 CanLII 32 (SCC), [1982] S.C.R. 716; and Re: Moores and Feldstein, 1973 CanLII 535 (ON CA), [1973] O.J. No. 2113, (1973), 12 R.F.L. 273(Ont. C.A.)] would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside. [Emphasis added] 107 It is obvious that parental ties are an important factor in determining custody. They must, however, give way to the welfare of the child. [75] In S.A.L. Ryan-Froslie J. refers to two decisions of our Court: Hendricks Swan, 2007 SKQB 36 (CanLII), 292 Sask 206 [Hendricks], decision of Smith J. and Edin Edin, 2008 SKQB 490 (CanLII), 328 Sask 54 [Edin], decision of Maher J. In Hendricks the dispute was between biological father and third-party respondents who had the care and custody of the child from the child’s birth. At para. 92 of his decision, Smith J. states as follows: 92 The direction from judicial authorities is crystal clear, namely, that consideration of any single factor, including kinship, must always remain and be subject to the primary consideration, namely, the best interests of the child. [76] After stating that the primary consideration for court in contests between birth parents and others is the best interests of child, Smith J. provides summary of the law as follows: 93 In summary, the instruction draw from the case law is that the critical elements the Court must consider in debate such as this are: (i) The paramount consideration is the best interests of the child; (ii) Blood ties are factor to be considered in determining the best interests of the child but they are to be considered from the point of view of the significance to the child, rather than the significance to the biological parent; (iii) The question must be asked which environment can best provide for the health, emotional well being, education, training, intellectual, economic and psychological needs of the child; (iv) The Court must consider uncertainties associated with transferring custody of child from known situation of security and stability to situation with many unknowns. In the case of an infant, the Court must consider the potential harm to child in disrupting attachments that have developed or are in the advanced stages of formation. [77] After consideration of these legal principles as applied to the circumstances before him, Smith J. dismissed the biological father’s claim for custody. [78] In Edin, the maternal grandmother petitioned for sole custody of her granddaughter. Maher J. refers to the summary of law as set out by Smith J. in Hendricks and concludes that there is strong psychological bond between the grandmother and granddaughter. He says neither of the biological parents have the same bond as they only recently became part of their child’s life. He makes comments about the child being able to stay at the same school, maintain relationships with her teachers, her friends and both of the biological parents if the child stayed in the care of the grandmother. [79] Of course, determination of the best interests of child is to be made on case-by-case basis with reflection on the circumstances of the family before the Court. There are Saskatchewan cases where biological fathers are granted custody as opposed to grandparent (see for example Haygarth Martel, 2012 SKQB 439 (CanLII), 410 Sask 96). [80] In making an order for custody must take into account only the best interests of these two children and, further, take into account the factors as set out in s. of The Children’s Law Act. [81] review of the factors as they relate to the family before me is as follows: (i) The quality of Arty and Haydn’s relationship to the grandmother and the father. [82] The grandmother has provided stability for the two children throughout their lives. She was there for them on daily basis to provide support when the relationship between the mother and father terminated. She was their primary caregiver during their mother’s one-year hospital stay before her death. She was there for them as they grieved their mother’s death, and she arranged for counselling to assist the children with the grieving process. The grandmother is keeping the children’s memories of their mother alive by marking special occasions like Mother’s Day. There is lovely photo of the two boys sending balloons into the air with messages to their mother inside on Mother’s Day. [83] The children refer to the grandmother as “nanna” and Ms. Callahagn described Haydn as “nanny’s” boy. On all of the evidence before me, the grandmother is the “psychological” parent for the boys. [84] The Saskatchewan Court of Appeal decision in Haider Malach (1999), 1999 CanLII 12363 (SK CA), 177 Sask 285, provides insight into the matter of psychological parents. Paragraph 82 of that decision states: 82 In Goertz v. Gordon, 1996 CanLII 191 (SCC), [1996] S.C.R. 27 at 92-93, L’Heureux-Dubé J. comments on the significance of the primary caregiver and psychological parent: The assessment of the child’s best interests also involves consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child’s relationship with his or her psychological parent has long been recognized by this Court on number of occasions (Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, at p. 101). There is growing body of evidence that this relationship may well be the most determinative factor on the child’s long-term welfare. As mentioned in Young, supra, at p. 66 [1993 CanLII 34 (SCC), [1993] SCR 3], the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit’s Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child’s relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [L’Heureux-Dubé J.’s emphasis] [85] The children are clearly emotionally bonded to their grandmother, and must recognize the importance of continuity in the children’s relationship with her. [86] The children have bond with their father as well. Since May 2015 the children have had time with their father on regular basis. His time with the children was set by adopting “staged” re-entrance into the children’s lives. [87] When the children are in the care of the father, it is obvious they enjoy being with him and doing all the activities he arranges for them. There is no evidence the children fear their father and do not want to have visits with him. Further, there is no evidence that the father is currently utilizing drugs or drinking in excess. commend the father for having been on the road to recovery for three years. (ii) The personality, character and emotional needs of the children [88] The evidence establishes that the two children have different personalities but are both considered polite, well-behaved, kind and generous children. It was pleasure to hear about the numerous activities the children enjoy when they are in the care of the grandmother and when they are in the care of the father. In my view, the two children have emotional needs that are unusual for children of their age. They have suffered two significant losses in their young lives. The death of Dion, their step-grandparent, was not easy to deal with for the children. Then, their mother passed away. The children’s mother had been the children’s primary caregiver from the time the mother and father separated in 2008. To lose their mother at such young age must, no doubt, have had and continue to have, huge effect on the children and what they require emotionally. (i) The physical, psychological, social and economic needs of the children [89] am satisfied both the grandmother and the father can provide for the physical, social and economic needs of the children. Both the grandmother and the father gave evidence that they would like to see the boys active and involved in activities other than “screen” games. The father had concerns regarding Haydn’s weight. It appears the grandmother, in conjunction with the school, is working on more physical activity. Thankfully neither child has any major medical issues and both parties would, in my view, be capable of handling any medical issues. [90] As regards the economic needs of the children, both the grandmother and the father can provide financially for the children. My only concern here is with regards to the father’s lack of stability in his employment. [91] The psychological needs of the children take on more significance in this matter given the losses of the children. The grandmother has, through her actions, satisfied me that she will always keep the children’s mother alive in their hearts. question whether the father will also do so. He provided no evidence that he ever discussed the mother in positive way with the children. Further, although the children have lovely bedroom in the father’s home, could not see picture of their mother. The only picture is of the father and the boys. [92] After finding out the mother had cancer, the father did not attempt to provide support to the children. This is troubling. He was aware of the mother’s cancer diagnosis and was aware of the grandmother’s place of residence. Short visits with the father may have assisted the children in coping with the fact they were losing their mother. His excuse for not doing so was that he did not think it was right to just show up and ring the grandmother’s doorbell. wonder why he did not prepare note to the grandmother and place it in her mailbox. His note could have expressed his willingness to do whatever was necessary and appropriate to support the children. [93] am also concerned the father believes nothing would really change if the children were transferred from the care of the grandmother to his home. He testified it would “continue as normal for them”. The father’s comments show an entire lack of understanding about the psychological issues for children when they are removed from their primary caregiver and are forced to change schools and neighbourhoods. have great doubt that he would, if determined he have custody, utilize counsellors to assist the children with the significant change in their lives. His opposition to counselling in the past is telling. accept the grandmother’s evidence that the father’s view is that the children only need him and all will be fine. (iv) The capacity of the person who is seeking custody to act as legal custodian of the children [94] On the evidence have determined that both the grandmother and the father have the capacity to act as legal custodians of the children. As set out previously, there is no evidence before me the father is struggling with the addictions he had in the past. Further, there is no evidence before me that he disciplines the children inappropriately, has an anger management issue or any other problem that would lead to the conclusion he could not parent the children. [95] The grandmother has raised her own children and has been raising Arty and Haydn for some time. The father provided no evidence of any concerns with the grandmother’s care of the children. The grandmother is physically capable of assuming custody of the children. Her age is not factor as she is very young grandmother, being 48 years old. (v) The home environment proposed to be provided for the children [96] Both parties have homes that can adequately provide for the children’s needs. Both the grandmother and the father have others living in their homes that provide support to the children. The boys share room in each home, and there is large backyard where the boys can play in each home. (vi) The plans that the person who is seeking custody has for the future of the children [97] Both the grandmother and the father would encourage the children to pursue post-secondary education. At present, the children are assisted with their homework by either the grandmother or the father or someone else in their respective homes. It is my belief that both the grandmother and the father want the children to be happy, healthy and independent at some point in their future. (vii) The wishes of the children, to the extent the Court considers appropriate, having regard to the age and maturity of the children [98] The children are only and 10 years old. It is not until they are older that any weight would be put on their wishes. With respect to their wishes, neither the grandmother nor the father testified that the children have expressed desire to either move to the father’s home or stay with the grandmother. The children did, according to the father, wish to spend the entire Easter week with their father as opposed to have the week shared between the grandmother and the father. This is quite normal. The children obviously wanted few more days with their father when it was holiday period. On the other hand, heard evidence that the children are very happy to see their grandmother when they return from an access visit with the father. Conclusion [99] After taking into account the factors as set out in s. 8 of The Children’s Law Act, and considering only the best interests of the children, I have determined that it is in the children’s best interests to remain in the custody of the grandmother. Although the children have accepted their father back into their lives and clearly enjoy spending time with him, the grandmother is their psychological parent, and stability is found by leaving the children in the grandmother’s care. The children can continue to go to the same school they have attended and where they know their teachers. They can continue to celebrate the life of their mother while in the home of the grandmother. The bond they have with their grandmother is strong, and believe the grandmother will best provide for the children’s psychological needs. [100] This is not to say that the father is inadequate and should have minimal time with his children. accept his evidence that he is very passionate about his children and loves them very much. also have no doubt that the children love their father. The father should play significant role in the children’s lives and become more of parent than the “Disneyland dad” he described. strongly believe that the grandmother and the father will be able to work together as they both recognize it is in the best interests of the children to do so. The children have already been through enough. Conflict between the grandmother and the father would damage the children. [101] am ordering the following: 1. The grandmother and the father shall have joint custody of Arty and Haydn. 2. The parties shall discuss and decide jointly all major decisions with respect to health, education and religion of the children. In the event the parties cannot agree on significant issue, the grandmother shall make the determination. 3. The grandmother shall have the sole authority to make all day-to-day decisions regarding health, dental care and counselling. She shall choose the children’s doctor and dentist but provide the names to the father. 4. The father shall be entitled to obtain all information direct from the school that the grandmother receives. He shall be entitled to attend parent/teacher interviews, either with the grandmother or on his own. 5. The residence of the grandmother shall be the primary residence for the children, and she shall have the primary care of the children. 6. The father will have the following parenting time with the children: a) Every second week from Wednesday after school to Sunday at 8:00 p.m. b) Every alternating week on Wednesday evenings from after school until 8:00 p.m. c) The parties shall each parent the children for one-half of all school holidays unless otherwise agreed. For example, the parties could agree that one party have the entire Easter break while one party have the entire February break. d) The grandmother shall be allowed to register the children for soccer. The father shall be allowed to register the children for Cubs/Scouts. CHILD SUPPORT [102] Although the grandmother suggested that the father should pay child support to her for the children, no argument was put forward for child support at the conclusion of the trial. Further, I do not, at this time, have adequate evidence to consider the child support issue. will order, however, that the grandmother pay for activities she arranges for the children and the father pay for activities he arranges for the children. In addition, the parties should share any medical or dental expenses, over and above any amount paid by insurance, on an equal basis. The grandmother can pursue child support through an application to the court should she desire. [103] This was very difficult matter, and both the grandmother and the father have been partially successful. Although determined that the grandmother would be the primary caregiver for the children, substantially increased the father’s time with the children and provided parenting time for him with the children during school weeks. In such way, the father will be more involved in their schooling and will do all things parenting entails like making school lunches, checking school bags and ensuring homework is done. There has been mixed success in this matter. For these reasons am not awarding costs be paid by either party. J. D.L. WILSON","HELD: The court found the following with respect to each issue: 1) the grandmother was a person of sufficient interest regarding the children pursuant to s. 6 of The Children’s Law Act, 1997 and had standing to bring her application for custody; 2) it would be in the best interests of the children, now aged ten and nine years of age, to have their primary residence with their grandmother as she was their psychological parent. They had resided with their grandmother for most of their lives and it was important to maintain their relationships with their school and friends. The respondent would have regular weekly parenting time with the children; and 3) the evidence was inadequate to consider child support.",e_2017skqb219.txt
137,"IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. R.C. 2008 NSPC 12 Date: March 5, 2008 Docket: 1763716 Registry: Halifax Her Majesty the Queen R.C. Restriction on publication: S. 110(1) YCJA Subject to this section, no person shall publish the name of young person, or any other information related to young person, if it would identify the young person as young person dealt with under this Act. Judge: The Honourable Judge Pamela S. Williams Heard: February 20, 2008 in Halifax Youth Justice Court Oral decision: March 5, 2008 Charge: s. 5(2) Controlled Drugs and Substances Act Counsel: James Whiting, for the Crown Megan Longley, for the Defence INTRODUCTION [1] R.C., a young person within the meaning of the Youth Criminal Justice Act (YCJA), is charged, on or about the 23rd of April, 2007, with having in his possession for the purpose of trafficking, crack cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [2] This is a decision following a voir dire held to determine the lawfulness of the strip search of R.C. by police, and the admissibility of 17.8 grams of crack cocaine found on the young person. Crown and defence have agreed that the evidence heard on the voir dire is to form part of the trial proper. LAW STRIP SEARCHES [3] The leading case on strip searches in Canada is the Supreme Court of Canada case of R. v. Golden 2001 SCC 83 (CanLII), [2001] SCJ 81. It confirms many of the principles previously enunciated on the law related to warrantless searches and it sets out the parameters for strip searches. [4] quick summary of the principles are as follows: 1. There is constitutional right to privacy. 2. Unjustified searches by the state are prohibited. 3. Warrantless searches are prima facie unreasonable. 4. Search incident to arrest is an established common law exception to the rule. 5. Search incident to arrest does include the power to strip search, subject to limitations. [5] strip search is defined at paragraph 47 as: the removal or rearrangement of some or all of the clothing of person as to permit visual inspection of person’s private areas, namely genitals, buttocks, breasts (in the case of female) or undergarments. [6] The two part test in determining whether warrantless strip search is lawful can be stated as follows: 1. Were there reasonable and probable grounds to conduct the strip search? 2. Was the strip search, carried out at the police station, conducted in reasonable manner? [7] Where the reasonableness of the search is challenged by the accused, the crown bears the onus of proof (on balance of probabilities) that the search was reasonable. APPLICATION OF THE FACTS TO THE LAW Part One Were there reasonable and probable grounds to conduct the strip search? [8] In determining whether reasonable and probable grounds exist to conduct the strip search, three conditions must be met: 1. The individual must be lawfully under arrest; 2. The strip search must be incident to arrest, meaning that it must be specifically related to the reasons for the arrest itself; and 3. If the search is taking place for the purpose of finding evidence, it must be governed by the need to preserve the evidence and prevent its disposal by the arrestee. [9] R. C. was arrested in possession of motor vehicle, that had previously been stolen by Scott Tufts and purportedly traded, by Tufts, for drugs. [10] In an attempt to retrieve the vehicle, after having been arrested and charged with stealing it, Scott Tufts placed call and arranged for someone to meet him (hopefully in the stolen vehicle) at an agreed upon location to complete another drug transaction. [11] Police intercepted the stolen vehicle at the agreed upon location. It was being driven by R. C. R. C. was arrested and charged with possession of the stolen vehicle. [12] Later, at the police station, police conducted strip search of R. C. and located quantity of cocaine. R. C. was then charged with possession of cocaine for the purpose of trafficking. Save for the arrest on the stolen vehicle charge and subsequent strip search which resulted in the detection of cocaine, there would have been no grounds to charge R. C. with possession of cocaine for the purpose of trafficking. Was R. C. lawfully under arrest? [13] Clearly, R. C. was lawfully under arrest for having been found in possession of the stolen vehicle. The vehicle matched the make, model, year and color of Susan Bell’s stolen vehicle and it matched the license plate number reported to police. There was only one person in the vehicle, the driver, R. C., and the owner had not given him permission to drive or possess it. Was the Strip Search Incident to Arrest, i.e. Was it Specifically Related to the Reasons for the Arrest itself? [14] What is meant by “specifically related to the arrest itself”? It is clear from the evidence that the strip search was not “solely related” to the reasons for arrest but was it was “related” to the reasons for arrest. For direction turn to R. v. Debot (1989) 1989 CanLII 13 (SCC), 52 CCC (3d) 193 wherein the Supreme Court of Canada stated that in assessing the reasonableness of search the court must consider the totality of the circumstances including the nature of the information supplied by the informer and confirmation of information by the police investigation. Therefore, in determining whether the strip search of R. C. was specifically related to the reasons for the arrest will consider the totality of the circumstances surrounding the arrest. [15] On Sunday April 22, 2007 Constable Proulx received complaint from Susan Bell wherein she reported that Scott Tufts had stolen her 2002 Ford Focus, Nova Scotia License plate number DYN655, the previous day. [16] On Monday April 23, 2007 Scott Tufts was arrested and interviewed by Constable Proulx. Mr. Tufts provided story to police about two black males who had kid-napped him and who had subsequently taken Ms. Bell’s vehicle. He said he had met them downtown on Saturday to buy drugs. Mr. Tufts said he had escaped when he offered to go get money to pay for crack they were selling. [17] Police readily admit they did not believe Mr. Tufts story about an abduction. They had serious issues with Mr. Tufts credibility. [18] While in police custody Scott Tufts told police he could get the motor vehicle back by placing call and arranging for place to meet to do further drug transaction. It was Constable Withrow’s opinion that the same person who was the seller of the crack would be transporting it in Ms. Bell’s stolen Ford Focus. [19] Police readily admit they thought, at the time, this might simply have been an attempt on the part of Mr. Tufts to talk himself out of trouble, that is, avoid theft conviction. Constable Proulx had never dealt with Mr. Tufts before but he knew Tufts had lengthy criminal record. Constable Withrow testified that he had no expectations. He believed that Tufts was involved in the drug world and was drug user. In his words, ‘it was worth chance to get the motor vehicle back’. With little or no other options available, police agreed to allow Tufts to place call to set up drug deal in the hope that Ms. Bell’s motor vehicle would be driven to the pre-arranged location for the drug transaction. [20] While in police custody Mr. Tufts placed one call at 10 p.m. and arranged for meeting to do drug transaction at the Esso on Lady Hammond Road in Halifax. Constable Lobsiger, who was out on patrol in the area, was advised by Constable Withrow at 10:01 p.m. to be on the look-out for Ford Focus displaying license plate number DYN 655. Constable Lobsiger was sitting in his police car near the West End Mall. At 10:13 p.m. he saw the vehicle near 6960 Chebucto Road and followed it. He and Constable Withrow (each in separate vehicles) stopped the Ford Focus on Romans Avenue and arrested the driver, R. C. [21] R. C. was arrested because he was the confirmed driver and sole occupant of the motor vehicle that had been reported stolen within the previous 48 hours. The arrival of that vehicle near the location of the arranged drug transaction, so soon after the call had been placed, lent credence to Tuft’s assertion that he could get the vehicle back by arranging drug deal. It was therefore quite conceivable that the driver and sole occupant of the vehicle would have drugs on his person that were intended to be sold to Tufts. Furthermore, Constable Withrow knew R. C. He knew that R. C. had prior involvement with drugs. He was also aware of intelligence reports that indicated that R. C. resided in and was associated with areas where the drug trade occurred. And, Constable Withrow stated that he had seen R. C. in areas frequented by people who buy and sell drugs. [22] The search of R. C., incident to his arrest for possession of stolen vehicle, did not, and understandably would not result in the detection of drugs if hidden on his person under his clothing. The strip search conducted at the police station later on was not for the purpose of affording evidence related to the stolen vehicle, but it was for the purpose of affording evidence related to the possession of drugs for the purpose of trafficking, which itself, was reasonable conclusion to draw, based on the substance of Tuft’s telephone call together with the subsequent arrival of the stolen vehicle near the agreed upon location. On the balance of probabilities, I find that the strip search was specifically related to the totality of circumstances surrounding the arrest of R. C. and was ,therefore, incident to arrest. Was the Search for the Purpose of Finding Evidence? If so, Was it Governed by the Need to Preserve Evidence and Prevent its Disposal by the Arrestee? [23] The strip search took place for the purpose of finding drugs. Drugs by their very nature can be easily concealed, disposed of or ingested. Police had earlier determined that R. C. would be held overnight and taken to court the following day to be arraigned on charge of possession of stolen vehicle. Police were concerned that R.C. was potentially in possession of drugs and that, in custody, they might be to be ingested, hidden or destroyed by the accused. Furthermore, police were concerned that there was potential for drugs to enter the cells or the Courthouse. As one knows, metal detectors are of no assistance in detecting drugs on person. [24] conclude, therefore, that the search was for the purpose of not only preserving evidence, that is, the drugs, but also for the purpose of preventing their destruction, their ingestion by the accused or their dissemination in the jail setting or courthouse cells. These were both legitimate and real concerns on the part of police. Part Two Was the strip search carried out at the police station conducted in reasonable manner? [25] As pointed out by counsel, Golden, supra, at para. 101 provides framework for police in deciding how best to conduct strip search incident to arrest that is in compliance with the Charter. The evidence will be analyzed in reference to that framework. [26] Was the strip search conducted at the police station? Clearly, it was. [27] Was it conducted in manner that ensured the health and safety of all involved? Yes it did. Whether one accepts the young person’s version of events or that of the officers, it is obvious that the officers advised the young person, in advance, that they were going to do strip search. They afforded the young person the opportunity to remove his own clothing or have it removed by officers, with force, if necessary, if he refused to remove it himself. After an initial refusal, R. C. reluctantly removed and/or rearranged his outer clothing in the presence of at least one officer after which bag containing cocaine was removed from his underwear. There was no physical contact by officers to the person of R. C. during the strip search. [28] Was the strip search authorized by police officer acting in supervisory capacity? The evidence establishes that Constable Lobsiger called his road sergeant to let him know of their intention to do strip search. Though there was no evidence that the road sergeant authorized the strip search, conclude, based on the evidence of Constables Lobsiger and Withrow that he did not forbid it. [29] Were the officer(s) carrying out the strip search of the same gender as the individual being searched? The young person and the officers involved were all males. [30] Were the number of police officers involved in the search no more than was reasonably necessary in the circumstances? Although there is discrepancy in the evidence of R. C. and that of the police officers, find that whether Constable Lobsiger was by the door on the inside of the room or on the other side of the door, outside of the room, the number of officers (either one or two) in the room was reasonable. It was clear from the evidence that only one officer, Constable Withrow, was actually participating in the strip search of R. C. [31] Was minimum force necessary used, to conduct the strip search? No physical force was used. Officers advised that physical force would be used if R. C. chose not to cooperate with the strip search. find this was not threat. It was statement of fact based on the lawful authority the police felt they had at the time. R. C. reluctantly cooperated and thus no force was used. [32] Was the strip search carried out in private area such that no one other than the individuals engaged in the search could observe the search? The strip search was conducted in private cubicle, without windows, upstairs in the police station. There was video camera in the room but it was not activated. According to the officers, Constable Lobsiger left the room, at the request of R.C., for the purpose of the strip search. The door was left ajar. Constable Lobsiger says he did not watch the search being conducted nor does he recall hearing any conversation. R. C. says that Constable Lobsiger was in the room during the search but by the door holding it open and apparently was not directly involved in the search itself. Either way, the evidence establishes that the search was carried out in private area and, at most, two officers were privy to the search of R.C. [33] Was the strip search conducted as quickly as possible and in way that ensured that the young person was not completely undressed at any one time? R. C. was never completely undressed. He had removed his outer clothing but at no time did he remove his tank top or his underwear. According to Constable Withrow the strip search was completed within 30 seconds. R.C. said that it took approximately 15 minutes to complete. The discrepancy may be attributed to differing time period that each estimated. The time period estimated by Constable Withrow appeared to encompass the time it took to undo clothing and remove the drugs from the underwear. The time period described by R. C. appears to have encompassed the whole process, that is, the time from when the officers advised him there would be strip search to the time of the discovery of the drugs. In any event, conclude that the entire process took longer than 30 seconds but likely much less than 15 minutes. Several minutes were obviously spent over an exchange as to whether the police had right to do strip search and whether R. C. first had the right to contact lawyer or his grandmother. The strip search itself however was conducted as quickly as possible. [34] Did the strip search involve visual inspection of the arrestee’s genital and/or anal areas? On the evidence it is clear that there was no visual inspection of the young persons private areas. The drugs were removed from the underwear without any view of the private area. [35] Was the detainee given the option of removing the object himself? The evidence on this point is contradictory. Constable Withrow testified that it was the accused, R. C., who removed the plastic bag from his underwear. According to the officer’s evidence, R. C. lifted up his shirt, undid the front of his jeans, pulled them down slightly (approximately one foot) opened his boxers 6-12 inches, put his hand down the front of his underwear and pulled the drugs out. R. C. for his part, testified that he himself removed his sweatshirt and t-shirt and that he lowered his pants to his ankles and then removed his gym shorts. He stated that Constable Withrow patted him down and pulled the drugs out of R. C.’s underwear. On cross-examination however R. C. was not very clear on exactly how the drugs were located. He stated that the officer ‘dug around his private area’ but did not touch his private area. He opined that the officer must have seen the plastic; that it was visible poking out of his underwear. He stated that the officer reached and grabbed the bag and touched him while grabbing and removing the plastic bag. When asked specifically where the touching occurred, R. C.’s evidence was less than clear. He had indicated that the officer reached to the side of his briefs’. At another point he said the officer was ‘feeling on his leg’, after which he backed up and the officer then pulled the bag out. When asked to describe the location from where the bag was pulled, R. C. pointed to the zipper area of the jeans he was wearing while testifying. When asked whether the drugs were pulled from the ‘fly/pocket area’ of his briefs, through the waistband or through the leg, R. C. was ambivalent. Based on R. C.’s testimony am left with the impression that R. C. either doesn’t know how the drugs were removed from his shorts or that he removed them himself and was unable to provide convincing version of events otherwise. Either way, find R. C.’s explanation unreliable and unbelievable. accept the evidence of Constable Withrow who described situation in which the young person removed the drugs from his own underwear. His evidence was clear, concise and entirely plausible. [36] Was proper record kept of the reasons for and the manner in which the strip search was conducted? It is unclear from the evidence exactly what type of record was kept. Police officers made notes which were referred to in the course of testimony but the court was not privy to the notes themselves to determine what reference, if any, was made to the strip search. Telephone contact was made with superior officer before and after the search was conducted. The contents of those conversations did not form part of the evidence. One might conclude that the reasons for the strip search were discussed with the supervising officer prior to the search but there is no evidence of this. Constable Withrow was able to enunciate, during the course of his testimony, the reasons why he wanted to conduct strip search and how the strip search was conducted. This may or may not have been recorded elsewhere. In this case little turns on it as there was not great deal of discrepancy in the accounts given by the young person and the police as it relates to the type of strip search that was conducted. It was relatively quick and minimally invasive. APPLICATION OF THE YOUTH CRIMINAL JUSTICE ACT [37] As defense counsel points out, Golden, supra, was decided prior to the enactment of the YCJA which affords young persons charged with criminal offences enhanced procedural protections. Counsel for R. C., therefore, argues that these codified enhanced procedural protections should be interpreted such that police be required to allow young person to contact counsel and/or parent or guardian prior to embarking on strip search. [38] Section 3(1)(b)(iii) of the YCJA indicates that the criminal justice system for young persons must be separate from that of adults and emphasize, among other things, enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected. This is general guiding principle intended to ensure that young persons, given their age and level of maturity, are treated fairly by the criminal justice system and that their rights (afforded to them under the law) are respected. It does not, in my view, confer upon them greater rights or privileges than those afforded to adults. Had this been the intention of Parliament, surely it would have been clearly stated as such. [39] One can see, from review of the provisions of the YCJA, that there are, in fact instances when privacy interests of youth are to be afforded given greater protection than those of adults. For example Part of the YCJA, related to the protection of privacy of young persons in relation to publication, records and information, mandates that disclosure and publication of certain information pertaining to young persons occur only within certain parameters. As well there are provisions in the legislation pertaining to the admissibility of statements given by young persons to persons in authority, whereby certain procedural protections must be afforded to young persons. [40] There is nothing in the YCJA or the common law however that requires that young persons be afforded an opportunity to consult counsel and/or parent or guardian prior to police strip search. The police must, however, comply with the law as it relates to strip searches, and find they have done so here. The strip search was lawful and there was no breach of Section 8 of the Charter. APPLICATION OF SECTION 24(2) OF THE CHARTER [41] In the event there was a breach of R. C.’s section 8 rights to be free from unreasonable search and seizure this is not a case in which the evidence should be excluded. [42] The burden is on the Applicant, the defence, to establish, on balance of probabilities, that the admission of evidence would bring the administration of justice into disrepute. We are familiar with the Supreme Court of Canada’s pronouncements in v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 as to the list of factors to consider in determining whether the admission of evidence would bring the administration of justice into disrepute. The non-exhaustive list of factors have commonly been grouped into three categories: 1. those affecting the fairness of the trial; 2. those relevant to the seriousness of the Charter breach; and 3. those related to the effect of excluding the evidence. Fairness of the trial [43] The evidence sought to be excluded is 17.8 grams of crack cocaine. It is real, non-conscripted evidence which existed irrespective on any Charter breach. Admission of evidence of this type will, according to the Supreme Court of Canada in R. v. Stillman, [1997] S.C.J. 34 at paras. 74-75, rarely render trial unfair. The Applicant has not satisfied me that the admission of the drugs located on the person of R.C. would render the trial unfair. Seriousness of the breach [44] In considering the seriousness of the breach, once again we apply the framework established by the Supreme Court of Canada in Collins, supra: 1. Was the breach committed in good faith or by inadvertence, was it was technical in nature or was it was deliberate, wilful or flagrant?; 2. Was the breach motivated by the urgency of the situation or by the necessity to prevent the loss or destruction of evidence?; 3. Was the search obtrusive and what was the individual’s expectation of privacy in the area searched? [45] find that the officers reasonably believed that they had both the legal authority and the necessity to conduct the strip search. R. C. had been properly arrested for possession of stolen motor vehicle which had arrived at pre-destined location for the purpose of completing drug transaction arranged by Mr. Tufts. Mr. Tufts was known by police to be involved in the drug world and to be drug user. R. C. was known to have had prior drug conviction. Constable Withrow was also aware of intelligence reports that indicated that R. C. lived in and was associated with areas where the drug trade occurred. The decision to strip search was neither flagrant nor arbitrary. [46] The search was motivated by a degree of urgency and by the necessity to prevent the loss or destruction of drugs. Crack cocaine can be concealed easily and is not readily discoverable by ‘pat-down’ search. There was concern not only about the loss or destruction of drugs but also about the potential that they could be ingested or disseminated within custody population at the detention center or at the courthouse. [47] All strip searches, by their very nature, are intrusive. I agree however, that here, significant efforts were made to respect the privacy and personal integrity of the young person. Though it can not be said that R. C. was willing participant to the strip search, he reluctantly agreed to the search despite the refusal to his request to call counsel or his grandmother. As indicated earlier, find that neither officer touched R. C., that at no time was R. C. totally undressed and that R. C. removed the drugs from his underwear himself. All of the guidelines set out in Golden, supra, were followed except for detailed written records being kept. But again, as indicated above, find that nothing of consequence turns on this as the search was minimally intrusive, even by R. C.’s account. [48] To exclude the evidence, in my view, would call into question the very reputation of the administration of justice. Possession of crack cocaine for the purpose of trafficking is very serious criminal offence and poses very real danger to the community. We are all too familiar with the harmful social consequences of cocaine trafficking. We need look no further than the facts of this case where an innocent third party’s motor vehicle was stolen and probably pledged or traded for quantity of the drug. The drugs seized from the person of R. C. do represent the essence of the offence itself. Their exclusion would end the prosecution and that would surely call into question the reputation of the administration of justice. Therefore, in the event of a Charter breach, the evidence would nonetheless be ruled admissible. Order Accordingly Pamela S. Williams Judge of Youth Justice Court","A youth was arrested and charged with possession of a stolen motor vehicle after the vehicle arrived near the location of a pre-arranged drug transaction. The youth was later charged with possession for the purposes of trafficking after a strip search conducted at the police station resulted in a quantity of crack cocaine being removed from his underwear. A voir dire was held to determine the lawfulness of the strip search and the admissibility of the cocaine seized. The evidence is admissible; there was no breach of s. 8 of the Charter and, in the event that there had been a breach of s.8, the admission of the evidence would not bring the administration of justice into disrepute. The strip search was incident to arrest and conducted in a reasonable manner, being reasonably quick and non-invasive. There is nothing in the Youth Criminal Justice Act or the common law which requires that young persons be afforded the opportunity to consult with counsel or a parent or guardian prior to a search. This was real evidence, the admission of which would not affect trial fairness; any breach was conducted in good faith; the search was motivated by a sense of urgency; and significant efforts were made to respect the privacy and personal integrity of the young person.",5_2008nspc12.txt
138,"J. Date: 20020905 Docket: CA 183381 NOVA SCOTIA COURT OF APPEAL [Cite as: R.B. v. Children’s Aid Society of Nova Scotia, 2002 NSCA 108] R.B. Applicant/Appellant and CHILDREN’S AID SOCIETY OF NOVA SCOTIA and S.F. Respondents Counsel: Donna D. Franey for the appellant John Underhill for the respondent Children’s Aid Society of Halifax Respondent S.F. not appearing Application Heard: July 25, 2002 Applicant’s brief August 16, 2002 Respondent Society’s brief August 30, 2002 Decision Delivered: September 5, 2002 BEFORE THE HONOURABLE JUSTICE CROMWELL IN CHAMBERS PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. CROMWELL, J.A.: (in Chambers) I. Introduction: [1] R.B. applies to me in Chambers for an order that she be added as a party so that she can appeal a permanent care order respecting her granddaughter. [2] R.B. is the paternal grandmother of two and one-half year old L.T.F. L.T.F. was the subject of protection proceedings brought by the Children’s Aid Society of Halifax in the Family Division. R.B. did not participate in those proceedings. She says she had indicated to the Society that she was willing to be considered as placement for the child if the plan to return the child to her mother did not progress as anticipated. In the end, the proceedings resulted, in June of this year, in an order placing the child in the permanent care and custody of the Children’s Aid Society of Halifax. According to R.B., she found out about the order after the fact. She feels that the Society wrongly shut her out of the process and that the judge in the Family Division erred in not considering family placement with her before making the permanent care order. [3] The application raises two issues. The first is whether I, sitting as judge in Court of Appeal Chambers, have the authority to deal with the application. The second is whether R.B. should be added as party for the purposes of bringing an appeal. [4] Having considered the helpful briefs of counsel and the authorities, I am of the view that a judge of the Court of Appeal in Chambers does not have authority to make the order requested. Even if I had jurisdiction to do so, I would not make the order as, in my opinion, an application to the Family Division for leave to terminate the permanent care order appears likely to be a more appropriate initial way for R.B. to proceed. I, therefore, dismiss the application. II. Adding Parties for the Purposes of Pursuing an Appeal: [5] R.B. submits that there are two bases on which this Court may add her as party for the purposes of appealing the permanent care order. will briefly outline the submissions with respect to each of them. [6] The first is found in ss. 36(1)(f), 31 and 49 of the Children and Family Services Act, S.N.S. 1990, c. as amended. Under s. 31, the definition of proceeding in the Act includes an appeal to this Court of permanent care order made in the Family Division. Section 36 defines party to proceeding as including “... any other person added as party at any stage in the proceeding pursuant to the Family Court Rules”. It is argued that the provision in s. 36, which authorizes the addition of party at any stage of the proceeding, includes the power of this Court to add party for the purposes of an appeal. [7] The second basis on which R.B. says there is jurisdiction to add party for the purposes of appealing is the preserved inherent jurisdiction of this Court. In Société des Acadiens du Nouveau-Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau-Brunswick v. Association of Parents for Fairness in Education, Grand Falls District 50 Branch, 1986 CanLII 66 (SCC), [1986] S.C.R. 549, the Supreme Court of Canada held that the New Brunswick Court of Appeal had inherited the authority of the High Court of Chancery in England to add party for the purposes of bringing an appeal from decision in which that party had an interest. Briefly put, R.B.’s submission is that this Court is in the same position as the New Brunswick Court of Appeal. [8] The Children’s Aid Society contests the jurisdiction of this Court or judge to make the order sought. However, in light of the conclusions that have reached, need not decide whether the Court has the authority on either or both of the bases advanced by R.B. to add party for the purposes of appealing. To consider the authority of Chambers judge will assume, without deciding, that this Court has that authority. The question, then, is whether judge in Chambers may exercise the power of the Court in this situation. III. Jurisdiction of Chambers Judge: [9] In general, all the powers of the Court of Appeal are exercised by panel of at least three judges. The powers exercisable by one judge of the Court in Chambers are limited to the matters assigned to Chambers judge under Rule 62 or any other Rule or enactment: see Rule 62.24 and Future Inns Canada lnc. v. Nova Scotia (Labour Relations Board) (1996), 1996 CanLII 5240 (NS CA), 154 N.S.R. (2d) 358; N.S.J. No. 434 (Q.L.)(N.S.C.A. Chambers). [10] R.B. submits that Chambers judge generally has authority to deal with procedural matters and the addition of party for the purposes of bringing an appeal is such matter. Even accepting that this rather significant step is procedural matter, the power of Chambers judge in this Court is not dependent on the distinction between matters of procedure and matters of substance. The Chambers judge’s authority, while mainly procedural in nature, depends on specific authority found in the applicable Rules or enactments. [11] If there is an inherent power, derived from English Chancery practice, to add party for the purposes of bringing an appeal, this preserved inherent jurisdiction is that of the Court, not one judge of the Court. In the New Brunswick case cited earlier, Court of Appeal Chambers judge decided that under New Brunswick practice, the inherent jurisdiction to add party for the purposes of appealing should be exercised only by the Court. Assuming (without deciding) that our Court has similar inherent power, there is no rule or enactment to which have been referred which authorizes judge in Chambers to exercise it. [12] R.B. relies on Rule 62.01(j) which defines “respondent” to include “any person, who ... is authorized by the Court or Judge to be party to the appeal...”. do not think this assists R.B.’s position. Putting aside that she seeks to become an appellant, not respondent, Rule 62.01(j) is purely definition provision and should not be interpreted as conferring jurisdiction. [13] If the power to add party derives from the provisions of the Children and Family Services Act, cannot read them as conferring any power to do so on judge of the Court of Appeal. In general, the powers of the Family Court and the Family Division of the Supreme Court are exercised by judge thereof. However, as noted, generally the powers of the Court of Appeal are exercised by panel of at least three judges. In my opinion, if s. 36 confers the authority to make the order asked for by R.B., the authority is conferred on the Court, not on Chambers judge. [14] R.B. argues by analogy from the jurisdiction of Chambers judge to permit intervention on appeal. In my view, however, the jurisdiction of Chambers judge of this Court depends on an express or implied grant of power in rule or enactment and not on analogy. Moreover, the authority of judge to permit intervention was controversial before the amendment of the Rules to expressly permit it, and the amendment did not extend to empowering judge to add party for the purposes of appealing: see Conrad v. Snair (1995), 1995 CanLII 8960 (NS CA), 142 N.S.R. (2d) 224; N.S.J. No. 622 (Q.L.)(N.S.C.A. Chambers); 1874000 Nova Scotia Ltd. v. Adams (1996), 1996 CanLII 5243 (NS CA), 156 N.S.R. (2d) 208; N.S.J. No. 456 (Q.L.)(N.S.C.A. Chambers); Labourers’ International Union Local 1115 v. Dexter Construction Co. (1999), 1999 NSCA 132 (CanLII), 180 N.S.R. (2d) 129; N.S.J. No. 370 (Q.L.)(N.S.C.A. Chambers); Rule 62.35. [15] conclude that do not have jurisdiction to add R.B. as party for the purposes of appealing the permanent care order. IV. Discretion: [16] If Chambers judge had jurisdiction to make the order sought by R.B., that authority would be discretionary one. For number of practical reasons, would be very reluctant to exercise the discretion given that there appears to me to be more appropriate route for R.B. to seek redress initially in this situation. [17] It seems likely that R.B. may be able to seek party status for the purposes of seeking leave to apply in the Family Division for an order terminating the permanent care order: see Children’s Aid Society of Shelburne County v. I.C. (2001), 2001 NSCA 108 (CanLII), 196 N.S.R. (2d) 70; N.S.J. No 260; 2001 NSCA 108. If this is so, that approach would be immensely preferable to adding party for the purposes of an appeal. [18] The Family Division not only has intimate knowledge of the permanent care proceedings, but is better equipped to deal with the evidentiary matters which are likely to arise in the course of R.B.’s attempts to place her position before the Court. The Family Division would also be in the position to deal with the permanent care order on its merits whereas this Court, if persuaded that R.B’s plan for the child should have been heard and considered, would most likely find it necessary to remit the matter to the Family Division for evaluation of her plan for the child. This would add to delay which the Children and Family Services Act tries to avoid. [19] While there might be particular circumstances in which judge of this Court, if he or she had jurisdiction, would make the order sought, there is nothing in the material filed that would persuade me to do so in this case. [20] should add that it is apparent from the material filed that there are number of issues of fact surrounding R.B’s involvement with the child and the proceedings as well as the Society’s communications with her. Nothing which have said in these reasons should be taken as deciding any of these factual issues. V. Disposition: [21] In the result, the application is dismissed. Cromwell, J.A.","The applicant grandparent applied to the Court of Appeal to be made a party to the proceeding so that she could appeal a permanent care order made in respect of her granddaughter. Application dismissed; a judge of the Court of Appeal in Chambers does not have the authority to make the order requested; in any event, an application in the Family Division for leave to terminate the permanent care order would be a more appropriate way for the applicant to proceed.",5_2002nsca108.txt
139,"C.J.Q.B. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 99 Date: 20040623 Between: Docket: 948 Vanguard Inc. Prospective Appellant and Royal Bank of Canada, Fonds de Solidarite des Travailleurs du Quebec (F.T.Q. and Steven Leakos Prospective Respondents and Peak Manufacturing Inc., Peak Manufacturing (USA) Inc., Bonair Leisure Products Ltd., Oh!Zone RV Inc., 3911331 Canada Inc., Roynat Inc., Banque Larentienne du Canada, GE Commercial Distribution Finance Canada Inc., GE Commercial Distribution Finance Corporation, Transamerica Commercial Finance Corporation, Canada, Bombardier Capital Ltd., Bombardier Capital Inc., Textron Financial Corporation, Key Bank, Ford Credit Canada Limited, Ford Motor Company of Canada, Limited, Nicholson Leasing (1994) Ltd., Fleetwood Credit Corp., doing business as Banc of America RV Finance, Inc., California corporation, Banc of America Specialty Finance, Inc., North Carolina corporation, Bank of America N.A., national banking association, Bank of America, Canada Specialty Group Ltd., an Ontario corporation, The Bank of Nova Scotia, Great American Assurance Company, VHL Management Inc., Chelsea Management Inc., Chartwell Management Inc., 826681 Alberta Inc., 836685 Alberta Inc., La Ville de Thetford Mines, Nexus Holdings Inc., Chaseheld Equity Ltd. and RBT Real Estate Partnership Non-Parties Before: Sherstobitoff J.A. Counsel: Grant M. Currie for the Prospective Appellant Jeffrey M. Lee for George Wilson et al. Gordon Berscheid for Justice Canada Michael W. Milani, Q.C. for Royal Bank Application: From: Q.B. 1578/03, J.C. of Saskatoon Heard: June 23, 2004 Disposition: Dismissed Written Reasons: By: The Honourable Mr. Justice Sherstobitoff SHERSTOBITOFF J.A. (orally) [1] This is an application for an order extending the time to apply for leave to appeal and for leave to appeal. Sections 13 and 14 of the Companies Creditors Arrangement Act, R.S.C. 1985, c. C-36, govern the proposed appeal. Subsection (2) of section 14 of the Act says that “. no appeal shall be entertained unless, within twenty-one days of the order or decision being appealed, or within such further time as the court appealed from, allows, the appellant has taken proceedings therein to perfect his or her appeal.” The applicant took no steps to appeal within the twenty-one day period due to an inadvertence of its lawyer. [2] Although the applicant cannot bring itself within s. 14(2), it argues that this court nevertheless has the power to extend the time either under s. 13 of the Companies Creditors Arrangement Act which empowers the appeal court to grant leave to appeal “on such terms as to security and in other respects as the judge or court so directs” or under s. 9(6) of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1, which empowers judge, on leave to appeal application, to extend an appeal period. [3] Similar arguments were considered and rejected in Gaz Metropolitain Inc. v. Wynden Canada Inc. (1982), 45 C.B.R. (N.S.) 11 (Que. C.A.); Re Cage Logistics Inc. (2003), 2003 ABCA 36 (CanLII), Alta. L.R. (4th) 65 (Alta. C.A.); and Korte v. Deloitte Haskins and Sells (1996), 178 A.R. 209, on the ground that the plain ordinary meaning of the words of s. 14(2) is that only the court appealed from has power to extend the time within which leave must be sought. accept and adopt the reasoning in these judgments. [4] As to the possible application of s. 9(6) of The Court of Appeal Act, 2000, it should be noted that subsection (7) of s. says that where provision of the section conflicts with the provision of an enactment governing an appeal, the provision of the enactment prevails. Accordingly, 14(2) of the Companies Creditors Arrangement Act prevails over s. 9(6) of The Court of Appeal Act, 2000. [5] Both the application for extension of time and the application for leave to appeal are dismissed with costs in the usual way.","This was an application for an order extending the time to apply for leave to appeal and for leave to appeal. Sections 13 and 14 of the Companies' Creditors Arrangement Act govern the appeal. The applicant took no steps to appeal within the 21 day period due to an inadvertence of its lawyer. HELD: The appeal was dismissed. The plain and ordinary meaning of the words of s. 14(2) of the Act is that only the court appealed from has power to extend the time within which leave must be sought. Section 14(2) of the Act prevails over s. 9(6) of The Court of Appeal Act, 2000.",8_2004skca99.txt
140,"J. Q.B. A.D. 1995 No. 211 J.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: COACHLIGHT RESOURCES LTD. and DUCE OIL LTD. DEFENDANT Thomas Schuck and Lora Bansley for Plaintiff Cameron Muir for Defendant JUDGMENT PRITCHARD, J. March 12, 1999 [1] The plaintiff, Coachlight Resources Ltd. (""Coachlight"") and the defendant, Duce Oil Ltd. (""Duce"") are corporations engaged in the recovery of petroleum and natural gas substances. This action relates to horizontal well drilled by the parties on LSD of 33-6-9-W2 (the ""Horizontal Well"" or the ""Well""). The Horizontal Well was drilled from an existing vertical well in which Coachlight held 65% interest and Duce held 35% interest. It was drilled under an operating agreement dated May 17, 1984 (the ""Operating Agreement"") which incorporates the Canadian Association of Petroleum Landmen Operating Procedures 1981 (""CAPL 1981""). The plaintiff invoiced the defendant for its share of expenditures for the Horizontal Well but the defendant refused to pay the whole amount. In this action, the plaintiff seeks an order requiring the defendant to pay the balance of its 35% share of the $681,955.58 costs associated with the Horizontal Well plus $49,701.61 representing its 35% share of the regular lifting and production costs of all joint interest wells under the Operating Agreement, including the Horizontal Well. The plaintiff also seeks a declaration that it holds a builders\' lien against the defendant\'s interest in the Well and other joint interest assets to the extent of the debts due. The defendant denies liability for any share in the costs of the Horizontal Well in excess of $447,535.00 being 110% of the Authorization For Expenditure (""AFE"") executed with respect to the Well. The defendant also counterclaims on the basis that, among other things, the plaintiff conducted certain operations without authority, was negligent in conducting operations and overcharged or made improper charges in its accounting procedures. [2] Prior to the drilling of the Horizontal Well, the parties (or their predecessors in title) were joint-operators of vertical well on LSD of 33 and another vertical well approximately one-half mile away on LSD of 33. They agreed to attempt an enhancement of their oil recoveries from the south-half of section 33 by drilling horizontal re-entry Well from the existing vertical well at of 33. It was hoped that the Horizontal Well bore would traverse the oil producing formation lying between of 33 and of 33. Under the Operating Agreement, Coachlight would be the Operator and Duce the Joint-Operator. On August 31, 1993, Coachlight prepared an AFE for the project and submitted it to Duce for approval (the ""Original AFE""). Total drilling and completion costs as provided for in the Original AFE were estimated at $406,850.00 comprising approximately $378,400.00 for drilling costs and approximately $28,450.00 for completion costs with 65% of the total costs or $264,452.50 to be paid by Coachlight and 35% or $142,397.50 to be paid by Duce. On September 24, 1993, Mr. Dallas Duce of Duce in Estevan, Saskatchewan and Mr. Kevin Maguire of Coachlight in Calgary, Alberta had 23 minute telephone discussion during which they discussed the plans for the re-entry Horizontal Well. Despite some concerns about what Mr. Duce perceived to be high estimated costs of the Well, the Original AFE was approved by Duce the same day and returned to Coachlight by fax. [3] The application to Saskatchewan Energy and Mines for approval of the Horizontal Well was made August 26, 1993. It shows the target producing zone as the Frobisher, spud date of September 15, 1993, completion date of September 28, 1993 and an anticipated on production date of October 1, 1993. [4] On September 25, 1993 preparations for drilling operations began, including the plugging back of the vertical well and removal of the existing well equipment at of 33. Drilling of the Horizontal Well began October 1, 1993. On that date, Mr. Duce and Mr. Maguire had further telephone discussion of approximately 10 minutes. [5] The drilling contractor was Becfield Drilling Services Ltd. (""Becfield""). The initial drilling by Becfield did not go well. lost time report prepared at the conclusion of the drilling by Bob Nephew, Coachlight's on-site representative, (the ""Lost Time Report"") describes seven incidents of lost time and resulting additional costs that occurred during the period from October to October 9, many of which involved equipment failures. One of the significant delays resulted from poor core sampling procedures followed by the Becfield crew. The poor sampling was accentuated by the crew's failure to run tracer to determine accurate log times. The sub-standard procedures resulted in sample mixing and difficulties in determining the depth and zone that drilling was at. In addition, after reaching the target Frobisher zone, technical difficulties resulted in the drill bit turning upward into the Marley waterbearing formation. When drilling horizontally, it is much more difficult to drill out of porous rock and although Becfield attempted to angle back downward to the oil zone, it was unsuccessful. As the Marley formation was not the target zone, drilling operations were halted. On the recommendation of Mr. John Milford, the geologist representing Coachlight, decision was made to log to obtain more exact reading of the Horizontal Well bore. [6] The logging was completed at about midnight on October 7, 1993. In the late afternoon of October 7, Mr. Duce and Mr. Maguire had 30 minute telephone conversation at which time the proposal to plug back and kickoff new leg was discussed. Although it was clear that Mr. Duce was not happy about how drilling had proceeded so far, he did not object to the proposed second leg or request time to consider whether Duce wanted to proceed in that manner. Following this lengthy telephone discussion, the plugging back of leg one commenced at approximately 4:30 a.m. on October 8. At approximately 6:00 p.m. on October 8, Coachlight sent Duce four faxes. Three of the faxes were of the computer logs that had finally been received by Coachlight. The other was rough sketch completed by Mr. Maguire which showed that the first leg of the horizontal well was approximately 230 metres in horizontal length and that at one point it had bottomed out in the target zone of the Frobisher limestone but only for length of approximately 20 metres. The fax cover page indicated that the first leg had been plugged back to 1400 metres and that drilling on leg two was expected to commence around am on October 9. The fax cover sheet ended with the statement: ""The logs look good. We may be poorer but we're lot smarter"". At that time, approximately $287,000.00 in costs had already been incurred but Becfield had acknowledged some adjustments would be necessary due to problems created by its crew. In accordance with standard oilfield practice, Coachlight and Becfield did not stop the drilling operations to negotiate exactly what concessions would be given. That issue was left to be settled after the Well was completed. Despite the high estimated costs to date, Maguire was still hopeful that the project would stay within budget. Clearly, the success in staying on budget would depend on the extent of costs assumed by Becfield and how drilling of the second leg went. [7] Drilling on the second leg did not commence until late on October 10, largely because of problems involved in plugging back the first leg. Drilling of the second leg was initially uneventful with the target zone being quickly located. Unfortunately, however, as the Becfield crew flattened out the drill bit to move horizontally, they drilled out of the oil producing formation. Attempts to turn downward were unsuccessful and upon pulling out of the hole they discovered that the steering tools had vibrated loose. The tools were repaired and after another attempt they were successful in turning downwards and were able to again pick up the Frobisher formation. As bad luck would have it, the Frobisher kept dropping structurally much more than had been anticipated. They found that although they continued to drill downward, they kept chasing the formation until it finally started turning up as leg two of the Horizontal Well bore moved closer towards the vertical well at of 33. [8] On October 12, the problems being encountered on the second leg were discussed in 10 minute telephone discussion between Mr. Duce and Mr. Maguire. On the same day, Mr. Maguire faxed Duce two computer generated schematic drawings. One drawing showed the actual drilling path of leg one through the Marley and the Frobisher formations as well as the drilling to date of leg two through the same formations. As at that date, drilling on leg two had extended out horizontally from vertical of 33 approximately 325 metres so actual geology was only known for that distance. The other drawing also showed the actual drilling paths of legs one and two through the two zones and then projected outward Coachlight's expectations of the geology approximately 475 metres further along the horizontal towards the of 33 vertical well. [9] Drilling on leg two stopped on October 13, 1993. On October 14, Mr. Duce and Mr. Maguire had 29 minute telephone discussion. During this discussion Mr. Maguire explained that leg two had missed the best part of the producing formation when the steering tool failed and that he wanted to go back to that area with sidetrack. He sought Mr. Duce's approval. Mr. Duce did not object to the plan. He indicated that he did not know whether or not it would work but if Coachlight thought it would, it could give it try. During the same conversation, Mr. Maguire advised Mr. Duce that based on full estimates, the Original AFE was already overspent and that even with anticipated Becfield credits, they would probably be over budget if they proceeded with third leg or sidetrack. Although the parties discussed that they would be over budget, neither party raised the issue of whether supplemental AFE was required. Some two hours after this telephone discussion, Mr. Maguire faxed another schematic to Duce. This drawing was similar to those faxed on October 12 but showed not only completed leg one but also completed leg two which now extended horizontally approximately 475 metres out from the of 33 surface location. The drawing showed that the horizontal well bore of leg two had entered the target Frobisher formation near the beginning of the leg for length of approximately 40 metres and again at the end for approximately 85 metres. The balance of the horizontal length of leg two was in the Marley water bearing formation. The drawing also showed proposed 150 metre openhole sidetrack off of leg two to be drilled entirely within the Frobisher target zone. This sidetrack was expected to penetrate that portion of the Frobisher zone that was essentially missed due to the steering tool failure. Notice of the proposed sidetrack was faxed to Saskatchewan Energy and Mines on October 15, 1993. [10] Consent to proceed with the sidetrack was received orally from Saskatchewan Energy and Mines on October 15, 1993. Preparations had already commenced in anticipation of receiving regulatory approval and were completed shortly after the consent was received although actual drilling of the sidetrack did not commence until October 16. The sidetrack was drilled in one day without incident. On October 17, bleach was spotted in the second leg and up into the main hole and liner was set in place. Since the drilling rig was hybrid rig, it was also used for completion of the Horizontal Well. pump was put in place in the early morning of October 18 and the rig was released at 8:00 a.m. on October 19. pump jack was set up, pumping commenced, and the new Horizontal Well was placed on production. Unfortunately, after all of these efforts, it produced primarily water. [11] It soon became clear that the Well had no pressure draw down and that water was flowing in as fast as the Well was being pumped. decision had to be made as to what steps could be taken to make it producing Well. Mr. Maguire determined that work-over program was required in order to isolate the lower part of the Well bore from the water. On October 25 he had 32 minute telephone discussion with Mr. Duce regarding his proposed work-over plan which included the installation of inflatable packers. Mr. Duce did not object to the proposal nor did he suggest any alternate means of attempting to deal with the excessive water flow. As the packers were not contemplated in the original AFE, Mr. Maguire asked Mr. Duce whether he required new AFE for this expenditure. It was agreed that as they still did not have producing Horizontal Well, the charges would simply be added to the original AFE. [12] Unfortunately, problems were encountered in placing the packers. Eventually one packer was installed at cost of $42,593.81. On November 8, 1993, the Well was placed back on production. On November 16, Mr. Maguire sent two structural maps to Duce by fax: one map was dated February 11, 1993 and showed their understanding of the structure before the Well was drilled; the other was dated November 7, 1993 showing the information learned from the drilling of the Well. At the same time, schematic drawing was faxed showing the placement of the inflatable packer. The following day, Mr. Maguire and Mr. Duce had 13 minute telephone discussion. This was the first time that Coachlight was notified that Duce did not intend to immediately pay Coachlight's October 4, 1993 request for payment of $142,397.50 being Duce's 35% of the Original AFE. On December 1, 1993, Coachlight received payment of $85,000.00. On January 12, 1994 Coachlight faxed to Duce supplementary AFE dated December 31, 1993 (the ""Supplemental AFE"") setting out the cost overruns as at December 31 totalling $214,650.00. The cost overruns were comprised of $155,100.00 for drilling costs and $59,550.00 in completion costs. Coachlight's 65% share of these additional costs was $139,522.50 with Duce's being $75,127.50. Included with the Supplemental AFE was copy of the Lost Time Report prepared for the purpose of securing rebates from Becfield. [13] On March 8, 1994 Duce paid to Coachlight the further sum of $57,397.50 representing payment in full of Duce's share of the Original AFE. However, Duce continued to refuse to pay any drilling or completion costs under the Supplemental AFE. The Well was nevertheless maintained on production from November to June of 1994. It continued to produce high water cut throughout the entire period. In June of 1994 the pump failed and given the high water cuts and payment refusals from Duce no steps were immediately taken to rectify the situation. On June 20, 1994 Coachlight corresponded with Duce advising that as at May 31, 1994 Duce owed it $65,427.52. The letter also gave notice that Coachlight, as Operator, was exercising its option under Article 5, Clause 502 of CAPL 1981 to charge interest. The referenced provision of the 1981 CAPL provides: 502 OPERATOR TO PAY AND RECOVER FROM PARTIES Subject to the provisions of Clause 503, the Operator in its operations for the joint account shall initially advance and pay all costs and expenses of operations conducted for the joint account. The Operator shall charge to each Joint-Operator its proportionate share of the said costs and expenses, and each respective Joint-Operator shall pay the same to the Operator within thirty (30) days after receipt of the Operator's statement thereof. Failing payment when due, the amount unpaid may, at the Operator's option, bear interest from the day such payment is due for the account of the Operator at rate two (2%) percentage points higher than the then prevailing prime bank interest rate charged by the chartered bank in Canada used by the Operator with respect to operations hereunder, until the amount is paid. [14] On July 15, 1994, Coachlight sent Duce default notice pursuant to Article V, Clause 505(b) of the CAPL 1981 (the ""Default Notice""). Clause 505(b) of the CAPL 1981 states: 505 OPERATOR'S LIEN (b) If Joint-Operator fails to pay or advance any of the costs hereby agreed to be paid or advanced by it, and the default continues to thirty (30) days after the Operator has served notice upon the Joint-Operator specifying the default and requiring the same to be remedied, the Operator may, without limiting the Operator's other rights at law: (i) withhold from such Joint-Operator any further information and privileges with respect to operations; (ii) treat the default as an immediate and automatic assignment to the Operator of the proceeds of the sale of such Joint-Operator's share of the petroleum substances; and from and after the Operator making such election, the Operator may require the purchaser of such Joint-Operator's share of the petroleum substances to make payment therefor to the Operator while the default continues, and (iii) enforce the lien created by the default in payment by taking possession of all or any part of the interest of the defaulting Joint-Operator in the joint lands or in all or any part of the production therefrom and equipment theron; and the Operator may sell and dispose of any interest, production or equipment of which it has so taken possession either in whole or in part or in separate parcels at public auction or by private tender at time and on whatever terms it shall arrange, having first given notice to the defaulting Joint-Operator of the time and place of the sale. The proceeds of the sale shall be first applied by the Operator in payment of any costs to be paid by the defaulting Joint-Operator and not paid by it and any balance remaining shall be paid to the defaulting Joint-Operator after deducting reasonable costs of the sale. Any sale made as aforesaid shall be perpetual bar both at law and in equity against the defaulting Joint-Operator and its assigns and against all other persons claiming the property or any part or parcel thereof sold as aforesaid by, from, through or under the defaulting Joint-Operator or its assigns. [15] Under the Default Notice, Duce was given notice that it owed Coachlight $69,025.20 representing Duce's unpaid 35% of the drilling, completion and operating costs of the Well and operating costs of other joint interest wells up to June 30, 1994. Duce was required to remedy the default on or before August 18, 1994. By letter dated July 19, 1994 Coachlight offered to accept quit claim of Duce's interest in the Operating Agreement in full settlement of all amounts owing by Duce as set out in the Default Notice. However, by letter dated July 27, 1994, Duce advised Coachlight that it disputed that any funds were owing by it to Coachlight. In its letter, Duce outlined the following four reasons for its refusal to acknowledge an indebtedness: a) Duce was forced to agree to proceeding with leg two of the Well because leg one had already been cemented back before its approval had even been sought b) Duce did not give verbal or written approval to leg three; c) The cost overruns resulted from poor workmanship; d) Coachlight failed to use good oilfield practices in locating the proper placement of the inflatable packer. [16] By letter dated September 12, 1994, Coachlight gave Duce further notice that by virtue of Duce's continuing default Coachlight intended to exercise its rights as Operator pursuant to Article IV, Clause 505 of CAPL 1981. [17] In October of 1994, screw pump was installed on the Well. Although new AFE was prepared for the installation, it was never forwarded to Duce. Coachlight took the position that since it had received no response to the Default Notice, Duce was no longer entitled to information concerning the Well. The screw pump wore out in three months due to breakdown of the rubber compound. Another temporary pump was placed on the Well in February of 1995 and new screw pump and top drive assembly was installed in June of 1995. The total of all of these costs was $99,906.10. Duce was charged its proportionate share being $34,967.14. [18] By letter to Duce dated July 26, 1995 Coachlight once again demanded payment. The total amount owing as at June 30, 1995, including interest, was $160,826.32. The level of the indebtedness was continuing to rise because it included interest charges as well as outstanding operating costs of all joint interest wells and facilities covered by the Operating Agreement. At that time, the joint interest assets included three producing oil wells in addition to the Horizontal Well. Both of the parties also held interests in battery and water plant located at 13-33-6-9-W2. Although Duce held 35% working interest in the producing wells, it only held 7% interest in the battery and water plant with the remaining 93% interest being held by Coachlight. As producer, Duce therefore assumed considerably higher percentage of the battery costs and these costs rose significantly with the extremely high water volumes from the Horizontal Well. [19] As at September 30, 1993, before operations commenced on the Horizontal Well, Duce had an outstanding balance of $3,871.88 owing to Coachlight with respect to regular lifting and production costs of their joint interest wells. By June 30, 1995 these outstanding costs had risen to $49,701.61, including any expenditures under $25,000.00 for the wells for which CAPL 1981 did not require an AFE. [20] In its July 26, 1995 demand letter, Coachlight indicated that it was still prepared to accept surrender and quit claim in full satisfaction of the amount owing but gave notice that in default of payment in full or the granting of quit claim, it would proceed with steps to recover the indebtedness. The within action was commenced October 4, 1995. The counterclaim was filed November 20, 1995. [21] Based on the foregoing facts as found by the Court, the issues to be determined between the parties are as follows: 1. Is Duce liable to Coachlight for 35% of the costs referred to in the Supplemental AFE? 2. Is Duce liable to Coachlight for 35% of the screw pump costs incurred after the Default Notice? 3. Was Coachlight negligent in conducting the drilling operations or did it otherwise breach its obligations under CAPL 1981? 4. Is Duce liable for the full operating losses of the joint interest wells, including battery costs as charged by Coachlight? 1. Costs in excess of the Original AFE [22] The plaintiff claims that the defendant is liable for 35% of all drilling and completion costs under both the Original AFE and the Supplemental AFE. These costs total $582,049.48 with Duce's share being $203,717.31. The defendant argues that its maximum liability for drilling and completion costs is 35% of 110% of the Original AFE amount or $156,637.25. On this issue, the defendant relies primarily on the third paragraph of Clause 301 of Article III of CAPL 1981. Clause 301 provides: 301 CONTROL AND MANAGEMENT OF OPERATIONS The Operator is hereby delegated the control and management of the exploration, development and operation of the joint lands for the joint account, provided it shall consult with the Joint-Operators from time to time with respect to decisions to be made for the exploration, development and operation of the joint lands, and keep the Joint-Operators informed with respect to operations planned or conducted for the joint account. Subject to Clause 304, the Operator shall be entitled to make or commit to such operating expenditures for the joint account as it shall consider necessary and prudent in order to carry on good and workmanlike operation for the joint account, provided the Operator shall not make or commit to an expenditure for the joint account for any single operation, the total estimated cost of which is in excess of twenty-five thousand ($25,000) dollars without written Authority for Expenditure from Joint-Operators, unless the expenditure is considered by Operator to be necessary by reason of an event endangering life or property. Particulars of each such event shall be reported promptly to the Joint-Operators. Notwithstanding the foregoing, if the Operator while conducting any single operation for the joint account, which operation is covered by written Authority for Expenditure, incurs or expects to incur expenditures for the joint account in excess of the total amount authorized in writing by the Joint-Operators for that operation plus ten (10%) percent thereof, the Operator shall forthwith so advise the Joint-Operators and submit for their approval written supplementary authority for such excess expenditures. [23] Duce's primary position is that since legs two and three were not contemplated under the Original AFE, it is not responsible for any of these costs. In support of this position it relies on Passburg Petroleums San Antonio Explorations Ltd. and D.W. Axford Associates Ltd. 1987 CanLII 3238 (AB QB), [1988] W.W.R. 645, (1987), 57 Alta. L.R. (2d) 57 where the Court held that an operator could not recover the costs of directionally drilled well from the joint-operators where the signed AFE made no direct or indirect reference to the fact that the well would be anything other than standard vertical well. In Passburg, the Court found that the joint-operators had not agreed to directionally drilled well and that as the signed AFE did not refer to directional well, it could not be relied on by the operator as authority to incur costs for such well. [24] This case is clearly distinguishable from Passburg. Here, there is no question but that the Original AFE specified and that both parties agreed that the Well was to be horizontal well. By the Original AFE, the parties also agreed that the target producing zone was the Frobisher limestone. The evidence is undisputed that leg one did not result in the type of well described in the Original AFE. The horizontal length of leg one is approximately 230 metres. Not only were just approximately 20 metres of its horizontal length within the target zone, but the end of the well bore and the majority of its horizontal length were within the water bearing Marley formation. The Court therefore agrees with Coachlight's position that leg one did not satisfy the Original AFE and that producing well like leg one was never contemplated by the Original AFE. The Court also finds that at the material time, Duce never suggested that the parties pause to consider stopping at leg one. [25] At trial, the defendant contended that the Marley formation could have been commercially produced and that by plugging back leg one as it did, the plaintiff destroyed perfectly good well capable of producing no less than 100 barrels of oil per day. The plaintiff disagreed. It contended that the Marley is known water bearing formation and that leg one was incapable of commercial production. Of course, the expert evidence of both parties is purely theoretical since leg one has been cemented in and neither contention can now be proven or disproven. However, from the Court's perspective, it is not necessary to decide the issue as the Court is satisfied that Duce approved of and consented to the plugging back of leg one and the drilling of leg two. [26] Duce went to considerable efforts to convince the Court that it was deprived of valuable asset through the plaintiff's unauthorized actions of plugging back leg one. The defendant's entire argument on this issue was predicated on its position that it did not voluntarily agree to proceed with leg two but was forced to do so because leg one had already been plugged back before it was consulted by Coachlight. As indicated, the Court does not accept Duce's position in this regard. The evidence establishes that Mr. Duce and Mr. Maguire had 30 minute telephone discussion on October and that the plugging back of leg one did not commence until approximately 4:30 a.m. on October 8. Although the schematic drawings were not faxed to Duce until after the plugging back, the Court accepts Mr. Maguire's evidence that the plan for leg two was discussed and agreed to during the one half-hour telephone discussion on the afternoon of October 7. The Court not only accepts Mr. Maguire's evidence on this issue but also finds that at the relevant time of October to October 8, Mr. Duce had not yet expressed, and perhaps had not yet even formed, the opinion that the Marley formation in which leg one was primarily drilled was capable of producing or that leg one should have immediately been placed on production. The Court is inexorably moved to this conclusion as the undisputed evidence is that the possibility of producing the Marley was never raised with Mr. Maguire during the October telephone discussion or in any subsequent telephone discussions throughout the period of drilling and completion of the Well. The possible lost opportunity to produce leg one was likewise not referred to in Duce's letter of July 27, 1994 in which, nearly one year later, Duce summarized its reasons for refusing to pay its share of the Supplemental AFE. [27] The Court also finds that Duce agreed to the drilling of leg three and to the installation of the inflatable packers. Consent to leg three and resulting increased costs was given during the 29 minute telephone discussion of October 14. Shortly after that conversation, Coachlight faxed to Duce schematic drawing of the sidetrack that they had discussed. Mr. Duce testified that after receipt of the faxed drawing he spent the evening of October 14 until 3:00 a.m. in the morning of the 15th reviewing his well file. At that time, Mr. Duce erroneously thought that Coachlight was drilling the sidetrack in northerly direction. He also erroneously thought that drilling of the sidetrack had commenced before his telephone discussion with Mr. Maguire on the 14th. He testified that if he had known on the morning of the 15th that drilling had not yet recommenced, he would have called Coachlight and argued against proceeding with the sidetrack, particularly if it was not being drilled to the north. Mr. Duce further testified that in such circumstances, he also would have told Mr. Maguire that it was wet where he intended to drill the sidetrack. Mr. Duce's misunderstanding about the commencement of drilling of the sidetrack arose from discussion he overheard on October 14 at the Estevan office of the Department of Energy and Mines. When he spoke to Mr. Maguire later on the same day he deliberately chose to omit telling Mr. Maguire that he had heard that drilling on the sidetrack had already commenced. Unfortunately, Mr. Duce's lack of candidness deprived Mr. Maguire of the opportunity to correct this error. Mr. Maguire did not know that Mr. Duce was operating under the misapprehension that Coachlight was not sincerely seeking Duce's input and consent to the proposed sidetrack or that Mr. Duce felt that he had no choice in the matter because Coachlight was just going to go ahead in any event. Mr. Maguire had no way of knowing that Duce thought the sidetrack was already in progress. As far as he knew, Duce was freely and willingly agreeing to the leg three sidetrack with full knowledge that by proceeding in that manner, the parties would be exceeding the Original AFE. [28] The Court finds that consent to the installation of the inflatable packers was given during the 32 minute telephone discussion of October 25. Not only does the Court accept Mr. Maguire's evidence on this issue, it also notes that in its letter of July 27, 1994 Duce only complained that the packer was improperly placed and makes no complaint that it was an unauthorized expenditure. Based on the October 25 discussion, Duce expected two packers to be installed but given the difficulties in installation, Coachlight terminated efforts after only one had been installed. The Court also finds that during the same telephone discussion, Duce specifically authorized the cost of the packers to be added to the Original AFE. Therefore, the Court finds that Duce is responsible for its 35% share of the cost of the installed packer notwithstanding that packers were not contemplated in the Original AFE. [29] Although the Court has found that Duce consented to the drilling of legs two and three, it also finds that there was no specific discussion between the parties regarding Supplemental AFE for such costs. Duce contends that it can only be liable for costs in excess of 110% of the Original AFE if it signs its approval to the Supplementary AFE. It has refused to do this. Coachlight has never disputed its obligation to issue the Supplemental AFE but argues that Duce's signature to the document is not required because its consent was given when the excess costs were being incurred at each stage of the drilling and completion of the Well. [30] In support of its position, Duce relies on Morrison Petroleums Ltd. Phoenix Canada Oil Co. et al (1997), 198 A.R. 81. In Morrison, the signed AFE, issued pursuant to CAPL 1981, estimated drilling costs at $1.1 million while actual costs were $3.2 million. The operator knew prior to spudding that there would be cost overruns but it failed to advise its joint-operators. The joint-operators refused to pay the excess amount because their approval had not been obtained before the additional costs were incurred. In the circumstances, and in reliance on Clause 301 of CAPL 1981, the Court limited the operator's recovery to 110% of the original AFE amount. In so doing, the Court held that an operator under CAPL 1981 is required to obtain authorization from the joint-operators prior to incurring expenditures in excess of the AFE and is also required to issue an AFE for the excess expenditures. [31] This Court entirely agrees entirely with the interpretation of Clause 301 of CAPL 1981 as found in Morrison. However, the facts in this case are significantly different from those in Morrison. Here, the Operator did not have prior knowledge that the Well was going to be overexpended. This is also not case where the operator casually advised the joint-operators of its intention to issue supplemental AFE after the cost overruns had already been incurred with an attempt thereafter to treat their silence as tacit approval of the excess expenditures. Here, the Operator consulted with its Joint-Operator on each and every occasion that significant decision had to be made that could result in cost overruns. And here, the consultations all occurred before the excess expenditures were made. Given the credits that still had to be negotiated with Becfield, it was impossible for Coachlight to precisely know at what point the Original AFE was or would be overspent, but it complied, as best it could in the circumstances, with its Operator's responsibility to advise its Joint-Operator when to expect that they would be incurring overexpenditures. [32] Although Coachlight did not submit the Supplemental AFE to Duce until December 31, 1993, the Court in Morrison found that an operator's obligation under Clause 301 to advise of cost overruns and its obligation to issue supplementary AFE need not be satisfied simultaneously. In paragraphs 52 and 52 of Morrison, the Court states: [52] Clause 301 of CAPL 1981, in its third paragraph, requires that an operator ""forthwith"" submit to its joint operators for their approval Supplementary AFE for cost overruns in excess of 10%. Counsel for the defendants contend that the language of the third said paragraph is mandatory and not merely permissive and that Morrison had an obligation to advise the defendants as soon as it expected such cost overruns and also to submit to the defendants Supplementary AFE. The Oxford English Dictionary defines ""forthwith"" as ""immediately, at once, without delay or interval."" The definition of this word has been expanded by the courts to include ""as soon as practicable"", ""as soon as possible in the circumstances"", ""without unreasonable delay"" and ""as soon as reasonably can be"". See: R. v. Seo (1986), 1986 CanLII 109 (ON CA), 13 O.A.C. 359; 54 O.R.(2d) 293 (C.A.), at pp. 317-318; R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 39 C.C.C.(2d) 311 (Ont. C.A.), at p. 322; R. v. Parrot (1980), 1979 CanLII 1658 (ON CA), 27 O.R.(2d) 333 (C.A.), at pp. 339-340; Chuman v. Canada (1983), Admin. L.R. 1(F.C.T.D.), at pp. 6-7. [53] Counsel for the plaintiff argues that the amount of the cost overrun could not be determined until the drilling operation was finalized and that therefore the Supplemental AFE need not be issued sooner. However, it seems to me that inclusion of the word ""expects"" in paragraph three of Clause 301 contemplates, firstly, advice being given to the joint venture partners in situation where the operator has come to realization that there will be cost overruns, and secondly, the issuance of Supplemental AFE as soon as practicable. Clearly the two events need not be coincidental in point of time. [33] Installation of the packer was completed by early November, 1993 and the Supplemental AFE was issued on December 31, 1993. In the circumstances of this case, it might be said that the Supplemental AFE was actually issued prematurely because by December 31, Coachlight had not completed its negotiations for credits from Becfield. Although the original Becfield billing was just under $18,000.00 less than its actual time in the field, further credits on the account were successfully secured by Coachlight but not until some months after December, 1993. The Court is therefore satisfied that the Supplemental AFE was issued as soon as practicable. [34] Based on all of the foregoing, the Court finds that Duce had an obligation to approve the Supplemental AFE once it was submitted by Coachlight or at least to approve it subject to what further credits Coachlight could obtain through negotiations or otherwise, with Becfield. The Court has already found that Duce approved all of the work covered by the Supplemental AFE before the expenditures for the work had been incurred. Thus, although CAPL 1981 requires an operator to issue supplemental AFE for joint-operator approval, if the joint-operators have pre-approved the extra work with knowledge that it would or might result in cost overruns, they are clearly contractually obliged to approve the supplementary AFE unless it contains other expenditures for work that was not authorized by them. joint-operator who has approved of expenditures during the operations that will result in or likely result in the original AFE being exceeded cannot thereafter refuse to approve the supplemental AFE for such costs in an attempt to shield itself from such expenses. The Court therefore finds that Duce is responsible for 35% of all costs incurred under the Original AFE as well as 35% of all costs incurred under the Supplemental AFE. 2. liability for the screw pump costs [35] The screw pump was installed after the August 18, 1994 time limit given to Duce to respond to the Default Notice had expired. Under Clause 505(b)(i) of CAPL 1981, an operator is entitled under such circumstances to withhold from the defaulting joint-operator any further information and privileges with respect to the operations. The Court is therefore satisfied that Coachlight was entitled to install the screw pump without consulting with its defaulting Joint-Operator who was also not entitled to approve the AFE for the screw pump operation. Duce is therefore liable for 35% of the screw pump costs. 3. Operator's negligence and breach of CAPL 1981 obligations [36] The defendant alleges that contrary to Clause 304 of CAPL 1981 Coachlight failed to carry on operations relating to the Horizontal Well in diligent and good and workmanlike manner in accordance with good oilfield practice and in accordance with the regulations. Although Mr. Duce testified that Coachlight failed to obtain the approval of Saskatchewan Energy and Mines for legs two and three, the Court is satisfied that all necessary regulatory approvals were properly acquired. [37] Coachlight conceded that the drilling contractor that it hired on behalf of the parties encountered number of problems during the drilling of the Well. It was because of these problems that Coachlight had its on-site supervisor prepare the Lost Time Report. Becfield acknowledged its contributions to the problems as set forth in the Lost Time Report by granting substantial reductions in its billings. Based on time in the field, Becfield's bill would have been approximately $160,000. In the end, after all credits, its final bill was $81,148. Duce led no evidence to suggest that Becfield's final bill was still too high or that for the most part, the equipment failures that Becfield experienced were due to negligence or defective tools as opposed to simple bad luck. On the evidence, the Court has no basis to conclude that Duce suffered any losses as result of the drilling contractor selected by Coachlight. [38] Duce also contends that Coachlight was negligent by continuing to drill after it discovered the unexpected geological low in leg one. The sketch prepared by Mr. Maguire on October shows that, based on the information learned from the drilling of leg one, the bottom of the Marley formation dipped 1.97 degrees in space of only 119.8 metres. Mr. Maguire testified that he had expected the Marley to dip but not to that extent. The sketch also showed that at the lowest point in leg one, the Marley was lower than it was at the of 33 vertical well bore but not as low as at the of 33 vertical well bore. Mr. Maguire testified that he was therefore hopeful that the Marley would flatten out as they continued drilling horizontally towards the of 33 well. Of course, at that time, he did not have the benefit of the two other horizontal well bores. Given the information available at the time, the Court is far from satisfied that the decision to continue drilling towards the of 33 vertical well was an imprudent, reckless or negligent one. [39] Duce further contends that Coachlight failed to forthwith provide it with daily drilling reports as required under Clause 702 of CAPL 1981. The Court agrees but finds that no losses can be attributed to this omission. Mr. Maguire testified that if daily drilling reports were not faxed to Duce, as had become the standard practice in the industry, it was because Mr. Duce indicated he did not want to be inundated with paper. Mr. Maguire testified, and the Court accepts, that during every significant telephone discussion that he had with Mr. Duce in which major decision had to be made, he specifically asked Mr. Duce if he had all the information that he needed. If Mr. Duce had wanted the daily drilling reports, they would have been faxed to him. 4. joint interest operating losses [40] Coachlight claims operating losses up to June 30, 1995 owed by Duce Oil in the amount of $49,701.61. These expenses relate to the Horizontal Well and to all other joint interest wells drilled under the Operating Agreement. Each of the partners also holds an interest in the battery and water plant located at 13 of 33-6-9-W2. Coachlight is the Operator of the battery. [41] Coachlight and Duce, in their capacity as owners of the battery, have been charging battery costs to Coachlight and Duce, as working interest owners, based on total emulsions from the Horizontal Well and their joint interest vertical wells located at 11 of 32-6-9-W2, of 33-6-9-W2, and 13 of 33-6-9-W2. Because Duce holds 35% interest in the four producing wells but only 7% interest in the battery, in the end, it bears significantly higher proportion of the costs of dealing with the high water volumes from the wells, and in particular, from the extremely high water volumes from the Horizontal Well. Given Coachlight's 93% interest in the battery site, it can continue to produce the Horizontal Well at loss in its capacity as working interest owner since that loss is more than off-set by the profit it realizes on its interest in the battery. Of course, significant portion of the battery profit that Coachlight earns is at the expense of Duce who is responsible for 35% of the battery's income but receives only 7% of its profits. Duce raises two concerns regarding these battery costs. Firstly, it argues that the battery owners are only entitled to charge fees based on oil volumes rather than on total emulsion volumes. In the alternative, it argues that Coachlight is in breach of its fiduciary duty to Duce by continuing to produce the Horizontal Well and charging Duce its share of the water costs to the ultimate benefit of Coachlight. [42] As to the first issue, neither party could produce an agreement that details an agreed to method of charging for the use of battery facilities. Mr. Maguire testified that the battery charges were set by Duce's and Coachlight's predecessors and that other than for few months in 1993 and 1994, the battery charges for the last ten years have always been based on total emulsions. The change to charging based only on oil volumes was made shortly after Coachlight acquired its interest in the battery and was done as temporary measure until ownership of the battery could be realigned to be similar to ownership of the working interests in the wells using the facility. To effect this realignment and thereby increase Duce's ownership in the battery, Duce had to pay corresponding share of the value of the increased interest in the battery being acquired. When it became clear that no agreement could be reached on the value of the battery and that the ownership interests would not change, Coachlight reverted to the longstanding method of billing. [43] As there is no evidence that the method of calculating battery charges that was in effect over the preceding 10 years was not in accordance with the arrangement between Duce's and Coachlight's predecessors in title, the Court is not prepared to interfere with that method of billing. [44] As to the second issue, Duce argues that the Horizontal Well is not commercially economic Well. It contends that Coachlight continues to produce the Well solely for the battery revenues that it generates to Coachlight's benefit as Operator but to the financial determent of its Joint-Operator. Coachlight counters that it must continue to produce the Well or the parties will risk losing the petroleum and natural gas lease of the lands upon which the Well is drilled. Mr. Maguire testified that Coachlight believes that there is more value in the SW-33-6-9-W2. He provided the Court with two possible scenarios for future recovery under the lease but indicated that neither of these options could be pursued while the parties were engaged in dispute over the Horizontal Well. [45] By continuing to produce the Horizontal Well, Coachlight is preserving the underlying lease for the benefit of both parties. For the time being, the Court accepts Coachlight's position that the Well must be produced to protect further value in the underlying lease. Once the parties have complied with the terms of this Judgment they will be in position to determine their future plans for these lands. If, at some time in the future, no steps have been taken to exploit this further value in the lease, Duce is at liberty to ask the Court to consider whether, at that time, Coachlight is in breach of its fiduciary relationship to Duce by continuing to produce the Horizontal Well in circumstances that earn it significant profit at the battery site at the expense of Duce. [46] After June 30, 1995, Coachlight voluntarily gave up charging any fees at the battery site because, in Mr. Maguire's words, ""it was too expensive to determine how much Duce Oil wasn't going to pay that month"". The Court has determined that it would be inequitable to permit Coachlight to now charge Duce Oil for amounts that Coachlight had in effect abandoned for each month that it failed to render monthly bill to Duce. Accordingly, Coachlight shall be prohibited from hereafter charging Duce for unbilled battery fees for the period June 30, 1995 to and including March 31, 1999. CONCLUSION [47] The defendant attempted throughout the trial to establish that the plaintiff was a highhanded, arrogant Operator who simply forgot that it had a minority partner. The totality of the evidence simply does not bear this out. The Court finds that Duce is liable to Coachlight for: 1. The sum of $96,286.95 representing 35% of the unpaid costs of the Original AFE, the Supplemental AFE and the costs of the screw pump. 2. The sum of $49,701.61 representing regular lifting and production costs for the Horizontal Well and the other joint interest wells plus any expenditures on such wells under $25,000 which did not require an AFE. [48] On June 20, 1994 Coachlight gave Duce written notice that it was exercising its option under Clause 502 of CAPL 1981 to charge interest. In its letter of January 10, 1994, Coachlight had indicated that it would charge Duce interest if its late payments resulted in the parties' suppliers charging them interest. The Court therefore finds that Coachlight is only entitled to the CAPL 1981 interest from its notice of June 20, 1994. Based on the interest calculation provided by Coachlight, Duce is liable for interest of $10,424.65 for the period June 30, 1994 to June 30, 1995. Duce is also liable for interest on the sum of $145,988.56 at the Canadian Western Bank's prime rate plus 2% from June 30, 1995 to March 12, 1999. [49] In default of payment of the amounts provided for hereunder within 90 days of the date of Judgment the plaintiff shall be entitled to a builders\' lien on the entire estate or interest of the defendant in the following lands:All petroleum, natural gas and other hydrocarbons except coal and valuable stone within, upon or under:Firstly: Section 33Township 6Range 9West of the Second MeridianSecondly: Legal Subdivision 11 & 12 ofSection 32Township 6Range 9West of the Second Meridiantogether with all estates or interests of the defendant in the petroleum and natural gas when recovered from the said lands and the proceeds therefrom and the interest of the defendant in the fixtures, machinery, tools, appliances and other property in or on any oil or gas well on the said lands or the surface thereof and the appurtenances thereto. [50] The plaintiff shall be entitled to its taxable costs. PRITCHARD, J. DATE: March 12, 1999 CENTRE: Yorkton INITIALS: pw","Coachlight sought an order requiring the defendant to pay the balance of its 35% share of $681,955.58 as costs for drilling a petroleum/natural gas well plus $49,701.61 representing its 35% share of the lifting and production costs under the Operating Agreement. The plaintiff also sought a declaration that it holds builders' liens against the defendant's interest in the Well and other joint interest assets to the extent of the debts due. Duce Oil denies liability for any costs of the horizontal well in excess of $447,535 being 110% of the authorization for expenditure executed with respect to the Well. The defendant counterclaimed on the basis the plaintiff conducted certain operations without authority, was negligent in conducting operations and overcharged or made improper charges in its accounting procedures. HELD: 1)Duce was liable for $96,286.95 representing 35% of the unpaid costs of the original and supplemental authorization for expenditures (AFE) and the costs of the screw pump. 2)Duce was responsible for $49,701.61 representing regular lifting and production costs and other joint interest wells plus expenditures under $25,000 which did not require an AFE. 3)Coachlight was only entitled to interest from the time of its written notice on June 20/94 that it was exercising its option under the CAPL 1981 to charge interest. 4)In default of payment within 90 days of Judgment the plaintiff would be entitled to a builders' lien in the entire estate or interest of the defendant in all petroleum, natural gas and other hydrocarbons except coal and valuable stone, upon or under the lands as specified together with all proceeds from the defendant's interests in petroleum and natural gas and its interest in fixtures, machinery, tools, appliances and other property in any of the defendant's oil or gas wells on those lands. 5)The totality of the evidence did not support the portrayal by the defendant of the plaintiff as a high handed, arrogant operator who simply forgot it had a minority partner.  6)The plaintiff was entitled to its taxable costs.",5_1999canlii12516.txt
141,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 077 Date: September 12, 2017 Information: 90130120 Location: Rosetown Between: Her Majesty the Queen and Brayden Lee Weese Appearing: Robin Ritter For the Crown Ron Piche For the Accused JUDGMENT M.M. BANIAK, [1] The accused, Brayden Lee Weese, was charged as follows: 1) while his ability to operate motor vehicle was impaired by alcohol did operate motor vehicle, contrary to s. 255(1) and s. 253(1)(a) of the Criminal Code; and 2) having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate motor vehicle, contrary to s. 255(1) and s. 253(1)(b) of the Criminal Code. [2] The Crown’s first witness was Constable Blair De Bruin, an eight year member with the RCMP stationed in Rosetown. [3] On December 18, 2016, he was doing traffic enforcement on highway #31 near Herschel, Saskatchewan, village some thirty kilometres from Rosetown. Around 00:47 hours he noticed vehicle travelling on the main road towards them. When the oncoming vehicle was about 100 150 metres from the police vehicle it veered off the main road and down what Constable De Bruin called “goat trail”. This action triggered response from the police officer: “I stopped the vehicle because it went down the trail.” He also testified that he stopped the vehicle for the purpose of checking for driver’s licence, registration and sobriety. [4] Once he pulled the vehicle over, he noticed an open case of beer in the backseat. The accused, who was the driver, had blood shot eyes. His speech was slurred. He advised Constable De Bruin that he drank three beer. [5] At this point, Constable De Bruin testified “I formed the grounds to suspect that he had alcohol in his body he said his last drink was about five minutes before stopped him. had to wait fifteen minutes before could take sample into the ASD.” [6] The relevant time frame is: formulated grounds at 00:51 hours; ASD demand at 00:56 hours; ASD test administered at 01:06; accused place under arrest at 01:07 hours; breath test 01:08 hours; and right to counsel 01:09 hours. [7] The accused indicated that he understood his right to counsel, but that he did not wish to call lawyer. [8] Constable De Bruin departed the village of Herschel at 1:13 a.m. and arrived at the Rosetown detachment at 1:35 a.m. [9] Once at the detachment, the accused was asked once again if he wanted to call lawyer and he again declined to do so. [10] The area where the accused was held during the observation periods was monitored by surveillance cameras. Constable De Bruin testified that he did not see or hear the accused vomit or do anything that might have compromised or elevated the readings by mouth alcohol. He was also of the view that since both readings were 100 milligrams of alcohol in 100 millilitres of blood this was indicative of no mouth alcohol. [11] During cross-examination, Constable De Bruin acknowledged that the main reason he stopped the accused is because he went down goat trail”, but not that he was also checking for licence, registration and sobriety. He also testified that he would not give the accused his Charter rights to counsel prior to the first ASD test. [12] Constable De Bruin testified that he conducted the observation of the accused and that he did not hear any burps or belches. He also agreed with defence counsel that burp could be silent. He also acknowledged that he left the accused alone for short period of time and that he would not be able to see what happened during his absence. [13] Defence Exhibit D-2, which is video of the Rosetown Detachment hallway (the location where the accused was being observed) show that for period of time Constable De Bruin was attending to some paperwork at the counter. His back was to the accused. At one point he left the hallway location altogether and went into another room. In total, the accused was not observed for approximately two and one-half minutes. [14] During examination-in-chief, Constable De Bruin testified that the detection system on the breathalyzer instrument would indicate if there was mouth alcohol present at the time the test was being administered. [15] During cross-examination, he acknowledged that he is not sure if the detector is 100% accurate. Defence Exhibit D-3 is manual for the INTOX EC/IR 11 it is dated July 11, 2011 and that was the same manual that Constable De Bruin was familiar with: “this is the manual was trained on”. [16] Chapter of this manual deals with the observation period. Page of Chapter states in part as follows: While most breath testing instruments have methods to detect the presence of mouth alcohol in breath sample, they are not 100% effective. As such, it is important that continuous 15 minute observation period be conducted prior to the analysis of each breath sample to allow any alcohol which may be present in the mouth to dissipate [17] Immediately following this paragraph, is directive as to how proper observation period should be conducted: 1. Search the subject to ensure they do not have products containing alcohol on their person. Check the mouth of the subject and ensure it contains no foreign objects such as tobacco, gum, food or other unusual objects that may retain alcohol or present choking hazard. 2. Place the subject in the observer’s field of view and within close proximity where clues of consumption, burps or vomiting can be detected. 3. Observe the subject for at least 15 continuous minutes prior to each breath test, ensuring the subject does not drink any alcoholic beverages or other liquids, and does not place anything in their mouth, burp or vomit. 4. Restart the observation period if the subject is not maintained within close proximity and in the field of view of the observer or if the subject places anything in their mouth, burps or vomits. Position of the Parties [18] The Crown submits that the stop of the accused was proper and lawful. The police officer was checking for licence, registration and sobriety. Defence did not establish on balance of probabilities that this was not so. [19] Secondly, Crown argues that the accused was not deprived of his right to counsel during the time he was waiting to provide sample into the approved screening device as the fifteen minute wait was justified because the accused admitted to just having consumed an alcoholic beverage five minutes before being stopped. Moreover, the accused declined the opportunity to call a lawyer on two occasions after he was advised of his rights to counsel. [20] Finally, with respect to the observation period at the detachment, the Crown takes the position that it was conducted properly. The police officer never saw the accused put anything in his mouth; he never heard the accused burp or belch; and he was in close proximity to the accused. Further, both samples were 100 milligrams of alcohol in 100 millilitres of blood, and the breathalyzer instrument did not detect any mouth alcohol. [21] Defence, for its part, argues that the stop and subsequent detention of the accused was not lawful. Stopping someone “because he drove down goat trail” is not good reason, and the officer’s notes do not provide any other reasons for the stop. Defence further submits the accused’s s. 10(b) Charter rights were violated and relies on Saskatchewan (Attorney General) An[1]. [22] Thirdly, defence takes the position that the observation at the detachment was not properly conducted. The police officer had his back turned to the accused for some two and one half minutes; he actually went to another room for brief time leaving the accused unattended; and, accordingly, having regard to the Court of Queen’s Bench decision in By[2] [By], the Crown cannot rely on the presumption of accuracy in s. 258(1)(c) of the Criminal Code. Analysis 1) On the issue of whether the stop of the accused was lawful I find that it was. [23] The evidence from Constable De Bruin was that he essentially stopped the accused because he had turned off the street he was driving on to what appeared to be “goat trail”. He also testified that he wanted to check for licence, registration and sobriety. [24] Had the only evidence been that the accused was stopped because he turned off to road that resembled “goat trail”, and nothing more, defence’s position would have been stronger. Here, however, we also have evidence that Constable De Bruin wished to check for licence, registration and sobriety. [25] Section 209.1(1) of The Traffic Safety Act, SS 2004, T-18.1 [Act], authorized Constable De Bruin to stop Mr. Weese. Section 209.1(2) imposed an obligation on the driver to answer police officer’s questions with respect to the driver’s identity, address, birth date and whether the driver consumed any alcohol or drug which could affect the driver’s ability to safely operate motor vehicle. [26] Therefore, even if the “random stop” aspect of the Act violates s. of the Charter, it, nonetheless, is justified as reasonable limit pursuant to s. of the Charter.[3] [27] Orbanski[4] [Orbanski] gives police the authority to question driver about his alcohol consumption within the context of random stop authorised by the provisions of the Act. [28] On the issue of whether the accused was deprived of his s. 10(b) Charter rights while awaiting to provide sample into the approved screening device, find that he was not. [29] For while it is true that when roadside demand is made the driver is detained and as such his s. 10 Charter rights would be triggered, it does not follow that breach occurs when valid demand is made pursuant to s. 254(2) of the Criminal Code, as that is viewed as reasonable limit prescribed by law and justified under s. of the Charter.[5] [30] In Orbanski, supra, the Supreme Court held that if the demand is made forthwith, the right to counsel is suspended not only after, but before the demand. In paragraph 52 of Orbanski Charron J. states as follows: In my view, it logically follows from Thomsen that limit on the right to counsel is also prescribed during the roadside screening techniques utilized in these cases. If limit on the right to counsel is prescribed during compliance with s. 254(2) demand for sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is reasonable suspicion justifying the demand. [31] Defence relied on our Court of Queen’s Bench decision in An to support its argument that the accused’s s. 10(b) rights were violated. [32] In my view, An does not stand for the proposition that an accused’s s. 10(b) Charter rights must be implemented at roadside during the screening techniques in every instance. The facts in An are materially different from the facts in this case and are clearly distinguishable. [33] In An the police officer did not have the ASD with him and it was unclear when it would arrive. During this detention period, Mr. An used his cell phone to call his workplace. He also wanted to call his sister who was lawyer, but was not allowed to do so. In An the police officer was not in position to take the breath sample forthwith and could not know when the ASD would become available. Throughout, the police officer in An did not act with any sense of purpose or urgency. [34] This was not the case here. Constable De Bruin had the ASD with him and was ready to administer it forthwith and the reason he waited was because the accused advised him that he had just drank his last beer five minutes before the was stopped. Our Court of Queen’s Bench just recently held that it was incumbent on police officer to ask when the accused had his last drink and to delay the ASD test to ensure that 15 minutes had elapsed.[6] [35] Further, the accused in this case did not attempt to call anyone nor did he ask permission to do so. When he was advised of his rights to counsel after his arrest and demand for breath sample he declined to do so on two occasions. [36] Justice Barrington-Foote in An canvassed various decision of other courts on this issue and concluded at paragraph 45 as follows: These cases demonstrate that the question of whether the police must implement detainee’s s. 10(b) right at the roadside turns on the facts. non‑exhaustive list of the factors that courts have referred to includes the following: Did the police officer reasonably expect that the ASD would arrive before the detainee had reasonable opportunity to exercise his or her rights? Was phone readily available, and if so, did the officer know? Was it possible to provide the accused with privacy? What was the time of day? How much time actually elapsed between the time of the demand and the arrival of the ASD, the arrival of the ASD and the administration of the test? Did the detainee say he or she did not wish to call counsel at the roadside: Veikle, 2016 SKQB 173 (CanLII)? [37] Based on the above, find that the accused’s s. 10(b) Charter rights were not violated. However, even if they were, am of the view that following the Grant Analysis, the breach was of such minor nature as not to favour exclusion pursuant to s. 24(2) of the Charter. 2) Was the observation period at the detachment conducted properly? [38] The Crown takes the position that the observation was conducted properly. The police officer was in close proximity to the accused, and, further, did not hear the accused burp or belch at any time during the time he was observed. As such the Crown is entitled to the presumption of accuracy as per s. 258(1)(c) of the Criminal Code. [39] Defence relies on the By decision and submits that since the observation period was not properly conducted the Crown cannot rely on the presumption. [40] Defence Exhibit D-2, the Rosetown detachment cell block video, shows that the police officer had his back turned to the accused for approximately 2½ minutes. During that time he was attending to some paperwork on the counter and did not appear to be paying much attention to the accused. At one point he actually left the hallway where the accused was sitting to go to another room. The video had no audio component to it, and Constable De Bruin agreed during cross-examination that burp could be silent. [41] While it is true that is not necessary that the police officer look “eyeball to eyeball” at the accused for the entire duration of the observation period, it is necessary that he pay careful attention to the accused and closely observe his behaviour. Close proximity, without more, is not sufficient to constitute proper observation. [42] There is sufficient factual similarity between By and this case that it cannot be distinguished on the facts. In both cases the police officer was attending to other tasks and not focussing on the accused. In both cases the police officer was actually absent for period of time from the accused’s presence. [43] Based on the above, I find that the observation period was not conducted properly. According to By, if it is established that the observation period was not properly conducted, then that constitutes evidence that the breathalyzer test was not properly administered, for By holds that the observation period comprises part and parcel of the breath test itself. [44] Being bound by the decision in By, I find that the Crown cannot rely on the presumption of accuracy and rely on the accuracy of the readings on the Certificate of Qualified Technician. [45] Accordingly, I find the accused not guilty of count 2, over .08. The evidence does not support a finding of guilt on count #1. M.M. Baniak, [1] 2016 SKQB 378 (CanLII) [2] 2015 SKQB 86 (CanLII) [3] Ladouceur, 1990 CanLII 108 (SCC), [1990] [4] 2005 SCC 37 (CanLII) [5] Thomsen (1988), 1988 CanLII 73 (SCC), 40 CCC (3d) 411 (SCC) [6] Schlecter R, 2017 SKQB 189 (CanLII)","HELD: The accused was not guilty of either charge. Although the accused was lawfully stopped, the roadside demand was valid and the accused declined to exercise his right to counsel on two occasions following his arrest, the observation period at the detachment was not conducted properly. The officer was sometimes focused on other things. As the observation period comprised part and parcel of a breath test, the breathalyzer test was not properly administered and the Crown could not rely on the accuracy of the readings.",d_2017skpc77.txt
142,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 372 Date: 2012 09 12 Docket: Q.B.G. No. 469 of 2007 Judicial Centre: Saskatoon BETWEEN: MICHAEL JOHN KOZAK, and ERNEST HOEPPNER, Counsel: Jennifer D. Pereria for the defendant applicant W. Timothy Stodalka for the plaintiff respondent FIAT KONKIN J. September 12, 2012 [1] The applicant, Ernest Hoeppner, brings an application for relief in the alternative as follows:(a) that the plaintiff’s action be dismissed for want of prosecution; or(b) that the plaintiff be required to disclose the amount recovered from its lawsuit with Wawanesa Insurance, Q.B. No. 1074 of 2001. [2] The plaintiff, Michael Kozak, purchased insurance from the defendant, Ernest Hoeppner. On March 7, 2000, Mr. Kozak suffered a fire at his farm. On May 7, 2001, Mr. Kozak issued a statement of claim against one James Neigum, his tenant, and Wawanesa Mutual Insurance Company under Q.B. No. 1074 of 2001 in the Judicial Centre of Saskatoon. [3] On May 5, 2006, Mr. Kozak commenced an action against Mr. Hoeppner alleging that Mr. Hoeppner was in breach of contract or negligent for failing to obtain full replacement value insurance coverage for Mr. Kozak and for failing to accurately assist Mr. Kozak in filling out his proof of loss forms. statement of defence was filed by Mr. Hoeppner on April 5, 2007. Mediation took place September 11, 2010 and examinations for discovery were held on May 9, 2011. During those examinations for discovery Mr. Kozak refused to respond to the undertaking now requested in this action. Mr. Hoeppner sold his insurance services on October 1, 2010. [4] The Court of Appeal in Saskatchewan has set out the principles for determining whether or not matter should be struck for want of prosecution in the case of International Capital Corp. v. Robinson Twigg Ketilson, 2010 SKCA 48 (CanLII), 350 Sask. R. 160. The guiding principles from that case were summarized by Zarzeczny J. in Anderson v. Wascana Wood Components Ltd., 2010 SKQB 357 (CanLII), 361 Sask. R. 219, where at paras. 10 and 11, he stated: 10 At paras. 43-45, the court sets out the three step approach for dealing with an application to strike with its modification to step 3: 1. Step one an inquiry about whether the defendant has established that the delay in moving case ahead has been inordinate. 2. Step two an examination of the reasons for the delay aimed at determining whether it is excusable. 3. Step three if the delay is found to be both inordinate and excusable, determine whether it is in the interests of justice that the case proceed to trial notwithstanding the delay. 11 The third step should involve consideration of the issue of prejudice (previously the focus of step 3) as one, albeit an import, aspect of step but having regard to eight factors (para. 45). They include the following: 1) the prejudice the defendant will suffer in mounting its case if the matter goes to trial; 2) the length of the inexcusable delay; 3) the stage of the litigation; 4) the impact of the inexcusable delay on the defendant; 5) the context in which the delay occurred; 6) the reasons offered for the delay; 7) the role of counsel in causing the delay; and 8) the public interest. The Period May 2000 to June 2010 [5] The incident leading to the claim happened in May of 2000. The plaintiff issued its statement of claim against Mr. Hoeppner in May of 2006, shortly before the limitation period would have expired. That it had right to do. The statement of claim in this matter was issued on May 5, 2006 at the Judicial Centre in Regina and served sometime thereafter. The statement of defence was filed on April 11, 2007 and at that time an application was made to transfer the file from Regina to Saskatoon. Mediation took place on September 11, 2010 and examinations for discovery were held on May 9, 2011. The plaintiff argues that the delay of roughly four years from the filing of the statement of defence to the date of examination for discovery is not an inordinate as they were heavily involved in the matter dealing with the other file, the suit against Wawanesa. That, is not full answer in this matter. There is nothing to have stopped the plaintiff from conducting examinations for discovery on Mr. Hoeppner within the same time frame as it was dealing with the Wawanesa matter. Had the Wawanesa matter taken an additional three or four years to resolve through trial and appeal for instance would the plaintiff be arguing that it need not have proceeded with any action on Mr. Hoeppner’s file. The plaintiff also argues that the defendant acquiesced in this delay by not pushing the plaintiff to proceed with the matter. In her affidavit sworn July 10, 2012, Ms. Pereira sets out number of correspondences which she attempted to receive updates on this file and push to have it moved forward. cannot accept the plaintiff’s position that the defendant did nothing during that period and therefore acquiesced in the delay. I find that the delay was inordinate. This takes us to the second step in the test in which the court needs to look at the reasons for delay to determine whether or not the delay is excusable. Here the plaintiff has raised some arguments which are beneficial to its cause. The plaintiff argues that it was understood between the parties that the action against Mr. Hoeppner would only proceed depending on the outcome of the claim against Wawanesa. This is partially confirmed by the affidavit of Ms. Pereira sworn July 10, 2012. Of course it would be to the defendant’s advantage to allow matters to play out in the suit against Wawanesa in hopes that complete resolution could be had. This appears not to have been the case and after the resolution with Wawanesa matters have progressed on bit of tighter time line. Mediation was held in November of 2010, thereafter statement of documents was produced and examinations for discovery were held in May of 2011. It took plaintiff’s counsel from that time until May 29, 2012 to file its reply to undertakings. This was approximately two weeks after the application for this motion had been filed. The Period June 2010 to Application [6] Assuming for the moment that the delay from the period of June 2010 to May of 2012 could be considered inordinate and inexcusable, we would then have to look at the step (3) from the Court of Appeal decision to determine on factor‑by‑factor basis whether or not remedy of dismissing the claim would be available. Under that category we must consider factors like prejudice to the defendant. Here the defendant while having sold his business in 2010 admits that he still has the file and has reviewed it on regular basis. No issue was raised about witnesses not being available or evidence having been lost or destroyed. That factor does not favour the defendant. The length of the inexcusable delay [7] The delay here would simply be the one-year period that it took the plaintiff’s counsel to respond to the undertakings. Here, some time would be expended in determining what undertakings could be responded to and what should be resisted. While one year is an excessive period of time it is not such as to lead me to the position that this claim should be struck on that basis. Stage of litigation [8] As examinations for discovery are completed this matter is at a point where it could well go to pre-trial conference. Therefore it is not at such an early stage that it would lead the court on its own to strike. Impact of inexcusable delay on defendant [9] As the defendant is retired from active business, this delay is not causing him any professional embarrassment or damage to reputation. In addition, this is not matter that is in the public’s eye and therefore very few people would even know that it is currently in existence. The context in which the delay occurred. [10] The delay from June 2010 to May 2012 really is a delay from May 2011 until May 2012 and solely on the head of counsel for the plaintiff for not responding in a timely fashion to the undertakings. There were requests for answers to the undertakings culminating in the application. Reasons offered for delay [11] The only reason offered by counsel for the plaintiff for the delay in responding to the undertakings was a busy schedule and determination was to be made about which undertakings could be answered and which were not answerable pursuant to the Rules. This delay tips the balance towards the defendant. The role of counsel in causing the delay [12] The delay from June 2010 to May 2012 is almost entirely on the head of the counsel for the plaintiff and it is not for the court to deprive the plaintiff of his claim for actions beyond his control There is nothing to suggest that the delay in response to the undertakings was caused to any great extent by the plaintiff. [13] On the whole, in speaking to the delay from June 2010 to May 2012 even if it is inordinate and inexcusable when one considers the factors as set out by the Court of Appeal cannot find that this claim should be struck. Some of the considerations are in favour of the defendant and others are not. Clearly counsel for the plaintiff did not diligently respond to the undertakings. He is advised not to repeat such conduct. Second issue application to produce settlement amounts [14] The applicant/defendant also applies to the court for an order to force the plaintiff to disclose the settlement amounts from its settlement in the Wawanesa claim. Counsel for the plaintiff argues that the parties entered into minutes of settlement on confidential basis and that it cannot disclose those amounts without breaching that confidence. In this matter counsel for the plaintiff asserts that as the settlement documents were negotiated and meant to remain private that blanket privilege attaches to them and they are not disclosable. Counsel relies on cases such as Middelkamp v. Fraser Valley Real Estate Board (1992), 1992 CanLII 4039 (BC CA), 96 D.L.R. (4th) 227, 71 B.C.L.R. (2d) 276 (B.C.C.A.). In that case McEachern C.J. (as he then was) states in part at paras. 18 ... find myself in agreement with the House of Lords that the public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged. would classify this as “blanket”, prima facie, common law, or “class” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour. 19 In my judgment this privilege protects documents and communications created for such purposes both from production to other parties to the negotiations and to strangers, and extends as well to admissibility, and whether or not settlement is reached. This is because, as have said, party communicating proposal related to settlement, or responding to one, usually has no control over what the other side may do with such documents. Without such protection, the public interest in encouraging settlements will not be served. [15] McEachern C.J. did allow in his judgment for exceptions to this blanket privilege. This notion was discussed by the British Columbia Court of Appeal in Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA (CanLII), 249 D.L.R. (4th) 416, where the court stated at paras. 17 through 20: 17 In Middelkamp, supra, Chief Justice McEachern said there must be exceptions to the blanket privilege for settlement communications. Notably, he referred to the proper disposition of litigation (para. 20). 18 In my view Middelkamp did not close the door on what might constitute valid exception to the blanket privilege (see reviews of types of exceptions to the rule in Berry v. Cypost Corp. (2003), 2003 BCSC 1827 (CanLII), 43 C.P.C. (5th) 275, 203 BCSC 1827, and Unilever plc v. The Proctor Gamble Co., [2000] W.L.R. 2436 (C.A.)). 19 However, the test for discharging the burden to establish an exception should not be set too low. The public policy behind settlement privilege is compelling one. It is so compelling that even threats arising in the context of settlement negotiations may not justify an exception: Unilever, supra, at page 2449-2450. 20 To establish an exception in this case, the defendant must show that compelling public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. [16] In Brown v. Cape Breton (Regional Municipality), 2011 NSCA 32 (CanLII), 331 D.L.R. (4th) 307, Justice Bryson adopted the Dos Santos language with regard to exceptions to the blanket rule and went on to say at para. 63, even those cases that most strongly endorse the policy reasons for protecting settlement communications from disclosure recognize that there are exceptions. In Middlecamp, Chief Justice McEachern listed several possible exceptions (fraud, or to rebut defences of laches, want of notice, or limitation period) without explicitly endorsing them, or providing an analytical foundation for them (para. 20). In Dos Santos the court recognized an exception for double recovery but more broadly was prepared to grant an exception if party could show compelling public interest that outweighed the public interest of encouraging settlement. An exception would only be found where the disclosure was both relevant and necessary in the circumstances of the case to support another compelling or overriding interest of justice. In Dos Santos, the plaintiff put the subrogation rights of his insurer in issue. The defendant insurer had contractual right to know what recovery the plaintiff had received in earlier litigation, which affected the insurer’s obligation to pay the plaintiff. To avoid double recovery, disclosure was ordered. And at para. 74: The double recovery rule is widely acknowledged exception permitting disclosure of documents otherwise protected by settlement privilege. It could form the basis of a disclosure order in this case should the trial judge ultimately determine that the communications sought here were relevant and necessary to avoid double recovery in this case. [17] In the case at bar, look at the tests of relevance and necessity. [18] Clearly in the trying and/or settlement of the case against Mr. Hoeppner the amounts already paid are relevant. Cases such as Dos Santos and Brown v. Cape Breton speak to the notion of the court protecting against double recovery. Also in that vein, find that the settlement amounts in the Wawanesa case are necessary to protect against that notion of double recovery. [19] therefore order that the settlement amounts arrived at in the minutes of settlement be disclosed. If those settlement amounts relate to structure by structure then those amounts will individually be disclosed. SUMMARY [20] Regarding the application to strike the plaintiff’s claim for want of prosecution, I find that for the initial period of May 2006 to May 2010 the delay was inordinate but excusable. With regard to the period of time June 2010 to May 2012 I find the period of delay not to be inordinate but even if inordinate and inexcusable, I would find that having regard to the principles set down by the Court of Appeal in International Capital Corp. v. Robinson Twigg & Ketilson that I would not strike the plaintiff’s claim. [21] With regard to the disclosure of settlement amounts I find that the defendant has made its case and order those specific amounts for each structure for which Wawanesa settled its claim to be disclosed. J. D.B. KONKIN","The plaintiff purchased insurance from the defendant. In 2000, the plaintiff's farm was damaged by a fire. He commenced an action against Wawanesa Insurance Company in 2001. In 2006, the plaintiff commenced an action against the defendant, alleging that the defendant was in breach of contract or negligent for failing to obtain full replacement value insurance coverage for the plaintiff. The defendant filed his defence in April 2007. Mediation took place in September 2010 and examinations for discovery were held in May 2011. At that time, the defendant asked the plaintiff to disclose the amount recovered in the Wawanesa lawsuit and the plaintiff refused. The defendant brought this application for relief that: 1) The plaintiff's action be dismissed for want of prosecution; or 2) The plaintiff be required to disclose the amount recovered in the other lawsuit. The defendant argued that the delays between the issuance of the statement of claim to the examination for discovery and then the delay between the time of mediation to May 2012 when the plaintiff's counsel filed the reply to undertakings were both inordinate.HELD: The Court applied the test established in International Capitol Corp. v. Robinson Twigg & Ketilson to determine whether or not a matter should be struck for want of prosecution. The Court found that the first delay was inordinate but because the plaintiff and defendant both acknowledged that the action against the defendant would only proceed depending on the outcome of the claim against Wawanesa, the delay was excusable. The Court found that the second delay was excessive, but was not sufficient to strike the claim on that basis. Applying the factors provided in Capitol, the Court found:1. Stage of litigation: It did not occur at an early stage of the litigation as the matter could well go to pre-trial conference. 2. Impact of delay: The delay was not causing any problems for the defendant. 3. The context in which the delay occurred: the delay in question was actually only one year during which the plaintiff's counsel did not respond in a timely fashion to undertakings. 4. Reasons offered for delay: Counsel was busy and it had to determine which undertaking could or could not be answered. 5. The role of counsel in causing the delay: The Court held that the delay caused by the plaintiff's counsel should not be a reason to deprive the plaintiff of his claim for actions beyond his control. The Court denied the application to strike the plaintiff's claim but ordered that the plaintiff disclose the amount obtained in the Wawanesa action on the basis that this case fell into the exception to the policy which protects settlement communications. Here, the communications sought by the defendant were relevant and necessary to avoid double recovery.",c_2012skqb372.txt
143,"Q.B.G. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: AGRI RESOURCE MGT. 2001 LTD. RESPONDENT (PLAINTIFF) and SASKATCHEWAN CROP INSURANCE CORPORATION APPLICANT (DEFENDANT) J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: AGRI RESOURCE MGT. 2001 LTD. RESPONDENT (PLAINTIFF) and SASKATCHEWAN CROP INSURANCE CORPORATION APPLICANT (DEFENDANT) J.P. Ellson for Saskatchewan Crop Insurance Corporation M.W. Milani for Agri Resource Mgt. 2001 Ltd. JUDGMENT KYLE J. February 16, 1996 The applicant seeks to have the firm, RobertsonStromberg, barred from acting for the plaintiff by reason ofMs. Schirr, a member of that firm, having been active inrepresenting the defendant, a Crown corporation, during theyears prior to 1991 when the defendant changed lawyersfollowing a change of government in Saskatchewan. This action was commenced after the change of solicitors and there is no suggestion that the subject matter of the action, the contractual issues giving rise to the cause of action, were ever the subject of any consultation between the defendant and its former solicitors. In 1993 in a similar application respecting anothermember of the same firm I ruled against the plaintiff. In sodoing I was being consistent with a prior ruling involving asimilar attempt to displace the applicant\'s present solicitorsfrom certain litigation then existing following the 1982change of government. It has been argued by the plaintiff that the situation in this case is exactly the same as that previously decided because Mr. Willner, the subject of the previous application, and Ms. Schirr, the present target, were partners or associates at all material times and if ruled in favour of the plaintiff then must do so now as all knowledge of one is for these purposes attributed to the other. This point is well taken and might well provide the basis for dismissal of the plaintiff's motion. (Other arguments have been raised, however, and propose to deal with them.) Much is made bythe applicant of the confidential nature of its adjusting andinvestigation of loss claims and internal policy proceduresand litigation strategies in relation to the denial of claims. By such reference to strategy counsel seems to suggest that the company has such litigation strategy and internal policies and procedures of confidential nature that is, one which could not be deduced from the pleadings and examinations for discovery by any competent lawyer. review of the file herein suggests that no such confidential strategy exists. The only identifiable strategy (or perhaps tactic) adopted to date has been excessive delay requiring applications to force compliance with the Rules and two applications, including this one, to deprive the plaintiff of its chosen legal representation. In the earlier application decried the tendency to use applications of this sort as harassment technique. As noted in that decision, once it is determined that there is no actual knowledge of the case in question and that there could be no actual knowledge by reason of the matter in question having arisen after the change of solicitors, the onus to establish the existence of confidential information justifying the requested order shifts to the party asserting the concern. went on to say Obviously, the information itself cannot be disclosed, however, it is reasonable to insist that the nature of the information be disclosed. For example, had Mr. Willner participated in an action factually similar to the present one, such that he was privy to the corporation's strategy in dealing with the matter or its willingness to settle and if he were aware of its response to his advice, then he might well be possessed of confidential information sufficient to disqualify him in this case. No such allegation has been made. Counsel for the applicant asserts that such is the situation in this case, perhaps because of Ms. Schirr's more extensive involvement in the litigation side of the applicant's affairs. The cases referred to, however, involved simply the construction of the statute and the regulations under it, as well as the statutory form of contract, all of which are public documents. As the applicant is a public corporation itis doubtful that it has or should have secret strategies withwhich to defeat persons claiming under its insurance scheme. It is, of course, entitled to have its own preordainedpolicies in respect of disputed claims and these may well havecome to the attention of the solicitors in this case, but ifsuch policies exist they probably should be made known to thepublic for whose benefit the applicant corporation exists. As well, such policies may well have changed since 1992. Therefore, for all of the reasons expressed in myjudgment of October 15, 1993, as well as those set forthherein, the application is dismissed with costs to therespondent in any event of the cause.",The applicant sought to have the law firm barred from acting for the plaintiff because a member of that firm had been active in representing the defendant prior to 1991 when the defendant changed lawyers following a change in government. This action was commenced after the change of solicitors and there was no suggestion that the subject matter of the action was ever the subject of any consultation between the defendant and its former solicitors. The applicant raised arguments about the confidential nature of its adjusting and investigation of loss claims and internal policy procedures and litigation strategies in relation to the denial of claims. HELD: The application was dismissed with costs to the respondent in any event of the cause. 1)In 1993 in a similar application respecting another member of the same law firm the judge ruled against the plaintiff. This was consistent with a similar attempt following the 1982 change of government.  2)The only identifiable strategy (or perhaps a tactic) adopted to date has been excessive delay requiring applications to force compliance with the Rules and two applications to deprive the plaintiff of its chosen legal representation. 3)Once it is determined that there is no actual knowledge of the case in question the onus to establish the existence of confidential information shifts to the party asserting the concern. 4)As the applicant is a public corporation it is doubtful it has or should have secret strategies with which to defeat persons claiming under its insurance scheme. It is entitled to have its own preordained policies in respect of disputed claims but if such policies exist they probably should be made known to the public for whose benefit the corporation exists. Also such policies may well have changed since 1992.,4_1996canlii6648.txt
144,"Dated: 19991214 Docket: C.A. No 3243 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Vancise, and Lane JJ.A. MILDRED ROSE SCOTT and DONALD WALTER SCOTT COUNSEL: Ms. Jo-Ann Parker for the appellant Mr. James Vogel for the respondent DISPOSITION: On Appeal From: Q.B.F.L.D. 730/106 J.C. Regina Appeal Heard: December 14, 1999 Appeal Dismissed: December 14, 1999 (orally) Written reasons: December 15, 1999 Reasons By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [1] In light of the standard of appellate review (laid down in cases such as Lensen v. Lensen, 1987 CanLII 4 (SCC), [1987] 2 S.C.R. 672 and Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424), and having regard for the evidence in support of the findings of fact made by Mr. Justice Maurice, we are of the view there is no tenable basis to interfere with his judgment, both as it pertains to the inventory and valuation of the matrimonial property of the parties and to the issue of spousal support. [2] Accordingly, the appeal is dismissed, with costs to the respondent, such costs to be taxed in the usual manner.",No facts were cited. HELD: The appeal was dismissed with taxed costs to the respondent. There was no tenable basis to interfere with the judgment with respect to the inventory and valuation of matrimonial property and issue of spousal support given the standard of appellate review and the evidence in support of the findings of fact.,2_1999canlii12349.txt
145,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 429 Date: 2008 10 24 Docket: Q.B. 32 of 2008 Judicial Centre: SWIFT CURRENT BETWEEN: MENDHAM-BURSTALL CREDIT UNION and DEREK JOHN MOORE AND SHERI LYNN MOORE Counsel: Karl P. Bazin, Q.C. for the plaintiff No one appearing for the defendants FIAT GUNN J. October 24, 2008 [1] The plaintiff seeks an order confirming the order nisi for judicial sale. HISTORY OF THE PROCEEDINGS [2] The defendants entered into mortgage with the plaintiff on April 14, 2005 for land described as: Lot 4, Block 17, Plan No. 85SC07177, Extension 0, Burstall, SK. The mortgage was renewed for year period with maturity date of March 14, 2008. [3] On February 20, 2008, notice of intention to apply for an appointment to hear an application for leave to commence an action under The Land Contracts (Actions) Act, R.S.S. 1978 c. L-3, (“the Act”) was served on the Provincial Mediation Board. [4] On March 20, 2008, the plaintiff applied ex parte for an appointment for hearing of an application pursuant to the Act for leave to commence an action. This was not in compliance with s. 3(2) of the Act which prescribes that an application may be brought after the expiration of 30 clear days from the date of service on the Provincial Mediation Board. [5] The affidavit of Randy Schneider, the manager of the Mendham-Burstall Credit Union, was filed in support of the application. The form of the affidavit was not in compliance with Rule 318 and 319 of the Queen’s Bench Rules of Court. The only evidence of the value of the property at this stage is contained in paragraph 10 of the above noted affidavit, sworn on March 25, 2008 in part as follows: That the land.... is in my opinion of the value of $30,000.00 to $45,000.00 and no more. The Credit Union understands that it is listed at $70,000.00, but the Credit Union’s position is that this is overvalued, and would likely sell in the $30,000.00 to $45,000.00 range, based on the Credit Union’s knowledge of property being sold in the area. [6] An appointment for leave to commence action was granted and the hearing was set for April 21, 2008. The appointment was served on both defendants on April 3, 2008. The defendants did not appear on April 21, 2008 and leave was granted for the plaintiff to commence action. statement of claim was issued April 23, 2008 and served on the defendants on May 7, 2008. The statement of claim has not been noted for default. [7] An application was made for an order nisi for sale of the land June 16, 2008. An affidavit of default (“for order nisi for foreclosure”) was sworn by Randy Schneider on June 10, 2008. Again this was not in compliance with Rule 318 and 319. The evidence of value contained in this affidavit is set out in paragraph in part as follows: ...the land.... is in my opinion of the value of $30,000.00 to $45,000.00 and no more. This opinion is based [sic] discussions with the real estate company, Royal LePage Community Realty of Maple Creek, Saskatchewan. [8] The amount owing under the mortgage was described as being the arrears of principal of $29,994.98 and arrears of interest at $995.03 or total of $30,990.01. [9] The order nisi for sale was granted on June 16, 2008, but it incorrectly described the amount owing as being $33,120.01. [10] The following paragraphs of the order nisi for sale have relevance: ....in default of payment into Court....the mortgaged land shall be sold under the direction of the law office of MacBean Tessem, through licensed real estate broker, who shall offer the said land for sale under listing agreement on the terms and conditions hereinafter provided. ... (a) the property will be listed for sale for six months. The listing price shall be $45,000.00, provided that the listing price may, in the Plaintiff’s discretion, be reduced by $2,500.00 for each month that the mortgaged land does not sell, but the listing price shall not be reduced to less than $30,000.00; ... (g) the Plaintiff and the Defendant(s) are given leave to submit offers to purchase. [sic] in the event that the offeror is the Plaintiff, the deposit and the balance of the purchase price need not be paid into Court; [11] By motion returnable October 14, 2008, the Plaintiff seeks an order confirming the sale of the land to the plaintiff for $35,000.00. The evidence filed in support of the application includes an affidavit of Randy Schneider, sworn September 30, 2008. In his affidavit, Mr. Schneider deposes, at paragraph 3, that “the plaintiff will offer to purchase the mortgaged property for the sum of $35,000.00.” DISCUSSION: [12] There are variety of procedural issues with the application as outlined in the background. The ex parte application for the appointment for hearing for the application by the proposed plaintiff for leave to commence action was premature as 30 clear days had not expired after service on the Provincial Mediation Board prior to the making of the application. The statement of claim was not noted for default prior to the application being made for the order nisi for sale. The amount shown to be owing by the defendants on the order nisi for sale was incorrect as the amount includes items in addition to the principal outstanding and the interest arrears. The order nisi for sale directs that the property be listed for six months. That would require the property to be listed until December 16, 2008. There does not appear on the evidence to be sale to be confirmed. The plaintiff is prepared to make an offer, but does not appear to have done so. [13] There is limited evidence with respect to the value of the property and no evidence from the licensed realtor who was charged with the responsibility of listing the property as to the steps taken. The draft bill of costs submitted by counsel contains numerous items which occurred prior to the granting of leave and there is no order from the court authorizing pre-leave costs, nor any evidence as to why the court might consider pre-leave costs. [14] Counsel invites the court to apply Rule 5(1) with respect to the irregularities identified. am prepared to do so with some limitations. I will not set aside the order nisi for judicial sale on the basis that the application for leave was premature or that the statement of claim was not noted for default. [15] However, the application for confirmation of the sale is premature as the property is to be listed for six months, and on the basis that there is no sale to be confirmed based on the evidence filed. On renewed application for confirmation of judicial sale, it would be preferable to have evidence directly from the listing agent setting out the steps taken to market the property and detailing for the court any offers received. There will be no costs awarded for this unsuccessful application.","FIAT: The plaintiff seeks an order confirming the order nisi for judicial sale. HELD: Application dismissed. The Court will not set aside the order nisi for judicial sale on the basis that the application for leave was premature or that the statement of claim was not noted for default. However, the application for confirmation of the sale is premature as the property is to be listed for 6 months. There does not appear on the evidence to be a sale to be confirmed. The plaintiff is prepared to make an offer, but does not appear to have done so. The draft bill of costs submitted contains numerous items which occurred prior to the granting of leave and there is no order from the Court authorizing pre-leave costs, nor any evidence as to why the Court might consider pre-leave costs. On a renewed application for confirmation of judicial sale, it would be preferable to have evidence directly from the listing agent setting out the steps taken to market the property and detailing for the Court any offers received. There will be no costs awarded for this unsuccessful application.",9_2008skqb429.txt
146,"SUPREME COURT OF NOVA SCOTIA Citation: King v. RBC Dominion Securities Inc., 2012 NSSC 225 Date: 20120613 Docket: Syd. No 246513 Registry: Sydney Between: Henry David King and Joyce Carmel King v. RBC Dominion Securities Inc./RBC Dominion Valuers Mobiliers Inc. body corporate, and Frank Youden Respondents LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: June 11, 2012, in Sydney, Nova Scotia Decision: June 13, 2012 Subject: Consolidation of proceedings Civil Procedure Rules 37.02 and 37.03 Summary: The Applicants sought to consolidate their claim against the Defendants, with three other actions, all involving the same Defendants and allegations regarding the improper negligent conduct of an investment advisor. Issue: Should the matters be consolidated, heard at the same time, or heard in sequence? Result: After reviewing the Rules, case authorities and material before the Court, the motion was dismissed SUPREME COURT OF NOVA SCOTIA Citation: King v. RBC Dominion Securities Inc., 2012 NSSC 225 Date: 20120613 Docket: Syd. No 246513 Registry: Sydney Between: Henry David King and Joyce Carmel King v. RBC Dominion Securities Inc./RBC Dominion Valuers Mobiliers Inc. body corporate, and Frank Youden Respondents Judge: The Honourable Justice Cindy A. Bourgeois Heard: June 11, 2012 in Sydney, Nova Scotia Decision: June 13, 2012 Counsel: Robert Risk and Jennifer Anderson, for the Applicants Roderick Rogers, Q.C., on behalf of Nigel Campbell, for the Respondents By the Court: Introduction: [1] This is motion brought by Henry and Joyce King, originally seeking consolidation of an action in which they are plaintiffs with three other named actions. All four matters have common defendants, namely RBC Dominion Securities Inc. and Frank Youden. [2] It would appear that all four plaintiffs are represented by Mr. Risk and Mr. McPhee of Sampson McDougall. In all four actions, the defendants are represented by Mr. Campbell of Blakes. Mr. Rogers responded to this motion on behalf of Mr. Campbell. [3] It appears to be unrefuted that the plaintiffs in all four actions were former clients of the Defendant RBC, having held investment accounts during certain periods of time. It is alleged that the investment advisor personally responsible for the respective accounts was Mr. Bagnell. Mr. Bagnell was allegedly supervised by Mr. Youden. [4] In the four actions, each plaintiff claims that Mr. Bagnell negligently managed their respective accounts, and all are seeking the same type of financial damages, along with “aggravated, punitive and exemplary damages”. It is further alleged in each action, that the Defendant Youden negligently failed to supervise Bagnell, and that RBC, as the employer of both men, is vicariously liable. [5] Although the position of the parties will be canvassed in greater detail herein, at this juncture it may be helpful to comment upon the somewhat shifting nature of the remedy being sought by the Applicants. [6] In their thorough written submissions, the Applicants clearly focussed upon establishing why consolidation (pursuant to Rule 37.02) of the four actions was an appropriate remedy. Although the Applicants did reference the possibility of the matters being heard together (pursuant to Rule 37.03) in their written submissions, such was clearly not the preferred remedy sought. What was clearly indicated was that the Applicants did not seek, or want the actions heard in sequence. [7] At the outset of oral arguments, Mr. Risk advised the Court that although the Applicants were still seeking consolidation, based upon his view of the uncertainty of the law of consolidation in light of the new Rules, such was giving rise to concern. Mr. Risk did not want to create, by consolidation, situation where the determination of the issues relating to one plaintiff would be conclusive of the other three actions. If such would be the effect of consolidation, Mr. Risk advised that the Applicants would want the matters to be heard together, pursuant to Rule 37.03. [8] Following the Respondents’ oral submissions, Mr. Risk again altered the nature of the remedy being sought by the Applicants. Specifically, it was requested that the Court consider as an appropriate remedy, directing that all four matters be heard sequentially. As noted above, in the Applicants’ written submissions, this was remedy that was opposed. [9] In their Notice of Motion, the Applicants rely upon Civil Procedure Rules 37.02 and 37.03 which read: 37.02 judge may order consolidation of proceedings if the proceedings to be consolidated are of the same kind, that is to say, actions, applications, applications for judicial review, or appeals, and one of the following conditions is met: (a) common question of law or fact arises in the proceedings; (b) same ground of judicial review or appeal is advanced in the applications for judicial review or appeals and the ground involves the same or similar decision-makers; (c) claims, grounds, or defences in the actions or applications involve the same transaction, occurrence, or series of transactions or occurrences; (d) consolidation is, otherwise, in the interests of the parties. 37.03 judge may order that proceedings be tried or heard together, or in sequence. [10] Although not specifically plead or mentioned by either party, given the arguments raised by both Counsel, the Court has taken note of Rule 37.04 which provides: 37.04(1) judge may order common issues in two or more proceedings be tried, or heard, together. (2) The judge who orders the trial, or hearing, together of common issues may provide times for the trial, or hearing, of the issues that are to be tried, or heard, separately. [11] have also considered Section 41(g) of the Judicature Act, R.S.N.S., 1989, c.240 which provides: 41. In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions: (g) the Court, in the exercise of the jurisdiction vested in it in every proceeding pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to the Court seems just, all such remedies whatsoever as any of the parties thereto appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in the proceeding so that as far as possible all matters so in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided. [12] Consideration of consolidation motion is also guided by common law authority. Although there have been several decisions rendered under the new 2009 Rule, it is recognized that authorities made under the 1972 Rules have continuing applicability (See Comeau v. Ballam Insurance Services Ltd. 2010 NSSC 404 (CanLII)). [13] Most, if not all case authorities from this jurisdiction refer to the principles outlined by Saunders, J. (as he then was) in Stone v. Confederation Life Insurance Co. (1993), 1992 CanLII 6302 (NS SC), 117 N.S.R. (2d) 194. Adopting the approach endorsed by the Prince Edward Island Supreme Court, His Lordship outlined six factors for consideration on motion for consolidation, as follows: [10] Prince Edward Island’s Procedure Rule 39.01 is identical to our Civil Procedure Rule 39.02. In Re Hillcrest Housing Ltd. and Clans Ltd., supra, the court in considering whether an order should be made for consolidation, referred to six factors relevant to this determination. The factors are stated at p.247 of the decision and can be summarized as follows: (1) the general convenience and expense; (2) whether jury notice is involved; (3) how far the actions have progressed; (4) whether the plaintiffs have separate solicitors; (5) actions should not be consolidated where matters relevant in one action have arisen subsequent to the commencement of the other, and the actions have proceeded to considerable extent; and (6) where consolidation is otherwise proper, the fact that on discovery questions would be unobjectionable in one action which might be privileged in the other action is not sufficient reason for refusing an order consolidating the actions. [14] In addition to the above, Saunders, J. further noted as follows: “In addition, the court recognized the principle formulated in number of cases and stated at p.247: ‘The common element in these decisions is that in order for consolidation to be ordered decision in one case would dispose of the essential cause of action in the other case.’” [15] It is the above principle which appears to be the source of angst for the Applicants, and the root of the alternate remedies being advanced in this motion. Mr. Risk is fearful that the application of the above principle may result, if the matters are consolidated, in the Plaintiff King’s claim being completely disposed of based upon the outcome of another plaintiff’s claim. [16] This fear is unfounded in my view for two reasons. Firstly, the above quote is not intended to reflect mandatory outcome should two or more actions (or other matters) be consolidated. It was intended to be statement of one of the determining factors required to support consolidation motion in the first instance. Secondly, recent case law has indicated that as factor in consolidation motion, it is not mandatory. [17] Although the continuing relevance of the six factors outlined by Saunders, J. has been continually endorsed, including recently by the Court of Appeal in Best Pontius, 2009 NSCA 39 (CanLII), there has been some divergent consideration as to whether it is mandatory in order to successfully argue for consolidation that “a decision in one case would dispose of the essential cause of action in the other case.” [18] Although that remains an important consideration favouring consolidation, the absence of same does not preclude it. As noted by Hood, J. in MacNutt Nova Scotia (Attorney General) 2005 NSSC 337 (CanLII), and very recently by Rosinski, J. in Jeffrie v. Hendriksen, 2011 NSSC 351 (CanLII), an alternate consideration is whether the proceedings in question are “inextricably intertwined”. With respect, disagree with Counsel for the Applicant that the law with respect to consolidation has become unclear since the advent of the new Rules. It remains, as it was in the past, balancing of factors. Position of the Parties: [19] Having now reviewed the framework in which this motion is to be considered, turn to the positions advanced by the parties. [20] The original and primary position of the Applicant is nicely summarized in their Counsel’s brief as follows: It is submitted that the four actions sought to be consolidated in this motion meet the test contained in Rule 37.02. Firstly, the four proceedings sought to be consolidated are of the same kind, each being an action initiated under the Nova Scotia Civil Procedure Rules (1972). Further, each action involves common questions of law and fact arising out of the management and supervision of similar investment accounts over similar period of time. Finally, consolidation is otherwise in the interests of the parties. [21] The Applicants highlight that the actions brought against the Defendants are identical, raising the same issues as it relates to the negligent management by Mr. Bagnell with each plaintiff during an overlapping period of time. It is submitted that judicial economy is very important consideration, as expert evidence will be adduced in each matter relating to the standard of care and quantification of damages. The Court should avoid duplication. Further, as each plaintiff intends to elect trial by civil jury, it is argued in support of its preferred remedy of consolidation, that it would be highly duplicitous and an unreasonable use of court resources to undertake four separate trials. [22] In support of the alternate remedy of sequential trials, the Applicants submit that this is remedy within the Court’s discretion to grant, if consolidation is found to be inappropriate. The Applicants rely upon the decision of the Alberta Court of Queen’s Bench in Jeerh v. Yorkton Securities Inc. 2004 ABQB 975 (CanLII). [23] The Respondents take very contrary view. Although acknowledging the pleadings establish that the Defendants and the nature of the claims against them are identical in all four matters, the Respondents submit that the legal and factual issues to be determined in each action are very individualized, and certainly not common across all four actions. Similarities are acknowledged, but such are not sufficient to justify consolidation. The Respondents submit the same concerns apply to having the actions heard together. [24] By way of example, as it relates to the standard of care, the Respondents assert as follows in their written submissions: “For the same reason, there is little to no overlap in the issues of law amongst the claims of the Moving Parties. The abstract professional standards to which the Respondents are subject, such as the jurisdiction of the IDA over the Respondents, are not controversial and will take minimal time to establish. The more contentious questions of law, namely what professional and legal standards applied in the context of given relationship with each Moving Party, will turn on the unique circumstances and preferences of each specific Moving Party. Conduct that may be breach of legal or professional obligation for one Moving Party could be perfectly acceptable for another. As such, determination on the questions of law raised by one Moving Party will say nothing about the same issue with respect to another Moving Party.” [25] As to whether consolidation is in the best interest of the parties, the Respondents assert that the Applicants’ wish to have single jury hear the matter is problematic. It is asserted that having the jury hear allegations of negligence arising from series of transactions involving four different plaintiffs would be tantamount to permitting similar fact evidence. The perils of such evidence, and in particular the improper influence such may have on single jury ought to be, in the Respondents’ submission, fatal to motion for consolidation, or having the actions heard together. [26] The Respondents further submit that given the lateness in which it was raised, this Court should not consider the alternative remedy of sequential trials. Even if it is considered, the Respondent submits that the material before the Court does not support the appropriateness of an order in that regard. Determination: [27] have considered the excellent written and oral submissions of both Counsel, the applicable Rules and case authorities. have also considered the evidence filed in support of the motion, consisting of affidavits from the Applicant, as well as the Plaintiffs in the other three actions. From those affidavits note, that there is consent to the consolidation and all plaintiffs intend to proceed by way of jury. It is also apparent from the evidence provided that the time frames in which Mr. Bagnell interacted with the individual plaintiffs did overlap, to certain extent, but also covered differing periods of time. By way of example, the time frame asserted by the Plaintiffs in which they allege Mr. Bagnell and Mr. Youden “employees of RBC, were negligent in the handling of accounts” in their respective affidavits are as follows: Applicants King February 28, 1998 to March 31, 2003; Plaintiff Fraser February 1, 2000 to March 31, 2003; Plaintiffs Murphy July 23, 1998 to October 28, 2004; Plaintiff Black April 1, 1997 to May 30, 2003. [28] Each affidavit also confirms the nature of the causes of action contained in the respective pleadings. [29] Turning now to Rule 37.02, given that these matters are all actions, can proceed to the other considerations as outlined. (a) common question of law or fact arises in the proceedings: [30] Based on the identical nature of the pleadings, accept that there are shared questions of law amongst the four actions. In all actions the standard of care of reasonable investment advisor and supervisor will need to be determined. Should negligence be established, the Court will also likely rely upon the same principles in terms of proper quantification of financial losses. [31] Beyond the assertions contained in the pleadings, however, there is little evidence in support of the motion to assist the Court in fully appreciating just how similar, and potentially duplicitous the evidence at four separate trials will be. [32] In my view, in order to be supportive of consolidation, there should, except perhaps in the most simple of cases, be more than just single common question of law or common question of fact. The Court in most instances will be tasked at looking at the degree of commonality between two or more matters the more issues and facts in common, the more supportive such will be of consolidation. [33] It should be remembered however, that it is the Applicant who bears the burden of proof, and must marshal evidence accordingly. Although from the pleadings and submissions of Counsel, the Court accepts that expert evidence will be called, there is nothing before the Court to permit me to assess the degree of overlap in the evidence to be adduced on behalf of each plaintiff. [34] Are the same experts being called in relation to each claim? In terms of financial quantification do the expert(s)’ reports overlap in terms of duplication of content, and if so, to what degree? Are experts being called to prove and quantify the aggravated damages claimed in the four actions? If so, are there common facts and issues as between some or all of the four claims? [35] The answers to the above queries are just examples of the type of information the Court would find helpful in understanding the extent of commonality in the evidence to be adduced at trial, and in particular how such impacts on trial time and risk of evidence being duplicated. When raising this concern with Mr. Risk, it was suggested that the pleadings and submissions of Counsel should suffice, and that nothing more could or should reasonably be presented to the Court in terms of evidence. [36] In support of this view, Mr. Risk relies upon the opening comments of Rosinski, J. in Jeffrie v. Hendriksen, supra who writes: “[1] Contested Motions to Consolidate two proceedings involve the application of well established legal principles to uncertain facts. The decision to do so is necessarily discretionary, and particularly difficult to justify to rigorous standard, because the judge is asked to predict the timing and context of not just one, but two previously separate proceedings, and compare the consequences expected should the matter proceed separately as opposed to together. [2] Into this uncertain terrain, now tread.” [37] certainly agree with the sentiment expressed by Justice Rosinski that motions for consolidation do, by their nature, call upon the Court to gaze to some degree into the future. However, what must be kept in mind is that the Court needs to be afforded some evidentiary foundation upon which to base the endeavour. In that instance, Justice Rosinski was considering the proposed consolidation of two applications. Therefore, the Court would have had the benefit of some affidavit evidence upon which to embark upon the comparison of “the consequences expected should the matters proceed separately as opposed to together.” That is not the case here. [38] Rather, appear to find myself in similar position as Moir, J. in Shane v. Allen, 2011 NSSC 28. Although the Notice of Motion there indicated that consolidation was being sought, much like here, the remedy changed during Counsel’s submissions. There, the motion was dismissed due to lack of evidence establishing sufficient commonality regarding the nature of evidence intended to be called at trial. [39] Consolidation was originally sought of nine actions involving investor plaintiffs, an individual investment advisor defendant, and several other corporate defendants. Through submissions it became apparent that complete consolidation of all issues was not being sought, but rather some issues to be dealt with in common, others separately. The motion was ultimately dismissed with the Court explaining: ... do not consider that the court is at this stage sufficiently furnished with information about the claims to be able to make reasonable assessment of which issues could be tried in common and which issues have to be set to be tried individually.” [40] As the matter presently before the Court appears to be quite similar to that addressed by Moir, J., his additional comments are instructive, and in my view, equally applicable to the matter before me: “[4] As Mr. Awad suggests, the issue of vicarious liability is likely one that could be common. It may even be one that could be determined separately as question of law. Negligent supervision could be common issue. There may be sub-issue about causation that would have to be set off as individual. simply do not have enough evidence about the case to make that conclusion. The supervision issue could be common issue if we see it to allege systemic problems as opposed to one time failure. Again, would need to be furnished with information to make that kind of assessment. [5] Punitive damages cannot be determined until after the assessment of compensatory damages because compensatory damages have to be taken into consideration in settling the amount of punitive damages. It is also the case that any liability for punitive damages will depend upon the culpability toward each individual not culpability toward the group as whole. Again, am not furnished with information by which can assess whether individual culpability is that important or not. [7] Turning to the cause of action in negligence. As Mr. Pierce points out, even the duty itself, when it goes beyond an investment advisor’s obligation to see to the execution of the client’s orders and the fundamental and simple obligations of an investment advisor becomes rather individualistic. Again, it may be of that all of the cluster of issues around negligence can be reduced to something common and the differences will not matter, but have not been furnished, by evidence, with enough information to make that kind of assessment. [8] The consequential damages are individual to each client. must say that the process of assessing the individual damages will be eased great deal by findings that are common if the cases have enough commonality between them. At this stage, all can say is that the consequential damages require their individual assessment. [9] The issue of aggravated damages is individual because it is meant to compensate the plaintiff for the plaintiff’s own loss and that is not exactly the same in every case. Again, unless evidence shows that everyone was treated the same way and everyone had roughly the same reaction to the treatment aggravated damages requires individual assessments. have not been furnished with evidence suggesting that.” [41] Based on the material before me, although there are some common legal issues as plead, cannot determine what degree of commonality exists between the four actions. There will be common issues and facts. However, it is not possible at this juncture to determine the degree of commonality, in what the pleadings disclose as being four relatively complex actions. (b) same ground of judicial review or appeal is advanced in the applications for judicial review or appeals and the ground involves the same or similar decision-makers. [42] This condition does not apply in the present instance. (c) claims, grounds, or defences in the actions or applications involve the same transaction, occurrence, or series of transactions or occurrences. [43] The Applicants rely on this condition as supportive of their request for consolidation. They assert that all four causes of action arise from series of negligent financial transactions undertaken by Mr. Bagnell. [44] The Respondents characterize the transactions much differently. Although acknowledging the transactions are similar in nature and have the commonality of Mr. Bagnell’s involvement, they do not fall into the condition as specified in the Rule. [45] agree with the approach put forward by the Respondents. Rule 37.02(c) contemplates the actions involving the “same transaction, occurrence, or series of transactions.” The use of the word “same” as opposed to “similar” is instructive. [46] In all four actions, the allegations of negligence arise from transactions undertaken in each respective plaintiffs’ investment accounts. Although some were in the same time frame, some are separated widely in time. By way of example, according to the affidavits Plaintiff Black will be raising concern about transactions undertaken in April, 1997. Plaintiff Murphy will be raising concern about transactions undertaken until October 2004. There does not appear to be connection among the transactions undertaken in all four actions, other than Mr. Bagnell’s involvement. The pleadings clearly state each plaintiff had their own investment accounts which are the subject matter of their litigation. There is no evidence before the Court to establish that the series of transactions are all part of the “same” transaction as contemplated by the Rule. (d) consolidation is otherwise, in the interests of the parties: [47] This conditions allows broad approach to assessing motion for consolidation. [48] The six factors outlined in Stone, supra can, in my view, be considered as part of this final condition. [49] Considering the six factors, note that the plaintiffs have all indicated that jury trial will be selected, there is also commonality of counsel, and Mr. Risk in his submissions indicates that all four actions are at the same stage of litigation. Factors and do not appear to have application in the present case. [50] The factor heavily relied upon by the Applicants, is that general convenience favours consolidation, as expense will be greatly lessened, if the matters are consolidated. [51] Based on Counsel’s submission, accept that similar expert evidence will need to be called in support of all four claims. As noted earlier, this would be in relation to standard of care, and quantification of damages. The Applicants seek to avoid having the same experts testify about the same matters at four trials. This of course, would also be in the best interest of all parties and the Court. [52] am not, however, based on the material before me, satisfied as to the extent of evidentiary overlap which would result should the trials remain separate. In fact, based on the individual pleadings, it seems as if much of the expert evidence adduced would have to be specific to each individual plaintiff’s claim. Each of their financial losses would be particular to the quantum invested, the nature of the investments made, and the market conditions. Even if some time savings could be had by witnesses testifying once as to common matters, it seems more likely that experts will spend considerable time addressing the unique claims of each plaintiff. am reminded of the words of Saunders, J. in Stone, supra, where he states at para. “[9] While on its face, there may be some attraction to the argument that judicial economy would invite combination of cases where some of the medical experts may be the same persons, there is much more to an application for consolidation than that. must consider all of the circumstances, all of the issues that have been raised by the parties in their respective litigation and determine whether or not it would be just and appropriate to combine those two cases. Having done so, am convinced there are cogent reasons for refusing consolidation.” [53] As final matter, share the Respondents’ concern with respect to the impact on single jury of hearing multiple allegations of negligence relating to four sets of plaintiffs. Perhaps this concern could be minimized if further evidence in relation to the commonality of issues had been before the Court, however, at this stage, it is valid concern. [54] Having considered all of the above, cannot conclude that the four actions are “inextricably intertwined”, nor that the outcome of one will be conclusive of the other three. Although the Applicants have demonstrated that they can bring themselves, to some degree within the conditions in Rule 37.02, and the Stone factors, am not convinced that consolidation is appropriate. [55] Having determined consolidation is not appropriate, turn now to the alternative remedies sought, namely that the matters be heard together, or in sequence. The Applicant has made it clear that they intend to have civil jury trial, regardless of how the matters are ultimately formulated. This would include the intention of having one jury hear four consecutive trials. [56] In terms of having the trials heard together, again, am not satisfied that the nature of the evidence to be called at the trials of these matters would make such an outcome appropriate. There is inadequate evidence before the Court to appreciate the consequences on the form, length and structure of the resulting proceedings to knowledgeably make such determination. [57] As for the Applicant’s request to have the trials heard in sequence, decline to consider that matter. That request was raised for the first time by the Applicants in their reply oral submissions. Their written submissions had specifically indicated they were not seeking sequential trials. It is unreasonable in my view, to “switch gears” at such late stage, without giving the Respondents any type of reasonable opportunity to meaningfully address the request. [58] As an observation, Rule 37.04 may have the most applicability to the present instance. It was, however, not relied upon by the Applicant. Perhaps, should the common issues and factual matters be better articulated, the Court could, in future consider the appropriateness of remedy thereunder. [59] The motion is accordingly dismissed. Should the parties be unable to agree with respect to costs, written submissions should be filed no later than July 6, 2012.",",  motion denied. The court considered Rule 37.02(c) and distinguished between the terms 'same' and 'similar' with respect to claims involving the 'same transaction' and determined the use of the term 'same' indicated it must involve the same transaction and not merely similar transactions. The court stated that there should be more than a single common question of law or question of fact except in the simplest of cases to grant a motion for consolidation. The more issues and facts in common, the more supportive those factors will be toward consolidation. The court found there was insufficient evidence of commonality between the actions and dismissed the applicants' motion for consolidation on the basis that the actions were based on similar transactions but not the same transactions. The court did not consider the applicant's request to have the matters heard sequentially because it was raised only during their reply oral submissions to the court. The court suggested that Rule 37.04, which would have allowed for common issues to be tried or heard together, would have been most applicable but was not relied upon by the applicants. The court dismissed the motion.",b_2012nssc225.txt
147,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2008 SKPC 104 Date: July 11, 2008 Information: 40558670 Location: Prince Albert Between: Her Majesty the Queen and Craig Lawrence Kendall Weenie Appearing: Mr. P. Hryhorchuk For the Crown Mr. D. Blenner-Hassett For the Accused DECISION S. C. CARTER, INTRODUCTION: [1] The accused, Craig Lawrence Kendall Weenie, is charged with resisting arrest contrary to s. 129(a) of the Criminal Code. The defence argues that there were insufficient grounds for the accused’s arrest and that the accused was therefore justified in resisting his detention. The Crown’s position is that in these circumstances the police were justified in arresting the accused for being drunk in public. [2] From the evidence heard at the trial on June 12, 2008, make the following finding of the facts. [3] On February 17, 2008 at approximately 7:05 a.m., Cst. Hayes was dispatched to attend to the apartment complex at Bryant Place in Prince Albert, Saskatchewan for an eviction at Block 4, Suite #1. While en route the dispatcher called again advising that the person to be evicted was now outside of the apartment banging on the door. Cst. Hayes drove into the parking lot, got out of his car and saw the accused on the porch banging at the door. The accused then began to walk towards Cst. Hayes. He walked down off the porch and onto the parking lot with his hands in his pockets. Cst. Hayes ordered the accused to remove his hands from his pockets. He repeated this command several times until the accused complied. Cst. Hayes then approached the accused who began to yell obscenities and swear at him. The accused smelled strongly of alcohol and appeared to be slightly unsteady on his feet. He said that he belonged in the apartment and turned away and began to walk back toward it. [4] Cst. Epp had arrived at the scene by this time. As the accused began walking away, he and Cst. Hayes each took hold of the accused’s arms and told him that he was under arrest for being drunk in public. The accused got very angry. He pulled away insisting that he belonged in the apartment. struggle then ensued between the two peace officers and the accused who is over six feet in height and weighs more than three hundred pounds. OC spray was used but had no immediate affect on the accused, but he was eventually handcuffed and placed in the back of police car. [5] Section 129 of The Alcohol and Gaming Regulation Act S.S. 1988-89, c. 18.0, states that “no person shall be in an intoxicated condition in public place or permitted premises”. Pursuant to s. 143 of the same Act, peace officer may arrest without warrant any person whom he finds committing an offence under the Act. [6] Under s. 52(2) of The Summary Offences Procedure Act S.S. 1990-91, c.S 63.1, peace officer who finds person in public place and whom the peace officer reasonably believes, (i) is intoxicated due to the use of alcohol; and (ii) if not detained is likely to cause injury to himself or herself or be danger or disturbance to others and there is no other person capable and willing to take care of the person, may take that person into custody. [7] Pursuant to s. 52(5) the person taken into custody pursuant to s. 52(2) shall be released from custody when, in the opinion of custodian, the person has recovered sufficient capacity that, if released, the person is unlikely to cause injury to himself or herself or be danger or disturbance to others. [8] The outcome of all cases depends upon their unique facts. Thus in R. v. Roberts[1], found, on the facts of that case, that there were insufficient indicia of impairment to warrant the arrest of Mr. Roberts. Roberts was walking by himself in hotel parking lot. One arresting officer said that his eyes were squinty and that his speech was hard to understand. The other officer said that his speech was slightly slurred and that he swayed at one point when he began to walk away from them. No complaints had been received about his behaviour. He spoke at moderate volume. There was no evidence of the smell of alcoholic beverage on his breath. [9] In the case at bar there was complaint concerning the accused. He was heard and seen banging on the door of an apartment. He smelled of alcohol. He was slightly unsteady on his feet and he was yelling and swearing at the police. In my view these facts distinguish this case from Roberts. [10] Given the complaint and the observations made by Cst. Hayes and Cst. Epp it was reasonable for them to believe that the accused was intoxicated due to the use of alcohol. He was causing disturbance to others. The complaint came in as an eviction. He was seen by the officers standing on the apartment porch, pounding on the door. In my view there is nothing private about porch. Members of the public have the right to walk up and knock on doors unless previously requested not to do so.[2] In any event, the accused began to yell at the officers prior to his arrest when he was in the parking lot which is, without any doubt, public place. No one else was present who may have been capable and willing to take charge of the accused. [11] The defence argued that in these circumstances the arresting officers should have questioned that accused as to where else he might go to sleep off his intoxication. Although there was no evidence before the Court of this, defence counsel alluded to the fact that the accused’s mother lived somewhere in the same apartment complex. The Crown’s position is that in circumstances such as this, the police are not required to sit down and discuss with the accused where he might go, rather than banging on the door of that particular apartment. In my view, s. 52(2) of The Summary Offences Procedure Act, should be interpreted as meaning that there must be no other person present at the scene who is capable and willing to take care of the person who is subject to arrest. There was no such person in this case. In my view the arrest was, on these facts, lawful. DECISION: [12] The Crown has proved beyond a reasonable doubt that the officers were engaged in the lawful execution of their duty when the accused resisted their efforts to arrest him pursuant to The Summary Offences Procedure Act. S. C. Carter, [1] 2003 SKPC 75 (CanLII) [2] Rex ex Rel Atkinson v. Montague (1949), 1949 CanLII 400 (ON SC), 97 C.C.C. 29 (Ont. Ct.), and see definition of “public place”, paragraph a, Alcohol and Gaming Regulations Act, 1997 c.A-18.011","The accused was charged with resisting arrest contrary to s. 129(a) of the Criminal Code. The defence argued that there were insufficient grounds for the accused's arrest and he was therefore justified in resisting his detention. The Crown's position was that the police were justified in arresting the accused for being drunk in public. HELD: The Crown has proved beyond a reasonable doubt that the officers were engaged in the lawful execution of their duty when the accused resisted their efforts to arrest him pursuant to The Summary Offences Procedure Act. There was a complaint to police concerning the accused. He was heard and seen banging on the door of an apartment. He smelled of alcohol. He was slightly unsteady on his feet and he was yelling and swearing at the police. Given the complaint and the observations made by the attending constables, it was reasonable for them to believe that the accused was intoxicated due to the use of alcohol. He was causing a disturbance to others. Prior to his arrest, the accused began to yell at the officers in a parking lot which is, without any doubt, a public place. No one else was present who may have been capable and willing to take charge of the accused. The defence argued that in these circumstances the arresting officers should have questioned that accused as to where else he might go to sleep off his intoxication. The Crown submitted that in circumstances such as this, the police are not required to sit down and discuss with the accused where he might go. In the Court's view, s. 52(2) of The Summary Offences Procedure Act should be interpreted as meaning that there must be no other person present at the scene who is capable and willing to take care of the person who is subject to arrest. There was no such person in this case. The arrest was, on these facts, lawful.",b_2008skpc104.txt
148,"CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. 72115 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONTINENTAL SEAFOODS LIMITED and THE MINISTER OF FINANCE Respondent HEARD: before the Honourable Mr. Justice F. B. W. Kelly, Supreme Court of Nova Scotia, Trial Division September 5, 1991 in Chambers. DECISION: September 5, 1991 COUNSEL: Mr. Harvey Morrison, Esq., for the applicant Mr. Duncan Beveridge, Esq., for the respondent DECISION RELEASED: March 25, 1992 CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. 72115 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONTINENTAL SEAFOODS LIMITED Appellant and THE MINISTER OF FINANCE Respondent KELLY, J.: (Orally) This is an appeal pursuant to s. 19 of the Health Services Tax Act, R.S.N.S. 1967, c. 126 in respect of a decision of the Provincial Tax Commission to cancel a claim for a refund of health services tax by the applicant, Continental Seafoods Ltd. The Act has since been significantly amended by R.S.N.S. 1989, c. 198. Continental had applied to the Commission for a refund of the tax paid on certain refrigeration equipment which was installed in a new facility for pickled whole herring in Shelburne, Nova Scotia. This product was mainly to be supplied on contract to the Soviet Union. The contract contained stringent quality specifications governing the processing of this product which included a phase where the pickling occurs in a cooler facility for 28 to 45 days at a strictly controlled temperature of 0ºC to ‑2ºC. The new facility comprises roughly 38,000 square feet and includes three large cold rooms of similar capacity and dimension. The plant was intended to be used mainly to produce barrels of pickled salted herring for sale to Russia and eastern European countries. The plant was to be used both for production and also for storage of products produced elsewhere by Continental or its related companies. The cold storage rooms can be used for (a) refrigerator rooms for temperature control of the processing of pickled herring (b) cold storage of pickled herring or variety of products, and ©) storage of other frozen products. In fact, one of the cold rooms was used only for storage of frozen products that belonged to Continental and related companies and unrelated companies on fee for storage basis. When pickled herring is not being processed, the refrigeration equipment is used to provide air conditioning and cold storage capacity for Continental or these companies. In 1988 Continental contracted with J. H. Lock Sons Limited to furnish the labour, materials and equipment for the refrigeration system in the plant. The contract price of $550,467 included all provincial and federal government sales tax. Germain Mechanical and Electrical Limited acted as subcontractor for J. H. Lock to complete the contract work on the refrigeration system. It also contracted directly with Continental for various electrical and mechanical plumbing tasks. Health services tax was paid by Germain and J. H. Lock or subcontractors used by them on material and equipment used in relation to the construction of the cold storage processing plant at Shelburne. In early 1989, Continental applied for refund of health services tax paid on the refrigeration equipment in the amount of $58,791, which included work done by the two contractors, J. H. Lock and Germain. The Provincial Tax Commission advised Continental that the refund claim had been ""cancelled as contract was for New Cold Storage System which does not qualify for exemption under s. 10(1)(h)(I)"". Relevant parts of this section read as follows: 10(1) The following classes of tangible personal property are specifically exempted from the provisions of this Act: nan (h) machinery and apparatus and parts thereof which are to be used or which are used in the manufacture or production of goods for sale; (i) materials consumed or expended in the manufacture or production of goods for sale; (j) goods purchased for the purpose of being processed, fabricated, or manufactured into, or incorporated into goods for the purpose of sale; Section 1(ca) provides as follows: (ca) 'manufacture or production' means the transformation or conversion of raw or prepared material into different state or form from that in which it originally existed as raw or prepared material but does not include production or processing; Thus, under s. 10(1)(h) and (I) of the Act machinery and materials used in the 'manufacture or production' of goods for sale are exempt from taxation. Continental forwarded Notice of Objection relating to the cancellation to the Provincial Tax Commissioner which stated in part: In further support of our submission, we refer you to the Northland Fisheries decision, dated November 25, 1986 from which we quote ""Raw fish must be protected from spoilage. Without the insulated boxes"" (or in the instant case, refrigeration equipment) the fish would be transformed or converted into rather unmarketable product. Where it is necessary to move the raw fish from one area to another, these insulated boxes"" or in the instant case, the refrigeration equipment ""are necessary apparatus used to produce saleable product. nan In closing, it is readily understood that some of this refrigeration equipment capacity will serve as cold storage only while the main purpose for the expansion was to provide for the herring pickling operation and other curing and drying of salt fish as referred to in Mr. MacLean's letter. This firm did expect some reduction in the total amount claimed but however did not expect complete cancellation thereof. May we therefore suggest as compromise that the client is prepared to accept 50% safety margin to ensure that your Division has no unacceptable revenue loss. The Commissioner allowed the objection in part and indicated that rebate of $14,467.43 would be paid to Continental. This decision was based on disallowing any exemption for the mechanical plumbing and electrical services provided by Germain and by determining that only portion of the refrigeration capacity was used for production purposes. The Commissioner allowed 35% of the $41,335.50 tax paid by J. H. Lock to be rebated in the amount of $14,467.43. An appeal from this decision was made to the Minister of Finance pursuant to s. 18(5) of the Act in July of 1989 and the Minister discussed this appeal in decision dated January 26, 1990. This decision concludes as follows: Consideration of the exemption from health services tax claimed by the Appellant in respect of the equipment in the context of clauses 10(1)(h) and 1(ca) of the Act, as interpreted by the Supreme Court of Nova Scotia in Northland Fisheries Limited v. Nova Scotia (Minister of Finance), leads me to conclude that in order to be eligible for exemption from health services tax pursuant to clause 10(1)(h) of the Act, machinery and equipment must be used in the actual transformation or conversion of the product actually being produced for sale. Machinery or apparatus used prior or subsequent to that actual transformation or conversion is not eligible for the tax exemption. The function described by the Appellant of the equipment cannot, in my opinion, be reasonably said to be fully part of the manufacture or production of its product so as to bring it within, subject to the definition in clause 1(ca), the exemption available in clause 10(1)(h) of the Act. The appeal will therefore be dismissed and the assessment for health services tax, as varied by the Provincial Tax Commissioner, upheld. The appellant contends that the Minister and the Commissioner were incorrect in not allowing the exemption for the refrigeration equipment in full. The submission is that it was inappropriate to apportion the tax to be refunded if the equipment is exempt and is used in any degree in the manufacturing process. In Silver Spoons Desserts Enterprises Ltd. v. Nova Scotia (Minister of Finance) (1989), 89 N.S.R. (2d) 363; 227 A.P.R. 363 (S.C.A.D.) Jones, J.A. reviewed the history of the legislation and particularly s. 10(1)(h)(I) and (j) and noted that the exemption does not depend on the degree to which the goods are used in the manufacturing process. At p. 375 he noted with approval the comments of Jones, J. in Forest Products Terminal Corporation Ltd. v. New Brunswick (1985), 58 N.B.R. (2d) 371, at p. 380: Once it has been established that the machinery or apparatus is 'used directly in the process of manufacture or production, this is sufficient. The use of the machinery or apparatus need not be exclusively in the manufacturing or production process nor does it matter the percentage of use that it attributed to such process as opposed to other processes'. Irving Oil Limited v. Provincial Secretary of the Province of New Brunswick, 1980 CanLII 176 (SCC), [1980] S.C.R. 787, 29 N.B.R. (2d) 529; 66 A.P.R. 529; 31 N.R. 291; Pigeon, J., pp. 537 and 538 N.B.R.; Re Michelin Tires Manufacturing (Canada) Ltd. (1976), 15 N.S.R. (2d) 150; 14 A.P.R. 150; Cooper, J.A., p. 168. In Northland Fisheries Limited v. Nova Scotia (Minister of Finance) (1986), 77 N.S.R. (2d) 361; 191 A.P.R.361, Maclntosh, J. stated at pp. 364‑365: If it is the aim of the Legislature to narrow the scope of tax exemptions in this area, it is incumbent upon it to state its aim with clarity. Elimination of the word 'process' by the 1982 amendment tends to accomplish this aim to some degree. 'process' normally refers to some continuous operation and includes an operation which is merely incidental to the main purpose which is being served. (per Stroud's Judicial Dictionary (4th Ed.), p. 2130.) nan Despite its inept drafting, the definition section tends to exempt from taxation only that machinery or apparatus involved in the actual transformation or conversion of the material. Machinery or apparatus used prior or subsequent to this period of 'manufacture or production' is now, by virtue of the said 1982 amendment, not tax exempt. On the facts before him, Macintosh, J. held that insulated fish boxes were ""involved in the active transformation"" of fish because they were used to transform or convert the fish into different state; from perishable to non‑perishable. Here the use of the cold rooms was clearly part of the pickling process. The specification of the Russian contracts required that a significant part of the processing occur in a controlled almost freezing temperature, making it necessary for the use of refrigeration equipment. The use of a cold room in the process performed a function that was part of the manufacture or production of the product, pickled herring. With respect, the Minister was wrong in concluding otherwise. The Minister also upheld the Commissioner's decision to apportion the tax thus appearing to imply that the refrigeration facility was, at least in part, exempt from tax. The essence of the Commissioner's decision was that as part of the refrigeration process only was used in the manufacture or production of the pickled herring, he could exempt that portion and tax the rest. It would appear that the practice of apportionment of this kind has been rejected in Silver Spoons Desserts Enterprises Limited v. Nova Scotia (Minister of Finance), supra, (1989), 89 N.S.R. (2d) 363; 227 A.P.R. 363 (S.C.A.D.) which determined there is no power under the Act for the Commissioner to assess tax on prorated basis based on the extent the machinery or equipment is used in the manufacturing or production process. It would thus appear that even though only part of the refrigeration equipment was used in this process, all of it is exempt. Counsel for the Minister argued at the hearing that Continental was not entitled to an exemption for the refrigeration unit. The submission is that Continental paid no Health Services tax in that it was directly paid by the two contractors, J. H. Lock and Germain. The thrust of the submission was that the contracting companies were the ""purchaser"" under the Act and therefore they, not Continental, were the only parties with the right to seek refund. As authority for this proposition referencewas made to Installations Electriques, G. Bradley Ltee. v. Nova Scotia (Attorney General) (1987), 77 N.S.R. (2d) 327; 191 A.P.R.. 327 (S.C.T.D.); leave to appeal refused 89 N.S.R. (2d) 270. The applicant protests that this is new matter, not presented by the parties or considered by the Commissioner or the Minister, and is not proper consideration on appeal. Section 19 deals with the right of appeal from the decision of the Minister and the powers of the court on appeal are provided in 19(4); (4) The judge shall hear the appeal and the evidence adduced before him by the appellant and Her Majesty in summary manner, and shall decide the matter of the appeal. Upon the request made to the judge by any party to the appeal, the hearing may be held in camera. It is argued by the respondent that s. 19(4) should be applied in liberal way to allow additional grounds to be argued at this stage. This is judicial proceeding where the legislation does not provide much by way of procedural requirements and the practice of counsel is to accommodate the deficiencies of the Act to ensure as much procedural fairness as possible. In the absence of consent from the other party, do not feel it is appropriate in the circumstances to allow party to raise new ground not submitted to or argued before the Minister or Provincial Tax Commissioner. The information that was before the Commissioner and the Minister was the same information presented to this court. There well may be appropriate circumstances where the court might allow such new submission, but do not feel this is one. See Ponnamma v. Arumogam, [1905] A.C. 383 (C.P.C.), National Telephone Company Limited v. Postmaster General, [1913] A.C. 546 (H.L.) and United Dominions Trust Ltd., [1954] W.L.R. 1345 (M.R.). In the latter case Evershed M.R. stated at p. 1351; As matter of principle, the Court of Appeal has always been strict in applying the rule that an appellant from county court, unless the other party consents, cannot be allowed in this court to raise new point of law not raised below. After all, the county court is intended to serve litigants of relatively small means, and it is not in accordance with the public interest that party, who has fought case in county court and been defeated, should then come to this court and raise in this court new point, and put his case in an entirely different way as matter of law and so make the other party, hitherto successful, litigate the matter again at the risk of having to pay the costs not only below but in this court. The result of my findings above is that the decision of the Provincial Tax Commissioner, as upheld by the Minister, to allow refund on the refrigeration equipment is approved, but that the tax paid should not have been apportioned based on the use of the equipment in production. This would mean that the tax paid relevant to the J. H. Lock contract in the amount of $41,335.50 should be refunded. In the result, the appeal is allowed and the appellant is awarded its costs. J. Halifax, Nova Scotia CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. 72115 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONTINENTAL SEAFOODS LIMITED and THE MINISTER OF FINANCE DECISION OF JUSTICE KELLY","The plaintiff appealed the defendant's decision to grant a partial tax refund only under the Health Services Tax Act. The plaintiff had sought a full refund of tax paid on refrigeration equipment at a pickled herring plant (whose product was to be supplied on contract overseas) on the ground the equipment was used in the 'manufacture or production of goods for sale.' The contract stipulated that most of the processing occur at controlled cold temperatures. The defendant apportioned tax based on the time the equipment was used in the actual 'transformation or conversion' of the product. For the plaintiff, that (1) the tax exemption did not depend on the extent to which the equipment was used in the manufacturing process; and (2) since the contract required most of the process to occur under refrigeration, the use of a cold room was part of the 'manufacture or production' of the product.",e_1991canlii4217.txt
149,"IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Goreham, 2008 NSPC Date: January 31, 2008 Docket: 1697424 Registry: Yarmouth Between: Her Majesty the Queen v. Robert Terry Goreham Judge: The Honourable Judge James H. Burrill Heard: January 31, 2008, in Barrington, Nova Scotia Charge: 287(2) MVA Counsel: Jim Fyfe, for the Crown Philip Star, Q.C., for the Defence By the Court: [1] On August 9, 2006, Robert Terry Goreham was observed by police officers driving his all terrain vehicle (ATV) along Highway #3 in the community of Woods Harbour, Nova Scotia. At the time his driver’s license was revoked. These facts were agreed and the only issue at this trial is whether this makes the accused guilty of the offence of driving a motor vehicle on the highway while his license was revoked contrary to s.287(2) of the Motor Vehicle Act. [2] The Crown argues that because Mr. Goreham was driving motor vehicle on highway and his “driver’s license” was revoked he is guilty of the offence. [3] The Defence argues that it is not that simple. The defence position is that the words “motor vehicle” in Section 287(2) do not include an ATV and that even if those words did, the accused should be found not guilty because his license revocation is irrelevant since he could never have been licensed to drive an ATV on the highway. It is argued that since there is no nexus between his driving of the ATV and the revocation of his driver’s license he should be found not guilty of this offence. [4] The use of an ATV on public highways is clearly prohibited under the Motor Vehicle Act. Section 11 of the Act reads: S. 11 “The Department shall not register, and no person shall operate on highway......an all terrain vehicle.....” While note that section 12 of the Off-Highway Vehicles Act permits the operation of an ATV upon highway in very limited circumstances these provisions are not relevant to this case. Under the Motor Vehicle Act an individual driving motor vehicle upon highway must be properly licensed. Section 2(m) defines “driver’s license” as: S. 2(m) “”Driver’s license” means license issued under this act to drive motor vehicle upon the highway.” Section 64 reads: S.64 “Subject to Section 65 and Subsection (6) of Section 75, no person shall operate any motor vehicle upon highway in the Province unless such person has valid driver’s license under the provisions of this Act for the type or class of vehicle being driven.” Each licence is issued for type or class of vehicle, but since an ATV is prohibited vehicle under Section 11 there is no license that can be issued to drive one on the highway. [5] The defence argues that the words “motor vehicle” in section 287(2) should not be read to include an ATV or other vehicles prohibited from operation upon the highway by section 11. Section 287(2) reads: s. 287 (2) “A person shall not drive motor vehicle while his license or privilege of obtaining license is cancelled, revoked or suspended under this Act.” The words “motor vehicle” are defined in section 2(cd): s. 2(cd) “”motor vehicle” means vehicle, as herein defined, which is propelled or driven otherwise than by muscular power” [6] Despite this simple definition of “motor vehicle” the defence argues that R. v. Boutilier, [2002] N.S.J. No. 389 (N.S.S.C.) is authority for the proposition that an ATV is not motor vehicle within the meaning of the Act. Boutilier is case where the accused was charged with driving motor vehicle without proper insurance. Section 230(1) makes it an offence for person to operate “motor vehicle registered or required to be registered under this Act” unless there was proper insurance on the vehicle. In Boutilier the accused was operating an ATV on portion of the highway (a sidewalk). He did not have insurance. The Crown in Boutilier argued that although section 11 of the Act prevented the Registrar from registering an ATV it was still vehicle that was “required to be registered” since it was being driven on highway. They argued that section 37 of the Act made it an offence to operate motor vehicle on the highway that was not registered. The Crown asked the court to find that even though section 11 prevented an ATV from being registered, if it was motor vehicle being driven on the highway it must still fall within the definition of “motor vehicle that was required to be registered”. [7] In rejecting that argument and upholding the Adjudicator’s decision at trial at paragraphs 24 25, LeBlanc J. said: “Although the Appellant contends that the interpretation or definition section of the Motor Vehicle Act permits the inclusion of all-terrain vehicles as motor vehicles by virtue of the fact that they are not operated simply by muscular power; clearly, s. 11(2) of the Interpretation Act reminds us that this might be possible interpretation unless different intention is expressed or the meaning of the interpretation or definition section or provision is inconsistent with the content or purpose of the enactment. Certainly, it is obvious that the all-terrain vehicle must be excluded from the definition of the motor vehicle as different intention is clearly expressed.” [8] In making this ruling LeBlanc J. was clearly not exempting ATV’s from the definition of motor vehicles in all provisions of the Motor Vehicle Act. He was dealing with section 230(1) and the phrase “motor vehicle registered or required to be registered under this Act.” He held that an ATV was not such motor vehicle. [9] Justice LeBlanc’s intention to not exempt ATV’s from all references to “motor vehicles” in the Act became clear when he said at paragraph 37: “It is my view that Mr. Boutilier could be charged with an offence of operating motor vehicle on the highway, or for speeding and would be liable for any damages arising in the event of an accident.” This statement appears consistent with the decision in Lutz v. Judgement Recovery (N.S.) Ltd., [1993] No. 326. This case dealt with the issue of whether the Judgement Recovery provisions of the Motor Vehicle Act applied to situation where the defendant had been driving an ATV. At paragraph of that decision Hall J. said: “It seems absurd to suggest that lawfully licensed driver operating properly licensed automobile or truck on highway would be liable for violations of the Motor Vehicle Act such as speeding or imprudent driving, while person operating an off-highway vehicle on highway could not be subject to the same obligations and be liable for the same penalties for such violations” [10] It seems apparent, therefore, that one must consider the context in which the words “motor vehicle” are used within the sections of the Motor Vehicle Act to determine whether the provision applies to the use of ATV’s or other prohibited vehicles. When the content, context and purpose of section 287(2) is considered find that the legislature intended for that subsection to prohibit the use of motor vehicles on the highway by those individuals who had their licences or privilege of obtaining licences to do so cancelled, suspended or revoked. Before one can be guilty of such an offence find that it must be proven that they were driving motor vehicle of type or class for which they could properly have been licensed to drive on the highway. In s.287(2) the words “motor vehicle” include only those types or classes of vehicles for which one can obtain license to drive it on the highway. [11] In this case Mr. Goreham could not have obtained a license to drive an ATV on the highway because it was a prohibited vehicle. It was vehicle of the wrong type or class to get license. Mr. Goreham is, therefore, not guilty of driving a motor vehicle while his license was revoked and the charge under s. 287(2) is dismissed. [12] hasten to add that this does not mean Mr. Goreham’s conduct was lawful. In fact, he would certainly have been guilty of driving prohibited vehicle on the highway under s. 11, but that is not the charge before the court.","The accused was charged with driving a motor vehicle while his licence was revoked when he was found operating an all terrain vehicle (ATV) on a highway. Accused found not guilty; the accused could not have obtained a licence to drive an ATV on the highway because it is a prohibited vehicle. Before one can be found guilty of this offence, it must be proven that they were driving a motor vehicle of a type or class for which they could have been properly licenced to drive on a highway.",b_2008nspc5.txt
150,"1990 S.H. NO. 72667 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DONALD FRANK RIPLEY, and PAUL POMMIER, GEORGE DUNN and RENE JARRY and THE INVESTMENT DEALERS ASSOCIATION OF CANADA, Respondents HEARD: At Halifax, Nova Scotia, before The Honourable Madam Justice Elizabeth Roscoe, Supreme Court of Nova Scotia, Trial Division, in Chambers, on May 24, 1990. DECISION: May 29, 1990 COUNSEL: George MacDonald, Solicitor for the Applicant Robert Barnes and A. David MacAdam, Solicitors for the Respondents ROSCOE, J.: This is an application by Donald Frank Ripley for an interim injunction restraining the respondents from further proceedings against the applicant in respect of charges prosecuted against the applicant pursuant to the constitution, by‑laws and regulations of the Investment Dealers Association of Canada (I.D.A.). The application for the interim injunction is made pending the outcome of an application for certiorari quashing the decision of the disciplinary panel of the I.D.A. which application will be heard in the Supreme Court Trial Division on September 6, 1990. The application for certiorari is joined with an application for an order in the nature of prohibition restraining the I.D.A. from taking any further proceedings against Mr. Ripley. The history of the proceedings leading up to this application is lengthy and is contained in the affidavits of Douglas Caldwell and Mary Margaret Fox, which were filed on this application. Further details of the background to the proceedings are found in the decision of Nathanson, J. in Ripley v. Investment Dealers Association of Canada et al (1988), 86 N.S.R. (2d) 437, arising from similar application made in May, 1988. In January, 1988 the I.D.A. brought six charges of professional misconduct against Mr. Ripley, in his capacity as an investment dealer and member of the association. In accordance with its by‑laws, Business Conduct Panel was eventually appointed to hold hearings to determine the validity of the charges against Mr. Ripley. The application for an interim injunction heard by Nathanson, J. in May, 1988 was made by Mr. Ripley for the purposes of restraining the I.D.A. from proceeding with the disciplinary hearing on the basis of apprehension of bias on behalf of the I.D.A. and the disciplinary panel. The interim injunction was granted by Nathanson, J., who concluded his decision by saying at page 442: ""Ought an injunction issue to restrain the occurrence of future event? The point is dealt with in Sharpe on Injunctions and Specific Performance (Canada Law Book, 1983), at para. 481 on p. 244 where the learned author expresses the opinion that plaintiff should be granted the protection of an injunction to enjoin litigants before an inferior tribunal where those proceedings are 'abusive or vexacious'. In McFetridge v. Nova Scotia Barristers' Society (1981), 45 N.S.R. (2d) 319; 86 A.P.R. 319, MacKeigan, C.J.N.S. at p. 322, stated that the court should not interfere by interim injunction except in 'very special circumstances, e.g. where it is necessary to obtain time for the court to adjudicate the issue and where the consequences of not staying the lower proceedings would be serious and irreversible'. am bound by Chief Justice MacKeigan's test. Although the hearing before the tribunal might result in the charges being either substantiated or rejected, find on balance of probabilities arising from the facts of this most unusual case that it is necessary to obtain time for the court to adjudicate the issues arising from the special circumstances of the case, and that the consequences of not staying the proceedings of the tribunal until after trial would be serious and irreversible. Although the court is reluctant to enjoin the I.D.A. from holding the hearing, that finding overcomes its natural reluctance to enjoin such future event. The court has not judged the merits of the principal action. But, the court is willing to exercise its discretion in favour of the application of the plaintiff being granted. An interim injunction will issue restraining the I.D.A. pending trial from holding disciplinary hearing with respect to the charges laid against the plaintiff."" The decision of Nathanson, J. was reversed by the Appeal Division of the Supreme Court of Nova Scotia in decision reported at 86 N.S.R. (2d) 434. In his decision, Hart J.A. noted the similarities between the Ripley case and McFetridge v. Nova Scotia Barristers' Society and quoted the same portion of the decision as Nathanson, J. had. However, Hart, J. A. went on to say at p. 436: ""We are unanimously of the opinion that Mr. Justice Nathanson erred as did Burchell, J. in the granting of the injunctive relief that he did. This court should be reluctant to interfere with the affairs of domestic tribunal such as the I.D.A. It should be permitted to carry on with the procedures adopted by its members. Should it fail to follow the course of natural justice, the respondent has his remedies to pursue. It would be premature to say at this stage that the respondent would not receive fair hearing under the Constitution of the Association of which he is member."" (emphasis added) After the injunction was set aside by the Appeal Division, the I.D.A. appointed two substitute members to the disciplinary panel and proceeded with lengthy hearing on the charges against Mr. Ripley. Numerous witnesses were called on seventeen days spanning several months. The hearings ended in June, 1989 and on February 5, 1990 the decision of the panel was rendered, finding Mr. Ripley guilty of four of the charges against him. The by‑laws of the I.D.A. authorize the panel to impose various penalties for each of the offences including reprimand, fine of up to $100,000.00, suspension of approval as member and revocation of approval as member. After its decision, Alan Stern, counsel for the disciplinary panel, after correspondence with Mr. Ripley's counsel and counsel for the I.D.A., scheduled hearing with respect to the penalties to be imposed upon Mr. Ripley for May 4, 1990, that being date convenient to all counsel. By letter dated March 12, 1990 Mr. Stern wrote to each of the counsel confirming the date of the hearing and asking if any of them intended to call witnesses at the penalty hearing. By letter dated April 9, 1990 Douglas Caldwell, Mr. Ripley's counsel, advised Mr. Stern that he did not have any instructions to call witnesses at that point. Then on April 26, 1990, Mr. Caldwell wrote to Mr. Stern advising that Mr. Ripley ""is medically unable to attend at the I.D.A. hearing on May 4th according to the opinion of his doctor"" and requested that the hearing be adjourned until such time as Mr. Ripley was medically able to attend. In his letter Mr. Caldwell enclosed two medical opinions, one dated June 12, 1989 (which was prior to the conclusion of the first hearing) and which indicated that it would be detrimental to Mr. Ripley's mental and physical health if he were required to attend the I.D.A. hearings because of state of ""anxiety and depression"". The second letter, from the same doctor, was dated February 7, 1990 and was addressed to Mr. Ripley's new employer. That letter indicated that Mr. Ripley should take time off from his work for an indefinite period because of the stress and demands of his work. On April 30, 1990 Mr. Stern wrote to all counsel involved indicating ""that the Panel wishes to proceed on May 4, 1990, if at all possible. If it is the wish of Messrs. Caldwell and MacDonald not to proceed with submissions at that time, the Panel would like to have the matter of penalty done by written submissions to be received by May 31, 1990 at the latest."" Mr. Ripley's counsel then sent to Mr. Stern on May 2nd letter of the same date from another doctor of Mr. Ripley's, which indicated Mr. Ripley had been advised to ""stay out of the investment business for an indefinite period of time until he has sufficiently recovered to cope with the daily stresses of the business. Under no circumstances should he be expected to attend hearings or be involved in the investment business until either Dr. Shane or myself have advised him to do so."" The response of the disciplinary panel was to cancel the hearing scheduled for May 4th. Counsel were advised that the panel would consider written submissions to be filed by May 31, 1990. The letter from Mr. Stern indicated ""the submissions may include any material related to appropriate penalties, including declarations or letters from individuals who may wish to make statements in support of Mr. Ripley."" The by‑laws of the I.D.A. that deal with the imposition of penalties on one of its members are as follows: 7.6 District Council shall not refuse approval of an applicant for approval as partner, director or officer or impose any of the penalties provided for in By‑law 7.5 unless the partner, director or officer shall have been given the opportunity to be heard at meeting called and held in accordance with the provisions of By‑law 18.6 and the provisions of By‑laws 18.6 to 18.11, inclusive, shall apply mutatis mutandis with the substitution of partner, director or officer for applicant for approval as registered representative or registered representative, as the case may be, and the substitution in such By‑laws of references to the appropriate sections of By‑law for references to the sections of By‑law 18, as the context requires. 7.7 Business Conduct Committee having jurisdiction in District in which partner, director or officer is acting as such shall have the right to impose any of the penalties referred to in By‑law 7.5(c) at meeting of the Business conduct Committee (in lieu of the applicable District Council at meeting held pursuant to By‑law 7.5) and the provisions of By‑laws 18.6 to 18.8, inclusive, shall apply mutatis mutandis with the substitution of Business Conduct Committee for the applicable District Council, as the context requires. 18.6 District Council shall not refuse approval of an applicant for approval as registered representative or the transfer of registered representative, or impose any of the penalties provided for in By‑law 18.5 with respect to registered representative unless it shall have summoned the applicant for approval or the registered representative, as the case may be, before meetingof such Council, of which at least forty‑eight hours' notice shall be given to the applicant for approval or the registered representative, as the case may be, and to the Member concerned, which notice shall be in writing, state the time and place of the meeting, specify the purpose of the meeting, state the statutory authority, if any, pursuant to which the hearing is held and state that if the registered representative does not attend at the meeting the District Council may proceed in his absence and he will not be entitled to any further notice. The applicant for approval or registered representative, as the case may be, the Member and the Director of Compliance, his staff or other person designated by the Board of Directors shall be entitled to appear and be heard at the meeting and shall be entitled to be represented by counsel or an agent and to call, examine and cross‑examine witnesses. If the applicant for approval or registered representative, as the case maybe, fails to appear at such meeting when summoned, the applicable District Council may exercise any of its powers pursuant to By‑law 18.5 in his absence. The District Council may in any case in its discretion require that the applicant for approval or registered representative pay the whole or part of the costs of the proceedings before the Council and of any investigation relating thereto. (emphasis added) The argument of Mr. Ripley, in support of his application for an interim injunction, is that the disciplinary panel, if it is allowed to proceed in the manner they have chosen, will be acting in contravention of the I.D.A. by‑laws that provide that Mr. Ripley is entitled to be present, to be heard and to call and examine and cross‑examine witnesses. They argue that, because of Mr. Ripley's poor health, he is unable, at this time, to instruct his counsel and his counsel stated at the hearing of this application that if the injunction is not granted, no submissions will be made by Mr. Ripley to the disciplinary panel with respect to penalties. In his oral argument on the application, Mr. Ripley's counsel reviewed some of the documents and exhibits, that have been filed on the application for certiorari and prohibition to be heard in September, for the purpose of proving that there is serious issue to be tried at the September hearing. They will be arguing, in September, that the apprehension of bias that they claimed existed at the time of the hearing before Nathanson, J. has turned out to be actual bias. In addition, they will submit that the disciplinary panel acted without jurisdiction and that there was denial of natural justice illustrated by several examples of unfair procedures, both before and during the hearings. Mr. Ripley's counsel submits that this is one of the ""very special circumstances"" referred to in McFetridge v. Nova Scotia Barristers' Society because ""the consequences of not staying the lower proceedings would be serious and irreversible"". They further submit that the normal test in interim injunction cases established by American Cyanamid Company v. Ethicon Limited, [1975] A.C. 396 has been met in that the applicant has established that there is serious question to be tried, that Mr. Ripley will suffer irreparable harm if the injunction is not granted and that, on the balance of convenience test, the disciplinary panel would not suffer any damages if the interim injunction is granted. The argument presented by counsel for the I.D.A., in opposition to the application for an interim injunction is that the penalty hearing is not new hearing of the disciplinary panel but simply reconvening of the proceeding and that, therefore, the decision of the Appeal Division, in setting aside the interim injunction granted by Nathanson, J., that it is premature to interfere with the affairs of domestic tribunal is still applicable at this time. The I.D.A. argues that this is just one more attempt, by Mr. Ripley, to stall the proceedings. They refer to the Appeal Division's decision in McFetridge v. Nova Scotia Barristers' Society where it is said that the test in American Cyanamid does not apply to these fact situations. They further argue that it is against the public interest and the interest of other members of the I.D.A. to allow person, who has been convicted of serious charges, to indefinitely postpone the imposition of penalty. It is further submitted, on behalf of the I.D.A., that the medical evidence presented by Mr. Ripley to the disciplanary panel and to the court on this application is flimsy. They point out that the first medical opinion was in existence at the time Mr. Ripley's counsel presented their final argument to the disciplinary panel in June, 1989 and further that none of the medical opinions even mentions that Mr. Ripley is not able to instruct counsel. It is further submitted, on behalf of the I.D.A., that the by‑laws, quoted above, permit the hearing with respect to penalties to take place in the absence of the member, if the member elects not to appear at the hearing. Mr. Ripley was given the opportunity to present oral evidence and attend at the hearing, but he is electing not to do so. It is further submitted that it is ""preposterous"" that Mr. Ripley is unable to give instructions for the penalty hearing when he was presumably able on May 3, 1990 to give instructions to his counsel to file the application in this Court for certiorari and prohibition and on May 11th to give instructions to bring this application for an interim injunction. With respect to the argument that Mr. Ripley would suffer irreparable harm if the interim injunction is not granted, counsel for the I.D.A. argues that the possibility that Mr. Ripley's approval, to work as an investment dealer, would be suspended or revoked pending the September court hearing, will not harm Mr. Ripley because, according to his medical evidence, he is unable to work in any event. With respect to the publicity and harm to the reputation of Mr. Ripley, if the penalties are imposed, it is argued that it was Mr. Ripley who released the decision of the disciplinary panel to the public and the press. In determining the issues presented in this case, find first of all that if the American Cyanamid test were to be applied that the applicant would have satisfied the requirements for an interim injunction. would not have had any difficulty making the same findings that Nathanson, J. did in the application for an interim injunction before him, that is, that there is serious question to be tried, that the applicant has reasonable prospect of success, that the balance of convenience favors the applicant, that the applicant is likely to suffer irreparable harm not compensable in damages, and that there are very special circumstances involved in this case. However, am bound by the Appeal Division's decisions in McFetridge v. Nova Scotia Barristers' Society and Ripley v. Investment Dealers Association of Canada et al and am unable to distinguish those cases from this. In McFetridge v. Nova Scotia Barristers' Society, Burchell, J., the trial judge, imposed an injunction of the same type which is requested now, that is, restraining the Bar Society from ordering disciplinary action against Mr. McFetridge in the event that he was found guilty of professional misconduct. The Appeal Division found that the American Cyanamid test was not applicable and that the court should not interfere with the proceedings of a quasi judicial or other tribunal by interim injunction or stay except in very special circumstances. Again, in Ripley v. Investment Dealers Association of Canada et al the Appeal Division found that the circumstances that Mr. Ripley was found to be in did not meet that test. Since the hearing, which the Appeal Division found should continue, has not yet been completed, must find that it is still premature to enjoin the disciplinary process prior to its conclusion. For these reasons, the application for an interim injunction isdismissed, without costs. HALIFAX, NOVA SCOTIA J. May 1990 1990 S.H. NO. 72667 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DONALD FRANK RIPLEY, and PAUL POMMIER, GEORGE DUNN and RENE JARRY and THE INVESTMENT DEALERS ASSOCIATION OF CANADA, Respondents","This was an application for an interim injunction restraining the respondents from further proceedings against the applicant, in particular restraining a sentencing hearing, in respect of charges of professional misconduct. The application was made pending the outcome of an application for certiorari quashing the decision of the disciplinary panel. The Appeal Court had refused to issue an interim injunction restraining the disciplinary hearing, holding that the courts should not interfere with the tribunal's proceedings until its completion except in very exceptional circumstances. In the case at hand, the applicant's counsel had requested an adjournment of the sentencing hearing on the ground that the applicant was medically unable to attend. The respondent's counsel then sought to settle the matter of penalty by written submission. The respondent's by-laws respecting penalty provided that the applicant shall be given the opportunity to appear and be heard. Dismissing the application for an interim injunction, that because the sentencing hearing was merely an extension of the disciplinary proceedings, rather than a new proceeding, the court was bound by the Appeal Court decision which held that the Court should not interfere with the proceedings of a quasi-judicial or other tribunal by interim injunction or stay except in very exceptional circumstances, which requirement, the Appeal Court had concluded, the applicant did not meet.",1990canlii4096.txt
151,"nan Date: 02/01/24 Docket: S.H. No. 173663 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Shooters Sports Inc. v. Municipality of East Hants, 2002 NSSC 020] BETWEEN: SHOOTERS SPORTS INC., body corporate and MUNICIPALITY OF EAST HANTS, body corporate nan HEARD BEFORE: The Honourable Justice David W. Gruchy, in chambers PLACE HEARD: Halifax, Nova Scotia DATE HEARD: December 19, 2001 DECISION: January 24, 2002 COUNSEL: Robert Belliveau, Q.C. and Robert Currie for the applicant Anne-Marie MacDougall for the respondent GRUCHY, J.: [1] This is an application for an order to declare that the Land Use By-law of the respondent permits the operation of a licensed billiard club open to the public at 192 Highway #2, Enfield, Nova Scotia. [2] In December, 1995, the applicant commenced the process whereby it eventually established private pool hall licensed to sell alcoholic beverages at the above location. The area in which the pool hall is located is within an area of the respondent known as the Village of Enfield and which is subject to the respondent's Land Use By-laws. [3] The premises is located is in land use zone known as ""Core Village"". The applicant has operated the billiard club since June, 1997 and has had ""special premises liquor license"" granted by the Alcohol and Gaming Authority of the Province of Nova Scotia. That license has allowed the sale of liquor, subject to certain restrictions including the following: 4. This license is for the use of members of the club only and not the general public. 5. No advertising of the availability of liquor service shall be permitted. 6. Access to the club shall only be obtained by way of card/key system. 7. member can only sign in two (2) guests at any one time. 9. book must be maintained in manner suitable to the Board in which the name of members entering the club on specific date is recorded along with any guests of the member. 10. No entertainment permit shall be issued in respect of this license. 15. The maximum days and hours of operation are as follows: Monday to Saturday 10:00 a.m.- 1:00 a.m. Sunday 12:00 noon 1:00 a.m. [4] On July 17, 2000 the respondent amended its Land Use By-laws whereby the permitted uses in Village Core (C6) Zone were set forth as follows: 8.7.1 PERMITTED USES No development permit shall be issued in the Village Core (C6) Zone except for one or more of the following uses. Lawfully existing uses nan Retail trade establishments as follows: furniture and home furnishings stores, electronics and appliances, building material and supplies dealers, nursery and garden centres, food and beverage stores, health and personal care stores, clothing and clothing accessories, sporting goods, hobby, book and music stores, and miscellaneous store retailers (with the exception of manufactured home dealers) nan Accommodation and food services as follows: bed and breakfasts, full-service restaurants **, limited service eating places (with the exception of drive-through restaurants), and special food services ** Taverns, night clubs, bars, lounges, and pubs will be considered by development agreement only. [5] According to the affidavit of Albert Walker, the president of the applicant, the premises was operated within the restrictions imposed by the Alcohol and Gaming Authority as club. It consisted of pool tables, as well as full-bar service and various snacks which could be purchased at the bar. It is common ground that this operation was conforming use of the Land Use By-law as it then existed. [6] In October, 2000, Mr. Walker says, he made the decision to build kitchen facilities for the club and received development permit from the respondent on December 4, 2000, pursuant to which kitchen was constructed and completed in May, 2001. He then decided, as well, to change the liquor license from that of ""special premises liquor license"" to ""restaurant and lounge license"". As he was familiar with the Nova Scotia Alcohol and Gaming Authority practices and its requirement that he should supply confirmation from the municipality that the proposed license would be in conformity with the Land Use By-law he requested of the respondent letter to that effect. He did not apply for development permit. [7] The respondent, by its development officers, replied in various correspondence, in effect, that a development agreement would be required as, apparently, they considered such a change to be a change of use. Mr. Grant C. Bain, the Director of Planning and Development of the respondent in letter dated July 20, 2001 to the applicant said: At this time, am confirming that the decision of the Development Officer, Ian Young constitutes the position of the Municipality on this issue. Our interpretation of the Land Use By-law is that, although both the existing use and proposed use are defined as drinking establishments, different types of licensed premises are defined separately based on the type of license they require. For example, club is defined differently than lounge. For reference, am attaching copy of definition #69 from the Municipality's Land Use By-law. Staff consider that the proposal for lounge on this property would be change in use, and would therefore be subject to development agreement. To add some explanation to the requirement for development agreement, it is felt that establishments which have certain types of liquor licenses have the potential to significantly impact the use and enjoyment of adjacent of [sic] nearby properties. development agreement is able to contain terms and conditions to mitigate, or at least minimize these impacts. In reference to the Shooters establishment, the changeover from the existing use to lounge would potentially create issues which don't already exist, or worsen issues which do. For example, having lounge license would permit Shooters to open their doors to the public rather than being restricted to private membership, hours of operation could be as late as 2:00 a.m. rather than the present 1:00 a.m., and it is possible that live entertainment would be permitted under lounge license. These issues present potential problems regarding additional traffic, noise and other off-site impacts, which are best addressed through development agreement. [8] The definitions to which Mr. Bain referred in his correspondence to the applicant included definitions of ""club"" and ""lounge"" as follows: 69. Licensed Premises means any premises for which license has been issued by the Nova Scotia Liquor License Board and is in effect in accordance with the Liquor License Board Regulations made under Section 50 of the Liquor Control Act, R.S.N.S., 1989, c.260. Licensed Premises include: c. Club means company or association that is operated solely for the objects of national, social, patriotic, political, or athletic nature, or the like, but not for pecuniary gain, which is also Licensed Premises serving liquor in accordance with Section 43 of the Liquor License Board Regulations as amended up to and including O.I.C. 92-908, N.S. Reg. 196/92, dated Sept. 8, 1992. Liquor may be sold 10:00 a.m. to 1:00 a.m. the next morning. d. Lounge means Licensed Premises which serves beer, wine, and spirits in accordance with Section 31 of the Liquor License Board Regulations as amended up to and including O.I.C. 92-908, N.S. Reg. 196/92, dated Sept. 8, 1992. Liquor may be sold Monday to Saturday 11:00 a.m. to 2:00 a.m. the next morning and Sunday 12:00 p.m. to 2:00 a.m. the next morning, unless an individual license specifies otherwise. [9] The respondent's position with respect to this application is set forth in para. 15. of the affidavit of Ian Young the Development Officer of the Municipality of East Hants as follows: 15. THAT the present use of the Shooters property as private pool hall with special premises liquor license is permitted use in C6 zone. The present use is therefore not non-conforming use. If Shooters is to operate as ""lounge"" or as billiards club, open to the public, with liquor license, it will require lounge license. development agreement would therefore be required as that is new use, and one that is significantly different from its former use as private pool hall. [10] That position sets forth the crux of the question now before me. That is, will the change of the liquor license sought by the applicant constitute a change in use requiring a development permit? [11] The Municipality's position taken before me is firstly that the applicant has not complied with the Municipal Government Act, S.N.S. 1998, c.18. That is, the applicant ought to have applied for development permit and then, if it was refused, that refusal should have been appealed to the Nova Scotia Utility and Review Board. The applicant, however, has taken the position that it is not proposing ""development"" within the meaning of the by-law and accordingly, no application for development permit was necessary. [12] The respondent has also brought to my attention other definitions of the By-law as follows: 13. Billiard/Snooker Club means private commercial establishment for the primary purpose of playing pool, and/or billiards, and/or snooker and requiring membership/registration as Joint Stock Company. 33. Development means any erection, construction, alteration, demolition, replacement, relocation, or addition to any structure, and any change or alteration in the use of land or structures. 34. Development Permit means permit, other than building permit, issued by the Development Officer which indicates that proposed development complies with the provisions of the Land Use By-law. 35. Drinking Establishment means an establishment, licensed by the Nova Scotia Liquor Licensing Board, in which alcoholic beverages are served for consumption on the premises, and any preparation or serving of food is accessory thereto, and includes licensed lounge that is ancillary to restaurant. Drinking establishment includes tavern, lounge, and/or cabaret. [13] The applicant's position is that in these circumstances there is no appeal to the Utility and Review Board. It says that its proposal is not ""development"" within the meaning of that word as defined by the By-law; nor is it development within the meaning of that word as defined by the Municipal Government Act which is as follows: Interpretation 191 In this Part and Part IX, unless the context otherwise requires nan (c) ""development"" includes the erection, construction, alteration, placement, location, replacement or relocation of, or addition to, structure and change or alteration in the use made of land or structures; The applicant says that it has not proposed development as it has not proposed any change or alteration in the use made of its property within these definitions. [14] Appeals to the Utility and Review Board are governed by ss.247 and 250 of the Municipal Government Act, the relevant portions of which read: Appeals to the Board 247(3) The refusal by development officer to (a) issue development permit; (b) approve tentative or final plan of subdivision, may be appealed by the applicant to the Board. 1998, c.18, s.247. nan Restrictions on appeals 250 (1) An aggrieved person or an applicant may only appeal (a) an amendment or refusal to amend land-use by-law, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; (b) the approval or refusal of development agreement or the approval of an amendment to development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; (c) the refusal of an amendment to development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy and the intent of the development agreement. (2) An applicant may only appeal refusal to issue development permit on the grounds that the decision of the development officer does not comply with the land-use by-law, development agreement, an order establishing an interim planning area or an order regulating or prohibiting development in an interim planning area. [15] The applicant says there is no ""decision"" of development officer which may be appealed to the Board. agree with that position. It is apparent from the development officers' correspondence that they decided the proposal of the applicant will constitute ""change in use"" and accordingly the applicant must proceed to attempt to obtain development agreement. But it is clear, in my opinion, that if the proposal does not constitute ""change in use"" then no application for development permit is necessary and the development agreement process is not applicable. [16] It is clear that initially, the development officers considered the present use of the subject property as licensed billiard club to be non-conforming use. The respondent, correctly in my view, has resiled from that position and now states that the present use is conforming use. It is therefore unnecessary to consider the ramifications or results of possible change of non-conforming use. [17] The essential issue for consideration is whether the change proposed by the applicant is ""change in use"". The word ""use"" is not defined in either the By-law or the Municipal Government Act. It has, however, been the subject of judicial and academic discussion. Rogers, Canadian Law of Planning and Zoning (Toronto: Carswell), at p.210.26 said: The question is what constitutes ""use"". It means holding or occupying property or the employment of property for enjoyment, revenue or profit without in any way diminishing or impairing the property itself. [18] Further, at p.210.20(4) while addressing the matter of non-conforming uses, Rogers set forth the underlying policy for the protection of existing uses and said: The basis for legislative protection of existing contravening uses is preservation of property rights and the reluctance to forfeit them without compensation. The natural justice concept prevents the violation of such rights and permits an owner to retain the value which he or his predecessor in title created in his property at time when the law permitted him to do so. The community has an interest in the continuation of such value notwithstanding that the property it protects would not be considered desirable development of such land in the light of good planning principles, although it is not necessarily detrimental to the rest of the conforming community. While the above comment was made in reference to non-conforming uses, it seems to me to have application as well to conforming uses. [19] In Regina v. Grandview Holdings Co. Ltd. (1965), 1965 CanLII 580 (BC SC), 53 D.L.R. (2d) 276 (B.C. Co. Ct.) Macdonald, J. of the B.C. County Court stated at p. 278: The word ""use"" in the context of the definition of development contained in the Vancouver Charter simply means employment or application for some purpose. There is change in use when one purpose of the employment or application is abandoned and another purpose substituted for it. [20] The applicant's present establishment falls within the definition of ""drinking establishment"" as that term is defined in the By-law, set forth above. That is the ""purpose"" of the business. The various subcategories of defined drinking establishments all fall within that primary definition. The change proposed by the applicant will only have the effect of moving the applicant's use from one subcategory of drinking establishment to another. The premises as it currently exists constitutes an establishment wherein liquor and food are served in conjunction with the operation of the pool hall. The proposed change will have the effect of making it publicly accessible and with certain changes in the closing hours. [21] My learned colleague Justice Davison considered the matter of ""change of use"" in Dartmouth (City) v. Ramia (1990), 1990 CanLII 4115 (NS SC), 99 N.S.R. (2d) 50 (S.C.T.D.) when he considered whether change from grocery store to an establishment which could additionally sell pizzas and donairs constituted change of use. He said at p.54: [17] Has there been change in use? The premises has been neighbourhood grocery store for decades. The character of grocery stores has changed considerably over the years to the point where many grocery stores are referred to as ""convenience stores"". Undoubtedly, the emergence and growth of major food chains have contributed to the change in the smaller neighbourhood stores. [18] Corner stores are now selling multitude of wares which have no resemblance to food e.g. video tapes and magazines. It cannot be said that the addition of these new products amount to change in use. [19] The city takes the position that the delivery of the products to homes and the preparing of food on the premises are the factors which indicate ""change in use"". In years gone by delivery of groceries from small stores to private homes was commonplace. [20] The burden is on the city to prove change in use. The development officer said there was change in use. The building inspector said there was not change in use. [22] Use of premises as restaurant is distinct change from use of premises as store. But at what point between the two extremes can it be said that the use of the premises has changed? restaurant which sells bakery products does not change its use anymore than the use of premises as store changes because sandwiches are prepared and sold on the premises. It is question of fact as to when the character of the property changes to the extent it can be said there has been change in use. am not prepared on the evidence before me to find there has been change in use. Justice Davison's decision was affirmed by the Nova Scotia Court of Appeal (1991), 1991 CanLII 2549 (NS CA), 107 N.S.R. (2d) 170. [22] In Campbellton (City) v. Thompson et al. (1994), 1994 CanLII 6518 (NB CA), 151 N.B.R. (2d) (N.B. C.A.), the New Brunswick Court of Appeal considered whether there was ""change of use"" where the change consisted of the introduction of new process in rock quarry so that new or different grades of crushed rock would be produced. Chief Justice Hoyt addressed the matter of ""whether the essential general use of the lands has been changed"". [10] Using that test, cannot say that it has. The essential general use of the quarry will not change. The quarry will continue to produce sized rock. Nothing is being added to the rock to change its character or quality. new technique is being used, but the use of the land is not changed. If, as the judge predicted, there is more noise, dust, traffic and machinery on or from the site as result of the crusher's use, other remedies may be available. We have here, however, zoning case, not one in nuisance. [11] In sense, such determination results in generous, as opposed to narrow, interpretation of quarry's use. [23] Very recently (December 5, 2001) in Saint-Romuald (City) v. Olivier (2001), 2001 SCC 57 (CanLII), 204 D.L.R. (4th) 284 (S.C.C.) the Supreme Court of Canada considered the matter of changes of use from non-conforming use to another non-conforming use. While the instant case does not fall squarely within the parameters of that consideration, the majority opinion enunciated by Binnie, J. gives me very helpful guidance. The establishment there considered by the court was nightclub which had featured as entertainment country and western music. It had changed that entertainment to nude dancing. The question therefore arose as to whether such change amounted to change in use. While the case involved, to certain extent, consideration of the civil law doctrine of ""acquired rights"" by legal non-conforming uses (a concept embraced by judicial interpretation in the common law provinces City of Toronto v. Wheeler (1912), 1912 CanLII 513 (ON SC), D.L.R. 352 (Ont. H.C.)) Mr. Justice Binnie's consideration of the law with respect to change of use must be considered. He recognized the tension and interplay between the role of zoning and the protection of private property rights. He emphasized that planning law is not substitute for the common law of nuisance. (In the instant case also point out that in addition to the law of nuisance the Nova Scotia Alcohol and Gaming Authority has authority to intervene for the protection of neighbouring property owner's rights). Mr. Justice Binnie said at paras. [11] The objection to more sophisticated land use controls, when they emerged as an instrument of good government, was that they were to some extent confiscatory of the owner's rights: see Dinnick v. McCallum (1913), 28 O.L.R. 52 at p.58, 11 D.L.R. 509 (C.A.); Regina Auto Court v. Regina (City) (1958), 1958 CanLII 164 (SK QB), 25 W.W.R. 167 (Sask. Q.B.) at pp. 168-69; and Canadian Occidental Petroleum Ltd. v. North Vancouver (District) (1983), 1983 CanLII 539 (BC SC), 148 D.L.R. (3d) 255 (B.C.S.C.) at p.269. [12] To counter the concern about confiscation without compensation, lawful existing uses came to be protected under the concept of ""acquired rights"" both under the Civil code in Quebec, and by judicial interpretation in the common law provinces: Toronto (City) v. Wheeler (1912), 1912 CanLII 513 (ON SC), D.L.R. 352 (Ont. H.C.), per Middleton J., at p.353: ... it is, think, sound principle that the Legislature could not have contemplated an interference with vested rights, unless the language used clearly required some other construction to be given to the enactment. See also R. v. Howard (1884), O.R. 377 (Q.B.) at p. 381; and R. v. Clark Bros. Hughes Ltd., 1924 CanLII 476 (MB CA), [1925] D.L.R. 49 (Man. C.A.) at pp.51 and 53. [13] It is against that background that the modern regime of land use controls, with their inherent tension between the owner's interest in putting its own property to what it regards as the optimal use and the municipality's interest in having all of the land within its boundaries organized in plan which it thinks will maximize the benefits and amenities for all inhabitants, should be interpreted. [24] Justice Binnie recognized that permitted uses (or legal non-conforming uses) should be interpreted with flexibility so as to accommodate ""the real and reasonable expectations"" of the landowner, brought about by ""normal evolution"". That is, the intensity of the legal use may be increased so as to ""adapt to the demands of the market or the technology that are relevant to it"". [25] Mr. Justice Binnie made it clear that acquired rights or the common law equivalent of those rights relate only to the status quo. He said, in reference to the dissenting opinion of Mr. Justice Gonthier, at para. [4] The facts and applicable enactments are outlined in my colleague's reasons for judgment. fully agree with his rejection of the ""categorical"" approach. This is the theory under which an owner, whose use of land does not conform to new by-law, nevertheless has an ""acquired right"" to expand, alter or modify an existing use to include anything and everything permitted on that land under the ""use category"" defined in the prior law (if indeed there was prior law). ... ... the ""categorical"" approach is wrong in principle and will often deliver result that unduly favours individual landowners at the expense of the community interest. The protected ""acquired right"" properly relates only to the status quo. It does not protect potential or contemplated use that has never materialized. similar rule prevails in the common law provinces: see Heutinck v. Oakland (Township) (1997), 1997 CanLII 1284 (ON CA), 42 M.P.L.R. (2d) 258 (Ont. C.A.) ... [26] The phrase ""status quo"" relates to the use or physical activity to which the property in question is put. [27] Mr. Justice Binnie addressed the intensity and type of use of the premises in question. He was able to examine retrospectively the effect the change of entertainment had on the premises and on the neighbourhood. In my consideration herein, intensity may only be considered prospectively as have no evidence before me on that subject. [28] With respect to type of use Mr. Justice Binnie said at p.297: B. Type of Use [29] The appellant argues that nightclub offering western music is different type of use than nightclub presenting nude dancers. This is the real battleground between the appellant and the respondents. [30] ""use"" may include number of activities. nightclub, as stated, serves food and drink and provides entertainment. The question here is how many of these activities, and of what nature, can be added, subtracted or modified before it can no longer be called the same ""type"" of use? [29] Mr. Justice Binnie then examined the cases of R. ex rel.. Skimmings v. Cappy and Smith (1952), 1952 CanLII 280 (ON CA), 103 C.C.C. 25 (Ont. C.A.); R. v. Kelly Landscape Contractors Ltd. (1980), 13 M.P.L.R. 67(Ont. Co. Ct.); Campbellton (City) v. Thompson (1994), 1994 CanLII 6518 (NB CA), 151 N.B.R. (2d) (C.A.) and Lordon v. Pitman (1980), 33 N.B.R. (2d) 23. He then concluded at para. [34] In my view, both remoteness and neighbourhood effects have role to play in the proper disposition of this type of case. Each contributes to what Gonthier J. refers to as the real and natural expectation of the landowner. The Court's objective is to maintain fair balance between the individual landowner's interest and the community's interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about change in the type of use, as mentioned above; or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose) is seen by the Court as too remote from the earlier activities to be entitled to protection; or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another. ... Mr. Justice Binnie continued at para.[35]: nan It stands to reason that in attempting to accommodate the landowner's real and natural expectation of the continuation of the status quo, and to properly maintain the balance between the interests of the landowner and the community, the Court should also have these ""neighbourhood effects"" in mind in considering the situation of landowner who has somewhat modified or extended pre-existing activities within the same general use category. The adverse impact of neighbourhood effects generated by added or modified activities constitutes one of the guiding principles under the somewhat different regulatory systems in Britain ... In those jurisdictions, as in Canada, planning is concerned not only with the physical use of land but also with any adverse effects of such uses on the surrounding area. It is appropriate to carry that concern forward into the Court's consideration of added, altered or modified activities which are claimed to be protected by the prior existing use. [30] While Mr. Justice Binnie was dealing with the question of prior existing use of non-conforming nature, his observations appear to have equal application to the rights of property owner acquired by virtue of conforming use. [31] Mr. Justice Binnie then set forth summary of his approach as follows: C. Summary of Approach [39] therefore approach the issue of limitations on the respondents' acquired rights as follows: 1. It is firstly necessary to characterize the purpose of the pre-existing use ((Central Jewish Institute, supra). The purpose for which the premises were used (i.e. ""the use) is function of the activities actually carried on at the site prior to the new by-law restrictions. 2. Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond matter of degree and constitutes, in terms of community impact, difference in kind (as in the hypothetical case of the pig farm discussed above), the protection may be lost. 3. To the extent landowner expands its activities beyond those it engaged in before (as where custom picture-framing shop attempted to add landscaping business in Nepean (City) v. D'Angelo (1998), 49 M.P.L.R. (2d) 243 (Ont. Ct. (Gen. Div.)), the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate ""neighbourhood effects"". 4. To the extent activities are added, altered or modified within the scope of the original purpose (i.e. activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner's interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g., the addition of rock crusher in residential neighbourhood is likely to be more disruptive than the addition of fax machine). The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities. 5. Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon. 6. The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use. Here, for example, the pre-existing use is nightclub business which in its nature requires renewal and change. That change, within reasonable limits, should be accommodated. 7. While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court's decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments, such as whether nude dancing is more or less deplorable than cowboy singing. am unable, with respect, to accept as legally relevant my colleague's observation that ""[w]hereas erotic entertainment seeks to sexually arouse the audience by the stripping and suggestive behaviour engaged in by the performers, country and western shows seek to entertain by providing showcase for the special talents of singers, musicians or dancers"" (para.76). Serious music is also commonly thought to arouse the passions profoundly, but in terms of acquired rights, music stores should not be differentiated by whether they offer Muzak or Mozart. [32] will therefore now approach the issues before me in the same fashion. 1. It is apparent that the purpose of the use to which the premises were put included the sale of liquor and food, together with the entertainment of billiards or pool. Those are the functions of the activities actually carried on at the site to the present time. 2. There is no evidence before me that the alteration of use will amount to an intensification of the activity but even if such were the case, Mr. Justice Binnie said that it will rarely be open to objection. The degree of intensification of activity cannot now be determined. 3. am unable to conclude that the categorization of type of liquor license will result in activities remote from those now enjoyed. The most obvious effect of the change of liquor license will merely be that the premises will be open to the public. There may be changes in hours and changes in entertainment, but those matters more appropriately fall within the jurisdiction of the Alcohol and Gaming Authority. 4. It is necessary to balance the interests of the applicants ""... against the community's interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g. the addition of rock crusher in residential neighbourhood is likely to be more disruptive than the addition of fax machine). As there are no ""... added, altered or modified activities ..."" under consideration which are inconsistent with the present conforming use the balance is clearly in the favour of the applicant. 5. The respondent has submitted that there will be adverse neighbourhood effects. There is no evidence before me to lead logically to that conclusion. As Justice Binnie has said, such effects should not be assumed and in this case have not been established. 6. The amendment of the category of liquor license will not have the effect of liberating the applicant from the constraints of activities now carried out. It appears to me that the amendment of the category of liquor license is ""reasonable evolution of prior activities"". ""That change, within reasonable limits should be accommodated"". 7. Mr. Justice Binnie said that there will be an element of subjective judgment in considering the criteria mentioned above but should not turn on personal value judgments. The court should attempt to ground its decision on objective facts. Unlike the case before the Supreme Court of Canada where the irrelevant personal value judgment dealt with whether nude dancing is more or less deplorable than cowboy singing, the case before me might entail the irrelevant subjective comparison of one type of liquor license as against another much less contentious subject. CONCLUSION: [33] In my view, the change of liquor license sought by the applicant will not constitute a change of use from that presently enjoyed by the applicant. Subject to the regulations of the Nova Scotia Liquor Control Board, the applicant is permitted to operate a licensed billiard club open to the public at 192 Highway #2, Enfield, Nova Scotia. [34] will receive written submissions from the parties with respect to the matter of costs.","The applicant operated commercial private billiards club with liquor licence and served bar food. The applicant applied to amend the liquor licence to another category to allow public access and slightly longer hours of operation. The Municipality refused to issue a letter to the effect that the premises were properly zoned for that purpose, arguing that the proposal would result in a change in use requiring a development agreement. The applicant applied for an order declaring that the land use by-law permitted the proposed use. Application granted; the proposal did not constitute a change in use as the essential use of the premises was the sale of liquor and food in a pool hall and that would not change. There was no evidence that the proposal would result in a nuisance or increased traffic, neither of which could be presumed.",e_2002nssc20.txt
152,"C.A. No. 122686 NOVA SCOTIA COURT OF APPEAL Hallett, Freeman and Bateman, JJ.A. BETWEEN: FABIAN LOWELL BINDER and THE ROYAL BANK OF CANADA, body corporate and THE BANK OF MONTREAL, body corporate Respondents Robert Murrant, Q.C. Chris Lockwell for the Appellant William L. Ryan, Q.C. John E. MacDonell for the Respondent The Royal Bank of Canada John D. Maclsaac, Q.C. for the Respondent The Bank of Montreal Appeal Heard: April 1, 1996 Judgment Delivered: April 1, 1996 THE COURT: Leave to appeal is granted and the appeal allowed per oral reasons for judgment of Bateman, J.A.; Hallett and Freeman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: BATEMAN: J.A. This is an appeal from the decision of a chambers judge striking the appellant's Statement of Claim. The appellant and Max Gordon were equal shareholders in company known as ""Gorbin"". It is alleged that (i) in 1972, without the appellant's knowledge or consent, Mr. Gordon placed $75,000 second mortgage on certain property owned by the company; (ii) the cheque for the third and final instalment of the mortgage proceeds, drawn on the Bank of Montreal, was made payable to Mr. and Mrs. Gordon and Gorbin; (iii) Mr. Gordon endorsed that cheque on behalf of Gorbin and deposited the proceeds to the Royal Bank account of Gordon's Concrete Products Ltd., company owned by him; (iv) Gorbin's shareholder's resolutions and banking resolutions required the signatures of both Mr. Gordon and the appellant on legal documents and cheques; (v) Gorbin did its banking with the Bank of Nova; (vi) the appellant first became aware of the mortgage in 1982 when it was foreclosed. In August of 1995 the appellant initiated this action against the respondent Banks. The appellant's action alleges conversion, breach of fiduciary duty and negligence by the Banks. The respondents applied to the Chambers judge under Civil Procedure Rule 14.25(a), to strike the Statement of Claim on the basis that it disclosed no reasonable cause of action or, alternatively, ""for an Order striking the Statement of Claim as being barred by the Limitation of Actions Act, R.S.N.S. 1989, c. 258, as amended"". In a thorough and thoughtful decision the Chambers judge determined, pursuant to Civil Procedure Rule 25.01, that the action was statute barred and struck the Statement of Claim. Having done so, it was unnecessary for her to consider the application under Rule 14.25. The relevant part of Civil Procedure Rule 25.01(1) provides in part: 25.01(1) The court may, on the application of any party or on its own motion, at any time prior to trial or hearing, (a) determine any relevant question or issue of law or fact, or both; It appears from the material before us that neither of the parties brought to the attention of the Chambers judge, the law regarding applications pursuant to Civil Procedure Rule 25.01. In Curry v. Dargie (1984), 62 N.S.R. (2d) 416 (A.D.), MacDonald, J. A. wrote, in concurring judgment, at p. 430: To my mind the only proper method of having the issue determined in this case before trial was on proper application under Rule 25. This rule, however, appears to be applicable only where the parties agree to submit question of law to the court based upon an agreed statement of fact McCallum v. Pepsi Cola Canada Ltd. et al. (1974), 15 N.S.R. (2d) 27;... These comments were approved by this court in Seacoast Towers Services Ltd. v. MacLean (1986), 1986 CanLII 122 (NS CA), 75 N.S.R. (2d) 70. (see also Brown v. Dalhousie Board of Governors (1995), 1995 CanLII 4239 (NS CA), 142 N.S.R. (2d) 98 (N.S.C.A.)) This court held in Abbott and Steeves v. Cook (1980), 1980 CanLII 2548 (NS SC), 40 N.S.R. (2d) 614 that the Statute of Limitations ""does not authorize any procedure for deciding prior to trial the limitation issue pleaded in the defence"", per MacKeigan, C.J.N.S.. The parties here did not submit an agreed statement of fact to the Chambers judge. Each party filed Affidavits at the Chambers hearing. Counsel for the Royal Bank argued that there was not dispute on the facts, and to the extent that there was, the Chambers judge accepted the evidence of the appellant, as to when he discovered the existence of the mortgage and the improper actions of Mr. Gordon. Nevertheless, the Chambers judge might not have accepted his evidence on this issue in view of the contents of Mr. Crawford's affidavit which clearly contradicted certain of the appellant's assertions. Therefore the determination by the Chambers judge did require findings of fact, in particular regarding the timing of the discoverability of the material facts by the appellant. In the absence of an agreed statement of fact, it cannot be assumed that the appellant brought forward all facts relevant to an application under Rule 25.01 and may have been relying upon Rule 14.25 under which evidence is not considered. Rule 25.01 was not specifically plead by the respondents in the Notice of Application. It was recognized in Seacoast Towers, supra, that there may be exceptional cases where an agreed statement of fact is unnecessary, for example, where the facts underlying the resolution of the legal issue are matter of public record. This case does not fall within any such exception. Accordingly, the Chambers judge erred in proceeding with the application pursuant to Civil Procedure Rule 25.01. It is unnecessary to consider the application to amend the Notice of Appeal. Leave to appeal is granted. The appeal is allowed with costs to the appellant, on the Chambers application, in the amount of $350 and on the appeal in the amount of $750 plus disbursements. The Order of the Chambers judge striking the appellant's Statement of Claim is set aside. J.A. Concurred in: Hallett, J. A. Freeman, J.A. 1995 S.H. No. 119788 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: FABIAN LOWELL BINDER and THE ROYAL BANK OF CANADA, body corporate and THE BANK OF MONTREAL, body corporate Defendants HEARD BEFORE: The Honourable Justice M. Jill Hamilton HEARD AT: The Law Courts, Halifax, Nova Scotia DATE: Thursday, October 26, 1995 APPEARANCES: Mr. Robert Murrant, Q.C., for the Plaintiff Mr. William L. Ryan, Q.C., for the Defendant The Royal Bank of Canada Mr. John D. MacIsaac Q.C., for the Defendant The Bank of Montreal Recorded By The Supreme Court of Nova Scotia Halifax, Nova Scotia C.A. No.122686 NOVA SCOTIA COURT OF APPEAL BETWEEN: FABIAN LOWELL BINDER and THE ROYAL BANK OF CANADA and the BANK OF MONTREAL Respondents REASONS FOR JUDGMENT BY: BATEMAN, J.A.","This was an appeal from the decision of a chambers judge striking the appellant's Statement of Claim under Rule 25.01 for being outside the limitation period. The parties did not submit an agreed Statement of Facts. Allowing the appeal, that the chambers judge erred in proceeding with the application pursuant to Rule 25.01. Rule 25.01 requires that the parties file an agreed Statement of Facts, save in exceptional circumstances, such as one where the material facts are clearly not in dispute.",b_1996canlii5599.txt
153,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Chiasson v. Chiasson, 2006 NSSC 139 Date: 20060508 Docket: SFPAD-036016 Registry: Port Hawkesbury Between: Lise Chiasson Petitioner v. Jamie Chiasson Respondent Judge: The Honourable Justice Moira Legere Sers Heard: January 24, 2006; February 23, 2006; March 22, 2006 Written Decision: May 8, 2006 Counsel: Elizabeth Cusack, Q.C., for the Applicant Duncan MacEachern, for the Respondent By the Court: [1] Lise Chiasson commenced divorce proceedings on November 30, 2004.She sought custody, access, child support, spousal support and division of property, in accordance with the Separation Agreement entered into between herself and the Respondent, Jamie Chiasson, dated August 30, 2004. She also seeks costs [2] On December 15, 2004, Mr. Chiasson filed an answer and counter petition seeking custody, access, child support, spousal support and costs with division of property. [3] He seeks a variation of the provisions regarding child support and spousal support. It is his position that the particulars of the agreement did not and do not now reflect his net business income derived from self employment. He seeks an increase in access. [4] Ms. Chiasson lived in the Cheticamp area since August of 1997. The parties began living together on October 31,1998. The parties were married on June 3, 2000 at Cheticamp, Nova Scotia and ceased living together on June 19, 2004. [5] The Petitioner was born on March 29, 1978 and the Respondent on February 28, 1977. They are 28 and 29 years old respectively. [6] She has currently returned to live with her family in Moncton, New Brunswick. [7] Their child Remi Marcel Chiasson, born April 28, 2003, is currently in the joint custody of both parents; in the day to day care of the mother with interim access arrangements between the parties. [8] am satisfied that all jurisdictional elements have been proven. There is no possibility of reconciliation between the parties. grant the divorce in accordance with Section 8(1)(2)(a) of the Divorce Act. [9] The parties have deferred the issue of custody and access while they attempt to work out transitional issues with Doctor Landry. In the event that they are not able to work out the transitional issues they will refer the matter back to this court for final resolution of the custody and access hearing. [10] Before me are the issues of spousal support, child support and division of property. Separation Agreement [11] On the 30 and 31st day of August the parties entered into Separation Agreement. Both parties were represented by counsel. [12] That agreement purported to settle all matters between the parties and was to be incorporated into and form part of the Corollary Relief Judgement in this matter. [13] The Separation Agreement has become an issue that requires review. Ms. Chiasson believes that the court should incorporate the Separation Agreement as reflecting their true financial circumstances and valid agreement between the parties entered into after consultation with counsel. [14] Mr. Chiasson believes that the Separation Agreement was entered into to assure himself that his child would not be removed from his home town. He believed the agreement of joint custody would limit her mobility. In return he was prepared to give her his equity in the home and possessions and guarantee her enough money per month to ensure she remained in the matrimonial home with his son. [15] He confirmed she wanted Quit Claim deed to the home. As he had no intention of living there, he was prepared to sign his interest over to her to keep his son in the Cheticamp area. [16] He acknowledges that he had the advantage of counsel and admits he had instructed his counsel simply to draft an agreement in accordance with the terms and conditions he and Ms. Chiasson previously agreed upon. (a) In that agreement the husband and wife were to share joint custody. At the time of the agreement the wife was living in Cheticamp and the parties agreed that she should have to day to day care of the child and that the husband should participate in and be involved in all major decisions affecting the child of the marriage. (b) The parties agreed that the husband would be provided timely information from all schools and medical service providers regarding any status reports as result of their involvement with the child. (c) The parties agreed that he should have access to the child on alternate weekends from 4:00 p.m. on Saturday until 4:00 p.m. on Sunday commencing August 7, 2004 and otherwise he should have regular access at reasonable times with reasonable notice. (d) The husband agreed to pay child support of $495.00 per month on the 1st of the month commencing August 1, 2004. They agreed that this was based on the husband’s gross annual income of $60,000.00. (e) The husband also agreed to pay her any expenses incurred from prescription drugs, clothing, school supplies and sporting equipment. (f) The husband also agreed to pay $600.00 per month for spousal support for the his wife for period of 15 years or until she married or lived in common-law relationship, which ever came first. (g) The husband agreed to Quit Claim his interest in the matrimonial home located at 12784 Cabot Trail, Grand Etang, in the County of Inverness, Province of Nova Scotia, in consideration for the wife assuming responsibility for the mortgage. He also agreed to release to the wife all his interest in the contents of the home. (h) The husband retained the 2003 Ford motor vehicle and the 2002 Honda Four Wheeler. The wife retained the 1999 Ford Taurus. (I) The husband agreed to maintain the wife as the beneficiary on the National Life Insurance for the child until the child reached 18 years of age. (j) The husband assumed responsibility for all loans with respect to the motor vehicles in his name and the wife the responsibility for the mortgage in the amount of $47,461.00. [17] There are number of factors that are relevant in this review. The parties concluded their agreement little over months after the separation on June 19, 2004. [18] There have been significant changes in the life of the parties since that time. If the Separation Agreement itself stands, there are significant changes that have occurred since the signing of the agreement that allow the Court to review at least custody, access, child support and spousal support. The question is; to what extent should the Court intervene if at all in the division of property? [19] The father indicates that there was always an undercurrent, threat that the mother would leave the jurisdiction with the child unless the terms of the agreement were satisfactory to her. This agreement clearly favours the mother. The father agreed to the terms in order to keep his child in the jurisdiction. [20] The mother maintains that she did not ever hold out the possibility or threat that if her demands were not met she would leave the Cheticamp area and return to Moncton with her family. [21] There was also side agreement unknown to the Respondent and to Ms. Chiasson’s lawyer), between Ms. Chiasson and the paternal grandparents. [22] Mr. Chiasson obtained his qualifications as certified electrician after completing one year course in Sydney, Nova Scotia, in the fall of 1995. He became journeyman electrician in the year 2000. Between 1996 to 2000 he worked as an apprentice for Robin Jones and Whitman in Cheticamp. After working there for years he left in August of 2000 and became self employed. He remains self employed today. [23] The Petitioner completed High School in Moncton New Brunswick. She completed courses at Collège de l’ Acadie to qualify as Continuing Care Assistant/Worker between 1997 and 1998. She completed upgrading in that field in 2004 and worked in this field for more than years. This type of work draws an income of $14.00 per hour according to the Petitioner. [24] She completed one semester of courses for bilingual secretary at the College de lÁcadie in 2001. [25] When Mr. Chiasson met Ms. Chiasson in 1997 she was employed and continued to be employed until the birth of her child. [26] Between 1998 and 2000 she worked as Teacher’s Aid. Ècole N.D.A., Cheticamp. Between February 1998 to June 2002 she also worked part time in casual position as continuing care assistant for the Cheticamp Association for Community Living She was paid $13.70 an hour. [27] Between October 2002 and April 2003 she worked part time as research assistance for Collège de lÁcadie. Between May 8, 2004 and June 15, 2005 she also worked as bookkeeper -salesperson for Chiasson Furniture Store owned by her parents-in law)They employed her 14 weeks per year and additional weeks while on EI. She work weekends and some evenings while she was still in training as C.C.W. [28] In addition and briefly the Petitioner worked at the Harbour Restaurant and the Cabot Trail Chalet’s. [29] The Petitioner worked in Small Options, resigned her position, went on unemployment in the Fall of 2002 until she began her maternity leave when Remi was born April 28, 2003. [30] From the Fall of 2002 up to her maternity leave she had been working at project sponsored by Human Resources at the College De L’Acadie. [31] year later when her maternity leave expired in the Spring of 2004 she commenced work for Chiasson Furniture beginning in the Spring of 2004 with her final day of work on May 31, 2005. She experienced periods of lay off during the winter and the spring. [32] The parties resided in rental property in the Cheticamp area until they purchased new home in Grand Etang in 2001. They lived in that property together from June of 2001 to June of 2004. [33] They purchased their home for approximately $45,000.00. They completed significant improvements including new vinyl windows, two vinyl doors, reconditioned roof, land scaping, moving some internal walls painted, installed new flooring, bathroom, new counter top. [34] They purchased all new furniture including bedroom furniture, appliances, living room furniture. The home contained new water heater, new water pump system, circuit breakers, etcetera. [35] The couple benefited from the generosity of their parents receiving financial assistance from both sets of parents. The Petitioner’s father contributed $5,000.00 and the Respondent’s father originally contributed at least $10,000.00. Some of the $5,000.00 contributed by the Petitioner’s father paid off the Respondent’s father. [36] The Respondent’s father owns furniture and appliance store. They benefited from this when they purchased and furnished their home. [37] They also benefited because they were able to bartered labour to complete renovations on their home. They received assistance from family and friends. They, their parents, their relatives and friends assisted in the renovations each doing what they were qualified and able to do. [38] When the parties separated the primary focus of the father and his family was to ensure that the couple arrived at an arrangement that was geared to guarantee that the child Remi would remain in the area. [39] The Petitioner and Respondent negotiated their own terms. It had to have been clear to all parties that the primary goal was to give sufficient money to keep the mother in the matrimonial home and to sustain her with the child to ensure that the child remained in the Cheticamp area. [40] The agreement as drafted reflected the parties discussions. The mother and father concluded in their initial discussions she would need approximately $1,100.00. to stay in the home and maintain herself and the child. [41] Mr. Chiasson took that agreement to lawyer and had an agreement drafted. Ms. Chiasson obtained counsel and sought to change the terms to receive $1,600.00. This was beyond what Mr. Chiasson felt he could manage. He informed his parents that it was not realistic to attempt to pay more money to meet this demand. [42] The Petitioner went to see the paternal grandparents with her concern that she could not survive on the $1,100.00 per month payment. [43] Her father-in-law and Ms. Chiasson agreed to private deal of $500.00 month topping up the $1,100.00 to meet the $1,600.00 demand. Mr. Chiasson and the lawyers drafting the agreement were unaware of this private arrangement. [44] The grandparents paid $500.00 to the Petitioner from August 2004 to June 2005, They also provided her with Blue Cross Plan while she was employed at their store. [45] Ms. Chiasson signed the Separation Agreement and the parties commenced living separate and apart in accordance with the terms of the agreement. [46] This agreement gave the mother their newly renovated home and all it’s contents, $1,600.00 per month and all future equity. [47] The ongoing relationships broke down, both parties were in relationships with other individuals and ultimately the Petitioner left her employment with the Respondent’s family in May 2005 and decided to move to Moncton to enter University. She applied in May and was accepted in June 2005. [48] She made an interim application to take the child with her to Moncton. [49] When this was announced the $500.00 paid by the grandparents stopped. [50] The Petitioner testified that at no time was there any threat by her to remove the child from the jurisdiction if the grandparents or the Respondent did not meet her demands. [51] It is clear that there were discussions about her need to have sufficient funds to stay in the Cheticamp area. It had to have been clear that the primary driving focus of the Separation Agreement was to keep her and more importantly her son in the Cheticamp area. [52] do not accept that it was never spoken reality. It had to have been discussed and was clearly implicit if not explicit in the final negotiations. [53] The Petitioner’s former lawyer testified and confirmed that he discussed with her the issue of mobility before signing the agreement. He confirmed that the parties had come to their lawyers with an agreement already largely worked out between them. The amount of support he said had been previously agreed upon. She was discussing with her lawyer how to remove Mr. Chiasson from the mortgage. [54] Her lawyer wanted to confirm the financial disclosure (which the parties did not do to confirm whether or not Mr. Chiasson could pay the amount agreed upon. He confirmed that the spousal support was meant to cover her day to day expenses in Grand Etang. [55] The mother was successful in obtaining court permission to take the child to Moncton with her on certain conditions. She commenced degree in Business Administration, an entirely different field of pursuit. [56] This significantly altered the fundamental purpose of the agreement. The house that was provided to the mother for the maintenance and support of the child is now rented by the mother and she receives the rent [57] The spousal support, child support geared at keeping and ensuring that her and his needs were addressed all have changed and new arrangement is necessary to reflect the access costs among other issues. Variation of the Separation Agreement [58] The Respondent claims that this agreement should be varied. There are two aspects to that argument. If there is evidence supporting variation should it be varied under Section 29 of the Matrimonial Property Act or treated like an ordinary variation that occurs when circumstances change relating to support orders. There is Divorce proceeding and the court may impose an order that does not necessarily accord with the terms of the agreement. [59] Both parties had the opportunity to consult with independent counsel. If Mr. Chiasson limited his counsel’s retainer or ability to advise him then that is conscientious choice. have no reason to believe he suffered from any obstacle or impairment. [60] There is no evidence of undue influence, fraud or evidence that would affect the parties ability to retain and instruct counsel. There was no significant power imbalance or difference in bargaining positions of the parties to the agreement. There is nothing that would allow for the contract to be voidable or voided. [61] The Respondent gave up all his interest in the division of matrimonial property (except for his vehicle). He agreed to pay child and spousal support in an amount that was not justified by his actual income or the circumstances of the parties lives. He agreed to term of spousal support that exceeded what one might ordinarily expect in these circumstances. [62] He was prepared to do that to assure himself that his child would remain in their matrimonial home, the same geographical area he continued to reside in. When he could not meet the higher demand for more monthly income he decided at that point to reconsider. The Petitioner informed his parents of her need for more monthly income if she were to remain in the home in the area. The paternal grandparents had similar interests in keeping her and her child in the jurisdiction. They entered into private arrangement unknown to lawyers and the Respondent. Thus the agreement as see it was signed. [63] The Respondent failed to negotiate mobility restriction clause. Instead of explicitly indicating his intent he assumed the joint custody order would protect his interests. He testified he brought the terms of their agreement to his lawyer and instructed him to prepare the agreement as he advised. His lawyer did not testify. As regards to what might have been discussed make no presumptions. Thus he gave the consideration required to finalize their agreement but did not ensure he was fully protected by overtly addressing mobility. [64] It may be unfair in that it was obvious what he intended and wanted. It is clearly unequal favouring the Petitioner. There is no evidence to suggest it was unconscionable. It was entirely foreseeable that mobility would become an issue at some point. No one prevented the Respondent from expressly addressing this point before the agreement was entered into. [65] Therefore the court ought not to interfere with the agreement between the parties. However, in light of my findings and the fact that there are significant changes in the circumstances of the parties the court can review the terms of the Separation Agreement in this divorce proceeding and set an appropriate amount of child and spousal support that confirms to the circumstances of the parties and the needs of the child. [66] close look at the financial situation must now take place in order to determine the appropriate amount of child and spousal support if any. Petitioner’s financial circumstances [67] In 2002 Ms Chiasson earned $17,195.00 received $4,053.00 in EI earnings for total of $21,248.00. [68] In 2003 she earned $6,085.00; received EI of $8,969.00 for total of $15,054.00. [69] In 2004 her total income of $19,865.00 consisted of $9,514.00 earnings and $7,951.00 EI together with some alimony. [70] In 2005 she received Canada Student Loan in the amount of $7,140.00, (another $6000.00 in 2006); income from Chiasson’s Furniture of $2,326.97 and an undisclosed amount of EI. Up to June of 2005 she received $500.00 per month from the Chiassons’, spousal support and and child support as per the agreement. She now receives 380 for child support. She receives rent from her tenant. This income covers the mortgage payment leaving little in surplus funds. [71] The court hearing her interim application created an interim schedule of access between the child and his father and recommended the child support be reduced to accommodate for access costs. He recommended the father be excused from one week support per month. [72] The mother’s January 2006 statement of guideline income shows monthly income from spousal support of $600.00 (not always received); adjusted child support of $380.69, house rental income of $510.00, student loan income of $595.00 bursary income of $83.33 for total monthly income of $2,169.02; $2501.55 with GST and Child tax credit. This creates an annual income of $30,018.00. Excluding her student loan her monthly income is $1,906.00 for an annual income of $22,878.00. [73] She is currently living with her parents, going to University, on student loan and receiving her income as adjusted. [74] She is not currently using her previous education and skills experience. She has decided to obtain bachelor Degree in Business Administration with concentration in accounting at Moncton University. She is capable, competent, intelligent and able to complete this should she continue to attend. [75] She also has the benefit of matrimonial home which she intends to rent to June of 2006. It has municipal assessment of $61,000.00, with an outstanding mortgage of $44,540.00. As of June 2005 the house was not assessed for it’s market value. The equity can be used to advance Ms. Chiasson’s personal pursuit of education that will no doubt benefit her. Respondent’s financial information [76] Assessing Mr. Chiasson’s income is somewhat more difficult. Ms. Chiasson maintains that the Court should use the $60,000.00 figure inserted into the Separation Agreement to justify the amount of child support that the parties decided should be paid to keep Ms. Chiasson and the child in the Cheticamp area. She has not provided proof of this $60,000 income. [77] On the totality of the evidence conclude the parties first arrived at an amount of child support and spousal support which when combined would keep the mother in Cheticamp. Using the guideline table they choose gross income to justify the figure in order to satisfy any subsequent Court scrutiny. The information before me does not support $60,000.00 gross annual income. [78] Mr. Chiasson profits greatly, as did Ms. Chiasson, from the strong support they received in the Cheticamp area from Mr. Chiasson’s family, friends and relatives. The family and friends barter and exchange for services and supplies. This assisted the young couple and greatly enhancing their living conditions. [79] Left on his own, Mr. Chiasson’s income comes from various sources. First, primarily as journeyman electrician, then plumbing repairs, maintenance work on appliances, cash jobs, barter for services given and received among friends, family and relatives. [80] Mr. Chiasson estimated between $400.00 and $500.00 month of his income is earned by cash jobs. He admits that he works year around and he admits that he starts his day at least by 8:30 and ends by 5:00 unless there is particular job and deadline to be completed. He admits he does quite well. He acknowledges that he has sustained himself with strong financial and emotional assistance from his parents. He testified his father paid $28,500 to him to assist in living up to the agreement he signed with the Petitioner. have no reason to disbelieve this. [81] Ms. Chiasson testified that when they lived together there were large amounts of cash at home. That in itself does not sustain conclusion that he earns $60,000.00 as self employed electrician and handyman. [82] do have number of documents that have assisted me in selecting an appropriate annual income. The first historical document is loan application form signed by both Mr. and Ms. Chiasson on March 9, 2002. In that document Ms. Chiasson as C.C.W. earned more monthly than Mr. Chiasson did in his employment. They declared she earned $2,192.00 per month, ($26,304 year). Counsel and the Court have struggled with attempting to decipher his self employment earnings in this document. It appears to be under $1,650.00 per month. The total monthly appear to be $3,300 plus or minus. [83] In this document he acknowledges there are $500.00 month cash jobs. At the time he was also working cash jobs for satellite company, that does not exist any longer. [84] There is second piece of information that is telling. In discussing his work history and his expectations in his six years as self employed electrician and general maintenance worker, he believes, after quoting and bidding on jobs, administrative work, public relations work, if he can complete 20 hours week at his current rate of $30.00 an hour on average, that is decent wage. That would amount to yearly income of $31,200.00 without vacation. [85] Twenty hours week is on the low side He will continue to earn $500.00 cash jobs month at least. That is approximately 3.8 additional hours per week. Rounded to 25 hour week at $30.00 an hour that would yield $39,000 again without vacation. [86] have reviewed the gross profits, purchasing deductions and net profits of Mr. Chiasson’s 2001, 2002, 2003 and 2004 income tax returns. He began late in 2000 and in 2001. His gross income was $40,431.70; net $4,278.00 After purchases(supplies) his net was $13,908.00. Out of that he had to pay advertising fees, fees, insurance, 100% of his motor vehicle expenses( $9396), office expenses and travel. [87] Each year his business deductions differ. There are some consistent ones. In 2002 his gross profit was $69,652.00 reduced after purchasing to $25,394.74. After his business expenses including $12,890.00 in vehicle expenses his net income was $9,357.22 [88] In 2003 his gross profit of $74,938.00 was reduced to $19,164.00 after deducting his purchases. After business expenses including $10,202.25 for vehicle his net income was $3,374.48. [89] In 2004 it was $86,459.00 reduced to $37,725.00 after considering his business purchases. [90] We see an increase in his business. We do not see significant increase in his income. [91] For the 2004 year his consistent expenses including his business tax, fees and etcetera at $1,817.00; meals and entertainment at $44.00; his motor vehicles expenses at $9,489.00; office expenses of $449.00, other supplies and telephone and utilities at $1,803.00 as well as mail at $74.00. He shows capital cost deduction of $10,625.00 for net income of $10,102.00. [92] The capital cost allowance increased from $1,167.00 in 2003 to $10,625.00 in 2004. Mr. Chiasson purchased new vehicle to avoid $2,000.00 worth of repairs on vehicle that had 75,000 km’s He purchased 2005 Ford F150 His old vehicle is still used in his father’s business. [93] Mr. Chiasson claims 10 percent of his household expenditures at his tax deductions, using his house to do his administrative work. He also claims 100 percent of his motor vehicle expenses. [94] In reviewing his expenditures for the purposes of determining child support what is deducted from income tax need not be necessarily be that in which is accepted in child support. [95] Mr. Chiasson needs to have sufficient income to run his business. Mr. Chiasson has filed his 2004 income tax return and that is what have to work with for the child support. He shows gross income of $86,459.00 and net of $9,693.18. After spousal support payments and other deductions he shows taxable income of $6,101.00. [96] In his statement of business expenses he shows purchases during the year of $48,734.00 reflecting the costs of goods purchased for his trade, reducing his gross profits to $37,725.00. He has business fees, licences, dues, memberships or subscriptions in the amount of $1,817.00. Motor vehicle expenses of $9,489.00, office supplies of $449.00. have not an accounting for the $3,321.00 of other supplies His cell phone of $1,803.00 and mail of $74.00 for total of $16,853.00 allowable (by Revenue Canada) as deductions added together with his capital cost deduction of $10,625.00 for total expenses of $27,478.00. However his lifestyle demands more than $10,000.00 income can support. [97] If allow approximately $8,887.00 for expenses including of the vehicle expenses, the cell phone, mail costs office supplies explained as necessary to work he shows an income for child support purposes of $28,838. [98] do not have an adequate explanation for the necessary expenses on his 2124 [99] Normally one would deduct the capital cost allowance as business expense. The truck is new truck purchased partially for personal use, partially for business use although 100 percent claim for business use. It may not have been totally necessary to get him where he needs to go but has an aspect of personal choice, one that am not able to quantify. [100] He lives style of life that exceeds the declared income of $9,693.00.His expenses listed, minus the spousal and child support are $1,484.00 month for total of $17,815.00 month He has acquired new debt since separation by way of monthly Ford Credit of $635.00 and credit union loan of $2800.00. [101] He has effected major renovations to the home he owns with his current partner. This home he estimates is valued at $150,000.00 (with municipal assessment of $143,000.00) His current partner has invested significant sum in the home as well They have two cars and approximately $10,000.00 in new appliances as well as new furniture. [102] allow for the fact that Mr. Chiasson did not fully explain/justify all of his business expenses, some of which may be allowable either as they currently are or as reduced to reflect personal use and choice. On the other hand he admits he earns money by cash jobs. [103] am going to fix his income at $28,837.00. This results in monthly child support payment of $257.00. [104] Another method considered in assessing his income would be to utilize his admission to put in 20 hour work week at $30.00 an hour which would yield $31,167.00. If included in that an extra five hours per week to cover his cash jobs that would bring him to $38,970.00, that would bring me to approximately $30,000.00 after expenses, close to the current amount calculated. [105] Ms. Chiasson has not provided proof that Mr. Chiasson ever made $60,000.00. On the other hand, his current income tax returns with allowable tax deductions reflect an net income that would not support his current life style. His life style is attainable given his cash jobs and living in community in which many individuals trade services. This helps elevate his life style beyond his income. He receives significant contributions from his parents and thus he is able to live life style that exceeds the bottom line in his tax return. Child Care Costs [106] Ms. Chiasson decided to move away from child care services that were practically free. She testified she could not obtain job in the area and would be excepting lesser jobs or lower paying jobs for significant period of time given that she did not have two income household. [107] While married she has significant financial support and ability to work in the furniture business with her father-in-law. She was promised an ongoing job at the furniture store for $40,000.00. She was qualified as C.C.W. and had previous experience with health services and as teacher’s aide. [108] do not have evidence that she pursued those avenues seriously and insufficient evidence to conclude that she could not find suitable employment in the area. [109] The choice to move to Moncton with her family was personal choice. While she indicated it was not done to thwart access, she also indicated that given the conflict between the two subsequent to the separation, the geographical distance may prove to be benefit. accept it was comfort decision to put her in her family’s home. The Petitioner convinced the Learned Trial Justice hearing the interim application that her family offered financial, residential, childcare and emotional support for her as she pursued this degree. [110] This change in the status quo resulting form the move to Moncton has resulted in removing the child from his other parent and extended family. It was proposed by the Petitioner that the Respondent would have as much contact with his child as he did during the course of separation. It has also increased child care costs and transportation costs to ensure that the child remains connected with both parents. [111] There were other options available to her. She could have studied closer to the home of the child, or left the child with his father while she pursued her career. [112] The Petitioner is not pursuing a line of education which is built on her previous skills. While it may be an excellent long term choice for her, it has been done at significant cost to all parties and most particularly her parents. It is choice that was not necessary but may prove beneficial in the long term. [113] If she is successful this child will have the benefit of both parents who can independently support him. However it has also increased her child care costs and by this application she seeks to increase them further. [114] In the meantime she removed the child him from an area in which child care costs could be covered arguable better and cheaper. Given the costs of transportation for access, the comparative financial circumstances of the parties Mr. Chiasson will be responsible for fifty percent of after tax child care costs associated with the child care submitted by Ms. Chiasson She shall verify these actual costs quarterly. Spousal Support [115] Ms. Chiasson entered into an agreement with Mr. Chiasson to receive combination of spousal and child support as set out in their agreement. Many circumstances have changed since that agreement was entered into. The matrimonial home asset was signed over to her as all the furniture and possessions to sustain her in that environment. She has voluntarily removed herself from that environment and the child. The pursuit of her education was personal choice not necessary for income, perhaps profitable in the long run. This educational expenses while desirable for Ms. Chiasson was not necessary in order for her to attain self sufficiency. [116] Her educational expense ought not to be the basis for assessing spousal support. She has the equity in the house and the contents of the home that may be used to support her educational pursuits. It would be important in future applications to know the equity in the home. [117] The amount of 15 years suggested in the spousal support agreement far exceeds what one would consider might be imposed by a court of law given the years they were together and their income disparity. It was indeed generous agreement entered into for the purpose of keeping the mother in the local area. [118] The circumstances have changed significantly. Spousal support is reviewable. [119] The parties lived together for years, married for four and have one child. Ms. Chiasson is employable but has not pursued employment in her own field of training. Instead she has undertaking by student loan and by the strong support of her family to pursue another career. [120] She advocated at the interim hearing that she undertook this with the strong support of her parents. Moving to Moncton has resulted in court ordered obligation to participate in an access regime which she estimates costs her $140.00 per month. This may in fact continue for the foreseeable future if she continues to pursue her degree in Moncton. [121] In reviewing his financial circumstances, his disposable income, fifty percent of the after tax child care costs, the costs of transportation to him to maintain access with his son and the costs of transportation to Ms. Chiasson. I am prepared to order while the child remains in Moncton an additional $300 spousal support for a month for a limited term to address the access costs in the mother’s budget that are associated with access. [122] This $300.00 ought to contribute towards her maintaining her car, the gas required and any incidental meals associated with ensuring that her child remains in contact with his father for the period of time that she resides in Moncton to pursue her degree. [123] Spousal support is reviewable in the event those circumstances change. [124] These moves have significant financial implications and these implications must be addressed in advance in order to maintain this child’s contact with both parents and avoid the need for litigation after the fact. [125] With respect to mobility other than to return to Nova Scotia Ms. Chiasson shall not remove the child from the Province of New Brunswick to live in any other province without the consent of Mr. Chiasson or court order. [126] The spousal support award is also reviewable at the end of her current degree. Long term support is not called for in these circumstances. Support is also reviewable upon change in circumstances and/or access regime. [127] Counsel for the Respondent shall draft the order. The parties may make submissions on costs after the custody and access issues are settled by court order or agreement of the parties. Justice Moira Legere Sers","The wife sought to have the terms of the parties' separation agreement incorporated into the corollary relief judgment following a four year marriage. The husband sought to vary the provisions of the agreement regarding spousal and child support on the basis that the particulars of the agreement did not reflect his net business income derived from self-employment. The husband argued that he had entered into the separation agreement (which provided for joint custody of their young child, gave the wife all of the matrimonial assets with the exception of the husband's vehicle, and provided for spousal support in the amount of $600 per month for 15 years) only as an attempt to have the wife stay in the local area with the child. The wife had since moved with the child to New Brunswick where she was living with her parents and attending university; she was renting out the matrimonial home. Pursuant to the current court order, she was contributing the sum of $140 per month to the husband's access costs. Husband's current income set and child support awarded; the husband shall be responsible for 50 percent of the after tax child care costs; an additional $300 of spousal support ordered per month while the child remains in New Brunswick to address the access costs in the mother's budget; spousal support is reviewable in the event that these circumstances change, and at any rate, upon the completion of the mother's current degree; the mother shall not remove the child from the Province of New Brunswick to live in any other province without the father's consent. Although the court could not interfere with the agreement under s. 29 of the Matrimonial Property Act, the spousal and child support geared at keeping the wife in the local area and ensuring that her needs were addressed had all changed and a new arrangement was necessary to reflect the access costs among other issues. The wife had chosen to move away from child care services provided by the family that were practically free, as well as significant financial support and the ability to work in the furniture business with her father-in-law; she was not now pursuing a line of education which would build on her previous skills. Her educational expenses ought not be the basis for assessing spousal support and the duration of support set out in the separation agreement far exceeded what might be imposed by a court given the years they were together and their income disparity. The court reviewed the husband's history of income and expenses in setting his income for child support purposes.",2006nssc139.txt
154,"nan SUPREME COURT OF NOVA SCOTIA Citation: R. v. Buckley, 2009 NSSC 204 Date: 20090706 Docket: CRAT 298452 Registry: Halifax Between: Jason Brian Buckley v. Her Majesty the Queen Respondent Judge: The Honourable Justice Duncan R. Beveridge. Heard: April 29, 2009, in Antigonish, Nova Scotia Final Written Submissions: May 20, 2009 Written Decision: July 6, 2009 Counsel: Maurice G. Smith, Q.C., for the Appellant Darlene Oko and Meghan E. MacGillivray, for the respondent By the Court: INTRODUCTION [1] The appellant was a student at St. Francis Xavier University in Antigonish, Nova Scotia. He sent an email to his computer science professor with an attachment. Although the professor did not take the content of the attachment as threat, he sent it to university officials as he had been requested to alert them to any odd or unusual behaviour by the appellant. The police were contacted and charge laid was against the appellant of uttering threat to the professor to cause his death, contrary to s.264.1(1)(a) of the Criminal Code. [2] The appellant did not have a lawyer when he stood his trial on May 14, 2008 in Provincial Court. He was found guilty and was sentenced immediately following the conclusion of his trial to an 18 month suspended sentence, and placed on probation with conditions. Counsel was retained and an appeal commenced from conviction and sentence, alleging improper admission of evidence, unfair and prejudicial cross-examination of the appellant and a failure to give due consideration to a conditional discharge. New counsel took over carriage of the appeal. No formal amendment of the grounds of appeal was sought, but the appellant’s brief also argued that the verdict reached was unreasonable. [3] At the hearing of the appeal on April 29, 2009, asked counsel for the respondent, who was not counsel at trial, or even initially on the appeal, if she wished an opportunity to specifically address the appellant’s argument that the verdict was unreasonable. She did. Supplementary submissions were made by both parties. In terms of remedy, the appellant seeks an acquittal, new trial or conditional discharge. [4] By way of overview, this appeal raises issues of the admissibility of evidence, the appropriateness of questions asked of the appellant in cross-examination, and the impact these matters may have had on the integrity and fairness of the trial; the elements of the offence that the Crown needed to prove beyond reasonable doubt, and was there sufficient evidence that would permit reasonable trier of fact, properly instructed and acting reasonably, to be satisfied beyond reasonable doubt on those elements. FACTUAL BACKGROUND [5] The trial did not take long. There were only three witnesses, Professor Martin Van Bommel, Mark MacAulay and the appellant. Much of the evidence was not contested. [6] In the fall of 2007 the appellant was enrolled as student at St.F.X. One of his courses was Computer Science 161, Introduction to Computers, Programming and Problem Solving. Professor Van Bommel was the instructor. Van Bommel testified that up to October 25, 2007, the appellant regularly attended class, occasionally asking questions that were not relevant to the course or topic, but in general seemed to be participating as any regular student. He had no concerns about the appellant, but did notice some strange or unusual behaviour at times in the Math Resource Centre. Van Bommel said the appellant would make unusual comments to the computer itself, and said number of times that he thought people were hacking into his computer, monitoring his keystrokes, and some people were out to get him. [7] On October 25, 2007 Professor Van Bommel received an email from the appellant with an attachment. It was not unusual for him to receive emails from the appellant or other students. Van Bommel described the body of the message to be quite poorly worded, with some strange comments. More troubling was the attachment. He regularly received emails from students with computer programs attached, asking for help with their programs. The attachment from the appellant was text file with lot of extra characters in it. That was not disturbing. The file was created using program that they would not ordinarily use for their programming. The body of the email did reference the fact that the appellant was not sure what format the message would arrive in. The email asked for assistance in de-bugging the program, correct the errors in it and get it running. [8] When Van Bommel deciphered the attachment, there were couple of messages in it that were “disturbing to me as part of computer program. One of the messages included the phrase believe it’s ‘I am going to kill you.’ but not not in the sense that it is directed straight to me, but as part of that program that he was writing.” The other comment in the attachment was “I am so horny”. These two statements, mixed with the rest of the email, he found very disturbing and would not normally be sent by student in any context. [9] Copies of the email and attachment were tendered as Exhibit #1 and #2. The email was sent at 7:52 p.m. on October 24, 2007. It read: have been writing you lot, but to the wrong email -_-. Here is few programs am having trouble with. Even if you don’t get to them before the test, understand. So this first one is well. Now don’t know. will probably send some wordpads, and some cpp.’s. Might not be what originally had in mind, but second times 2nd try. Here you go. Well its no most certainly not what had in mind, but perhaps will come see you in person. If you like the night you may consider spending more time around the office. will see you tommorrow (sic), and might throw some other attachments still. Be careful you don’t get virus. *Look out for the LIch King:)* [10] With respect to the attachment, (Exhibit #2) the evidence was more technical. Professor Van Bommel testified there was program embedded in the attachment, but it had lot of other characters with it. Exhibit was not an exact copy of what he had received. Van Bommel explained that it was slightly modified, as he added some white character space, did some indentation and removed some carriage returns, but none of the text had been modified. [11] It appears not to have been contested by anyone that the attachment was some sort of computer program. In cross-examination Professor Van Bommel clarified that when he removed the extra control characters, it did appear to be computer program, but that he did not run it as he had not de-bugged it. The trial judge sought further clarification from Van Bommel. The witness testified that he would take the attachment and enter the Borland Compiler, which would convert it to running program. The attachment looked to be designed as real program, but he could not say exactly what it would do as there was not enough of it to actually do anything. But the attachment would accept input from the user of the program and would generate text messages. The words in issue were part of the program. [12] Following receipt of the email of October 24, 2007, Van Bommel emailed the appellant and told him the message was not appropriate. He also met him in the Math Resource Centre on October 25, 2007. The witness was given permission to refer to notes he had made of this meeting. After referring to those notes, Van Bommel testified that he had informed the appellant the attachment was not appropriate and he should not be forwarding that type of attachment. The appellant, according to Van Bommel, responded that “he thought that someone was monitoring what he was typing, so he typed those messages in that file to get reaction from whoever was monitoring his typing”. The Crown posed leading question to the witness. All right. Did he say, To get reaction from whoever was monitoring him.” or did he just say, “To get reaction.” –? A. Ah I’m not positive on that one Q. All right. A. one way or the other. All right. But in any event, he he used the words, “– to get reaction –“, [13] There was no cross-examination on this point by the appellant. The trial judge sought to clarify this evidence. He asked: Q. Okay. Okay. Now just to again clarify. He said he “– put these in for what purpose A. The comment he made was he, “– thought someone was monitoring his typing and he wanted to get reaction.” A. Whoever was monitoring his typing. [14] The only other Crown witness was Mark MacAulay. The appellant objected to him being called as witness as he was “not related” to threat incident. Without calling on the Crown to respond, the trial judge ruled: “Well, we’ll hear what his evidence is, okay and then you can ask him questions.” [15] MacAulay testified that he was the Director of Health and Counselling at St.F.X. He first met the appellant when he came to the counselling office requesting an appointment. MacAulay elaborated that he ended up meeting with the appellant on October 4, 2007 and as result he “had lot of concerns at that point in time”. He described the appellant as incoherent and disjointed, talking about death. He convinced the appellant to go to the hospital. He says physician saw the appellant and that the physician wanted to admit the appellant to hospital. The appellant left the hospital and he “understood the RCMP were called.” [16] Between October and October 25, 2007 MacAulay said he saw the appellant walk into the doctor’s office in the Health and Counselling Centre. The Crown asked MacAulay if the appellant had received any treatment other than through the Health Centre. MacAulay said he had. The appellant again objected, that his mental health was irrelevant to the case. The Crown decided not to pursue the question. The Crown asked MacAulay if he had ever spoken with the appellant about the email of October 24, 2007. He testified: MS. OKO: Did you ever speak with Mr. Buckley directly about what had been sent to Mr. Van Bommel? Yes, did. Like over the phone, we had talked about it. It was after the fact, but in between it was not directly. What had happened at that point was became aware of the e-mail. A. consulted with physician, Doctor Steeves, who is one of the person’s Doctor Brian Steeves he’s on call he does on-call psychiatry and he consulted with Doctor Rahman and he called and Doctor Rahman had met with Jason earlier and it was at that point that Doctor Rahman said there’s just too many unknowns here and he should be remanded for 30-days so then we called the RCMP. All right. But did you talk with Mr. Buckley about the e-mail sent to Mr. Van Bommel? A. Not directly. [17] As it turned out, MacAulay did not have any conversation with the appellant until after he got out of the hospital. He spoke with the appellant on the phone, but could not recall any of the details without his notes, and he did not have his notes with him. Nothing further was elicited from Mr. MacAulay. [18] The Crown closed its case. The trial judge then called on the Crown to outline what it says is its case before asking the appellant his election on calling evidence. The appellant did elect to call evidence. The first witness he wanted to call was Professor Van Bommel. It was obvious this was highly unusual as he could have elicited any evidence from Van Bommel he believed to be relevant to his defence during cross-examination. The only evidence elicited from Van Bommel by the appellant was that he was friendly man and it would be out of the norm for anyone to want to harm him. [19] The appellant testified. His evidence in direct was short and to the point: MR. BUCKLEY: Yes. I’d like to start by saying never knowingly threatened Martin Von (sic) Bommel or any person for that matter now that I’m here. I’ve never knowingly threatened anyone or or– or– umm–I’m not– I’ve never knowingly made threats. [20] The Crown cross-examined the appellant. The evidence the appellant gave was at times unusual. He was asked if he took instruction from Professor Van Bommel. His answer was he listened as he professed. He would be in the same local area throughout the week at periodic times and he would be in range where he could hear him speak. When it came to the email Exhibit #1) he was asked if he sent it. His answer was he did pretty much write this all out, but like it says “this is the second try”. The trial judge interrupted the appellant and demanded to know if he understood the question. The judge said that the Crown wanted to know if he sent the email to Van Bommel. He said he did not. The Crown then asked him you deny sending this?” His answer was “No.” He referred to the message as having come from an electronic machine. His evidence was certainly evasive. [21] With respect to the real nub of the case, the attachment containing what the Crown alleged was the threat to cause death to Professor Martin Van Bommel, he acknowledged being the author of the attachment: A. [Witness given Exhibit #2] Yeah, this is all mine. This like well, not not really, but uh the general idea uh where you would enter numbers –uh and try to find your way through maze [22] With respect to the evidence of the appellant that he never knowingly threatened anyone, the Crown asked him series of questions suggesting that he had been previously suspended from the university for sending an email to the President threatening to kill him. The appellant denied having done so. [23] The Crown called no rebuttal evidence. The Crown argued to the trial judge that the appellant’s evidence should not be accepted. It was plain that the appellant was the author of the email and the attachment. This she said, was confirmed by what she suggested was the result of the conversation between Van Bommel and the appellant on October 25, 2007....that the appellant did not deny sending it, but sent it to get reaction. [24] Relying on R. v. Clemente, the Crown submitted that “HAHA good job but am going to kill you.” viewed objectively, looking at the entirety of the circumstances, was threat. In addition, the person who had the best vantage point was Professor Van Bommel himself. He said he was disturbed by the content of the attachment, so disturbed in fact that he sent it to Mr. MacAulay. [25] In terms of the appellant’s intention, the Crown submitted the appellant intended Van Bommel to open the attachment and read it, and that the words were written as threat, they were meant to intimidate or be taken seriously, and this was confirmed by the appellant in his conversation with Professor Van Bommel. [26] The appellant argued that he never threatened anyone and that Professor Van Bommel was not threatened by it, but maybe Mark MacAulay took it as threat. [27] The trial judge immediately rendered an oral decision. He expressed no difficulty finding it was the appellant that sent Exhibit #1 to Van Bommel and that Exhibit #2 was attached to it. The phrase “HAHA good job, but am going to kill you” he considered to be prima facie threat. The only issue the trial judge identified was what was the appellant’s intention, that is, was the threat intended to be taken seriously in line with the authorities relied upon by the Crown. He re-stated the issue as: The issue really here, is what was his intention when he forwarded this message, in particular the one that described and what inferences can be drawn from what he said to Professor Van Bommel the next day? [28] The trial judge referred to the conversation on October 25, 2007 as follows: During the conversation at the Math Lab, Mister or Professor Van Bommel confronted Mr. Buckley about the e-mail. He testified that earlier he had been quite disturbed when he read that and that he had sent it on to other personnel, Mr. MacAulay, in particular, at the university, because of the disturbing nature of the of the contents of the e-mail. He confronted Mr. Buckley about it and Mr. Buckley confirmed that he had in fact sent the e-mail and that he had sent it for specific purpose. He had been concerned that people were monitoring his e-mail and he sent and he included these words, together with other phrases to guess quote the testimony of Professor Van Bommel. to get reaction.” [29] This led the learned trial judge to conclude: Now it’s quite clear that Mr. Buckley intended to put these words into the e-mail. He intended to send it to Professor Van Bommel and he intended Professor Ban Bommel to open the e-mail. The only reasonable inference that one can draw is that he intended Professor Van Bommel to read the contents of the e-mail, including the phrase that just described. It was his intention to get reaction. The only reasonable inference that one can draw or can conclude from all this is that he wanted to get reaction from Professor Van Bommel and, in particular, as result of the words that just described. They were not written in jest. In the context of the of all of the circumstances, they were designed to get reaction. In other words, they were designed to be taken seriously by the reader of the e-mail, in this case, Professor Van Bommel, who was the person was the recipient of the e-mail. They were designed to intimidate him, in the true sense of the word. They were menacing and they were designed to disturb him and upset him, i.e. “Get reaction.”, as he indicated to Mister or to Professor Van Bommel when he met him at the Math Lab. [30] The trial judge rejected the appellant’s testimony as not being credible, as not being in accord with the preponderance of probabilities, given what he said at the Math Lab to Professor Van Bommel. He concluded at p.108: Looking at all of the evidence on the whole, am satisfied beyond reasonable doubt that Mr. Buckley composed the e-mail, that he sent the e-mail, that he included the words that just referred to, “Ha, ha. Good job, but I’m going to kill you.” He intended for Professor Van Bommel to read this. He intended for him to take it seriously in the sense that he wanted to intimidate or menace Professor Van Bommel, or for that matter, any other reader of this and am satisfied of all of that beyond reasonable doubt and that constitutes threat and consequently he found guilty [sic] under s.264.1(a) of the Criminal Code. [31] With respect to the appeal from conviction, the appellant raises the following issues: Was the evidence of Mark MacAulay admissible and did its admission impact on the fairness of the trial; Was the cross-examination of the appellant unfairly prejudicial; Was the verdict unreasonable; ANALYSIS The evidence of Mark MacAulay [32] The Crown is entitled to call evidence that is relevant to the matters in issue. There were no formal or informal admissions by the defence. The Crown then was required to prove beyond reasonable doubt all the elements of the offence. The elements are the actus reus and mens rea of the offence which are determined by considering the wording of the charge set out in the indictment and how it is defined by law. The charge alleged that Jason Brian Buckley on or about the 25th day of October, 2007, at or near Antigonish, Nova Scotia, did by electronic email transmission knowingly utter threat to Martin VanBommel to cause death to Martin VanBommel, contrary Section 264.1)1)(a) of the Criminal Code.” [33] Section 264.1 of the Criminal Code provides: 264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive threat (a) to cause death or bodily harm to any person; (b) to burn, destroy or damage real or personal property; or (c) to kill, poison or injure an animal or bird that is the property of any person. [34] In R. v. Clemente, 1994 CanLII 49 (SCC), [1994] S.C.R. 758, the mens rea of the offence was described by Cory J., writing on behalf of the full court, as: [6] At issue is the mens rea that is required by s. 264.1(1)(a). The appellant alleges that it must be established that the words were uttered with the intent to intimidate or instill fear. The respondent contends that it is sufficient if it is shown that the threat was uttered with the intent that it be taken seriously. In the Court of Appeal both the majority and minority proceeded on the basis that the words must be uttered with the intent to intimidate or instill fear. The majority concluded that the trial judge had found the requisite intent had been established. The minority thought his findings did not support the requisite mens rea. [7] The requisite intent can be framed in either manner. The aim of the section is to prevent ""threats"". In The Shorter Oxford English Dictionary (3rd ed. 1987), ""threat"" is defined in this way: denunciation to person of ill to befall him; esp. declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; menace. Under the section the threat must be of death or serious bodily harm. It is impossible to think that anyone threatening death or serious bodily harm in manner that was meant to be taken seriously would not intend to intimidate or cause fear. That is to say, serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, threat uttered with the intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously. Both of these formulations of the mens rea constitute an intention to threaten and comply with the aim of the section. [8] Section 264.1(1)(a) is directed at words which cause fear or intimidation. Its purpose is to protect the exercise of freedom of choice by preventing intimidation. The section makes it crime to issue threats without any further action being taken beyond the threat itself. Thus, it is the meaning conveyed by the words that is important. Yet it cannot be that words spoken in jest were meant to be caught by the section. [35] Cory J. noted that the question whether the accused had the intent to intimidate, or that the words were meant to be taken seriously, in the absence of an explanation by the accused, will usually be determined in an objective manner, by the words used, the context in which they were spoken and the person to whom they were directed. He then summarized the elements as follows: [12] Under the present section the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously. [13] To determine if reasonable person would consider that the words were uttered as threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed. [36] The elements then of the charge against the appellant were: that on or about October 25, 2007 at or near Antigonish, Nova Scotia an electronic email transmission was sent to Martin Van Bommel; the electronic email transmission contained threat to cause death to Martin Van Bommel; the identity of the accused as the person who knowingly sent the email that the accused intended the email message to intimidate or be taken seriously by Martin Van Bommel. [37] The appellant argues there was no legitimate reason to call Mark MacAulay; that not only was his evidence totally irrelevant to the charges, worse, that the evidence given by MacAulay was rife with hearsay and very prejudicial to the appellant. In particular, the evidence called by the Crown raised issues regarding the appellant’s mental health, leaving the impression with the court that he suffered from psychiatric illness and would therefore be person more likely to have knowingly uttered threat to Professor Van Bommel. It was as well they now say, direct attempt to weaken the appellant’s credibility. [38] As noted earlier, the appellant objected to the Crown calling Mark MacAulay as witness, contending that he had no relevant evidence to give. The respondent at trial offered no justification as to why they were calling Mr. MacAulay as witness. The trial judge did not enter into formal or informal voir dire to determine if MacAulay had any relevant evidence to give. He simply directed: “Well, we’ll hear what his evidence is, okay and then you can ask him questions.” [39] Many of the complaints by the appellant are well founded. But one example is necessary. In the course of MacAulay’s evidence, the Crown pursued the following line of questions: Okay. And as result of what you received from Mr. Van Bommel, what happened with Mr. Buckley in terms of his status as student? A. Well, at that point he was still “a student” and you know as far as we were concerned we were concerned about mental health issues Q. Right. A. it was not his status as student. Q. And I’m sorry, “it wasn’t -” A. It wasn’t his status as as student that we were concerned about. Q. Okay. Did the university ultimately take any steps with respect to his status as student as result of the e-mails to Mr. Van Bommel? A. No, what happened is he withdrew later on on his on his own. Okay. And as far as you’re aware Uh-huh? Q. did he ever receive any treatment other than through you said your health centre A. Yes. Q. at the university? Q. Are you aware of any other treatment and program that he was involved in? MR. BUCKLEY: Objection, Your Honour. THE COURT: Why? MR. BUCKLEY: My mental health is irrelevant in this case. THE COURT: Ah Ms.. MS. OKO: That’s fine. MS. OKO: won’t pursue [40] Despite this agreement further details emerged: MS. OKO: Did you ever speak with Mr. Buckley directly about what had been sent to Mr. Van Bommel? Yes, did. Like over the phone, we had talked about it. It was after the fact, but in between it was not directly. What had happened at that point was became aware of the e-mail. A. consulted with physician, Doctor Steeves, who is one of the person’s Doctor Brian Steeves he’s on call he does on-call psychiatry and he consulted with Doctor Rahman and he called and Doctor Rahman had met with Jason earlier and it was at that point that Doctor Rahman said there’s just too many unknowns here and he should be remanded for 30-days so then we called the RCMP. [41] On appeal the respondent did not address any of the instances of prejudicial or hearsay evidence that came in through this witness. Instead it took the position that the evidence was part of the “narrative”, giving context to such events as Professor Van Bommel’s discussions with Mr. MacAulay before the email of October 24, 2007 and why Van Bommel subsequently sent the email to MacAulay. In addition it says that the evidence played no part in the decision of the trial judge. No mention of it is found in the judge’s reasons and hence no indication that the appellant was prejudiced by the admission of this evidence. [42] Paciocco and Stuesser in The Law of Evidence, 4th ed 2005) voice well put caution about admitting extraneous evidence under the rubric of being part of the “narrative”: It is inevitable that in narrating story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality. For example, the trier of fact is likely to learn what police officer was doing when call was received, whether the police officer was in marked or an unmarked police vehicle, and perhaps even the kind of doughnut he was eating. This is harmless background material, and reference to it is generally tolerated because it improves comprehension by presenting total picture and makes it easier for the witness to recount the evidence. If theory is required to account for its reception, it can be said to be admissible as part of the narrative. The idea that evidence can be admitted because it forms part of the ""narrative"" or part of the story is potentially dangerous one. It has been used, sometimes successfully, as way to get otherwise inadmissible evidence before the trier of fact. For example, if two co‑accused committed robbery after escaping from prison, the narrative might include how they came to be together, and hence their criminal background. Yet there are rules of evidence designed to prevent their bad character from being proved. Where evidence that forms part of the narrative is potentially prejudicial or would otherwise be inadmissible, it can be excluded or edited pursuant to the judge's exclusionary discretion, and great care should be undertaken before it is received. court should always consider how necessary the information is to unfold the story in clear, understandable manner [43] In my opinion, much of Mark MacAulay’s testimony was irrelevant to any issue. Some of it was irrelevant and prejudicial. Nonetheless there were subjects addressed by MacAulay that were not only relevant, but helpful to what perceive to have been the theory of the defence at trial. For example, it appears that the only reason that Professor Van Bommel sent the email of October 24, 2007 to anyone was because of Mr. MacAulay’s request to let him know of any unusual behaviour by the appellant. It was MacAulay who contacted the police. This supported the position of the appellant at trial, that he did not intend to threaten Professor Van Bommel and that Van Bommel did not take the words in the attachment as threat. Although Van Bommel expressed feeling disturbed by finding the words HAHA good job, but am going to kill you” and “me so horny”, he did not feel threatened and did not contact the police. MacAulay’s evidence corroborated Van Bommel’s evidence about why he had forwarded the email to MacAulay and explained how the police came to be involved. [44] With all due respect to the appellant, am not convinced that evidence as to the appellant’s state of mind was not relevant. There was no evidence of any animosity between the appellant and Professor Van Bommel. He had no motive or reason to send him threat. His mental state would be relevant to the issue of intent. am not convinced that some of the evidence of Mr. MacAulay that spoke to the appellant’s state of mind was inadmissible, nor entirely unhelpful to the appellant. It was the appellant’s explanation to Professor Van Bommel that some unknown person or persons were monitoring his key strokes. The reason he had typed the words into the program was to get reaction from them, not to threaten Van Bommel. [45] The evidence of Mr. MacAulay certainly suggested that the appellant had a psychiatric illness and was a dangerous person requiring mandatory hospitalization before and after the October 24 email. In my opinion this evidence was inadmissible as its prejudicial effect outweighed its probative value. To the extent Mr. MacAulay’s evidence related facts or views that were hearsay, it was inadmissible. It was therefore an error in law to have permitted the Crown to adduce this evidence. [46] Neither the appellant nor the respondent referred to s.686(1)(b)(iii) of the Code or any case law on its application. This section permits this Court to dismiss an appeal despite an error of law if satisfied no substantial wrong or miscarriage of justice occurred. The burden is on the Crown to satisfy me that notwithstanding the error the result would necessarily have been the same (see Colpitts v. The Queen, 1965 CanLII (SCC), [1965] S.C.R. 739). [47] The respondent argues that the judge did not refer to any of this evidence in the course of giving his reasons. Ordinarily where trial judge has heard inadmissible evidence, but expressly does not rely on such evidence in convicting, the proviso set out in s.686(1)(b)(iii) can be relied on to dismiss the appeal (R. v. Leaney, 1989 CanLII 28 (SCC), [1989] S.C.R. 393). am concerned about the appearance of unfairness to the appellant and the potential that the trial judge did not disabuse himself of at least some of this inadmissible evidence when he made findings of credibility against the appellant. This concern is exacerbated by the questions put to the appellant in cross-examination by the Crown that also introduced inadmissible evidence. The proviso issue should not be assessed in isolation, but considered in light of any other errors that may have occurred at trial. Cross Examination of the Appellant [48] The appellant’s direct examination was but one statement. It bears repeating: Yes, I’d like to start by saying never knowingly threatened Martin Von Bommel (sic) or any person for that matter now that I’m here. I’ve never knowingly threatened anyone or or or umm I’m not I’ve never knowingly made threats. [49] The Crown cross-examined the appellant extensively on the suggestion that he had threatened the President of the university in 2005. The following is the exchange of questions and answers: Q. see. Mr. Buckley, you’ve made couple of comments in your evidence-in-chief. You said, “I have never knowingly threatened anyone.” “I have never knowingly made threats.” That’s what you said? All right. A. that was under oath as well. All right. Mr. Buckley, in 2005, you were suspended from the university for sending an e-mail to the President, threatening to kill him, is that correct? A. That is incorrect. Q. Do you deny that? A. Wholeheartedly. Q. Okay. And do also understand in 2005 you posted some e-mails on message board that was threatening to the university and some of the university staff concerning finances and what they were charging you. Is that correct? A. No, that’s not correct. Q. So you deny that as well. A. That’s yeah, that’s grossly misrepresented. Q. Did you come to court with respect to those matters? Q. Did you have to go and see doctor as result of those matters? Q. Did you ever see doctor about what happened at the university that caused you to be suspended in 2005? A. see many doctors at the university. Okay. Are you under the care of any psychiatrist at the moment? All right. And do you have medical doctor or family doctor that you see on regular basis? A. Annual check-ups. Q. Okay. Why did you withdraw from the university after October 25th, 2007? A. was attempting to not hamper my GPA. was in uh believe it’s Burnside M.I.O.U. for 30-day (thirty-day) assessment. After that so during that time tried to get halt on my classes withdraw from classes, which did. got withdrawn from classes ah– mostly because where was away for 30 (thirty) days felt it greatly reduced my ability to function properly. Q. Okay. And that’s when you had psychiatric assessment for 30-days (thirty-days) as result of this charge? Correct. That’s what that’s what hampered my academic standing. All right. And did you have an opportunity to read the report that was generated as result of your 30-day (thirty-day) stay? A. Ah did read report ah– from Mr. Pottle or Doctor Pottle ah he I’m not sure how got hold of that report actually, ma’am Q. Okay. But A. but Q. but you read it? A. Yeah, just the other day did read report ah that basically umm paraphrased what happened over the 30-days (thirty days) Q. Okay. A. in the M.I.O.U. [50] The appellant takes the position that the questions by the Crown were improper since the Crown did not call evidence to substantiate its suggestions, and by failing to do so, left the wrong impression with the trial judge that such an event had occurred. In essence, the information the Crown put to the appellant was not accurate and this was therefore grossly prejudicial. [51] The respondent’s position is the appellant put his character in issue by his testimony, and that the Crown could therefore put prior acts of misconduct in cross-examination. [52] The Crown also took strong exception to the suggestion by the appellant that information put to the appellant in cross-examination was not accurate. Neither party submitted any authorities in support of their respective positions. [53] The Supreme Court of Canada in R. v. Lyttle, 2004 SCC (CanLII), [2004] S.C.R. 193 clarified that defence counsel can cross-examine Crown witness on matters that he or she may not be able to prove directly so long as counsel has good faith basis for asking the question. This right is not unlimited. It does not extend to asking questions that are reckless, or false, or relate to, or rely on inadmissable evidence. The suggested procedure is that set out by Major and Fish, JJ.: [51] trial judge must balance the rights of an accused to receive fair trial with the need to prevent unethical cross‑examination. There will thus be instances where trial judge will want to ensure that ""counsel [is] not merely taking random shot at reputation imprudently exposed or asking groundless question to waft an unwarranted innuendo into the jury box"". See Michelson v. United States, 335 U.S. 469 (1948), at p. 481, per Jackson J. [52] Where question implies the existence of disputed factual predicate that is manifestly tenuous or suspect, trial judge may properly take appropriate steps, by conducting voir dire or otherwise, to seek and obtain counsel's assurance that good faith basis exists for putting the question. If the judge is satisfied in this regard and the question is not otherwise prohibited, counsel should be permitted to put the question to the witness. [54] These comments were made in the context of proposed defence cross-examination of Crown witness. It seems obvious that the underlying concern would apply with greater force where it is the Crown seeking to cross-examine an accused See for example R. v. Mallory 2007 ONCA 46 (CanLII), 217 C.C.C. (3d) 266). [55] In this trial there was no one to object to the line of cross-examination by the Crown. The Crown says it had ample good faith basis to put its questions about other threats to the accused. The appellant does not agree. The Crown, in its written and oral submissions, made reference to “details” in its “disclosure package”. do not have the disclosure package. No attempt has been made by the respondent to introduce any of the package. [56] need not consider if the Crown did or did not have good faith basis for the questions it asked. The complaint made by the appellant is that the Crown failed to adduce evidence in reply to prove the suggestions it made to the appellant during cross-examination. [57] The Crown argues that the appellant put his character into issue by his evidence that I’d like to start by saying never knowingly threatened Martin Van Bommel or any person for that matter now that I’m here. I’ve never knowingly threatened anyone or or– or– umm–I’m not– I’ve never knowingly made threats.” It can be difficult question as to when an accused puts his or her character into issue. Where an accused is self-represented at trial, the trial judge should be slow to conclude that such an accused has put his or her character into issue. In my opinion, the appellant did not so. He did not testify that he was not the sort of person who would do such thing. He did not, as the accused in R. v. Farrant 1983 CanLII 118 (SCC), [1983] S.C.R. 124, claim that it was not in his character to be violent. The appellant simply denied that he had ever knowingly threatened Martin Van Bommel or anyone. [58] The context of the appellant's evidence has be considered. The words alleged to have been threat against Martin Van Bommel were in file attached to an email. The attachment was computer program. It contained number of unusual phrases. As described earlier, one of the phrases was ""HAHA, good job but now am going to kill you"". It was not specifically directed to Van Bommel, or to anyone for that matter. Given this context, the direct evidence of the appellant could well have been simply denial that the phrase in the attachment was ever meant to be threat to anyone. [59] There was no application by the Crown to obtain ruling from the trial judge that the evidence of the appellant put his character in issue. The appellant was self-represented. The trial judge should have intervened to ensure the appellant was intending to put his character in issue, and that he understood the potential consequences of doing so, and ultimately make ruling as to whether or not he put his character in issue. [60] In any event, even if it could be said that he did put his character into issue, it is certainly arguable that the law does not permit the cross-examination that ensued. In R. v. Wadey (1935), 40 Cr. App. R. 104 the accused was charged with indecent assault in relation to three complainants. At trial he put his character in issue. In cross-examination he was asked number of questions with regard to previous complaints by other young girls suggesting similar conduct. Those other complaints had either been dismissed or did not lead to charges. The court held that such cross-examination was inadmissable and the conviction was quashed. [61] While an ordinary witness may be cross- examined as to prior discreditable acts, there are well recognized differences where an accused takes the witness stand (see R. v. Koufis, 1941 CanLII 55 (SCC), [1941] S.C.R. 481; R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont.C.A.) ). There does appear to be some authority for the proposition that if an accused puts his or her character in issue, the Crown may cross-examine on prior specific acts of misconduct (See R. v. McNamara et al. (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont.C.A.) at 346-352). However, aside from the discretion by trial judge to permit the Crown to lead similar fact evidence in reply to evidence of good character, the Crown is not permitted to lead evidence of specific acts of bad conduct. In R. v. Brown (1999), 1999 CanLII 2539 (ON CA), 137 C.C.C. (3d) 400 Rosenberg J.A. wrote: [32] The law as it has developed to date is that where the Crown proposes to call extrinsic evidence in reply, solely to rebut evidence of the accused's good character, the Crown may not lead evidence of specific acts of bad conduct. The only established exception to this rule is for acts that would also constitute evidence of similar facts. Otherwise, the Crown is limited to leading evidence of general reputation, the accused's criminal record pursuant to s. 666 of the Criminal Code, or s. 12 of the Canada Evidence Act if the accused testifies, or possibly expert evidence of disposition. See R. v. McNamara et al. (No.1) at 348‑49; R. v. Tierney (1982), 1982 CanLII 3669 (ON CA), 70 C.C.C. (2d) 481 (Ont. C.A.) at 485‑86; R. v. Donovan (1991), 1991 CanLII 11717 (ON CA), 65 C.C.C. (3d) 511 (Ont. C.A.) at 534‑5. [62] Wigmore On Evidence Tillers Revision, 1983, Little Brown Company) summarizes the law as follows: .. It has already been seen (§58 supra) that if defendant in criminal case chooses to offer his good character (for the appropriate trait) as an argument that he probably did not commit the offense charged, the prosecution may by counterevidence dispute the existence in him of the good character thus alleged; and it has also been seen that the fact thus to be proved or disproved is the real disposition or character of the defendant, of which reputation or anything else is merely evidence (§52 supra). The question thus arises of how the character is to be proved or disproved. It has been noted (§§52 and 53 supra) that there are three conceivable ways of evidencing character: (1) reputation of the community, which is open to the objection of being hearsay (§1608 infra); (2) personal knowledge or opinion of those who know the defendant, which is open to the objection of the opinion rule (§1980 infra); (3) particular acts of the defendant’s misconduct exhibiting the particular trait involved. This last sort of evidence is now to be considered. The law here declares general and absolute rule of exclusion. It is forbidden, in showing that the defendant has not the good character that he affirms, to resort to particular acts of misconduct by him. [63] This begs the question, if evidence of prior specific acts of misconduct is inadmissible in reply, how is it that the Crown can be permitted to ask such questions in cross-examination. need not answer the question to dispose of this appeal. The complaint by the appellant was that the Crown should have, if it had the evidence, led it in reply. For the reasons already expressed, the evidence was not admissible in reply to rebut what the Crown alleges was the good character evidence of the appellant. [64] If the appellant did not put his character in issue by his denial of ever having knowingly threatened anyone, the questions were impermissible. But what is the impact of these questions? It appears clear that no charge was ever laid against the appellant with respect to the allegation that he had threatened the President of the university in 2005. Not having been convicted, the Crown was stuck with the answer given by the appellant in cross-examination, that he had not in fact threatened the President. If the trial had occurred before jury, there is no doubt that an appropriate direction to the jury would have been required as to the use they could make of the evidence. [65] Here the trial was before very experienced trial judge. In the judge’s reasons it is difficult to be certain of the impact of the cross-examination. The only reference in the decision to this evidence was: Now, Mr. Buckley testified that he never threatened anybody, he wouldn’t threaten anybody, he’s never threatened anybody, although he was cross-examined quite vigorously on that issue. [66] In my opinion the cross-examination of the appellant was improper. There was no application by the Crown to obtain ruling from the trial judge that the accused may have put his character in issue. The appellant was self-represented. The trial judge should have intervened to ensure that the appellant understood the potential consequences if in fact he was deciding to put his character in issue. Furthermore the cross-examination was about the very kind of act that he was on trial for–uttering death threat by email. The cross-examination was highly prejudicial; as was the Crown’s questions of the appellant about the doctors he may have seen in 2005; was he under the care of psychiatrist; the fact he had undergone 30 day psychiatric assessment in relation to the charge before the Court; and whether he had read the report. These questions appeared to be designed to paint the appellant as someone who had, and was still suffering from, psychiatric illness and therefore more likely to have committed the offence before the Court, or not be credible. [67] will deal with the appropriate remedy later. Unreasonable Verdict [68] An appeal from summary conviction offence is governed by s. 822 of the Criminal Code, which in turn adopts the relevant provisions of the Code for appeals from conviction of indictable offences (ss. 683 to 689). Section 686 provides: 686(1) On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice; [69] The appellant did not specifically identify the grounds upon which he sought to overturn the verdict. [70] In terms of the standard of review to be applied, where it is question of law, it is correctness; where it is contended that the verdict is unreasonable, am required to give considerable deference to the advantages afforded to trial judge, and not to substitute my view of the facts for that of the trial judge. This does not mean that the findings of fact by trial judge, even those in relation to credibility, are immune from appellate review. This was confirmed by McLachlin C.J. in R. v. W. R.), 1992 CanLII 56 (SCC), [1992] S.C.R. 122, where she concluded: [20] It is thus clear that court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond reasonable doubt, must re‑examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, 1947 CanLII (SCC), [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), 1989 CanLII 31 (SCC), [1989] S.C.R. 446, at pp. 465‑66. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as matter of law it remains open to an appellate court to overturn verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable. [71] Here the trial judge concluded that the evidence of the appellant was not credible and rejected it. The trial judge did not give lengthy reasons for doing so: Mr. Buckley’s testimony to the contrary today although at different times he conceded some of these points, at other times he denied them, is not credible. It certainly does not accord with the preponderance of all of the probabilities, given what he had said at the Math Lab and his evidence today to the contrary is rejected and it certainly doesn’t raise reasonable doubt as to certainly what he did or, in my opinion, what he intended to do. [72] need not review the reasonableness of the conclusion of the trial judge as to the credibility of the accused. What is fatal to the validity of the trial judge’s conclusion on credibility is the extent of inadmissible evidence adduced by the Crown in direct and in cross-examination of the appellant. It was unfair to permit the Crown to cross-examine the appellant on specific acts of alleged misconduct, particularly where they alleged the very same act. It was highly prejudicial and clearly put the appellant in poor light. This includes the suggestion that the appellant had a psychiatric illness, both before and after the email was sent, as long ago as 2005. [73] There were also several instances where the Crown, in the course of cross-examining the appellant, misstated the evidence to him. have already detailed the inadmissible evidence in direct and in cross-examination. Before cataloguing the misstatement of evidence to the accused in cross-examination, it is convenient to first focus on failure of the Crown and the trial judge to consider and resolve one of the essential elements of the offence. [74] set out earlier the essential elements of the offence that the Crown was required to prove beyond reasonable doubt. For convenience will repeat them. They are as follows: that on or about October 25, 2007 at or near Antigonish, Nova Scotia an electronic email transmission was sent to Martin VanBommel; the electronic email transmission contained threat to cause death to Martin Van Bommel; the identity of the accused as the person who knowingly sent the email that the accused intended the email message to intimidate or be taken seriously by Martin Van Bommel. [75] The issue that the Crown and trial judge failed to address was whether the appellant in fact knowingly uttered what the trial judge found to be threat–that is the words in the attachment (Exhibit #2). The Crown in essence argued that the only issue was whether the appellant meant the threat to be taken seriously and suggested that Mr. Van Bommel took it seriously as threat. The trial judge said: The issue really here, is what was his intention when he forwarded this message, in particular the one that described and what inferences can be drawn from what he said to Professor Van Bommel the next day? [76] With all due respect, the evidence of the appellant was that he was the author of the attachment. He testified that he had typed the words in order to get reaction from whoever was monitoring his key strokes. When the Crown asked him if he had sent the attachment to have Van Bommel take look at it, the appellant admitted he would often send such attachments to Van Bommel, but could not admit sending this one, as this attachment was program that was more mature, that he had attached an attachment the first time, it was definitely not Exhibit #2 and when he got return to sender quickly, he in haste, did attach another one, and it was good chance it was Exhibit #2. [77] After then cross-examining the appellant on the allegations he had made threats in 2005 by email and was under psychiatric care, the appellant denied that the words were threat. He explained that when the program is booted up, you would not see those words. He then elaborated that he had not looked at the attachment (Exhibit 2) he had sent to Professor Van Bommel. The Crown turned to the conversation between Van Bommel and the appellant at the Math Resource Centre on October 25, 2007. [78] The appellant repeated that he did not think he had sent Exhibit #2 to Van Bommel. The following is the full exchange: Q. Uh-huh. We were talking about the Math Resource Centre and you talking to Mr. Van Bommel. A. Yes, yes, came early the next morning before the mid-term ah because checked my e-mail, but my in-box was so full that did not receive his reply. Q. You talked to him in person at the Math Resource Centre, Mr. Buckley. Yes, yes. went in and asked for ah my program, if it was working, why it wasn’t working because it should have been working. A. You know, he said didn’t have semi-colons in it. was pretty sure there were semi-colons. Umm Q. Mr. Buckley, he also told you he was disturbed by the words contained in that program, including, “I’m going to kill you.”, right? A. And and that’s what shocked me because didn’t think sent him this exact program. Not that I’m ashamed that did Q. Okay, but you didn’t tell him that. You told him that you sent it to get reaction. A. No, did tell him that. said, “Whoa –“, go because he said, you know, that really concerned me and and was flabbergasted. didn’t know what what concerned him and said, “Excuse me.” and then this this is what he handed me. A. And that’s when said, “Oh. Oh, wow.” go “There’s no way I’d send you that.” Q. You told him that you sent it to get reaction. Do you deny saying that to Mr. Van Bommel? A. [No response] Q. That’s what you said to him, Mr. Buckley. You said, “Someone was monitoring –“ your keyboard” or your computer.” and you sent it to him to get reaction. Q. Do you remember saying that? A. Well, at one at one time probably said something ah very close to that. Umm think but you see you’re putting more emphasis on the “reaction”. was putting more emphasis on the fact that there’s watch dog group monitoring my every key stroke. Umm was was more or less searching for leads. [79] It is abundantly clear from the evidence of the appellant that it was very much live issue as to whether or not he had knowingly sent the attachment that contained the words alleged to be threat. No reference was made by the Crown or by the trial judge to this important issue. Unfortunately the appellant was self-represented at trial. In my opinion, the failure to deal with an issue raised by the defence, where reasonable doubt about such an issue would mandate an acquittal, amounts to an error in law. This alone makes the verdict unsustainable and mandates new trial. prefer not to rest my decision on this issue. [80] The significance of this evidence should have been obvious. Why it was overlooked is, suspect, at least in part due to the repeated misstatement by the Crown not just to the appellant but to the trial judge as well as to what was said by the appellant. [81] In the exchange during the appellant’s cross-examination the Crown repeatedly misquoted or misstated the evidence of Van Bommel to the appellant. The Crown suggested You told him that you sent it to get reaction. Do you deny saying that to Mr. Van Bommel?; and, “That’s what you said to him, Mr. Buckley. You said, Someone was monitoring–“your–“keyboard–or your –“–computer.’–and you sent it to him to get reaction.” This was patently not the evidence of Mr. Van Bommel at all. He testified in direct, and again on questions by the trial judge, that the appellant had explained he had typed those words to get reaction from whoever was monitoring his keystrokes. At no time did Mr. Van Bommel or the appellant ever testify that the appellant had sent the attachment to Van Bommel to get reaction from Van Bommel. [82] have already referred to the duty on an appellate court in reviewing verdict. The test is the same whether it is jury trial or judge alone. The general principles for reviewing verdict were set out in R. v. Biniaris 2000 SCC 15 (CanLII), [2000] S.C.R. 381. Arbour J. in delivering the reasons for judgment for the court, wrote: [36] The test for an appellate court determining whether the verdict of jury or the judgment of trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows: [C]urial review is invited whenever jury goes beyond reasonable standard... [T]he test is 'whether the verdict is one that properly instructed jury acting judicially, could reasonably have rendered'. (Yebes, supra, at p. 185 (quoting Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] S.C.R. 275, at p. 282, per Pigeon J.).) That formulation of the test imports both an objective assessment and, to some extent, subjective one. It requires the appeal court to determine what verdict reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or subjective test. [37] The Yebes test is expressed in terms of verdict reached by jury. It is, however, equally applicable to the judgment of judge sitting at trial without jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. [83] One of the essential elements the Crown was required to prove beyond reasonable doubt was did the accused utter threat to Martin Van Bommel to cause death to him. The words themselves did not contain direct threat to do any such thing. The attachment was program with many characters and some text. Included were such phrases as “cootie, twinki, bikini;\\par”; and “cout << have nice day\\par; and “cout << “me so horny”;\\par”; and “cout<<“HAHA good job, but am going to kill you”;\\par” [84] The uncontradicted evidence of Professor Van Bommel was that he did not feel the phrase in the attachment (Exhibit #2) “but am going to kill you” were directed at him. Van Bommel found that phrase, and the phrase “me so horny”, to be disturbing. He forwarded the email to Mr. MacAulay because of his earlier request to advise him of any unusual behaviour by the appellant. [85] There is considerable authority for the proposition that the question whether words uttered amount to threat is question of law and not one of fact. In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] S.C.R. 72, Cory J., for the court, wrote: [26] At the outset should state that in my view the decision as to whether the written or spoken words in question constitutes threat to cause serious bodily harm is an issue of law and not of fact. How then should court approach the issue? The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat. [27] The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey threat of serious bodily harm to reasonable person? [86] This was the approach adopted by the Ontario Court of Appeal in R. v. Batista 2009 ONCA 804 (CanLII) (2008) 238 C.C.C. (3d) 97. There the impugned words were in poem the appellant had posted that contained words parking enforcement officer, police officer and the complainant, found to be threat to cause death to the complainant. The trial judge was found to have erred by not construing and considering the words as they would be by the “average reasonable person”. Epstein J.A., writing the judgment for the court, approached the issue whether reasonable person would find the words used to be threat keeping in mind the context of the Criminal Code enactment was to protect against fear and intimidation. The reasonable person must be objective, fully-informed, right-minded, dispassionate, practical and realistic. [87] need not come to any firm conclusion on whether this issue is strictly question of law or whether the trial judge articulated and applied the correct legal test, as it is my opinion, the conclusion the appellant intended to threaten to cause death to Martin Van Bommel was unreasonable. [88] The trial judge did not accept the evidence of the appellant. The reason he did so was because it did not accord with the preponderance of all of the probabilities, “given what he had said at the Math Lab” and his evidence at trial was therefore rejected. With respect, there was nothing in his evidence at trial that was at odds to the evidence of what he had said at the Math Lab. [89] In any event, rejection of his evidence cannot assist in establishing the essential elements of the offence. As noted earlier, the trial judge found that the only issue is what was the appellant’s intention, and what inferences could be drawn from what the appellant said to Professor Van Bommel on October 25, 2007 (at the Math Lab). [90] Where the Crown’s case is based on circumstantial evidence, the reviewing court must be satisfied that the guilt of the accused is the only rational inference to be drawn from the evidence. Cromwell J.A., as he then was, specifically addressed this issue in R. v. Barrett, 2004 NSCA 38 (CanLII), (2004), 222 N.S.R. (2d) 182. He discussed the correct approach as follows: [18] Yebes, leading case on the reasonable verdict test on appellate review, was case of circumstantial evidence. One of the points argued before the Supreme Court of Canada was that the Court of Appeal had failed to apply the correct test in reviewing the reasonableness of conviction where the evidence against the appellant was entirely circumstantial. Responding to this submission, McIntrye, J. for the Court stated that in applying the unreasonable verdict test, the appellate court must re‑examine and to some extent reweigh and consider the effect of the evidence. This process, he said, will be the same whether the case is based on circumstantial or direct evidence. However, he pointed out that the Court of Appeal had ""... rejected all rational inferences offering an alternative to the conclusion of guilt"" and that it was ""... therefore clear that the law was correctly understood and applied."": at 186. In Yebes the Court acknowledged that evidence of motive and opportunity alone could not meet this standard unless the evidence reasonably supported the conclusion of exclusive opportunity: see 186 190. [19] would conclude that while the test for whether verdict is reasonable is the same in all cases, where the Crown's case is entirely circumstantial, the reasonableness of the verdict must be assessed in light of the requirement that circumstantial evidence be consistent with guilt and inconsistent with innocence: see Yebes at page 185 where this formulation was said to be the equivalent of the requirement that the circumstantial evidence be inconsistent with any rational conclusion other than guilt. This was summed up by Low, J.A. in R. v. Dhillon (2001), 2001 BCCA 555 (CanLII), 158 C.C.C. (3d) 353 (B.C.C.A.). At para 102, he stated that where the Crown's case is entirely circumstantial, the appellate court applying the unreasonable verdict test must determine ""... whether properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is that the appellant..."" was guilty. [91] Here the case against the appellant was entirely circumstantial. The exchange between Van Bommel and the appellant figured heavily in the reasons of the trial judge as to what inference was to be drawn. Unfortunately the trial judge misapprehended what the evidence was with respect to that exchange. His reasons were: During the conversation at the Math Lab, Mister or Professor Van Bommel confronted Mr. Buckley about the e-mail. He testified that earlier he had been quite disturbed when he read that and that he had sent it on to other personnel, Mr. MacAulay, in particular, at the university, because of the disturbing nature of the of the contents of the e-mail. He confronted Mr. Buckley about it and Mr. Buckley confirmed that he had in fact sent the e-mail and that he had sent it for specific purpose. He had been concerned that people were monitoring his e-mail and he sent and he included these words, together with other phrases to guess quote the testimony of Professor Van Bommel, to get reaction.” Now it’s quite clear that Mr. Buckley intended to put these words into the e-mail. He intended to send it to Professor Van Bommel and he intended Professor Van Bommel to open the e-mail. The only reasonable inference that one can draw is that he intended Professor Van Bommel to read the contents of the e-mail, including the phrase that just described. It was his intention to get reaction. The only reasonable inference that one can draw or can conclude from all this is that he wanted to get reaction from Professor Van Bommel and, in particular, as result of the words that just described. They were not written in jest. In the context of the of all of the circumstances, they were designed to get reaction. In other words, they were designed to be taken seriously by the reader of the e-mail, in this case, Professor Van Bommel, who was the person was the recipient of the e-mail. They were designed to intimidate him, in the true sense of the word. They were menacing and they were designed to disturb him and upset him, i.e., “Get reaction.”, as he indicated to Mister or to Professor Van Bommel when he met him at the Math Lab. [92] As set out earlier Professor Van Bommel was aware of the appellant’s fear or belief that someone was monitoring his key strokes when he was using his home computer. This fear, rational or otherwise, was not new phenomenon. The appellant had expressed this to Van Bommel weeks before the conversation on October 25, 2007 at the ‘Math Lab’. This expressed fear was one of the reasons the appellant would be in the Math Resource Centre using the computer facilities. The email and attachment came from the appellant’s home computer. [93] Van Bommel, testifying from notes he made of his conversation with the appellant, did not say the email was sent to get reaction, but that the appellant told him he had typed those messages in that file to get reaction from whoever was monitoring his typing. This evidence was repeated when the trial judge questioned Professor Van Bommel: Q. Okay. Okay. Now just to again clarify. He said he “– put these in –“ for what purpose? A. The comment he made was he, “– thought someone was monitoring his typing and he wanted to get reaction.” A. Whoever was monitoring his typing. [94] The trial judge even confirmed with Van Bommel that students at the university have access to computers, which are hooked into network at the university and it is not impossible to monitor somebody’s typing. [95] Contrary to what the trial judge believed, Van Bommel never described that the appellant had expressed concern that people were monitoring his email or that he had sent the email to get reaction. [96] What the appellant actually said to Van Bommel on October 25, 2007 was crucial conversation. It was relied upon by the trial judge to justify the inferences he drew about what the appellant’s intention was. Unfortunately, the trial judge misapprehended this evidence. Without this misapprehension, what inferences would actually be open for trier of fact, properly instructed, and acting reasonably could draw? [97] Leaving aside any issue as to the credibility of the appellant, the inference to be drawn about the appellant’s intention must be based on the view of reasonable person, where that person is fully informed, dispassionate and objective. The Crown at trial advocated that such reasonable person was Professor Van Bommel himself. However, Van Bommel testified he did not take the comment “HAHA good job, but now am going to kill you” as being threat directed at him. [98] Taking into account all of the circumstances, including the words used; the fact they appeared in an attachment as part of a computer program containing other unusual phrases; there was no animosity between the person who received the attachment, Professor Van Bommel and the appellant; and no reason for the appellant to want to intimidate or provoke Van Bommel, it is equally open to infer that the words had been typed in that file to get a reaction from people that the appellant, rationally or otherwise, believed to be monitoring his key strokes, and did not constitute a threat to cause death to Martin Van Bommel, nor can it properly be concluded that the appellant intended to do so. SUMMARY AND CONCLUSION [99] With all due respect to the trial judge, the trial was unsatisfactory in number of respects. The trial judge erred in law in permitting inadmissible evidence to be adduced from Mark MacAulay; in failing to intervene when the Crown assumed that the appellant had put his character in issue and in permitting the Crown to cross-examine the appellant on prior specific acts of misconduct and other extraneous matters. find there was no error in terms of the Crown failing to lead evidence to substantiate the suggestions it made in cross-examination of the appellant. To do so would have been highly improper. [100] The trial judge made findings of credibility against the appellant. The evidence wrongly admitted put the appellant in bad light. While no one instance would necessarily be fatal, the cumulative effect cannot be ignored. The Crown has not satisfied me that the verdict would necessarily have been the same. The normal remedy under s. 686(2) for such errors would be to quash the conviction and order new trial. Instead I quash the conviction and enter an acquittal. do so as result of my conclusion that the trial judge misapprehended significant evidence which led to an unreasonable verdict. [101] In light of my conclusion need not consider the sentence appeal. Beveridge, J.","An unrepresented university student appealed his conviction for uttering threats after he sent an email to his computer science professor requesting his assistance to de-bug a program contained in an attachment. The attachment was text file with lot of extra characters, including messages that read 'good job, but am going to kill you' and 'I am so horny.' Although the professor had not taken the content of the attachment as threat, he had sent it on to university officials as he had been requested to alert them to any odd or unusual behaviour by the student. The student later advised the professor that he had typed the messages because he thought someone was monitoring what he was typing and he was trying to get reaction out of them. He also testified that he had not intended to send that particular attachment to the professor. Appeal allowed; conviction quashed. The trial judge erred in permitting inadmissible evidence to be adduced from the university administration to the effect that the accused had a psychiatric illness and, in failing to intervene when the Crown assumed that the student had put his character in issue and cross-examined him as to alleged prior acts of misconduct and other extraneous matters, the cumulative effect of which was fatal to the trial judge's findings of credibility. The case against the student was entirely circumstantial and it was equally open to infer that the words had been typed in the file to get a reaction from people that the student, rationally or otherwise, believed to be monitoring his keystrokes and did not constitute a threat to cause death to the professor.",e_2009nssc204.txt
155,"J. C.A. No. 131106 NOVA SCOTIA COURT OF APPEAL Chipman, Matthews and Flinn, JJ.A. BETWEEN: FUTURE INNS CANADA INC. and LABOUR RELATIONS BOARD (NOVA SCOTIA); THE ATTORNEY GENERAL OF NOVA SCOTIA representing HER MAJESTY THE QUEEN in the right of the Province of Nova Scotia; DIRECTOR OF PUBLIC PROSECUTIONS; HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, LOCAL 662; JEAN DEARMAN; GLORIA RAFUSE; CINDY MILLIGAN; LINDA RAFUSE; and PATRICIA HUBLEY Respondents Ian Blue, Q.C. and Blair H. Mitchell for the Appellant Louise Walsh Poirier for the Respondent, Labour Relations Board Gordon Forsyth for the Respondents Union and Jean Dearman, Gloria Rafuse, Cindy Milligan, Linda Rafuse and Patricia Hubley Appeal Heard: February 5, 1997 Judgment Delivered: February 26, 1997 THE COURT: The appeal is allowed with costs; the order of the Chambers judge is set aside and the matter is remitted to the Board for a rehearing as per reasons for judgment of Chipman, J.A.; Matthews and Flinn, JJ.A., concurring. CHIPMAN, J.A.: This is an appeal by Future Inns Canada Inc. from a judgment in the Supreme Court dismissing certiorari applications to quash three orders of the Labour Relations Board (Nova Scotia) ordering Future Inns to reinstate the individual respondents, to pay them compensation, and refusing to reconsider the first two orders. Other respondents are Hotel Employees Restaurant Employees International Union, Local 662, (the Union); the Labour Relations Board (Nova Scotia), (the Board); The Attorney General of Nova Scotia and the Director of Public Prosecutions. The last two named respondents did not appear at the appeal. Future Inns operates 120 room hotel in Dartmouth, which has been in business since September, 1989. It offers no frills accommodation. The hotel manager is Dorothy Lemire. Reporting to her are the head housekeeper, the assistant housekeeper, desk clerks and the maintenance man. There are about 20 housekeepers. Ms. Lemire is responsible for the discipline of the employees working under her. Housekeepers start work at 8:00 a.m. and leave after cleaning the guest rooms for which they are responsible. This is usually between 2:30 p.m. and 4:00 p.m. On Saturdays their work commences at 9:00 a.m. and they leave when they finish. Each day nine housekeepers are scheduled, and each is expected to clean about 12 to 15 rooms. Ms. Lemire normally works from 8:00 a.m. to 3:00 p.m., but is often called upon to return to the hotel to attend to various situations such as improperly cleaned rooms. Ms. Lemire testified before the Board about the need for quality housekeeping in the hotel. She often checked rooms personally. If rooms were not properly cleaned, the housekeeper would be sent back, and in the case of repeated deficiencies, reprimands and ultimately dismissals followed. On December 2, 1994, Ms. Lemire and the head housekeeper met with the housekeepers to emphasize the importance of proper cleaning of the rooms. On the following Monday, Ms. Lemire found that room cleaned by the respondent, Gloria Rafuse, was not properly done. She suspended Ms. Rafuse for one week. She also posted notice warning that if rooms were not cleaned to the satisfaction of the manager and head housekeeper, one week suspension could follow. In February, 1995, Ms. Lemire was concerned about the quality of the housekeeping and its effect upon the hotel's business and reputation. On Friday, February 10, 1995, Ms. Lemire had left work at 3:00 p.m. but returned to the hotel about 4:30 p.m. While she was at the front desk, guest called to complain about no towels. Ms. Lemire took the towels to the guest and decided to check some other rooms. In her room check she found pair of underpants under the bed in room that Jean Dearman had cleaned. She also found bloody kleenex, dirty kleenex, candy wrappers and pieces of wool in rooms cleaned by Gloria Rafuse. She thereupon determined to fire Dearman and Gloria Rafuse. She advised her employers of this intention. She made arrangements with the hotel's accountant to make up the final pay for Dearman and Gloria Rafuse. She picked up the documents at the accountant's office and drove to Dearman's home in Dartmouth. She arrived at 6:00 p.m. She advised Dearman that she was being dismissed ""due to neglect of duties"". She went to Gloria Rafuse's home in Windsor Junction, but she was not at home. On the following day, Saturday, February 11th, Ms. Lemire went to the hotel to deliver notice to Gloria Rafuse. They met in the housekeepers' room. Ms. Lemire told her she was dismissed. When asked why, she said it was because of ""lack of duties"". She advised Gloria Rafuse that she had personally checked her room. Gloria Rafuse then cleaned out her locker. She discussed the matter with the respondents Linda Rafuse, Patricia Hubley and Cindy Milligan. The four of them then walked upstairs, put their keys in the front desk, and walked out together. Ms. Lemire asked Linda Rafuse if she was working that day and was told that none of them was. Ms. Lemire said that she was then left with 54 rooms to clean on Saturday and no housekeepers to clean them. Ms. Lemire decided that Milligan, Hubley and Linda Rafuse had quit, and did not want them to return. On the following Monday, Linda Rafuse, Hubley and Milligan arrived at the hotel and asked Lemire for their jobs back. Lemire refused, saying that anybody leaving her with 54 rooms did not deserve to have job. In the meantime other events occurred in late January and early February, 1995. The respondent Dearman had become concerned about Gloria Rafuse's one week suspension in December and the suspension of another housekeeper for missing glass and an unlocked window in room. Ms. Dearman's husband belonged to union. He contacted Paul Burgwin, representative of the respondent Union. Paul Burgwin asked Ms. Dearman to get the housekeepers together for meeting. In January, 1995, Dearman discussed forming union with them. These discussions took place in an outside smoking area and at nearby Tim Hortons and took place over period of two weeks. meeting was scheduled for Ms. Dearman's home on the evening of Wednesday, February 8, 1995, to which all the individual respondents were invited. further meeting was arranged for Sunday, February 12th, to sign up union membership cards and collect dues. On February 13, 1995, the Union, on behalf of the respondents Dearman, Gloria Rafuse and Cindy Milligan made complaint of unfair labour practice to the Board on Form 16 under the Act against Future Inns. It alleged: Nature of Complaint: The individual complainant are all members of the Complainant Union. The Union has been organizing employees of the Respondent in connection with an application for certification pursuant to the Trade Union Act of Nova Scotia which was made on February 13, 1995. The individual complainants were dismissed from their employment on February 10 and 11, 1995, because of their support for the Union. The Respondent is refusing to employ the complainants because they are members of trade union and have participated in the activities of trade union. The Respondent is attempting to intimidate its employees to compel them to refrain from being member of trade union or participating in the activities of trade union. On February 15, 1995, the Union, on behalf of the respondents Linda Rafuse and Patricia Hubley, filed complaint against Future Inns on Form 16 in the same terms. The complaints were heard by panel of the Board on April 26, June 27 and 28, 1995. The Union was represented by counsel. Future Inns was represented by Charles Henman, lay person. The Board heard the testimony of Ms. Dearman, Linda Rafuse, Gloria Rafuse, Paul Burgwin and Ms. Lemire. Following the hearing, the Board issued Order LRB 4367 on July 19th which dismissed the respondent Union's application for certification. The order then disposed of the complaints of unfair labour practices as follows: AND the Board having been satisfied that the acts of Unfair Labour Practice were committed pursuant to Section 53 of the Trade Union Act; ... AND the Board does further order the Respondent to reinstate Jean Dearman, Gloria Rafuse, Cindy Milligan, Linda Rafuse and Patricia Hubley to their former positions and to pay to these individuals all compensation earned as if they had not been terminated by the Respondent. AND the Board retains jurisdiction in this matter should the parties be unable to reach agreement on the issue of compensation entitled to be received by these five employees. On October 16, 1995, the Board issued an order reciting Order LRB 4267, that the Board had been reconvened for hearing on the matter of compensation, was satisfied that none of the five former employees had been reinstated or compensated, and that Linda Rafuse, Gloria Rafuse and Patricia Hubley still sought reinstatement and compensation while Jean Dearman and Cindy Milligan no longer sought reinstatement, but compensation only. The order then required Future Inns to make compensation as follows: Linda Rafuse 9,465.92 Gloria Rafuse 7,222.45 Patricia Hubley 5,081.63 Jean Dearman 3,537.09 Cindy Milligan 4,326.63 TOTAL: $29,633.72 The Board further made calculations of the pay periods for Linda Rafuse, Gloria Rafuse and Patricia Hubley in the event reinstatement did not occur on October 16, 1995. By letter dated October 26, 1995, the interim Chief Executive Officer of the Board denied Future Inns leave to bring an application for reconsideration of Order LRB 4267. Future Inns has not reinstated any of the employees. As consequence of its failure to abide by the order of the Board, the Minister of Labour has given written consent to the prosecution of Future Inns under s. 86 of the Act for failure to comply with an order made under s. 57 thereof. Future Inns brought applications to the Supreme Court for orders in the nature of certiorari to quash the orders of the Board. The applications were heard on June 3, and 19, 1996, at which time evidence was adduced before the Chambers judge on behalf of Future Inns and the respondents. By decision dated August 9, 1996, the Chambers judge dismissed the applications of Future Inns and concluded: (a) The decisions of the Board were protected by the privative clause in paragraph 19(1) of the Act. They could only be reviewed on the standard of patent unreasonableness of the Board's decisions. (b) It was not possible to determine from the order of the Board what subsection of s. 53 of the Trade Union Act the Board found was violated, giving rise to an unfair labour practice. On review of the transcript and the evidence, the Chambers judge concluded that there was some evidence on which the Board could find an unfair labour practice. The privative clause in the Act precluded the court from weighing the evidence and coming to its own conclusion on this issue. As there was evidence upon which the Board could find that Future Inns committed an unfair labour practice, the decision of the Board was not patently unreasonable. (c) The Board had not breached the rules of natural justice in failing to advise Future Inns of its right to counsel even though there was no doubt that the Chair of the Board knew that Mr. Henman was ""out of his depth"". (d) Evidence relating to comment made by counsel for the respondent Union and to smiles or laughter on the part of some members of the Board did not raise reasonable apprehension of bias. (e) While it may have been preferable if the Board had given reasons for its decision, it was not obligated to do so, and thus did not act in procedurally unfair manner. Future Inns appeals to this Court, raising three principal issues procedural fairness, reasonable apprehension of bias and failure to give reasons. As have concluded that the Board's order must be quashed because it failed to give reasons, it is not necessary to deal with the other two issues. In recent years, with the development of multitude of tribunals with varying degrees of protection from judicial review, it has become fashionable for such tribunals to give reasons for their decisions. In many jurisdictions, the giving of reasons is now required by statute. In Nova Scotia, the Law Reform Commission has recommended that such legislation be enacted. See Final Report, Reform of the Administrative Justice System in Nova Scotia, January, 1997, pp. 55-57. The Chambers judge acknowledged that reasons would have been desirable. Nevertheless, we start this inquiry with the recognition that the Board is not bound by legislation to provide reasons for its decision and that in the absence of such requirement reasons are not generally mandated. We must canvass the authorities to see the extent to which we have the power at common law to quash the orders because no reasons were given. In Re R.D.R. Construction Limited v. Rent Review Commission (1983), 1982 CanLII 3265 (NS CA), 55 N.S.R. (2d) 71, this Court heard an appeal from the Rent Review Commission established under the Rent Review Act, 1975 S.N.S., c. 56. The appeal was, by s. 27 of the Act, confined to question law or jurisdiction. The appellant landlord requested rent increase from the Residential Tenancy Officer who dealt with the application at hearing and issued decision fixing approved rents. The Officer's decision was appealed to the Commission which held hearing. The Commission refused to provide certain information respecting the process followed by the officer in fixing the rents. In deciding that there was failure of natural justice on the part of the Commission going to jurisdiction in that it did not make the information available to the appellant, Cooper, J.A., on behalf of this Court, said at p. 81: In my opinion fair play in this case requires that the record of the proceedings before the Officer should have been made available to the appellant. This is particularly important where, as here, the Officer's decision does not contain reasons but only recital of what was done and the result. In particular her reasons for rejecting the financial information and the conclusions drawn from it by the appellant were not given. How then could the appellant adequately present its case before the Commission or decide what additional evidence it should adduce? At p. 83 Cooper, J.A. said: It has been commonly accepted that in the absence of statutory requirement person in the position of the Officer is not bound to give reasons for his or her decision. in Re Glendenning Motorways Inc. and Royal Transportation Ltd. et al. (1975), 1975 CanLII 1116 (MB CA), 59 D.L.R. (3d) 89 (Man. C.A.), Hall, J.A., said at p. 92, referring to decision of the Highway Traffic and Motor Transport Board of Manitoba: On the question of whether the Board is required to give written reasons for its decision approving the application, again, there is no statutory requirement for this to be done. Whether it should be is, of course, matter for the Legislature. Unless the court is prepared on some basis to compel the Board to give written reasons, cannot see any useful purpose in repeatedly expressing desire that the Board furnish written reasons for its decision. But in Norton Tool Co. Ltd. v. Tewson, [1973] W.L.R. 45 (National Industrial Relations Court), Sir John Donaldson for the court had this to say at p. 49: Our jurisdiction is limited to consideration of questions of law. Accordingly, it is not sufficient for an appellant to satisfy this court that, within the range of discretion conferred upon the tribunal, it might or even would have reached different conclusion. If an appellant is to succeed, he must satisfy this court that the tribunal has erred in principle. But it is corollary of the discretion conferred upon the tribunals that it is their duty to set out their reasoning in sufficient detail to show the principles upon which they have proceeded. similar obligation lies upon this court, when sitting as court of first instance from which appeal lies to the Court of Appeal on questions of law alone. Were it otherwise, the parties would in effect be deprived of their right of appeal on questions of law. No great elaboration is required and the task should not constitute burden... In deSmith's, Judicial Review of Administrative Action (4th Ed.) at p. 148, after the author had stated ""There is no general rule of English law that reasons must be given for administrative (or indeed judicial) decisions"" he said at p. 149: In certain other situations there may be an implied duty to state the reasons or grounds for decision (Michael Akehurst, 'Statements of Reasons for Judicial and Administrative Decisions' (1970) 33 M.L.R. 1954). person prejudicially affected by decision must be adequately notified of the case he has to meet in order to exercise any right he may have to make further representations (see Chap. 4, post) or effectively to exercise right of appeal (Norton Tool Co. Ltd. v. Tewson, [1973] W.L.R. 45, 49, and cases cited in note 11, ante)... It seems to me that in this case there was such an implied duty for the reasons stated in the passage from deSmith, which have just quoted. (emphasis added) In Re Yarmouth Housing Ltd. v. Rent Review Commission (1982), 1982 CanLII 2887 (NS CA), 54 N.S.R. (2d) 28, this Court heard an appeal from the Rent Review Commission which confirmed the decision of tenancy officer denying requested rent increase. An appeal to this Court pursuant to the Rent Review Act was allowed on the ground that the Commission erred in law the fixing the approved rent. After holding that the matter should be remitted to the Commission, Cooper, J.A., on behalf of the Court, said at p. 41: add also that in my opinion the Commission is required to give reasons for its decisions. This question was considered by this court in R.D.R. Construction Limited v. Rent Review Commission, ., with respect to decisions of residential tenancy officers. It was there stated that there was an implied duty on the part of such officers to give reasons for their decisions and reference was made to Norton Tool Co. Ltd. v. Tewson, [1973] W.L.R. 45, and deSmith's, Judicial Review of Administrative Action (4th Ed.) at p. 148. In my view the same reasoning applied to decisions of the Commission. It should not confine itself merely to recital of the information before it and its conclusions, but it has duty to set out why it has rejected the information and evidence produced before it by the applicant. The applicant is entitled to know on what grounds his appeal has been rejected and where, in the opinion of the Commission, he has gone wrong. (emphasis added) recent case dealing with failure to give reasons is Re Williams v. Minister of Citizenship and Immigration (1996), 1996 CanLII 4093 (FC), 139 D.L.R. (4th) 658 (F.C.T.D.). There, Reed, J. of the Federal Court, Trial Division, quashed decision of delegate of the Minister of Citizenship and Immigration determining that the applicant should be deported. The applicant was permanent resident of Canada who had lived in the country for some 21 years. He had been convicted of serious drug related offences and the Minister's delegate determined, under s. 70(5) of the Immigration Act, that he was danger to the public and should be deported. The delegate gave no reasons for his decision. On an application for judicial review, it was urged that the decision was inconsistent with s. of the Charter and s. 2(e) of the Canadian Bill of Rights. The headnote in the report summarizes the court's reasoning: The concept of danger to the public is not so vague that it provides insufficient guidance for informed legal debate. Nevertheless, the principles of fundamental justice, natural justice and fairness require that the permanent resident be given the reasons for the determination that he was danger to the public. Reasons are required because the consequences of the decision are substantial, and the decision-making process gives no assurance that the ultimate decision-maker has considered the permanent resident's submissions. In addition, without reasons, it is not clear what criteria in determining danger to the public are being applied, and whether they are consistent and lawful. At p. 670, Reed, J. referred to the text by deSmith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (London: Sweet Maxwell, 1995) containing discussion of the extent to which the principles of natural justice require decision maker to give reasons. There is such requirement where statute expressly or impliedly so requires, and in limited situations where reasons are important to assess whether an action for judicial review can be maintained Reed, J. said at p. 670: This last is said to exist when the issue for the individual is of such importance that he cannot be left to receive an unreasoned decision, as if ""the distant oracle has spoken and that is that"" (R. v. Secretary of State for the Home Department, ex p. Doody, [1994] A.C. 531 (H.L.) at 565). Reed, J. referred to R. v. Civil Service Appeal Board, ex p. Cunningham, [1991] All E.R. 310 (C.A.) where Lord Donaldson M.R. stated at p. 319: ...the Board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of free-wheeling palm tree. Reed, J. then referred to R. v. Secretary of State for the Home Department, ex p. Doody, supra, where Lord Mustill said at p. 564: It is not, as understand it, questioned that the decision of the Home Secretary on the penal element is susceptible to judicial review. To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. think it is important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed. At p. 672, Reed, J. reaches the following conclusions on the basis of material considered by her: The absence of jurisprudence with respect to the requirement of written reasons in Canada may exist because, in most cases, where section interests (or even lesser interests) are involved, there are statutory requirements that written reasons be given. The giving of reasons serves several purposes. First and perhaps most importantly, it gives some assurance to the individual concerned that his or her submissions have been considered (the absence of reasons can create disturbing impression of injustice). Secondly, it provides meaningful basis on which an assessment can be made as to whether or not to appeal the decision or to seek judicial review when that is the appropriate remedy. Thirdly, from the perspective of reviewing Court, indeed, in the case of judicial review, it is very difficult, often impossible, to know on what basis decision was made if reasons are not given. Reasons are not as important when full right of appeal exists. In such circumstances the reviewing Court can consider all the evidence and determine whether in its view errors exist with respect to the conclusions drawn. In the case of judicial review, however, reviewing Court starts with presumption that deference must be accorded to the decision-maker. person is entitled to some assurance that all factors have been considered, and to fair opportunity to exercise his or her right of judicial review with respect to decisions made inadequately. Reasons allow both the person concerned and Court, on judicial review, to know whether the appropriate legal test has been applied by the decision­maker. (emphasis added) Reed, J. has referred to three specific purposes served by the giving of such reasons. would add another which would be obvious to any judge. When one sits down to prepare the reasons to support conclusion tentatively reached, the articulation of the reasons tests the validity of the conclusion. At times, the writer is compelled to change the result. The preparation of supporting reasons is the best self-assessment decision maker can make of his or her decision. The greater the protection from judicial review accorded to Tribunal, the greater may be the need for reasons. In Williams, supra, Reed, J. said at p. 673: The circumstances of this case are such that the principles of fundamental justice, natural justice and fairness are not met unless the applicant is given reasons for the decision that has been made. This follows from number of considerations. In the first place the consequences for the individual are substantial. Secondly, the decision making-process (through three levels of immigration officials) gives no assurance that the ultimate decision-maker, in fact, considers the applicant's submissions directly. Thirdly, reading the Guidelines that have been issued, and the evidence of the applicant's offences that formed the basis for the decision, it is not clear what reasoning led to this applicant being found to be present or future danger to the public. Fourthly, in the absence of even brief reasons, reviewing Court on judicial review cannot determine whether the decision-makers (the delegates of the Minister) are applying consistent and lawful criteria in making decisions that an individual is danger to the public in Canada. The respondents refer to R. v. Burns (1994), 1994 CanLII 127 (SCC), 165 N. R. 374 (S.C.C.). There, the British Columbia Court of Appeal set aside convictions for indecent assault and sexual assault and ordered new trial because the reasons of the trial judge did not enable the court to determine whether the judge had properly directed himself to all the evidence and the legal questions bearing on the issues. The trial judge's reasons were indeed brief, consisting of statement that he had accepted the complainant's evidence as to the alleged incidents and that based thereon he was satisfied beyond reasonable doubt that the accused was guilty. In reversing the British Columbia Court of Appeal, the Supreme Court of Canada, in addressing the duty of trial judge to give reasons said at p. 382: Failure to indicate expressly that all relevant considerations have been taken into account in arriving at verdict is not basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points: see R. v. Smith (D.A.), 1990 CanLII 99 (SCC), [1990] S.C.R. 991; 111 N.R. 144; 109 A.R. 160, affing. 1989 ABCA 187 (CanLII), 95 A.R. 304 (C.A.), and R. v. MacDonald, 1976 CanLII 140 (SCC), [1977] S.C.R. 665; N.R. 271. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit court of appeal to set aside the verdict. This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. Burns, supra, is not authority for the proposition that courts, let alone other tribunals, can render significant decisions without reasons in all cases. take this decision to mean that minimum requirement is that judge provide statement of conclusions in brief compass so that the court can then see if these are supported by the evidence. My view of Burns, supra, is confirmed upon reading of the short judgment of the Supreme Court of Canada delivered by lacobucci, J. in R. v. Barrett, 1995 CanLII 129 (SCC), [1995] S.C.R. 752: We all agree that this appeal is governed by the principles recently discussed by our Court in R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656, and related cases. The decision in Burns was not available to the Ontario Court of Appeal when it rendered its judgment. While it is clearly preferable to give reasons and although there may be some cases where reasons may be necessary, by itself, the absence of reasons of trial judge cannot be ground for appellate review when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances. The issue is the reasonableness of the finding not an absence or insufficiency of reasons. In this case, the basis for the ruling of the trial judge on the voir dire is clear. The only issue was credibility. The trial judge's ruling demonstrated that he did not accept the evidence of the accused. In these circumstances, the failure of the trial judge to state the basis of his decision on the voir dire did not occasion an error of law or miscarriage of justice. We also find no error in law in the charge to the jury. (emphasis added) It is to be observed that lacobucci, J. was careful to note that there may be some cases where reasons may be necessary. In Barret supra, it is clear that the court was satisfied that the ruling demonstrated that the trial judge did not accept the evidence of the accused. The only issue was credibility. The scope of appellate review in criminal case is wider than the standard of review of decision of tribunal protected by privative clause such as that contained in s. 19(1) of the Act. court can examine the evidence and reweigh it to some extent to determine whether the verdict was reasonable. Section 19(1) of the Act provides that decision or order of the Board in any proceeding ""is final and conclusive and not open to question or review"". It was common ground among the parties to this appeal that before decision so protected can be questioned, the appellant must demonstrate that it was patently unreasonable decision. In C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] S.C.R. 983 Laforest, J. said at pp. 1003-4: Where, as here, an administrative tribunal is protected by privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making patently unreasonable error of law in the performance of its function: see CUPE, Local 963 v. N.B. Liquor Corp., 1979 CanLII 23 (SCC), [1979] S.C.R. 227. The tribunal has the right to make errors, even serious ones, provided it does not act in manner ""so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review"". The test for review is ""severe test""; see Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] S.C.R. 476, at p. 493. This restricted scope of review requires the courts to adopt posture of deference to the decisions of the tribunal. Curial deference is more than just fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result ""patently unreasonable"". The courts must be careful to focus their inquiry on the existence of rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should be not so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result. Privative clauses, such as those contained in ss. 31 to 34 of the Code, are permissible exercises of the legislative authority and, to the extent that they restrict the scope of curial review within their constitutional jurisdiction, the Court should respect that limitation and defer to the Board. (emphasis added) In National Corn Growers Association et al. v. Canadian Import Tribunal (1990), 1990 CanLII 49 (SCC), 114 N.R. 81(S.C.C.), the Supreme Court of Canada affirmed decision of the Federal Court dismissing an application for judicial review claiming that the Tribunal decision was patently unreasonable. In his closing remarks, Gonthier, J. said at p. 122: would add one final observation. In the course of these reasons, have at times dealt in some detail with the manner in which the Tribunal arrived at its conclusion. Unlike my colleague, Wilson, J., do not think that the Tribunal's references to the provisions of the GATT, as well as all other aspects of the reasoning by which it arrived at its interpretation of SIMA, are totally irrelevant to determination of an application for judicial review. With respect, do not understand how conclusion can be reached, as to the reasonableness of tribunal's interpretation of its enabling statute without considering the reasoning underlying it, and would be surprised if that were the effect of this court's decision in C.U.P.E., supra (emphasis added) Clearly, reasons are not always required. In Khaliq-Kareemi v. Health Services and Insurance Commission (N.S.) (1989), 89 N.S.R. (2d) 388, this Court allowed an appeal from decision in Supreme Court reversing an order of the Commission finding that psychiatrist had fraudulently submitted claims and habitually claimed for services not medically required. No reasons were given by the Commission. This Court held that they were not necessary because the charges were abundantly clear. The only issue was whether the evidence established the allegations. Jones, J.A. said at p. 401: The charges before the Commissioner were abundantly clear. The only issue was whether the evidence established those allegations. The Commission obviously accepted the evidence supporting the allegations and rejected the evidence of the respondent. Apart from the issue of credibility reasons would have added little or nothing. In my view reasons were not required in the circumstances. I am satisfied that courts can and should require written reasons from a Tribunal wherever there are substantial issues to be resolved. How can the court determine the existence of rational basis for the decision of the Tribunal if it does not know how the Tribunal arrived at the result? If the determination of the reasonableness of a tribunal\'s decision can only be made by considering ""the reasoning underlying it"" and these reasons are not obvious from a review of the issues and the record, written reasons are necessary. Failure of tribunal to do so in such cases makes its decision patently unreasonable decision which will be set aside. The disappointed litigant and the reviewing court must know the process followed by Tribunal in order to see, in the case of the litigant, if review should be sought, and in the case of the court whether interference with the decision is warranted. Counsel for the Board emphasizes that no case has been found where court has held that failure to give reasons makes tribunal's decision patently unreasonable. No case on point is needed. The principle is clear. Patent unreasonableness can assume many forms. am prepared to reach the result here on the application of fundamental principles. As well, the cases have reviewed support the conclusion that in such cases there is an implied duty to give reasons. Breach of this duty is breach of the rules of natural justice. will review the issues before the Board and consider the evidence heard by it in order to judge whether it can be said that its decision without reasons is, in the circumstances, patently unreasonable, and whether there was an implied duty to give reasons. The complaints break down into the following allegations: (a) the complainants were dismissed on February 10 and 11 because of their support for the Union; (b) Future Inns is refusing to employ the complainants because they are members of trade union; (c) Future Inns is refusing to employ the complainants because they have participated in the activities of trade union; (d) Future Inns is attempting to intimidate its employees to compel them to refrain from being member of trade union or participate in the activities of trade union. The Board simply stated that it was satisfied that the acts of unfair labour practice by Future Inns were committed pursuant to s. 53 of the Act. That section details number of unfair labour practices: 53 (1) No employer and no person acting on behalf of an employer shall (a) participate in or interfere with the formation or administration of trade union or the representation of employees by trade union. Prohibited activities of an employer are listed in s. 53(3) of the Act. 53 (3) No employer and no person acting on behalf of an employer shall (a) refuse to employ or to continue to employ any person or otherwise discriminate against any person in regard to employment or any term or condition of employment, because the person (i) is or was member of trade union, (ii) has been expelled or suspended from membership in trade union for reason other than failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the trade union as condition of acquiring or retaining membership in the trade union, (iii) has testified or otherwise participated or may testify or otherwise participate in proceeding under this Act, (iv) has made or is about to make disclosure that he may be required to make in proceeding under this Act, (v) has made an application or filed complaint under this Act, (vi) has participated in strike that is not prohibited by this Act or exercised any right under this Act; It will be observed that the complaints appear to allege violations of both ss. 53(1)(a) and 53(3)(a) with respect to five different complainants, as well as an attempt to intimidate its employees generally which appears to allege violation of s. 53(1)(a). In assessing the complaints, the Board was required to take into account s. 56(3) of the Act with respect to complaints falling within s. 53(3)(a): 56 (3) Where the complainant establishes that it is reasonable to believe that there may have been failure by an employer or any person acting on behalf of an employer to comply with clause (a) of subsection (3) of Section 53, the burden of proving there is no failure shall be upon the employer or the person acting on behalf of the employer. There was no evidence before the Board that prior to February 14, 1995, either the Union, the individual respondents or anyone else informed Ms. Lemire or any other representative of the appellant that the individual respondents were trying to organize union at the hotel. Ms. Lemire testified at the hearing that she was unaware of any discussions about forming union until February 14, 1995, when she was so advised by representative of the Board. By then, the termination of the five individual respondents had taken place. There was evidence that the dismissals of Ms. Dearman and Gloria Rafuse were carried out in manner different from the way in which such matters were normally handled. Three of the individual respondents, Gloria Rafuse, Linda Rafuse and Dearman testified that they suspected they had been fired because they were trying to form union. However, they were unable to point to any evidence that Ms. Lemire or anybody else acting on behalf of Future Inns knew that union was in the process of being formed. Ms. Lemire denied such knowledge. The employer's knowledge of the attempted formation of the Union is critical to establishing the case against the employer. The Chambers judge addressed this key issue: Mrs. Lemire was the sole management employee called by Future Inns at the hearing. There were discrepancies between the information filed by Mrs. Lemire with the unemployment insurance people with respect to these terminations and her evidence at the hearing as to why Gloria Rafuse and Jean Dearman were fired. She could not explain these discrepancies. Jean Dearman was fired at home. No prior employees had been fired at their homes. Jean Dearman and Gloria Rafuse were fired with haste. The rooms they cleaned on Friday were stated by Mrs. Lemire to be unacceptable. Jean Dearman was not to work again until the following Monday. Gloria Rafuse was to work the next day, Saturday. Mrs. Lemire went to their homes Friday night to fire them. She found Jean Dearman at home and fired her on Friday evening. She did not find Gloria Rafuse at home, and fired her the following day when she reported to work. There was evidence from the complainants that there was grapevine in the hotel, whereby Mrs. Lemire would be aware of most things going on at the hotel. There was also evidence that Fred George, who worked as maintenance man at the hotel, was related to Mrs. Lemire. There was lack of any substantial warnings to Mrs. Dearman that her work was not satisfactory, although this was not the case with respect to Gloria Rafuse, who had been suspended for one week for poor work two months earlier. Jean Dearman and Gloria Rafuse were fired on Friday night and Saturday morning respectively, in the time between the first organizing meeting on Wednesday night and the second proposed organizing meeting on Sunday night. All of this provides evidence from which the Board could infer knowledge of the unionizing effort and anti-union animus. Accordingly, find there was evidence before the Board on which it could find that Future Inns committed an unfair labour practice and therefore, the decision of the Board was not patently unreasonable. (emphasis added) The Chambers judge directs these comments to the dismissals of Ms. Dearman and Gloria Rafuse only. The conclusion respecting these firings is that evidence to support reasonable inference that Future Inns engaged in prohibited practices arise from: (a) Ms. Lemire attempted to fire two of the employees at home. (b) There was evidence about grapevine at the hotel. (c) maintenance man at the hotel was related to Ms. Lemire. (d) That there was lack of substantial warnings to Dearman that her work was not satisfactory. have examined the record before the Board and in the absence of any reasons from the Board giving insight into its thinking, it appears to me that what the Chambers judge characterizes as ""evidence from which the Board could infer knowledge of the Union effort and anti-union animus"" is anything but substantial. General statements such as Gloria Rafuse's comment, ""Well, mean everybody talks"" are not sufficient foundation upon which one can draw reasonable inferences. Neither Gloria Rafuse or any of the other witnesses on behalf of the claimants could point to any piece of information about the Union's activities having reached management's ears. Ms.Lemire's testimony that she had no knowledge of the Union's activities is clear as is her testimony that she fired the employees for unsatisfactory performance. She had fired other employees in the past for such things as the use of bad language to guests and poor housecleaning. Lemire testified that she had spoken to Dearman about poor work ""many, many times"". Ms. Dearman conceded that she had been spoken to on previous occasion about alleged unsatisfactory work. Gloria Rafuse had been suspended for week for poor housekeeping in December of 1994. Linda Rafuse had walked out some two years earlier and had been taken back in spite of reservations held by Ms. Lemire. In August of 1994 she had been put on probation for one month for lack of supervision of housekeepers. Did the Board find Ms. Lemire not credible? We do not know. compelling case for the giving of reasons arises from the number of issues before the Board which were aired over three days of hearings. The question of knowledge on the part of Future Inns of Union activities was substantial issue which should have been addressed. There were three distinct situations involved in the complaints. Only two of the five individual respondents were fired directly; the other three Linda Rafuse, Hubley and Milligan walked out upon the dismissal of Gloria Rafuse. They knew they had left their jobs because the following Monday they came to ask for them back. The allegation of dismissals refer to the dates February 10 and 11. It is not contended that anybody was dismissed on February 13. We have no analysis from the Board as to what it considered were the acts of Future Inns in discharging or failing to hire these employees or of intimidation generally. The Board was confronted with complaints dealing with three separate dismissals: (a) Ms. Dearman; (b) Gloria Rafuse; (c) Linda Rafuse, Cindy Milligan and Patricia Hubley. As to each of these, it was called upon to decide: (i) Whether the dismissal was because of support by the employee for the Union. This appears to allege violation of s. 53(1)(a) of the Act interference with the formation of trade union or the representation of employees by trade union. The reverse onus provision of s. 56(3) has no application. The dismissal could also be violation of s. 53(3)(a)(vi). The Board did refer to the fact that all five respondents were ""terminated"" by Future Inns. This is the only clue to its thinking, leading one to suspect that the ""acts"" of unfair labour practice were terminations. These were alleged to have occurred on February 10 and 11. (ii) Whether the refusal to employ was because the employees were members of the trade union. This appears to allege violation of s. 53(3)(a)(i). There was no allegation of refusal to continue to employ. The Board seemed to be thinking of terminations. The reverse onus provisions of s. 56 may be looked at if the threshold of establishing union membership has been reached. On the evidence, these employees had not become Union members prior to their dismissal. Indeed, it is not apparent from the evidence whether they ever became Union members. The Board has afforded no indication of what, if anything, it thought about these considerations. (iii) Whether the refusal to employ took place because the employee participated in the activities of trade union. This could be violation of s. 53(1)(a) of the Act. It could also, depending on what view the Board took of the evidence, be violation of s. 53(3)(a)(vi) of the Act, because the employee was exercising right under s. 13(1) of the Act. There is no allegation of refusal to continue to employ. The Board seems to have been thinking in terms of terminations. Unfortunately, there is no finding in this respect and it is uncertain at best whether the reverse onus provisions of s. 56(3) have application. There is general allegation that Future Inns attempted to intimidate its employees to compel them to refrain from being member of trade union or participate in the activities of trade union. This alleges violation of s. 53(1)(a). The reverse onus section is not applicable to that subsection. observe that during the argument before the Board counsel for the Union urged the reverse onus section upon the Board. Mr. Henman did not appear to have made any analysis of the effect of s. 56(3), although he referred briefly to it in his submissions. In short, s. 56(3) may or may not have applied to the fact finding process depending on what facts were found and which alleged acts of unfair labour practice were being considered. There is no indication that this was thought out by the Board. As to all of the complaints, we do not have the benefit of any analysis whether, if the reverse onus section applied, the Board addressed its mind to the prerequisite for its application, namely on what basis it was reasonable to believe that there may have been failure by Future Inns to comply with s. 53(3)(a). Counsel for the respondents urge that it is not the role of the reviewing court on certiorari application to second guess the Board on the weight and sufficiency of the evidence before it. They say that the absence of detailed reasons by the Board does not make its decision patently unreasonable or remove curial deference to its decisions. They emphasize that the patently unreasonable test sets very high threshold for judicial review, as indeed it does. They tell us that enough can be found in the record to support the conclusions of the Board. That is also the conclusion of the Chambers judge as appears from the passage have quoted from her decision. am satisfied that neither the arguments of counsel for the respondents nor the rationalizations of the Chambers judge form an adequate substitute for reasons from the Board showing what underlay its conclusions on the many issues here presented to it. The respondents are in effect asking this Court to guess at the reasoning underlying the conclusions of the Board simply because there is evidence upon which the Board could, if it chose, base its conclusions. The real problem here is that we simply do not know what it was that drove the Board to its conclusions. The issues relating to these five employees were complex and the concerns of the parties substantial. The order of the Board imposes significant monetary liability upon Future Inns. Failure to comply with the order also renders Future Inns subject to prosecution. In the circumstances, the Board acted in a patently unreasonable manner in giving this decision without reasons. There was an implied duty on the Board here to furnish reasons. It was in breach of the rules of natural justice or fair play. It is simply not sufficient that the matter was resolved by the following terse conclusions: AND the Board having been satisfied that the acts of Unfair Labour Practice were committed pursuant to Section 53 of the Trade Union Act; ... AND the Board does further order the Respondent to reinstate Jean Dearman, Gloria Rafuse, Cindy Milligan, Linda Rafuse and Patricia Hubley to their former positions and to pay to these individuals all compensation earned as if they had not been terminated by the Respondent. Counsel for the Union suggested that this Court remit the matter to the Board with an order that it furnish reasons for its decision. The Board has already made its decision. It was decision reached in patently unreasonable manner and contrary to the rules of natural justice. To ask it to make up reasons after the fact would be futile exercise. I would allow the appeal and set aside the order of the Chambers judge. I would quash the decision of the Board and remit the matter to the Board for a rehearing. This must, to the greatest extent possible, be heard before differently composed panel. would also award costs to the appellant on the appeal against the respondents Union and Board, jointly and severally, in the amount of $2,500.00, plus disbursements. On the same basis, would award the appellant costs against those respondents before the Chambers judge in the amount fixed by her, $2,500.00, inclusive of disbursements. As between these two respondents, one-half of the costs should be paid by each. Chipman, J.A. Concurred in: Matthews, J. Flinn, J.A. 1996 S.H. No. 126737 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: FUTURE INNS CANADA INC. and LABOUR RELATIONS BOARD (NOVA SCOTIA); The ATTORNEY GENERAL OF NOVA SCOTIA representing HER MAJESTY THE QUEEN in right of the Province of Nova Scotia; DIRECTOR OF PUBLIC PROSECUTIONS; HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, LOCAL 662; JEAN DEARMAN; GLORIA RAFUSE; CINDY MILLIGAN; LINDA RAFUSE and PATRICIA HUBLEY RESPONDENTS DECISION HEARD BEFORE: The Honourable Justice M. Jill Hamilton, Supreme Court of Nova Scotia, on June 3, 4, 19,1996, at Halifax, Nova Scotia. DECISION: August 9, 1996 COUNSEL: Blair H. Mitchell, for the Applicant Gary Holt, Q.C., for the Attorney General and the Director of Public Prosecutions Gordon N. Forsyth, for the Union and Individuals Louise Y. Walsh Poirier, for Labour Relations Board C.A. No. 131106 NOVA SCOTIA COURT OF APPEAL BETWEEN: FUTURE INNS CANADA INC. and LABOUR RELATIONS BOARD (NOVA SCOTIA); THE ATTORNEY GENERAL OF NOVA SCOTIA representing HER MAJESTY THE QUEEN in the right of the Province of Nova Scotia; DIRECTOR OF PUBLIC PROSECUTIONS; HOTEL EMPLOYEES RESTAURANT EMPLOYEES INTERNATIONAL UNION, LOCAL 662; JEAN DEARMAN; GLORIA RAFUSE; CINDY MILLIGAN; LINDA RAFUSE; and PATRICIA HUBLEY Respondents REASONS FOR JUDGMENT BY: CHIPMAN, J.A.","This was an appeal from a Supreme Court decision dismissing certiorari applications to quash three orders of the Labour Relations Board ordering the appellant to reinstate the respondents and pay them compensation for dismissing them due to their support of a union. The appellant alleged that the Board's order should be quashed because it failed to give reasons for its decision. Allowing the appeal and remitting the matter for rehearing, that there is an implied duty on a tribunal to provide written reasons whenever substantial issues are involved and the reasons for the tribunal's decision are not obvious from a review of the issues and the record. In this case, the order of the Board imposed significant financial liability on the appellant, and the issues were complex and the concerns of the parties were substantial. As a result, the Board acted in a patently unreasonable manner in giving its decision without providing reasons.",8_1997canlii9861.txt
156,"J. _Q.B. A.D. 1994 No. 2583 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: PCL CONSTRUCTION MANAGEMENT INC. and LES MILLS and KEN JOHNSTON, on behalf of themselves and all members of Canadian Union of Public Employees, Local 47, and DAVE TAYLOR and LOIS LAMON, on behalf of themselves and all members of Canadian Union of Public Employees, Local 59, and STEVE SAUNDERS and PAT HYDE, on behalf of themselves and all members of International Brotherhood of Electrical Workers, Local 319, and DAN BICHEL and PETER PERERA, on behalf of themselves and all members of Amalgamated Transit Union, Local 515, DEFENDANTS RESPONDENTS L.F. Seiferling, Q.C., J.E. Seibel for the applicant plaintiff and S.R. Spencer N. R. McLeod for all of the respondents defendants JUDGMENT GROTSKY J. August 26, 1994 At the conclusion of the hearing of this applicationon August 23, 1994, I reserved my decision thereon andindicated that reasons for my decision would follow shortly;and, that pending my said reasons, the interim injunctiongranted by me on August 19, 1994 would continue. These are those reasons. PRELIMINARY OBSERVATIONS On August 17, 1994, at the request of counsel for the applicant granted an order ex parte abridging the time for the service and return of the notice of motion respecting the within application and, inter alia, subject to compliance with my express directions for service of copy of said order, said notice of motion, and the materials filed in support thereof, gave leave to the applicant to make said motion returnable for hearing at o'clock in the afternoon of August 19, 1994. On August 19, 1994, at o'clock in the afternoon, inquired of counsel for the respondents as to whether he had any preliminary objections or matters to raise to me in connection with the subject application. He advised that he had no preliminary objections or applications and clearly advised that he was unequivocally appearing on behalf of each of the respondents. When inquired of counsel for said respondents as to whether he, in view of the short notice authorized by me for the return of said motion, required an adjournment for any purpose including for the purpose of seeking further advice in the matter and/or for the purpose of preparing, serving, and filing any material(s) in response to those filed, and served, in support of the present application he advised that he did not, and further, that he was prepared to proceed with the hearing of the application. then heard from learned counsel for the applicant. After hearing (in part) from learned counsel for the applicant the hearing was adjourned for short period of time (at my suggestion, as was of the view that counsel for the respondents was obviously not aware of or fully appreciating certain submissions then being made by learned counsel for the applicant, and which appeared to be founded upon, and supported in part by, videotape which had been exhibited to the affidavit of one Abdel Wahab filed for use on the noted ex parte application to me, and which was now part of the materials being relied upon by the applicant on this application, and which had obviously not been viewed by counsel for the respondents albeit copies of said affidavit of said Abdel Wahab had been served on the respondents along with the notice of motion so that they and their counsel ought to have been aware of said videotape and of its contents to the extent deposed to by said Abdel Wahab) so as to permit counsel for the respondents and the respondents present in chambers to view said videotape so as to afford them every opportunity to properly prepare for the subject application. This application was then adjourned, for that purpose, for the period of time requested by counsel for the respondents. After viewing said videotape, or so much thereof as he, and his clients, were able to view during the noted adjournment, counsel for the respondents requested further adjournment of the subject application (which was opposed by learned counsel for the applicant on the ground that counsel for the respondents had earlier been offered and refused an adjournment in consequence of which learned counsel for the applicant then embarked upon his submission) to August 22, 1994, so that in the interim he, and the respondents could view fully said videotape, and prepare, serve and file materials, if so advised, in opposition to the application. Notwithstanding the objection thereto by learned counsel for the applicant, as (1) the respondents were by my ex parte order given very short notice and (2) there was no suggested prejudice to the applicant if such adjournment was granted on terms, I, on specific terms, adjourned the application to be further dealt with at the hour of 10 o'clock in the forenoon of August 22, 1994, or to any subsequent date and time as may be arranged with me by counsel through the office of the local registrar of this Court and leave was given to counsel for the respondents, as an officer of the court, and with the consent of counsel for the applicant, to remove and protect said videotape for the noted viewing purposes and for its return by 10:00 a.m. on August 22, 1994 to the local registrar of this Court. Leave was also given to the respondents, if so advised, to file and serve materials in response to this application, and, if the applicant was so served, then it too was given leave to file and serve materials in response thereto. NATURE OF PRESENT APPLICATION The applicant seeks orders as follows: 1. An interim and interlocutory injunctionrestraining the Defendants, LES MILLS, KENJOHNSTON, DAVE TAYLOR, LOIS LAMON, STEVESAUNDERS, PAT HYDE, DAN BICHEL, PETERPERERA, THE CANADIAN UNION OF PUBLICEMPLOYEES, LOCAL 47, THE CANADIAN UNION OFPUBLIC EMPLOYEES, LOCAL 59, THEINTERNATIONAL BROTHERHOOD OF ELECTRICALWORKERS, LOCAL 319, and THE AMALGAMATEDTRANSIT UNION, LOCAL 615, and all agents,officers, representatives and members ofthe Unions and any person acting on orunder their instructions or authorizationand any other person having notice of thisorder until the trial of this action from: (a) besetting, watching or picketing theConstruction Site and Entrance theretoadjacent to Whiteswan Drive and the H.M.Weir Pollution Control Plant at 470Whiteswan Drive, Saskatoon, Saskatchewan,and legally described as follows: All that portion of NE 1/4-14-37-5-W3rd which lies to the left bank of the South Saskatchewan River as shown on plan of survey of said township dated January 17, 1895, and containing 62.60 acres, more or less, except that part taken by Plan of Survey 78-S-15186. (""the Construction Site"") (b) from blocking or obstructing access to and exit from the Construction Site or from interfering with the Construction Entrance to the Site; (c) from interfering or attempting to interfere with, intimidating or attempting to intimidate or inducing or attempting to induce breaches of contract by any employees, agents, suppliers or contractors of the Plaintiff, or any other persons seeking peaceful entrance or exit from the Construction Site; (d) from picketing, parading or congregating at or near the Construction Site; (e) from interfering or attempting to interfere with the performance of the Plaintiff's construction contract; (f) from taking any action designed to or having the effect of inducing breach of contract between the Plaintiff and any of its servants, employees, subcontractors or suppliers; (g) from aiding, abetting, counselling, procuring or encouraging in any manner whatsoever, whether directly or indirectly, any other person to commit the aforesaid acts; (h) from obstructing, interrupting or interfering with the lawful use and improvement of the Construction Site and Entrance by the Plaintiff; 2. Costs of this application; 3. Such further and other relief as this Honourable Court may deem just and equitable. The grounds upon which this application is founded, as stated and set forth in the applicant's notice of motion, 1. The acts complained of are illegal and have caused and continue to cause loss and damage to the Plaintiff, including damage of an irreparable nature; 2. It is just and equitable in all the circumstances that the injunction be granted. THE MATERIALS FILED IN SUPPORT OF THIS APPLICATION INCLUDE: 1. The statement of claim issued in this action on the 17th day of August, A.D. 1994 with proofs of service thereof; 2. The ex parte order granted by me to the applicant on the 17th day of August, A.D. 1994, abridging the time for the service and return of the notice of motion herein on the 19th day of August, A.D. 1994, with proofs of service thereof; 3. The notice of motion returnable on August 19, 1994, with proofs of service thereof; 4. The affidavits filed in support of said ex parte application and, as well, in support of said notice of motion with proofs of service thereof: a.The affidavit of Ron Wurm, the applicant's site superintendent with respect to the construction project hereinafter referred to and, deposed to by him on August 17, 1994 together with the exhibits thereto with proofs of service thereof; b.The affidavit of Tim Sedgewick, the applicant's project engineer with respect to the said construction project hereinafter referred to and, deposed to by him on the 17th day of August, 1994, with proofs of service thereof; c.The affidavit of Shelley Chirpilo, the personnel director of the said City of Saskatoon deposed to by her on the 17th day of August, 1994, with proofs of service thereof; d.The affidavit of Kim Ethier who is employed as an office clerk in the office of Coram Construction at its office at the Construction Site hereinafter referred to and deposed to by him on August 17, 1994, with proofs of service thereof; e.The affidavit of Abdel Wahab, security guard at the Construction Site hereinafter referred to together with the videotape exhibited thereto and deposed to by him on August 17, 1994, with proofs of service of said affidavit; f.The applicant's undertaking as to damages with proofs of service thereof; g.The affidavit of Gerald Wudrich, ""management"" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to an affidavit deposed to by one Brad Chant on the 19th day of August, 1994, and filed on behalf of the defendants in opposition to this application; h.The affidavit of Gene Macwillie, ""management"" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant; i.The affidavit of C. P. Hwang, ""management"" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant; j.The supplementary affidavit of said Ron Wurm deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant and, as well, in response to an affidavit deposed to by the defendant Ken Johnston on the 19th day of August, 1994; k.The supplementary affidavit of said Tim Sedgewick deposed to by him on August 19, 1994, in response to said affidavit of said Brad Chant. Where any of the allegations contained in the foregoing affidavits are founded upon hearsay evidence and thereby violate the provisions of s. 45.20(2) of The Queen's Bench Act, R.S.S. 1978, c. Q-1, as amended, said allegations have not been considered by me on this application. THE MATERIALS FILED IN OPPOSITION TO THIS APPLICATION CONSIST OF: 1. An affidavit deposed to by the defendant, Ken Johnston, vice-president of the defendant, Canadian Union of Public Employees, Local 47, on August 19, 1994; 2. An affidavit deposed to by said Brad Chant on August 19, 1994, who therein identified himself as an employee of the City of Saskatoon and member of the Canadian Union of Public Employees, Local 47, in response to the contents of the original affidavit deposed to by said Ron Wurm, supra; and 3. An affidavit deposed to by the defendant, Les Mills, president of the defendant, Canadian Union of Public Employees, Local 47, on August 23, 1994. It is here significant to observe that notwithstanding the respondents were given an adjournment with leave to serve and file materials if so advised, except for said affidavits above referred to, they have not filed any materials disputing numerous of the substantial allegations deposed to by various of the noted affiants and specifically of various substantive matters deposed to by said Abdel Wahab as supported by the videotape exhibited thereto, or, to my satisfaction, to the very serious and substantial allegations, which accept, contained in paras. 11 and 12 of the said affidavit deposed to by said Ron Wurm on August 17, 1994, which read as follows: 11. On Monday, August 15, 1994: (a) At approximately 8:45 a.m. arrived at the Construction Entrance and waited in line to gain entrance. There were several vehicles in front of and behind me waiting to enter stretching onto Whiteswan Drive, and could also observe several vehicles waiting at the Construction Entrance to exit from the Construction Site; (b) All of these vehicles were prevented for at least several minutes from moving through the gates and on the road across the boulevard by massing of approximately 15 picketers, many wearing signs similar to those described in paragraph hereof. Such signs definitely depicted affiliation with Local 47, but cannot recall what other group or groups may have been identified; (c) observed that the lead vehicle in each of the entry and exit line-ups was prevented from driving on the boulevard road between Whiteswan Drive and the gates of the Construction Entrance for about to minutes, and, therefore, how long vehicle had to wait depended how far back it was in line; (d) When had reached the point in line where was the leading vehicle awaiting entry, was prevented from entering because several picketers continuously walked in front of my vehicle, and at times one or more would stand stock still in front of me, so that there was never an opening in the mass of picketers through which could drive; (e) estimate that was held up for approximately 10 to 15 minutes in the line up before gaining entry; (f) One picketer wearing white shirt with logo bearing the word ""BLUE"" in three directions on its front and carrying picket sign with long wooden handle walked in front of my truck from the driver's side to the passenger's side headlight, made gesture as if to strike the front right corner of my truck, then turned, walked back past the front of my truck, and as he was just past the front driver's side fender, he swung the sign and used the wooden handle to strike the fender. was then allowed to drive through the gates. Just inside the gates stopped and got out of my truck. noted that there was damage to the truck fender where observed the picketer strike the truck. This picketer has been identified to me by Tim Sedgewick as one Brad Chant. have reported the incident and damage to the Saskatoon City Police. 12. arrived at the Construction Site on Tuesday, August 16, 1994, at approximately 6:30 a.m., and there was mass of picketers present at the Construction Entrance, many of whom carried signs identifying affiliation with Local 615. At that time took series of photographs. Five such photographs are attached hereto as Exhibit ""B"". The picketers were obstructing the entrance of the Plaintiff's employees to the Construction Site for up to 20 minutes. In fact, the Plaintiff already had two loads of concrete waiting on site for the Plaintiff's concrete finisher employees who were prevented from entering the Construction Site for approximately one- half hour. As well, it is here also appropriate to observe that by paras. 4, and 10 of the affidavit deposed to by said Les Mills, supra, he unequivocally acknowledges (and, on the whole of the evidence before me on this application, accept the following portions thereof) as follows: 4. That there is no question that picketing has taken place at the entrance to the construction site adjacent to the pollution control plant, and have been frequently picketer at that location. 6. That there have been an (sic) number of instances where trucks have arrived with supplies for the construction site, and there is no question that those trucks have been delayed by the presence of picket line. 10. That in reference to the Affidavit of Mr. Wahab, paragraph 7, there were baseball bats brought to the picketing site. On the basis of the materials before me on this application am satisfied that the salient facts, which accept, may be thus summarized: 1. The applicant is body corporate duly licensed and authorized to carry on its business as general contractor in the Province of Saskatchewan with offices at the Cities of Saskatoon and Regina in said Province; 2. The applicant has contract with the City of Saskatoon to perform construction at construction project (""the Construction Site"") adjacent to the said City's H. M. Weir Pollution Control Plant situated at or near 470 Whiteswan Drive in said City; 3. The Construction Site is fully enclosed by chain link security fence; 4. The Construction Site entrance is an entrance to said Construction Site only and is separate and apart from the main entrance to the said City's existing facilities at the said H. M. Weir Pollution Control Plant which is south of the said Construction Site entrance; 5. As at the date of this application said Construction Site entrance is used only by the applicant, its employees, its subcontractors, its suppliers, its agents, its patrons and customers and their respective employees; 6. The works being constructed on said Construction Site are not in operation and there are no employees of said City engaged in the construction work being carried on on said 7. The Construction Site entrance is not used by employees of said City to attend at the operating facilities of said H. M. Weir Pollution Control Plant; 8. The City of Saskatoon is presently involved in labour dispute with number of its employees and the Unions representing the said employees; 9. Neither the applicant, or any of its subcontractors, has labour dispute with any of their employees working on said Construction Site; 10. The Construction Site has its own entrance thereto for use by the construction workers employed thereon. 11. Employees of the said City have no reason to work, or to be, on said Construction Site; 12. Picket lines have been set up at the said Construction Site entrance by persons involved in said City of Saskatoon labour dispute thereby causing disruption of the applicant's construction project. Specifically, and without limiting the generality of the foregoing: a. On each working day from the morning of Monday, August 8, 1994 to and including Tuesday, August 16, 1994, picketers were located on and adjacent to the road across the strip of land between said Whiteswan Drive and the gates of said Construction Site entrance; b. On each working day from the morning of Monday, August 8, 1994 to and including Tuesday, August 16, 1994, persons lawfully seeking to access and, as well, exit from said Construction Site have been prevented from so doing by picketers who were in motion and who either continuously walked in front of the vehicles being operated by said persons and/or at times stood stock still in front of said vehicles at the said Construction Site entrance/ exit. Some vehicles were held up for periods of up to 10 or 15 minutes, or more; c. Suppliers (and deliverers) of materials required by the applicant for the performance of its noted contract with the City have refused to cross said picket line(s) to deliver the said materials to said Construction Site; d. The delays, caused by said picketers, in the arrival of construction workers, equipment and materials required therefor, have resulted in delays of said construction work thereby interfering with the plaintiff's performance of its contract with said City, and with its contracts with its own subcontractors and suppliers; e. On one occasion one of the picketers swung wooden picket sign at truck lawfully attempting to enter said Construction Site, struck one of its fenders, and caused damage to it; f. At times picketers have jumped on to vehicles attempting to enter and/or exit said Construction Site and by placing their picket signs over the windshield have obstructed the vision of the operators thereof; g. At times picketers have addressed intimidating language towards the operators of vehicles attempting to enter and/or exit said Construction Site; h. On one occasion picketer took photograph of the license plate of the motor vehicle belonging to said Abdel Wahab and by his language Wahab understood said person to be advising him that ""This is going to be useful for the future."" THE APPLICANT'S POSITION The applicant submits that in the particular circumstances, the picketing of the subject Construction Site by the specifically named respondents, and by the Union respondents' respective members, agents, officers, representatives and by every other person acting on or under their instructions or authorization: a. amounts to secondary picketing and is unlawful; b. alternatively, even if it is determined that the subject picketing is not secondary picketing, its purpose, as disclosed by the evidence, is unlawful, and ought not to be permitted; c. in the further alternative, if it should be determined that the subject picketing is not secondary picketing and unlawful, but that only the mode of the subject picketing is unlawful, an order ought to issue eliminating those unlawful and/or improper elements of said mode of picketing and particularly prohibiting mass picketing, blocking of the entrance to and exit from said Construction Site and any coercion or intimidation by words or actions or otherwise by the said respondents and their respective agents, officers, representatives and members. THE RESPONDENTS' POSITIONS The respondents each submit that they are not engaged in secondary picketing. That they, their respective agents, officers, representatives and members are engaged in lawful picketing of the subject Construction Site. That, as expressed by said Les Mills in para. 12 of the affidavit deposed to by him on August 23, 1994, supra: Our members need the opportunity to picket in order to communicate their dissatisfaction with this labour dispute and to feel that they are effectively making their point to those individuals who now carry out the work. It should here be observed that except for the affidavits deposed to by Messrs. Ken Johnston, Brad Chant and Les Mills, supra, on behalf of themselves, and Canadian Union of Public Employees, Local 47, none of the other respondents have filed any materials in opposition to this application and the submissions above referred to as being made on their behalf are merely submissions by their counsel none of which are supported by any evidence. ISSUE NUMBER Is the subject picketing secondary picketing as isalleged by the applicant? Picketing of an employer not directly involved in labour dispute has been found to be illegal per se even if conducted in peaceful manner and solely for the purpose of communicating information. Vide: Hersees of Woodstock Ltd. v. Goldstein et al., 1963 CanLII 151 (ON CA), [1963] O.R. 81 (Ont. C.A.); Heather Hill Appliances Ltd. v. McCormack, (1964-65) C.L.L.C. 264, para. 14,083 (Ont. H.C.); Toronto Harbour Commissioners v. Sninsky, (1967-69) C.L.L.C. 313, para. 14,065 (Ont. H.C.) and Edinburgh Developers Ltd. et al. v. Vanderlaan, Sentes et al., 1974 ALTASCAD 31 (CanLII), [1974] W.W.R. 481 (Alta. S.C.). In Hersees, supra, the employees of manufacturer were picketing an independent retailer of the said manufacturer's products. The Ontario Court of Appeal considered the circumstances and determined that any justification that the picketers may raise for their attempt to advance their cause in their relationship with their employer did not warrant the harm that their conduct would bring to the retailer's business. The court stated at p. 86: But even assuming that the picketing carried on by the respondents was lawful in the sense that it was merely peaceful picketing for the purpose only of communicating information, think it should be restrained. Appellant has right lawfully to engage in its business of retailing merchandise to the public. In the City of Woodstock where that business is being carried on, the picketing for the reasons already stated, has caused or is likely to cause damage to the appellant. Therefore, the right, if there be such right, of the respondents to engage in secondary picketing of appellant's premises must give way to appellant's right to trade; the former, assuming it to be legal right, is exercised for the benefit of particular class only while the latter is right far more fundamental and of far greater importance, in my view, as one which in its exercise affects and is for the benefit of the community at large. If the law is to serve its purpose then in civil matters just as in matters within the realm of the criminal law, the interests of the community at large must be held to transcend those of the individual or particular group of individuals. have been unable to find clear and unequivocal precedent for this principle in any of the numerous decisions at all relevant to the question, to be found anywhere in Canada. The court went on to conclude at p. 88: On the other hand these condemnations of the secondary picketing as being illegal do not appear in context which suggests that they are based upon the inclusion in the picketing of the extrinsic unlawful elements mentioned elsewhere in the judgments and view them as declaring secondary picketing to be illegal per se. Upon this ground also would restrain the respondents. (emphasis added) In Heather Hill, supra, Stewart J. held that notwithstanding the picketing at issue was without incident, it was secondary picketing and unlawful in itself. He states at p. 264 as follows: It is important therefore to recognize the completely different aspect that picketing has now assumed, and to accept the fact that damage will be suffered by the person who is picketed. In Toronto Harbour, supra, Stark J. cited Hersees and Heather Hill, supra, and stated at p. 313: it must now be taken to be the law of Ontario that picketing, however peaceful, of the premises of an employer, where there is no direct dispute between him and the picketers or between him and his employees, is per se unlawful and cannot be justified merely because the picketers are engaged in legal strike against another employer who has business relations with the employer being picketed. That is the situation in this case. (emphasis added) accept and adopt the views expressed by Stark J. in Toronto Harbour, supra. The Alberta Court of Appeal too in Edinburgh Developers, per Clement, J.A. clearly accepted that secondary picketing is unlawful per se. The Supreme Court of Canada has also addressed the issue of secondary picketing. In A. L. Patchett Sons Ltd. v. Pacific Great Eastern Railroad Company, 1959 CanLII 41 (SCC), [1959] S.C.R. 271 (S.C.C.) the plaintiff sought damages from the defendant on the basis of breach of statutory duty owed to it by the defendant by reason of its failure to provide cars when the defendant's union employees refused to cross picket line set up around the appellant plaintiff's plant. While in this case the issue of secondary picketing was only addressed by way of obiter, Rand J. at p. 277 appears to have been of the view that secondary picketing was illegal per se, for he is reported as follows: There was, in fact, no labour dispute between the I.W.A. and the appellant and the picketting was illegal. (emphasis added) and Rand J. went on to say: If the appellant had asserted its unquestioned rights, the root of the trouble (the picketers) would have been removed as it was by the immediate and voluntary withdrawal of the pickets when on November an interim injunction against the respondent was obtained; direct move against the pickets by the appellant could not have had less effect than that indirect action. (emphasis added) The issue of secondary picketing was again visited by the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander v. Dolphin Delivery Ltd. et al., 1986 CanLII (SCC), [1987] W.W.R. 577 (S.C.C.). Although the ratio decidendi of this case relates to the application of the Canadian Charter of Rights and Freedoms to private litigants, the facts related to secondary picketing and resulted in detailed discussion of the issue of secondary picketing by McIntyre J. on behalf of the majority of the court. At pp. 591-593 he is reported as follows: From the evidence, it may well be said that the concern of the respondent is pressing and substantial. It will suffer economically in the absence of an injunction to restrain picketing. On the other hand, the injunction has imposed limitation upon Charter freedom. balance between the two competing concerns must be found. It may be argued that the concern of the respondent regarding economic loss would not be sufficient to constitute reasonable limitation on the right of freedom of expression, but there is another basis upon which the respondent's position may be supported. This case involves secondary picketing picketing of third party not concerned in the dispute which underlies the picketing. The basis of our system of collective bargaining is the proposition that the parties themselves should, wherever possible, work out their own agreement. Professor Weiler in Reconcilable Differences, Toronto (1980), at pp. 64-65, states: The basic assumption of our industrial relations system is the notion of freedom of contract between the union and the employer. There are powerful arguments in favour of that policy of freedom of contract. We are dealing with the terms and conditions under which labour will be purchased by employers and will be provided by employees. The immediate parties know best what are the economic circumstances of their relationship, what are their non-economic priorities and concerns, what trade-offs are likely to be most satisfactory to their respective constituencies. General legal standards formulated by government bureaucrats are likely to fit like procrustean bed across the variety and nuances of individual employment situations The freedom to agree logically entails the right to disagree, to fail to reach an acceptable compromise. Most of the time good faith negotiation does produce settlement at the bargaining table, often without great deal of trouble. But often enough it does not; and of course it is the failures which generate the visible tumult and shouting. And at that point the collective bargaining system diverges sharply from other components in the market economy. When the parties do exercise the right to disagree, picketing and other forms of industrial conflict are likely to follow. The social cost is great, man-hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, legislative weapon to be employed in labour dispute by the employees against their employer, it should not be permitted to harm others. Weiler, at p. 80, again comments: strike action is legal only in order to resolve dispute with an employer about the negotiation of new collective agreement. Logically picket line should be legitimate only on such an occasion. As well the only permissible target of the picket line should be the primary employer that employer with whom the union is negotiating and whom it is trying to compel to make favourable concessions in order to settle the agreement. Putting it the other way, unions should not be permitted to picket the business of third party. Such secondary employer is not involved in the primary dispute, it does not have it within its power to make the concessions that will settle the new contract, and thus it should not be the target of weapon whose legitimate purpose is to extract such economic concessions. It should be noted here that in the province of British Columbia secondary picketing of the nature involved in this case, save for the picketing of allies of the employer, has been made unlawful by the combined effect of of ss. 85(3) and 88 of the British Columbia Labour Code, R.S.B.C. 1979, c. 212, as amended. This statute, of course, does not apply in this case, but it is indicative of the legislative policy, in respect of the regulation of picketing in that province. It shows that the application of s. of the Charter to sustain the limitation imposed by the common law would be consistent with legislative policy in British Columbia. would say that the requirement of proportionality is also met, particularly when it is recalled that this is an interim injunction effective only until trial, when the issues may be more fully canvassed on fuller evidence. It is my opinion then that limitation on secondary picketing against third party, that is, non-ally, would be reasonable limit in the facts of this case. would therefore conclude that the injunction is ""a reasonable limit prescribed by law which can be demonstrably justified in free and democratic society"". (emphasis added) have also read and considered the following authorities: Garry v. Sherritt Gordon Mines Ltd., [1988] W.W.R. 289, 1987 CanLII 4897 (SK CA), 59 Sask. R. 104 (Sask. C.A.); the unreported fiat of my brother Noble J. in Realty Ltd. and Clearlite Glass Ltd. v. Greg Zaba and Blair Barilla et al. dated December 31, 1992; PCL Construction Ltd. v. Busch, (1982) 19 Sask. R. 331 (Sask. Q.B.); MacMillan Bloedel (Saskatchewan) Limited v. Powell, Pahlke et al., (1968) 1968 CanLII 511 (SK QB), 66 W.W.R. 269 (Sask. Q.B.); PCL Construction Ltd. v. Klein, (1982) 1982 CanLII 2316 (SK QB), 19 Sask. R. 347 (Sask. Q.B.); Potash Corporation of Saskatchewan Mining Limited v. Todd, Heinrich and Energy and Chemical Workers Union, Local 922, (1987) 1987 CanLII 4918 (SK CA), 53 Sask. R. 165 (Sask. C.A.) and McLean Trucking Company et al. v. Public Service Alliance of Canada, (1985) C.L.L.C. 12,242 at para. 14,046 (B.C.C.A.). CONCLUSIONS WITH RESPECT TO ISSUE NO. Applying the principles enunciated in the cases herein (and therein) specifically referred to, on the whole of the evidence before me on this application am satisfied that the applicant has established that: 1. It is not party to the labour dispute between the City of Saskatoon and various of its employees as represented by the said Union respondents and which includes the persons specifically named herein as defendants respondents; 2. The labour dispute between the City of Saskatoon and its said various employees referred to in para. hereof immediately preceding does not involve anyone employed at or working on said Construction Site; 3. It is in full control of the subject Construction Site; 4. The applicant is secondary employer under contract to said City of Saskatoon to perform the noted construction work at the said Construction Site; 5. The applicant is without any ability to settle the existing labour dispute between said City of Saskatoon and its striking employees, including said respondents and/or the said City's employees represented by them or either of them; and that, in the particular circumstances, the respondents, theirrespective agents, officers, representatives and all otherpersons acting upon or under their respective instructions orauthority, are engaged in unlawful secondary picketing. In view of my conclusion with respect to said issueno. 1, it is not necessary that I deal with the other issuesraised by this application, other than to observe that, on thebasis of the (admissible) evidence before me on thisapplication, and the principles enunciated in the authoritiesabove (and therein) referred to, if I had determined that thesubject picketing was not secondary picketing, then, in theparticular circumstances I would still have held that thesubject picketing was unlawful, and ought to be restrained,as, on the whole of said evidence I am satisfied that theapplicant has established that said picketing is not beingcarried on for the purpose of lawful communication, but,rather, is being carried on in a manner designed to obstruct,impede and interfere with the lawful performance by theapplicant of its noted construction contract on the subjectConstruction Site. On the whole of the evidence am satisfied that the applicant has raised substantial question to be tried; it has established prima facie case of the violation by the respondents, their respective agents, officers, representatives and all other persons acting upon or under their respective instructions or authority of right or rights that the applicant might have. The applicant has shown more than the mere prospect or apprehension of injury; it has shown that the respondents, and their respective agents, officers, representatives and all other persons acting upon or under their respective instructions in doing that which the applicant alleges is in violation of its rights and that it is suffering in consequence thereof and that such suffering cannot be adequately compensated for by the award of damages in money. Further, that the balance of convenience in the matter favours the applicant. There will, therefore, be an order granting to theapplicant an interim injunction until trial, or until furtherorder, the terms of which are as follows: TERMS OF INTERIM INJUNCTION The respondents, and all agents, officers, representatives and members of said respondent Unions and any person acting on or under their instructions or authorization and any other person having notice of this order are enjoined until the trial of this action, or until further order, from: (a) besetting, watching or picketing the Construction Site and Entrance thereto adjacent to Whiteswan Drive and the H.M. Weir Pollution Control Plant at 470 Whiteswan Drive, Saskatoon, Saskatchewan, and legally described as follows: All that portion of NE 1/4-14-37-5-W3rd which lies to the left bank of the South Saskatchewan River as shown on plan of survey of said township dated January 17, 1895, and containing 62.60 acres, more or less, except that part taken by Plan of Survey 78-S-15186. (""the Construction Site"") (b) from blocking or obstructing access to and exit from the Construction Site or from interfering with the Construction Entrance to the Site; (c) from interfering or attempting to interfere with, intimidating or attempting to intimidate or inducing or attempting to induce breaches of contract by any employees, agents, suppliers or contractors of the Plaintiff, or any other persons seeking peaceful entrance or exit from the Construction Site; (d) from picketing, parading or congregating at or near the Construction Site; (e) from interfering or attempting to interfere with the performance of the Plaintiff's construction contract; (f) from taking any action designed to or having the effect of inducing breach of contract between the Plaintiff and any of its servants, employees, subcontractors or suppliers; (g) from aiding, abetting, counselling, procuring or encouraging in any manner whatsoever, whether directly or indirectly, any other person to commit the aforesaid acts; (h) from obstructing, interrupting or interfering with the lawful use and improvement of the Construction Site and Entrance by the Plaintiff. At the request of counsel for the respondents, and with the consent of counsel for the applicant, the issue of costs is reserved with leave to the parties to speak to same on date and time convenient to them and myself and as may be arranged by counsel with me through the office of the local registrar of this Court.","PCL applied for an interlocutory injunction restraining the members of the Defendant unions from picketing the entrance to a construction site at which PCL was constructing an addition to the City's sewage treatment plant. The picketers were completely blocking the entrance to the construction site, were threatening the occupants of vehicles using the entrance and damaged one vehicle as it entered the site. No City employees were working on the site. ISSUES: 1)Is the picketing secondary picketing? 2)Is the manner of picketing unlawful in any event? HELD: Application allowed. 1)Picketing of the premises of an employer, where there is no direct dispute between him and the picketers or between him and his employees, is secondary picketing, is per se unlawful and cannot be jusified merely because the picketers are engaged in a legal strike against another employer who has business relations with the employer being picketed. 2)If the court had determined that the subject picketing was not secondary picketing, then, in the particular circumstances it would still have held that the subject picketing was unlawful, and ought to be restrained, as, on the whole of said evidence it was satisfied that the applicant had established that said picketing was not being carried on for the purpose of lawful communication, but, rather, was being carried on in a manner designed to obstruct, impede and interfere with the lawful performance by the applicant of its construction contract on the construction site.",9_1994canlii4999.txt
157,"1991 S.H. 80055 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: NsC CORPORATION LIMITED Applicant and ABN AMRO BANK CANADA Respondent HEARD BEFORE: The Honourable Mr. Justice Gordon A. Tidman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 28, 1992 DECISION DATE: September 28, 1992 (Orally) COUNSEL: Mr. Frederick Black, for the Applicant Mr. David Coles, for the Respondent 1991 S.H. 80055 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: NsC CORPORATION LIMITED and ABN AMRO BANK CANADA Respondent TIDMAN, J.: (Orally) This is an application by NsC Corporation Limited (NsC Corp) for an order prohibiting the law firms of Boyne, Clarke and Blake, Cassels & Graydon from acting as counsel for the Trustee of the estate of the bankrupt NsC Diesel Power Corporation (NsC Diesel). The application was heard as contested chambers application (application inter partes) on September 10th and 11th, 1992. The application was scheduled to also deal with an application by NsC Corp to annul the bankruptcy of NsC Diesel and failing that an order under Section 38 of the Bankruptcy Act authorizing the applicant as creditor of the bankrupt estate to carry an action for damages to which the creditor claims the bankrupt is entitled against ABN Amro Bank Canada (Bank) and others. By agreement of the parties the hearing was restricted to the issue of the law firms of Boyne, Clarke and Blake, Cassels Graydon continuing to act for the Trustee. The respondent Bank as creditor petitioned NsC Diesel Corp into bankruptcy. The law firm of Blake, Cassels Graydon, based in Toronto has acted for and continues to act for the Bank in its dealings with the bankrupt estate. Boyne, Clarke act as agent for Blake, Cassels in relation to the interests of the Bank in Nova Scotia. By motion carried unanimously at the first meeting of the Inspectors of the bankrupt estate, Boyne, Clarke and Blake, Cassels Graydon, counsel for the respondent Bank, were appointed solicitors also for the bankrupt estate. The Bank has guaranteed payment of the Trustee's fees and disbursements, including legal fees. The applicant, NsC Corp is the sole shareholder of the bankrupt and claims to be creditor of the bankrupt. The applicant complains that there are significant areas where the interests of the Bank conflict with the interests of the applicant and other creditors of the bankrupt and thus the Trustee, who must act in the best interests of all the creditors, should not be advised by counsel for the Bank. The respondent concedes that there are areas of potential conflict with the law firms acting for both the Bank and Trustee, but submits that if conflict arises the Trustee would seek independent counsel on the conflicting matter. The respondent argues that to order the Trustee to retain other counsel at this time would create great financial burden because of the time required by new counsel to acquaint itself with information already in the knowledge of present counsel. BACKGROUND The financial difficulties of the bankrupt company have been ongoing for some time during the course of which this court under the provisions of the Companies Creditors Arrangement Act appointed Ernst Young Inc., the present Trustee, as custodian of the property of NsC Diesel Corp, the present bankrupt. Failure of the company to have its creditors accept plan of arrangement under the Act resulted in Ernst Young, the custodian, being appointed, again by this court, receiver of the assets of the company. Failure of the receiver to effect sale of the company's plant and equipment resulted in the termination of the receivership under the Companies Creditors Arrangement Act. Under the terms of debenture issued by the Company to the Bank, the Bank subsequently foreclosed on the principal assets of the Company. It also petitioned the Company into bankruptcy. During the course of these various proceedings, there have been many related applications and actions by the Bank against the applicant and by the applicant against the Bank and the Trustee. Throughout all of these various proceedings the firms of Blake, Cassels Graydon and Boyne, Clarke have acted as counsel for both the Bank and the Trustee. Mr. Black, the president of NsC Corp, although not lawyer, has represented the applicant throughout these actions and applications. Although the Trustee is now represented by the Bank's solicitors, throughout the proceedings under the Companies Creditors Arrangement Act, Ernst Young as custodian and receiver was represented by another law firm. DISCUSSION It is immediately apparent that there are three areas where the interests of the bankrupt estate conflict with those of the Bank. First, there is the question of the validity of the Bank's charge against certain assets of the bankrupt. Secondly, whether the Trustee should commence an action against the Bank on behalf of the bankrupt. Thirdly, but perhaps more correctly as part of the second area of conflict, whether the applicant is, in fact, creditor of the bankrupt which it must be in order to avail itself to the provisions of Section 38 of the Bankruptcy Act. The Trustee recognizes those areas of conflicts as is evidenced by paras 8,9,10 of the affidavit of Ross D. Landers, vice‑president of the Trustee sworn on September 4, 1992 and used in support of its opposition to this application i.e. 8. THAT mindful that there may ultimately be conflict of interest as regards the bank's security, the inspectors at the first meeting unanimously carried motion authorizing the trustee to obtain independent legal advice on that issue at the appropriate time. 9. THAT the Trustee, Ernst Young Inc., has not sought the opinion of, nor relied in its conduct of the bankruptcy upon, Boyne Clarke or Blake Cassels vis‑a‑vis the claim of NSC Corporation Limited as against the ABN AMRO Bank, but rather when requested to join the action has sought particulars from Mr. Black which the latter has failed to provide. 10. THAT in accord with practice, professional ethics, and the responsibilities of the Trustee under the Bankruptcy Act, particulars substantiating any claim the bankrupt might have as against ABN AMRO Bank Canada would be tabled with the Inspectors including recommendation to obtain independent legal advice as to whether there was merit in proceeding, anticipated costs of such action, etc. Mr. Landers, who was cross‑examined on his affidavits filed on behalf of the respondent, says that it is in accord with general practice that counsel for the petitioning creditor (in this case the Bank) be nominated as solicitors for the bankrupt estate. He says that it is also general practice that if conflicting interests arise the Trustee would then seek independent legal advice on such matters. Although that may be the general practice of trustees in bankruptcy, it is practice fraught with difficulty. This, of course, is so because the Trustee represents the interests of all the creditors which from time to time will in all probability conflict with the interests of the petitioning creditor. In such situation the Trustee of the bankrupt estate for obvious reasons must not take legal counsel from solicitors acting for the petitioning creditor. The general practice which Mr. Landers describes seems to be accepted as being practical and expedient in the administration of bankrupt estates and as such the court would not go so far as to say that such practice is in and by itself improper. What the court must consider is whether under all of the circumstances of this case the bankrupt estate should not be represented by counsel for the petitioning creditor. must first of all consider whether the court has jurisdiction over either counsel or the Trustee enabling it to grant the order sought by the applicant. The decision to appoint Boyne, Clarke and Blake, Cassels Graydon was made not by the Trustee but by the Inspectors of the estate on the advice of the Trustee. Section 119(2) of the Bankruptcy Act gives the court specific power to review decisions of the Inspectors. It provides: 'The decisions and actions of the inspectors are subject to review by the court at the instance of the trustee or any interested person and the court may revoke or vary any act or decision of the inspectors and it may give such directions, permission or authority as it deems proper in substitution thereof or may refer any matter back to the inspectors for reconsideration. R.S., c.B‑3, s. 94."" This application comes about at the insistence of NsC Corp. As sole shareholder of the bankrupt find that the applicant qualifies as an interested person. The court has inherent jurisdiction over counsel as officers of the court and having such has the power to order counsel not to act for party because of conflict of interest. In support of the application, the applicant asks the court to consider the Supreme Court of Canada decision in MacDonald Estate v. Martin Rossmere Holdings (1970) Ltd. (1990 CanLII 32 (SCC), 121 NR 1) (December 20, 1990). In that case, counsel was removed from the record on the grounds that lawyer in the firm which represented party was at one time an articling clerk and lawyer in the firm representing the opposing party. The application for removal was made by the opposing party who was successful in doing so. The circumstances in that case, however, are different from those now before the court. In this case counsel has the consent of the petitioning creditor to act for the bankrupt estate. While the MacDonald Estate case is helpful in examining the conflict issue, this is not case involving the classic conflict issue. The question to be determined here is whether the estate can be properly represented by counsel, who also act for the petitioning creditor and have the consent of that party to act. Indeed, in this case, it is the wish of the petitioning creditor that its counsel also act for the Trustee. In my view, this case may be resolved by dealing with the courts supervisory power over the Trustee and Inspectors given by the provisions of the Bankruptcy Act. Section 119(2) of the Act previously referred to makes it clear that the court may review decisions of the Inspectors. Since the Trustee was appointed by the court, the Trustee by virtue of that circumstance alone is subject to supervision by the court. The second and third areas of conflict in which the Trustee must decide whether the estate should sue the Bank is most troublesome. Section 38 (1) of the Bankruptcy Act provides: ""Where creditor requests the trustee to take any proceeding that in his opinion would be for the benefit of the estate of bankrupt and the trustee refuses or neglects to take the proceeding, the creditor may obtain from the court an order authorizing him to take the proceeding in his own name and at his own expense and risk, ..."" NsC Corp has requested the Trustee to bring such an action against the Bank. The Trustee has not refused to do so, but has discussed the matter with its counsel who are also counsel for the Bank. The Trustee, first of all, is not satisfied that NsC Corp is creditor of the bankrupt, thus having the capacity to make the request of the Trustee, and secondly, states it has insufficient information in order to determine whether the estate should bring an action against the Bank. In response to the applicant's request, the Trustee by letter to the applicant dated June 12, 1992 stated: ""Please be advised that the Trustee has insufficient information to consider your request. Accordingly, we would request that you provide us with full particulars of your claim including copies of relevant documents in order that we may assess the claim and present the issue to the estate inspectors for their consideration."" The applicant says he refuses to provide that information to the Trustee because to do so would be to provide it to counsel for the opposing party which, for obvious reasons, he does not wish to do. Mr. Landers says that he would pass on any information received from the applicant to the Inspectors along with recommendation that they obtain independent legal advice as to the merits of proceeding against the Bank. Mr. Landers says he would not pass on any information to the estate's counsel which he believes they should not have. do not, at all, doubt the integrity of Mr. Landers, however, to do as he says would not only present to him the difficult decision of having to decide what of that received information he should provide to the estate's counsel, but more importantly he would be in possession of information necessary for the proper administration of the estate which he could not provide to his own counsel. This conflict of interest is so blatant that it demands the removal of present counsel for the bankrupt estate. Although Mr. Landers says that he would seek independent legal advice on this issue the Trustee should not be in position where it could even appear to be influenced by the Bank in making that decision. If counsel for the Bank continue to act for the estate there would be an appearance of influence. Mr. Coles for the respondent Bank submits that the mere existence of claim by shareholder of creditor as against the petitioning creditor cannot per se be grounds for removing counsel. To so decide, he argues, would mean that any shareholder of bankrupt need only commence spurious law suit in order to cause financial hardship to the petitioning creditor or generally to disrupt bankruptcy proceedings. The court does not suggest the mere existence of such claim is per se grounds for removing counsel. Before ordering the removal of counsel all relevant circumstances must be considered by the court and after doing so here it is obvious to me that because of the many conflicting interests present counsel should not continue to act for the estate. Mr. Coles further submits that removal of counsel for the estate would add additional expense in briefing new counsel which may result in the Bank refusing to fund the bankruptcy. He says that would be to the detriment of all creditors of the estate. Although it is true that to date there have been long and protracted insolvency proceedings, am not satisfied that it would be prohibitively expensive to brief new counsel on what has transpired up to now. For instance, Ernst Young as Custodian Receiver under the CCAA were represented by another law firm, who, no doubt, have extensive knowledge of what has transpired in the past. As well, legal advice required by the estate presumably would be no more expensive whether it is obtained from new or present counsel. As to whether the Bank may refuse to fund the bankruptcy, say this. Any petitioning creditor who agrees to guarantee payment of the Trustee's fees and disbursements must do so with the understanding that the Trustee will in most cases require legal advice and that such advice must be independent because it is for the benefit of all the creditors of the estate. Mr. Coles asks the court to consider the decision of Preston, J. in Canada Deposit Insurance Corp. v. Commonwealth Trust Co. (4 CBR (3d) 16) (B.C. Supreme Court). In that case, trust company, after several years in the process of liquidation, was being wound up under the provisions of the British Columbia Winding Up Act. The majority shareholder of the trust company applied for removal of counsel for the sole remaining creditor of the trust company. The grounds were that law firm who merged with the firm representing the creditor had once acted for the former liquidators of the trust company. The application was dismissed. In dismissing the application, the court pointed out that the complaint was not from the former client of counsel as was the case in MacDonald Estate v. Martin (supra). At pg. 30 of the CDIC case Preston, J. states: “The strict nature of the rule enunciated by the Supreme Court of Canada in MacDonald Estate v. Martin has application only when client applies to ensure the sanctity of confidential information communicated to his or her solicitor within solicitor‑and‑client relationship. If were to extend this rule to circumstances in which the application is made by someone who was never the client of the law firm sought to be discharged, would have to ignore the historical foundation of the rule."" agree with that statement urged upon me by Mr. Coles but the court must in this case, as have already stated, consider its supervisory responsibility in relation to the bankrupt estate. The court in the CDIC case, in fact, assumed supervisory jurisdiction over the winding up process as well as over the estate solicitors. The court, in that case found, however, that there were no grounds for dismissing counsel since any information counsel could have obtained was not confidential. In the case now before the court, the question is not whether counsel for the estate is in possession of confidential information, but rather whether counsel can serve two masters whose interests may be in conflict. As well, the Trustee owes duty of fairness not only to all the creditors but also to the bankrupt. Mr. Coles has also referred the court to Royal Bank of Canada v. Vista Homes Ltd. et al (54 C.B.R. 124) (Oct. 11, 1984) B.C.S.C. In that case, creditors of company in receivership applied to the court to restrict the receiver in disposing of assets secured by debenture. The receiver had been appointed by the debenture holder under the terms of the debenture. The creditors complained that the receiver felt greater or special duty to the debenture holder. The court refused to restrict the receiver. The receiver, until shortly before the application, had relied for legal advice upon counsel for the debenture holder, but had obtained other counsel by the time the court application proceeded. It should be noted that in the Royal Bank case, the receiver was not appointed by the court. MacDonald, J. pointed out the distinction between the obligations of receiver appointed by the court as opposed to receiver appointed under the terms of debenture. At page 125 MacDonald, J. states: ""A clear distinction must be drawn between the duties and obligations of receiver‑manager appointed under the terms of debenture and one appointed by the court. In the latter case, the authority of the. receiver‑manager is derived from the court and not the instrument. He becomes an officer of the court and acts in fiduciary capacity to all parties involved in the litigation: Ostrander v. Niagara Helicopters Ltd. (1973), 1973 CanLII 467 (ON SC), O.R. (2d) 281."" In addressing the complaint of the creditors that the Trustee felt greater or special duty to debenture holders, MacDonald, J. in the Royal Bank case felt that their concerns had been addressed by three events, the last and what he considered most important was that the receiver had retained independent counsel. At page 127 MacDonald, J. points out the advantages of independent counsel where creditors are of the view that the Trustee is favouring the debenture holder. ""... can formulate no practical way of forcing the receiver‑manager to listen to the advice of the applicants, nor could they suggest practical solution to me. On this question as well, the retainer of an independent solicitor to represent the receiver‑manager will be an important development. That solicitor is not embroiled in the controversies between the parties to this action. In light of the fiduciary obligations of the receiver‑manager to all parties, and with the more complete information which should not be available to the applicants, lines of communication can be established through that solicitor. He will be more mindful of the duties and obligations of the receiver‑manager to all parties than were the solicitors for the plaintiff."" The last paragraph applies precisely to the situation in the case at bar where relations are strained between the applicant and all other parties including counsel. Unlike the Royal Bank case where the receiver was appointed by the debenture holder here the Trustee was appointed by the court and is subject to the courts supervision. Under all of the circumstances to which I have referred I am of the view that the Trustee should not be represented by counsel for the Bank and I would so order. Costs shall be in the cause. J. Halifax, Nova Scotia 1991 S.H. 80055 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: NsC CORPORATION LIMITED and ABN AMRO BANK CANADA Respondent DECISION OF TIDMAN, J.: (Orally)","This was an application for an order prohibiting the law firm that represented the respondent bank from acting as counsel for the trustee of the bankrupt company's estate. The applicant argued that there were significant areas where the interests of the bank conflicted with interests of the creditors. The trustee, who must act in the best interest of all creditors, should not be advised by the bank's counsel. Granting the order. The court, applying its supervisory powers, found the trustee should not be represented by the bank's counsel. On Appeal.",c_1992canlii4474.txt
158,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 179 Date: 2007 05 24 Docket: Q.B. 66/2007 Judicial Centre: Regina BETWEEN: FIRST NATIONS UNIVERSITY OF CANADA and UNIVERSITY OF REGINA FACULTY ASSOCIATION and AN ARBITRATION BOARD CHAIRED BY BETH BILSON, Q.C. RESPONDENTS Counsel: Larry F. Seiferling, Q.C. for the applicant Victor P. Dietz, Q.C. for the University of Regina Faculty Association JUDGMENT WIMMER J. May 24, 2007 [1] This is an application for judicial review of a Board of Arbitration Award which held that the First Nations University of Canada had violated certain provisions of a Collective Agreement in force between the parties. The facts of the case are reasonably straightforward. [2] On May 12, 2005, the University of Regina Faculty Association filed grievance on behalf of Dr. Blair Stonechild who is First Nations University faculty member. The grievance alleged that the University had interfered with his academic freedom. The allegation had to do with the withdrawal of an invitation to Dr. Stonechild to be the keynote speaker at National Symposium on Post Secondary Education Policy and Funding which was held the previous month. The symposium was an initiative of the Federation of Saskatchewan Indian Nations and although the event was held on campus, the University itself was not directly involved. It was drawn into the controversy between Dr. Stonechild and the Federation in circuitous way. [3] During the relevant period, former student of Dr. Stonechild, Ms. Danette Starblanket, was employed by the Federation as Director of Higher Learning and Research. In that capacity, she was instrumental in the planning and organization of the symposium and it was she who invited Dr. Stonechild to participate as speaker. That was in mid-March 2005. [4] Ms. Starblanket’s idea was that Dr. Stonechild would make presentation based upon his Ph.D. thesis which is entitled “Pursuing the New Buffalo: First Nations Higher Education Policy in Canada.” He had received his Ph.D. degree from the University of Regina in 2004. Apparently some misunderstanding arose because Dr. Stonechild believed he was being invited to present the results of research he had more recently done for the Assembly of First Nations national First Nations political organization. In any event, there is no disputing the fact he was invited to speak at the upcoming symposium. [5] Later, after Ms. Starblanket had examined Dr. Stonechild’s thesis, she decided it would not provide suitable foundation for the symposium’s keynote address. On March 31, she advised him that his services would not, after all, be required. [6] Dr. Stonechild was disappointed at this turn of events and he sought to have the decision reversed. On April 10, he sent a letter to the President of the First Nations University enquiring whether its Board of Governors might be asked to intervene and request the symposium’s organizing committee to reconsider the matter of his presentation. The Board of Governors met on April 12 and Dr. Stonechild’s letter was on the meeting’s agenda. [7] The Chair of the Board of Governors at the time was Morley Watson who was also Vice-Chief of the Federation of Saskatchewan Indian Nations. The Arbitration Board Award describes the relationship between the University and the Federation. Throughout the document, acronyms are used when referring to most institutions and organizations. nan The FNUC is unique institution. It is federated college of the University of Regina, and derives academic authority from that association. On the other hand, it is also signifier of the important role of post-secondary education as vehicle for fulfilling the aspirations of First Nations people in Saskatchewan and across the country. The FNUC was created under statute of the FSIN, the provincial body representing First Nations. Under this statute, the FNUC has Board of Governors, the majority of whom are chiefs who are also part of the governing body of the FSIN. At the time relevant to this grievance the Chair of the Board of Governors was the First Vice-Chief of the FSIN, Mr. Morley Watson. [8] By way of background, the Award refers to certain other events which were taking place at the University at the time. On February 17, 2005, prompted by concerns about fiscal and administrative issues, representatives of the FSIN, including Vice-Chief Watson, entered the FNUC and assumed responsibility for many administrative functions. Several senior administrators were relieved of their duties, and comprehensive forensic audit of the University finances was ordered. Several people closely connected with the FSIN were appointed to replace FNUC administrative personnel who had been displaced. These actions by the FSIN engendered considerable public controversy, and created tension between the FSIN and some of the faculty and administrators within the FNUC. Dr. Stonechild was one of the faculty members who had expressed concerns about how the academic credibility of the University might be affected by these actions. [9] At the Board of Governors meeting on April 12, the progress of the forensic audit and related issues were discussed. When it came to Dr. Stonechild’s request, Mr. Watson made some inappropriate comments. He demonstrated personal irritation or antagonism toward Dr. Stonechild, all seemingly associated with the events that began to unfold on February 17. He linked his feelings about Dr. Stonechild to the question on the table concerning the symposium. The meeting ended with no decision having taken place regarding the matter raised in Dr. Stonechild’s letter. [10] After fully canvassing all of the facts, the Board of Arbitration came to this final conclusion: It may be true that Vice-Chief Watson did not in fact play role in the decision that Dr. Stonechild should not be on the program. It may also be true that Vice-Chief Watson was persuaded by Chief Fiddler’s intervention to contemplate resolution of the dispute, and that, in any case, it was far too late for anyone to reverse the decision removing Dr. Stonechild from the list of speakers. We have concluded, nonetheless, that by suggesting that his dispute with Dr. Stonechild should affect the opportunity for Dr. Stonechild to appear at the Symposium to present his research, Vice-Chief Watson failed in his obligation to refrain from interfering in and to defend the academic freedom of a faculty member. In this respect, we find that the Employer violated the collective agreement, and we therefore uphold the grievance in part. As well as challenging these findings of the Board, the University advances jurisdictional arguments as reasons for setting aside or quashing the Award. [11] First, it contends that the Board of Arbitration exceeded its jurisdiction by entertaining a grievance which did not involve parties to the collective agreement. It argues that the dispute giving rise to the agreement was between Dr. Stonechild and the Federation not Dr. Stonechild and the University. However, the Board made a clear finding of fact that the alleged breach of the Collective Agreement occurred while Mr. Watson was acting in his capacity as Chair of the University’s Board of Governors and not as an officer of the Federation. That finding brought the issue within the purview of the Agreement. [12] Second, it argues that the Board of Arbitration made a determination of an issue not raised in the grievance namely, a finding that there was a violation of academic freedom. With respect, I do not agree. The formal grievance specifically refers to interference with Dr. Stonechild’s academic freedom in the second paragraph under the heading, NATURE OF DISPUTE. These actions by FNUC and its Board are an abuse of authority and are harassing and intimidating actions against this faculty member. In addition, FNUC and its Board have interfered with the academic freedom of Dr. Stonechild, in violation of the FNUC/URFA Academic Collective Bargaining Agreement (2002-2005). This issue between the parties was clearly joined. [13] Before passing upon the merits of the application it is necessary to determine the standard of review to be applied to the decision of the Board of Arbitration. Since the Supreme Court of Canada decision in Voice Construction Ltd. v. Construction General Workers’ Union, Local 92, 2004 SCC 23 (CanLII); [2004] S.C.R. 609 the law in this regard has been reasonably well settled. Following the pragmatic and functional approach referred to in the judgment, it is clear the standard of review to be applied in this case is one of reasonableness. See also: Bethany Pioneer Village Inc. v. Service Employees International Union, Local 333, 2006 SKQB 370 (CanLII); [2006] S.J. No. 700 QL (Sask. Q.B.). [14] The following passage referring to the standard of reasonableness appears in the judgment of Mr. Justice Iacobucci in Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] S.C.R. 247, at para. 55: decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to somewhat probing examination, then the decision will not be unreasonable and reviewing court must not interfere. nan This means that decision may satisfy the reasonableness standard if it is supported by tenable explanation even if this explanation is not one that the reviewing court finds compelling. nan Mr. Justice Iacobucci went on to say that it is not necessary for every element of the tribunal’s ruling to pass the reasonableness test. The question for the reviewing court is whether the reasons as whole support the decision. [15] In the present case, the Board of Arbitration analyzed and then had reference to portions of Articles 2.1 and 2.2 of the Collective Agreement. 2.1 Preamble The First Nations University of Canada is unique institution in both philosophy and mandate and, as such, has distinct responsibility to safeguard and promote academic freedom. It is the policy and intent of the University to revise this statement of Academic Freedom as our collective wisdom grows. 2.2 Academic Freedom General Policy Statement Academic freedom is essential to the teaching, research, scholarship and community development functions of the University. The University will defend the academic freedom of members from interference from any source; however, the University will not be held accountable for infringements of academic freedom originating beyond the control of the University. The Board interpreted these provisions as imposing positive obligation upon the University and its officers to defend and promote the exercise of academic freedom by faculty members and then went on to consider what happened at the Board of Governors meeting on April 12. Thus it reached the conclusion which have already quoted. [16] In effect, the Board of Arbitration found that Mr. Watson’s conduct at the Board of Governors meeting did not comport with the requirements of Articles 2.1 and 2.2 of the Collective Agreement. In my judgment, the reasons as a whole support that finding. The decision meets the reasonableness test. [17] The application is dismissed with costs. J. C.R. Wimmer","Application for judicial review of a board of arbitration award that held the First Nations University of Canada had violated certain provisions of a collective agreement in force between the parties. The grievance alleged that the University had interfered with faculty member's academic freedom. The allegation concerned the withdrawal of an invitation to that faculty member to be the keynote speaker at National Symposium on Post Secondary Education Policy and Funding that was held on campus, although the University was not directly involved. After one of the chief organizers examined the faculty member's thesis and determined it would not provide suitable foundation for the symposium's keynote address, the invitation was withdrawn. The faculty member sought to have the decision reversed, and requested the University's Board of Governors' intervention. When the faculty member's request came up at one of the Board's meetings, one of its members made some inappropriate comments and expressed personal animus towards the faculty member. No decision was reached at that meeting. The respondent Board of Arbitration found that, in failing in his obligation to refrain from interfering in and to defend the academic freedom of a faculty member, the Board member's comportment amounted to a violation of the collective agreement by the employer. The applicant argued that the Board of Arbitration exceeded its jurisdiction by entertaining a grievance that did not involve parties to the collective agreement. Further, it argued that the Board of Arbitration made a determination of an issue not raised in the grievance, namely, a finding that there was a violation of academic freedom. HELD: The application is dismissed with costs. The Board of Arbitration found that the member of the University's Board of Governors' comportment at the meeting did not accord with the requirements of certain articles of the collective agreement. The reasons of the Board of Arbitration support that finding and the decision meets the reasonableness test. The fact that the member of the Board of Governors was acting in his capacity as Chair brought the issue within the purview of the collective agreement. The Court disagrees with the applicant's contention that the Board of Arbitration made a determination of an issue not raised in the grievance directly.",e_2007skqb179.txt
159,"R.C. Mills QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 506 Date: 2009 12 23 Docket: Q. B. G. 1455 of 2009 Judicial Centre: Regina BETWEEN: SHEILA BUCH and NATHAN KOCH, JEFFERY DON VANIN and THE DIRECTOR OF RESIDENTIAL TENANCIES RESPONDENTS Appearing: Adam T. Ailsby for the appellant Nathan Koch appearing for himself Jeffery Vanin appearing for himself JUDGMENT GUNN J. December 23, 2009 [1] Sheila Buch appeals from a decision of the Hearing Officer of the Office of Residential Tenancies, dated August 27, 2009. The appeal is brought on the following questions of law: (a) The Hearing Officer erred in law by declaring that she did not have the jurisdiction to deal with the matter before her. (b) The Hearing Officer erred in law by determining that the tenant, Jeffery Vanin is entitled to the rights that the lease affords. (c) The Hearing Officer erred in law by failing to make an Order of Possession of the rental unit in favour of Ms. Buch and the respondent Nathan Buch. THE LEGISLATION [2] The following provisions of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001 have relevance: In this Act: ... (f) “landlord” means person who grants to another person the exclusive right of tenancy to rental unit and includes any of the following: (i) the owner of the rental unit, the owner’s agent or another person who, on behalf of the owner, grants to another person the exclusive right of tenancy to rental unit; ... (l) “rental unit” means living accommodation rented or intended to be rented to tenant; ... (q) “tenancy” means tenant’s right to possession of rental unit during tenancy agreement; (r) “tenancy agreement” means an agreement, whether written or oral, express or implied; (i) that is between landlord and tenant respecting possession of rental unit and use of any common areas and services and facilities that are the subject of the agreement; and (ii) pursuant to which the tenant...agrees to pay rent... 3(1) Notwithstanding any other Act but subject to section 5, this Act applies to tenancy agreements, rental units and other residential property. 9(1) For the purposes of this Act, the relationship of the landlord and tenant under tenancy agreement is one of contract only and does not create any interest in land in favour of the tenant. ... 10 Except as modified or varied by this Act or the regulations, the common law applies to tenancy agreements. 19(1) written tenancy agreement must comply with any prescribed requirements and must contain all of the following: (a) the standard conditions; (b) the correct legal names of the landlord and tenant; (c) the address of the rental unit; (d) the date the tenancy agreement is entered into; (e) the address for service and telephone number of the landlord or the landlord’s agent; (f) telephone number the tenant may contact in the case of emergencies, including emergency repairs, if that number is different from the number required by clause (e); (g) the agreed provisions respecting the following: (i) the date on which the tenancy commences; (ii) if the tenancy is periodic tenancy, whether it is on weekly, monthly or other periodic basis; (iii) if the tenancy is fixed term tenancy, the date the tenancy ends; (iv) the amount of rent payable for specified period, and, if the rent varies with the number of occupants, the amount by which it varies; (v) the day in the month, or in the other period on which the tenancy is based, on which the rent is due; (vi) provision that identifies whether the landlord or the tenant is to pay for utilities; (vii) provision setting out those services and facilities that are included in the rent; (viii) the amount of any security deposit and the date the security deposit was or must be paid. (2) Within 20 days after landlord and tenant enter into written tenancy agreement, the landlord must give the tenant copy of the signed agreement. (3) If tenancy agreement is not in writing, the landlord must nevertheless provide the information required by clauses (1)(e) and (f) to the tenant, in writing, within 20 days after the date that they enter into the tenancy agreement. (4) If the premises in or on which the residential property is situated contains more than one rental unit and the landlord retains possession of part of the premises for the common use of all tenants, the landlord shall post and maintain in conspicuous place in the premises or at or near the main entrance to the premises prominent notice containing: (a) the legal name of the landlord; and (b) the address for service and telephone number of the landlord or the landlord’s agent. (5) tenant’s obligation to pay rent is suspended if the landlord: (a) subject to subsection (6), in the case of written tenancy agreement, does not provide copy of the written tenancy agreement required by subsection (2);or (b) in the case of tenancy agreement that is not in writing, does not provide the information required by subsection (3). (6) landlord may apply for an order pursuant to section 70 that the tenant’s obligation to pay rent is not suspended pursuant to clause (5)(a) and that the tenant must continue to pay rent if: (a) tenant alleges that the landlord has not provided written agreement that fully complies with subsection (1); and (b) hearing officer is satisfied that: (i) the landlord has provided the tenant with written agreement that substantially complies with subsection (1); and (ii) the tenant is not prejudiced by any error or omission in the written agreement mentioned in subclause (i). (7) tenancy agreement is not invalid if landlord fails to provide the information required of the landlord pursuant to subsection (1) or (3) unless hearing officer, on an application by the tenant for an order pursuant to section 70, is satisfied that the failure is significant and the tenant is prejudiced by the failure. 20 To create fixed term tenancy of three months or longer, the landlord and tenant must enter into written tenancy agreement. 70(1) An application for an order respecting any residential tenancy dispute between landlord and tenant must be made in the form and manner that the director may direct. (2) Subject to subsection (14), if an application is made pursuant to subsection (1) and the prescribed application fee is paid to the director: (a) the director shall: (i) select hearing officer from the panel of hearing officers appointed pursuant to section 73 to hear the matter or determine that the director will be the hearing officer to hear the matter; and (ii) issue to the applicant written notice of the date and place of hearing; and (b) the applicant shall serve that notice on those persons concerned with the matter that the director may direct and in the manner the director may direct. (3) The director shall issue written notice of the date and place of hearing and cause the notice to be served on all parties concerned with the matter if: (a) the director becomes aware of possible contravention of or failure to comply with this Act, the regulations, an order made pursuant to this Act or tenancy agreement; and (b) the director determines that it is in the public interest to hold hearing. (4) For the purposes of subsection (3), the director shall select hearing officer from the panel of hearing officers appointed pursuant to section 73 to hear the matter or determine that the director will be the hearing officer to hear the matter. (5) On receiving an application pursuant to subsection (1) or determining pursuant to subsection (3) that hearing should be held, the director may direct an investigation into the matter. (6) After holding hearing pursuant to this section, hearing officer may make any order the hearing officer considers just and equitable in the circumstances, including all or any of the following: (a) an order directing any person found contravening or failing to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act to stop that contravention or failure and to so comply; (b) an order requiring tenant to pay to the director all or any part of any instalment of rent otherwise payable to the landlord; (c) an order requiring the payment of damages; (d) subject to section 68, an order granting possession of rental unit; (e) an order determining the disposition of security deposit and any accrued interest pursuant to section 33. (7) If an order is made pursuant to clause (6)(b), the hearing officer may direct that the moneys paid to the director be used to remedy the landlord’s contravention of or failure to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act. (8) For the purposes of hearing pursuant to this section: (a) submission may be made: (i) orally, including by telephone; or (ii) in writing; and (b) another party to the hearing is to be given an opportunity to rebut submission mentioned in clause (a) at the time of the hearing, or at later time, and in the manner the hearing officer considers appropriate. (9) On making an order pursuant to subsection (6), the director shall serve copy of the order and copy of section 72 on each party involved in the matter with respect to which the order was made. (10) The director may serve the copies mentioned in subsection (9): (a) by personal service; (b) by ordinary mail; or (c) in the case of service on the tenant, by causing copy of the order to be posted on the door of the tenant’s rental unit. (11) In any application by landlord for possession of rental unit, the tenant may also request an order of relief pursuant to this section and hearing officer may grant that relief if it appears to the hearing officer that: (a) notice to end the tenancy agreement was given to the tenant because of the tenant’s good faith complaint to the director or to any other agency of the Government of Saskatchewan, the Government of Canada or municipality alleging the contravention of any Act, bylaw or other law dealing with health or safety standards, including housing standards; (b) notice to end the tenancy agreement was given to the tenant because of the tenant’s attempt to secure or enforce the tenant’s rights pursuant to this Act; (c) the landlord has contravened provision of the tenancy agreement or has contravened any standard condition; or (d) notice to the end the tenancy agreement was given to the tenant for non-payment of rent pursuant to section 57 and the hearing officer is satisfied that: (i) the non-payment of rent relates to amounts that are the result of an increase to the rent and the landlord increased the rent for the purpose of enabling the landlord to end the tenancy; and (ii) it is just and equitable for the order to be made. (12) An order for relief pursuant to subsection (11) may include any of the following terms of any conditions the hearing officer considers appropriate having regard to the conduct of the parties and any other circumstances of the proceedings: (a) relief with respect to payment of rent or reasonable compensation; (b) an order to restrain any contravention as mentioned in clause 11(c). (13) If hearing officer decides that the landlord is entitled to possession of the rental unit, the hearing officer may make an order for possession and order writ of possession in the prescribed form directed to the sheriff acting at the judicial centre nearest to the place where the rental unit is situated commencing the sheriff to place the landlord in possession of the rental unit as soon as is reasonably possible. (14) The director may refuse to issue written notice of hearing to, and hearing officer may decline to make an order respecting, landlord who: (a) is in contravention of an order made pursuant to this Act; or (b) has failed to forward security deposit and any accrued interest to the director pursuant to section 33. 72(1) Any person who is aggrieved by decision or order of hearing officer may appeal the decision or order on question of law or of jurisdiction to judge of the Court of Queen’s Bench within 30 days after the date of the decision or order. THE DECISIONS OF THE HEARING OFFICER: 1. DECISION DATED JUNE 24, 2009 APPLICATION: The Tenant claims that the Landlord has breached the rights of the Tenant by serving notice to vacate. The Tenant seeks an Order that the Landlord withdraw the notice ot[sic] vacate. FACTS AND CONCLUSIONS: hearing was held on June 8, 2009 at Regina, Saskatchewan. The Landlord was properly served with the Notice of Hearing as it has come to the attention of the Landlord. The Landlord was not present. Evidence was presented or given by the following persons: Jeffery Vanin the Tenant. The Tenant signed year lease to rent room in the Landlord, Nathan Koch’s home. At the time the Tenant knew only that Mr. Koch was the Landlord. In May he was served with notice to vacate by Sheila Buch advising him to leave as of June 15th as she was moving into the premises. He then learned that Ms. Buch who is Mr. Koch’s Mother was co-owner of the property. While one of pair of joint owners can serve notice to vacate, the section that the Landlord relies upon is only available to periodic Tenancies and Mr. Vanin has year lease. Secondly, even if there wasn’t lease, the notice did not provide proper notice, having been served in May and requiring the Tenant to leave on June 15th which would not be full calendar month’s notice. Therefore the Landlords[sic] to vacate cannot stand. DECISION According to Section 70 of The Residential Tenancies Act, 2006t[sic] hereby Order that the Notice to Vacate dated May 7, 2009 is set aside. [3] new hearing was scheduled for July 30 as Ms. Buch advised the Hearing Officer that she had not received notice of the hearing. [4] letter dated August 7, 2009 to Ms. Buch, Mr. Vanin and Mr. Koch from the office of Residential Tenancies stated that ”... after the hearing on July 29, 2009 it came to the attention of the Hearing Officer that the Landlord, Sheila Buch had made an application for possession of the property. This was not heard on July 29th.” Therefore new hearing was scheduled for August 19, 2009. DECISION DATED AUGUST 27, 2009: APPLICATION: The Landlord seeks an Order of Possession pursuant to section 70 of The Residential Tenancies Act, 2006 of the rental unit based on the Tenant having disputed the termination notice. The Tenant also claims that the Landlord has breached the rights of the Tenant by serving notice to vacate and seeks an order that the Landlord withdraw the notice to vacate. FACTS AND CONCLUSIONS: hearing was held on June 8, 2009, July 30, 2009 and August 19, 2009 at Regina, Saskatchewan. The Notice of Hearing was properly served personally. Evidence was presented or given by the following persons: Jeffery Don Vanin on June and July 30, 2009; Sheila Buch by telephone on June 8, 2009 and in person July 30, 2009 and August 19, 2009; Nathan Koch on July 30, 2009. The Landlords are Mother and Son. Ms. Buch lived out of province for number of years, returning in summers to reside in the premises and then returning to her job in Alberta in September. This year she wanted to move back to her house in Riceton on permanent basis. She found that her son, the other Landlord, had rented out portion of the house to Tenant and had signed 3-year lease. She seeks an order that the Tenant vacate in order that she can move into her home. The Landlord, Mr. Koch said that he sometimes works out of town and there was [in] issue with the need for someone to be in the premises for insurance purposes. He stated that he felt the responsible thing to do was to get responsible person to live as roommate so that the house would be looked after. He acknowledged that his Mother usually came home for summer but did not know that she wanted to move back permanently. The Tenant states that he signed 3-year lease in good faith. When he signed the lease, he did not know that there was second Landlord living out of province and thought that Mr. Koch was the sole owner of the property. have no jurisdiction to deal with dispute between two Landlords. can only deal with the situation between the Landlords and this Tenant. The Tenant is not at fault in this situation. He signed lease in good faith and is entitled to the rights that the lease affords. Until such time as the issues are settled between the two Landlords, the Tenant has right to remain in the property. DECISION: For the reasons set out above, dismiss the Landlord’s claim for possession and hold that the Notice to Vacate served on the Tenant dated May 7, 2009 is set aside. 1. Does the Act apply? A. Is room in house rental unit capable of being the subject of tenancy? B. Was there tenancy agreement? 2. If the answer to #1 is yes has the Hearing Officer made an error in law in finding she had no jurisdiction? DISCUSSION: 1. Does the Act apply? A. Is room in house rental unit capable of being the subject of tenancy? [5] The Act applies to tenancy agreements, rental units and other residential property (see Section 3(1)). Section of the Act sets out what the Act does not apply to. This list does not include room in house. And lastly rental unit is defined in section to be living accommodation rented or intended to be rented to tenant. So, it would appear that room in house is rental unit capable of being the subject of tenancy. B. Was there tenancy agreement? [6] Section 20 of the Act provides that to create fixed term tenancy of three months or longer, the landlord and tenant must enter into written tenancy agreement. Mr. Vanin signed form entitled “Application/Lease Agreement” for period of 36 months commencing February 1, 2009 and ending January 31, 2012. [7] Section 19 of the Act outlines the requirements for written tenancy agreements. One of the requirements of the Act is that written tenancy agreement must contain the standard legal names of the landlord and tenant (see s. 19(1)(b)). The lease agreement that Mr. Vanin signed contains the name of Nathan Koch as landlord and does not contain the name of Sheila Buch. However s. 19(7) of the Act states that tenancy agreement is not invalid if landlord fails to provide the information required of landlord pursuant to ss. (1) or (3) unless hearing officer, on an application by the tenant for an order pursuant to s. 70, is satisfied that the failure is significant and the tenant is prejudiced by the failure. No such finding was made in this case. [8] That takes us to the ultimate question of whether Nathan Koch as only one of two joint owners can bind the other joint owner? [9] In the text, Sir Richard Edgar Megarry and Sir William Wade, The Law of Real Property, 4th ed. (London: Stevens Sons Limited, 1975) at p. 394 the Honourable Sir Robert Megarry and Professor H.W.R. Wade explain the principles of joint tenancy: Any legal act, eg., conveyance or lease of the land, or surrender of lease requires the participation of all the joint tenants; one cannot dispose of it by himself, for he by himself has not the whole estate in it. But exceptions to this rule are found in the cases of personal representatives and of the determination of periodic tenancies (eg., weekly or monthly tenancies), which are determinative on the usual notice given by one of joint landlords or one of joint tenants, since unanimity is required to continue such tenancy. Yet for one co-owner to give such notice without the consent of all persons beneficially entitled will, after 1925, usually be breach of the trusts now existing in the case of co-ownership. [10] In these circumstances, clearly there was no participation by both owners in entering into this lease agreement. The Act also defines landlord as “the owner’s agent or another person who, on behalf of the owner, grants to another person the exclusive right of tenancy to rental unit” (see s. 2(f)(i) supra). Agency is the relationship between one part (“the principal” and another “the agent”) whereby the agent is empowered to act on behalf of and to represent the principal. Agency emerges from the express or implied consent of principal and agent, or by subsequent ratification by the principal of the agent’s acts done on the principal’s behalf, or by estoppel, or by operation of the principles of law. (See Agency, C.E.D. (West 3rd) (looseleaf, (Rel. 2009-10)October 2009) at 137 and 145 paras and 15). [11] There was no evidence before the Hearing Officer that Nathan Koch was in any way acting as agent for Sheila Buch. In fact Mr. Koch’s evidence would lead to the opposite conclusion. There was no express consent of principal and agent. [12] In Crampsey et al. v. Deveney (1968), 1968 CanLII 34 (SCC), D.L.R. (3d) 161; [1969] S.C.R. 267 the Supreme Court considered whether an agency might arise by implication in certain circumstances. No agency relationship was found where one of the defendants Anna Crampsey who held property in joint tenancy with her three children, listed and attempted to sell property without consulting all of the children. In Crampsey, the children refused to sign and later refused to close the transaction. Judson, J. held at 163: ... In my view, no agency relationship existed between Anna and her children at the time of the sale. It is true that she had managed the property and collected the rents for many years. She always asserted her right to do this and that she alone had the right to sell and to sign the deed. No one in the family questioned her assertions. The fact that Anna had the property listed for sale in 1960 does not take the matter any further. She had no authority from the children to do so. Indeed she did not even notify them of what she intended to do and only two actually knew of the listing. [13] Brief consideration can be given to agency by estoppel. This can arise where one person has so acted so as to lead another to believe that he or she has authorized third person, without any actual authority, to act on his or her behalf, and that other person, in such belief, enters into transaction with that third person. (See Agency, C.E.D. (West 3rd) (looseleaf, (Rel. 2009-10) October 2009) at 157, para 44.) In that case the first person is estopped from denying the fact of the third person’s agency under the general law of estoppel, and it is immaterial whether the ostensible agent had no authority whatever in fact, or merely acted in excess of his actual authority. (See Hals., 3rd ed., pp. 158-159, quoted with approval in Crampsey, at 3). [14] To create agency by estoppel, there must be some positive statement or conduct by the principal that another person had authority to act for the “principal”. In Dogwood Drilling Ltd. V. Fitterer, 1977 CanLII 2197 (BC CC), [1977] W.W.R. 724 (B.C. County Court) the court found an agency relationship existed by the course of conduct that was adopted by the defendant and sufficient words evidencing an agency. Silence or inactivity will not suffice. (See Crampsey, supra at page 4) [15] Again the facts described by the Hearing Officer here do not support an agency by estoppel, since Mr. Vanin was not aware that Ms. Buch was an owner and Ms. Buch did not lead Mr. Vanin to believe that Nathan Koch was authorized to act on her behalf. Mr. Koch did not purport to act for his mother. He was acting for himself and asserting he had that right. [16] For all of the above reasons, I conclude that there was no valid tenancy agreement between Nathan Koch and Jeffrey Vanin. [17] The Act applies to tenancy agreements and to circumstances where rental units or residential property is validly rented by a landlord to a tenant. Those circumstances do not exist here and conclude that the Hearing Officer did not err in law in deciding she did not have jurisdiction to deal with this dispute. [18] However, the Hearing Officer did err in law in determining that Mr. Vanin was entitled to the rights that the lease affords. have come to this conclusion on the basis that the hearing officer did not have jurisdiction to deal with this matter in any respect. [19] There are other remedies available to Ms. Buch to obtain possession of the property in question. And without deciding the issue, Mr. Vanin may have remedies against Mr. Koch for any damages he has suffered as result of his dealings with Mr. Koch. [20] The appeal is dismissed.","The appellant landlord and mother appeals from a decision of the Hearing Officer of the Office of the Residential Tenancies dismissing her claim for possession. The landlords are mother and son. The mother lives out of province for a number of years. She returns in summers to reside in the premises. This year she wanted to return to her premises on a full time basis. She found that her son had rented out a portion of the house to a Tenant and had signed a 3 year lease. She sought an order that the Tenant vacate the premises. The Hearing Officer found he had no jurisdiction to deal with the dispute between the two landlords. He found he could only deal with the situation between the landlords and the tenant and found that the tenant had signed a lease in good faith and is entitled to the rights the lease affords and is entitled to remain in the premises. HELD: There was no valid tenancy agreement. The Act only applies to tenancy agreements and to circumstances where rental units or residential property is validly rented by a landlord to a tenant. In the circumstances, the Hearing Officer did not have jurisdiction to deal with this dispute. However, the Hearing Officer did err in law in determining that the tenant was entitled to the rights that the lease affords. 1) A room in a house is a rental unit capable of being the subject of a tenancy. 2) Clearly there was no participation by both owners in entering into this lease agreement. Mr. Koch's evidence would lead to the opposite conclusion. There was no express consent of principal and agent.  3) The facts as described by the Hearing Officer do not support an agency by estoppel. This can arise where one person has acted so as to lead another to believe that he or she has authorized a third person, without any actual authority, to act on his behalf and that other person, in such belief, enters into a transaction with that third person. The tenant here was not aware that the mother was an owner and the mother did not lead the tenant to believe that her son was authorized to act on her behalf.",2009skqb506.txt
160,"P. FOLEY QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 249 Date: 2010 07 14 Docket: Q.B.G. No. 457 of 2007 Judicial Centre: Saskatoon BETWEEN: DR. STAN RUBIN and GLENN ROSS, SAM NOWASELSKI and CANADIAN UNION OF PUBLIC EMPLOYEES, Counsel: Catherine A. Sloan for the plaintiff Andrew M. Mason for the defendants JUDGMENT KEENE J. July 14, 2010 OVERVIEW [1] The plaintiff says that his personal and professional reputation has been seriously damaged by defamatory statements made intentionally and maliciously by the defendants. Dr. Rubin claims these statements were publicly communicated by the defendants by means of notices posted on bulletin boards in the plaintiff’s workplace, by means of mass mailing to all members of the Canadian Union of Public Employees, Local 1975 (“CUPE”) and by means of posting on the CUPE website. The plaintiff seeks damages and costs. [2] I have found the plaintiff has proven that he was defamed. However, I have accepted the defendants’ defence of qualified privilege. [3] have made provisional order for damages. [4] have ordered that none of the parties should receive costs. 2. OVERVIEW OF EVIDENCE [5] The plaintiff, Dr. Rubin, received his Bachelor of Science from the University of Alberta in 1976 and his Doctor of Veterinary Medicine from the University of Saskatchewan in 1980. The plaintiff took four-year post-graduate course in Illinois and received Master of Science in 1984. In 1984, Dr. Rubin started work at the University of Saskatchewan as an assistant professor at the Western College of Veterinary Medicine at the University of Saskatchewan in Saskatoon. He received his full professorship in 1991 at the University of Saskatchewan. Dr. Rubin was appointed director of the Veterinary Teaching Hospital (“the VTH”) at the Western College of Veterinary Medicine at the University of Saskatchewan in Saskatoon in May of 2002. [6] The VTH is full-service animal hospital open to members of the public, operating both large animal clinic and small animal clinic. The VTH also serves as the teaching and research facility for veterinarian students enrolled at the Western College of Veterinary Medicine, University of Saskatchewan. The VTH is staffed with university faculty specialist veterinarians, veterinarian interns and students, and associated staff, including technicians, receptionists and clerks. [7] The VTH operations include approximately 600 faculty, staff and students, an annual budget of $7 million and serve approximately 12,000 members of the public each year. The facility is open to the public 24 hours day, days week, 365 days year. [8] As director of the VTH, Dr. Rubin had comprehensive administrative responsibility for the operation of the VTH, including all fiscal and personnel matters, day-to-day operations, strategic planning, risk management, equipment purchases, complaints from the public, and overseeing the planning and implementation of $20 million renovation to the facility. [9] The defendant, CUPE, is trade union certified to represent some employees of the University of Saskatchewan, including some working at the VTH. In the fall of 2006, CUPE (Local 1975) had approximately 1,400 members. About 100 members of the VTH were CUPE members. [10] The defendant, Glenn Ross, was at all material times the president and chairperson of the grievance committee of CUPE. [11] The defendant, Sam Nowaselski, was at all material times the senior grievance officer of CUPE. [12] Dr. Rubin described the labour relations atmosphere at the VTH at the time he was appointed director in 2002 as “quiet”. The exception was workplace situation involving Pam Bowman, veterinary technician employed by the University of Saskatchewan in the Large Animal Clinic and CUPE member. Ms. Bowman complained of harassment by faculty and co-workers. [13] It appears that Dr. Rubin knew Ms. Bowman on personal basis and considered her to be friend of not only himself, but also his spouse. His evidence was that at one stage Ms. Bowman provided him with gifts. Ms. Bowman and Dr. Rubin also had similar interest in horses. Dr. Rubin testified that for several months in 2002, he would arrive at work to find Ms. Bowman waiting for him in hallway. He would take her into his office to listen to her complaints. She often cried in his office. Dr. Rubin testified that he offered her sympathy and support and felt that he was her advocate. [14] In any event, Ms. Bowman’s concerns proceeded to grievance which was resolved in 2004 by an award from an arbitration board. The award was filed as part of evidence in this trial. am satisfied that upon reading the award that it is clear that the Board of Arbitration determined that there was no evidence that Dr. Rubin engaged in any misconduct towards Ms. Bowman, and indeed Dr. Rubin attempted to act as Ms. Bowman’s advocate. [15] Simply put at this stage, it appears that Dr. Rubin was not only friend of Ms. Bowman, but also supporter of her. It certainly appears that he was not harassing her. [16] Ms. Bowman, who had been out of the workplace, was returned to the workplace in 2005. This was accompanied by coordinated effort by CUPE, the University of Saskatchewan Human Resources Department (“HR”), and the VTH to manage her return to work. This involved three types of meetings: (1) weekly “return to work” meetings involving CUPE, HR, and VTH staff; (2) mandatory “respect for workplace” meetings held at different times to accommodate shift workers; (3) “team-building” meetings to help Ms. Bowman get along with her co-workers. code of conduct for employees was being developed. Dr. Rubin testified that he was involved in all of these efforts with the exception of the team-building meetings. [17] The return to work meetings included, at times, Mr. Ross, Mr. Nowaselski, and Lois Lamon, CUPE’s national representative. [18] Dr. Carol Pond, the head of the discrimination and harassment prevention division of the HR was also involved in the weekly return to work meetings. [19] Dr. Rubin testified that he had an excellent relationship with Mr. Ross during this period. He met for lunch with Mr. Ross once week in order to cultivate good labour relations at the VTH. Dr. Rubin testified that they often discussed Ms. Bowman’s re-entry back into the workplace. [20] Dr. Rubin felt that regardless of his opinions about the advisability of Ms. Bowman’s return to work, he never stopped being supportive of her. [21] Mr. Ross and Mr. Nowaselski were witnesses in this trial. note that nothing in either gentleman’s evidence led me to the conclusion that they were in any way perturbed with Dr. Rubin on personal basis. They appear to have had concerns about his ability to rectify the situation with Ms. Bowman and two co-workers. will comment on that below. [22] Ms. Bowman appears to have kept detailed log from May 31, 2005 to January 31, 2006. The log is quite detailed, but upon reading the log in its entirety, have come to the conclusion that she did not record any ill feelings towards Dr. Rubin. [23] Despite the many meetings and efforts undertaken to get Ms. Bowman back to work, she apparently felt that the process was unsatisfactory. In nutshell it appears she believed that two other unionized employees were harassing her. When put together the evidence of all the witnesses that heard, come to the conclusion that Ms. Bowman could be described as hypersensitize. Dr. Rubin seems to feel that she was overstating her problems and possibly wanted preferential treatment. For example, she seemed to want to do “field” work as opposed to being in the hospital. Apparently accommodating her in that fashion may have caused some difficulties with other employees. Mr. Ross seems to agree that Ms. Bowman appeared to be overly sensitive. [24] On March 21, 2006, CUPE filed notice of grievance with the University of Saskatchewan alleging that Ms. Bowman had been harassed since her return to work. The grievance was drafted by executive members of the union (including Mr. Ross and Mr. Nowaselski), in consultation with their legal counsel and national representative. The grievance alleged: Despite the previous findings of personal harassment by the University, have continued to be harassed in the workplace since my return to work. The administrator of the Veterinarian Teaching Hospital, Dr. Stan Rubin, has not only refused to prevent the harassment but has been an active part of the harassment himself. He has completely failed in his duty to provide an harassment free workplace. Human Resources and the Western College of Veterinary Medicine have similarly failed in their duty and the employer is responsible for the failure of its institutions, departments and agencies. The Union maintains that the employer’s actions are violation of the Collective Agreement, including Article 21, and also constitutes tortious conduct, including intentional and/or negligent interference in my economic relations with the University and intentional and/or negligent infliction of mental suffering on myself. The employer’s actions also constitute violation of its duty to provide safe and healthy workplace as required under the Saskatchewan Occupational Health and Safety Act. [Emphasis Added] [25] The above comments are the subject of this lawsuit. [26] It was essentially the evidence of Mr. Ross that in the course of proceeding with Ms. Bowman’s grievance, the defendants wished to discover evidence and locate witnesses who might support Ms. Bowman’s allegations. In an attempt to find witnesses for an arbitration that was to commence on January 25, 2007, the defendants decided that their union members should be made aware of the grievance and the upcoming arbitration. Accordingly, Mr. Ross posted on October 6, 2006 “Notice Re: Harassment Grievance” with the attached grievance report on eight bulletin boards located in the VTH. [27] The purpose of the notice was to encourage potential witnesses to come forward to CUPE. Since the notice is of importance, repeat the entire notice as follows: The attached grievance filed March 21, 2006 on behalf of CUPE member Pam Bowman raises serious issues with respect to personal harassment in the Western College of Veterinary Medicine and particularly at the Veterinary Teaching Hospital. Ms. Bowman had been returned to work after previous harassment complaint was upheld by the University and following resolution of matters relating to her reinstatement. The Union has worked to try and ensure that Ms. Bowman was able to return to harassment-free, non-toxic workplace environment but was forced to file this grievance when Ms. Bowman experienced renewed personal harassment after her return. You will note the Union is seeking significant remedies in this matter as set out in the grievance. By reply dated September 5, 2006 Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was “no merit to the grievance” and that Ms. Bowman’s and the Union’s complaints were entirely “unfounded and without substance.” We disagree. This case is scheduled to be heard by an Arbitrator commencing January 25, continuing January 26 and from January 29 through February 2, 2007. The Arbitrator will make final and binding decision following the hearing on the merits of the grievance and if the grievance is allowed, on the remedies requested by the Union. The purpose of this notice is to request those who may have information with respect to the harassment of Pam Bowman to contact the following Local 1975 person: Sam Nowaselski (966-7015) or the National Servicing Representative, Lois Lamon at 382-8262. If you do not have specific information with respect to Ms. Bowman, but have experienced personal harassment yourself at the University, please also advise the Union or Ms. Lamon so that the matter may be taken up by CUPE Local 1975. Contact your bargaining agent if you are not member of CUPE and have information on this matter or if you have experienced personal harassment yourself. copy of this notice and the grievance is also on the Local 1975 website [28] Under the terms of the collective bargaining agreement between CUPE and the University (Article 6.3), the University was supposed to have designated certain bulletin boards as union bulletin boards. As of October 6, 2006, this had not been done. [29] The notice was posted by Mr. Ross on behalf of the defendant CUPE at approximately twelve noon on October 6, 2006, which was the Friday before the Thanksgiving weekend. The notice was removed from all the bulletin boards by someone from the University of Saskatchewan apparently on the following Wednesday, October 11, 2006. During the long weekend, the VTH part was open to the public, although the college building itself was locked. [30] In addition, CUPE mailed “mini-newsletter” to all its members on or about October 16, 2006. copy of the grievance was included in the newsletter as well. [31] The mini bulletin was also posted on the CUPE website in mid-October of 2006 in section on the website intended for communication with CUPE members. The page containing the grievance and impugned words ended up in the part of the site reserved for archived newsletters. The notice was removed from the website on or about April 20, 2007. [32] Dr. Rubin in due course received copy of the grievance report and was upset about the wording of Ms. Bowman’s grievance. The suggestion that he was not only allowing harassment to take place but that he was an active participant shocked him. He was quite affected by this and in his view it was completely untrue. He believed he had done everything that he thought he could to prevent the harassment. He had diligently participated in the back to work program. Dr. Rubin felt he was still friend and somewhat of an advocate for Ms. Bowman. [33] Dr. Rubin became upset when he learned the grievance report had been posted to the bulletin boards, and had been distributed to some 1,400 CUPE employees through the mass mailout and was also on the website. [34] Mr. Ross and Mr. Nowaselski testified as to the union’s rationale behind supporting the grievance of Ms. Bowman and the wording of the grievance. Their evidence was that Dr. Rubin as head of the VTH seemed unable to stop what Ms. Bowman reported as ongoing harassment by two fellow CUPE employees. This was despite the fact that lengthy back to work program had been ongoing simultaneously for several months. [35] Dr. Rubin testified that after the grievance was published, he experienced difficulties. He believed his capacity to manage the hospital was diminished considerably. He sensed he lost the respect of the staff. He felt the staff challenged him. He stated that work stopped being fun. [36] He testified that he took stock of the situation and decided he could no longer be director of the VTH. Dr. Rubin resigned as director in the spring of 2007 and returned to the faculty ranks at the University, teaching small animal internal medicine as full-tenured professor. [37] The plaintiff’s evidence was that financially this meant difference of about $6,000 per year. Dr. Rubin conceded that there was less stress in his job as professor. [38] Dr. Rubin appears to have decided to move on from the University in Saskatoon. He felt that he was not popular member of the faculty. He perceived “coolness” from the staff and felt that he was “pariah”. He did not provide any clear evidence as to the basis for these conclusions. This seems to have been personal feeling that he developed as these matters unfolded. [39] At this approximate time, he applied for position as director of veterinary teaching hospital at the West Virginia Technical Institute in the United States. Dr. Rubin was not successful in obtaining that position although he was short listed. [40] However, he responded to an inquiry from “headhunter” and was offered and accepted job at private specialty veterinary practice in Tucson, Arizona. [41] Dr. Rubin described this as lateral move from his faculty position at the VTH. He stated his salary is higher, but he had additional expenses such as disability insurance and group medical insurance for his family. Further, he testified his job security was considerably reduced. Dr. Rubin also testified that his wife, who is qualified veterinarian surgeon, was unable to find work in the United States. However, he did indicate that she had not been in the workplace for family reasons in Saskatoon. She now apparently wishes to resume working. In addition, he paid almost $14,000 in legal fees to facilitate his immigration to the United States. 3. LAW AND ANALYSIS Was the plaintiff defamed? [42] The Supreme Court of Canada recently confirmed the elements that plaintiff must prove in defamation case: [28] plaintiff in defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory in the sense that they would tend to lower the plaintiff’s reputation in the eyes of reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on balance of probabilities, falsity and damage are presumed ... The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. [Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] S.C.R. 640.] [43] The following excerpt from the grievance is the essence of this claim of defamation: The administrator of the Veterinarian Teaching Hospital, Dr. Stan Rubin, has not only refused to prevent the harassment but has been an active part of the harassment himself. [44] The words accuse Dr. Rubin of refusing to prevent harassment and also of taking an active part in the harassment of Ms. Bowman. The impugned wording is all the more troubling because the plaintiff was the director of the VTH and accordingly, the person ultimately responsible for insuring harassment free workplace. [45] am satisfied Dr. Rubin sincerely believed that he was diligently following the back to work program for Ms. Bowman. Further, find that there is no evidence that Dr. Rubin actively harassed Ms. Bowman. [46] The end result is that the plaintiff has proven that he was cast in negative light by the unfortunate wording circulated in the grievance. Harassment in the workplace is very sensitive topic. The plaintiff was accused of refusing to prevent harassment. He was accused of being an active participant in harassment. These allegations would have had deleterious effect on Dr. Rubin’s reputation not only as director but also as an individual. [47] therefore find that the impugned wording would tend to lower the plaintiff’s reputation in the eyes of reasonable person. [48] Accordingly I find that the plaintiff has proven that he was indeed defamed. [49] However, having found that Dr. Rubin has been defamed does not of course end the matter. must now examine the defences that have been raised by the defendants. Jurisdictional Argument [50] The defendants raised an issue of jurisdiction. This matter has been dealt with by previous fiat of Madam Justice Dovell. concur with the reasoning in that fiat and find that there is no basis for jurisdictional defence. The Defence of Absolute Privilege [51] Absolute privilege is found in certain situations and constitutes defence to defamation. Absolute privilege has been defined as follows: An absolute privilege extends to all statements made by high executive officers acting in the performance of their official duties relating to matters of state. The privilege extends to communications by or between high state officials and to or from such officers involving subordinate officer, if the communication with the latter was made at the request, or pursuant to the authority, of the senior official. high official includes senior officers in the military. An absolute privilege also extends to any communications made during the course of Parliamentary proceedings, or any proceeding of its constituent committees, by members of that body or persons appearing before it. Communications made outside the proceedings of that body, even though made by members of Parliament, are not protected by an absolute privilege. There is an absolute privilege for all those communications made in the course of, or incidental to, the processing and furtherance of judicial and quasi-judicial proceedings. To qualify as quasi-judicial proceeding the tribunal must exercise functions equivalent to those of court of justice. Among the attributes of such tribunal are the ability to adjudicate upon and determine rights between competing litigants, to require attendance at public hearing at which the witnesses testify under oath, to administer fines, impose punishment, render decisions and enforce orders. Such proceedings are also governed by principles of fairness and justice with fixed procedure comparable to that of judicial body. The immunity extends to all those persons participating in the proceedings including the judge, jury, witnesses, parties and their counsel, and to the contents of all pleadings and documents filed with the court or matters offered in evidence, and to any actions taken preliminary but necessary to the institution of the action or, following the trial, essential to effect an appeal or execute on judgment. [Raymond E. Brown, The Law of Defamation in Canada, 2d ed., Vol. (Toronto: Carswell, 1999) (looseleaf, current to Rel. 2009-3), at pages 12-2 to 12-3] [52] leading authority regarding absolute privilege is the decision of the Judicial Committee of the Privy Council in O’Connor v. Waldron, 1934 CanLII 273 (UK JCPC), [1935] W.W.R. 1, [1935] D.L.R. 260 (P.C.), at para. 6: The question therefore in every case is whether the tribunal in question has similar attributes to Court of Justice or acts in manner similar to that in which such Courts act? [53] The Privy Council in O’Connor, supra, at para. adopted the reasons of the dissenting justice, Hodgins J.A., of the Ontario Court of Appeal (1931 CanLII 21 (ON CA), [1931] O.R. 608, 56 C.C.C. 296, [1931] D.L.R. 147). Hodgins J.A. stated, at para. [19] The best definition that have found is contained in the last edition of Odgers on Libel and Slander, 6th ed. (1929), p. 195, where it is said that: “An absolute privilege also attaches to all proceedings of, and to all evidence given before, any tribunal which by law, though not expressly Court, exercises judicial functions—that is to say has power to determine the legal rights and to effect (sic) the status of the parties who appear before it. All preliminary steps which are in accordance with the recognised and reasonable procedure of such tribunal are also absolutely privileged. It is not necessary that the tribunal should have all the powers of an ordinary Court.” [54] This definition of absolute privilege was recently affirmed by the Honourable Mr. Justice Allbright in Getz v. Opseth, 2005 SKQB 69 (CanLII), 261 Sask. R. 1, at paras. [12] In considering more closely the issue of absolute privilege, no action for defamatory statements can exist where such statements are made in the course of judicial or quasi-judicial proceedings. Rather such statements are protected by the principle of absolute privilege. This privilege also protects statements which are made in context such that they could be said to be intimately connected to judicial proceeding and all steps preparatory to judicial proceedings. In Dingwall v. Lax [(1988), 1988 CanLII 4716 (ON SC), 47 D.L.R. (4th) 604 (Ont. S.C.)], at para. 16, the court comments: “[16] In my opinion, the draft and letter were intimately connected to judicial proceeding the institution of which was being seriously considered by the defendants. In that respect they fall within the purview of the absolute privilege. As Fleming notes, the privilege extends to all preparatory steps taken with view to judicial proceedings.” [13] Earlier, at para. 9, the court references the text, J.G. Fleming, The Law of Torts, 5th ed. (Sydney: The Law Book Company Limited, 1977), in the following fashion: “[9] In support of their argument, defendants rely on Fleming, The Law of Torts, 5th ed. (1977), where he writes (at pp. 551-2): ‘The privilege is not confined to statements made in court, but extends to all preparatory steps taken with view to judicial proceedings ... But the statement or document must be directly concerned with actual or contemplated proceedings ... ‘The privilege attaches to any utterance reasonably related to the subject of the judicial inquiry ...’” (emphasis in original quote) [55] The Trade Union Act, R.S.S. 1978, c. T-17, s. 25 establishes mandatory arbitration for the resolution of labour grievances and empowers the arbitration board/chairperson with court-like functions and powers: 25(1) All differences between the parties to collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including question as to whether matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement. (1.1) Subsections (1.2) to (4) apply to all arbitrations pursuant to this Act or any collective bargaining agreement. (1.2) The finding of an arbitrator or an arbitration board is: (a) final and conclusive; (b) binding on the parties with respect to all matters within the legislative jurisdiction of the Government of Saskatchewan; and (c) enforceable in the same manner as an order of the board made pursuant to this Act. (2) An arbitrator or the chairperson of an arbitration board, as the case may be, may: (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as court of record in civil cases; (b) administer oaths; (c) accept such oral or written evidence as the arbitrator or the arbitration board, as the case may be, in his or its discretion considers proper, whether admissible in court of law or not; (d) enter any premises where work is being done or has been done by the employees or in which the employer carries on business or where anything is taking place or has taken place concerning any of the differences submitted to him or it, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any such thing or any of such differences; (e) authorize any person to do anything that the arbitrator or arbitration board may do under clause (d) and report to the arbitrator or the arbitration board thereon; (f) relieve, on terms that, in the arbitrator’s opinion, are just and reasonable, against breaches of time limits set out in the collective bargaining agreement with respect to grievance procedure or an arbitration procedure; (g) dismiss or reject an application or grievance or refuse to settle difference if, in the opinion of the arbitrator or the arbitration board, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement and the delay has operated to the prejudice or detriment of the other party; and (h) encourage settlement of the dispute and, with the agreement of the parties, may use mediation, conciliation or other procedures to encourage settlement at any time during the arbitration. [56] Our Saskatchewan Court of Appeal in Fletcher Challenge Energy Canada Inc. v. Sulz, 2001 SKCA 11 (CanLII), 203 Sask. R. 115, [2001] W.W.R. 476, at para. 23 (although in that case the Surface Rights Board of Arbitration) held: 23 Although the Board is not bound by the formality of judicial procedure, an arbitration before it is nonetheless the functional equivalent of judicial or quasi-judicial proceeding. Where member of the Board is interested in matter before the Board, the Lieutenant Governor in Council may appoint some disinterested person to act as member of the Board in place of the interested member with respect to that matter only: See s. 11(1). The legislation is consistent with the traditional requirement of “fair hearing” before judicial or quasi-judicial tribunal. [57] Mr. Justice Lane of the Ontario Court of Justice in Venneri v. Bascom (1996), 1996 CanLII 7972 (ON SC), 28 O.R. (3d) 281 (Gen. Div.), [1996] O.J. No. 890 (QL), at paras. to 12 writes: ... The defendant submits that publication of defamatory material to judicial proceeding, including an arbitration of grievance under collective agreement, is an occasion of absolute privilege and no action lies. ... The board of arbitration has similar attributes to court and is therefore within the privilege: it proceeds in manner similar to court; its object is to arrive at judicial determination and it is recognized by law: Lincoln v. Daniels, [1962] Q.B. 237 at p. 253, [1961] All E.R. 740 (C.A.); School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S-2, s. 52. Accordingly, conclude that no action lies against this defendant, the Board, or anyone else involved, for the act of putting the letter into evidence at the arbitration hearing. ... [58] Therefore, find that an arbitration board or hearing under The Trade Union Act is quasi-judicial proceeding. [59] The defendants submit that the evidence establishes that the defendants prepared and distributed the grievance in preparation for and as part of quasi-judicial proceeding: the arbitration hearing of the Bowman grievance. [60] In Getz, the court held that the sending of correspondence was in preparation of proposed legal action and was, therefore, protected by absolute privilege. The defendants submit that the authors of the grievance report should enjoy absolute privilege regarding the impugned wording contained in the grievance report. [61] The defendants further submit that the evidence established that the notice and the attached grievance were published in limited fashion for the purpose of seeking witnesses for the actual arbitration hearing that the union was expecting early in 2007. The defendants argue that the witnesses would be needed to support the grievance. The defendants further argue that the steps taken by the union to post and distribute the notice and grievance were preparatory to the grievance hearing itself. [62] However, am not prepared to allow the defence of absolute privilege to succeed in this case. [63] Firstly, the defence is usually considered in the context of the actual hearing before the quasi-judicial body. [64] acknowledge, upon reading the learned author Brown’s excellent discussion on “Communications Outside of Privilege” (see pages 12-276 to 12-288) that circumstances do arise where statements outside of the actual hearing may be subject to the defence. (See also Brown under the headings “Investigative Reports to Determine Legal Position”, “Information Given to Initiate Legal Proceedings”, and “Information Given to Investigative Bodies” all found under c. 12.4(5), “Matters to Which Privilege Attaches”.) [65] Accordingly, the common law for some time now seems to be favoring extending the cloak of absolute privilege to what has been described as “steps preparatory to judicial proceedings” (see above quote from Getz). [66] However, note Allbright J. refers to such statements made in preparatory fashion as being “intimately connected to judicial context” (see para. [67] As well, in Venneri, Lane J. was writing about the actual filing of letter at the grievance hearing. Venneri stands more for the proposition that grievance arbitration hearings are quasi-judicial bodies than the concept that documents prepared beforehand are always protected. [68] The facts of this case militate against finding that the grievance report as published (i.e. on eight public bulletin boards, mass mailout, and on the internet) is in that context intimately connected to the quasi-judicial body. [69] The defendants by their own explanation rationalize the need for such extensive publication of the grievance report as means to gain further information and potential witnesses for the upcoming arbitration. [70] This in my opinion seems to fall more into the defence of qualified privilege than in what surely is the more restrictive defence of absolute privilege. [71] The grievance report, per se, while it remained within the confines of its original intended purpose (i.e. the originating document in grievance procedure mandated by The Trade Union Act), would be in my view protected by absolute privilege. However, the impugned words in that document ceased to enjoy that protection once the document was published in such broad way and for the purposes stated above. [72] Therefore, as indicated, reject the defence of absolute privilege. Qualified Privilege [73] Brown provides the following summary at pages 13-4 to 13-5: There are certain occasions on which person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory. One such occasion is called conditional or qualified privilege. No action can be maintained against defendant unless it is shown that he or she published the statement with actual or express malice. An occasion is privileged if statement is fairly made by person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it duty to communicate the information to those to whom it was published. privilege is recognized where person seeks to protect or further his or her own legitimate interests, or those of another, or interests which he or she shares with someone else, or the interests of the public generally. It does not extend to comments that go beyond the exigency of the occasion or which are communicated to those who have no interest in receiving that information. [74] In addition, Brown at pages 13-208 to 13-212, discusses unions and qualified privilege as follows: (ii) Unions (A) Communications on Union Affairs. Members of trade union are interested in information about the activities of their officers and committees acting on their behalf. union, its officers and members may circulate information among themselves concerning the qualifications of officers and the participation by them and other members in the affairs of the union. This includes the use of union newspaper to circulate its views and keep its constituency advised of its activities, policies and actions taken with respect to the members. With regard to internal union newspaper communications by its officials to the membership, trial judge has said: “An occasion is privileged where the person who makes communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has corresponding interest or duty to receive it. ... Canadian U.E. News’ was the organ whereby the members and prospective members ... were kept advised as to the activities concerning them within the ranks of that part of the union. find that the members of the union ... had right to be kept aware of the activities of the elected members charged with the administration of at least the rights of the actual members of the union; and that correspondingly there was duty on the part of the elected members to inform (at least) the members of what steps or actions were being taken ... to safeguard, better, or otherwise improve the working conditions of the latter.” union newsletter may be distributed to the membership following strike criticizing the actions of management in rehiring replacement workers and in the process refer to them as “scabs” and criticize their honesty and integrity. union and its officers are privileged to criticize the character of the union lawyer at union meeting, with reference to his billings for legal work performed, or the conduct and activities of union vice-president, or the conduct of union secretary in the performance of his duties. It is privileged to circulate to its membership report and minutes of conference which included resolution passed by the conference relating to allegations made against member, or to report to the members shortages in the accounts of its financial secretary, or to summarize the findings of union executive board concerning charges preferred against the plaintiffs. The president of union may inform the staff relations committee of the union and the governing council the reason why business representative for the union was being terminated. The president of union and member of local may criticize the conduct of the president of the union local and the president may recommend his removal to the governing council. Union councillors may criticize members of the union council in the union newspaper with respect to public opposition on their part to decision by the union to stop work. The members of union are privileged to criticize union officials in the conduct of union affairs. union member may report at general meeting on the actions of fellow trade unionist who has acted against the interests of the union during strike. He may file an affidavit at the request of union agent for hiring hall setting forth certain incidents by another member of the union to be used to prefer charges against that member at meeting of the union. Statements made by union members appearing before union disciplinary committee are protected by qualified immunity. Where appropriate disciplinary proceedings are taken against member or officer, the charges made, the testimony given and the report of the disciplinary action taken, will be protected by qualified privilege. trade union is privileged to inform its membership about the activities of another union whose collective bargaining posture has had an adverse impact on its own collective bargaining with the same company. (B) Communications on Employer-Employee Affairs. union and its officers may provide information to the union constituency regarding matters of employment interest affecting individual employees. It may satisfy members with respect to the reasons why an employee, who was member of the union, was discharged. Thus in Fisher v. Rankin [1972 CanLII 1535 (BC SC), [1972] W.W.R. 705 (B.C.S.C.)] communication to joint standing grievance committee attributing the plaintiff’s discharge to deceitful and dishonest entry into the mill was reported in the union newspaper and posted on the union bulletin board in the mill. These publications were held to be privileged. The same conclusion was reached in Hebert v. Jackson [1950 CanLII 58 (ON CA), [1950] O.R. 799 (C.A.)], although the court was unwilling to extend the privilege to subsequent editorial following the plaintiff’s discharge which described the plaintiff as “an unscrupulous individual”. It was the court’s opinion that once the plaintiff had been removed as member of the union, the opinion of the editor was of no interest to other members of the union. union newspaper is entitled to report on pending grievances, and to advise its membership on the activities of various employees during the period of strike, including the alleged “treachery” of plaintiff who was fired by the union. It may communicate to its members information regarding public labour dispute, express its disatisfaction (sic) with the employer, and urge its members to boycott the employer’s products, and it may address communications critical of competing union to its officers and members and other workers in an industry it is attempting to organize. (C) Scope of Privilege. The publication must be made in good faith, on proper occasion, in proper manner and to appropriate parties. The privilege will be lost if it is abused by excessive publication or if the occasion is used for some improper purpose. Like intra-corporate communications, union’s incidental communication to outsiders will not defeat the privilege if the means chosen to communicate the information are otherwise reasonable and appropriate persons within the union, the fact that the recommendation made and the action taken in response to it goes beyond the authority granted by the constitution of the union does not destroy the privilege. The use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information. [75] Counsel for the defendants points out that s. 25.1 of The Trade Union Act places duty upon the union to fairly represent its members, including representing members on grievances alleging breach of the collective bargaining agreement: 25.1 Every employee has the right to be fairly represented in grievance or rights arbitration proceedings under collective bargaining agreement by the trade union certified to represent his bargaining unit in manner that is not arbitrary, discriminatory or in bad faith. [76] agree with counsel for the defendants that preparing for grievance arbitration can also include locating witnesses to support the grievance. This would be connected with the discharge of the responsibility set out above. Communication with members on grievance matters is also in my view part of discharging the duty of fair representation. This falls in step with the learned author Brown’s comments set out above and therefore the publication of the impugned words would be protected by qualified privilege. [77] Plaintiff’s counsel expressed concern that the union’s communications in part consisted of using the internet. It is now 21st century reality that the internet and web pages will be used by large organizations (such as this union), to communicate with its membership. Brown (above under “Scope of Privilege”), expressed concern about the level of access to such information. In my view CUPE was entitled to communicate to the union membership in the fashion it did, subject to the concerns pertaining to malice. [78] The protection afforded by the defence of qualified privilege is not lightly removed. It can however be lost when there is an evidential finding that the dominant purpose was malice. [O’Halloran v. Pope (Teamsters, Local 987 v. U.F.C.W., Local 401), 2005 ABCA 263 (CanLII), [2006] W.W.R. 16, 258 D.L.R. (4th) 333.] [79] As stated by Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130, [1995] S.C.J. No. 64 (QL), at para. 144: The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149. [80] The Alberta Court of Appeal in O’Halloran, supra, at para. 26 set out the following five-point test for assessing the defence of qualified privilege: 1. The defence of qualified privilege is not absolute. 2. If actual or express malice is the dominant motive for publishing the statement, the privilege is defeated. 3. If the occasion is shown to be privileged, not all statements made on the occasion will be protected by the privilege. 4. statement which is not reasonably appropriate in the context of the circumstances existing on the occasion will, if defamatory, not be protected by the privilege. statement will not be reasonably appropriate if it is the product of indirect motive or ulterior purpose or if it conflicts with the sense of duty or the mutual interest that the occasion created. 5. If the defendant is acting in accordance with sense of duty or in bona fide desire to protect his own legitimate interests, knowledge that publication of the statement will have the effect of injuring the defendant is insufficient, standing alone, to destroy the privilege. At para. 27, the court in O’Halloran concludes: 27 In my opinion, the trial judge failed to apply these principles to the facts of the case. The trial judge equated any evidence of malice as sufficient to discharge the Respondents’ onus. He, with respect, failed to consider fully the context of the occasion in which the statement was made, the dominant motive, the protection of legitimate interests and the sense of duty and mutual interest which the occasion created. [82] The defence of qualified privilege brings with it necessary discussion of the principle of malice and whether the plaintiff has proven that the defendants acted with dominantly malicious purpose with the inclusion of the impugned statements in the grievance report. [83] The learned author Brown at page 16-2 provides summary of malice as follows: Publications that are protected by conditional or qualified immunity, or by the defence of fair comment, may be defeated by evidence of actual or express malice. Malice may be shown if it is proven that the defendant used the occasion upon which the immunity is founded for some wrong or improper purpose or motive, other than the interest which gave rise to the privileged occasion, or that he or she spoke dishonestly or in knowing or reckless disregard of the truth. It may be proved both by inferences to be drawn from the language of the defamatory statement itself, when it contains unnecessary violence or intemperance of expression, or by evidence extrinsic to the publication, such as the nature and character of the relationship between the parties, the mode and extent of publication and the conduct of the defendant in publishing it. [84] The defendants point of view appears to be that Dr. Rubin was not policing the situation in the workplace while the back to work program was in place. The defendants adopted the complaint of Ms. Bowman. The complaint or grievance, being that despite weeks of meetings and discussions and thorough review of policy, Ms. Bowman still maintained she was being harassed. [85] The wording of the grievance is unfortunate. It would have been far better to approach the issue in more general way than to directly identify Dr. Rubin. [86] However, am satisfied that the defendants undertook the preparation and drafting of the grievance report very seriously. The grievance report wording was based on their collective belief that the plaintiff seemed to be unable to control the situation as it unfolded each day at the workplace. [87] The evidence indicates that in the minds of the defendants (rightfully or not but certainly bona fide), the buck stopped at the plaintiff’s desk. This well may have been an overly simplified reaction to the rather complex and protracted workplace problem. have already expressed my opinion that Dr. Rubin was doing all that he believed he could reasonably be expected to do. However, cannot conclude on the evidence before me that any of the defendants in drafting the grievance report or in publishing the grievance report, acted maliciously. [88] The evidence of both Mr. Ross and Mr. Nowaselski and by default, that of the union, was that they basically held the head of the department directly accountable. Other observers may have come to different conclusion. However, cannot say that the defendants acted with reckless regard of the truth or for any improper purpose other than representing union member. [89] note that the plaintiff attempted to show improper motive by trying to depict some sort of conspiracy between faculty member, Ms. Bowman and legal counsel for the union. The plaintiff did not come close to proving this, and it was unfortunate that this theory was launched at trial. Nor am persuaded that the union was using this grievance to push back at the University of Saskatchewan itself in broader sense. These two theories were simply not proven. [90] Therefore, the defence of qualified privilege succeeds. 4. THE DEFENCES OF RESPONSIBLE COMMUNICATION AND FAIR COMMENT [91] In my view, the case of Grant v. Torstar Corp. is not applicable to this situation. This is not case of broad-based media seeking the protection of the defence granted under that decision. 5. DAMAGES (Provisional) [92] Although have found above that the defence of qualified privilege has succeeded and therefore the plaintiff’s action has failed, will provide my opinion on damages on provisional basis. [93] In regard to general damages the trial judge in Dinyer-Fraser v. Laurentian Bank, 2005 BCSC 225 (CanLII), [2005] B.C.J. No. 309 (QL), states as follows: 240 In Hill, the Supreme Court of Canada affirmed that confluence of circumstantial factors are relevant to the assessment of general damages. They include: (1) the plaintiff’s position and standing; (2) the nature of the libel; (3) the mode and extent of the publication; (4) the possible effects of the statement upon the plaintiff’s life; (5) the absence or refusal of retraction or apology; and (6) the motivation and conduct of the defendant throughout the action .... [94] have previously made reference to the plaintiff’s background and education. [95] The plaintiff was quite upset with the posting of the grievance report on the bulletin boards. To me that was the primary source of his unhappiness. The plaintiff of course was also upset that the grievance report went out with the newsletter and ended up on the website. [96] The plaintiff complains that in essence his stature as the director of the VTH was affected by the impugned words in the grievance report. According to the plaintiff, this caused him ultimately to resign as the director of the VTH and take job as full-tenured professor at the Veterinary College in Saskatoon. [97] note that it appears Dr. Rubin had the full support of the Dean of the Veterinary College and the HR department of the University. In fact the Dean took an active role in chastising the union for publishing the grievance report. [98] It was the plaintiff’s sole decision to resign as the director of the VTH and there was no evidence that there was any other pressure from anyone for him to do this. [99] Dr. Rubin then re-entered the faculty as full-tenured professor. Apparently he was doing what he loved to do. However, the plaintiff continued to feel out of place. Dr. Rubin was not able to fully particularize what was causing this unhappiness. [100] Dr. Rubin admitted that being full-tenured professor and not having to worry about the administration of the VTH would be less stressful. [101] In any event, it was around this approximate time that he decided to apply for the director of veterinarian hospital in the United States and also showed interest in “headhunter” who sought out his abilities and talents for employment in the United States. [102] Dr. Rubin seems to have had some degree of selection in terms of where the headhunter was going to place him. The plaintiff indicated preference to Tucson. Again, Dr. Rubin appears to be doing what he has trained for and what he likes to do, namely highly-specialized veterinarian. [103] Dr. Rubin complains that his spouse has not found employment in the United States. The plaintiff further states that it has cost him some money to obtain the necessary immigration qualifications to work in the United States. heard no evidence as to what the cost of living in Tucson might be as compared to Saskatoon, and what the tax rates in the State of Arizona might be as compared to those of Saskatchewan, etc. [104] have no difficulty in appreciating Dr. Rubin’s concern about the wording of the grievance report and the fact that it was circulated. However, as noted, he continued to receive the full support of his Dean. In addition, stepping down as director and moving into less stressful position as full-tenured professor does not seem to be particular hardship. In addition, the plaintiff seems to have accommodated his desire to move from Saskatoon with employment in Tucson. [105] Regarding aggravated or punitive damages, Brown states at pages 25-66 to 25-70: (ii) State of Mind “Malice is an important element to be considered in fixing or assessing the damages”. Therefore, the court may take into consideration the presence of actual malice, or “wanton and malicious conduct” on the part of the defendant. It may be shown to enhance the award. “[T]he amount of damages should be governed or graduated by the degree of malice by which defendant was actuated. It is assumed that if the plaintiff is aware of the malicious purpose of the defamer, it may affect the amount and intensity of his or her mental suffering and injury to feelings. For that reason, the personal motives of defendant may be examined. Any evidence of express malice may be weighed against the defendant. jury is “entitled to consider the whole spirit and intention with which the articles were written and published. This is true even though the malice consists of other defamatory remarks. Evidence of the spirit and intention with which person defames another “cannot be excluded simply because it may disclose another and different cause of action. Malice may be shown if the publication of the defamatory remarks is intentional, or they are “reckless and deliberately damaging”. Therefore, the defendant’s intention to defame, or fabrication of the defamatory remarks, or even the failure of the defendant to inquire where he or she possesses the means by which its truth or falsity could be ascertained, particularly where the information is readily available, there is ample time to check it, and the defamatory material is particularly damaging to the plaintiff’s reputation, are aggravating circumstances. The defendant’s cavalier attitude, recklessness and lack of consideration for others, or bad faith and gross negligence, or general bad motive or evil purpose, or lack of justification in making the remarks, may also be taken into consideration in increasing damages. Apart from any question of privilege bona fides is always material upon the question of damages. plaintiff may offer evidence to prove lack of good faith absence of honest belief on the part of defendant in order to aggravate his damages; defendant may, in like manner, give evidence to shew that he acted in good faith to mitigate the damages. The fact that he or she made the remark in the face of denial by the plaintiff may be considered as an aggravating factor. Also considered an aggravating circumstance is the contemptuous remark by the defendant that “to be dragged into court like this is more than making mountain out of molehill.” [106] In my opinion, this is not situation for aggravated or punitive damages based on the evidence. If was to award damages, such damages would be general damages only. Nor would have ordered special damages based on the evidence. Dr. Rubin’s claim for special damages appears to have boiled down to his legal fees for immigrating into the United States. I am not satisfied that the defendants should bear the responsibility of these expenses for the decision by Dr. Rubin to leave the University of Saskatchewan and take what he describes as a lateral employment opportunity in Tucson. Further, Dr. Rubin did not appear to be interested in finding employment in Canada, and deliberately chose to move into another country which by that very fact, would necessitate immigration expenses. [107] Counsel for the defendants urge only nominal damages. Counsel on behalf of the plaintiff has requested very significant damages. [108] The awarding of damages and particularly in defamation case is particularly subjective. In this case we have plaintiff who was defamed, but within the context of his administrative functions vis-à-vis an unfortunate and protracted labour relations situation. [109] am not satisfied that the level of insult and level of loss of reputation in this particular case are consistent with the sizable damage awards urged by plaintiff’s counsel. There was no evidence that anyone forced Dr. Rubin to take the steps he did (i.e. self-demotion and subsequently obtaining employment in foreign country). [110] Therefore, I have come to the conclusion that a fair amount of general compensation for Dr. Rubin would have been $25,000. COSTS [111] I have found that Dr. Rubin indeed was defamed. However, the defendants have successfully raised the defence of qualified privilege. Accordingly, there were mixed results in this litigation. Therefore, I have decided to exercise my discretion and not to award costs to any party (excepting of course any award of costs already ordered).","The plaintiff veterinarian states that his personal and professional reputation has been damaged by defamatory statements made by the defendants. He worked at the veterinary college at the University of Saskatchewan, and an employee was involved in a grievance process. The plaintiff was involved by virtue of his supervisory position at the college. He asserts these statements were posted on bulletin boards in the plaintiff's workplace and postings on the union website. The statements were produced in connection with the labour grievance and alleged that the plaintiff failed to prevent harassment in the workplace in supervisory capacity or engaged in such harassment himself. The plaintiff seeks damages and costs. He states that he was pushed to leave his employment and is now engaged in private practice which pays less and is not as stable. He has incurred costs to move to the United States to obtain employment.HELD: The elements of defamation are: 1) the words would tend to lower the plaintiff's reputation in the eyes of a reasonable person, 2) the words in fact referred to the plaintiff, and 3) the words were published (Grant v. Torstar Corp.). In these circumstances, the plaintiff was defamed. The defendants raise the defence of absolute privilege. This defence provides that 'no action for defamatory statements can exist where such statements are made in the course of judicial or quasi-judicial proceedings' (Getz v. Opseth). The Trade Union Act establishes mandatory arbitration for the resolution of labour grievances and empowers the arbitration board or chairperson with court-like functions and powers. The Saskatchewan Court of Appeal has found that an arbitration board fulfills quasi-judicial function (Fletcher Challenge Energy Canada Inc. v. Sulz). The Court does not allow the defence of absolute privilege as it is usually considered in the context of the actual hearing before the body. In this case, the statements were produced as a notice in order to bring further witnesses forward from the college. The Court instead determines the statements fall within the defence of qualified privilege. This applies in a situation where the statements are made in order to discharge the board member's duty. The Court finds the statements were made in order to gather further evidence and witnesses, which is part of the board's duties. The protection of qualified privilege may be removed on where there is evidence that the dominant purpose of the statements was malice. There is no such evidence in this case, therefore the defence of qualified privilege succeeds. Nonetheless the Court provides an opinion on damages on a provisional basis. There was no evidence that the plaintiff was forced to leave his position and move to the United States following the incident. The Court therefore concludes fair compensation would be $25,000. Since the results are mixed, there is no award of costs.",b_2010skqb249.txt
161,"J. Q.B. A.D. 1993 No. 3500 J.C. S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROBERT SMITH and HER MAJESTY THE QUEEN B. Morgan for the applicant F.W. Dehm for the respondent FIAT WALKER J. January 17, 1994 THE APPLICATION This is an application by a person charged with two countsof sexual assault involving two complainants 15 and 13 years of agefor a remedy under s. 24(1) of the Canadian Charter of Rights andFreedoms compelling the respondent to provide full disclosure to him. The application is based on ss. 24(1), 7, 11(a) and 11(d) of the Charter and s. 650(3) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant argues that his constitutional rights and his right tomake full answer and defence have been infringed by the refusal ofthe respondent to provide full and complete disclosure without trustconditions and undertakings being imposed thereon. It is importantto note that the applicant contends not for less onerous trustconditions or undertakings, but that disclosure be without trustcondition or undertaking of any sort. The Crown maintains that the trust condition or undertaking required is appropriate in the circumstances of this case. The Crown says the seeking of the trust condition in question is an effort to ensure that sensitive material in the victims' statements and videotapes be not wrongfully used and to ensure the right to privacy of the two complainants. The sole issue for determination by this Court is whetheror not the imposition of trust conditions on the disclosure of thevictims\' statements prevent the accused from exercising his right tomake full answer and defence as guaranteed by ss. 7 and 11 of theCharter. THE MATERIAL The material filed on the application is as follows: (1)The affidavit of the applicant; (2)The affidavit of the Regional Crown Prosecutor of the Saskatoon Prosecution Unit of the Saskatchewan Department of Justice; (3)The affidavit of Crown Prosecutor of the same Unit. The affidavit of the applicant, among other things, states that his counsel is unable to give him copies of certain disclosure material to enable him to review and study it on his own as he wishes and feels it necessary to do. The Prosecutors' affidavits establish that, in the context of sexual assault cases involving children, there is policy reflected in this paragraph of the affidavit of the Regional Crown Prosecutor: That in July of 1993 Murray Brown of the Public Prosecutions Branch in Regina, Saskatchewan indicated that instances had occurred where the videotaped statements of child sexual assault complainants and the written statement of teenage sexual assault victim had come into the possession of persons other than the accused individual or his defence counsel. As result of that situation, the Public Prosecutions Branch adopted policy that disclosure be provided in such way that the material be controlled by the defence lawyer to ensure that copies did not become available for distribution to persons other than those involved in the case. (emphasis added) The affidavits of the prosecutors went on to deal with specific cases in which statements (written and videotaped) had come into possession of persons other than the accused and his counsel. Statements and documents had gotten, for example, into the hands of Member of Parliament, the prosecution office, law firms unconnected with the case, schools and the Saskatoon Police Commission. danger to life had resulted from disclosure material having gotten into the public area. Disclosure material had turned up at schools, arcades and other public places. In short, the prosecutors' affidavits, somewhat and in broad, reflect the situation commented on in the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (The Martin Committee Report), later referred to in this fiat. At p. 180 that Report states: The Committee has heard of appalling instances where disclosure briefs containing highly sensitive material have been made publicly available: for example, the statement of child complainant in an allegation of sexual assault subsequently circulated at the complainant's school. ... Occurrences of this type are, in the Committee's view, flagrant abuses of the right to disclosure. The devastating effect which such conduct can have on the privacy or safety of the victims or witnesses concerned is obvious. The applicant takes no exception to the affidavits filed by the Crown save that they do not establish the degree or extent to which the problem dealt with exists in this jurisdiction. GENERAL R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] S.C.R. 326 (S.C.C.) establishes that the right to disclosure is constitutional right not subject to qualification. Disclosure is right vested in an accused not defence counsel. Disclosure is constitutional right because of its crucial role in making full answer and defence. Aside from the Charter, fair trial requires that accused persons know the case they have to meet. Information regarding the victims' allegations is essential to this and must be disclosed. However, this does not absolve the Crown of responsibility to do all it can properly do to ensure that the privacy interests of complainants are protected. The Crown has an obligation to protect the privacy of alleged victims of sexual assault cases. Victims' statements and videotapes made in the course of criminal investigation often contain sensitive personal information that the alleged victims would not, in normal circumstances, divulge. The making of videotape is an investigative tool to assist in the prosecution and it would not be made but for that prosecution. Inaddition to the privacy interests of the complainant, the publicinterest is also served by providing complainants with assurancesthat the statements and videotapes will not be reproduced anddistributed. This assurance of privacy encourages victims to come forward with their complaints. There can be, in proper circumstances, trust conditions imposed on defence counsel. Defence counsel are officers of the court. Defence counsel have, of course, no obligation to assist the prosecutor. As officers of the court, however, they hold positions of high respect and importance and, correspondingly, high responsibility and duty. These are opposite sides of the same coin. THE NATURE, EXTENT AND EFFECT OF THE CONDITION The nature, extent and effect of the condition sought to be imposed by the Crown in this case is important. The Crown proposed to make disclosure to counsel for the defence subject to the ""trust condition"" that ""victim statements, written, videotaped or included in police report, (would) not be copied nor be allowed to leave (defence counsel's) office in the possession of anyone other than (defence counsel) or member of (his) firm, except with the written permission of the prosecutor."" This is not an extensive or comprehensive condition. It concerns only victim statements. It concerns only copying and custody by counsel of them. It does not, of course, restrict communication to the accused applicant. It does not even, in any event in so many words or directly, restrict communication to third parties, although, as will be seen, it probably has that result in indirect fashion. It does not impose restrictions on other than ""victim statements"". This nature, extent and effect of the condition will be important in deciding this application. It may be asked how effective the condition proposed by the Crown is to deal with the Crown's concern regarding the protection of privacy of the child complainant, given the limited nature, extent and effect set out above. In Thomsen v. R., infra, the order of Sirois, J., provided that ""Counsel for the applicant [should] not be allowed to release any videotape to anyone except in accordance with the terms of [the] order."" There is no such restriction here. Any consideration of this problem brings to the fore certain duties of defence counsel as an officer of the court, though not formally imposed by the court. One of those duties, in my view, is not to give disclosure materials to the public. To do so would fall short of acting responsibly as an officer of the court. Defence counsel may, ""normally, disseminate materials only to those third parties whose examination or possession of the material is in good faith necessary to prepare and conduct the defence."" These duties of defence counsel, when considered with the condition here being considered, meet Crown's reasonable and proper objective of the protection of the privacy of child complainants. R. V. STINCHCOMBE The accused contends that his rights pursuant to ss. 7, 11(a) and 11(d) of the Charter are violated. At issue is whether the trust conditions sought to be imposed are inconsistent with the right to disclosure which flows from the constitutional guarantee of fair trial. The Supreme Court of Canada, in R. v. Stinchcombe, held that disclosure in criminal proceedings is now constitutionally required by s. of the Charter, which guarantees that where the life, liberty or security of the person is at stake, he or she will not be deprived thereof except in accordance with ""the principles of fundamental justice"". Does Stinchcombe go further as contended by the applicant? While disclosure is now constitutional right, it is not disclosure as such that is guaranteed, but disclosure as part of or the means of securing the fairness of the trial and the right of the accused to make full answer and defence. The obligation to disclose is not absolute. My concern in this application is, therefore, whether the trust condition affects the right of the applicant to make full answer and defence. Some means of disclosure may be preferred by the accused over others, but, if there is no adverse effect on the fairness of the trial, the manner of disclosure is not Charter violation. Crown counsel has certain discretion, reviewable at the request of defence counsel. Instances are set out in Stinchcombe. Stinchcombe dealt in general principles and stated that it was not possible or appropriate to lay down precise rules. It is to be noted that there is no refusal by the Crown to disclose in this case. The Crown is willing to disclose the material in the packet. It says it has no other material to disclose than was in the packet forwarded to counsel for the applicant. Counsel for the applicant has refused to accept disclosure on the terms or trust conditions put forward by the Crown. There is no doubt of the paramountcy of the right to fair trial, but there are competing values of stake in disclosure. These values include public safety,the privacy interests of victims or witnesses and the need tomaintain the integrity of the administration of criminal justice. These important values must be accommodated to the greatest extent possible. THE MARTIN COMMITTEE REPORT significant examination of the competing interests at stake in disclosure is contained in the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions(The Martin Committee Report), which was submitted to the Attorney General of Ontario this year. The Committee was struck in June 1991, to study the early stages of the criminal process, namely, charge screening, disclosure and resolution or plea discussions. chapter of the Report dealt extensively with the subject of disclosure. want to acknowledge full use of that Report and some of its terminology and say that the reasoning in it has aided me and given me comfort in the result at which have arrived. Two of the Committee's recommendations had to do with the improper dissemination of disclosure materials: 34. The Committee is of the opinion that it is inappropriate for any counsel to give disclosure materials to the public. Counsel would not be acting responsibly as an officer of the court if he or she did so. 35. The Committee is of the opinion that defence counsel should maintain custody or control over disclosure materials, so that copies of such materials are not improperly disseminated. Special arrangements may be made between defence and Crown counsel, with respect to maintaining control over disclosure materials where an accused is in custody, and the volume of material disclosed makes it impractical for defence counsel to be present while the material is reviewed. The Committee suggests that the two recommendations ""responsibly reconcile the need to provide full disclosure with the need to prevent misuse of disclosure material"". It also referred to the obligation on defence counsel recognized by the Supreme Court in Stinchcombe, to act responsibly with respect to disclosure. agree with the two recommendations and that they do effect the important reconciliation. The Committee gives special place to investigators or experts retained by the defence. Again, agree. The Committee specifically contemplated the giving of an undertaking by defence counsel. Again, agree. The trust conditions attached to disclosure by the Crown in this case are reasonable and strike balance between the right to disclosure and the rights of alleged victims, it being recognized that the right to fair trial is paramount. THE NEWFOUNDLAND CASES The applicant refers to several cases from the courts of Newfoundland as follows: R. v. Vokey (1992), 1992 CanLII 7089 (NL CA), 10 C.R.R. (2d) 360 (Nfld. S.C., Appeal Division). R. v. Fleming (1992), 1992 CanLII 7251 (NL SC), C.R.R. (2d) 130 (Nfld. S.C., Trial Division). R. v. Petten (1993), 1993 CanLII 7763 (NL CA), 21 C.R. (4th) 81 (Nfld. S.C., Appeal Division). R. v. Mercer (1992), 1992 CanLII 7230 (NL SC), 105 Nfld. and P.E.I.R. (Nfld. S.C., Trial Division). They, with respect, provide no precise principle that applies in this case. In Vokey, important information was not disclosed in timely fashion, although it was provided prior to trial. The Court of Appeal ordered the trial to go ahead, but emphasized the importance of disclosure. Goodridge C.J.N., at p. 370, made the following obiter comments regarding the manner of disclosure: The Supreme Court in Stinchcombe did not deal with the question of how disclosure is to be made. The manner of disclosure must, for now, be regarded as one of reviewable discretion on the part of Crown counsel. It ought generally to be accomplished by the delivery of photostatic copies of the materials required to be disclosed. There will be circumstances where the provision of photostatic copies is not desirable. In such cases, the material should be displayed to defence counsel in place and under circumstances where meaningful examination of the displayed material may be made. Detailed notes should be permitted. verbatim reproduction by hand of documents would generally not be permitted where Crown counsel, in the exercise of his or her reviewable discretion, considers that photostatic copies of those documents should not be provided. In most cases, no distinction is to be made between photostatic copy and handwritten verbatim reproduction. The Court of Appeal contemplated some flexibility with respect to the manner in which disclosure is provided. In Fleming, the court considered the policy of the Crown that required defence counsel to review all relevant material at police headquarters. Thousands of documents were involved. The Crown permitted the review of the relevant materials but refused to provide copies. On the s. issue, the Court concluded: The material collected by the Crown in this application is massive. There are thousands of documents, reports, statements and other material which must be made available to the accused. The review of the relevant material, in this case, would be impossible because the accused is incarcerated in the special handling unit of Her Majesty's penitentiary. find that the Crown's refusal to provide copies of all relevant information with respect to this application significantly impeded the accused's ability to make ""full answer and defence"" and thereby violated the accused's rights under s. of the Charter. In Petten, the court considered another policy of the Crown on disclosure. The Crown required, in all cases, an undertaking acknowledging receipt and limiting the distribution of disclosure materials. The accused had been charged with mischief. The court emphasized the importance of disclosure to the fairness of the trial. However, the court specifically held that requiring the undertaking as condition of disclosure was not denial of disclosure. The court, at p. 84, referred to similar case in Newfoundland, R. v. Luff (1992), 1992 CanLII 7113 (NL CA), 11 C.R.R. (2d) 356 (Nfld. C.A.) so: In Luff, the Trial Judge found that the Crown's failure to provide copies of all documents in its file to the defence ran contrary to the principles enunciated by Stinchcombe. This Court found that there had been no failure to disclose because the prosecution's file had been made available for viewing by the defence and, in the circumstances, this was sufficient. Essentially the same thing occurred in the present case. The file was made available for viewing by the defence or, alternatively, copies were offered subject to the undertaking being given by defence counsel. The question of the undertaking will be addressed below, but in any event it is clear that there was no failure to disclose by the Crown. It could not be maintained that the Respondent would not be able to make full answer and defence to the charge, so the stay of proceedings entered by the Trial Judge was not warranted. (Emphasis added). Thus, the Court of Appeal found that placing conditions on disclosure did not constitute failure to disclose and an infringement of s. of the Charter. It is clear, however, that the Court of Appeal disapproved of the Crown's policy of imposing conditions on all disclosure in every case stating at pp. 84-85: Crown counsel has informed the Court that such is no longer required and this is obviously right decision. As already stated, hopefully clearly, the nature and extent of the release of information must be governed by the particular case. This will include any conditions which may be attached to such release. It is obviously as inappropriate for the Crown to impose the same stringent conditions on every release of information in every case as it is for the defence to expect release of all information in every case, without limitation or conditions. Each matter must be dealt with on its own merits. In Petten, the Court of Appeal made specific mention of Mercer. However, the Court of Appeal in Petten did not find Mercer to be inconsistent with their decisions. In considering Mercer, this is significant. Mercer involved charge of possession of weapon dangerous to the public peace. Again, as in Petten, disclosure was provided by the Crown only with the execution by defence counsel of an undertaking and acknowledgement. It was apparently conceded by Crown witness that the undertaking ""restricted defence counsel in the preparation of his defence"". It is not clear how it did so. The court concluded that the disclosure was improper and contrary to the Charter. Mercer and Petten can be reconciled only if it is assumed that the objection in both cases was to the blanket nature of the policy of requiring an undertaking. For example, Mercer contemplated that there might be cases in which the withholding of photocopies was required at p. so: In my opinion, if the Crown has reason to believe that the provision of photocopies in certain circumstances could unduly affect or impair the administration of justice, then photocopies should be withheld. An accused or his counsel may then apply to Court for review of that decision. Further, there is some indication that the findings in Mercer were limited to the facts of that case at p. 10: On the facts before me am satisfied that photocopies can be safely provided to the defence and to require defence counsel to sign the undertaking requested may impair the ability of the defence to make full answer and defence. On the facts of this application it appears to me that in cases like the one in question the policy of requiring an undertaking and acknowledgement in its present form is unnecessary and should be discontinued. Mercer does not stand for the proposition that disclosure with conditions is per se unconstitutional. The case was concerned, rather, with the fact that the policy of the Crown was applied in every case. The cases together indicate that the Newfoundland courts looked with disfavour upon the blanket policy of the Crown on the providing of undertakings in all cases, regardless of whether there was some sensitive material to be disclosed. If the Mercer and Petten cases are looked upon as not reconcilable Petten, coming from the Court of Appeal, is preferred by me. In any event, now have the guidance and aid of Thomsen v. R., supra, which is, although my information on it is vague, proper to be followed by me. THOMSEN V. R. The applicant contends for disclosure without conditions or undertakings of any sort. Little has been said judicially on this matter in this jurisdiction. However, in Thomsen v. R., on April 12, 1993, Mr. Justice Sirois, on the application of the accused and after hearing the prosecution and the Minister of Social Services for the Province of Saskatchewan, made this order: 1.) With regard to any videotape to be provided by the Respondent through disclosure that: a.) The Applicant shall enter into an undertaking containing the following terms before any videotape is released to him: i.) That he will not make copy of any videotape provided by the Crown of interviews conducted with the complainant in the investigation of the pending charge against him under S. 271 of the Criminal Code; ii.) That he will not watch any videotape provided to him with anyone other than his counsel or any expert witness retained on his behalf with regard to the said charge; iii.) That the videotapes shall be viewed by the applicant at the office of his counsel or at his residence; iv.) That he will return any videotape provided to him after watching it to his counsel. b.) Any videotape provided to counsel for the Applicant shall be returned to the Melfort Detachment of the Royal Canadian Mounted Police at the conclusion of the appeal period after the trial of the said charge or upon decision being given in the Court of Appeal if there is an appeal from the decision at trial on the said charge. c.) The Applicant shall be allowed to release any videotape to expert witnesses retained in the defence of the said charge. d.) Counsel for the Applicant shall not be allowed to release any videotape to anyone except in accordance with the terms of this Order. 2.) The Minister of Social Services for the Province of Saskatchewan is ordered to provide to the Respondent its file or files, including but not limited to the notes of Ms. Linda Bradley, with regard to its investigation of the sexual abuse allegations against the Applicant with regard to his daughters. That order runs counter to the applicant's position that the disclosure in this case ought to be without condition or undertaking of any sort. It is the ""applicant"" who must enter into the ""undertaking"", although counsel for the applicant is also restricted by the order. The ""undertaking"" provides that the applicant will not make copy of any videotape of interviews with the complainant or watch any videotape except with his counsel or an expert witness retained on his behalf. Videotapes are to be viewed at the office of counsel or the accused's residence. Release to expert witnesses is allowed. Finally, counsel is ordered not to release any videotape except in accordance with the order. This order clearly approves of conditions and undertakings in sexual cases. This order is, in nature, extent and effect, not unlike the trust conditions being considered in this application. Jurisprudence in this jurisdiction, limited as it is may be and with little information about that application proper, is clearly against the applicant in his quest for disclosure absolutely without condition or undertaking. This is so whether the problem be looked at matter of law or on the merits of this case on its particular facts or merits. The applicant says that Thompsen was wrongly decided. do not agree. THE APPLICANT'S APPROACH Counsel for the accused referred often to the situation of hypothetical accused not represented by counsel. The case of an unrepresented accused is not before this Court. The Crown is doing what it can to prevent the improper use of sensitive material necessary to the prosecution of serious sexual offence. How the Crown would pursue that purpose in the case of an unrepresented counsel is not relevant here. Each matter must be dealt with on its own merits. The applicant says he needs and has the right to review and study the complainant statements, including written and videotaped statements, on his own and away from the office of counsel. He says he needs and has the right to utilize those statements as such, rather than in substance after having read and seen them as often as might be necessary, in quest for witnesses and ideas for defence, presumably showing them to others, when he, in his own judgment, thinks it useful and proper to do so. He says, as is correct, that there is no evidence indicating that he is the sort of person who might be expected to abuse those rights he says he needs and claims. He, as is correct, says that the Crown has established certain problem with wrongful use of complainant statements generally but not the degree in which it exists in this jurisdiction. In my view, the material filed by the Crown is sufficient to establish considerable problem with wrongful use of disclosed material in this jurisdiction. In any event, the privacy and safety aspects of wrongful use are so important that the degree of abuse shown by the Crown merits great care and preventive measures in this case. Moreover, it is not necessary, as suggested by the applicant, for the Crown to attack the applicant and attempt to mark him as of questionable integrity to allow this care and prevention place in the process of disclosure, if, indeed, such an attack or marking is useful or proper in any event. In result, and in all the circumstance of this application, the claim of the applicant to the right of review and study of the complainant statements, written and videotaped, on his own and away from the office of counsel, and his right to utilize them as claimed, are not essential to provide disclosure and his right to fair trial and to make full answer and defence. The applicant, in all reason, is able to review the statements, written and videotaped, as often as considered necessary by the applicant and his counsel, to know the content, substance and thrust of them. Notes can be taken. Copies can not be made. There is something particularly damaging about having copies of written statements and videotapes somewhat in circulation and out of the control of counsel and available to the reading or view of members of the public, depending on the good judgment of the accused, being one with considerable interest in matters. This decision is part of the ""balancing"" am required to do between the admittedly paramount right to disclosure and fair trial and right to make full answer and defence, on the one hand, and the right to privacy of the complainants, on the other. have done this balancing solely in the circumstances and on the facts of this application. POLICY The requirement of trust conditions on disclosure by the Crown in this case is not the result of blanket policy applied to all cases. It is the result of policy applied to cases of sexual assault. am not hearing this application to either establish policy or question any policy of the Department of Justice in the area under consideration, whether the area be looked at generally or in the context of sexual cases involving children. am hearing this application, on all its particular facts and circumstances, to decide whether the applicant will have unconditional disclosure or not. Each case is to be decided on its own merits and facts. To the extent that Mercer and other Newfoundland cases dealt with the propriety or continuation of policy, they are, with respect, not useful to me for present purposes. MIDDLE GROUND There was filed by the applicant, at the opening of the hearing of this application, draft order modelled somewhat on the order of Mr. Justice Sirois of this court in Thomsen v. R., supra. It represented the applicant's ""fall back"" or second position. It was the first intimation had of this new position. The applicant did not abandon his first and basic position that he was entitled to disclosure without trust condition or undertaking of any sort, but realized and accepted that the order of Mr. Justice Sirois in Thomsen v. R., supra, presented considerable problem in arguing and contending for that first and basic position that he was entitled to disclosure without trust condition or undertaking of any sort. Counsel for the applicant went so far as to concede that, in light of Thomsen v. R., supra, his ""fall back"" or second position was the one he now ""liked"". Counsel for the applicant did make it clear that the draft order was hastily drafted and was not such as might be utilized as such and without considerable revision and further consideration. Counsel for the Crown, maintained his position that the Crown condition was proper, but conceded that might conceivably consider ""middle ground"" solution, based somewhat on the draft order, and pointed out, in brief fashion, some of its shortcomings in the Crown's view. He agreed that it could not, in any circumstance, be utilized without considerable revision and further consideration. He wished, in any event and prior to any possible use, in some fashion, amendment to ensure that contempt proceedings might follow in the event of breach. do not wish it thought that have put aside, in offhand fashion, the positions of counsel that it is open to me to reject both of their basic submissions and to go to ""middle ground"" and make an order of my own for the conditions or undertaking of disclosure. That is not so. note that an adjournment for the purpose of counsel themselves considering the revision of that draft order, so that it might meet the needs of both the Crown and the defence, met with no success. Counsel were not able to make that revision. Nor am able to make that revision, particularly without any real submissions or suggestions from counsel. In any event, the revision of that draft order is neither an aspect of my duty on this application nor useful exercise. had no evidence and no real submission on that matter. had just request to ""do something"" if rejected the two positions formally put forward. My approach will be to deal with matters as they were formally presented. The applicant said he was entitled to disclosure without trust conditions or undertakings of any sort. The Crown said that application ought to be dismissed. will do one or other of those things, with in consideration along the way of the trust condition sought to be imposed by the Crown. will not embark upon setting up of trust condition or undertaking in court order that counsel were neither able to agree upon nor prepared to address in any detailed way. will, out of respect for able and detailed arguments by counsel, avoid the temptation of saying, in summary fashion and without more, that the applicant is simply not entitled, in the circumstances of this case, to disclosure without trust condition or undertaking as requested. CONCLUSION I find that evidence does not show how disclosure, on thetrust condition in question, would prevent the applicant from makingfull answer and defence to the charges he faces. find that the interest of the public and the complainants in having the statements and videotapes narrowly disseminated is clearly shown. Providing thestatements and videotapes to counsel for the accused on trustcondition that counsel retain them in his possession, serves the dualpurpose of providing detailed disclosure while ensuring that thematerials are not disseminated more widely than is necessary for thefairness of the trial. The right to disclosure and the right to make full answer and defence is not the right to unconditional disclosure. The evidence does not establish that the accused's right to make full answer and defence is impeded by the requirement that his counsel execute an undertaking with respect to the disclosure provided. The conditions apply only to victim's statements, videotapes and references to victim's statements obviously matters of some sensitivity. The Crown is not withholding disclosure. Theinformation contained in those statements and videotapes is availableto the accused and retained experts for use in preparing his defence. The accused will know the substance of the complaints and,therefore, the case he has to meet. In the circumstances of thiscase, there is no danger to the fairness of the trial by virtue ofthe trust condition attached to disclosure. In result, for the foregoing reasons and on the foregoingreasoning, the application is dismissed.","FIAT The accused, who was charged with two counts of sexual assault involving complainants 15 and 13 years of age, applied for a remedy under ss.24(1) of the Charter of Rights compelling the respondent to provide full disclosure to him, without trust conditions or undertakings of any sort. HELD: The imposition of trust conditions on the disclosure of victim's statements and videotaped statements in cases of sexual assault does not prevent the accused from exercising his right to make full answer and defence as guaranteed by ss. 7 and 11 of the Charter. The obligation to disclose is not absolute. The Corwn's obligation to protect the privacy of the complainants is fulfuilled by providing the statements and videotapes to counsel for the accused on trust condition that counsel retain them in his possession. The information contained therein is available to the accused and retained experts for use in preparing his defence. Since the accused knows the sustance of the complaints and, therefore, the case he has to meet, there is no danger to the fairness of the trial by virtue of the trust condition attached to disclosure. The public interest is served and the integrity of the criminal justice system is maintained when complainants are assured that staements and videotapes will not be reproduced. Application dismissed.",5_1994canlii5076.txt
162,".../4 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Carvery, 2011 NSSC 500 Date: 20110915 Docket: CRH 343275 Registry: Halifax Between: Her Majesty the Queen v. Tirrell Shane Carvery LIBRARY HEADING Judge: The Honourable Justice M. Heather Robertson Heard: June 15 and 20, September 12 14 and 15 2011, in Halifax, Nova Scotia Written Release of Decision: January 18, 2012 (Verdict September 15, 2011) Subject: Trafficking crack cocaine s. (1) and s. 5(2) CDSA. Summary: Accused sold one 20 tab stashed balance 22 tabs near transaction site. Police officers observed transaction. Issue: Observation post privilege constructive possession drugs stashed in rock wall near transaction area. Result: Accused found guilty on both counts. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: R. v. Carvery, 2011 NSSC 500 Date: 20110915 Docket: CRH 343275 Registry: Halifax Between: Her Majesty the Queen v. Tirrell Shane Carvery Judge: The Honourable Justice M. Heather Robertson Heard: June 15 and 20, September 12, 14 and 15, 2011, in Halifax, Nova Scotia Written Release of Decision: January 18, 2012 (Verdict September 15, 2011) Counsel: Shaun O’Leary, for the Crown Lee Seshagiri, for the accused Robertson J.: (Orally) [1] Mr. Tirrell Shane Carvery is charged with two counts under the Controlled Drugs and Substances Act, s. 5(1) and s. 5(2) that on April 7th, 2010, he did traffic in cocaine and on that date had possession of cocaine for the purpose of trafficking as defined by s. 4(3)(a)(ii) of the Canadian Criminal Code. [2] This trial turns very much on the facts of the case that the Court will find having regard to all of the evidence and, in particular, whether Constable Marriott’s evidence concerning what he observed of this alleged street level drug transaction constitutes proof beyond reasonable doubt that the accused, Mr. Carvery, committed these offences with which he has been charged. [3] This alleged drug transaction took place in the north end of Halifax, in an area well known for street level drug trafficking, where crack cocaine users approach dealers on the public street and arrange to purchase single stone or rock of crack cocaine in transaction that takes mere seconds to complete for the consideration of single $20 bill. [4] On April 7th, 2010, Mr. Carvery, the alleged trafficker, and Mr. Burke, the individual who purchased one stone of cocaine, were both arrested within minutes of the alleged events near and at the trafficking location. They were observed by two undercover police constables, Constable Cooke and Constable Marriott, who say they observed the events from an observation post less than 130 feet from the incident and from position of some elevation. Constable Marriott had the use of expensive binoculars to view the encounter. [5] In an earlier ruling, determined that the Crown’s motion for observation post privilege was valid (see 2011 NSSC 283 (CanLII)). Upon subsequent motion made by defence counsel during the continuation of this trial on September 12, 2011, to waive the privilege, upheld my earlier decision and denied any waiver finding that the accused was able to make full answer and defence despite not knowing the exact address from which the police officers observed the alleged transaction. [6] In aide of the motion for waiver, defence counsel had earlier placed in evidence series of photographs of the neighbourhood and the transaction location that were taken 14 months after the event in June, 2011. These photographs were very helpful to the defence in having an opportunity to challenge the observations of Constable Cooke and Constable Marriott and were also useful to the Court in understanding the precise locations referenced in evidence. [7] There are many aspects of this case that are not in issue. They are the identification of the accused, the nature of the substance seized, the matter of jurisdiction and the date of the alleged events. None of these matters are challenged by the defence. [8] The defence does say, however, that the Court has insufficient evidence of the alleged drug transaction, in that neither police officer could see stone of crack cocaine pass into the palm of the hand of Mr. Burke, nor did they see an exchange of cash at the time of these events. [9] Further, defence counsel argues that their challenge to the credibility of Constable Marriott, the Crown’s primary witness, should raise reasonable doubt in my mind that these events did not unfold as he testified. [10] Constable Cooke testified that he and Constable Marriott were at an observation point for some of the drug activities in the area when at approximately 9:30 p.m. on April 7th, 2010, they watched white male, later identified as Mr. Burke, roaming in the area, first calling at apartment 20 of 2388 Gottingen Street and then with apparently no answer proceeding down Uniacke Street to townhouse, civic number 5418, where he was on the doorstep for minute or so. Constable Cooke testified that his exact observation of the accused at this time was obscured by “little wall at the entry to these doorways.” Both constables testified they observed the white male walk back up Uniacke Street to the corner of Gottingen where he encountered black male, one of the Carvery twins, in the crosswalk at Uniacke and Gottingen. Constable Cooke testified that there appeared to be conversation that was not audible. He testified that Mr. Carvery continued to walk northward on Gottingen Street but turned and motioned with his hand into the area of 2388 Gottingen Street. [11] This is an address that is comprised of two actual buildings, one at the front of the lot and one at the rear of the lot, but both joined by stairwell system that served entries on the back of the front building and the front of the rear building. This can be clearly seen on the exhibit book of photographs marked P-1, more particularly photographs 7, and 9. [12] As Mr. Carvery motioned, both gentlemen, he and Mr. Burke, both proceeded by different routes to meet at the northwest rear corner of 2388 Gottingen Street on little pathway between fence and the building that Constable Cooke described as dimly lit, although with his naked eye, he could see the gentlemen and also described the presence of shopping cart and garbage bin. Constable Cooke testified: If were walking with them and they’re walking north along the little path, they would have taken left or gone west, and would ball park it to be 10-15 feet or whatever in width, and would suggest in around the halfway point that they were at that time facing each other, at which point saw Mr. Burke’s left hand extended, there was no exchange, no handshake or anything like that. At that point, had attempted to make transition from my observation point to make better observation and while doing so was unable to capture the event in the next three to four or five seconds... [13] Constable Cooke testified that he continued to talk back and forth with Constable Marriott who continued to monitor the event. [14] Constable Marriott’s evidence is that from his position he was able to observe the five second encounter between Mr. Carvery and Mr. Burke. He testified: It was at that time that observed Mr. Carvery produce from his right side, as said, unknown if it was from his pants pockets, or jacket pocket, but on his right side small plastic bag. It appeared to be pink or reddish in colour. He placed it into his left hand. It was at that time that he took something from the bag, and placed it into Mr. Burke’s his hand was already out, left hand out facing palm up, facing up; placed something in it. The encounter was brief; maybe five to ten seconds. [15] Constable Marriott then testified: didn’t recall if any money was handed towards him, or to Mr. Carvery. [16] Next, Constable Marriott testified: Mr. Burke proceeded back out to Gottingen Street the same path that he came in through The Cut, and then made his way southbound on Gottingen. Mr. Carvery stayed near the corner, the northwest corner of 2388, in the rear. It was at that time that don’t know if it was myself or Constable Cooke advised that Mr. Burke was arrestable for possession, and Mr. Carvery was arrestable for trafficking. [17] And thus the officers notified other units in the area known as the “Quick Response Team” who then effected the arrest of the two gentlemen within few minutes of the alleged transaction. [18] The Court heard the evidence of Constable Todd Stephenson who arrested Mr. Burke at the corner of Buddy Daye and Gottingen Streets short distance from the transaction site and testified that back at the police station he seized one ball of crack cocaine from Mr. Burke’s pocket. [19] The Court also heard the testimony of Constable Justin Sheppard and Constable Gena Hill who described their arrest of Mr. Carvery at the rear of 2388 Gottingen. [20] Constable Sheppard had arrived first from one direction, the north, and Constables Hill and Carter arrived from the south, establishing that there was no one else at the rear of 2388 Gottingen except for Mr. Carvery. Having searched him and found no drugs on his person, these officers did seize two $20 bills, one from his right pant’s pocket, one from his left breast pocket, $5 bill from his jacket pocket, as well as an ID card and LG cell phone. [21] Constable Paul Jessen, the dog master, was called to the scene with his dog who found the location in the rock wall where pink baggy of drugs had been stashed in rock wall approximately one foot off the ground and five to six feet away from the rear corner of 2388 Gottingen Street. [22] note that with respect to the evidence of Constable Peddle, that two samples of the crack cocaine were analyzed in Winnipeg, Manitoba, one the stone seized from Mr. Burke and the second, stone seized from the pink baggy of 22 stones from the rock wall at 2388 Gottingen Street. The latter being Exhibit #3 in this trial. [23] The stone in Mr. Burke’s possession in the Health Canada Exhibit envelope and report were subsequently destroyed on April 20th, 2011, when charges against Mr. Burke were resolved and disposition order #H294770 was received by the police holding the evidence. Remaining as Exhibit #6 in this trial is copy of the Certificate of Analysis of the Burke stone which tested positive for cocaine. [24] The stone from which the pink baggy was analyzed and reported to have been cut with benedryl, in contrast with the Burke stone that was not cut. [25] The Court heard the evidence of Constable David Lane who was qualified as an expert to provide expert evidence with respect to jargon, use, availability, paraphernalia, distribution, packaging, sale, price and value of crack cocaine, as well as methods of avoiding police detection and stashing of drugs. [26] Constable Lane testified that it was not uncommon for the individual stones from the same source to be analyzed and to be found with different substances used for cutting the crack cocaine. He testified that more than one substance could be used to cut the cocaine and could appear in different samples, or that sample might not reveal any cut substance within it. [27] Constable Peddle also testified that in the cooking process of crack cocaine, making it into stones, the cut substance is often boiled off and disappears and will not be found in analysis. [28] Defence counsel has argued that the Burke stone could have come from another source, not as alleged from Mr. Carvery and could have been purchased earlier in the evening and had been in his possession before he met Mr. Carvery on Gottingen Street. will address that suggestion in due course. [29] But let me now address the various challenges the defence has made upon the Crown’s case. [30] While the defence agrees that the amount of cocaine involved, four grams in baggy of 22 stones, constitutes enough cocaine for possession for the purposes of trafficking, they deny that the coke belonged to Mr. Carvery and say that the Crown cannot demonstrate constructive possession of the baggy in the wall at the rear of 2388 Gottingen Street. [31] The defence asks the Court, in light of the disadvantage they suffer not knowing the exact location of the observation post, to assess the weight that ought to be given to Constable Marriott’s testimony and his credibility because of three specific areas of evidence that raise reasonable doubt: 1. Constable Marriott’s testimony about what he could observe at 5418 Uniacke Street, as Mr. Burke was allegedly roaming about looking for drugs; 2. His evidence on cross-examination about the lighting in the transaction location; and 3. Discrepancies in his notes and earlier testimony at the preliminary inquiry where he failed to note that the baggy was pink or pinkish in colour. [32] Respecting Mr. Burke’s encounter at 5418 Uniacke Street where Constable Marriott testified, Mr. Burke went to this door and: Spoke to someone briefly at the door there, and then returned up towards the corner of Gottingen and Uniacke again. [33] When asked on direct if Mr. Burke had any physical contact with the person at the door, he testified: It didn’t appear to me that there was any. [34] On cross-examination, Constable Marriott testified that he had an unobstructed view of 5418 Uniacke Street. Defence counsel then proceeded to cross-examine Constable Marriott with reference to photographs 24-28 of P-1 which show the door scapes and the street scapes of 5418 Uniacke Street, with the presence of mature trees. [35] The defence acknowledges that the photographs shown at P-1 were taken in June, 2011, 14 months after these events, when foliage would obscure that which could have been seen more clearly on April 7th, 2010. [36] Constable Marriott explained on cross-examination that the presence of the trees in the street did not obscure his vision and that even if Mr. Burke had been standing near one of those trees or in front of it, his profile was much bigger than the thickness of the trees and that in that sense he has full view of Mr. Burke on the street outside of 5418. [37] Defence counsel urges the Court to consider Constable Cooke’s testimony in contrast. When asked if he could see the door at 5418 Uniacke Street, he replied no, but earlier in his testimony on cross he is more equivocal about his view of this area. Q. Okay. Did you observe Mr. Burke speaking to anyone on the patio at that location? At 5418? Q. At 5418 Uniacke Street. A. No. There would be front step but no it’s not patio. No, didn’t observe it one way or the other. Q. Okay. Were you able to observe the front of the patio of 5418 Uniacke? A. Not in its entirety. It was quite dark there. [38] He then went on to testify that he was “ballparking too”– “I said in and around 5418.” He was also at different location than Constable Marriott, at the observation post for at least some of the time of these events. [39] The other area of challenge is the issue of lighting at 2388 Gottingen Street and 2406 Gottingen Street, which is called Sunrise Manor, the high-rise building next door to 2388 Gottingen Street which also had some exterior lights affixed to the building. Defence counsel prepared one-page summary of references to the evidence given by Constable Marriott and Constable Cooke on the issue of lighting. [40] On direct examination, Constable Marriott said he could see the transaction location and, in particular, referenced lights in the area. He testified there was light on the rear end of the front building at 2388 Gottingen that would have assisted in the illumination of the transaction and also one half-way up the side of the rear of the building. The light on the rear of the front building can be seen in P-1 photograph and is two-headed spotlight facing in two directions up and down the alley way. In photograph of P-1, the west side of the rear building, does not reveal light 10-12 feet off the ground and one half-way up the west side of the rear wall of this building as Constable Marriott testified, but the photograph was taken when tree in foliage obscures full view of this western wall. Constable Marriott testified that such light at this location helped illuminate the transaction location. [41] have reviewed each reference that defence counsel specifically showed me and then re-visited all of the evidence of these officers with respect to the available light at the transaction location. [42] With the assistance of the photographs he took, defence counsel was able to conduct very full cross-examination of the issue of lighting, in contrast to the more general comments made in direct examination about the light available to assist in their observation. [43] The evidence of Constable Cooke does contradict Constable Marriott in that Constable Cooke, in particular, did not believe there was any light from the 2388 buildings in the transaction area that night, but that he could testify that there was ambient illumination because he could clearly describe the accused, his clothing, his path of travel, his ultimate encounter with Mr. Burke at the transaction location and Mr. Burke turning up his palm and the presence of the grocery cart and garbage container. [44] Constable Marriott was the constant observer with his binoculars who never lost sight of Mr. Carvery and Mr. Burke from the observation post once they proceeded along the path toward the northwest corner of the rear building at 2388 Gottingen. [45] He testified that the lights on two sides of the Sunrise Manor assisted in illuminating the area, but agreed that the presence of the fence between the two properties meant that the light would not shine directly on the transaction location. He was certain in his testimony that the light shown in photograph at 2388 was lit and helped illuminate the site and also that light nearest the transaction location, the one unable to be seen in photograph 7, as present, lit and provided illumination. [46] Although cannot reconcile this contradiction between the two officers’ testimony, am not of the view that Constable Marriott has lied about what he saw and described that evening. Indeed, as far as Constable Cooke’s observations went up to the point of Mr. Burke’s palm up, both officers could both see the transaction location and testified so, either by ambient or direct light as is obvious from their testimony. [47] So in the context of Constable Marriott’s evidence as whole, do not believe that the rigorous cross-examination on lighting impacted on his credibility and Constable Marriott had the binoculars to assist in his observations. [48] With respect to the colour of the baggy, not mentioned in his notes or at the preliminary inquiry, find that otherwise his description of the event as it relates to the baggy is consistent. The colour issue does not, in my view, impact on Constable Marriott’s credibility. He describes the baggy with particularity, “not sandwich bag, but portion or corner of another bag.” [49] Constable David Lane’s evidence was significant in that he testified as to the nature of low level street trafficking, buyers searching out drugs on the street to meet their immediate needs, the brief and direct contact between the seller and the buyer of crack cocaine stones, the passing communication and the gesture to go to another place to do the deal to avoid police scrutiny and observation in this high drug trafficking area and the frequent disposal of the remaining drugs by stashing so that the dealer will not be caught in possession of the drugs. He also testified to the payment by $20 bills as the regular price and the habit dealers have of separating the bills on their person, profit versus the funds required for re-up or restocking when the supply of stones are sold and the dealer must then return to his mid level contact to purchase more crack cocaine. [50] I accept his evidence on these practices and find the encounters between Mr. Burke and Mr. Carvery are consistent with these drug trafficking practices and not consistent with any other possible explanations. [51] accept the evidence of Constable Marriott and find that the elements of this offence were matter of his direct observation as he testified. [52] find that the Crown has proved beyond reasonable doubt that the contact between Mr. Burke, as buyer, and Mr. Carvery, as seller, was trafficking offence contrary to s. 5(1) of the Controlled Drugs and Substances Act. [53] On the issue of Mr. Carvery’s possession pursuant to s. 5(2) as further defined by s. 4(3) of the Canadian Criminal Code, Mr. Carvery was not in possession of the drugs when arrested, but moments after being observed taking something out of the pink baggy and handing it to Mr. Burke, who then left the alley, he went around the back of 2388 and his silhouette could be seen by Constable Marriott a few feet behind the building in the area where the drugs were stashed in the wall. [54] This is not public hidy hole, but one chosen so it could not easily be seen one foot off the ground pushed into the rock wall just inside the corner of the building. [55] I am satisfied beyond a reasonable doubt that Mr. Carvery stashed these drugs in the rock wall after the transaction and did so minutes before his arrest. His possession is constructive, done knowingly by him for his use and benefit so he could return to the stash for his next transaction. am satisfied that he had control of these drugs and that they were not accessible to any other individual but to him. It was his stash that he placed in the rock wall in the minute following the transaction with Mr. Burke. [56] Lastly, should say that was not troubled by what defence counsel calls the unanswered questions. [57] accept that the gesturing to another place for the deal to take place is common practice to avoid detection. [58] accept that not all the street level drug dealers carry weapons, although some do as Constable Lane testified. [59] accept that although there was no evidence that Mr. Carvery might have known he was under observation this could be expected in this high drug trafficking area of town and stashing one’s supply is common practice in street level drug trafficking. [60] do not view the stash location as being very public, nor do think it is likely explanation that Mr. Carvery merely went behind the building to relieve himself, particularly as minutes before his meeting with Mr. Burke, he had just left residence on Gottingen Street. [61] accept Constable Lane and Constable Peddle’s evidence respecting the cutting substances in crack cocaine as an explanation for the absence of the agent benedryl in the Burke stone. [62] also accept Constable Lane’s testimony that in the circumstances of this street level drug arrest, analysis of tin foil or finger print analysis of baggies would not usually be conducted. [63] Although it is unfortunate that the Burke exhibit of one crack stone was destroyed, accept that Exhibit #6 is helpful as an analysis report. note also that the suggestion that Mr. Burke could have made an earlier purchase from someone else, not Mr. Carvery, does not seem very plausible as am satisfied he initiated communication with Mr. Carvery to purchase drugs and completed the transaction at the rear of 2388 Gottingen Street. [64] Constable Lane also testified as to the immediacy of the need of the buyer and the usual practice of going directly to place to smoke crack cocaine undetected from view as soon as the purchase is made. [65] Mr. Burke’s conduct was consistent with that pattern, complete the purchase and make quick retreat. [66] And should say that have considered the weight of Constable Marriott’s evidence in light of the Hernandez case. (R. v. Hernandez, 2010 BCCA 514 (CanLII), [2010] B.C.J. No. 2275) In its totality, find his evidence to be credible. [67] In the result, find that the Crown has proved its case. Mr. Carvery is guilty of the offences with which he is charged. Justice M. Heather Robertson","The accused was charged with trafficking in cocaine and possession of cocaine for the purposes of trafficking. He was arrested within minutes of two officers observing what they believed to be a drug transaction. After watching the accused roam the street, they had observed him meet up and speak briefly with another person, whom he motioned to follow him and they proceeded by different routes, meeting up at the rear corner of a building. Although the area was dimly lit, one of the officers saw the accused remove something from a small pink plastic bag, which he then placed in the other person's hand. The encounter was very brief and neither officer observed any money exchanged. A ball of crack cocaine was later seized from the other person's jacket pocket. Although no drugs were found on the accused, a search of the area located a pink baggy of drugs stashed in a rock wall close to ground level. The defence argued that the drugs seized from the other person could have come from anywhere and constructive possession had not been proven with respect to the baggy located in the wall. Accused found guilty on both counts; the court accepted that the drugs found in the wall belonged to him and his possession was constructive, done knowingly for his use and benefit so he could return to the stash for his next transaction. The encounter described was consistent with low level street trafficking (brief and direct contact between buyer and seller, the passing communication and gesture to go to another place to avoid police scrutiny and the frequent disposal of the remaining drugs by stashing) and inconsistent with any other possible explanation. Moments after handing something to the other person, the accused's silhouette was observed in the area where the drugs were stashed and the court was satisfied that he had placed the drugs in the wall minutes before his arrest.",2_2011nssc500.txt
163,"nan S.C.A. 02702 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Hallett, Matthews and Freeman, JJ.A. BETWEEN: THE HARTFORD INSURANCE GROUP, body corporate, HARTFORD FIRE INSURANCE COMPANY, body corporate, FRASER‑BRACE, DIVISION OF PIGOTT CONSTRUCTION LIMITED, body corporate, DELTA ELECTRIC CO. LTD., body corporate, HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF NOVA SCOTIA and GUARDIAN INSURANCE COMPANY OF CANADA Respondent Ross H. Haynes for the Appellants Carman G. McCormick, Q.C. and David Farrar for the Respondent Appeal Heard: December 4, 1992 Judgment Delivered: December 4, 1992 THE COURT: Appeal dismissed with costs to the respondent to be taxed per reasons for judgment of Hallett, J.A.; Matthews and Freeman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: HALLETT, J.A. This is an appeal from a decision of Richard, J. declaring that the respondent Guardian was not liable to contribute to payment of a fire loss that was insured against by the appellant Hartford. The Province of Nova Scotia had entered into contract with Fraser‑Brace for the construction of hospital. The contract allocated the risk for fire loss to Fraser‑Brace and required Fraser‑Brace to obtain fire insurance to protect the parties against fire loss. Hartford issued builder's risk policy to Fraser‑Brace; such policy includes coverage for loss caused by fire. The cover was just over $27,000,000.00. Fraser‑Brace contracted the electrical work to Delta; there was no requirement that Delta obtain fire insurance but due to misunderstanding by Delta it obtained builder's risk policy from Guardian. The coverage was just under $4,000,000.00. The named insured was Delta with loss, if any, payable to the Province. There was fire. Hartford sought contribution from Delta's insurer, Guardian. Without acknowledging liability Guardian paid some $400,000.00 to Hartford to facilitate progress payments to Delta by Fraser‑Brace. Guardian sued to recover its money with interest from Hartford on the basis that it was not liable to contribute. The learned trial judge found the Guardian policy had been issued under the mistaken belief by Delta that it was required to carry builder's risk insurance. The learned trial judge found that the building was never at the insured's risk; that the policy was void and that Guardian was not liable to contribute to the fire loss. He ordered Hartford to repay Guardian the advances with compound interest. Several issues have been raised on appeal. The appeal on the main issue ought to be dismissed. There is no evidence nor even suggestion that Delta caused the fire. Guardian had no obligation to Delta to pay the fire loss as Delta, under its subcontract with Fraser‑Brace, was never at risk for fire loss to the Province's property. The obligation to insure the risk had been allocated to Fraser‑Brace by the contract with the Province. As Delta did not cause the fire loss it had no liability to the Province or Fraser‑Brace for causing the fire loss. Delta was not at risk for the fire loss of the Province's property as there was no allocation of the fire risk to Delta by the contract documents. In summary, there was no tortious or contractual liability of Delta for which Guardian was required to respond as Delta's insurer. The Guardian policy provided that the insurance attached when the property became at the risk of the insured. In this case it never did. On these facts Guardian had no obligation to respond to under the terms of the policy issued to Delta. Furthermore, there was no contractual relationship between Guardian and the Province, nor between Guardian and Hartford which could give rise to any obligation on Guardian's part to contribute towards the fire loss suffered by the Province and insured by Hartford. We reject Hartford's argument that there should not be an award of pre‑judgment interest; Hartford had the use of Guardian's money pursuant to an agreement that implied the money would be repaid if Hartford was wrong in its assertion that Guardian was required to contribute to the fire loss. In our opinion the money owing was in the nature of debt; therefore, the trial judge had jurisdiction to award pre judgment interest. Hartford is required to reimburse Guardian for the amount paid by Guardian to Hartford with pre judgment interest as fixed by the trial judge but not compounded as there was no evidence to support finding that compound interest should be paid. Evidence on this issue is required. (606327 Ontario Limited and The Polar‑Freez Limited Partnership v. ACA Cooperative Association Limited et al; Associated Freezers of Canada Inc. v. ACA Cooperative Associate Limited et al. (N.S.S.C.) A.D., unreported June 5, 1992). We will not interfere with the exercise of the trial judge's discretion on the award of costs at trial. The appellant has been unsuccessful other than with respect to the minor issue of compound interest. The respondent shall have its costs to be taxed. J.A. Concurred in: Matthews, J.A. Freeman, J.A. 1987 S.H. No. 62640 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: GUARDIAN INSURANCE COMPANY OF CANADA, body corporate PLAINTIFF RESPONDENTS and THE HARTFORD INSURANCE GROUP, body corporate, HARTFORD FIRE INSURANCE COMPANY, body corporate, FRASER‑BRACE, DIVISION OF PIGOTT CONSTRUCTION LIMITED, body corporate, DELTA ELECTRIC CO. LTD., body corporate, HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF NOVA SCOTIA DEFENDANTS APPELLANTS HEARD BEFORE The Honourable Mr. Justice Peter Richard PLACE HEARD Halifax, Nova Scotia DATES HEARD January 20, 1992 and March 4, 1992 WRITTEN DECISION February 5, 1992 and May 20, 1992 COUNSEL Ross H. Haynes, for the Appellants Carman G. McCormick, Q.C., for the Respondent S.C.A. 02702 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: THE HARTFORD INSURANCE GROUP ET AL and GUARDIAN INSURANCE COMPANY OF CANADA Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A. (Orally)","This was an appeal of a decision declaring that the respondent was not liable to contribute to payment of a fire loss that was insured against by the appellant. Dismissing the appeal, that the insurer of a subcontractor on a construction project was not liable to contribute to payment of a fire loss by the insurer of the principle contractor where the risk was allocated by the contract documents to the principle contractor and not the subcontractor.",e_1992canlii2542.txt
164,"1993 S.H. No. 93‑5605 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HARRY GRANT and ALLSTATE INSURANCE COMPANY, body corporate, ALLSTATE INSURANCE COMPANY OF CANADA, body corporate, ALLSTATE LIFE INSURANCE COMPANY, body corporate, ALLSTATE LIFE INSURANCE COMPANY OF CANADA, body corporate, Defendant HEARD: at Halifax, Nova Scotia, before the Honourable Justice A. David MacAdam, on December 10, 11, 12, 13 and 14, 1995. DECISION: Orally December 14, 1996 RELEASE OF DECISION: February 16, 1996 COUNSEL; R. Ritchie Wheeler, Esq., for the plaintiff D. Geoffrey Machum, Esq., for the defendant J.: On November 5, 1991, the plaintiff, Mr. Grant, together with three other sales agents employed by the defendant, herein ""Allstate"", were notified their employment was being terminated. At the time, the plaintiff was also advised he would receive salary continuation and benefits (excluding disability) ""until January 5, 1993, or until you secure alternative employment, whichever first occurs"". In addition, Allstate agreed to provide him with the relocation counselling services of Peat Marwick Stevens Kellogg. BACKGROUND Mr. Grant joined Allstate in November, 1965, and continued in their employ, as a sales agent, for approximately 26 years. The Allstate agent's compensation agreement, in force at the time of his termination, provided for monthly compensation based on the ""net written premium on new policies recorded in your account during the previous month"" calculated in accordance with certain percentages for the different lines of insurance as therein stipulated together with renewal compensation calculated by reference to the ""net premium on renewal policies recorded in your account during the two production quarters preceding the particular compensation quarter"" multiplied by the applicable percentages and with the resulting dollar amount totalled and divided by six. Although the formula for calculating the plaintiff's compensation was changed in January, 1967, the basic format of the compensation remained the same, namely, after achieving certain minimums prior to which he was entitled to receive guaranteed monthly compensation from Allstate, Mr. Grant was to be paid on the basis of new policies written during the previous month together with renewal compensation calculated using the average renewals for the prior two quarters. Mr. Grant's success as sales agent, measured by the level of his compensation as compared to that of the other sales agents, placed him at or near the top of Allstate's sales agents employed within the Province of Nova Scotia. Nevertheless, and although Allstate has not, at any time, sought to justify the termination on the basis of cause, there were concerns expressed about Mr. Grant's lack of productivity in obtaining new policies and, in particular, in writing new life insurance policies. In the mid‑1980's, Allstate initiated program it entitled ""The Neighbourhood Office Program"" and invited its agents to convert to this program. At the same time, agents were offered new compensation contract that effectively increased the level of compensation on new policies written and at the same time reduced the level on renewals. By letter dated December 8, 1989, Lawrence E. Clodge, Senior Vice‑President, advised that effective July 1, 1990 no further conversions to the Neighbourhood Office Program status or the new compensation contract would be available to agents on staff prior to the introduction of these programs. At the same time he advised, in his letter to Mr. Grant, that it was the intention of Allstate to ""direct all evolving technology regarding point of sale assistance to retail and Neighbourhood Office environments only"". The plaintiff declined to accept the program on the basis the Neighbourhood Office Program required the agent to fund their own expenses and would not, in his opinion and in his circumstances, be of benefit to him. Because the bulk of his compensation, at this time, was for policy renewals, he believed the effect of the emphasis on new business represented by the increase in the rate of commission for new business, and the reduction in the rate for renewals, would have adversely affected his level of income. Similarly, in respect to the Neighbourhood Office Program, the transfer of responsibility for office expenses to the agent would, in the view of Mr. Grant, result in an overall reduction in his level of compensation. Mr. Grant testified he was assured by Dennis Madden, the Atlantic Canada Sales Manager of Allstate, that although his office might be on the 15th floor of an office tower there would always be ""a place for him to work"". Mr. Madden, on the other hand, although acknowledging there were number of discussions between himself and Mr. Grant about the new compensation contract and the Neighbourhood Office Program testified he has no recollection of ever saying to Mr. Grant he would be able to keep his job even if he didn't agree to go along with the Neighbourhood Office Program. By 1991, Allstate, having concluded that its business plans did not include the retention of direct offices, decided to close all direct offices, excepting only those in the Province of Quebec. On November 5, 1991, while Mr. Grant and his three fellow agents were being terminated, Allstate also closed all of the other direct offices in Canada, except only in the Province of Quebec. The decision to terminate the plaintiff was therefore the result of business plan involving the reorganization and restructuring of its sales agent system by the implementation of the Neighbourhood Office Program throughout Canada. At the meeting on November 5, 1991, the defendants' representatives restated the intention of Allstate to allocate and utilize its resources in supporting the new program and continued, in respect to the ""direct office"" where the plaintiff and the other three terminated sales agents worked: After considerable thought and analysis, it has been concluded that this office no longer complements our on‑going strategic direction and therefore, we must inform you that effective immediately we will no longer be serving customers out of this location. As such, your current position is no longer available."" Although he was one of limited number of ""senior"" sales agents employed by Allstate, as of the time of his termination, Mr. Grant acknowledged, on cross‑examination, he had no managerial or supervisory functions and was not responsible for hiring or firing nor for the preparation of budgets. Mr. Madden also testified that direct office agents have no management or supervisory responsibility. He said by 1991 the only Maritime direct sales office of the defendant was the one located in Halifax where Mr. Grant and his three colleagues were the resident sales agents. He also confirmed the new compensation plan increased the commissions for new business and, at the same time, reduced commissions for renewals. The plan, he acknowledged, was intended to emphasize the creation of new business and therefore was consistent with the overall objectives of the Neighbourhood Office Program, although not part of the Neighbourhood Office Program. He testified existing agents were not required to accept the new compensation program even if agreeing to participate in the Neighbourhood Office Program. The compensation plan was only compulsory in respect to agents hired after its implementation by the company. Mr. Madden testified, to his understanding, the failure of Mr. Grant to accept the new compensation program had no part in his termination. He said Mr. Grant and the other three sales agents were terminated because the company was going in different direction that didn't include the continuation of direct offices. On re‑examination, Mr. Grant restated his belief that if he had accepted the Neighbourhood Office Program he would also have been required to accept the new compensation contract. Mr. Grant testified, following his termination, he experienced difficult emotional time realizing, at age 50, he had lost his job and his only source of income, and feeling he could have avoided the termination if he had decided to accept the Neighbourhood Office Program. He attended the counselling services funded by Allstate and talked to various persons in the insurance industry about his availability for employment. One of the persons with whom he spoke was Bill Sleigh, the President and owner of Sleigh Insurance Services. Mr. Sleigh testified Mr. Grant approached him about the prospects for employment. However, when informed Mr. Grant's employment contract with Allstate incorporated two year ""non‑competition clause"", he decided not to offer him employment. The clause in question reads: ""For period of two years immediately following the termination of your employment under this agreement, you agree that you will not solicit or sell insurance of any kind A. with respect to any person, company or organization to whom you previously sold an Allstate policy, or B. within one mile from any Allstate location from which you solicited or sold insurance during the year immediately preceding such termination."" Mr. Sleigh, on cross‑examination, acknowledged his office was within radius of one mile of the closed office. However, he said this was not the reason that had caused him to decline to offer position to Mr. Grant. Mr. Sleigh responded to counsel that his concern related to the prohibition against Mr. Grant selling insurance of any kind to any person, company or organization to whom he had previously sold an Allstate policy. The plaintiff decided his best option was to open his own office, in partnership with one of the other Allstate sales agents who was terminated in November, 1991. Allstate, in addition to writing and congratulating him on the opening of his business, took the occasion to remind him of the two year prohibition against soliciting insurance of any kind with respect to any person, company or organization to whom he had previously sold an Allstate policy. ISSUES 1. At the time of his termination, was the plaintiff owed any arrears of salary? 2. Has the plaintiff, in the circumstances, failed to mitigate his damages? 3. What, in the circumstances, is the period of reasonable notice to which the plaintiff was entitled? ARGUMENT 1. At the time of his termination, was the plaintiff owed any arrears of salary? The plaintiff submits at the time of his termination, in November 1991, Allstate was, in effect, one month in arrears in paying him compensation. The plaintiff suggests that since compensation is calculated, in part, on the basis of the prior month's productivity, he would not have received commissions for the sales generated by him during the month of October, 1991. His argument is founded on the premise that his salary was by way of commissions and, excluding the 14 months' salary continuation, he was not paid for commissions earned during the month of October, excepting to the extent he received compensation for the five days worked at the beginning of November, 1991. The submission of the plaintiff is without merit and involves misunderstanding as to the true nature of the terms of compensation as between himself and Allstate. Although calculated, in respect to new policies, on the prior month's productivity and with respect to renewals, on an averaging of the two prior quarters, the compensation paid each month is for the month worked rather than for the preceding month or some other period. Part IIA of the compensation agreement outlines the basis of calculating compensation ""for each month of your employment"", including the using of the prior month's sales, and in the case of renewals, the average over the previous two quarters. This interpretation of the terms for compensation is strengthened by the provisions dealing with payment on termination. Clause XII of Part IV provides, in part, as follows: ""Any compensation payable under this agreement or any supplement thereto shall be payable only with respect to employment during the continuance of this agreement. When this agreement is terminated, your compensation for the month in which such termination occurs shall be determined as described below.” The clause then provides that where termination occurs at the end of month, the compensation for the final month is to be arrived at by applying the appropriate percentages to the net written premium on new policies recorded in the terminated employee's account during the month preceding such final month of employment, together with the monthly renewal compensation calculated by applying the appropriate percentage to the net written premiums on renewal policies recorded in the terminated employee's account, during the two production quarters preceding the compensation quarter in which the said final month falls, and then totalling the resulting dollar amount and dividing the total by six. The basis of calculation is therefore the same as for the monthly payments of compensation during the term of employment, namely the calculation of income based on the new policies sold during the prior month and the calculation, in respect to renewals, based on the average of the two preceding quarters. The clause then continues: ""If, however, such termination occurs on date other than the last day of month, your compensation for the days during that month up to such termination date shall be calculated as though for the full month as above described but pro‑rated in accordance with the number of such elapsed days in that month."" Clearly, both on an interpretation of the provisions dealing with the compensation itself, as well as the provisions dealing with compensation on termination of employment, there was, once he received pro‑rated amount to November 5, 1991, no month for which, to that time, he had not been compensated during his period of employment with the defendant. In fact, this is borne out, by his admission during his evidence, that there was no month of his employment with Allstate for which he was not paid. 2. Has the plaintiff, in the circumstances, failed to mitigate his damages? Allstate submits the plaintiff has failed to mitigate his damages arising out of the termination on November 5, 1991. In this respect they note the admission of Mr. Grant that if he had pursued obtaining employment, rather than commencing his own business, he would likely have obtained work with compensation at between $1,800 to $3,000 month. The defendant submits it is, in the circumstances, entitled to credit but claims this credit only to the extent that any awarded reasonable period of notice exceeds the already paid 14 months provided by the defendant to the plaintiff. Clearly, there is responsibility on the plaintiff to mitigate any damages arising as result of the termination, without notice, by the defendant. In Holland v. Midland Walwyn Capital Inc. (1993), 1993 CanLII 4537 (NS SC), 124 N.S.R. (2d) 204, Justice Davison, in dealing with the responsibility of the dismissed employee to seek alternative employment, stated, at p. 213‑214: ""A wrongfully dismissed employee is required by law to make reasonable efforts to secure other employment. The doctrine of mitigation in wrongful dismissal cases was set out by Chief Justice Laskin in Michaels et al. v. Red Deer College (1975), 1975 CanLII 15 (SCC), N.R. 99; 57 D.L.R.(3d) 386 (S.C.C.), as follows: 'The primary rule in breach of contract cases, that wronged plaintiff is entitled to be put in as good position as he would have been in if there had been proper performance by the defendant is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff.' The burden is on the defendant to show an employee could have avoided portion of the loss. An employee may reject alternate employment if it is reasonable to do so. Generally, an employee is entitled to await position analogous to his or her former employment. The dismissed employee, Mr. Holland, like Mr. Grant, began his own firm. Justice Davison found he made little effort to secure alternative employment and on the issue of mitigation concluded, at p. 214: ""Midland has satisfied me that Holland's efforts to mitigate were scant. cannot accept the submission on behalf of Holland that 20 months is reasonable notice period. find that proper notice period on the evidence to be 14 months, notwithstanding Holland's long service with Midland. have no doubt that after 14 months following his departure from Midland, Holland would have secured position with comparable income if he had not elected to start new business."" In the present circumstances, it is clear, although contacting number of persons involved in the insurance industry, Mr. Grant did not pursue the possibility of alternative employment with enthusiasm or commitment. On his evidence, he prepared neither resume nor sought recommendation from his former employer in order to assist him in such pursuit. Although he spoke to number of persons in the insurance industry, it is clear that early on he reached the decision to establish his own business, in partnership with another of his terminated colleagues. The question then becomes, whether or not his course of conduct was, in the circumstances, reasonable. In this respect, the evidence of Mr. Sleigh to the effect that the existence of the ""non‑competition"" clause was material factor in determining whether to offer Mr. Grant position is also relevant in considering the reasonable alternatives available to Mr. Grant following his termination. Clearly, his ability to generate income in job where compensation is measured by formula tied to productivity would be severely hampered by prohibition against selling to any person he had been successful in selling on behalf of his former employer. At age 50 he would presumably, for the first two years at least, be limited to contacting persons for whom he had no prior business dealings or associations, unless he had previously been unsuccessful in selling them insurance on behalf of the defendant. Clearly, where the employer seeks to enforce the ""non‑competition"" clause, of which here this is not in dispute, it must recognize this may constitute factor in determining whether or not the terminated employee has made reasonable efforts to seek and obtain alternative employment. The evidence of Mr. Sleigh confirms the existence of this clause as an impediment to Mr. Grant's successfully obtaining new employment. On the other hand, and although the non‑competition clause would equally apply to the business which he established, the restrictions against contacting former clients would be offset against the anticipation of long‑term benefits in establishing his own business. In all the circumstances, his course of conduct was not unreasonable, and as such, did not constitute a failure by the plaintiff to mitigate his damages. 3. What, in the circumstances, is the period of reasonable notice to which the plaintiff was entitled? The factors cited by Chief Justice McRuer in Bardal v. The Globe Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 are often cited in deciding the period of reasonable notice to which dismissed employee is entitled, in the absence of just cause. At p.145, Chief Justice McRuer says: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant."" In Squires v. Ayerst, McKenna Harrison Inc. (1991), 1991 CanLII 4349 (NS SC), 104 N.S.R. (2d) 124 (N.S.S.C.), at p. 136, Gruchy, J. listed number of factors he considered in determining the appropriate length of notice to which dismissed employee was entitled. Gruchy, J. considered: 1. the availability of similar employment in this regard; 2. the plaintiff's relatively high corporate status for person of his age; 3. the plaintiff's age, which is factor reducing the period of notice herein; 4. the plaintiff's length of service with the defendant; 5. the plaintiff's loyalty to the defendant; 6. the marital and family status of the plaintiff; 7. the apparent contribution of the plaintiff to the defendant in terms of building business and in the performance of his job; 8. the degree of security of position which the plaintiff ought reasonably to have anticipated; 9. the plaintiff's relocation from his original home to his present residence in Nova Scotia; 10. there was no evidence to indicate that the nature of the defendant's business was such as would lead the plaintiff to anticipate mobility of employment. 11. the manner in which the plaintiff was dismissed; 12. lack of forewarning; 13. the accusation by the defendant that the plaintiff had, in effect, acted fraudulently to obtain personal benefit, (although this is factor which may more appropriately affect costs); 14. actions of the defendant taken subsequent to the dismissal in an apparent attempt to justify it."" With the exceptions of numbers 9, 10, 13, and 14, the plaintiff submits the remaining factors are also relevant in determining the appropriate period of notice in respect to the dismissal of the plaintiff by Allstate. In this respect, counsel suggests that ""availability of similar employment not only includes employment of like nature or character but also includes employment of an equivalent or reasonably close pay scale."" Counsel notes that at the time of dismissal the plaintiff's compensation was in excess of $90,000.00 annually, and for person of his age and education, with his experience limited to the field of insurance sales, and in view of the ""non‑competition clause imposed by the defendant"", no similar employment was available to the plaintiff. Although ""availability of similar employment"" is clearly factor to be considered in deciding the appropriate period of notice, the submission of plaintiffs counsel places, in our view, too narrow focus on what is meant by ""availability of similar employment"" in the context of dismissed employee. Although the characteristics noted by counsel are relevant, they do not preclude consideration of whether, having regard to the age, educational and experience background and interests of the dismissed employee, there may be similar employment, although at compensation level substantially less than that previously enjoyed by the dismissed employee. Comparable compensation level is factor but its absence doesn't preclude an examination of reasonable alternatives. Clearly, as suggested by counsel, the plaintiffs age is factor, particularly where the basis of compensation is dependent upon developing ""book of repeating clients"". Mr. Grant's years with the plaintiff had enabled him to develop such 'book of clients"" who annually renewed their contracts of insurance with Allstate, thereby providing the plaintiff with continuing income, calculated, in part, on these renewals. Clearly, at age 50, the plaintiff's prospects for developing ""book of repeating or renewal business"" was not as great as it was in his 20's particularly when he is precluded for two years, from soliciting or selling insurance to persons he had earlier sold insurance on behalf of the defendant. His age, combined with the nature of the business, and the format of compensation, are clearly factors to be considered. Although, there was some evidence of concerns by the defendant, on the plaintiffs failure to achieve marketing goals in respect to new business, and in particular, life insurance, there was no suggestion he was other than an ""honest and loyal employee"", as submitted by his counsel. He was, as also suggested by his counsel, the ""major bread winner"" in his family. Counsel also referred to the circumstances of the dismissal, including the lack of any prior warning by the defendant indicating the plaintiffs job was in jeopardy. suggested ""non‑factor"" is the lack of managerial or supervisory responsibility of the plaintiff in his former position with Allstate. In his supplementary memorandum, counsel refers to the decision of Justice MacPherson in Cronk v. Canadian General Insurance Company (1994), 1994 CanLII 7293 (ON SC), 19 O.R. (3d) 515. 55 year old plaintiff was terminated as an assistant underwriter following 29 years service. In awarding the plaintiff 20 months salary, as damages in lieu of notice, Justice MacPherson dismissed, as factor, considerations of the nature and character of the employment as they related to managerial and non‑managerial functions. In so dismissing the managerial/clerical distinction, Justice MacPherson noted studies by the Council of Ontario Universities reviewing the relationship between education and employment. He then continued, at pp. 525‑526: Drawing on the statistical material compiled in their studies, the Council of Ontario Universities describes the employment situation in Canada and in Ontario in the early 1990s in these terms (The Financial Position of Universities in Ontario: 1994, v. 2): [I]n Canada ... [w]hile the number people who did not go any further than high school and who were employed decreased substantially during both 1991 and 1992, the number of university graduates who held jobs increased in both years ... [E]ven in recession wracked Ontario, the number of university graduates who were employed has increased each year while the number of employed men and women without post‑secondary training has been sharply reduced since 1990. My conclusion, based on the above data, is that it is wrong to contend, as the defendant has, that clerical workers like Ms. Cronk or other employees in low level positions should receive shorter notice period than managers or professionals because the former are likely to obtain new positions more quickly than the latter. Indeed, the data support the opposite conclusion. Statistically speaking, in Ontario in 1993 fired clerical employee was in terrible situation with respect to finding employment."" However, on appeal, the Ontario Court of Appeal, at 1995 CanLII 814 (ON CA), [1995] O.J. No. 2751, rejected the dismissal by MacPherson, J. of ""character and nature of employment"" as factor in determining the appropriate period of notice. LacourciŠre, J.A. in reasons, generally concurred in by Mordin, A.C.J.O., stated at p. 33‑34: The principle that senior employees are entitled to lengthier periods of notice has also been applied in Ansari v. British Columbia Hydro and Power Authority (1986), 1986 CanLII 1023 (BC SC), B.C.L.R. (2d) 33 where McEachern C.J.S.C. stated at p. 43: At the end of the day the question really comes down to what is objectively reasonable in the variable circumstances of each case, but repeat that the most important factors are the responsibility of the employment function, age, length of service and the availability of equivalent alternative employment, but not necessarily in that order. In restating this general rule, am not overlooking the importance of the experience, training and qualifications of the employee but think these qualities are significant mainly in considering the importance of the employment function and in the context of alternative employment. The argument before MacPherson, J. proceeded on the express acceptance by both parties of the distinction between clerical and managerial employees, and on the concession that the respondent's function was clerical and did not involve specialized knowledge or managerial responsibilities. Despite these concessions, the motions court judge rejected principle which has been widely accepted and applied by trial judges and Canadian appellate courts and which has found favour with the Supreme Court of Canada in Machtinger v. Hoj Industries Ltd., 1992 CanLII 102 (SCC), [1992] S.C.R. 986. Iacobucci J. quoted the classic statement of McRuer C.J.H.C. in Bardal, noting that it is the most frequently cited enumeration of factors relevant to the assessment of reasonable notice (at p. 998). The following cases are indicative of the wide acceptance by appellate courts of the Bardal principle: Dafoe v. Microtel Ltd. (1987), A.C.W.S. (3d) 433 (B.C.C.A.), McHugh v. City Motors (Nfld.) Ltd. (1989), 1989 CanLII 265 (NL CA), 74 Nfld. P.E.I. R. 263 (Nfld. C.A.), Wiebe v. Central Transport Refrigeration (1994), 1994 CanLII 6406 (MB CA), C.C.E.L. (2d) (Man. C.A.), Pelech v. Hyundai Auto Canada Inc. (1991), 1991 CanLII 920 (BC CA), 63 B.C.L.R. (2d) 24 (C.A.). In Desnaulniers v. Wire Rope Industries Ltd., judgment of the British Columbia Supreme Court released April 21, 1995, Baker, J. referred to Justice MacPherson's decision under appeal and stated at p. 34: Whether Justice MacPherson is correct in his interpretation and application of the law in Ontario, the applicable law in British Columbia is expressed in Ansari [supra] and Pelech [supra]. In another judgment of the British Columbia Supreme Court, Hester v. International Land Corp. (released March 28, 1995), Errico J. refused to depart from the principle enunciated in the Ansari decision and rejected the conclusions reached by MacPherson J. in the judgment under appeal. The Cronk decision on the notice period was, however, followed by Ferrier J. in Kwasnycia v. Goldcorp. Inc., an unreported decision of the Ontario Court General Division, delivered January 10, 1995. In my opinion, the learned motion court judge's reasons do not justify departing from the widely accepted principle. He erred in doing so on the basis of his own sociological research without providing counsel an opportunity to challenge or respond to the results of the two studies relied upon. agree with the appellant that the factual conclusions which he drew from these studies are beyond the scope of proper judicial notice. As noted by this court in R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 36 O.R. (2d) 195, at p. 201: [I]t has been held that, generally speaking, court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources who accuracy cannot reasonably be questioned. The conclusion of the motions court judge based on the studies prepared by the Council of Ontario Universities are obviously not so generally known or accepted as to challenge the validity of an established principle which has found judicial acceptance for over three decades. It is not, as the respondent contended, an undisputed 'social reality' as was the background information concerning the circumstances encountered by spouses at the dissolution of marriage, in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813 at 874. Before taking new matters into account based on statistics which have been considered in the judgment under appeal, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response."" Justice Morden, in separate reasons, noted at p.49: ""... There can be no doubt that the case law in this country, before and after Bardal, and in England, has generally recognized seniority as being factor favouring longer notice periods."" He then, at p.50 continues: ""I agree with LacourciSre J.A. that MacPherson J. erred in collapsing the 'character of employment' factor into the re‑employability factor. It may be that it cannot be said dogmatically that senior employees take longer to find new employment than do junior ones. However, if the policy of the law which makes responsibility of employment factor favouring longer notices is one that requires reconsideration, do not think, having regard to the record in this case and the positions taken by the parties before MacPherson, J., that this is an appropriate case in which to embark on such reconsideration."" Similarly, nothing has been here provided to justify departure from the long accepted consideration of the nature of the employment function as one of the factors to be considered in assessing the appropriate reasonable period of notice. Although the data referred to by MacPherson, J. suggests, and it really is indisputable, that the work force is increasingly composed of persons with university degrees, this does not mean that dismissed persons with senior managerial or supervisory responsibilities will be more likely to find alternative employment than persons without such responsibilities. The data referred to by Justice MacPherson simply confirms that the work force is now composed of greater percentage of university graduates than formerly. The likelihood of re‑employment remains factor of the availability of suitable positions in the marketplace. Until, however, there are as many managerial or supervisory positions as there are non‑managerial and non‑supervisory positions, the fact remains there will be more of an opportunity for an individual seeking non‑managerial or non‑supervisory position to obtain new or replacement employment. It may well be, and certainly is irrelevant to the issues to be decided in this case, that persons with university degrees will accept non‑managerial or non‑supervisory positions. Managerial and supervisory functions are part of the characteristics of employment and the extent to which they are or are not present, remain one of the factors to be considered in determining the appropriate period of notice pursuant to the enumeration of factors in Bardal. The plaintiff, in dismissing the managerial/clerical distinction, cites number of Nova Scotia decisions involving periods of notice of between 15 and 24 months. The defendant, in response, notes that in each case the dismissed employee occupied position of management or of supervisory responsibility and this was one of the factors considered by each court in assessing the appropriate or reasonable period of notice to which the dismissed or constructively dismissed employee was entitled. Counsel for the defendant also refers to the decision of Justice Holland in Kiffe v. Allstate Insurance Company of Canada (1986), O.J. 661 where, after finding the termination was for just cause, he provisionally assessed the period of notice for 52 year old salesperson who had worked for Allstate for period of almost 20 years, apparently performing functions essentially similar to that of the plaintiff, at 12 months. The plaintiff cites the decision of the Nova Scotia Supreme Court in Connor v. Canada Life Insurance Company (1991), 108 N.S.R. (2d) 361 where 53 year old plaintiff was dismissed from clerk‑related duties after 12 years of employment. The period of notice deemed appropriate was 10 months reduced by one month, on the principle of ""near cause"". Considering the nature of Mr. Grant's position, and although not involving managerial or supervisory functions, it is clear, as reflected by the level of his income, that he had been successful in developing substantial clientele, and thereby promoting the interests of the defendant as well as of himself. To recognize the nature of his employment is not to dismiss the contribution by Mr. Grant, during his period of service with Allstate, nor to minimize the degree to which the defendant has benefitted by his efforts. In assessing the appropriate period of notice, taking into account the principles cited by Chief Justice McRuer in Bardal, as well as the factors listed by Justice Gruchy in Squires, there are two additional factors that are relevant in the particular circumstances of this case. Firstly, the court is aware, through the evidence and the positions of the parties, that Mr. Grant received salary continuation for period of 14 months following his termination in November of 1991. Secondly, and despite the volume of authorities as well as learned articles on the subject, the determination of reasonable notice is not ""precise science"" such as to necessarily result in one period being reasonable and another, approximate but different period, being therefore unreasonable. Absent information, as to what has already been provided by Allstate to the plaintiff, the court would then have chosen one of these as the period to which the plaintiff was entitled. In the circumstances of Mr. Grant, is the defendant entitled to ask whether the 14 months of salary continuation was unreasonable and, receiving negative response, to seek the dismissal of the plaintiffs claim; or, is the plaintiff entitled to ask whether some period in excess of 14 months notice was reasonable, in all the circumstances, and upon receipt of an affirmative response, to recover damages calculated on the difference between the amount already paid and the amount awarded. potential additional and significant effect of how the question is stated and answered is the matter of costs and the application of the general principle that ""costs shall follow the event"". In this regard, it is necessary to consider the concept of ""ballpark justice"" or ""fairness"" and its possible application in the present circumstance. In Employment Law Manual, by John R. Sprout, (Carswell, 1992), Volume at p. 6‑22.1, the author observes: ""The concept first appeared in the following trilogy of cases in the Supreme Court of Ontario: Perry v. Gulf Minerals Can. Ltd. (1985), 30 A.C.W.S. (2d) 524 (Ont. H.C.); Rivers v. Gulf Can. Ltd. (1986), 13 C.C.E.L. 131 (Ont. H.C.); and McKee v. NCR Can. Ltd. (1986), 10 C.C.E.L. 128 (Ont. H.C.). The classic statement on ballpark justice was made by Mr. Justice R.E. Holland in Perry, as follows: It appears to me that in judging the severance arrangements should not arbitrarily fix what consider to be proper period of notice based on the facts of the case and the authorities, but rather should approach the matter first on the basis of whether or not the employer's severance arrangements were fair. If the period of notice under the severance arrangements was reasonable, then do not think that should interfere or tinker with the result. If the period notice was unreasonable, that is different matter and the Court should interfere. (at p.6 of the judgment). This doctrine was subsequently applied in McKee by Mr. Justice Reid of the Ontario Supreme Court. In that case, the employee had been offered 12 months' notice upon termination by the employer. In all the facts of the case, Reid J. found that he might have granted 12 to 15 months' notice. Applying the ballpark justice doctrine, however, Mr. Justice Reid found that the employer's offer of 12 months' notice was within the 'reasonable range' and awarded the employee 12 months' notice."" Justice Rutherford of the Ontario General Division in McCrea v. Conference Board of Canada (1993), 45 C.C.E.L. 29 rejected the concept of ""ballpark justice"" or ""reasonable range"" on the basis it afforded ""curial deference"" to the position of the employer, an approach normally reserved only for judicial review of decisions taken ""in judicial or quasi‑judicial setting where reasonable result is the duty of the authority making the assessment."" He continues by observing there is no such mandate on an employer in providing notice, or compensation in lieu thereof, to dismissed employee. He then, at pp. 35 or 36, says: "". Moreover, do not see any basis for proceeding in fashion which has the result of placing the dismissed employee in position of having an onus to show that the notice given was beyond the bounds of what anyone considers reasonable. It is all very well to say that it is consonant with the requirement that reasonable notice be given, that the notice or payment in lieu thereof must therefore be assessed to determine if it was reasonable. But should that really lead to anything other than the traditional approach in which what is reasonable is determined in court as matter of fact, or mixed fact and law? ... We all know that reasonable people may differ on matters but that, in my view, should not deprive the plaintiff in wrongful dismissal action from seeking the uncompromised judgment of the court."" The approach was similarly rejected by Justice Ferguson in Garvin v. Rockwell International of Canada Ltd. (1993), 50 C.C.E.L. 295 (Ont. Gen. Div.), where, at pp. 302‑304, he states: ""In my view it is not appropriate to apply threshold or ballpark approach. In my view the trial court should not express its view by reference to range but should make specific determination as to what it thinks is the reasonable period of notice in the circumstances and then award judgment if the employee received any less."" On the other hand, as noted in the Employment Law Manual, supra, the principle has received some favourable consideration in other jurisdictions, and in particular, by the New Brunswick Queen's Bench in Locke v. Avco Financial Services Can. Ltd. (1987) 85 N.B.R. (2d) 93, 217 A.P.R. 93 (Q.B.), where the court, at p. 99, stated: ""There is logic to this approach. Settlements should be encouraged and as well employers should be encouraged under these circumstances to make reasonable proposals rather than treating the matter in totally adversary fashion."" The Court, however, at pp. 99‑100, concluded that: ""In the present circumstances the defendant's proposal was for nine months firm and the possibility of further six months on month to month basis. In addition there was disagreement between the parties with respect to pension contributions and bonus payments. As shall detail shortly it is my finding that the plaintiff was entitled to recognition of these compensations. In the appropriate case one might well be inclined to follow the rationale referred to. On the facts in the present case do not feel that the proposal put forward by the defendant was such as to modify my consideration of period of 18 months notice as being reasonable."" On the other hand, this doctrine or principle was rejected by the Alberta Queen's Bench in Heinz v. Cana Construction Co. (1987), 1987 CanLII 3203 (AB QB), 55 Alta. L.R. (2d) 382, 82 A.R. 197 (Q.B.)., where Justice Stratten also interpreted the principle as one of ""curial deference"" and found it inappropriate in determining the appropriate or reasonable period of notice to be afforded to dismissed employee. He concurred with the comments of O'Driscoll J. in Grant v. MacMillan Bloedel Indust. Ltd. (1982), 83 C.L.L.C. 12007 at 12012 (Ont. H.C.), that such ""curial deference"" is not applicable to the employer since they are not an impartial nor an independent third party judicial arbitrator. The British Columbia Supreme Court in Michalchuk v. B.C. Hydro Power Authority (1987), 1987 CanLII 4025 (ON CJ), A.C.W.S. (3d) 418 (B.C.S.C.), stated: ""While respectfully prefer not to adopt the approach mentioned by Holland and Galligan, J.J. as an invariable rule, agree that the selection of notice period is not precise exercise and the Plaintiff has not satisfied me that 15 months is not reasonable compensation in lieu of notice in this case. (at p. of the judgment)."" As noted by the authors of the Employment Law Manual, at p. 6‑25, although it is unclear whether the court in fact applied the ballpark justice doctrine, it awarded the period of notice offered by the employer on the basis the offer was reasonable. In the present circumstances, it would be both naive and arbitrary, on the part of the court, to suggest the selection of either a 14 or 15 months notice period, as a reasonable period of notice, was being made in the absence of knowledge of what has already been provided to the plaintiff by Allstate. The selection of reasonable period cannot be made in vacuum of the information communicated during the course of the trial. In weighing the reasonableness of the employer's conduct, we are, with deference to the authorities to the contrary, not affording to the employer ""curial deference"". The plaintiff, in paragraph of the Statement of Claim, alleges ""... that he was wrongfully dismissed without any cause whatsoever, and also without sufficient notice or severance pay."" Equating the phrase ""sufficient notice"" with the phrase ""reasonable notice"", the issue raised by the plaintiff is whether the notice provided by the defendant was ""sufficient notice"" or ""reasonable notice"" in the circumstances. For the reasons already noted, it cannot be said the salary continuation for 14 months was not ""sufficient notice"" or ""reasonable notice"". The statement by the British Columbia Supreme Court in Michalchuk, supra, that the selection of notice period is not precise exercise, is in accordance with the views already stated herein. In the circumstances, the suggestion outlined by the authors of the Employment Law Manual, supra, at p. 6‑25, provides realistic and reasonable approach, in weighing the respective positions of the parties, in coming to court: ""It is respectfully submitted that if the ballpark justice principle is to be applied it should be limited to those cases in which the Judge is truly undecided where the period of notice should fall within certain, and relatively narrow, range. In such cases it would be consistent with the general principles of contract law to look at the conduct of the parties. If either of the contracting parties has made an offer within the range, then this element of conduct, although perhaps deserving of only slight weight, may be enough to tip the judicial scale in favour of finding that the offered notice corresponds with reasonable notice."" In so limiting the doctrine, the authors concur in the comments of Justice O'Driscoll in Grant v. MacMillan Bloedel Indust. Ltd., supra, that to afford broader scope, would be to grant the position of the employer degree of ""curial deference"" to which only judicial or quasi‑judicial body is now entitled. We also agree it is only to judicial or quasi‑judicial bodies that ""curial deference"" should be afforded. However, the issue, in claim for inadequate or insufficient notice, is founded on an allegation that what was provided by the employer was neither ""sufficient"" nor ""reasonable"" in the circumstances. The question, logically, is whether what was afforded was in fact ""sufficient"" or ""reasonable"" having regard to all the circumstances, including the guiding principles set out in Bardal and the factors amplified on by Justice Gruchy in Squires. If, in fact, what the claimant received was ""sufficient"" or ""reasonable"", then it follows the dismissed employee was afforded the period of notice to which he was entitled under law. If the employee did not receive ""sufficient"" or ""reasonable"" notice, then he is entitled to an order providing for compensation on this failure. The decision does not grant the employer ""curial deference"" any more than it does the position of any party in legal proceeding where the ""reasonableness"" of their conduct is brought into question. The function of the court is to imply, in contract of indefinite employment, provision, incorporating period of notice, applicable in the circumstance of subsequent dismissal without just cause. This proceeding, by the plaintiff, is founded on the basis the period provided by the employer was not reasonable, in the context of this implied term of the employment contract. The employer provided 14 months salary continuation. The question is, whether, in the circumstances, it was ""reasonable"". In the absence of fixed notice periods, either by statute, by agreement or otherwise, the determination of this question rests on the court's assessment of what is ""reasonable"". In considering what is ""reasonable"", it is, we suggest folly, amounting to naivete, to suggest the court will not make such determination in the context of what has actually occurred and, therefore, by assessing whether what the employer has provided constitutes the provision of ""reasonable notice"". Where an employee has been dismissed, without any notice, the court hears the parties, and receives their submissions, and decides what is ""reasonable notice"" in the circumstances. Where period of notice has already been provided, the question is whether it was ""reasonable"", in which case, the employer has met the implied term of the contract, or whether it was unreasonable, and the employer has thereby violated the implied term of the contract of employment. Here, as already noted, a period of 14 months was ""reasonable"" though, as also noted, a period of 15 months would not have been ""unreasonable"". The plaintiff has therefore not established he has not received ""reasonable notice"" and therefore the claim for damages against the employer is dismissed. Costs The defendant seeks cost on the basis it has been successful, citing Orkin, The Law of Costs, (Second Edition 1994) at p. 2‑23: “The principal that successful party is entitled to his or her costs is of long standing and should not be departed from except for very good reasons."" The plaintiff, although acknowledging there is presumption in favour of costs following the cause, suggests there are exceptions, citing Orkin, The Law of Costs, (Second Edition, 1995) at pp. 2‑37 and 2‑38: ""An action or motion may be disposed of without costs when the question involved is new one, nor previously decided by the courts on the theory that there is public benefit in having the court give decision; or where it involves the interpretation of new or ambiguous statute; or new or uncertain or unsettled point of practice; or where there were no previous authoritative rulings by courts: or decided cases on point; ... The Principle that costs are usually to follow the event is recognized in C.P.R. 63.03(1): Unless the court otherwise orders, the costs of proceeding, or of any issue of fact or law therein, shall follow the event."" The Court of Appeal in Bent v. N.S. Farm Loan Board (1978), 30 N.S.R. (2d) 552 after acknowledging that C.P.R. 63.03 provides that costs of proceeding shall follow the event, unless the Court otherwise orders, added ""... costs are always in the discretion of the Court."" Justice Hart, on behalf of the Court, continued by restating the principle that ""the discretion of the Court must, however, be exercised judicially."" He then refers to the statement by Lord Goddard in Lewis v. Haverfordwest Rural District Council [1953] ALL E.R. 1599, at 1600: ""... it is the settled practice of the court that in the absence of special circumstances successful litigant should receive his costs."" As to the exercise of discretion by Court in denying costs to successful party on the basis the action or application involved new question, not previously decided by the Courts, defendants' counsel refers to the decision of Roscoe, J., as she then was, in Turner‑Lienaux v. The Attorney General of Nova Scotia (1992), 1992 CanLII 4534 (NS SC), 115 N.S.R. (2d) 200 where the unsuccessful plaintiff argued against the awarding of costs because, inter alia, the matter involved novel question of law of interest to all management levels employees in the civil service. Justice Roscoe, at p. 214 stated: ""Although the present case was novel, am not satisfied that it was of significant public importance and interest. have no information before me as to how many Civil Service competitions are held for management employees annually, or for that matter, how many unsuccessful candidates in those competitions may have been effected by the outcome of this particular case."" Counsel continues by suggesting the reasons of Justice Roscoe indicate ""novelty alone is not necessarily sufficient to justify denial of costs but rather there must be some overriding public importance or interest for which there is no evidence in this case."" However, examples of where successful parties have been awarded costs include, in addition to where the ""matter is one of great civic interest and importance"", (Chater v. Dartmouth (1975), 20 N.S.R. (2d) 34) (T.D.), cases where the pleadings did not disclose the eventual successful ground of defence (Laffin v. Hamel (1976), 23 N.S.R. (2d) 89) (T.D.) where the successful party had not specifically plead the defence and the other party was led to believe another question was the primary issue (Munroe v. Clarke (1977), 23 N.S.R. (2d) 652) (T.D.), and where there was laches by successful plaintiff in case involving real property (McCormack Estates v. Feelan Estate (1986), 59 Nfld. P.E.I. R. 215 (P.E.I. S.C.). The listing of exceptions to the usual rule of ""costs following the event or cause"" is far from exhaustive. After considering an issue concerning ownership of roadway access to three lakes, Justice Cavarzan of the Ontario General Division, in Beaumaris Fishing Club v. Corp. of the Township of Gravenhurst (1991), 1991 CanLII 7345 (ON SC), O.R. (3d) 774, in denying costs to the successful party, at p. 785 said: The real issue raised in these proceedings was, if not entirely novel, one in which the courts appear not to have ruled authoritatively. In the circumstances, and notwithstanding that the applicant has been successful in part, it is my view that this is not an appropriate case for an award of costs."" Also, in Hounsome Estates v. John Deere Ltd. (1991), 1991 CanLII 7069 (ON SC), O.R. (3d) 89, Justice Rosenburg, at p. 97‑98, in denying costs to the successful applicant trustee, said: ""... Under the circumstances and in view of the uniqueness of the situation, there being no previously decided cases on the precise point (as acknowledged by both counsel),there will be no order as to costs."" Plaintiff's counsel suggests the concept of ""ball park"" justice is such an exception, being notion for which there has been no previously decided authoritative rulings by the Court. However, and as already reviewed, we have declined to apply the principle or notion of ""ball park justice"", but rather to adopt the approach suggested by the authors of Sproat, Employment Law, supra. In doing so, we recognize that absent knowledge of the salary continuation the plaintiff has already received, and in view of the imprecise nature of the determination of reasonable notice, the award of reasonable notice could have as likely been for fifteen months as for fourteen months. Having been advised, since release of oral reasons, that the defendant, prior to the conclusion of trial, had offered to consent to the discontinuance of these proceedings, by the plaintiff, without costs and in view of lowest suggested period of notice, by the plaintiff during final argument, of eighteen to twenty months, we award the defendant one half of its costs, together with all of its disbursements, calculated on Scale Three. For purposes of calculating costs the amount in issue is the difference between the fourteen months already paid to the plaintiff and the proposal by his counsel, for the court to award at the equivalent of at least eighteen months salary, together with the one month's arrears of salary argued by the plaintiff. The amount in issue is therefore the equivalent of five months salary. J. Halifax, Nova Scotia February 16, 1996","The plaintiff was terminated as a sales agent after being employed by the defendant for 26 years. As part of the termination package he received 14 months salary continuation. The plaintiff claimed that he had not received 'reasonable notice' and sought damages. He also claimed that he was owed arrears of salary at the time of his dismissal. The defendant argued that the plaintiff had failed to mitigate his damages. Dismissing the action, that the appropriate period of notice was in the range of 14 to 15 months. Since the calculation of a 'reasonable period of notice' is not an exact exercise, either period could have been justified. Thus, it could not be said that the 14 month period given by the defendant was unreasonable. Furthermore, the plaintiff was not owed any arrears. Finally, in view of a non-competition clause in the contract of employment, it was not unreasonable for the plaintiff not to have pursued employment with other insurance companies any more than he had.",b_1996canlii5628.txt
165,"SUPREME COURT OF NOVA SCOTIA Citation: R. v. Calder, 2010 NSSC 146 Date: 20100414 Docket: CRH 316393 Registry: Halifax Between: Her Majesty the Queen v. Anne Calder LIBRARY HEADING Judge: The Honourable Justice Peter Bryson Heard: April 13, 2010, in Halifax, Nova Scotia (Charter Application) Subject: Civil Rights. Canadian Charter of Rights and Freedoms, s. and 24(1). Right to make full answer and defence. Exclusion of evidence. Mistrial. Summary: Crown made late disclosure of important evidence two days into trial. Late disclosure was inadvertent. Accused claimed her right to make “full answer and defence” was compromised, denying her right to fundamental justice under s. of Charter. Accused applied for exclusion of evidence or mistrial under s. 24(1) of Charter. Issue: Should evidence be excluded or mistrial ordered? Result: Mistrial ordered. Owing to pre-trial steps taken by accused, including not re-electing trial by judge alone until Crown disclosure was thought to be complete, accused had been prejudiced. Not appropriate to exclude highly relevant evidence. This would frustrate truth-seeking function of court when Crown non-disclosure was inadvertent. Mistrial would allow accused to return to “pre-prejudice’ position, while preserving the interest of Crown and public in having all relevant evidence presented at trial. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: R. v. Calder, 2010 NSSC 146 Date: 20100414 Docket: CRH 316393 Registry: Halifax Between: Her Majesty the Queen v. Anne Calder DECISION ON CHARTER APPLICATION Restriction on Publication: It is ordered that there shall be ban on publication of any reference to “new evidence” mentioned by counsel in submissions in court on April 13, 2010. The ban will also apply to paragraph [5] of this decision. Judge: The Honourable Justice Peter Bryson Heard: April 13, 2010, in Halifax, Nova Scotia Decision: April 14, 2010 (Orally) Written Release: April 19, 2010 Counsel: Paul Adams, for the Crown Craig Garson, Q.C., for the Defendant By the Court: [1] Anne Calder brings an application for relief under s. 24(1) of the Charter alleging that the Crown’s intention to lead newly discovered evidence in these proceedings compromises her s. and 11(d) Charter rights. In essence, she claims that her ability to make “full answer and defence” to the charges against her will be impaired if this new evidence is adduced in this trial against her. She seeks exclusion of this evidence or mistrial, with corollary relief. [2] Ms. Calder faces three count Indictment for trafficking and possession for the purpose of trafficking contrary to the provisions of ss. 5(1) and (2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. [3] The new evidence first came to Crown counsel’s attention during a lunch break last week, following the hearing of a voir dire and a day and one-half of evidence in the trial proper. Defence counsel was immediately notified and disclosure was provided to defence counsel within twenty-four hours of the Crown learning of the new evidence. New Evidence [4] To place the significance of the new evidence in context, it is necessary to say something about the posture adopted by Ms. Calder in her defence. It is clear that she has taken the position that she had no knowledge of the contents of the prisoner package seized following the search of Thomas Izzard and of the other evidence of drugs seized from her home pursuant to search warrant executed soon thereafter. To that end, through her counsel, she negotiated number of matters with the Crown. At very early stage, she negotiated an agreement that would preserve her right to re-elect from trial by judge and jury to trial by judge alone on appropriate notice to the Crown. In fact, this re-election did not occur until March 9, approximately month before the trial began and at time when Crown disclosure was complete. More recently, Ms. Calder negotiated an agreement with the Crown that she would not contest the admissibility of video taped statement that she gave to police on the night of July 14, 2009 on the Crown’s undertaking to tender that evidence in the Crown’s case. She also agreed that if motion to dismiss at the conclusion of the Crown’s case was unsuccessful, she would testify in her own defence. The Crown rightly points out that this undertaking was unenforceable. Nevertheless it was made in the context of the Crown’s agreement to lead the video taped statement. During that statement, Ms. Calder was questioned about her knowledge of the drugs found in this case. She was plainly putting her knowledge in issue. [5] [Removed publication ban] [6] It is immediately obvious that the new evidence can be used by the Crown to impeach Ms. Calder’s testimony and contradict things she had told to Sergeant Kelly in her video taped statement. It is clear that the evidence goes to the mens rea element of the offences alleged against Ms. Calder and goes directly to the issue of her credibility. [7] The Crown and the defence both agree about the potential importance of the evidence to the issues at trial and what use the Crown would make of this new evidence. [8] Ms. Calder argues that the Crown’s intention to adduce the newly discovered evidence has adversely affected her approach to the trial. She made important tactical decisions on the strength of disclosure received from the Crown relating to such things as her election to trial, agreements with respect to the video taped evidence and her undertaking to give evidence in the event that charges against her were not dismissed on a defence motion following the close of the Crown’s case. Ms. Calder says she gave up her right to contest the admissibility of the video taped evidence, her right not to call defence evidence and her right to remain silent. [9] It is clear from R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411, R. v. Bjelland 2009 SCC 38 (CanLII), [2009] S.C.R. 651 and other Supreme Court and lower court decisions that the burden rests with Ms. Calder to prove on balance of probabilities that Charter breach has occurred. It is not enough to show non-disclosure; rather actual prejudice must also be demonstrated. According to the Supreme Court of Canada in Bjelland, 26, Ms. Calder must show how the late disclosure evidence would have affected the decisions that she made. If she is successful, it is then for the court to fashion remedy that preserves and balances the interests of both the accused and the Crown. [10] There is no dispute between the parties on the general obligations of disclosure imposed on the Crown beginning with the Supreme Court’s decision in Stinchcombe, 1991 CanLII 45 (SCC), [1991] S.C.R. 326, which has been followed and elaborated on ever since it was decided in 1991. Importantly, in Stinchcombe, the Supreme Court recognized that initial disclosure by the Crown should occur before the accused is called upon to elect the mode of trial or to plead. The Supreme Court recognized in Stinchcombe that these rights were crucial steps the accused must take that may affect her rights in fundamental ways. [11] In R. v. Dixon, 1998 CanLII 805 (SCC), [1998] S.C.R. 244, Justice Cory, quoting the Supreme Court in R. v. Egger, 1993 CanLII 98 (SCC), [1993] S.C.R. 451, pointed out that Crown disclosure can affect such questions as how the accused meets the Crown’s case, advances defence or otherwise makes decision that may affect the conduct of the defence i.e., whether to call evidence. In the circumstances of this case, Ms. Calder has satisfied me that last week’s late disclosure to her did adversely affect her owing to decisions that she had already made regarding her defence and trial strategy. [12] The Crown has argued strenuously that the information which it has now recently disclosed was already in the possession of Ms. Calder because she participated in the discussions with Corporal Vail. The Crown cites the Nova Scotia Court of Appeal in R. v. C. S. P. (1995), 1995 CanLII 7503 (NS CA), 141 N.S.R. (2d) 207 and particularly refers the court to 17. In response, Ms. Calder argues that the key is not her general state of knowledge but her knowledge of the evidence the Crown intends to adduce her against her. In C. S. P. the information brought to the accused’s attention was information that enhanced the accused’s ability to challenge the complainant’s credibility, although it turned out that the accused already had the information. This case is quite different where the evidence to be adduced is highly prejudicial in light of the pre-trial agreements and decisions made by Ms. Calder. Moreover, as Ms. Calder points out, the fact that the accused may have been previously aware of evidence that the Crown suddenly wishes to adduce, cannot be the test. By way of example, the Alberta Court of Appeal did not take that view in R. v. Antinello, 1995 ABCA 117 (CanLII), [1995] 165 A.R. 122, where new evidence regarding an inculpatory statement by the accused was brought forward. Clearly the accused in that case would have known of his own inculpatory statement. The key was not the state of his knowledge, but his knowledge of the evidence against him. [13] I am satisfied on a balance of probabilities that Ms. Calder has succeeded in proving a breach of her right to make full answer and defence. hasten to add, however, that don’t consider the breach by the Crown to have been deliberate. The information which was only disclosed last week was in the possession of the police and cannot treat Corporal Vail as somehow unconnected with the Crown, difficult though it may have been to “connect the dots.” do accept that Crown counsel had no prior knowledge of this evidence and that until last week, neither did the immediate investigative team. Counsel acted quickly and appropriately when he learned of this new evidence. Nevertheless, Charter breach is made out on the evidence. Prejudice [14] Ms. Calder has been prejudiced in a number of ways by this new evidence: (1) First, she has pursued strategy that placed in issue her knowledge about the contents of the drug packages. (2) Further to that strategy she agreed not to contest the admissibility of the video taped statement that she gave to police. (3) Also further to that strategy, she agreed to testify if her motion to dismiss at the end of the Crown’s case were unsuccessful. (4) At an early stage, she entered into specific agreement regarding re-election of her method of trial, which preserved that re-election until she had full Crown disclosure. [15] It is obvious that not every late disclosure will prejudice mens rea defence. But in this case, Ms. Calder took positive steps to place her knowledge and intent at issue. She agreed to have the video taped statement go in without contest. During that video, knowledge and intent are canvassed by Sergeant Kelly, who even raises the issue of willful blindness. [16] The Crown argues that this new evidence does not go to voluntariness. And one might argue that Ms. Calder was not giving up much because the video taped statement may well have been ruled admissible anyway. But this is not the point. The point is that Ms. Calder gave up the right to challenge its admissibility, based on what the defence then knew of the Crown’s case. [17] Having found that Ms. Calder has been prejudiced, the court must decide on an appropriate remedy. In R. v. Bjelland, supra, the Supreme Court of Canada emphasized the need to fashion remedy appropriate to the prejudice suffered by an accused from late disclosure. However, in crafting this remedy, the court must not simply have regard to the rights of the accused but also to the rights of the Crown and the public generally. The accused is entitled to fair process. But the trial must be fair from the perspective of the Crown and society more broadly. Here it is useful to refer to the words of Justice McLachlin, (as she then was) cited in Bjelland from R. v. Harrer, 1995 CanLII 70 (SCC), [1995] S.C.R. 562 at 45: At base, fair trial is trial that appears fair, both from the perspective of the accused and the perspective of the community. fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis added.] [18] In Bjelland the Court was considering whether or not trial judge’s decision to exclude evidence for late disclosure was an appropriate remedy. The Court held that trial judge should only exclude evidence for late disclosure in exceptional cases where late disclosure renders the trial process unfair and this unfairness cannot be corrected through an adjournment and disclosure order or where exclusion is necessary to maintain the integrity of the justice system itself. The exclusion of evidence has an impact on trial fairness from society’s point of view because it impairs the truth seeking function of the court. [19] It can be argued that some of the agreements Ms. Calder made and the choices to which she committed can still be retrieved. The court could relieve her of previous agreements with respect to admissibility of the video taped statement and the qualified commitment to testify in her own defence, which is probably unenforceable anyway. That would not address her choice of mode of trial which as Stinchcombe points out, is an important choice that may affect her rights in fundamental way. [20] Having considered the matter carefully, I am not satisfied that I can cure the prejudice of late disclosure to Ms. Calder by an adjournment or other order at this late stage. In particular, the one thing which cannot retrieve for Ms. Calder is her right to re-elect, which was concern for her from the beginning as is apparent from the correspondence between counsel which has been placed before the court. [21] In my view, Ms. Calder’s brief correctly summarizes her evidence with respect to her decision to re-elect. In this respect, refer to excerpts from pages and as follows: Based on the disclosure provided and the disclosure anticipated to be forthcoming Ms. Calder made significant decisions with respect to the conduct of her defence. Specifically, based on the disclosure provided and the disclosure anticipated to be forthcoming, Ms. Calder provided instructions to elect trial by Judge and jury and to waive her right to Preliminary Inquiry. Of significance is the safeguard which defence counsel negotiated with the Crown prior to her first appearance on September 2nd. Specifically, the Crown agreed in writing that should Ms. Calder wish to re-elect her mode of trial from Supreme Court Judge and jury to be tried by Supreme Court Judge alone the consent of the prosecutor to said re-election would be provided with the expectation the Crown would receive reasonable notice of such request prior to trial. Ms. Calder’s decision to give up her right to be tried by Judge and jury was significant decision following thorough review of all the evidence disclosed together with other factors. Ms. Calder’s formal re-election took place before Your Lordship on March 9th. [22] Notably in Bjelland, the Court criticized the trial judge for not offering the accused right of re-election but of course that motion was heard by the trial judge before the trial had begun and before evidence had been called. That option is no longer available to me. [23] On the other hand, I am satisfied that proceeding with the trial without this new evidence would be unfair to the Crown and would not be in society’s interests generally because cases should be decided on all relevant and admissible evidence. The “truth seeking” function of the court would be compromised if I were to grant an order excluding evidence which the parties clearly recognize as important. In my view, this new evidence should be heard, but not by this court and not in this trial. Accordingly, and with much reluctance I have come to the conclusion that a mistrial should be ordered. [24] The court is always reluctant to order mistrial except in the clearest of cases and when the impugned conduct undermines trial fairness or the decision making process (R. v. R. (1994) 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168 Ont. C.A.; R. v. Paterson, (1998), 1998 CanLII 14969 (BC CA), 122 C.C.C. (3d) 254 B.C.C.A. [25] On the other hand, there is compelling authority that mistrial is the appropriate remedy for late disclosure which has affected an accused’s pre-trial rights: (R. v. T. (L.A.) 1993 O.J. No. 1650 (Ont. C.A.)). R. v. T. the Court of Appeal states in the 4th last paragraph: It is apparent from the court’s statement in Stinchcombe, supra, at p. 14, previously quoted, that the disclosure of evidence by the Crown can affect the defence’s election with respect to mode of trial or to the plea. Defence counsel argued that the late disclosure by the Crown may have affected the accused’s choice of forum in his decision to testify. While this argument would not necessarily succeed in every case, would give effect to it in this case having regard, among other things, to the clear statement of defence counsel on the record. The late disclosure may have also affected the ability of defence counsel to attack the complainant’s credibility which was critical in this case. [26] The Crown expresses well founded concern that late disclosure could result in re-elections on regular basis. If this were to happen before trial, it should not present significant problem because the accused can be given the opportunity of re-electing at that stage. If the accused is sincere about re-electing, she has her remedy. If not, the trial can proceed as scheduled. On the other hand, if late disclosure happens after the trial begins, the accused would still need to lead evidence that the right to re-elect was one that was preserved and was important in the context of full disclosure. In this case, Ms. Calder has satisfied me that the right of re-election was important to her and was preserved and was not exercised until full Crown disclosure had been concluded. [27] With respect to the corollary relief sought by Ms. Calder – I agree that she should be released from undertakings and agreements reached to date and that she should have a right to re-elect. However, am not satisfied that she should be entitled to preliminary inquiry. The preliminary inquiry rights were waived at an early stage when disclosure was to her knowledge by no means complete. recognize that preliminary inquiries do have the incidental purpose of providing some pre-trial discovery to the accused. But primarily they are for the purpose of determining whether an accused should be committed for trial. Moreover, there is no suggestion that Crown disclosure is incomplete. Accordingly, would not order that Ms. Calder now be entitled to preliminary inquiry. [28] There has been a mistrial. Ms. Calder is relieved from her previous agreements and undertakings with the Crown regarding trial process. She is entitled to re-elect. Addendum At the conclusion of the decision, Ms. Calder moved for continuation of the publication ban on the “newly discovered evidence” mentioned in court yesterday and in the decision today. The ban is continued and will also apply to paragraph [5] of this decision.","The accused, who faced three counts of trafficking and possession for the purposes of trafficking, had negotiated agreements with the Crown that preserved her right to re-elect from a trial by judge and jury to a trial by judge alone and provided that she would not contest the admissibility of a video statement she had given to the police and, if a motion to dismiss at the conclusion of the Crown's case was unsuccessful, she would testify in her own defence. Following a voir dire and one-and-a-half days of trial, new evidence (which could be used to impeach the accused's credibility and contradict things she had told the police in the video statement) came to the Crown's attention. The accused argued that the admission of this new evidence would adversely affect her approach to the trial as important tactical decisions had been made on the strength of the Crown's previous disclosure. Mistrial declared; the accused is released from the undertakings and agreements made to date and has the right to re-elect her mode of trial. The late disclosure breached the accused's ability to make full answer and defence owing to the decisions she had already made regarding her defence and trial strategy and prejudiced her in a number of ways, which prejudice could not be cured by an adjournment or other order at this late stage. However, to proceed with the trial without the new evidence would be unfair to the Crown and compromise the court's 'truth seeking' function.",7_2010nssc146.txt
166,"E.J. GUNN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 219 Date: 2011 06 02 Docket: Q.B.G. No. 1500/2010 Judicial Centre: Saskatoon BETWEEN: DENNIS TOFIN, and SPADINA CONDOMINIUM CORPORATION, Respondent Corporation and TONY BORYSKI, MAURICE DUVAL, BENJAMIN GOLDSTEIN, ELAINE MALKIN, TOM McCLOCKLIN, JR., TOM McCLOCKLIN, SR., SANDY REES, Respondent Directors and REMBRANDT HOLDINGS LTD., and COMMERCE HOLDINGS LIMITED, Respondent Commercial Owners Counsel: Gary A. Meschishnick, Q.C. for the applicant M. Kim Anderson for the respondent corporation Naheed Bardai for the respondent commercial owners DECISION DOVELL J. June 2, 2011 [1] The applicant, Dennis Tofin (“Tofin”), a residential unit owner at Spadina Condominium Corporation (the “Condominium Corporation”), has brought this application against the Condominium Corporation, its board of directors (the “Board”) and the owners of three commercial units seeking relief pursuant to Rule 664 of The Queen’s Bench Rules. The applicant, in particular, is asking the Court for a declaration interpreting the bylaws of the Condominium Corporation with regard to the election of the members of the Board with a view to determining the voting rights of the commercial owners. [2] Preliminary objections were made pursuant to Rule 319 of The Queen’s Bench Rules by the Condominium Corporation and the commercial owners with regard to the content of the applicant’s affidavit material filed in support of his application. The preliminary decision of the Court clarifying what the Court would disregard within the affidavits filed by the applicant was provided to the parties prior to the argument of the merits of the application on May 18, 2011. [3] In addition to the vetted affidavit materials filed by the parties, an agreed statement of facts was filed by the parties. A. Background Facts [4] Spadina Condominium is 32‑unit condominium. The three largest units in the condominium are commercial units while the remaining twenty‑nine units are residential units. The unit factors of all of the owners were shown in Exhibit “A” to the agreed statement of facts. The commercial units are apportioned 4,431 unit factors of the total 10,000 unit factors in the condominium, and the residential units are apportioned 5,569 unit factors. [5] Accordingly, the commercial owners hold 44.31 percent of the total votes, and the residential unit owners hold 55.69 percent of the total votes. [6] The present commercial owners, Rembrandt Holdings Ltd. and Commerce Holdings Limited, purchased the commercial units at the condominium in approximately September 2006 from the applicant, Dennis Tofin. [7] All of the condominium units and common property are controlled, managed and administered by the Spadina Condominium Corporation, body corporate continued pursuant to the provisions of The Condominium Property Act, 1993, S.S. 1993, c. C‑26.1 (the “Act”). The bylaws of the Condominium Corporation, attached as Exhibit “B” to the agreed statement of facts, were unanimously passed on December 29, 1998, and registered in accordance with the Act on January 16, 1999. Pursuant to the provisions of s. 39 of the Act, the powers of the Condominium Corporation are to be exercised and the duties of the Condominium Corporation are to be performed by the Board. [8] At all material times, the Board has consisted of seven persons. Up to and including October 9, 2009, the Board consisted of Peter Dielschneider, Maurice Duval, Betty Orchard, Eleanor Williams, Tom McClocklin Jr., Tony Boryski and Dennis Tofin. [9] An issue arose with respect to the interpretation of Section 3.3 and Article of Bylaw No. governing the election of members of the Board. [10] The commercial owners’ interpretation of the bylaw was that: (a) The commercial owners were and are entitled to nominate up to three persons for election to the Board; (b) All owners, residential and commercial, are entitled to vote on all nominees to the Board; (c) All owners have agreed to cast their votes so as to elect the commercial owners’ nominees and, where the owners neglect or refuse to cast their votes in such manner, the commercial owners may vote separately as class to elect their nominees; and (d) There is no restriction in the bylaw limiting the right of the commercial owners to vote on positions to the Board. [11] The applicant’s interpretation of the bylaw was that the commercial owners were entitled to nominate up to three persons for election to the Board and to exercise their right to see them elected but were not entitled to vote on the election of the remaining four positions on the Board. [12] general meeting of the owners of the Condominium Corporation was to be held to elect new Board on October 9, 2009. In advance of the meeting, the commercial owners obtained legal opinion as to the interpretation of the voting provisions of the bylaws. That opinion of Naheed Bardai of MacPherson, Leslie Tyerman was attached as Exhibit “C” to the agreed statement of facts. The opinion of Naheed Bardai was provided to the Board in advance of the meeting as was the legal opinion of William J. Shaw of McDougall Gauley. The applicant, on the instructions of the Board, had obtained the legal opinion of William J. Shaw as to the interpretation of the voting provisions of the bylaws. The opinion of William J. Shaw was attached as Exhibit “D” to the agreed statement of facts. [13] During the meeting held on October 9, 2009, there was discussion as to the voting rights of the commercial owners. [14] The following individuals were nominated at the meeting: (a) Tony Boryski; (b) Maurice Duval; (c) Benjamin Goldstein; (d) Elaine Malkin; (e) Tom McClocklin Sr.; (f) Tom McClocklin Jr.; (g) Betty Orchard; (h) Sandy Rees (also referred to in affidavit material as “Reese”); and (i) Dennis Tofin. [15] As there were only seven positions on the Board, vote was required. The vote was carried out by way of polled vote, and each owner was allowed to vote their unit factors for each of the seven positions on the Board. The commercial owners did not use their special rights as set out in Sections 3.3(c) and 3.3(e) of Bylaw No. at the meeting. Nor did the commercial owners vote their unit factors as separate class to elect any nominees at the meeting. [16] The following individuals (the respondent directors) were elected to the Board as result of the vote: (a) Tony Boryski, resident owner; (b) Maurice Duval, resident owner; (c) Benjamin Goldstein, resident owner; (d) Elaine Malkin, resident owner; (e) Tom McClocklin Jr., commercial owner; (f) Tom McClocklin Sr., commercial owner; and (g) Sandy Rees, commercial owner representative. [17] The minutes of the October 9, 2009, meeting were attached as Exhibit “E” to the agreed statement of facts. [18] The majority of the Board are of the view that the proper interpretation of the provisions governing the election of directors was:(a) The commercial owners were and are entitled to nominate up to three persons for election to the Board;(b) All owners, residential and commercial, were entitled to vote on all nominees to the Board;(c) All owners have agreed to cast their votes so as to elect the commercial owners’ nominees and, where the owners neglect or refuse to cast their votes in such manner, the commercial owners may vote separately as a class to elect their nominees; and(d) There is no restriction in the bylaw limiting the right of the commercial owners to vote on positions to the Board. [19] In preparation for this application, the present chairman of the Board, Benjamin Goldstein, called meeting of the Board on April 27, 2011, at which time the chairman asked for the opinions of the board members respecting the interpretation of the bylaw and vote was taken with regard to the Board’s current interpretation of the bylaw. [20] vote was taken at the meeting of the Board, and resolution was passed by majority of to 1. None of the three commercial unit directors, Tom McClocklin Sr., Tom McClocklin Jr. or Sandy Rees, took part in the discussion or voted during the meeting. [21] By resolution, the Board of the Condominium Corporation determined that the following interpretation is, has been and continues to be the Board’s interpretation of the bylaws: That the Board of Directors hereby confirms that since October 9, 2009 it has been, and that it continues to be the opinion of the Board that the following is the proper interpretation of Section 3.3 of the Bylaws of the Corporation, where the Board is to consist, as it does now, of seven members: (a) The Commercial Owners are entitled to nominate up to persons for election to the Board; (b) All owners, residential and commercial, are entitled to vote on all nominees to the Board; (c) All owners have agreed to cast their votes so as to elect the Commercial Owners’ nominees and where the owners neglect or refuse to cast their votes in such manner, the Commercial Owners may vote separately as class to elect their nominees; and (d) There is no restriction in the Bylaw limiting the right of the Commercial Owners to vote on positions to the Board. B. Relevant sections of Bylaw No. of Spadina Condominium Corporation [22] The relevant sections of Bylaw No. are: ARTICLE THREE BOARD MEMBERS ... Section 3.3 Election and Term a) The unit owners may elect the board members to hold office for term expiring not later than the close of the third annual meeting of the unit owners following the election. It is not necessary that all board members elected at meeting of unit owners hold office for the same term. board member not elected for an expressly stated term ceases to hold office at the close of the first annual meeting of unit owners following his or her election. All board members retiring at any given election may stand for re‑election. b) If an election of board members is not held at the proper time, the incumbent board members shall continue in office until their successors are elected. c) Where the Board is to consist of three or four persons, the Commercial Owner may nominate one (and no more than one) nominee to the Board. Where the Board is to consist of five or six persons, the Commercial Owner may nominate up to (and no more than) two nominees to the Board. Where the Board consists of seven persons, the Commercial Owner may nominate up to (and no more than) three nominees to the Board. d) Where the terms of the Board members are staggered, such that not all of the positions on the Board are up for re‑election, section 3.3(c) shall be read subject to the provision that the Commercial Owner shall only [be] permitted to nominate such number of directors (if any) as will result in the representation set out in section 3.3(c). e) Subject to section 3.3(d), where the Commercial Owner has nominated someone to the Board pursuant to section 3.3(c), the unit owners shall cast their votes so as to elect such nominees to the Board. Where the unit owners neglect or refuse to so cast their votes, the Commercial Owner shall be entitled to vote separately as class to elect its nominee(s). ... ARTICLE SEVEN MEETINGS OF UNIT OWNERS ... Section 7.2 General Meetings a) All meetings of unit owners other than annual meetings shall be called general meetings. The board may, whenever it thinks fit, convene general meeting. b) The board, on the written request of owners or their designates entitled to vote who represent not less than 25% of the total unit factors for the units, shall convene general meeting no later than 45 days after the request is received by any member of the Board. ... Section 7.4 List of Unit Owners Entitled to Notice For every meeting of unit owners, the Corporation shall prepare list of unit owners, or first mortgagees and other persons entitled to vote at the meeting, showing the number of unit factors each such unit owner, first mortgagee, or such other person [is] entitled to vote. The unit owners, first mortgagees and other persons listed shall be those shown on the property register at the close of business on the day immediately preceding the day on which notice of the meeting is given. The list shall be available for examination by any unit owner during reasonable hours at the condominium premises. ... Section 7.7 Quorum quorum for the transaction of business at any meeting of unit owners shall be those persons representing majority of the unit factors held by those persons entitled to vote, present in person or by proxy, provided that at least 50% of the unit factors so represented must be unit factors held by Residential Owners, and 50% of the unit factors so represented must be unit factors held by the Commercial Owner. Section 7.8 Right to Vote Subject to the provisions of this paragraph, and of paragraph 7.9 as to the authorized representatives of any body corporate and paragraph 7.12 as to joint owners, at any meeting of unit owners in respect of which the Corporation has prepared the list referred to in paragraph 7.4, every person who is named in such list shall be entitled to vote the unit factors shown thereon opposite his or her name. In the absence of such list, every person shall be entitled to vote at the meeting who at the time is entered in the unit register as the owner, first mortgagee or other person entitled to vote with respect to one or more units. ... Section 7.14 Votes to Govern At any meeting of unit owners, every question shall, unless otherwise required by the Act or these bylaws, be determined by the majority of the votes cast on the question. In the case of an equality of votes, either upon show of hands or upon polled vote, the chairman of the meeting shall not be entitled to second or casting vote, and the motion shall be deemed to have been defeated. Section 7.15 Show of Hands Subject to the provisions of these bylaws, any question at meeting of unit owners shall be decided by show of hands unless polled vote on the question is required or demanded as set out below. Upon show of hands, every person who is present and entitled to vote (except as may be restricted by paragraphs 7.12 and 7.13), shall have one vote, regardless of the number of unit or unit factors he or she may own or represent. Whenever vote by show of hands has been taken, declaration by the chairman of the meeting that the vote upon the question has been carried by particular majority or not carried, and an entry to that effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the said question, and the result of the vote so taken shall be the decision of the unit owners upon the question. Section 7.16 Polled Votes On any question proposed for consideration at meeting of unit owners, and whether or not show of hands has already been taken, any unit owner, first mortgagee, proxyholder or other person entitled to vote at the meeting may require and demand polled vote. polled vote so required shall be taken in such manner as the chairman shall direct. request for polled vote may be withdrawn at any time prior to the taking of the polled vote. If polled vote is taken, each person present in person or by proxy and entitled to vote shall be entitled to the number of votes as corresponds to the unit factors for his unit or units, subject to the limitation as set forth in paragraphs 7.12 and 7.13. The result of the ballot so taken shall be the decision of the unit owners upon such question. [Emphasis added] C. Relevant provisions of The Condominium Property Act, 1993 [23] The relevant provisions of The Condominium Property Act, 1993, supra, are: 35(1) corporation is responsible for the enforcement of its bylaws and the control, management and administration of the units, and of the common property and common facilities. ... Board of Directors 37(1) corporation is to have board of directors that is constituted in accordance with the bylaws of the corporation. ... Duties of Board 39(1) Subject to any restriction imposed or direction given at general meeting, board shall exercise the powers and perform the duties of the corporation. ... Voting Rights of Owners 41(1) Subject to subsections (2) and (5) to (12), each owner has number of votes that bears the same proportion to the total number of votes as the owner’s unit factor bears to the total of the unit factors. (2) Subject to the right of any owner to ask for vote by unit factors in person or by proxy, the bylaws of corporation may provide for voting by show of hands for specified purposes. (3) Unless otherwise provided for in this Act, all questions proposed for the consideration of the owners at meeting of owners shall be determined by majority of the votes cast. ... Bylaws generally (3) The bylaws of corporation bind the corporation and the owners to the same extent as if the bylaws: (a) had been signed and sealed by the corporation and by each owner; and (b) contained covenants on the part of each owner with every other owner and with the corporation to observe, perform and be bound by all the provisions of the bylaws. ... Subject matter of bylaws 47(1) Subject to the regulations, corporation may pass bylaws: (a) governing the number, qualifications, nomination, election, remuneration, term of office and filling of vacancies of member of the board; (2) No bylaw shall be passed pursuant to subsection (1) that is contrary to this Act or the condominium plan. [Emphasis added] D. Analysis 1. Standard of Review [24] The applicant has brought this application pursuant to Rule 664 of The Queen’s Bench Rules. He seeks an order in the nature of declaration. [25] As stated by this Court in Anderson v. Owners: Condominium Plan 99SA34021, 2010 SKQB 53 (CanLII), 352 Sask. R. 106, in order to succeed on an application such as this one, the applicant must point to clear public or statutory duty on the part of the Condominium Corporation. As was determined in Anderson, condominium corporation does not meet the definition of body which owes public duty. However, in certain circumstances, condominium corporation owes statutory duty. [26] Section 35(1) of The Condominium Property Act, 1993, provides: 35(1) corporation is responsible for the enforcement of its bylaws and the control, management and administration of the units, and of the common property and common facilities. [27] condominium corporation is mandated by s. 35(1) of the Act to interpret and enforce its bylaws. In this case the Condominium Corporation, or more particularly its Board, has interpreted Section 3.3 of Bylaw No. as follows: That the Board of Directors hereby confirms that since October 9, 2009 it has been, and that it continues to be the opinion of the Board that the following is the proper interpretation of Section 3.3 of the Bylaws of the Corporation, where the Board is to consist, as it does now, of seven members: (a) The Commercial Owners are entitled to nominate up to persons for election to the Board; (b) All owners, residential and commercial, are entitled to vote on all nominees to the Board; (c) All owners have agreed to cast their votes so as to elect the Commercial Owners’ nominees and where the owners neglect or refuse to cast their votes in such manner, the Commercial Owners may vote separately as class to elect their nominees; and (d) There is no restriction in the Bylaw limiting the right of the Commercial Owners to vote on positions to the Board. [28] Although the applicant argued that the appropriate standard of review is correctness, the Court is not prepared to accept that proposition. The appropriate standard of review is reasonableness. [29] In Anderson, supra, our Court considered the standard of review to be applied when faced with an application for judicial review of condominium board’s decision. Although in that case the Court concluded that judicial review did not apply to discretionary decisions of condominium board, it concluded that in situation where judicial review did apply, such as statutory duty situation, the standard of review was reasonableness. At paragraphs 32 and 33, Goldenberg J. held: [32] If judicial review has application, then the standard of review is “what is reasonable [for the condominium association] in carrying out its statutory duty”: Buskell v. Linden Real Estate Services Inc., 2003 MBQB 211 (CanLII), [2004] W.W.R. 366, at para. 19; Baliwalla v. York Condominium Corp. No. 438, [2007] O.J. No. 1673, at para. 15; and Devlin v. Condominium Plan No. 9612647, 2002 ABQB 358 (CanLII), 318 A.R. 386, at para. 3. And additionally: [33] court ought not lightly to interfere in the decisions of democratically elected board of directors acting within its jurisdiction. Desjardins v. Winnipeg Condominium Corp. No. 75, 1990 CanLII 11081 (MB QB), [1991] W.W.R. 193 (Man. Q.B.), at para. 6. The court should defer to duly elected condominium boards, and only if the court is satisfied of improper conduct should they direct and/or grant any remedies. 934859 Alberta Inc. v. Condominium Corporation No. 0312180, 2007 ABQB 640 (CanLII), 434 A.R. 41, at paras. 54‑55. [30] As held in the Anderson decision, supra, due deference should be given to the Board with regard to its interpretation of the bylaw. [31] As outlined above, it is established law that when it comes to such an interpretation, the Board’s decision is entitled to deference. In Devlin v. Condominium Plan No. 9612647, 2002 ABQB 358 (CanLII), the Alberta Court of Queen’s Bench held at paragraph 3: [3] Bylaws are in place for good reason and should be enforced, and message will be sent by the Court that where the Board acts reasonably in carrying out its duty to enforce the bylaws and restrictive covenants, the Board will be supported by the Court, however, when the bylaw and restrictive covenant are clearly prohibited under the Condominium Property Act then the Court will intervene. [32] As well, the Ontario Court of Appeal stated in London Condominium Corp. No. 13 v. Awaraji, 2007 ONCA 154 (CanLII), 221 O.A.C. 240, with regard to the deference to be paid to condominium boards when it came to the enforcement of condominium’s bylaws, at paragraph 6: [6] ... we consider that it is for the Condominium Corporation to interpret its Declaration and Bylaws and that so long as its interpretation is not unreasonable, the court should not interfere. [33] The Court has concluded that the interpretation of Section 3.3 of Bylaw No. as adopted by the board of directors of the Spadina Condominium Corporation is reasonable and consistent with the language of the bylaws. 2. Interpretation principles [34] The wording of Section 3.3 of Bylaw No. is clear, plain and unambiguous. [35] The applicant is asking the Court to interpret Section 3.3 of Bylaw No. in such way that the commercial owners would only be permitted to vote for their own nominees and would be barred from voting for or against anyone nominated by the residential owners. There is no specific provision in the bylaws that would allow such an interpretation resulting in such a restriction on the commercial owners’ voting rights. [36] In addition, within the bylaws of condominium corporation, the owners of the condominium units are able to agree upon how they will cast their votes but to prohibit an owner from voting altogether would be contrary to the voting rights as set out in s. 41 of the Act. [37] Section 41 of The Condominium Property Act, 1993, provides: 41(1) Subject to subsections (2) and (5) to (12), each owner has number of votes that bears the same proportion to the total number of votes as the owner’s unit factor bears to the total of the unit factors. (2) Subject to the right of any owner to ask for vote by unit factors in person or by proxy, the bylaws of corporation may provide for voting by show of hands for specified purposes. (3) Unless otherwise provided for in this Act, all questions proposed for the consideration of the owners at meeting of owners shall be determined by majority of the votes cast. [38] Further, s. 47(2) of The Condominium Property Act, 1993, provides: 47(2) No bylaw shall be passed pursuant to subsection (1) that is contrary to this Act or the condominium plan. [39] The Act provides that all owners are to vote on all questions proposed at any meeting. The applicant is asking the Court to interpret Section 3.3 of Bylaw No. in such way that the commercial owners would not be allowed to cast their vote on the remaining four positions on the Board. Section 3.3 of Bylaw No. does not expressly state that, and the applicant is asking that the Court imply that term within the bylaw. To do so would result in Section 3.3 of Bylaw No. being in contravention of s. 41 of the Act, and that is prohibited by s. 47 of the Act. The Court is not prepared to do so. [40] There was great deal of time spent during the argument of this matter on whether or not the Court should consider principles of contract interpretation in determining whether the Board had properly interpreted the bylaw. In considering those principles, the Court could ascertain the intention of the parties at the time the bylaws were enacted and could imply terms to give effect to that intention. The Court has concluded that principles of contract interpretation have no place within the scope of the within application, being the interpretation of condominium bylaw. This process is not analogous to the interpretation of contract. The owners of condominiums within condominium corporation are not in the same position as the parties to specific contract. [41] Although s. 44(3) of the Act makes reference to the bylaws of corporation binding the corporation and the owners to the same extent as if the bylaws had been signed and sealed by the corporation and by each owner, the resultant relationship is not the same as that of individual parties who had agreed to the terms of the contract. Notwithstanding some of the owners of condominium corporation not being in agreement with certain provisions of the bylaws, those same owners are bound to comply with all of the provisions of the bylaws eventually enacted by that condominium corporation. [42] Although as counsel for the applicant argued it was only an Alberta Provincial Court decision, this Court has concluded that it totally endorses the position taken by the Provincial Court of Alberta in Wilson v. Condominium Corp No. 021 1057, 2010 ABPC 150 (CanLII). That Court held that when considering whether Court can imply terms into condominium bylaw, the Court held at paragraph 23: 23 was not provided with any authority, nor was able to locate any, to support the proposition that trial judge is able to imply terms or provisions into condominium corporation’s by‑laws. In my view, principles of contract interpretation dealing with ascertaining the intention of the parties to contract and implying terms to give effect to that intention have no application to the interpretation of the rights and obligations created by by‑laws promulgated under the requirements imposed by legislation. By‑laws are not negotiated as between the condominium corporation and unit owners and [sic] my view the court should not be reading provisions into the by‑laws at the instance of either of the parties. [43] As such, this Court is not prepared to consider the arguments of the applicant’s counsel with regard to the intent of the applicant at the time the bylaws were enacted or apply other principles of contract interpretation in determining whether the Board’s interpretation of Section 3.3 of Bylaw No. was reasonable. E. Conclusion [44] For all of the reasons as outlined in this decision, the application of the applicant is dismissed. The interpretation of the board of directors of the Spadina Condominium Corporation of Section 3.3 of Bylaw No. 1, as confirmed in its resolution of April 27, 2011, is reasonable and one that this Court is not prepared to interfere with. [45] As indicated to counsel at the time of the application, if the matter of costs cannot be resolved as amongst the parties, leave is given to the parties to argue the matter of costs at time to be arranged with the Local Registrar. J. M.L. Dovell","The applicant is a residential unit owner in the condominium corporation. He sought a declaration pursuant to Queen's Bench Rule 664 interpreting the bylaws of the condominium corporation with respect to the voting rights of the commercial unit owners. The condominium has 32 units with the three largest units being commercial units. The remaining 29 units are residential. The parties agreed that the commercial owners were entitled to nominate and vote for three positions on the Board of Directors. A dispute arose as to whether the commercial owners were entitled to vote on the election of the positions on the Board designated for representatives of the residential unit holders. The Board of Directors passed a resolution interpreting the bylaw such that the commercial owners were entitled to nominate up to three people for election to the Board, all owners were entitled to vote on all nominees, all the owners agreed to cast their votes so as to elect the commercial owners nominees and where that does not happen the commercial owners are entitled to vote as a class to elect their nominees and there is no restriction in the bylaw limiting the right of the commercial owners to vote on positions to the Board. HELD The appropriate standard of review is that of reasonableness and deference must be given to the Board of Directors with regard to its interpretation of the bylaw. There is no specific provision in the bylaws that would restrict the voting rights of the commercial owners. Prohibiting any owner from voting altogether would be contrary to s. 41 of The Condominium Property Act because the Act provides that all owners are to vote on all questions proposed at any meeting. The proper interpretation of the bylaws has nothing to do with the principles of contract interpretation. The application was dismissed. The interpretation of the bylaw by the Board of Directors was reasonable and that Court was not prepared to interfere with it.",b_2011skqb219.txt
167,"J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 149 Date: 20051215 Between: Docket: 935 Her Majesty the Queen Coram: Gerwing, Lane Richards JJ.A. Counsel: A.B.Gerein for the Appellant Marvin Bloos, Q.C. for the Respondent Appeal: From: Provincial Court Heard: October 25, 2005 Disposition: Appeal allowed Written Reasons: December 15, 2005 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Lane Richards J.A. [1] The respondent had just begun serving the community supervision portion of custody and supervision order made pursuant to the Youth Criminal Justice Act (“YCJA”) when he walked away from his designated residence and thereby breached the terms of the order. The provincial director immediately issued warrant for his apprehension but he was not found by police until almost month later. His case went to the Youth Justice Court (“Youth Court”) for review under s. 103 of the YCJA. [2] The Youth Court judge interpreted the YCJA as meaning the respondent’s sentence had continued to run while he was at large and, as a result, had already expired. In consequence, she held that no action was required on the alleged breach of the custody and supervision order. [3] The Crown appeals her decision and argues that, on a proper reading of the YCJA, the respondent was deemed not to be serving his sentence during the time period between when the warrant was issued and when he was apprehended. [4] I accept the Crown’s argument and find, for the reasons which follow, that the Youth Court judge erred in her interpretation of the YCJA. I. Factual Background [5] In May of 2004 the respondent was sentenced to six months deferred custody and supervision, followed by six months of probation, for variety of matters including break and enters, theft, weapons offence and drug offence. He breached the terms of the deferred custody order in June of 2004 and, on June 21, was directed to serve the remainder of his sentence under custody and community supervision order. [6] The respondent was released from custody on October 8, 2004 and began the community supervision portion of his sentence. The terms of the supervision included requirement that he reside at Quint Youth Lodge in Saskatoon, attend school and maintain curfew. Immediately after acknowledging these conditions, the respondent walked away from Quint Youth Lodge and did not return. [7] The provincial director issued warrant for the respondent’s arrest on October 8, 2004. Police located and arrested the respondent on November 4, 2004. The director concluded that the matter was serious and remanded the respondent pending review by the Youth Court pursuant to s. 103 of the YCJA. [8] As stated above, the Youth Court judge held that the community supervision portion of the respondent’s sentence had continued to run while he was at large, with the result that the sentence had ended prior to the matter coming before her for disposition. She concluded that no action was required on the alleged breach of the custody and community supervision order because the sentence had already expired. II. The Statutory Scheme [9] Much of the analysis necessary to the resolution of this appeal is grounded in the distinctions between what shall refer to as custody and conditional supervision orders on the one hand and custody and community supervision orders on the other. As result, it is useful to begin with brief overview of each type of order. [10] Custody and conditional supervision orders can be made pursuant to either ss. 42(2)(o), (q) or (r) of the YCJA. These provisions apply to offences of relatively serious nature. will not quote each of them in full. However, s. 42(2)(o) is reproduced below in order to provide an illustration of how the Act reads: 42(2) When youth justice court finds young person guilty of an offence and is imposing youth sentence, the court shall, subject to this section, impose any one of the following sanctions… (o) in the case of an offence set out in subparagraph (a)(ii), (iii) or (iv) of the definition ""presumptive offence"" in subsection 2(1), make custody and supervision order in respect of the young person for specified period not exceeding three years from the date of committal that orders the young person to be committed into continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105; [11] young person sentenced under s. 42(2)(o), (q) or (r) is brought before the Youth Court at least one month before the expiry of the custodial portion of the sentence and the Court then sets the conditions of the young person’s conditional supervision. See: s. 105. [12] Breaches of conditional supervision are addressed in ss. 106 to 109 of the YCJA. For present purposes, s. 106 and 107(1) are particularly important. Section 106 empowers the provincial director to suspend the conditional supervision and to remand the young person in custody until review is conducted by the Youth Court. Section 107(1) sets out the director’s power to issue warrant when conditional supervision is suspended under s. 106. It also provides that, until the young person is apprehended, he or she is deemed not to be continuing to serve the youth sentence. Sections 106 and 107(1) are set out below: 106. If the provincial director has reasonable grounds to believe that young person has breached or is about to breach condition of an order made under subsection 105(1), the provincial director may, in writing, (a) suspend the conditional supervision; and (b) order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until review is conducted under section 108 and, if applicable, section 109. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [13] turn then to custody and community supervision orders. They are made pursuant to s. 42(2)(n) of the YCJA. Section 42(2)(n) provides for sentence of up to two years. The first part of the sentence is served in custody and the second part is served under supervision in the community subject to conditions. Section 42(2)(n) states: (2) When youth justice court finds young person guilty of an offence and is imposing youth sentence, the court shall, subject to this section, impose any one of the following sanctions (n) make custody and supervision order with respect to the young person, ordering that period be served in custody and that second period which is one half as long as the first be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; Section 97 of the YCJA sets out the conditions to be included in the order. [14] Violations of custody and community supervision order are addressed in s. 102(1) of the YCJA. It prescribes the powers of the provincial director when the director believes young person has breached or is about to breach supervision conditions: 102. (1) If the provincial director has reasonable grounds to believe that young person has breached or is about to breach condition to which he or she is subject under section 97 (conditions to be included in custody and supervision orders), the provincial director may, in writing, (a) permit the young person to continue to serve portion of his or her youth sentence in the community, on the same or different conditions; or (b) if satisfied that the breach is serious one that increases the risk to public safety, order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until review is conducted. [15] Section 102(2) then states that ss. 107 and 108 of the YCJA, quoted above, are applicable to an order under s. 102(1)(b) with any modifications required by the circumstances. Section 102(2) says: (2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b). [16] With that introduction to the legislative scheme, now turn to the substance of this appeal. Analysis A. Right of Appeal [17] The respondent submits, as preliminary matter, that the Crown has no right of appeal in the circumstances of this case. Counsel for the respondent did not press this line of argument very strongly during oral submissions. However, his bottom line is summarized as follows at para. 34 of his factum: (a) young person or his counsel may only seek review by this Court where the Youth Justice Court ordered that the young person serve the balance of their sentence, or portion of it in custody pursuant to s. 103(2)(b); (b) The Attorney General or provincial Director may only appeal where the young person sought an order under s. 103(2)(a) and sought to keep the young person in custody pursuant to s. 103(2)(b) but the Court makes an order under s. 103(2)(a). [18] In order to deal with this issue, it is important to remember the procedural history of this case. It concerns an order made by the director pursuant to s. 102(1)(b) of the YCJA. He considered the breach of community supervision conditions by the respondent to be serious and concluded the respondent should be remanded in custody until review was conducted. Section 103 describes the nature of such review: 103. (1) When the case of young person is referred to the youth justice court under section 108 (review by provincial director), the provincial director shall, without delay, cause the young person to be brought before the youth justice court, and the youth justice court shall, after giving the young person an opportunity to be heard, (a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, order that the young person continue to serve portion of his or her youth sentence in the community, on the same or different conditions; or (b) if the court is satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, make an order under subsection (2). (2) On completion of review under subsection (1), the youth justice court (a) shall order that the young person continue to serve the remainder of the youth sentence the young person is then serving in the community, and when the court does so, the court may vary the existing conditions or impose new conditions; or (b) shall, despite paragraph 42(2)(n) (custody and supervision order), order that the young person remain in custody for period that does not exceed the remainder of the youth sentence the young person is then serving, if the youth justice court is satisfied that the breach of the conditions was serious. (3) Subsections 109(4) to (8) apply, with any modifications that the circumstances require, in respect of review under this section. [emphasis added] [19] As is evident, s. 103(3) creates right of appeal “in respect of review under [s. 103]” by referencing ss. 109(4) to (8) of the YCJA and making them applicable with any modifications the circumstances require. Section 109(8) is particularly relevant for present purposes. It deals with appeals from Youth Court reviews where conditional supervision is suspended under s. 106 and the young person is remanded in custody. Section 109(8) refers, in turn, to s. 101, saying that s. 101 applies with necessary modifications. For its part, s. 101 provides for appeals not just from an order but also from refusal to make an order. While this obviously is not the most clearcut drafting imaginable, it does indicate that decision by Youth Court judge not to conduct review (and hence not to make an order) is subject to appeal. [20] In similar vein, also underline that s. 103(3) itself references ss. 109(4) to (8) as applying “in respect of review under this section”. This language is inconsistent with the notion that the right of appeal particularized in ss. 109(4) to (8) arises only in relation to certain kinds of orders and, in particular, that it arises only when there has been an unsuccessful attempt to keep the young person in custody. In other words, s. 103(3), on its face, contemplates appeals in respect of the s. 103 review generally rather than in respect of an order or certain kinds of orders. [21] As result, the respondent’s argument on this point must fail. B. Running of the Sentence 1. The Youth Court Decision [22] The Youth Court judge decided that the respondent’s sentence continued to run while he was at large. This produces an extraordinary result. The YCJA creates no offence for breaching the terms of community supervision order. Thus, as consequence of the decision appealed from, young person can escape the community supervision aspect of sentence simply by avoiding apprehension by the authorities. In other words, the Youth Court judge effectively found that Parliament intended there should be no consequences for breaching the terms of community supervision. [23] The decision of the Youth Court judge turned principally on what she saw as noteworthy differences in the YCJA between community supervision orders made pursuant to s. 42(2)(n) and conditional supervision orders made pursuant to s. 42(2)(o), (q) or (r). In this regard, she attached particular importance to the differences in the relevant breach and review provisions. She emphasized that, while s. 106 expressly enables the provincial director to suspend conditional supervision on breach of the terms of the supervision, s. 102 which deals with the breach of community supervision does not provide for suspension. [24] The Youth Court judge regarded this difference between conditional supervision and community supervision as extending through those parts of the YCJA dealing with apprehension. Although her analysis is perhaps not entirely clear in this regard, she seems to have considered the “deemed not to be continuing to serve the youth sentence” wing of s. 107(1) as being inapplicable on the facts at hand because the director had no authority to suspend the community supervision part of the respondent’s sentence. The key passages of her reasons are set out below: [49] Both sections 102 and 106 begin by saying that should the provincial director have reasonable grounds to believe that young person has or is about to breach condition of supervision, action may be taken. After that there is departure between the two sections. Pursuant to s. 106, the provincial director may suspend the conditional supervision and order that the young person be remanded until review is conducted. Pursuant to s. 102 the provincial director may permit the young person to continue to serve the sentence in the community upon the same or different conditions, or if satisfied that the breach is serious one that increases the risk to public safety, order remand until review is conducted. There is no reference to suspension in s. 102. [50] The procedure that follows for apprehension and review by the provincial director is the same both for s. 102 and s. 106. Section 102(2) does not set out separate procedure for apprehension and review by the provincial director; rather it incorporates the procedure applicable to s. 106 breaches, stating as follows: 102(2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b). There is no mention here of s. 106 or the power to suspend. [51] Section 107(1), which provides that the sentence doesn't run until apprehension, is reliant upon suspension pursuant to s. 106. It states: Apprehension 107. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. Section 108 provides for prompt review of the case by the provincial director. It states: Review by provincial director s. 108 108. Without delay after the remand to custody of young person whose conditional supervision has been suspended under section 106, or without delay after being informed of the arrest of such young person, the provincial director shall review the case and, within forty-eight hours, cancel the suspension of the conditional supervision or refer the case to the youth justice court for review under section 109. While s. 102(2) provides that sections 107 and 108 apply with ""any modifications that the circumstances require"", it does seem that this proviso cannot have been intended to incorporate the power to suspend which is provided for under separate section. These sections may allow the issuance of warrant authorizing apprehension, as that is the focus of s. 107, and may direct the provincial director to review the case promptly, as that is the focus of s. 108, but they cannot incorporate the power to suspend. am assisted in part in ascertaining the focus of these sections by reference to the headings contained in the Bill. In Sullivan and Driedger on the Construction of Statutes, 4th edition by Ruth Sullivan, Butterworths Canada Ltd. 2002, the use of headings is discussed. Beginning at page 305 the author discusses the use of headings in statutory interpretation, noting that in R. v. Zundel (1992), 1992 CanLII 75 (SCC), 95 D.L.R. (4th) 202 (S.C.C.), ""headings were relied on to help establish the purpose of s. 181 of the Criminal Code,"". [underlining added] [2005 SKPC 6; (2005), 2005 SKPC (CanLII), 259 Sask. R. 75] 2. The Proper Interpretation of Section 102(2) [25] A straightforward analysis of the YCJA serves to answer the question of whether the respondent’s sentence continued to run while he was at large. That analysis begins with s. 102 of the Act. As noted above, s. 102(1) sets out the authority of the director when young person has breached or is about to breach condition of his or her community supervision. In those circumstances, the director may do one of two things: (i) pursuant to s. 102(1)(a), the director may permit the young person to continue to serve his or her sentence in the community, or (ii) pursuant to s. 102(1)(b), if the breach is serious and increases the risk to public safety, the director may order the young person to be remanded in custody until review is conducted. [26] As explained earlier, s. 102(2) goes on to make ss. 107 and 108 applicable to an order for remand and review made pursuant to s. 102(1)(b). Section 102(2) is reproduced below for ease of reference: 102. (2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b) [27] Section 107(1) is the provision referred to by s. 102(2) which is of immediate concern. Again, for ease of reference, it reads as follows: 107. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [28] There is an obvious modification of s. 107(1) which ""the circumstances require"" when, as per s. 102(2), it applies in the context of breach of the conditions of community supervision. That modification involves the notional deletion of the opening words of the subsection which refer to s. 106 and the substitution in their place of reference to s. 102. As result, when applied in respect of an order made pursuant to s. 102(1)(b), s. 107(1) effectively reads as follows: 107. (1) [When an order is made pursuant to s. 102(1)(b)] the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [29] This means two things. First, it means that when the director decides to issue an order under s. 102(1)(b) remanding young person in custody until review is conducted, the director has the authority to issue warrant authorizing the apprehension of the young person. Second, it means that if warrant is issued, the young person's sentence does not run until he or she is apprehended. [30] note that this issue has now been considered by several Youth Court judges. One case follows the decision under consideration in this appeal. See: R. v. C.K.W., 2005 ABPC 64 (CanLII). However, the courts in the other cases have reached the same bottom-line conclusion as have. See: R. v. T.F.W., 2005 SKPC 96 (CanLII); R. v. M.D.S., 2005 NSPC 39 [unreported]; R. v. C.W.W., 2005 ABPC 214 (CanLII). 3. Some Comments on the Youth Court Decision [31] It may be appropriate to comment further on some of the considerations which seem to have led to the decision in the court below. These are (a) the purpose of the YCJA, (b) the reference to s. 107 which is found in s. 102(2), and (c) the relationship between the concept of the suspension of supervision and the running of the sentence itself. The discussion of these points will also serve to further explain the basis of my own decision. (a) Purpose of YCJA [32] will deal first with the purpose of the YCJA. In her decision, the Youth Court judge quite properly cited the well known principle of statutory interpretation expressed by the Supreme Court in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] S.C.R. 27 at para. 21 and confirmed in various other cases including R. v. Sharpe, 2001 SCC (CanLII), [2001] S.C.R. 45 at para. 33. She then turned to the Preamble of the YCJA and the Declaration of Principle in s. and emphasized the uniqueness of the youth justice system and stressed its objectives of rehabilitation and reintegration, seeing these factors as supporting or leading to her construction of the statutory provisions at issue in this appeal. [33] In this regard, note that the Youth Court judge would presumably have been led in somewhat different direction if she had referred to the Preamble and the Declaration of Principle in their totality and given consideration to all of the factors included therein including, for example, the statement in the Preamble referring to youth justice system which “…fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation…” and the principle expressed in s. 3(1)(a)(iii) that young persons be subject to “meaningful consequences” for offences. [34] Further, and in any event, do not accept that even narrow focus on “rehabilitation and reintegration” is consistent with the conclusion that young person should be able to escape community supervision without consequence. One of the central purposes of community supervision is to promote rehabilitation and reintegration. sentence imposed after due process and careful consideration by sentencing judge should be complied with in full. An interpretation of the YCJA which allows young person to avoid the community supervision aspect of sentence directly undercuts the objectives of rehabilitation and reintegration. (b) Reference to s. 107 in s. 102(2) [35] Second, turn to the wording of s. 102(2). The Youth Court judge’s thinking appears to have been based in part on the fact that s. 102(2), when it refers to s. 107, uses the language “Sections 107 (apprehension) …”. In other words, the judge seems to have thought s. 102(2) incorporates only the “apprehension” aspect of s. 107 because that is all it refers to. The respondent advanced the same argument in his submissions. [36] However, this line of reasoning is faulty. Section 102(2) includes the word “apprehension” after the reference to s. 107 merely as an aid to the reader. “Apprehension” is the opening marginal note to s. 107. It is included in s. 102(2) in order to give the reader sense of what s. 107 is about without requiring him or her to actually turn to the section. This same technique is used throughout the YCJA. See, for example: ss. 16, 34(2) and 40(10). If Parliament had intended only part of s. 107(1) to apply in the context of breach of community supervision orders, it would have made that point expressly. (c) “Suspension” and Running of the Sentence [37] Third, and perhaps most importantly, it is useful to consider the relationship between the concept of the suspension of supervision and the running of sentence. In this regard, the Youth Court judge focused unduly on the provincial director’s lack of authority to “suspend” community supervision under s. 102 and the contrast in this regard with the power of the director under s. 106 to suspend conditional supervision. note, for example, that in para. of her decision the Youth Court judge framed the issues as follows: [3] …While Parliament provided for the application of sections 107 and 108 to the breach of custody and supervision procedure, it did not provide for the application of s. 106 which is the source of the authority for suspension. Furthermore, there is no similar provision permitting suspension where the sentence being served is s. 42(2)(n) custody and supervision. [38] Similarly, in the last paragraph of her reasons, the Youth Court judge again returned to what she characterized as the provincial director’s ability to “suspend” the operation of sentence. She wrote this by way of conclusion to her decision: [60] As held that the provincial director had no power to suspend operation of the Young Person's sentence, no action was required with respect to the breach initiated by the provincial director as the practical effect was that the sentence had expired. judicial stay was entered with respect to the provincial director's suspension of the sentence. [39] This emphasis on the provincial director’s power to “suspend” was misplaced and lead to an analysis which focused on the wrong question. The provincial director did not purport to suspend the respondent’s sentence in this case. He simply issued warrant. The real question before the Court is whether the sentence was deemed not to be continuing following the issuance of the warrant. It is not whether the provincial director had the power to suspend the community supervision. [40] The suspension of supervision and the running of sentence are separate concepts under the YCJA. This can be seen in the structure of s. 106 and s. 107 themselves. On the face of s. 107(1), the director’s authority to issue warrant is contingent on the existence of an order under s. 106, i.e. on the existence of an order which suspends the community supervision. If, as the Youth Court judge seems to have concluded, it is the suspension itself which stops the sentence from running, there would be no need for s. 107(1) to stipulate that the sentencing clock is frozen following the issuance of warrant. It already would have stopped on the making of the order under s. 106. [41] The distinction between the running of sentence and the suspension of conditional supervision is also evident in s. 109. It describes the authority of the Youth Court in its consideration of the case of young person where conditional supervision has been suspended and the young person has been remanded pending review. Section 109(2)(b) says the Youth Court can order “… the continuation of the suspension of the conditional supervision for any period of time, not to exceed the remainder of the youth sentence the young person is then serving…” This language necessarily contemplates distinction between the suspension and the running of the sentence. [42] In short, it is clear that the feature of the YCJA which stops sentence from running is not the “suspension” of supervision but the issuance of warrant for the apprehension of young person. Thus, when the director issues warrant pursuant to the combined effect of s. 102(2) and s. 107(1), the young person is deemed not to be continuing to serve his or her sentence until an apprehension is made. C. Other Matters [43] The Crown included significant argument in its written materials to the effect that the decision of the Youth Court judge should be set aside because it was tainted by reasonable apprehension of bias. The point was not pressed at the argument of the appeal. Rather, the Crown acknowledged that its root concern revolved around how the Youth Court judge had come to make an earlier decision on the same legal point which is at issue here and then had relied on that decision in the proceedings in this case. This does warrant some comment. [44] The earlier decision is R. v. K.P.A. (2004), 2004 SKPC 20 (CanLII), 243 Sask.R. 180 (“K.P.A. #1”). By apparent coincidence, it involves the same young person who is the respondent in this appeal. In R. v. K.P.A. #1, the respondent applied for reinstatement of the community supervision portion of his sentence. He had been sentenced to two months open custody, followed by one month of community supervision. He had absconded after the start of his community supervision and that portion of his sentence had been suspended as consequence. He appeared before the Youth Court judge on s. 103 review. She decided to re-release on community supervision with variations on the conditions of that release. [45] The Youth Court judge's written reasons for decision in K.P.A. #1 contain broad-ranging commentary on number of questions not necessary to her decision in that case. Some of those issues were not argued before her. The opening paragraph of her reasons for decision states: [1] This decision concerns review pursuant to s. 103 of the Youth Criminal Justice Act (YCJA). The community supervision portion of the Young Person's month custody and supervision sentence had been suspended. Pursuant to sections 102 and 108 his sentence was reviewed by the Provincial Director and he was referred to the Youth Justice Court for review. This application raised number of procedural and substantive questions when it came before me for review pursuant to s. 103. The Young Person had been in custody since December 23rd when this matter came up for argument on December 31st. was informed that his sentence expiry was January 18th. returned the Young Person to the community pursuant to s. 103(2)(a) and while gave some indication of my reasoning orally, indicated that full written reasons would follow. It was my intention to be instructive with respect to future applications of this nature both with respect to the merits of the review and the procedure employed. Many of the issues were not argued and some only came to light as wrote this judgment but persisted as believed it was in the interests of this Young Person and others that these issues be explored. [emphasis added] [46] One of the issues canvassed by the Youth Court judge in her reasons was the point which is at issue in the current appeal. Without the benefit of argument by counsel, she offered the opinion that the provincial director had no authority to ""suspend"" the running of community sentence order on the issuance of warrant. [47] When counsel for the respondent appeared before the Youth Court judge in the present case, she drew his attention to K.P.A. #1 and indicated she had number of concerns about whether the procedure which had been followed was in compliance with what she had said in K.P.A. #1. Counsel for the respondent, following an adjournment, decided to pursue only the aspect of K.P.A. #1 dealing with the provincial director's so-called power to ""suspend."" In her reasons for decision in this case, the Youth Court judge quoted at some length from K.P.A. #1 by way of an introduction to her analysis. [48] appreciate that in K.P.A. #1 the Youth Court judge was attempting to shed some light on what was then relatively new piece of legislation. However, judge is generally ill advised to offer legal commentary with respect to issues lying outside the line of analysis necessary to the determination of the matter before him or her. The risks involved in offering unnecessary opinions are compounded in circumstances where those opinions are put forward without the benefit of submissions from counsel. It would have been prudent for the Youth Court judge in this case to have written K.P.A #1 in less wide-ranging terms and, having written it as she did, to have treated it less as precedent and more as the collection of obiter observations it was. Conclusion [49] The appeal is allowed The respondent’s sentence did not run in the time period between the issuance of the warrant on October 8, 2004 and his apprehension on November 4, 2004. The Crown does not seek to have this matter returned to Youth Court for reconsideration and, as result, there will be no order in that regard. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of December, A.D. 2005. RICHARDS J.A. concur GERWING J.A.","The respondent had just begun serving the community supervision portion of a custody and supervision order made pursuant to the Youth Criminal Justice Act when he walked away from his designated residence and breached the terms of the order. The provincial director immediately issued a warrant for his apprehension but he was not found until almost a month later. His case went to the Youth Court for review under s. 103 of the Act. The Youth Court judge interpreted the Act as meaning the respondent's sentence had continued to run while he was at large and had expired. She held that no action was required on the alleged breach of the custody and supervision order. The Crown appeals the decision. HELD: Appeal allowed. 1) The Youth Court judge erred in her interpretation of the Act. On a proper reading of the Act, the respondent was deemed not to be serving his sentence during the time period between when the warrant was issued and when he was apprehended. 2) A straightforward analysis of the Act serves to answer the question of whether the respondent's sentence continued to run while he was at large. Section 102(1) of the Act sets out the authority of the director, when a young person has breached or is about to breach a condition of his community supervision. The director may, pursuant to s. 102(1)(a), permit the young person to continue to serve his sentence in the community or, pursuant to s. 102(1)(b) of the Act, if the breach is serious and increases the risk to public safety, the director may order the young person to be remanded in custody until a review is conducted. Section 102(2) goes on to make s. 107 and s. 108 applicable to an order for remand and review made pursuant to s. 102(1)(b). Section 107(1) is the provision referred to by s. 102(2) that is of concern. There is an obvious modification of s. 107(1) which 'the circumstances require' when it applies in the context of a breach of the conditions of community supervision. That modification involves the notional deletion of the opening words of the subsection that refers to s. 106 and the substitution in their place of a reference to s. 102. This means two things. First it means that, when the director decides to issue an order under s. 102(1)(b) remanding a young person in custody until a review is conducted, the director has the authority to issue a warrant authorizing the apprehension of the young person. Second it means that if a warrant is issued, the young person's sentence does not run until he or she is apprehended. 3) The court went on to comment further on some of the considerations that seem to have led to the decision in the court below, including the purpose of the Act, the reference to s. 107 that is found in s. 102(2) and the relationship between the concept of the suspension of supervision and the running of the sentence itself.",d_2005skca149.txt
168,"J. 2003 SKQB 397 Q.B.G. A.D. 1999 No. 2709 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GARRY MAYER and DARRELL NORDSTROM and DATAPLAN SECURITIES LTD. DEFENDANTS L.J. Litman for the plaintiff K.L. Smith for the defendants JUDGMENT FOLEY J. September 19, 2003 [1] William Mayer (Mayer) died on June 16, 1997. His will directed that the residue of his estate be divided between two of his three children, namely, his son Garry Mayer, the plaintiff in this action and his daughter, Cheryl Pokol. One of the estate assets was Trimark mutual fund which Mayer had purchased in November 1996 for $60,000. In June 1997 its value was $68,501.10 which was eventually distributed to the two beneficiaries. [2] Garry Mayer by this action claims that the mutual fund ought never to have formed part of his father’s estate. It was, he says, his father’s intention to name him as beneficiary of the fund, but that this plan was defeated by the negligence of the defendants Darrell Nordstrom (Nordstrom) and Dataplan Securities Ltd. [3] As this action is brought under simplified procedure, the evidence-in-chief of the plaintiff, Garry Mayer and his wife Lynn Mayer, is by way of affidavit while the defendants’ case is submitted through the affidavit of Nordstrom. Each party gave notice of intention to cross-examine on the affidavits. [4] The facts arising from the affidavits and cross-examinations which are not in dispute are: 1. The defendant, Nordstrom, is chartered life underwriter and financial consultant who sells life and investment products through Canada Life Assurance Company and Dataplan Securities Ltd. He and Mayer had business relationship from 1981 to 1987 during which time Mayer purchased life insurance and made investments. 2. In 1993, Mayer purchased an annuity life policy through Nordstrom for lump sum premium of $60,000, naming Garry Mayer as its beneficiary. When the annuity matured in August 1994, it was withdrawn by Mayer and deposited to his own account. 3. In 1996, Mayer again invested $60,000 through Nordstrom who recommended the purchase of units in Trimark Select Balanced Fund, mutual fund which had shown good performance. Nordstrom was aware that Mayer wished to designate Garry Mayer as beneficiary of the fund. In his completion of the application form for the units, Nordstrom entered Garry Mayer’s name in the beneficiary designation portion at Part 10 of the form, and as well he indicated in Part of the form that Mayer’s application was for non-registered plan. The completed application form was executed by Mayer on October 31, 1996. 4. The Part 10 beneficiary designation was void and had no legal effect by virtue of it being non-registered plan. On Mayer’s death, the fund amount was paid to Mayer’s estate and, in result, Garry Mayer received only one half of the fund. [5] The plaintiff’s position is that as Nordstrom was aware of Mayer’s intention to designate Garry Mayer as sole beneficiary of the investment, it was incumbent on him to ensure that Mayer’s objective was achieved. That duty is said to have been breached when Nordstrom failed to realize that the Trimark fund would not recognize designated beneficiary or alternatively, by his failure to recommend that the investment be made in the joint names of Mayer and Garry Mayer, or in his decision not to place before Mayer known alternate investment vehicles in which the beneficiary designation would be effective. [6] Support for the plaintiff’s submission that Nordstrom was ignorant of the beneficiary limitation in this case is said to be found in Nordstrom’s entry of Garry Mayer’s name as designated beneficiary on the application form and Lynn Mayer’s evidence that, subsequent to Mayer’s death and upon being apprised by her of the designation problem, Nordstrom had merely stated that he would need to look into the matter. [7] Nordstrom acknowledges that he was aware of Mayer’s plan to have the investment pass to his son in the event of Mayer’s death, but denies being unaware of the limitation to the Trimark fund. He says “I advised William Mayer that he would have to make specific gift or bequest in his Will stating that Garry Mayer was to receive the Mutual Fund in order to ensure that the Mutual Fund would in fact be received by Garry Mayer following William Mayer’s death.” [8] On cross-examination, Nordstrom said it was his general practice to issue this type of caution and that consequently “he believed he did so” on this occasion. He agreed that there were other investment vehicles which could have borne valid designation of beneficiary and, in any event, had father and son been named as joint owners the investment would have passed to Garry Mayer on Mayer’s death. His justification or rationale for his action or lack thereof was that, having cautioned Mayer to change his will, he had satisfied any obligation and the onus to act then rested upon Mayer. He described Mayer as very private person who would not have acceded to recommendation of joint ownership or request for the production of his will for Nordstrom’s examination. He says he entered Garry Mayer’s name in the designated beneficiary section only because that was Mayer’s instruction and “in any event, it did no harm and went to intent.” [9] Even if Nordstrom gave the caution he claims he did, his completion of the beneficiary designation on the application form could do nothing but cause confusion in Mayer’s mind. That entry, for all intents and purposes, resulted in an investment and designation almost identical to the one made by Mayer in 1993. Nordstrom’s attempt to justify the entry he made in Part 10 was not convincing. Had Nordstrom refused to include this inappropriate and void beneficiary designation he may well have lost this particular product sale. So be it. Had he in fact recommended joint ownership or, alternatively, given Mayer an opportunity to consider the alternate products which he says would have achieved Mayer’s goal, the void designation may well have been avoided. In any event Nordstrom’s claim that he met his duty to the client would be more convincing. His failure to take these steps and his inexplicable compliance with Mayer’s request to designate beneficiary regardless of its efficacy do not reflect the standard of conduct and care one is reasonably entitled to expect of such professional. Indeed, such failures fly in the face of Nordstrom’s own testimony as to his professional association’s code of practice. [10] Mayer cannot give his side of the conversation. When, as here, it is alleged that deceased was the author of his own misfortune in ignoring advice and where the only evidence of the advice is from the advisor, there is an evidential onus upon that professional to demonstrate that the caution or advice was in fact given and ought reasonably to have been understood by the client. Nordstrom failed to satisfy that onus. Good reasonable practice would have been to at least make note of the advice or, better still, confirm the advice in writing with the client. Death of the client was clearly within Nordstrom’s contemplation and it is with that event Nordstrom ought to have turned his attention to give effect to his client’s intention in realistic manner. [11] In summary, given Nordstrom’s knowledge of Mayer’s intent, his failure to advance products that would meet that intent, and his reliance on Mayer fathoming that the beneficiary designation made was void in law, all evidence failure of Nordstrom to discharge his duty of care to Mayer and consequently, his negligence. [12] In this case however neither Mayer nor his estate suffered loss as result of that negligence. The issue in this case is whether, in addition to the duty owed by Nordstrom to Mayer, he also owed one to the plaintiff as an identified potential beneficiary of the fund. [13] The plaintiff says that the circumstances of this case give rise to the same considerations as occur in disappointed beneficiary cases such as Wilhelm v. Hickson, 2000 SKCA (CanLII), (2000), 189 Sask. R. 71 (C.A.). [14] In that case the Court of Appeal adopted the principles articulated in White v. Jones, [1995] A.C. 207 (H.L.), by which remedy, akin to that flowing from the application of Hedley Byrne principles, is accorded an intended beneficiary where solicitor, on taking instructions for will, can reasonably foresee the deprivation of an intended legacy if due care is not taken. [15] These defendants say that Wilhelm v. Hickson, supra, has no application in that they are not solicitors providing legal advice or services and the public interest arguments adopted by the Saskatchewan Court of Appeal have no application. Financial planners, they say, merely assist people to make appropriate investment decisions during their lifetime and therefore their advice affects testamentary issues only in minor way. They assert that any attempt to determine the investor’s intentions in particular financial planning decision subsequent to that investor’s death would amount to an exercise in speculation and should not form the foundation for liability. [16] In my opinion, the facts of this case do not involve speculation about Mayer’s intentions any more so than was the case in Wilhelm v. Hickson. Nordstrom knew (as did Wilhelm), that it was the client’s intention and instruction to benefit specific third party on the investor’s (testator’s) death. It may well be that other cases will arise where the investor’s or testator’s intentions are not clear or are not admitted and require speculation. That is not the case here. [17] The defendants also argue that to impose duty of care on financial planners in favour of third parties such as this plaintiff would give rise to indeterminate liability and potential conflicts of interest. These issues were addressed and discounted in both the White and Wilhelm cases. In this case as well there is no issue of indeterminate liability nor in the circumstances of this case is there any question of conflict of interest. consequently reject that submission. [18] Although the disappointed beneficiary principle has usually arisen and may well usually arise in the context of solicitors and will preparation, this “disappointed beneficiary” principle is not function merely of the defendant’s occupation. In Esser v. Brown, 2003 BCSC 246 (CanLII), (2003), 223 D.L.R. (4th) 560, the British Columbia Court of Appeal saw as analogous to the role of the solicitor, that of notary public who ought reasonably to have contemplated that carelessness on her part would cause harm to third party. See also: Burnett v. Took Engineering Inc., 2000 BCSC 1630 (CanLII), [2000] B.C.J. No. 2302. [19] Nordstrom was professional who held himself out as possessing special skill, judgment and knowledge in financial planning. The advice and information provided to Mayer was provided in the course of Nordstrom’s business. Nordstrom had a financial interest in the transaction and was cognizant of the fact that the realization of Mayer’s intent to benefit Garry Mayer was dependent upon there being a valid beneficiary designation. The products sold by Nordstrom are frequently used as estate planning tools why else would there be beneficiary designation? The intervention of death removed any opportunity to correct the matter and, without application of the Wilhelm principle, this financial planner would go scott free and the third party, Garry Mayer, would bear the loss. To this case, the situation is analogous to that which occurred in Wilhelm v. Hickson. Consequently the “disappointed beneficiary” principle is equally applicable in this case involving financial planner and his client. [20] In summary conclude that Garry Mayer has cause of action as disappointed beneficiary and that he suffered damages as result of Nordstrom’s negligence. He shall have judgment against Nordstrom for 50 percent of the value of the investment at its maturity, namely $34,250.55. The plaintiff shall have pre-judgment interest from the date of death of Mayer to the date of this judgment and his costs to be taxed. [21] claim was also made for excess probate fees paid by the estate. That was debt of the estate and no action having been brought on its behalf, this portion of the claim is dismissed. Although Dataplan Securities Ltd. was named as defendant, no evidence was lead against it and the claim against it is dismissed. As it was represented concurrently with Nordstrom, there shall be no order as to costs for or against it.","The plaintiff claims that his father intended to designate him as the sole beneficiary of a $60,000 mutual fund but that this plan was defeated by the negligence of the defendants. The defendant admitted he was aware of the deceased's intention to leave the investment to his son. The defendant entered the plaintiff's name in the beneficiary designation portions of the fund application. However, the beneficiary designation was void by virtue of the mutual fund being non-registered. The defendant gave evidence that he advised the deceased that he would have to make a specific bequest in his will. The deceased made no special designation in his will and, at his death, the investment became part of the residue of his estate and was divided between the plaintiff and his sister. HELD: The plaintiff was awarded judgment against the defendant Nordstrom for half the value of the investment at its maturity, plus pre-judgment interest and costs.  1) Nordstrom was a professional, who held himself out as possessing special skill, judgment and knowledge in financial planning. The advice and information provided to the deceased was provided in the course of the defendant's business. The defendant had a financial interest in the transaction and was cognizant of the fact that the realization of the deceased's intent to benefit the plaintiff was dependent upon there being a valid beneficiary designation. The products sold by the defendant are used as estate planning tools. The intervention of death removed any opportunity to correct the matter and, without the application of the Wilhelm principle, this financial planner would go scott free and the plaintiff would bear the loss. The 'disappointed beneficiary' principle was applicable in this case.",b_2003skqb397.txt
169,"J. 2003 SKQB 46 Q.B.G. A.D. 2000 No. 336 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: ALBERT KAISWATUM RESPONDENT (PLAINTIFF) and ATTORNEY GENERAL OF CANADA APPLICANT (DEFENDANT) and LES OBLATS DE MARIE IMMACULEE DU MANITOBA THIRD PARTY E. F. Anthony Merchant, Q.C. for the respondent (plaintiff) Norma J. Gunningham-Kapphahn for the applicant (defendant) JUDGMENT BALL J. January 29, 2003 [1] The plaintiff claims that he was physically assaulted and that he lost his traditional aboriginal language and culture approximately 50 years ago, when he was student at Residential School. [2] The Attorney General of Canada (the “Attorney General”) applies to strike out the plaintiff’s claims on the grounds that they are barred by certain statutes, or alternatively that the Court has no jurisdiction over any cause of action relating to an alleged intentional tort committed by a Crown servant or employee prior to May 14, 1953. [3] The plaintiff claims that he was physically assaulted and that he suffered the loss of his traditional language and culture from 1944 until 1952, when he was attending the Qu’Appelle Residential School near Lebret, Saskatchewan (the “Residential School”). The Attorney General acknowledges that the plaintiff attended the Residential School from February of 1946 until June of 1949. [4] The plaintiff claims that the physical assaults were perpetrated by employees and staff at the Residential School. The alleged assaults included being beaten with leather strap and having his ears pulled “by Sister Elle”. The Attorney General acknowledges that Sister Ann Elle was employed at the Residential School from 1943 to 1946. The parties agree that Sister Ann Elle died on May 4, 1993. [5] Although the statement of claim makes no mention of Sister Greyeyes, the parties agree that she was one of the employees alleged to have abused the plaintiff at the Residential School. The Attorney General acknowledges that Helen Greyeyes was employed at the Residential School from 1927 to 1969. The parties agree that Helen Greyeyes died on May 19, 1988. [6] The plaintiff claims that his damages were caused by the negligence, breach of trust and breach of fiduciary duty of the Attorney General. The relevant paragraph of the statement of claim reads as follows: 19. The physical assaults and resulting injuries and lifestyle changes to the Plaintiff were caused by the negligence, breach of trust, and breach of fiduciary duty to the Defendant, the servants, agents, and employees of the Defendant, the particulars of which include but are not limited to the following: (a) the hiring of unqualified servants, agents, and teachers to administer and operate the Residential School; (b) failure to have policy or guidelines in place with respect to hiring adequate persons to serve as administrators of the Residential School; (c) failure to protect the Plaintiff from physical abuse by the agents, servants, and employees of the Defendant when they should have been alerted by the conduct and foreseeable risks within the Residential School; (d) failure in general to take proper and reasonable steps to prevent injury to the Plaintiff’s physical health and mental well-being and moral safety while the Plaintiff was student at the Residential School; and (e) having occupied position analogous to that of parent, failing to establish and maintain systems to protect the Plaintiff as good parent should. [7] On October 3, 2002, Wimmer J. granted leave to the Attorney General to amend its statement of defence and third party claim, pursuant to which the Attorney General pleads and relies upon the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as am., s. 31(d), (h) and (j) of The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am. (“LAA”), The Public Officers’ Protection Act, R.S.S. 1978, c. P-40, as am. or its predecessor legislation (“POPA”), s. 59 of The Trustee Act, R.S.S. 1978, c. T-23, as am., or its predecessor legislation, s. 10 of The Survival of Actions Act, S.S. 1990-91, c. S-66.1, as am., s. 3(1)(a) of the Crown Liability Act, S.C. 1952-53, c. 30 and s. 19 of the Exchequer Court Act, R.S.C. 1927, c. 34, as am. S.C. 1938, c. 28. [8] The Attorney General served notice of third party claim against Les Oblats de Marie Immaculee du Manitoba (the “Oblats”) alleging that the Oblats controlled and operated the Residential School at all material times. The third party claim is not relevant to this application by the Attorney General to strike out the plaintiff’s statement of claim. [9] The Attorney General seeks an order striking out the plaintiff’s claims on five alternative grounds which will be dealt with in the following sequence: (a) The plaintiff’s claims against the Attorney General [including the claim framed in trespass] are statute-barred pursuant to s. of The Limitation of Actions Act, R.S.S. 1973, c. 76, 1965, c. 84, 1978, c. L-15; (b) All of the plaintiff’s claims against the Attorney General, except the claim framed in trespass, are statute barred because they are not exempted by subsection 3(3.1) of The Limitation of Actions Act; (c) The plaintiff’s claims against the Attorney General are statute-barred pursuant to s, of The Public Officer’s Protection Act, R.S.S. 1953, c. 17, 1965, c. 21, 1978, c. P-40; (d) The plaintiff’s claim against the Attorney General based on vicarious liability for assault must be struck because the Court has no jurisdiction to adjudicate upon any cause of action relating to any alleged intentional tort committed by any Crown servant or employee that is said to have occurred prior to May 14, 1953; (e) All of the plaintiff’s claims against the Attorney General arising from the conduct of two deceased employees of the Residential School, namely, Sister Elle and Sister Greyeyes are barred by The Trustee Act, R.S.S. 1978, c. T-23 and The Survival of Actions Act, S.S. 1990-91, c. S-66.1, as amended. [10] For the reasons which follow, reject the Attorney General’s submissions on grounds (a), (b), (c) and (e) and accept its submission on ground (d). (a) Action Based on Trespass [11] The provisions of the LAA relevant to grounds (a) and (b) above are: 3(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: ... (d) actions for: (i) subject to subsection (3.1), trespass to the person, assault, battery, wounding or other injury to the person, whether arising from an unlawful act or from negligence ... within two years after the cause of action arose. ... (h) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within six years from the discovery of the cause of action. 3(2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. 3(3.1) person is not governed by limitation period and may at any time bring an action for trespass to the person, assault or battery where: (a) the cause of action is based on misconduct of sexual nature; or (b) at the time of the injury: (i) one of the parties who caused the injury was living with the person in an intimate and personal relationship; or (ii) the person was in relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury. (3.2) Subsection (3.1) applies whether or not the person’s right to bring the action was at any time governed by limitation period pursuant to this Act or any other Act. [12] The plaintiff claims that he was physically assaulted while he was in relationship of dependency with the perpetrators of the assaults. That claim is exempted from limitation period by s. 3(3.1)(b)(ii) of the LAA. The Attorney General argues however, that s. 3(3.1)(b)(ii) only exempts claims against person who actually perpetrates an alleged trespass, assault or battery, and that it does not exempt claims against persons who may be vicariously liable for that conduct. In companion judgment to this one rejected the Attorney General’s submission on that point (see [P.G.] v. Attorney General of Canada and William Brittain and Douglas Ross, 2003 SKQB 41 (CanLII) at paras. to 11). Even though the plaintiff’s claim in trespass is based on acts that are alleged to have occurred over 50 years ago, it clearly falls within the class of claims contemplated by s. 3(3.1)(b)(ii) of the LAA. As such it is exempted from any limitation period—not only insofar as the alleged perpetrators are concerned, but also as against others liable for their conduct. (b) Actions Based on Grounds other than Trespass: Statutory Limitation Periods and the Discoverability Principle [13] The Attorney General submits that all of the plaintiff’s claims not exempted from limitation period by s. 3(3.1) of the LAA, including those in negligence, breach of trust and breach of fiduciary duty are barred by ss. 3(1)(d)(i) and 3(1)(h) of the LAA. [14] A claim of negligence is subject to the two year time limitation period in s. 3(1)(d)(i) of the LAA. Even though the claim is based on events said to have occurred over 50 years ago, the two year limitation period must be calculated having regard to the principles of discoverability. It may well be impossible from practical standpoint for the plaintiff to establish, by balance of probabilities, that he did not discover, or should not with reasonable diligence have discovered, the wrongful nature of the Federal Crown’s acts and the nexus between those acts and his injuries. Nevertheless, unless there is agreement on the relevant facts (as required by Rule 188 of The Queen’s Bench Rules) or the plaintiff’s own pleadings can be relied upon to establish that the claim is barred (a proposition that was not advanced by the Attorney General), facts relevant to discoverability are best determined at trial. (See [P.G.] v. Attorney General of Canada et al., supra, at paras. 12 to 31). [15] The plaintiff’s claims of breach of trust or breach of fiduciary duty are equitable claims subject to the six year time limitation period prescribed by s. 3(1)(h) of the LAA. That limitation period explicitly begins to run “... from the discovery of the cause of action”. Again, there is no agreement on the facts and the Attorney General does not argue that the claims should be struck on the basis of the plaintiff’s own pleadings. It should therefore be left to the trial judge to determine whether the plaintiff can satisfy the requirements of discoverability. (See [P.G.] v. Attorney General of Canada et al., supra, at paras. (c) The Public Officers’ Protection Act (“POPA”) [16] The Attorney General submits that even if the LAA does not bar some or all of the plaintiff’s claims, all of them are barred by s. 2(1) of the POPA which provides: 2.—(1) No action, prosecution or other proceedings shall lie or be instituted against any person for an act done in pursuance or execution or intended execution of statute, or of public duty or authority, or in respect of an alleged neglect or default in the execution of statute, public duty or authority, unless it is commenced: (a) within twelve months next after the act, neglect or default complained of or, in case of continuance of injury or damage, within twelve months after it ceases; or (b) within such further time as the court or judge may allow. [17] Counsel for the Attorney General argues that the twelve month limitation period in s. 2(1)(a) of the POPA should be applied in priority to the more general provisions of the LAA. The same argument was rejected in [R.J.G.] v. Attorney General of Canada and Missionary Oblates-Grandin Province, 2002 SKQB 405 (CanLII), [2002] S.J. No. 602 (QL) (Q.B.), leave to appeal granted on December 3, 2002 in 2002 SKCA 132 (CanLII), on the basis that the POPA does not apply to persons carrying out duties and responsibilities on behalf of the Government of Canada. Although the court did not explain why it came to that conclusion in [R.J.G.], supra, it could have done so for two reasons. [18] First, the decision in [R.J.G.] is consistent with various decisions dealing with Ontario legislation very similar to the POPA (namely s. of the Ontario Public Authorities Protection Act, R.S.O. 1990, c. P.38 which contains six month limitation period). In Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), [1979] S.C.R. 275, Estey J. stated at para. 21 that the Ontario legislation should be read restrictively, and that it does not apply to activities of an internal or operational nature having predominately private aspect. In Des Champs v. Conseil des Écoles Séparées Catholiques de Langue Française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] S.C.R. 281 and the companion case of Abouchar v. Ottawa-Carleton French-Language School Board-Public Sector, 1999 CanLII 661 (SCC), [1999] S.C.R. 343, the Supreme Court of Canada confirmed that approach. In Des Champs, the majority of the Supreme Court held that the legislation could not be invoked to protect actions of public authority “of an internal or operational character” or that are “distinct, separate, subordinate and incidental” to the execution of the public mandate (per Binnie J. at paras. 56 and 58). In Abouchar, Binnie J. held at paras. and that the time limitation period did not apply because the plaintiff’s claim related to duties of the respondent school board that were “... incidental or subordinate to the direct performance by the respondent Board of its public mandate and are predominately of private character”. In Jadwani v. Canada (Attorney General) (2000), 2000 CanLII 22333 (ON SC), 47 O.R. (3d) 276 at para. 26 (S.C.J.), Lalonde J. came to the same conclusion. [19] Applying the reasoning in all of the above decisions to the circumstances in both [R.J.G.] and this case, it can appropriately be said that the claims relate to internal management of the Residential Schools and acts that were “distinct and separate” from any public mandate. As such, the 12 month time limitation period under s. of the POPA does not apply. [20] second reason supporting the court’s conclusion in [R.J.G.] is that the limitation period in the POPA is set aside by s. 3(3.2) of the LAA for actions which fall within the scope of s. 3(3.1) of the LAA. This is evident from the clear language of s. 3(3.2) of the LAA. For ease of reference, s. 3(3.2) reads: 3(3.2) Subsection (3.1) applies whether or not the person’s right to bring the action was at any time governed by limitation period pursuant to this Act or any other Act. [Emphasis added] [21] Even if the time limitation period in the POPA applies to claims other than those described in s. 3(3.1) of the LAA (i.e., even if the [R.J.G.] decision was wrong), time begins to run under s. 2(1)(a) of the POPA only when the alleged injury or damage ceases. The plaintiff alleges continuing injury and damage. There is no agreement as to when that alleged injury or damage ceased. That is factual matter to be dealt with at trial. [22] For the above reasons adopt the [R.J.G.] decision and in any event conclude that the POPA does not bar the plaintiff’s claim from proceeding to trial. (d) Intentional Torts Occurring Before May 14, 1953: Proclamation of the Crown Liability Act [23] The Attorney General submits that this Court has no jurisdiction to hear or adjudicate upon any cause of action relating to an alleged intentional tort occurring before the proclamation of the Crown Liability Act on May 14, 1953. The reasoning is straightforward: Before the enactment of the Crown Liability Act on May 14, 1953, no action could be taken against the Crown for the intentional torts of its officers or servants; After May 14, 1953, claims against the Crown based upon the torts of its officers and servants, both negligent and intentional, were permitted by the Crown Liability Act and its successor legislation; The Crown Liability Act did not operate retrospectively to permit claims against the Crown for intentional torts committed prior to May 14, 1953; Section 3(3.1) of the LAA does not create causes of action, but simply removes statutory time limitation periods barring otherwise existing actions; Therefore, the Crown remains immune from claims for trespass, assault and battery committed by its servants and officers before May 14, 1953. That immunity applies to the claim in this case, which is based on alleged assaults at the Residential School between approximately 1944 and 1952. [24] agree with the Crown’s submission as it relates to the intentional torts of trespass, assault and battery. [25] Before May 14, 1953, the Crown was subject to claims for negligence pursuant to s. 19(c) of the Exchequer Court Act, which provided: 19. The Exchequer Court shall also have exclusive original jurisdiction to hear and determine the following matters:— (c) Every claim against the Crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment. [26] This liability for the negligence of the Crown’s officers or servants was expanded to include intentional torts by s. 3(1) of the Crown Liability Act which provided: 3.(1) The Crown is liable in tort for the damages for which, if it were private person of full age and capacity, it would be liable (a) in respect of tort committed by servant of the Crown, or (b) in respect of breach of duty attaching to the ownership, occupation, possession or control of property. [27] The Crown’s liability for intentional torts was confined to acts occurring after the proclamation of the Crown Liability Act on May 14, 1953 by virtue of s. 24(1), which states: 24.(1) No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to. [28] Peter W. Hogg and Patrick J. Monahan in Liability of the Crown, 3d ed. (Toronto: Carswell, 2000) review the history of Crown liability for intentional torts at c. 6.1, pp. 108-110: (a) Crown Immunity The history of proceedings against the Crown was briefly traced in chapter 1. In the nineteenth century, the petition of right, which had become the principal means of suing the Crown, was held not to be remedy in tort. The reasoning in those early tort cases—that “The King can do no wrong”—we can now see to be misconceived, but the cases became firmly established as the law. Since no remedy other than the petition of right was available to sue the Crown in tort, the Crown became immune. (b) Early statutory reform ... Until the 1950s, Quebec was the only Canadian jurisdiction in which the Crown was generally liable in tort. However, the Federal Exchequer Court Act did impose an important measure of liability on the Crown in right of Canada. In 1887, provision was included which conferred jurisdiction on the Exchequer Court over claims against the Crown for the negligence of Crown servants, but only if the negligence occurred “on public work”. This provision, although in terms only conferring jurisdiction on the Exchequer Court, was interpreted as imposing liability on the Crown for the negligence of Crown servants on public work. Inevitably, however, the meaning of the “public work” limitation provoked litigation, and in 1938 the limitation was removed. From then until the broader reform of 1951, the Crown in right of Canada was liable for “the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment”. This imposed an extensive area of liability; but it excluded torts other than negligence, and even in the case of negligence its scope was incomplete. [29] The “broader reform of 1951” to which the authors refer led to the enactment of the Crown Liability Act which was proclaimed on May 14, 1953. That legislation imposed liability on the Crown in respect of all torts committed by its servants. The Act has been renamed the Crown Liability and Proceedings Act [S.C. 1990, c. 8, s. 20] and substantially amended, but s. 3, the provision imposing tortious liability, remains the same. [30] In 1952, even as the Crown Liability Act was being considered by Parliament, the Exchequer Court held that the Crown was immune from tortious claims not expressly permitted by s. 19(c) of the Exchequer Court Act. In Magda v. R., [1953] Ex. C.R. 22, President Thorson stated at pp. 29-30: The only matter that is before the Court is the bare question of law, namely, whether the suppliant has any legal claim against the Crown even if he should be able to prove that the allegations in his petition of right are true and establish that he was unlawfully imprisoned and interned and that the acts of which he complains were wrongful. The answer to this question must, in the present state of the law, be in the negative. Consequently, must hold that even if the allegations in the petition of right are true and even if the suppliant was unlawfully imprisoned and unlawfully interned and even if the acts of which he complains were wrongful he is not entitled to any relief as against the Crown and his claim for damages must be wholly denied. The reason for this is that in the present state of the law no petition of right lies against the Crown in right of Canada for any tort, or “faute”, to use the language of Article 1053 of the Civil Code of Quebec, committed by an officer or servant of the Crown while acting within the scope of his duty or employment except for such tort or segment of “faute” as will give rise to claim expressly permitted by statute, as under section 19(c) of the Exchequer Court Act, R.S.C. 1927, chap. 34, and that the allegations in this petition are not allegations of acts of negligence within the meaning of that section. And further on at p. 30: ... measure of reform that will remove this defect in the law is before the present session of Parliament but it cannot affect the present case. [31] In 1993, s. 24(1) of the Crown Liability Act was interpreted as continuing Crown immunity for intentional torts committed by an officer or servant of the Crown before 1953. (See Mayrhofer v. Canada (T.D.), 1993 CanLII 2919 (FC), [1993] F.C. 157 (F.C.T.D.), per Teitelbaum J. at pp. 170-171. [32] More recently, the Ontario Superior Court of Justice reviewed the history of that court’s jurisdiction over claims against the Federal Crown for matters predating May 14, 1953. In M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (QL), Haines J. stated at paras. 14-16: Conduct Prior to 1953 ¶14 The 1953 Crown Liability Act gave provincial courts jurisdiction to deal with claims under s. 3(1) but it also included provision that limited the Crown's liability to acts that occurred after the proclamation of the Act. Subsection 24(1) reads: No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to. ¶15 The defendants submit that this provision bars the taking of proceedings against the Crown or her agents for anything that occurred or existed before May 14, 1953, the date the Act came into force. They also contend that the Crown Liability and Proceedings Act is the only vehicle available for bringing proceedings against the Attorney General of Canada in provincial court: ss. 21 and 23. The defendants, therefore argue that insofar as the plaintiffs purport to bring this action against the Crown pursuant to the Crown Liability and Proceedings Act and against the other defendants as Crown agents, they have failed to plead cause of action that this court has jurisdiction to entertain with respect to anything that occurred before May 14, 1953. agree with this submission. ¶16 It seems to me that the language of s. 24(1) is clear and its meaning unambiguous. It may be that the plaintiffs have cause of action they can pursue under the Exchequer Court Act or its successor, the Federal Court Act, R.S.C., 1985 c. F-7, as amended, but, in my view, it is plain and obvious that any claims arising from acts or omissions that predate May 14, 1953 cannot succeed in this court under the Crown Liability and Proceedings Act. [33] The law is clear that the plaintiff cannot pursue claim against the Federal Crown for the intentional tort of trespass, assault and battery of its officers and servants occurring prior to May 14, 1953. Although Haines J. in M.C.C. v. Canada (Attorney General), supra, decided that a provincial court has no jurisdiction to entertain any claim against the Federal Crown arising from acts or omissions that predate May 14, 1953, my decision is based on the narrower ground that this Court has no jurisdiction to entertain claims arising from the intentional torts of officers and servants of the Crown occurring before the proclamation of the Crown Liability Act on May 14, 1953. [34] limit my conclusion for two reasons. First and foremost, the Attorney General makes no application to strike the plaintiff’s claim in negligence (or any other claim) on the ground that it must be brought in another court. Second, the plaintiff’s claims based on breach of trust and breach of fiduciary duty are claims for equitable relief. The ability to obtain equitable relief against the Crown by means of an ordinary action against the Attorney General was upheld in Dyson v. Attorney-General, [1911] K.B. 410 (C.A.) in which the English Court of Appeal decided that the Court of Exchequer’s power to give equitable relief could be exercised by all divisions of the High Court. Obtaining declaration against the Crown in an action in which the Attorney General is named as the defendant became known as the Dyson procedure—a procedure that was and is available in Canada in every jurisdiction except New Brunswick and Nova Scotia. (See Hogg and Monahan, Liability of the Crown, c. 1.3(b), p. and c. 2.3(d), pp. 27-28 and authorities cited therein. See also Canex Placer Ltd. v. Attorney General of British Columbia (1975), 1975 CanLII 944 (BC CA), 58 D.L.R. (3d) 241 (B.C.C.A.) and Borowski v. Canada (Minister of Justice), 1980 CanLII 2238 (SK QB), [1980] W.W.R. 283 (Sask. Q.B.) per Hughes J. ). (e) Claims Against Deceased Perpetrators: The Trustee Act and The Survival of Actions Act [35] The Attorney General submits that the plaintiff’s claims against the Federal Crown are barred by virtue of the combined effect of ss. 10 and 24 of the Crown Liability and Proceedings Act and s. 59 of The Trustee Act (as the claims relate to Sister Greyeyes) or s. 10 of The Survival of Actions Act (as the claims relate to Sister Elle). [36] understand the Attorney General’s argument to be that s. 10 of the Crown Liability and Proceedings Act prevents any action from being taken against the Crown in respect of an act or omission of servant of the Crown unless an action could also be brought against that servant or the servant’s personal representative. Next, counsel argues, no action could be brought against Sister Greyeyes or her estate because when she died on May 19, 1988, s. 59 of The Trustee Act was in force and required actions to be commenced within one year of her death. When Sister Elle died on May 4, 1993, s. 59 of The Trustee Act had effectively been replaced by the one year time limitation period now found in s. 10 of The Survival of Actions Act-a limitation which bars any action against Sister Elle or her estate. Finally, the Crown argues, s. 24 of the Crown Liability and Proceedings Act entitles the Federal Crown to take the benefit of any defence that would be available to Sister Greyeyes if the plaintiff’s claim had been made against her. [37] Dealing firstly with the Attorney General’s submission with respect to Sister Greyeyes, s. 10 of the Crown Liability and Proceedings Act and s. 59 of The Trustee Act provide as follows: The Crown Liability and Proceedings Act 10 No proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in respect of any act or omission of servant of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to cause of action for liability against that servant or the servant’s personal representative or succession. The Trustee Act 59. If deceased person committed wrong to another in respect of his person or of his real or personal property, except in cases of libel and slander, the person so wronged may maintain an action against the executors or administrators of the person who committed the wrong, but such action shall be brought within one year after the decease. [38] Section 10 of the Crown Liability and Proceedings Act has generally been regarded as applicable to actions against the Crown based upon vicarious, not direct, liability. In order for liability to fall on the Crown, plaintiff must show that Crown servant or servants, acting within the scope of employment, breached duty that was owed to the plaintiff. The plaintiff must additionally establish that the breach caused the plaintiff’s injury of sort that would attract personal liability against private person. (See Air Canada v. Canada (Minister of Transport), 1999 CanLII 7953 (FC), [1999] 165 F.T.R. 60 at para. 38 (F.C.T.D.); Olympia Janitorial Supplies v. Canada (Minister of Public Works), [1(997] F.C. 131 at para. 22 (F.C.T.D.), per Wetston J. (See also P. Lordon, Crown Law (Toronto: Butterworths, 1991) at pp. 327, 335 and 340). Once the plaintiff has satisfied the requirements of s. 10, the Crown’s vicarious liability follows. [39] have already decided that this Court has no jurisdiction to entertain claim against the Federal Crown based on its vicarious liability for assaults said to have occurred before May 14, 1953. It is therefore unnecessary for me to decide whether the same claim, to the extent that it may be based on the intentional tort of the now deceased Sister Greyeyes, is also barred by the combination of legislation relied upon by the Attorney General. Nevertheless, it seems apparent that s. 59 of The Trustee Act does not bar any aspect of the plaintiff’s claim described in s. 3(3.1) of the LAA for the same reason s. 2(1) of the POPA does not do so: the time limitation periods are abrogated by s. 3(3.2) of the LAA (see para. 22 above). Since there is no limitation period barring the cause of action against Sister Greyeyes or her estate, there can be no provincial limitation period available to the Federal Crown under s. 24 of the Crown Liability and Proceedings Act. [40] Whether or not the plaintiff’s claims against the Federal Crown based on negligence, breach of trust and/or breach of fiduciary duty are barred by the combination of legislation relied on by the Attorney General turns on whether those claims are based on vicarious liability or direct liability. The difference between the two is neatly summarized in Hogg and Monahan, Liability of the Crown (3d) ed., as follows at c. 6.2(b), p. 115: ... Direct liability involves the breach of duty owed to the injured plaintiff by the master, whereas vicarious liability involves the breach of duty owed to the plaintiff by the servant. In the case of direct liability, it is immaterial whether servant owed duty to the plaintiff, and in the case of vicarious liability it is immaterial whether the master owed duty to the plaintiff. [41] The plaintiff’s claims of negligence, breach of trust and breach of fiduciary duty are claims of direct liability alleging the breach of a duty owed to the plaintiff by the Federal Crown independently from any duty owed to the plaintiff by Sister Greyeyes. Claims based on the direct liability of the Crown are not affected by time limitation periods applicable to Sister Greyeyes or her estate. [42] Finally, counsel for the Attorney General submits that the plaintiff’s claim against Sister Elle, who died on May 4, 1993, is barred by virtue of s. 10 of The Survival of Actions Act. Section 5 and s. 10(1), (3) and (4) of The Survival of Actions Act, provide: If cause of action for damages suffered by reason of an act or omission would have existed against person had that person not died at or before the time the damage was suffered, the cause of action is deemed to have existed against the person before that person’s death. 10(1) Notwithstanding The Limitation of Actions Act or any other Act limiting the time within which an action may be brought, cause of action that survives pursuant to this Act is not barred until the expiry of the period provided by this section. (3) Proceedings on cause of action that is deemed to continue pursuant to section may be brought: (a) within the time otherwise limited for the bringing of the action, which is to be calculated from the date the damage was suffered; or (b) within one year from the date the damage was suffered; whichever is the longer period. (4) Subject to subsection (5), this Act does not operate to revive any cause of action in or against person that was barred at the date of that person’s death. [43] In my view, the above legislation does not bar the plaintiff’s claims. With respect to the trespass claim within s. 3(3.1) of the LAA, s. 3(3.2) of the LAA abrogates the time limitation period in s. 10(3)(b) of The Survival of Actions Act. The other claims are made directly against the Federal Crown and are not affected by time limitation periods applicable to Sister Elle or her estate. SUMMARY [44] The plaintiff’s claim based on the intentional tort of assault committed by a servant of the Crown before May 14, 1953, is struck. The plaintiff’s claim based on negligence is subject to the two year time limitation period prescribed by s. 3(1)(d) of the LAA and his claims alleging breach of trust and breach of fiduciary duty are subject to the six year time limitation period in s. 3(1)(h) of the LAA. Both time limitation periods are to be calculated having regard to principles of discoverability with relevant factual issues to be dealt with at trial. [45] will receive written submissions from both parties with respect to costs, to be filed within 30 days.","The Attorney General applied to strike out the plaintiff's claims on the grounds they are statute-barred by virtue of the LAA s.3 and that all the claims except for trespass to person are not exempted by s.3(3.1); by POPA s.2; alternatively, the Court has no jurisdiction over any cause of action relating to intentional torts committed by a Crown servant or employee prior to May 14, 1953; all claims arising from the conduct of two deceased Sisters who died in 1988 and 1993 are barred by the TA and SAA. The plaintiff claimed he was physically assaulted by employees and staff and suffered the loss of his traditional language and culture between 1944 and 1952 while attending the Qu'Appelle Residential School. The AG acknowledged the plaintiff attended the school from 1946 until 1949. The AG in a previous application was granted leave to amend its statement of defence and third party claim to plead and rely upon the Crown Liability and Proceedings Act; Limitations of Actions Act ss.31(d),(h) and (j); Public Officers' Protection Act; Trustee Act s.59, or its predecessor legislation Survival of Actions Act s.10; Crown Liability Act s.3(1)(a) and the Exchequer Court Act s.19. A third party claim against the Oblats alleging they controlled and operated the residential school at all material times, was not relevant on this application. HELD: 1)The claim based on physical assault by the Sisters was struck. The Court has no jurisdiction over any cause of action relating to intentional torts committed by a Crown servant or employee prior to May 14, 1953. The Crown remains immune from claims for trespass, assault and battery committed by servants and officers before the enactment of the Crown Liability Act in 1953 (renamed the Crown Liability and Proceedings Act in 1990), which did not operate retroactively. The LAA s.3(3.1) does not create a cause of action but simply removes statutory time limitation periods barring otherwise existing actions. Before May 14, 1953 the Crown was subject to claims for negligence pursuant to the Exchequer Court Act s.19(c). The Dyson procedure is available in Canada in every jurisdiction except New Brunswick and Nova Scotia. 2)The claim based on negligence is subject to the two year time limitation prescribed by LAA s.3(1)(d) which must calculated having regard to the principles of discoverability. 3)The claims of breach of trust and breach of fiduciary duty are equitable claims subject to the six year time limitation in LAA ss.3(1)(h) which explicitly begins to run from the discovery of the cause of action (PG v. AG Canada). Relevant factual issues are to be dealt with at trial. 4)Even though the claim in trespass is based on acts alleged to have occurred over 50 years ago, it clearly falls within the class of actions contemplated by LAA s.3(3.1)(b)(ii). As such it is also exempted from any limitation period against others liable for the conduct. 5)The argument that the 12 month limitation period in POPA s.2(1)(a) should be applied in priority to the more general provisions of the LAAA was rejected in RJG v. AG Canada. 6)Claims based on direct liability of the Crown for negligence, breach of trust and fiduciary duty are not affected by time limitation periods applicable to the deceased Sister Greyeyes and her estate. The time limitation periods are abrogated by LAA s.3(3.2). Since there is no limitation period barring an action against the Sister or her estate, there can be no provincial limitation period available to the Federal Crown under CLPA s.24. 7)The other claims made directly against the Federal Crown are not affected by limitation periods applicable to Sister Elle or her estate. SAA ss.5 and 10(1),(3) and (4) do not bar the claims against her.  LAA s.3(3.2) abrogates the time limitation in SAA s.10(3)(b).",c_2003skqb46.txt
170,"nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 69 Date: 20120628 Between: Docket: CACR2177 Valerica Cretu and The Attorney General of Canada (on behalf of Romania) Before: Caldwell J.A. Counsel: Chris Veeman for the Applicant Bruce Gibson for the Respondent Application: From: Pursuant to the Extradition Act, S.C. 1999, c. 18 Heard: June 27, 2012 Disposition: Dismissed Written Reasons: June 28, 2012 By: The Honourable Mr. Justice Caldwell Caldwell J.A. [1] Valerica Cretu applies for judicial interim release pursuant to s. 20(b) of the Extradition Act, S.C. 1999, c. 18, and s. 679 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Cretu is Roma and Romanian national who has resided in Canada since his arrival here exactly eight years ago. Romania seeks Mr. Cretu’s extradition from Canada so that he might serve a three-year prison sentence imposed as a result of his conviction, in that country, for criminally negligent homicide (an offence equivalent to that of manslaughter in Canada). Romania is represented in this proceeding by the Attorney General for Canada. [2] The factual background to this application is as follows. On October 6, 2002, Mr. Cretu, then a resident of Romania, while driving his car struck and killed a pedestrian. Mr. Cretu did not remain at the scene of the collision. He was later apprehended and he admitted consuming alcohol and striking the victim. Romania charged him with criminally negligent homicide and leaving the scene of an accident. According to Romanian court records, Mr. Cretu admitted his wrongdoing and, on December 19, 2003, he was convicted and sentenced to two years on the former offence and ten months on the latter, which sentences were to be served concurrently but as non-custodial sentences. He also received four years’ probation. [3] Mr. Cretu appealed the decision; but, on April 29, 2004, Romanian court increased the non-custodial portion of his sentence to three years and extended the probationary term of his sentence to five years. Then, on December 7, 2004, an appellate court converted the three-year non-custodial portion of Mr. Cretu’s sentence to three years imprisonment. In his affidavit Mr. Cretu says the conversion of his sentence to term of imprisonment occurred after Romanian authorities had learned of his absence from that country and then re-opened his criminal case. However, Romanian court documents (which were exhibited to Romania’s affidavit in support of its opposition to the within application) indicate Mr. Cretu had initiated, at least in part, the appeals which underlay the December 7, 2004, decision of the Romanian appellate court. [4] Upon his arrival in this country on June 27, 2004, Mr. Cretu was detained by Canadian authorities for approximately seven weeks, during which time he made claim for refugee protection pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In his refugee claim documents, he disclosed his criminal conviction and sentence in Romania. He was ultimately released from detention in 2004 on the strength of $5,000 cash and surety bond. He then relocated to Saskatoon, Saskatchewan. On August 1, 2006, the Refugee Protection Division of the Immigration and Refugee Board of Canada determined Mr. Cretu to be “Convention refugee” and therefore entitled to protection as refugee under the Immigration and Refugee Protection Act, which status he continues to hold today. “Convention” refers the United Nations Convention Relating to the Status of Refugees (the “Convention”), to which Canada is signatory. [5] In 2007, Romania initiated extradition proceedings against Mr. Cretu. He was briefly detained by Canadian police in 2007, although there is some uncertainty as to whether Canadian authorities had actually issued warrant for his arrest at that time. In either case, he was released and heard nothing more for five years. [6] On March 8, 2012, the Minister of Justice (Canada) (the “Minister”) issued an Authority to Proceed in relation to Mr. Cretu pursuant to s. 15 of the Extradition Act. The Authority to Proceed authorized the Attorney General of Canada to seek an order for Mr. Cretu’s committal for extradition to Romania. On June 5, 2012, the Minister substituted the Authority to Proceed seeking an order of committal in relation to conduct which corresponds to the Criminal Code offence of manslaughter, contrary to s. 234. [7] On May 30, 2012, the Court of Queen’s Bench for Saskatchewan issued warrant for Mr. Cretu’s arrest. He was arrested on June 7, 2012, and judge of the Court of Queen’s Bench ordered Mr. Cretu’s continued detention based on the primary and tertiary grounds set out in ss. 515(10)(a) and (c) of the Criminal Code. [8] On June 14, 2012, the Queen’s Bench judge heard committal application in relation to Mr. Cretu and ordered him committed for extradition in respect of the offence of manslaughter. The judge also ordered that he remain in custody and he remains in custody pursuant to that order. Mr. Cretu has not appealed from the committal order. [9] Pursuant to s. 40(1) of the Extradition Act, the Minister may, within 90 days after the date Mr. Cretu’s committal, order his surrender to Romania. However, under s. 43 of the Extradition Act, Mr. Cretu has the opportunity to make submissions to the Minister on any ground which may be relevant to the Minister’s decision regarding his surrender, but he must make these submissions within 30 days of his committal order. [10] By this application, Mr. Cretu seeks an order of this Court releasing him from custody pending the Minister’s decision on his surrender to Romania. Romania opposes the application. [11] Section 20 of the Extradition Act provides that Mr. Cretu’s application for judicial interim release shall be determined pursuant to s. 679 of the Criminal Code, with any modifications that the circumstances require. It is important to note that s. 20 of the Extradition Act incorporates the provisions of s. 679 of the Criminal Code, as opposed to those of s. 515 of the Criminal Code. Section 679 deals with the judicial interim release of an offender pending an appeal against conviction or sentence; whereas, s. 515 deals with the judicial interim release of an accused pending trial. The tests which must be met by an applicant under s. 679 and under s. 515 differ in part in recognition of the fact that the jeopardy facing the applicant is more immediate in an application for judicial interim release pending an appeal against conviction or sentence than it is in an application for judicial interim release pending trial. Furthermore, the authority of the reviewing court under s. 679 is confined to determining whether an individual should be released from custody; the Court is not empowered to delve into the validity of the proceedings against the applicant or to assess, other than in limited way, the merits of the applicant’s appeal therefrom or response thereto. [12] Section 679(3) of the Criminal Code is straightforward. For the purposes of Mr. Cretu’s application, he must establish the following three things to obtain his release from custody pending the Minister’s decision under s. 40 of the Extradition Act: (a) the appeal or application for leave to appeal is not frivolous [i.e., his submissions to the Minister are not frivolous]; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [13] Turning to s. 679(3)(a) of the Criminal Code, Mr. Cretu must establish that his grounds of appeal are not frivolous. In the context of review by the Minister under s. 40 of the Extradition Act, this means that he must establish that his s. 43 submissions to the Minister are not frivolous. Here, the Crown concedes that Mr. Cretu has met this low threshold. agree. He is Convention refugee. It is not my place to look behind that status on an application of this nature. It is sufficient that Mr. Cretu’s status as Convention refugee affords an arguable basis for submitting to the Minister that he should not be surrendered to Romania. also accept that Mr. Cretu’s submissions to the Minister under s. 43 of the Extradition Act represent his best opportunity to avoid his surrender to Romania. As such, although there is limited evidence before me as to the nature of the case to be met or of his intended submissions in that respect, am, nevertheless, satisfied that Mr. Cretu has met the s. 679(3)(a) threshold in that his submissions to the Minister will not be frivolous. [14] As Mr. Cretu has recognized in his materials, the second test under s. 679(3) presents the most difficult hurdle for him to clear. Under s. 679(3)(b), he must establish that he will surrender himself into custody in accordance with the terms of any order for his release. [15] At the outset, Romania points to the jurisprudence under s. 20 of the Extradition Act which stands for the proposition that adherence to the principle of honouring Canada’s international obligations requires that court, when considering an application for judicial interim release in an extradition proceeding, limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in the case of domestic proceedings, see: United States of America v. Ross (5 July 1993), Vancouver Registry No. CA017111 (C.A.), at para. 15; United States of America v. Edwards, 2010 BCCA 149 (CanLII), 288 B.C.A.C. 15 at para. 18; and United States of America v. Ibrahim, 2012 BCCA 278 (CanLII), at para. 26, among others. [16] Mr. Cretu notes that in none of the cases cited by Romania was the applicant Convention refugee; as is Mr. Cretu. He submits this fact, and the recent decision of the Supreme Court of Canada in Németh v. Canada (Justice), 2010 SCC 56 (CanLII), [2010] S.C.R. 281, leads one to the conclusion that Canada’s legal obligations under the Convention with respect to non-refoulement displace the limiting effect of its legal obligations under international extradition treaties on level of acceptable risk under the s. 679(3)(b) test; or, as he more bluntly put it, when it comes to the assessment of flight-risk Convention refugee “deserves the benefit of the doubt.” [17] recognize Canada has international obligations under the Convention with respect to non-refoulement, which ostensibly protects refugee (i.e., victim of persecution) from being surrendered to his or her home-jurisdiction (i.e., usually, the persecutor). However, while Canada’s legal obligations with respect to non-refoulement are squarely before the Minister (given the nature of his pending decision under s. 40 of the Extradition Act), Mr. Cretu’s application before this Court is for judicial interim release and does not, in my opinion, engage those legal obligations. More directly, fail to see how either Mr. Cretu’s release or his continued detention pending the Minister’s decision could run afoul of Canada’s international non-refoulement obligations. Put simply, Mr. Cretu’s status as Convention refugee and Canada’s non-refoulement obligations do not displace the well-established requirement that court considering an application for judicial interim release in an extradition proceeding must limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in the case of an application for judicial interim release brought by an offender under the Criminal Code. It is also common sense that the risk of non-appearance in extradition cases is higher in light of the fact the extradition proceedings arise because the detainee does not wish to be returned to the extradition partner. [18] As to the merits of his application, Mr. Cretu submits that it would be “non-sensical” for him to flee prior to the Minister’s decision on surrender as this would, obviously, not stand in his favour with respect to that pending decision. And, as noted, Mr. Cretu says he recognizes that favourable decision from the Minister represents his best opportunity to avoid surrender to Romania. In furtherance of that recognition, Mr. Cretu submits his release will allow him to more effectively deal with Romania’s attempt to extradite him. He says he has experienced difficulties contacting his Calgary-based legal counsel from the correctional centre in Saskatoon where he is being detained which difficulties would be ameliorated by his release. [19] As to flight-risk, Mr. Cretu points to his roots in the community. Among other things, he is in long-term relationship and his common law spouse has agreed to act as his surety. He has been gainfully employed, by the same employer, since 2009. His employer states, in letter exhibited to Mr. Cretu’s affidavit, that he will re-employ Mr. Cretu as soon as he is released from detention. He is well-known in the local Romanian community and member of that community has agreed to act as surety to assist him in obtaining his release. He has also submitted several letters from references who aver to his good character. He states he seeks his release so that he can contribute to his family by working and helping at home. [20] As to other flight-risk factors, although he acknowledges number of driving infractions, he points out he has no criminal convictions in Canada. Mr. Cretu says he has no passport and no Romanian identification and will undertake not to apply for passport or other travel documentation if he is released. Mr. Cretu does not own any real property and is of limited means, but he will put up his Mercedes Benz C230 vehicle as collateral to be forfeited if he fails to surrender to authorities. He estimates its value at $20,000. [21] Romania opposes Mr. Cretu’s release chiefly on the ground that he poses an unacceptable flight-risk if released from detention. Romania submits Mr. Cretu has failed to proffer satisfactory evidence to overcome the heightened risk of his non-appearance. As to the factors set forth by Mr. Cretu, Romania counters that Mr. Cretu’s roots in the community are minimal. He resides with his common law partner of four years, but offers minimal information about his intended activities upon release. He owns no real property and has identified no significant activities which connect him to the jurisdiction. In my opinion, Romania’s characterisation in this respect must be qualified because it overlooks the fact that Mr. Cretu has family and long-term employment in the jurisdiction. However, Romania makes several compelling counterpoints with respect to the nature and assessment of the flight-risk posed in the circumstances. [22] In its oral submissions, Romania argued that the surety package proposed by Mr. Cretu is not satisfactory. As noted, the sureties proffered by Mr. Cretu are his common law spouse and member of the Romanian community in Saskatoon. Romania submits the affidavits from these sureties do not set out any supervision plans and provide no assistance to show how either proposed surety would or could actually ensure that Mr. Cretu abided by any conditions which might be imposed on his release. Further, as to the proposed surety from the Romanian community, there is no indication as to how long the surety has known Mr. Cretu and the surety candidly acknowledged that he received conditional discharge in January 2012 for domestic assault and is therefore presumably himself subject to conditions restricting his activities in the community. As to the actual security proffered, Romania insists the cash and non-cash bond amounts offered by Mr. Cretu and his sureties are, in total, insufficient. Mr. Cretu has no real property and Romania views the potential forfeiture of his personal vehicle as being of little assurance. In sum, Romania submits there is little in Mr. Cretu’s proposed surety package which would give him an incentive to surrender himself into custody. [23] On the whole, Mr. Cretu’s submissions under s. 679(3)(b) were well-argued and directed to the issues at hand. That said, the strongest factor in Mr. Cretu’s favour under s. 679(3)(b) is, in my assessment, the fact that when he was released from detention in 2004 on the strength of $5,000 cash and surety bond he appears to have complied with the terms of that release. Nevertheless, Romania correctly, in my opinion, submits Mr. Cretu has provided few substantive assurances that he will surrender himself into custody given the risk posed. [24] In that respect, Romania notes that Mr. Cretu fled Romania in 2004 in the face of what was then sentence of community-based incarceration and with an appeal of that sentence pending. Romania submits that Mr. Cretu’s failure to abide by the terms of community-based sentence illustrates his inability to comply with court orders in general. Furthermore, the sentence to which he is subject in Romania is now that of three years imprisonment and his rights of appeal in that country are now, according to Romania, exhausted. In addition, Romania notes that Mr. Cretu is also subject to court order to pay damages to the deceased victim’s estate with which he has not, but presumably could have, complied even though he has resided in Canada for the past eight years. These facts, Romania contends, all serve to heighten the risk of Mr. Cretu’s non-compliance with the terms of any order for his release. [25] The risk of non-appearance is further heightened, in Romania’s submission, by the fact Mr. Cretu has now been committed for extradition. In this respect, see: United States of America v. Ross, at para. 12. It is also of considerable note that Mr. Cretu does not face trial in Romania with potential for conviction and then potential incarceration; he has already been convicted and sentenced to term of imprisonment in that country. [26] Mr. Cretu says that his flight from Romania was precipitated by his persecution in that state and that his Convention refugee status indicates an acceptance by Canada of the gravamen of that persecution as fact and nothing before me displaces that fact. He submits his failure to abide by the terms of his Romanian sentence cannot be taken as indicative of an inability to, or determination not to, abide by court orders. have considered this argument but conclude the nature of the application before me is such that must also accept the substance of the Romanian court documents as fact. While Mr. Cretu invites me to look behind these documents to the gravamen of his persecution in Romania, this is not an inquiry can make on the limited materials available to me; nor, in my view, is it appropriate for me to make such an inquiry as these are matters clearly and properly left to the Minister under s. 40 of the Extradition Act. [27] Nor do propose to look behind Mr. Cretu’s Convention refugee status; that he holds this status is fact as well. However, any question as to whether he would face persecution if he is surrendered to Romania in 2012 or after is matter for the Minister to determine under s. 40 of the Extradition Act. Furthermore, it is fact that he failed to abide by the terms of his Romanian community-based sentence and has not satisfied the compensation judgment awarded against him. In this respect, all of Romania’s points are well-made in that these facts do serve to elevate the risk of Mr. Cretu’s non-appearance. [28] In my assessment, the elevated risk of flight in light of the committal order, Mr. Cretu’s failure to abide by a community-based sentence, the nature of the sentence to which he is now subject in Romania, the exhaustion of his appeal rights in Romania, and his desire not to be returned to Romania are important considerations in this case. These considerations are met, to some degree, by Mr. Cretu’s compliance with his 2004 release conditions and his connections to this jurisdiction. Nevertheless, as noted, Canada’s international obligations in extradition proceedings mean that must limit the assumption of risk of non-appearance in this case more severely than the Court would do in an application by an offender made directly under s. 679 of the Criminal Code. In this respect, although reject Romania’s characterisation of Mr. Cretu’s ties to the community as being “minimal”, neither are they great. Finally, Romania’s submissions as to the deficiencies in the nature and extent of the sureties proffered by Mr. Cretu are compelling and I have concluded that the risk of non-appearance is such that it cannot be sufficiently mitigated by release conditions which, on the materials before me, he might be able to meet. [29] Put simply, Mr. Cretu has not established that he will surrender himself into custody were to release him. do not mean to say that the onus on him under s. 679(3)(b) is insurmountable in this case; rather, find that he has not met that onus on the materials before the Court at this juncture. [30] In light of my conclusion under s. 679(3)(b), there is no reason to consider the third test under s. 679(3)(c). [31] I hereby dismiss Mr. Cretu’s application for interim judicial release. DATED at the City of Regina, in the Province of Saskatchewan, this 28th day of June, A.D. 2012. “Caldwell J.A.” Caldwell J.A.","The applicant applied for judicial interim release under s. 20(b) of the Extradition Act and s. 679 of the Criminal Code. Romania sought extradition of the applicant so that he might serve a 3 year prison sentence imposed as a result of a conviction in Romania for criminally negligent homicide with respect to a motor vehicle collision where the accused, while impaired, hit a pedestrian and killed him. The applicant offered surety from the Romania community in Saskatchewan who did not appear to have known the accused for long and offered to put up his car as bond. The applicant had common law spouse in Saskatchewan but owned no real property. HELD: Although the Crown conceded that the applicant had met the relatively low threshold of showing that his application for leave to appeal his extradition order was not frivolous, the Court of Appeal declined to release the applicant. The Court of Appeal held that there is an elevated risk of flight in light of the fact that the applicant has exhausted all appeals in Romania and is facing a 3 year prison sentence. Canada's international obligations in extradition proceedings require the Court to look more severely at the risk of non-appearance than it would if the application was made solely under s. 679 in respect of criminal proceeding in Canada. The sureties offered by the applicant were not sufficient to ensure his attendance at Court. The application for judicial interim release was dismissed.",e_2012skca69.txt
171,"J. Q.B. A.D.1996 No. 993 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF THE BUSINESS CORPORATIONS ACT, S.S. 1979, c. B-10 BETWEEN: ROSETOWN AND DISTRICT COMMUNITY BOND CORPORATION and PRECISION METAL FABRICATING LTD., LOREN KATZENBERGER and SHERYL KATZENBERGER RESPONDENTS L. Jay Litman for the applicant Jay D. Watson for the respondents JUDGMENT KYLE J. June 11, 1996 This motion raises the question of the right of acorporate board to breach its undertaking to remain in a smallcommunity when it had taken advantage of the governmentsponsored community bond program in order to establish itsbusiness. FACTS Precision Metal Fabricating Ltd. (""Precision"") entered into Financing Agreement with Rosetown and District Community Bond Corporation (""Bondco"") March 14, 1991, under the terms of which Bondco invested $800,200 in Precision. Under its terms, for period of ten years: 5.01 Negative Covenants Project Co. hereby covenants and agrees to and in favour of Bondco that prior to the Termination Date, Project Co. shall not, without the prior written consent of Bondco: (k) sell, dispose or remove from the municipality of Rosetown, Saskatchewan any significant amount of its operating 5.02 Positive Covenants Unless Bondco provides its written consent (which may be withdrawn at any time as to future events) Project Co. shall, until the Termination Date: (f) maintain in ordinary operation in the Rural Municipality of St. Andrews in the Province of Saskatchewan. No written consent has been sought or given under these provisions. Bondco was formed pursuant to The Community Bonds Act, S.S. 1990-91, c. C-1.1 the long title of which is ""An Act respecting Investments by Saskatchewan Residents in Support of Community Diversification and Environmental Protection"". Its clear purpose was to lend government assistance and support to locally based industrial and commercial development programs to the end that Saskatchewan's essentially rural agricultural economy might diversify, providing off farm employment and lending vitality to centres which can take advantage of its provisions. The objective of the Financing Agreement was in part to assure that Precision would not ""take the money and run"". The Shareholders' Agreement obliged all shareholders to vote their shares so as to confirm the nominees of certain shareholders, thereby freezing the board composition without regard to its performance. An unusual restriction indeed. As result the board was dominated by the original Precision group of shareholders and even though Bondco and eventually the Government of Saskatchewan are entitled to enough votes to exercise control of the company, they cannot change the board and if they try to dictate policy they do not have the usual ways of enforcing their wishes. Loren Katzenberger was at all material times President and CEO of Precision. The six member board was controlled by him and his associates. In December, 1994, local media reported that Precision had decided to move part of its operation to Saskatoon, city of 200,000 inhabitants about 80 miles from Rosetown. Rosetown has perhaps 3,000 residents. Katzenberger advised Bondco, upon inquiry, that Precision had leased manufacturing facility in Saskatoon. It appears that, absent written consent by Bondco, this was in breach of the Financing Agreement covenant. Members of Bondco by January, 1996, were concerned that jobs were being obtained in Saskatoon at the expense of Rosetown jobs and that the economic spin-offs expected to flow from their investment were not being realized in Rosetown due to the opening of the Saskatoon facility. On February 5, 1996, board resolution directed that all plans to move the plant operation to Saskatoon would be put on hold and no further movement was to take place. On February 29, Reinie Janke, Bondco director, wrote to the CEO confirming that the move to Saskatoon was in breach of the Financing Agreement and referring to legal advice that action could be taken to prevent the move. Bondco's concerns were well founded. Mr. Katzenberger's 1996 projection document contained the following paragraph: ""Precision Metal Fabricating Ltd. plans to consolidate its operations to the Saskatoon location. This will be done systematically through 1996 with the offices moving early in the year and our production facilities following in practical manner as production permits. While Mr. Katzenberger, through his counsel, stated that no further moves were planned, it was acknowledged that it was his intention ultimately to move to Saskatoon and that if this Court or Bondco prevents him from doing so now, he will do it after ten years. ISSUES By this application Bondco seeks:1. A restraining order enforcing the covenant describedherein;2. An order appointing new directors to replace the CEOand his wife;3. An order of compensation for breach of contract;4. An order directing the closure of the Saskatoonoperation and the return of company assets to the RuralMunicipality of St. Andrews (Rosetown District) unless writtenconsent to such operation in Saskatoon is granted by Bondco. DISCUSSION This application is made under s. 234 of The BusinessCorporations Act, S.S. 1979, c. B-10 which provides that ifthe Court is satisfied that an act of the corporation effectsa result or if its affairs have been conducted in a manner, orif the directors have exercised their power in a manner thatis oppressive or unfairly prejudicial to, or which unfairlydisregards the interests of a security holder, the Court maymake an order to rectify the matters complained of. Some of its options are set out in subsection (3) of s. 234 and they give this Court almost unlimited power to make changes in the corporation's affairs so as to resolve the problem. The Court has, specifically, the right to amend the articles or bylaws or unanimous shareholders' agreement. It may also make changes in the board of directors. The facts of this case are not in dispute. The rationale of the decision of the directors to act in breach of the Financing Agreement is that the company's best interests are served by its being in Saskatoon because facilities, and perhaps labour, are in better supply there. The clear purpose of The Community Bonds Act was to bring about the continued economic development of regions such as Rosetown. It is not breach of the duties of director to condition his response to business questions by adhering to the principles of that Act. The commitment to operate in Rosetown was valid corporate interest, it formed the basis of the financing. Breach of so fundamental an obligation of the corporation could not be justified by conjuring up some project which can better be handled elsewhere. If it were otherwise, government incentive financing would not exist and companies such as the respondent would not be formed. While the long term value of such programs is sometimes questioned, once the commitment is made it should be complied with. The thrust of the respondents' argument was that the breach of the commitment to remain in Rosetown was in the interests of the corporation and the directors should be obliged to consent thereto. totally reject this line of reasoning. If the facilities in Rosetown and district are inadequate, they could be provided. At any event, it is unlikely that any material component of the company's requirements has disappeared from the Rosetown environment since the decision was taken to use $800,000 of Rosetown money. The actions of Mr. Katzenberger and his supporters on the board have been high-handed and oppressive and the complainant Bondco is fully entitled to the assistance of the Court in rectifying the matters complained of. DECISION It is therefore ordered, pursuant to s. 234(2) of TheBusiness Corporations Act, as follows:1. The Shareholders' Agreement is hereby amended bydeleting paragraph 3. Board of Directors and substitutingtherefor: 3. Board of Directors: The affairs of the Corporation shall be managed by board of directors of such number as the shareholders shall from time to time determine, to be elected at an annual general meeting of the corporation at which all Class ""A"" and Class ""B"" shareholders shall be entitled to such votes as are contemplated by their agreement, the Financing Agreement and the Articles of the company. Casual vacancies arising between annual meetings may be filled by the continuing members of the board. 2. The provisions of Articles 2.03, 3.02 and 3.03 of theArticles of Continuance as amended are suspended until theTermination Date as defined by the Shareholders' Agreement. 3. The present board of directors is suspended pendingthe election of directors to take place at a special meetingof the shareholders to be convened at such place and time asBondco, as represented by Reinie Janke, shall direct, but inany event before July 31, 1996. The secretary, Sheryl Katzenberger, is directed, with such legal assistance as may be required, to convoke the said meeting. 4. The respondent, Precision Metal Fabricating Ltd. andits officers and employees, are hereby enjoined from:(a) moving any of its operations from Rosetown or themunicipality of St. Andrews;(b) transferring employees or hiring further employees at anyplace other than Rosetown or the municipality of St. Andrews;unless the written consent of Bondco has been obtained andfiled with the Court. It is not my intention to displace Mr. Katzenbergeras Chief Executive Officer. His dedication to the welfare of the company, company he no doubt regards as his, is not questioned. The purpose of the order now made is to place him on notice that the will of the shareholders and the contracts under which the company was formed are not to be brushed aside. I am not directing the closure of the Saskatoonoperation. If it is the will of the board elected pursuant to the above order to withdraw from Saskatoon, it may do so. Bondco shall be entitled to recover its taxable costs against the individual respondents.","The question was whether a corporate board could breach its undertaking to remain in a small community when it had taken advantage of the government sponsored community bond program in order to establish its business. The Shareholders' Agreement obliged all shareholders to vote their shares so as to confirm the nominees of certain shareholders, thereby freezing the board composition without regard for its performance. As a result the board was dominated by the original Precision group of shareholders and even though the Government of Saskatchewan and Bondco were entitled to enough votes to exercise control of the company, they could not change the board and did not have the usual ways of enforcing their wishes. Members of Bondco were concerned that jobs were being obtained in Saskatoon at the expense of Rosetown jobs and the economic spin-offs expected from their $800,000 investment were not being realized in Rosetown due to the opening of the Saskatoon facility. An application was brought under s234 of the Business Corporations Act. They sought a restraining order enforcing the covenant, an order appointing new directors, an order of compensation for breach of contract and an order directing the closure of the Saskatoon operation and the return of company assets to Rosetown district unless Bondco granted written consent. HELD: It was ordered that 1)the Shareholders Agreement was amended deleting the offending paragraph concerning the Board of Directors and substituting a new paragraph; 2)certain provisions of the Articles of Continuance as amended were suspended until the Termination Date; 3)the present board was suspended pending the election of directors at a special meeting of shareholders; 4)the respondent was enjoined from moving its operations and from transferring or hiring employees at any place other than Rosetown District unless Bonco's written consent was filed with the Court. 5)The Chief Executive Officer was not displaced nor was the Saskatoon operation directed to be closed.  6)Bonco was entitled to its taxable costs against the individual respondents.",d_1996canlii7113.txt
172,"nan SC#: 453[2006] 2007 SKPC 90 IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION SASKATOON, SASKATCHEWAN BETWEEN: NORMA ISAAC V. TOWN OF MARTENSVILLE DEFENDANT Self and Jennifer Isaac(daughter) For the plaintiff Brad Weiss and Steven Haichert, SGI For the defendant R.D. Jackson, PCJ JUDGMENT July 30, 2007 BACKGROUND [1] The plaintiff brings action for water damage sustained to her former residence located at 233 - 1st Street South, Martensville, when frozen pipes burst. Her contention is that she instructed the Town Office to shut off her water supply and the failure to do so led to the damages being sustained. [2] The Town of Martensville disputes that such instructions were given and that, in any event, the cause of the pipes bursting was not as result of the water not being turned off, but rather because the plaintiff had the power and heat disconnected. II EVIDENCE ON BEHALF OF THE PLAINTIFF Norma Isaac [3] Ms. Isaac testified that she purchased rental property in 1999 at 233 1st Street South, Martensville. She rented the house to her son for $500.00 per month up until September, 2005, when her son vacated the premises. Her intent was to sell the property to her daughter, Jennifer and her husband, David, who were then living in Saskatoon. She believed they were ultimately going to rebuild on the site after renting out the property for time and perhaps selling the house and having it moved as lake cabin. [4] To this end, Ms. Isaac attended at the Town Office in Martensville on November 28, 2005, and terminated her water account. Her recollection was that she instructed the water be shut off effective the day she was in because she was having the power cut off shortly thereafter, which was effective on December 10. [5] She did not recall signing any authorization to this effect. Rather, it was verbal discussion with the lady at the counter. She stated there was no discussion surrounding the issue “she didn’t respond presumed had made myself clear.” She then produced and entered into evidence the final bill for the water dated December 1, 2005, which she believed she received about the middle of December. [6] On December 23, 2005, Ms. Isaac received cheque from her daughter, Jennifer, for the purchase of the house for $50,000.00. She then made arrangements to travel to Red Deer with her family for Christmas. On December 24, 2005, she received call from her brother-in-law, Dave, advising that the house had received extensive flood damage apparently from burst pipes in the basement. Photographs were entered into evidence detailing the flood damage. [7] Ms. Isaac stated that prior to leaving for Red Deer, she and her husband had checked the house and everything was fine. She indicated they looked in on the house about once week on at least two occasions after the water had been shut off, spending only few minutes each time. She had made no arrangements for anyone to come by the house when they were away in Red Deer. Her brother-in-law had been alerted to the damage by neighbour who witnessed the water coming out the front door. Upon subsequent inspection it was determined that water pipe had burst in the basement causing the basement and main floor to flood. local contractor estimated it would take $25,000.00 to repair. [8] Ms. Isaac testified that no adjustment on the purchase price was ever discussed with her daughter and that transfer of title proceeded in the ordinary course registering into her daughter and son-in-law’s names on January 3, 2006. In September, 2006, her daughter had the house demolished and new home constructed on the property. [9] In cross-examination, Ms. Isaac acknowledged that she had not drained the water lines nor emptied the water tank and knew that there was still water in the lines after the power had been cut off. She maintained she was not disputing that the lines froze and burst just the extent of the damage caused because the town had neglected to turn off the water. [10] She further conceded she may have signed release for final billing acknowledging her signature on the document which was dated November 24, 2005. She also conceded that after January 3, 2006, she did not own the house and that she was taking this action on behalf of her daughter. Jennifer Webster [11] Ms. Webster is the daughter of the plaintiff. She confirmed that she and her husband purchased the subject property with the intent of future development involving possibly duplex, fourplex or personal residence. [12] It was her hope to rent out the property in the interim or sell the house as lake cabin. She purchased the house on December 23, she recalled for $50,000.00. She registered the transfer documents herself and did not discuss any adjustment of the purchase price as result of the flood damage. Rather, they decided to pursue the damages against the Town of Martensville for failing to shut the water off. [13] Ms. Webster recalled speaking with someone at the Town Office named “Bonnie” regarding notice to be given if the new owners were considering demolition of the property. She recalled no other discussion and did not remember telling the town to leave the water on or being told gas and water meters would have to be moved if the property was demolished. III EVIDENCE ON BEHALF OF THE DEFENCE Erin Sackmann [14] Ms. Sackmann is the utility clerk for the Town of Martensville, post she has held since September, 2005. She explained the process required to have water service terminated and disconnected which was to sign the back of the work order. There was no specific form otherwise instructing disconnect request, although such forms are now used to this effect. It was their practice to ensure the signatures were obtained on the back, which she said they did each time. [15] Generally, requests for disconnects would come in summer and very rarely, in winter. They would dissuade any such requests in winter due to the possibility of damage occurring. It was “big issue” she explained to have water disconnected in winter so she would have recalled any such request from Ms. Isaac. [16] Ms. Sackmann testified to having telephone conversation with Ms. Webster in early December and that the possibility of demolition was discussed. If this were to occur, she advised Ms. Webster, then the water had to be disconnected. She recalls Ms. Webster instructing her to keep the water on in case they decided to rent it. The issue of the heat being turned off did not arise, and if it had, Ms. Sackmann would have then ensured the water be disconnected. [17] Ultimately, Ms. Webster did apply for demolition permit on the property on August 2, 2006. Prior to that time, no discussions took place concerning the damage to the property. Angela Kalynuik [18] Ms. Kalynuik was the receptionist at the Town Office who dealt with Ms. Isaac when she came in to terminate her utility account. She had her fill out the work order, sign and date it. She did not request the water be disconnected and accordingly no signature was required or obtained on the back of the form. Neither did Ms. Isaac advise the power was being shut off. [19] Ms. Kalynuik testified she had just started at the Town Office in September of that year and had been thoroughly trained on the proper procedure for disconnection requests. She stated these were uncommon and generally involved “snowbirds” going south or persons doing renovations. Bonnie Gorelitza [20] Ms. Gorelitza is the planning director for Martensville. She too spoke with Ms. Webster by telephone which she noted on her file to be November 21, 2005. The nature of the call concerned possible demolition of the subject property. Ms. Gorelitza informed Ms. Webster that if the property was to be demolished or moved, permit would be required and the proper disconnects would have to be made. She noted on her file that Ms. Webster advised that the property would either be moved or demolished in the spring. IV ANALYSIS [21] After carefully considering the testimony of the witnesses and the exhibits filed herein, the Court concludes that the plaintiff’s action cannot succeed for the following reasons: a) The Court cannot find on the evidence that clear instructions were given by the plaintiff to the town to disconnect the water service. To the contrary, the form executed by the plaintiff clearly indicates request for final billing. The evidence demonstrates misunderstanding at best between what the plaintiff believed she was requesting and what in fact she did instruct. This however cannot be construed as negligence in the circumstances by the town nor does the fact that specific forms are now utilized for disconnect purposes, elevate the matter on the facts before the Court, to negligence by the Town of Martensville; b) The proximate cause of the damage was turning off the heat and power without ensuring that water lines, toilets, and the water tank had been properly drained. It was inevitable in such circumstances that the pipes would freeze and in all likelihood burst thereby causing damage to the subject premises. How much damage this would have caused is difficult, if not impossible, to assess compared to the damage occasioned to the point of being attended to by the neighbour; c) The plaintiff sustained no damages herself. She negotiated the sale price of $50,000.00 with her daughter prior to any damage being sustained to the subject property. No adjustment had to be made to her daughter thereafter for any “loss” occasioned, and accordingly, she was not out of pocket whatsoever; d) She admitted she was bringing action for the benefit of her daughter which was long past the date of transfer of the property to her in January, 2006, the claim being issued August 17, 2006. Accordingly, any claim at this point would have to be made by her daughter, not her, as she had no further standing, having legally divested title and not received any less value on the sale of the property in the process. [22] The plaintiff’s claim is dismissed. There is no order as to costs. PCJ R.D. Jackson","The plaintiff sues the defendant town for water damage sustained to her former residence when frozen pipes burst. The plaintiff claims she told the Town Office to shut off her water supply and the failure to do so let to the damages being sustained. HELD: The claim is dismissed. 1) There is no evidence that the plaintiff gave clear instructions to the town to shut off her water. 2) The proximate cause of the damage was turning off the heat and power without ensuring that water line, toilets, and the water tank had been properly drained. 3) The plaintiff sustained no damages herself. She admits she negotiated the sale price of $50,000 with her daughter prior to any damage being sustained to the property. No adjustment had to be made to her daughter thereafter for any 'loss' occasioned. Any claim would have to be made by her daughter not her.",e_2007skpc90.txt
173,"2002 SKQB 213 F.L.D. A.D. 1998 No. 387 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SUSAN JEANNE BURKE and BARRY RUSSEL BURKE RESPONDENT D. J. Kendall for the petitioner A. Wiebe, Q.C. for the respondent FIAT WILKINSON J. May 17, 2002 [1] In this application to vary spousal support, the issue is whether there has been a material change in circumstances by virtue of a change in either the husband’s or wife’s employment status, or financial means or needs, warranting an increase in spousal support. This is the standard of review prescribed in the parties’ interspousal contract of September 14, 1999. Under that agreement the husband pays $3,000 per month in spousal support. [2] The parties are at odds as to whether the husband has experienced an increase in income and whether the wife’s needs have been affected by cohabitation with new partner. [3] The husband’s position is summarized in his affidavit as follows: .. own 36% interest in trucking company called “Titan Transport Ltd.” As result of general downturn in the economy during the year 2001, the profits of Titan Transport have been significantly reduced. This decline was exacerbated by the events in New York and Washington on September 11, 2001. As result of this economic decline our company closed the Winnipeg Branch and laid off two employees in our Calgary office. Our accountant calculates that the company's bottom line has declined by 62% from between the year end 2000 and the year end 2001. 6. My income consists of base salary, management bonus and shareholder bonus. The bonuses are based on the previous year’s profits of the company. The company bank (Bank of Hong Kong) requires us to pay our shareholder bonus, after tax, back into the company. also have rental income in the amount of $400 per month. [4] The husband broke down his sources of income chronologically, as follows: Salary Working Bonus Shareholder Bonus 169,013 Shareholder bonus is paid out to the three of us to zero down to $200,000 small business limit. My percentage is on my share status of 36% of the total 100 shares in the company. The income tax is paid on the monies and loaned back to the company to keep our cash flow up as per bank. The 2001 bonus of $30,400 is broken down as $18,000 of working bonus and we got “WCB” refund due to low experience and that was paid out to us and my share was $12,400 so it wasn’t on profit for the year as that has dipped significantly. [5] Significant argument was centred on whether the bonuses were paid from the corporation’s current income (the wife’s argument) or from the corporation’s prior year’s income (the husband’s argument). The wife also argues that the “working bonus” does not have to be repaid to the corporation and there is no independent verification that the shareholders bonus must be repaid, or that they are, in fact, being retained in the company. There is no breakdown of shareholder’s loan accounts as between shareholders. The only information available (from the financial statements) is the year end totals in the shareholders loan account and they are as follows: 1996 $105,520 1997 128,000 1998 164,275 1999 116,318 2000 99,055 2001 139,445 The fluctuations are not explained. [6] The company’s retained earnings, year by year are as follows: 1997 $169,561 1998 292,184 1999 422,227 2000 559,785 2001 661,730 (to November 30) [7] The husband’s assertion that his 2001 shareholder bonus represents profits earned by the company in 2000 is more likely correct. With respect to corporate income over $200,000, it is not an uncommon practice to “bonus down” and thereby achieve tax deferral. Business income in Canadian controlled corporation in an amount up to $200,000 is subject to the reduced corporate tax rate. The excess can be distributed to shareholders in the 180 days following the corporation’s tax year. As the individual receiving the bonus is only taxed when in actual receipt, one-year tax deferral may be achieved. Likewise, it is not uncommon that corporation’s arrangement with its bank or lending institution requires the bonuses to be repaid to the corporation in the form of shareholder’s loans, and not withdrawn until certain debt:equity levels are achieved. Similar provisions are sometimes contained within shareholder’s agreements. [8] Thus an individual may have viable income, but the enjoyment of that income is postponed for period of time although it represents significant benefit in the future. When issues of support are involved it is difficult to know how that deferred income should fairly be treated and in some cases, particularly where child support is concerned, it has been treated as current income to the obligor. The restrictions on withdrawal must be objectively justified as legitimate, reasonable business purpose or an unavoidable contractual requirement. That is asserted here, but not objectively proved. The bank’s restrictions are not specified. The fluctuation in shareholder’s loans accounts, without clarification, supports the inference monies can be withdrawn. The company’s financial statements show that debt:equity ratios have improved by considerable margins. In these circumstances it is not sufficient to offer hearsay evidence such as “our accountant calculates the company’s bottom line has declined by 62%...” or bare assertion that the bank requires the bonuses to be repaid to the company. [9] There is another objection that can be made regarding the husband’s analysis of his income. If the practice of “bonusing down” has been consistency applied, it would follow that if one excludes the shareholder bonus from income for present purposes, the bonus would logically have been excluded when calculating his income in 1999. It would not be fair or reasonable or consistent to do otherwise. His salary, plus working bonus, in 1999 was $67,050. His equivalent income currently is $122,488 (salary $92,088, working bonus $30,400). Arguably, it might be reasonable to exclude the non-recurring WCB refund in which case his current income would be $110,088. Even if no bonuses are payable in 2002 as result of lower corporate profits in 2001, there is no indication his fixed salary will decline. His salary level in 2001 was high notwithstanding the assertion that corporate income declined sharply that year. On the most favourable scenario for the husband, his income has increased roughly 50%. It is material and significant increase in income even without regard to the shareholder bonus. There is also the fact the husband has new partner who pays him rental income, and that certain of his expenses for travel and auto expenses are now paid by the company. [10] I am satisfied the only material change in the wife’s means and needs is the fact she is residing with a new partner. Their arrangement essentially allows him to reside in her home at no cost in exchange for his performing yard work and housework. (The wife suffers from MS and is unable to work). Despite this arrangement the wife has claimed annual expenses of $2,450 for house repairs, maintenance and yard care and $2,600 for house cleaning, the very duties her new partner was to perform. He is employed, but his income is not stated. He makes no apparent financial contribution to the household. The benefits inherent in shared living arrangement are not adequately or reasonably accounted for in the wife’s presentation. She has requested 50% increase in support, because the husband’s income had increased 50%. By the same logic, one might argue her expenses should be halved due to the shared cost of living, if those shared costs were reasonably accounted for. These can hardly be endorsed as sound approaches to the determination of spousal support. [11] In all the circumstances, an increase is warranted, but not to the extent claimed by the wife. Spousal support will be varied to $3,500 per month effective May 1, 2002 and continuing on the first day of each month thereafter until further order. [12] The wife will have costs fixed in the amount of $1,000.","FIAT. The issue in this application to vary spousal support was whether there had been a material change in either the husband's or wife's employment status, financial means or needs, warranting an increase in spousal support since their 1999 interspousal contract. The wife requested a 50% increase based on the husband's income increase of 50%. She suffered from MS and was unable to work. HELD: Spousal support was varied to $3,500 monthly. The only material change in the wife's means and needs is that fact she is residing with a new partner who resides in her home in exchange for yard work and housework. Although he worked, he made no apparent financial contribution to the household. The wife was awarded costs fixed at $1,000.",5_2002skqb213.txt
174,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 108 Date: 2010 03 12 Docket: Q.B.G. 1667 of 2008 Judicial Centre: Regina BETWEEN: AMY CATHERINE WHITE AND MICHELLE NEX PLAINTIFFS (RESPONDENTS) and GLAXOSMITHKLINE, INC. DEFENDANT (APPLICANT) Brought under The Class Actions Act, S.S. 2001, c. C-12.01 Counsel: Robert W. Leurer, Q.C. and Khurrum Awan for the defendant (applicant) E.F. Anthony Merchant, Q.C. and Nicholas Robinson for the plaintiffs (respondents) JUDGMENT BALL J. March 12, 2010 [1] The plaintiffs have applied for certification of proposed multi-jurisdictional class action involving Paxil (paroxetine hydrochloride), prescription drug approved in Canada for the treatment of depression, anxiety disorder, panic disorder, and other conditions. The plaintiffs claim that Paxil is ineffective and harmful to persons under 18 years of age. [2] The plaintiffs’ motion for certification seeks an order appointing John-Paul Field as representative plaintiff for the class. An affidavit sworn by Mr. Field on December 7, 2009 has been filed in support of the motion for certification. The defendant applies for leave to cross-examine Mr. Field on his affidavit. [3] The defendant’s application is brought pursuant to Rule 317 of The Queen’s Bench Rules, which states: 317(1) Upon any motion or petition evidence may be given by affidavit, but the court may, on the application of either party, order the attendance for cross-examination of the person making such affidavit. (2) The costs of any cross-examination under subrule (1) shall be borne by the party applying for the cross-examination. [4] Counsel for the plaintiffs, Mr. Merchant, opposes the application on the basis that an order for cross-examination under Rule 317(1) is an exceptional discretionary remedy that should not be granted routinely in any action, including proposed class action. Mr. Merchant submits that this claim is simple and straight-forward: children and adolescents under 18 took Paxil, it was ineffective and they want their money back. He says that there is no need for clarification through cross-examination. [5] Mr. Merchant also submits that the details and validity of Mr. Field’s personal claim (including whether or not he suffered adverse effects from the use of Paxil) are irrelevant to the common issues; that Mr. Field has already disclosed all of his medical records so that further cross-examination is unnecessary; and, that concern about the suitability of Mr. Field to act as representative plaintiff is the type of issue that every defendant in every proposed class action could put forward as justification for leave to cross-examine. The essence of his argument is, therefore, that if cross-examination is permitted in this case it will be permitted in every case and the requirement for leave under Rule 317 will become meaningless. [6] The question of when court should permit cross-examination on affidavits filed in support of class action certification motions was thoroughly considered by Smith J. (as she then was) in Hoffman et al v. Monsanto Canada Inc. et al (2003), 2003 SKQB 564 (CanLII), 242 Sask. R. 286 (Sask. Q.B.). In that decision, the court considered the traditional test for cross-examination in affidavits under Rule 317(1) and then stated: B. Is there an enhanced right of cross-examination under the Class Actions act? [11] It is my view that the general principles described above apply in the context of an application for certification under the Act. Nonetheless, the desirability or necessity for cross-examination, and considerations of potential injustice to the parties must, of course, be judged in the context of the application in support of which the affidavits in question are filed. There are number of characteristics of certification application that may, in some contexts, enhance the claim of an application for leave to cross-examine. [12] First, and most obviously, the criteria that must be met for successful application for certification as class action are set out in s. of the Act, quoted above. The applicant for certification must establish, inter alia, the existence of an identifiable class, in connection with the issues that the plaintiffs propose to certify as common issues, the existence of common issues, and whether class action is the preferable procedure for resolving these common issues. The proposed representative plaintiffs must establish that they are appropriate. [13] In applying the general principles relevant to the discretion to be exercised pursuant to Rule 317(1), it must therefore be asked whether the cross-examination sought will assist in the ultimate determination of the s. enquiry. Section 7(2) of the Act makes it clear that an order certifying an action as class action is not determination of the merits of the action. Accordingly, cross-examination going solely to the merits of the plaintiff’s claim is not permissible. Overlap may, however, occur, between evidence relevant to the merits of the action and evidence relevant to one or more of the s. criteria. [14] In previous ruling in this action respecting the propriety of certain affidavit material filed by the plaintiffs (2003 SKQB 174 (CanLII), 233 Sask. R. 112), the Court emphasized the importance of providing, on the certification motion, proper evidentiary record for the resolution of these issues, commenting, in part, as follows: [42] have concluded that the better position is that, on the certification application, evidence as to the merits of the action is admissible only insofar as that evidence is also relevant to an issue to be determined on the motion. Overlap may, however, occur, as there is an onus on the proposed representative plaintiff to provide some evidentiary basis tending to show that he or she is proper representative of the proposed class, which may include evidence that he or she has suffered loss or damage, and an onus to establish the definition of the proposed class and proposed common issues, which may require some evidence that other members of the proposed class have suffered loss or damage sufficiently similar to that of the proposed representative plaintiff to raise common issues. [43] In addition, it is now widely accepted that, despite the mandatory language of s. (‘The court shall certify an action as class action ... if the court is satisfied that [the five criteria are satisfied]’), the court has relatively wide discretion in relation to the requirement in ss. 6(d) of the Saskatchewan Act that class action be the preferable procedure, and that the exercise of this discretion requires consideration of the scope and nature of the proposed litigation as whole and balance of the relevant factors. Accordingly, the desirability of providing, on the certification motion, as complete picture as possible of the proposed action, including the scope of the issues raised both in the claim and in defence, has generally been viewed by the courts as helpful in determining whether class action proceeding is the preferable procedure ... (emphasis in original text) [15] Certification of an action as class action has significant affect on the defendants, for defence of such an action absorbs considerable resources. They are entitled to defend such an application fully and this right entails the right to explore matters raised within the plaintiff’s affidavits, including matters pertaining to the deponents themselves, for the purpose of clarifying what may be ambiguous, expanding or narrowing the scope of what is said in the affidavit, or exploring matters going to the credibility of the affiant. [16] Further, the issues to be resolved on certification application are complex and trial of an issue is not practical alternative where there is conflict in the evidence. Thus, while the jurisprudence from other Canadian jurisdictions which do not have restrictive rule comparable to our Rule 371(1) must be read with some caution, many decisions relating to the propriety of specific questions sought to be put by way of cross-examination of an affidavit in support of an application for certification as class action are relevant and helpful, for the criteria for certification in those jurisdictions are closely parallel to our own. [7] The above reasoning in Monsanto, supra, has been expressly adopted and applied by Barclay J. in Cole et al v. Prairie Centre Credit Union Ltd. et al (2007), 2007 SKQB 171 (CanLII), 295 Sask. R. 159 (Sask. Q.B.), by Zarzeczny J. in Brooks v. Canada (Attorney General) 2009 SKQB 75 (CanLII) (Sask. Q.B.) and by Popescul J. in Schroeder et al v. DJO Canada Inc. et al (2009), 2009 SKQB 169 (CanLII), 334 Sask. R. 258 (Sask. Q.B.). It will also be adopted and applied in this case. [8] In Schroeder, supra, Popescul J. permitted cross-examination with the following comments: [49] adopt the approach, analysis and reasoning in Monsanto and the cases that have followed it. The general principles relating to when court ought to exercise its discretion and grant request to permit cross-examination on an affiant’s affidavit apply to class action proceedings. Specifically, although there is no inherent right to cross-examine on an affidavit, leave ought to be granted, albeit not routinely, in appropriate circumstances. An appropriate circumstance, in the context of certification application, would be when the cross-examination sought would assist in determining the outcome of s. inquiry. [50] In the circumstances of this case, am convinced that the cross-examinations sought will assist in the ultimate determination of the certification application that it is therefore appropriate to exercise my discretion in favour of granting the requested relief. Although determining issues such as the adequacy of the representative plaintiffs may be relatively simple, the question of whether common issues exist and predominate over other issues and whether the class action procedure is the preferable procedure may require more extensive record. Permitting the requested cross-examinations will ensure that an adequate evidentiary record is before the Court. Accordingly, the defendants’ request to cross-examine the plaintiff affiants is granted. [9] In their conclusions, all of the above decisions support the view that leave to cross-examine under Rule 317 is granted more readily in proposed class actions than it is in other civil proceedings. None support the proposition that proposed representative plaintiff is immune from cross-examination in respect of his or her individual claim. In Hoffman et al v. Monsanto Canada Inc. et al (2003), 2003 SKQB 174 (CanLII), 233 Sask. R. 112 (Sask. Q.B.), Smith J. reviewed number of authorities and concluded at paras. [46] These authorities support the view that, on certification application, the court will be assisted by as full picture as possible of the nature and scope of the proposed litigation, including an indication of the nature of the evidence that may be relevant to both the claim and the defence with respect to both the common and the individual issues. [47] Finally, this view is also reflected, in Saskatchewan, in our Rule 82(2)(b), which requires an application for certification to be supported by an affidavit: (b) setting out the basis of the proposed representative plaintiff’s personal claim, where applicable, and the reason the proposed representative plaintiff believes that common issues exist for the rest of the members of the class. (Emphasis added) [10] In summary, cross-examination of proposed representative plaintiff may explore matters pertaining to his or her individual claim in the context of issues that must be determined by the court pursuant to ss. and 6.1 of The Class Actions Act, S.S. 2001, c. C-12.01. Every case must be determined on its own facts. [11] In number of decisions, evidence elicited in cross-examination of proposed representative plaintiff has been relied upon by the court where it established, despite assertions to the contrary in his affidavit, that the affiant had no wish to act as representative plaintiff, no understanding of the requisite duties and responsibilities, or no knowledge and experience in the litigation process. See: R. v. Spurr 2009 SKQB 478 (CanLII), [2009] S.J. No. 729, per Laing CJQB; Frey et al v. Bell Mobility et al, 2006 SKQB 328 (CanLII), 282 Sask. R. per Gerein J.; Hoffman et al v. Monsanto Canada Inc. et al (2005), 2005 SKQB 225 (CanLII), 264 Sask. R. per Smith J. In those cases, cross-examination provided insight into situations where the person signing the affidavit knew very little about, or actually disagreed with, its contents. [12] By way of example in this case, if cross-examination were to establish that the common issues exclude recovery for all of the matters that are important to Mr. Field, or if his personal claim is in conflict with the claims of class members, it would be relevant to his capacity to fairly and adequately represent the interests of the class as required by s. 6(1)(e)(i) of the Act. [13] turn now to the material before the court on this application. In my view, there are number of statements contained in Mr. Field’s affidavit which, when considered in relation to the statement of claim and the motion for certification, invite clarification. Taken as whole, they are relevant to issues that must be determined by the court under ss. and 6.1 of The Class Actions Act. Accordingly, evidence adduced by way of cross-examination on his affidavit might well complete the evidentiary record and be of assistance to the court. [14] will not attempt to list all such statements. Rather, will comment on Mr. Field’s proposed role within the larger structure of the case. Mr. Merchant asserts that the claim is simple. He says that it is made by or on behalf of persons who took Paxil when they were under 18 years of age, that the drug was ineffective and that “they want their money back”. However, the claim appears to be more than that. The statement of claim defines the proposed class as follows: 11. The Plaintiffs bring this action on behalf of themselves, their families, and other similarly situated members of the Class and seek compensation for their purchase of an ineffective and unsafe drug. 12. The Class includes all persons who used or ingested Paxil while under the age of 18 and all persons, corporations, and other entities including, but not limited to, health care plans, the public and private health care insurers, and provincial health departments, who purchased, acquired or paid for Paxil for the treatment of any person under the age of 18 who are: (a) resident in the province of Saskatchewan; or (b) resident outside of Saskatchewan, 13. The Class seeks redress and compensation from the Defendants for economic loss and other harms and damages incurred as result of the Defendants’ manufacture, marketing and distribution of Paxil, an unsafe and ineffective pharmaceutical product, to members of the Class. [15] The motion for certification contains similar description of the proposed class: (b) defining the class as “all persons who used or ingested Paxil while under the age of 18 and all persons and entities including, but not limited to, public and private health care insurers, who purchased, acquired or paid for Paxil for the treatment of any person under the age of 18, wherever resident”. [16] The affidavit of Mr. Field, who resides in British Columbia and asserts that he took Paxil when he was under 18, contains the following statements concerning his proposed role as representative plaintiff for members of the proposed class: 2. was born on September 18th, 1983 in British Columbia and have resided in British Columbia for most of my life. took the prescription drug Paxil for anxiety disorder and panic attacks and other psychiatric conditions for approximately years while was under 18 years of age. My condition was characterized by agoraphobia and social phobia. 9. My parents purchased Paxil on my behalf from variety of stores throughout British Columbia. Out of pocket expenses were incurred to buy Paxil and my parents’ insurance covered the balance of the purchase price of Paxil. 16. On the basis of the article from the British medical journal The Lancet, attached to this my Affidavit as Exhibit “D”, believe that the Defendant’s behaviour was “an abuse of the trust” put in my physicians and that Paxil had global sales of US $4.97 billion in 2003. [17] As stated in his affidavit neither Mr. Field or his parents paid for the Paxil he took. It was paid for by an insurer. Accordingly, any claim for reimbursement of the purchase price is necessarily brought by or on behalf of his insurer. If that is also true for the other individuals referred to in paragraph 11 of the statement of claim, then for all practical purposes the claims for reimbursement are in reality being advanced, not by the individuals under 18 who took Paxil, but by the “corporations and other entities”, including the health care plans, health care insurers and provincial health departments referred to in paragraph 12 of the statement of claim. Those same entities are referred to as “public and private health care insurers” in clause (b) of the motion for certification quoted at paragraph 15 above [18] These facts alone are relevant to consideration of whether Mr. Field would be an appropriate person to fairly and adequately represent the interests of the class, and whether class action would be the preferable procedure for the resolution of the common issues. They are therefore relevant to the court’s inquiries under s. of The Class Actions Act. However, it is when they are considered in relation to other statements in Mr. Field’s affidavit, in relation to allegations contained in the statement of claim and in relation to the common issues the plaintiffs seek to have certified that the role of Mr. Field as proposed representative plaintiff becomes somewhat confusing. [19] The statement of claim contains number of allegations that Paxil was not just ineffective, but harmful to persons under 18. Examples include the following: 26. GSK misrepresented information concerning the safety of Paxil. Defendants found through their own clinical trials that there was an increased risk of adverse events including but not limited to suicide, suicidal tendencies, aggressiveness, hostility and mania associated with the use of Paxil but have continuously failed to warn consumers. 28. The Plaintiffs purchased, acquired or paid for Paxil for minors or for themselves without knowledge of the lack of efficacy or the increased risks of suicide, suicidal tendencies, aggressiveness, hostility and mania associated with use in children and adolescents. 29. Defendants’ failure to publish, disseminate or inform its consumers of the results of its clinical trials regarding the lack of efficacy and serious safety concerns of Paxil’s use in children and adolescents and the Defendants’ publication of limited clinical trial results which falsely implied the safety and efficacy of Paxil has misled all consumers who purchased Paxil for the treatment of children and adolescents. 43. GSK’s studies also demonstrated substantially increased risk of suicidal thoughts and acts. Combined, studies 329, 377 and 701 showed that certain possibly suicide related behaviours were approximately two times more likely in the Paxil group than the placebo group. The extension phase of study 329 and study 716 provided support for the presence of such risk in youngsters taking Paxil. [20] These allegations are repeated in Mr. Field’s affidavit. few examples include: 10. At the time of purchase my parents and were unaware of the dangers and risks posed by Paxil. No mention was made by any of my physicians or other care givers of the dangers and negative side effects associated with using the drug as an adolescent. 14. On the basis of the article attached to this my Affidavit as Exhibit “C”, the Health Canada advisory attached as Exhibit “B”, and the Canadian Medical Association Journal Article attached as Exhibit “A”, believe that taking Paxil put me at increased risk of suicidal ideation and am grateful that chose not to make an attempt to take my own life. 17. While taking Paxil my anxiety worsened, had increased negative feelings, the severity of my depression increased, romanticized about committing suicide, had heightened sense of hopelessness, lacked motivation and energy more than before took Paxil, engaged in self-harming behaviour such as cutting myself with scissors, which did not do prior to taking Paxil. Most often, did not speak to others about these feelings. [21] Although both the statement of claim and the affidavit of Mr. Field are replete with allegations that Paxil is harmful to children and adolescents under 18 and that it increased their risks of suicide attempts or self-harm, those assertions are entirely absent from the common issues described in the statement of claim and listed in Mr. Field’s affidavit. Rather, the proposed common issues are carefully confined to whether Paxil was an ineffective treatment for persons under 18 years of age and whether GSK “is liable to account to any of the class members on restitutionary basis for any part of the proceeds of the sales of Paxil”. [22] The common issues proposed in the application for certification are not only devoid of the allegations of harm in the statement of claim, they appear to be inconsistent with Mr. Field’s personal expectations and motivation as he has explained them in paragraph of his affidavit: 5. The financial, emotional, physical and psychological stress that has been involved in my ordeal makes participating in the within action an important endeavour for me. It is important to me that the Defendant be held accountable. [23] Accepting that Mr. Field (or his family) did not pay for his Paxil, and recognizing that the common issues are confined to claiming reimbursement “on restitutionary basis” because Paxil is said to have been ineffective (rather than harmful), it appears that the common issues being put forward for certification will not enable Mr. Field to recover anything for the issues important to him. He will be confined to pursuing an individual claim. Again, these matters are relevant to whether he would be an appropriate person to fairly and adequately represent the interests of the class. [24] Counsel for the applicant, GSK, has assured the court that the proposed cross-examination of Mr. Field is expected to take no more than half day and that it will be conducted at any reasonable location chosen by Mr. Field and plaintiffs’ counsel. Accordingly, cross-examination on his affidavit will not result in an injustice to Mr. Field. [25] I find that a cross-examination of Mr. Field may assist the court in applying the criterion set out in ss. 6 and 6.1 of The Class Actions Act to the certification application. The application for leave to cross-examine him on his affidavit is granted. It will take place at such date, time and place as may be agreed upon between counsel or as will be further ordered by the court. Any costs incurred by plaintiffs’ counsel to attend may be spoken to at the certification hearing.","The plaintiffs have applied for certification of proposed multi-jurisdictional class action involving Paxil, prescription drug approved in Canada for the treatment of depression, anxiety, panic disorder and other conditions. The plaintiffs claim that Paxil is ineffective and harmful to persons under 18 years of age. The defendant applies for leave to cross-examine the representative plaintiff on his affidavit pursuant to Rule 317 of The Queen's Bench Rules. HELD: The decisions reviewed by the Court all support the view that leave to cross-examine under Rule 317 is granted more readily in proposed class actions than it is in other civil proceedings. None support the proposition that proposed representative plaintiff is immune from cross-examination in respect of his or her individual claim. Cross-examination of proposed representative plaintiff may explore matters pertaining to his or her individual claim in the context of issue that must be determined by the court pursuant to s. and s. 6.1 of The Class Actions Act. A cross-examination of the plaintiff in this case may assist the court in applying the criterion set out in s. 6 and s. 6.1 of The Class Actions Act. The application for leave to cross-examine is granted.",e_2010skqb108.txt
175,"1999 SKQB 140 Q.B. A.D. 1994 No. 2177 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: REDHEAD EQUIPMENT LTD. and STANDARD TRANSPORTATION SERVICES INC. and HYNDMAN TRANSPORT (1972) LIMITED DEFENDANTS David E. Thera for Redhead Equipment Ltd. Murray W. Douglas for Hyndman Transport (1972) Limited JUDGMENT MacDONALD J. October 20, 1999 [1] This is an action by Redhead Equipment Ltd. (""Redhead"") against Standard Transportation Services Inc. (""Standard"") and Hyndman Transport (1972) Limited (""Hyndman"") with respect to amounts owing for payments on vehicles leased by Standard from Redhead and for parts and labour supplied by Redhead to these leased vehicles. [2] The trial of the matter lasted one day. Standard did not appear at the trial nor did it at any time throughout the action enter defence to the allegations contained in the statement of claim. [3] The only witnesses called at the trial were Ron Duda and John Cox. The evidence was not complicated and do not intend to repeat it here. At issue was whether the defendant, Hyndman, had an obligation to the plaintiff, Redhead, either in contract or equity for the lease payments on the vehicles and for the repairs to them for the period from September 1, 1993, until February 11, 1994. [4] The main basis for the allegations contained in the statement of claim against Hyndman were centred on discussions which took place at meeting in Regina on October 12, 1993, at the office of Redhead Equipment. [5] Present at that meeting were Ron Duda (""Duda""), sales manager for Redhead, Robert Bennett (""Bennett""), president of Standard, and John Cox (""Cox""), comptroller and partner of Hyndman. At the trial, both Ron Duda and John Cox gave evidence as to what was discussed at the meeting. Both witnesses were agreed that the discussions at the meeting covered the following points: That Standard was not solvent corporation as of that date, That Hyndman had entered into an arrangement with Standard to have them operate under Hyndman's authority, That Hyndman would not agree to have the contracts for the leased vehicles assigned to them, but that they would make payments. [6] The point at issue between the parties is for how long were the lease payments to continue and on what conditions? [7] The evidence of the parties varies on this issue. Cox's evidence is that during the meeting it was understood by the parties that Hyndman's obligation to make the lease payments would be contingent on Standard's ability to make money on its trucking contracts. Duda’s evidence is that he believed Hyndman's obligation for the lease payments would continue for as long as the trucks were in the possession of Standard or operating under the authority of Hyndman. [8] The only notes of the meeting were made by Cox in his day planner, where he states, “Met with Ron Duda—about leases—Hyn. make payments, won’t take over leases”. [9] Exactly how long the lease payments would continue and under what circumstances is not elaborated in those notes. There was no correspondence between the parties confirming the terms of the agreement. [10] It is clear, however, from Cox’s notes and Duda’s evidence at the trial that, (a) Hyndman would not assume the obligations on the Redhead and Standard leases, and (b) that Redhead knew at that meeting that there was a risk to the arrangement because of Standard’s insolvency and that Redhead might not be paid on the leases. It is also clear from Duda’s evidence that Redhead was prepared to assume that risk. [11] At the October 12 meeting there was no discussion as to who would be responsible for payment on work orders for repairs to the leased vehicles. There had, however, been some payment since September by Hyndman to Redhead for repairs to the vehicles. Contract [12] On the evidence as a whole it is apparent that there was no contractual relationship between the parties, Redhead and Hyndman, with respect to the lease payments. [13] Although, there may have been some verbal arrangement with Hyndman to make payments, the terms of such arrangement were never verified by Redhead and it is clear from the evidence that Redhead understood that they continued to carry the risk associated with any breach by Standard of its contractual obligations under the leases. [14] The plaintiff’s claim against the defendant, Hyndman, with respect to the leases is therefore dismissed. 2. Quasi-contractual remedies—quantum meruit or unjust enrichment [15] The plaintiff, Redhead, has argued that if the claim does not succeed in contract, that they should still be entitled to receive compensation for the outstanding lease payments during the September to February period based on the quasi-contractual or equitable remedies of quantum meruit or unjust enrichment. [16] These principles of restitution have developed over time, to allow the courts to make awards to plaintiff in circumstances where, although there may not be strict legal obligation by the defendant to the plaintiff to pay monies, it would be unjust not to make an award. [17] The facts of this case, however, do not satisfy me on a balance of probabilities that this is an appropriate circumstance for an award in favour of the plaintiff based on either quantum meruit or unjust enrichment. [18] The actions taken by both Redhead and Hyndman were taken for the benefit of Standard in an attempt to keep it operational. As it turned out, neither Redhead nor Hyndman benefited from this arrangement for very long and both lost money. [19] The plaintiff’s claim on this ground is also dismissed. Repairs [20] Although there was no specific contract with respect to the repair of the leased vehicles, it is clear that Hyndman did make some payments on behalf of Standard with respect to some work orders that were issued by Redhead. On the evidence of Cox and on review of the documents themselves it appears that the payments by Hyndman for work on the vehicles were made either under the direction of Bennett or for work that was done where specific purchase order number was supplied by Hyndman. On the issue of the unpaid invoices, the plaintiff\'s evidence does not establish that Hyndman had notice of the invoices, or that there was a purchase order number obtained from Hyndman authorizing the repairs. In fact the evidence indicates that Hyndman gave notice to Redhead that they would not be obligated for repairs without a purchase order number once they realized there may have been a misapprehension by Standard’s creditors with respect to the payment of these accounts. [21] The evidence of Duda is that he did not know how the repairs were authorized for Standard. In addition, all of the invoices marked unpaid and claimed at trial continued to be sent to the address for Standard at 417 Maxwell Crescent in Regina and there was no evidence that these accounts were forwarded to Hyndman. [22] I therefore find that the plaintiff\'s claim with respect to the unpaid repairs against Hyndman has not been proven and that portion of the claim is also dismissed. [23] The defendant, Hyndman Transport (1972) Limited, shall have its taxable costs. D. Claim Against Standard Transportation Services Inc. [24] There being no defence entered to the claim by Redhead against Standard and the defendant, Standard, having been noted for default, judgment is therefore given against them in the amount of the plaintiff\'s claim for:(a) damages for breach of contract for the outstanding lease payments and the outstanding parts and service account in the total amount of $63,267.49;(b) pre-judgment interest to be calculated from March 28, 1994, to the date of judgment pursuant to The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2;(c) costs of this action.","An action for payments owing on vehicles leased by Standard from Redhead and for parts and labour supplied by Redhead to the leased vehicles. At issue was whether Hyndman had an obligation in contract or equity for the lease payments and repairs from September 1993 until February 1994 based on discussions in 1993. There was no correspondence between the parties confirming the terms of the agreement. It was agreed that the discussions concerned the fact that Standard was not solvent at that date and that Hyndman entered an arrangement with Standard to operate under Hyndman's authority; Hyndman would make payments but would not agree to having the leases assigned to them. In issue was for how long the lease payments were to continue and on what conditions. HELD: The action against Hyndman was dismissed with taxable costs. Standard did not enter a defence to Redhead's claim and had been noted in default. Judgment was entered against Standard for $63,267.49 for the outstanding lease payments and parts and service account plus pre-judgment interest calculated from March 1994 to the date of judgment pursuant to the Pre-judgment Interest Act. 1)Redhead's claim against Hyndman was dismissed as there was no contractual relationship between the companies respecting the lease payments. Any verbal arrangement was never verified. It was clear that Hyndman refused to assume the obligations on the leases; that Redhead knew of the risk because of Standard's insolvency and was prepared to take that risk. 2)The facts did not establish appropriate circumstances for an award based on either quantum meruit or unjust enrichment. The actions taken were for the benefit of Standard in an attempt to keep it operational.  3)The claim against Hyndman for unpaid repairs was not proven. Hyndman did make some payments on behalf of Standard for repairs although there was no specific contract to do so.  It was not established that the accounts were forwarded, that Hyndman had notice of the unpaid invoices or issued a purchase order number authorizing the repairs. Hyndman gave notice to Redhead that they would not be obligated for repairs without a purchase order number.",3_1999skqb140.txt
176,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 019 Date: January 27, 2011 Information: 44025627 Location: Prince Albert Between: Her Majesty the Queen and Tyler James Hansen Appearing: C. Scott For the Crown K. Hodgson-Smith For the Accused JUDGMENT S. D. LOEWEN, I. INTRODUCTION [1] The accused, Tyler James Hansen, is facing number of charges outlined in single information. [2] The charges against the accused allege that, on or about June 20, 2010, at or near Prince Albert, Saskatchewan, he did:Count #1 – wound, maim, disfigure, or endanger the life of Chris Hujber, thereby committing an aggravated assault, contrary to section 268(1) of the Criminal Code. Count #2 – unlawfully assault Cst. Chris Hujber, a peace officer engaged in the lawful execution of his duty contrary to section 270(1) (a) of the Criminal Code. Count #3 commit an assault on Pamela Hujber, contrary to section 266 of the Criminal Code. Count #4 being at large on his undertaking entered into before justice or judge and being bound to comply with condition thereof, to wit, shall keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code. Count #5 being at large on his undertaking entered into before justice or judge and being bound to comply with condition thereof, to wit, shall abide by curfew at your residence and be in that residence between the hours of 11:00 p.m. and 7:00 a.m. daily and present yourself in person to any peace officer checking your curfew, except as required for work purpose, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code. Count #6 being at large on his undertaking entered into before justice or judge and being bound to comply with condition thereof, to wit, shall abstain completely from the possession and consumption of beverage alcohol within the meaning of The Alcohol And Gaming Regulations Act of Saskatchewan, not be in any premise the primary purpose of which is the sale and consumption of beverage alcohol, not be in any private residence where beverage alcohol is consumed and not attend any community event at which beverage alcohol is served, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code. [3] Prior to trial the accused pled guilty to counts and in the information, being curfew breach and an alcohol abstention breach on his undertaking. At the argument stage of this trial, the Crown indicated they were not seeking conviction on the count related to the alleged assault on Pam Hubjer, and that is appropriate, given the evidence heard. [4] That leaves for consideration counts 1, and 4. [5] On the date in question there was gathering at 126 21st Street East, Prince Albert, Saskatchewan hosted by Gerry Tolentino and Claudette Natomagan, long term common law spouses. They had karaoke night and about 15 people had gathered for that purpose. There was alcohol served at the party and both Gerry and Claudette were, to some extent, under the influence, so to speak. [6] Some time after 1:00 a.m. the accused attended at the party with his girlfriend. Apparently he came to get keys from his brother Blaine, who was guest in the home, and the purpose of obtaining the keys was so that the accused could go back to Blaine’s home as he was staying there overnight. [7] There was evidently significant argument between the accused and his girlfriend, and their stay at this party was cut short and they were asked to leave and both of them left, together with Blaine. The exact reason for them leaving, or the circumstances under which they left was unclear, however, it was apparent they were told to leave. While they were leaving the residence it is evident that they were unhappy and the argument that was going on when they arrived continued out onto the street. [8] The argument between the two was something that attracted the attention of Mr. Tolentino who was in the back yard of his home having cigarette, and also attracted the attention of their neighbours who lived across the street. The neighbours were the complainants in this matter, Chris Hujber, and his wife, Pam Hujber. Coincidentally they had just returned from pub night and were walking up beside their house when they heard the argument. Chris Hujber was an off duty R.C.M.P. officer, not in uniform. When the argument was heard, they both noticed it, however, they entered their own home when they first arrived. [9] The argument continued until the three people entered the vehicle in question. Hujber and his wife were inside their house and then witnessed what was described as “stunt”. The stunt was quite significant in that it involved what is referred to as “brake torque”. This occurs when an engine is placed into gear, revved at high rate with the brakes on, which keeps the vehicle in its place, yet allows the drive wheels to turn, thus creating loud squealing noise and significant amounts of smoke from the squealing tires. [10] At this point Chris Hujber indicated that he left his home to go outside and tell the driver to, in his words, “grab brain”. It is evident from him saying that that he was obviously upset and wanted to intervene to prevent this obvious breach of the peace. He also suspected alcohol use by the driver of the vehicle in question. [11] He went to the front passenger window of the van which was in front of his house facing from his left to his right. He indicated that he pounded once on the window but got no response from the occupants. He felt it was unsafe to go either past the front of the vehicle in question or the back, because of the way the stunting. [12] He pounded on the window second time and after that occurred apparently the brake torque stopped. The passenger, being the accused in this case, then opened the passenger door saying words to the effect “so you think you’re tough”, and came, in Chris Hujber’s words, flying at him swinging his arms and fists, attempting to hit him in the face. [13] The complainant handled the Defendant quite well at first and was holding him off by his shoulders. The accused was swinging wildly at him, something that Hujber indicated shocked him, however no significant blows were landed. At some point during this initial altercation, Hujber fell and indicated that he could not get up. At that point the accused got on top of Hujber and started pummeling him with his fists. [14] Hujber indicated that he was struck approximately ten times, at least five times on his face, as result of which he received, among other injuries, broken nose. [15] What resulted from the fall as he was trying to control Hansen was apparently that his ankle broke. Both the ankle injury and the broken nose were subject to comment of medical report that was filed as Exhibit P1 by consent. [16] Towards the end of this assault, Claudette Natomagan attended the scene, pulled Hansen off of Hujber, and Hansen departed the scene. Shortly thereafter the police arrived and police tracking dog followed scent and found the accused hiding in yard around the corner within block or so of the location of the incident. [17] What occurred obviously constituted an assault, however, I was left with determining the issue in count #1 whether or not a defence of self defence was available to the accused, and on count #2 whether or not Hujber was properly identified and therefore properly acting as a police officer in the line of duty at the time that this incident occurred. [18] On the issue of Hujber being properly identified or acting as peace officer there were three people that testified on the issue of the communication of his status to the accused. The fact that he was police officer employed by the RCM Police at the time, was off duty, was not in uniform, and did not present his badge when he attended the scene was not in dispute. [19] Claudette Natomagan testified that when she arrived, it was at the point where the brake torque had stopped, the complainant was on his back on the boulevard beside the van and was being assaulted by the accused. In her words she yelled at the accused “stop hitting him, you are assaulting police officer”. The accused did not stop his assault immediately and it was necessary for Claudette to physically remove him from the officer. She described herself, and obviously appeared as, rather large woman, and did not have any difficulty in getting the accused off the police officer. [20] Second, Chris Hujber himself testified. He saw the argument, saw the brake torque and went to intervene. He strongly (and rightly) suspected that alcohol was involved and if required he was prepared to effect an arrest of driver of motor vehicle impaired by alcohol. When he went to the window of the vehicle, it is also evident that the accused himself was doing nothing unlawful but was just in vehicle that was causing this significant disturbance. He did not recall whether or not at that instance he identified himself as police officer. He acknowledged that he had no badge and certainly was not dressed in uniform. On the issue of communication of his status to the accused, he said that when he was on the ground, and while the accused was assaulting him, his wife said to the accused that he was police officer. Chris Hujber himself indicated that he told the accused the same thing at the same time period. [21] Pam Hujber indicated that in her recollection her husband indicated that when he attended at the window of the vehicle in question he properly identified himself as police officer, saying words to the effect, “I’m police officer, you have to stop”. She also indicated that she was quite upset, and was trying to call in the assault to the City Police, saying words to the effect of, “there is an officer down. [22] She also indicated that after Chris Hujber fell she told the accused that Chris was police officer in words to the effect that “he’s cop”, and also testified that Claudette used similar words to that effect at the same time. A. Does the defence of self defence apply to the accused in relation to the aggravated assault charge? B. Can the accused be convicted of an assault on peace officer in the circumstances of this case? A. Does the defence of self defence apply to the accused in relation to the aggravated assault charge? [23] The issue as to whether or not the accused can be convicted of an aggravated assault in these particular circumstances can be resolved easily, in my view, by review of the facts of the case. [24] On the issue of wounding it is clearly the Crown’s onus to prove beyond reasonable doubt not only that an assault occurred but that on the evidence, as whole, self defence, is not available as defence in the circumstances. [25] It is clear, as had mentioned earlier that the accused assaulted Cst. Hujber. It is also clear that that assault ended in two injuries which would constitute wounding. [26] First the broken nose is breaking of the skin as it was demonstrated through viva voce evidence and the photographs that Cst. Hujber’s nose, and face, was significantly injured. Second, the injury to Cst. Hubjer’s ankle is wound. [27] It is settled law that an intent to wound is not the requisite mens rea in for an aggravated assault convision. It only needs to be shown that there is “an objective foresight of bodily harm”, that results from the actions of an accused. (See: R. v. Godin,[1] referred to under Tab 11, in the Defendant’s Brief of Law). [28] In the present case the accused,when confronted by the officer, came out with an aggressive attitude, indicating to Cst. Hujber, “so you think you’re tough?”, or words to that effect. The accused exited the vehicle and literally flew at the complainant, flailing his arms and fists and as result of Hujber defending himself from that assault he fell and the assault resulted in his ankle being broken. This is, when viewed objectively, clearly foreseeable result. The test of objective foreseeability put in layman’s terms would be met if reasonable person witnessing the incident would conclude that the injuries could result from the assault. To test the present case on that criterion, it would have to be clear to bystander witnessing the event that the assault could cause such fall and broken ankle could result. In my view the answer to that question is yes. [29] In any event, even if am wrong in that conclusion regarding the injury to Hubjer’s ankle, there was further wounding in that the accused punched the officer in the face. This punching amounted to approximately five blows to the face while the officer was on the ground, again attempting to defend himself from the accused. Again, should one who punches another in the nose be surprised that, upon impact the nose is broken? This again was reasonably foreseeable injury. [30] The accused claims however that he was justified in using force and that the victim in this case should be viewed as the aggressor. Clearly Cst. Hujber was larger than the accused, he approached the accused in an aggressive manner, and the accused therefore argues that the evidence ought to lead to the inference that he felt threatened and the defence of self defence should be available to him. [31] This is, it is said, augmented by the actions of the officer when he pounded on the window of the vehicle in question. Up to this point in time Hansen was not breaking any laws, rather, it was the person operating the vehicle that was. [32] On the facts before me however the accused immediately became aggressive. He asked no questions of the complainant but simply commenced his aggression to him immediately upon exiting the vehicle. He did not appear at all inhibited by the size difference. If indeed he was concerned Cst. Hujber was going to assault him or that Cst. Hubjer was larger than him, and intimidating to him he needed only to have remained in the vehicle with the window up and the door locked. The difference that separated them could easily have continued had he simply done nothing. [33] Section 268 of the Criminal Code, as applied to this particular case, reads as follows: 268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [34] In this instance, on my findings as outlined above, the accused is clearly guilty of the assault in question. Even if the original actions of the accused might be viewed as originally defensive in nature, he clearly used more force than was necessary to defend himself, which takes him out of the protection afforded to him by Section 34 (1) of the Criminal Code. This is evident in that, even after Hansen had controlled the situation, he continued his assault against the victim while the victim was on the ground, and had to be physically restrained from continuing the assault. The officer at this time was clearly in defensive posture, and could not be said, by any reasonable standard, to be posing any threat to the Accused. [35] Section 30 of the Criminal Code provides as follows, namely: 30. Every one who witnesses breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace. [36] Therefore, whether or not Cst. Hujber was acting the course of his duties as a police officer, he had a lawful right to intervene, to prevent the continuation of the breach of the peace he witnessed. It was quite reasonable for him to go to the passenger window where Hansen was seated as the way the vehicle was being operated was clearly danger to anyone in its vicinity, and while he didn’t have right to arrest the accused, by the time the accused placed himself in the position that he did, the breach of the peace had ceased, and the accused was involved in his assaultive behaviour. B. Can the accused be convicted of an assault on peace officer in the circumstances of this case? [37] On the issue of whether or not Constable Hujber was acting in the execution of his duty, again, he did not need to be police officer to engage in the activities that he did, namely, preventing the breach of the peace. However it is constituent element of the mens rea of the offence of assaulting police officer that person know that the person he is assaulting is indeed peace officer. [38] Clearly Cst. Hujber was peace officer. Equally clearly he was, in my view, in the lawful execution of his duty, or at least, not exceeding any authority he had, however, do not have to decide that point. [39] More to the point the issue of whether he was acting in the lawful execution of his duty as far as the accused is concerned, can be decided again by fairly brief reference to the facts. [40] have found on the facts that Charlotte Natomagan, Chris Hujber, and Pam Hujber all testified as to the proper identification of Chris Hujber as police officer. [41] However, none of the three versions of what occurred were consistent with the other and given the heat of the moment and the immediate assault by Hansen on Hujber, am left with some doubt as to whether the mens rea of the offence, namely that the accused knew that the officer in question was in fact police officer has been proven. [42] As an example, Hujber himself did not recall identifying himself as peace officer when he attended at the vehicle that the accused was in and pounded on the window. He was not, as said earlier, dressed as peace officer, nor did he present any identification as such. Contrary to that, Pam Hujber testified that Chris Hujber did in fact identify himself as peace officer. Its difficult to know whether or not this is actually the case, and even if it was the case, the facts surrounding this particular effort to prove identification of the officer in question appropriately is left in some doubt. The window in the vehicle remained closed, there was loud noise coming from the vehicle itself, from the vehicle’s tires, and possibly from the radio inside the vehicle in question. [43] The other way that the message could have gotten through to the accused that Hujber was police officer was testified to by Hujber, Natomagan and Pam Hujber. When he was on the ground being pummeled by the accused, each of the three witnesses indicated that at different times during that final bit of the altercation, they told the accused in different words that Hujber was peace officer. The exact timing and the words used by Hujber were not clearly made out, and also have some doubt as to whether the requisite communication of this fact occurred on that occasion. In any event the assault stopped almost immediately upon Natomagan arriving on the scene which is pretty much the same time that all three of these witnesses testified that the last communication occurred. [44] This issue is essentially, in my view, how the concept of reasonable doubt is tested. Where there are contradictory reports within the Crown’s evidence of matter that is essential to the Crown’s case, and have some doubt about such evidence, must acquit. Even if one of the versions of the particulars of the communication issue is correct, in the heat of the moment, there is some doubt in my mind as to whether or not the accused heard that communication. He certainly did not change his actions towards the officer if he did hear it. V. CONCLUSION [45] Therefore am left, having considered the totality of the evidence without any reasonable doubt as to the accused’s guilt on count #1. No evidence was offered by the Accused to contradict any Crown evidence and the evidence considered by me left me convinced beyond a reasonable doubt and he is therefore guilty of Count #1, the aggravated assault on Chris Hujber. [46] The accused, based on my finding as to the issue of communication of the complainant’s status as a police officer, on count #2, is in some doubt, and therefore the accused is entitled to be acquitted on that charge. [47] On count #3, the Crown has invited me to dismiss that charge, and do so. [48] On count #4, the accused in this case has obviously committed breach of the peace, and he will be convicted, on his prior admission of the undertaking in question, of count #4 as well. [49] Counts #5 and #6 have already been spoken to by way of Guilty Plea. [50] thank counsel for the accused for the extensive brief that she filed which found helpful in analyzing the law. As well, the arguments and cases filed by the Crown were helpful in me making my conclusions today. [51] Dated at the City of Prince Albert, in the Province of Saskatchewan this 27th day of January, A.D. 2011. S.D. Loewen, [1] R. v. Godin, 1994 CanLII 97 (SCC), [1994] S.C.J. No. 55, [1994] S.CR. 484, 31 C.R. (4th) 33.","The accused was a passenger in a van where the driver was stunting on the complainant's street. The complainant was an off duty police officer who left his home and knocked on the passenger window. The accused exited the van and assaulted the complainant resulting in the complainant receiving a broken nose and ankle. The accused was charged with aggravated assault and assaulting a police officer. The accused asserted a defence of self-defence to the charge of assault and questioned whether the complainant was properly identified and acting as a police officer in the line of duty at the time of the incident. HELD: The accused was convicted of aggravated assault and acquitted of the charge of assaulting a peace officer. 1) Regardless of whether the complainant was acting in the course of his duties as a police officer, he had a lawful right to intervene to prevent the continuation of the breach of the peace he witnessed. Even if the original actions of the accused might be viewed as originally defensive in nature, he clearly used more force than was necessary to defend himself.  2) Although three of the Crown's witnesses identified that the complainant identified himself as a police officer, none of the versions of what occurred were consistent with the other. The Court was left with doubt as to whether the mens rea of assaulting police officer was proven, namely that the accused knew that the officer in question was in fact a police officer.",b_2011skpc19.txt
177,"/jmj Q.B.J. A.D. 1996 No. 991 J.C. Y. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: HER MAJESTY THE QUEEN and LORRY RICHARD SMITH D.A. Halvorsen for Her Majesty the Queen T.J. Brown for Lorry Richard Smith JUDGMENT McINTYRE J. May 26, 1999 [1] The accused, Lorry Richard Smith (""Smith""), is charged: 1. on or about the 22nd day of November, A.D. 1995 at Moosomin District, in the Province of Saskatchewan, did unlawfully traffic in narcotic, to wit: cannabis marihuana contrary to Section 4(1) of the Narcotic Control Act; 2. on or about the 22nd day of November, A.D. 1995, at Moosomin District, in the Province of Saskatchewan, did unlawfully have in his possession narcotic to wit: Cannabis (Marihuana) for the purpose of trafficking, contrary to Section 4(2) of the Narcotic Control Act; 3. on or about the 22nd day of November, A.D. 1995, at Moosomin District, in the Province of Saskatchewan, did unlawfully cultivate Cannabis (Marihuana) without authority contrary to Section 6(1) of the Narcotic Control Act. [2] A voir dire was conducted to determine the admissibility of marihuana plants seized by a police officer as a result of a warrantless search. [3] On November 22, 1995, Cst. Ken McLaughlin of the RCMP was on highway patrol travelling east on the number highway approaching the Manitoba border when he noticed Ryder rental van with Ontario licence plates stopped on grid road leading to Saskatchewan tourist information booth just off the highway. As he was approaching the Manitoba border and had to turn around, Cst. McLaughlin testified he turned on to the grid road and drove up to the van. He noticed Smith standing at the rear of the van. [4] At this point Cst. McLaughlin said he had no reason to believe an offence had been committed and he approached Smith to see if he required any assistance. Cst. McLaughlin says he will stop couple of times month to offer assistance to motorists. Cst. McLaughlin says he was seated in an unmarked police cruiser wearing an RCMP uniform, being parka with crests on each shoulder. It was approximately 1:20 p.m. in the afternoon. [5] Cst. McLaughlin testified he was the first to speak. It is to be noted that as result of voir dire conducted within this voir dire it was determined that the conversation between the accused and Cst. McLaughlin is admissible under common law principles as part of the Crown's case that there was reasonable and probable cause for warrantless search. Cst. McLaughlin said hello, or words to that effect. He could not recall the response of the accused. [6] Cst. McLaughlin asked if there were any problems with the vehicle and as he recalls it the accused responded he was looking for place to relieve himself. Cst. McLaughlin asked Smith where he was going and was told British Columbia. Cst. McLaughlin then asked Smith what he had in the back of the van. Cst. McLaughlin says that at this point he had no reason to believe an offence had been committed. [7] Cst. McLaughlin says that Smith's answer was two cases of wine. In cross-examination counsel suggested the answer may have been ""A case of wine"". The notation in Cst. McLaughlin's notebook was ""case of wine"". While counsel suggested there were prior inconsistent statements, none were established. Counsel called John Williams, who had been Smith's counsel at the time. Mr. Williams testified that two days after the incident Cst. McLaughlin told him the accused's answer was two cases of wine. am satisfied the response was two cases of wine. In the end result, whether the answer was two cases of wine or case of wine is not determinative of this case. [8] At this point Cst. McLaughlin testified that Smith was no longer free to go as he now had reason to believe Smith had committed an offence under The Alcohol and Gaming Regulation Act, S.S. 1988-89, c. A-18.01, although this was not communicated to Smith at this point in the events as they unfolded. [9] The Alcohol and Gaming Regulation Act, provides: 108(2) person who is not minor may: ... (e) bring into Saskatchewan beverage alcohol legally purchased or acquired in any part of Canada other than Saskatchewan not exceeding the kind and quantity prescribed in the regulations. Section 50 of The Alcohol Control Regulations, 1994, R.R.S., c. A-18.01, Reg. provides: 50 For the purposes of clause 108(2)(e) of the Act, the maximum quantity of beverage alcohol purchased or acquired in any part of Canada other than Saskatchewan that person may bring into Saskatchewan is, in the case of: (a) spirits, 1.14 litres; (b) wine, 1.14 litres; and (c) either beer, coolers or any combination of beer and coolers, nine litres. [10] Cst. McLaughlin testified that he then asked Smith to open the back of the van. note that the van in question is one in which the cargo portion of the van is separate from the passenger compartment. Smith opened the back of the van and Cst. McLaughlin entered. He testified that the back of the van was divided in half by blue tarp suspended from the roof. Cst. McLaughlin proceeded to examine that portion in the van behind the blue tarp. He observed black box about the size of trunk. There were some items on top of the box and temperature and humidity gauge on top of these items. There was propane tank and propane tree. There was carton containing eight 750 ml. bottles of wine. There was another carton containing other miscellaneous items such as duct tape and can of black spray paint. [11] It was Cst. McLaughlin's recollection it had been about minus 10 degrees centigrade that morning. He believed the propane heater was operating. The wine was situated between the black box and the propane tank. Cst. McLaughlin testified he wanted to examine the black box for the second case of wine. He was not able to open the box, as it was padlocked. [12] Cst. McLaughlin and Smith then exited the van. The accused was allowed to relieve himself. Cst. McLaughlin searched the accused for the key to the black box and to ensure his own safety. Smith was arrested and placed in the back of the patrol car. The accused was arrested for bringing into Saskatchewan quantity of alcohol in excess of that permitted. Cst. McLaughlin testified that when he arrested Smith he read to him from card he carries for that purpose and advised Smith of his right to call lawyer. [13] Cst. McLaughlin testified he then told Smith it was his practice to ask persons suspected of bringing in an over quantity of alcohol to relinquish the same in which event the person would not be charged. [14] Cst. McLaughlin contacted Cst. Ross, then of the Moosomin detachment of the RCMP, for assistance and asked Cst. Ross to contact the highway traffic board and have two officers dispatched to Cst. McLaughlin's location. The highway traffic board officers arrived and one of them proceeded to drive the Ryder van to the highway traffic board weigh scale some two or three kilometres from the tourist information booth. Cst. McLaughlin transported the accused to the weigh scales in his patrol vehicle where Cst. McLaughlin and the highway traffic board officers were met by Cst. Ross. [15] Cst. McLaughlin testified that Smith was then given an opportunity to call lawyer and to afford him privacy for that purpose Smith was put in room by himself. After placing call Smith then received call on the highway traffic board office phone. After concluding his call Smith was placed in the back of the patrol car. [16] Cst. Ross testified he was to be the exhibit person. He went to get camera and then proceeded to try and open the black box. Cst. Ross acknowledged there were two justices of the peace in the Moosomin area but he did not know if justice of the peace was available at that time. Cst. Ross testified obtaining warrant never crossed his mind. He said he had done many searches of vehicle for liquor. [17] Cst. Ross removed two padlocks which were on the black box but found this did not provide entry to the box. It was determined the lid of the box had been screwed to the body of the box by 16 to 20 screws. Cst. McLaughlin instructed Cst. Ross to remove the screws, which he did. Inside the box Cst. Ross found what appeared to be 524 marihuana plants ranging from three to nine inches in height. [18] After opening the box, Cst. Ross then searched the cab of the van where he found brief case. He opened the brief case in which he found note book and numerous receipts. He also seized screw gun and the can of spray paint. [19] The accused was then arrested for offences under the Narcotic Control Act, R.S.C. 1985, c. N-1. [20] Cst. McLaughlin testified that search warrant did not cross his mind as they were searching pursuant to The Alcohol and Gaming Regulation Act which provides: 143 Any officer may arrest, without warrant, any person who he finds committing an offence against this Act. 145.1(1) In this section and in section 147, ""conveyance"" includes vehicle, aircraft, boat or other means of transport. (2) justice may issue warrant to search conveyance named in the warrant and seize anything that may be evidence of an offence against this Act or the regulations on the oath of an officer that there are reasonable and probable grounds to believe that: (a) an offence against this Act or the regulations has occurred; and (b) evidence of an offence is likely to be found in the conveyance. (3) An officer with warrant issued pursuant to subsection (2) may: (a) enter and search any conveyance named in the warrant; (b) open and examine any trunk, box, bag, parcel, closet, cupboard or receptacle that he or she finds in the conveyance named in the warrant; (c) seize anything that may be evidence of an offence against this Act or the regulations; (d) seize and remove any beverage alcohol and the containers in which it is found. 146(1) In this section and in section 147, ""exigent circumstances"" means circumstances in which an officer has reasonable and probable grounds to believe that the delay necessary to obtain warrant pursuant to section 145 or 145.1 would result in danger to human life or safety or the loss, removal or destruction of evidence. (2) Subject to subsection (3), an officer may exercise any of the powers mentioned in subsection 145(2) or 145.1(3) without warrant issued pursuant to that section if the conditions for obtaining the warrant exist and there are exigent circumstances. (3) No officer shall enter private place within the meaning of clause 107(1)(a) without warrant issued pursuant to section 145 or 145.1 unless the occupant of the private place consents to the entry. 147(2) An officer: (a) with warrant issued pursuant to section 145 or 145.1; or (b) where conditions for obtaining warrant exist but there are exigent circumstances; may seize any conveyance in which he finds beverage alcohol that he believes, on reasonable and probable grounds, is intended for sale or has been purchased or obtained in violation of this Act. [21] Cst. McLaughlin testified he did not require warrant as he felt that exigent circumstances existed. He felt that if he left the accused and the van on the grid road while he went to get warrant neither the accused nor the van would be there when he got back. Cst. McLaughlin indicated that there were no officers working in the Moosomin detachment that day. Cst. Ross was on call. There were officers in the Broadview detachment. [22] In cross-examination Cst. McLaughlin testified it was his understanding that if you had grounds to obtain warrant you could conduct warrantless search. He acknowledged that Cst. Ross could have gotten search warrant and brought it out to the location where he had encountered Smith by the tourist information booth. He also acknowledged that once the accused had been arrested there were no longer exigent circumstances. He says at that point there would be an issue of the continuity of the evidence. [23] In re-examination, Cst. McLaughlin offered the further observation that once he had arrested someone he could perform search incidental to the arrest. [24] Counsel for the accused sought to exclude the evidence of the marihuana plants. The Crown stipulated it was not arguing that the accused had consented to the search. Counsel raises the following issues arising from the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the ""Charter""): 1. Was there an arbitrary detention contrary to s. of the Charter; 2. Was there violation of Mr. Smith's rights to counsel contrary to s. 10(b) of the Charter; 3. The residual right to silence pursuant to s. of the Charter; or 4. Was the search unreasonable contrary to s. of the Charter. [25] begin by summarizing counsel's argument with respect to these issues: 1. Was there an arbitrary detention contrary to s. of the Charter. [26] Counsel acknowledges that any detention in this instance did not arise as result of the exercise of physical control over an individual's movements or demand made where non-compliance carries with it criminal consequence. It is argued that detention arises out of ""psychological compulsion"". Counsel relies upon the following comments of LeDain J. in R. v. Therens (1985), 18 C.C.C. (3d) 480 (S.C.C.) at p. 505: Although it is not strictly necessary for purposes of this case, would go further. In my opinion, it is not realistic, as general rule, to regard compliance with demand or direction by police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. [27] Counsel argues the accused was asked two pointed investigative questions, ""Where are you going?"" and ""What is in the back of the van?"". It is argued that in context where the peace officer has approached an individual to speak to him, asking these questions, the average motorist would perceive they were compelled to co-operate. [28] Cst. McLaughlin acknowledged that smuggling of cigarettes into Saskatchewan is an issue for the RCMP. Counsel argues the officer was not simply engaged in innocuous social conversation but had pulled up to question the accused in an investigative mode. [29] Counsel also argued on the basis of R. v. Young (1997), 1997 CanLII 1455 (ON CA), 116 C.C.C. (3d) 350 (Ont. C.A.) that search presupposes detention and suggests that like Young the search began with the questioning of the accused. On the basis of Young and R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615 counsel takes the position that in the context of warrantless search detention arises the moment the questioning that leads to the search begins. [30] The Crown did not suggest that prior to the information provided by the accused there was either reasonable or probable grounds nor any articuable cause for detention as discussed in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.). 2. Was there violation of Mr. Smith's rights to counsel contrary to s. 10(b) of the Charter. [31] Counsel argues once it has been established there has been detention the police officer must provide the accused with an opportunity to retain and instruct counsel without delay. They must further refrain from attempting to elicit any evidence from the accused until he has had reasonable opportunity to retain and instruct counsel. It is argued the accused had been detained and asked to participate in the seizure of evidence and as result should have been advised of his right to retain and instruct counsel. 3. The residual right to silence pursuant to s. of the Charter. [32] It is argued the court has also recognized the right to silence as right protected as principle of fundamental justice pursuant to s. 7. It is said to be broader than the common law confession rule and the rule against self-incrimination. The concept is rooted in the notion that once an individual has been placed in jeopardy by the criminal justice system, he should have the right to choose whether to speak or remain silent. The issue to be decided is whether the conduct of the authorities, considered on an objective basis effectively and unfairly deprived the accused of the right to make this choice: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) (S.C.C.). 4. Was the search unreasonable contrary to s. of the Charter. [33] Counsel suggests the present case is on all fours with Mellenthin, supra. The Supreme Court of Canada recognized that the random stop of motor vehicle amounts to an arbitrary detention. It is further argued the court recognized there is an atmosphere of police authority and compulsion when motorist is stopped by police officer. The present situation did not involve roadside check stop. The Crown acknowledged there was no argument advanced that Cst. McLaughlin was exercising authority under The Highway Traffic Act. Counsel's position is that there is no difference between police officer stopping motorist on the highway to ask questions and police officer who pulls up to stopped vehicle to ask questions. [34] In Mellenthin, supra, the police directed the accused to check stop set up as part of program to check vehicles. The officer approached the vehicle, shone his flashlight into the window of the vehicle and noticed gym bag on the seat beside the driver. The officer asked what was inside the gym bag. The driver told him that the bag contained food and held up paper bag, which contained plastic bag containing glass vials, which are commonly used in connection with the trafficking of cannabis resin. On the belief he had reasonable and probable grounds to search the vehicle under The Narcotic Control Act, the officer asked the accused to step outside the vehicle so he could perform search. During the search, the officer found small amount of cannabis resin and charged the accused with possession of narcotic. [35] In that context counsel relies upon the following comments of Cory J. at p. 624: ... At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into means of conducting either an unfounded general inquisition or an unreasonable search. Further, at p. 625: The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. of the Charter. [36] Counsel relies upon R. v. Acciavatti (1993), 1993 CanLII 14704 (ON CA), 80 C.C.C. (3d) 109 (Ont. C.A.), Simpson, supra, and Young, supra, as examples of the application of Mellenthin. [37] Counsel argues the search was unreasonable as it was not authorized by law. It is said the search itself began when Cst. McLaughlin without any legal authority turned the roadside encounter into general inquisition to satisfy his curiosity as to what was in the back of the van. [38] In my view the issue is to be determined by examining two questions. Was the accused ""detained"" at some point in the exchange, prior to the question ""what is in the back of the van""? When did the initial search of the back of the van commence? If the accused was not detained, nor any search begun, until after the accused had said he had two cases of wine in the van, then Cst. McLaughlin had reasonable and probable grounds for conducting at least the initial warrantless search on the roadside as he had reasonable and probable grounds to believe the accused had committed the offence of bringing more than 1.14 litres of wine into the province and exigent circumstances existed in that it was necessary to conduct search before the accused drove away with the evidence. [39] In reviewing the authorities there is an element of overlap between the two questions. There are observations which are not necessarily exclusive to the issue under which may review various authorities. [40] On the issue of detention, as identified in the quotation from LeDain J. in Therens, supra, the question is whether person would have ""reasonable perception of suspension of freedom of choice"". The issue was put into perspective by Doherty J.A. in Simpson, supra. series of decisions culminating in Mellenthin, supra, established that the stopping of vehicle as part of random check stop constitutes detention of the operator of the vehicle. As noted at p. 492: Once, as in this case, road safety concerns are removed as basis for the stop, then powers associated with and predicated upon those particular concerns cannot be relied on to legitimize the stop. Where the stop and the detention are unrelated to the operation of the vehicle or other road safety matters, the fact that the target of the detention is in an automobile cannot enhance the police power to detain that individual. [41] Doherty J.A. goes on to quote with approval at p. 494 from R. v. Dedman, 1985 CanLII 41 (SCC), [1985] S.C.R. as follows: .. Although police officer is entitled to question any person in order to obtain information with respect to suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, police officer has no right to detain person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. [42] He goes on to identify the limitations of the common law power of police officer to detain an individual for investigatory purposes. That issue does not arise in this instance. What is of interest is his comments with respect to the nature of the encounter between police officer and citizen which was before him, at p. 500: In addressing this requirement, it is also essential to keep in mind the context of the particular police-citizen confrontation. Constable Wilkin was investigating the appellant and the driver of the car. They were his targets. Constable Wilkin interfered with the appellant's liberty in the hope that he would acquire grounds to arrest him. He was not performing any service-related police function and the detention was not aimed at protecting or assisting the detainee. It was an adversarial and confrontational process intended to bring the force of the criminal justice process into operation against the appellant. The validity of the stop and the detention must be addressed with that purpose in mind. Different criteria may well govern detentions which occur in non-adversarial setting not involving the exercise of the police crime prevention function. In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some ""articulable cause"" for the detention. [Emphasis added] [43] He went on to note at p. 501 that an investigative detention cannot be based upon ""hunch"" even if based on intuition garnered by experience. [44] Whether an individual reasonably believes he has no choice but to answer the questions of police officer will depend on all of the circumstances. Counsel for the accused would describe the circumstances as follows. Cst. McLaughlin, knowing that smuggling of cigarettes into Saskatchewan is concern, sees an out-of-province rental van just inside the Saskatchewan border. He decides to ask questions and, in particular, questions of an investigative nature to see whether he might discover anything of suspicious nature. [45] The Crown would suggest Cst. McLaughlin, coming upon vehicle stopped on the side of the road offers assistance and engages in innocuous conversation as result of which the accused makes comment which gives the police officer reasonable and probable grounds to believe an offence has been committed under The Alcohol and Gaming Regulation Act. [46] find that Cst. McLaughlin was aware that the smuggling of cigarettes into Saskatchewan was concern for Saskatchewan police officers. However, do not accept that Cst. McLaughlin pulled up to the rental van in an investigative mode. Cst. McLaughlin pulled up to see if he could offer assistance. However, once Cst. McLaughlin had asked if there was problem and had been told in effect, there was no problem; that the accused has stopped to relieve himself, am satisfied that even if the question ""where are you going"" was innocuous social conversation, that by asking the question ""what is in back of the van"" Cst. McLaughlin was fishing to see what answer he got. There can be no other explanation for the question. The question has nothing to do with determining whether the accused required any assistance. [47] Where in the spectrum does this encounter between police officer and citizen fall? In Simpson, stopping vehicle observed at suspected ""crack house"" was an arbitrary detention from the moment the vehicle was pulled over. In Young, supra, the police officer observed the accused about block from business premises which had been broken into. The accused appeared to be intoxicated. The police officer questioned the accused ""asking him for his name, address and where he had been"". The police officer became suspicious because the accused was not taking the most direct route to his home. The police officer noted that one of the pockets of the accused's jeans appeared to be bulging and asked the accused if he would empty his pockets. The court held the accused had been detained arbitrarily whether the detention commenced when the constable stopped him on the street, when he requested him to empty his pockets, or when he put him in the rear of the cruiser. [48] R. v. Lawrence (1990), 1990 CanLII 11016 (ON CA), 59 C.C.C. (3d) 55 (Ont. C.A.) would appear to be on the other end of the spectrum. police officer, having received report of break and enter was patrolling in the area when he spotted the accused. He stopped the accused by maneuvering his police cruiser across the path of the sidewalk where the accused was riding her bicycle. The accused did not match the description of the person believed to have committed the offence. The police officer asked if he could speak to the accused and asked where she lived. When he received answers which he believed to be false he asked what was in her knapsack, which she offered to him. Inside he found items which could have come from the break and enter. It was found there was no detention until she was placed in the police cruiser. Prior to this the search and questioning had lasted for approximately 25 minutes. The court found that the accused could have ridden around the cruiser and left at any time prior to being placed in the cruiser. [49] Tarnopalsky J.A. relied upon his judgment in R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.). At pp. 258-9 the court observed: ... [L]anguage used by police officer, although phrased in the form of request, may, depending on the circumstances, be reasonably construed by the person to whom the request is made to be direction or command. All the circumstances must be considered. See R. v. Soares (a judgment of this court, released March 27, 1987). In determining whether person, who subsequently becomes an accused, was detained at the time he was interviewed by the police, it is important to bear in mind that police officer when endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks useful information can be obtained. Although police officer is entitled to question any person in order to obtain information with respect to suspected offence, as general rule, he has no power to compel the person questioned to answer. Moreover, he has no power to detain person for questioning and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds: see R. v. Esposito (1986), 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88 at 94 (Ont. C.A.); (leave to appeal to the Supreme Court of Canada refused February 24, 1986). venture to suggest that in determining whether person who subsequently is an accused was detained at the time he or she was questioned at police station by the police, the following factors are relevant. do not mean to imply, however, that they are an exhaustive list of the relevant factors nor that any one factor or combination of factors or their absence is necessarily determinative in particular case. These factors are as follows: 1. The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given choice or expressed preference that the interview be conducted at the police station, rather than at his or her home; 2. Whether the accused was escorted to the police station by police officer or came himself or herself in response to police request; 3. Whether the accused left at the conclusion of the interview or whether he or she was arrested; 4. The stage of the investigation, that is, whether the questioning was part of the general investigation of crime or possible crime or whether the police had already decided that crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused; 5. Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated; 6. The nature of the questions: whether they were questions of general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt; 7. The subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had subjective belief that he was detained. [50] In Lawrence, supra, the principles he enunciated in Moran, supra, led Tarnopolsky J.A. to conclude at pp. 61-62: .. The questions of the police officers were still ""part of the general investigation""; he could not yet have decided that the appellant ""was the perpetrator""; it could not yet be said that his ""questioning was conducted for the purpose of obtaining incriminating statements from the accused""; he did not yet have ""reasonable and probable grounds to believe that the accused had committed the crime being investigated""; the nature of his questions were of general nature designed to obtain information"" rather than nature where ""the accused was confronted with evidence pointing to...her guilt"". It is true that in all the circumstances Constable Dankert would probably have been considered at least naive, if not negligent, if he had not tried to ask her some questions. That was his duty: to investigate reported offence and, to this end, to try to ask questions of anyone who might seem to be possible source of such information. However, if police officer who questions person who might appear suspicious must always provide s. 10(b) warnings, there would be far more detentions and arrests than our society would tolerate. ... Considering the interference with the appellant's bicycle passage by the cruiser, one might have concluded that there was psychological detention. There was, however, no evidence that the appellant felt compelled to remain at the police officer's cruiser. The seventh Martin test in Moran is not met in this case. The absence of psychological compulsion at that point in time is one of the factors that distinguishes this case from R. v. Voss [(1989), 1989 CanLII 7167 (ON CA), 50 C.C.C. (3d) 58 (Ont. C.A.)]. In Voss there was evidence by the accused himself and there was observable external evidence supporting the contention that the accused felt psychologically detained from the moment the interrogating officer received forensic information about possible causes of death. Moreover, in Voss, from the moment that information was received which, considering the alternatives, led to the conclusion that the death was homicide, there was only one major suspect the accused. In fact, he was the only suspect. Here, the investigation was at much earlier stage and the focus could not yet reasonably have been on the appellant, at least until her answers indicated prevarication and search of her knapsack revealed suspicious articles. At that time the suspicion focused on her, at that time she was invited into the police cruiser and, as the learned trial judge found, only at that time was she detained within the meaning of the Charter. ... Similarly, there is no basis for concluding that s. of the Charter was violated. In fact, the appellant did not urge this ground very strenuously. Just as there was no demand or direction to remain to answer questions so as to indicate detention, so too there was no demand or direction to offer up her knapsack for search. She was asked what was in it; in response she offered it to him to look in. Although that may be an impolite question for complete stranger to ask woman, and poor manners to look in, it cannot be characterized as demand or direction. She gave him her knapsack for ""look-see"" voluntarily, even if without any great joy. There cannot have been s. contravention. [51] It is to be noted that in Young, supra, at 357 the Ontario Court of Appeal observed that Lawrence, supra, must be considered as superseded by Mellenthin, supra, in the context of what constitutes an illegal search. In this context the court at 358 quoted from Cory J. in Mellenthin, supra, The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. of the Charter. The court went on to say: [15] In Simpson, supra, similar point arose and Doherty J.A. concluded as follows at p. 506: The appellant's reliance on s. 101 of the Criminal Code also assumes that the search of the appellant began when Constable Wilkin felt the appellant's front pant pocket. The reasons in Mellenthin, supra, indicate that the search cannot be so limited but must be taken as having commenced when the appellant was initially questioned by the police officer. The search proceeded from that point until the cocaine was recovered. Once the questioning of the appellant is taken as part of the search, then s. 101 of the Criminal Code cannot provide any authority for the search. [16] Once it is concluded that the search begins with the questioning and that there was no reasonable basis for search then, on the facts of this case, the officer put into motion what became an illegal search by simply inviting the appellant to permit an intrusion on his person in the form of emptying his pockets. It is the same as if the officer had reached out and physically emptied the pockets. [17] As to the specific moment when there was detention, the Crown conceded in its factum that it commenced with the questioning, and in oral argument switched to reliance on Lawrence, supra, as pointing to the time when the appellant was in the cruiser. The appellant did not press illegal detention in his argument, relying rather on unreasonable search and seizure, and to the extent detention may have any bearing on this analysis it seems sensible to conclude that search presupposes detention. [52] Not every encounter between police officer and citizen in which the police officer asks questions will by that fact alone constitute detention. Whether or not there is detention must depend on all of the circumstances. The list of factors as identified in Moran, supra, are relevant, although not exhaustive. [53] Does every conversation with police officer in which an accused makes an incriminating statement constitute, in retrospect, detention of the accused that commenced with the questions being asked. There is no such blanket proposition. It all depends on the circumstances. [54] In the circumstances at hand when the encounter between Cst. McLaughlin and the accused commenced the constable was not investigating crime and had no reason to suspect the accused was involved in any crime. Cst. McLaughlin stopped to render assistance if required. There was no detention of the accused prior to the question ""What's in the back of the van?"" However, as noted earlier am satisfied that when Cst. McLaughlin asked what was in the van he was fishing for an incriminating answer. base this conclusion not only on the fact there is no other reasonable explanation for the quesiton in the context in which it was asked but also the demeanour of the witness as he answered questions throughout the voir dire. [55] will now consider the initial warrantless search conducted by Cst. McLaughlin on the roadside. As noted in R. v. Caslake (1998), 131 C.C.C. (3rd) 97 (S.C.C.) warrantless search is prima facie unreasonable and violation of an individuals Charter rights. The Crown has the burden of showing that the search was, on the balance of probabilities, reasonable. In order to be reasonable the search must be authorized by law. Lamer C.J.C. had the following to say at p. 105: [12] ...First, the state authority conducting the search must be able to point to specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. For example, s. 487 of the Criminal Code, R.S.C. 1985, C. C-46, authorizes searches, but only with warrant issued by justice on the basis of sworn information setting out reasonable and probable grounds. failure to meet one of these requirements will result in search which has not been authorized by law. Third, and in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that search exceeds these limits, it is not authorized by law. [56] As noted by Lamer C.J.C. s. of the Charter which guarantees the right to be secure against unreasonable search or seizure is intended to protect an individuals reasonable expectation of privacy, and that such expectation is to be evaluated by balancing this privacy interest against the state's interest in law enforcement. [57] The question is whether the initial search conducted by Cst. McLaughlin can be said to have begun with the question ""what's in the back of the van?"" If the search did not commence with this question then the answer provided reasonable and probable grounds for at least the initial search and the question would become the status of the subsequent search conducted at the weigh scales. [58] As observed earlier, when the encounter between Cst. McLaughlin and the accused commenced Cst. McLaughlin was not investigating crime, he was not on the lookout for suspect with respect to any reported crime and he had no reason to believe the accused was involved in any crime. He stopped to see if the accused required any assistance. [59] It could be described as chance encounter between citizen and police officer. There can be no detention in stopping to see if the citizen requires assistance. There can be no detention in asking the question whether assistance is required and even asking motorist where he is headed, in the absence of other circumstances, whether it be in what an officer might say or do, which might cause the citizen to reasonably believe he has no choice but to answer. No such circumstances existed in this instance. [60] The question in whether Cst. McLaughlin can ask the accused what is in the back of the van? On the one hand it could be suggested that the circumstances can be distinguished from cases such as Mellenthin, supra, Simpson, supra, and Young, supra. They involved either random check stop (Mellenthin) or the officer had stopped the citizen in circumstances where crime had been committed (Young) or the officer had some suspicion an offence may have been committed (Simpson). In the aforementioned circumstances the police officer was not entitled to ask; what is in the gym bag (Mellenthin); the accused to empty his pockets (Young); or what was in the accused's pocket (Simpson). [61] It could be said that these cases involved detention of the accused from the outset. As noted in Mellenthin random check stop involves an atmosphere of police authority and compulsion. [62] On the other hand, in Lawrence, supra, there was no detention of the accused. While in Lawrence the Ontario Court of Appeal found there had been no search begun when the accused was asked what was in her knapsack, the court subsequently observed in Young, supra, that Lawrence must be considered to have been superseded on the search issue by the Supreme Court of Canada in Mellenthin. take this to mean that even though there may be no initial detention of citizen, police officer is not entitled (in the absence of reasonable and probable grounds) to ask what is in knapsack. [63] am satisfied Mellenthin, Young and Simpson cannot be distinguished. If person who has been detained cannot be asked what is in their gym bag or their pocket how can citizen who is not detained be asked similar question. As observed in Caslake, supra, s. guarantee against unreasonable search and seizure involves balancing the citizen's reasonable expectation of privacy against the states interest in law enforcement. [64] citizen may well make statements to police officer in the context of chance encounter, or otherwise innocuous conversation, which are incriminating in nature and where no Charter rights may be violated. However, can police officer ask questions, albeit in context which starts off rather innocuous, which are intended to see whether an incriminatory response might be elicited. [65] As noted, Cst. McLaughlin's question as to what was in the back of the van was unrelated to the purpose for which he had engaged the accused in conversation. The fact is Cst. McLaughlin was attempting to determine what was in the back of the van. He was searching to see what answer he would get. [66] am satisfied that the warrantless search began when Cst. McLaughlin asked the accused what was in the back of the van. As a warrantless search the onus is on the Crown. The Crown has not established that the search was authorized by law. The accused\'s right under s. 8 of the Charter to be secure against unreasonable search and seizure was violated. [67] Insofar as the issue of detention is concerned, adopt the observation in Young, supra, at p. 358 that once it has been found that search has begun it is sensible to conclude that search presupposes detention. Cst. McLaughlin acknowledged that at the point in time when he asked what was in the back of the van he had no reasonable and probable grounds to believe an offence had been committed. The Crown did not suggest it was circumstance involving an investigative detention. [68] Having found violation of the accused's rights under s. of the Charter it is unnecessary to deal with the issue of right to counsel. SHOULD THE EVIDENCE BE EXCLUDED PURSUANT TO S. 24(2) OF THE CHARTER [69] Section 24 of the Charter provides: 24(2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [70] As result of R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 there are three factors to be considered in determining whether the admission of constitutionally tainted evidence would bring the administration of justice into disrepute: (1) Fairness of the trial in admitting the evidence; (2) The seriousness of the violation; and (3) The effect of excluding the evidence on the administration of justice. It must also be noted that the focus on trial fairness has shifted from question of whether or not the evidence was real evidence to question of whether the evidence was conscripted from the accused. [71] From the analysis in Stillman evidence is conscriptive if the accused is compelled to participate in the creation or discovery of the evidence. Otherwise, the evidence is non-conscriptive and its admissibility would not render the trial unfair, although the seriousness of the violation and the effect of its admission must then be considered. Even if evidence is conscriptive, its admission will not render the trial unfair if the Crown establishes that the evidence would likely have been discovered in any event. [72] Mellenthin, supra, was decided prior to Stillman, supra. Mellenthin involved narcotics found in the gym bag because of road stop check. On the question of whether or not the evidence obtained as the result of an unreasonable search should be admitted into evidence and, in particular, on the issue of trial fairness Cory J. said at p. 626: Collins, supra, made it apparent that the admission of real evidence which was obtained in manner that violated the Charter will rarely operate unfairly in the conduct of the trial. There can be no doubt that in this case the cannabis which was discovered constituted real evidence. However, it must also be remembered that in R. v. Ross, [1989] S.C.R. 4, it was said at p. 16 that: ...the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair. The trial judge recognized these competing principles. She found that the evidence, although real, could never have been discovered but for the illegal search... He further observed at p. 629: It would surely affect the fairness of the trial should check stops be accepted as basis for warrantless searches and the evidence derived from them was to be automatically admitted. To admit evidence obtained in an unreasonable and unjustified search carried out while motorist was detained in check stop would adversely and unfairly affect the trial process and most surely bring the administration of justice into disrepute. [73] In Young, supra, the search of the accused's pocket was found to be unreasonable. However, at p. 360 the Ontario Court of Appeal concluded that the discovery of the cash as result of the illegal search did not affect fairness of the trial as it had been found that the accused was legitimately arrested for intoxication and the inevitability of search to assure that what was in the pocket was not weapon would have lead to discovery of the cash. [74] In the circumstances I am satisfied the evidence was conscriptive in that the accused was compelled to participate in the discovery of the evidence as a result of the unreasonable search which began with Cst. McLaughlin asking the accused what was in the back of the van. As a result, admission of the marihuana into evidence would render the trial unfair and bring the administration of justice into disrepute unless the Crown establishes that the evidence would likely have been discovered in any event. The Crown suggested no basis upon which the evidence would likely have been discovered in any event. The situation is not analogous to Young where it was reasonable to conclude that the evidence would likely have been discovered by other means. If the question had not been asked there would have been no search of the back of the van. Mr. Smith would have driven on and there is no basis to conclude the evidence would likely have been discovered by other means. [75] Having concluded that the evidence ought to be excluded on the basis that its admission would render the trial unfair, it is unnecessary to consider the other two factors.","The accused was charged with three offences under the Narcotic Control Act. The accused contests the admissibility of marijuana plants seized by the police. A police officer on highway patrol approaching the Manitoba border noticed a rental van with Ontario license plates stopped on the road. The police officer stated he had no reason to believe an offence had been committed and he approached the accused to see if he required any assistance. The officer stated it was his practice to offer assistance to motorists. The officer asked the accused if there were any problems with the vehicle and the accused answered he was looking for a place to relieve himself. The officer asked him where he was going and was told BC. He then asked the accused what he had in the back of the van and was told two cases of wine. The officer testified the accused was no longer free to go as he had believed the accused committed an offence under the Alcohol and Gaming Regulation Act. The officer searched the vehicle without a warrant and discovered 524 marijuana plants ranging in size from three to nine inches. HELD: The evidence is excluded. The police officer when he pulled up to the van was not in investigative mode but pulled up to see if he could offer assistance. The officer had no reason to suspect the accused was involved in a crime. When he asked what was in the back of the van the officer was fishing to see what answer he got. The Court is satisfied by the cases of Mellenthin, Young and Simpson, that if a person who has been detained cannot be asked what is in their gym bag or their pocket, how can a citizen who is not detained be asked a similar question. The s.8 right against unreasonable search and seizure involves balancing the citizen's reasonable expectation of privacy against the states interest in law enforcement. The police officer's question as to what was in the back of the van was unrelated to the purpose for which he had engaged the accused in conversation. The fact is the officer was attempting to determine what was in the back of the van and searching to see what answer he would get. The Court is satisfied the warrantless search began when the police officer asked the accused what was in the back of the van. The onus of a warrantless search is on the crown which has not established the search was authorized by law. The accused's right to unreasonable search and seizure was violated. The evidence was conscriptive in that the accused was compelled to participate in the discovery of the evidence as a result of the unreasonable search which began when the officer asked what was in the back of the van. The result is the admission of the marijuana into evidence would render the trial unfair and bring the administration of justice into disrepute unless the crown establishes that the evidence would likely have been discovered in any event. The crown suggested no basis upon which the evidence would likely have been discovered in any event.",1999canlii12687.txt
178,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 426 Date: 2012 10 22 Docket: Q.B.J. No. 15/2009 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and ALBERT TREVOR PETERS Counsel: Kimberly R. Humphries for the Crown Nicholas J. Stooshinoff for the offender JUDGMENT POPESCUL C.J.Q.B. October 22, 2012 I. Introduction [1] Albert Trevor Peters (the “offender”) pled guilty to committing an aggravated assault on his common‑law partner contrary to s. 268 of the Criminal Code. The Crown has applied under Part XXIV of the Criminal Code to have him declared a dangerous offender. The offender is 52‑year‑old man with significant criminal record. The Crown contends that the offender fits the criteria for dangerous offenders and should be declared to be one and sentenced to an indeterminate sentence. [2] The offender, on the other hand, argues that he fits neither within the dangerous offender nor the long‑term offender category but should merely be sentenced to standard determinate sentence for the crime that he has committed. [3] There is no doubt that the offender meets the dangerous offender criteria set forth in the relevant Criminal Code provisions in force at the time. The real issue is whether there is reasonable possibility that the offender can eventually be controlled in the community so as to justify the imposition of long‑term offender designation rather than the more serious dangerous offender designation. If found to be long‑term offender, it is then necessary to impose an appropriate determinate sentence to go along with the long‑term supervision order. II. Preliminary Matters A. Jurisdiction [4] This Court has jurisdiction to entertain the dangerous offender application because it is both the court which entered the conviction against the offender and is superior court of criminal jurisdiction. [5] The application was made following the conviction of the offender and prior to him being sentenced. C. Notice of application [6] Notice of the Crown’s intention to seek dangerous offender designation, and the grounds upon which it was made was given to the offender and filed with the Court on September 9, 2011. [7] An amended notice of application was provided to the offender and filed with the Court on September 20, 2011. D. Assessment order [8] By order dated January 4, 2011, the offender was remanded for period not exceeding 60 days to be assessed by Dr. Roger Holden (“Dr. Holden”). Dr. Holden filed his report with the Court less than 15 days after the assessment period as required by s. 752.1(2) of the Criminal Code. E. Consent by the Attorney General [9] On August 31, 2011, the Acting Deputy Attorney General for Saskatchewan signed consent authorising the Crown to make dangerous offender application as contemplated by s. 754(1)(a) of the Criminal Code. III. Background of the offender [10] The offender is 52‑year‑old male (born […], 1960). He was raised in Vancouver, British Columbia, and has one sibling. His parents are both deceased. report generated in 1995 and referred to in Dr. Holden’s Forensic Assessment Report (the “Forensic Assessment Report”) indicates that the offender was born to stable “traditional Austrian family ... where no drugs, alcohol or violence were prevalent.” [11] The offender has serious health problems. As result of congenital heart disease, he required surgery as child to have heart valve repaired. In 2008 he had stroke. As consequence, he has left‑side paresthesia and requires the use of cane for stability and for walking lengthy distances. He has active hepatitis C. [12] The offender has completed Grade 12 and has taken some university classes. He appears to have been steadily employed during his adult life although there is some suggestion that he may have exaggerated his employment history. He has been employed as truck driver and worked for several years as an apprentice mechanic. The majority of his adult work life was spent as scaffolder and journeyman scaffolder. While working as scaffolder, he also supplemented his income by doing auto repairs and home renovations on the side. He is certainly employable. [13] The offender has “history of tumultuous relationships” (Forensic Assessment Report, page 10). He has been married more than once and has had number of “on again, off again” relationships. He has several children. He is not close to any of them. However, since the offender has been incarcerated, his daughter in British Columbia, who has significant health‑related issues, has expressed desire to have more contact with her father. [14] The offender has lengthy criminal record. Although his record, compared to many of the offenders who are sought by the Crown to be designated as dangerous offenders, is relatively modest, it nonetheless must be properly characterized as serious. The record reveals history of violence and an inability to abide by court orders. The record, as agreed to by the Crown and the defence, is as follows: 2000‑01‑19 NEW WESTMINSTER (1) ASSAULT SEC 266 CC (2) UTTERING THREATS SEC 264.1(1)(A) CC (1‑2) DAY PROBATION YRS ON EACH CHG 2000‑01‑20 NEW WESTMINSTER (1) OBSTRUCT PEACE OFFICER SEC 129(A) CC (2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (1‑2) DAY ON EACH CHG 2001‑05‑22 NEW WESTMINSTER BC FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 CC (2 CHGS) 21 DAYS PROBATION YR 2002‑02‑22 BREACH OF RECOGNIZANCE SEC 145(3) CC 2002‑03‑19 NEW WESTMINSTER BC FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 CC (1) ASSAULT SEC 266 CC (2) ASSAULT CBH SEC 267(B) CC (2) 15 MOS CONDITIONAL SENTENCE ORDER PROBATION 18 MOS MANDATORY PROHIBITION ORDER SEC 109 CC 2002‑08‑30 PORT COQUITLAM (1) SEXUAL ASSAULT (2) CRIMINAL HARASSMENT (3) UTTERING THREATS SEC 264.1(1)(A) CC (4) ASSAULT SEC 266 CC (1) 15 MOS (2‑4) MOS ON EACH CHG -PROBATION YRS DISCRETIONARY PROHIBITION ORDER SEC 110 CC FOR 10 YRS SURREY BC BREACH OF CONDITIONAL SENTENCE ORDER SUSPENDED 2004‑12‑08 POSSESSION OF PROHIBITED WEAPON SEC 117.01(1) MOS 18 MOS PROBATION 10 YRS PROHIBITION 2006‑04‑04 BREACH OF CONDITIONAL SENTENCE ORDER SEC 742.6(9)(D) CC (ENTRY DATED 2002‑03‑20) ORDER TERMINATED 2010‑09‑24 AGGRAVATED ASSAULT SEC 268 SENTENCE PENDING [15] The offender’s first recorded conviction was in 2000 when he was 40 years of age. His last conviction, the predicate offence, occurred on November 4, 2006, when the offender was 46 years of age. During that six‑year span, the offender has been convicted of committing 17 Criminal Code offences, including the predicate offence and two breaches of conditional sentences that were registered in 2004 and 2006. [16] There are two additional events that are also germane to the consideration of his criminal history. On January 1, 1995, the offender was charged with common assault on his wife contrary to s. 266 of the Criminal Code. That matter was apparently resolved by having the offender enter into s. 810 recognizance wherein he was required, for period of one year, to report to probation officer, have no contact with his wife and attend and accept drug, alcohol and anger management programming. [17] The other conduct, criminal in nature, but for which the offender was never charged, relates to somewhat bizarre set of circumstances involving the dumping of corpse on the banks of the Fraser River in British Columbia. previously ruled, in voir dire, that the Crown’s allegation of uncharged criminal conduct was admissible. See R. v. Peters, 2011 SKQB 419 (CanLII), 389 Sask.R. 14. found that the Crown had established beyond reasonable doubt that the offender had stored his former girlfriend’s corpse in his elderly mother’s British Columbia residence for several months before dumping it, wrapped in plastic and carpet, on the banks of the Fraser River in the early morning hours of October 4, 2005. [18] The Crown, as part of its case, provided details respecting number of the criminal convictions. summary of the most relevant circumstances are as follows: January 19, 2000 assault (s. 266 CC); and uttering threats (s. 264.1(1)(a) CC) one day plus two years probation on each count. The offender was convicted of assaulting E.J. contrary to s. 266 of the Criminal Code and to uttering threats to cause death or bodily harm to E.J. contrary to s. 264.1(1)(a) of the Criminal Code. brief reference in the Forensic Assessment Report simply states, “He also assaulted [E.J.], [female] renter in his parent’s home”. March 19, 2002 assault (s. 266 CC) 60 days. assault causing bodily harm (s. 267(b) CC) 15‑month conditional sentence order, plus three years probation. The offender committed two assaults upon female person, C.D., with whom he was living. On May 15, 2001, the offender, while under the influence of alcohol, grabbed an ashtray and hit C.D. on the left side of her head, causing cut and bruise. He was convicted of common assault and sentenced to 60 days in jail. On June 8, 2001, police and fire officials attended to C.D.’s residence as result of mattress fire. Upon arrival, the police found C.D. covered in bruises. C.D. also had an open sore, believed to be stab wound, on her left thigh. C.D. refused to provide the police with any information at the time but subsequently told police that the bruises resulted from “number of assaults” committed upon her by the offender and that the offender had stabbed her with steak knife. The offender was convicted of assault causing bodily harm and was sentenced to 15‑month conditional sentence order, followed by 18 months probation. Alcohol, once again, was contributing factor. The offender did not abide by the terms of his conditional sentence order, which was terminated when the offender was found to be in breach. August 30, 2002 sexual assault (s. 271 CC) 15 months plus three years probation. criminal harassment (s. 264 CC) two months plus three years probation. uttering threats (s. 264.1 CC) two months plus three years probation. assault causing bodily harm (s. 266 CC) two months plus three years probation. On August 30, 2002, the offender was sentenced for offences committed between June and June 7, 2000, that involved his then common‑law partner D.C. The sentencing judge characterized the time between June and June 7, 2000 as “reign of terror” by the offender against D.C. The victim was physically assaulted and received an injury to her chin and mouth. D.C. was also sexually assaulted in manner characterized by the sentencing judge as “brutal and repugnant”. The offender held his hand over D.C.’s mouth and nose so she could not breath. He attempted anal intercourse and then had vaginal intercourse with her, ignoring her pleas to stop. After the physical assault and the sexual assault had taken place, the offender attempted to intimidate the victim and threatened to shoot her. The offender was sentenced to 15 months in jail, after the sentencing judge took into account that the offender had spent considerable time on remand. November 4, 2006 aggravated assault (s. 268) the predicate offence. The circumstances of the predicate offence that precipitated the within dangerous offender application also involves female partner with whom the offender was intimately involved. On November 4, 2006, the offender was living in Radisson, Saskatchewan, with D.M. After consuming considerable amount of alcohol, the offender and D.M. began to argue. The offender became angry and began to hit and kick D.M. multiple times. She fell to the floor and lay in the fetal position while the offender repeatedly kicked her while wearing steel‑toed work boots. When the offender relented, D.M. went to her closet and began to pack some clothes. The offender then grabbed an axe and struck D.M. on the head and buttocks area several times. The assaults resulted in two deep cuts to D.M.’s left posterior thigh and left buttocks. D.M. also had lacerations on her head, cuts on her upper lip and bruising on her face and body. Incredibly, although D.M. was physically and psychologically scarred, her injuries were not life‑threatening. [19] As result of the incident on November 4, 2006, the offender was charged with attempting to murder D.M. and was arrested. On December 18, 2006, the offender elected to be tried by judge and jury and was released from custody after bail hearing on number of conditions, including that he not contact the victim, D.M. The preliminary inquiry was set for March 19, 2007. [20] On March 19, 2007, the offender failed to appear, and warrant for his arrest was issued. Further, it was alleged that the offender breached the non‑contact clause by contacting the victim D.M. The offender remained at large until he was arrested on March 24, 2009. He has been in custody since that time. [21] On July 20, 2009, the offender was committed to stand trial. The Crown preferred three‑count indictment charging the offender with attempting to murder D.M. (s. 239(b) of the Criminal Code), aggravated assault on D.M. (s. 268) and breaching the non‑contact provision of his recognizance by contacting D.M. (s. 145(3)). [22] On September 27, 2010, the offender re‑elected to be tried by court comprised of Queen’s Bench judge sitting without jury. The offender then pled guilty to the aggravated assault count, which is the predicate offence, and the Crown stayed the other two counts. [23] The Crown then launched this dangerous offender application. IV. Forensic Assessment Reports [24] The Court has had the benefit of two assessment reports, together with testimony of the authors of those reports. Dr. Roger Holden, Ph.D., R.D. Psych., R.Psych., B.C.F.E., consultant and clinical psychologist, prepared comprehensive 52‑page Forensic Assessment Report that was initiated following court order. Additionally, Dr. Terry Nicholaichuk, Ph.D., R.D. Psych., clinical and forensic psychologist, prepared “psychological assessment” at the request of the defence. [25] Both experts conclude that the offender should not be declared to be dangerous offender because his risk to reoffend could be reasonably managed by supervision in the community. Dr. Holden concludes that the offender “fits the criteria for designation of long‑term offender” (emphasis in original), while Dr. Nicholaichuk concludes that: period of supervision in the community is probably the best prospect for [the offender’s] successful reintegration. ... [T]he conditions can constitute very powerful supervision tool and should allow for reasonable level of protection for the public as the conditions of supervision can be quite stringent. A. Dr. Holden’s Forensic Assessment Report [26] Dr. Holden’s Forensic Assessment Report concludes that the offender is high risk to reoffend violently and sexually in the future but that there is reasonable possibility of the eventual control of that risk in the community. Some of the most pertinent conclusions reached by Dr. Holden are: ... Mr. Peters does have history of previous violence and on the basis of this variable, believe he is high risk to re‑offend violently in the future. [p. 29] ... Since [1995] ... Mr. Peters has accumulated several violence related convictions and conclude that his age has some bearing on his potential to commit violent crimes in the future. [p. 29] ... ... Mr. Peters has history of relationship instability and on the basis of this factor, believe that he is high risk to commit violent crimes in the future. [p. 30] ... ... Mr. Peters has chronic and untreated alcohol abuse problem at this time and on the basis of this factor, believe his potential to commit violent crimes in the future is high. [p. 32] ... ... Mr. Peters is suffering from personality disorder at this time and on this basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 35] ... ... Mr. Peters has incurred some serious supervision failure in the past and on the basis of this factor, believe that his risk for future violence is high. [p. 35] ... ... Mr. Peters has little insight into the aetiology of his violent offending behaviour. He tends to project responsibility for the behaviour onto others, in my opinion. He appears to be in denial regarding his alcohol abuse problem. On the basis of this factor believe that Mr. Peters is high risk to re‑offend violently in the future. [p. 36] .. Mr. Peters has significant negative attitudes, and on the basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 37] ... ... there is significant impulsivity in Mr. Peters’ past, and on the basis of this factor, believe he has high risk of behaving violently in the future. [p. 37] ... ... up to this time Mr. Peters has been entirely unresponsive to treatment and in considering this factor his potential for violence in the future is high. [p. 40] ... In reviewing Mr. Peters’ release plan, do not find it to be feasible, and on the basis of this factor, believe that he is high risk to re‑offend violently. [p. 41] ... ... Mr. Peters is likely to be exposed to destabilizers in the community, and on the basis of this factor, believe he is high risk to re‑offend violently in the future. [p. 42] ... ... Mr. Peters has not, up to this point, been at all compliant with remediation attempts and on the basis of this factor, believe he is high risk to re‑offend violently in the future. [p. 43] ... would predict that Mr. Peters will have multiple areas of distress in the future and on the basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 43] [27] At pages 44‑46 of his report, Dr. Holden asks, and answers, what he calls “The Five Basic Questions”, as follows: 1. What is the likelihood that the individual will engage in violence if no efforts are made to manage risk? have no doubt that unless measures are taken to manage Mr. Peters’ risk, he will continue to perpetrate acts of both physical and sexual violence. note that file information suggest that Mr. Peters has been considered high risk to re‑offend violently in the past. 2. What is the probable nature, frequency, and severity of any future violence? It is obviously speculative to try to predict the nature of any future violence perpetrated by Mr. Peters. On the basis of his past, he will perpetrate acts of violence and sexual violence against female victims. note that file information suggests that Mr. Peters has used knives, glass ashtrays, and an axe in addition to his fists and feet to perpetrate his assaults. It is again speculative to try and predict the frequency of such acts. He has amassed series of convictions over sixteen year period, so one might speculate that his frequency of such behaviour will be relatively frequent. Regarding the severity of such behaviour: one might speculate that he will continue to perpetrate acts of significant violence against his victims which will result in severe, physical injury to them. In considering his physical assaultiveness, his index offence, in my opinion, is considerable escalation of violence perpetrated against his victim in comparison to previous assault convictions. Of significant concern also, in my opinion, is Mr. Peters’ apparent total denial in interview that he inflicted the injuries that the victim received and instead suggested that she must have sustained the injuries by brushing against table or cutting herself with glass shelf. In doing so, in my opinion, Mr. Peters minimizes his culpability and projects responsibility for the injuries onto the victim herself. 3. Who are the likely victims of any future physical violence? As far as can tell, all of Mr. Peters’ victims have been females, primarily females with whom he has established an intimate relationship. Therefore, it seems logical to predict that victims of future violence perpetrated by Mr. Peters will be females, likely female partners. 4. What steps could be taken to manage this individual’s risk of future violence? Obviously, one way to manage Mr. Peters’ risk to commit violence in the community would be to incarcerate him. If he were to be incarcerated in federal institution, Mr. Peters would be, almost certainly offered programs regarding his violence and sexual violence, his substance abuse, and programs relating specifically to spousal assault. have no doubt that he should be encouraged to involve himself in such programming while in an institution and to continue such programming upon release. am not at all sanguine regarding Mr. Peters’ potential for success in such programming given his apparent denial of his culpability and lack of interest in most of the programming he has been ordered to attend in the past. However, it seems to me that he should be given the opportunity to more thoroughly investigate his functioning via such programming. 5. What circumstances might exacerbate the individual’s risk for violence? In my opinion, Mr. Peters is a high risk to re‑offend violently and sexually violently [sic] in the future and this risk will be mitigated only if he conscientiously applies himself to learning alternative ways of venting his frustration and anger. If he continues to deny his culpability and sabotage attendance in programming then his risk to continue to perpetrate crimes of violence in the community will continue to be high, in my opinion. He appears to be in denial regarding his potential to abuse alcohol and does not appear to have seriously addressed the role alcohol plays in his life and also, in his potential to commit violent crimes. Therefore, it is, in my opinion, an absolute necessity that he seriously addresses his apparent alcohol abuse problem and makes a commitment to sobriety for the remainder of his life. If he refuses to do so, in my opinion, his risk for committing acts of future violence is high. He appears to predate upon intimate partners for reasons which are not clear to me. However, there seems to be pattern of offending in this way, which needs serious attention, in my opinion. If Mr. Peters is unwilling or unable to find alternative ways of expressing frustration within intimate relationships, he either should not engage in such relationships in the future (which given his age is unlikely, in my opinion) or any such relationship should be closely monitored by supervisors if he is released into the community. If he does not learn more pro‑social ways of relating to intimate partners, his risk to continue to perpetrate acts of violence will continue to be high, in my opinion. [28] Finally, at page 46 of his report, Dr. Holden offers the conclusion that the offender should be found to be long‑term offender. The synopsis of his conclusion is as follows: In considering Section 752(a)(i) and 752(a)(ii) of the Criminal Code of Canada, it seems to me that Mr. Peters certainly has been convicted of behaviour, which is likely to endanger the life or safety of another person, and also has inflicted severe psychological damage on that person. In considering Section 753(a)(iii), have no doubt that Mr. Peters has been convicted of behaviour that is of such brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. In considering Section 753.1(1)(b), believe there is substantial risk that Mr. Peters will re‑offend violently. In considering Section 753.1(1)(c), while am not optimistic regarding Mr. Peters [sic] treatability, given his background, he did perform well in the original Alternatives to Violence Program he took in the middle 1990's. He does not appear to have every [sic] taken the kinds of programming available via the Federal Penitentiary System and therefore, cannot conclude that there is no possibility of eventual control of his risk to re‑offend in the community because he has not taken the kinds of programs which may teach him how to understand and control his potential for physical and sexual violence. Therefore, believe that Mr. Peters does not fit the criteria for the designation of dangerous offender, as understand it, but certainly fits the criteria for designation of long‑term offender. [Emphasis in original] B. Dr. Nicholaichuk’s Psychological Assessment [29] Dr. Nicholaichuk’s Psychological Assessment report (the “Psychological Assessment”) is more or less consistent with Dr. Holden’s Forensic Assessment Report, although there are areas where the two experts disagree. Most significantly, Dr. Nicholaichuk disagrees with Dr. Holden on whether the offender is high risk to commit sexual offence and also whether the offender has presented reasonable release plan. [30] Dr. Nicholaichuk disputes Dr. Holden’s conclusion that the offender is at high risk to commit sexual offence because the offender was only convicted of one previous sexual offence and that was over decade ago in 2002. In light of the single, dated conviction, the medical problems that cause degree of infirmity and that he is now in his fifties, Dr. Nicholaichuk disputes Dr. Holden’s finding on this point. However, for the purpose of this proceeding, it may be distinction without difference. At page 18 of his Psychological Assessment, Dr. Nicholaichuk concedes that there is “no question that [the offender] would score as high risk, high need offender on most scales used for this purpose.” (However, at page 17 of that report, Dr. Nicholaichuk opines that the risk should be reduced to the “medium to high range” to take into account age and ill health.) Accordingly, while both experts conclude that the offender is likely to reoffend violently, they disagree on whether he is high risk to reoffend in sexual way. [31] Dr. Nicholaichuk also points out that the offender is at an age where his risk to reoffend can be expected to decline rapidly and that, therefore, his risk assessment should be downgraded. Although it is well know that, generally speaking, the risk of committing new offences significantly declines as men age, the offender has bucked the trend by significantly adding to his criminal record while in his forties. [32] The two experts also disagree on the viability of the offender’s discharge plan. Dr. Nicholaichuk was prepared to be quite positive about the offender’s plan to take up residence in small Saskatchewan town, repair house that he owns there and operate salvage business. Conversely, Dr. Holden determined that the release plan of the offender was not “feasible”. The offender suggested to Dr. Holden that he would move to Calgary to live with friend who was recovering from brain injury and then move to Vancouver to live with his daughter, who has special needs. It is noteworthy that the release plan the offender related to Dr. Holden was considerably different than that related to Dr. Nicholaichuk. [33] The only real conclusion that can be drawn is that the offender has changed his release plan for some reason. Whether it was to attempt to construct release plan that was more palatable to the authorities without any real intention of following through, or whether the offender legitimately re‑thought his plan, remains to be seen. [34] In the end result, Dr. Nicholaichuk’s assessment is not that markedly different from that of Dr. Holden. Admittedly, Dr. Nicholaichuk’s assessment is more favourable to the offender than that of Dr. Holden. Dr. Nicholaichuk emphasized the offender’s age (older offenders are less likely to reoffend), that the offender had never served time in federal penitentiary (he has not been exposed to federal programming) and that the offender has been well behaved since incarcerated and while at large between 2007 and 2009. Nonetheless, in the end result, Dr. Nicholaichuk concludes that the offender would benefit from close supervision in the community. V. The general legislative scheme A. Predicate offence committed prior to July 2, 2008 [35] The predicate offence occurred on November 4, 2006. Significant amendments to the Criminal Code respecting the dangerous offender provisions came into force on July 2, 2008. Both the Crown and defence agree that the 2008 amendments to the dangerous offender legislation set forth in the Tackling Violent Crime Act, S.C. 2008, c. 6, do not apply to these proceedings because the offence date predates the amendments. agree. logical application of s. 11(i) of the Canadian Charter of Rights and Freedoms requires that the offender be entitled to the lesser punishment if the punishment has been varied between the date of the commission of the offence and the date of sentencing. The 2008 amendments clearly make it easier for the Crown to obtain dangerous offender designation and, therefore, the offender is entitled to the lower threshold set forth in the pre‑amended legislation. Accordingly, the “old” legislation in force at the time the offence was committed will be applied. B. General legislative scheme [36] In R. v. Daniels, 2008 SKQB 349 (CanLII), 321 Sask.R. 40, summarized the general pre‑amendment legislative scheme as follows: [34] Generally, dangerous offender or long‑term offender applications follow the conviction of serious personal injury offence (s. 753(2)). [35] If the court is satisfied, upon application by the prosecutor, that the offender might be found to be dangerous or long‑term offender, it may order an expert assessment report (s. 752.1). [36] Once the assessment is filed, the Crown may apply to have the offender declared to be dangerous offender (s. 753(1)), or long‑term offender (s. 753.1). The Provincial Attorney General must consent to the application (s. 754(1)(a)). [37] The court thereafter is required to hear and determine the application without jury (s. 754(2)). [38] The court may find the offender to be dangerous offender if it is satisfied that: (a) the offence for which the offender has been convicted is serious personal injury offence (as defined by s. 752); and (b) the offender constitutes threat to the life, safety or physical or mental well being of other persons on the basis of evidence establishing the offence for which he was convicted forms part of: (i) pattern of repetitive behaviour showing failure to restrain his or her behaviour and likelihood of causing death, injury or inflicting severe psychological damage on other persons through failure to restrain his behaviour (s. 753(1)(a)(i)); or (ii) pattern of persistent aggressive behaviour showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other people of his behaviour (s. 753(1)(a)(ii)); or (iii) behaviour that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint (s. 753(1)(a)(iii)). [39] In the event that the court is satisfied that the dangerous offender criteria have been met, the court must nonetheless consider the appropriateness of declaring the offender long‑term offender. If the sentencing judge is satisfied that the long‑term offender sentencing options are sufficient to reduce the threat to life, safety or physical or mental well being to an acceptable level, the sentencing judge ought not declare the offender dangerous offender, notwithstanding that the dangerous offender criteria set forth in the Criminal Code have been met. See R. v. Johnson, [2003] S.C.R. 357, 2003 SCC 46 (CanLII), 13 C.R. (6th) 205. In such case the court is obliged to impose either determinate sentence or determinative period of detention followed by long‑term supervision order. If the sentencing judge determines that determinate sentence or long‑term supervision order is not appropriate, it shall impose sentence of detention in penitentiary for an indeterminate period (s. 753(4)). Issues [37] The issues to be decided in this case are: A. Is the predicate offence (the triggering offence) a serious personal injury offence as defined by s. 752 of the Criminal Code? B. Is the offender a threat of the kind contemplated by s. 753 of the Criminal Code and, thus, a danger to society? C. If so, should the Court exercise its residual discretion and impose a fixed‑term sentence or resort to the long‑term offender provisions, even though the statutory criteria for declaring Mr. Peters a dangerous offender have been met? D. If a long‑term offender designation is warranted, what determinate sentence and long‑term supervision order should be imposed? Analysis A. Is the predicate offence (the triggering offence) a serious personal injury offence as defined by s. 752 of the Criminal Code? [38] One of the criterion the Crown must establish in order to have the offender declared dangerous offender is that the predicate (triggering) offence is “serious personal injury offence” within the meaning of s. 752 of the Criminal Code. That section states in part: 752. In this Part, ... “serious personal injury offence” means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with weapon, threats to third party or causing bodily harm) or 273 (aggravated sexual assault). [39] The offender has pled guilty to aggravated assault. The offence of aggravated assault is clearly a “serious personal injury offence” in that it is an indictable offence and involves the use of violence against another person in which the offender may be sentenced to imprisonment for more than 10 years. [40] The Crown has proven that the offender committed “serious personal injury offence” on November 4, 2006, within the meaning of s. 752(a) and, accordingly, this threshold requirement has been met. B. Is the offender a threat of the kind contemplated by s. 753 of the Criminal Code and, thus, a danger to society? [41] The next step in the process is to determine whether the offender constitutes threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing specific kinds of behaviour outlined in the Criminal Code. The pertinent parts of s. 753, in force at the relevant time, read: 753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; ... (4) If the court finds an offender to be dangerous offender, it shall impose sentence of detention in penitentiary for an indeterminate period. [42] The elements of ss. 753(1)(a)(i) and (ii) can be categorized and compartmentalized as follows: Section 753(1)(a)(i): (a) pattern of repetitive behaviour; (b) the predicate offence must form part of that pattern; (c) the pattern must show failure by the offender to restrain his behaviour in the past; and (d) the pattern must show likelihood of death, injury or severe psychological damage to other persons through failure to restrain his behaviour in the future. Section 753(1)(a)(ii): (a) pattern of persistent aggressive behaviour; (b) the predicate offence must form part of the pattern; and (c) the pattern must show substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of that behaviour. See R. v. Neve, 1999 ABCA 206 (CanLII), 237 A.R. 201, [1999] 11 W.W.R. 649, and R. v. Kakakaway, 2003 SKQB 205 (CanLII), 58 W.C.B. (2d) 310, [2003] S.J. No. 362 (QL). [43] find that s. 753(1)(a)(iii) does not apply because the actions of the offender do not fit the criteria of being “brutal”. Although the actions of the offender against the victim were most definitely reprehensible and criminal, they were not brutal in the sense that the actions were so heinous, barbarous or inhumane as to compel the conclusion that his future behaviour is unlikely to be inhibited by normal standards of behavioural restraint. [44] do not accept Dr. Holden’s conclusion that the offender is at high risk to offend sexually in the future. While the possibility exists, the evidence falls short of establishing likelihood given the fact that there was only one sexual incident, the offender’s age and his health issues. [45] Further, find that the evidence that the offender callously disposed of corpse on riverbank does not form part of the pattern of the offender’s violent aggressive behaviour. Such an act, while despicable and highly disrespectful, is not part of his aggressive violent behaviour, of which the predicate offence is part. That act, while instructive as to the type of person the Court has before it, is not part of the violent or aggressive behaviour. Accordingly, do not rely upon that act as being conduct that falls within the ss. 753(1)(a)(i) and (ii) definitions. [46] Nonetheless, I find that the offender clearly fits within the definition set forth in ss. 753(1)(a)(i) and (ii). The offender has demonstrated a repetitive and persistent pattern of aggressive behaviour culminating in serious assaults on women. The predicate offence is part of that pattern, and the pattern shows complete failure by the offender to restrain his behaviour. The offender has demonstrated, through his actions, that he has little ability to control his violent impulses, and his behaviour shows substantial degree of indifference respecting the reasonably foreseeable consequences of that behaviour. He lacks insight, has not been compliant with remediation attempts, has an anti‑social personality disorder and has serious alcohol issues that remain untreated. accept Dr. Holden’s conclusion that the offender is high risk to reoffend violently in the future, and that therefore there is likelihood that he will cause death, injury or severe psychological damage to other persons through his failure to restrain his behaviour in the future. [47] Accordingly, have no difficulty in concluding that the Crown has also proven the criteria for designating person to be dangerous offender as set forth in ss. 753(1)(a)(i) and (ii) on the basis of the violent behaviour alleged and established. C. If so, should the Court exercise its residual discretion and impose a fixed‑term sentence or resort to the long‑term offender provisions, even though the statutory criteria for declaring Mr. Peters a dangerous offender have been met? [48] The Supreme Court of Canada in R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357, confirmed that there is residual discretion under s. 753(1) not to designate person dangerous offender even though the statutory criteria have been met. Iacobucci and Arbour JJ. wrote: 44 As we have discussed, sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. The introduction of the long‑term offender provisions expands the range of sentencing options available to sentencing judge who is satisfied that the dangerous offender criteria have been met. Under the current regime, sentencing judge is no longer faced with the stark choice between an indeterminate sentence and determinate sentence. Rather, sentencing judge may consider the additional possibility that determinate sentence followed by period of supervision in the community might adequately protect the public. The result is that some offenders who may have been declared dangerous under the former provisions could benefit from the long‑term offender designation available under the current provisions. 45 It thus follows that the Court of Appeal was correct to conclude that the sentencing judges were required to consider the applicability of the long‑term offender provisions. If the respondent satisfies the long-term offender criteria and there is reasonable possibility that the harm could be reduced to an acceptable level under the long‑term offender provisions the proper sentence, under the current regime, is not an indeterminate period of detention, but, rather, determinate period of detention followed by long-term supervision order. If this is the case, s. 11(i) of the Charter dictates that the respondent is entitled to be sentenced to period of determinate detention followed by long-term supervision order. [49] The long‑term offender criteria is set forth in s. 753.1(1) of the Criminal Code as follows: 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be long‑term offender if it is satisfied that (a) it would be appropriate to impose sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is substantial risk that the offender will reoffend; and (c) there is reasonable possibility of eventual control of the risk in the community. [50] Accordingly, having found the offender to have met the dangerous offender criteria, I must, nonetheless, consider the application of the long‑term offender provisions and utilize that option if the offender meets the long‑term offender criteria and there is a reasonable possibility that the offender’s risk to reoffend could be acceptably managed within the meaning of s. 753.1(1)(c). [51] In R. v. Daniels, 2011 SKCA 67 (CanLII), [2011] W.W.R. 605, the Saskatchewan Court of Appeal set aside dangerous offender designation and declared Mr. Daniels long‑term offender. In Daniels, the offender: [2] ... concedes that he constitutes threat to the life, safety or physical or mental well‑being of other persons, within the meaning of s. 753(1)(a)(i) and (ii) of the Criminal Code, and that without intervention he will remain high‑risk offender. While Mr. Daniels admits he meets the criteria under those provisions, he does not agree that he is dangerous offender, in light of the long‑term option. ... In accepting Mr. Daniel’s position, Jackson J.A. refers to R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309, 44 D.L.R. (4th) 193, where the Supreme Court of Canada stated that the dangerous offender legislation applies narrowly to offenders who are highly dangerous and, at page 347, stated: ... the legislation narrowly defines class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated as dangerous. ... [T]hese criteria ... are anything but arbitrary in relation to the objectives sought to be attained; they are clearly designed to segregate small group of highly dangerous criminals posing threats to the physical or mental well‑being of their victims. [52] Jackson J.A. also referred to the comments of Cameron J.A., speaking for the Court in R. v. Lemaigre, 2004 SKCA 125 (CanLII), 189 C.C.C. (3d) 492, where he stated that sentencing judges must “bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention.” (See paragraph 15.) [53] In Daniels, the Court of Appeal majority decisions concluded that the dangerous offender designation had been expanded beyond what was intended and narrowed the dangerous offender net that catches repeat offenders by declaring Mr. Daniels to be long‑term offender, rather than dangerous offencer. The majority concluded that Mr. Daniels was not one “of the small group of criminals” targeted by Parliament to be dangerous offender. [54] am mindful that my task is to consider the particular offender before the Court and not be unduly distracted by other decisions relating to other offenders. Each case is unique. As stated by Jackson J.A. in Daniels at paragraph 19: ... The determination of whether long‑term offender designation is merited is so fact‑specific as to render direct case‑by‑case comparison of little value. However, it was acknowledged by Jackson J.A. in Daniels that prior case law can be used to serve as check on one’s result to the extent that it can confirm whether an offender is safely within the realm of persons who should receive an indeterminate sentence. In each case, the focus must remain on the offender’s own record and personal characteristics and on the availability of treatment and rehabilitation programs for that particular offender. [55] Looking at the prior case law, including Daniels and the numerous cases referred to by Jackson J.A. in paragraphs 40 and 41 of her judgment, which include R. v. Redwood, 2009 SKCA 113 (CanLII), 337 Sask.R. 148; R. v. Watech, 2009 SKCA 52 (CanLII), 331 Sask.R. 11, aff’g 2006 SKQB 503 (CanLII), 288 Sask.R. 1; R. v. Moosomin, 2008 SKCA 169 (CanLII), [2009] W.W.R. 608, 239 C.C.C. (3d) 362; R. v. Goforth, 2007 SKCA 144 (CanLII), 302 Sask.R. 265; R. v. Otto, 2006 SKCA 52 (CanLII), 279 Sask.R. 182; R. v. R.H.L., 2005 SKPC (CanLII), [2005] S.J. No. 70 (QL); R. v. J.L.A.G., 2004 SKCA 126 (CanLII), [2005] W.W.R. 20, 189 C.C.C. (3d) 512; R. v. K.R.S., 2004 SKCA 127 (CanLII), [2005] W.W.R. 82; R. v. Lemaigre, supra; and R. v. Weasel, 2003 SKCA 131 (CanLII), [2004] W.W.R. 59, 181 C.C.C. (3d) 358, find that the totality of the circumstances of this case falls far short of the point where the offender should be placed within the dangerous offender category, given the availability of the long‑term offender option. [56] Based upon the jurisprudence in this jurisdiction, the offender’s situation is nowhere near that of what is required to justify conclusion that the public could not adequately be protected by the imposition of lengthy determinate sentence followed by long‑term supervision order. In Daniels, for example, an offender who was continually involved in the criminal justice system for over 25 years, amassed criminal record comprised of 67 convictions and who spent the vast majority of his adult life incarcerated and taking programs, was found by the majority of the appellate court to not qualify for dangerous offender status because he did not fit within the profile reserved for “small group of highly dangerous offenders”. The majority of the appellate court concluded that there was “a reasonable possibility of eventual control of the risk in the community”, as contemplated by s. 753.1(1)(c). [57] The offender has never been sentenced to periods of incarceration which resulted in him being placed in a federal penitentiary and thus, has not been offered the kind of programming available via the federal penitentiary system. cannot conclude that there is no reasonable possibility of the eventual control of his risk to reoffend in the community when he has not taken the kinds of programs which may teach him how to understand his problems so as to reduce the potential for physical violence and substance abuse. also accept that the offender’s age and ill health will make it less likely that he will reoffend and that his record, albeit serious, does indicate that he is capable of living life without criminal convictions. The offender has not been problematic inmate, which does demonstrate that he is capable of living within the rules. Furthermore, accept the opinions of the two experts that the risk can be reasonably managed by the imposition of conditional sentence which has significant personal deterrence effect and could serve as the impetus to lead law‑abiding lifestyle. The evidence before me, including that of the two expert witnesses is that there is real likelihood that the offender will eventually be controllable in the community by the imposition of long‑term supervision order. The pattern that have found to exist is not substantially or pathologically intractable. Accordingly, it is appropriate to decline to find the offender to be dangerous offender. In all of the circumstances conclude that the public will be adequately protected from the offender by the imposition of determinate sentence followed by lengthy period of supervision in the community. In the end result, find that the offender falls within the long‑term offender criteria set forth in s. 753.1(1) and that the risk he poses can be reduced to an acceptable level under the long‑term offender provisions. D. If a long‑term offender designation is warranted, what determinate sentence and long‑term supervision order should be imposed? [58] Section 753.1(3) of the Criminal Code states: (3) Subject to subsection (3.1), (4) and (5), if the court finds an offender to be long‑term offender, it shall (a) impose sentence for the offence for which the offender has been convicted, which sentence must be minimum punishment of imprisonment for term of two years; and (b) order that the offender to be supervised in the community, for period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. [59] Both the Crown and defence set forth their positions should the offender be found to be long‑term offender. The Crown submits that the offender should be sentenced to determinate period of incarceration of seven years followed by the maximum ten‑year long‑term supervision order. [60] The defence contends that the period of incarceration should be six years and that the long‑term supervision order should be limited to seven years. [61] Both Crown and defence agree that the offender should be credited for time spent on remand, on one‑for‑one basis. (1) What is the appropriate sentence to be imposed upon the offender for the aggravated assault charge? [62] The fundamental concept of sentencing is set forth in s. 718.1 of the Criminal Code, which reads: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [63] The other principles of sentencing stated in s. 718 and s. 718.2 must also be applied: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with criminal organization, or (v) evidence that the offence was terrorism offence shall be deemed to be aggravating circumstances; (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [64] The offence of aggravated assault is serious one. This is reflected by the fact that Parliament has set the maximum term of imprisonment at 14 years. However, the offence of aggravated assault has many degrees of moral culpability, which results in large range of sentences for this offence that can vary anywhere from suspended sentence to 14 years in federal penitentiary. [65] One of the principles that must apply is that sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The Crown relies upon the following decisions to support its request for seven‑year sentence: R. v. L.M., 2008 SCC 31 (CanLII), [2008] S.C.R. 163; R. v. Moosomin, 2008 SKCA 169 (CanLII), 239 C.C.C. (3d) 362; R. v. Ochuschayoo, 2004 SKCA 16 (CanLII), 241 Sask.R. 284; R. v. Weasel, supra; R. v. Keepness, 2011 SKQB 293 (CanLII), 379 Sask.R. 68; R. v. Jiang, 2011 ABQB 182 (CanLII), 518 A.R. 76; R. v. Desjarlais, 2008 ABQB 365 (CanLII), [2008] A.J. No. 721 (QL); R. v. Furi, [2006] S.J. No. 26 (QL) (Q.B.); and R. v. Lemaigre, 2005 SKQB 238 (CanLII), [2005] S.J. No. 358 (QL). [66] The defence submits the following case authorities to substantiate its request for six‑year sentence: R. v. Keepness, 2010 SKCA 69 (CanLII), [2010] 10 W.W.R. 13; R. v. Sayazie, 2010 SKCA 14 (CanLII), 346 Sask.R. 147; R. v. Keshane, 2005 SKCA 18 (CanLII), 257 Sask.R. 161; R. v. Dufault (1995), 1995 CanLII 3915 (SK CA), 128 Sask.R. 235, [1995] S.J. No. 110 (QL) (C.A.); and R. v. Key, 2010 SKQB 95 (CanLII), 351 Sask.R. 211. [67] find that the six‑ to seven‑year range submitted by counsel is, indeed, the appropriate range given the case authority in this jurisdiction, the facts of this case and the circumstances of the offender. [68] Given all of the circumstances and all of the principles of sentencing that I must apply, I conclude that a seven‑year sentence is a fit and proper sentence for the determinate portion of the sentence. gravitate to the higher end of the sentence recommendations because of the existence of so many aggravating factors. The offender, in drunken rage, launched an unprovoked assault on his common‑law partner. He punched and kicked her and then, while in vulnerable position on the floor, struck her several times with an axe. The degree of moral culpability is high. [69] The fact that the victim was common‑law partner is statutory aggravating factor as stipulated by s. 718.2(a)(ii). This circumstance, compounded by the offender’s record of spousal violence on other female partners, makes the situation more serious. The Saskatchewan Court of Appeal in R. v. Ochuschayoo, supra, reiterated that domestic violence is serious matter and must be so recognized, and referred to the following passage with approval in the headnote of R. v. Brown (1992), 1992 ABCA 132 (CanLII), 73 C.C.C. (3d) 242, 125 A.R. 150 (Alta. C.A.): Domestic violence is profound problem and when cases of beatings of wife by husband result in prosecution and conviction, then the courts have an opportunity, by their sentencing policy, to denounce such offences in clear terms and attempt to deter its recurrence by the accused and by other men. The starting-point in sentencing in such cases would be to determine what would be fit sentence if the man had assaulted woman on the street or in bar. The court must then examine circumstances which are peculiar because of the relationship. When man assaults his wife or other female partner, his violence toward her constitutes breach of position of trust and is an aggravating factor. Such an assault constitutes an abuse of power and control. The vulnerability of such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. The paramount considerations in imposing sentence must be general deterrence and denunciation. Rehabilitation and individual deterrence are of secondary importance. In imposing sentence, the court must consider whether the assault is relatively minor in nature, is an isolated incident, and whether there are circumstances which make it desirable that the sentence not be such as to be counter-productive to the possibility that the family relationship will be preserved. However, with respect to this last point, the desire of the victim that the accused be returned to her and that she not be further victimized by being deprived of his income should not readily prevail over the general sentencing policy that requires imprisonment of man not only as an instrument of deterrence of other persons, but to break the cycle of violence in the accused’s home. [70] It is also troubling, and an aggravating factor, that the offender has little or no remorse for what he has done. [71] Given all of the circumstances, find that fit and appropriate determinate sentence is seven years in prison. (2) What reduction in sentence should be allowed to take into account the time the offender has spent on remand? [72] The offender was arrested shortly after the commission of the offence. The precise date is not clear from the record. However, by November 7, 2006, the offender appeared in Provincial Court, in custody, and was not released until December 18, 2006, period of 41 days. As mentioned previously, the offender breached his recognizance by failing to appear on March 18, 2007, for his preliminary inquiry. [73] The offender remained unlawfully at large until he was arrested on March 24, 2009. He has been on remand since that date, period of 1,309 days (three years six months 29 days). Adding in the original remand time of 41 days increases the total time spent on remand to 1,350 days, which is approximately three years eight months. Both the Crown and defence agree that the offender should be given credit for the time he has spent on remand on one‑for‑one basis. [74] The Criminal Code directs that sentence commences when it is imposed and that the Court may take into account pre‑sentence incarceration. The relevant version of s. 719(3) reads: 719 (3) In determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence. That subsection was amended by adding the phrase “... but the court shall limit any credit for that time to maximum of one day for each day spent in custody.” However, the amendment has no application here because it applies only to persons charged after February 22, 2010, the day the amendment came into force. [75] Section 719(3) is permissive, rather than mandatory, although it is generally recognized that credit for pre‑sentence detention should be given unless there is some sound reason for not doing so. See R. v. Wust, 2000 SCC 18 (CanLII), [2000] S.C.R. 455; and R. v. Mills, 1999 BCCA 159 (CanLII), 133 C.C.C. (3d) 451. I am prepared to go along with the submission of counsel and provide a one‑for‑one credit for the time that the offender has spent in pre‑sentence custody. Giving more than one‑for‑one credit would have the effect of releasing the offender to the public without him benefiting from completing the significant rehabilitative interventions that he so badly needs. [76] The offender has spent approximately three years four months in pre‑sentence custody. Giving the offender three years eight months credit towards his seven‑year sentence results in a further period of incarceration of three years four months. Accordingly, the offender is sentenced to an additional three years four months in penitentiary. (3) What is the appropriate length of the long‑term supervision order? [77] Where an offender has been designated long‑term offender, the Court is obligated to impose sentence for the offence for which the offender has been convicted and order that the offender be subject to long‑term supervision order “for period that does not exceed 10 years.” [78] The Crown has recommended the maximum period of supervision, while the defence submits that seven‑year supervision order would be sufficient to accomplish the sentencing goals. [79] The court‑appointed assessor, Dr. Holden, points out that one of the biggest obstacles to the offender’s rehabilitation is his failure or refusal to address some of the underlying problems that contribute to his criminal behaviour. At page 46 of the Forensic Assessment Report, Dr. Holden states: He appears to be in denial regarding his potential to abuse alcohol and does not appear to have seriously addressed the role alcohol plays in his life and also, in his potential to commit violent crimes. Therefore, it is, in my opinion, an absolute necessity that he seriously addresses his apparent alcohol abuse problem and makes commitment to sobriety for the remainder of his life. If he refuses to do so, in my opinion, his risk for committing acts of future violence is high. [80] In my view, lengthy long‑term supervision order is appropriate. The longer that the offender can be closely monitored in the community, the better. It is essential that he learn alternative ways to express frustration and seriously address alcohol issues. see no rational basis to “reduce” the length of the supervision from the maximum of ten years, requested by the Crown, to the seven years submitted by the defence. In addition to protection of the public, the supervision order is in place for the well‑being of the offender. The interests of all concerned require the maximum supervision available under the law. [81] Accordingly, order that the offender be supervised in the community for period of ten years following his release in accordance with s. 753.2 of the Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20. Conclusion [82] I find the offender Albert Trevor Peters to be a long­‑term offender. The appropriate determinate sentence for the charge of aggravated assault in these circumstances is seven years in prison. He ought to get credit for time spent on remand of three years eight months, which results in a sentence of three years four months in prison. [83] The period of the long‑term supervision order is set at ten years. [84] Because the predicate offence is an offence in which violence against person was used, threatened or attempted, and for which person may be sentenced to imprisonment for ten years or more, s. 109 of the Criminal Code, pertaining to weapons prohibitions, has application. Accordingly, the offender is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life. [85] The predicate offence of aggravated assault, for which the offender was convicted, is primary designated offence within the meaning of s. 487.04 of the Criminal Code. am satisfied that an order allowing the taking of bodily substances for DNA analysis would not be grossly disproportionate to the public interest, protection of society and the proper administration of justice. Accordingly, such an order in Form 5.03 shall issue. [86] Mr. Peters has been in custody since March 2009 and does not have any obvious means to pay any victim surcharge. Accordingly, the victim surcharge is waived pursuant to s. 737(5) of the Criminal Code. [87] Section 760 of the Criminal Code provides: 760. Where court finds an offender to be dangerous offender or long‑term offender, the court shall order that copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information. [88] Accordingly, order that my reasons for sentencing, together with all exhibits, assessments, required transcripts and documents be forwarded to the Correctional Service of Canada. “M.D. Popescul” C.J.Q.B. M.D. Popescul","The Crown applied under Part XXIV of the Criminal Code to have the accused declared a dangerous offender after he pled guilty to committing an aggravated assault on his common-law spouse contrary to s. 268 of the Code. The application is based on the Code provisions in effect before the danger offender legislation set forth in The Tackling Violent Crime Act was passed. The accused is 52 years old and in poor health. He has a significant criminal record thatreveals a history of violence and an inability to abide by court orders. The offences occurred between the time he was 40 and ended in 2006 with his last conviction, the predicate offence. Two psychologists prepared psychological assessments both of which concluded that the offender should not be declared a dangerous offender because his risk to re-offend could be reasonably managed by supervision in the community. The issues before the Court were: 1) whether the predicate offence is a serious personal injury offence as defined by s. 752 of the Code; 2) whether the offender is a threat of the kind contemplated by s. 753 of the Code and thus a danger to society; 3) if so, whether the Court should exercise its residual discretion an impose a fixed-term sentence or resort to long-term offender provisions, even though the statutory criteria for declaring the accused a dangerous offender have been met; and if a long-term offender designation is warranted, what determinate sentence and long-term supervision order should be imposed? HELD: 1) The Court held that the aggravated assault committed by the offender was a serious personal injury offence because it was an indictable offence involving the use of violence against his spouse. 2) The Court found that the Crown had proven the criteria required that the offender clearly fits within the definition set forth in ss. 753(1)(a)(i) and (ii), in that this offender had shown a repetitive and persistent pattern of aggressive behavior, especially against women. 3) The Court decided to exercise its residual discretion not to designate the offender as a dangerous offender and found that the he met the long-term offender criteria and that his risk to re-offend could be managed within the meaning of s. 753.1(1)(c). The offender has never been imprisoned in a penitentiary and thus had never had the benefit of programming offered in that system. The appropriate sentence should be 7 years. As the offender has spent approximately 3 years and 4 months in pre-sentence custody, the Court gave him credit in that amount on a one-to-one basis. The Court ordered that the appropriate length of time for a long term supervision order is the maximum of 10 years since the offender needs to learn alternative ways to express his frustration and address his issues with alcohol.",c_2012skqb426.txt
179,"PCJ THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 90 Date: 20070827 Between: Docket: 1376 The Canadian Federation of Students and The Canadian Federation of Students-Services Appellant (Added Respondent) and Robin Mowat Respondent (Applicant) and University of Saskatchewan Students’ Union Respondent (Respondent) Between: Docket: 1377 University of Saskatchewan Students’ Union Appellant (Respondent) and The Canadian Federation of Students and The Canadian Federation of Student Services Appellant (Added Respondent) and Robin Mowat Respondent (Applicant) Coram: Jackson, Richards Hunter JJ.A. Counsel: Todd J. Burke Andrew W. McKenna for The Canadian Federation of Students and The Canadian Federation of Students-Services Jennifer Pereira Reché J. McKeague for Robin Mowat Grant Scharfstein, Q.C. for the University of Saskatchewan Students’ Union Appeal: From: 2006 SKQB 462 (CanLII) Heard: June 11, 2007 Disposition: Dismissed Written Reasons: August 27, 2007 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Hunter Richards J.A. I. Introduction [1] These appeals concern a referendum on the question of whether the University of Saskatchewan Students’ Union should join the Canadian Federation of Students (the “Federation”). [2] The referendum was held in the fall of 2005. majority of students voted in favour of joining the Federation. The respondent Robin Mowat then applied to the Court of Queen’s Bench pursuant to The Non-profit Corporations Act, 1995, S.S. 1995, c. N-4.2 (“the Act”) and obtained an order declaring the referendum to be of no force or effect. [3] The Federation and the Students’ Union now seek to overturn that order. They argue Mr. Mowat had no standing to bring his application and that the Chambers judge made errors in his approach to the application of the relevant statutory provisions. [4] I conclude, for the reasons set out below, that the appeals must be dismissed. [5] The Students’ Union governs undergraduate student affairs at the University. It is incorporated pursuant to the Act. [6] The Federation is an incorporated entity. Among other things, it acts as an advocate for students across Canada. The Canadian Federation of Students-Services (“Federation-Services”) is also incorporated. It is allied with the Federation and operates to pool student resources in the provision of various services. [7] Membership in the Federation and Federation-Services is governed by their bylaws. Those bylaws provide that local student association, such as the Students’ Union, must first join the organizations as prospective member. It must then conduct referendum on the question of whether it should become full member. In this regard, the bylaws provide for the establishment of Referendum Oversight Committee consisting of two members appointed by the local student association and two members appointed by the Federation. The Oversight Committee establishes the rules governing the referendum. [8] In November of 2004, the Council of the Students’ Union passed motion pursuant to which the Students’ Union obtained prospective membership in the Federation and Federation-Services. [9] In the early months of 2005, representatives of the Federation and the Students’ Union discussed issues relating to the referendum. The Students’ Union had concerns about the interaction between the Federation’s bylaw requirements and its own procedures. Specifically, the Students’ Union had an Elections and Referenda Policy setting out rules with respect to campaigning, spending limits and so forth. The Policy did not contemplate the creation of an Oversight Committee. Rather, it provided that body called the Elections Board was responsible for conducting referenda. In addition, the Students’ Union constitution required referendum for the purpose of establishing dedicated student fee and membership in the Federation entailed an annual fee for each student. [10] The Students’ Union sought legal advice and, in September of 2005, attempted to reconcile its Elections and Referenda Policy with the procedures mandated by the bylaws of the Federation and Federation-Services. This was done through the amendment of the Policy to include new section aimed specifically at referenda concerning the Federation. It read as follows: In Referenda to federate in the CFS, the Oversight Committee shall have the authority over the Referendum. The CRO [Chief Returning Officer] and ACRO [Assistant Chief Returning Officer] shall act as the USSU [Students’ Union] Representatives on the Oversight Committee and that the Elections Board must ratify the results of this referendum. [11] The referendum itself was hotly contested. Voting was held on October 4, and 6, 2005. Some 1,968 students voted in favour of joining the Federation and 1,584 against. [12] After the referendum, the Oversight Committee was presented with number of complaints from each side of the campaign. It looked into these matters and concluded as follows: The members of the Referendum Oversight Committee are satisfied that the referendum results are an accurate reflection of the will of the members of the University of Saskatchewan Students’ Union. [13] The Elections Board received and considered the report of the Oversight Committee. It refused to ratify the referendum result because of flaws in the referendum process which, in its view, significantly affected the outcome of the vote. It recommended, instead, that another referendum be held with better settled and more widely disseminated ground rules. The key aspects of the Election Board’s report read as follows: As body created under the USSU Bylaw No 1: Governance Procedures, the Elections Board (EB) normally is empowered to ensure that the USSU bylaws and policies are met in conducting referendum or an election. In this case, the EB was given the task of ratifying the CFS membership referendum results. The USSU had indicated its support for students’ approving of becoming full members of the CFS. Nevertheless, the EB has found that it could not ratify the result, given what it sees as seriously flawed referendum process…. In its assessment, the EB’s underlying concern has been whether any issues in relation to the process would have significantly affected the will of voters. It restricted its considerations to the process, even though there were issues relating to campaign conduct. This report is also complemented by the documents “Elections Board’s Ratification Discussion Paper” and “EB Analysis of key concerns in the Referendum Process”. These reflect respectively (a) the Process Document crafted by the EB that guided its analysis of the Referendum process and (b) the EB’s deliberations based on the Discussion Paper. After the EB’s deliberations, it further considered whether each key concern would have significantly affected the will of voters. In terms of the process, this report only highlights the key issues which the EB believed would have significantly affected the will of voters: (1) the lack of preparation or groundwork prior to establishing the ROC, (2) the fact that there was no specific call for campaign teams to register, (3) the evolving nature of the ROC Protocol, the fundamental document which was to determine the “ground rules” for campaigning and for the complaints process. [Emphasis added in original] [14] The decision of the Elections Board then came before the Council of the Students’ Union. There was significant concern that legal proceedings would be initiated by the Federation and Federation-Services if the views of the Elections Board were not set aside. After considerable debate, the Council decided to override the decision of the Board and ratified the referendum result. [15] Mr. Mowat was in his final year as student at the University during the 2005-2006 academic year. He was actively engaged in the “no” side of the referendum and took exception to the conduct of the Federation, the Students’ Union and the Oversight Committee. In May of 2006, he applied to the Court of Queen’s Bench for an order declaring the referendum to be of no force or effect. decision granting that relief was rendered on October 13, 2006. A. Mr. Mowat’s Standing [16] Both the Students’ Union and the Federation argue that Mr. Mowat did not have standing to bring his application. In order to appreciate their concerns in this regard, it is necessary to examine the governing legislative provisions. [17] Section 225 of the Act sets out the right of complainant to seek the assistance of the courts in rectifying the effect of various kinds of corporate conduct. Its relevant features are set out below: 225(1) complainant may apply to the court for an order pursuant to this section and the court may make an order to rectify the matters complained of where the court is satisfied that the result of any act or omission of the corporation or any of its affiliates, the manner in which any of the activities or affairs of the corporation or any of its affiliates are or have been carried on or conducted, or the manner in which the powers of the directors of the corporation or any of its affiliates are or have been exercised: (a) is oppressive or unfairly prejudicial to any member, security holder, creditor, director or officer or, where the corporation is charitable corporation, the public generally; or (b) unfairly disregards the interests of any member, security holder, creditor, director or officer or, where the corporation is charitable corporation, the public generally. (2) In connection with an application pursuant to this section, the court may make any interim or final order it considers appropriate, including an order: [18] The meaning of “complainant” for these purposes is found in s. 222 of the Act: 222 In this Division: “complainant” means: (a) member or registered holder or beneficial owner, and former registered holder or beneficial owner, of security of corporation or any of its affiliates; (b) director or an officer or former director or officer of corporation or of any of its affiliates; (c) the Director; or (d) any other person who, in the discretion of the court, is proper person to make an application pursuant to this Division. [19] It was common ground before the Chambers judge that Mr. Mowat is former director of the Students’ Union. His status in that regard flows from the fact he was the President of the Students’ Union in 2003-2004. The Chambers judge, noting the aspect of the definition of complainant which refers to “a former director”, proceeded on the basis that Mr. Mowat had standing. [20] The Students’ Union and the Federation contend it is not enough that Mr. Mowat is former director. They variously argue that he must have been director at the time of the alleged oppressive conduct and that there must be some connection between the alleged oppressive conduct and his status as director. Their concerns are rooted in the fact that Mr. Mowat was President of the Students’ Union in the year before referendum. They also stress that he graduated from the University in May of 2006, prior to the argument of his application in the Court of Queen’s Bench. [21] It is not necessary to work through the merits of these arguments because, regardless of how they might play out, I am entirely satisfied that Mr. Mowat is a “proper person” to bring the application as per s. 222(d) of the Act . He attended the University from the fall of 2000 to the spring of 2006. He was managing editor of the campus newspaper and served term as member-at-large on the Student Union’s Student Affairs Board. He was member of the Senate for three years and, as noted, was President of the Students’ Union from 2003 to 2004. Mr. Mowat was very actively involved in the referendum campaign and a leading voice against joining the Federation. He was member of the Students’ Union both at the time of the referendum and at the time the actions about which he complains took place. [22] The Federation suggests that, notwithstanding all of this, Mr. Mowat should nonetheless be denied standing in the absence of evidence he represents meaningful portion of the current student body. This, think, is an overly restrictive view of the relevant provisions of the Act. The reality is that over 44% of the students who cast ballots in the referendum voted against joining the Federation. Mr. Mowat’s efforts to overturn the referendum result must surely appeal to many of those individuals who are still enrolled at the University and, in any event, doubt it is appropriate to reduce the issue of standing in this context to calculus based on bare numbers as suggested by the Federation. The Act gives the right to make an application to complainant, not to complainant who speaks for significant portion of members of corporation. [23] The Federation also submits that Mr. Mowat should be denied standing because he is no longer in position to personally benefit from any order court might make. find this argument, as well, to be too restrictive given the particular facts of this case. Mr. Mowat was deeply involved in the referendum campaign and the events leading up to the vote. The vote occurred on October 4, and 6, 2005 but the Oversight Committee report was not completed until the beginning of December. The Elections Board apparently reached its decision in respect of the referendum only in mid-February of 2006 and the Students’ Union Council did not make its decision to ratify the referendum result until March 30, 2006. Mr. Mowat then immediately took steps to deal with the situation. His solicitors wrote to the Students’ Union and the Federation as early as April 3, 2006 to advise of their instructions to initiate proceedings pursuant to the Act. All of this happened while Mr. Mowat was indisputably member of the Students’ Union. The fact that his application was ultimately argued a few months after he had convocated should not, in my view, defeat his right to bring his concerns forward. An individual’s status as student is inevitably temporary. I see no justice in denying Mr. Mowat’s standing only because the process for reviewing the referendum results played out so slowly that he was unable to bring the matter before a court prior to the date of his convocation. B. Mr. Mowat’s Entitlement to Relief [24] The Students’ Union and the Federation also contend that, even if he had standing, Mr. Mowat was not entitled to the relief granted by the Chambers judge. They say the judge took the wrong approach to s. 225 of the Act. In their view, he should have applied the case law dealing with controverted elections and, in that regard, focused on whether the alleged irregularities in the referendum process substantially affected the results of the vote. [25] In light of those submissions, it is useful to briefly summarize the reasoning of the Chambers judge. He began by referring to the controverted election cases and noted that, in light of the Elections Board report, the problems with the referendum must be taken to have been of kind that would have affected its outcome. In other words, the judge found that the line of analysis laid down in the election cases would lead to the referendum result being set aside. [26] However, the Chambers judge went on to say that he did not believe the controverted election jurisprudence was applicable to the problem before him. Rather, relying on Walton v. Saskatchewan Hockey Association (1998), 1998 CanLII 14039 (SK QB), 166 Sask. R. 32 (Q.B.) and related cases, he concluded that the proper test for relief was whether the Students’ Union had acted in “good faith and generally in accord with the concepts of natural justice”. He answered that question in the negative. The relevant aspects of his analysis are set out below: [60] In those cases, the Court does not ask itself whether the results have been skewed, but rather has the organization acted in good faith and generally in accord with the concepts of natural justice? This does not mean, as noted in Martineau, supra, that there must be an exacting legal process or an application of the full “panoply” of procedural natural justice rules. The question is, has the organization acted in fashion that meets the legitimate expectations of fair-minded observer? [61] In this case, it is instructive to reflect upon the USC’s reaction to the report of the Elections Board and the inconvenient truths noted therein. The USC’s response to the report was to ignore the very process it created to ensure there was fair referendum. Does that have the badges of good faith, fair play or the general notions of natural justice? [62] In my view, no reasonable observer could conclude that the USC approached the post-vote process in good faith or in fashion that is in harmony with the broad rules of natural justice. When faced with result (rendered by procedure which it had specifically established for the referendum) which was not consistent with its wishes, the USC simply ignored its own rules and imposed its own preordained outcome. [27] agree with the Chambers judge that the controverted election cases are not applicable in the circumstances of this case. Section 225 of the Act creates and delimits statutory remedy for particular kinds of corporate conduct, i.e. conduct which is oppressive, unfairly prejudicial or unfairly disregards the interests of specified persons. Those provisions, like their counterparts in The Business Corporations Act, R.S.S. 1978, c. B-10, are remedial in nature and should be interpreted broadly. See, for example: Saskatchewan Housing Corp. v. Gabriel Housing Corp. (1998), 1998 CanLII 13945 (SK QB), 174 Sask. R. 200 (Q.B.) at paras. 68-69. [28] As result, it is not appropriate to transplant into the Act the case law developed in the context of elections for legislative office and to consider that body of law to be of controlling effect. Such an approach runs the risk of deflecting s. 225 from its true purpose and of unduly limiting the potential scope and flexibility of its application. At the same time, however, do accept that the courts should, in broad terms, be slow to intervene in voting-type disputes when the irregularities complained of are minor and of no demonstrable consequence. The Chambers judge properly recognized and appreciated this point. [29] All of that said, there is room to question the Chambers judge’s decision to build his analysis on the approach taken in cases like Walton v. Saskatchewan Hockey Association, supra. The authorities he referred to in this regard included Martineau v. Matsqui Institution Disciplinary Board, 1979 CanLII 184 (SCC), [1980] S.C.R. 602; Kanigan (Guardian ad Litem of) v. Castlegar Minor Hockey Assn. (1996), 1996 CanLII 1486 (BC SC), 141 D.L.R. (4th) 563 (B.C.S.C.); Beauchamp v. North Central Predators AAA Hockey Assn. (2004), 2004 CanLII 48698 (ON SC), 247 D.L.R. (4th) 745 (Ont. S.C.) and Miramichi Minor Hockey Club Inc. v. New Brunswick Amateur Hockey Association, [1999] N.B.J. No. 631 (N.B.Q.B.) (QL). None of those cases deals with applications brought under s. 225 of the Act or its equivalent in other jurisdictions. They are all cases decided in the context of judicial review applications grounded on factors such as denials of natural justice, the Charter, the Convention on the Rights of the Child and so forth. [30] In my view, it is important not to confuse the statutory concepts of oppression, unfairly prejudicial actions and actions which unfairly disregard interests, as set out in s. 225 of the Act, with the various aspects of the common law that typically form the basis of judicial review applications such as the one considered in the Walton case relied on by the Chambers judge. Notions such as the denial of procedural fairness may inform the meaning of s. 225 to some extent in specific contexts and, no doubt, particular action on the part of corporation might be both “oppressive”, for example, and involve procedures that in appropriate circumstance would amount to denial of fairness. However, the assessment of an application pursuant to s. 225 of the Act must be measured against the concepts of oppression, unfair prejudice and unfair disregard as provided in that section. Administrative law concepts should be imported into that analysis only with considerable care and only for the purpose of giving meaning to the statutory terms found in the section itself. [31] With that caution, turn to the specifics of this case. The Federation and the Students’ Union focus on various matters that were said by others to have been problems in the way the referendum was conducted. They take the position that none of those matters, either individually or collectively, affected the outcome of the referendum. The issues to which the Federation and the Students’ Union refer in this regard include (a) lack of formal declaration as to when the campaign was to begin; (b) failure to give proper notice of the wording of the referendum question; (c) the evolving nature of the referendum protocol and related failure to properly notify interested parties of changes in the protocol; (d) lack of clarity or agreement about spending limits and classroom campaigning; (e) failure to resolve the inconsistencies between the referendum requirements of the Federation and the Students’ Union prior to the beginning of the campaign; (f) involvement of Federation members of the Oversight Committee in the campaign; (g) the location of polling stations; (h) use of paper ballots rather than online voting; and (i) failure to refer complaints about the referendum results to an appeals committee. [32] For his part, Mr. Mowat emphasizes an additional point. It concerns the refusal of the Students’ Union to accept or abide by the decision of the Elections Board. Mr. Mowat says the role in the referendum given to the Board by virtue of the September 29, 2005 amendment to the Elections and Referenda Policy was conferred very deliberately and was the key to addressing wide spread concern on campus about the referendum and the loss of local control of the voting process. This, of course, is the issue that formed the basis of the Chambers judge’s decision. [33] The history of the amendment bears out Mr. Mowat’s characterization of it. The minutes of the September 22, 2005 Council meeting reveal considerable angst about the upcoming referendum and its legality. Among other things, the Students’ Union’s solicitor had warned that its constitution was not being followed in that there was no role for the Elections Board as contemplated by the Elections and Referenda Policy. In apparent response to this concern, the President of the Council proposed an amendment to the Policy that would have formally removed the authority of the Elections Board with respect to the referendum and vested that authority in the Oversight Committee. The vote on the motion was postponed for one week. [34] The matter returned to the agenda on September 29, 2005. The specific motion before the Council involved an amendment to the Policy to provide as follows: In Referenda to federate in the CFS [the Federation] an Oversight Committee shall have authority over the Referendum. The CRO [Chief Returning Officer] and ACRO [Assistant Chief Returning Officer] shall act as the USSU [Student Union] Representatives on the Oversight Committee. [35] Councillor Villeneuve proposed motion to add the words “and that the Elections Board must ratify the results of this referendum” to the end of the proposed amendment. After further debate, the Students’ Union President endorsed the amendment and offered his assessment of the situation by stating as follows: Councillor Villeneuve made very good amendment. He said that the Elections Board is going to have the final authority on this from the USSU end. All of us on both sides have expressed our explicit faith in the CRO and ACRO. They are the chair and the deputy chair of the Elections Board. It is completely for members of council and members from the student body that are appointed by the Appointments Board. That can be the house of sober second thought. Councillor Villeneuve’s amendment was then approved and the motion to amend the Elections and Referenda Policy was immediately passed. [36] In light of this history, agree with Mr. Mowat that the Council’s decision to reject the Election Board’s decision entitled him to relief under the Act. Having expressly amended the Elections and Referenda Policy for the specific purpose of giving the Elections Board “final authority” with respect to the referendum, it was unfair for the Council to then reverse field for purposes of endorsing the referendum result. That decision involved unfair prejudice to Mr. Mowat, and students of like mind, within the meaning of s. 225(1)(a) of the Act. It can also be taken to have involved an unfair disregard for their interests within the meaning of s. 225(1)(b) of the Act. [37] On this point, the Students’ Union contends that the Council had the power to disagree with the recommendations of one of its committees in the same way it is said that any corporate board can reject committee recommendation. This line of argument, in my view, is not convincing. The issue in case of this sort will rarely be whether the corporation had the power to act as it did. Rather, the question will be whether an otherwise valid exercise of corporate power amounts to oppression, unfair prejudice and so forth. That is the situation here. Mr. Mowat does not challenge the actions of the Students’ Union on the basis that it lacked the root authority to do as it did. He argues that its use of power was inappropriate and gives rise to remedies under the Act. That issue, not the simple vires of the Council’s decision, is the question before the Court. [38] It is also argued that the Chambers judge erred in finding that the Students’ Union Council had “imposed its own preordained outcome” by endorsing the referendum result. agree with this submission. The record does not support the conclusion that the Council’s decision was “preordained” in the sense of being inevitable. It was taken only after significant debate featuring all sides of the issue. However, that does not affect the bottom line of my view of this case nor, expect, was the notion of the Council’s decision being preordained essential to the conclusion of the Chambers judge. The critical point is that the Council abandoned a formal process which had been put in place specifically to address the very significant concerns raised by Mr. Mowat and others about the referendum. Whether that turn of events was somehow inevitable is not the real issue. Rather, the essence of this case is the unfairness and prejudice the Council’s decision involved for those who had opposed joining the Federation. [39] In the result, therefore, find it unnecessary to look more closely at the specific problems that arose in relation to the referendum process. The decision of the Students’ Union to override the decision of the Elections Board was itself something that warranted the granting of relief pursuant to s. 225 of the Act. [40] In the result, conclude that Mr. Mowat had standing to bring his application and that the relief awarded by the Chambers judge was appropriate. The appeals of the Federation and the Students’ Union are dismissed with costs. DATED at the City of Regina, in the Province of Saskatchewan, this 27th day of August, A.D. 2007. “RICHARDS J.A.” RICHARDS J.A. concur “JACKSON J.A.” JACKSON J.A. concur “HUNTER J.A. HUNTER J.A.","These appeals concern a referendum on the question of whether the University of Saskatchewan Student's Union should join the Canadian Federation of Students (the Federation). The referendum was held in the fall of 2005. A majority of the students voted in favour of joining the Federation. The respondent Robin Mowat then applied to the Court of Queen's Bench pursuant to The Non-profit Corporations Act (the Act) and obtained an order declaring the referendum to be of no force or effect. The Federation and the Student's Union now seek to overturn that order. They argue that Mowat had no standing to bring his application and that the Chambers judge erred in his application of the relevant statutory provisions. HELD: The appeals must be dismissed. 1) The respondent is a 'proper person' to bring the application pursuant s. 222(d) of the Act. He was attending the University and very actively involved on campus and the referendum campaign. Over 44% of the students voted against joining the Federation. The Act gives the right to make an application to a complainant, not to a complainant who speaks for a significant portion of the members of a corporation. The fact that the respondent's application was argued a few months after the respondent had convocated should not defeat his right to bring his concerns forward. An individual's status as a student is inevitably temporary. There is no justice in denying the respondent's standing only because the process for reviewing the referendum results played out so slowly that he was unable to bring the matter before a court prior to the date of his convocation.  2) The Controverted election cases are not applicable in the circumstances of this case. Section 225 of the Act creates and delimits a statutory remedy for particular kinds of corporate conduct. The assessment of an application pursuant to s. 225 of the Act must be measured against the concepts of oppression, unfair prejudice and unfair disregard as provided in that section. Administrative law concepts should be imported into that analysis only with considerable care and only for the purpose of giving meaning to the statutory terms found in the section itself. 3) The critical point is that the Council abandoned a formal process which had been put in place specifically to address the very significant concerns raised by the respondent and other about the referendum. Whether that turn of events was somehow inevitable is not the real issue. Rather, the essence of this case is the unfairness and prejudice the Council's decision involved for those who had opposed joining the Federation. It is unnecessary to look more closely at the specific problems that arose in relation to the referendum process. The decision of the Student's Union to override the decision of the Elections Board was itself something that warranted the granting of relief pursuant to s. 225 of the Act.",5_2007skca90.txt
180,"S.C.C. No. 02287 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Matthews and Chipman, JJ.A. BETWEEN: JAMES DOUGLAS HILTZ and HER MAJESTY THE QUEEN Respondent E. R. Saunders for the Appellant A. C. Reid for the Respondent Appeal Heard: December 10, 1990 Judgment Delivered: December 10, 1990 THE COURT: The appeal is allowed, the conviction is set aside and a new trial is ordered as per oral reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Matthews, J.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: The appellant appeals from his conviction following a trial in the Supreme Court before a jury on a charge that he:""did assault Richard MacKay, a Peace Officer, to wit: a Police Constable for the Town of Bridgewater, engaged in the execution of his duties contrary to Section 270(2)(a) of the Criminal Code of Canada."" In the early morning hours of October 24, 1989, Constable MacKay of the Bridgewater Town Police and two other officers responded to call on LaHave Street in connection with disturbance. On arrival at their destination they found evidence of disturbance, and the occupants of the residence were very upset. Constable MacKay saw the appellant there and thought he recognized him as person who was wanted by the police. He testified that he knew that there were outstanding warrants for the appellant's arrest. When Constable MacKay asked the appellant his name, the appellant gave fictitious one. The officers then responded to another call from next door and following investigation there, Constable MacKay became certain that the appellant was person who was sought by the police. MacKay returned to the location of the first call and found the appellant in car. He told him that he was arresting him on warrant at the Bridgewater Detachment. He stated that this warrant was for assault causing bodily harm and that there was another warrant for property damage. The appellant was given his Charter rights to counsel and police warning. He was escorted to the police car at which point he engaged in verbal confrontation with one of the occupants of the second residence to which the police had been called. As Constable MacKay was getting the appellant into the police car, he suddenly kicked the constable hard in the abdomen just above the groin, knocking him off balance. The other officers eventually subdued the appellant who was then taken to the station and in due course charged with the two offences for which the warrants were issued and an offence arising out of the disturbance on LaHave Street. The appellant has raised number of grounds, only one of which need be dealt with. The appellant's counsel takes the position that the Crown failed to establish that Constable MacKay was engaged in the execution of his duty at the time of the assault, and that the trial judge improperly instructed the jury on this issue. It is not disputed that the Crown must, in order to establish that the officer was in the execution of his duty, prove that he was authorized to make the arrest in question. It is an essential ingredient of the offence charged that the. assault take place while the officer was exercising some power or performing some duty imposed on him either by common law or statute. See R. v. Corrier (1972), 1972 CanLII 1432 (NB CA), C.C.C. (2d) 461 at 464. Constable MacKay was clearly involved in the duty of investigating disturbance on LaHave Street. The Crown's position is that he was entitled to make this arrest, as he did, without warrant. Section 495(1)(c) of the Code provides: 495. (1) peace officer may arrest without warrant (c) person in respect of whom he has reasonable grounds to believe that warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.” The only evidence about the arrest was that MacKay told the appellant that he was under arrest for assault causing bodily harm on warrant outstanding in the Bridgewater Detachment and that there was also warrant outstanding for him for property damage. He said that he knew the warrants were outstanding. The constable did not give evidence in so many words as to the grounds for his belief, if any, that the warrants met the requirements of s. 495(1)(c) of the Code. The warrants were not put into evidence at the trial. Constable MacKay also made it clear that he was not arresting the appellant with respect to the alleged assault by the appellant on one LeGay on the evening in question. The existence of reasonable grounds for belief as referred to in s. 495(1)(c) of the Code must be established as part of the Crown’s case. In Storrey v. R. (1990), 1990 CanLII 125 (SCC), 75 C.R. (3d) 1, Cory, J., speaking for the Supreme Court of Canada said at p. with respect to s. 450(1) of the Code (now s. 495(1)): “In summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish prima facie case for conviction before making the arrest."" The issue whether the officer had the requisite grounds for belief was therefore one that the jury had to resolve. In giving his charge, the trial judge said: ""So, you have two reasons you have evidence of two reasons for the arrest one being the assault on LeGay and the other being the arresting on the Warrants. That's in the evidence. There is no doubt that when Constable MacKay and the other officers were called to number 638 that they were answering complaint and that that was in the execution of their duty. It's for you to find that they were, but I'm suggesting to you that and you're not bound by my suggestion in any way that certainly, it's not difficult to find that they were in the execution of their duty in responding to that call. They were also within the execution of their duty in responding to the second call, and if you accept the evidence of Constable MacKay that he was arresting the accused for the assault on LeGay, then he was acting in the execution of his duty in making that arrest because he had evidence that there was an assault and under the law, I'm directing you that if he was arresting for that purpose, that under the law in these circumstances that it was proper arrest. I'm also suggesting to you, as far as the law is concerned, that if you were to find that he was arresting him on the Warrants that that also would be proper arrest. As far as the law is concerned, there are outstanding Warrants directed to peace officer in the territory. Generally, the territory is Nova Scotia and the order is directed to any peace officer in the province of Nova Scotia. Any peace officer has the right to make the arrest. Now, so if the reason was the outstanding arrests, it's still within the execution of his duty. That's the duty of the peace officer."" In the first place, the evidence did not support the conclusion that Constable MacKay was arresting the appellant for an assault on LeGay. In the second place, it was not made clear to the jury that they must make the essential determination whether Constable MacKay had, in making the arrest, the reasonable grounds referred to in s. 495 of the Code. In the result, we believe that there was misdirection by the trial judge. Pursuant to s. 686(1)(a) and s. 686(2) of the Code, we allow the appeal and order a new trial. J.A. Concurred in: Clarke, C.J.N.S. Matthews, J.A. CANADA PROVINCE OF NOVA SCOTIA S.B.W. 1557 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HER MAJESTY THE QUEEN and JAMES DOUGLAS HILTZ (T‑R‑I‑A‑L) HEARD BEFORE: The Honourable Mr. Justice Nunn and Jury PLACE HEARD: Bridgewater, Nova Scotia DATE HEARD: May and 10, 1990 COUNSEL: C. Lloyd Tancock, Esq., for the Crown E.R. Saunders, Esq., for the Defence S.C.C. No. 02287 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: JAMES DOUGLAS HILTZ and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A. (Orally)","The appellant appealed his conviction for assaulting a police officer engaged in the execution of his duty. The police officer had responded to a call in connection with a disturbance during which the appellant assaulted a third person. Upon arriving at the scene the officer recognised the appellant as someone wanted by the police. The officer told the appellant that he was under arrest because of two outstanding warrants. The appellant assaulted the officer. The officer did not give evidence as to the grounds for his belief that the warrants met the s. 495(1)(c) Criminal Code requirement, i.e., that they were in a format set out in Part XXVIII and in force within the jurisdiction. In his charge to the jury the trial judge indicated that the arrest was for the assault against the third party and did not direct the jury to consider if the officer had reasonable grounds for believing that there were warrants outstanding. Allowing the appeal and ordering a new trial, that the evidence did not support the conclusion that the officer arrested the appellant for the assault on the third party and it was not made clear to the jury that they must make an essential determination if the officer had reasonable grounds as required in s. 495 of the Code, such that he was acting in the execution of his duty.",8_1990canlii2359.txt
181,"J. Dated: 20011015 2001 SKCA 105 Docket: 306 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Gerwing Jackson JJ.A. HER MAJESTY THE QUEEN and TILAK R. MALHOTRA COUNSEL: Mr. W. Dean Sinclair for the Crown Mr. Mark Brayford, Q.C. for the Respondent DISPOSITION: On Appeal From: QBCA 27 OF 2000, J.C. of Prince Albert Appeal Heard: October 12, 2001 Appeal Allowed: October 12, 2001 Written Reasons: October 15, 2001 Reasons By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Jackson GERWING J.A. (orally) [1] The accused was convicted by a Provincial Court judge of having care and control of a motor vehicle while impaired, contrary to s. 253(a) of the Criminal Code. The Provincial Court judge, after trial, had acquitted him of a charge under s. 253(b) of the Code. On appeal, the Court of Queen’s Bench judge set aside the conviction and ordered an acquittal. It is from that that the Crown now appeals. [2] The accused testified that in an approximately 50 minute period after 6:45 p.m., he consumed three drinks of scotch, each of which contained two to three ounces of liquor. He then returned to his office leaving, according to his testimony, at about 7:55 p.m. While he was driving back his cell phone rang and as he answered he realized he was going to have an accident. At the time he was driving on the wrong side of the street and collided with vehicle travelling in the opposite direction. The only reason the vehicle did not collide head-on was that the driver of the other car stopped his vehicle. There was differing testimony by the two drivers as to the speed, but the trial judge found this merely to be one more indicia of lack of accurate reflection by the accused. He found as follows: 27. There are several matters which in my view contradict the accused’s assertions that his ability to concentrate and his judgment were unaffected, and which also indicate some lack of accurate recollection. Swan says that the accused was going “quite fast” before the collision, and if he had not stopped, it would have been “head on”. The accused says that he was doing 20 kilometres per hour and that he had “almost stopped”. 28. The accused attributes the observed unsteadiness in his walk to his hip injury, rather than to any impairment. It is quite possible that the bad hip, combined with poor footing, contributed to the observed “very staggered” walk and it is also quite possible that the alcohol he had consumed played part. 29. Examples of impaired judgment on the part of the accused, apart from the decision to drive to his office after having consumed three rather large drinks of scotch, include the attempt to access his cell phone while approaching an intersection, having passed vehicle on his side of the road, on slippery up-hill road which he described as “problem road” any time in the winter. In fact he admitted that this was lack of good judgment on his part. 30. The accused asking Swan what he was doing on the wrong side of the road similarly indicates lack of judgment. His explanation for this behaviour seems to me to be ex post facto rationalization. 31. Impairment of ability to concentrate is indicated by the fact of driving on the wrong side of the road whilst attempting to access the cell phone. Dr. Rockerbie admitted in cross-examination that the ability to concentrate on two tasks simultaneously might be affected by alcohol at lower levels of blood alcohol concentration, but added in re-examination by defence counsel that driving tasks are not affected until levels of 140 150 milligrams are reached. 32. When asked in re-examination by Crown whether fatigue can exacerbate the effects of alcohol, Dr. Rockerbie replied, “nothing can be said about that”. interpret this in the context of his evidence that small amounts of alcohol can be stimulative and actually improve driving performance for some drinkers. It is matter of law that where driving impairment results from combination of fatigue and consumption of alcohol, the offence is complete; see R. v. Pelletier, (1989) Q.B.C.A. #59, (Sask.) and cases referred to therein. [3] The Queen’s Bench judge on appeal initially stated the correct standard of appellate review, that is whether the evidence was reasonably capable of supporting the trial judge’s conclusion, and went on to hold: [5] The trial judge was required to determine whether the appellant was impaired at the time of the accident at 8:00 p.m. cannot interfere with the trial judge’s conclusions that Cst. Schluff properly made the breathalyzer demand at 8:31 p.m., nor that accepting Cst. Schluff’s evidence that the appellant showed signs of impairment was unreasonable. Oppositely, by the time that Cst. Schluff made the demand, the appellant was showing the classic signs of impairment, including slurred speech, staggering and the need to urinate. Furthermore, the trial judge was correct in concluding that the appellant was impaired and becoming more so during the time at the police station. This is in keeping with the expert testimony of Dr. Rockerbie that the alcohol was rapidly being absorbed into the bloodstream. [6] But the crucial issue was whether the Crown proved beyond reasonable doubt that the appellant was impaired at 8:00 p.m., the time of the accident. find that the evidence raised reasonable doubt as to the appellant’s condition, and that reasonable doubt ought to have been exercised in the appellant’s favour. The witness that encountered the appellant at 8:00 p.m. was Steven Swan, the driver of the vehicle that the appellant ran into. Mr. Swan saw the appellant get out of his vehicle, walk over to Mr. Swan’s vehicle and speak to Mr. Swan. Aside from the awkwardness that resulted from the appellant accusing Mr. Swan of causing the accident, Mr. Swan noticed nothing to lead him to suspect that the appellant had been drinking, no less being impaired. It took approximately fifteen to twenty minutes for the police officers to arrive, and it was some minutes after that Cst. Schluff first spoke to the appellant and then observed the appellant walking. [7] Given the trial judge’s acceptance of the expert evidence that the blood alcohol was rapidly rising, and was in the range of .68 to.81 at 8:00 p.m., along with Mr. Swan’s observation that he did not observe any impairment, the trial judge ought to have concluded that the defence raised reasonable doubt. This is reversible error. The conviction cannot stand. The appellant is acquitted on the count of impaired driving. [4] In our view, the appellate court judge while stating the correct standard of review, did not in fact apply it. In her analysis she made inaccurate assessments of the evidence and the conclusions of the trial judge thereon. The acquittal because of reasonable doubt on the .08 charge did not have, expressly or inferentially, included in it finding by the trial judge that he accepted the testimony that the accused’s blood alcohol was between .068 and .081 at the time of driving. He did not, in fact, so accept. Further, it is inconsistent with the facts and the judgment of the trial judge on those facts, which are his sole province, to say, as the appellate court judge did, that Swan did not see any indicia of impairment. As noted, Swan saw the respondent driving his car in the wrong lane of traffic at, what he testified to be, relatively high speed. This was accepted among the indications of impairment of the respondent by the trial judge. [5] Given these failures in analysis, it is not necessary for us to deal with an argument now presented by the Crown that the appellate court judge also erred with respect to the nature of the charge when she focussed on post-driving conduct when the charge was care and control. On the analysis above alone, the verdict of the appellate court judge must be set aside. We are of the view that on the appropriately posed question, was there sufficient evidence on which properly instructed jury could have convicted on the charge here, the answer is unequivocally yes. There was probative evidence on each material point of the charge, it was carefully analyzed by the Provincial Court judge and his acceptance of critical points on each essential of the charge is set out in his judgment. [6] For these reasons, the appeal must be allowed, the judgment of the Court of Queen’s Bench is set aside and the judgment of the Provincial Court is restored.","The accused was convicted of having care or control of a motor vehicle while impaired (Criminal Code s.253(a)) but acquitted on the charge under s.253(b). The Provincial Court trial judge did not accept the accused's testimony that his blood-alcohol concentration was between .068 and .081 at the time of driving. On appeal the Queen's Bench judge set aside the conviction and ordered an acquittal. HELD: The appeal was allowed. The Queen's Bench judgment was set aside and the Provincial Court trial judgment was restored. While the appellate judge stated the correct standard of review, he did not in fact apply it and made inaccurate assessments of the evidence and conclusion of the trial judge.",d_2001skca105.txt
182,"S.C.C. 02320 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Jones and Macdonald, JJ. BETWEEN: DAVID JOSEPH COVIN, and HER MAJESTY THE QUEEN, Respondent Appellant in person Mr. Bruce P. Archibald, for the respondent Appeal Heard: November 27, 1990 Judgment Delivered: November 28, 1990 BY THE COURT: Appeal dismissed from sentences for offences of theft (s. 334 (a)) and mischief (s. 430 (4) (a)), per reasons for judgment of Clarke, C.J.N.S., Jones and Macdonald, JJ.A. concurring. CLARKE, C.J.N.S.: The appellant applies for leave to appeal and, if granted, appeals from the sentences imposed on June 26, 1990 after he pled guilty to two offences. The first relates to the theft of a computer and modem exceeding $ 1,000.00 in value, contrary to s. 334 (a) of the Criminal Code. For this offence he was sentenced to 18 months. The second is the commission of mischief by damaging the motor vehicle into which he broke, and from which he stole the computer and modem. This is in violation of s. 430 (4) (a) of the Criminal Code. He was sentenced to 12 months to be served concurrently with the first offence on the theft charge. The appellant bases his appeal on the ground that the sentence is unfair. He contends that it is too long. have studied the record of the proceedings and considered the submissions that have been made by both the appellant and Crown counsel. agree with the trial judge that the deliberate acts of the appellant constitute serious offences from which the public must be protected. The trial judge was right when he said that general deterrence must be matter of primary concern. The appellant cannot be described as youthful first offender. He was twenty‑eight years old when these offences were committed. His record of criminal convictions begins in 1980. Since then he has been convicted 19 times, without counting those instances when there have been multiple charges. The majority are theft and property related offences. In all the circumstances the sentence imposed by the trial judge contains no errors in law that warrant any variation on appeal. While leave to appeal is granted, the appeal should be dismissed. C.J.N.S. Concurred in: Jones, J.A. Macdonald, J.A. IN THE PROVINCIAL COURT CITY OF HALIFAX THE QUEEN VS DAVID JOSEPH COVIN JUNE 25, 1990 HALIFAX, N.S., JUNE 26, 1990 MS A. MURPHY, for the Crown MR. C. McKINNON, for the Accused BEFORE: JUDGE H. RANDALL MINUTES OF EVIDENCE APPEAL ON SENTENCE MAISIE A. LUMSDEN Court Reporter S.C.C. 02320 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: DAVID JOSEPH COVIN, and HER MAJESTY THE QUEEN, Respondent REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.",28 year old male with 19 previous theft and property related convictions - broke into a vehicle and stole a computer - damaged motor vehicle  -  18 months for theft and 12 months concurrent for mischief upheld on appeal.,9_1990canlii2351.txt
183,"2003 SKQB 490 Q.B. A.D. 2003 No. 26 J.C. W. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF WEYBURN BETWEEN: WILLIAM WAYNERT and SHARON CRONK, in her personal capacity and in her capacity as executrix of the Estate of Charles John Carlson, DIANNE SJOBERG, MARILYN ONDIK and LYNN HEIKKILA RESPONDENTS K.J. Bell for the applicant T.G. Graf, Q.C. for the respondents FIAT KYLE J. November 20, 2003 [1] By notice of motion of January 23, 2003, William Waynert, one of 29 nieces and nephews of Charles Carlson, has sought proof of the will of Charles Carlson in solemn form, questioning testamentary capacity, due execution of the will and raising the spectre of undue influence and coercion. [2] Mr. Carlson died October 13, 2001, and his will dated November 11, 2000, was admitted to probate January 28, 2002. By his will he bequeathed to four of his nieces his entire estate of approximately $291,000.00. He was 88 at the time of his death. When he signed his will, after dictating it to one of the executors, he seemed fully conscious of its content. The will was witnessed by two friends. [3] There is presumption of testamentary capacity and in the face of challenge the executors have provided uncontradicted evidence which affirms positively the testimony capacity of Mr. Carlson not only at the crucial time the will was signed but for some months thereafter. Those attacking the will have not come forth with evidence which, if accepted at trial, would tend to negate testamentary capacity. [4] When he decided to divide his estate among four of his nieces, two relatives took exception, but there is evidence that both of them had disappointed him in some way. They were inexplicably able to obtain the notes of lawyer who had received instructions for never-completed will in 1998. While the propriety of such disclosure by the lawyer is matter for another day, its admissibility and its relevance is far from clear. [5] The evidence is that two and one-half years before he signed the will now before the court, he had instructed lawyer to draw very different will, one which was never signed because of family pressure. That there might be some pressure to favour his family over charity is not, think, surprising and his yielding to that pressure is consistent with family solidarity and could not be construed as undue influence. [6] Mr. Carlson had small stroke which affected his speech temporarily few days before the will was signed. The doctor has testified that in his opinion Charles Carlson could instruct and complete last will and testament at that time. [7] While Mr. Carlson may have given instructions for will in 1998 and then changed his mind, there is nothing out of the ordinary about the circumstances surrounding this will. Evidence now before the court by one of the witnesses to the will is “We sat at the dining room table and Charles looked over the will carefully and signed his name then my wife Doreen Lloyd and signed as witnesses, one after the other.” [8] My role, as is carefully detailed by Baynton J. in Dieno Estate v. Dieno Estate, 1996 CanLII 6762 (SK QB), [1996] 10 W.W.R. 375; 147 Sask. R. 14 (Sask. Q.B.), is that of gatekeeper. I am not to send the issue for trial unless evidence is brought forth which, if accepted, would tend to negative knowledge and approval or testamentary capacity. The proponents of the will have, by uncontradicted evidence, satisfactorily answered the challenge made by the applicants and have positively affirmed testamentary capacity. No issue of credibility has arisen. [9] The motion is therefore dismissed with costs.","The applicants brought a motion seeking proof of the Will in solemn form, questioning the testamentary capacity, due execution of the will and raising the issue of undue influence and coercion. HELD: The motion was dismissed with costs. The role of the Court is that of a gatekeeper. The Court will not send an issue to trial unless evidence is brought forth which, if accepted, would tend to negative knowledge and approval of testamentary capacity. No issue of credibility arose.",4_2003skqb490.txt
184,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 120 Date: 20051014 Between: Docket: 1007 James Edward Little in his personal capacity and in his capacity as Executor of the estate of Mildred G. Little, deceased and Sandra Lee Nelson and Leslie Sharon Gallagher Respondents Coram: Sherstobitoff, Richards Smith JJ.A. Counsel: Lyle O. Phillips for the Appellant David R. Barth for the Respondents Appeal: From: 2004 SKQB 310 (CanLII) Heard: September 12, 2005 Disposition: Appeal Dismissed Written Reasons: October 14, 2005 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Smith SHERSTOBITOFF J.A. [1] On October 4, 1982, Mildred Little made will naming her only son, the appellant James Little, executor. She made few specific gifts and then left her home to her son, and divided the residue of her estate between her two daughters, the respondents Sandra Nelson and Leslie Gallagher. [2] In the 1990’s Ms. Little transferred title to the house to the names of herself and the appellant jointly. She also transferred some bank deposits of various kinds of total value of $57,056.36 into the joint names of herself and the appellant, and designated him the person to receive payments under Registered Retirement Income Fund owned by her of value of $29,508.55. The appellant gave no consideration for these transfers and the designation. He had no access to these assets during the life of Ms. Little. [3] When Ms. Little died on August 12, 1999, the appellant took the position that the bank deposits and the proceeds of the RRIF did not pass under the will but were given to him for the benefit of Ms. Little’s grandchildren, great-grandchildren and himself, and he in fact paid about $45,000 to the grandchildren and great-grandchildren, but nothing of those funds to his sisters, the residuary beneficiaries named in the will. The sisters brought action against the appellant claiming that the funds were a part of the residue of the estate and obtained a judgment to that effect as well a judgment against the appellant for the amounts they, as the residuary beneficiaries, should have received. This appeal is against that judgment. [4] The appellant, in his factum, raised these issues: Did the trial judge err in law in failing to consider the effect of section 75 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 upon the Respondents’ claim to the RIF? Did the trial judge err in mixed law and fact in finding that the joint bank and investment accounts were subject to resulting trust in favour of the residue of the estate? Did the trial judge erred in law in failing to consider the application and effect of section 57 of The Trustee Act, R.S.S. 1978, c. T-23, which gives courts discretion to relieve trustees of liability, in whole or in part, for technical breaches of trust where trustee acted honestly, reasonably, and where it is fair to excuse the breach? [5] preliminary issue is whether the appellant should be allowed to raise and argue issues one and three since they were not raised, argued, or dealt with in the court below. Cameron J.A. of this Court made an order allowing the appellant to amend his Notice of Appeal to include these grounds, but made the order without prejudice to the respondents’ ability to contend on the argument of the appeal that neither issue should be entertained because each gives rise to an entirely new argument on the appeal. The respondents did so contend. [6] As to the preliminary issue, there is general rule against raising an entirely new argument for the first time on appeal: Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] S.C.R. 232, at p. 240 and Hawkeye Tanks Equipment Inc. v. Farr-Mor Fertilizer Services Ltd. et al. (2002), 2002 SKCA 44 (CanLII), 219 Sask. R. 148 (Sask. C.A.) at paras. [8] to [11], and the authorities cited therein. The rule, however, is not absolute. In this case, the respondents are not in any way prejudiced by consideration of the new issues since they do not involve the introduction of any new evidence, and they have had adequate time to prepare and present submissions respecting the new issues. The interests of justice are best served by allowing the issues to be raised. [7] The first issue raised in the appellant’s factum is that the trial judge erred in law in failing to consider s. 75 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01, which provides as follows: 75(1) In this section: “carrier” means carrier as defined in section 146.3 of the Income Tax Act (Canada); («émetteur») “contract holder” means an individual who has entered into contract for retirement income fund with carrier; («titulaire») “retirement income fund” means an arrangement between carrier and contract holder that is defined to be retirement income fund by the Income Tax Act (Canada). («fonds de revenu de retraite») (2) Where, in accordance with the terms of contract for retirement income fund, contract holder designates person to receive payments under the retirement income fund in the event of the contract holder’s death: (a) the carrier is discharged on paying to the designated person the amount of the payments; and (b) on the death of the contract holder, the designated person may enforce payment of the amount payable, but the carrier is entitled to set up any defence that the carrier could have set up against the contract holder or the contract holder’s personal representatives. (3) contract holder may alter or revoke designation made under contract for retirement income fund in the manner set out in the contract for the retirement income fund. (4) This section does not apply to designation of beneficiary to which The Saskatchewan Insurance Act applies. [8] The appellant’s argument is misconceived. Section 75 does not apply to the case before us. It does not address the issue before the court below or this Court. The respondents have not, in the court below or in this Court, taken the position that the appellant is not the person entitled by law to receive the proceeds of the RRIF from the administrator of the fund and to give the administrator binding discharge. Accordingly, when the appellant received the money, the section was complied with and has no further application. The matter in issue both here and below is the capacity in which the appellant received the money. Did Ms. Little intend the appellant to receive it in his own capacity and for his own benefit? Or did she intend that he receive it as trustee upon an express trust to use it for the benefit of her grandchildren and great-grandchildren? Or did she intend that he receive it in his capacity as the executor named in her will to be distributed to the respondents in accordance with the terms of the will? Or since the designation was without consideration, was there resulting trust in favour of the estate? All of these possibilities were raised by the evidence, the judgment below and the arguments of the parties. These are the issues raised in the appellant’s factum as the second ground of appeal, and these are the issues considered and determined by the trial judge. Section 75 does not speak to them. [9] number of authorities were cited in relation to s. 75 and similar legislation: Baltzan Estate v. Royal Bank (1990), 1990 CanLII 7795 (SK QB), 82 Sask.R. 280 (Sask. Surr. Ct.); Clark Estate v. Clark, 1997 CanLII 22786 (MB CA), [1997] W.W.R. 62 (Man. C.A.); Fekete Estate v. Simon (2000), 32 E.T.R. (2d) 202 (Ont. C.J.); and, Amherst Crane Rentals Ltd. v. Perring (2004), 2004 CanLII 18104 (ON CA), 241 D.L.R. (4th) 176 (Ont. C.A.). These cases all dealt with the issue of whether creditors of the estate of deceased person had access to such funds when there was designated recipient. The answer seems to be no. But that was not the issue here. [10] The appellant, in his factum, stated the second ground of appeal to be that the trial judge erred in mixed law and fact in finding that the joint bank and investment accounts were subject to resulting trust in favour of the estate. [11] In this respect, the trial judge carefully reviewed the law respecting the presumption of advancement and the presumption of resulting trust. The appellant’s factum stated that he accepted the judge’s statement of law in its entirety. Accordingly it cannot be said that the judge erred in law. [12] The appellant further conceded in his factum that “none of the evidence supports the presumption of advancement”. Accordingly he conceded that none of the bank deposits and the RRIF were intended to be gifts to the appellant. He argued that the evidence indicated trust in favour of the grandchildren and great-grandchildren of the deceased rather than in favour of the estate. [13] The trial judge, in her reasons for decision, reviewed the evidence touching upon these matters in considerable detail. Her conclusions, which include the only findings of fact set out in her reasons, are as follows: [38] am satisfied that the presumption of advancement can apply to mothers and adult children, however the evidence is clear that Mildred did not intend to make gift of these funds to James. He acknowledges that clearly in his own evidence. [39] It is also clear from the evidence that Mildred retained beneficial ownership and control over the funds during her lifetime. She contributed all of the money required to acquire the funds and paid any tax owing on the interest generated by those funds. James had no access to any of these funds during Mildred's lifetime. [40] Accordingly, James holds these funds as trustee for Mildred's estate. There is conflicting evidence about whether or not Mildred wanted to have the grandchildren and great-grandchildren benefit. James and the two grandchildren who testified assert that Mildred wished to provide funds to the grandchildren and great-grandchildren. With the exception of some specific bequests, this was clearly not her intention at the time of the execution of her will. There was also evidence that Mildred expressed her intention to provide inter vivos gifts to the grandchildren and great-grandchildren, however she did not do so. [41] The plaintiffs, Leslie and Sandra assert that Mildred's intentions were to treat her three children equally. In addition, Sandra testified that Mildred specifically told her that she did not intend to leave anything to the grandchildren and great-grandchildren. [42] The best evidence of Mildred's intentions are those expressed in her will in which she leaves the residue of her estate equally to her daughters. [14] The reasons for decision show that the judge found, as matter of fact, that Ms. Little did not intend to make gift of the bank deposits and the proceeds of the RRIF to the appellant (para. [38]). This conclusion was supported by the evidence. As to the bank deposits the appellant’s evidence was as follows at pp. 112 and 115 of the transcript of evidence: see. What about her bank accounts? Those were hers. It was joint names just in case something happened to her, so that could get done what she wanted to do. And so what were your mother’s wishes in regard to the money in the bank? To be given to the grandchildren and the great-grandchildren. As to the RRIF, the appellant’s evidence was as follows, at pp. 125 and 126: Did your mother ever tell you that it was the entire RIF was going to be gift to you? Not gift to me, no. She wanted me to look after make sure the money was there to help out for the rest of the time, or whatever time, in their lifetime, the grandchildren, the great-grandchildren. [15] The reasons for decision also show that the judge found as fact that Ms. Little did not intend the funds in question to go to the appellant for the benefit of the grandchildren and great-grandchildren. Although the appellant, in argument, did not use the term express trust for the grandchildren and great-grandchildren, that was the arrangement made according to his evidence. Although the trial judge did not spell it out clearly in her reasons, she obviously rejected the part of the appellant’s evidence to the effect that Ms. Little intended the bank deposits and the proceeds of the RRIF to benefit the grandchildren and the great-grandchildren as well as himself. That the judge carefully considered the appellant’s evidence to that effect is clear from paras. [40], [41] and [42]. It is trite law that judge can accept part of the evidence of witness and reject another part. This is an issue of fact respecting the credibility of witness and this Court can interfere only in the presence of palpable and overriding error: H. L. v. Canada, (2005) 2005 SCC 25 (CanLII), 251 D.L.R. (4th) 604 (S.C.C.). The decision in this respect was open to the judge. [16] The judge did not, in her statement of the issues or in her analysis of the law, mention the possibility of an express trust in favour of the grandchildren and great-grandchildren. Nevertheless, she must have considered whether such an express trust existed because that was exactly what the appellant’s evidence suggested and exactly what the trial judge rejected in her findings of fact. [17] Since the funds in question were not given to the appellant as a gift, and were not given to him in trust for the grandchildren and great-grandchildren, they must, of necessity, revert to the estate of Ms. Little. [18] In the case of the bank deposits, the funds would revert to the estate on the basis of resulting trust. resulting trust arises when person voluntarily transfers or gifts property to another person. The law presumes that the transferor did not intend the transferee to have the benefit of the property and that the transferee is obligated to return the property to the transferor because the transferee gave no value for the property: Cooper v. Cooper Estate et al. (1999), 1999 CanLII 12613 (SK QB), 181 Sask.R. 63 (Q.B.); Dell'Aquila Estate v. Mellof (1996), 1996 CanLII 6755 (SK QB), 143 Sask.R. (Q.B.). The Supreme Court of Canada in Niles v. Lake, 1947 CanLII (SCC), [1947] S.C.R. 291, held that the presumption of resulting trust arises with respect to voluntary transfers and, more particularly, with the voluntary transfer of monies. The presumption of resulting trust is rebuttable by the transferee proving that the transferor intended the transfer as true gift: Cooper v. Cooper Estate. On the evidence, it was open to the trial judge to find resulting trust and that the appellant held the funds for the estate. [19] In the case of the RRIF, the funds would revert to the estate on somewhat different basis. Simple lack of consideration would not avoid the designation of beneficiary of the RRIF and, accordingly, the presumption of resulting trust would not apply. However, in this case, there is something more than the lack of consideration. There is the evidence of the beneficiary, the appellant, that the proceeds of the RRIF were not intended by Ms. Little to be gift to him, evidence which the judge accepted (para. [38]). As result, he is precluded from claiming the funds for himself. The judge also found as fact, as noted above, that the monies were not intended to benefit the grandchildren and great-grandchildren. Since there was no gift to the appellant, and no trust in favour of the grandchildren and great-grandchildren, the monies must, of necessity, revert to the estate. [20] These conclusions of the trial judge were reasonable ones. The evidence of the intentions of the deceased with respect to the funds in question was conflicting. Every single witness said something different with respect to the intention of Ms. Little. There was also evidence as to gifts inter vivos of money the deceased intended to make to the grandchildren and great- grandchildren but did not due to change of mind. It was the role of the trial judge to arrive at finding of fact as to the deceased’s intentions out of all the conflicting evidence. It was open to her to find, as she did, in all of the circumstances of this case, that the deceased, when she transferred the bank deposits into the joint names of herself and the appellant, and named the appellant to be the beneficiary of the RRIF, intended, in effect, only to facilitate the execution of the directions given in the will as to disposition of the funds: the funds were to be given to the respondents, the residuary beneficiaries named in the will. Since the appellant was named the executor of the will it was logical for the deceased to do what she did. Her reason for doing so came out of the mouth of the appellant: “It was joint names just in case something happened to her, so that could get done what she wanted to do.” [21] While the appellant characterized this issue as being one of mixed law and fact, it was essentially one of fact alone: the issue was what Ms. Little intended when she transferred the bank deposits and designated the payee of the RRIF. The standard of review in respect of such an issue, as noted previously, is palpable and overriding error. The judge made no such error. The appellant cannot succeed on this point. [22] Finally, the appellant asks, if he is unsuccessful on his first two points, that this Court grant him relief under s. 57 of The Trustee Act, R.S.S. 1978, c. T-23, in respect of the monies paid by him to the grandchildren and great-grandchildren, approximately $45,000.00. Section 57 is as follows: 57 If in any proceeding affecting trustees or trust property it appears to the court that trustee, whether appointed by the court or by an instrument in writing or otherwise, or that any person who in law may be held to be fiduciarily responsible as trustee, is or may be personally liable for breach of trust, but has acted honestly and reasonably and ought fairly to be excused for the breach and for omitting to obtain the directions of the court in the matter in which it was committed, the court may relieve the trustee either wholly or partly from personal liability. [23] The appellant says he paid the monies to the grandchildren and great-grandchildren in the honest belief that he was carrying out Ms. Little’s wishes. He gained no personal benefit from doing so, and did not act dishonestly. He also points out that the bulk of the funds went to children or grandchildren of the respondents, his sisters. The other side of the coin is that the trial judge did not accept his evidence that Ms. Little intended that the funds in question benefit the grandchildren and great-grandchildren. Furthermore, the appellant knew from the outset that the respondents disagreed with the position taken by him and intended to take proceedings against him. The disagreements were such that they could not even agree upon the funeral of Ms. Little. In the circumstances, the appellant’s actions in distributing the funds without at least getting directions from the court were imprudent for a trustee, notwithstanding that he made the distribution upon legal advice that he was entitled to do so. The circumstances simply do not justify, on any equitable basis, compelling the innocent respondents to bear the loss to them occasioned by the trustee’s imprudence. [24] The appeal is dismissed with costs under Double Column V in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 14th day of October, A.D. 2005. SHERSTOBITOFF J.A. RICHARDS J.A.","The deceased made a Will appointing her only son, the appellant, as executor. In her Will, she left her home to her son, and divided the rest and residue between her two daughters, the respondents. The deceased transferred title to her house to the names of herself and the appellant jointly. She also transferred some bank deposits totalling approximately $57,000 into the joint names of herself and the appellant and designated him as the person entitled to receive payments under a RRIF totalling approximately $29,000. After her death, the appellant took the position that the bank deposits and the proceeds of the RRIF did not pass under the Will but were given to him for the benefit of the deceased's grandchildren and himself. He paid out about $45,000 to the grandchildren and himself, but nothing to his sisters, the residuary beneficiaries under the Will. The sisters brought action against him, claiming the funds were part of the residue of the estate and obtained a judgment to that effect against him. He appeals against that judgment. HELD: Appeal dismissed with costs.  1) Section 75 of The Queen's Bench Act does not apply to this case. 2) The trial judge carefully reviewed the evidence and the law respecting the presumption of advancement and the presumption of resulting trust. The judge did not mention the possibility of and express trust in favour of the grandchildren. She must have considered whether an express trust existed because that was exactly what the appellant's evidence suggested and exactly what the trial judge rejected in her findings of fact. Since the funds in question were not given to the appellant as a gift, and were not given to him in trust for the grandchildren, they must of necessity revert to the estate. In the case of the bank deposits, the funds would revert to the estate on the basis of a resulting trust. In the case of the RRIF, the funds would revert to the estate on a different basis. Since there was no gift to the appellant, and no trust in favour of the grandchildren, the monies must revert to the estate. 3) While the appellant characterized this issue as being one of mixed law and fact, it was essentially one of fact alone, the issue was what the deceased intended when she transferred the bank deposits and designated the payee of the RRIF. The standard of review in respect of such an issue is palpable and overriding error. The judge made no such error.  4) The appellant asked for relief pursuant to s. 57 of The Trustee Act in respect of the money paid by him to the grandchildren. The appellant says he paid the monies to the grandchildren in the honest belief that he was carrying out the wishes of the deceased. The appellant knew from the outset that his sisters disagreed with his position and intended to take proceedings against him. The appellant's actions in distributing the funds without at least getting directions from the Court were imprudent for a trustee. The circumstances do not justify, on any equitable basis, compelling the innocent respondents to bear the loss to them occasioned by the trustee's imprudence",8_2005skca120.txt
185,"nan Q.B. A.D. 1994 No. 478 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS and HER MAJESTY THE QUEEN, THE MINISTER OF JUSTICE FOR SASKATCHEWAN and THE MINISTER OF JUSTICE CANADA RESPONDENTS AND Q.B. A.D. 1994 No. 479 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS and HER MAJESTY THE QUEEN RESPONDENTS R. Parker for the applicants W. K. Tucker, Q.C. for the Crown FIAT BARCLAY J. April 14, 1994 John David Lucas (""Lucas"") has applied to quash theorder of Judge Albert Lavoie made at a preliminary hearing onFebruary 8, 1994 in the Provincial Court in Saskatoon,Saskatchewan, committing him to stand trial on a charge thathe committed a defamatory libel against [rank] [Police Officer]of the Q. City Police contrary to ss. 300 and 301 ofthe Criminal Code. The grounds of the application may be summarized as 1. Judge Albert Lavoie was biased. 2. Lucas did not receive proper disclosure from the prosecutor. In my view there is no merit to either of these grounds. I have read the preliminary and there is not ascintilla of evidence to suggest that either the ProvincialCourt judge was biased or that there was an apprehension ofbias. As to the complaint about disclosure Lucas appears toadmit that he received full disclosure with respect to thedefamatory libel charge and that his complaint is with respectto an ongoing investigation of another potential offence. Furthermore, in an application to quash committal for trial there is only one ground for action by the reviewing court and that is lack of jurisdiction. See Dubois v. R. (1986), 1986 CanLII 60 (SCC), 25 C.C.C. (3d) 221. This application stands dismissed. Lucas also applies for an order quashing certainconditions of a recognizance issued at the preliminary hearingof February 7, 1994, which conditions are as follows: A) PICKETING OF ANY KIND OR CARRYING PLACARDS OR POSTERS OF ANY KIND OR IN ANY MANNER PUBLICALLY COMMENTING IN ANY CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE; B) CREATING ANY PLACARD, POSTER OR SIGN INSIDE OR OUTSIDE THE RESIDENCE OF THE ACCUSED OR ACCOMPANYING ANY PERSON CARRYING OR PICKETING WITH ANY POSTER, PLACARD OR SIGN COMMENTING ON ANY CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE; C) PUBLIC COMMENT ON ANY CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE OR CREATING ANY DOCUMENT FOR THE PURPOSE OF ASSISTING ANY OTHER PERSON TO PUBLICALLY COMMENT OR (SIC) CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE; D) PERMITTING OR ALLOWING ANY PERSON TO USE ANY FAX MACHINE, WORD PROCESSOR, OR TYPEWRITER OR ANY ARTICLE IN THE HOUSE OF THE ACCUSED TO PRODUCE ANY DOCUMENTS, SIGN, PLACARD OR POSTER FOR THE PURPOSES OF PUBLICALLY COMMENTING ON CASES OR INVESTIGATION INVOLVING CHILD SEXUAL ABUSE; E) USE BY THE ACCUSED OR ANYONE ELSE OF THE FACSIMILE TELEPHONE MACHINE IN THE RESIDENCE OF THE ACCUSED TO SEND ANY MESSAGE REFERRING TO CHILD SEXUAL ABUSE CASES EXCEPT FOR THE PURPOSES OF THE ACCUSED COMMUNICATING WITH THE LAWYER OF THE ACCUSED. After reviewing the court proceedings and inparticular the transcript of the bail hearing I am satisfiedthat the conditions imposed by Nutting P.C.J. are justified. The learned Provincial Court judge, after hearing evidence and submissions exercised his discretion. In my view he did notmake an error in law or erred in his application of the factsand it would therefore be improper for this Court tosubstitute my discretion for the discretion exercised by thelearned Provincial Court judge. The application is alsodismissed.",FIAT Application (1)to quash committal to stand trial on a charge of defamatory libel and (2)to quash certain conditions of a recognizance issued at the preliminary hearing. HELD: (1)Application dismissed. The Provincial Court judge was not biased and the accused received full disclosure with respect to the charge. In an application to quash committal for trial there is only one ground for action by the reviewing court and that is lack of jurisdiction. (2)Application dismissed. The conditions imposed by the Provincial Court Judge were justified. He did not err in law or in his application of the facts.,e_1994canlii4938.txt
186,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 322 Date: 20060718 Docket: Q.B. 1287/2005 Judicial Centre: Saskatoon BETWEEN: IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON WINSTON McKAY and MAY HENDERSON DEFENDANT J.S. Abrametz for the plaintiff (respondent) D.A. Racine for the defendant (applicant) FIAT GEREIN, J. July 18, 2006 [1] This is an application for an order striking out the plaintiff’s claim in defamation. I decline to grant the order. THE APPLICATION [2] The application is brought pursuant to Queen’s Bench Rule 173 which provides: 173. The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be: (c) it is scandalous, frivolous or vexatious; (e) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly or may grant such order as may be just. Unless otherwise directed, the offending party shall pay double the costs to which the other party would otherwise be entitled. The grounds in support of the application, as set out in the notice of motion, are these: 1. The Plaintiff’s Statement of Claim discloses no reasonable cause of action. The Statement of Claim does not provide any details of the incidents such as time, place, and audience relating to the alleged defamatory statements. The Statement of Claim does not allege that any of the statements were published by the Defendant. The facts as pleaded would not constitute defamation in law even if proven to be true. 2. The claim is scandalous, frivolous and vexatious. The Plaintiff fails to plead the means by which the statements were made or the dates when, and locations where, such statements were made thus depriving the Defendant of the ability to identify the acts or omissions or the incidents that are alleged to constitute cause of action. The Plaintiff fails to plead any facts as to the dates on which these statements were supposed to have been made, and deprives the Plaintiff of the ability to address the applicable limitation period. 3. As the Plaintiff fails to address the most basic elements of cause of action in defamation, the claim lacks substance and merely serves to scandalize and annoy the Defendant. As such, the Statement of Claim in its entirety is scandalous, frivolous and vexatious and otherwise an abuse of the process of this Honourable Court. While the grounds are set out in three paragraphs, the first two largely say the same thing: that the statement of claim discloses no reasonable cause of action. The last speaks of the claim being scandalous, frivolous and vexatious and an abuse of process. [3] The affidavits of several individuals, including the defendant, have been filed in support of the application. In each of them certain conduct of the defendant is described in some detail. However, they make no reference to the alleged defamatory remarks. THE STATEMENT OF CLAIM [4] This statement of claim alleges malicious defamation on the part of the defendant. The important paragraphs are these. 5. The Defendant, May Henderson, has verbally stated the following and thereby did so publish with respect to the Plaintiff, Winston McKay, to the Saskatoon Indian Metis Friendship Centre board members including Lorraine Hessdorfer, Pat Caron, Shauna Trotchie, Kelly Pruden, Julia M. Durocher, F. Maurice and Rick Daniels on or about the first week of June, 2005; (a) “Winston McKay has been verbally abusive to me for over year”; (b) “Winston McKay’s verbal abuse against me has escalated to physical abuse”; (c) “Winston McKay has harassed employees of the Saskatoon Indian Metis Friendship Centre” and particularly that “he has harassed me”. (d) “Winston McKay has guns and is violent and am afraid he will shoot me”. (e) “Winston McKay should be committed” (meaning to psychiatric treatment). 6. The foregoing statements made by the Defendant, May Henderson, with regard to the Plaintiff, Winston McKay, are untrue and are meant and understood to mean that the Plaintiff, Winston McKay, is untrustworthy, dishonourable, violent, brutish, misogynist and dangerous. 7. The Plaintiff states that, May Henderson’s actions constitute repeated attempts at character assassination of Winston McKay have led to his unjust and wrongful dismissal from the Board of the Saskatoon Indian Metis Friendship Centre. The Plaintiff states the Defendant has breached her duty of care to refrain from defaming the Plaintiff. Alternatively, the Plaintiff states the Defendant was negligent in that regard. 8. The statements made by the Defendant have alleged criminal misconduct, and he has suffered damages thereby. 9. The statements made by the Defendant, May Henderson, were malicious, highhanded and calculated to disparage the Plaintiff in his profession, calling and trade carried on by him at the time they were made. The statements have brought the Plaintiff, Winston McKay’s reputation into disrepute in the Indian and Metis community in Saskatoon, and have undermined his intention to seek an elected position as member of the Saskatchewan Legislative Assembly. The plaintiff then goes on to claim damages in excess of $25,000.00. [5] In Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.), at p. 139, the test to be applied on applications such as this was set out as follows. In determining whether claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Contrary to the submissions of counsel for the defendant, all the essential elements of a claim in defamation are set out. That being so, a reasonable cause of action is disclosed and the quoted test has not been met. [6] At the hearing of the application counsel for the defendant argued that the claim should be dismissed because the defendant can claim qualified privilege. description of that privilege is found in The Law of Defamation In Canada by Raymond E. Brown; 2nd ed., 1994, Thomson Canada Limited, vol. pg. 673. The defendant must establish that the words spoken or written were published on lawful occasion, that is one “fairly warranted by some reasonable occasion or exigency”. There must be some mutuality of interest or duty between the publisher and recipient. Reciprocity of interest is essential. It must be shown that the publisher had some duty or interest in making the communication, and those to whom it was made had some interest in receiving it, or at least he or she was acting on behalf of someone who had such an interest. However, it must not involve the satisfaction of some duty or interest which is unlawful or contrary to the public interest. See also Haight-Smith v. Neden (2002), 2002 BCCA 132 (CanLII), 211 D.L.R. (4th) 370 and McLoughlin v. Kutasy, 1979 CanLII 39 (SCC), [1979] S.C.R. 311. [7] There may be merit to the defendant’s claim, but it cannot be dealt with in this application. While several affidavits were filed, none of them speak to the circumstances wherein the impugned remarks were made. Most importantly, there is no assertion by the defendant that the remarks were made in the course of her duties or were received by persons with a corresponding duty. [8] recognize that the statement of claim speaks of the remarks being made to board members. However, that phrase may only be descriptive of the persons. In any event, it does not establish that the persons were carrying out some board function at the relevant time. [9] Furthermore, the statement of claim alleges malice. The plaintiff must be afforded an opportunity to establish that. Counsel for the defendant submits that the affidavits filed serve to negative malice. do not agree. Accordingly, cannot say the claim is vexatious or frivolous. [10] further and final submission was made by counsel for the defendant purportedly based on the decision in Mitchell v. Gilpin (2004), 2004 SKQB 311 (CanLII), 250 Sask. R. 246 (Q.B.). The circumstances of that case were markedly different than in this case before me. The plaintiff, Mitchell, was teacher about whom complaints had been made. In the end, Mitchell’s contract of employment was terminated for reasons other than the complaints. She sought redress in respect of the termination and when she was unsuccessful she commenced an action for defamation. [11] On an application to strike the claim, it was decided that the complaints of the defendant related to the workplace and were dealt with in accordance with the regime established for the purpose of dealing with workplace problems. That being so, it was held that it would be an abuse of process to permit the plaintiff to pursue the same matter in this forum. Therefore, the claim was struck. [12] In the instant case, there is no evidence before me about the circumstances surrounding the several remarks. do not even know that the defendant made the remarks, let alone any reason for doing so. Accordingly, it cannot be said that she fits within situation like that in the Mitchell case. It follows that this submission must be rejected. [13] In the result, the application is dismissed. The plaintiff will have his costs which are fixed at $400.00 in any event of the cause.","FIAT: This is an application for an order striking out the plaintiff's claim in defamation pursuant to rule 173 of the Queen's Bench Rules. HELD: The court declined to strike the claim. 1) Contrary to the submissions of counsel for the defendant, all essential elements of a claim in defamation are set out. A reasonable cause of action is disclosed. 2) None of the affidavits filed speak to the circumstance wherein the impugned remarks were made. Most importantly, there is no assertion by the defendant that the remarks were made in the course of her duties or were received by persons with a corresponding duty.",7_2006skqb322.txt
187,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 44 Date: 2009 01 23 Docket: F.S.M. 50 of 2005 Judicial Centre: Regina, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF N.S., BORN […] 2005 D.S., BORN […] Counsel: Jill Drennan for the Ministry of Social Services Bruce K. Campbell representing N.O.S. H.H. representing herself JUDGMENT OTTENBREIT J. January 23, 2009 INTRODUCTION [1] H. H. is the mother of two children, N.S. and D.S. N.O.S. is the father of the children. The Ministry of Social Services (the Ministry) seeks a six month order pursuant to s. 37(c) of The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”) with respect to the two children. Both H.H. and N.O.S. appeared at the hearing. Although N.O.S. was represented, H.H. was not. N.S. was born […] 2005 as shown on Exhibit P-1-Tab A-1 and is nearly four years old. D.S. was born […] 2007 as shown on Exhibit P-1-Tab A-2 and will soon be two years old. [2] D.S. was apprehended by the Ministry when he was born. Both N.S. and D.S. were the subject of consent order for six months on October 2, 2007. Both children have been in care for most of their lives. The Ministry requests a six month order with a proviso that it be for the purposes of allowing the Ministry to make long term placement plans for both children. [3] H.H., the mother, is not seeking a return of the children to her directly but supports the position of N.O.S., the father, who asks that the children be returned to him in his care. N.O.S. proposes that he will continue living with the mother H.H. and the children while the mother first attends to getting her addiction problems under control and then he proposes to address his own addiction problems. [4] The Ministry filed book of documents marked Exhibit P-1 with each document tabbed therein. References to tabs refer to this exhibit. HISTORY OF THE PARENTS [5] N.O.S. was born on […] 1986 in Regina. N.O.S. presently lives with his father on the […] First Nation. He grew up on the […] First Nation just north of Regina and resided there with his father until he was teenager. He has four brothers and one sister and he is third in the sibling line. N.O.S. is at the present time not working or in school. He has grade nine education and shovels snow for Elders on the reserve. He plans to return to school. N.O.S. has substantial criminal record which was tendered as Exhibit P-3 by the Ministry. This includes 16 offences as youth. His youth offences were primarily property crimes, especially vehicles, and failures to comply with the dispositions made with respect to his offences. The convictions for youth offences are dated between May of 2000 and June of 2004. [6] N.O.S. also has an adult record related to property offences but primarily related to failing to comply with recognizances and probation orders. His last conviction was in January of 2006 for which he received total of seven months incarceration. [7] N.O.S. testified at the hearing and readily admitted that in his past he stole property, took cars and committed break and enters. He indicated that his friends were doing it. [8] Although he met H.H., the mother, at an early age, they did not really establish relationship until late teenagehood when they both started going to Alcoholics Anonymous (A.A.) meetings. They started living together and both were using intravenous drugs. N.O.S. was using once every two weeks. N.O.S. became involved in gang activity when he spent time at the correctional centre and after he was released. He testified that he stopped hanging around with gang members after his daughter N.S. was born and got beat up because he left the gang. He testified he has not been involved in gang activity recently. N.O.S. and H.H. have lived together at various residences on and off since N.S. was born. [9] The Ministry called Staff Sgt. Dave Wyatt who tendered Regina Police Service computer record of police involvement with N.O.S. This shows 64 entires with respect to dealings with N.O.S. These entries include all dealings which the Regina Police Service had with N.O.S. including the times that N.O.S. was arrested and the times he was suspect. His most recent contact with Regina City Police Service was when he was arrested and charged regarding the theft of an auto on June 21, 2008. The Regina City Police Service computer records show number of calls related to domestic violence. There are, however, no charges or convictions respecting domestic violence. [10] N.O.S., on September 16, 2005, signed Parental Services Agreement (PSA) for the period September 16, 2005 to December 16, 2005 respecting N.S.. These included conditions that H.H. and N.O.S. would attend parenting program of their choice and inform the social service worker of which one and that H.H. and N.O.S. would attend Narcotics Anonymous (N.A.) or A.A. once per week. There were additional conditions that they would both find suitable housing and work cooperatively with the Ministry. N.O.S. signed another PSA on April 28th covering the period April 28th to August 28th of 2008. The purpose of this PSA was that the parents would not expose their children, in this case both N.S. and D.S., to drug use or domestic violence so the children would continue to live in safe environment and have appropriate care. This PSA is found at Tab B-27. Additionally, N.O.S. agreed to attend anger management and participate in and complete parenting class and remain drug free and provide all drug screen results as well as work with the KidsFirst Program and attend and complete treatment. [11] Respecting domestic violence, N.O.S. denies that he has ever hit H.H. and indicates that when they argue, he attempts to get away and avoid the argument. N.O.S. says that he took parenting course for approximately two months and went every Wednesday. This happened before D.S. was born. He was not able to provide any certificates that he completed any course of programming although he indicates that on the parenting course he asked for certificates but they did not provide any. He has taken and completed courses on safe food handling and cooking. N.O.S. indicates that he did not take anger management courses because there was no anger management facilitator. [12] N.O.S. has been on the methadone program since at least January of 2007. Records consisting of result report form, patient medication profile and charting records, track sheet and notes from the Harm Reduction Methadone Program are found at Tab B-32. Dr. Harris, medical doctor working at the Harm Reduction Methadone Program in Regina who was admitted as an expert in the analysis and interpretation of toxicology screens for individuals who are using methadone to overcome addictions, testified with respect to both the involvement of N.O.S. and H.H. with their clinic. The tracking sheet respecting the urine screens of N.O.S. show that since January of 2007, N.O.S. has tested positive for opiates only once in January of 2007, ritalin twice in December of 2007 and January of 2008 and cocaine three times in November and December of 2007 and January of 2008. N.O.S. has tested positive for cannabinoids consistently throughout the period between January of 2007 and the first of December, 2008 when the record ends. Dr. Harris testified that N.O.S. has been on the methadone program for some time and compared to other clients of the clinic, N.O.S. is doing very well and above the average. Dr. Harris testified that methadone is substitution therapy to help the craving for those who want to stop using intravenous drugs. Methadone is intended for opioide addictions although other addictions tend to benefit from the interaction. Dr. Harris testified that an indication of stability in the program is an indication that the patient is allowed to carry the methadone medication home. The record with respect to N.O.S. that the program counsellors have consistently trusted him to carry home his methadone medication. However, N.O.S. did have some relapses. Dr. Harris testified that single opioide screen in January and the two ritalin screens did not present any concerns to him. He indicated that N.O.S. provides screens generally twice month and the results are very consistent compared to other patients. Dr. Harris also testified that the cannabis use was not concern and that N.O.S. appears to be stable patient despite relapses. [13] Joe Vandale, who is counsellor at the Harm Reduction Methadone Program and has worked with N.O.S. and H.H., indicated that although N.O.S. has left the program the odd time, he has always come back to restart. He indicated that in March and April of 2008 N.O.S. was doing well since he was allowed to carry further doses and appeared to be given 1-6 carry schedule. Mr. Vandale indicated that N.O.S. had attempted to set up some treatment at the MACSI Centre in Saskatoon in November of 2007 but left the treatment before it was completed. N.O.S.’s explanation was that he had injured his eye and they refused to give him medical treatment. Mr. Vandale indicated that on objective indicators, N.O.S. was doing well apart from his screens. He did not seem to be avoiding dealing with matters. Mr. Vandale indicated that N.O.S. was already addressing his opiate addiction and that the next step would be attending A.A. and anger management. Mr. Vandale testified that the screens are an indicator of how well N.O.S. is doing and that he has progressed. He indicated that relapse is learning experience and not failure. It depends on what triggered it. [14] With respect to the positive screen for N.O.S. for cocaine in May of 2008, Mr. Vandale indicated that he talked to N.O.S. about this and his explanation was that he didn’t use cocaine, it was merely slip not relapse. [15] H.H. has had involvement with the Ministry with respect to the children from the date of birth of N.S. N.S. was born addicted as result of the drug use of H.H. N.S. was apprehended at birth as was D.S. H.H. did not testify and her history can only be gleaned from the documents which have been filed as exhibits and the testimony of others. [16] The registration of live birth for N.S. found at Tab A-1 shows that H.H., the mother, was born on […] 1985 at Regina. H.H. has lived with N.O.S. on and off since the birth of N.S. at various residences. [17] The Regina Police Service record for H.H. tendered by Staff Sgt. Wyatt is found at Tab B-30. This shows 122 entries dating from August of 1991 to the most recent entry in June of 2008. In May of 2008, she was arrested and charged with violations relating to no contact with N.O.S. The Regina Police Service Occurrence Record documents various dealings with H.H. either with respect to charges, arrests, as complainant or as witness. [18] H.H. has entered into number of PSA’s. The first one is dated February 21, 2005 and covered the period February 21, 2005 to May 31, 2005. It related to N.S. and as condition required H.H. to complete detox and treatment, work with the KidsFirst Program and provide drug screens. The next PSA was dated March 14, 2005 and covered the period March 14, 2005 to June 30, 2005. It required H.H. to contact Alcohol and Drug Services to complete an assessment and follow through with their recommendations. H.H. was to reside with N.S. in her mother’s residence and work with Families First and attend parenting classes. The worker at the time, Sharese Cyr, provided an assessment referral for H.H. through the Alcohol and Drug Services Regina Health District. This is found at Tab B-8 and details H.H.’s chemical use history. B-8 indicates that H.H. was 14 when she began smoking pot and doing ritalin and alcohol. She then quit for time between the ages of 15 and 16 and then began using T’s and R’s and then started using morphine then quit until the summer of 2004 when she started using morphine. It also showed that she had number of charges with respect to assault causing bodily harm and robbery and incarceration from August to October 2004. B-8 indicates that H.H.’s previous treatment was in 1992 and 1993. [19] H.H. did provide drug screens from time to time to the Ministry. The drug screen in April of 2005 tested positive for cannabinoids and benzodiazepines [20] The next PSA signed between H.H. and the Ministry is dated April 11, 2005 and covered the period of April 11, 2005 to July 11, 2005. This PSA required H.H. to continue to work with Healthiest Babies and to register and participate and complete an ADS program at an appropriate agency. [21] further PSA was entered into on April 20th covering the period April 20 to July 20. This PSA updated the one done nine days before. H.H. agreed to leave N.S. in the care of her mother when she has to leave the home. H.H. again agreed to work with someone from Four Directions Addiction Counselling. [22] Residential Services Agreement was signed by H.H. whereby the Minister would provide services for N.O.S. and assist H.H. in addressing addiction issues and preparing for family reunification. [23] On September 16, 2005 both the father and H.H. signed another PSA with the provisos that H.H. would attend addictions assessment and that both parents would attend parenting program of their choice as well as submit drug screens and attend N.A. and A.A. once per week. This PSA covered the period September 16, 2005 to December 16, 2005. During that time, H.H. provided drug screen that was positive for opiates as well as cannabinoids on September 26, 2005. [24] H.H. entered into another PSA dated January 10, 2006 with conditions very similar to past PSA’s. This covered the period January 10, 2006 to May 10, 2006. Tab B-20, long term/permanent ward form and annual review, was signed on January 24, 2007. It recommended that the Ministry apply for permanent wardship of N.S. This showed that N.S. had been in care from May 2, 2005 to January 24, 2007. The parents had weekly two hour supervised visits with N.S. at the Ministry. [25] On April 19, 2007 H.H. entered into another PSA promising to participate in parenting classes, continue with the methadone program and take other programming. This was to cover the period April 19 to August 19, 2007. The father also signed PSA dated April 28, 2008 showing the period April 28, 2008 to August 28, 2008 whereby the father agreed to participate in and complete parenting class and attend anger management as well as remain drug free and provide all drug screen results. The father also agreed to work with KidsFirst and attend and complete treatment. [26] Tab B-32 contains the Harm Reduction Methadone Program notes provided by various doctors and workers for N.O.S. These notes cover the period January 8, 2007 to December 3, 2008 and documents the father’s contact with the Harm Reduction Methadone Program. The notes indicate on October 8th that the father refused to provide screen on October 6th and left cold screen on October 7th as well as left cold screen on October 19th. Joe Vandale testified that cold screen is questionable because when the sample for the screen is given it should come out at body temperature and it is provided to the program personnel immediately. cold screen may indicate that it has been sitting too long or that it was not given at the clinic. Between the period November 11, 2007 and November 23rd, the father had number of no-shows and on November 22nd, was officially off the program. By December 11, 2007, the father was back into the clinic wanting to restart and the notes indicate that he advised that he went on binge and reported using 200 mg of morphine daily and also cocaine. There were further no-shows by the father between December 23rd and January 18th as well as various no-shows later in January and in February. [27] The note dated February 29th indicated that the father would be starting anger management and life skills courses on the Reserve on March of 2008. However, by March 3rd, the father indicated that the anger management program was cancelled due to only few candidates and he was asking to be referred to other programs. [28] The notes further indicate that on November 12, 2008, the father called to report that he was going to treatment in Lebret on November 15th. However, on the 14th he called wanting to go to MACSI as the NADAP treatment centre refused him as he was on methadone. Joe Vandale contacted MACSI in Saskatoon and they had cancellation and accordingly arrangements were made for the father to attend on November 18th for the program. [29] The Harm Reduction Methadone Program notes for H.H. can be found at B-31 and covers the period October 4, 2005 to December 17, 2008. The note on January 12, 2005 indicates that the writer arranged to have H.H. attend detox but she declined. The note dated May 24, 2006 indicated that H.H. had been on an alternate methadone program since March of 2006. On September 13, 2006, notes indicate that H.H. wanted to restart the methadone program and was referred to the Parliament Clinic. On January 8, 2007, the note indicated that H.H. came into the clinic and reported that she was using 200 mg of morphine daily. She was six months pregnant at the time with D.S. H.H. reported that she did go to detox the year before but did not manage to stay abstinent. [30] The notes indicate that H.H. had number of no-shows at the clinic in December and November 2007 and went off the program. She went off the program and had to restart. In April of 2008, the notes indicate that arrangements were made to have the parents go to MACSI in Saskatoon for 28 days but they did not go due to babysitting issues. The notes on November 26, 2008 indicate that H.H. advised that she wanted referral to detox, that she had relapsed using cocaine. number of workers had worked with both the parents. The worker who originally worked with the parents was Sharese Cyr. Ms. Cyr attended to the hospital upon N.S.’s birth. At that time, H.H. admitted to using IV ritalin and marijuana prior to the birth. At that time, when H.H. was in the hospital with N.S., Ms. Cyr spoke to her about plan for drug and alcohol treatment and talked about options. At that time, H.H. was noncommital regarding treatment. The Ministry decided that N.S. would be discharged to H.H.’s care under PSA dated February 1, 2005. During the time that Ms. Cyr dealt with H.H., she was concerned about H.H.’s failure to follow through with the parenting services and noncompliance with the PSA’s. Ms. Cyr advises that when she talked to H.H. on March 14th, H.H. indicated she was smoking pot and using morphine the previous week. Ms. Cyr prepared the drug and alcohol assessment referral marked Tab B-8 and did work to facilitate treatment for H.H. but H.H. did not follow through. [31] Holly Murray has been the worker on this matter since July of 2007. During her involvement with this matter, both children have been in the care of foster parents and the natural parents had been visiting the children at the office for unsupervised visits once week. She reported that generally the visits were going well and in August of 2007, there was some overnight visiting. Ms. Murray made the decision to return the children to the parents in September of 2007 on conditions that the parents submit screens and that they continue on the methadone program as well as take anger management in the case of the father and the children attend the Children First Program. This resulted in six month supervision order dated October 2, 2007 for both children. Ms. Murray checked on the children on November 19th and December 17th and the children appeared well. In the month of January of 2008, she had contact with both the father and the mother. The father reported that the mother was using drugs heavily and often did not know where she was. H.H. herself called on January 21st and sounded like she was under the influence speaking slowly and her speech was slurred. N.O.S. reported on February 19th that he did not think that H.H. was on the methadone program at that time. It appears that H.H. left the father for some period in February and March and by March 1st, wanted to come back to him. Ms. Murray informed the father that if the mother were to live with him, then the kids would be apprehended. Ms. Murray testified that in March the father indicated that he would go to anger management class and get treatment. During this time, the children looked well cared for. On March 31, 2008, Ms. Murray received report from Mobile Services through an anonymous caller who indicated that H.H. and N.O.S. were drinking. This raised protection concerns. On April 18 of 2008, Ms. Murray spoke with the SAP worker who indicated that she felt both the father and the mother were trying to avoid her. This raised further concerns with Ms. Murray, however, on April 28th when Ms. Murray visited the family home, the children appeared to be doing well and PSA was signed with the father. [32] On May 28th, Joe Vandale provided drug screens to Ms. Murray. The father had tested positive for cocaine and the mother had had positive screens in April and May for cocaine. [33] When the children were finally apprehended on May 29th, they were quite dirty. During the period of June to the present, both parents visited the children consistently and the visits went generally well. [34] Ms. Murray testified that D.S. seemed delayed in his development but was otherwise doing well and that N.S. had started school. Ms. Murray indicated that her concerns were the drug use of the parents as well as their on and off again relationship. The receipt of positive screens and not following through on programming had led to the apprehension of the children and she felt that the father not attending anger management and other programs was significant. She indicated that there were no objective indicators that they were working on their issues and she recommended that the court order six month order planning for permanent placement. [35] In cross-examination, Ms. Murray confirmed that the children appeared to be well bonded to their parents and that the only time that the children appeared not to be well dressed is when they were apprehended. She also confirmed that both the father and the mother would bring new clothes to the children on their visits. She confirmed that the father indicated he would work with the Ministry with respect to the children. She confirmed that there was no indication of violence by N.O.S. since she had been the worker on the file and also confirmed that since the apprehension, she did not have particularly good working relationship with the parents. Ms. Murray admitted that she basically stopped working with the parents once the long term placement planning started. She advised that she had never been to N.O.S.’s father’s house and that the only contact with the father was at visits. She indicated that the permanency committee had explored resources with the appropriate Indian Band but the Band indicated that there were no resources on the Reserve. She confirmed that the children generally appeared to be happy when they were with the parents. She admitted that the parents need support to beat their addiction problems. [36] The witness Jamie Jones from the Ministry became involved with the matter in April of 2005. She was not able to confirm that in March of 2005 H.H. had attended any programming. Ms. Jones continued on the file until September of 2005 dealing with H.H. During that time, H.H. admitted to using valium, marijuana and morphine. In early May, H.H. brought N.S. in indicating that neither she nor her mother could care for her. [37] Kynan Kindopp was worker on this matter from October of 2005 until May of 2007. During that time, she dealt only with N.S. When she first got involved, N.S. was living in foster home and H.H. was visiting N.S. at her mom’s house. During the time that Ms. Kindopp dealt with the children and the parents, the ups and downs in the relationship between the parents continued. Ms. Kindopp had discussion on October 27, 2005 with H.H. regarding domestic violence since it appeared at visit that she had bruise. H.H. indicated that it was as result of fall. Ms. Kindopp spoke to H.H. about domestic violence. She did not believe it was fall. It looked like she had been hit. On November 10, 2005 the mother of H.H. reported to her that H.H. and N.O.S. “were using”. In March of 2006 Ms. Kindopp saw H.H. at detox centre. H.H. looked good and she had been clean for five days. By March 20th, Ms. Kindopp had been advised that H.H. was no longer in the detox program. In August of 2006 N.O.S. reported that he had broken up with H.H. and that she was using drugs. In 2006, the parents continued to visit N.S. and members of both of the father’s and mother’s family were explored as resources without success. In February of 2007 N.S. was admitted to the Pasqua Hospital because of vomiting and diarrhea. Ms. Kindopp indicated that her recommendation at the end was to pursue permanent wardship for N.S. There were protection concerns she indicated which included domestic violence, addiction, transiency and lack of follow through. She indicated that while she was on the file, no programs were ever followed through by the parents for their addictions, parenting or violence apart from the methadone program. [38] In cross-examination Ms. Kindopp indicated that the father had always indicated his willingness to work with the Ministry. She also indicated that there was time when he was in counselling. She indicated that she never received any certificates of completion but did talk about completing the courses and following through with them with the father. She indicated that sometimes she knew where the father was living and sometimes not. She did attend at the fathers’ father’s house on the […] Reserve and indicated it was nice home. She indicated that she worked with the father to remind him that N.S. was lactose intolerant and that he had to bring appropriate snacks but thereafter the father complied with that. [39] The child N.S. was born addicted to drugs. recent picture of her found at Tab B-33 shows bright and happy child. Tab C-6 is letter dated February 22, 2005 from the Social Worker, Leanne Stefan, to Sharese Cyr and indicates Stefan’s concerns that there were risk factors posing health and safety issues to the child including active disclosed intravenous drug use of ritalin, high risk behaviour by the mother and possible gang involvement and the mother’s limited family supports. Tab C-19 contains Regina Qu’Appelle Health Region Wascana Rehabilitation Centre Psychological Assessment Report. The date of the report is May 14, 2007 and indicates that N.S. was living with her foster parents, J1. and J2. H., and had been living with them since November of 2006. N.S. attended the Y.W.C.A. daycare daily and at that time she was not playing with other children at the daycare and was physically aggressive toward them. However, the foster mother noted recent improvements regarding her ability to get along with other children and increased interaction and play and decreased aggression. summary of the assessment was that N.S. was pleasant and busy girl and her overall cognitive abilities fall within the average range. Her speech and language range also fall within the average range. Adaptively, N.S. is functioning within the high average range of abilities and overall did not present with any significant cognitive attention or adapted deficits. The report indicated that she has separation anxiety which is not surprising given her early history of not having consistent and long term caregiving environment. [40] D.S. was assessed at the Regina Developmental Assessment Clinic physical therapy assessment on August 7, 2007. The report indicated that D.S. was active and alert for the assessment and already handling well. At the time of the assessment, D.S. was 21 weeks old. This report is found at Tab C-20. The report indicates that he is demonstrating appropriate developmental skills for his age and using the developmental references demonstrating most of the skills at 20 week level. He also demonstrated some emerging skills from the 24 week level. On the motor skills level, he scored at the 25th percentile. The report found at Tab C-21 by the neonatalogist indicates that developmentally, D.S. is performing appropriately for his age. His neurological exam was normal. He was doing quite well with excellent growth with development appropriate for his age. [41] The therapy service notes from the Regina Qu’Appelle Health Region found at Tab C-23 are dated July 7, 2008. At this time, he was 16 months of age and had been with the foster family for two months. He was referred for therapy on concerns that there might be some developmental delay. He appeared to be functioning at the 16 to 18 month level on motor skills. His other skills, fine motor adaptive, were mostly at the 11 to 12 month level. It appeared that he may have hearing problem. [42] K.S.K.S. testified that she was the current foster parent for N.S. and D.S. When the children came back into care in May of 2008, she met N.S. Ms. K.S. describes N.S. as challenging girl, not sure of herself and sometimes aggressive. She does report that N.S. has strong personality and that she enjoys playing with age appropriate toys. She indicated that N.S. is not comfortable yet at her home and wants to be with her parents. [43] Ms. K.S. testified that when D.S. first came to her, he was going through withdrawal and was first on morphine and then phenobarbital for period of time. She indicated that the parents visit often and consistently and that the visits with the parents were going well. She indicated that when D.S. first came into her care, he was blank, had little expression or rarely smiled and he needed lot of people to hold him and respond to him. She indicated he was withdrawn. She felt his speech was delayed although his gross motor skills were good. She indicated that D.S. was joy to be with and that he was very busy, loves to take apples and milk and is doing everything he should so at this age. [44] The mother H.H., although present in court and part of the proceedings, declined to testify herself or call any evidence or cross-examine any witnesses. [45] The father testified that he was doing well on the methadone program and was staying away from drugs. He indicated that at the present time he was living in two story house with his father on the […] Reserve. The house has two bathrooms, four to five bedrooms and two living rooms as well as big yard and toys for children. The […] Reserve has approximately 2,000 people and has school, daycare, store and programs whereby he can get his grade 12 equivalency. The father indicated that he wanted an education. He testified that the daycare for the children was near the school and had lots of staff, one staff to two children. The school had grades kindergarten to grade 12. There was also health centre at the Reserve with dentist coming out as well as store and gas station and arcade. The Band Hall runs programs for children and the Southey RCMP is the police force. He hopes to continue in the methadone program and slowly wean himself off the program by taking lower doses. He indicates at the present time he does not have any cravings for drugs and hasn’t had any for long time. The father acknowledged that N.S. was lactose intolerant but indicates that she has gotten over it. He hopes to take the children home with him. He indicates he will not expose them to violence or drugs. He also wants H.H. to get treatment for her addictions and will continue the relationship with her if she is treated but not if she is untreated and using drugs. At the present time H.H. stays with him at the […] Reserve. Exhibit D-1 was filed which is letter dated October 20, 2008 which is letter of support for the father and the children from the Band Chief and Administration. [46] In cross-examination, the father admitted that he agreed to number of temporary orders. He indicated that he did not complete anger management but did Parenting with Focus on Fathers. He also admitted missing some days at the methadone clinic and indicated that he has complied with the court orders not to expose the kids to drug use and has never exposed the children to drug use. He did, however, admit that he tested positive for cocaine after the children were returned to him in September of 2007. He indicated that cocaine could be mixed with marijuana and that he admitted to Joe Vandale that he had slipped up on cocaine. He also admitted missing appointments at the methadone clinic in December. However, he was adamant that he did not use drugs while the children were in his care and indicates that he will not use cannabinoids if the children are returned. The father admitted that his screens for cannabinoids in the past had been positive but indicates that he is not tempted to use drugs if H.H. is using drugs. With respect to treatment, he indicated that H.H. is scheduled to go for addictions treatment and that he would be attending addictions treatment after H.H. completes her program. He confirmed that he has cancelled treatment several times. He also confirmed that he took A.A. meetings couple of times during the last six months but is not regular at N.A. or A.A. He stated that he could stay away from cannabinoids if the children are placed in his care. He also confirmed that he is still in relationship with H.H. who is expecting another child on or about April 17th. He also confirmed that if H.H. fails to go to treatment then he would not live with her and she would have to live with her mom. He denied ever being aggressive toward or assaulting H.H. despite what H.H. said about him. He confirmed that H.H. wanted the children to be in his care. He also said that while the children were in his care from time to time, he cared for them lots. He acknowledged that parenting the children on full time basis was little different that visiting them but that he has the support of his father and grandmother. He indicates that the K.S.’s have put the children on pattern and he is willing to maintain that pattern. He proposes that if he were to receive the children, he would enrol D.S. in daycare and N.S. in school and that he had already made arrangements to enrol N.S. in school. He confirmed that H.H. was to attend at MACSI in Saskatoon at the end of January for 28 day stay. He proposes to go there after that. [47] On re-examination the father indicated that although he had made mistakes in the past and bad choices, he has pushed them to the side and now has supports that he never had before for example from his father. He indicated that he was more focussed now and will do anything he has to do to take care of the children and will work with Social Services in any way. [48] L.S., the father of N.O.S., testified that as single parent he had raised five boys and one girl. His daughter still lived with him at the […] Reserve and was going to school there. He indicated that there were three bedrooms upstairs and two bedrooms downstairs with room for N.S. and D.S. should they be given to their father. He confirmed that at the Reserve there were the facilities mentioned by the father. He indicated that the father was turning his life around and wants his family back and that the Elders on the Reserve would help him do that. He also indicated that the Band supports having the children there and that his sister from Regina works with Aboriginal Family Services and would provide additional support. He indicated that he does not allow any drugs or alcohol in his home. [49] L.S.’s sister testified. She is the father’s aunt. She presently lives in Regina and has been female figure with the father’s family while L.S. was raising his family alone. She works for Aboriginal Family Services as Family Support Worker and Parent Aid. She also worked at safe shelter and for the […] Tribal Council. She indicates that her family is close and she sees the father’s family every week and has on ongoing relationship with him. She indicates that the father is good with the children and would often bring the children to her. She indicated that the […] Councillors have no tolerance policy for gangs and she has no concerns if the children are returned to the father. She confirms that L.S.’s house has no alcohol and drugs policy. She confirmed that parenting classes and treatments would be desirable and as well as developing parenting skills and that she was urging the father to take the programs. POSITION OF THE PARTIES [50] The Ministry takes the view that the children are in need of protection under s. 11 and that an appropriate order should be made under s. 32. The Ministry argues that nothing has changed and raises the concern that nothing will be different if the children are given back to the father. The Ministry indicates that there will continue to be likelihood of physical harm in the family which would affect the children’s mental and emotional involvement. They also point to domestic violence. The Ministry argues that s. of the Act is paramount over s. and that this is case where the care that the father is able to provide to the children falls below the minimal community standard. The Ministry points to N.O.S.’s criminal record and history of police intervention regarding domestic violence and criminal lifestyle on his part as well as his drug dependency. They raised the question of what would be different on this occasion. They questioned H.H.’s ability to act as parent if there is domestic violence and point to the disclosures by H.H. regarding domestic violence and bruising which was observed by the workers. The Ministry argues that there is circumstantial evidence as well as disclosure by H.H. as well as police records that indicates history of domestic violence. The Ministry points to no programming being taken with respect to domestic violence and indicates there would be danger to the children to remain at home. [51] The Ministry also points to the positive drug screens with respect to the father and the parties’ history of intravenous drug use. They point to the fact that H.H. overdosed on methadone in 2008 and both parents binged in September of 2007. They point out that between September of 2007 and May of 2008 this was the longest period of parenting done by the parties and there were difficulties with respect to screens and slips by the parties. The Ministry indicates that the father was defensive about his addictions and made repeated excuses about his failure to complete programming. This included twice attending MACSI but not following through as well as sporadic attendance at N.A. and A.A. The Ministry points out that H.H. has promised to attend programs as well but has not. Regarding the father’s promise that he will not use cannabis, the Ministry indicates that L.S. does not control the father’s behaviour outside of his home. They acknowledge that L.S. has been support for the father but why would this time be any different if he has been support in the past. In short they argue that L.S. cannot guarantee that N.O.S. will not use drugs. [52] The Ministry points to nine PSA’s and several orders all with the goal of keeping the mother and father on the road to taking programming. They point to the fact that Joe Vandale has testified that they do not appear to be following up on their programming and the Ministry feels that their failure to follow through is long standing pattern of behaviour to which they will revert once the children are in their care. The Ministry argues that they had these patterns before and knew the risk of using and went back to it. The Ministry indicates that there must be an indication that the parents have altered their behaviours and that the children will no longer be in need of protection and that reasonable plans exist for change. [53] The Ministry proposes that six month order be granted and that the order include wording that it is for the purposes of long term planning. They make the argument that if this wording is not attached then there would be another trial on more permanent order later on. Social Services indicates that if the children are to be returned to the father that the October 2007 order is starting point for conditions that might be put on the father. [54] Mr. Campbell, on behalf of the father, indicated that many of the problems which the parties had were well known when the children were returned to the care of the parents. This included drug involvement, criminal record and other risk factors which the Ministry now seeks to use for its argument. The father’s counsel argued that everyone who checked on the children said that they were looking good and were dressed well. He indicated that the father did nothing wrong between September of 2007 and May of 2008 other than slip for cocaine. He also indicated that H.H. was not sophisticated woman and that despite the police reports there was no evidence of domestic violence. This report did not provide any details. He indicated that the record for domestic violence ends in 2006 and that under oath, the father denied any domestic violence. He argued further that there was no evidence of domestic violence having any impact on the children. He also pointed out the foster mother who testified indicated that the parent’s home was nice. He argued that the level of parenting did not fall below the minimal standard and that the Ministry had jumped the gun in not continuing to work with the parents. He indicated that Ms. Murray did not work with the parents after the matter went forward and that the Ministry should continue to work with parents. [55] He indicated that the father came to court and should be given lot of credit for being receptive to any direction with respect to the children. He stated that the father has tried to follow through on programming but has an explanation of why he could not; in one case an eye injury and another case lack of funding for daycare. He indicated there was no suggestion that the father was not sincere in attending programming and that this was not case of avoiding. He indicated that the Ministry has an onus of following up on the father to make sure that he attends and completes the programs. Counsel for the father made the further observation that after the order of September 2007 expired, there was no further application to re-apprehend or extend during the time that the children were being parented by N.O.S. until some time later. When the children were finally apprehended it was not because of any domestic violence. The implication is that all was well or something would have been done. He also indicated that the father’s family at the Reserve is supportive and that if an order is made giving the children back to the father that the condition be that he reside in the home of L.S. He indicated that the father is over the hump in terms of his problems. Counsel for the father indicated that any order that is made should not include any reference to long term planning. [56] The mother H.H. declined to make any argument to the court other than that she was supporting the case for the father. She indicated that she loved the children, that she has addictions and that she is dealing with them and learning from them. [57] Counsel for the Ministry asked that draw an adverse inference from H.H. not testifying in that any allegations against her are uncontroverted. [58] Section 11 of the Act defines when child is in need of protection. For the purposes of this matter, s. 11(a)(i), (ii), (v) and (vi) are germane. They read as follows: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; ... (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; ... Additionally, ss. and of the Act are relevant. Additionally, s. 37(1)(a) and (c) are relevant as well as s. 37(4)(a). These sections read as follows: The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. Where person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of child, the person or court shall take into account: (a) the quality of the relationships that the child has with any person who may have close connection with the child; (b) the child’s physical, mental and emotional level of development; (c) the child’s emotional, cultural, physical, psychological and spiritual needs; (d) the home environment proposed to be provided for the child; (e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (h) the effect on the child of delay in making decision. 37(1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or be placed in the custody of his or her parent; ... (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; ... [59] The guiding case in respect of the principles which must apply is found in Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Sask. Q.B.). Paragraph 41 of this case per McIntyre J. reads as follows: [41] In determining whether child is in need of protection pursuant to any of the grounds enumerated in s. 11, Baynton J., in Saskatchewan (Minister of Social Services) v. S.E. and E.E., 1992 CanLII 8071 (SK QB), [1992] W.W.R. 289 (Sask. U.F.C.), at p. 296 states: “...(T)he issue is not whether the children might be better off, or happier, or obtain better upbringing in the care of other ‘parents’ than with their natural parents. If that were the criterion for protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society ...” [60] Further paragraphs of this case are germane, namely 43(a) and (b), 44 to 53 as follows: [43] Having determined the children to be in need of protection must move to the second step of determining the appropriate order under s. 37. Section 32 requires the court to approach the task as follows: (a) In determining what is appropriate the court must consider the best interests of the child within the meaning of s. and may consider the recommendations of the officer. These considerations must take place in the context of the objective of the Act as enumerated in s. 3. (b) The court must first determine whether any of the options in s. 37(1) is appropriate, that is: (i) returning the children to the parents with conditions attached if need be, including supervision by the Minister of up to one year; (ii) placing the child in the custody of person having sufficient interest; or (iii) committing the child to the custody of the Minister for up to six months. [44] In determining whether any of the options in s. 37(1) is appropriate number of principles can be taken from various reported decisions and the statute itself, keeping in mind that the decision must be reached in the context of determining what is in the best interests of the children. [45]1.[sic] The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. (R.v. Saskatchewan (Minister of Social Services), 1974 CanLII 959 (SK QB), [1974] W.W.R. 388, at p. 393 (Sask. Q.B.)) [46]2.[sic] Section 37(4) does not declare that only the best interests of the child shall be considered. The implication is that the court may be mindful of other matters. As well, the list in s. is not exhaustive in determining the best interests of the child. (Saskatchewan (Minister of Social Services) v. R.G. (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (U.F.C.)) [47]3.[sic] Any determination made must be in the context of the objective of the Act, set out in s. 3. (M.A.C. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81; 46 R.F.L. (3d) 174 (Q.B.)) [48]4.[sic] The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. [49]5.[sic] The court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents (Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of Social Services) v. M.L. and M.L.M. (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of Social Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in ss. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. [51] In making an assessment as to whether an order under s. 37(1) is appropriate the court must do so on the basis of the evidence before it. As noted by the Court of Appeal in Saskatchewan (Minister of Social Services) v. A.J. and C.J., supra, at p. 251: “However, the following is self-evident. Where, as here, children have been placed into the temporary custody of the Minister, and the parents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in the home which have resulted in the children being taken from the parents ...” [52] Counsel for the department said “good intentions are not sufficient” and relied upon the following observations of the Manitoba Court of Appeal in Children’s Aid Society of Winnipeg v. Redwood (1980), 19 R.F.L. (2d) 232 (Man. C.A.), at p. 234: “... The test is: what is in the best interests of these children, and not whether the mother has merely seen the light and is now prepared to be good mother, while in the past, on her own admission, she was not such. The test is whether the mother has in fact turned new leaf and whether she is now able to give to the children the care which is in their best interests. Good intentions are not sufficient. As the chief justice of this court, speaking in an unanimous decision in another case, stated so ably: ‘to give this mother another chance is to give these children one less chance in life.’” [53] The foregoing comments must be applied with caution. agree that good intentions by themselves are not sufficient. The question in every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change can occur within the context of an order under s. 37(1) such that it is in the best interests of the child to make such an order. Given the objective of the Act as set out in s. 3, permanent committal does not ipso facto follow just because the parent has not yet turned that new leaf. [61] The first issue is whether N.S. and D.S. are in need of protection. am guided by the E.K.S. case (supra) and s. 11 of the Act. am also mindful of ss. and of the Act and the interplay of those principles. [62] In my view, the children, if they are returned to N.O.S., will not receive at this time a level of parenting that is above the minimal standard that will be tolerated by our society. have reviewed the evidence as whole and specifically reviewed the evidence respecting the emotional, social and developmental status of N.S. and D.S. Both children have some difficulties which must be managed carefully to ensure their continued growth and improvement. I am not satisfied that either of N.O.S. and H.H., given their own difficulties, can provide that management based on my comments which follow. [63] The Ministry has tendered substantial evidence of criminal behaviour on the part of N.O.S. and police involvement in the life of H.H. The criminal behaviour of N.O.S. in and of itself would not disqualify him from parenting the children if the children are not exposed to that behaviour. In this case, there is only risk that the children may be exposed to such behaviour in the future. There is no evidence that N.O.S. has done so in the past. [64] The evidence of domestic violence is equivocal. N.O.S. denies domestic violence. am not satisfied that there is significant domestic physical violence between N.O.S. and H.H. The Ministry argues that the failure of H.H. to testify should result in an adverse inference in favour of there having been domestic violence. will not make such an inference. On the evidence of her lifestyle and confirmed relapse into addiction the evidence that N.O.S. inflicted bruises on H.H. is weak. There is evidence, however, of consistent fighting and disruption of their relationship in the past. This has been described as an on and off relationship. I find that the relationship is unstable. This would be considerable stress on the parents and their relational struggles would in my view along with their struggles in other areas detrimentally impact their ability to care for the children and provide minimal level of care. [65] The parents’ addictions continue to loom large in their lives and relationship. While both H.H. and N.O.S. are to be commended for their progress in this area, I am not convinced that the father’s addiction has been stabilized and is fully under control. There have been slip-ups and missed appointments at the methadone clinic. Although Mr. Vandale testifies that each slip-up is learning experience for N.O.S., in my view the cost and effects of such learning should not be visited on the children. H.H. on the evidence is even less advanced in dealing with her addictions than N.O.S. despite her best intentions. [66] The evidence as whole indicates good intentions but not the personal strength to take and complete programming whether offered by the methadone clinic, agreed to on PSA’s or ordered as condition by the court. This is troubling because if the parents don’t have the strength to achieve this, there is question as to whether they have the personal strength to provide the minimal care for these children required by law on day to day basis. [67] Although N.O.S. may be on the cusp of properly managing his addiction problems, find that he is not quite there yet. Further time will tell. Both parents are to be commended for their plans to take treatment immediately. [68] If the children are returned to N.O.S. I find that the children are likely to suffer physical and emotional harm if they continue to be exposed to the present addictions struggles of N.O.S. and H.H. who proposes to live with N.O.S. as they both attempt to get their addictions under control and as well their relational struggles. [69] Although L.S. has offered to provide drug and alcohol free home for N.O.S. and the children, in my view L.S. has, at the moment and it appears has had in the past, limited influence over his son N.O.S. respecting his addictions. Although L.S. can continue where possible to support N.O.S., am not satisfied that at the moment his support will allow N.O.S. to provide the minimal standard of parental care required given the evidence as whole in the absence of N.O.S. having done something further to deal with his addictions. [70] While based on the evidence as a whole the parents have had successful visits with the children while in care and had a period of some months where the children were apparently looked after by them, this does not convince me that they belong with N.O.S. The day to day stress of parenting is substantially different than visits of several hours. As well, at the moment the evidence as a whole does not convince me that the children would receive consistent care month after month despite one past success in doing so. [71] I therefore find that N.S. and D.S. are children in need of protection and should, at this point, not be returned to N.O.S. or H.H. [72] In my view, the evidence as whole indicates that the children should, given my earlier comments, not be placed in the custody of the parent under s. 37(1)(a). On the whole, the children are best placed with the Ministry for six months. [73] Although the Ministry seeks a six month order with the additional notation that it is for the purposes of permanency planning, I am not inclined to make such an order. [74] six month order is premised on reasonable prospect of change by the parents within reasonable time. am hopeful that both parents are sincere in continuing to work on their issues in the near future. In the past, neither H.H. or N.O.S. have followed through with promises and agreements respecting programming to deal with their issues. There has been lots of talk but little or no action. The six month order will give the parents the opportunity to demonstrate that they are serious about changing their lives so that their children can be returned to them. Although admittedly the Ministry has provided or attempted to provide substantial resources to N.O.S. and H.H. in the past these resources have ceased after the last apprehension as result of the Ministry’s decision to do permanency planning. This order will give the Ministry and the parents further opportunity to collaborate to try to bring about positive changes in the parents’ lives. expect that Ministry personnel will work diligently in that regard. It is worth the effort to help this family. [75] There will therefore be an order that the children N.S. and D.S. be placed in the custody of the Minister for period of six months. [76] The parents, H.H. and N.O.S., shall continue to provide drug screens on at least weekly basis or at the request of the Ministry to the Ministry. H.H. and N.O.S. shall each, during the term of this order, attend and successfully complete an addictions program and provide to the Ministry evidence thereof. Additionally, the conditions found at paragraph of the October 2, 2007 supervision order shall be made part of this judgment and the parents shall be subject to those conditions. J. R. K. Ottenbreit","The Ministry of Social Services seeks a 6 month order pursuant to s. 37(c) of The Child and Family Services Act with respect to the two children, NS is four years old and DS is two years old. DS was apprehended by the Ministry when he was born. Both NS and DS were the subject of a consent order for 6 months in October 2007. Both children have been in care for most of their lives. The Ministry requests a six month order with a proviso that it be for the purposes of allowing the Ministry to make long term placement plans for both children. The mother HH is not seeking a return of the children to her but supports the position of NOS, the father, who ask that the children be returned to him in his care. HELD: 1) If the children are returned to NOS, they will not receive a level of parenting that is above the minimal standard that will be tolerated by our society. Both children have some difficulties which must be managed carefully to ensure their continued growth and improvement. 2) Given the difficulties the parents struggle with, they can not provide that management. The Ministry has tendered substantial evidence of criminal activity on the part of NOS and police involvement in the life of HH. The criminal behaviour of NOS in and of itself would not disqualify him from parenting the children if the children were not exposed to that behaviour. There is a risk that the children may be exposed to such behaviour in the future. There is no evidence that NOS has done so in the past. The evidence of domestic violence is equivocal. There is evidence of consistent fighting and disruption of their relationship in the past. The Court finds that the relationship is unstable. The parents' addictions continue to loom large in their lives and relationship. The Court is not convinced that the father's addiction has been stabilized and is fully under control. There have been slip-ups and missed appointments at the methadone clinic. This should not be visited on the children. HH is even less advanced in dealing with her addictions than NOS. The evidence indicates good intentions but not the personal strength to take and complete programming whether offered by the methadone client, or ordered as a condition of the court. This is troubling because if the parents don't have the strength to achieve this, there is a question as to whether they have the personal strength to provide the minimal care for these children required by law on a day to day basis. 3) If the children are returned to NOS, they are likely to suffer physical and emotional harm. While the parents have had successful visits with the children while in care and had a period of some months where the children were apparently looked after by them, this does not convince the Court that they belong with NOS. The day to day stress of parenting is substantially different than visits of several hours. The evidence does not convince the Court that the children would receive consistent care month after month despite one past success in doing so. The children are in need of protection and should not be returned to NOS or HH. 4) Although the Ministry seeks a 6 month order with the notation that it is for the purposes of permanency planning, the Court is not inclined to make such an order. A 6 month order is premised on a reasonable prospect of change by the parents within a reasonable time. The parents have this opportunity to demonstrate that they are serious about changing their lives so that their children can be returned to them.",d_2009skqb44.txt
188,"THE COURT OF APPEAL FOR SASKATCHEWAN PETER PATRICK and YVONNE PATRICK RESPONDENTS (Plaintiffs) and GEORGE HAGBLOM, H.G.L.M. ENTERPRISES LTD. and GEORGE HAGBLOM MASONRY LTD. APPELLANTS (Defendants) CORAM: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Wakeling The Honourable Madam Justice Gerwing COUNSEL: Mr. N. Stooshinoff for the Appellants Mr. G. Richards for the Respondents DISPOSITION: Appeal Heard: June 11, 1996 Appeal Dismissed: June 11, 1996 (orally) Reasons: June 21, 1996 On Appeal From: Q.B. No. 4252/92 Appeal File: 2106 Reasons by: The Honourable Mr. Justice Vancise In concurrence: The Honourable Mr. Justice Wakeling The Honourable Madam Justice Gerwing VANCISE J.A. (Orally) The appellants George Hagblom and George Hagblom Masonry Ltd. apply to adduce fresh evidence and to amend the statement of claim in the within action. The appellants contend that they instructed the solicitor who was acting for them at the time of the trial (and who is not the solicitor on the appeal) to call certain expert evidence dealing with the causation of the fire which destroyed the respondent's residence. The appellant's solicitor called no expert evidence concerning either the proper construction of the chimney, which was alleged to be faultily constructed, or the cause of the fire. The tests for the admission of fresh evidence on appeal are well known and are set out in R. v. Palmer, 1979 CanLII (SCC), [1980] S.C.R. 759; R. v. Stolar, 1988 CanLII 65 (SCC), [1988] S.C.R. 480; R. v. Osiowy and Osiowy (1989) 1989 CanLII 5146 (SK CA), 80 Sask. R. 14 (Sask C.A.). The appellant contends that the expert evidence which he wishes to tender is relevant, credible and if believed could reasonably, when taken with all the other evidence, be expected to have affected the result. He candidly concedes however that, with due diligence it could have been adduced at the trial. It is the appellant's contention that in the circumstances of this case the interests of justice require that the rule of due diligence should not be strictly applied. We are all of the opinion that the evidence was clearly available, clearly contemplated by the parties and for whatever reason not called. We are not persuaded that the application to adduce fresh evidence in this case should be allowed. 2- The application to adduce fresh evidence and to amend the statement of defence is denied. Dealing with the appeal proper, we are allo the opinion it must be denied. The standard of review is that as articulated in Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672. We are not persuaded in the circumstances of this case that the trial judge either misapprehended or failed to take into account evidence which was before him in arriving at his conclusion concerning the causation of the fire. There was evidence which, if accepted, would permit the trial judge to make the findings of fact that he did and to award the damages based on those findings. The appeal is dismissed with costs on double Column V, including costs of the motion to adduce fresh evidence.","The appellants applied to adduce fresh evidence and to amend the statement of claim. The appellant's solicitor at the time of the trial had called no expert evidence concerning either the proper construction of the chimney, which was alleged to be faultily constructed, or the cause of the fire. HELD: The appeal was dismissed with costs on double Column V, including costs of the motion to adduce fresh evidence. 1)The evidence was clearly available, clearly contemplated by the parties and for whatever reason not called. 2)The trial judge neither misapprehended nor failed to take into account evidence which was before him in arriving at his conclusion concerning the causation of the fire. There was evidence to permit the trial judge to make the findings of fact that he did and to award the damages based on those findings.",3_1996canlii5007.txt
189,"nan Bankruptcy No. 4700 Estate Nos. 025924 J.C.R. IN THE QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE BANKRUPTCY OF JERRY ABRAHAM GIESBRECHT Jerry Abraham Giesbrecht, bankrupt Anne E. Hardy, for the bankrupt Marla Adams, Deloitte Touche Inc., Trustee JUDGMENT MAURICE J. HERAUF, October 16, 1998 Registrar in Bankruptcy The bankrupt has applied to annul his bankruptcy. Section 181 of the Bankruptcy and Insolvency Act reads as ""(1) Where, in the opinion of the court, receiving order ought not to have been made on an assignment ought not to have been filed, the court may by order annul the bankruptcy."" The bankrupt`s submission is twofold. Firstly thatthe bankrupt received misinformation or had amisunderstanding concerning the effect of an assignment onthe status of potential builders` lien claimants andsecondly the undervaluation of his assets. Along withthose two grounds the bankrupt also asserts that thebankruptcy proceedings are of no value to him. am not going to repeat the facts in detail. The bankrupt submits that he received wrong legal advice concerning the status of the builders` lien claimants. In essence, he states he ""thought"" he was advised that the various subcontractors would not be able to pursue claims against the home he was constructing or against himself. Of course, as it turns out the builders` lien claimantshave status akin to secured creditors and can pursue thebankrupt personally for any deficiency that may arise ifthe home is sold and the proceeds divided among theclaimants. On the other hand, the trustee maintains the bankrupt was repeatedly advised or cautioned that bankruptcy may not effect the majority of his creditors, ie: those relating to the construction of his home. With respect to the value of his assets the bankrupt estimated the value of his unfinished home at $40,000.00. He has since obtained appraisals which place the value at up to $150,000.00. The bankrupt is now eligible to obtain mortgage financing of over $96,000.00. One of the conditions for the financing is that the bankrupt get out of bankruptcy. Hence, this application. It should also be mentioned that prior to bankruptcy the bankrupt attempted to deal with his financial problem through the orderly payment of debts. He also considered proposal post-bankruptcy but found out on an informal basis that it would be defeated. There is likely merit to the bankrupt`s contention that the bankruptcy proceedings have been of no value to him. It also appears from the facts that the majority of creditors, who are secured, would also benefit from the bankrupt`s request being granted. If, as the bankrupt states, an annulment of the assignment would allow him to obtain financing it would likely result in these creditors being paid in full, much more expeditiously than it would otherwise take. Certain of the builders` lien claimants have already commenced an action. There are other actions by secured creditors returnable in Queen`s Bench as early as next week. According to the trustee, the bankrupt has been far from model bankrupt. He has yet to file monthlyfinancial statements and has not made payments as agreed tocover the costs of the administration of the estate. have carefully reviewed the decisions relating to this issue including Re Wale (1997) 1996 CanLII 8275 (ON SC), 45 C.B.R. (3d) 15 (Ont. Gen. Div.) and Re Louis Peter Co. (1988), 67 C.B.R. (N.S.) 176 (Ont. S.C.) Section 181 vests wide discretion in the court when considering an application to annul the assignment. have not been convinced that should exercise this discretion in favour of the bankrupt. The bankrupt met the definition of an insolvent personat the date of the assignment. It would be dangerous toset a precedent which would allow an application like thisto be successful because of circumstances that havetranspired post bankruptcy. An improved financial situation and the ability to pay debts in full should not be used as criterion to launch section 181 application. Having come to this conclusion feel compelled to point out other options to the bankrupt. The bankruptwould be entitled to an automatic discharge on November 15,1998. The onus will be on the bankrupt to comply with therequirements of the trustee in order to qualify for anautomatic discharge. The bankrupt also has the ability to apply for anearly discharge before that time as provided for in section168.1(2) of the Act. Once again the bankrupt mustcooperate with the trustee in order to ensure that he hascomplied with his duties in order to avoid an objectionbeing filed by the trustee. In the end result the application by the bankrupt foran order annulling his assignment is dismissed. Registrar in Bankruptcy","The bankrupt applied to annul his bankruptcy on the grounds that he received misinformation or had a misunderstanding concerning the effect of an assignment on the status of potential builders' lien claimants and because his assets had been undervalued. He also asserted that the bankruptcy proceedings were of no value to him as builders' lien claimants have status akin to secured creditors and could pursue the bankrupt personally for any deficiency that may arise if the home is sold and the proceeds distributed among the claimants. The trustee maintained the bankrupt was repeatedly advised or cautioned that bankruptcy may not affect the majority of his creditors. Subsequent appraisals placed the value of his unfinished home at $150,000 rather than $40,000. The bankrupt was now eligible to obtain mortgage financing but first had to get out of bankruptcy. The bankrupt had attempted an orderly payment of debts prior to bankruptcy and had considered proposal post-bankruptcy. HELD: The application for an order annulling the assignment was dismissed. 1)The bankrupt met the definition of an insolvent person at the date of the assignment. It would be dangerous to set a precedent which would allow such an application because of post-bankruptcy circumstances. An improved financial situation and the ability to pay debts in full should not be used as criteria to launch section181 application. 2)The bankrupt had not filed monthly financial statements nor made payments as agreed to cover the costs of the administration of the estate. The onus will be on the bankrupt to comply with the requirements of the trustee to qualify for an automatic discharge on November 15/98 or an early discharge as provided for in s168.1(2).",e_1998canlii13558.txt
190,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 90 Date: 2013 03 15 Docket: Q.B.G. No. 1356 of 2012 Judicial Centre: Saskatoon BETWEEN: JAMES GLEN RICHARDSON and STEPHANIE ERIN RICHARDSON APPELLANTS (DEFENDANTS) and ROBERT WESLEY DEVLIN HANCOCK RESPONDENT (PLAINTIFF) Counsel: Davin R. Burlingham for the appellants (defendants) Robert Wesley Devlin Hancock respondent (plaintiff), self-represented JUDGMENT GABRIELSON J. March 15, 2013 Introduction [1] This is an appeal from a Small Claims Court judgment dated August 20, 2012. The grounds of appeal listed in the notice of appeal are as follows: a) That the learned Trial Judge erred in failing to weigh necessity and qualification before determining the admissibility of certain opinion evidence tendered on behalf of the Plaintiff. b) That the learned Trial Judge erred in failing to conduct the trial in reasonable and just fashion by denying the Defendants an opportunity to make objections from time to time during the trial. c) That the Learned Trial Judge made palpable and overriding error in interpretation of the evidence and calculation of damages. The Learned Trial Judge found the Plaintiff had proven liability with respect to damaged triple-ply beam, the cost of which was small part of the Claim. The Learned Trial Judge then awarded damages for repair of broken concrete grade beam and for other repairs, in an amount much higher than damages would have been for the triple-ply beam, notwithstanding that liability as to the concrete grade beam was not established at trial. [2] The respondent, Robert Wesley Devlin Hancock (hereafter “Hancock”), purchased house having the civic address 515 Avenue North, Saskatoon, Saskatchewan, from the appellants James Glen Richardson and Stephanie Erin Richardson (hereafter “the Richardsons”), pursuant to Residential Contract of Purchase and Sale (“the contract”) dated July 4, 2007. As part of the contract, the Richardsons completed document entitled “Property Condition Disclosure Statement” (“the disclosure statement”), s. 3(j) of which provided as follows: 3(j) Are you aware of any structural defects in the dwellings/improvements? Answer: Yes some cracking in the house footing on the north side of the dwelling. [3] In accordance with the contract, Hancock took possession of the house in September of 2007. [4] In June of 2010, following large rainstorm, Hancock saw that water was entering the basement of the house. When he investigated the source of the water and removed the interior north wall in the basement, he saw second wall behind the first wall. Behind the second wall he found that large chunk of the concrete footing and concrete grade beam were broken and had slid into the space behind the interior basement wall. When he sought professional’s opinion, he was advised that the appearance of the broken edges of the concrete footing appeared to be indicative of significant passage of time and that the main triple-ply wooden beam (the “wooden beam”) which had sat upon the concrete grade beam was also rotten and would have to be replaced. [5] Hancock entered into contract with Mighty Joe’s Contracting to have the north foundation replaced, including the wooden beam. The contract price was $19,265.40 plus electrical, plumbing, and insulation supplies for total cost of $19,606.74. In November of 2011, Hancock sent demand for payment of these repair costs to the Richardsons who responded indicating they were unaware of any issues beyond what was disclosed at the time of purchase and denied all responsibility for Hancock’s cost of repairs. [6] On February 15, 2012, Hancock commenced an action in the Provincial Court of Saskatchewan Civil Division in which he claimed judgment in the amount of $19,606.74 plus pre-judgment interest and costs. trial was held in Small Claims Court on May 16, 2012. In written decision dated August 20, 2012 (2012 SKPC 132 (CanLII), 403 Sask.R. 171), the Provincial Court judge (Whelan, P.C.J.) held that: (1) there was structural defect in the north basement wall of the house during the time that the Richardsons owned the house; (2) the Richardsons were aware of the seriousness of the defect; (3) the statements made by the Richardsons in the disclosure statement were misleading, and had been relied upon by Hancock to his detriment; (4) in covering the old retaining wall with new interior wall, the Richardsons had converted what was patent defect or one that was readily discoverable into latent defect; (5) the disclosure statement amounted to negligent misrepresentation; and (6) damages in the amount of $18,006.74 together with interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2, from September 4, 2007 to the date of judgment plus costs were awarded. [7] It is from this judgment that the Richardsons have brought this appeal. Jurisdiction and Standard of Review [8] Section 39(1) of The Small Claims Act, 1997, S.S. 1997, c. S-50.11, provides that party may appeal judgment made pursuant to that Act to the Court of Queen’s Bench within 30 days after the date of the judgment. Section 40 of the Act provides that the appeal is in the form of an appeal on the record. Pursuant to s. 42, judge hearing the appeal may allow the appeal and give the judgment that the trial judge should have given, dismiss the appeal, or order that the action be returned to Provincial Court for new trial. [9] The standard of review in respect to appeals brought pursuant to s. 39 of the Act was dealt with in the case of Kitzul v. Ungar (1991), 1991 CanLII 7678 (SK QB), 90 Sask.R. 239, [1991] S.J. No. 24 (QL) (Q.B.), where Maurice J. stated at para. [3] This Court has no power under this section to rehear or retry case; it is limited to correcting errors of law and reversing unreasonable findings of fact. Findings of fact based on the credibility of witnesses are not to be reversed unless the trial judge made some palpable and overriding error which affected his assessment of the facts. The trial judge is in privileged position as trier of fact because he has the benefit of seeing and hearing the witnesses: Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672; [1988] W.W.R. 481; 79 N.R. 334; 64 Sask.R. 6. [10] In the case of Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235, the Supreme Court of Canada referred to the role of an appellate court which would also apply to the appeal before me. At para. 23 that court stated: 23 We reiterate that it is not the role of appellate courts to second- guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with factual conclusion that it disagrees with where such disagreement stems from difference of opinion over the weight to be assigned to the underlying facts. As we discuss below, it is our respectful view that our colleague’s finding that the trial judge erred by imputing knowledge of the hazard to the municipality in this case is an example of this type of impermissible interference with the factual inference drawn by the trial judge. Therefore, will review the trial judge’s decision to see if there are errors of law which should be corrected and to reverse findings of fact only if the trial judge has made some palpable and overriding error which affected her assessment of the facts. Ground No. Did the trial judge err in the admission of expert evidence? [11] Hancock gave notice of intention to call and did call as an expert witness, Joey Aubin of Mighty Joe’s Contracting. Mr. Aubin had investigated the cause of the water inflow and had made recommendations concerning the repairs needed. Mighty Joe’s Contracting completed the remedial work required to repair the foundation and support beams. [12] At trial, counsel for the Richardsons raised an objection in which he submitted that although Mr. Aubin was qualified to give expert evidence concerning the foundation repair, he was not qualified to give expert or opinion evidence in “diagnosing when structural problem occurred”. The trial judge noted the objection and dealt with it in the following fashion: THE COURT: Do you know what? think it would be just simpler if we didn’t didn’t deal with this as qualification of his expertise, hear how it comes out and then we can talk about it in argument. That’s what I’m inclined to do. MR. BURLINGHAM: agree with that, Your Honour. THE COURT: Okay. All right. So that means that am qualifying you to expert or to testify in the area of foundations and structural repair. All right. And we’ll turn it over to Mr. Hancock to lead his evidence. Not lead but pursue his chief. [13] Counsel for the Richardsons referred the court to the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.R. 9, 114 D.L.R. (4th) 419; and Rieger v. Burgess, 1988 CanLII 209 (SK CA), [1988] W.W.R. 577, 66 Sask.R. (C.A.). Counsel submitted that until such time as the trial judge has concluded that the witness was properly qualified in respect to specific area of expertise, the witness should not have been allowed to give opinion evidence in that area. Counsel submitted that in her trial decision at para. 34, the trial judge accepted Mr. Aubin’s evidence as to the rotten condition of the wooden beam and also his estimate as to how long structural problem had existed. The trial judge stated in her decision at paras. g. While there was uncertainty about the timing of the broken concrete grade beam, Mr. Aubin testified that rotten triple-ply beam had been problem for over ten years. ... accepted the evidence of Mr. Aubin regarding his observations and his opinion regarding the seriousness of and the length of time that the structural problem had existed. While the concrete grade beam may not have been broken when Mr. Richardson looked over the five foot retaining wall, found that the triple-ply beam was rotten and observable as such. [14] In the classic case of R. v. Mohan, supra, the Supreme Court of Canada laid out the following requirements for the admission of expert evidence at page 20: Admission of expert evidence depends on the application of the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; (d) properly qualified expert. At para. 25 the court also considered what constituted properly qualified expert: [25] Finally the evidence must be given by witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. [16] I am satisfied from my review of the transcript beginning at pages 91 to 96, that Mr. Aubin had the necessary experience in respect to foundation and structural repair that he could give expert evidence as to not only the type of structural repair but also the need for structural repair. Notwithstanding counsel’s objection to Mr. Aubin’s ability to diagnose when structural repair occurred, once qualified as an expert in the area of foundations and structural repair, Mr. Aubin could testify as to the nature of the foundation’s problems, including the wooden beam. The cause of the failure of foundation is not such specialized field as to need expertise beyond that of someone who is experienced in investigating, diagnosing and repairing foundations. Mr. Aubin had many years of experience in doing so. This is not case such as that referred to in Rieger v. Burgess, supra, where evidence of special form of injury known as post-concussive syndrome was found to be beyond the expertise of general surgeon even though he had some additional courses in trauma and orthopaedic surgery. [17] It must also be noted that Mr. Aubin testified not only as an expert witness but also as the person who carried out the investigation and repair of the foundation, including the wooden beam. As such, he was entitled to give evidence as to what he saw and did. Clearly he could give evidence as to an observation that he found that the wooden beam was rotten. He referred to the beam as “extremely rotten”. (page 101, transcript). He stated that to be rotten to that extent, “we’re talking 20 years of exposure. There’s no doubt in my mind.” (page 107, transcript). There was no evidence that something had happened which could have caused the wooden beam to become rotten or to fail in the years between when the house was sold by the Richardsons to Hancock (2007) and the time that the damage was discovered (2010). [18] I am satisfied that Mr. Aubin was an expert who was properly qualified by virtue of his years of experience and that the trial judge was entitled to accept his evidence as to the state of the foundation and how long it had been in such a state. Accordingly, I dismiss this ground of appeal. Ground No. Did the trial judge conduct the trial in reasonable and just fashion? [19] Counsel for the Richardsons submitted that the trial judge failed to allow the Richardsons’ counsel to register objections and also that the trial judge gave assistance to Hancock throughout the trial. Counsel submitted that the trial judge’s actions were improper and gave rise to reasonable apprehension of bias. Counsel referred the court to the cases of Brophy v. Hutchinson, 2003 BCCA 21 (CanLII), 27 C.P.C. (5th) 14; Vasdev v. Décor Home Enterprises Ltd., 2012 BCSC 420 (CanLII), [2012] B.C.J. No. 572 (QL); James v. Canada (Minister of National Revenue M.N.R.) (2000), 266 N.R. 104, [2000] F.C.J. No. 2135 (QL) (F.C.A.); and Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] S.C.R. 303. [20] Counsel for the Richardsons referred to four instances which counsel submitted were indicative of the trial judge’s bias. They were as follows: (a) At page 44, beginning at line 25: MR. BURLINGHAM: address the Court, Your Honour, he’s getting into speculation here. THE COURT: I’m going to let him continue. Thank you. MR. BURLINGHAM: Your Honour. THE COURT: He’s only really saying what we’re all wondering. Who put it there. And I’m going to let him continue, Mr. Burlingham. MR. BURLINGHAM: But THE COURT: can sift out what is not evidence and what is. MR. BURLINGHAM: To just going forward, Your Honour, am permitted to make objections to the plaintiff’s testimony? THE COURT: Certainly. (b) At page 53, beginning at line 21: MR. BURLINGHAM: Yes, it’s all contentious. This is do object to the hearsay being entered here. Can just note for the record also, with the greatest respect, it the Court is asking Mr. Hancock an awful lot of questions and it seems to be ensuring that all of this evidence gets in with the maximum possible elaboration. confess have not have not been in trial before with self-represented litigant. This is new to me. haven’t done this before but this this seems like something need to object to which is that the court is leading to ensure every bit of the evidence making sure he gets in everything. THE COURT: think you’re incorrect about that. MR. BURLINGHAM: Thank you. THE COURT: indicated at the outset that would ask questions by way of clarification. MR. BURLINGHAM: But this is what it seemed like THE COURT: But your objection is noted. MR. BURLINGHAM: But just my objection to clarify to clarify my objection, it seems like the Court is doing the examination-in-chief here, not just clarification but that’s with the greatest respect and have not done this type of trial before. (c) At page 77, beginning at line 10: MR. BURLINGHAM: Just answer my question. You didn’t know how big the crack was. THE COURT: He is answering your question. MR. BURLINGHAM: With respect, Your Honour, this THE COURT: Answer the question, please, sir. MR. BURLINGHAM: Just can make my can make my point? THE COURT: No, he’s going to answer the question. MR. BURLINGHAM: Objection. THE COURT: You have tendency to interrupt him. want to hear him fully. MR. BURLINGHAM: want to make my objection about that THE COURT: You made your objection. Answer the question. MR. BURLINGHAM: haven’t yet. THE COURT: Mr. Burlingham, that’s enough. Answer the question. (d) At page 78, beginning at line 14: MR. BURLINGHAM: If could just say what was trying to say, Your Honour. THE COURT: No. Just move on. You’re being very argumentative. Move on, please. You’re not here to argue with the Court, you’re here to get the truth out. Just proceed with your cross-examination. MR. BURLINGHAM: do have an objection would like to state for the record. THE COURT: Move on, Mr. Burlingham. Move on. know what your objection is. Go forward. MR. BURLINGHAM: haven’t stated it yet. THE COURT: We’re adjourning until 2:00 p.m. [21] In Miglin v. Miglin, supra, the Supreme Court outlined the test when it is alleged that the trial judge was biased. At para. 26, the court stated: 26 The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is whether reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to reasonable apprehension of bias: .... finding of real or perceived bias requires more than the allegation. The onus rests with the person who is alleging its existence .... As stated by Abella J.A., the assessment is difficult and requires careful and thorough examination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties. We see no reason to interfere with the Court of Appeal’s assessment of the record, nor with its conclusion that although the trial judge’s comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish reasonable apprehension of bias. [22] There is strong presumption of impartiality on the part of trial judge. In the case of Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] S.C.R. 259, at para. 59, the court stated: 59 ... As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify finding that the judge must be disqualified. [23] In the case of Sloboda v. Sloboda, 2007 SKCA 15 (CanLII), [2007] W.W.R. 440, the Saskatchewan Court of Appeal also reviewed the law regarding trial unfairness in the civil context. At para. 54, the court stated: 54 ... It is clear from the case law that trial judges do not rest mute. They are entitled to, and must, seek appropriate clarification and give direction and, in certain cases, disclose tentative conclusions as means of ensuring proper understanding of the case. [24] It must be remembered that this was small claims proceeding and that Hancock was self-represented. The somewhat unique nature of small claims proceedings where often one or both of the parties are self-represented, was aptly described by Preston J. in the case of Garry v. Pohlmann, 2001 BCSC 1234 (CanLII), 12 C.P.C. (5th) 107 at para. 52 The frequency of the trial judge’s interventions and the tone that he adopted in some of his statements lead to some concern. However, the proper test is whether his conduct denied the defendant fair trial or gave rise to reasonable apprehension of bias as that term is defined at law. Those questions must be answered in the context of the facts of the particular case. In small claims cases when litigants are unrepresented some will require more direction than others; sometimes that direction will have to be more forceful than at others; some litigants will require more assistance than others. The decisions concerning the manner in which individual proceedings are conducted are best left to the trial judge. The questions for court on an appeal of this nature are questions of trial fairness and the reasonable apprehension of fair-minded persons concerning the impartiality of the tribunal. These questions are to be answered upon an examination of the proceedings as whole. [25] In my opinion the trial judge’s comments and interventions did not go beyond the nature of a legitimate attempt to ensure that all of the evidence regarding the matters at issue was before the court and was of sufficient clarity so that the trial judge could understand it. As Hancock was self-represented, more questions of him were required than may have been appropriate or necessary in traditional civil trial. However, in my opinion, the Richardsons have not met the high onus of establishing that reasonably informed person would have an apprehension of bias on the part of the trial judge or reasonable belief that they received an unfair trial, would therefore dismiss this ground of appeal. Ground No. Did the trial judge err in the calculation as to damages? [26] Counsel for the Richardsons submitted that notwithstanding that the trial judge only found that the wooden beam was rotten and observable as such, that she awarded damages for all of Hancock’s losses, including the cost of repair of the cement foundation. Counsel referred to para. 34 of the trial judge’s reasons for decision where she stated the following: ... While the concrete grade beam may not have been broken when Mr. Richardson looked over the five foot retaining wall, found that the triple-ply beam was rotten and observable as such. Mr. Richardson constructed new walls in the basement, covering the old wall left in place on the north wall. In doing so he concealed structural defect. [27] find counsel’s submission in this regard to have no basis. The cause of action in this case was one of negligent misrepresentation. The trial judge found that the Richardsons were aware of structural defect which they covered by retaining wall, thereby converting patent defect into latent defect. The trial judge made finding of both fraudulent and negligent misrepresentation and her findings in this regard have not been challenged. [28] In cases of fraudulent misrepresentation, the proper measure of damages is that amount of money required to put the plaintiff in the position that the plaintiff would have been occupied not if the statement had been true but if the statement had not been made. See S.M. Waddams, The Law of Damages, 2nd ed., looseleaf (Toronto: Canada Law Book, 2009) at 5-19, para. 5.460. [29] In this case, had the state of the foundation and/or the wooden beam not been covered by the interior wall built by the Richardsons, the defect in the foundation, which included not only the rotten wooden beam, but also the cracks in the foundation, could have been discovered by Hancock or by his property inspector. Hancock may then have elected not to proceed with the purchase contract or alternatively remedied the defect before the wall collapsed inward. There is no evidence that the amount of work done was not necessary to repair the damage done when the foundation caved in and water entered the basement. [30] In my opinion, the trial judge made no palpable and overriding error regarding the calculation of damages and I would therefore dismiss this ground of appeal as well. Conclusion [31] This appeal is dismissed with costs of the appeal to the respondent. J. N.G. GABRIELSON","The appellants appealed a small claims judgment. The judgment had found the appellants liable for damages after the respondent, who had purchased a house from the appellants, discovered that water was entering his basement. When the respondent investigated the source of the water, he removed the interior wall of the basement and discovered that there was a second wall behind the first one. He also discovered that a large chunk of the concrete footing and concrete grade beam were broken and had slid into the space between the interior basement wall. The respondent obtained a professional opinion that suggested that the problem had been there for a significant period of time and that the wooden beam that sat on the concrete grade beam was rotten and would have to be replaced. The respondent was awarded judgment in the amount of the repair. The appellant appealed on the basis that the trial judge should not have considered the respondent's expert's opinion about the age of the defect, that the trial judge had crossed a line in assisting the self-represented plaintiff at the trial and that the trial judge erred in calculating damages. HELD: The appeal was dismissed. The respondent's expert was qualified as an expert concerning foundation repair and had the necessary experience to give expert evidence on the type of structural repair and the need for structural repair. Once qualified as an expert in the area of foundations and structural repair, he could testify on the nature of the foundation's problems, including the wooden beam. The witness was also the person who actually carried out the repair to the foundation and was entitled to give evidence on what he saw and did. The witness was properly qualified by virtue of his years of experience and the trial judge was entitled to accept his evidence as to the state of the foundation and how long it had been in such a state. The trial judge's intervention and comments to the appellant's lawyer at the trial did not go beyond the nature of a legitimate attempt to ensure that all of the evidence regarding the matters at issue was before the Court with sufficient clarity to allow the trial judge to understand it. The cause of action in this case was negligent misrepresentation. The trial judge found that the appellants were aware of the structural defect and had covered it up. The proper measure of damages is the amount of money required to put the plaintiff in the position he would have occupied if the negligent misrepresentation had not been made. In this case, the judge made no palpable or overriding error in calculating damages at the amount it cost to fix the foundation.",d_2013skqb90.txt
191,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 454 Date: 2005 10 25 Docket: Q.B. No. 753/2004 Judicial Centre: Prince Albert BETWEEN: LANI RAE ROBERTS and 627089 SASKATCHEWAN LTD. carrying on business as “E MAUTO BROKERS 1999” and KELLY EISWERTH Counsel: John D. (Jack) Hillson for the plaintiff Ronald J. Mills, Q.C. for the defendants JUDGMENT KONKIN J. October 25, 2005 [1] In this action, which is under the simplified procedure rules, the plaintiff seeks damages in the amount of $50,000 plus interest in accordance with the provisions of The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2. The claim is based on the allegation by the plaintiff that she loaned some $69,000 to the defendant Kelly Eiswerth on or about the 30th day of January 2001. The claim goes on to say that the defendants agreed to repay the loan in the amount of $1,500 per month, that some payments were made, but in the end, an amount of approximately $61,000 was still outstanding. The defendants deny that this transaction was loan to the individual Kelly Eiswerth, and argue that in fact it was an investment by the plaintiff and her then husband Ken Eiswerth into the auto brokering business known as Auto Brokers 1999 (“E M”), which was registered business name of the defendant company 627089 Saskatchewan Ltd. [2] summary trial was ordered in this issue on May 3, 2005. [3] The two issues in this case are as follows: 1. Was the advance made by the plaintiff loan to the defendant, Kelly Eiswerth, and/or his company 627089 Saskatchewan Ltd. carrying on business as M, or was that advance an investment by the plaintiff into that auto broker business? 2. If the advance was loan, how much is outstanding and by whom? [4] The plaintiff was married to Ken Eiswerth in 1989 and they remained married until their divorce in November 2004. Ken Eiswerth is the father of the defendant Kelly Eiswerth. [5] During the time that Ken and the plaintiff were married, the plaintiff received substantial amount of money from her father’s estate. This money was deposited into bank account in her sole name at branch of TD Canada Trust. In addition to the money from her father’s estate, the plaintiff also deposited the proceeds of the sale of the acreage that she and Ken had owned. The two of them purchased another house using some of the proceeds that flowed through her account. It appears that one of the reasons that the proceeds of the sale of the acreage were deposited into an account in her sole name was that her husband Ken was experiencing financial difficulties at the time. [6] From this account were made number of major financial transactions. These included: (a) $225,000 was deposited on or about the 8th day of September 2000; (b) $10,000 was withdrawn to pay joint debts of Ken and the plaintiff on or about September 8, 2000; (c) $175,000 was withdrawn by the plaintiff and invested in term deposit in September of 2000; (d) $38,000 was withdrawn for deposit on the new home for Ken and the plaintiff on September 26, 2000; (e) $76,000 was deposited in mid-October as the proceeds of the sale of Ken and the plaintiff’s acreage; (f) $69,550 was withdrawn as bank draft payable to Okanagan RV which was her first involvement with funds on behalf of M; (g) $69,550 was deposited into the account as payment from M; (h) $69,000 was withdrawn by cheque, which cheque was given to M; (i) number of other deposits from M, and at least one cheque payable to M, were made using this account. Various copies of bank statements with the plaintiff’s handwriting on them identified many of these transactions. [7] was business name registered by the defendant 627089 Saskatchewan Ltd. obtained licence to operate as motor dealer in November of 1999. The evidence of the plaintiff was that she helped the defendant Kelly Eiswerth obtain this registration. The copy of the licence tendered as an exhibit to the affidavit of Gail Giese shows that the registrant is in fact 627089 Saskatchewan Ltd. doing business as M. [8] The evidence at trial also was that the plaintiff and Ken Eiswerth operated another business through corporate entity. The plaintiff testified that she was familiar with the use of numbered company for the operation of business. [9] The first financial transaction between the plaintiff and was the purchase of motorhome by from an RV dealership in British Columbia. For that transaction, the plaintiff sent bank draft of $69,550 directly to Okanagan RV on behalf of M. The evidence was that shortly after that vehicle was purchased, it was sold and all of the money plus some profit or expenses were paid back to the plaintiff on or about the 30th day of January 2001. [10] The evidence of the plaintiff was that very shortly after being repaid, she wrote cheque for $69,000 to M. The cheque was not in evidence, but she stated that she wrote it to after discussion with her husband. The plaintiff also stated that the defendant Kelly Eiswerth had not requested this money and that she had decided on her own how much to advance. Her evidence was that her husband had said that they should invest some more money into Kelly’s business so that he could buy more vehicles. [11] From the time of this advance to until the commencing of this claim, various amounts were paid by to the plaintiff in denominations as little as $750 and as much as $3,000, and there were other transactions between M, the plaintiff and her husband Ken. Some of these other transactions included the repurchase by of Ken’s dump truck from the trustee in bankruptcy, and the “gift” of that dump truck to Ken, transaction where piece of equipment was bought by the plaintiff from and immediately resold at profit, and the purchase of other vehicles by the plaintiff from M. [12] The evidence was that there were no written contracts or other written evidence of any agreement between the plaintiff, the defendant Kelly Eiswerth, and/or the numbered company defendant evidencing the nature of this transaction. [13] There was no evidence of any direct payment from the plaintiff to the defendant Kelly Eiswerth. [14] The numbered company which had registered the name no longer carries on business. [15] The defendant Kelly Eiswerth is in similar business in the City of Prince Albert run by corporation called Tru-North RV, Auto Marine Sales Inc. The defendant Kelly Eiswerth is shareholder and director of this corporation. There is no evidence that this corporation is successor to the defendant numbered company by amalgamation or otherwise. ISSUE NO. Nature of the Payment by the Plaintiff [16] It is clear that the plaintiff advanced an amount of $69,000 to M. It is also clear that was registered business name of the defendant 627089 Saskatchewan Ltd. and that the plaintiff helped the numbered company register as motor dealer with Saskatchewan Justice. It is also clear that there were subsequent transactions between the plaintiff and M, payments made by and at least one transaction where the plaintiff issued further cheque of an amount in excess of $9,000 to for the purchase of another vehicle. There is the evidence of the plaintiff in cross-examination that after discussions with her husband Ken, it was felt that they should invest the $69,000 in Kelly’s business so that the business could buy more vehicles. There is evidence from the plaintiff that she felt she received profit from the first transaction. There is evidence that while in excess of $60,000 was owing by to the plaintiff, she chose to pay for another vehicle instead of deducting that amount from what was owed. There is also evidence that she categorized some of the payments from as “commission”. There is evidence that and/or Kelly benefitted the plaintiff and/or her husband by repurchasing equipment that the husband had lost to the trustee in bankruptcy and gifting it back to the husband. [17] The foregoing evidence weighs against the finding that this transaction was loan to the defendant Kelly Eiswerth. [18] In fact the only evidence that might suggest that this transaction was a loan to either of the defendants was that some of the payments made by E & M to the plaintiff were in the amount of $1,500, the amount that the plaintiff asserts was the monthly amount to be repaid by E & M for the loan. However, there was no evidence in the affidavit material of the plaintiff as to when the agreement to pay $1,500 per month was made and in her testimony, the plaintiff stated that when the decision was made to pay the $69,000 to the business, she did not have a discussion with the plaintiff Kelly Eiswerth about it. The only discussion she appears to have had was with her husband Ken, after which she wrote cheque to M. [19] On the basis of the materials filed and the evidence in the cross-examination held, find that the plaintiff has not proven that the monies advanced were loan to Kelly Eiswerth and/or the numbered company 627089 Saskatchewan Ltd. carrying on business as M. The claim on Issue No. fails. [20] As that claim fails, Issue No. becomes moot. [21] The defendant Kelly Eiswerth shall have his taxable costs on this action. J. D.B. KONKIN","The plaintiff sues the defendants for $50,000 plus interest. The claim is based on the allegation that the plaintiff loaned the defendant Kelly $69,000. The plaintiff claims the defendants agreed to repay the loan in the amount of $1,500 per month. HELD: The plaintiff's claim is dismissed. The only evidence that might suggest that this transaction was a loan to either of the defendants was that some of the payments made by the defendant to the plaintiff were in the amount of $1,500, the amount that the plaintiff asserts was the monthly amount to be repaid by the defendant for the loan. However, there was no evidence as to when the agreement to pay $1,500 was made. In her testimony, the plaintiff stated that when the decision was made to pay the $69,000 to the business, she did not have a discussion with the defendant, Kelly. The only discussion she seems to have had was with her husband after which she wrote a cheque to the defendant.",d_2005skqb454.txt
192,"C.A.C. No. 110557 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.; Hallett and Chipman, JJ.A. BETWEEN: DOMINIK TEMPELTON MACHEK and HER MAJESTY THE QUEEN Respondent Mark T. Knox for the Appellant William D. Delaney for the Respondent Appeal Heard: November 22, 1994 Judgment Delivered: November 25, 1994 THE COURT: The appeal is dismissed as per reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Hallett, J.A., concurring. CHIPMAN, J.A.: The appellant pled guilty in Provincial Court to three charges of dangerous driving causing bodily harm. He sought leave to appeal and appeals from his sentence of nine months incarceration plus two years probation on each charge, to be served concurrently. On June 9, 1994 at about 10:00 p.m., the appellant had an argument with his girlfriend at her home on Connolly Street in Halifax. He left the home in an agitated state, got into his vehicle and drove northerly on Connolly Street at high rate of speed, with his headlights off. He drove through, without stopping, at stop signs at the intersections of Roslyn Street and Edgewood Road. At the Edgewood Road intersection, he collided with westbound Mazda pickup truck driven by Dennis LeRue and occupied by Ronald and Adam LeRue. These three people suffered serious injuries. Dennis LeRue suffered broken arm and an undisplaced pelvic fracture and fractured ribs and Ronald LeRue and Adam LeRue suffered undisplaced fractures of the cervical spine. At the time of the accident, the appellant had not consumed alcohol or drugs. He was duly licensed driver. The appellant is 19 years of age and has grade 12 education. He has five previous motor vehicle accidents and convictions under the Motor Vehicle Act for failure to obey traffic signs, speeding and failure to display license on demand. His criminal record consists of conviction in November of 1992 for possession of narcotic, conviction in 1993 for two counts of theft under $1,000 and conviction in August of 1994 for theft under $1,000 in respect of which he was sentenced to 45 days incarceration, to be served intermittently to be followed by six months probation. Following the motor vehicle collision on June 7, 1994 the appellant was charged on an information alleging three counts of criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code. On July 25, 1994 he pleaded guilty in Provincial Court to three counts of the included offence of dangerous driving causing bodily harm contrary to s. 249(3) of the Code. At the same time, he consented to driving prohibition for period of three years being imposed upon him pursuant to s. 259(2) of the Code. The appellant was sentenced on October 31, 1994 in Provincial Court. The Provincial Court judge had before him pre‑sentence report dated September 28, 1994, report of Dr. John S. Bishop, psychologist, dated October 25, 1994 and report of Charles Casselman, counsellor at Veith House, dated October 29, 1994. Dr. Bishop referred to the appellant as an overactive person who is prone to emotional lability, impulsivity and counterproductive activity with low frustration tolerance. He recommended continued counselling for his anger management. Mr. Casselman's report recited that the appellant had 11 therapy sessions designed to assist his impulse control and inappropriate anger. At the sentencing, counsel for the Crown asked for period of incarceration, but indicated that the Crown had no objection to sentence ""in the intermittent range"". Counsel for the appellant concurred in this position. In imposing sentence, the court referred to the general principles governing sentencing and the importance of general deterrence in sending message to the community that dangerous driving must not be tolerated. The court referred to the appellant's driving record and the serious injuries sustained by three people as result of the appellant's inability to control his anger. The court was unable to accept the view of counsel as to the range of sentencing and imposed the sentence of nine months incarceration, concurrent on each count, together with two years probation with conditions of reporting and attending anger assessment counselling and treatment as directed by the probation service. The appellant applied for release pending his appeal to this court which was granted on November 3, 1994 by virtue of s. 679(1)(b) of the Code. The appellant's application for leave to appeal his sentence has thus been granted. On this appeal, the appellant raises three issues: (1) Whether the trial judge erred in failing to give effect to the submission of Crown counsel that an intermittent sentence was appropriate. (2) Whether the trial judge erred in failing to recognize in his reasons the mitigating factors in the appellant\'s favour. (3) Whether the sentence was manifestly excessive. FIRST ISSUE: While the recommendations of Crown counsel, concurred in by the defence, are entitled to considerable weight, the trial judge is not bound by them. See R. v. Lai (1988), 1988 CanLII 4460 (NL CA), 69 Nfld. P.E.I. R. 297 (Nfld. C.A.); R. v. Rubenstein (1987), 1987 CanLII 2834 (ON CA), 41 C.C.C. (3d) 91 (Ont. C.A.); and R. v. Blumer (1993), 18 W.C.B. (2d) 557 (Que. C.A.). The power of a trial judge to impose sentence cannot be limited by the submission of Crown counsel or a joint submission resulting from a plea bargain. If the trial judge has not otherwise erred in applying the principles of sentencing, this court should not disturb the disposition imposed merely because it does not accord with such submissions made to the judge. ISSUE TWO: number of factors were urged before the trial judge in mitigation. They were not mentioned by him in the brief reasons for sentence given orally at the conclusion of the argument. Such omission in and of itself does not constitute an error of law. See MacDonald v. The Queen (1976), 1976 CanLII 140 (SCC), 29 C.C.C. (2d) 257 (S.C.C.). It is apparent from the trial judge's brief reasons that the aspects of the matter unfavourable to the appellant were those which concerned him the most. THIRD ISSUE: The principles governing the imposition of sentence and appeals therefrom have been stated by this court on many occasions and need not be restated. See R. v. Grady (1971), N.S.R. (2d) 264 and R. v. Cormier (1975), 1974 CanLII 1577 (NS CA), N.S.R. (2d) 687. review of the nature of the offence committed by the appellant indicates aggravating circumstances in the commission of serious offence which carries maximum penalty under the Criminal Code of ten years incarceration. The appellant showed recklessness and disregard for the safety of others to very high degree. The only mitigating circumstance is the absence of the involvement of alcohol or drugs. Even so, the appellant's conduct bordering almost on the deliberate warrants the emphasis placed by the trial judge on general deterrence. While the circumstances in R. v. MacEachern (1990), 1990 CanLII 2413 (NS CA), 96 N.S.R. (2d) 68, differ from those in this case by reason of the involvement of alcohol and the fact that death resulted, that case, as many others cited to us in argument, is pertinent. The concern of the courts for highway safety must be reflected by emphasis on general deterrence where motorists display such complete disregard for the lives and safety of others as did the appellant. His driving at high speed, without lights in dense residential area, coupled with his disregard of two stop signs, imposed risk to other motorists just as substantial as if he had been intoxicated. We have reviewed all of the authorities referred to by counsel and few reveal misconduct in the operation of motor vehicle as egregious as that displayed by the appellant. Indeed, had death occurred as it so easily could have, sentence at the higher end of the range such as was imposed in MacEachern, supra, would not be inappropriate. Turning to the offender, while it is true that he is young and has expressed remorse and commenced positive steps towards managing the dangerous personality traits which led to this mishap, he has past record which is not unsubstantial for person of his age. Five motor vehicle accidents and three infractions involving the use of motor vehicle are not without significance. The three Criminal Code convictions indicate lack of respect for the law, which was demonstrated as well in his actions at issue here. While this court might have imposed a different sentence, it cannot be said in the face of these circumstances the sentence imposed by the trial judge was unfit by reason of it being excessive. The appeal is dismissed. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA IN THE PROVINCIAL COURT CITY OF HALIFAX HER MAJESTY THE QUEEN versus DOMINIK T. MACHEK HEARD BEFORE: His Honour Judge G. H. Randall PLACE HEARD: Halifax City Court DATE HEARD: October 31st, 1994 CHARGE: That he did at or near Halifax in the County of Halifax, Province of Nova Scotia, on or about the 7th day of June, 1994 unlawfully operate motor vehicle on public street or highway in manner that was dangerous to the public having regard to all the circumstances contrary to Section 249(3) of the Criminal Code. AND FURTHER AT THE SAME TIME AND PLACE AFORESAID, did unlawfully operate motor vehicle on public street or highway in manner that was dangerous to the public having regard to all the circumstances contrary to Section 249(3) of the Criminal Code. AND FURTHER AT THE SAME TIME AND PLACE AFORESAID, did unlawfully operate motor vehicle on public street or highway in manner that was dangerous to the public having regard to all the circumstances contrary to Section 249(3) of the Criminal Code. COUNSEL: Mr. J. Clarke, for the Prosecution Mr. M. Knox, for the Defence SENTENCING C.A.C. No. 110557 NOVA SCOTIA COURT OF APPEAL BETWEEN: DOMINIK TEMPELTON MACHECK ‑and‑ HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A.","After an argument with his girlfriend, the appellant drove his car at high speed with the lights off, running two stop signs. At the second intersection he collided with another vehicle, causing serious injury to three people. He pleaded guilty to three counts of dangerous driving causing bodily harm; the Crown proposed an intermittent sentence, but the judge sentenced him to nine months incarceration concurrent on each count plus two years probation with conditions. The appellant appealed on the grounds the judge failed to consider the Crown's recommendation, failed to sufficiently state his reasons, and the sentence was excessive. Dismissing the appeal, that the sentencing power of a judge is not limited by Crown submissions, that the failure to state every reason does not constitute and error, and that in view of the appellant's record and other factors, the sentence was not excessive to the point of constituting a reversible error.",3_1994canlii3972.txt
193,"R.W. ELSON QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 81 Date: 2017 03 22 Docket: QBG 3200 of 2016 Judicial Centre: Regina BETWEEN: THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 and WILLIAM ROSS BUTLER (ALSO KNOWN AS ROSS BUTLER) AND THE CHIEF OF POLICE OF THE REGINA POLICE SERVICE Counsel: Meghan McAvoy for the plaintiff Ian McKay, Q.C. for the defendant JUDGMENT SCHWANN J. March 22, 2017 [1] This is an application by the Director under the The Seizure of Criminal Property Act, 2009, SS 2009, c S-46.002 [2009 Act] for an order directing the forfeiture of $10,475.00 [property] to the Crown in right of Saskatchewan. The property had been seized by the Regina Police Service [RPS] from William Ross Butler in 2008. [2] In support of this application, the Director filed the affidavits of Sgt. Guy Criddle, Cst. Ahren Strueby, Sgt. Darren Fikeldey, Sgt. Caroline Houston, Sgt. Darcy McDonald, Kim Calfas and Cpl. Springinatic. [3] The Director’s application was preceded by administrative forfeiture proceedings in relation to the property pursuant to Part II.1 of the 2009 Act. Since Mr. Butler filed notice of dispute in response to those proceedings, the Director applied to this Court for forfeiture order pursuant to Part II. Circumstances and Summary of the Evidence The Director’s Evidence [4] The RPS executed search warrant at 839 Pasqua Street, Regina, Saskatchewan on July 24, 2008. This was Mr. Butler’s place of residence at the time. [5] On their approach to the residence the police encountered male by the name of Kirk Florek. Mr. Florek was questioned by the police. He admitted to having just purchased three grams of cocaine for $140.00. The cocaine found on his person was seized by the police. [6] The police were forced to use ram to open the steel frame front door. After it was utilized twice, Mr. Butler yelled out that he would open the door for the police, but he did not. The door was breached on the third attempt and the police entered. [7] Once inside the house, Sgt. McDonald heard toilet running as if it had just been flushed. Sgt. McDonald also observed Motorola cell phone in the living room which rang an estimated 20 times while the police were executing the search warrant. Sgt. McDonald answered four of the calls. All were from individuals who wanted to stop by to pick up product. One of the callers, Rob, requested “4”. [8] Three of the callers subsequently showed up at the residence within minutes with cash in hand. Each admitted to the police that they were there to purchase drugs. Sgt. McDonald also noticed approximately ten vehicles approaching the house but each drove off upon noticing the police presence. [9] The police found the following items in execution of the search warrant: a) $240.00 seized by Cst. Slater from Butler’s front right jeans pocket b) $140.00 seized by Cst. Slater from Butler’s front left jeans pocket c) $1,015.00 seized by Cst. Slater from Butler’s left jeans pocket d) $100.00 seized by Cst. Slater from the basement rafters e) $480.00 seized by Cst. Steinke from under the living room table f) $8,500.00 seized by Cst. Slater from safe in the basement of the residence g) $275.00 seized from Nicholson’s person [10] The following items were also located and seized: a) three gram packages of cocaine seized by Cst. Strueby from Kirk Florek b) black digital scale from the living room end table seized by Cst. Steinke c) Ativan mg pill bottle from the living room table seized by Cst. Steinke d) two cell phones from the living room table seized by Cst. Steinke. [11] The police also seized numerous items believed to have been stolen including plasma TV and various PlayStation games. [12] The cash located in the safe ($8,500.00) was held together in three elasticized bundles of $1,500.00 and four elasticized bundles of $1,000.00. The $1,500.00 bundles were each folded in half. [13] Sgt. Houston, who has 26 years’ experience in drug enforcement, surmised the cash recovered from the safe had cocaine residue on it based on its smell and feel. Subsequent ION testing was done on 19 random samples of cash. All 19 tested positive for cocaine with 17 manifesting high level of cocaine. [14] The majority (93%) of cash seized from the residence was in $20.00 denominations. The Evidence of the Respondent [15] Terry Metz swore an affidavit on January 9, 2017 in support of Mr. Butler. Mr. Metz is Mr. Butler’s former co-worker. He deposed to having purchased 1985 GMC Bison five ton truck from Mr. Butler in 2007 for $16,000.00. After paying the down payment, Mr. Metz claims he repaid the balance ($11,000.00) in cash periodically over the course of the ensuing years in lump sums of $1,000.00 to $1,500.00. [16] Mr. Butler swore an affidavit on January 24, 2017. He claims Mr. Metz purchased five ton Chevrolet truck from Bell’s Moving and Storage. Mr. Butler also claims he lent Mr. Metz the money to purchase this truck. At para. of his affidavit, he says: 8. THAT Mr. Metz had been paying me back for the money that lent him to purchase the truck and do not know why Mr. Calfas would suggest that the vehicle was never registered in any of our names. [17] With regard to the search of his residence, Mr. Butler denies any of the individuals present at that time of the search were there to purchase drugs of any sort. [18] Mr. Butler says the police evidence about Mr. Florek is not to be believed because Mr. Florek subsequently gave statement to the police denying he had purchased or received cocaine from Mr. Butler. This statement was not filed in these proceedings. [19] Finally, Mr. Butler indicates that although the police seized number of items which were allegedly stolen, it was subsequently established that none of these items were in fact stolen and all were returned to him. With regard to the toilet flushing incident, Mr. Butler points out that no drug residue was ever found around the toilet nor were any drugs or traces of drugs found elsewhere in the home. Mr. Butler also says no drug residue was found on his hands or clothes. Qualifying Mr. Henry as an Expert Witness [20] The Director offered opinion evidence from J. David Henry. [21] Defence counsel did not challenge Mr. Henry’s qualifications as an expert witness nor was voir dire sought for such purposes. [22] In the circumstances, accept Mr. Henry as an expert qualified to express an opinion in the area of controlled drugs and substances, trafficking in controlled drugs and substances and matters relating to that field. Mr. Henry provided detailed affidavit setting out his experience and level of expertise acquired over 30.5 years as an RCMP officer and his work in various drug enforcement capacities. His expertise is based on job related experience, investigative courses taken and articles and publications read. [23] Mr. Henry has been previously qualified as an expert in similar applications. In fact, his expertise has never been challenged (see Saskatchewan (Seizure of Criminal Property Act 2009 Director) Nagy, 2016 SKQB 332 (CanLII) [Nagy], The Director Shercliffe, QB 1854 of 2014 dated February 18, 2015 (unreported) and Saskatchewan (Seizure of Criminal Property Act 2009 Director) Dickinson, 2016 SKQB 82 (CanLII)). In Nagy, Brown J. stated: 29 Expert evidence was provided through J. David Henry, former RCMP member of some 30 years. He spent much time with the Integrated Drug Unit in Regina as well as other units associated with drug awareness and organized crime. He is an expert and is qualified to provide opinion evidence regarding the distribution, trafficking, usage, language (including code and jargon), packaging, accoutrements and paraphernalia associated with substances addressed in the CDSA. His affidavit, which accept, confirmed that, when all the facts and circumstances were viewed as whole, including those set out earlier in this decision, the activities of Nagy were consistent with the purchase and sale of controlled substances, contrary to the CDSA. The cash seized was also, in the opinion of officer Henry, an instrument of unlawful activity as recognized by the Act. While this expert evidence was impugned, find his evidence to be relevant, necessary, his knowledge to be established through training and experience and of assistance here. [24] find Mr. Henry’s opinion evidence to be relevant and necessary. There is no exclusionary rule which would bar the receipt of his evidence. Mr. Henry is therefore qualified to provide opinion evidence regarding the distribution, trafficking, usage, language (including code and jargon), packaging, accoutrements and paraphernalia associated with substances addressed by the Controlled Drugs and Substances Act, SC 1996, 19. [25] There are three issues before this Court: 1. Is the Director’s application statute barred? Does it have retroactive effect? 2. On balance of probabilities, is the property proceeds of unlawful activity? 3. Has the “interests of justice” exception been established? 1. Is the Director’s application statute barred? Does it have retroactive effect? [26] It is common ground that the property for which forfeiture is sought was seized from Mr. Butler by the RPS on July 24, 2008. The governing legislation in 2008 was The Seizure of Criminal Property Act, SS 2005, S-46.001 (Repealed) [former Act]. This statute was subsequently repealed and replaced with the 2009 Act, and it is pursuant to the 2009 Act that the Director’s application was brought on December 16, 2016. [27] Since Mr. Butler’s argument is based on the expiration of limitation period, s. 35.1 comes into play. This section was added to the 2009 Act by way of amendment in 2013. [28] It is Mr. Butler’s submission that because the property in question was seized from him in 2008, the Director should have acted pursuant to the legislation in place at that time. As mentioned, the governing legislation in 2008 was the former Act. Had she done so, he argues, the application would have been statute barred because The Limitations Act, SS 2004, L-16.1 bars commencement of proceedings two years after the date of discoverability. The date of seizure, he argues, is the date of discovery. [29] Secondarily, Mr. Butler argues that the current legislative mandate reflected in the 2009 Act is prospective in operational effect and not retroactive. Consequentially, it is his position that no order can issue with respect to property seized before the 2009 Act came into effect. Mr. Butler draws support for this argument from Gustavson Drilling (1964) Ltd. Minister of National Revenue, 1975 CanLII (SCC), [1977] SCR 271 [Gustavson] and his contention the legislation was not made expressly retroactive. [30] In my view, it serves no useful purpose to analyse the limitations issue from the perspective of whether the Director’s application would have been statute barred had it been brought under the former Act. The reality is that the Director commenced proceedings under the 2009 Act thus the Director’s authority to pursue a forfeiture order must be assessed from that perspective alone. Viewed in this light, the issues posed by Mr. Butler boil down to: 1. Whether the Director’s forfeiture proceedings were commenced after the limitation period expired; and 2. Whether an order granted under the 2009 Act in relation to property seized before this legislation came into force is retroactive in effect. If it is retroactive in its application, whether the 2009 Act expressly allows for retroactive effect. The Limitations Issue [31] Section 35.1 of the 2009 Act prohibits the commencement of forfeiture applications or administrative proceedings under this Act two years after the Director becomes satisfied the property sought to be forfeited is proceeds of unlawful activity or an instrument of unlawful activity. The section reads: 35.1 Notwithstanding The Limitations Act, no application or administrative forfeiture proceeding pursuant to this Act may be commenced after two years from the day on which the director becomes satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity. [32] The language employed by s. 35.1 is significant in two respects. [33] First, the limitations rule expressed in s. 35.1 is preceded by the words “Notwithstanding The Limitations Act…”. These words are not superfluous. They operate as preface to the rule itself and as such hold interpretative significance. Pierre-André Côté in The Interpretation of Legislation in Canada, 3d ed (Scarborough: Carswell, 2000) at 355-6 [Legislation in Canada] discussed the concept of legislative harmony and the ordering of rules where conflicts exist between statutes. Normally, conflicts between statutes are resolved by recognizing hierarchy between them, that is primacy or paramountcy of one text over the other. The paramount text will apply, the other will be without effect… The way to determine which law has precedence is to seek the intent of the legislature. This intent can be expressed formally… [34] One way in which to resolve legislative or operational conflict is to express paramountcy between conflicting statutes by inserting an explicit word or phrase into the statute. The word “notwithstanding”, for instance, has recognized and acknowledged meaning for statutory interpretation purposes. As Pierre-André Côté in Legislation in Canada explains at 356: variety of well-known terms is used. The statute will declare that it applies “notwithstanding” provisions to the contrary. If, on the other hand, precedence is to be given to another provision, the statute will operate “subject to” that enactment. [Emphasis Added] [35] Thus, by prefacing s. 35.1 with the phrase “Notwithstanding The Limitations Act”, the Legislature signaled an intention to prioritize or give legal effect to the content of s. 35.1 over what may otherwise be provided for in The Limitations Act. [36] This brings me to the substantive content of s. 35.1. What does this provision say about limitation of proceedings? Is it in operational conflict with The Limitations Act? [37] In general terms, The Limitations Act provides that no proceedings with respect to claim may be commenced after two years from the day on which the claim is discovered (s. 5). Subject to limited exceptions, claim is discovered on the day on which the claimant first knew or ought to have known about the injury, loss or damage (s. 6(1)). claimant is presumed to have known of these matters on the day on which the act or omission on which the claim is based took place unless the contrary is proved (s. 6(2)). [38] Section 35.1, in contrast, charts different course. In clear and unambiguous language, the legislation prescribes starting point for when the limitation period begins to run. Significantly, it is not the day on which the act or omission took place but “the day on which the director becomes satisfied that property is proceeds of unlawful activity...” [emphasis added]. By inserting the word “notwithstanding” in s. 35.1 it can be presumed that the Legislature was alive to potential limitation of actions issues associated with forfeiture matters and intended to adopt different frame of reference for when the limitation period begins to run. [39] This legislative intent or purpose was explained in Saskatchewan, Legislative Assembly, Standing Committee on Intergovernmental Affairs and Justice (Hansard), 27th Leg, (May 14, 2013) at 418. Speaking on behalf of the Minister of Justice, the explanation provided to the Standing Committee on Intergovernmental Affairs and Justice was this: Mr. McGovern Mr. Chair, there’s provision that’s being added regarding the limitation period commencing when the director is satisfied that the property is proceeds of unlawful activity or an instrument of unlawful activity, rather than two years from the point of discovery, which probably is the provision that the member’s referring to. And that arises in two ways. One is now that statements of claim may be used to bring this forward and that’s one of the changes that is being made that was identified by our team in this area as an important alternative to have now that it can be commenced by statement of claim, of course it then attracts the provisions in The Limitations Act. And what this provision does is say that discoverability isn’t as relevant for limitation period in this context as is saying the director can be satisfied that the property is proceeds of unlawful activity or an instrument of unlawful activity. And so that’s why that new provision comes in: (1) because it’s statement of claim; and then (2) to recognize the process of when that clock should start. [40] Thus, in accordance with the language adopted by the Legislature for s. 35.1, the starting point for the commencement of the limitation period is not the date of seizure as contended by Mr. Butler but the date when the director became satisfied that the property constitutes proceeds of unlawful activity. [41] The evidence on when the Director “became satisfied” the seized property constituted proceeds of unlawful activity is found in the Affidavit of Tammy Pryznyk sworn December 15, 2016. She deposed to the following: 3. became aware of the Property (and the circumstances of its seizure), when the RPS referred the file to my office in August 2016. subsequently became satisfied, pursuant to the requirements of section of the [2009] Act, that the Property is an instrument of unlawful activity in that it has been used to engage in unlawful activity that resulted in or was likely to result in or was intended to result in the acquisition of property (more particularly, obtaining more controlled substances for the purpose of trafficking them). am also satisfied that the Property is an instrument of unlawful activity in that it is likely to be used to engage in unlawful activity that would be likely to or is intended to result in the acquisition or production of property. 4. In addition, am satisfied that the Property is proceeds of unlawful activity in that it was acquired directly or indirectly, in whole or in part, as result of unlawful activity, specifically the trafficking in controlled substances. [42] Mr. Butler did not challenge the admissibility of Ms. Pryznyk’s affidavit, cross-examine her on the affidavit, or offer any evidence to the contrary. Thus, on the unchallenged evidence of Ms. Pryznzk, the only finding of fact which can rationally be made is that Ms. Pryznyk in her capacity as Director was satisfied in August 2016 that the $10,475.00 previously seized by the police constituted proceeds of unlawful activity. The Director’s application was brought four months later and fell comfortably within the two year limitation window prescribed by s. 35.1. [43] The Director’s application is therefore not statute barred and there is no limitations issue. The Retroactivity Issue [44] Mr. Butler submits the presumption against retroactive application of statutes prevents the Director from reaching back to forfeit goods seized prior to the coming into force of the 2009 Act. [45] There is distinction to be made between the temporal operation of statutes insofar as legislation has either retroactive or prospective effect. As general principle of law, statutes are not to be construed as having retroactive effect and operation unless such construction is expressly or by necessary implication mandated by the language of the statute. Gustavson is cited as the leading authority on this point. At 267, the Supreme Court of Canada said: The general rule is that statutes are not to be construed as having retrospective operation unless such construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively. [46] This basic principle of construction is easy to state, however defining retroactivity, retrospectivity and prospectivity, let alone assessing when they occur in the context of repealed and amended law has proven to be difficult because of the confusing and often times inconsistent body of law which has evolved (by Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Markham: Butterworths Canada Ltd., 2002) at 543 [Construction of Statutes]). [47] In very general terms it can be said legislation receives retroactive application when the effect of applying it to particular facts is to deem the law to have been different from what it actually was when the facts occurred (Construction of Statutes at 553). The Supreme Court in Gustavson explained this concept but went on to touch upon when statute is not retroactive. At 267-8: Superficially the present case may seem akin to the second instance but think the true view to be that the repealing enactment in the present case, although undoubtedly affecting past transactions, does not operate retrospectively in the sense that it alters rights as of past time. The section as amended by the repeal does not purport to deal with taxation years prior to the date of the amendment; it does not reach into the past and declare that the law or the rights of parties as of an earlier date shall be taken to be something other than they were as of that earlier date. The effect, so far as appellant is concerned, is to deny for the future right to deduct enjoyed in the past but the right is not affected as of time prior to enactment of the amending statute. [Emphasis Added] (See also Paton The Queen, 1968 CanLII 102 (SCC), [1968] SCR 341) [48] The Director submits the legal effect vis-a-vis Mr. Butler has not changed with passage of the 2009 Act. agree. Both the former Act and the 2009 Act authorize the commencement of court application for forfeiture of proceeds of unlawful activity. The only meaningful difference between the two statutes is the party empowered to seek the remedy. Under the former Act it was police chief and in the current statute it is statutory designate. [49] The 2009 Act did not change the state of the law or Mr. Butler’s rights from what it was before the new law came into effect. Under both regimes the terms “property” and “proceeds of unlawful activity” were defined in the same manner. Both statutes contemplate an application to this Court for forfeiture of such property. Both apply the same legal test and standard of proof. [50] There is no obvious or identified unfairness attached to the legislative change in relation to the triggering events or definitions, nor to the ultimate consequence. Thus, it can hardly be said that Mr. Butler was caught off guard by the new law, lost vested rights or that the basic rules were either unknown or changed. Finally, the consequences attaching to prior factual event do not result in new penalty, disability or prejudice in any way to Mr. Butler. His legal position was the same and he faced the same jeopardy. [51] Even if am wrong such that the temporal effect of the 2009 Act is retroactive in nature, find the underlined portion of the definition of “proceeds of unlawful activity” expressly authorizes reaching back to fact pattern which existed before the statute came into effect. The definition provides: 2(p) “proceeds of unlawful activity” means: (i) property acquired directly or indirectly, in whole or in part, as result of unlawful activity, whether the property was acquired before or after the coming into force of this Act;… [52] As explained in Legislation in Canada at 150: Retroactivity may also be accomplished by mentioning clearly that the state [sic] applies to certain specific events. The judge is bound to give retroactive effect to the statute if this is expressed clearly, whatever the technique. [53] Similarly, as Ruth Sullivan observed in Construction of Statutes at 772: §25.53 Retroactive legislation often states that it is deemed to have come into force or effect on day before the day of enactment. Or it may state that it applies to designated facts occurring from or being particular date or time. The following provisions from legislation amending Ontario’s (former) Residential Rent Regulation Act illustrate the latter approach: 99.2.-(1)…this Part applies to every rent increase that takes effect on or after the 1st day of October, 1990 99.14.-(1) This section applies to an order made…under Part VI…even if made before the 1st day of October, 1990.58 Because the presumption against the retroactive application of legislation is strong, express provisions of this sort often are included in legislation. They do not follow any fixed pattern. [54] Finally, Mr. Butler suggests the definition should be parsed and interpreted to mean that while property can be acquired before the coming into force of the 2009 Act, the “unlawful” element part of the definition must have occurred after the 2009 Act came into force. [55] do not accept this interpretation. The property which comprises the subject matter of the forfeiture action only becomes “proceeds of unlawful activity” because of the unlawful activity. Furthermore, Mr. Butler’s argument largely focusses on the individual charged with the criminal offence as opposed to the property derived from unlawful activity. His approach ignores several key features of the 2009 Act notably, that the legislation is civil not criminal in nature, and that it is an in rem remedy. Furthermore, it provides that person does not have to be charged with criminal offence for the Director to pursue civil remedies under this statute. The date of charges is irrelevant as is the need for finding of criminal culpability. [56] For the reasons given, there is no retroactivity problem. 2. On balance of probabilities, is the property proceeds of unlawful activity? [57] Section of the 2009 Act sets out the test the court must apply in determining whether to order forfeiture of seized property. 7(1) Subject to section 8, and unless it clearly would not be in the interests of justice, the court shall make an order forfeiting property to the Crown if the court finds that the property is proceeds of unlawful activity or an instrument of unlawful activity. [Emphasis Added] (2) In order to make forfeiture order in an application for forfeiture of property that is alleged to be proceeds of unlawful activity, the court: (a) is not required to be satisfied that the property was acquired in connection with specific unlawful act; and (b) is not required to be satisfied that an increase in the value of property or decrease in debt obligation secured against the property arose as the result of specific unlawful act. [58] The terms “proceeds of unlawful activity” and “unlawful activity” are defined by s. of the 2009 Act in the following manner. To repeat: (p) “proceeds of unlawful activity” means: (i) property acquired directly or indirectly, in whole or in part, as result of unlawful activity, whether the property was acquired before or after the coming into force of this Act; and (ii) an increase in the value of property, or decrease in debt obligation secured against property, if the increase or decrease resulted directly or indirectly from unlawful activity; (u) “unlawful activity” means an act or omission that is an offence pursuant to: (i) an Act, an Act of any province or territory of Canada or an Act of the Parliament of Canada; or (ii) an Act of jurisdiction outside Canada, if similar act or omission would be an offence pursuant to an Act or an Act of the Parliament of Canada if it were committed in Saskatchewan; [59] Section 11 is also relevant to this application as it prescribes the balance of probabilities as the applicable standard of proof. In examining what this standard means and how to apply it, the Court of Appeal in Saskatchewan (Seizure of Criminal Property Act, 2009, Director) Kotyk, 2013 SKCA 140 (CanLII), 427 Sask 193, adopted the standard applied in F.H. McDougall, 2008 SCC 53 (CanLII), [2008] SCR 41: whether the allegation is more likely than not, and whether proposition is inherently probable or improbable is matter of common sense (para. 29). The court expanded upon this concept and the onus in para. 33: 33 …The question was whether, on common sense view of the situation, it was more likely than not the money was proceeds of, or an instrument of, unlawful activity. Suspicious circumstances constitute evidence. finding of no evidence in this case indicates the Chambers judge either applied the wrong standard, or misconceived the nature of the onus, or was looking for more direct evidence of unlawful activity than was necessary. [60] Mr. Henry has identified the following evidence as supportive of an inference of drug trafficking: a. The departure of Mr. Florek from the residence with three grams of cocaine and his admission to having just purchased the cocaine; b. The modified metal frame door and the flushing toilet noticed upon police entry; c. The numerous telephone calls to the Motorola cell phone including four calls from apparent customers; d. The subsequent attendance of three individuals at the door seeking to purchase drugs; e. The numerous vehicles observed passing by the residence; f. The presence of digital scale; g. The presence of stolen property; h. The amount of bundling and the composition of the cash found at the residence; and i. The use of safe to store much of the cash. [61] I accept Mr. Henry’s evidence with regard to the significance of these various factors and how they are common to the drug trafficking trade. [62] Mr. Henry’s evidence about bundling and the composition of cash is particularly illuminating. In his opinion, it is typical for those in the drug trade to possess large sums of cash and quite common for the cash to principally be in $20.00 denominations. Bills of this nature are common in street level trafficking. In Mr. Butler’s situation, 93% of the bills were in $20.00 denomination. Mr. Henry further explained that the manner in which the cash from the safe ($8,500.00) was bundled was consistent with drug trafficking. It was his opinion drug dealers often bundle their money with elastic bands and use different bundling techniques as means of quick accounting. [63] Mr. Henry explained the significance of the location of where the cash was found and how drug traffickers often conceal their cash in elaborate ways. [64] The flurry of activity from both the cell phone and subsequent visitors looking to buy drugs, as well as the numerous drive-by vehicles, all support clear inference of an ongoing drug operation at work according to Mr. Henry. [65] There is also the evidence of Sgt. Houston. She observed the cash to bear the smell and feel of cocaine. She is familiar with the smell and feel of cocaine based on numerous cocaine investigations she has participated in over the past 20 years. Nineteen random swabs were taken with at least one bill swabbed from each cash exhibit. These swabs were sent to the Canada Border Services Agency for ION scan testing. [66] Cst. Houston’s suspicions were well founded as all 19 swabs tested positive for cocaine with 17 of the 19 recording high levels of cocaine. [67] With that turn to the respondent’s evidence, much of which find to be inconsistent with the supplemental affidavits of Kim Calfas and Tammy Pryznyk, notably: In his capacity as supervisor with Saskatchewan Government Insurance [SGI], Mr. Calfas queried the Chevrolet truck referenced in Mr. Butler’s January 24, 2017 affidavit. Search results revealed that the Chevrolet truck was 1984 model truck which had been purchased by Legend Transport Ltd. for $8,000.00 and first registered by Legend Transport on July 5, 2005; SGI’s database shows that Legend Transport Ltd. had purchased the truck from Bell’s Moving Systems in July 2005 with declared value of $8,000.00; and In his notice of dispute filed in the earlier administrative forfeiture proceedings Mr. Butler gave the following reasons for objecting to the Director’s actions: The subject property was not proceeds of any unlawful activity nor an instrument of unlawful activity. The funds were monies that received from Mr. Terry Metz of Legend Transport. drove for Legend Transport for period of time and had 1985 GMC Bison Straight 5-ton truck which sold to Mr. Metz for approximately $15,000.00 and received payments from Mr. Metz totalling that amount which was using to pay my expenses. The 1985 GMC Bison was delivered to Mr. Metz, which believe he utilized in his business it has been used for moving contracts prior to my sale. [68] Based on the aforesaid evidence, the following inconsistencies in Mr. Butler’s evidence emerge: The SGI records refer to 1984 Chevrolet truck and not 1985 GMC model which Mr. Metz claims to have purchased; The Chevrolet truck was purchased by Legend Transport Ltd. in 2005 not 2007; While the truck appears to have been purchased from Bell’s Moving Systems, the records show it was purchased by Legend Transport Ltd. and not Terry Metz; and The SGI records show value of $8,000.00 for the truck and not $16,000.00 as deposed to by Mr. Metz. [69] With regard to Mr. Florek, Mr. Butler claims he gave second statement to the police effectively denying the statement had given at the time of the search. Mr. Butler did not file Mr. Florek’s police statement with this Court and as such his allegation is hearsay. In any event, the unchallenged evidence of Sgt. Criddle and Cst. Strueby clearly establishes that the police seized cocaine from Mr. Florek’s person at Mr. Butler’s residence and that Mr. Florek admitted he bought cocaine from Mr. Butler on regular basis. [70] On a common sense view of the evidence before me, I find it more likely than not the money was proceeds of unlawful activity. 3. Has the “interests of justice” exception been established? [71] Where the court is satisfied that the subject property constitutes proceeds of unlawful activity, s. directs the court to grant the forfeiture order unless the order is clearly not in the interests of justice. In Saskatchewan (Seizure of Criminal Property Act, 2009, Director) Mihalyko, 2012 SKCA 44 (CanLII), 393 Sask 117 the Court of Appeal established the principle that the party relying on the “interests of justice” exception bears the burden of proving this exception. [72] Mr. Butler bears the onus of establishing, on a balance of probabilities, that forfeiture would clearly not be in the interests of justice. As he put forth no such evidence or argument to support the application of this exception to his circumstances, it has not been established. CONCLUSION [73] The seized property is proceeds of unlawful activity. The forfeiture order proposed by the Director shall issue. J. L.M. SCHWANN","HELD: The issues were determined as follows: 1) the applicant applied pursuant to The Seizure of Criminal Property Act, 2009, as that version of the Act was in place at the time of the seizure. The respondent argued that s. 35.1 did not apply at the time of seizure, because it was not in the Act at the time of seizure. The respondent argued that the two-year limitation period pursuant to The Limitations Act applied to the application with the date of seizure being the date of discoverability. The respondent also argued that the 2009 Act did not have retrospective application. The court found that the applicant applied pursuant to the 2009 Act and therefore the matter was assessed from that perspective. Section 35.1 of the 2009 Act required applications for forfeiture to be made within two years from the director becoming satisfied that the property sought to be forfeited was proceeds of unlawful activity or an instrument of unlawful activity. The court found that the words “Notwithstanding The Limitations Act” at the beginning of s. 35.1 served to provide an intention to prioritize the content of s. 35.1 over The Limitations Act. An affidavit filed by the applicant indicated that the director became satisfied that the property was an instrument of unlawful activity after August 2016. The director’s application was brought four months later, well within the two-year limitation period. The court then considered whether the 2009 Act had retrospective application and found that B. had the same legal position and faced the same jeopardy regardless of the version of the legislation, and therefore, there was no retrospective problem;  2) s. 7 outlined the test to apply. The court accepted the expert’s evidence with regards to the significance of the factors evidencing drug trafficking and how common they were to the drug trafficking trade. The applicant’s evidence also showed that the person alleging to purchase the truck from the respondent was not the purchaser and the purchase price was $8,000, not $16,000. The court found it more likely than not that the money was proceeds of unlawful activity; and 3) B. did not provide evidence or argument to support the exception that forfeiture would clearly not be in the interests of justice. The property was found to be proceeds of unlawful activity and the forfeiture order was granted.",b_2017skqb81.txt
194,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 467 Date: 2010 12 20 Docket: Q.B.G. No. 1827 of 2010 Judicial Centre: Saskatoon BETWEEN: SEIU-West and Barbara Cape on behalf of SEIU-West and its members, and CYPRESS REGIONAL HEALTH AUTHORITY, FIVE HILLS REGIONAL HEALTH AUTHORITY, HEARTLAND REGIONAL HEALTH AUTHORITY and SASKATOON REGIONAL HEALTH AUTHORITY, Counsel: Drew S. Plaxton and Andrea Rohrke, student-at-law, for the plaintiffs Evert Van Olst and Kevin W. Zimmerman, for Saskatoon Regional Health Authority Michael J. Phillips and Dale K. Hallson, for the defendants, Cypress, Five Hills and Heartland JUDGMENT KOCH J. December 20, 2010 [1] The plaintiff union, SEIU-West, represents approximately 11,000 health care workers employed by the four defendant regional health authorities and their affiliates. The plaintiff, Barbara Cape, is the president of SEIU-West. [2] The current collective bargaining agreement (CBA) covers the period April 1, 2008 to March 31, 2012. tentative agreement was reached on August 13, 2010 and ratified by the union membership on September 16, 2010. However the formal CBA, very lengthy and complex document, was not signed until October 25, 2010. As the CBA provides for wage adjustments going back to April 1, 2008, it requires substantial lump-sum adjustment payment for many of the employees. Collective bargaining and payroll administration is carried out on behalf of the defendants by Saskatchewan Health Care Association (known as SAHO). Understandably compiling the lump-sum retroactive payments is complex. Many of the affected employees served in different capacities at different times for different participating employer entities at different wage scales. The compilation of the entitlement of each affected employee is elaborate and must be done by well-trained personnel. Similar situations have arisen on previous occasions. Retroactive adjustments have always been treated as income in the calendar year in which they are paid even though they are earned at least partially in previous calendar years. The parties have found this to be acceptable and it has had the approval of Canada Revenue Agency (CRA). [3] Unfortunately new problem has arisen with regard to the retroactive adjustment payments arising from the current CBA. Previous agreements have always been finalized earlier in the calendar year, so there has never been an occasion where the retroactive payments could not be made before the end of the calendar year in which the new CBA was signed. Except in the case of one irrelevant exception the retroactive payments have always been made about 12 weeks after the signing of new CBA. In the present circumstances detailed agenda for the steps involved in the compilation process has been determined on behalf of the employer and disclosed to the plaintiffs. Credibly in my view it provides for projected payment date of January 21, 2011, significantly beyond the end of the 2010 calendar year. [4] This has important implications for some of the employees, specifically those whose retirement occurs in 2010, 2011 and 2015. Retirement pensions are based on the employee’s income in the last four full calendar years leading up to retirement. What this means for an employee retiring in 2010, barring creative solution arrived at by negotiation with the concurrence of CRA, is that the retroactive payment does not form part of the retiree’s 2010 income. The retiring employee’s pension is accordingly reduced. In the case of persons retiring in 2011, the only way for the retiree to avoid pension reduction will be to retire at the calendar year-end, even if the employee prefers an earlier date. What if the employee reaches the contractual age limit before the calendar year-end? [5] The CBA includes customary provisions for grievance/arbitration processes to deal with problems such as this. The submission of such issues to grievance/arbitration is supported by s. 25 of The Trade Union Act, R.S.S. 1978, c. T-17. In the case of Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] S.C.R. 929, the Supreme Court has determined that in such circumstances the courts must decline jurisdiction in favour of the grievance arbitration process. The Supreme Court expressly rejected what had come to be known as the concurrent jurisdiction model and also the overlapping jurisdiction model. have addressed this issue in some detail in Eckel v. Saskatoon (City), 2009 SKQB 287 (CanLII). Nothing in the submissions of counsel on this occasion, or in intervening jurisprudence of which am aware, makes it necessary for me to do so again. [6] The Weber principle notwithstanding, the present plaintiffs have commenced an action seeking an order of the court to require the defendants to pay the retroactive adjustment payments within the present calendar year. They are applying for an interlocutory mandatory injunction. In the statement of claim and in their motion the plaintiffs seek:(1) a mandatory interlocutory injunction requiring defendants to make the retroactive adjustment payments before the end of this year;(2) in the alternative, a mandatory interlocutory injunction to compel the defendants to make the payments before the end of this year on a “best approximation” basis; (3) in the further alternative, an order requiring the parties to proceed with an expedited arbitration before an arbitrator appointed by the court. [7] The defendants respond with motions to strike and dismiss the statement of claim pursuant to Rules 99 and 173 of The Queen’s Bench Rules on the ground that the essential character of the issue raised concerns the terms and conditions of employment which, in accordance with the CBA, are beyond the jurisdiction of the court. [8] will address the defendants’ motion first. If the defendants succeed the plaintiffs’ application becomes moot. [9] The plaintiffs concede that the court is without jurisdiction to determine the issue pleaded based on the CBA and the Weber principle. They contend however that the statement of claim, while it does not assert viable cause of action, can nevertheless serve as platform for the present application for interlocutory relief. [10] Historically the law is abundantly clear that the courts could not grant an interlocutory relief in the absence of claim for substantive relief. Interlocutory relief is ancillary to the substantive relief and without the latter the former cannot subsist. An interlocutory injunction is simply not cause of action and cannot stand on its own. See: Siskina (Cargo Owners) v. Distos S.A., [1979] A.C. 210 (H.L.); and Saskatchewan Joint Board Retail Wholesale and Department Store Union v. Dairy Producers Co-operative Ltd. (1990), 1990 CanLII 7774 (SK CA), 87 Sask. R. 241 (C.A.). That seemingly straightforward jurisprudence changed significantly as the result of subsequent decision of the House of Lords in the case of Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] W.L.R. 262 (H.L.), which was followed in the Supreme Court of Canada in the case of Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] S.C.R. 495. The essential thrust of the Brotherhood case is that the residual discretionary jurisdiction of the courts of inherent jurisdiction to grant relief not available under statutory arbitration scheme is to continue to exist. As interpret Brotherhood and other cases in which it was followed, the superior courts are entitled in certain circumstances to supplement or augment the jurisdiction of other tribunals of exclusive jurisdiction. take this to mean that although the Supreme Court of Canada has clearly in Weber rejected the concepts of concurrent jurisdiction and overlapping jurisdiction the superior court continues to have some kind of parallel jurisdiction to augment the jurisdiction of alternative exclusive jurisdiction tribunals when the latter are unable for practical reasons to exercise jurisdiction or to exercise jurisdiction promptly and efficiently. [11] It appears to follow that the claim now before the court is not necessarily nullity. Although it can otherwise appropriately be struck pursuant to Rules 99 and 173 it can nevertheless subsist if only to provide platform of pleading to support an application for interlocutory relief. [12] Accordingly the defendants’ motions to strike are dismissed. [13] It then becomes necessary to determine whether the plaintiffs are entitled to mandatory injunctive relief. [14] As with all interlocutory applications for mandatory injunctive relief the plaintiffs must establish that there is strong prima facie case; secondly, that without injunctive relief there will be irreparable harm; and thirdly, that the balance of convenience between the parties as to harm arising from the relief or from the failing to grant relief favours the granting of the relief. [15] The defendants submit that, whatever the proper forum for the plaintiffs to obtain relief, the plaintiffs have not asserted a prima facie case, certainly not a strong prima facie case. The defendants contend that the plaintiffs’ claim is not based on any specific term of the CBA that the plaintiffs allege the defendants to have breached or are about to breach. There is no deadline specified in the agreement, for the retroactive payments, no positive obligation to make the payments by any particular date. Therefore there is no basis upon which the court can impose chronological deadline. It seems obvious that in the context of the myriad of detail required to finalize the CBA the parties, the plaintiff union in particular, did not consider or at least did not adequately consider, the chronological problem that was soon to emerge, and its unfortunate implications. The plaintiffs have not persuaded me that there is a strong prime facie case. There may well be, as contended on behalf of the plaintiffs, a serious issue to be arbitrated but for the purposes of the present application I find that it is not adequately framed in the pleadings and in the evidence before me to meet the applicable test. [16] I accept that there might be irreparable harm for some employees, an example of which was provided to me in the evidence submitted on behalf of the plaintiffs. In general terms though the losses which, individual employees may incur should easily be covered by damages. Indeed note that in the grievance filed concurrently on behalf of the plaintiff union there is claim for damages on behalf of the affected employees. do however take note of the submission that it may be difficult to quantify, for the purposes of assessing damages, the monetary value to some of the 2011 retirees of imposing practical limits on their choices of dates on which to retire. [17] If the case cannot be resolved on the foregoing criteria, must resort to an assessment of the balance of convenience. In this regard the defendants have provided abundant evidence that in practical terms the imposition of a deadline less than two weeks from now cannot conceivably be met. The plaintiffs have presented evidence to the contrary but it is obvious they are quite unable from their perspective to assess the degree to which mandatory chronological relief will be beyond the ability of the defendants to comply with and fulfil. [18] Although it is not essential to my decision, should comment on the concern expressed on behalf of the plaintiffs as to an undertaking as to damages which might be required in support of an interim or interlocutory mandatory injunction. Had seen fit to grant the injunctive relief do not believe that such an undertaking would have been required. do not believe the defendants to have contended otherwise. [19] I find that it is not appropriate for me to grant an injunction requiring the defendants to make the required retroactive assessment payments before the end of 2010. Neither do I see any reasonable prospect of a solution to the problem by making payments on a “best approximation” of entitlement. That is viable solution to the problem. am not persuaded that it can be done by an earlier time than fully compiled payments. In the long run the results of such solution are likely to be troublesome and chaotic. [20] As to the alternative of directing an expedited arbitration and appointing an arbitrator to conduct it, I am of the view that I am without jurisdiction to do that. More particularly, if the court were to encroach on the arbitration process in the way that has been proposed by the plaintiffs the result would be inconsistent with the determination of the Supreme Court in the Weber case that the model of overlapping jurisdiction is no longer to be followed. [21] The defendants’ motion is dismissed. The plaintiffs’ motion is dismissed. appreciate the thorough research and able submissions of counsel. will entertain submissions as to costs if counsel so request.","Employees were entitled to wage adjustments under the collective bargaining agreement. The plaintiff union brought an application for an interlocutory injunction requiring the defendant to pay employees who were retiring in 2010 their wage adjustments in the current calendar year. This was an issue because it would affect pensions and retirement dates. In the alternative, the union argued the employer should pay the entitlements before the year end on a 'best approximation' basis or be required to proceed to an expedited arbitration. The defendant brought a motion to strike or dismiss the plaintiff's motion under Queen's Bench Rules 99 and 173 on the basis that the issues raised were terms and conditions of the employment contract and outside the jurisdiction of the Court according to the terms of the collective bargaining agreement. HELD: The defendant's application was dismissed because the Court has residual discretionary jurisdiction to grant relief not available under a statutory arbitration scheme. The plaintiff's application for an injunction was also dismissed. While there may be a serious issue to be tried, the pleadings do not set forth a strong prima facie case. While there might be some irreparable harm to some employees, in general terms the losses can be dealt with through damages. It would be impossible for the defendant to meet a deadline two weeks away because of the complexity of the calculations. It is not appropriate to grant an injunction requiring the defendant to make payment before the end of 2010 and it is not reasonable to make payments based on best approximation. The Court has no jurisdiction to force arbitration on the parties.",8_2010skqb467.txt
195,"J.R THE COURT OF APPEAL FOR SASKATCHEWAN PRECISION METAL FABRICATING LTD., LOREN KATZENBERGER and SHERYL KATZENBERGER (Respondents) APPELLANTS and ROSETOWN AND DISTRICT COMMUNITY BOND CORPORATION (Applicant) RESPONDENT BEFORE: The Honourable Mr. Justice Wakeling (in Chambers) COUNSEL: Mr. N. Turcotte for the Appellants Mr. J. Litman for the Respondent DISPOSITION: Application Heard: July 10, 1996 Application Dismissed: July 16, 1996 Reasons: July 16, 1996 On Appeal From: Q.B. 993 of 1996, J.C. of Saskatoon Appeal File: 2484 Reasons by: The Honourable Mr. Justice Wakeling WAKELING J.A. This is an application of the Rosetown and District Community Bond Corporation to lift the stay which is the result of the appeal taken by Precision Metal Fabricating Ltd., Loren Katzenberger and Sheryl Katzenberger from the order of Kyle J. delivered July 11, 1996. The order in question was made pursuant to s. 234 of The Business Corporations Act, S.S. 1979, c. B-10, as a result of a finding by the chambers judge that the conduct of the Board of Directors of Precision Metal Fabricating Ltd. had been high-handed and oppressive entitling the Rosetown and District Community Bond Corporation to relief. The relief that was provided may well have been entirely appropriate, but it could have the effect of removing control of the said Precision Metal Fabricating Ltd. from Loren Katzenberger and Sheryl Katzenberger who are its present and long-time majority shareholders. This change of control could well occur as early as July 22nd, when a meeting of the shareholders is scheduled to be held at which time the voting rights of the shareholders will be changed as a result of the order of Kyle J. which is under appeal. My concern is that if the order is not upheld on appeal, it will be difficult to undo the results of the July 22nd meeting. I appreciate that banking decisions of importance must be made by the end of this month, but I cannot believe these decisions will not reflect the best interests of the company, as they will be made by the current directors who have the most to lose if they are not made in a sound and business-like fashion. In the result, the application to lift the stay is dismissed with costs to follow the result of the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 16th day of July, A.D. 1996. WAKELING J.A.",Related decision-145 SaskR 231 The chambers judge had found the conduct of the Board of Directors to be high-handed and oppressive. A meeting of shareholders was scheduled for July 22nd at which time the voting rights of the shareholders was to be changed. That order was under appeal. HELD: The application to lift the stay was dismissed with costs to follow the result of the appeal. 1)If the order was not upheld on appeal it would be difficult to undo the results of the July meeting. 2)The current directors had the most to lose if their decisions did not reflect the best interests of the company and were not made in a sound and business-like fashion.,7_1996canlii5032.txt
196,"SUPREME COURT OF NOVA SCOTIA Citation: Farrow v. Butts, 2010 NSSC 387 Date: 2010/10/21 Docket: Syd. No. 330822 Registry: Sydney Between: Jeffery William Farrow v. Kelsey Butts Respondent Judge: The Honourable Justice Patrick J. Murray Heard: September 30, 2010, in Sydney, Nova Scotia Written decision: October 21, 2010 Counsel: Jeffery William Farrow in person Kelsey Butts in person By the Court: [1] The matter before the Court is an Appeal from decision of the Smalls Claims Court of Nova Scotia. On May 18th, 2010 ,the Adjudicator issued a decision against the Appellant, Jeffery Farrow in favour of the Respondent, Kelsey Butts in the amount of $10,852 plus costs of $139.35 for a total of $11,031.35. [2] The Appellant appeals that decision by Notice of Appeal (form 9) dated June 16th, 2010, filed with the Court on the same date and, within the 30 day appeal period. The singular ground of appeal cited in the Appellant’s Notice is a “Failure to Follow the Requirements of Natural Justice”. [3] The particulars of the Appellant’s Appeal are based mainly on his claim that he did not know the hearing took place and, when he failed to show up, Judgment was awarded against him. The learned Adjudicator, after numerous attempts by the Respondent to serve the Appellant, issued an Order for Substituted Service. [4] The terms of that Order required that personal service be effected on the Respondent’s mother and as well that he the Appellant) be notified by “text message” as to the date of the hearing in the Small Claims Court by the Respondent. These matters were both completed by the Respondent prior to the hearing date of May the 18th, 2010. [5] In any Appeal under the Small Claims Court Act the Small Claims Court must issue to the Prothonotary “Stated Case “for review by the Supreme Court on appeal. Section 32(4) of the Act states as follows: “(4) Upon receipt of copy of the notice of appeal, the adjudicator shall, within thirty days, transmit to the prothonotary summary report of the findings of law and fact made in the case on appeal, including the basis of any findings raised in the notice of appeal and any interpretation of documents made by the adjudicator, and copy of any written reasons for decision.” The Stated Case in this matter is set out below by the learned adjudicator and is straight forward. STATED CASE TO: The Prothonotary Summary report of findings of John G. Khattar, an Adjudicator of the Small Claims Court of Nova Scotia. 1. The matter first came before Small Claims Court with an affidavit to request an Order for Substituted Service, dated April 2, 2010. 2. The hearing was held on April 6, 2010 and an Order for Substituted Service was issued on the 20th day of April, 2010, with the adjudicator issuing an Order for Substituted Service by serving a copy of the claim on the Defendant’s mother and by texting to the Defendant the new hearing date. 3. The matter was to return to court on May 18, 2010. 4. At the hearing on May 18, 2010, an Affidavit of Service was produced showing the document had been served on Debbie Monahan, mother of the Defendant on May 6, 2010. 5. In addition, copies of text messages between the Claimant and Defendant were introduced which showed that the Defendant was made aware that the hearing was set down for May 18, 2010, by text message by the Claimant. 6. The adjudicator was satisfied that the requirements of the Order for Substituted Service had been met and he matter proceeded. 7. The Claimant proved her claim as evidenced by Exhibit “2"" and judgment for the claimant was awarded in the amount of $10,852.00 plus costs of $139.35 for total of $11.031.35. 8. An Order was issued for this amount. DATED at Sydney, Nova Scotia, this 12th day of July, 2010. (Signed John G. Khattar, Adjudicator) [6] The right to be heard, with or without meritorious defence is right which must be strictly guarded by any Court. When judgment is made in the absence of the Defendant the standard becomes the highest to ensure due process is followed and that no breach of natural justice occurs. [7] Fundamental to natural justice is the notion that party gets to “have its say”. This appeal is such case because the Appellant was ordered to pay “upon default”, the sum referred to above, without the being present. This is commonly referred to as “entering default judgment”. In such cases, the reviewing (Appeal) Court’s level of circumspection must be at it’s highest. Even in such cases, the Claimant, the Respondent in this appeal, must still prove the validity of their claim. [8] In the case of Kemp v. Prescesky, {2006} NSJ No. 174 Justice G. M. Warner considered the issue of setting aside default judgments (in Small Claims Court) as they relate to the requirements of natural justice. In paragraph 19 Justice Warner stated: In my view, it is breach of the requirements of natural justice not to have mechanism in Small Claims Court whereby, if defendant does not file defence or appear at hearing by mistake, but can show that he or she has an arguable defence that should be heard on its merits, and he or she has reasonable excuse for defaulting and is not just stalling, (emphasis added) and there is no prejudice to the claimant's ability to prove its case, the judgment cannot be set aside. In light of the increase in the monetary jurisdiction of the court, it is as relevant to nature justice in the Small Claims Court as it is in the Supreme Court. There is still requirement that the applicant show sufficient bases for the court to exercise discretion to avoid abuse.” [9] This Court hereby adopts the reasoning of Justice Warner and in particular that which states that an Appellant must demonstrate that he or she has reasonable excuse for defaulting. [10] In Kemp v. Prescesky case (supra) ,the Appellant, mistakenly showed up for the hearing on the wrong date, which was one day after the actual hearing. While waiting around for half an hour or more, he checked the doors of the Court House several times, then assumed that Court was cancelled because of bad weather. The Appellant, in that case, then realized that it was the wrong day when he looked at the Notice of Claim then or the next day. [11] In second case, Forsyth Shannon, [1995] N.S.SJ. No. 431 dealing with default judgment issued by the Small Claims Court, Chief Justice Palmeter stated in paragraph 11 with respect to an Appeals court Review under the Act and Regulations: “In any interpretation of the revised legislation and regulations, it is my opinion that an appeal court has much more flexibility in looking into the hearing itself and the various grounds of appeal.” [12] The facts in Forsyth case, supra were that the Appellant’s wife on the night of the hearing became ill and he was forced to attend to her and was prevented from attending the hearing. In effect the appellant made decision that it was more important to attend to his wife’s illness, which appeared suddenly, than to attend the Court hearing. At paragraph 16 of it’s decision the learned Justice stated: “The other ground would be on the basis of denial of natural justice. Natural justice is simply fairness, including procedural fairness. The Adjudicator did nothing wrong in proceeding with the hearing. In my opinion he should not have done otherwise. However, in my opinion, after hearing representations made by the Appellant, this is case which must be reheard to give all parties an opportunity to present evidence and be heard by an Adjudicator. The Court has sympathy for the Appellant and for the reason he did not attend the hearing. Natural justice in my opinion demands that he be heard.” (Emphases added) [13] Turning now to the appeal at hand and the submissions made, the Appellant stated that he was not in contact with his mother for an extended period months). He therefore claimed he did not receive notice of the hearing. He did acknowledge having receiving the text message from the Respondent notifying him of the hearing date, which provision was directed by the adjudicator as part of the order for substituted service. The appellant further advised on the appeal that he chose to ignore the text message because he did not believe her (the Respondent) . The Appellant was questioned by this Court as to whether he made any further inquiries of the Small Claims Court to determine whether he was required to appear on that or any other date for the purpose of hearing. He advised the Court that he did not, believing he would receive something further in writing before the matter was dealt with by the Small Claims Court. [14] Other parts of the submission made by the Appellant did contain some inconsistencies. For example he indicated he was notified of two Court dates by the Respondent but could not provide the second court date Further he indicated he was not in contact with his mother, to whom the order for substituted service was directed, for period of three(3) months. At the Appeal he read from an unsworn letter signed by her his mother) that she was not in contact with her ‘family” for personal reasons. This meant presumably she, his mother, did not make him, the appellant, aware of the hearing date. [15] The Court, however, was not persuaded by the Appellant in his submissions. The text messages submitted by the Respondent showed that the Appellant contacted the Respondent after attempts to contact his mother had been made by her ,with him asking “why are you contacting my mother ”.This was at the same time that personal service was being effected on the Appellant’s mother. It should be noted that new evidence on an appeal is normally inadmissible However as the issue involved the right to fair hearing, the Appellant was allowed to present the contents of the letter as part of his submissions. [16] In considering person’s right to be heard, it does not automatically follow that just because they were not present that their appeal will be allowed. The Court must also view the Respondent’s actions and the courts record of events in determining whether due process was followed and whether the Rules and Regulations prescribed by the Court were adhered to. [17] Regulation 3(1) of the Small Claims Court Act states with respect to service of documents as follows: “Service of Notice of Claim and form for Defence/Counterclaim shall be by personal service or such other manner of as directed by the Court.” (emphasis added) [18] In this case the Court, in control of it’s own procedures, issued an Order for Substituted Service and as outlined in the stated case, made finding that the Order was duly served on the Appellant on May 6th) in accordance with it’s terms. In compliance with the terms, copies of the text messages between the Claimant and Defendant were introduced to show that the Defendant was made aware of the hearing set down for May 18, 2010, hearing date the Appellant stated he chose to ignore. [19] On that hearing date ,(as stated in clause of the Stated Case), the learned Adjudicator was satisfied that the requirements for the Order for substituted service had been met and the matter proceeded. He was also satisfied as per clause of the Stated Case) that the Respondent had proven her claim and made that finding as well. [20] Having reviewed the Stated Case throughly as well as the Notice of Appeal and, having considered the submissions of both the Appellant and the Respondent, the Court is not satisfied that there was failure to follow the requirements of natural justice The Appellant by his own admission was notified as to the hearing date, and by his own admission he chose to ignore it and make no further inquiries . This, is my view, does not constitute reasonable excuse as found in Kemp, supra nor one the Court has sympathy for, as found in Forsyth, supra. The Appellant was not mistaken about the date of the hearing. He was mistaken as to what would be the outcome of his absence. His conscience choice to ignore the hearing notification resulted in the judgment against him. Personal service was effected upon him by the Order for Substituted Service granted by the Adjudicator in accordance with the provisions of the Act and regulations of the Small Claims Court. This means the Respondent did everything that she was directed to do by the Small Claim Court and the Court did what it was authorized to do by statute and the Regulations. Service having been properly effected on the Respondent, the Court is not prepared to interfere with this finding of the Small Claims Adjudicator [21] In the result, the Appellant must accept the consequences of his decision to ignore the notice While I find little merit to his argument he knew nothing of the hearing date, the finding of fact that service had been effected does not result in a failure of natural justice as the court had the jurisdiction and authority to grant such an order. It therefore follows, that the court was entitled to issue default judgement against him. [22] find therefore that the Appellant’s appeal is without merit. [23] Accordingly the Appeal dismissed with costs .","The small claims adjudicator granted an order for substituted service after the respondent had trouble serving the appellant with notice of her claim. As per the order, she personally served the appellant's mother and notified the appellant of the hearing date by text message. He didn't appear and default judgement was granted against the appellant in the amount of $11,031.35. The appellant appealed, arguing the adjudicator failed to follow the natural requirements of justice. He denied being in contact with his mother. He admitted receiving the text message(s) but said he didn't believe the respondent, but didn't make any further inquiries. New evidence (a letter from his mother saying she was not in contact with her son) was allowed on the appeal. Appeal dismissed. The right to be heard is a fundamental right, and an appeal of a default judgment must be subject to the highest scrutiny. Here the respondent's claim was valid. The adjudicator had the jurisdiction/authority to make an order for substituted service and the respondent followed it. At the very least, the appellant was notified of the hearing dates by text message(s). While he may not have believed the messages, he should have taken some steps to confirm with the court if there was indeed a hearing set. He failed to prove he had a reasonable excuse for defaulting, chose to ignore the notice, and was mistaken only as to what would be the outcome if he failed to appear.",b_2010nssc387.txt
197,"T.J. KEENE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 311 Date: 2010 08 30 Docket: Q.B.C.A. No. 11/2009 Judicial Centre: Saskatoon BETWEEN: RON KOCSIS, and HER MAJESTY THE QUEEN, Respondent Appearances: Ron Kocsis on his own behalf Sandeep Bains and Marcel J.H. St. Onge for the respondent JUDGMENT POPESCUL J. August 30, 2010 Introduction [1] Very few charges laid by the Crown are declared to be void ab initio. This is because the modern approach to determining the sufficiency of informations and indictments dictates that only counts that are drafted so poorly that they bear no resemblance to an existing offence will be found to be “void” or labelled an “offence not known to law”. In this case, the charge, as drafted, is so palpably bad it does not give fair notice to the defendant of the nature of the charge nor the penalties that may be imposed if a breach is established. As result, the appeal must be allowed and the charge declared void because it does not charge an offence known to law. Procedural Background [2] The appellant, Ron Kocsis (the “appellant”), launched a summary conviction appeal against conviction and sentence following his conviction in Traffic Safety Court for “unlawfully have sunscreen in front side windows” contrary to “s. 66(3) The Vehicle Equipment Regulations (Reg 10)”. [3] The appellant was convicted after an ex parte trial before Traffic Safety Court justice (the “traffic justice”) and was fined $350.00, together with victim’s surcharge of $50.00 for total of $400.00. [4] The grounds of appeal stated in the notice of appeal are as follows: 1.) The Crown did [sic] prove their case of sunscreen being present. 2.) The Offence Notice issued on January 25, 2008 failed to describe the location of the alleged offence. 3.) The fine issued exceeded the original fine by 333% plus surcharge. Factual Background [5] On January 25, 2008, peace officer with the Saskatoon Police Service encountered the appellant operating his 2005 Hummer on public street in Saskatoon, Saskatchewan. The Hummer had after‑market tinted side windows. The peace officer issued certificate of offence. voluntary payment option of $105.00 was provided in the certificate of offence. [6] The appellant did not exercise the voluntary payment option. Instead, he sent an agent to appear on his behalf on the March 10, 2008, return date, at which time “not guilty” plea was entered and the matter was set down for trial. [7] The trial was eventually scheduled to take place on February 2, 2009. No one appeared for the appellant on that date. The Crown was given leave to proceed ex parte, and trial was held. The peace officer testified that the appellant was operating his Hummer with after‑market tinted windows on public highway, after which the traffic justice found the accused guilty as charged. [8] The Crown tendered evidence of previous convictions for the same type of offence with the same vehicle and asked the Court to impose fine of $200.00. The traffic justice commented that the appellant had been in apparent violation of the tinted window prohibition for over three years and imposed fine of $350.00, an amount greater than what was requested by the Crown and more than the voluntary payment option amount endorsed on the certificate of offence. [9] Although the self‑represented appellant did not advance the issue of the charge, as framed, being a nullity, the Court invited both the Crown and the appellant to address the issue of the sufficiency of the charge. The Crown was given an opportunity, which it took, to file written argument on the sufficiency issue. Standard of Review [10] Summary conviction appeals, such as this, are determined by the Court of Queen’s Bench in accordance with s. of The Summary Offences Procedure Act, 1990, S.S. 1990‑91, c. S‑63.1, and ss. 812(1)(a), 813 and 822 of the Criminal Code, R.S.C. 1985, c. C‑46. The powers of an appellate court, as set out in s. 686 of the Criminal Code, are made applicable by virtue of s. 822(1) of the Criminal Code. [11] Section 686(1) permits an appellate court to allow an appeal from conviction where the verdict is unreasonable and cannot be supported by the evidence, was based on wrong decision on question of law or on any ground if there was miscarriage of justice. However, the defendant’s appeal ought to be dismissed where, although not properly convicted on particular count, he was properly convicted on another count or where there was legal error made but no substantial wrong or miscarriage occurred. [12] On factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74. On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law, unless there has been no substantial wrong or no miscarriage of justice. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659. [13] The issues are: 1. Is the offence with which the appellant was charged and convicted nullity? 2. If not, has the appellant advanced any meritorious basis to disturb the conviction entered or the fine imposed? 1. Is the offence with which the appellant was charged and convicted nullity? [14] The certificate of offence, form prescribed by Form of The Summary Offences Procedure Regulations, 1991, R.R.S. c. S‑63.1 Reg 2, permits the issuer to designate, by ticking off the appropriate box, the Act or Regulation which is alleged to have been breached. Options available are: The Alcohol and Gaming Regulation Act, 1997 The Highways and Transportation Act, 1997 The Traffic Safety Act The Wildlife Act, 1998 Regulations under indicated Act Bylaw No. for (municipality) [15] In this case, the issuing officer chose the “Other” category and filled in the words “The Vehicle Equipment Regulations (Reg 10)” in the space provided and referred to s. 66(3). [16] Section 66(3) of The Vehicle Equipment Regulations, 1987, R.R.S. c. V‑2.1 Reg 10, under the general heading of “Side windows”, states: Side windows (3) The glass shall not have coatings of sunscreen or reflective material other than that applied by the glass manufacturer. [17] Although the regulations purport to prohibit after‑market tinted side windows, there is nothing in the Regulations that prescribe that contravening the prohibition constitutes an offence with corresponding penalty. [18] Section 6(2) of The Summary Offences Procedure Act, 1990, supra, authorizes the issuance of certificate of offence “[w]here the Lieutenant Governor in Council has designated offences in the regulations ...” (emphasis added). Similarly, The Summary Offences Procedure Regulations, 1991 identifies which proceedings may be commenced by the issuance of certificate of offence, and uses language such as “... offences pursuant to The Vehicle Equipment Regulations, 1987 ...” (emphasis added). [19] Here, alleging contravention of s. 66(3) of The Vehicle Equipment Regulations, 1987 by itself does not allege an offence because although it purports to prohibit the use of certain tinted windows on vehicles, it does not provide that the contravention of the prohibition is an offence that carries with it penalty. It is prohibition, without the creation of an offence or imposition of penalty. [20] Accordingly, conclude that s. 66(3) of The Vehicle Equipment Regulations, 1987, although purporting to prohibit the use of after‑market tint on side windows of vehicles, does not make it an offence to do so. [21] It would appear that it could be possible to frame count so as to allege an offence of operating vehicle that has after‑market tinted side windows because, as mentioned above, s. 66(3) contains the after‑market tinted side windows prohibition. The Vehicle Equipment Regulations, 1987 were passed pursuant to The Vehicle Administration Act, S.S. 1986, c. V‑2.1, which was repealed by The Traffic Safety Act, S.S. 2004, c. T‑18.1, in 2006. The Vehicle Equipment Regulations, 1987 continues in force under The Traffic Safety Act. If one reviews The Traffic Safety Act, it is clear that it is an offence to operate vehicle on highway that is not equipped in accordance with that Act or its Regulations: Prohibition on operation of unequipped vehicles 113 No person shall operate or cause to be operated on highway vehicle that is not equipped in accordance with this Act and the regulations. ... General offence and penalty 275 Any person who contravenes any provision of this Act or the regulations for which no other penalty is specifically provided ... is guilty of an offence and liable on summary conviction: (a) in the case of an individual, to fine of not more than $1,000; and [22] Accordingly, it is not an offence to possess vehicle that has after‑market tinted windows; however, it is an offence, punishable by fine of up to $1,000.00, to operate or cause to be operated motor vehicle on public highway that is not equipped in accordance with the regulations (i.e., s. 66(3) of The Vehicle Equipment Regulations, 1987 after‑market tinted side windows). [23] The question that next arises is whether the court ought to simply amend the count to fix the problem. For the reasons set out below, I find that it is not possible to amend the count so as to cure the defect. This is because the count, as drafted, is a nullity, and a nullity is not capable of amendment. One cannot fix nothing. [24] At one point in the history of our inherited common law, it was necessary for the Crown to draft criminal pleadings with meticulous care. If the Crown’s pleadings were not exact, it was not uncommon for courts to quash informations or indictments for even the smallest technical defect. See Tim Quigley, Procedure in Canadian Criminal Law, 2nd ed., looseleaf (Toronto: Carswell, 2005) at 17.1‑17.2. [25] However, this technical approach has given way to the “modern approach”, which requires that courts determine cases on the merits, rather than on “technicalities”, where possible. This modern approach is based upon the wording of several Criminal Code provisions, such as ss. 581, 582, 583, 584, 585, 586 and 601, and judicial decisions, including R. v. Moore, 1988 CanLII 43 (SCC), [1988] S.C.R. 1097; R. v. Côté, 1977 CanLII (SCC), [1978] S.C.R. 8, and R. v. Major, 1976 CanLII 173 (SCC), [1977] S.C.R. 826. [26] Generally speaking, conviction based upon defective information ought not be found to be nullity “... so long as charge contains in substance an allegation that an offence has been committed ....” (R. v. Moore, supra, at p. 1107). [27] In Côté, supra, the accused was charged with failing to provide breath sample after demand was made by peace officer. The information did not contain the words “without reasonable excuse”, an essential averment of the offence. The Supreme Court of Canada held that the lack of an essential averment did not result in the count being found to be nullity because the accused was reasonably informed of the charge against him. At page 13, de Grandpré, speaking for the majority, stated: ... the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of full defence and fair trial. When, as in the present case, the information recites all the facts and relates them to definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to the extreme technicality of the old procedure. [Emphasis added.] [28] In Moore, supra, at pp. 1108-09, the Supreme Court held that as result of the application of the principles in Côté and Major: ... it is no longer possible to say that defective information is automatically nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it is not nullity and can be amended under the broad powers of amendment s. 529 [now s. 601] gives to the courts. Only if charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c) [now s. 581(2)(c)]. charge that is this defective would have to be quashed. ... [29] At the risk of oversimplification, the Supreme Court has stated that defective count should be amended and/or conviction based upon defective information ought not be disturbed on appeal (even if essential averments are omitted, but provided that the Crown has proved the essential elements) if, at least, the Crown got the statute and the section number right. [30] Here, unfortunately, the Crown did not allege the proper statute (The Traffic Safety Act) or the correct section number (ss. 113 and 275 of The Traffic Safety Act). [31] The essence of the offence is not the existence of a tinted window but, rather, operating a motor vehicle on a highway with prohibited equipment, to wit, after‑market tinted side windows. [32] Looking at s. 66(3) of The Vehicle Equipment Regulations, 1987, on its own, does not provide the accused with fair notice of the charge that he faces or the penalty that he faces for the contravention. [33] Accordingly, the charge is nullity and is void ab initio. Because it is nullity, the count cannot be amended so as to breathe life into something that is nullity. The appeal is allowed, and the conviction is quashed. [34] It should also be noted that the certificate of offence provided voluntary payment of $105.00. The Summary Offences Procedure Regulations, 1991 permits person, to whom ticket is issued, to accept responsibility by making voluntary payment in the prescribed amount in certain cases. There does not appear to be the legislative authority for the utilization of voluntary payment for an alleged violation of operating motor vehicle on public highway which has after‑market tinted side windows regardless of the way the charge was framed. [35] There will be no order as to costs. J. M.D. Popescul","The accused was charged with having aftermarket tint on the side windows of his vehicle. He appealed on other grounds. The summary conviction appeal judge raised the issue of the sufficiency of the charge on its own motion. The face of the ticket purported to charge the accused with an offence under s. 66(3) of The Vehicle Equipment Regulations. HELD: The charge was declared a nullity because it was drafted so poorly that it did not give fair notice to the accused of the charge or the penalty to be imposed if breach was established. Section 66(3) of The Vehicle Equipment Regulations purports to make displaying aftermarket tint an offence, but the section is a charging offence and does not prescribe a penalty. The correct way to charge an accused with this offence is under s. 113 of The Traffic Safety Act which makes it an offence to operate a motor vehicle on a public highway that is not equipped in accordance with the regulations. The count could not be amended to cure the defect because the charge was a nullity and void ab initio. The conviction was quashed.",b_2010skqb311.txt
198,"J. 2001 SKQB 332 Q.B.G. A.D. 2000 No. 3442 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GUNNER INDUSTRIES LTD. and CLINT KIMERY and HER MAJESTY THE QUEEN RESPONDENT David G. MacKay for the appellants Wade E. McBride for the respondent JUDGMENT McLELLAN J. June 28, 2001 [1] The appellants appeal their convictions for the following two offences under the Excise Tax Act, R.S.C. 1985, c. E-15, as am. (the ""Act""): Count #1 THAT GUNNER INDUSTRIES LTD. of 682 Adams Street, Regina, Saskatchewan and Clint Kimery of 682 Adams Street, Regina, Saskatchewan, on or about the 16th day of November, A.D. 1999, at Regina, in the Province of Saskatchewan, did, while operating as Goods and Services Tax Registrant, and while subject to the provisions of the Excise Tax Act, unlawfully fail to file Goods and Services Tax Returns as required by section 282 thereof, for the return for the period January 1, 1999 to March 31, 1999; thereby committing an offence contrary to section 326 of the Excise Tax Act. Count #2 THAT GUNNER INDUSTRIES LTD. of 682 Adams Street, Regina, Saskatchewan and Clint Kimery of 682 Adams Street, Regina, Saskatchewan, on or about the 16th day of November, A.D. 1999, at Regina, in the Province of Saskatchewan, did, while operating as Goods and Services Tax Registrant, and while subject to the provisions of the Excise Tax Act, unlawfully fail to file Goods and Services Tax Returns as required by section 282 thereof, for the return for the period April 1, 1999 to June 30, 1999; thereby committing an offence contrary to section 326 of the Excise Tax Act. [2] The appellants received the minimum fines relating to each count in the sum of $1,000.00. [3] The appellants raised a number of grounds for the appeal which may be summarized as follows: The Court lacked jurisdiction to proceed with the matter by reason of alleged defects in the summons or alternatively the appellants were not properly advised of the charges they were facing contrary to s. 11(a) of the Canadian Charter of Rights and Freedoms; The appellant Kimery should not have been convicted of an offence allegedly contrary to s. 330 of the Act when the information set out an offence contrary to s. 326 of the Act; There was no evidence to justify the learned Provincial Court judge\'s finding that returns were not filed; That there was unreasonable delay which compromised the appellants\' right to a fair trial; That the demand for a return which was filed was invalid as there was no proof that it was signed by some person authorized to sign on the Minister\'s behalf. II The Summons [4] Did the Provincial Court lack jurisdiction to try the appellants? [5] In R. v. Peters (1981), 1981 CanLII 2491 (SK QB), 12 Sask. R. 312 (Q.B.), Cameron J. (as he then was) was faced with similar argument. He relied on the decision of R. v. Hughes (1879) Q.B. 614, to hold that the defect in the summons before him did not destroy the jurisdiction of the trial judge. Cameron J. pointed out at p. 315: In R. v. Hughes (1879), Q.B. 614, (cited with approval in Lowe v. Azzopardi, 1976 CanLII 963 (SK CA), [1976] W.W.R. 377 (Sask. C.A.), and R. v. Gougeon (1981), 1980 CanLII 2842 (ON CA), 55 C.C.C. (2d) 218 (Ont. C.A.), it was said at p. 625 in respect of case in which the accused was brought before the court ""upon as illegal warrant as ever was issued"": Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of trial could take place .... [6] Any irregularities or defect as to the form or service of the summons are of no moment. The record clearly indicates that the appellants appeared, pleaded and proceeded with the trial. It must also be noted that s. 822(7) of the Criminal Code (which applies to appeals from summary conviction court) provides that: 822(7) The following provisions apply in respect of appeals under subsection (4): (a) where an appeal is based on an objection to an information or any process, judgment shall not be given in favour of the appellant (i) for any alleged defect therein in substance or in form, or (ii) for any variance between the information or process and the evidence adduced at trial, unless it is shown (iii) that the objection was taken at trial, and (iv) that an adjournment of the trial was refused notwithstanding that the variance referred to in subparagraph (ii) had deceived or misled the appellant .... The record indicates that there was no objection taken by the appellants. [7] The appellant Kimery never requested an adjournment nor was there any suggestion that he desired to be represented by counsel. [8] There is nothing in the record to suggest that Kimery was confused or misled by the proceedings, nor can there be any suggestion that Kimery did not understand the nature of the charges the appellants were facing. Furthermore, there is no merit in the suggestion by the appellants that the trial judge somehow failed in his duty by reason of the fact that the accused was not represented by counsel. The trial judge did everything required of him in the circumstances. [9] Was the appellant Kimery wrongfully convicted under s. 330 of the Act? [10] The offence that was before the Court was that both the corporation and Kimery failed to file the appropriate returns required to be filed on behalf of the business carried on by Gunner Industries Ltd. [11] Sections 326 and 330 provide as follows: 326.(1) Every person who fails to file or make return as and when required by or under this Part or regulation made under this Part or who fails to comply with an obligation under subsection 286(2) or section 288, 289 or 292 or an order made under subsection (2) is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to (a) fine of not less than $1,000.00 and not more than $25,000; or (b) both fine referred to in paragraph (a) and imprisonment for term not exceeding twelve months. 330. Where person other than an individual is guilty of an offence under this Part, every officer, director or agent of the person who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether the person has been prosecuted or convicted. [12] I agree with Mr. McBride that s. 330 does not set out a separate offence but merely clarifies the circumstances under which a director can be convicted of the same offence as a party. This is no different than the situation of an accused being charged with a substantive offence under the Criminal Code on the theory that he is a party by virtue of s. 21 of the Criminal Code. The person is charged as though he committed the offence and the Crown is not required to stipulate precisely whether he committed the offence as principal or party. The Court may convict if it finds that the accused participated either as principal or party. [13] Section 330 is an analogous provision which contemplates that, where corporation is guilty of an offence of failing to file the appropriate returns director may be convicted as party provided that the director either directed, assented to, acquiesced in, or participated in the commission of the offence. [14] There was evidence to support the trial judge's finding that Kimery was guilty under s. 330. During the period in question where the returns were required to be filed, Kimery was the sole director of the corporation. It was open to the trial judge to find that Kimery must have directly participated in or at the least acquiesced in the failure to file the appropriate GST return. [15] Was there evidence to support the trial judge's finding that no returns were filed? [16] The appellants filed blank returns. The trial judge found as a fact that there was no information relating to GST in any of the documents which were filed. I agree with the trial judge that the returns purportedly filed were not merely defective but did not qualify as returns at all. [17] The appellants did not attempt to comply with the requirements of the Act. The returns were neither informative nor responsive to those requirements. [18] In short, there was evidence to support the finding by the trial judge that the appellants\' failed to file returns as required by s. 326. Unreasonable Delay [19] The argument that the appellants were denied the right to a trial within a reasonable time as required by s. 11(b) of the Charter is without merit. [20] It is trite law that the right to be tried within reasonable time is right which arises only after an individual has been charged. Pre-charge delay is not a factor which can be taken into account at this stage. [21] agree with the Crown that before proceeding with criminal prosecution it was appropriate for the enforcement officials of the Regina Tax Services Office to attempt to ensure compliance with less strenuous and severe measures such as correspondence and demands. The appellants having failed to rectify the omission after such reasonable opportunities cannot now be heard to say that they were somehow prejudiced. [22] Once charges were laid the matter proceeded to trial within a reasonable period of time. VI No Valid Proof of Demand [23] Marianne Fitzgerald was director of the Regina Tax Services Office, Department of National Revenue, during the time period in question. The affidavit of service filed as exhibit P-4 has annexed to it as exhibit ""A"", true copy of the ""Demand for GST/HST Return(s)"" addressed to Gunner Industries Ltd. and Clint A. Kimery (being director of Gunner Industries Ltd.). facsimile of Ms. Fitzgerald's signature appears on the demand as does the title of her position as Director, Regina Tax Services Office. The demand was served on October 15, 1999. [24] The appellant argues that the Crown has tendered no evidence to prove that the field position of ""Director Tax Services Office"" is authorized to exercise the powers and perform the duties of the Minister. [25] The relevant sections of the Act state as follows: 282 The Minister may, on demand served personally or by registered or certified mail, require any person to file, within such reasonable time as may be stipulated in the demand, return under this Part for such period or transaction as may be designated in the demand. 275(1) The Minister shall administer and enforce this Part and the Commissioner may exercise all the powers and perform the duties of the Minister under this Part. (2) Such officers, agents and employees as are necessary to administer and enforce this Part shall be appointed or employed in the manner authorized by law. (3) The Minister may authorize designated officer or agent or class of officers or agents to exercise powers to perform duties of the Minister under this Part. [26] Noble J. was faced with similar argument in R. v. Swyryda (1981), 1981 CanLII 2095 (SK QB), 11 Sask. R. 188 (Q.B.). In that case, the accused appealed from income tax convictions on the basis that the requirement letter sent to him was signed, not by the individual named in the letter, R. J. MacIssac, Director-Taxation of the Saskatoon district office, but in his absence by the Chief of Verification and Collections, one Larry Potven. This signature was authorized by policy in the Saskatoon office. [27] The accused argued that the Chief of Verifications and Collections was not authorized by the Income Tax Act, R.S.C. 1952, c. 148 (now repealed), to sign the requirement letter. [28] Noble J. decided that s. 244(13) of the Income Tax Act provided definitive answer to the issue of authorization. He stated at p. 192: In my opinion, the fact that the letter of requirement was signed with the handwritten words of Mr. Potven using the name ""R. J. MacIssac"" over the typed or printed designation of ""Director-Taxation"" is sufficient to bring the document within the type described in sec. 244(13). Nothing in that section says that the document must be personally executed by someone specifically designated by the Minister pursuant to the regulations. On the facts of this case the requirement letter or demand was made during the ordinary course of the administration and enforcement of the Act by officials of the department. As has been pointed out number of times by our courts, administrative functions can be delegated, for if it were otherwise, in modern government it would be difficult to accomplish anything.... [29] Section 244(13) of the Income Tax Act, R.S.C. 1985, c. (5th Supp.), as am. provides: 244(13) Every document purporting to have been executed under, or in the course of the administration or enforcement of, this Act over the name in writing of the Minister, The Deputy Minister of National Revenue, the Commissioner of Customs and Revenue or an officer authorized to exercise power or perform duty of the Minister under this Act is deemed to have been signed, made and issued by the Minister, the Deputy Minister, the Commissioner or the officer unless it has been called in question by the Minister or by person acting for the Minister or Her Majesty. The corresponding subsection in the Act, is s. 335(8) and it reads in almost identical terms as follows: 335(8) Every document purporting to have been executed under or in the course of the administration or enforcement of this Part over the name in writing of the Minister, the Deputy Minister of National Revenue, the Commissioner or an officer authorized to exercise the powers or perform the duties of the Minister under this Part, shall be deemed to be document signed, made and issued by the Minister, the Deputy Minister, the Commissioner or the officer, unless it has been called in question by the Minister or person acting for the Minister or for Her Majesty in right of Canada. [30] The Alberta Court of Appeal recently approved of Noble J.'s decision in Swyryda, supra, in R. v. Ehli, 2000 ABCA 170 (CanLII); A.J. No. 706 (QL); 261 A.R. 178. In that case the taxpayer was convicted for having failed to comply with Ministerial demand under the Income Tax Act. One of the grounds of appeal was that the demands made of the taxpayer, pursuant to s. 231.1(1)(a) of the Income Tax Act constituted an unlawful subdelegation of authority by the Director-Taxation. The notice sent to the applicant was signed using facsimile stamp of the signature of the Director. The stamp had been affixed by an employee of the Canada Customs and Revenue Agency who had been authorized by the Director to prepare and issue documents such as the notice in question and had been permitted by the Director to use the facsimile signature stamp. [31] Berger J.A. quotes from Noble J.'s decision in Swyryda, supra, at paras. and and concludes at para. 8: have considered the very able submission of counsel for the Applicant to the effect that appellate pronouncement by full panel of this Court would settle the law. No Court, over the 19 year period since Swyryda, supra, was decided, has taken issue with the reasoning of Noble, J. The legislative enactment, in my opinion, leaves no doubt that Swyryda was, with respect, correctly decided. The question raised is not, in my opinion, of arguable merit nor matter of sufficient importance to warrant review by this Court. For these reasons, the application is refused. [32] Berger J.A. also pointed out that the Tax Court of Canada in Bancheri v. Canada (Minister of National Revenue-M.N.R.), [1999] T.C.J. No. 22 (QL) (T. Ct.) concluded that Swyryda was properly decided. [33] In my view the decision of Noble J. is complete answer to the argument advanced by the appellants. Furthermore, regard must be had to s. 24(2) of the Interpretation Act, R.S.C. 1985, c. I-21, as am. by S.S. 1992, c. 1, s. 89, which provides as follows: 24(2) Words directing or empowering minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include (a) minister acting for that minister, or, if the office is vacant, minister designated to act in the office by or under the authority of an order in council; (b) the successors of that minister in the office; (c) his or their deputy; and (d) notwithstanding paragraph (c), person appointed to serve, in the department or ministry of state over which the minister presides, in capacity appropriate to the doing of the act or thing, or to the words so applying. This statutory provision specifically gives implied powers to persons acting under the authority of minister of any Crown department over which that minister resides to undertake any act or thing on behalf of the minister if that person is acting in capacity appropriate to do the doing of that act or thing. [34] Section 24(2) appears to be codification of the common law frequently referred to as the Carltona principle based upon the English case Carltona, Ltd. v. Commissioners of Works and Others, [1943] All E.R. 560 (C.A.). In that case the court set forth the classic definition of the authority of those who perform the statutory responsibilities of Ministers of the Crown at p. 563: In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the ministers. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them. [Emphasis added] [35] The Carltona case was followed by the Supreme Court of Canada in R. v. Harrison, 1976 CanLII (SCC), [1977] S.C.R. 238, where the court held that responsible and experienced officials will have the ability to exercise the Minister's authority in accomplishing Ministerial duties. [36] Henry T. Molot published review of the principles of Carltona in the light of 1992 amendments to the Interpretation Act. (See The Carltona Doctrine and the Recent Amendments to the Interpretation Act, (1994), 26 Ottawa Law Rev. 257). As to which officials may exercise the Minister's authority, Molot makes the following observations at pp. 272-3: Who then within department may exercise the Minister's powers on the basis of Carltona? As noted above, the cases have placed general limits on which officials may act. So, according to Carltona, the officials have to be ""responsible""; according to Golden Chemical, ""appropriate officials""; and according to Harrison, ""departmental officials of experience and competence"". [37] The question then emerges: Does this Ministerial authority of an appropriate official have to be documented in order to be valid? Molot, at p. 273, thinks not: ... Therefore, unlike delegation of authority where evidence is necessary to show that the power in question had been delegated to the person purporting to exercise that power, the Carltona principle operates without the need for documentary or other evidentiary links in the chain of authority between the Minister and the departmental official acting for and on his or her behalf. agree. The authority in those cases is implicit, it would be different if the authority was explicit. [38] Molot concludes at p. 275: ... Therefore, the Carltona principle ordinarily will enable departmental official to exercise those powers, duties and functions of that department's Minister which are ""incidental and appropriate to [the] functions"" of that official.... [39] The broad principles set forth in Carltona, supra, have been restricted in subsequent decisions. In Bancheri, supra, Porter T.C.J. held that the Carlton principle would not allow for an implicit scheme of delegation of authority to override an explicit statutory or regulatory one. He correctly points out at para. [45] ... that in making provision for the Minister to make regulations providing for the delegation of his powers and duties, with the consent of the Governor General in Council, Parliament intended to put the brakes on the otherwise generally recognized powers of delegation, and those brakes were applied in this case by the promulgation of such regulations. It would be farce to require the Minister to have the consent of the Governor General in Council to make regulations delegating his powers and at the same [time] to allow the person, to whom he has so delegated, to re-delegate those same powers without more ado. In such situation the designate would have more authority to delegate than the Minister himself, and clearly that could not have been within the contemplation of Parliament. [40] He also points out that the Interpretation Act does not override an explicit statutory or regulatory delegation of authority. It operates in the general scheme of things and incorporates the common law doctrine as enunciated in R. v. Harrison, supra, (para. 46). [41] Porter T.C.J. makes reference to the decision of Gunn J. in Yorkton Restaurant Venture Capital Corp. v. Government of Saskatchewan (Minister of Economic Development) (1994), 1994 CanLII 5223 (SK QB), 118 D.L.R. (4th) 735 (Q.B.). [42] Counsel for the appellants argues that Gunn J. takes view, on the delegation of Ministerial authority, contrary to that expressed by Noble J. in R. v. Swyryda, supra. disagree. Gunn J. makes the following statement at p. 749: Delegation of authority or power may be explicit or implicit. The courts have been prepared to recognize the implicit power of delegation by Ministers who are unable personally to solve all problems that might arise in applying the Acts for which they are responsible. However, more caution must be exercised in the review of implicit delegation by Deputy Ministers and agencies, particularly when the power sought to be exercised involves an element of judgment, discretion and the rights of citizens. [43] The Act under consideration by Gunn J. did not explicitly provide any authority for express delegation. However, she pointed out that the Interpretation Act, 1993, S.S. 1993, c. I-11.1, which was in force at that time, provided for delegation to the Deputy Minister but did not provide any authority for further delegation by the Deputy Minister. In that case revocation of registration under The Venture Capital Tax Credit Act, S.S. 1983-84, c. 4.1 (now repealed), was not signed by either the Minister or his Deputy. [44] In setting aside the revocation, Gunn J. placed much emphasis on the discretionary powers of the Minister and the fact that the Act purports to severely limit any rights of appeal from the Minister. In other words, she was not dealing with an administrative act such as sending notice or request to file return in compliance with the relevant statutory requirements. [45] It must also be noted that The Interpretation Act, 1995, S.S. 1995, c. I-11.2 as am., now contains the following provision: 23(2) Where an enactment directs or empowers minister of the Crown to do an act or thing, that act or thing may be done on the minister's behalf by any person appointed to serve in the department over which the minister presides if: (a) the minister has, in writing, authorized that person, by name or by office, to do the act or thing; or (b) that person is appointed to serve in capacity appropriate to the doing of the act or thing whether or not he or she, or any other person, was authorized by the minister to do the act or thing. [46] The service of the demand in this case was not part of an explicit statutory or regulatory scheme of delegation. It falls under an implicit scheme of delegation and sub-delegation as allowed at common law and in accordance with the Federal Interpretation Act. [47] The service of demand to file GST return upon business operation in the City of Regina is clearly an appropriate act to be performed by the Director of the Regina Tax Services Office. The execution and serving of such a demand is purely an administrative act. It does not require the exercise of a Ministerial discretion nor does it deprive any citizen of his or her rights by restricting any right to appeal. The notice simply requires a taxpayer to comply with the statutory requirements of the Act. The fact that the true copy of the notice annexed to the affidavit of service contains a facsimile signature is of no moment. CONCLUSION [48] I can find no error by the trial judge and the appeal is therefore dismissed.","An appeal of convictions on two offences under the Excise Tax Act. Grounds for the appeal were summarized as lack of jurisdiction to proceed because of alleged defects in the summons; alternatively, the appellants were not properly advised of the charges they were facing contrary to s.11(a) of the Charter; Kimery should not have been convicted of an offence contrary to s.330 when the information set out an offence contrary to s.326 of the Excise Tax Act; there was no evidence to justify a finding that the Goods and Services Tax returns were not filed; unreasonable delay compromised their right to a fair trial; the demand for a return which was filed was invalid as there was no proof that it was signed by a person authorized to sign on the Minister's behalf. HELD: The appeal was dismissed. 1)Any defects as to the form or service of the summons were unimportant. The record clearly indicated the appellants appeared, pleaded and proceeded with the trial and made no objection. Kimery never requested an adjournment nor was there any suggestion that he desired to be represented by counsel. There was nothing to suggest he was confused or misled by the proceedings or that he did not understand the nature of the charges the appellants were facing. The trial judge did everything required of him in the circumstances. 2)Section 330 does not set out a separate offence but merely clarifies the circumstances under which a director can be convicted of the same offence as a party. This is no different than the situation of an accused being charged with a substantive offence under the Criminal Code on the theory that he is a party by virtue of s.21 of the Criminal Code. Kimery was sole director of the corporation during the period in question when the returns were required to be filed. It was open to the trial judge to find he must have directly participated in or at least acquiesced in the failure to file the appropriate GST returns. 3)There was evidence to support the finding that the appellants failed to file returns as required by s.326. The appellants filed blank returns. The trial judge found as a fact that there was no information relating to GST in any of the documents.  It was agreed the returns were not merely defective but did not qualify as returns at all. 4)The appellants were not denied the right to a trial within a reasonable time as required by Charter s.11(b). Pre-charge delay is not a factor which can be taken into account at this stage. The appellant, having failed to rectify the omission after reasonable opportunities, could not now say they were somehow prejudiced. Once charges were laid, the matter proceeded to trial within a reasonable time.  5)The decision in R. v. Swyryda is a complete answer to the argument that the field position of 'Director Tax Services Office' was not authorized to exercise the powers and perform the duties of the Minister. Also, s.24(2) of the Interpretation Act gives implied powers to persons acting under the authority of a minister of any Crown department over which that minister resides to undertake any act or do anything on behalf of the minister if that person is acting in a capacity appropriate to do the act or thing. Section 24(2) appears to be a codification of the common law, frequently referred to as the Carltona principle based upon the 1943 English case, and followed in R. v. Harrison where the SCC held that responsible and experienced officials will have the ability to exercise the Minister's authority in accomplishing Ministerial duties. The service of the demand in this case was not part of an explicit statutory or regulatory scheme of delegation. It falls under an implicit scheme of delegation and sub-delegation as allowed at common law and in accordance with the Federal Interpretation Act.  The execution and service of a demand to file a GST return is purely an administrative act.  It does not require the exercise of Ministerial discretion nor does it deprive any citizen of any right by restricting a right to appeal. The notice simply requires a taxpayer to comply with the statutory requirements of the Act. The fact that the true copy of the notice annexed to the affidavit of service contains a facsimile signature is not significant.",3_2001skqb332.txt
199,"nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 130 Date: September 9, 2010 Information: 43397893 Location: Saskatoon Between: Her Majesty the Queen and Michael Anthony Pesenti Appearing: Dorinda Stahl For the Crown Michael Owens For the Accused INTERIM DECISION D.E. LABACH, [1] The accused, Michael Pesenti, is charged that on or about August 9, 2009, at Saskatoon, Saskatchewan, he did: a) commit an offence under s. 254(5) of the Criminal Code and, at the time of committing the offence, knew or ought to have known, that his operation of the motor vehicle caused an accident resulting in bodily harm to another person, contrary to s. 255(2.2) of the Criminal Code; and b) operate motor vehicle while his ability to operate the vehicle was impaired by alcohol or drug and did thereby cause bodily harm to Neil Honatzis, contrary to s. 255(2) of the Criminal Code. [2] He came before me for preliminary inquiry on these charges on July 26, 2010. After the Crown had called all of their witnesses on the preliminary inquiry, asked Defence Counsel if they had any witnesses to call on behalf of the accused. They advised that they had one witness they wished to call but required an adjournment as that witness was not available to testify on this date. The Crown opposed the Defence adjournment request. It is on this request that must now make decision. [3] By way of background, the accused’s charges were first before the Court on August 10, 2009 and shortly thereafter he retained Mr. Owens to represent him. On August 19, 2009, Mr. Owens wrote to the Crown requesting full and complete disclosure. [4] An initial disclosure package was prepared and forwarded to Defence Counsel on August 24, 2009. Since this incident involved a motor vehicle accident, included in this package was a narrative, notes and calculations done by Sergeant Barbar, an accident reconstructionist with the Saskatoon Police Service as well as eight pages of Crash Data Retrieval Information. [5] On August 26, 2009, Defence Counsel wrote the Crown requesting that they review his August 19th disclosure request and forward any further disclosure that had yet to be sent. [6] Both charges the accused was facing were indictable. On December 21, 2009, Mr. Owens, on behalf of the accused, elected trial by Queen’s Bench Judge without Jury and requested preliminary inquiry date. The inquiry was set to July 26, 2010 and Case Management hearing was set to May 4, 2010. [7] Subsequent disclosure was forwarded by the Crown to Defence Counsel as follows: February 25, 2010 photographs taken by Sergeant Barbar and witness list for the preliminary hearing; March 4, 2010 an audio disk and the MDTT; April 14, 2010 the booking photograph of the accused and the hospital records of the complainant. [8] It is of some significance that in the witness list forwarded by the Crown on February 25, 2010, they advised that they would be calling four witnesses at the preliminary inquiry. Sergeant Barbar was not listed as one of those witnesses. [9] On May 4, 2010, case management conference on this matter took place in front of my colleague, Judge Agnew. review of his notes from the case management shows that Mr. Owens took no issue at this time with the witness list provided by the Crown or with the fact that Sergeant Barbar was not going to be called by the Crown at the preliminary inquiry. [10] Following the case management conference, the Crown forwarded further disclosure as follows: May 28, 2010 detention video of the accused; June 15, 2010 Highway Traffic Board Report; June 16, 2010 further notes of Sergeant Barbar. [11] On June 22, 2010, Mr. Owens wrote to the Crown. According to the Crown, in this letter, Mr. Owens asked that they have Sergeant Barbar available as a witness for the preliminary hearing. According to Mr. Owens, his letter asked that Sergeant Barbar be made available for the preliminary inquiry as the Defence may wish to call him as witness. However it read, this was the first occasion that Defence Counsel made the Crown aware that they wished Sergeant Barbar to be present as witness at the preliminary inquiry. [12] The Crown responded to Mr. Owens by way of e-mail dated June 23, 2010. In their e-mail they advised that Sergeant Barbar was not available to testify at the preliminary inquiry as he was out of the country for 2010 having being seconded to peace keeping mission in Afghanistan. Despite his absence, the Crown requested the Defence agree to admit Sergeant Barbar’s calculations regarding the accident and the accompanying data he accumulated including the crash data retrieval information for the purposes of the preliminary inquiry. [13] Mr. Owens wrote back to the Crown and advised that he was not prepared to simply let this evidence be admitted at the preliminary inquiry without Sergeant Barbar being called as witness. [14] The preliminary inquiry proceeded on July 26, 2010. The Crown called the four witnesses they advised they were going to call and then they closed their case. The Court heard no evidence of any measurements, observations or calculations made by Sergeant Barbar in relation to an accident reconstruction nor did the Crown attempt to file any crash data retrieval information. [15] The Court then asked Mr. Owens if he had any witnesses to call on the preliminary inquiry and he advised that he wished to call Sergeant Barbar. Since Sergeant Barbar was not available at present, Mr. Owens requested an adjournment to call him. The Crown opposed this adjournment request. [16] The only issue need address is whether the Defence is entitled to an adjournment to call Sergeant Barbar as witness. [17] The primary purpose of preliminary hearing is to satisfy the justice that there is sufficient evidence to put the accused on trial, with the result that the Crown has discretion to present only enough evidence to establish prima facie case. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Barbeau 1992 CanLII 76 (SCC), [1992] S.C.R. 845 at para. 22; R. v. Sazant 2004 SCC 77 (CanLII), [2004] S.C.R. 635 at para. [18] The secondary purpose of preliminary inquiry is to provide the accused with an early opportunity to discover the Crown’s case against him. However, this discovery function remains incidental to the main focus of the preliminary inquiry, that is, the determination of whether there is sufficient evidence to put the accused on trial for the offences charged. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Hynes 2001 SCC 82 (CanLII), [2001] S.C.R. 623 at para. 31; v. B.(E.) (2002) 2002 CanLII 23582 (ON CA), 162 C.C.C. (3rd) 451 (Ont. C.A.) at para. 41. [19] There was some argument from Defence Counsel that should adjourn the preliminary inquiry and force the Crown to call Sergeant Barbar once he returns from Afghanistan because to do otherwise would limit the accused’s ability to make full answer and defence. Defence Counsel seemed to be of the view that since the Crown asked him to admit Sergeant Barbar’s data and calculations regarding his accident reconstruction at the preliminary inquiry, this was an indication they would be relying on his evidence at trial. They pointed to the fact that Crown counsel would not commit to not calling Sergeant Barbar at the accused’s trial as an indication that they viewed his evidence as important. cannot say that agree with Defence Counsel’s position in this regard. And even if did, have no authority to force the Crown to call particular witness at preliminary inquiry, let alone their entire case. [20] Unlike at trial, justice conducting preliminary inquiry has no power to direct Crown counsel to call certain witnesses. The Crown has an unfettered discretion to call whatever witnesses it requires. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-4, para. 13:0040; Salhany, R. E., Canadian Criminal Procedure (6th ed.) p. 5-16, para. 5.480; R. v. Brass (1981), 1981 CanLII 2366 (SK QB), 64 C.C.C. (2nd) 206 (Sask. Q.B.). [21] Moreover, the evidence adduced at preliminary inquiry does not reflect the whole of the evidence which will be presented at trial nor does it reflect the strength of the Crown’s case at trial. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Power, 1994 CanLII 126 (SCC), [1994] S.C.R. 601 at para. [22] If am to grant this adjournment it must be on the basis that the Defence wishes to call Sergeant Barbar as witness rather than that the Crown has an obligation to call him as part of their case. [23] Section 537(1)(a) of the Criminal Code states as follows: justice acting under this Part may: a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of witness, the inability of witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason; [24] The principles which must guide justice in the exercise of the discretion to adjourn preliminary inquiry because witness is unavailable are those developed at common law and applied at trials. The conditions which must ordinarily be established were put succinctly in R. v. Darville (1956) 113 C.C.C. 117 (S.C.C.): a) That the absent witnesses are material witnesses in the case; b) That the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of these witnesses; c) That there is reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial. See R. v. McKenzie 1989 Carswell BC 592 (B.C.S.C.) at para. 18; R. v. Abel 2009 CarswellNWT 63 (N.W.T. Terr. Ct.) at paras. and 5. [25] Applying the first principle in Darville, supra, to the present case, I cannot be certain that Sergeant Barbar is not a material witness in this preliminary inquiry. He was present at the accident scene and took measurements, made notes and did some calculations. How he did his measurements, the assumptions and notes he made and the formulas he used to do his calculations may prove very material especially since the Defence has engaged their own accident reconstructionist. have also been advised that Sergeant Barbar had discussion with the accused shortly after the accident. The questions and answers from that meeting may be very material to the accused’s state of mind or knowledge at the time he refused to comply with the Intoxilyzer demand or speak to whether there is casual connection between the accused’s alleged impairment and the accident that caused the bodily harm to the complainant. [26] I am also not satisfied that the Defence is guilty of neglect in procuring the attendance of Sergeant Barbar at the July 26 preliminary inquiry date. month earlier, Defence had written letter to the Crown requesting that they have Sergeant Barbar available at the preliminary hearing. Crown immediately replied advising that he was out of the country in Afghanistan. If Sergeant Barbar was in Saskatoon but the Crown was refusing to call him then without taking the time to issue and serve subpoena on him, would find the Defence negligent in procuring his attendance. But when the Defence is advised that Sergeant Barbar is halfway around the world on peace keeping mission in the middle of war zone, do not think that they are negligent in not going to the trouble and expense of preparing subpoena that could not be effectively served on him in any event. [27] Lastly, have been advised by Crown counsel that Sergeant Barbar’s secondment is finished in January, 2011 and he is expected back in Saskatoon at the Saskatoon Police Service at that time. I am satisfied that there is a reasonable expectation that he can be procured on the adjourn date and that such adjournment is relatively short in duration. [28] Therefore I grant the Defence request for an adjournment so that they can make the necessary arrangements to call Sergeant Barbar as a witness for the Defence in this preliminary inquiry. At this time, see no need to deal with the Defence request to be able to cross-examine Sergeant Barbar when he appears as their witness. In my view, Sergeant Barbar is being called as Defence witness and as such can be examined-in-chief by Mr. Owens. If situation arises in the course of his examination that creates basis for Mr. Owens to make an application to cross-examine Sergeant Barbar then we will deal with it at that time. D.E. Labach,","Defence sought an adjournment of a preliminary hearing to call a police accident reconstructionist as a witness. Prior to the commencement of the hearing, defence counsel was aware that the Crown did not intend to call this person as part of its case. One month prior to the preliminary hearing, defence counsel requested that the accident reconstructionist be made available as witness. The Crown advised defence that the officer was out of the country on peace keeping mission. The officer was expected back within months of the commencement of the preliminary hearing. HELD: The defence request for an adjournment was granted. The Court could not be satisfied that the officer was not a material witness to the preliminary inquiry. The Court was not satisfied that defence was guilty of neglect in failing to procure the officer's attendance when they had been advised by the Crown that he was out of the country. The length of the adjournment would not be lengthy.",e_2010skpc130.txt
200,"J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 317 Date: 2009 07 30 Docket: Q.B.G. No. 1107/09 Judicial Centre: Regina BETWEEN: PAUL MATTHEW SINNETT and WESTERN CHRISTIAN COLLEGE and THE OFFICE OF THE RENTALSMAN Counsel: Paul Matthew Sinnett for himself Kathryn Deveau for Western Christian College JUDGMENT Dawson J. July 30, 2009 [1] This is an appeal by Paul Matthew Sinnett, the tenant, pursuant to s. 72 of The Residential Tenancies Act, 2006, R.S.S. 2006, c. R-22.0001 (the “Act”) from a decision of a hearing officer appointed under the Act, who, pursuant to ss. 58, 68 and 70 of the Act, ordered that the landlord be given possession of the tenant’s rental unit and that a writ of possession be issued to place the landlord in possession of the rental unit. [2] In this case, the landlord, Western Christian College, made an application pursuant to ss. 68(2)(a)(iv) of the Act, for an order for possession of the tenant’s rental unit. The grounds for the application were that the tenant had unreasonably disturbed other tenants within the meaning of ss. 68(2)(a)(i) of the Act. [3] The tenant’s notice of appeal set out the following: Evidence that the police were called for the Landlord. That my doctor thinks or the Rentalsman claims I’m mentally ill. That I’m evicted from the noise and trouble started from the Landlord. [4] The material available for review is limited to the notice of appeal from the decision of the hearing officer filed by the appellant, the documents filed by the hearing officer, and the decision of the hearing officer. [5] Section 72 of the Act provides the right of appeal from the decision of hearing officer. Section 72(1) states: 72(1) Any person who is aggrieved by decision or order of hearing officer may appeal the decision or order on question of law or of jurisdiction to judge of the Court of Queen’s Bench within 30 days after the date of the decision or order. [6] In this type of appeal, the court is statutorily restricted to addressing questions of law or of jurisdiction. This court may not revisit the questions or issues of fact determined by the hearing officer. This appellate function means that where there is some relevant evidence to support finding of fact, that finding may not be disturbed on appeal. Only when there is not relevant supporting evidence is the line between valid non-appealable finding of fact and invalid appealable finding crossed. (See Farm Credit Corp. v. Strelioff (1990), 1990 CanLII 7030 (SK CA), 87 Sask. R. 52 (Sask. C.A.) at para 8-15; Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask R. 114 (Sask. C.A.); Rehaume v. Dodd, 2003 SKQB 356 (CanLII), [2003] S.J. No. 524 (Sask. Q.B.); Jamieson v. Adams, 2004 SKQB 212 (CanLII), [2004] S.J. No. 433, 132 A.C.W.S. (3d) 779 (Sask. Q.B.)) [7] The tenant has not raised any true issue as to the jurisdiction of the hearing. In my view, the hearing officer had jurisdiction to hear and determine the matter in issue. [8] The notice of appeal and arguments presented by the tenant all relate to the facts as found by the hearing officer. They contain no error of law. There were facts before the hearing officer to support his finding that the tenant had significantly disturbed other tenants. There was ample evidence to support the hearing officer’s decision on all of his findings of fact. It is not open to me to overturn her findings of fact. [9] The appeal is therefore dismissed. J. C. L. DAWSON","This is an appeal by the tenant, pursuant to s. 72 of the Residential Tenancies Act from a decision of the hearing officer appointed under the Act, who, pursuant to ss. 58, 68, and 70 of the Act, ordered that the landlord be given possession of the tenant's rental unit and that a writ of possession be issued to place the landlords in possession of the rental unit. HELD: The Court reviewed the facts and found the tenant had not raised any true issues as to the jurisdiction of the hearing. It was the Court's view that the hearing officer had jurisdiction to hear and determine the matter in issue. The notice of appeal and arguments presented by the tenant all relate to the facts as found by the hearing officer and contain no error of law. There were facts before the hearing officer to support his finding that the tenant had significantly disturbed other tenants. Further, the Court found there was ample evidence to support the hearing officer's decision on all his findings of fact. Appeal dismissed.",8_2009skqb317.txt
201,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 21 Date: 2013-03-01 Between: Docket: CACV1973 Dr. Stan Rubin and Glenn Ross, Sam Nowaselski, and Canadian Union of Public Employees, Local 1975 Respondents Coram: Klebuc C.J.S., Lane Jackson JJ.A. Counsel: Catherine Sloan and Paul Clemens for the appellant Andrew Mason for Glenn Ross, Sam Nowaselski and Canadian Union of Public Employees Local 1975 Appeal: From: 2010 SKQB 249 (CanLII) Heard: September 14, 2012 Disposition: Appeal allowed Cross-appeal dismissed Written Reasons: March 1, 2013 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Lane Jackson J.A. I. Introduction [1] This appeal concerns the extent to which the principle of qualified privilege applies to defamatory statements made by a union regarding a member of the employer’s management. The trial judge held that the principle of qualified privilege protected the union and its representatives when the latter republished a grievance defaming a member of management by falsely accusing him of having participated in the harassment of an employee. He fixed a provisional award of damages of $25,000 (see: 2010 SKQB 249 (CanLII), [2010] 12 W.W.R. 271). [2] I have concluded that the trial judge erred by finding the defamatory statements are protected by qualified privilege. I would allow the appeal and fix general damages at $100,000. [3] The parties to this appeal are Dr. Stan Rubin on the one side and the Canadian Union of Public Employees, Mr. Glenn Ross, and Mr. Sam Nowaselski on the other. Dr. Rubin is the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan. He is the appellant in this appeal and the respondent by virtue of cross-appeal. will refer to him by his name. [4] At all relevant times, Mr. Ross was the President of the Union, and Mr. Nowaselski was the senior grievance officer for the Union. Mr. Ross and Mr. Nowaselski played integral roles in preparing and publishing the defamatory statements in question on this appeal. The Union, Mr. Ross and Mr. Nowaselski are the respondents to Dr. Rubin’s appeal and appellants by way of cross-appeal. For ease of reference, will refer to the Union and Messrs. Ross and Nowaselski collectively as the Respondents. [5] The defamatory statements arose in this context. The Veterinary Teaching Hospital, which will refer to as the Hospital, encompasses approximately 600 faculty, staff and students and serves approximately 12,000 members of the public each year, as well as functioning as teaching facility. Dr. Rubin became the Director in 2002. As the Director of the Hospital, Dr. Rubin was responsible for all major administrative and fiscal decision-making. [6] About 100 employees of the Hospital are Union members. One Union member and an employee of the Hospital, Ms. Bowman, played central role in what transpired in this case. Ms. Bowman believed that she was being harassed by some members of the faculty and some fellow Union members at the Hospital—and that the management of the Hospital was not doing enough to prevent the harassment. In 2001, she filed grievance that was resolved in her favour. She was granted significant remedies, including the right to return to the workplace in 2005. [7] Dr. Rubin was Ms. Bowman’s superior. Ms. Bowman and Dr. Rubin were friends, and he was supportive of her. The 2005 award was not in any way critical of Dr. Rubin; rather, it noted he had attempted to act as an advocate for her. [8] Ms. Bowman’s return to work in 2005 did not go smoothly. She believed two of her co-workers were continuing to harass her and complained about it on numerous occasions to Dr. Rubin. He would arrive at work to find Ms. Bowman waiting to see him. These sessions often ended with Ms. Bowman in tears. [9] Ms. Bowman’s return to work was coordinated effort among the Human Resources division at the University of Saskatchewan, the Union leadership and that of the Hospital. The return to work involved meetings attended from time to time by Mr. Ross and Mr. Nowaselski and, of course, Dr. Rubin. Generally, Dr. Rubin and the Union representatives had an excellent relationship. [10] In March of 2006, in spite of the efforts made to achieve better result, Ms. Bowman filed second Grievance Report alleging harassment at her workplace. [11] Importantly for this appeal, Ms. Bowman’s second Grievance Report accused Dr. Rubin of having “not only refused to prevent the harassment,” but of being “an active part of the harassment himself.” By way of remedy, the Grievance Report requested “[f]ormal and substantial discipline of Dr. Stan Rubin found to have been responsible for the harassment of [Ms. Bowman] or for failure to address and stop such harassment, including the removal of Dr. Rubin from his position as Director of the Veterinary Teaching Hospital….” The Grievance Report asked for “[a]ggravated and punitive damages in the amount of no less than $100,000 for the blatant violation of the Collective Agreement” (Appeal Book, pp. 52a-53a, emphasis added). [12] The Collective Bargaining Agreement between the University and the Union includes grievance procedure. By agreement, the parties bypassed the first step of the procedure and proceeded to the second step in accordance with Article 14.7, which allows the Union to refer written grievance directly to the senior University Human Resources Officer or that person’s designate. [13] In fulfilment of the second step of the grievance procedure, representatives of the Union and the Hospital appeared before Ms. Daigle, Associate Vice-President (Human Resources) for the University of Saskatchewan, on April 26, 2006. Ms. Bowman, however, did not attend the hearing. [14] On September 5, 2006, Ms. Daigle rendered her decision. She found that Ms. Bowman’s complaint had “no merit” and suggested that the University and the Union discuss other alternatives for Ms. Bowman. Significantly, Ms. Daigle stated “[i]t appears from the information provided by the union that her complaints are entirely unfounded and without substance” (Appeal Book, p. 208a, italics in original). [15] The Union decided to proceed to the next step of the grievance procedure, which was to refer the matter to arbitration. date for the start of that hearing was fixed for January 25, 2007. [16] In October of 2006, representatives of the Union prepared second document. Across the top of this document, the words “Notice Re: Harassment Grievance” were printed in bold lettering, in all capital letters at height of one centimetre. The Notice refers to and attaches the Grievance Report. The salient statements, taken from the Notice, are as follows: The attached grievance filed March 21, 2006 on behalf of CUPE member Pam Bowman raises serious issues with respect to personal harassment in the Western College of Veterinary Medicine and particularly at the Veterinary Teaching Hospital. Ms. Bowman had been returned to work after previous harassment complaint was upheld by the University and following resolution of matters relating to her reinstatement. The Union has worked to try and ensure that Ms. Bowman was able to return to harassment-free, non-toxic workplace environment but was forced to file this grievance when Ms. Bowman experienced renewed personal harassment after her return. You will note the Union is seeking significant remedies in this matter as set out in the grievance. By reply dated September 5, 2006 Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was “no merit to the grievance” and that Ms. Bowman’s and the Union’s complaints were entirely “unfounded and without substance.” We disagree. This case is scheduled to be heard by an Arbitrator commencing January 25, continuing January 26 and from January 29 through February 2, 2007. The Arbitrator will make final and binding decision following the hearing on the merits of the grievance and if the grievance is allowed, on the remedies requested by the Union. The purpose of this notice is to request those who may have information with respect to the harassment of Pam Bowman to contact the following Local 1975 person: Sam Nowaselski (…) or the National Servicing Representative, Lois Lamon at …. If you do not have specific information with respect to Ms. Bowman, but have experienced personal harassment yourself at the University, please also advise the Union or Ms. Lamon so that the matter may be taken up by CUPE Local 1975. Contact your bargaining agent if you are not member of CUPE and have information on this matter or if you have experienced personal harassment yourself. copy of this notice and the grievance is also on the Local 1975 website. (Appeal Book, p. 51a; emphasis added) [17] The Notice Re: Harassment Grievance and the Grievance Report were then affixed together. At approximately noon on October 6, 2006, which was the Friday before the Thanksgiving weekend, Mr. Ross placed the combined document on eight public bulletin boards at the Hospital. As usual, members of the public, staff, faculty and students had access to the Hospital during this time period. [18] flurry of communications took place on October 11, 2006 wherein members of the University management expressed their concern to the Union leadership (Appeal Book, p. 287a). The University caused the Notices and Grievance Reports to be removed from the bulletin boards. An emergency meeting was held with Mr. Ross. [19] On October 12, 2006, Ms. Daigle wrote to Mr. Ross stating, inter alia, “[m]ore importantly, the posters attached copies of grievance document, which the University considers to be confidential. In so doing, the rights and privacy of others named in the grievance have been violated in that the grievance contains serious unfounded and slanderous allegations against professionals.” Ms. Daigle invited Mr. Ross to provide her “with the facts and data…to support the allegations made.” (Appeal Book, pp. 289a-290a; emphasis in original) [20] Sometime that week, Mr. Nowaselski wrote an article for the CUPE 1975 Mini Bulletin. In that article, he stated: Please find attached the Original Grievance for Pam Bowman along with an informational poster. If you have any information you would like to share on this grievance please phone the union office at and they will get hold of me and will discuss this further with you. (Appeal Book, p. 59a) The Mini Bulletin reproduced the Grievance Report and the Notice Re: Harassment Grievance. One difference between the Mini Bulletin and what had been published on the bulletin boards at the Hospital is that the Grievance Report, in the Mini Bulletin, precedes the Notice Re: Harassment Grievance and the heading of the latter is no longer in all capital letters. The Union mailed the Mini Bulletin enclosing the Grievance Report and Notice Re: Harassment Grievance to its 1400 members. [21] On October 16, 2006, the Mini Bulletin with its attachments was published on the Union’s website. [22] When the University learned that the Mini Bulletin had been published on the Union’s website, efforts were made to persuade the Union to remove the Notice Re: Harassment Grievance and the Grievance Report from its website. The Union declined to do so. [23] When Dr. Rubin received copy of the Notice Re: Harassment Grievance and the Grievance Report and learned that it had been posted at the Hospital and on the Union’s website, he became quite upset. He felt the republishing of the grievance undermined his authority. He testified that he began experiencing difficulties with staff and he came to believe his staff had lost respect for him. By February of 2007, he began to look for an equivalent position in the United States. [24] Following an unsuccessful bid to obtain what would have been an equivalent position with the same stature in the United States, Dr. Rubin resigned as the Director of the Hospital and returned to his previous position as fully-tenured Professor at the Western College of Veterinary Medicine. The resignation cost Dr. Rubin approximately $6,000 per year in wages, although he conceded that the new posting involved less stress. [25] On April 11, 2007, Dr. Rubin commenced an action in defamation against the Union and against Mr. Ross and Mr. Nowaselski claiming general damages “exceeding $200,000.” At that time, Dr. Rubin did not know about the mail-out to the Union members. After the action was commenced, the Union, on the advice of its solicitor, removed the Mini Bulletin from its website. [26] The Union, Mr. Ross and Mr. Nowaselski filed statement of defence pleading that the words they had published were not defamatory and, in any event, the words were protected by absolute and qualified privilege. They did not plead that the impugned words were true or that they were justified in publishing them. [27] After perceiving further difficulties in his job as Professor arising from the publication of the Notice Re: Harassment Grievance, Dr. Rubin eventually accepted job at equivalent remuneration in private specialty veterinary practice in Tucson, Arizona at the end of 2008. III. Decision of the Trial Judge [28] The trial judge found that Dr. Rubin had been defamed, but he dismissed Dr. Rubin’s claim. He did not accept that the Respondents could rely upon the defence of absolute privilege, but he found they could rely upon the defence of qualified privilege. Notwithstanding his dismissal of Dr. Rubin’s claim, the trial judge provided provisional assessment of damages. He found that considering the circumstances of the case, “a fair amount of general compensation would have been $25,000” (at para. 110). In addition, due to the “mixed results in [the] litigation,” he declined to order costs to either party (at para. 111). With that, Dr. Rubin appealed and the Union cross-appealed the costs award. IV. Positions of the Parties and Questions to be Answered [29] Dr. Rubin submits that the trial judge erred: (i) by finding the defence of qualified privilege applies; and (ii) by assessing the damages at $25,000. [30] The Respondents assert that the trial judge did not err by finding that the publications were protected by qualified privilege, but they seek as well to sustain the result they achieved in the Court of Queen’s Bench by arguing that the trial judge erred first, by finding Dr. Rubin had been defamed, and second, by failing to find that the defence of absolute privilege applies. And, as have indicated, they also assert that the trial judge erred by not awarding them costs. On this last point, they have cross-appealed. [31] The positions advanced by the parties require the Court to answer these questions: 1. Did the trial judge err by finding that Dr. Rubin had been defamed? 2. Did the trial judge err by finding that the defence of absolute privilege does not apply? 3. Did the trial judge err by finding that the defence of qualified privilege applies? 4. If Dr. Rubin’s appeal is successful, what is the appropriate quantum of damages? 5. Did the trial judge err in principle by not awarding costs to the Respondents? V. Analysis A. Did the trial judge err by finding that Dr. Rubin had been defamed? [32] The trial judge correctly referred to Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] S.C.R. 640 at paras. 28 and 29 to determine the elements of the tort of defamation. The required elements as taken from Torstar are that: (i) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of reasonable person; (ii) the words in fact refer to the plaintiff; and (iii) the words were published, meaning that they were communicated to at least one person other than the plaintiff. Since it was quite clear that the words refer to Dr. Rubin and that they were published, the only real issue for the trial judge was whether the impugned words “would tend to lower Dr. Rubin’s reputation in the eyes of reasonable person.” The trial judge found that the words expressed by the Union would have that effect. [33] The standard of review to apply to the trial judge’s determination in this regard is correctness with respect to whether an impugned communication is capable of bearing defamatory meaning, but whether the expression is in fact defamatory is question of fact and, as such, is reviewable on palpable and overriding error standard (see: Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at pp. 295-96). [34] Counsel for the Respondents asserts that the Court should have considered two factors in assessing whether the words were capable of bearing defamatory meaning. First, based on Netupsky v. Craig, 1972 CanLII 19 (SCC), [1973] S.C.R. 55, the Respondents submit that the trier of fact must consider the context in which an impugned statement is made when determining whether it is defamatory. In this case, the context is the push and pull of labour relations. Second, the Respondents argue that the trial judge should have considered that the impugned statements were contained in the Grievance Report and not in the Notice Re: Harassment Grievance and that the latter document indicated the statements were simply allegations with which the University strongly disagreed. As such, according to the Respondents’ argument, the trial judge should have concluded that the Notice Re: Harassment Grievance had neutralizing effect on the impugned statements contained in the Grievance Report because reasonable person would be able to garner from the context that yet-to-be-determined labour dispute was on-going and therefore the statements would not have tended to lower the reputation of Dr. Rubin in the eyes of reasonable person. This latter point is referred to as the “bane and antidote” argument (see: McConchie and Potts, p. 298). [35] Context is important in determining whether communication is defamatory, but cannot conclude that context ameliorates the effect of the words in this case. The Respondents state they were motivated by two purposes: (i) to find witnesses to support the allegation and solicit other persons to come forward regarding what they believed was poisoned workplace—and thereby carry out their duty to represent their members; and (ii) to inform their members. Yet, nothing about the labour relations context compelled publication in the manner that occurred to achieve those ends. For example, the evidence demonstrated that the Union rarely operated in the manner in which it did in this case. Further, the Union published the same material on two of the three occasions to members of the public who could have no interest in the labour matters at issue—at least to the level of detail presented by the two forms of publication. The labour relations context takes the Respondents only so far. note, as well, that in Netupsky the Court discussed context not in relation to whether the plaintiffs had been defamed, but with respect to whether the plaintiffs had established malice so as to overcome the defendants’ claim of qualified privilege. [36] With respect to the bane and antidote argument, it is true that the Notice Re: Harassment Grievance contains the statement that “Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was ‘no merit to the grievance’ and that Ms. Bowman's and the Union's complaints were entirely ‘unfounded and without substance’,” but the Notice goes on to indicate that the Union disagrees. The Union, through Ms. Bowman, accused Dr. Rubin of not only refusing to prevent the harassment but of being an “active part of the harassment himself.” The Union, again through Ms. Bowman, also demanded significant remedies, including Dr. Rubin’s removal. At the very least, reasonable person would conclude that the Union believed Dr. Rubin took an “active part” in Ms. Bowman’s harassment and that it only awaited the final hearing to prove that such was the case. After all, if the Respondents did not believe Dr. Rubin had taken part in the harassment, reasonable person would ask why the Union would take the extraordinary step of publishing the allegations in the public manner in which it did. Considering the breadth and persistence by which the Union published, doing so not once, but three times and through various mediums, reasonable person would increasingly believe that the allegations were true. And, with such being the case, Dr. Rubin’s reputation would tend to be lowered in the eyes of reasonable person. [37] Thus, conclude that the trial judge made no error in law when he concluded that the words were capable of bearing defamatory meaning notwithstanding the overarching labour relations context. Like the trial judge, conclude that the labour relations context and the purposes for which the communications were posted are more appropriately considered with respect to the defences to the tort of defamation. Having made that legal conclusion, no basis exists by which can conclude that the trial judge made palpable and overriding error by finding Dr. Rubin had in fact been defamed by the publication of the allegations against him. Indeed, the trial judge could, in my view, have come to no other conclusion. B. Did the trial judge err by finding that the defence of absolute privilege does not apply? [38] The Respondents’ next argument is that the trial judge erred by failing to find the publications were protected by absolute privilege. Absolute privilege provides complete immunity regardless of whether or not malice exists. In general, absolute privilege attaches to statements and acts that aid in the “efficient functioning of… governmental institutions: legislative, executive and judicial” (see: Allen M. Linden Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ont.: LexisNexis Canada, 2011) at 784 citing John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 615). As the authors of Canadian Tort Law note, the law is circumspect in granting absolute privilege, and the scope of the privilege is narrowly interpreted, owing to the potential for abuse of such privilege (at 784). [39] Two issues arise in this case; first, whether the arbitration board to which Ms. Bowman addressed her Grievance Report is the type of “judicial” institution contemplated by the scope of absolute privilege, and second, whether the publication that took place exceeds what is contemplated by absolute privilege. [40] With respect to the first issue, the Grievance Report is the originating document leading ultimately to an arbitration proceeding. The trial judge concluded that an arbitration board or hearing under The Trade Union Act, R.S.S. 1978, c. T-17 is quasi-judicial proceeding (para. 58), which falls within the judicial branch. The trial judge’s conclusion would seem to be the correct one. Administrative boards or tribunals that share similar attributes to those of the judiciary have been found to come within the scope of absolute privilege (see, e.g., Hamalengwa v. Duncan (2005), 2005 CanLII 33575 (ON CA), 135 C.R.R. (2d) 251 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.R. ix). [41] The second issue is whether absolute privilege extends to the publication of the defamatory statements in this case. The trial judge found that it did not for two reasons: he found that publishing the statement to achieve the purpose of finding witnesses exceeded what is contemplated by absolute privilege and he also rejected the defence of absolute privilege due to the extent of the publishing. He wrote on these points as follows: [71] The grievance report, per se, while it remained within the confines of its original intended purpose (i.e. the originating document in grievance procedure mandated by The Trade Union Act), would be in my view protected by absolute privilege. However, the impugned words in that document ceased to enjoy that protection once the document was published in such broad way and for the purposes stated above. [42] The trial judge was clearly correct in rejecting the defence of absolute privilege. Circumstances may arise where statements outside of the actual hearing may be subject to the defence. (See: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, looseleaf (current to Release 4–2012), 2nd ed., vol. (Toronto: Carswell, 1999) under the headings “12.4(5)(l), Investigative Reports to Determine Legal Position,” “12.4(5)(m), Information Given to Initiate Legal Proceedings,” and “12.4(5)(n), Information Given to Investigative Bodies”—all found under c. 12.4(5), “Matters to which Privilege Attaches.”) Having regard for these references, the law may be tending to extend the cloak of absolute privilege to what has been described as “steps preparatory to judicial proceedings” but the purpose in this case was an attempt to find corroborating witnesses. This purpose is not so intimately connected with the process as to justify the extension of the defence of absolute privilege. Moreover, the extensive publication that took place destroys any possible claim that the Union might have to absolute privilege. Again, the trial judge correctly found that the defence of absolute privilege does not apply. C. Did the trial judge err by finding that the defence of qualified privilege applies in this case? [43] The trial judge quoted from Raymond E. Brown, The Law of Defamation in Canada, looseleaf (current to Release 2009–3), 2nd ed. (Toronto: Carswell, 1999) (see: paras. 73-74 of the trial judge’s decision). He cited the definition of qualified privilege from that text and then quoted extensively from passages where the author discusses the scope of the privilege as it extends to unions. He then wrote: [75] Counsel for the defendants points out that s. 25.1 of The Trade Union Act places duty upon the union to fairly represent its members, including representing members on grievances alleging breach of the collective bargaining agreement: 25.1 Every employee has the right to be fairly represented in grievance or rights arbitration proceedings under collective bargaining agreement by the trade union certified to represent his bargaining unit in manner that is not arbitrary, discriminatory or in bad faith. [76] agree with counsel for the defendants that preparing for grievance arbitration can also include locating witnesses to support the grievance. This would be connected with the discharge of the responsibility set out above. Communication with members on grievance matters is also in my view part of discharging the duty of fair representation. This falls in step with the learned author Brown's comments set out above and therefore the publication of the impugned words would be protected by qualified privilege. [77] Plaintiff's counsel expressed concern that the union's communications in part consisted of using the internet. It is now 21st century reality that the internet and web pages will be used by large organizations (such as this union), to communicate with its membership. Brown (above under “Scope of Privilege”), expressed concern about the level of access to such information. In my view CUPE was entitled to communicate to the union membership in the fashion it did, subject to the concerns pertaining to malice. (emphasis added) [44] Later in his reasons, dealing with malice, the trial judge wrote: [84] The defendants’ point of view appears to be that Dr. Rubin was not policing the situation in the workplace while the back to work program was in place. The defendants adopted the complaint of Ms. Bowman. The complaint or grievance, being that despite weeks of meetings and discussions and thorough review of policy, Ms. Bowman still maintained she was being harassed. [85] The wording of the grievance is unfortunate. It would have been far better to approach the issue in more general way than to directly identify Dr. Rubin. [86] However, am satisfied that the defendants undertook the preparation and drafting of the grievance report very seriously. The grievance report wording was based on their collective belief that the plaintiff seemed to be unable to control the situation as it unfolded each day at the workplace. [87] The evidence indicates that in the minds of the defendants (rightfully or not but certainly bona fide), the buck stopped at the plaintiff's desk. This well may have been an overly simplified reaction to the rather complex and protracted workplace problem. have already expressed my opinion that Dr. Rubin was doing all that he believed he could reasonably be expected to do. However, cannot conclude on the evidence before me that any of the defendants in drafting the grievance report or in publishing the grievance report, acted maliciously. [88] The evidence of both Mr. Ross and Mr. Nowaselski and by default, that of the union, was that they basically held the head of the department directly accountable. Other observers may have come to different conclusion. However, cannot say that the defendants acted with reckless regard of the truth or for any improper purpose other than representing union member. (emphasis added) [45] In my respectful view, the trial judge correctly identified the law from Brown on Defamation, but he did not correctly apply it. For ease of reference, Brown at 13.1 (Vol. 4) defines the ambit of qualified privilege: There are certain occasions on which person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory. One such occasion involves conditional or qualified privilege. No action can be maintained against defendant unless it is shown that he or she published the statement with actual or express malice. communication is protected by qualified privilege if it is fairly made on privileged occasion by person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it duty to communicate the information to those to whom it was published. (emphasis added, footnote omitted) [46] When the trial judge applied this test, he focussed entirely on the Union’s duty to represent its members, including the duty to locate witnesses to support grievance. He quotes accurately from Brown on Defamation, but in the quotations from that text, the authors clearly state that the manner of communication must be proper and reasonable (see: Brown on Defamation at 13.6(3)(d)(ii)(A), (B) (C)). Specifically, the scope of the privilege extends to union publications made on proper occasion, in proper manner and to appropriate parties (see: Brown on Defamation at 13.6(3)(d)(ii)(C)). [47] The question of whether communication is subject to qualified privilege is question of law and is, therefore, subject to review on standard of correctness (see: Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] S.C.R. 275 at 286 cited in McConchie and Potts at 368). McConchie and Potts also provide helpful list of criteria to consider when determining whether communication is privileged on the grounds of duty or interest: i) the content of the alleged defamatory expression; ii) who published it; iii) why it was published; iv) to whom it was published; v) under what circumstances it was published; vi) the nature of the duty which the defendant claims to discharge or the interest which the defendant claims to safeguard; vii) whether there are any statutory duties imposed on the speaker; viii) the urgency of the occasion; ix) the manner in which the defendant conducted him- or herself; x) whether or not the expression was published in breach of confidence; xi) whether or not the defendant officiously volunteered the information or whether it was in answer to an inquiry; and xii) whether or not what was published was germane and reasonably appropriate to the occasion (see McConchie and Potts, p. 371). The authors cite, inter alia, Halls v. Mitchell, 1928 CanLII (SCC), [1928] S.C.R. 125, per Duff J. at 136, 139 and 142 and Sapiro v. Leader Publishing Co., 1926 CanLII 130 (SK CA), [1926] D.L.R. 68, Lamont J.A. at 70-71 (Sask. C.A.), citing inter alia, Stuart v. Bell, [1891] Q.B. 341 at 350, as authority for these propositions. The authors also state that whether defamatory publication went beyond what is germane and reasonably appropriate to the occasion is question of law (see: p. 368, citing Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] S.C.R. 275 (Toronto: Carswell, 2012) at 286). Similarly, Professor Klar states that “[t]he defendant will exceed the purpose of the qualified privilege and lose its protection either by using words which were not relevant to the occasion, or communicating the material to those who were not entitled to receive it” (see: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012 at 816)). [48] Based on my review of the authorities, I conclude that the trial judge did not give sufficient effect to: (i) the wording of the defamatory expressions; (ii) the circumstances under which they were published and, in particular, the chronology of events and the separate instances of publication; (iii) the persons to whom the words were published; and (iv) whether what was published on each occasion was germane and reasonably appropriate to that specific occasion. will expand on each of these points. [49] First, the trial judge erred by not giving effect to the wording of the two documents, and how the Notice Re: Harassment Grievance attached the Notice of Grievance, affirmed its contents and drew the public’s attention to it in dramatic fashion. The choice of the title “Harassment Grievance,” the large font, the capitalization and the bolding sensationalize the allegations contained within it. The trial judge held that “[t]he defendants undertook the preparation and drafting of the grievance report very seriously” (para. 86), but the point is not whether they were careful in preparing the Grievance Report but whether they were careful in republishing it. [50] The trial judge also found that “the grievance report wording was based on their collective belief that [Dr. Rubin] seemed to be unable to control the situation as it unfolded each day at the workplace” (para. 86), but that is not what the Respondents wrote in the Grievance Report. This is what they said in the Grievance Report: The administrator of the Veterinarian Teaching Hospital, Dr. Stan Rubin, has not only refused to prevent the harassment but has been an active part of the harassment himself. (Appeal Book, p. 52a) They also asked for remedy that emphasized Dr. Rubin’s participation in the harassment. By attaching the Grievance Report to the Notice Re: Harassment Grievance and asserting in the latter document that the University erred by denying the merits of Ms. Bowman’s claim, the Respondents continued to assert that Dr. Rubin was “an active part of the harassment himself” as well as refusing to prevent it. [51] Secondly, do not believe the trial judge gave effect to the circumstances under which the defamatory words were published having regard, in particular, for the chronology of what happened in this case. It is critical to understand that the Grievance Report and the combined document of the Grievance Report and the Notice Re: Harassment Grievance were prepared and published at different times—against backdrop of changing knowledge on the part of the Respondents. [52] The Grievance Report was filed on March 21, 2006. Dr. Rubin did not and could not take any issue with the allegations made against him in that document—if no further publication of it had taken place. Then on April 26, 2006, hearing was held as part of the second step of the grievance process, following which it was determined, albeit at preliminary stage, by means of letter dated September 5, 2006, that no basis exists for the damning allegations made in the Grievance Report—and, indeed, Ms. Bowman did not even attend the hearing (Appeal Book, p. 208a). After receipt of the September 5, 2006 letter, the Union prepared the Notice Re: Harassment Grievance for the purpose of finding the evidence to support the defamatory allegation against Dr. Rubin that the letter advised the Union that it lacked for the making of the allegation in the first place. Unlike the Grievance Report, this document was not signed by Ms. Bowman but by the Union itself. [53] The two documents were then posted on the Hospital public boards over four-day period when the Hospital was open to the public. But that does not end the matter. [54] Following the University’s strong objections to the publication of the two documents by posting at the Hospital, the Union mailed the newsletter to its 1400 members and posted the newsletter on its website—without any controls governing access to the document. Only after the within lawsuit was commenced did the Union remove the document from its website. [55] Nowhere in the trial judge’s reasons does he mention that: (i) the second step of the grievance process had intervened between the preparation of the Grievance Report and the Notice re: Harassment Grievance; (ii) notwithstanding the University’s strong objections to the publication that had taken place in the Hospital, the Union proceeded to wider publication by means of mail-out to its members and posting on the website; and (iii) the newsletter remained available on the internet until lawsuit was commenced. [56] The third error relates to the recipients of the publications. Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130 at para. 143 cited with approval the following reasoning of Lord Atkinson with respect to qualified privilege in Adam v. Ward, [1917] A.C. 309 (H.L.) at 334: privileged occasion is an occasion where the person who makes communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has corresponding duty to receive it. This reciprocity is essential. Further, as the Supreme Court of Canada stated in Jones v. Bennett, 1968 CanLII 126 (SCC), [1969] S.C.R. 277 at pp. 284 and 285, “a plea of qualified privilege cannot be upheld where the words complained of are published to the public generally or, as it sometimes expressed, to the world.” Qualified privilege could attach only to the separate occasions by which the statement was published in this case (i.e., on the bulletin boards, on the internet, and in the Union mail-out) if the recipients of the published statements had mutual interest in receiving those statements. Specifically, qualified privilege could only extend to informing members of the Union’s work in pursuing the grievance and gathering evidence from persons who might be able to shed light on the grievance. [57] As have indicated, the Union published these two documents in three places. The possible audience included: (i) non-Unionized staff at the Hospital and members of the public who had free access to it; and (ii) members of the public who searched the internet and came upon the Union’s website—to which access was not restricted. [58] The trial judge did address the question of publishing in relation to the internet (at para. 78), but he dismissed this aspect of the complaint by finding in effect that the use of the internet is fact of life. As Brown on Defamation states “[t]he use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information” (at 13.6(3)(d)(ii)(C), vol. 4). The internet is not tool that can be used to expand qualified privilege so as to justify the broad publication of defamatory statement, but rather it exacerbates the libel. In this case, it is common ground that the Union’s website was open to the public on the internet, without any access code protections or other privacy protections. Anyone with internet access could gain access to it. It is irrelevant, in my view, that Dr. Rubin did not present any evidence to the Court to prove that anyone did in fact search the internet to find the communication. [59] As such, the Respondents are unable to satisfy the reciprocity of interests aspect of the defence of qualified privilege as endorsed in Church of Scientology (i.e., that the person publishing the information had an interest/duty to do so, and that the person receiving the information had sufficient interest in receiving it). In such circumstances, the plea of qualified privilege does not apply. [60] The fourth error pertains to whether what was published on each occasion was germane and reasonably appropriate. recognize that the Union is obliged to keep its members informed and to gather evidence to support grievor’s claim. Indeed, as Brown on Defamation at 13.6(3)(d)(ii)(A) and (B), vol. 4, makes clear “a union may communicate to its members information regarding public labour dispute, express its dissatisfaction with the employer, and urge its members to boycott the employer's products, and it may address communications critical of competing union to its officers and members and other workers in an industry it is attempting to organize.” Strong language in employer-union relations can fall within the realm of protection offered by qualified privilege, but as the Alberta Court of Appeal has said “the defence of qualified privilege is not absolute” (Teamsters, Local 987 v. U.F.C.W., Local 401), 2005 ABCA 263 (CanLII), [2006] W.W.R. 16 at para. 26). [61] If certain occasion attracts qualified privilege, it does not necessarily follow that all the statements made on that occasion attract qualified privilege. To inform its membership and to find witnesses to support its grievance, the Union could have sent out general notice. The Union did not need to name Dr. Rubin and make the allegations it did to achieve its goal. The Union overreached, thereby placing the statement outside the ambit of the defence of qualified privilege. [62] appreciate that counsel for the Respondents asked this Court to consider that the University had failed to designate one or more of the bulletin boards at the Hospital as Union boards, but this hardly makes difference to Dr. Rubin or the incidental viewer of the public boards as they existed when the defamatory statements were posted. The fact remains that the defamatory statements in the case at bar were posted in public place at the Hospital on each of the eight bulletin boards, meaning any member of the public who used the services of the Hospital could have seen it at any time of the day from October 6-11, 2006. This means that individuals who had no interest in seeing the documents were able to see them. And, of course, the Hospital was not the only place where the Respondents published the documents. [63] In the within appeal, the issue the trial judge had to confront was whether the Union went beyond what was necessary and reasonable to fulfil its duty and to achieve its purpose of fair representation. In my respectful view, having regard for the manner of communication, the wording of the communications, their timing and to whom they were given, the trial judge erred in law by concluding that the defence of qualified privilege applied. D. If Dr. Rubin’s appeal is successful, what is the appropriate quantum of damages? [64] Dr. Rubin argues that the provisional assessment of damages in the amount of $25,000 was both wholly erroneous and founded upon mistaken principles of law. In support of his position, he points to: (i) the importance of his position as the director of the Hospital, and the amount of hard work and education it took to solidify his position; (ii) the deleterious effect on his reputation and on his personal wellbeing; and (iii) the shock of the defamatory statements considering that he was actually an avid supporter of, and advocate for, Ms. Bowman, and his belief that he and the Union had managed to establish good working relationship. [65] On the whole, Dr. Rubin argues that the trial judge did not consider all the relevant factors and also considered irrelevant factors. He argues that if the trial judge had properly considered the relevant factors and ignored the irrelevant factors, he would be entitled to $300,000 for general damages, $150,000 for aggravated damages, and $300,000 for punitive damages. Therefore, in total, Dr. Rubin seeks $750,000 in damages. [66] With respect to his claim for aggravated and punitive damages, Dr. Rubin submits that the trial judge erred by failing to properly consider that the Respondents were motivated by malice. To support his claim for malice, he points to certain relationships existing between Union members and the Hospital that he says means the Union had wider agenda than the resolution of Ms. Bowman’s grievance. [67] The Union defended the provisional assessment of damages on the basis that the evidence did not demonstrate higher than normal assessment of general damages. In Church of Scientology, the Supreme Court of Canada was asked to establish “cap” for general damages for defamation. The Court declined to do so for several reasons, including that “a review of the damage awards over the past nine years reveals no pressing social concern” as “from 1987 to 1991, there were only 27 reported libel judgments in Canada, with an average award of $30,000” and “from 1992 to 1995, there have been 24 reported libel judgments, with an average award of less than $20,000” (para. 169). Counsel for the Respondents then drew the Court’s attention to Angle v. LaPierre, 2008 ABCA 120 (CanLII), 2008] W.W.R. 600 where the Court refused to increase total award of $11,511 for general damages awarded against an education activist who assisted several parents in pursuing complaints against series of teachers.[1] [68] The standard of review of an award of damages is well-known. In Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] S.C.R. 430 at 435-36, the Court stated that an appellate court may only interfere with an assessment of damages if: (i) the assessment is wholly erroneous; (ii) the assessment was not based upon any evidence; or (iii) the assessment was based on mistaken or wrong principle. query whether the standard of review need be applied with the same rigour to provisional assessment of damages as court would apply to an actual award of damages, particularly where the appellate court views the legal effect of the evidence differently than the trial court.  In any event, I am satisfied that in the whole of the circumstances, which I have reviewed extensively in connection with the Respondents’ claim for qualified privilege, $25,000 is a wholly erroneous assessment of the damages in this case. [69] do not consider myself bound by the “range” of damages mentioned in Church of Scientology. Indeed, it would be clear error on the part of an appellate court to assess an award made by trier of fact based on “cap” of $20,000 that the Supreme Court of Canada specifically rejected in Church of Scientology. Rather, this Court must be guided by the general principles stated by the Supreme Court in Church of Scientology as applied in the context of this case. note, as well, that awards for libel have generally been increasing (see: McConchie and Potts at p. 865; Klar, Tort Law, supra at 834). Exceptions exist, including Angle cited by the Respondents. [70] In Church of Scientology, the Court endorsed the principles articulated in Gatley on Libel and Slander, 8th ed., London: Sweet Maxwell, 1981 at pp. 592-593 as the basis upon which damages for libel should be assessed. The trier of fact is entitled to take into consideration all of the circumstances, including in particular: (i) the conduct of the plaintiff, his position and standing; (ii) the nature of the libel; (iii) the mode and extent of publication; (iv) the absence or refusal of any retraction or apology; and (v) the whole of the defendant’s conduct from the time when the libel was published down to the very moment of the verdict. These general principles subsume many others, referred to in the jurisprudence. Of particular relevance in case such as this one is that the capacity to cause damage increases with the defendant’s reputation (see: Lewis N. Klar, Remedies in Tort, Leanne Berry (ed.), looseleaf, vol. (Toronto: Carswell) at 6-73 citing McElroy v. Cowper Smith, 1967 CanLII 70 (SCC), [1967] S.C.R. 425). [71] The trial judge justified the award of $25,000 in this case with these reasons: [95] The plaintiff was quite upset with the posting of the grievance report on the bulletin boards. To me that was the primary source of his unhappiness. The plaintiff of course was also upset that the grievance report went out with the newsletter and ended up on the website. [96] The plaintiff complains that in essence his stature as the director of the VTH was affected by the impugned words in the grievance report. According to the plaintiff, this caused him ultimately to resign as the director of the VTH and take job as full-tenured professor at the Veterinary College in Saskatoon. [97] note that it appears Dr. Rubin had the full support of the Dean of the Veterinary College and the HR department of the University. In fact the Dean took an active role in chastising the union for publishing the grievance report. [98] It was the plaintiff's sole decision to resign as the director of the VTH and there was no evidence that there was any other pressure from anyone for him to do this. [99] Dr. Rubin then re-entered the faculty as full-tenured professor. Apparently he was doing what he loved to do. However, the plaintiff continued to feel out of place. Dr. Rubin was not able to fully particularize what was causing this unhappiness. [100] Dr. Rubin admitted that being full-tenured professor and not having to worry about the administration of the VTH would be less stressful. [101] In any event, it was around this approximate time that he decided to apply for the director of veterinarian hospital in the United States and also showed interest in ""headhunter"" who sought out his abilities and talents for employment in the United States. [102] Dr. Rubin seems to have had some degree of selection in terms of where the headhunter was going to place him. The plaintiff indicated preference to Tucson. Again, Dr. Rubin appears to be doing what he has trained for and what he likes to do, namely highly-specialized veterinarian. [104] have no difficulty in appreciating Dr. Rubin's concern about the wording of the grievance report and the fact that it was circulated. However, as noted, he continued to receive the full support of his Dean. In addition, stepping down as director and moving into less stressful position as full-tenured professor does not seem to be particular hardship. In addition, the plaintiff seems to have accommodated his desire to move from Saskatoon with employment in Tucson. [emphasis added] [72] In my respectful view, the trial judge justified his award by undervaluing the impact of what had happened to Dr. Rubin and the effect upon him. To say that it was the “plaintiff’s sole decision to resign” overlooks completely why he resigned: he resigned because the Notice Re: Harassment Grievance with the Grievance Report attached was publicly published in the Hospital, placed on the Union website and mailed to 1,400 households. The Grievance Report demanded that Dr. Rubin be fired. The Union got what it asked for, albeit by Dr. Rubin acting voluntarily in the face of false allegation against him. No one, even those caught up in the heat of employer-and-employee relations, should be treated in the manner that the Union treated Dr. Rubin. [73] An allegation of harassment is nebulous claim, encompassing conduct ranging from sexual misconduct to bullying. The libel accused Dr. Rubin of taking an active part in the harassment of Ms. Bowman with no indication of the nature of the harassment. Significantly, Dr. Rubin had befriended the grievor, supported her and met with her frequently. She gave him gifts and was seen leaving his office in tears—adding to the ambiguity of the allegation made in the context of this case. Given the nature of the allegation and the breadth of its publication, it would be difficult, if not impossible, to obliterate the lingering doubt in the minds of some that Dr. Rubin had done something wrong. It, of course, must be noted that Dr. Rubin was completely innocent of wrong-doing. [74] Further, the Union mailed the Mini-Bulletin and posted it on the website knowing the University’s strong objections, and refused to remove the information from its website until the lawsuit was commenced. No apology or retraction has been offered for any of this behaviour. [75] An award of $25,000 is simply too little to pay for actions that caused highly respected individual, occupying significant position, to leave that position and then to subsequently leave his country for job of less stature. [76] The Supreme Court of Canada made it clear that little is to be gained from detailed comparison of libel awards in other cases as each libel case is unique. The significance of Church of Scientology, however, is the extent to which the Court commented upon the seriousness of damage to personal reputation caused by defamatory comments unprotected by privilege. Cory J., speaking for the Court, made these comments: The consequences which flow from the publication of an injurious false statement are invidious; (para. 165) It will be extremely difficult to correct the impression left with viewers that [the plaintiff] must have been guilty of unethical and illegal conduct; (para. 165) All who read the news reports would be left with lasting impression that [the plaintiff] has been guilty of misconduct. It would be hard to imagine more difficult situation for the defamed person to overcome; (para. 166) defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by libel may last lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in manner that will truly remedy the situation. (para. 166) As lawyer, [the plaintiff] would have no way of knowing what members of the public, colleagues, other lawyers and judges may have been affected by the dramatic presentation of the allegation that he had been instrumental in breaching an order of the court and that he was guilty of criminal contempt; (para. 177) He would never know who, as result of the libellous statement, had some lingering suspicion that he was guilty of misconduct which was criminal in nature. He would never know who might have believed that he was person without integrity who would act criminally in the performance of his duties as Crown counsel. He could never be certain who would accept the allegation that he was guilty of criminal breach of trust which was the essential thrust of the libel. (para. 178) [77] Many of these statements could be said in relation to Dr. Rubin. He had reached the pinnacle of his career—occupying one of handful of such positions in North America. Like the plaintiff in Church of Scientology, Dr. Rubin testified about the significant effect of the libel on him. In relation to the Grievance Report alone, he said: was horrified. was angry. was shocked. was embarrassed. was insulted. You know, after everything that, you know, had done to assist Ms. Bowman in the years that preceded this, mean felt like here these words are, which are completely untrue and unfounded, on paper. felt, you know, this was the greatest betrayal. held myself, you know, to the higher—highest standards of how dealt with staff and people and this was beyond anything ever imagined to be called said that harassed someone and failed to prevent harassment, especially with this particular case where was an advocate, friend for so many years. (Appeal Book at pp. 59 to 60). [78] With respect to publication of the two documents together, Dr. Rubin testified: guess the first time—although was shocked and [horrified] thought, well, you know, this is labour relations and it's one thing, you know, we're meeting behind closed doors to discuss this. Now it's open to the public, everybody can see this so, you know, it magnified my reaction. You know, the anger, the shock and the embarrassment that it was out there for anybody who walked by to see (Appeal Book at p. 61). [79] He stressed that no one had ever reproached him about his conduct vis-à-vis Ms. Bowman before and this magnified his sense of betrayal (Appeal Book at p. 61). [80] Regarding his decision to resign as director, he further described the impact of the publications on him: The experiences were negative. felt that my capacity to manage the Veterinary Teaching Hospital in meaningful way was diminished considerably and sensed that had lost respect with the staff because of what came out. You know, if it could imagine that if they read it they had to presume it had to be true. You know, it was written on paper, it was posted on the bulletin board. It must be true, so he has to harass people. And so my capacity to direct the hospital, you know, was diminished and felt that was not being any―effective any longer. The staff challenged me on things that thought they were taking advantage of the teaching hospital and the university but rather than have big fight about it, you know, things―you would let things go rather than have it erupt into some kind of altercation. It stopped being fun. mean, took the job that―a lot of people would question why one would want to take an administrative job and move out of faculty position which is so nice and safe and protective. took it because it was challenge and could move that teaching hospital forward, and did. But, you know, in the aftermath of this, it wasn't fun anymore, wasn't sleeping well, and took stock of the situation and decided that was not going to continue as VTH director. (Appeal Book at pp. 66-67). [81] As to why he left the University of Saskatchewan, he testified: The environment had changed for myself such that couldn't work there anymore and didn't have could feel the coolness when went into the environment of the teaching hospital from the staff. When―that was the main―I came to work at the university to teach clinical medicine and when you're in the clinical environment and the environment is not positive anymore, it stops being fun. So there was coolness and distanceness (ph)―a distance that, you know, felt when went into the clinic. felt was somewhat of pariah down there and had conversations with, you know, friends who were in the faculty association, you know, what―what do think could do and one of the advices got was, well, you could just―you know, you're fat member of the faculty, you could just close your door for ten years until you retire, and just couldn't do that. couldn't see myself doing that. (Appeal Book at pp. 68-69) [82] Having regard for the same factors that caused me to conclude that $25,000 is a wholly erroneous assessment of general damages, including what was said, how it was published and the effect on Dr. Rubin, I conclude that general damages should be fixed in this case at $100,000. In fixing this amount, I have considered that: (i) the Respondents published the two documents by mailing them and placing them on the website—over the strong objections of the University; (ii) the documents remained on the website some six months after the University demanded that they be removed; (iii) no apology or retraction has ever been made; and (iv) the Union appears to have had no conception of the harm caused to Dr. Rubin. On this last point, note in particular the testimony of Mr. Ross to the effect that such allegations “go with the territory” (see: Appeal Book at pp. 337 to 340). It is also significant that the allegations were made, not by an individual with little credibility, but by an important body whose statements were more likely to be believed. [83] Having regard for the comments in Church of Scientology, have not relied extensively on awards in other cases, but have reviewed them. From my review of the authorities, conclude that since Church of Scientology, courts have given substantial awards (awards over $100,000), especially in the provinces of British Columbia and Ontario, but generally courts are still inclined to avoid such awards. The courts must always be mindful of the impact of sizeable award on the free speech in question (Klar, Tort Law, supra, p. 833). In addition, the facts of most of the cases that have given substantial awards indicate more extreme and egregious conduct than the facts in the within case. also note that the highest award granted in this Province remains Duke v. Puts, 2001 SKQB 130 (CanLII), 204 Sask. R. 130, aff’d 2004 SKCA 12 (CanLII), 241 Sask. R. 187, at $100,000 general damages and $150,000 aggravated damages. [84] In rejecting an award higher than $100,000, have specifically considered the following factors: (i) the documents remained on the public bulletin board short period of time; (ii) the Mini Bulletin was “buried” to some extent in the archival portion of the Union’s website; (iii) the comments were made in labour relations context; (iv) the Respondents did not plead that the statements were true or that they were justified. do not place too much weight on the last point, however, because efforts were made at trial to persuade the trial judge that if manager is not controlling the harassment, the manager is taking “part” in it. Mr. Ross testified at some length, trying to demonstrate that Dr. Rubin took part in the harassment because of his managerial position (pp. 229, 325, 327). Indeed, the trial judge felt compelled to make finding that Dr. Rubin did not actively harass Ms. Bowman (para. 45)—notwithstanding the fact that the Respondents had not pled truth or justification. [85] Having regard for all of the above facts and factors, I have concluded that an award of $100,000 provides sufficient compensation and appropriately balances the positions of the parties. [86] To sustain an award of aggravated damages, the trier of fact must make finding of malice, which the jury made in Church of Scientology. The Supreme Court upheld the jury’s award of $500,000 saying the jury had more than enough evidence to support its decision including: (i) the existence of file on the plaintiff; (ii) designating the plaintiff as “Enemy Canada”; (iii) evidence that the Church of Scientology wanted to “neutralize” the plaintiff; (iv) the organization of press conference discussing legal action against the plaintiff to ensure widest possible dissemination; (v) continuation of the contempt proceedings against the plaintiff even though the Church of Scientology knew the allegations were false; and (vi) the post-trial actions of the Church of Scientology. Having regard for all this, the Supreme Court was confident that the plaintiff had demonstrated that the Church had acted with real and persistent malice. [87] In addition, the jury found that the Church of Scientology’s conduct was so outrageous as to require punitive damages. It awarded $800,000 in punitive damages despite the fact that general and aggravated damages already totalled $800,000. However, as the Supreme Court stated, any doubt that punitive damages were inappropriate due to the high total of general and aggravated damages was removed once the Church of Scientology’s post-verdict misconduct was witnessed. During the appeal, it became evident that no amount of general or aggravated damages would have deterred the Church of Scientology, thus punitive damages were needed. [88] In this case, the trial judge found that the Union had not acted maliciously and he specifically found no merit to the allegation of collusion between member of the teaching staff of the Hospital and the Union. It is difficult to find fault with those findings. note that the Ontario Court of Appeal in Rogacki v. Belz (2004), 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585 (Ont. C.A.), leave to appeal to SCC refused, [2005] S.C.R. vi, has convincingly reasoned that finding of malice for the purposes of damages is different from finding of malice for the purposes of liability. The former is broader because it can take into account the conduct of the plaintiff before and after the publication of the defamatory statement, up until the point of trial. The latter only considers malice in the context of the published defamatory statement, and thus is narrower in nature. However, even if one considers the conduct of the Respondents in the broader sense, all aspects of what makes an award of aggravated damages appropriate in this case have been subsumed in the award of general damages. Since the issuance of the statement of claim, the Respondents have not engaged in any tactics that can be said to exacerbate or even to maintain the libel. [89] With respect to punitive damages, agree with the trial judge that the behaviour of the Respondents is not so outrageous as to support such an award. Further, the Union acted to remove the offending material from its website once the lawsuit had been commenced. The defamation has not been repeated. Thus, would make no award of punitive damages. [90] final point must be made. In fixing the award of damages at $100,000, have not differentiated between any of the Respondents as no submissions were made to the Court expressing anything but joint and several liability. It appears to have been common ground that Messrs. Ross and Nowaselski were the proper officers of the Union with respect to this matter and were acting in the scope of their authority. E. Did the trial judge err in principle when he decided not to award costs to the Respondents? [91] Having found that the appeal should be allowed in Dr. Rubin’s favour, the only relevance of this issue is with respect to costs of the cross-appeal. The trial judge did not award costs as the results were “mixed.” He found the results were mixed because Dr. Rubin had proven that he had been defamed, but the Respondents had proven that the communications were protected by qualified privilege. [92] In defamation action, the court can only consider whether defence exists after finding that the plaintiff has been defamed. In that sense, in every defamation case where defence is accepted, the results are mixed. It is the nature of defamation action. The plaintiff will have proven defamation, but the defendant will have successfully proven that the publication of the defamed words was privileged in some way—meaning that the plaintiff will not ultimately have been successful. That does not mean that a trial judge in such circumstances could not decline to order costs to a successful defendant, but it is not appropriate to decline to do so on the basis of “mixed results.” Finding for party on some issues, which do not affect any aspect of the remedy, does not make the results mixed. Thus, agree with counsel for the Respondents that costs would normally be awarded to the defendant who has succeeded in proving that the defamatory publication was privileged, subject to the proper exercise of the trial judge’s discretion to withhold costs in an appropriate case. [93] The appeal is allowed with costs to Dr. Rubin in this Court and in the Court of Queen’s Bench. Dr. Rubin shall have general damages against the Respondents in the amount of $100,000. Since I have allowed the appeal, the cross-appeal is dismissed, but given that the Respondents are clearly correctwith respect to the issue raised in the cross-appeal, it is appropriate in the circumstances of this case to dismiss it without costs. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of March, A.D. 2013. “Jackson J.A.” Jackson J.A. concur “Klebuc C.J.S.” Klebuc C.J.S. concur “Lane J.A.” [1] An award of $20,000 in general damages against one set of parents was not appealed by either the plaintiffs or the defendants (see: 2006 ABQB 198 (CanLII) at paras. 306 to 309).","The appellant appealed the Queen's Bench decision that denied him damages for defamation (see: 2010 SKQB 249). The trial judge held that the defence of qualified privilege protected the Union and its representatives (the defendants in the action) when the latter republished a grievance defaming the appellant by falsely accusing him of having participated in the harassment of an employee. The trial judge fixed a provisional award of $25,000. The appellant's grounds of appeal were that the trial judge erred in finding that the defence applied and by assessing damages at $25,000. The respondents cross-appealed on the ground that the trial judge had erred in denying them costs. HELD: The Court held that the trial judge had erred in finding that the defence of qualified privilege applied. Although she correctly identified the law, she had not correctly applied it because she had not given sufficient effect to 1) the wording of the defamatory expressions; 2) the circumstances in which they were published and, in particular, the chronology of events and the separate instances of publication; 3) the persons to whom the words were published; and 4) whether what was published on each occasion was germane and reasonably appropriate to the specific occasion. In general, the Court noted that the respondents could have fulfilled their duty to notify its membership of the grievance filed by the member who alleged the harassment and made its effort to find witnesses to support the member's grievance by sending out a general notice. It did not need to name the appellant and make the allegations it did to achieve its goal. The respondent overreached, thereby placing the statement that the appellant had participated in the harassment of the employee outside the ambit of the defence of qualified privilege. The Court awarded general damages in the amount of $100,000. It held that the trial judge's assessment of damages was erroneous and founded upon mistaken principles of law. The Court was not bound by the range of damages mentioned by the Supreme Court in the Church of Scientology decision but only to apply the principles established in it to the context of this case. The provisional award of $25,000 for general damages was erroneous because the respondents published the documents by mailing them and placing them on the Union's website, over the strong objections of the employer. The respondents left the documents on the website for 6 months after the employer demanded that they be removed. The respondents had never offered an apology and appeared not to have recognized the harm that had been caused to the appellant. An award of aggravated damages was subsumed in the general award and the Court agreed with the trial judge that punitive damages were not warranted because the respondent had not been motivated by malice. The respondent's cross-appeal was dismissed without costs. However, their position was clearly correct in the circumstances: it was not appropriate for the trial judge to decline to order costs in their favour on the basis of 'mixed results', because in defamation cases, the results are invariably mixed.",d_2013skca21.txt
202,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 511 Date: 2006 11 30 Docket: F.S.M. No. 3/2004 Judicial Centre: Estevan, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF [E.K.], BORN NOVEMBER 8, 1990 [J.S.] BORN OCTOBER 17, 1992 [C.S.], BORN SEPTEMBER 4, 1994 Counsel: Darcia Schirr, Q.C. for the Department of Community Resources [T.K.] appearing for herself [K.S.] not appearing JUDGMENT GUNN J. November 30, 2006 [1] The Department of Community Resources (“DCR”) seeks orders pursuant to The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”) placing [C.S.] with the Department until age 18 pursuant to subsection 37(2); and [J.S.] with his grandmother as a Person of Sufficient Interest (“P.S.I.”) pursuant to s. 37(1)(b). With respect to [E.K.], DCR’s initial position was to seek an order placing [E.K.] with the Department until age 18, but in view of [E.K.]’s stated intention to return to his parents’ home on his 16th birthday, which was November 8, 2006, DCR sought an order placing [E.K.] with the Minister until his 16th birthday, which was granted at the trial. [2] The children have the same biological parents, [T.K.] and [K.S.]. [T.K.] does not oppose the applications in respect of [J.S.] and [E.K.], but seeks the return of [C.S.] to her care. [K.S.] did not attend the pre-trial or the trial although he and [T.K.] are cohabiting. He was served with the notice of the application, and the notice of the trial. THE LEGISLATION [3] The following sections of the Act are relevant: The purpose of this Act is to promote the well‑being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. Where person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of child, the person or court shall take into account: (a) the quality of the relationships that the child has with any person who may have close connection with the child; (b) the child’s physical, mental and emotional level of development; (c) the child’s emotional, cultural, physical, psychological and spiritual needs; (d) the home environment proposed to be provided for the child; (e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (h) the effect on the child of delay in making decision. ... 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; or (c) the child is less than 12 years of age and: (i) there are reasonable and probable grounds to believe that: (A) the child has committed an act that, if the child were 12 years of age or more, would constitute an offence under the Criminal Code, the Narcotic Control Act (Canada) or Part III or Part IV of the Food and Drug Act (Canada); and (B) family services are necessary to prevent recurrence; and (ii) the child’s parent is unable or unwilling to provide for the child’s needs. 36(1) On protection hearing, the court shall determine whether the child is in need of protection. (2) Where the court determines that child is in need of protection, the officer shall present to the court the officer’s recommendations respecting an order to be made pursuant to section 37. (3) If the court determines that child is not in need of protection, it shall dismiss the application and order the return of the child to person who has right to custody of the child. (4) An order pursuant to subsection (3) does not constitute an order for custody of the child. 37(1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or be placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; (b) may consider the recommendations of the officer mentioned in subsection 36(2); and (c) may consider the recommendations of chief, chief’s designate or an agency that appears in court pursuant to subsection (11). (5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and (b) include in the order provision respecting access to the child. (6) If the court, in making an order pursuant to clause (1)(a) or (b), orders supervision of the child by the minister as term or condition of the order, the period of supervision shall not exceed one year. (7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of period, not exceeding one year, specified in the order. (8) Any order made pursuant to clause (1)(a) or (b) or section 16 that is inconsistent with an existing custody order of superior court shall be considered an interim order that is subject to further order of superior court. (9) The court shall provide to each party to the proceedings written summary of its reasons for determining that the child is in need of protection. (10) Notwithstanding subsection 33(1), where an officer intends to apply to the court for an order pursuant to subsection (2) or (3) and the child who is the subject of the proposed hearing is status Indian whose name is included in Band List or who is entitled to have his or her name included in Band List, the officer shall give 60 days’ notice of the application for the protection hearing to the child’s band or the agency, if any, that is providing family services to members of the child’s band. (11) Where band or an agency has received notice pursuant to subsection (10): (a) the chief of the band, the chief’s designate or the agency may appear in court to make recommendations with respect to the application; and (b) where the chief, the chief’s designate or the agency appears in court pursuant to clause (a), the band or the agency is party to the proceedings. HISTORY OF THE PROCEEDINGS [4] Given the significant passage of time since the apprehension of the children and the trial, think it useful to review the history of the proceedings in the court. The children were apprehended by Christa Dacio, an officer and protection worker under the Act on April 30, 2004. Appearances were made on May 19, 2004 and June 2, 2004 and pre-trial conference was set for June 15, 2004. The pre-trial did not proceed on June 15, 2004 and the matter was spoken to in Chambers on June 16, 2004 at which time the following order was made pursuant to s. 35 of the Act: Having heard the evidence adduced make an Interim Order that the children ... remain in the care of the Minister and it is further ordered that the protection hearing be adjourned to Wednesday, August 18, 2004.... [5] August 18, 2004 the hearing was adjourned to September 14, 2004 for pre-trial conference. An order was made directing that the children remain in the care of the Minister in the home of their grandmother, [S.K.]. [6] September 14, 2004, the pre-trial was adjourned sine die. An order was made that it could be re-convened by either party on 10 days’ notice to the other party. The fiat further provided that consent order may be filed in due course. No order was filed. [7] pre-trial conference set for March 29, 2005 was adjourned to May 24, 2005. It was further adjourned to June 17, 2005. [8] June 17, 2005, an order was issued with the consent of DCR and the mother. The children were found to be in need of protection pursuant to s. 11(a)(i) of the Act and an order was made placing them in the care of the Minister for period of three months on the following conditions: 1. Through the course of the Order, [T.K.] shall have generous and flexible access to the children, [J.S.] and [C.S.] whether they remain in the care of [S.K.] or in Departmental foster home. As to the child [E.K.], [T.K.] shall maintain contact with him and have access to him if and when he returns to Estevan. 2. [T.K.] will encourage and be supportive of all three children receiving counselling services as may [sic] directed by the Department. 3. [T.K.] will co-operate with her mental health professionals and follow all treatment recommendations made. In the event [T.K.] is hospitalized, she agrees she will not voluntarily discharge herself. Further, Mrs. [T.K.] will co‑operate with the Department by providing Release so that the Department might obtain information as to Mrs. [T.K.]s’ treatment compliance from her mental health professionals and mental health facilities. 4. [T.K.] agrees to co-operate and communicate with the Department. [9] The matter was set to be reviewed on September 13, 2005. On that date it was directed that trial date be fixed and that the June 17, 2005 order continue until the completion of the trial. Following this [T.K.]’s counsel withdrew. further order was made on May 8, 2006 designating [S.K.] as person having sufficient interest in [J.S.], pursuant to s. 23(1)(a) of the Act. [10] Accordingly, the children have been in the care of the Department since April 30, 2004, period of approximately 31 months. [11] The trial commenced June 26, 2006 and concluded September 29, 2006. [T.K.] represented herself throughout, although several adjournments were granted at her request for her to take steps to obtain counsel. She ultimately decided to continue representing herself. THE EVIDENCE The Apprehension [12] April 30, 2004, Christa Dacio was called to the children’s school by Linda Henderson, the acting principal of Westview School. Ms. Dacio was advised that [E.K.] had disclosed to an educational assistant, Adrian Sinclair, that [T.K.] had hit him four times with belt the previous evening. [E.K.] had scratches and marks on his neck which were visible. [13] When Ms. Dacio arrived at the school she interviewed each of the children separately. [14] Ms. Dacio spoke to [E.K.] first for about one half hour. At that time he was 13 years of age and in grade 8. He appeared to be quiet, shy and reserved. He did not respond easily to questions. He needed direction. He told her he did not like school, he liked gym and he liked to hang out with his friends. [15] Ms. Dacio could see scratches on the left side of his neck and bruises or red marks on the right side. When he was asked about these marks, Ms. Dacio testified he became defensive and jumpy. He told her he had received the scratches from the cat. He also rubbed his neck and said he did not have any scratches. He did up his bunny hug. Ms. Dacio said she made no assumptions about the cause of the scratches. She did not know what had caused them. [16] Ms. Dacio asked him what happens at home when he gets into trouble and he replied that he was usually sent to his room. When she asked him about what happened on the previous night he explained that his mom asked him to go to his grandma’s to get cigarette tubes. When he asked if he could call her first to make sure she was home, his mother got “mad.” She threw him out of the house and yelled at him. He had pushed her. [17] When he was asked to describe his home life he said his parents fight lot. When asked if he was ever hit, he said no. When he was asked what he would change if he could, he said he had lived long enough to know nothing would change. He said he had lot of anger inside him and he did not want to talk about it. He then refused to participate any further in the interview. [18] Ms. Dacio acknowledged in cross-examination that [E.K.] did not seem angry when he was interviewed by her. He did not seem hateful toward his parents. He did not seem to be scared of his parents. He never told her he was beaten at home, except once by his dad long time ago. He never said [T.K.] was bad mother. He said he fights with his brother and sister all the time, but never explained why. He said this makes his siblings get really upset and cry. [19] Ms. Dacio spent about 10 minutes with [J.S.]. He was very shy and timid. He clapped and rubbed his hands together. He appeared to be nervous, looked at the floor and did not make eye contact. [J.S.] was 11 years old and in grade at the time of this interview. [J.S.] said he liked to play and watch baseball. He said he was sometimes happy at home. [J.S.] said that there were fights at home involving [E.K.] and his mom and dad. He said that if he got into trouble at home he was sent to his room. [20] [C.S.] spent approximately 15 minutes with Ms. Dacio. She was quiet and appeared to be afraid. She started the interview with her bunny hug up over her head so that Ms. Dacio could hardly see her face. Part way through the interview she took it off. [C.S.] was years old and in Grade at the time of the interview. She said she wanted to live with her grandmother because she was not happy at home. She said she was afraid at home because of the fighting and hitting at home involving her mom and dad and [E.K.]. [21] [C.S.] described the events of April 29, 2004. She said she saw her mom and [E.K.] fighting. [E.K.] pushed her mom and then grabbed butcher knife and went outside. She saw [E.K.] put the knife through the door. She saw her mom hit [E.K.] with belt. [C.S.] said she wasn’t ever hit. [22] The children said the fighting referred to by them meant yelling and screaming, not physical interaction. [23] After conducting these interviews with the children, Ms. Dacio made the decision to apprehend the children. She spoke with them together to advise them of this. She told them she was concerned about the hitting and the fighting. [J.S.] and [C.S.] said okay. [E.K.] was upset and said they had better just go home because he would get into trouble. Then all the children said they wanted to go to their grandma [S.K.]’s. Their grandmother agreed to take the children. [24] At this time, [S.K.] told DCR that [T.K.] was unstable mentally and that she was taking anti-depressants. She also said [K.S.] was an alcoholic who was physically abusive to [T.K.]. [25] May 1, 2004, Ms. Dacio observed interviews conducted by the police with the children and [T.K.]. She was not in the room with them but was in position to see, and hear the conversations. [26] [E.K.] spoke with Sgt. Eagles. He said he was hit three days out of seven with belt. On April 29, his mom grabbed him by his neck and threw him outside. He said his dad had not hit him in long time as he was not around very much. [27] [J.S.] just rubbed and clapped his hands and looked at the floor. [28] [C.S.] talked about the events of April 29. She said she saw her mom hit [E.K.] with belt, and that [E.K.] was hit two days out of seven regularly. She said [E.K.] fools around and that is why he gets hit. [C.S.] said they were all hit with the belt. She said her mom and dad fight lot. [29] [C.S.] was also asked what happens when mom gets mad. Her response was that she throws stuff, gets rowdy, hyper and gives warning. After that she did not know. [30] [T.K.] told the police that she had trouble handling [E.K.] that night, even though he is good child. She told the police that number of people had contacted her about [E.K.]. [31] In her evidence [T.K.] denied that [E.K.] was hit three days out of seven as he indicated to Sgt. Eagles. She did acknowledge she was having difficulty with [E.K.] on the night in question. [K.S.] was away and [E.K.] was bothering the younger children. She told him to go out and he did not want to go. He grabbed knife. She said she tried to push him out the door and told him to put the knife down. He said he would not hurt her with it but he did have it in his hand. [T.K.] called her brother [S.] to come over to help her. [E.K.] went outside and cooled down. The next day he was taken away. She denies hitting him with the belt and says his scratches were from the cat. [32] There was no evidence that any criminal charges were laid as result of this information. Post-apprehension [33] The children were placed with [S.K.] on April 30, 2004. Ms. Dacio said she knew that [S.K.] was an alcoholic and that she had previously lived with an abuser. Ms. Dacio acknowledged that DCR did not do any investigation of [S.K.]’s home prior to placing the children. She considered it to be an emergency situation and the children wanted to be there. [34] At the time of the children’s placement, [S.K.] was living in two bedroom apartment with [D.P.]. [S.K.] managed the apartment building in which they lived. [S.K.] describes her relationship with [D.P.] as being platonic. They each had their own bedrooms in the apartment. When the children arrived they all slept in [S.K.]’s bedroom, and [S.K.] slept on the couch. [S.K.] bought bunk beds for the boys and [C.S.] had the bed. There was curtain between the two beds. The children were then 13, 11 and 9. These sleeping arrangements were known to DCR. [35] No home study was done by DCR until November 26, 2004 and the time frame identified in the report is May 2004 to November 2004. It identifies [S.K.] and [D.P.]’s relationship as being common law, which is denied by [S.K.]. The recommendation in the report is that [S.K.] and [D.P.]’s home be approved as an alternate care resource for the children. [36] [E.K.] was disruptive at [S.K.]’s and eventually was admitted to hospital July 12, 2004. He was being very rude to his grandmother and was hitting his siblings. The admitting diagnosis was to examine the possibility of schizophrenia and anti-social behaviour. [E.K.] reported having ongoing suicidal ideation without any definite plans. He also reported hearing voices instructing him to abuse his siblings physically and verbally. [E.K.] was discharged on July 16, 2004. There was insufficient evidence to support finding of schizophrenia. Medication was prescribed. [37] October 20, 2004, [E.K.] was once again admitted to hospital after reporting to school counsellor that he had thoughts of suicide. The reports provided by the school at that time reflected young man with aggressive and disturbing actions involving knives and scissors. He was diagnosed with oppositional defiant disorder and was discharged October 27, 2004. He continued on medication. [38] [E.K.] remained at [S.K.]’s until April 2005 when he was placed at SIGN group home in Yorkton. This was home equipped to handle challenging kids with significant acting out behaviour. In Yorkton, he did very well with his day to day functioning such as daily chores, waking for school and doing laundry. He attended the Yorkton Regional Highschool. He attended counselling at Yorkton Mental Health. He was involved in soccer and started Air Cadets in the fall of 2005. He attended regularly and was very proud of what he was achieving by attending Air Cadets. He returned to [S.K.]’s twice month on weekends. However, due to complaints which were ultimately not substantiated, [E.K.] was removed summarily from this home by Linda Fraser, DCR worker. [E.K.] had no notice that this was going to happen and he was not even given the opportunity to say goodbye to his new friends. This was very upsetting to [E.K.]. No apology or explanation has ever been extended to [E.K.]. [39] [E.K.] was placed in foster home in Estevan just before Christmas in 2005. Until September of 2006 he spent his weekends with [S.K.]. However, [E.K.] took [D.P.]’s car without permission and was in an accident with it and is at present no longer welcome in [S.K.]’s home. [E.K.]’s 16th birthday was November 8, 2006. [E.K.]’s clearly expressed intention was to return home to his parents at that point. [40] [J.S.] has essentially remained with [S.K.] since the apprehension. [41] [J.S.] is attending Hillcrest School and is now in Grade 8. [S.K.] describes [J.S.] as being nervous, anxious, sensitive little boy. She says he has always been shy, but over the past couple of years he has started to become more open and he has lots of friends. [42] [S.K.] says the court proceedings and the involvement of DCR in his life are very difficult for him. Every day that he goes to school he is afraid that DCR will come and take him away again. He wants to be left alone and he is anxious and nervous. In the past he rubbed and clapped his hands when he was nervous. This habit disappeared for while, but reappeared when DCR came and took him away to foster home in December of 2005. [43] [J.S.] loves to watch sports. He is not comfortable participating, but he enjoys watching baseball and hockey on TV. [44] [C.S.] remained with [S.K.], with the exception of one weekend in foster care, until February of 2006 when she was placed by DCR with [T.K.]’s brother [D,]. [D.] lived with his girlfriend [T. 1] at the time. [45] [S.K.] says she has always been willing to care for [J.S.] and [C.S.], and that she did not want the children to be separated. She said they were very emotionally attached to each other. [46] But in about December of 2005, DCR decided that [S.K.]’s apartment was too small for both children. [S.K.] was contacted by Linda Fraser who indicated that they were looking into persons of sufficient interest for [J.S.] and [C.S.]. [S.K.] said she and [D.P.] asked Ms. Fraser for little more time to figure out how they could keep the children together and care for them. They also asked DCR for little more financial help but they were refused. One of the problems for [S.K.] was that her employment was connected to the apartment in which they lived. [47] [D.P.] and [S.K.] begged Linda Fraser to give them little more time and not to tell the children anything before Christmas. But Ms. Fraser refused to delay anything. She told [D.P.] and [S.K.] it would be done and that was it. She gave [S.K.] day to bring the children into the office to meet the foster parents. [48] Ms. Fraser talked to the children and both [J.S.] and [C.S.] were very upset and crying. They were in shock. It spoiled their Christmas. They were taken to foster home for two days, from December 28 to 30 for pre-placement visits and then returned to [S.K.]’s on the understanding that the children would be returning to foster care. [49] Ultimately, [J.S.] remained with [S.K.] and [C.S.] left. [S.K.] said she realized that DCR would not permit her to keep both children, but they would permit her to keep one child. She said she could not make the decision, so [C.S.] made it. [S.K.] said [C.S.] is tough little girl and she said she would be the one to go. But she was thinking it was only for short time. [50] [J.S.] is now even more terrified of social workers. He thinks that if he does something wrong he will have to go to foster home. Each night he says “I was good today, wasn’t I? I’m not going anywhere am I?” [51] [C.S.]’s placement with [D.] was not successful. [C.S.] was not happy at [D.]’s. She reported that she was consistently left alone and that [T. 1] did not permit her to have friends over. [C.S.] overheard [T. 1] telling [D.] that he better send her to foster care or [T. 1] would strangle her. [C.S.] was frightened. [D.] and [T. 1] packed up [C.S.]’s clothes and without notice to anyone, took her over to [T.K.]’s brother [S.]’s house. [S.K.] has not spoken to [D.] since because of their treatment of [C.S.]. [52] This was not placement approved by DCR and they did not know about it initially. When they did know, they were made aware that [C.S.] was sleeping on the floor, because the Department had not approved any funds for [S.] and [T. 2]. This situation continued for some time. [53] [S.K.] says when [C.S.] stayed with her she had concerns about her health. She was very picky eater, was underweight and [S.K.] was concerned. [C.S.] continued to say she wanted to go home to her mom and dad. [54] [S.K.] says [C.S.] is very unhappy, upset, confused and angry inside. [55] Apparently [S.] is not prepared to be long-term resource for [C.S.] either. DCR is currently looking for foster home for her, although she was still with [S.] at the time of the hearing. THE PARENTS [56] [K.S.] did not take any part in the proceedings, so the information about him comes from others, either directly or from reports filed in evidence. [57] [K.S.] is 38 years old. His father is deceased and he has no relationship with his mother. He has five siblings, and is in contact with two of them. Alcohol became problem for [K.S.] when he was teenager. He has nine criminal convictions involving drinking and driving. He has attended some treatment programs in the past for alcohol addiction and according to [T.K.], he is currently not drinking. [58] [K.S.] has Grade education, plus he has all the safety tickets required for work in the oil field. He has extensive experience in the oil field and has, in the past, been good provider for his family. [59] There have been ongoing concerns about domestic violence between [T.K.] and [K.S.]. [T.K.] has testified that [K.S.] did not abuse her. But others report concern in this regard. [60] [S.K.] believes this has been longstanding problem. [S.K.] says there is quite difference in [K.S.] when he is not drinking. She has observed great deal of affection between [K.S.] and the children when he is sober. [61] In December of 2005, [K.S.] came to [S.K.]’s apartment looking for [T.K.]. [S.K.] said she was not there. Later [S.K.] and [D.P.] went to pick up [T.K.], after receiving call from [T.K.]’s brother [S.]t. [T.K.] was outside the motel where she and [K.S.] were staying. She did not have coat, had bag of her clothes with her and was holding her head. She reported that [K.S.] had hit her. [T.K.] stayed with them for the night and went home with [K.S.] the next day. [62] [S.K.] reports that [K.S.] has not been drinking at least since the spring of 2006. She has seen all three children being very close to him. [63] [T.K.] was born April 4, 1971. She describes her own childhood as being unhappy. Her parents separated when she was approximately five years old. Following this her mother [S.K.] began to drink to excess. According to [T.K.], she was subjected to sexual abuse at the hands of [S.K.]’s male companions, and to neglect because [S.K.] was always out drinking. [T.K.] began relationship with [K.S.] which continues to the present. The relationship between [T.K.] and [S.K.] continues to be difficult. [64] [E.K.] was born in 1990 when [T.K.] was 19 years old and [J.S.] was born in 1992. By 1994 [T.K.] was pregnant with [C.S.]. According to Bonnie Brooks, departmental worker, there were problems of domestic violence between [T.K.] and [K.S.] in 1994. [T.K.] was also having some difficulty parenting two young boys, while being pregnant with [C.S.]. parent aide was placed in the home to assist. Ms. Brooks believes her involvement at this time would have come through the police. However, [K.S.] was found not guilty of the charge of assault laid at this time. [K.S.] was drinking at this time. The file was closed in November 1994 because there was no indication of ongoing domestic violence and things appeared to be calmer. [65] [T.K.] was stay-at-home mom at the time of the apprehension. She found the apprehension to be extremely upsetting, as she felt she was good mother and she had devoted herself to caring for her children. She did acknowledge that she was having problems with [E.K.]. [66] When [T.K.] was notified of the apprehension, she was very upset. She said she did not beat her children, she was not drug user and she was not an alcoholic. Her home was bright and clean and the children were well-groomed and well-dressed when apprehended. At this time, [T.K.] stayed in the home to care for the children, and [K.S.] was away from home quite bit working in the oil industry. Mental Health [67] Following the children’s apprehension, [T.K.] had mental health difficulties. There is some conflict in the evidence about whether these problems pre-existed the children’s apprehension. Apparently [S.K.] told DCR when the children were apprehended that [T.K.] had some mental health issues. However in her evidence at the trial, [S.K.] says [T.K.] did not have these problems until the children were taken away from her. The only records filed by DCR concerning mental health admissions for [T.K.] post date the children’s apprehension, although some of the records refer to some pre-existing problems. [T.K.] testified that she had never been admitted to hospital for drug overdose or for self mutilation until after her children were taken away from her. She testified that her children were everything to her and when they were taken away she gave up. She was concerned because nothing was being resolved, and court was being put off again and again. [68] When she first sought help through the mental health system she was told her problems arose from the fact she was an alcoholic. As [T.K.] did not drink, she did not accept this diagnosis and did not continue with mental health counselling for time. [69] The following is history of [T.K.]’s mental health issues presented at the trial: June 9, 2004, [T.K.] saw Dr. Banerjee, who described her having life long problem of short fuse and impulse control. She had previously been advised to take an anger management program and on this occasion she appeared to be very willing to do so. Rod Watson was contacted to set up an appointment; June 25, 2004, [S.K.] called Ida Barnabas, child and youth psychologist to report that [T.K.] had some pills with her and that she had ongoing suicidal thoughts; [T.K.] was admitted to hospital July 10, 2004 having taken 15 Advil Migraine relief medication with alcohol in an attempt to commit suicide. She reported being depressed. She discharged herself and then sought to be admitted to the Regina Psychiatric Unit; August 3, 2004, [T.K.] was brought to hospital by ambulance after taking 24 extra strength allergy and sinus medication. She was reported to have said that she did not want to wake up. [T.K.] was discharged from hospital August 6, 2004 with an appointment to see Dr. Banerjee for follow-up; September 4, 2004, [T.K.] was admitted into hospital as she was agitated and feeling suicidal; October 7, 2004, [T.K.] went to the Emergency Department and locked herself in the bathroom, wanting an admission to the Weyburn Mental Health Centre. She was seen in the Emergency Department and was sedated. At her own insistence she was admitted for brief period to permit her to settle down emotionally. She was discharged October 13, 2004. She was diagnosed with situational stress and borderline personality. At her request she was referred to Mr. Watson for anger management. She saw Mr. Watson twice while in hospital and was then discharged to continue counselling as an outpatient at Estevan Mental Health Clinic; October 18, 2004, [T.K.] was hospitalized reporting insomnia, anxiety, depressive feelings and suicidal thoughts. She remained in hospital until November 1, 2004. [T.K.] presented herself to the Emergency Ward of the hospital on November 3, 2004 with concerns that she may be reacting to the medication prescribed on November 1. This hospital report reflects that [T.K.] is bipolar, however this diagnosis had not previously appeared on any of the documentation submitted. [T.K.] remained in hospital until November 5, when [K.S.] came to get her and she discharged herself; In November 2004, [T.K.] went to the Emergency Department at St. Joseph’s Hospital seeking admission to hospital. [T.K.] made superficial cuts to her wrists, then locked herself in the bathroom and attempted to strangle herself with sheet. She was very agitated; December 1, 2004, [T.K.] was brought to the Emergency Department by the police as she had superficial cuts to her wrist; January 2, 2005, [T.K.] was admitted to hospital with suicidal ideation. She was admitted again on January 12, 2005; [T.K.] was admitted on February 24, 2005, to the Saskatchewan Hospital, North Battleford and was discharged March 18, 2005. [T.K.] had been referred by Dr. Banerjee for intensive psychiatric rehabilitation. While in hospital her most prominent symptom was anxiety, with some minor depression. She showed no self harming behaviours. The final recommendation was that the treatment most likely to stabilize her would be psychotherapy to address relationship issues and past sexual abuse, coupled with an antidepressant/mood stabilizer combination to normalize her affective range; September 19, 2005, [T.K.] was admitted to the Weyburn Mental Health Centre from the Emergency Department of St. Joseph’s Hospital in Estevan. [T.K.] had been taken to the emergency by the RCMP after multiple linear cuts had been inflicted by herself as an act of self mutilation. Apparently she had been drinking and cut herself with broken beer bottle. She was discharged on September 22, 2005. She was assessed as being very noncompliant. She does not want to undergo counselling or any other treatments suggested to her. [70] It appears that [T.K.]’s mental health has stabilized over the past year. She is taking an anti-depressant medication which appears to be working for her. There have been no further hospital admissions. DCR (Linda Fraser) seems satisfied that [T.K.] has dealt with her mental health issues. Living Arrangements [71] There was variety of evidence about [T.K.]’s living arrangements over the past few years. At the time of the apprehension she and [K.S.] were living in an apartment. Later it appears they went to Alberta where [K.S.] was working. They returned and at about that time [K.S.] went to jail for earlier offences. There is evidence that for some time [K.S.] and [T.K.] were living in motel and later in their truck. They also stayed in tent. [S.K.] let them sleep in an empty apartment for while and then in the sauna room of the apartment. [T.K.] worked at motel in exchange for room to sleep in for the night. Now [T.K.] and [K.S.] have an apartment, and [T.K.] is employed. [K.S.] is looking for work. [T.K.] and [K.S.] have been receiving some assistance from Social Services since August 1, 2006. [T.K.] and [K.S.] [72] [T.K.] testified that the relationship between her and [K.S.] has changed. She testified that in the past she instigated arguments with [K.S.] because he was away for long periods of time at work and she was home 24 hours per day. She felt alone, isolated and angry. Even though he was good provider for their material needs, she was not happy. She concentrated on making the home perfect place for the children, but she needed more. [73] Since the apprehension of the children, they have gotten closer to each other. They talk about what they could have done differently. She says they no longer argue about small things. She says he was supportive when she was in hospital. He did not understand her, but he did not judge her and he was there for her. [74] [T.K.] acknowledges that alcohol was problem for [K.S.]. But she says he is no longer drinking and that he has not been drinking for about year. He has taken some alcohol treatment in the past, but he does not feel it is too helpful for him. [75] [T.K.] also acknowledges that domestic violence has been problem in the past. However she takes responsibility for the violence. She says she argued with him. She says there was some name calling, pushing and lot of yelling. She denies that he struck her or that she struck him. She says [K.S.] has gone to anger management counselling, but says he did not stay long. [76] Now, [T.K.] says they do things together. There is no physical violence—no hitting. [77] [T.K.] describes the children’s relationship with [K.S.]. She says [C.S.] is daddy’s little girl. [J.S.] is shy but smart. He needs lot more attention and has always received lot more from everybody. He needs help even making sure his shirt is on correctly. [J.S.] likes to stay home and play Nintendo and watch movies. Now he is happy to show [K.S.] his computer and is enjoying the new bike [K.S.] has purchased for him. [E.K.] and [K.S.] also have good relationship. [E.K.] wants to come home. [T.K.] and the Children [78] [T.K.] says [E.K.] is welcome to come home but that he will have to work and go to school. He will have curfew. [T.K.] acknowledges that [J.S.] is happy where he is. She would like to see him come home at some point, but only when he is ready. Even though she still has issues with [S.K.], she recognizes that [S.K.] has provided stable home for [J.S.] and that he is settled there. [79] [T.K.] wants [C.S.] to come home and says [C.S.] wants to come home. [T.K.] says she is prepared and [K.S.] is prepared to provide good and safe home for [C.S.]. [C.S.] has experienced no stability in her life since her apprehension. She was removed from her home and placed with her grandmother. She was removed from [S.K.] against her wishes, separated from [J.S.], with whom she has strong connection and placed with [D.] and [T. 1]. This was not positive placement for her and even placed her in position where she was physically afraid, because of [T. 1]’s comments. While she was there she did not feel that she was cared for. She was left alone. This placement ended when she was unceremoniously packed up and left with [S.] and [T. 2]. They were not ready for her, did not really want her and even had her sleep on the floor for time when she arrived. She was provided with second-hand clothes and was not made to feel welcome. They have made it clear that they are not prepared to keep her over the long-term as DCR is looking for foster home for her. [C.S.]’s best interests have not been safeguarded during this process. [80] [T.K.] says she is prepared to do anything to have her children back. If [K.S.] refuses to do anything required of him, she will separate from him so his refusal does not prevent her from having the children with her. [81] Parental Services Agreement was signed by DCR and [T.K.] and [K.S.] on June 8, 2004. The conditions were as follows: [T.K.] and [K.S.] agreed to work co‑operatively with Christa Dacio by maintaining regular phone contact and home visits; [T.K.] and [K.S.] agreed to work co-operatively with Family Support worker ten hours week on tasks outlined by the caseworker and family; [T.K.] agreed she would have mental health assessment with follow-up counselling and treatment including but not limited to anger management; [K.S.] agreed to have an addictions’ assessment and follow all recommendations arising out of that assessment including treatment if directed; [K.S.] agreed to attend sessions at Alternatives to Violence and both [K.S.] and [T.K.] agreed to make contact with the relevant agencies by June 22, 2004. [82] Ms. Dacio was not involved with this matter after June 9, 2004. [T.K.] testified that she was not informed when Ms. Dacio left. [T.K.] says she did go to the violence intervention program and did go to mental health after this agreement was signed. She does not believe that [K.S.] followed through with his obligations under the agreement. He was working in Alberta quite bit during this time period. [83] By September of 2004, Bonnie Brooks was the case worker on this file. She said that after the pre-trial in September of 2004, Parental Services Agreement was entered into between DCR and [T.K.]. The term of the Agreement was September 15, 2004 to November 17, 2004. The intended outcome was that [E.K.], [J.S.] and [C.S.]’s safety and well-being would be ensured. [T.K.] agreed to work co‑operatively with Bonnie Brooks by maintaining regular phone contact and home visits. [T.K.] agreed to work co-operatively with family support worker and to notify DCR immediately of any change in living arrangements. [T.K.] agreed to attend counselling either with Mental Health or the Victim Intervention Program (“VIP”). [T.K.] agreed to initiate contact with either agency by September 20, 2004. [T.K.] reported being separated from [K.S.] at this time. [84] The plan was to have the two younger children living full-time with [T.K.] by the end of the agreement. [E.K.] would remain with [S.K.]. The plan was for [E.K.] to eventually return home as well. [85] The plan was not successful because in mid-October [T.K.] was hospitalized for depression and with threats of suicide. This was surprise to Ms. Brooks because the children were coming slowly back to the home. [T.K.] was in and out of the hospital over the next couple of months. [T.K.] testified she was going to Mental Health at this time, but that it was not helping her with her problems. [86] The plan was never re-instituted because [K.S.] and [T.K.] reconciled. DCR took the position that [K.S.] would have to be part of the plan and sobriety for him for period of six months was considered to be important. [T.K.] said he would not co‑operate with this. [87] In February of 2005, [T.K.] went to the hospital in North Battleford to deal with her addiction to sleeping pills. She left after one week, having been able to successfully quit taking the pills. [88] Linda Fraser took over the file August 29, 2005. Her first contact with [T.K.] was December 2005. She says she told [S.K.] that her door was open for [T.K.], but [T.K.] did not call. She understood at that time that mental health was an issue. [89] [T.K.] identified that she had some personal issues with Linda Fraser. Apparently they were known to each other on personal level and [T.K.] found it difficult to share her personal issues with Ms. Fraser. This was brought out by [T.K.] in her cross-examination of Ms. Fraser who acknowledged she knew [D.P.], [S.], [T. 1], [T.K.] and [S.K.] on personal level. [90] Ms. Fraser frequently questioned [S.K.] about [T.K.] and [K.S.]’s whereabouts and whether they had seen the children. [S.K.] was concerned that if she disclosed that [T.K.] had seen the children, they might be taken away from her. The children had the same fear. Ms. Fraser went to the children’s school and interviewed them for the purpose of determining if they had seen [T.K.] and [K.S.]. [91] On one occasion Ms. Fraser gained access to the apartment building pretending to be making delivery at [S.K.]’s home. She attempted to justify this behaviour by saying she did have papers to deliver, but find this was clearly for the purpose of surprising [S.K.] to see if [T.K.] was there. Ms. Fraser indicated that she was concerned about [T.K.] going to her mother’s home to see the children. The reason for this concern is not immediately apparent as DCR’s position seems to be that it was not opposed to [T.K.] seeing the children, it just did not want [T.K.] living with the children. [92] Ms. Fraser acknowledged leaving letter for [S.K.] dated December 30, 2005 in which she advised that the children would be taken to foster care on January 3, 2006. The letter was left at about 6:30 p.m. on Friday, December 30 and the office was not open again until January 3, the day the children were to be taken. She further acknowledged that [S.K.] and [D.P.] came to the office, crying and begging for the children to be permitted to remain with them. She confirmed that the Department refused to provide any additional financial assistance to [S.K.] and refused to provide any childcare. [S.K.] received $270.00 per month per child. THE POSITIONS OF THE PARTIES [93] DCR recommended, and ordered that [E.K.] be committed to the Minister to age 16. After that point DCR would be in position to offer him services pursuant to s. 10 of the Act. [94] This permits [E.K.] to return home to [T.K.] and [K.S.] which is acceptable to [T.K.]. [95] DCR recommended and [T.K.] agreed that [J.S.] should remain with [S.K.] as P.S.I. for an indefinite period. [S.K.] is also in agreement with having [J.S.] remain with her. DCR recommend that some conditions be imposed which are the following: (a) [J.S.] will attend for mental health counselling and [S.K.] shall follow any recommendations which are made by the professionals; (b) Access to [J.S.] by [K.S.] will be supervised by [S.K.] or another responsible adult; (c) [S.K.] will work with any family support worker or similar service provided to her by DCR; (d) [J.S.] shall not be returned to [T.K.] or [K.S.] by [S.K.] without further order of the court. [96] [T.K.] foresees at some point in the future that [J.S.] could return home as well, but acknowledges that the time is not now. (1) The Department [97] DCR recommends that an order be made pursuant to subsection 37(3) of the Act placing [C.S.] in the custody of the Minister until she attains the age of 18 years. [98] Although DCR is not recommending temporary order it would suggest the following conditions if one were to be made: (a) [T.K.] will obtain mental health assessment as arranged for by DCR or by [T.K.]’s family physician; (b) [T.K.] will participate in the Victim Intervention Program (VIP); (c) [T.K.] will work and communicate with DCR in developing case plan which will include visits at the apartment. [99] [T.K.] wants [C.S.] to be returned to her care. [100] The provisions of the Act contemplate two-stage inquiry which has been described by McIntyre J. in Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and D.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Q.B.) As follows: [40] In child protection hearings it is two step process. First, there must be determination pursuant to s. 36(1) as to whether the child is in need of protection as that term is defined in s. 11. If it is determined that child is in need of protection the next step is to determine the appropriate order among the options contained in s. 37. He continued at para. 41 to discuss what the Court must consider on the first stage of this inquiry: [41] In determining whether child is in need of protection pursuant to any of the grounds enumerated in s. 11, Baynton, J., in Saskatchewan (Minister of Social Services) v. S.E. and E.E., 1992 CanLII 8071 (SK QB), [1992] W.W.R. 289 (Sask. U.F.C.) at p. 296 states: “... [T]he issue is not whether the children might be better off, or happier, or obtain better upbringing in the care of other ‘parents’ than with their natural parents. If that were the criterion for protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society...” [101] am satisfied that at the time of the apprehension, [E.K.] had suffered from physical harm. The evidence is unclear as to the regularity of the infliction of this harm, and as to whether it had ever extended to the other children. But given [T.K.]’s apparent stress, and isolation at the time would consider the other children to be at risk. In addition, I am satisfied the children were exposed to domestic violence or severe domestic disharmony. [102] [T.K.] has done her best to discount or minimize any domestic violence between herself and [K.S.] and has attempted to assume any blame arising out of such conduct. However, am satisfied by her evidence, [S.K.]’s evidence and the statements made to DCR and the police by the children that they were exposed to severe domestic disharmony. [K.S.]’s excessive consumption of alcohol exacerbated this problem. [103] Following the children’s apprehension things spiralled out of control for [T.K.] and for [K.S.]. [104] There is significant concern here with the passage of time before resolution of these matters. In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, Justice L’Heureux-Dubé discussed the importance of reaching speedy resolution in matters affecting children. At p. 206 of that decision, she states: ... The Act requires it and common sense dictates it. few months in the life of child, as compared to that of adults, may acquire great significance. Years go by crystallizing situations that become irreversible.... Chief Justice McLachlin of the Supreme Court of Canada also spoke of this in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48 (CanLII), [2000] S.C.R. 519 at para. 124. There she emphasized that “... child’s need for continuity in relationships provides the most compelling basis for requiring prompt post‑apprehension hearing....” [105] Matters did not move quickly once the children were in the care of DCR. [T.K.] identified this as big issue for her. The history of the deterioration of her mental health and her numerous admissions into health facilities following the apprehension of her children is some evidence of her concerns. The evidence is equivocal as to whether any of these conditions pre-existed the apprehension. The fact that the children were placed by DCR with [S.K.], person with whom [T.K.] had significant issues tracing back to her childhood did not assist the process for [T.K.]. Instead of working with DCR to ensure a smooth reintegration of the children into their home, [T.K.] and [K.S.] vacated their apartment, moved to Alberta for a while, lived in a series of motels, camped at [S.K.]’s apartment building and even lived in a tent. During that period of time, some of which encompassed the trial, I am not satisfied that there was an adult person who was willing and able to provide for the children’s needs. [106] Based on the circumstances at the time of the apprehension and currently, I am satisfied that the children are in need of protection within the meaning of s. 11 of the Act. [107] Having made that determination, now turn to the second stage of the inquiry. Here, the Court must concern itself with the best interests of the children within the meaning of s. of the Act, and decide first whether any of the options set forth in subsection 37(1) are appropriate. In Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S., supra, McIntyre J. set out five principles, which he takes from the legislation and jurisprudence, which provide guidance when deciding the appropriateness of any of the options. At pp. 54-56 he sets out the following principles: 1. The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. (R. v. (Saskatchewan) Minister of Social Services, 1974 CanLII 959 (SK QB), [1974] W.W.R. 388, at 393 (Sask. Q.B.)). 2. Section 37(4)(a) does not declare that only the best interests of the child shall be considered. The implication is that the court may be mindful of other matters. As well, the list in s. is not exhaustive in determining the best interests of the child. (Saskatchewan (Minister of Social Services) v. R.G. (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (U.F.C.)). 3. Any determination made must be in the context of the objective of the Act, set out in s. 3. (M.A.C. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81; 46 R.F.L. (3d) 174 (Q.B.)). 4. The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. 5. The court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents. [108] So, in determining the appropriateness of an order under subsection 37(1) of the Act, consideration must be given to the welfare and best interests of [J.S.] and [C.S.], the recommendations of the Minister, the objectives of the legislation, and to lesser extent, the wishes of the parents. In terms of [J.S.], given the position taken by DCR and by [T.K.] with respect to him staying with [S.K.], the only issue will consider is what, if any, conditions will be imposed. [109] In terms of [C.S.], if an order is made that she will be returned to her parents either now or in the future, there must be realistic expectation that the circumstances which placed her at risk no longer exist or can be ameliorated within reasonable period of time. As stated in Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.) at para. [24] However, the following is self-evident. Where, as here, children have been placed into the temporary custody of the Minister, and the parents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in the home which have resulted in the children being taken from the parents.... [110] McIntyre J., in Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S., supra, also said the following at p. 55: [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in ss. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. [111] I am satisfied that there is a reasonable prospect of change within a reasonable period of time, and that changes have already occurred. Apparently [K.S.] has quit drinking. His consumption of alcohol was contributing factor to the domestic disharmony. [T.K.] is now employed. She testified that the fact that she stayed home all of the time at about the time of the apprehension also contributed to the domestic disharmony. [112] [K.S.] has attended some anger management programming flowing from his criminal conviction. [T.K.] says that in addition, she and [K.S.] have grown closer as result of the apprehension of the children. She says they are able to communicate better and are prepared to work together for the return of the children. [T.K.] denies there is currently any domestic disharmony or domestic violence. [113] In the event that [K.S.] is not prepared to abide by any conditions imposed by the court, [T.K.] has decided that she will leave him, so that his presence will not impede her ability to be re-united with her children. [114] [T.K.] and [K.S.] have residence and [T.K.] has the stability of job. [K.S.] is seeking employment. At the moment he does not have driver’s licence which impedes his ability to work, but he will be eligible to re-acquire his licence on his birthday. [115] [T.K.] is currently taking medication which promotes the continuation of her mental health. DCR acknowledges that there are no current issues with [T.K.]’s mental health and that there have not been for some time. [116] There have been ongoing issues between DCR and [T.K.] with respect to her unwillingness to stay in contact with them and work with them. [T.K.] has deep‑seated and long-standing issues with DCR and an essential distrust of their workers. [T.K.] feels she was not protected when she was child and as result was subjected to sexual abuse at the hands of [S.K.]’s male companions. In 2003 when [E.K.] mutilated bird [T.K.] does not feel he was offered any counselling or help. And when [J.S.] was sexually assaulted by someone associated with [S.K.], DCR did not become involved even after the matter was reported, and in fact they then placed her children with [S.K.] without any further investigation of the suitability of the placement. And finally, [T.K.] felt unwilling to engage with Linda Fraser on very personal matters involving her children, given that she had previously had personal relationship with Ms. Fraser. As she described it, it just did not seem right to be in the bar with Ms. Fraser at one time and to be required to share personal issues in her office the next time. Ms. Fraser confirmed that she had interacted socially with [T.K.], her brothers and with [S.K.] in the past. She did not, however, feel that this interfered with her ability to manage [T.K.]’s case in the system. [117] Even with all of these issues, [T.K.] says she is prepared to work with DCR to ensure the return of her children. accept that she will do this, however, find myself sympathetic to [T.K.]’s disinclination to work with Ms. Fraser. expect that the success of the involvement of DCR in the life of this family would be enhanced with the assignment of another worker. Ms. Fraser may feel that her personal involvement with this family has not impeded her ability to work with this family. This is not view shared by [T.K.], and it has worked to [T.K.]’s detriment. ORDERS [118] I find that [J.S.] is in need of protection and that he shall be placed with [S.K.] for an indefinite period. [J.S.] shall be encouraged to attend for mental health counselling and [S.K.] shall follow any recommendations which are made by the professionals consulted. [S.K.] shall work with any family support worker or similar service provided to her by DCR. [J.S.] shall not be returned to live with [T.K.] or [K.S.] by [S.K.] without a further order of the Court. This does not prevent [J.S.] from spending unsupervised time with [T.K.] and [K.S.], including overnight visits. [119] I find that [C.S.] is in need of protection and that she shall remain in the custody of the Minister for a period of three months. During that time [T.K.] and [K.S.] shall work co-operatively with and communicate with DCR to develop a case plan for [C.S.]’s return. This will include home visits at their apartment which should commence as soon as possible. [T.K.] and [K.S.] will work co-operatively with any family support worker provided for their assistance by DCR. [T.K.] will have a mental health assessment as arranged for by DCR or by her family doctor and will follow any recommendations of the mental health professional. T.K.] will participate in the Victim Intervention Program (VIP). [K.S.] will attend any sessions at Alternatives to Violence arranged for by DCR.","The Department of Community Resources (DCR) seeks orders pursuant to The Child and Family Services Act (the Act) placing CS with the Department until age 18 pursuant to s. 37(2) and JS with his grandmother as a Person of Sufficient Interest pursuant to s. 37(1)(b). With respect to EK the Department seeks an order placing him with the Minister until his 16th birthday. This order was granted at trial. The parents do not oppose the applications with respect to JS and EK but the mother seeks the return of CS to her care. HELD: JS is in need of protection and he shall be placed with SK for an indefinite period. JS shall not be returned to live with his parents without a further order of this Court. This does not prevent JS from spending unsupervised time with his parents including overnight visits. CS is in need of protection and she shall remain in the custody of the Minister for a period of 3 months. During that time, the parents shall work with DCR to develop a case plan for CS's return. TK will have a mental health assessment as arranged for by DCR and will follow any recommendations of the mental health professional and participate in the Victim Intervention Program. KS will attend any session at Alternatives to Violence arranged for by DCR. 1) The Court was satisfied that the children were exposed to domestic violence or severe domestic disharmony. 2) Matters did not move quickly once the children were placed in the care of DCR. Instead of working with DCR to ensure a smooth reintegration of the children into their home, the parents vacated their apartment, moved to Alberta for a while, lived in a series of motels, camped at SK's apartment building and even lived in a tent. During that period of time, some of which encompassed the trial, the Court was not satisfied that there was an adult person who was willing and able to provide for the children's needs. The children are in need of protection within the meaning of s. 11 of the Act. 3) There is a reasonable prospect of change within a reasonable period of time. KS has quit drinking. TK is now employed. KS has attended some anger management programming flowing from his criminal conviction. The parents have a residence. TK is taking medication which promotes the continuation of her mental health. DCR acknowledged that there are no current issues with TK's mental health and that have not been for some time. TK says she is prepared to work with DCR to ensure the return of her children. The Court accepts TK's disinclination to work with Ms. Fraser. The success of the involvement of DCR in the life of this family would be enhanced with the assignment of another worker.",9_2006skqb511.txt
203,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 419 Date: 2007 11 08 Docket: Q.B.M. 97/1992 Judicial Centre: Regina BETWEEN: PETER MICHAEL MALOWANY and SHERRY LYNN MACK Counsel: Michael S. Scott for Peter Michael Malowany W. Timothy Stodalka for Sherry Lynn Mack FIAT McINTYRE J. November 8, 2007 [1] The child support order of the Provincial Court of December 11, 1991 was registered in this Court January 27, 1992, pursuant to s. of The Reciprocal Enforcement of Maintenance Orders Act, 1983, S.S. 1983, c.R-4.1. Under that order the petitioner was to pay ongoing child support to the respondent of $300.00 per month. The parties subsequently entered into an agreement of January 30, 1992 whereby the parties agreed the $300.00 per month would be without tax ramifications to either party. [2] petition has been issued pursuant to The Children’s Law Act, 1997 S.S. 1997, c.C-8.2 as am. and The Family Maintenance Act, 1997, S.S. 1997, c.F-6.2 as am. The petitioner seeks an interim order setting his ongoing child support obligation as well as addressing the arrears. The petitioner says he has been paying at a rate that is greater than his legal obligation. Arrears have accumulated and he seeks to expunge them. [3] The petitioner is part of family farm operation. He supplements his farm income with working for part of the season at local sporting retail store. He owns home in Regina and has room mate to share expenses. This generates some rental income. In reviewing the petitioner’s income tax returns the farming operation has shown loss in each year. His employment income has been $20,640.00 in 2006; $21,481.00 in 2005 and $23,382.00 in 2004. The three year average would be $21,834.00. The rental income is said to be $5,100.00 per year. In 2003 the petitioner’s employment income was $19,961.00. [4] As of September 26, 2007 the petitioner has arrears of $2,935.67. The petitioner takes the position that he has overpaid by approximately $6,300.00 over the past four years if one compares his employment income to the corresponding table support under the Federal Child Support Guidelines (SOR/97-175, as am.) The Maintenance Enforcement Office is holding funds obtained through federal garnishment. [5] The respondent takes the position that the petitioner’s line 150 income does not reflect his ability to pay. The respondent notes that when the petitioner recently sought financing for the purchase of half ton truck he indicated his income was $5,100.00 per month. Counsel noted that through use of the optional inventory adjustment the petitioner is able to average out his farm income. Counsel also refers to expenditures on credit cards which would suggest the petitioner is able to eat out at restaurants on regular basis. Counsel suggests that the petitioner could in fact work full time and earn an income of approximately $40,000.00 and child support should be fixed on that basis. [6] Counsel for the petitioner acknowledges that the child support obligation should be determined on the basis of the petitioner’s employment income. In terms of ongoing support it is appropriate to determine the petitioner’s income on the basis of the three year average of his employment income being $21,834.00 and add to that the $5,100.00 in rental income for total of $26,934.00. The petitioner is actively engaged in farming. He pursues reasonable off farm income. In the absence of something further I am not prepared to impute income. The petitioner, having been found to have an income of $26,900.00 shall pay to the respondent child support of $221.00 per month commencing June 1, 2007 payable on the 1st of each month thereafter. [7] In terms of the arrears Wurmlinger v. Cyca 2003 SKQB 152 (CanLII); (2003), 231 Sask. R. 282 (Sask. Q.B.) sets out the factors to be considered when determining whether arrears should be rescinded. The factors are: 1. The nature of the maintenance order sought to be varied; 2. The ongoing financial capacity of the payor; 3. The ongoing needs of the child; 4. Any unexplained delay in enforcing arrears; 5. Any explanation as to the delay in seeking relief from the arrears; 6. Whether enforcement of payment of arrears would cause hardship to the payor; and 7. The payor’s ability to pay the arrears at the time they were incurred. [8] It is not clear when the arrears arose. It appears that by early 2006 there was $1,300.00 in arrears. During the balance of 2006 and 2007 the arrears increased. Delay in enforcing arrears or seeking relief is not significant issue in the circumstances. Enforcement of payment of the arrears will not cause any particular hardship to the payor. There is money sitting in the Maintenance Enforcement Office as result of federal intercept. [9] In terms of the payor’s ability to pay at the time the arrears accrued the petitioner says he was paying in excess of his legal obligation. It is true that if one looked to his employment income the table amount would be approximately one-half of the $300.00 per month non-taxable that the petitioner agreed to pay back in 1992. However one cannot ignore the fact that in 1992 the payor agreed to pay $300.00 per month non-taxable. He did nothing to seek to change this obligation in all of the intervening years. I am also cognizant of the fact that the petitioner’s farming operation affords the petitioner an opportunity to manage his financial affairs. By reporting a farm loss each year the petitioner in fact pays less tax on his employment income than he would otherwise pay. In the circumstances I am not prepared to rescind any of the arrears. [10] On the issue of costs consider success to have been divided. There will be no order as to costs. J. D.E.W. McIntyre","In January 1992, the parties agreed the petitioner would pay child support of $300 per month and that it would be without tax ramifications to either party. As of September 2007, the petitioner has arrears of about $2,900. He now applies to set his child support obligation and deal with the arrears. The petitioner claims he has been paying too much in child support under the Guidelines. HELD: 1) In terms of ongoing support, it is appropriate to determine the petitioner's income on the basis of the three year average of his employment income being $21,834 and add to that the $5,100 in rental income for a total of $26,934. The petitioner is actively engaged in farming. He pursues reasonable off farm income. In the absence of something further, the Court was not prepared to impute income. He shall pay child support of $221 per month.  2) In terms of the payor's ability to pay at the time the arrears accrued, the petitioner says he was paying in excess of his legal obligation. It is true that if one looked to his employment income the table amount would be approximately half of the $300 per month non-taxable that the petitioner agreed to pay back in 1992. However, one cannot ignore the fact that he agreed to pay it. He did nothing to seek to change this obligation in all of the intervening years. The petitioner's farming operation affords the petitioner an opportunity to manage his financial affairs. By reporting a farm loss each year, the petitioner in fact pays less tax on his employment income than he would otherwise pay. In the circumstances the Court was not prepared to rescind any of the arrears.",8_2007skqb419.txt
204,"J. 2001 SKQB 282 Q.B. A.D. 1998 No. 112 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON L. R. B. APPLICANT (PLAINTIFF) and ATTORNEY GENERAL OF CANADA RESPONDENT (DEFENDANT) and LES OBLATS de MARIE IMMACULEE du MANITOBA RESPONDENT (DEFENDANT BY CROSS-CLAIM) and THE ARCHIEPISCOPAL CORPORATION OF REGINA and THE ARCHBISHOP OF THE ARCHDIOCESE OF REGINA representing THE ROMAN CATHOLIC CHURCH THIRD PARTIES B.M. Singer, Q.C. for the applicant (plaintiff) N. Gunningham-Kapphahn for the Attorney General of Canada respondent (defendant) J.G. Brick for Les Oblats de Marie Immaculee du Manitoba FIAT DIELSCHNEIDER J. June 6, 2001 [1] The applicant applies for an order severing the issues raised by his claim from those raised by the cross-claim and third party proceedings so that his claim may at this time proceed to trial. [2] In bringing this application the plaintiff asserts that he is ready for trial. Indeed he states he has been ready for trial for some considerable period of time and that he is standing by while the issues of the cross-claim and third party proceedings which are of no concern to him are debated. [3] The defendant, Les Oblats de Marie Immaculee du Manitoba, is also ready for trial (except for some minor matters) and concurs that the issues raised by the claim of the plaintiff should proceed to trial at this time. [4] The Attorney General of Canada vigorously opposes severance on the ground that the Government of Canada would be prejudiced in its claim for apportionment of the amount of any judgment as between the Government of Canada and Les Oblats de Marie Immaculee du Manitoba. [5] It is quite apparent to me from the material and from the arguments of counsel that the pursuit of the issues of cross-claim and the third party proceedings, meritorious as that pursuit may be, will nevertheless result in the expenditure of, in my judgment, a very lengthy period of time. [6] Meanwhile the plaintiff is stalled in the pursuit of resolution of the issues of his claim. Not only the plaintiff but as well hundreds of other claimants who have been asked by the management pre-trial judge appointed in this case to regard the plaintiff's action as a test case are standing by pending a judgment whereby they will be able to measure the success or failure of their claims. [7] have read the minutes of the pre-trial management proceedings conducted by my colleague Maurice J. of this Court and am satisfied that this action and the other actions pending resolution of this action will be fairly dealt with under the Rules. In my opinion, and want to be emphatic about this, the fears of procedural unfairness expressed by counsel for the Attorney General if the issues are severed are groundless. [8] Moreover, am in total agreement with my colleague Noble J. of this Court who in his judgment dealing with other issues of this action took the time to express his concerns over the delay the plaintiff had up to that time been subjected to by the paper war conducted by the parties to the cross-claim and third party proceedings (see Noble J.'s judgment dated November 23, 2000). [9] I am satisfied that it is in the best interests of justice that the order of severance sought by the plaintiff should be granted so that the issue raised in the action may proceed to an early trial. [10] I therefore order that the plaintiff's claim shall proceed to trial separate from, and before, the trial of the issues raised in the cross-claim and the third party claim in this action.",FIAT. The applicant applied for an order severing the issues from those raised by the cross-claim and third party proceedings so that his claim may proceed to trial. The Attorney General opposed severance on the ground the Government of Canada would be prejudiced in its claim for apportionment of the amount of any judgment as between the Government of Canada and the Oblates. HELD: It was in the best interests of justice that the order of severance be granted so the issue may proceed to an early trial. The issues of cross-claim and third party proceedings will take a very lengthy period of time. Hundreds of other claimants who have been asked by the management pre-trial judge to regard the plaintiff's action as a test case were awaiting a judgment.,b_2001skqb282.txt
205,"Date: 19971219 Docket: CA136437 NOVA SCOTIA COURT OF APPEAL Freeman, Bateman and Cromwell, JJ.A. BETWEEN: DEBORAH LYNN IRVING -and- PAUL GREGORY IRVING respondent Appeal Heard: November 12, 1997 Judgment Delivered: December 19, 1997 Edward T. Dunsworth for the appellant Michael I. King for the respondent THE COURT: The appeal is dismissed, per reasons for judgment of Bateman, J.A.; Freeman and Cromwell, JJ.A., concurring. J.A.: This is an appeal by Deborah Lynn Irving, from the granting of, uncontested, divorce and corollary relief judgments. INTRODUCTION: The parties were married October 20, 1990. They have two children, Paul Charles Irving, born October 1, 1991, and Alexander Gregory Irving, born May 9, 1993. The children are in the joint custody of the parties but reside on day-to-day basis in the former matrimonial home with their father. separation agreement, which was incorporated into the corollary relief judgment, was executed by the parties on November and 7, 1996. According to the divorce petition the parties separated on August 21, 1996. The divorce and corollary relief judgments were granted on February 11, 1997. The appellant asks this Court to set aside the judgments on the basis that the underlying separation agreement is ""unconscionable and unduly harsh."" In this regard she has applied to the court to admit fresh evidence bearing upon the circumstances leading up to the divorce. The regularity of the divorce proceeding itself is not in question. The appellant submits, however, that at the time of the signing of the agreement, which was clearly made in contemplation of the divorce, she was suffering from lingering depression which so affected her that she entered into an improvident agreement. FACTUAL BACKGROUND: In the appellant's affidavit, which was tendered as ""fresh evidence"", she says that at the time she signed the agreement she was living in the basement of the matrimonial home, being treated for depression by her psychiatrist, Dr. Gerald Gray, and on daily medication. She says that she was extremely unhappy in her marriage and had been diagnosed by her family doctor as suffering from depression in 1994. That doctor initially prescribed Prozac and later Effexor. She had first consulted Dr. Gray in January 1995, on referral from her family doctor, and has been on an antidepressant since then. She alleges that significant reason for her unhappiness was the controlling nature of the respondent during the marriage. The appellant says that she feared his violent temper. The parties separated in August of 1996 at the appellant's instigation. They agreed that they would share custody of the children, who remained in the matrimonial home with the respondent. She initially lived with female roommate, but when that arrangement collapsed, the appellant moved into separate quarters in the basement of the matrimonial home. Both parties were employed at this time the respondent as firefighter and the appellant at S.S. Keddy's. During this separation the appellant was involved with her current common law partner, but had sexual relations with the respondent, allegedly under pressure from him. On November the respondent gave the appellant the separation agreement which had been drafted by his lawyer. He made arrangements for her to meet with lawyer to witness her signature and gave her the required $20.00 referral fee. The appellant met with lawyer who offered to review the agreement for $50.00. Indeed, the lawyer recommended that the appellant have her review the agreement before signing. The appellant declined the offer to have the agreement reviewed. The appellant says that her family doctor had also advised her not to sign the agreement without legal advice, but that she did not have funds to retain lawyer. At some point, before or after the signing of the agreement, she contacted Legal Aid but could not get an appointment until February 18, 1997. The divorce and corollary relief judgments were granted on February 12, 1997. The appellant's affidavit contains additional information relevant to the value of the assets and the appellant's role in the marriage. The respondent has filed an affidavit in response. He says that the parties first separated on December 8, 1994, which was at the appellant's request. They entered into separation agreement at that time, the terms of which were dictated by the appellant, and the formal document drafted by lawyer. The respondent received independent legal advice. The appellant did not, but was advised by the husband's lawyer that she should do so. They reconciled and again separated on August 23, 1996. Together they prepared second separation agreement dated September 27, 1996. Neither had independent legal advice at that time. The only change of substance from the first to the second agreement was that the custody was to be joint rather than sole custody to the respondent. The November 7, 1996 agreement essentially embodied the terms of the September 27 agreement and was drafted by the respondent's current solicitor who was retained, at that point, only to prepare the agreement and not to advise the respondent. The respondent says that the appellant was pushing for speedy divorce because she was anxious to commence living with her current common law partner. The respondent details his perspective on the marriage that the appellant was immature and had difficulty adjusting to married life. The appellant had admitted extramarital affairs to the respondent. He denies treating her in controlling and dominant manner, or exhibiting violent temper. He says she displayed emotional ambivalence about whether she wanted to be married or single. He acknowledges that the appellant started taking the drug Effexor in the summer of 1995. The respondent's affidavit contains information about their respective roles in the marriage and the contribution of each to the assets. ISSUES: (i) Should the ""new"" evidence be admitted? (ii) Should the judgments be set aside? ANALYSIS: (i) The ""Fresh Evidence"": The appellant asks this court to receive as ""fresh evidence"" her affidavit detailing the circumstances of the marriage. The respondent opposes the introduction of the evidence but submits, in the alternative, that if it is received, his affidavit should be admitted as well. It is the respondent's position that the appellant has not met the test for the admission of the fresh evidence and that without that evidence her appeal must fail. He submits, as well, that even should the affidavit evidence be admitted, it is not sufficient to warrant success on the appeal. Civil Procedure Rule 62.22 provides: 62.22 (1) The Court on application of party may on special grounds authorize evidence to be given to the Court on the hearing of an appeal on any question of fact as it directs. (2) The evidence shall be taken by oral examination before the Court or by affidavit or deposition, as the Court directs. (3) The Court on an appeal may on special grounds inspect or view any place, property or thing. The test for the admission of fresh evidence in civil matters is set out in Thies v. Thies (1992), 1992 CanLII 2590 (NS CA), 110 N.S.R. (2d) 177, where Freeman, J.A. said at p.179: The test for admission of fresh evidence on appeals was set out by McIntyre, J., writing for the Supreme Court of Canada in v. Palmer (1979), 1979 CanLII (SCC), 30 N.R. 181; 50 C.C.C. (2d) 193 (S.C.C.): ""(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases ""(2) the evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial; ""(3) the evidence must be credible in the sense that it is reasonably capable of belief, and ""(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result."" The procedure which should be followed when an application is made to court of appeal for the admission of fresh evidence is set out by McIntyre, J., again writing for the Supreme Court of Canada, in v. Neilson and Stolar (1988), 1988 CanLII 65 (SCC), 82 N.R. 280; 52 Man. (2d) 46; 40 C.C.C. (3d) at p. 8: “. the motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard. In this way, the Court of Appeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in the case. It is then in position where it can decide realistically whether the proffered evidence could reasonably have been expected to affect the result of the case. If, then, having heard the appeal, the court should be of the opinion that the evidence could not reasonably have affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to the disposition of the appeal. On the other hand, if it should be of the view that the fresh evidence is of such nature and effect that, taken with the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there. Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct new trial where the evidence could be heard and the issues determined by the trier of fact."" [Emphasis added] The appellant says that due to her mental condition, specifically depression leading up to the granting of the uncontested divorce, she could not have produced the relevant evidence at trial, thus meeting the first requirement of the Palmer test. She further submits that the ""fresh"" evidence that she tenders, because it bears upon the division of assets, is relevant, credible and might have affected the result, had there been trial. Counsel for the appellant originally asked that this Court (i) find that the separation agreement is unfair and unconscionable, (ii) set aside the Corollary relief judgment and (iii) refer the. matter to the Supreme Court for trial on the merits. At the time of the appeal hearing, however, he conceded that, should the appellant's argument prevail, we should remit the matter to the trial court for hearing on the legality of the agreement. preliminary issue is whether the test outlined in Thies, supra, is the appropriate one where there has been no adjudication on the merits by trial court. The Thies/Palmer test is clearly predicated upon the premise that there has been an evidentiary record established in the court below. In the usual ""fresh evidence"" application the appellant seeks leave of the Appeal Court to add to that record. In the words of McIntyre, J. from Stolar, supra, ""the Court of Appeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in the case."" There is no evidentiary context here within which to consider the additional evidence. This is not an application to admit fresh evidence, but rather an application to this Court to receive additional evidence for the purpose of determining whether the judgments in the Court below should be vacated. In essence, we have before us an appeal from settlement agreement. could find no case law directly on point; however, there is some guidance to be drawn from the cases. In Makowka v. Anderson, [1988] B.C.J. No. 2568 (B.C.C.A.) mother and child were injured in motor vehicle accident. The individual claims by the mother and child against the Insurance Corporation of British Columbia were settled. The child's settlement required court approval under the provisions of the Infants Act. The settlement, although consented to by the insurer and the mother of the child, acting in her capacity of guardian ad litem for the infant, was opposed by the Public Trustee. The Chambers judge heard representations from the parties and the Public Trustee. The Public Trustee appealed the Chamber judge's approval of the infant's settlement. On that appeal the parties applied for the admission of fresh evidence. Lambert J. A. said, commencing at page 8: turn now to the application to lead fresh evidence. The circumstances raised by this application are dissimilar from those in the authorities to which we were referred where there has been trial of issues of fact based on oral evidence, or on expert evidence, or on affidavit evidence, that was intended to result in conclusive findings of fact. There, it is essential to the administration of justice that there should be regarded as finality at that stage, subject to the well-understood exceptions set out in the cases. That is so even if the interests of an infant are at stake in the trial. But where the issue before the chambers judge is not determination of the true facts, but an assessment of whether settlement that has been agreed upon by well instructed lawyers in the interests of their clients should be approved, and consideration of things like the possibility of delay and the benefits that immediate money will bring, the matter that was decided by the chambers judge is quite different. It is not decision on the evidence and the weighing of the evidence; it is decision on the best interests of the infant. So the purpose of the introduction of fresh evidence in this appeal is not to show that factual assessment of the previously existing evidence was incorrect, but it is to show that the best interests of the infant may not in fact have been carried through in the way that the chambers judge thought he was carrying them through. [Emphasis added] The circumstances here are not entirely analogous to those in Makowka, supra. There, the Chambers judge did adjudicate contest on the propriety of the settlement agreement, the approval of which was appealed. Lambert, J.A., however, recognized that it may be appropriate to apply different test when there have not been factual determinations by trial judge. In the situation before us, the judge granting the divorce and corollary relief judgments quite properly assumed that he had all relevant evidence before him, and that the parties agreed that the divorce be granted embodying the recent separation agreement. Accordingly, it was not necessary for him to receive vive voce evidence, nor weigh, as judge would in contested proceeding, the merits of the proposed arrangements. Lambert, J.A. continued in Makowka: Having regard to the best interests of the child and the good administration of justice, it would, in my opinion, in the words of the cases, be an affront to justice to insist on imposing this settlement on this infant if it was, when it was agreed upon, an unjust settlement. In my opinion, the introduction of the new evidence that we were asked to permit would allow the court which hears the appeal to assess as it wishes the interests of justice. For that reason, would allow the admission of the evidence that we were specifically asked to allow. [Emphasis added] In Cosper v. Cosper, (1995) 1995 CanLII 4238 (NS CA), 141 N.S.R. (2d) 344 (C.A.), the wife sought to set aside corollary relief judgment based upon the agreement of the parties reached after one half day of evidence at the contested divorce hearing. She maintained that her lawyer improperly pressured her into making the agreement. There, this Court, applying the Palmer test, as approved in Thies, supra, dismissed the application to admit fresh evidence. In Benoit v. Reid (1995), 1995 CanLII 6229 (NB CA), 18 R.F.L. (4th) 136 (C.A.), the New Brunswick Court of Appeal received new evidence on an appeal from trial judge's refusal to vary prior consent order, restricting the removal of the child of the marriage from the province. Bastarache, J.A., as he then was, said: [para 10] This Court obtained updated information from counsel, by way of documents filed in other courts and by way of affidavits. Although it is unusual to receive such additional information on appeal, believe that it is important to recognize that accurate information is essential in custody cases and that some flexibility is required in order to assess the best interests of the child. This approach was taken by L'Heureux-Dube, J. in C.A.S., Metro Toronto v. M(C.), 1994 CanLII 83 (SCC), [1994] S.C.R- 165, at 188 where she says: ... Although it might be more in line with usual procedures for court of appeal to base its conclusions on the evidence before the trial judge, the particular nature of appeals in child welfare legislation requires sufficiently flexible rule, where an accurate assessment of the present situation of the parties and the children, in particular, is of crucial importance. If Genereux, supra, has enlarged the scope of the admission of fresh evidence on appeal, it has done so, in the present case at least, with regard to the final arm of the Stolar test, that is, whether the fresh evidence may affect the result of the appeal when considered with the other evidence. If that is so, and the fact that the admission of up-to-date evidence is essential in cases such as the one at hand, Genereux, supra, should be applied in cases determining the welfare of children. In Benoit, supra some time had elapsed between the original proceeding and the hearing of the appeal. The information before the trial judge had been sketchy. In addition, since the trial, there had been change in the child's residence and Community Services had become involved with the family. The information received on appeal was, therefore, to update the court on circumstances as they existed at the time of the appeal hearing. Again, the situation is not strictly analogous to that before us, but the Court of Appeal does recognize that in certain circumstances, the traditional test may not be appropriate, particularly where the welfare of children is involved. This Court, in Children's Aid Society of Halifax v. C.M. et al. (1995), 1995 CanLII 7522 (NS CA), 145 N.S.R. (2d) 161 and Children's Aid Society of Cape Breton v. S.G. (1995), 1995 CanLII 7516 (NS CA), 142 N.S.R. (2d) 57 has recognized that the Palmer test for the admission of fresh evidence applies ""in modified form"" to child welfare proceedings. This is particularly so when the evidence relates primarily to events occurring after the order of the trial judge. This, however, is not child welfare proceeding. We are advised by counsel that the matter of the custody of the children, and, in particular, their day to day care arrangements is presently before the Supreme Court on variation application. The separation agreement, which was incorporated into the corollary relief judgment, provides for joint custody, with no particulars as to care and control. The respondent's affidavit in support of the granting of the judgments states that the children have resided with him on day to day basis since the separation. Even should the appellant successfully challenge the separation agreement, the arrangements regarding the children must be reviewed taking into account the status quo as it has developed since the separation. That review process is currently underway. This appeal, while it indirectly concerns the custody of the children of the marriage, is primarily focused upon the division of assets between the parties. Drawing upon the comments in cases such as Makowka and Benoit, am satisfied that in these circumstances, application of the Palmer test is neither appropriate nor workable. The purpose of the proffered evidence here is to enable this Court to determine whether the appellant should have an opportunity, in new proceeding in the trial court, to attack the validity of the separation agreement. It is, in my view, impossible for us to do justice to that task without receiving and considering the affidavit evidence, providing that we find the evidence to be relevant and reasonably capable of belief. am satisfied that the affidavit evidence tendered by both parties is relevant to the issue before us and is reasonably capable of belief and, accordingly, that it should be received and considered. (ii) The Merits: When seeking to set aside default judgment, the applicant must satisfy the Court that he/she has good defence on the merits (a substantial issue to be tried) and that he/she has reasonable excuse for not filing the defence on time. (See, for example, Marissink v. Kold-Pack Inc., et al. (1993), 125 N.S.R. (2d) 204 Chipman J.A.) The appellant having entered into settlement of the issues in contemplation of the divorce proceeding, the test applied here should, in my view, be somewhat more onerous than that required to set aside default judgment. Where legal action has been settled, and, in particular, where the settlement has formed the basis of court order, party should not be permitted to resile from that bargain save in exceptional circumstances. would require that the appellant demonstrate: (i) that she has reasonable excuse for failing to challenge the separation agreement, upon being served with the divorce documents, and (ii) that she has strong, prima facie case that the agreement is unconscionable or unduly harsh. (iii) Failure to Contest the Divorce Proceeding: Many of the background facts are not in dispute. The parties dated for about year before entering into common law relationship in October of 1990. At that time they resided in the respondent's house in Dartmouth. They lived together for six months before marrying. During the marriage the appellant had income through employment or unemployment insurance. They moved to new home, built by the respondent. The equity from the house that the respondent had owned before marriage went into the second house. The appellant was unhappy in the marriage. The parties separated for about three months in the late fall of 1994, reconciling in January of 1995. They separated again in August of 1996 with the appellant maintaining separate accommodation until October. The separation continued; however, the appellant moved into the basement of the matrimonial home. During the separation they shared time with the children equally. The appellant was served with the notice of petition and petition for divorce at the offices of the respondent's solicitor on December 13, 1996. The appellant moved from the basement of the matrimonial home on January 6, 1997. The appellant did not receive legal advice before signing the final separation agreement. That the appellant was encountering emotional distress during the marriage is not in dispute. In an affidavit filed in the Supreme Court variation proceeding the respondent says that the appellant "". has ongoing mental and emotional problem for which she must use antidepressants and is subject to large mood swings"". He acknowledges that the appellant took the drug Effexor. He says that on one occasion after the separation, although the appellant was involved with another man, when the respondent invited woman to movie, the appellant threatened suicide. He arranged for an emergency session with her physician. We have before us, then, the appellant's evidence that she was clinically depressed and on medication and the respondent's evidence that she was exhibiting mood swings and unhappy in the marriage. Conspicuously absent from the file material is any evidence from the appellant's psychiatrist confirming her state of mind at the relevant time and the probable erect of the medication upon her ability to make rational decisions. The appellant attached to her affidavit three pages from medical text outlining the potential side effects of her medication. This information is of little assistance to the Court failing evidence from her psychiatrist about how the drug was affecting the appellant. The drug was prescribed to alleviate the effects of the depression. The appellant has remained on the drug, according to her evidence, since January of 1995. One would assume it to have had the desired result, without debilitating side effects. There is, as well, uncontradicted evidence that the parties had entered into two previous separation agreements, containing similar terms. According to the affidavit of the respondent, the terms of the first of these agreements were those dictated by the appellant. The lawyer who drew that agreement advised the appellant that she should receive independent legal advice in relation thereto. At the time of signing the final agreement she met with lawyer who was prepared, for nominal fee ($50), to provide independent legal advice. The appellant declined that offer. Nowhere in the material before us does the appellant say that she did not understand her legal entitlement at the time of signing the various agreements, that she did not understand the agreements, that the agreements did not express her wishes, that she was not capable of making a reasoned or rational decision in this regard, or that she did not appreciate that a divorce proceeding had been commenced. The import of her evidence is that she was on medication for depression when she signed the agreement, that she declined to exercise her opportunity to receive independent legal advice, that she allowed the divorce to proceed on an uncontested basis and that she now believes that she made bad bargain. I am not satisfied that the appellant has demonstrated that she had a reasonable excuse for failing to challenge the separation agreement at the time of the divorce proceeding. am persuaded to this view for the following reasons: the fact that over period of two years the appellant entered into series of agreements, each consistent with the other; that twice she rejected recommendations from lawyers to obtain independent legal advice; that she had access to funds to retain counsel; that the separations were at the instigation of the appellant; and that there is an absence of persuasive evidence that the appellant was unable to make an informed decision either at the time of entering the final agreement, or at the time of the commencement of the divorce proceeding. The appellant having failed to meet the first requirement of the two part test, it is unnecessary to consider whether or not she has strong prima facie case that the agreement is unconscionable. Although have, here, resolved this appeal on the merits, would express reservation as to whether an appeal is the proper avenue in matter such as this. This was not an issue raised by counsel. My concerns are based upon the premise that the judgments granted in this matter, which incorporate the separation agreement, equate to consent orders. In Levy v. Messom (1997) 1997 CanLII 14533 (NS CA), 159 N.S.R. (2d) 252 1997 Hallett, J.A. said, for the Court, at p.259: In Bank of Nova Scotia v. Golden Forest Holdings Ltd. (1990), 1990 CanLII 2489 (NS CA), 98 N.S.R- (2d) 429; 263 A.P.R- 429 (C.A.), this Court had occasion to consider the power of superior court to vary consent order that gives effect to settlement. We concluded that such an order could not be varied unless the settlement agreement itself could be varied. By implication we approved the following statement from Chitel v. Rothbart et al. (1987), 19 C.P.C. (2d) 48 (Ont. S.C.): consent order may only be set aside or varied by subsequent consent, or upon the grounds of common mistake, misrepresentation or fraud, or on any other ground which would invalidate contract. None of these grounds are present in the within case. Although the limits of superior court's power in the exercise of its inherent jurisdiction are not fully defined, there are nevertheless limits that have been established in certain areas and the power of court to vary consent order is one of them. There are clear limitations on the inherent jurisdiction of the Supreme Court of Nova Scotia to set aside consent order. But, more importantly, the Appeal Court is not the forum in which to set aside consent order. As stated by the New Brunswick Court of Appeal in Morency and Pelleder Charest et a1 (1991), 1991 CanLII 8293 (NB CA), 123 N.B. (2d) 392; 310 A.P.R. 392; 84 D.L.R. (4th) 567, consent order must be set aside, if it is to be set aside, in new proceeding instituted for that purpose. Such proceeding would be in the Supreme Court of Nova Scotia. [Emphasis added] In Morency v. Charest, (1991) 1991 CanLII 8293 (NB CA), 84 D.L.R. (4th) 567, (N.B.C.A.) Ayles, J.A., writing for the Court, refers to certain relevant passages from Halsbury's Laws of England, vol. 26, 4' ed. (London: Butterworths, 1979). (See also Family and Children's Services of Lunenburg County v. G.D. (1997), 1997 CanLII 14392 (NS CA), 160 N.S.R. (2d) 270 (N.S.C.A.)) At p. 286 Hals., para. 562, ""Setting aside consent judgment or order"": Unless all the parties agree, consent order, when entered, can only be set aside by fresh action, and an application cannot be made to the court of first instance in the original action to set aside the judgment or order, except, apparently, in the case of an interlocutory order. Nor can it be set aside by way of appeal. And at 37 Hals., 4' ed., at p. 286, para. 390: On the other hand, once consent judgment or order has been entered or passed, it cannot be set aside by the court of first instance in the original action, even if it was entered or passed by mistake, but it may be set aside or extended or altered with the consent of all the parties, provided that to do so will not prejudice third person. It may also be set aside, in fresh action brought for the purpose, on any ground which may invalidate the agreement on which it is founded. Moreover, where the consent order or judgment is still executory, the court may refuse to enforce it if it would be inequitable to do so. The Encyclopedia of Court Forms and Precedents, vol. (London: Butterworth Co. (Publishers) Ltd., 1948) (Judgments and Orders), states, at p. 147: consent judgment or order, even though it has been passed and entered, may be set aside on any ground which may invalidate the agreement on which it is founded, such as that the consent was induced by fraud, or was the result of mistake, or was ultra vires on the part of one of the contracting parties. consent judgment or order which has been passed and entered can only be set aside in afresh action brought for the purpose; except with the consent of the parties it cannot be set aside by motion in the original action, unless there has been clerical mistake or error arising from an accidental slip or omission, or the judgment or order drawn up does not correctly state what the Court actually approved and intended, or the order is an interlocutory order. If the judgment or order has not been passed and entered, it may be set aside on motion, unless from the nature of the ground on which the application is made conflicting evidence will have to be considered or viva voce evidence and cross-examination is essential .... [Emphasis added] Notwithstanding the clear thrust of the above authorities, the issue is somewhat complicated by s. 39 of the Judicature Act, R.S.N.S. 1989, c. 240: No order of the Supreme Court made with the consent of the parties is subject to appeal, and no order of the Supreme Court as to costs only that by law are left to the discretion of the Supreme Court is subject to appeal on the ground that the discretion was wrongly exercised or that it was exercised under misapprehension as to the facts or the law or on any other ground except by leave of the Court of Appeal. In the event that the Judicature Act is applicable in this matter, in which regard make no finding, it is unclear from the wording of s. 39, whether leave of the Court is available only with respect to appeals as to costs, or whether leave may be granted where consent order is appealed. In Cosper, supra, another panel of this Court remarked that an appeal from consent order requires leave of the Court, implying, therefore, that consent order may be the subject of an appeal. In view of my above analysis on the merits this procedural issue will not be determined in this appeal. DISPOSITION: I would dismiss the appeal with costs to the respondent of $1,000 plus disbursements. Bateman, J.A. Concurred in: Freeman, J.A Cromwell, J.A. 1996 No. 1201- 51442 (133910) IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PAUL GREGORY IRVING and -­ DEBORAH LYNN IRVING RESPONDENT COROLLARY RELIEF JUDGMENT Cooper McDonald 1669 Granville Street Halifax, Nova Scotia BM 1X2 File No. MK 16127 1996 No. 1201- 51442 (133910) IN THE SUPREME COURT OF NOVA SCOTIA. BETWEEN: PAUL GREGORY IRVING and -­ DEBORAH LYNN IRVING RESPONDENT DIVORCE JUDGMENT Cooper McDonald 1669 Granville Street Halifax, Nova Scotia. B31 1X2 File No. MK 16127 CA: 136437 NOVA SCOTIA COURT OF APPEAL BETWEEN: DEBORAH LYNN IRVING -and­ PAUL GREGORY IRVING Respondent REASONS FOR JUDGMENT BY: BATEMAN,J.A.","The parties executed a separation agreement that resolved all matters corollary to their divorce and the Matrimonial Property Act. The respondent husband proceeded with an uncontested divorce. The appellant wife did not oppose the proceeding. She subsequently appealed the corollary relief judgment on the grounds that the underlying separation agreement is unconscionable and unduly harsh. She sought to introduce fresh evidence bearing upon the circumstances leading up to the divorce. Dismissing the appeal with costs, that even with the new evidence, the appellant still failed to demonstrate an adequate excuse for not responding to the divorce proceeding. There was no evidence that the appellant did not understand her legal entitlement at the time the agreements were signed, or that she did not appreciate that a divorce proceeding had been commenced.",1997canlii786.txt
206,"C.A. No. 124001 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Pugsley, JJ.A. and CHILDREN'S AID SOCIETY OF HALIFAX and S.F. Respondents Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on March 14, 2008. D. A. Rollie Thompson for the Appellant Deborah Conrad for the Respondent, Children's Aid Society Appeal Heard: April 4, 1996 Judgment Delivered: April 4, 1996 THE COURT: The appeal is dismissed without costs as per oral reasons for judgment of Chipman, J.A.; Roscoe and Pugsley, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: This is an appeal from a decision of a judge of the Family Court declining to rescind an order in 1993 for permanent care and custody of the appellant\'s granddaughter. The basis on which the application was made to the Family Court was that the appellant consented to or agreed with the 1993 order on the faith of the agency's then plan of care which envisaged that adoption plans would be initiated by the appellant. Unfortunately, the adoption plans did not materialize because the agency lost confidence in the appellant's parenting skills. The appellant has drug dependency problem and by June of 1995 was hospitalized. At that time, the appellant's husband reported the problem to the agency it sought its intervention because he alone could not care for the child. The appellant sought rescission of the order in question on the authority of Civil Procedure Rules 15.07 and 15.08: Amendment of judgments and orders 15.07 Clerical mistakes in judgments or orders, or errors arising therein from any accidental mistake or omission, or an amendment to provide for any matter which should have but was not adjudicated upon, may at any time be corrected or granted by the court without appeal. Reversal or variation of order 15.08 Where party is entitled to, (a) maintain proceeding for the reversal or variation of an order upon the ground of matter arising or discovered subsequent to the making of the order; (b) impeach an order on the ground of fraud; (c) suspend the operation of an order; (d) carry an order into operation; (e) any further or other relief than that originally granted; he may apply in the proceeding for the relief claimed. These rules were available for application by the Family Court at the discretion of the judge by virtue of Rule 1.04 of the Family Court Rules. The Family Court judge in rejecting the application said: One major obstacle in assessing the procedure sought by the grandmother is that this court is required under both the Family Maintenance Act (section 18(5) and the Children and Family Services Act (section 2(1)(2) and 3(2)(3)) to issue orders which are judicially determined to be in the best interest of child. Such determination is not corollary or an adjunct to previous proceeding but rather the main and most fundamental issue to be assessed by the court. Not mere rubber stamping of consent agreement, if one is presented to the court as was the case at the October 1993 proceeding. There is no certainty that this court would or should have issued custody order under the Family Maintenance Act even with the presentation of consent order to such effect. Additionally, the grandmother relies upon Wood v. Wood (1982), 56 N.S.R. (2d) 217 (N.S.S.C.) as authority to apply Civil Procedure Rule 15:07 and 15:08. With respect, do not find Wood, supra, to be persuasive. In Wood, supra, the Supreme Court amended decree nisi which inadvertently failed to include an agreement between husband and wife that the wife would vacate once lump sum spousal support payment was made to her. However, note in Wood there was evidence, letter exchanged between the parties, which demonstrated that the parties understood the wife would vacate upon payment. Besides which, in Wood, both parties indicated their common understanding of the necessity to vacate upon payment of support. Although there are other distinguishing facts relative to the Wood case from the present application, it is most noteworthy that the court in Wood was not dealing with the future well being of an innocent young child. It was financial matter between two adults. In my view, this is material distinction. Furthermore, the court has listened to the electronic tape recording of the 1993 proceedings. It is not obvious from the court record that there was any clear intention to grant an order under the Family Maintenance Act. In fact, the Agency specifically sought permanent care and control order to ensure the continuation of services to the grandmother and the child. Other options were available to the Agency but those options were not discussed or placed before the court. In summary, based upon all of the evidence, the court finds there was no oversight regarding the issuance of Family Maintenance Act order to the grandmother. If the court is wrong in that regard, the court cannot find it is in S.'s best interest to now issue retroactive custody order under the Family Maintenance Act. In short, the present application is dismissed. We agree fully with this reasoning. The procedure adopted by the appellant is, as the respondent said, ""an effort to compel a retrospective consideration of the past circumstances of [the child], rather than an assessment of her present circumstances"". The appeal is dismissed without costs. Chipman, J.A. Concurred in: Roscoe, J.A. Pugsley, J.A. 1995 F.H. NO. C91-54 IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA and THE CHILDREN'S AID SOCIETY OF HALIFAX DECISION HEARD BEFORE: THE HONOURABLE CORRINE E. SPARKS JUDGE OF THE FAMILY COURT PLACE: HALIFAX FAMILY COURT DATE: DECEMBER 8, 1995 DECISION: DECEMBER 20, 1995 COUNSEL: DONALD A. (ROLLIE) THOMPSON, COUNSEL FOR M.M. WITH SENIOR LAW STUDENT, LESLIE MACLEOD DEBORAH CONRAD, COUNSEL FOR CAS OF HALIFAX ANGELA ATWOOD-BREWKA, COUNSEL FOR S.F. C.A. No. 124001 NOVA SCOTIA COURT OF APPEAL and CHILDREN'S AID SOCIETY OF HALIFAX and SANDRA FINDLAY Respondents FOR JUDGMENT BY: CHIPMAN, J.A.","This was an appeal from a Family Court decision declining to rescind an order for the permanent care and custody of the appellant's granddaughter. She relied upon Civil Procedure Rules 15.07 and 15.08. Dismissing the appeal, that the appellant's application was an effort to compel a retrospective consideration of past circumstances of the child rather than an assessment of her current circumstances. The proper remedy would be for the applicant to apply for a termination of the order under s. 48 of the Children and Family Services Act.",3_1996canlii8702.txt
207,"M.D. ACTON QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 180 Date: 2013 05 10 Docket: F.L.D. 323 of 2009 Judicial Centre: Regina, Family Law Division BETWEEN: KELLY DAVID MURPHY and LISA EVELYN MURPHY Counsel: Bruce Campbell for the petitioner James Struthers, Q.C. for the respondent JUDGMENT SANDOMIRSKY, J. May 10, 2013 [1] Madison is four years old (d.o.b. September 2, 2008). Her parents, Kelly and Lisa, separated from one another on October 14, 2009. By agreement, her parents have shared parenting on two week cycle. In the first week, Lisa parents Madison in her Moose Jaw home from Sunday at 7:00 p.m. until the following Wednesday at 7:00 p.m. In the second week, Lisa parents Madison from Sunday at 7:00 p.m. until Thursday at 7:00 p.m. Kelly parents Madison at all other times while residing in his parent’s home at Regina. Each parent has an equal amount of parenting time. The shared parenting regime has worked well while Madison was pre-schooler. However, this coming September Madison will be five years old and will commence school on regular basis. The inevitable decision as to where Madison will attend school, that is in Moose Jaw or Regina, is imminent. The parents cannot resolve this decision and defer to the court to determine where Madison’s primary residence shall be and thus in which city she shall attend school. THE EVIDENCE The Petitioner’s Case [2] Kelly is 27 years old. He met Lisa in 2007 and they were married on April 4, 2008. Lisa was pregnant with Madison at that point in time and delivered Madison on September 2, 2008. Madison was and continues to be healthy child. She is described by all witnesses as intelligent, bright, precocious, an extravert and loving child. Only her uncle had any criticism of Madison. He stated that she is prone to having temper tantrums if things are not going her way. By all accounts, the child is normal and has been resilient in coping with her parent’s separation and conflict. [3] Kelly and Lisa were divorced on November 26, 2012. [4] During his youth, Kelly moved about Saskatchewan with his parents, brothers and sister. Mr. Murphy, Sr. is pastor and his postings necessitated those moves. The Murphys resided in Moose Jaw and then Regina. They have resided in Regina since 2009, the year that Kelly and Lisa separated. Each of Kelly and Madison have their own bedrooms in the large Murphy residence situated in east Regina. Kelly describes this house as three stories (including the basement level). There are four bedrooms upstairs with two bathrooms. The main level includes the living and dining rooms, kitchen, bathroom and entries. Two bedrooms and bathroom are situated at the lowest level. [5] Kelly holds business certificate which he obtained from SIAST in 2006. He described himself as self-taught in various computer skills including graphics and design. Kelly graduated from high school in 2002 and briefly studied at bible college for four months. He had managed renovations of an apartment building in Moose Jaw before his father asked him to work part-time for their church. He has done so in variety of capacities including accounting, public relations, editing, programming and graphics. [6] Kelly testified his sister is 26 years old, his oldest brother 21 and his youngest brother 19. His youngest brother still resides within in the Murphy family home but is planning to move out on his own. It is Kelly’s intention to continue his university studies at the University of Regina where he is majoring in English and hopes to obtain Bachelor of Arts degree. Kelly requires two more classes to complete his BA program. He testified that he hopes to transfer to business co-op program in the fall of 2013 and pursue Business Administration degree. To achieve the latter will require minimum of two and one-half more years of study. Kelly told the court that he is taking three classes each semester rather than full class load of five classes. He does this in order to parent Madison and work part-time at the church. He is funding his university studies through student loans. His parents provide home, utilities and sustenance to both Kelly and Madison. [7] Kelly filed T-4 slips for each of the years 2011 and 2012 in which he reported annual income of $11,500.00 and $12,000.00 in those respective years. [8] Though separated for the past three and one-half years, Kelly has remained single and not involved in serious or romantic relationship. His time is divided between his work, studies and parenting Madison. [9] Whilst Kelly relies on his mother to care for Madison when he has class conflict, he was adamant that it was he, and not his parents, who parent Madison when the child is with him. Lisa and her witnesses did not suggest otherwise. [10] Kelly hopes to find good job, perhaps in marketing or finance, at which point in time he stated he would obtain his own condominium. [11] The Murphy’s residence is approximately two blocks from the Jack MacKenzie Public School St. Gabriel Separate School Complex. Kelly presently prefers St. Gabriel as his choice of kindergarten for Madison. At St. Gabriel, there is an afternoon kindergarten program. This would work best for Kelly and his mother in providing care for Madison during the daytime and when she is not in school. [12] Kelly testified that in the past year, he and Lisa do not talk much. This, in part, is due to Kelly’s realization that there was no prospect of reconciling with Lisa. Lisa had two very brief relationships with men after the date of separation from Kelly. She conceived and bore second child on January 26, 2013 as consequence of one of those relationships. The father of that child has nothing to do with Lisa, nor does he pay child support. He has seen the baby perhaps six times in the past three months. While Lisa testified that Nick, the father of her second child, would be great father and would be resource to her in raising the baby, the father’s actions have been to the contrary. In listening to Lisa testify and discuss her expectations of Nick, the court finds Lisa to be naive and lacking realism. Despite these ongoing differences, Kelly testified that he and Lisa can communicate civilly with one another on parenting issues which affect Madison. [13] Kelly has seen counsellor since separating from Lisa. He continues to see his counsellor irregularly and on an as needed basis. Kelly described himself as having “come long way” since the collapse of his marriage. Kelly’s parents shared this opinion in their respective testimony. Indeed, under cross-examination, Kelly opined: have improved and she has improved. We are better parents and Madison is better off without us being together. [14] typical month of work at the church consumes 64 hours of Kelly’s time. This is spent in two day blocks of eight hours per day. Kelly requires his parents babysit Madison only “a few hours of the typical week”. His sister resides in Regina and Kelly says that she is backup resource for him as well. [15] Kelly described Madison’s excitement over her mother’s recent pregnancy and the birth of her half-brother. He says that Madison’s level of excitement has diminished over the past months, though Madison is involved with her little brother. [16] Kelly resisted the suggestion under cross-examination that his parents resent Lisa. Lisa is member of their church in Moose Jaw. Lisa, Kelly and the Murphys are devoted practicing Christians. [17] It is important to note that each of Kelly and Lisa see the other as competent and loving parents of Madison. Kelly testified that Lisa is: ...incredibly important in Madison’s life and Madison loves her mother. We each have different things to offer Madison. But Madison needs one place to go to school. Madison needs stability one school one place that is her own. Madison needs both of us in her life and she needs both sets of grandparents whole extended family. Lisa shares similar sentiments in her testimony. [18] Kelly’s mother described her role at present to include picking Madison up in Moose Jaw on alternate Wednesdays and Thursdays and caring for Madison for about two hours on Friday afternoon when Kelly is in class. Mrs. Murphy, Sr. refuted any suggestion that she is the actual hands on care giver as opposed to Kelly. She testified that discipline of Madison, dressing the child, comforting, entertaining and calling the shots are exclusively within Kelly’s domain not hers. [19] Mrs. Murphy, Sr. described Kelly as a: ...careful, thoughtful and analytical parent. He is strong, confident, gentle, but firm, with Madison. Madison feels secure with her father. [20] Mrs. Murphy, Sr. described Madison to the court as being “brilliant, like her dad; imaginative and creative; sensitive and energetic”. Mrs. Murphy, Sr. said the family home backs onto park and that the school is within two blocks of their home. [21] Mrs. Murphy, Sr. explained that she had read the custody access assessment prepared in this case by Alan Jensen, M.S.W., R.S.W. She states that Mr. Jensen misinterpreted her comments that she harbours negative view of Lisa. Mrs. Murphy, Sr. says that the correct fact is that any negativity she harbours is with certain of Lisa’s behaviour, but not towards Lisa herself. The court finds this dichotomy somewhat confusing, preferring that one’s behaviour and self are inseparable. Evidence was contained in the custody access assessment that Kelly and his parents (or mother) resorted to obtaining mental health warrant at the time of separation under which warrant Lisa was arrested and detained briefly at the psychiatry wing of Moose Jaw Union Hospital. In this manner, Kelly and his mother obtained de facto possession of Madison, despite Lisa’s parents offering to keep the child. For the next six weeks, Lisa had no access to Madison until court order was granted in late November 2009 compelling shared parenting. [22] The Provincial Court judge who granted the mental health warrant was quoted by Mrs. Murphy, Sr. as advising that the attending psychiatrist who would examine Lisa would likely release her. If this quote is accurate, the warrant should not have issued. The Provincial Court should only issue such warrants if there is sufficient evidence that an individual is refusing to voluntarily seek medical attention and that individual poses reasonable apprehension of risk of harm to oneself or others. find the action of the Murphys was high-handed and suggests some considerable negativity existed at the date of separation towards Lisa. [23] Finally, and under further cross-examination, Mrs. Murphy, Sr. testified that Kelly is “artistic, voracious reader, heady guy”. She opines her son was unhappy for long time after separating but is rebounding and “more at peace”. [24] Mr. Murphy Sr. echoed similar evidence to that of his wife. [25] Deborah Beaudry, child’s pastor at the church, also testified on Kelly’s behalf. She described Kelly as being intelligent, articulate, receptive, fun-loving and affectionate. The Respondent’s Case [26] Lisa is presently 25 years old. She describes herself as “stay-at-home mom” to her two children, Madison and baby Colin, who was born January 26, 2013. [27] Lisa moved to new residence at the beginning of this year. It is rental eight-plex, two storey unit with basement. On the upper level are three bedrooms, one for Lisa and each child. There is bathroom on that level as well. The main floor contains the kitchen, dining and living areas. [28] Lisa testified that she graduated from grade 12 and then took correspondence course in interior design. She has not utilized that certificate in the field of interior design. Her employment has been sporadic. Her employers have included Wal-Mart, Superstore, Mac’s convenience store, Safeway and Providence Place senior’s residence. She worked at the latter part-time as housekeeper for approximately two years. Moose Jaw has been Lisa’s place of residence for the last four or five years. [29] Lisa testified that she has her mother and step-dad as well as their two girls (her sisters) residing in Moose Jaw. Her sisters are ages 11 and 12. Her father and step-mother reside in Brandon, Manitoba and also have two girls (half-sisters). Lisa advised the court that her own parents separated when she was only four or five years old. She further testified that she sees her mother once or twice week and that her mother lives but four or five minute drive from Lisa’s home. Lisa stated that she and her own father “...aren’t really that close. My dad is busy and not really that interested”. [30] Lisa describes Madison as being happy and healthy baby who developed quickly. She testified that she attended to Madison completing her vaccination program. Madison has her own family physician in Moose Jaw. She described Madison to the court as child weighing 37 pounds, standing waist-high to her mother, being outgoing, compassionate and loving. [31] Lisa has enrolled Madison in pre-school program at St. Agnes School in Moose Jaw. The school is situated within block of her residence. Madison attends the afternoon program as she has for the past two years. Lisa opined that Madison gets along well with her teacher and schoolmates. There are also neighbourhood children who are potential playmates for Madison when the weather warms up. [32] Lisa testified that Madison does not engage in extracurricular activities. She stated that is primarily because of the split week parenting regime which conflicts with many of the scheduled activity programs. [33] Lisa opined that Madison is very close to her baby brother. This relationship has been of short duration and undoubtedly Madison is fascinated with her baby half-brother. In this case, bonding between siblings and co-dependency are not of significant consideration given the ages of the children and the limited experience between them to date. [34] Lisa, like Kelly, sought and accepted personal counselling following their separation. Lisa looks to her counsellor on an as needed basis. Lisa feels she has made changes and advised the court that she feels she has more confidence and has better self-image. Lisa attends women’s support group within her church and feels that that experience has assisted her with her parenting skills. [35] Lisa described her health as good, though she takes supplements and has had weight deficiency in the past. [36] When asked about Mr. Jensen’s statement in his custody access assessment to the effect that, if the parties resided closer to one another, shared parenting would be realistic option, Lisa stated that she agreed with that proposition. However, Lisa testified that her re-locating to Regina is not feasible for economic reasons and because her support group and network are in Moose Jaw. [37] Lisa offered the advice that if the court makes her the primary parent, she would agree that Kelly should have Madison for three weekends of each calendar month and half of all school holidays. [38] Under cross-examination, Lisa advised that she will look for employment as soon as Colin is weaned perhaps couple of months from the present. Then Lisa stated that she would take upgrading or some skill or job training. Lisa then shifted gears once again stating to the court that she wants steady employment that will remove her from social assistance and make her financially independent. Finally, Lisa wavered in her testimony stating that right now, she needs to be at home to care for Colin, her baby, and for Madison. She stated that she does not want daycare workers looking after her kids and that daycare is expensive. [39] From observing Lisa’s demeanour in the witness stand and literally observing Lisa think and speculate out loud, it became apparent to the court that Lisa is uncertain of her future. She had not considered how daycare and its related cost might factor into any potential employment decisions. She was not able to describe any contingency plan for occasions when child might be ill or in need of care while she would be at work. Her comment that Colin’s father would be resource defies his real conduct to date, in which he has, for all intents and purposes, abrogated all responsibility for his new son. As stated earlier, Lisa projects as naive and somewhat immature and flighty in her thought patterns and perception of the real world in which she presently finds herself. Having said that, the court finds that Lisa is nonetheless competent and loving mother. [40] Lisa lives on social assistance. She testified that her rent and utilities are paid for directly by the Ministry of Social Services. She is unaware of the actual costs. Over and above those direct payments, Lisa testified that social services pays her $375.00 each month. She stated that in addition, she receives $796.00 from the Government of Canada in the form of the Canada Tax Benefit and GST. Lisa was not able to describe budget or financial plan to the court in contemplation of her pursuit of employment. She merely explained her understandable desire to earn sufficient money to become self-sufficient and off of social assistance. Lisa did advise the court that she was not attempting to obtain child support for either Colin or Madison. [41] Lisa filed her income tax return for 2012. Her total income was reported to be $12,894.77, made up of $1,432.72 of employment income, $1,200.00 UCCB and $10,262.05 social assistance payments. [42] Lisa also filed statement of needs and deductions prepared by the Ministry of Social Services for March/13. Needs were listed as: Basic allowance $225.00 Utilities 45.00 Shelter $542.00 Total Needs $843.00 Income was listed as: Wages $117.61 Wage exemption $117.61 Adjusted Wages $0 Total Income: $0 [43] In the result, the Ministry paid on Lisa’s behalf, and to her directly, the sum of $843.00 each month. Lisa stated that she has the potential to earn between $16.30 per hour to $17.40 per hour as housekeeper at Providence Place if she should obtain re-employment there. [44] Lisa was hesitant to commit to driving Madison between Regina and Moose Jaw given the condition of her vehicle and her concern about the vehicle’s performance in unfavourable weather. [45] Lisa agreed that Kelly is very good father, just as Kelly acknowledged Lisa to be very good mother. [46] friend from Lisa’s church and support group gave the court brief explanation of how the support group functions and engages Lisa within the group. The Custody Access Assessment [47] The court ordered custody/access report at the request of the parties. Such report was prepared by Alan Jensen, M.S.W., R.S.W. The report was filed July 25, 2012. The report is extensive and canvassed input from Kelly, Lisa, Mr. and Mrs. Murphy, Sr., counsellors to both Kelly and Lisa and number of individuals selected by Kelly and Lisa as their respective personal references. The reported evidence parallels the testimony given at trial in most respects. [48] The parental attributes of each of Lisa and Kelly are described by Mr. Jensen as follows: Assets of Lisa as Parent When asked what she offers Madison as parent Lisa wrote: “I have love, encouragement, knowledge on parenting (from parenting classes), good home for her, family to bring her to visit, understanding, she knows will listen to her and she can talk to me.” Lisa acknowledges that Kelly offers “love” to Madison. Lisa presents as caring, loving and conscientious parent. She has encouraged the socialization of Madison by involving her in pre-school and daycare. Lisa has consistently reached out for appropriate community support services. Liabilities of Lisa as Parent: When asked what her weaknesses are as parent Lisa responded: “Sometimes might be emotional if don’t get enough sleep. If too much is happening at once can feel frustrated.” If she is feeling this way Lisa will tell Madison to “please be quiet”. It appears that Lisa has encountered difficulties sustaining stable adult relationships and this may have consequences for Madison. Her relationship with Kelly was marked by domestic disharmony. Relatively soon after her short-term relationship with Matt, she commenced relationship with Nick, who is the father of her expectant child. It appears that this relationship may be “uncertain”, if not unstable. Assets of Kelly as Parent: When asked what he offers Madison as parent Kelly wrote: “A physically and emotionally safe and stable environment. Time, spent with myself, with other children and with family, on both my side and Lisa’s side of the family (I arrange visits with Lisa’s father’s family). plan my schedule around my time with Madison, to maximize the attention can give her. When cannot be around, arrange for her to spend time with my family.” Kelly presents as loving, devoted and conscientious parent. He recognizes that Madison is bright little girl and he has explored various educational options should she primarily reside with him. Kelly and Madison enjoy considerable support from extended family and their church community. Liabilities of Kelly as Parent: When asked what his weaknesses are as parent Kelly replied: “I focus on the moment and little on the future ... I’m not girl, therefore can’t multitask, therefore focus on Madison first and leave the rest.” It appears that Kelly’s current residential arrangement has advantages and disadvantages in relation to Madison’s best interest. On one hand she and her father enjoy considerable support and stability from Terry and Terri Murphy. On the other hand, the grandparent’s negative view towards Lisa might place the effective co-parenting of Madison at risk, if Kelly fails to assert himself. [49] At p. 13, Mr. Jensen expresses his views of Madison: It is this writer’s view that Madison, who is not yet four years old has endured great deal of conflict, instability and change already in her young life. What she does not need at this pivotal point in her development is to be exposed to more change and instability in adult relationships while in her mother’s care. That being said, Lisa deserves great deal of credit for addressing Madison’s educational and socialization needs and enlisting considerable support from her community. [50] Mr. Jensen discusses Madison’s exposure to conflict at p. 14 of his report and states: Exposure to Conflict: As previously stated, it appears that Madison’s life has stabilized considerably since the days when she was exposed to the domestic disharmony perpetrated by her parents. would concur that during those tumultuous days in late 2009 both parents displayed behaviors that would suggest they were “very immature”. At present the conflict that remains, appears to take the form of comments about the other parent that Madison hears and “feels”, as both parents and their supporters continue to push their agendas and voice their grievances. For many young children like Madison, their exposure to the tensions between their parents is particularly prevalent around the times of exchanges. Therefore it should come as no surprise when both parents report that Madison continues to encounter difficulties with transitions. Both sides need to make concerted effort not to portray the other parent to Madison in negative light. If this tendency goes unchecked into the future, this exposure to conflict will inevitably eat away at Madison’s sense of self-esteem and security. It should be remembered that Kelly and Lisa are Madison’s primary role models. [51] Mr. Jensen’s conclusion is reported commencing at p. 14 as follows: Conclusion: Through the course of this assessment this writer has come to view Kelly and Lisa as two young parents who overall, have grown in maturity since the time of the separation and have evolved into loving, caring and competent parents of Madison. Each parent has and will continue to provide something unique and beneficial, which will contribute to Madison’s ongoing care and upbringing. The court has asked the assessor: “with whom should the child primarily reside with when she attends school?” It is this writer’s conclusion that in terms of providing for the fundamental need of security and an appropriate plan for Madison’s future, that parent should be Kelly. It should be stressed that this decision was almost “too close to call”, given Lisa’s considerable strengths. In my opinion if Lisa and Kelly were to reside in the same community, shared parenting arrangement should be strongly considered. In the meantime with all things considered, Madison needs stable home to launch the next significant phase of her development, as her social and educational world expands into the life as new student. As long as Kelly and his parents commit to supporting Madison’s relationship with her mother, then this child stands to benefit from what both parents have to offer. [52] Mr. Jensen closes his assessment with eight recommendations. It is the court’s function to draw its own conclusions based upon the totality of evidence presented at the trial. The views of any assessor are independent conclusions of the assessor after gathering his or her evidence through the inquisitorial process of gathering evidence wherever the assessor deems appropriate. On the other hand, the court is given evidence under the accusatorial process of presenting evidence, that being the evidence which the parties to the dispute choose to present at trial. Unlike the inquisitorial process, judge may not embark upon seeking out evidence of his or her own accord or choosing. Hence, while appreciate the recommendations of Mr. Jensen, the court moves independently as trier of the fact, selecting the evidence the court considers factual and relevant to the issue or issues to be determined. Once having found those relevant facts, the court applies the same to the law. THE APPLICABLE LAW [53] This action comes before the court under the aegis of the Divorce Act, R.S.S. 1985, c. (2nd Supp.), being federal law, and, under The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, which is provincial statute. Each statute recites the relevant tests and factors which trial judge must consider in custody dispute such as this. The Children’s Law Act, 1997 In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person's status as father or mother. The Divorce Act: (6) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (7) Without limiting the generality of subsection (6), the court may include in an order under this section term requiring any person who has custody of child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [54] The overriding principle of law, embraced by each of the Divorce Act and The Children’s Law Act, 1997, as well as being the overarching principle of law governing child custody/access, is the best interests of the child. [55] Let me briefly mention some case law which expands upon the statutory guidance set out above. In the recent decision Seymour v. Seymour, 2012 SKQB 161 (CanLII), 396 Sask. R. 143, Justice Wilson makes the point as follows: 60 In addition to the statutory guidance as set out above, the principles of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 141 Sask.R. 241 apply. As set out by Wright J., in Norrish v. Norrish 2005 SKQB 396 (CanLII), 20 R.F.L. (6th) 366, the Gordon principles apply even though this is an initial application for parenting order as opposed to variation application. Justice Wright states, as para. 47, as follows: 47 The leading authority in this area remains Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27. Notwithstanding that Gordon involved an application to vary an existing custody order, many of the guiding principles set out in that decision are equally applicable in applications of first instance, as is the case here. Those principles were summarized by Austin J.A. in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 31 R.F.L. (5th) 242 (Ont. C.A.) at para. 18: The Gordon proceeding dealt with mobility within the context of an application to vary an order. In the instant case, the issue of mobility was dealt with at the original hearing following the two interlocutory orders made on consent. Despite these differences, the guiding principles set out in Gordon, which remain applicable in the case before us, are: 1. The judge must embark upon fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 2. The inquiry does not begin with legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect and the most serious consideration. 3. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 4. The focus is on the best interests of the child, not the interest and rights of the parents. 5. More particularly, the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) the disruption to the child of change in custody; and (g) the disruption to the child consequent on removal from family, schools and the community he has come to know. [56] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 141 Sask.R. 241, also stands for the proposition that custody application, such as is before the court today, involves child-centered analysis. It is the perspective of the child which the court must take. The child’s best interests are paramount to the needs and interests of the parents. In Gordon v. Goertz, Madam Justice McLachlin, as she then was, states at para. 28 the following: 28 The 1985 Divorce Act now instructs courts that the interests of the parents are no longer relevant in custody determinations. As noted previously, the child's best interests are not merely “paramount”, they are the only consideration. The revised Act also introduced statutory recognition of the principle that children generally benefit from contact with both parents.... [57] Addressing s. of The Children’s Law Act, 1997 and applying the best interests principle, the court must take into account the conditions expressed in s. 8(a)(i) through (vii). [58] The quality of Madison’s relationship with each of Kelly and Lisa and their respective extended families is the first consideration. There is little to choose between the quality of the relationship Madison has with each of her mother and father. While the parents have different personalities, it was common ground that Madison loves both her parents and they her. No evidence was presented to distinguish this parent child relationship between mother and father as one being more favourable than the other. Madison appears to have a close affinity to her paternal grandparents which the court attributes to largely one of opportunity. The maternal grandmother offered to care for Madison when Lisa was apprehended under the mental health warrant, but the paternal grandparents and Kelly refused and asserted their right of possession arbitrarily. However, in the past three and one-half years, the Murphy family have established a more constant presence in Madison’s life and it is within the Murphy residence where one might properly presume Madison feels more familiar and comfortable. Continuity and stability are relevant factors in this regard. [59] The personality, character and emotional needs of Madison have been described in this judgment. Madison is healthy child physically and emotionally. She has displayed resilience. Kelly and Lisa will have significant inputs in sharing the responsibility of parenting Madison pursuant to this judgment and, in doing so, should have every opportunity to address Madison’s emotional needs. [60] The physical and economic needs of Madison can best be met within the Murphy residence and under Kelly’s primary care. This is, in large measure, due to Kelly’s parents’ benevolence. The reality is that these factors do add to Madison’s best interests. court will not simply award custody on the basis of affordability and no one reading this judgment should consider the rationale herein so crassly. Wealth is not the deciding factor in this judgment. However, The Children’s Law Act, 1997, at s. 8(a)(iii) requires that the court shall take into account the physical and economic needs of Madison. They are best met in Kelly’s primary care. Lisa is struggling financially in her present circumstances. As to the psychological and social needs of Madison, it would be matter of speculation as no evidence expressly addressed those two factors at trial. The court is satisfied that both Kelly and Lisa are competent and capable of addressing these latter two needs. But once again, on balancing the weight of evidence, the preference weighs in Kelly’s favour. [61] As to the capacity of Kelly and Lisa to act as Madison’s legal custodian, the evidence is balanced. [62] The home environment proposed by Kelly outweighs that of Lisa. Again, this is not criticism of Lisa in any way. The reality of each home environment must be compared. The environment is combination of both the physical house, neighbourhood and school. Most important are the people in those settings who impact upon Madison’s life. In totality, while Kelly and Lisa are even on this count, the other family and social network again auger in Kelly’s favour. [63] When considering Kelly and Lisa’s respective future plans for Madison, one must, of necessity, consider the evidence of the future plans of the individual parent. Parent and child’s futures are inextricably entwined. Kelly presents with distinct plan for his future including parenting of Madison. Lisa is vacillating over her desire to stay at home and parent, particularly having expressed her dislike of daycare tending to her children. On the other hand, she wavered and recognized her need to work and her desire to gain financial independence. Kelly is the benefactor of his family’s generosity. Lisa has been left to go it alone that is reality. Her plans are uncertain, though her intentions are good. At this juncture in Kelly, Lisa and Madison’s lives, Madison will experience greater stability and continuity in Kelly’s primary care. [64] Madison is too young to express her wishes. [65] The Divorce Act does not mandate the court to examine the same factors which are set out at s. of The Children’s Law Act, 1997. Section 16(8) of the Divorce Act mandates that the court consider only the best interests of Madison as determined by reference to the condition, means, needs and other circumstances of Madison. The court has addressed each of those four parameters. [66] At s. 16(7) of the Divorce Act, it is prescribed that the court may include in any order under s. 16 requirement that the custodial parent who intends to change place of residence of the child notify the other parent at least 30 days before the change or within such other period before the change as the court may specify. Such notice must contain the time at which the change will occur and where the new residence of the child will be located. In my opinion, 30 days is not sufficient for Lisa or Kelly to assess the impact of change of residence, to confer with one another and, failing consensus, for the aggrieved parent to take legal action. Given the shared parenting regime, the court orders herein each of Kelly and Lisa shall notify the other of any impending change of residence no less than 45 days in advance of such change with full particulars as set out earlier. ANALYSIS AND CONCLUSION [67] Madison has arrived at new phase in her young life. She must begin school and be given the opportunity to engage in social, athletic and artistic facets of life which appeal to the child and nurture her wholesome development. It is in this next phase of child’s life that the child begins his or her progression to independence. It is in the youthful stage of life that child proceeds to define and grow his or her identity. Generally speaking, this progression is the right of the child. The parents bear the obligation and responsibility to accommodate and facilitate the child’s rights. This is not always an easy concept for the parents to understand and embrace. Sometimes parent falls into psychological trap of attempting to actualize the parent’s goals or aspirations through one’s child. We see this too often in minor sports. The reality is that in order for child’s best interests to be achieved, parents must allow the child to develop at the child’s own pace and in accordance with the child’s emerging skills, desires and aptitude. These principles apply to Madison. She requires the stability of primary residence, neighbourhood, school and social network. Her environment must be free of parental conflict and paternal or maternal families pushing their respective agendas onto Madison. Whichever parent is delegated by the court as the primary parent, in this instance being the parent to provide the primary residence and choice of school, both parents must accept and embrace the decision of the court, for they deferred this important decision to the court, being unable to agree between themselves. By accepting and embracing this decision, the parents must demonstrate their unconditional love for Madison and put an end to open conflict, denigration and lack of cooperation. Madison must see her parents as appropriate role models which includes consistent demonstration of civility, respect and occasional deference to the other parent. [68] The court finds that Madison’s best interests will best be served at this juncture by her residing with Kelly. Kelly’s life and living circumstances, while by no means firmly established, are more stable, certain and predictable than Lisa’s living circumstances. This became clearly evident to the court as each parent described their immediate goals, strategy for achieving those goals and the present status of their respective paths to achieving those goals. [69] Kelly has the good fortune of his parents providing stable home for Madison and by their agreeing to provide the necessary essentials Madison requires. On the other hand, Lisa displayed uncertainty as to how she will achieve her independence. found Lisa somewhat more immature and naive about the realties and options available to her at this stage in her life. She does not have the same support network as Kelly not fault of her making, simply reality. Neither of her mother or father testified on Lisa’s behalf. Nor could Lisa convince the court that her extended family will provide the safety net and support which Kelly’s family have offered. The court does not intend the Murphy family to take this judgment as an overwhelming endorsement. have expressed the court’s disappointment at the high-handedness in misusing the facility of mental health warrant. Mr. Jensen also came to the same independent concern where, at p. 14 of the report, he stated: ... At present the conflict that remains, appears to take the form of comments about the other parent that Madison hears and “feels”, as both parents and their supporters continue to push their agendas and voice their grievances. [70] However, with the benefit of hindsight and an open mind, it is facet of the human condition that we can grow and learn from our past experiences and mistakes. The court finds both extended families have good intentions and will likely do their respective parts to enable Madison’s best interests to be achieved. [71] Lisa should not take this decision as form of condemnation. The reality is that she is young woman with yet another infant to raise on her own. She has not received the benevolence of others to assist her in raising Madison nor her newborn. This saddens the court and appreciate the enormity of her struggles. To dedicate Lisa as the primary care giver of Madison would add to her already considerable burden, which would neither be fair to Lisa nor the children. In time, it is hoped that Lisa’s initial disappointment with the judgment will be replaced by understanding and agreeing with the court’s rationale. THE MAXIMUM CONTACT PRINCIPLE [72] Earlier in this judgment is recitation of factors found in the Divorce Act and The Children’s Law Act, 1997. One of those factors proscribes the principle that child should have as much contact with each of his or her separated parents as the facts and circumstances might reasonably permit. Paired with this principle is the corollary that the parent given primary care of child should facilitate the access or shared parenting of the child by the other parent. The latter corollary is euphemistically called “the friendly parent rule”. Once again, these legal principles of maximum contact and facilitation can be challenging to the parents, but must, for the child’s best interests and well-being, be adhered to and sedulously fostered. Kelly and Lisa, together with their supporters, cannot quibble over transporting Madison to and from Regina and Moose Jaw. It is minor inconvenience in the scheme of things in this case. Kelly and his parents are in much better position to facilitate Madison’s transportation than is Lisa. Kelly shall therefore bear the responsibility for transporting Madison. [73] From a legal position, both Kelly and Lisa shall continue in their capacity as joint custodians of Madison. Kelly shall be the primary care giver and provide the primary residence for Madison. Maximum contact, as have mentioned, is presumptively in the best interests of Madison. In recent decision, Schick v. Woodrow, 2012 SKCA (CanLII), 385 Sask. R. 153, the Court states at para. 25 as follows: 25 ... In my view, even where one parent has been designated the parent of primary residence, it is presumptively in the best interests of child to have as much contact with each parent as is reasonably possible having regard to the given circumstances and for each parent to play as active role in the life of the child as is practical. There is significant risk that parent who is prevented from playing such role and becomes passive bystander in the child's life will eventually drift away from on‑going involvement in the child's life. These considerations favour an order for joint custody in the absence of some reason relevant to the best interest of the child to the contrary. ... THE SHARED PARENTING REGIMEN [74] While mid-week visit (Wednesday evening) was once practice when Madison was younger, it is unrealistic to consider that now. First, it is impractical to drive that distance in order to accommodate the visit of an hour or two duration. It is especially so given mid-week visit would occur on school night and might limit extracurricular activity options available to Madison. Fortunately, we now live in an age of communication technology which is both sophisticated and affordable. The court asked Lisa about her having computer. She has none. However, during summation and argument, Kelly said it was within his means to procure computer for Lisa’s home. In this manner, Kelly and Lisa can complement their own communications by email. More important, webcams and skype are modes of communication by which Madison and Lisa can communicate regularly during the course of a week. In this manner, they see each other’s images and hear one another’s voices. It is the court’s opinion that Kelly accommodate Lisa with such means to see and speak to Madison, and vice versa, during the school week. It may be most appropriate to enable such contact prior to Madison’s bedtime. In this manner, each parent experiences putting Madison to bed, albeit not with equal intimacy. The importance and facility of the computer will ameliorate the mid-week need of travel. [75] The court orders that Lisa shall parent Madison three consecutive weekends and Kelly on the fourth weekend. Lisa’s first and third such weekends will commence on Friday evening at 5:00 p.m. (prior to Madison’s supper) and conclude on the following Sunday evening at 6:30 p.m. (after Madison’s supper). The second of such weekends will commence on Thursday at 5:00 p.m. and conclude the following Sunday at 6:30 p.m. Should either of these three consecutive weekends be contiguous with a statutory holiday, Lisa’s weekend shall be expanded accordingly. Or, if a school holiday occurs contiguous with Lisa’s weekend, Madison shall be with her for those additional days. The start and stop times will remain constant. This results in Madison missing one day of school in every four weeks to permit the longer weekend with her mother. Madison has been described as bright and intelligent child and therefore at kindergarten or grade one, missing day of school once in every four weeks should not compromise Madison’s academic standing. By the time Madison begins grade two, missing that additional day once in every four weeks might affect her schooling. The court therefore leaves Kelly and Lisa to determine the wisdom of Madison skipping school at that future point in time. [76] At Christmas and Easter, elementary school children in the City of Regina customarily have 14 and 10 days of school recess respectively. Kelly and Lisa shall each parent Madison for one-half of the school recesses. The court leaves the division of such Christmas and Easter breaks to be discussed and agreed upon by Lisa and Kelly. However, if the parents fail to agree on how these breaks, or any one of them, should be divided, then Lisa shall have Madison with her for the first half of the Christmas and Easter school recess and Kelly shall have the latter half of the said Christmas and Easter school recess in all odd numbered years. In all even numbered years, Kelly shall have the first half of the said school recesses and Lisa the latter half. Exchange times shall be 5:30 p.m. for commencing and 6:30 p.m. for concluding, unless Lisa and Kelly agree otherwise. [77] Kelly and Lisa shall make allowances for father’s day and mother’s day in each year such that Madison spends the respective day with her father or mother. [78] The summer school recess should be approached with Madison spending equal amounts of time with her mother and father. At age four, the longer duration away from either parent is generally more difficult than when the child is older. One week alternating intervals is suggested with each parent. However, life is never that simple. While the foregoing summer allocation is minimal and mandatory, this may not be practical or affordable if Lisa is employed and has limited annual holidays. Perhaps the same is true for Kelly. Here, the court defers to Kelly and Lisa to meet and discuss if an alternative sharing of parenting during the summer school recess better meets their collective and mutual needs. Parents are always at liberty to depart from court ordered regimen by mutual agreement. court order is fallback only when the parents cannot agree. However, should Kelly and Lisa not be able to agree on the specific division of the summer school recess, the court orders that Madison shall spend alternating weeks with each parent. [79] The court calculates the division of parenting time in year under the foregoing regime has the effect of placing Madison with Lisa for 30% of the year and 70% of the time with Kelly: days in 28 10 months 70 days with Lisa 31 days in 62 (July and August)= 31 days with Lisa days in 24 (Christmas and Easter)= 12 days with Lisa TOTAL: 113 of 365 days/year [80] The court has not been asked to address child support for Madison. Lisa has no financial resources to pay child support in any event given her present unemployment and lack of family support. [81] Finally, should Madison have a spring break from school of greater than three clear days, Kelly and Lisa shall provide each has at least one-half of those days to parent Madison. EXTRACURRICULAR ACTIVITIES [82] The choice of extracurricular lessons or activities for Madison must accord with the child’s best interests. It requires the collaboration of Kelly and Lisa in meeting with Madison, eliciting the child’s feelings and desires on the matter, and then having frank and unbiased discussion between Kelly and Lisa. The court strongly urges (short of an order) that Kelly and Lisa meet with Madison before the fall and winter semesters, as well as prior to summer registration deadlines. In this manner, they should choose an extracurricular activity or activities which best suit Madison’s needs and interests while also being reasonably affordable and causing the least, or no, disruption to the parenting regime mandated by this judgment. [83] The very nature of this trial is neither litigant is more successful than the other. The parents deferred to the court to make the difficult decision for them as to where Madison shall attend school and have her primary residence. As consequence, each party shall bear their own costs. NOTE TO TRIAL COUNSEL [84] The court expresses its thanks to Mr. Struthers, Q.C. and Mr. Campbell for the professional and collegial manner in which the trial was presented to the court. J. N. S. SANDOMIRSKY","The parties had a shared parenting arrangement since separation where each party parented their four-year-old child for equal times in a two-week cycle, the petitioner parenting in her home in Moose Jaw and the respondent parenting in his parent's home in Regina. The issue before the Court was to determine where the child should primarily reside and attend school. Each party saw the other as a competent and loving parent. The petitioner had another child, a half-brother to the parties' child, who was an infant at the time of the application. The petitioner was a stay-at-home mom on social assistance and the respondent was a student who worked part-time and lived with his parents. The respondent's parents were willing to assist the respondent financially and in the care of the child. The Court ordered custody/access report concluded that the child should primarily reside with the respondent, though the author noted that the decision was almost too close to make. HELD: The Court held that the best interests of the child would be best served by her primarily residing with the respondent and the parties having joint custody of the child. The Court first considered the quality of the child's relationship with each party and their families and concluded there was little difference between the parties but the child had a closer relationship with the respondent's extended family because she resided with them when she was with the respondent. The Court also determined that the child's economic needs could best be met residing with the respondent and his parents. The home environment of the respondent was found to outweigh that of the petitioner's. Further, the Court held that the child would have greater stability and continuity with the respondent, who has a concrete future plan. The petitioner's future plans were wavering and uncertain. The respondent was ordered to bear the responsibility for transporting the child to and from Moose Jaw and Regina. The respondent was also required to accommodate the petitioner and child by supporting Internet communications between them during the week, especially at bedtime. The petitioner was granted parenting time three consecutive weekends and the respondent on the fourth weekend. The second of the petitioner's weekends was extended to include another day as were any weekends with school or statutory holidays. The decision requires the child to miss one day of school every four weeks and the Court therefore left it to the parties to determine whether this can continue once the child begins grade two. The parties were ordered to each parent the child for half of Easter and Christmas breaks and they were to accommodate each other for Mother's and Father's Day each year. Further, the Court ordered that the child spend half of each summer holiday with each parent, suggesting that alternating weeks may be the best for the child, unless otherwise agreed to by the parties. Lastly, if the child has a school break longer than three clear days, the petitioner is to parent at least one-half of those days. The Court also urged the parties to collaborate and discuss the extra-curricular activities best suited for the child taking into account their affordability and disruption to the parenting arrangement.",c_2013skqb180.txt
208,"Q.B.G. A.D. 1996 No. 1334 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROBERT PETERS and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT Robert Peters appeared on his own behalf Jennifer A. Bailey for the respondent JUDGMENT MAURICE J. January 21, 1999 [1] On February 26,1995, at Saskatoon, Saskatchewan, the applicant Peters, age 34, sustained injury to his lower back in an automobile accident. The back injury resolved within ten days to two weeks. [2] In late June of 1995, Peters began to experience pain in his back. His condition slowly worsened until he was hospitalized in late October of 1995 and diagnosed with large central and right sided disc herniation at the L5/S1 level. He made an application under Part VIII of The Automobile Accident Insurance Act, R.S.S. 1978, c. A- 35 (the “Act”), for income replacement benefits contending that the accident of February 26,1995 caused the disc herniation. The respondent, Saskatchewan Government Insurance, denied his claim for benefits. It took the position the disc herniation was not caused by the accident. Pursuant to s. 194(1) of the Act, Peters applied to the respondent for review of its decision. The respondent confirmed its decision and Peters appealed to this Court pursuant to s. 197. [3] The issue before me is whether Peters’ disc herniation was caused by the accident of February 26, 1995. [4] Peters applied for income replacement benefits as a non-earner pursuant to s. 117 (1) of the Act: Subject to subsection (5), if on the 181st and subsequent days following an accident non-earner is unable to hold the employment he or she could have held at the time of the accident, the non-earner is entitled to an income replacement benefit calculated pursuant to this section. [5] There is no doubt that for period of time after the disc herniation, Peters was unable to hold the employment he could have held at the time of the accident and would be entitled to an income replacement benefit if the herniation was caused by the accident. [6] Accident is defined in s.100(1)(a) as: “accident” means any event in which bodily injury is caused by an automobile. [7] The onus is on Peters to establish his claim to the benefits on balance of probabilities: Collis v. Saskatchewan Government Insurance (1998), 1998 CanLII 13463 (SK QB), 165 Sask. R. 108 (Q.B.). In Athley v. Leonati (1996), 1996 CanLII 183 (SCC), 140 D.L.R. (4th) 235 at 238 (S.C.C.), Major J. said: Causation is established where the plaintiff proves to the civil standard on balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] S.C.R. 311, 72 D.L.R.(4th) 289 (S.C.C.); McGhee v. National Coal Board, [1972] All E.R. 1008 (H.L.). [8] Peters relies on the evidence of two family physicians in support of his contention. Dr. Dindo was his family physician prior to the accident. In his medical report Dr. Dindo noted that, up to October 1994, Peters was not diagnosed as suffering from herniated disc or from any injury or dysfunction of the discs. He was generally in good health and had no evidence of any back problems. Dr. Rai, Peters’ family physician after the accident, in his medical report, stated: ... feel that though the pain and discomfort from June onwards was caused from disc problem which initially caused nerve root irritation and later nerve root compression causing acute pain, these discomforts seem to have some relation to the injury of February 1995 as he had no back problem prior to 1995. Based on the above mentioned facts still feel that his already existing back injury of February 1995 probably worsened the disc discomfort. Though the patient was symptom free from March to June 1995 most of the time he was not doing any work and his soft tissue injury had not completely healed causing his symptoms to get worse after the disc herniation. [9] Based on this medical evidence, and on his own testimony that the back pain he suffered after June of 1995 was in the same area as the pain he suffered after the accident, Peters claimed to have met the onus on him of proving that the accident caused the disc herniation. [10] Unfortunately for Peters, Dr. Rai does not conclude that the accident caused the herniation; he only concludes that it would worsen the symptoms. [11] In the absence of any other evidence, one could, perhaps, infer that, due to the fact Dr. Dindo found no evidence of disc herniation prior to the accident, together with Peters’ testimony that the back pain he suffered after June of 1995 was in the same area as the pain he suffered after the accident, the accident must have been cause of the herniation. [12] However, in this case, there is other evidence. Dr. Flotre, the medical director of rehabilitation services for the respondent, testified that in his opinion the accident did not cause the disc herniation. He explained that if Peters’ disc had been herniated by the accident, he would have expected symptoms and signs of herniation such as leg pain, numbness, tingling sensations and muscle weakness over the succeeding weeks, and Peters was symptom free until late June. He also explained that the quick resolution of Peters’ back problems and the length of time after the accident he was symptom free militated against disc herniation at the time of the accident. He stated that there can be multiple causes of disc herniation which have nothing to do with trauma. And pain in the same area after lengthy symptom free period of time, post accident, could be related to numerous causes other than the accident. Dr. Flotre\'s opinion was supported by Dr. Stewart, the orthopaedic surgeon who treated Peters for the herniation, who also opined that the herniation was not caused by the accident. In his medical report he stated: ... He [Peters] is trying to relate this all to his previous accident but have told him that the disc herniation coincided with the marked exacerbation and right leg pain in late October 1995. [13] A review of all of the evidence leads me to conclude that Peters has not met the onus on him of establishing causation on a balance of probabilities. His appeal is dismissed.",The applicant sustained a lower back injury in an automobile accident in February 1995 which resolved within ten days to two weeks. In June 1995 he began to experience pain in his back which slowly worsened until he was hospitalized in October 1995. He was diagnosed with a large central and right sided disc herniation. SGI denied his claim for income replacement benefits as a non-earner under s.117(1) of the Automobile Accident Insurance Act. In issue was whether the accident caused the disc herniation. HELD: The appeal was dismissed. The plaintiff had not met the onus on him of establishing causation on a balance of probabilities. Two family physicians supported his contention but the medical director of rehabilitation services for SGI and the orthopaedic surgeon who treated the applicant were both of the opinion the herniation was not caused by the accident.,5_1999canlii12498.txt
209,"1994 No. 94-I05822 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Wanda MacPhail -and- Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur AND: 1995 S.H. No. 115I85 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Carol M. Newbury and William Edward Newbury -and-­ Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur DECISION Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Halifax, Nova Scotia Dates Heard: June 2, 3, 4, 5, 6, 9,10,11, 1997 Counsel: Robert L. Barnes, Q.C., and Kandace Terris, Solicitors for the Plaintiff, Wanda MacPhail Daniel M. Campbell, Q.C., and Colin J. Clarke, Esq., Solicitors for the Defendants, Dr. Jacques Desrosiers, Janet Chernin and Jean Palmer Ronald Pizzo, Esq., and Ned Kelleher, Esq., Solicitors for the Plaintiffs, Carol M. Newbury and William Edward Newbury Ross Haynes, Esq., and Suzanne Fougere, Solicitors for the Defendant, Wanda MacPhail MacLellan, J. This action by the plaintiff Wanda MacPhail against the defendants arises as result of motor vehicle accident on March 24th, 1993. The accident occurred when Mrs. MacPhail's vehicle crossed the center line of the highway and was struck by vehicle driven by Susan Arsenault. As result of that accident, Carol and William Newbury started separate action against Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur. The parties consented to an Order dated April 30th, 1997, which provided that the two actions would be heard together because of the common issues involved, but that the assessment of damages, if any, for Carol Newbury and William Edward Newbury would be held at later date. It was agreed that one defendant Louise Brodeur does not exist and was simply listed as defendant by mistake. would therefore direct that any Order of Judgment herein not mention Louise Brodeur as party. The parties hereto have also agreed to certain facts which were admitted to be correct as follows: ""1. Definitions: (a) ""Arsenault Vehicle"" means the Ford Bronco motor vehicle operated by Susan Arsenault on March 24, 1993. (b) ""MacPhail Vehicle"" means the white Toyota Tercel owned by the defendants, Wanda MacPhail and Craig MacPhail and operated by Wanda MacPhail on March 24, 1993. (c) ""Motor Vehicle Collision"" means the collision that occurred between the ""MacPhail Vehicle"" and the ""Arsenault Vehicle, on Highway #103, west of exit 4, on March 24, 1993, between the hours of 1:00 to 2:00 p.m. 2. The Defendant Susan Arsenault, operated the ""Arsenault Vehicle, in an Easterly direction on Highway #103, (in the direction of Halifax) towards exit 4. At all material times, Susan Arsenault operated the ""Arsenault Vehicle"" in careful and prudent manner. Furthermore, Susan Arsenault did not cause or contribute, in any way, to the loss, injury and damage sustained by Carol Newbury in the ""Motor Vehicle Collision"". 3. At all material times to this action, the Plaintiff, Carol Newbury was passenger in the ""Arsenault Vehicle."" Mrs. Newbury was wearing her seat belt at the time of the ""Motor Vehicle Collision"". 4. The Defendant Wanda MacPhail operated the “MacPhail Vehicle” in an Westerly direction on Highway #103 near exit number (in the direction of Bridgewater). 5. The ""Motor Vehicle Collision"" occurred when the ""MacPhail Vehicle"", without warning, crossed the centerline into the path of the ""Arsenault Vehicle"", of Highway #103 and collided head-on with the Arsenault vehicle."" The issues before the Court in this trial are as follows: 1. Are the defendants or any of them in action 94-105822, liable to the plaintiff because of negligence on their part? 2. If the defendants, or any of them are liable, what are the plaintiffs damages? 3. Are the defendants, or any of them in action No.115185, liable to the plaintiffs in that action? Throughout this decision when refer to the plaintiff and defendants, mean the parties to the first action, otherwise, will indicate am referring to the second plaintiffs and defendants. Plaintiff's evidence on liability issue: The plaintiff testified that she is now 37 years old. She has four children ranging in age from five to twelve. She is nurse by profession, graduating from the V.G. Hospital School of Nursing in 1980. Her last job prior to her accident was as nurse at the V.G. Hospital in the Intensive Care Unit. In early March, 1993, she found out that she was pregnant. She was upset by this because she and her husband, Craig, had decided not to have any more children. Her husband had vasectomy in February of that year and according to her he was devastated by the fact that she was pregnant. They discussed the issue of the pregnancy and had some discussion about the possibility of an abortion. She didn't talk to anyone else because she felt it was private family matter. Following the discussion with her husband, she called the Morgantaler Abortion Clinic in Halifax and talked to lady on the phone. She was asked to confirm the pregnancy which she later did and the abortion was scheduled for March 24th, 1993 at 9:30 a.m. When she made the appointment she was asked if she would be accompanied when she came to the clinic, and she indicated that her husband Craig would be with her. During that phone conversation she asked the lady on the line whether she would be able to take the baby home for burial. She was told she could not do that. On the night before the scheduled abortion, the plaintiff discovered that she did not have babysitter for the next day and it was decided that her husband would stay at home with the children and that she would go alone. She arrived at the Morgentaler Clinic around a.m. and she met the defendant Janet Chernin, the receptionist at the clinic. She paid Ms. Chernin the required fee for the abortion and confirmed with her the lab results confirming that she was pregnant. She was asked by Mr. Chernin if she was accompanied and she told her why she was alone by explaining about the babysitter problem. She testified that this information did not seem to be big problem for Ms. Chernin. The plaintiff then met the defendant Jean Palmer. She had known Mrs. Palmer from working under her supervision at the V.G. Hospital. She said she didn't expect to run into Mrs. Palmer and was somewhat uncomfortable about having to deal with her. She said she was not proud about being at the clinic and found the meeting disturbing because of her previous relationship with Mrs. Palmer. During the course of the counselling session with Mrs. Palmer the plaintiff was offered sedative (Ativan), but initially she refused it saying that she was driving and that she shouldn't take anything. She said that Mrs. Palmer little later offered it to her again, and again she refused. However, when offered it third time, some minutes later, she agreed to take it. She said that Mrs. Palmer said that it wouldn't hurt her anyway. She said that when she took the sedative Mrs. Palmer did not discuss the issue of her driving home. The plaintiff was asked by counsel how she felt at that point. She said she was not easy with her decision to have an abortion and that spiritually and morally she was upset. She said she was like robot and tried not to think about what had to be done. Following her session with Mrs. Palmer, the plaintiff went upstairs in the clinic to see the defendant Dr. Desrosiers. She said that it was brief meeting in which he discussed follow-up appointment scheduled after the abortion. She said he explained the abortion procedure to her and what she could expect would happen. He discussed with her her request noted on the chart to see the product of conception. The plaintiff then went to the room where the abortion was to take place. She met nurse, Deidrea Calder who took her blood pressure and explained to her the procedure. She said the procedure took 15 to 20 minutes and that she was given local anesthetic in her cervix. After the abortion was over, she said she was physically okay but emotionally very shaky. She said she was holding the nurse's hand. She said she was uncomfortable in her pelvic area similar to menstrual cramps. She was then taken to the recovery room where she met the recovery room nurse Lynn Broderick. She was offered tea and biscuit. She said she knew Lynn Broderick because she was married to man from St. Margaret's Bay where she also lived. She said she was in the recovery room 30 to 45 minutes sitting in chair. The plaintiff said she had conversation with Lynn Broderick about driving back and forth from St. Margaret's Bay, but no discussion about the fact that she was going to be driving home that day. She said she was told that when she was okay she could leave. She said she was having difficulty comprehending the information from the nurse because she was in what she described as robot like state. She said that after the abortion she did not see Dr. Desrosiers and no one did pelvic exam on her while she was in the recovery room. The last medical procedure was the taking of her blood pressure while in the recovery room. She said she then went downstairs and saw Janet Chernin again before she left the clinic. When she went to her car, she noticed some pro­life people in the area of the clinic. She got in her car and drove off butdecided that before going home she would go the Burger King for something to eat. She said she wanted to get collected before going home. She knew that her husband was due to go to work at p.m. and that she should be home before he left. At the Burger King she had chicken sandwich and fries. While she was there she said she started getting tearful. She said she was feeling sad about the situation. She left the restaurant and started out Joseph Howe Avenue to Bayer's Road and took the Peggy's Cover turnoff heading home. She said that at the C.J.C.H. building she noted on her car radio clock that it was 1:20 p.m. Knowing that she had to be home by o'clock she felt she had plenty of time. She said at that point she was tearful and wiping away her tears as she drove. She says she remembers passing Exit No. on the highway. The next thing she remembers is seeing blue truck in her windshield directly in front of her. She said to herself, ""Oh, my God, I'm on the other side of the highway"". She next remembers waking up in the hospital. She said she thought that she had blacked out just prior to the collision. She didn't remember getting sleepy. She said she has no history of fainting. The plaintiff said she has travelled that particular stretch of highway many times, particularly, while she worked at the V.G. She said the speed limit there is 100 kilometers per hour and that she would normally travel at that speed. Dr. Julius Piver testified as an expert. He works in Bethesda, Maryland and has performed between 600 to 700 abortions all of which were done in hospital setting on Outpatient basis as opposed to clinic similar to the Morgentaler Clinic. He said his patients normally are given general anesthetic and they are asleep while the abortion is done. He said he was familiar with the clinic setup for abortions where local anesthetic is used. Dr. Piver said that his rule of practice was that patient would not be allowed to drive after having an abortion whether it was done under general or local anesthetic. He said that if he was aware that patient intended to drive, he would not do the procedure because he felt that it would put the patient's life in jeopardy. He said that most women who have abortions are unhappy having the procedure. He said this is particularly true of women who have had child or other children. He said the procedure is already emotionally charged and that the decision to drive or not to drive should not be left with the patient. Dr. Piver was asked about the plaintiff's situation and indicated that he would be concerned when it was noted that she wanted to see the product of conception. He said he has never had patient request that of him. He was asked about the effects of Ativan on patient. He said it would produce drowsiness. In his report filed with the Court Dr. Piver states: “It is breach of the standard of care to allow patient to drive who has had any anesthetic agent, local or general, so soon thereafter. When it was known that she had no one to drive her home the procedure should have been postponed to another date. Patients have been known to have delayed reaction to surgery causing them to faint,due to the stress of the procedure. It is prudent to advise patients not to drive for minimum of 24 hours following sedating medication.” Dr. Reginald Yabsley testified on behalf of the plaintiff. He is an Orthopaedic Surgeon and saw the plaintiff in reference to her injuries sustained in the accident. He also testified about driving after surgery based on the fact that many of the orthopaedic procedures he does are done on an Outpatient basis. Generally, he said, patient who has any type of invasive procedure done on an Outpatient basis should not drive afterwards. In reference to the plaintiff specifically, and the abortion procedure, he stated in his report as follows: ""I would have felt that it was not advisable for patient to drive home on their own, not only after such procedure but especially after such procedure and having taken Ativan. For information, am enclosing copy of pre­-operative and post-operative form which used for day-patient surgery. You will see that in each instance it is emphasized, for general reasons, that patient not drive following surgery. There are general reasons as well as specific ones for not doing so. Surgery of any type is stressful and traumatic event, both psychologically and physically, and combined with the fact that sedation and anesthesia in various forms may often be used, such use cannot be predicted in advance, nor can their effects following their deployment be always clearly defined."" On cross-examination Dr. Yabsley conceded that he has experience only in his specialized field and that he was not qualified in the field of gynecology. Gregory Johnstone testified about the effects of the drug Ativan. He has Masters degree in Pharmacology and gave expert evidence on the effects of drugs on person. In his report filed with the Court, Mr. Johnstone indicated that given the plaintiff took one milligram dose of Ativan at II a.m., she would still have 87.5% of the dose present in her body at the time of the accident which was estimated to be between 1:30 and p.m. He indicated that therefore there would be large portion of the pharmacological effects normally associated with that drug still in her body. He indicated that the effects would be as follows: THE NATURE AND EXTENT OF THE EFFECTS OF ATIVAN (LORAZEPAM) The effects of all benzodiazepines (including Ativan) would be described generally as falling into the descriptions below (all are considered central nervous system depressant actions): 1. Anti-anxiety Their primary role for these drugs in our society is to relieve anxiety, and related symptoms, by blunting the brain's response to stimuli and sensory imput(sic) to the brain. In panic attacks and acute overwhelming emotional states, these drugs have demonstrated effectiveness in blunting such intense symptoms. 2. Sedation Sleep induction These drugs are very effective at relaxing person to such level that falling asleep is much easier. Some benzodiazepines actually cause one to fall asleep. Use in treating insomnia is large part of their application. 3. Muscle Relaxation/Anti-convulsant These drugs are very effective muscle relaxants. Relaxing muscles which are tense and overstimulated due to emotional or psychological responses is an important part of the anti-anxiety treatment. 4. Memory-Amnesia On of the common ""side"" effects of acute (one time) and chronic high dose use of these drugs is the anterograde amnesia (memory of events occurring for some time after administration of the drug are lost.) This effect is considered to be desirable effect in persons undergoing medical procedures they may fear."" He also testified about the issue of operating motor vehicle while on the this type of medication. In his report he stated: “It is precisely because of the nature and persistence of these Ativan effects that the drug manufacturers include cautions about operating motor vehicles or regrading occupation hazards, following administration of the drug. Research shows that in addition to the general effects listed above, that an extension of those actions accounts for the range of common adverse effects, or unwanted effects experienced by patients taking these drugs. For example the following are the most commonly recorded adverse effects. -drowsiness lethargy -amnesia disorientation -dizziness mental confusion Mr. Johnstone said that one milligram dose of Ativan would not produce obvious effects because it was low dose, however, it could produce subtle effects not obvious to the person. Therefore, he suggested that the person may feel fine, but is unconsciously being affected by the drug in her motor abilities. He said that the more complex the task being performed the more obvious the effects of the drug. He indicated that the manufacturer of the drug Ativan advises against driving after taking the drug. Dr. David P. Petrie treated the plaintiff. He is an Orthopaedic Surgeon practicing in Halifax and his report in regard to his treatment of the plaintiff was introduced into evidence by consent without his attendance in Court. Also, transcript of his Discovery Evidence was introduced into evidence as Exhibit 17. In letter dated January 24th, 1994, Dr. Petrie commented on the issue of whether the plaintiff should have been allowed to drive. He said: “I am concerned about the fact that this lady was permitted to drive home distance of approximately 20 miles after therapeutic abortion. shall enclose some information given to my patients as well as the discharge protocol used at CFB Stadacona where also work on consultant basis. think it states quite clearly that the patient, in spite of having only local anesthetic or very brief general anesthetic, should not be permitted to drive home. Indeed, have cancelled number of patients in the past ten years when they arrived at the Victoria General Hospital without driver or attendant. It is well recognized that patients will have delayed or secondary reaction to their surgery causing them to faint. This is often referred to as vagovagal response, but in many cases we are just not sure as to the exact pathophysiology. It is not necessarily related to an excessive amount of bleeding which may or may not have occurred in Mrs. MacPhail's situation.” On Discovery Dr. Petrie was asked about his policy and the reasons for his rule about not driving. He said: (Exhibit 17 page 17) ""Because think it's impossible for me to predict the patient's response to surgery. There is wide gamut in human emotions. There is wide gamut in physiological response to surgery. Most people who see are have some degree of concern, anguish, worry when they are having any invasive surgical procedure done. And that's normal. mean, that's normal physiological human being. mean, we were taught, as medical students, the fight and flight response to the adrenergic stimulation of the sympathetic nervous system. And that's what happens. And the adrenaline pumps out of your adrenal glands, you know, your hair stands on end, your heart speeds up, you get peripheral clamping down of your circulation so your hands feel cold and clammy. And that's what happens when you surgically incise people, or do outpatient surgery to them. They can't predict ­they can't help it. mean, that's natural physiological response. And on top of that, of course, is the emotional response which, once again, as suggested in my reference to the football player who collapsed with needle stick, is totally unpredictable too, because of the vasovagal attack. We know that people's heart rate slows down significantly through vagal nerve, and these people just don't get enough blood into their brain, so they pass out and fall to the ground or fall on top of you or whatever."" Later he continued: (p. 27) ""No. think most vasovagal attacks occur within reasonable period of time of the inciting event. But am not saying that two hours later this is not vasovagal attack, because let's appreciate the fact that there has been surgical procedure here, very emotionally charged situation, there has been small amount of benzodiazepine used, there has been an anesthetic applied to the cervix. The combination of those four events could certainly culminate in passing out, fainting, loss of control of the vehicle and the subsequent motor vehicle accident."" Q. Okay. But am trying to separate them. And let's consider them one by one. was asking you about delayed vasovagal reaction which is delayed some period of time after the stimulus, the surgery. Q. Is that recognized risk? A. think it's combination of factors. You know, don't think you can say you know, is it normal to have sudden slowing of your pulse two hours after you have had surgical procedure in normal patient sitting quietly in room? That is uncommon. If he or she is driving her car, home, has lot of emotional concerns about what she has just gone through, has had some Ativan to which she has had an inappropriate but normal pharmacological response of drowsiness, then the vasovagal attack at that time is not out of the question, not at all"" Defendants' evidence on liability: Janet Chernin is one of the defendants and testified that she worked as receptionist at the Morgentaler Clinic in Halifax. She took the telephone call from the plaintiff requesting an appointment and filled out the forms documenting her case. She completed the appointment sheet (Tab 26 Exhibit Book) for the plaintiff and noted that the plaintiff expected to be accompanied by her husband Craig. She also noted on that form that the plaintiff ""wanted to take the baby home to bury"". She said she told the plaintiff that this was not possible. On March 24th, 1993, the plaintiff arrived at the clinic and was met by Ms. Chernin. She received from the plaintiff the fee for the abortion and arranged for her to see Mrs. Palmer for counselling session. She was aware that the plaintiff was not accompanied, as originally intended, and that she wanted to drive home alone. She said the general policy at the Halifax Clinic and also at the Morgentaler Clinic in Toronto, where she had previously worked, was that patients should not drive after an abortion. Ms. Chernin said that she overheard conversation between nurses Calder and Broderick in which they were discussing the fact that the plaintiff intended to drive home. She said she understood from that conversation that Lynn Broderick had offered to give the plaintiff drive home, but that she had refused. She said that her normal practice was to advise patients that they shouldn't drive but that she couldn't say whether she said that to the plaintiff or not. She said the reason for this rule is the fact that normally woman takes medication during the abortion and also because of the stress of the procedure itself. Ms. Chemin said that she felt it was the responsibility of the doctor and nurses to deal with the issue of whether the plaintiff drove or not. She said she was only aware of one other case at the clinic where patient drove after an abortion. In that case, the plaintiff was accompanied by her mother and Ms. Chernin assumed the mother would be driving home. However, when they left the clinic, she saw the patient get in the car and drive away. She said she was concerned about that at the time. Ms. Chemin said it was common to see women tearful and emotional after an abortion. She also said that some seem faint and weak. She said that one young patient came downstairs to leave, but because of her emotional condition was told to go back upstairs to the recovery room for some more time before leaving. She said the average stay in the recovery room would be 30 to 45 minutes, but that some woman stay there for an hour. Sandra Lanz was the head nurse at the clinic on March 24th, 1993. She was responsible to supervise all nursing functions of the clinic. She spoke with the plaintiff shortly after she came to the clinic and said that they had discussed the issue of whether the plaintiff would be driving home. She said that she didn't tell her not to drive, but said to her that it was not good idea to do so. She said the plaintiff at that time appeared steady and not emotional. She said she later saw the plaintiff in the recovery room after the abortion and that once again she appeared fine and alert. Jean Palmer was the counselling nurse at the clinic. She saw the plaintiff on the morning of March 24th, 1993. Her job was to provide counselling on the emotional issues involved with an abortion and to assess the patient's emotional and mental state. She was familiar with the plaintiff because she had worked with her as nurse at the V.G. Hospital but they were not close friends. In the discussions between the plaintiff and Mrs. Palmer they discussed medication during the procedure. From that she understood that the plaintiff would be driving home after the abortion. She said she couldn't remember anyone ever coming to the clinic for an abortion and driving home alone. She filled out the counselling assessment (Tab 24 Exhibit Book) and noted in capital letters that the plaintiff ""wants to drive home alone today"". She said she did that to alert the other health care professionals of this fact. She said she felt she didn't have the final say in whether that should happen or not. Towards the end of the counselling session Mrs. Palmer discussed the issue of taking the sedative Ativan. She said she encouraged her to take it which she eventually did. Mrs. Palmer said on cross-examination that she would not advise anyone to drive after an abortion. She said here she made an exception because the plaintiff was nurse and that she felt that nurses drive home many times after having emotional shifts at hospitals. She said that in two years of counselling patients at the clinic, she only heard of one patient who drove home after an abortion. She agreed that she didn't discourage the plaintiff from driving home and said that was because the plaintiff had made up her mind to do that. She said she encouraged the plaintiff to take the Ativan because it would relax her and that was important in the procedure itself. Dr. Jacques Desrosiers testified that he was the doctor who performed the abortion on the plaintiff. He said he met the plaintiff at the clinic on March 24th. He said at that time he was working there one day per week doing abortions. When he met her she had finished the counselling session with Jane Palmer and he had copy of the counselling assessment (Tab 24 Exhibit Book) and was therefore aware that she would be driving home. He said he was aware that the driving issue became important normally where person is given narcotic for pain rather than when patient took sedative like Ativan. With narcotic, the patient would normally be told not to drive, but with the sedative the decision would be made after the procedure and if there were no complications the patient would simply stay longer at the clinic and then be allowed to leave. In other words, it was judgment call on the part of the nursing staff to determine if the the patient was well enough to leave on her own. If there were obvious symptoms that the sedative was effecting the patient, or she was suffering excessive pain, then she would be told to stay around until the symptoms passed. He said he understood the general policy of the clinic was for women not to come for an abortion unaccompanied. He said that patients rarely came without someone with them. He said that most patients have little difficulty with the abortion procedure but that if there were complications they were dealt with at that time. He said the risk of fainting is normally just after the abortion and not delayed reaction taking place at later time. He said he has never heard of patient faint two or three hours after an abortion. He said that from his personal experience in dealing with many patients who come back for follow-up checkup that he has never had patient report that she fainted some hours after an abortion. Dr. Desrosiers said the risk of hemorrhaging from an abortion is usually during the procedure itself and not later, but that it could occur from infection. He felt if that happened it would normally be about 24 hours after the procedure, not shortly thereafter. He indicated that he discussed with the plaintiff the decision to have an abortion because of her request to take the baby home to bury. He said he was satisfied with her response. He said the procedure had no complications and was routine from his point of view. After the abortion he went to the recovery room and observed the plaintiff. She was showing no signs of distress and he then left her with Lynn Broderick the recovery room nurse. He did not see her again before she left the clinic. Dr. Desrosiers said the policy of the clinic changed in 1995 and that it now requires that all patients be accompanied when having abortions, not because of the risk, but because of this particular law suit against the clinic members. On cross-examination Dr. Desrosiers said that he made no attempt to dissuade the plaintiff from driving when he first saw her because at that point he didn't feel she was at risk. He said if there had been complications during the procedure he would have discussed the issue with her again. Since there were no complications he did not do so. He did not know if any staff discouraged her from driving. He felt that the sedative Ativan would reach its peak effect within one hour and that he was aware that common symptom of taking Ativan is drowsiness. He said that he left the final, decision of whether the plaintiff should drive or not to the recovery room staff. He said he didn't know how long she remained in the recovery room or what her condition was when she left. Dr. Desrosiers agreed with plaintiffs counsel that the plaintiffs request to take the baby home to bury would probably indicate moral dilemma on her part and that most patients do not want to see the product of conception. He also agreed that an abortion is an emotionally charged procedure for woman. Lynn Broderick was the recovery room nurse at the Morgentaler Clinic. She saw the plaintiff after the abortion had been performed. She noted from the chart that the plaintiff was from St. Margaret's Bay, the same place where she lived. She said the plaintiff sat in chair and she gave her hot drink. She offered her Tylenol, but she refused because the plaintiff said she was driving and didn't want any more medication. Ms. Broderick also noted that the plaintiff’s husband was supposed to accompany her. She asked the plaintiff about that. She said the plaintiff explained to her about the babysitting problem. Because of that, Ms. Broderick suggested to the plaintiff that she could ride with her and that she would be finishing early that day. She said that the plaintiff said she would be fine to drive herself. Ms. Broderick said that she understood the policy of the clinic to be that patients be told they should be driven home and should be discouraged from driving themselves. She said she had never been involved with patient who was driving alone but that she had heard that it had happened in the past. She said the plaintiff was talkative and that she appeared alert when she saw her. She was steady on her feet and said that she felt fine. She said the plaintiff stayed in the recovery room for an hour or an hour and half. She remembered that because she was the last patient to leave and there had been other patients there at one point. She said she has never seen patient faint in the recovery room. When the plaintiff left Ms. Broderick said she had no concerns about her condition. She acknowledged on cross-examination that she had not warned the plaintiff not to drive because she felt the driving issues had already been addressed by other staff. She also indicated that in fact she had seen one patient faint in the recovery room and that she saw others who appeared faint. Deidrea Calder saw the plaintiff at the Morgentaler Clinic. She was working as nurse who was in the operating room called the head of the bed nurse being that she was beside the patient while the abortion was being done. She said she discussed with the plaintiff whether she wanted Nitrous oxide which would put her to sleep. She said that the plaintiff refused because she was driving home that day. She said the abortion took about 10 minutes and that the plaintiff was in the O.R. for about 20 minutes. She escorted the plaintiff to the recovery room where she met Lynn Broderick. Later she said she saw the plaintiff when she was leaving the clinic. She asked her if she was okay to drive and that the plaintiff said she was. She saw her go out the door. She said she understood the policy of the clinic was for patient not to drive home alone. She said that if person showed up alone that decision would be made after the procedure to see if the patient was able to drive alone. She said she never saw patient faint after 30 minutes in the recovery room. She agreed on cross-examination that an abortion is emotionally charged and that some woman show more emotions than others. She said the plaintiff was not tearful during the procedure. She said that the assessment on the ability to drive is based on the responses by patient and how well they perform in going to the washroom and getting their street clothes out of the locker. She said that normally person would only stay 30 minutes in the recovery room. Dr. Edward Sellers testified on behalf of the defendants. He is Pharmacologist involved in research and clinic work with drugs similar in type to Ativan. He said that one milligram dose of Ativan was on the lower end of the usual dose and would be administered to deal with anxiety in patient. He said the higher the dose the more likely the patient would have symptoms of drowsiness. He said that typically the effect of Ativan would be obvious within one hour after taking it, thereafter, the effect would remain the same. In his report filed with the Court, Dr. Sellers said: ""The best indicator of whether lorazepam has had an effect such as sedation or impairment of motor performance is obtainable from observing the patient after administration of the drug and by asking the patient about the drug effects."" Dr. Harry Hugh Allen is an Obstetrician and Gynecologist and professor at the University of Western Ontario. He also practices in London, Ontario. He, at one time, performed about 300 abortions per year. In recent years that has decreased to 25 to 30 per year. He said that 90% of these were done under local or no anesthetic in clinic setting. He said his practice was to allow patients to drive after an abortion if that patient has not received an intravenous sedative like Valium. If the patient has only received local anesthetic or drug like Ativan, they are permitted to drive alone. He said that it was not appropriate to compare other Outpatient type procedures to an abortion because of the pain factor in the other procedures because procedure involving an incision might cause pain based on the patient's movement. That is not the case with an abortion. He said he would only refuse to allow patient to drive home if there was solid medical reason to do so. Dr. Allen then described the process involved when person faints. The medical term for fainting is syncope and involves loss of blood to the brain and pooling of the blood in the lower extremities of the body. Because of that people fall over and this causes the blood to flow back to the brain. He described the vasovagal syncope in his report filed with the Court (Tab Defendant's Expert Report). He stated: ""The physiology of Vasovagal syncopy is not completely understood. The vagal nerve response in pelvic surgery occurs at the time or very near the procedure from stimulation of the parasympathetic nerves to the pelvis. These impulses travel cenral(sic) to the vasomotor centre in the medulla. This stimulation causes reflex decrease in heart rate via the vagal nerve to the heart. There is slight decrease in cardiac contractility also. The muscle vasdilator(sic) system becomes activated at the same time further causing decrease in blood pressure resulting in syncopy."" He was of the opinion that any such vasovagal syncope would occur either during the abortion or immediately following, that is, within 10 or 15 minutes following the abortion. He did not feel that it could happen two hours after the procedure. Dr. Allen indicated on cross-examination that when he worked in an abortion clinic they asked patients to have drive home because the patient might be taking narcotic for pain or sedative like Valium intravenously. He agreed with plaintiff's counsel that strong emotional reaction can cause person to faint. However, he stated that the faint would normally occur at the time of the troubling event, not some hours later. Dr. Robert Fraser is the head of the the Department of Gynecologist at the V.G. Hospital in Halifax. He worked at the abortion clinic at the hospital for number of years. He said that since the early 1990's the vast majority of abortions are done there under local anesthetic. He said the policy at his clinic was to generally encourage patient to have someone with them when undergoing an abortion. He said that any vasovagal reaction would occur either during or shortly after the abortion procedure. He said it would appear appropriate that patient be permitted to drive after an abortion provided the patient was not exhibiting symptoms which would cause the nursing staff to have concern about the woman's ability to drive. During the course of the trial, number of witnesses were asked about text book called ""Abortions and Contraception"", by Dr. Henry Morgentaler, specifically, the witnesses were referred to page 81 of that text wherein the author said: ""A syncope can also take place after the operation. Some patients will experience severe cramps as result of the contractions of the uterine muscles. Mild cramps are normal and desirable response, because this is an indication of good contraction of the uterine muscle, the mechanism that halts the bleeding. However, when intense, some women might overreact to the cramps to the point of syncope. Anxiety over imagined complications may trigger fainting spell, especially if the woman interprets any symptom as an indication of imminent disaster. Paradoxically, the release of tension after becoming aware that the much-dreaded abortion is over may have the same effect."" (Emphasis Added) The Law The law on this case is clear. The defendants as health care professionals were obligated to treat the plaintiff in manner consistent with generally accepted medical practice. The standard of care required of them is set out in number of cases including Crits and Crits v. Sylvester, et al., [1956] D.L.R. (2nd), 508 where Schroeder, J.A. speaking for the Ontario Court of Appeal said: “Every medical practitioner must bring to his task reasonable degree of skill and knowledge and must exercise that degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing, and if he holds himself out as specialist, higher degree of skill is required of him than one who does not profess to be qualified by special training and ability.” This definition of the standard of care has been applied in number of cases in this province including: Anderson v. Grace Maternity Hospital et al, (1989), 93 N. S. R. (2d) 141 (T. D.); Robichaud v. Bruce and Sayat (1988), 86 N. S. R. (2d) 421 (T.D.); Goguen v. Crowe (1987), 80 N.S.R. (2d) 36 (T.D.); Young et al v. St. Rita Hospital and Critchley (1986), 75 N.S.R. (2d) 239 (T.D.); Nancy E. Locke v. Dr. Robert H. Lea et al, (S.H. No. 93-5171)(April 23rd, 1997). In Crits, supra, the Court also dealt with arguments made by the defendants that they were complying with the standard practice within the medical community at the time. Schroeder, J.A. said: ""Even if it had been established that what was done by the anaesthetist was in accordance with ""standard practice"", such evidence is not necessarily to be taken as conclusive on an issue of negligence, particularly where the so-called standard practice related to something which was not essentially conduct requiring special medical skill and training either for its performance or proper understanding of it. This was the view of the Court of Appeal of Manitoba in Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71, and reference may also be made on this point in its broader and more general aspects to Bank of Montreal v. Dom. Gresham Guar. Cas. Co., 1930 CanLII 318 (UK JCPC), [1930], D. L. R. 689, A.C. 659, 50 Quc. K.B. 57, and Lloyds Bank v. E.B. Savory Co., [1933] A.C. 201 at p. 232. If it was standard practice, it was not safe practice and should not have been followed."" In Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71, the Manitoba Court of Appeal dealt with the issue of whether Judge is bound by expert evidence in regard to the standard practice of doctor. MacPherson, C.J.M. said: (p. 73) ""The question left for consideration is: Was the doctor negligent in the care of the child after the operation had been completed? It was submitted that the expert testimony given, clearly relieved him of all negligence and that the expert testimony had to be accepted on that point. cannot agree with that argument. Where there is other evidence in contradiction of the opinion of the expert testimony, which can be understood by layman, those facts can be taken into consideration. In 48 Corp. Jur., p. 1151, it is stated: ""Expert evidence is not required, however, where the results of the treatment are of such character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves."" On Appeal to the Supreme Court of Canada this statement of the law was approved. ([1950) 1950 CanLII 336 (SCC), D.L.R. 223). In ter Neuzen v. Kom (1995) 1995 CanLII 72 (SCC), 127 D.L.R. (4th) 577, the Supreme Court of Canada dealt with the issue of whether Judge could instruct jury to find that despite conformity with standard practice doctor could be found negligent because the standard of practice itself was found to be negligent. Sopinka, J. speaking for the Court said: (p. 590) ""It is generally accepted that when doctor acts in accordance with recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In sense, the medical profession as whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent."" He did however recognize that there can be cases where standard practice will not protect professional. After quoting from Professor John G. Flemmings The Law of Torts, Justice Sopinka continued: (p. 591) ""It is evident from the foregoing passage that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent. However, this will only be where the standard practice is ""fraught with obvious risks"" such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise. In Roberge v. Bolduc (1991), 1991 CanLII 83 (SCC), 78 D.L.R. (4th) 666, [1991] S.C.R. 374, 39 Q.A.C. 81, this court had the opportunity to address this issue in the context of the civil responsibility of notary under the Quebec Civil Code. In that case, it was recognized that where custom of profession ignores the elementary dictates of caution, it is open to court to find the professional person negligent. Thus, even if doctor practices in accordance with common professional practice, he will be liable if that practice is wanting. As L'Heureux-Dube J. stated at pp 710-II:"" ""This brief overview of both doctrine and jurisprudence indicates that courts have discretion to assess liability despite uncontradicted evidence of common professional practice at the relevant time. The standard, in regard to the particular facts of each case, must still be that of reasonable professional in such circumstances. It may very well be that professional practice reflects prudent and diligent conduct. One would hope that if certain practice has developed amongst professionals in regard to particular professional act, such practice is in accordance with prudent course of action. The fact that professional has followed the practice of his or her peers may be strong evidence of reasonable and diligent conduct, but it is not determinative. If the practice is not in accordance with the general standards of liability, i.e., that one must act in reasonable manner, then the professional who adheres to such practice can be found liable, depending on the facts of each case."" (Emphasis in original). The foregoing principles were also endorsed by this court in Waldick v. Malcolm (1991), 1991 CanLII 71 (SCC), 83 D.L.R. (4th) 114, [1991] S. C. R. 456, C. C. L.T. (2d) I. Thus, it is apparent that conformity with standard practice in profession does not necessarily insulate doctor from negligence where the standard practice itself is negligent. The question that remains is under what circumstances will professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger; judge or jury may find that the practice is itself negligent."" He also reviewed the Court's decision in Anderson v. Chasney, supra, and quoted with approval from the Manitoba Court of Appeal decision in that case. (p. 594) ""Coyne J.A. then adds the following at pp. 85-6: ""Whether or not it is negligence to omit to use sponges with ties or to have count kept is not matter which requires an expert to decide; it is not special surgical skill that is in question. Such skill is not necessary to answer the question. The point involved is negligence or no negligence. It is not matter here which requires an expert to decide. General practice of the defendant and some others does not constitute complete defence. It is some evidence to be taken into consideration on the question of negligence but it is not conclusive on Court or jury. If it were defence conclusive on jury or Court, group of operators by adopting some practice could legislate themselves out of liability for negligence to the public by adopting or continuing what was an obviously negligent practice, even though simple precaution, plainly capable of obviating danger which sometimes might result in death, was well known If practitioner refuses to take an obvious precaution, he cannot exonerate himself by showing that others also neglect to take it. (Emphasis added.) ""As well, Coyne J.A. emphasized that the case involved no difficult or uncertain questions of medical or surgical treatment nor any matters of scientific or highly technical character. It was simply matter of whether obvious and simple precautions, easily understood by ordinary individuals, were required to be taken. Coyne J.A. remarked (at pp 86-7):"" ""Ordinary common sense dictates that when simple methods to avoid danger have been devised, are known, and are available, non-use, with fatal results, cannot be justified by saying that others also have been following the same old, less-careful practice; and that when such methods are readily comprehensible by the ordinary person, by whom, also, the need to use them or not is easily apprehended, it is quite within the competence of Court or jury, quite as much as of experts to deal with the issues; and that the existence of practice which neglects them, even if the practice were general, cannot protect the defendant surgeon."" Justice Sopinka then concluded: (p. 595) ""I conclude from the foregoing that, as general rule, where procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of judge or jury, it will not be open to find standard medical practice negligent. On the other hand, as an exception to the general rule, if standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for practitioner to claim that he or she was merely conforming to such negligent common practice."" Cause of the accident I. find here that there is no obvious reason why the plaintiff's vehicle crossed the center line of the highway and struck the vehicle being driven by Susan Arsenault. It is clear that this happened and therefore must look for probable causes. It has been argued by the plaintiff that she fainted briefly and strayed across the center line. Counsel for the plaintiff suggests that the faint was caused by the emotional reaction to the abortion or was vasovagal attack brought on either by emotional stress or pain from the abortion procedure. In the alternative, it is suggested that the patient got drowsy as result of the effects of the sedative Ativan and briefly nodded off causing her vehicle to cross the center line. The defendants suggest that there is no evidence that the Ativan would have such significant affect on the plaintiff as to cause her to nod off especially some hours after taking it. They also suggested vasovagal attack normally is triggered by sudden pain and there would be no reason for that pain some two hours after the abortion. find that the plaintiff was normally very competent driver and used to the highway where the accident occurred. She drove this highway many times after working long shifts at the hospital. The accident occurred in the middle of the afternoon and the weather and road conditions were good. find it unreasonable to conclude that the accident happened because of inattention on her part. believe, therefore, that she was temporarily affected in such way as to cause her to let her vehicle cross the center line of the highway. Of the three scenarios suggested by the plaintiff, believe the most likely are either simple fainting spell or vasovagal attack. find that am not convinced that the sedative Ativan caused her to lose control of her vehicle. The evidence before me from all of the medical professionals is that fainting, and the causes thereof, are not clearly understood. However, they all agree that fainting can be caused by emotional stress. That is true also for vasovagal faint. The plaintiff in this case had severe emotional reaction to the fact of the abortion. Consistent with the medical evidence, find that she was more affected by the procedure because she had number of children at home. believe she agreed to have the abortion only because she felt forced into it because of her family situation. She did not discuss the matter with anyone except her husband. He was obviously upset with the pregnancy, and believe his reaction was significant to the choice she made. Her evidence is that she had severe moral and ethical concerns about terminating her pregnancy. That was exhibited when she asked to take the baby home to bury. Obviously, by that comment, she felt she was aborting baby and not ""product of conception"". believe she put on brave face while at the clinic particularly because she knew some of the personnel there. also believe that the fact that she ran into people she knew affected her even more. Now people with whom she had worked with were aware of her personal situation. believe that after leaving the clinic and having something to eat the reality of what had happened hit her. She was going home to face her children and husband and as she got closer to home the reality of facing them became more intense. She first started to cry at the Burger King. Later as she drove home, believe the intense emotional turmoil of aborting, what she described as baby, caused her to faint. This resulted in her losing control of her vehicle and letting it cross the center line of the highway and being struck by the other vehicle. Standard of Care There is no issue here but that the abortion was performed in manner that met the standard of care for that procedure. The central issue is whether the health care professionals should have been aware that the plaintiff could be affected in her ability to drive motor vehicle by either the sedative given to her prior to the abortion, the local anesthetic administered during the procedure, or by the possibility that she would faint after leaving the client as result of the emotional impact of having had an abortion. In order to impose liability on the defendants, must find that the defendants should have been aware of these dangers to the plaintiff and that they did not act to ensure that she was not at risk. must also find that the negligence on the part of the defendants was the determining cause of her accident which resulted in her injuries. Dealing with the standard of care upon which should judge the defendants care of the plaintiff, find that the evidence before me does not establish clear standard of care on the issue of driving vehicle after an abortion. have conflicting evidence from respected experts on both sides of the issue. Dr. Piver, Dr. Petrie and Dr. Yabsley took clear cut position and advised that there should be no driving after any significant surgical procedure. Their position is basically that doctor cannot predict what will happen to patient after such procedure and the simple and safe course is simply to prohibit driving to protect against all causes of delayed reaction. On the other hand, Dr. Desrosiers, Dr. Allen, and Dr. Fraser suggested that driving after procedure is permitted provided the patient has not experienced problems during the procedure requiring pain medication, has not been given general anesthetic, and the patient is given an opportunity to remain in the recovery area for sufficient time for staff to assess the patient's ability to drive. Because of the conflicting evidence, am not able to say that there is in fact clear cut standard being applied in the medical community in Halifax. However, that does not mean that this would absolve the defendants because must go on to determine despite the lack of generally accepted practice on this issue, whether in this case, the defendants met the standard which should be imposed. In ter Neuzen, supra, the Supreme Court of Canada held that if the evidence does not establish standard practice the trier of fact is entitled to fix the standard if that can be done without expert evidence. In this case, find that have enough undisputed medical evidence to fix standard of care in regard to driving after an abortion and propose to do so. find that it is not disputed that fainting is often caused by emotional stress and that an abortion always causes emotional stress, therefore, find it is reasonable to expect that woman might faint after undergoing an abortion. further believe that faint might occur up to 12 hours after an abortion, and therefore, woman should not drive during that time period. believe that the staff at the Morgentaler Clinic should have been aware of the possibility of faint especially in the case of the plaintiff in light of the fact that she had children and her comments about taking the baby home to bury. believe that her particular situation should have raised more red flags to stop her from driving. Instead, believe that Jean Palmer deferred to the plaintiff because she was nurse. She let her decide herself if she was okay to drive. believe that Jean Palmer would have told non­-nurse acquaintance that she should not drive. believe the clinic staff did not specifically address their minds to the issue of fainting because if woman was not driving as mandated by the clinic policy faint would not be significant event. also find that the duty of care could easily have been discharged by having any staff member advise the plaintiff against driving. That simple precaution would, find, have averted this terrible accident with such severe consequences. further find that the plaintiff would not have driven if she had been told not to do so. believe her intention to drive was based solely on the fact that she was not taking medications which would normally affect her ability to drive. She refused the Ativan twice because she was concerned about its effect on her driving. She consented to take it only because she was assured by Nurse Palmer that she should do so. Despite the fact that she was told to be accompanied, find no fault on the part of the plaintiff as she made it very clear to all clinic staff that she intended to drive and was not once dissuaded from doing so. believe it was reasonable for her to assume that she was not putting herself in any danger by driving. The plaintiff was obviously not aware that strong emotional reaction could cause fainting. believe the strong emotional reaction by the plaintiff was not to the medical procedure itself which was relatively uneventful, but to the fact that she had just had an abortion and was now going home to her family. Once that reality set in, her body reacted as was so ironically forecasted by Dr. Morgentaler in his text book. believe the clinic staff were negligent in not recognizing that an emotional reaction can be delayed and cause fainting some hours after an abortion. The fact that the doctors testifying before me were not aware of woman fainting some hours after an abortion does not convince me that fainting spells have not occurred. If woman feels faint while sitting in car, or at home, the consequences are minor that the episode might not even be reported to doctor on follow-up visit. Unless there are consequences to fainting spell normally it is not significant and might simply be attributed to the medical procedure itself instead of the emotional reaction of having had an abortion. find no fault in how Janet Chernin handled the plaintiff at the clinic. Her job was to arrange appointments and advise patients that they should be accompanied. She did that and also ensured that Jean Palmer was aware of the fact that the plaintiff was not accompanied on March 24th, 1993 when she attended for the abortion. do not find that it would be appropriate for Janet Chernin to stop the plaintiff from proceeding with the abortion without seeing the medical staff. find it reasonable that she would expect that they would deal with the driving issue. Therefore, dismiss the action against her. find that Dr. Desrosiers and Jean Palmer breached their duty of care to the plaintiff by not ensuring that they, or some staff member, advised her not to drive. believe that Dr. Desrosiers really saw nothing wrong in letting her drive assuming that the abortion was without complications. When there were no complications, he saw no reason to discuss with her the issue of her driving. He relied on the recovery room nurse to ensure that she was not exhibiting symptoms which would cause concern. find that the recovery room staff did not observe obvious symptoms of drowsiness or excessive pain and therefore let the plaintiff drive. That was consistent with Dr. Desrosiers' evidence as to what he would have looked for before letting her leave the clinic. Once again, the recovery room staff appeared to act contrary to the clinic policy that patients having an abortion should not drive after the procedure. Based on the lengthy evidence of possible complications from surgery, such as an abortion, and considering its knowledged emotional impact on all women, I find that to permit a patient to drive after an abortion was a breach of the standard of care I would expect from health care professionals providing that medical service. The argument that imposing strict standard of no driving after an abortion is somehow unfair to woman having no one to drive pales in significant to the possible repercussions of delayed reaction resulting in fainting spell. suggest that the inconvenience of insisting on patient having driver and having strict rule about that is simple solution to the problem. find that doctors and other health care professionals owe duty to patients and to the driving public generally not to permit patient who has had an abortion to go on high speed highway driving vehicle. do not believe that doctor or nurse can predict how particular woman will react emotionally to an abortion. Dr. Petrie's Discovery evidence about how young healthy football players faint when given simple injection is telling. People react differently to medical procedures. The doctors and nurses dealing with them do not know what emotional baggage patient is carrying. Outward appearance does not tell what is happening inside and therefore relying on outward appearance can be misleading and doctors and nurses should know that. believe the plaintiff here appeared recovered from the physical aspects of the abortion. The staff all agreed she looked capable of driving. believe she felt herself that she was able to drive, however, it is obvious that this was not the case and the defendants did not see what was going on within her emotionally. agree with the submission of the defendants that simply an error in judgment should not be the basis of successful negligence claim. (See Quintal v. Datta (1988), W.W.R. 461 (Sask. C.A.) and Wilson v. Swanson (1956) 1956 CanLII (SCC), S.C.R. p. 804. reject the arguments of the defendants that the opinion of Dr. Yabsley and Dr. Petrie should carry little weight because they were not qualified as experts in gynecology. believe that the procedures done by these orthopaedic surgeons on an Outpatient basis would many times mirror the issues present with woman having an abortion. That is, they would be doing medical procedure on patients having local anesthetic and possibly sedatives. believe an abortion would obviously be much more emotionally charged than an orthopaedic procedure, and therefore, would expect more concern by the gynecologist for the emotional well-being of the woman patient. do recognize, however, that orthopaedic practice, many times, would involve procedures more painful than what is present for an abortion. Based on the breach of the standard of care, find the defendants Dr. Desrosiers and Jean Palmer liable in negligence to the plaintiff and also to the plaintiffs in the second action Carol Newbury and William Edward Newbury. find no contributory negligence on the part of the plaintiff Wanda MacPhail. Damages As result of the accident on March 24th, 1993, the plaintiff suffered serious injuries. In his report filed with the Court Dr. David Petrie who treated the plaintiff outlined her injuries: ""She received number of injuries, the most major being compound fracture of her right patella and proximal right tibia, right pneumothorax, number of rib fractures, significant head injury with laceration to her forehead along with fracture of the right fourth metacarpal. After initial resuscitation in the Emergency Department, she was taken to the Surgical Intensive Care Unit for monitoring and to the operating room where patellectomy was performed because of the extensive comminution of her knee cap. The extensor mechanism was repaired. The other injuries were attended to as indicated in the discharge summary. She also had plastic surgery by Doctor W. Caines to her face and right fourth metacarpal. She has been seen and followed through the clinic, and is managing reasonably well considering the nature of her trauma. She has an extremely stiff knee unfortunately, and did manipulate it under anesthesia in an attempt to regain better range of activity. She was seen June 9, 1993 and her manipulation was carried out few days later."" She spent 10 days in the hospital and then returned home where family members tended to her nursing needs. In May, 1993, she started an extensive physiotherapy program along with an exercise program at home. The plaintiff described to the Court some serious difficulty she has had since the accident in regard to her memory. She said that she misses appointments, makes mistakes in dealing with everyday activities such as when to pick up her children or where to drop them off if taking them somewhere. She said her children have learned to deal with her memory problems and she has learned to frequently make notes to herself of things she must do. This has only happened since the accident. The plaintiff also described the constant pain she has had in her right knee. She said that she is always in pain and that the more activity she does the more pain she gets. In June, 1993, she tried to go back to work. She got part-time job with Home Care Company which involved taking telephone calls. At the time she was still on crutches. She said she really was not able to do this job because of her physical limitations and her memory problems. The job also involved more after hours calls which she did not expect. She did that kind of work for about year and was then offered supervisory position with the company. She decided not to take that position because she felt she couldn't handle it because of her memory problems. In June, 1994, she decided that she couldn't meet the physical and mental requirements for the job and stopped working. She has not worked since then and indicates that she continues to have pain in her knee. She indicates that she is aware that the medical personnel indicate that eventually she will require knee replacement, but the recommendation is that this should not take place until she is at least 50 to 55 years old. Her marriage has also broken up and she now lives alone with her four children. When Dr. Petrie reviewed her situation with her in May of 1995, he wrote to her solicitor. ""She sustained number of injuries including major right frontal laceration with an underlying skull fracture, fracture of her right 4th finger which was splinted by Doctor Caines, number of rib fractures on the right side with pneumothorax necessitating drainage, an L-shaped laceration over the left calf and then very severe compound fracture dislocation of her knee which necessitated patellectomy as well as open reduction internal fixation of her femur and proximal tibia. The hardware was subsequently removed from the knee area in September, 1994. She used crutches until June after the accident and at that time manipulation of her knee to 90 degrees was performed because of the amount of stiffness and scar tissue around the joint. She then used continuous passive motion machine as well as vigorous home therapy program, worked hard at her exercises and has been able to maintain almost 90 degrees of bend in her knee. She has been wearing right knee brace and carrying cane now for almost year. The brace does provide some stability and she has less of feeling that she is going to fall or slip. Around the house she tries to take the brace off so that she can keep her muscles moving and exercise with them. She does drive car, but has had the vehicle adjusted so it is primarily her left foot that uses the accelerator, brake, etc. Major difficulties getting up and down stairs, particularly going to the basement where her washer and dryer are located is described. She grades her activities and plans to spread out her day's work over longer period of time so she can have rest intervals in between."" Dr. Petrie then summarized his assessment of the plaintiff as of that date: ""In summary, do feel that this woman is not capable of going back to work as nurse at this point in time. concur that she is disabled to the point that she cannot ""engage in any occupation or employment for which she is reasonably suited by education, training, or experience"". also think there is an element of depression affecting her present status as she is very frustrated with the whole medical/legal progress, and the way it is dragging on, etc. think there is strong likelihood that this woman is going to end up with knee arthroplasty or artificial knee joint in the future. She is certainly far too young to consider for this procedure right now, in my estimation. Indeed, if surgery was absolutely required for pain control, would recommend fusion or knee arthrodesis. She is very reluctant to consider this as therapeutic option at this point in time and concur entirely with her in this regard. Perhaps at later date her knee function will improve to the point she could assume sedentary job although this is unlikely in my estimation. do feel she has had significant closed cerebral injury and does have significant intellectual defect primarily in the area of short term memory. would advise that she have some psychological testing in this area to establish what her intellectual cognitive disability might be at this time."" He added P.S.: “Review of xrays taken May 3, 1995 of this woman's right knee confirms the presence of severe degenerative arthritis involving the femoral condyles particularly with the absence of her patella.” Dr. Reginald Yabsley examined the plaintiff in June, 1995. He saw her only once and also did report. “I have reviewed the report of Dr. Petrie of May 4, 1994, reviewing this lady's accident, her injuries and her subsequent treatment and difficulties. am in agreement with his opinion that Mrs. MacPhail is not capable of returning to work and that she remains with permanent disability in relation to that which would seem to be possible by virtue of her training and experience. do agree that there is no further treatment indicated for her knee problem at this time, but do agree that should significant degenerative change develop or take place in her knee and depending upon her pain and her requirements that an operative procedure may well be indicated. As Dr. Petrie has pointed out, because of the difficulties with this lady's knee, knee fusion may be the treatment of choice, although that decision will have to be made if and when that time ever comes and could conceivably take the form of knee arthroplasty. In the event of the former, Mrs. MacPhail would be left with stiff, immobile knee joint which would represent considerably increased degree of disability for her. Should she undergo knee replacement, that, of course, would not provide normal knee, and its longevity would be time-related. Dr. Ross Leighton saw the plaintiff in October, 1996. He is an Orthopaedic Surgeon with special training in the area of treatment of acute trauma as well as total joint arthroplasty. In his report Dr. Leighton indicates: “IMPRESSION: feel that this patient suffered severe crush fracture injury involving her right leg, along with her other associated injuries. The other injuries have settled down in large part and she is left with chronic pain syndrome with marked weakness involving the right knee. TREATMENT: The treatment for her remains that of physiotherapy to try and gradually get her knee so it will flex further without the use of the brace in locked-stop position. think she will always need the brace on daily basis but that, hopefully, she will be able to flex it more without the continued problem of giving way, if her physio can achieve this. However, with the chronic pain type of syndrome, she may or may not be able to achieve this in the future and it would just be goal that we would try to reach. PROGNOSIS: The prognosis for her in the future is dismal. don't think she will be able to obtain an employment state. Whether she would be pain-free on day-to-day activity, of course, remains to be seen. do feel that as her knee continues to get worse the chance of requiring posterior stabilized total knee may be indicated in the future. If this happened, it would require total knee replacement with, of course, the added problems of recovery which takes about six months and the possibility that this joint could wear out. She is only 36-years of age. The other option in her situation, if she didn't last long enough to fall into the total knee category, meaning in the 50+ age group would be that of knee fusion which would make the knee stiff, but relatively painless. At this point in time she doesn't fall into this category either but it would really depend on how quickly and how severely her knee degenerated in the future. Both of these procedures would keep her out of the work force and take about six months of recovery post-op. This, of course, does not mean that this patient requires any or all of the procedures noted above, but just stipulates as to what may take place in the future if further degeneration continues.” Dr. David B. King is Neurologist and did an assessment of the plaintiff in September of 1995. He was apparently asked to investigate her to determine whether her problems with memory were as result of her head injury in the accident. In his report filed with the Court Dr. King concluded as follows: “Summary: This 35 year old woman was involved in motor vehicle accident on the 24th of March, 1993, at approximately 1340 hours. This occurred after surgical procedure at 1100, prior to which she had been give Img of Ativan. The indications are that she lost control of her vehicle but there was no evidence that she fell asleep at the wheel as she remembers seeing the other vehicle prior to the collision. It will probably always remain unknown as to why she lost control of her vehicle. She sustained number of orthopaedic injuries which have been detailed. She was confused and amnesic immediately after the accident, but within less than two hours was fully oriented and remained so throughout her stay in the VGH with no evidence of significant post-traumatic amnesia. Some time later when her orthopaedic pain had settled to some extent, she began to notice memory problems in the work place and concerns were raised about the possibility of brain injury, given her facial fractures. Interpretation of her memory difficulties was complicated by on-going orthopaedic pain, the use of medication and marital difficulties at home which had pre-dated the accident. There is no indication on mental status examination or the details surrounding her head injury of any serious brain trauma. It is my clinical impression that the difficulties that she has with her memory are largely related to her ongoing orthopaedic pain, medication usage and preoccupation with finances and marital difficulties at home.” Dr. William Stanish assessed the plaintiff at the request of the defendants' counsel. He saw her on July 31st, 1995. His report indicates: ""Based on my evaluation of July 31, 1995 of Wanda MacPhail, there is little question that this patient has had most significant injury to her right knee which has resulted in post traumatic osteoarthritis. This osteoarthritis may progress to the point that the patient feels compelled to undergo further surgery, which in the short term could include arthroscopic debridement or knee fusion. In the long term, she may require total knee arthroplasty. At this point it is my considered opinion that she is employable. Obviously the workplace (and work challenges) must be tailored to protect her right knee. Mrs. MacPhail appeared to me to be very well motivated and most eager to job retrain. She is not doing herself any personal injury by considering such venture.” Dr. Thomas Loane is specialist in Physical Medicine and Rehabilitation. He was asked to give an opinion based on medical materials provided to him including all the reports mentioned above. He did not actually interview the plaintiff. His report dated July 22nd, 1996 indicates: ""Given this level of impairment, mild restrictions in range, mild reductions in stability but ongoing muscle weakness that should respond to strengthening and alteration in bracing, continue to feel that Ms. MacPhail would not be restricted from performing work that was of sedentary, semi-sedentary or light level of effort, particularly restricting climbing, standing, prolonged walking or any activities that stress the knee. Sedentary, semi-sedentary or light work does not usually exceed the physical demands of normal activities of daily living and even more severe knee joint dysfunction can be accommodated through rigid bracing, the use of assistive devices or mobility aids. Therefore, although agree that she does have residual knee joint impairment and does have some mobility related disability, do not believe that the degree of impairment demonstrated is incompatible with employment of restricted nature. As Dr. Leighton points out, there is risk of further deterioration in the knee joint with time. However, there is also the possibility of improvement with strengthening and reducing bracing restrictions. Even with further deterioration of the knee joint to the point where rigid bracing would be required or assistive devices needed for normal mobility, continue to feel that this would not restrict her from sedentary, semi-sedentary or light work."" Findings Based on the evidence before me, find that the plaintiff has suffered some very serious injuries as result of the accident on March 24th, 1993. believe she has recovered substantially from most of the injuries except the memory problem and the injury to her knee. Clearly, she has considerable pain, and as indicated in the medical reports submitted by both parties, she will not be able to return to her work as hospital nurse. also find that it is reasonable to expect that in the future she will require knee replacement which will not take place for some time until she is over the age of 50. find that the plaintiffs mobility is severely restricted and that she continues to require the assistance of cane. also believe that the pain she experiences is as she has described and find no evidence that she is embellishing her medical problems. The plaintiff requests general damages for pain and suffering, loss of past wages and loss of future income. General Damages It is submitted on behalf of the plaintiff that based on the injuries she sustained in the accident that she should be awarded general damages for pain and suffering in the amount of $100,000.00. The defendants suggest that the range be between $25-$35,000.00. have been referred to number of cases dealing with situations similar to that of the plaintiff and while it is never easy to find case on all fours with the case before me, believe the proper award for pain and suffering considering the plaintiffs circumstances is the sum of $75,000.00. do this being aware that the plaintiffs pain is continuing and that she will have to undergo knee surgery in the future. would award pre-judgment interest of 2.5%. In making that assessment would note that have been specifically directed by counsel to the following cases: Courtney v. Neville and Losier (1995), 1995 CanLII 4486 (NS SC), 141 N.S.R. (2d) 241 (S.C.); Grant v. McSween (1990), 1990 CanLII 4212 (NS SC), 96 N.S.R. (2d) 260 (S.C.); Dauphinee v. Canada Life Assurance Company et al (1988), 86 N.S.R. (2d) 101 (S.C.); Mahon v. Nova Scotia (A.G.) et al (1986), 73 N.S.R. (2d) 137 (S.C.). Dillon v. Kelly (1996), 1996 CanLII 5605 (NS CA), 150 N. S. R. (2d) 102(C.A.); Woods v. Hubley (1995), 1995 CanLII 4280 (NS CA), 146 N.S.R.(2d) 97 (C.A.). Loss Wages At the time of the accident the plaintiff was working part-time at the V.G. Hospital in the Intensive Care Unit. She was earning $415.29 per week or $21,595.08 per year. The actuarial evidence presented on behalf of the plaintiff from Mr. Brian L. Burnell indicates that based on that income her loss of income to June 2nd, 1997 including interest thereon at rates as set out in Exhibit 15, Schedule I, would amount to $101,014.49. The actuarial evidence presented on behalf of the defendants by John Tarrel values this past loss of earnings at $100,445.00. Therefore, there is obviously no disagreement about the value of this item. Mr. Tarrel, however, factored into his calculation set-off for Section disability benefits received by the plaintiff during that period of time. These benefits were paid to the plaintiff at the rate of $140.00 per week from the date of the accident up until August 31st, 1996, at which time she accepted lump sum settlement of $30,000.00 in respect of future Section disability income benefits. That was paid to her on September 9th, 1996. Mr. Tarrel allocated from the lump sum settlement 39 weeks of benefits at $140.00 per week for the period September 1, 1996 to June I, 1997, making the total Section disability benefits attributable to the past loss period $29,241.00. He then added interest to that amount bringing it to $33,072.00 which he then subtracted from $100,445.00 leaving the sum of $67,373.00 as past loss of earnings. accept Mr. Tarrel's approach to this issue and would therefore find that the plaintiff's past loss of earnings is $67,373.00. However, would also subtract the actual earnings of the plaintiff which Mr. Burnell valued at $2,750.00 thereby leaving past loss of earnings of $64,623.00. The defendants have also advanced the argument that it was not appropriate for the plaintiff to settle her Section disability income benefit in September of 1996 at the sum of $30,000.00. The Tarrel actuarial report pointed out that $30,000.00 payment received in September of 1996, would considering the interest factor, represent five years of weekly payment. He also points out that if it was assumed she would be totally disabled until the age 65, her settlement in September 1996, should have had capitalized value of $84,700.00. The defendants therefore suggest that by accepting the lower figure they have been prejudiced and that the higher figure should be ascribed to any settlement for loss of future earnings. Support for this approach is found in the case of Dillon v. Kelly (1996), 1996 CanLII 5605 (NS CA), 150 N.S.R. (2d) 102 (C.A.). In that case, the Court of Appeal found that the plaintiff had accepted lump sum settlement which was considerably lower than the true capitalized value of the plaintiff's future Section benefits. Because of that, the trial judge accepted the capitalized value as the proper amount to be subtracted from the final settlement. This was approved on appeal. Schedule to Part VI of the Insurance Act provides as follows: “Part II Loss of Income Subject to the provisions of this Part, weekly payment for the loss of income from employment for the period during which the insured person suffers substantial inability to perform the essential duties of his occupation or employment, provided, (a) such person was employed at the date of the accident; (b) within 30 days from the date of the accident and as result of the accident the insured person suffers substantial inability to perform the essential duties of his occupation or employment for period of not less then seven days; (c) no payments shall be made for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury continuously prevents such person from engaging in any occupation or employment for which he is reasonably suited by education, training, or experience, the Insurer agrees to make such weekly payments for the duration of such inability to perform the essential duties.” interpret this section to mean that after the initial 104 week period, the claimant must establish that she is now in fact totally disabled whereas for the first 104 week period she must only prove substantial inability to perform the essential duties of her occupation or employment. Given the position of the defendants that the plaintiff is not totally disabled, have difficulty with the argument that she should not have settled for $30,000.00 in September, 1996. Also, in light of my finding herein that she is not totally disabled and has some ability to earn income, reject the submission of the defendants and find that the settlement arrived at with the Section Insurance Company was reasonable in her particular circumstances. In Dillon v. Kelly, supra, the Court found that the plaintiff there clearly had right to the Section benefits until her date of retirement and in effect had used bad judgment by accepting the low lump sum amount. In this case, the plaintiff was clearly beyond the 104 week initial period and would have to show that she qualified for the Section benefits. She was not questioned on cross-examination about why she did so, and am not prepared to second guess her decision to accept lump sum amount. (See Corkum v. Sawatsky, et al, (1994), 1993 CanLII 3135 (NS CA), 126 N.S.R. (2d) 317.) Loss of Future Earning The parties are far apart on what is an appropriate amount for loss of future earnings. The defendants acknowledge that the plaintiff cannot return to her former occupation, however, they maintain that she will be able to return to some type of work for which she will have income. On the general issue of whether she would in the future be able to earn some income, believe that she will in fact be able to generate some income for employment. believe that she wants to work, if she is able, and will probably find employment, especially when her family are little older. Her original plan was to return to full-time employment when her youngest child went to school. The child is now five years of age. Mr. Burnell used the year 2000 as the date she would be normally working full-time. believe her prospects for employment are very limited considering her physical disability and her memory problems. believe based on her good record of employment in the past, that the plaintiff would have found full-time employment on her original target date. make that finding because believe she is the type of person that would be valuable employee because of her willingness to adapt to changing working circumstances. therefore accept Mr. Burnell's approach that any calculation of her loss of future income should assume that she would return to full-time employment in the year 2000. also accept his assumption that she would not retire until she is 65 years of age. Mr. Tarrel suggests that her retirement date should be 60. While accept the fact that some people do retire before the normal retirement age of 65, see nothing in this case to make me find that the plaintiff would retire before the normal retirement age. person's decision to retire is affected by many factors and is constantly changing depending on person's personal situation. believe it is reasonable to accept normal retirement age unless there is some evidence which would indicate that particular plaintiff would not work until that age. Plaintiff's counsel has suggested that approach the question of residual future earning capacity by applying percentage reduction to earning capacity. accept that approach in this case and find that her residual future earning capacity should be set at 25% and that her future income will be reduced by 75%. Mr. Burnell in Exhibit 15, Schedule 2, valued the present value of the plaintiff’s future loss of income at $722,352.82 from which would deduct 25% whereby establishing her loss at $541,764.66. would subtract from that amount the remaining portion of the Section benefits received by the plaintiff and which were not ascribed to her past loss. The Tarrel report valued these Section benefits at $25,467.00 thereby leaving present value of future earnings at ($541,764.66 $25,467.00) $516,297.66. The plaintiff claims for future loss of pension. Her actuary values this at $104,376.00 from which is subtracted her past contribution savings of $5,455.00 and future contribution savings of $40,294.00 leaving total of $58,627.00. accept this approach as being the appropriate way to deal with her future loss of pension benefits and therefore set the loss at $58,627.00 for future loss of pension. The plaintiff through the actuarial report claims net investment and administration fee of $65,855.00. Considering the amounts of money involved in this case, would find that there should be some investment administration fee, but not at that rate. would set the investment administration fee at $10,000.00. I would therefore summarize my award as follows:1. General Damages - Pain and Suffering $75,000.002. Past loss of income - $64,623.003. Future loss of income $516,297.664. Future loss of pension $ 58,627.005. Net investment administration $ 10,000.00Total loss $724,547.66 award costs to the plaintiff and disbursements to be taxed. In light of my finding of liability against the defendants to the plaintiff, also find that the second action commenced by Carol M. Newbury and William Edward Newbury succeeds against the defendants Dr. Desrosiers and Jean Palmer, but not against Wanda MacPhail, Craig MacPhail, Susan Arsenault, or Janet Chernin. It was agreed by counsel that would determine only the liability issue in regard to the second action. J. 1994 No. 94-105822 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Wanda MacPhail -and­ Dr. Jacques Desrosiers, Janet .Chernin, Jean Palmer AND: 1995 S.H. No. 115185 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Carol M. Newbury and William Edward Newbury -and-­ Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur Defendants C.A. No. 144661 NOVA SCOTIA COURT OF APPEAL BETWEEN: DR. JACQUES Desrosiers and JEAN PALMER and WANDA MacPHAIL, CAROL M. NEWBURY, WILLIAM EDWARD NEWBURY, CRAIG MacPHAIL, SUSAN ARSENAULT and OSCAR ARSENAULT Respondents REASONS FOR JUDGMENTS BY: HALLETT, J.A.","The plaintiff had an abortion at a Halifax clinic. The plaintiff was in the recovery room for 30 to 45 minutes after the procedure, and then left. On the drive home, she was injured in a motor vehicle accident when she fainted and her car crossed the centre line of the highway and struck another vehicle. She sued three members of the clinic staff, including the doctor who performed the abortion, alleging negligence in letting her drive after the abortion. Awarding the plaintiff $724,000 for past and future loss of income, future loss of pension, and general damages, that based on the evidence of the possible complications from surgery such as an abortion, and considering the emotional impact of an abortion on all women, the defendants breached their standard of care as health care professionals in permitting the plaintiff to drive after the abortion.",5_1997canlii866.txt
210,"LANE J.A. 2000 SKCA 99 Docket: C.A. 7335 THE COURT OF APPEAL FOR SASKATCHEWAN Cameron J.A. in Chambers. and HER MAJESTY THE QUEEN COUNSEL: Mr. B. Hrycan for the applicant Mr. W.D. Sinclair for the respondent DISPOSITION: Application for Release Heard: September 13, 2000 Application Dismissed: September 13, 2000 (oral) Application Dismissed By: The Honourable Mr. Justice Cameron CAMERON J.A. The applicant was convicted in July of 1997 of several offences, consisting in the main of sexual offences involving members of his family and others close to him. In consequence he was sentenced to five years in prison. He then appealed against his convictions, and the Crown appealed against his sentence. On September 16, 1998, this Court dismissed his appeal against conviction. At the same time it allowed the Crown's appeal, in effect increasing the sentence from five to ten years. Throughout, the applicant was represented by senior counsel, Mr. S. Halyk Q.C. The applicant decided not to seek leave to appeal to the Supreme of Canada on the advice of Mr. Halyk and then on the further advice of Dean MacKinnon. Some two years later he changed his mind and applied to the Supreme Court for an extension of time to apply for leave and for leave to appeal, raising some grounds of appeal for the first time. That application is now pending before the Supreme Court and is likely to be determined in the next three or four months. In the meantime the applicant wants to be released from custody. In the circumstances, and as a purely practical matter, I think the application for release is premature. say that because it is fraught with difficulty as it stands at the moment, because its complexion would change appreciably should the Supreme court extend the time and grant leave to appeal on one or two of the comparatively stronger grounds, and because the application pending before the Supreme Court will be determined shortly. Moreover, and more importantly, particularly as a matter of principle having regard for the requirements of section 679(3) (a) and (c), I am not satisfied that the prospective appeal as a whole is not frivolous and that the applicant\'s continued detention for the time being is not necessary in the public interest. The less say the better about the merit of the many grounds of appeal upon which the proceedings rest. Suffice it to say that in my judgment some are clearly destined for failure, as for example, is the ground the Court of Appeal erred in failing to give reasons for its judgment. Others are less so, perhaps—and here have in mind the two or three grounds upon which counsel for the applicant relied most heavily, including the issue concerning corroboration-but, even then, they do not cut to all of the convictions, but only some, nor to the entirety of the sentence. Furthermore, and to a significant extent, the new grounds of appeal are difficult to assess in their entirety, given the material before me. On the basis of that material, which is incomplete, I am not convinced the grounds relied upon have sufficient merit to satisfy the requirements of clause (a) of the section. Turning to the public interest, I think the present release of the applicant would be inimical to the public interest, having regard for the whole of the circumstances. To do so, in my judgment, would tend to undermine public confidence in the administration of justice, given the history of the past proceedings, the current state of the present proceedings, and unlikelihood, as Isee it, of the applicant succeeding either in having all of the convictions set aside or in having the sentence reduced to the time already served. For essentially these reasons—though I expanded upon them in argument, and in my oral disposition of the application—I decided to dismiss the application for release, without prejudice to further application should leave be granted to appeal to the Supreme Court of Canada on one or more of the grounds raised in the proceedings.","See also 150 SaskR 185.In 1998 the Court of Appeal dismissed the applicant's sentence appeal and appeal of his 1997 convictions which consisted primarily of sexual offences involving family members and others. The sentence of imprisonment was increased from 5 to 10 years. The applicant, on advice of two counsel, did not initially seek leave to appeal to the Supreme Court of Canada. He changed his mind 2 years later and sought an extension of time to apply for leave and for leave to appeal. The applicant brought an application for release from custody pending the SCC's decision. HELD: The application was dismissed without prejudice to reapply should leave to appeal be granted. 1)The application was premature. The application pending before the SCC was likely to be determined within 3 to 4 months. The Court of Appeal was not satisfied the appeal as a whole was not frivolous having regard for the requirements of s.679(3)(a) and (c). Some grounds for appeal would clearly fail such as the ground the Court of Appeal erred in failing to give reasons for its judgment. The new grounds of appeal were difficult to assess on the basis of the incomplete material before the court. 2)His continued detention was necessary in the public interest having regard for the whole of the circumstances. His release would undermine public confidence in the administration of justice.",2000skca99.txt
211,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 265 Date: 2017 09 11 Docket: Crim 32 of 2016 Judicial Centre: Melfort BETWEEN: HER MAJESTY THE QUEEN and NORMAND MARC JOSEPH LAVOIE Counsel: Tyla R. Olenchuk for the Crown Michael D. Nolin for the accused SENTENCING DECISION DOVELL J. September 11, 2017 A. Introduction [1] On May 3, 2015, shortly after 4:00 p.m., tragedy occurred within construction zone on Highway No. in the Province of Saskatchewan approximately eight kilometres south of Spalding, Saskatchewan. Three innocent teenagers in small Cobalt vehicle lawfully stopped at the side of the highway under construction were senselessly killed when their vehicle was struck in the rear by semi‑truck driven by Normand Lavoie. young flag person standing near their vehicle was severely injured. [2] The function of the Court at this time is to sentence Normand Lavoie. That sentence must be just and fair and be consistent with previous judicial decisions in this jurisdiction, if at all possible. The Court is well aware that no sentence will relieve the families of the pain they have endured and are enduring and may well continue to endure for the rest of their lives or the deep remorse Normand Lavoie has as “the boys faces are tattooed in his brain”. There is no remedy for the total destruction caused as result of Normand Lavoie’s inattention for whatever reason as he drove his huge heavy semi‑trailer through the construction zone on that fateful day over two years ago. There is really nothing that the Court can do to remedy what has happened. It cannot be remedied. The only thing the Court can do is to sentence Normand Lavoie in accordance with the objectives and principles of sentencing as contained within the Criminal Code, RSC 1985, C‑46. [3] To the families of Carter, Kristian and Justin, the Court wants to express its sincere heartfelt condolences. The Court is very much aware of the pain you have and are experiencing as expressed within the victim impact statements read in court. That pain is palpable, but as we all know the one thing all of you really want, being the return of Carter, Kristian and Justin, just cannot happen. B. The Charges [4] On May 30, 2017, Normand Marc Joseph Lavoie pled guilty to the following offences: Count #1: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Justin Gaja, contrary to Section 249(4) of the Criminal Code of Canada. Count #2: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Carter Stevenson, contrary to Section 249(4) of the Criminal Code of Canada. Count #3: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Kristian Skalicky, contrary to Section 249(4) of the Criminal Code of Canada. Count #4: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused bodily harm to Samuel Fetherston, contrary to Section 249(3) of the Criminal Code of Canada. C. Agreed Statement of Facts [5] Counsel for the Crown and defence filed an Agreed Statement of Facts which provided: 1. On May 3, 2015, Carter Stevenson (hereafter referred to as “Carter”) age 17, Kristian Skalicky (hereafter referred to as “Kristian”) age 15, and Justin Gaja (hereafter referred to as “Justin”) age 14, were on their way home from football camp. 2. On Highway 6, approximately km south of Spalding, SK, they came upon construction zone. Their vehicle, white Chevrolet Cobalt (hereafter referred to as “the Cobalt”), was stopped behind Ram 1500 half ton which was towing trailer with quad on it (hereafter referred to as “the Ram 1500”). 3. Both vehicles were stopped by flag person Samuel Fetherston (hereafter referred to as “Sam”). He had started work as flag person on May 1, 2015 and was wearing bright green construction‑style clothing with hard hat and stop sign. pilot vehicle operated by MacKenzie Cairns was leading traffic through the work area and had just finished bringing group of southbound vehicles through. 4. The construction zone had started 1.6 km south of the scene, with the following signage at 100m intervals (See photos of signage): a. Electronic sign board with the message: Asphalt crack sealing next 10 km/6 am to pm b. Orange “Workers Present” sign c. White “No Passing” sign d. Orange “Be Prepared to Stop” sign (this sign was located on its side after the collision and it is undetermined as to when it was knocked over) e. White “Maximum 60 km/h Fines Triple” sign f. Orange “Flag Person” sign 5. The accused, Normand Lavoie, was operating semi unit, travelling northbound. He was hauling foam insulation panels. He entered the construction zone at normal highway speeds and did not reduce his speed according to the signage. 6. When the semi unit impacted with the Cobalt, it was travelling at minimum speed of 84 km/h. 7. The semi unit impacted the rear of the Cobalt, which pushed it into the back of the Ram 1500. The Ram 1500 was thus pushed across the center of the roadway and impacted the pilot vehicle on the southbound shoulder (see [photo of] final rest positions). During this, the Ram 1500 struck Sam and he was thrown into the northbound ditch. 8. Carter, Kristian, and Justin were killed on impact. The Cobalt was crushed (see photo of Cobalt). Sam sustained broken left collarbone, broken left clavicle and broken left humerus. He lost the use of his spleen and continues to experience short‑term and long‑term memory loss. 9. At 1622 hours, Melfort RCMP Officers were advised of the collision. When members arrived, STARS ambulance was treating Sam and he was airlifted to Saskatoon. 10. The accused had been told by eyewitnesses to stay in his vehicle after the collision. He was later transported to Melfort Hospital. His dog, which was in the cab, was taken to Melfort veterinary clinic. 11. RCMP seized the accused’s log books, which were analyzed by the Highway Traffic Board. There were no issues noted in relation to hours of work or distances covered to indicate fatigue. 12. Cpl. Doug Green, forensic accident reconstructionist, had attended the scene of the collision and determined that the cause of the collision was the actions of the accused. He failed to recognize the stopped vehicles in the active construction zone and to allow sufficient distance to bring his vehicle to safe stop before colliding with the rear of the Cobalt. 13. Normand Lavoie was arrested and returned to Melfort. He provided warned statement to Cst. Shmyr on August 27, 2015. 14. During that statement, when asked what was happening prior to the collision, he stated that “with it being Saskatchewan, it’s flat and kind of just go into auto pilot”, which he indicated would have impacted his reaction time. He could not recall entering the construction zone or seeing the construction signs and assumed he would have been travelling at 100 km/h. 15. When asked if he had been distracted by his dog in the cab, the accused stated “all remember is heard... like was in just, you know, auto pilot cruising and heard something ... don’t want to say snapped me out of it but you know what mean? And then looked back quickly [at the dog] and then turned back and there’s the back end of the car.” 16. The accused attended for sleep analysis after the collision and was diagnosed with mild apnea. During the analysis, he stated in relation to the collision, he could not recall falling asleep. In the diagnosis, the doctor stated that it was not clear if the collision was related to hypersomnolence, but that the accused did admit having felt drowsy in passive situations. 17. During his warned statement, after disclosing the mild apnea, Cst. Shmyr asked “were you sleeping or were you tired?” and the accused replied “No”. He clarified that to him, auto pilot means “you’re keeping the thing on the road” and that “you’re just kind of in lala land, basically I’m there behind the wheel but I’m not.” When asked second time if he was tired or sleeping, he told Cst. Shmyr “I’m definitely tired but wasn’t sleeping. didn’t fall asleep behind the wheel.” D. Additional Facts Admitted by Counsel [6] In addition to the facts as contained within the Agreed Statement of Facts and/or by way of clarification, counsel agreed that this tragic incident occurred shortly after 4:00 p.m. on May 3, 2015. [7] The six signs referred to within paragraph of the Agreed Statement of Facts, and attached in the photographs, were all within the first 600 metres of the construction zone, 100 metres apart in the order in which they are depicted in the pictures. In other words, the electronic signboard with the message “Asphalt crack sealing next 10 km/6 am to pm” was the first sign within the construction zone and the remaining five signs, 100 metres apart, were within the first 600 metres of the construction zone before the location where the collision occurred. [8] The Court has no evidence as to what activity there was, if any, within the construction zone either on the highway or adjacent to the highway other than those six signs within the first 600 metres of the construction zone to the accident scene 1.6 kilometres into the construction zone. That would include whether or not there were any workers or work equipment either on the highway or adjacent to the side of the highway. [9] The speed limit within the construction zone was 60 kilometres per hour. There were no skid or brake marks prior to the actual collision site as between the Cobalt and Normand Lavoie’s semi‑trailer. [10] The injuries sustained by Sam Fetherston as contained within paragraph of the Agreed Statement of Facts and, in particular, broken left collarbone and broken left clavicle are the same injury. In other words, left collarbone and left clavicle as listed within paragraph are one and the same. Crown counsel did not have any medical reports to substantiate any of the injuries sustained by Sam Fetherston, including his claim to having short‑term and long‑term memory issues. [11] There is no suggestion whatsoever that alcohol and/or drugs were involved in this tragic accident. [12] There is no evidence that Normand Lavoie had ever travelled on Highway No. in the Province of Saskatchewan before May 3, 2015, and, in particular, had ever driven through the construction zone south of Spalding, Saskatchewan, within which this fatal accident occurred. E. Criminal Record of Normand Lavoie [13] The criminal record of Normand Lavoie was marked as Exhibit P2. There is only one conviction, that being for driving with more than 80 mgs of alcohol in his blood pursuant to s. 253(b) of the Criminal Code in Steinbach, Manitoba, on September 20, 2001. Although driving abstract was not filed, counsel confirmed that his driving record was totally clean and that he had no previous driving offences other than the .08 he obtained sixteen years earlier. F. Pre‑sentence Report [14] The 20‑page thorough pre‑sentence report dated August 14, 2017, prepared by Probation Officer Andrew Vergara and endorsed by the area director designate, Patrick Cortino, was filed as Exhibit C1. The report, having been prepared by Manitoba Justice, did not include any input from the victims as we usually see within pre‑sentence reports prepared in Saskatchewan; however, the Court is totally satisfied that it has sufficiently heard from the victims in this matter. That was accomplished during the sentencing hearing when the family members, and in particular, the mothers of the three teenage boys, gave their victim impact statements. [15] The pre‑sentence report filed with the Court contains detailed information regarding Normand Lavoie, including his upbringing and his present situation. There were eighteen sources of information used in the preparation of the report which covered his criminal history and attitude, family/marital, education and employment, alcohol/drug use, companions, leisure/recreation, supplementary information and Manitoba Corrections Assessment and Recommendations. Manitoba Corrections completed Level of Service/Case Management Inventory [LS/CMI] on August 8, 2017, and Normand Lavoie was assessed as low risk to re‑offend. The significant criminogenic risk factor identified for him was education/employment. The other factors which may be important for case management included mental health, trauma counselling and finances. G. The Offender [16] At this time, Normand Lavoie is 41 years of age, married and has three children, one being autistic. As result of these criminal charges, he is uninsurable as truck driver and will, in the future, have to retrain. Following the accident, he has suffered from post‑traumatic stress disorder and has been diagnosed with “mild apnea”. It is important to note that prior to the accident, sleep apnea was not an issue for Normand. [17] Normand is extremely remorseful for the catastrophic situation he has caused as a result of his unexplained inattentiveness. Although he became truck driver initially primarily as result of his losing his mother and grandmother in an accident involved semi‑truck when he was 18 years of age, he now believes that because of this tragedy, he has failed in his efforts to make it right by becoming responsible truck driver. For the most part Normand, since obtaining his A‑1 driver’s license in 2009, has been responsible truck driver; he having clean driving abstract. Although he has been unemployed since February 2017, for the vast majority of his life he has been gainfully employed and respectable law‑abiding member of society. He has been out on recognizance since May 2015 without any suggestion of any breaches of his conditions of release. H. Victim Impact Statements [18] Section 722(1) of the Criminal Code provides: Victim impact statement 722(1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. [19] The victim impact statements were compelling, and the pain expressed by the three mothers, in particular, was palpable. [20] First, we heard from Shelley Enns, the mother of Carter Stevenson, who was seventeen years of age at the time of his death. She has not set foot in the grocery store she and Carter went shopping at in preparation for their football camp weekend more than two years ago. In concluding her two‑page victim impact statement, she wrote, “To Carter am still wearing my ‘Mom glasses’. love you so much”. picture of Carter and Shelley’s victim impact statement, as well as the victim impact statements of Carter’s brothers Cody and Rhett, Carter’s step –dad Norm Enns, and letter from Carter’s teacher to the Enns family dated August 18, 2015, were marked collectively as Exhibit P3. [21] Second, we heard from Lisa Skalicky, the mother of Kristian Skalicky, who was fifteen years of age at the time of his death. Within her victim impact statement, she described Kristian as very spiritual young man who had written in an essay in January 2015 entitled “Is there master of the plan or are we masters of the plan?”: “Life is like game of cards. Your deck is determined but the way you play them is free will.” That is like God, he will give you the cards and give you good cards at the start but it’s your choice which path to go down. God gives us the choice but at the same time he is the master of our plans. If you want him to he leads you to greatness and happiness. [22] The pain Lisa has endured as result of the loss of Kristian has resulted in her leaving her home as “it was just too hard to continue living there”. Lisa’s victim impact statement and picture of Kristian were marked collectively as Exhibit P4. [23] Lastly, Crystal Gaja, the mother of Justin Gaja, who was fourteen years of age at the time of his death, read her victim impact statement. She described how Justin was very structured and always came home for lunch. She would stand at her kitchen window and watch for him. As soon as she could see him coming through the trees, she knew it was time to get his food on the plate. Some days she still stands at her window and watches. She wrote: “The trees are still there, so is the path, but my son is not.” [24] In closing her victim impact statement, she wrote: Because my love for my son will always remain, so will the pain. Losing my son is not wound that time heals, it is life sentence. The day that now look forward to is the day that take my last breath here on earth. Because that will be the only day that all the pain, tears, sadness and sorrow will finally be gone, forever. [25] picture of Justin, Crystal’s victim impact statement and the victim impact statements of Justin’s aunt April Buyaki and Justin’s grandmother Betty Richardson were marked collectively as Exhibit P5. [26] Although Sam Fetherston was not in attendance at the sentencing hearing, his two victim impact statements were marked collectively as Exhibit P6. I. Section 726 of the Criminal Code Statement of Normand Lavoie [27] Section 726 of the Criminal Code provides: Offender may speak to sentence 726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. [28] At the conclusion of the sentencing hearing Normand Lavoie made the following statement: Okay. To the families of Carter, Kristian, Justin and Sam, what happened to you is inexplicable and should never have happened. should never have been on that road. You know, as strange as it may sound, know exactly how you feel. Because my mom and grandma were actually taken by truck driver as well. And since then, it's been my driving force to make sure that what happened to me, doesn't happen to anybody else. Unfortunately, failed catastrophically in that aspect. There is nothing can say, there's nothing can do now. Your boys, from what heard, were wonderful boys, and there's not day that goes by that doesn't hurt me. Every night spend, can barely sleep at night. And all think of, all see was that accident. never saw their faces, but have since seen their faces through the media and gotten their names, and will never forget them. You know, contemplated taking my life once or twice because of it, but have family of my own that needs me. And me going to jail isn't going to bring them back. These past two years have been really stressful on my family and myself. But am fully prepared for what's to come. I've made my peace with what's to come. haven't driven the truck since, nor do plan on returning to the truck, because can't do it anymore. There's no way. There's no way can do it. That in itself is the anguish and trauma that go through every day with reminders of big trucks going by, construction crews on the road. Even coming out here from Winnipeg, couldn't do the drive. Cynthia had to do all the driving, because couldn't do it. Long distances scare the hell out of me now. And, yes, do understand that what did was wrong. did something wrong. It was not intentional, it was an accident, it was accidental. have condition that didn't know that had at the time. That it caught up to me. Because it being undiagnosed, it just accumulation [sic] which resulted in what happened, and yes, am at fault. admit that, but did not do this intentionally. Now, if you could find it in your hearts to maybe someday forgive me. It doesn't have to be now, or it can be 20 years from now. completely understand the anger, the frustration, vengeful feelings that you have for me, because I've been there too. I've never met the driver that killed my mom and grandma, and not to mention almost took my little brother, too, but please understand that am truly, deeply sorry for your losses, and that will never forget them. Their pictures are seared seared, tattooed in my brain. I'm never going to forget them for the rest of my life. May God and you have mercy on me. J. Position of the Crown [29] It was the position of the Crown that the Court should impose sentence of six years imprisonment in federal institution. In addition, the Court should impose nine‑year driving prohibition pursuant to s. 259(2) of the Criminal Code, ten‑year s. 109 of the Criminal Code firearm prohibition Order, secondary DNA Order pursuant to s. 487.051 of the Criminal Code and victim surcharge pursuant to s. 737 of the Criminal Code of $800.00 payable forthwith and in default eight days consecutive to the six‑year sentence. K. Position of the Defence [30] It was the position of the defence that the Court should impose sentence of two years plus one day in federal institution. The defence agreed that ten‑year s. 109 of the Criminal Code Order is appropriate but did not take any position with regard to the length of driving prohibition pursuant to s. 259(2) of the Criminal Code or the secondary designated offence DNA Order requested by the Crown. The defence agreed that the victim surcharge of $800.00 pursuant to s. 737 of the Criminal Code should be payable forthwith and in default period of eight days to be served consecutively to the penitentiary sentence. L. Sentencing Provisions of the Criminal Code [31] This decision must be guided by the purposes and principles of sentencing as contained within ss. 718 to 718.2 of the Criminal Code. Purpose 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Fundamental principle 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating and mitigating circumstances relating to the offence or the offender ... nan (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. M. Analysis [32] In sentencing Normand Lavoie, the Court has considered all of the purposes and principles of sentencing as contained in ss. 718 to 718.2 of the Criminal Code. [33] In dangerous driving cases, however, denunciation and deterrence play significant role in maintaining public confidence in the administration of justice. [34] Although this Court in 2015 made the point in Dunford, 2015 SKQB 386 (CanLII), 92 MVR (6th) 26, that sentences in dangerous driving cases must deter others from driving dangerously, particularly in highway construction zone, we keep getting situations in which individuals are convicted of dangerous driving within those construction zones. This must stop. Not only truck drivers driving huge heavy “death machines” but all drivers of all vehicles driving in construction zones must follow the law and reduce their speed and drive attentively. Just too many things can go wrong. Construction zones are very dangerous places to be in for everyone, both the construction workers and the occupants of every vehicle that enters that construction zone. [35] In addition, Normand Lavoie’s unlawful conduct must be denounced. Cpl. Doug Green, forensic accident reconstructionist, determined that the cause of the collision was the actions of Normand Lavoie. He failed to recognize the stopped vehicles in the active construction zone and to allow sufficient distance to bring his vehicle to safe stop before colliding with the rear of the Cobalt in which Carter, Justin and Kristian were occupants. [36] The fundamental principle of sentence being proportionate to the gravity of the offence, as well as the degree of responsibility of the offender, must also be considered by the Court in sentencing Normand Lavoie. [37] Lastly, the additional sentencing principles as outlined in s. 718.2 of the Criminal Code, including aggravating and mitigating factors in this case, and similar sentences which have been imposed for similar offences committed in similar circumstances must be considered by the Court. To the greatest extent possible, parity must be accomplished considering other sentences imposed for individuals convicted of dangerous driving causing death and causing bodily harm. In seeking that parity, the totality principle must also be applied by the Court in determining what the ultimate sentence will be for multiple counts as contained within an Indictment related to the same incident. This is an intricate process that must be crafted with great care by the sentencing judge in determining what the ultimate sentence should be. very difficult task for any judge especially when it involves the death of multiple individuals. [38] In this case, although Normand Lavoie is Métis, defence counsel advised that there are no Gladue factors (R Gladue, 1999 CanLII 679 (SCC), [1999] SCR 688) that need to be addressed by this Court pursuant to s. 718.2(e) of the Criminal Code. Notwithstanding counsel’s position, the Court has taken note of the Gladue information as contained within the pre‑sentence report filed with the Court. [39] The Crown presented spread sheet of 21 cases but indicated that it was, in particular, relying upon the following eight cases. Those eight cases include: (a) Bagri, 2017 BCCA 117 (CanLII), MVR (7th) 219; (b) Dunford, 2017 SKCA (CanLII), 345 CCC (3d) 374; (c) Reynolds, 2016 SKQB 21 (CanLII), 94 MVR (6th) 195; (d) Fedan, 2014 BCSC 2586 (CanLII); (e) Regier, 2010 ONSC 1963 (CanLII), 93 MVR (5th) 264; (f) Ernst, [2006] AJ No 949 (QL) (Alta QB); (g) Fitt, 2011 ONCJ 223 (CanLII), 14 MVR (6th) 246; and (h) Rij (1993), 44 MVR (2d) 299 (Ont Ct J). [40] Although the Crown candidly admitted that it had no authority to support its request for term of imprisonment of six years, she believed that such sentence was warranted primarily as result of the three deaths and severe injuries to fourth victim at the hands of professional driver within construction zone on Saskatchewan highway. [41] The defence provided the Court with 19 cases, of which there were two Saskatchewan cases which overlapped with the cases that were provided by the Crown. [42] Sentences for dangerous driving are very diverse. Although cases were provided to the Court which resulted in community‑based sentence, those cases are of limited benefit to the Court as that is not allowable or, indeed, appropriate at this time. It is, however, useful to point out how historically dangerous driving causing death cases have been dealt with in the past by the courts. [43] Both the Crown and defence counsel are requesting that the Court sentence Normand Lavoie to penitentiary sentence. The Court agrees that penitentiary sentence is appropriate considering the tragic facts of this case. At this juncture, the Court wants to make it crystal clear that it is not sentencing Normand Lavoie to penitentiary term so that he can be near his family; the Court is sentencing him to penitentiary term as it is appropriate to do so and has nothing to do about accommodating his possibly being near to his family. [44] Of the eight cases provided to the Court by the Crown, there were only two Saskatchewan cases: Reynolds, which resulted in sentence of eighteen months and eighteen months’ probation; and Dunford (CA), which confirmed the trial judge’s sentence of two years less day. The Reynolds case involved the death of two people in head‑on collision in fog on Saskatchewan highway. Mr. Reynolds was professional driver working at the time of the accident. The Dunford case involved the death of young pregnant flag woman when she was struck by vehicle driven by Mr. Dunford within construction zone in southern Saskatchewan. Although Mr. Dunford was professional driver, he was not working at the time of the accident. [45] Although neither counsel provided the Court with Saskatchewan dangerous driving causing death case in which penitentiary sentence was imposed, the Court is aware of the Belly, 2011 SKCA 88 (CanLII), case in which the Court of Appeal confirmed the joint submission made to the sentencing judge of 3½ years. The issue on appeal was the length of the driving prohibition order imposed, which the Court of Appeal reduced to ten‑year driving prohibition. The Belly case, however, is of limited assistance as it was joint submission regarding one count of dangerous driving causing death and involved an accused whose license was suspended at the time of the accident. [46] The remaining cases provided by the Crown resulting in penitentiary sentences from two and half years to six years were not Saskatchewan cases. Of particular assistance to the Court was the recent decision of Bagri. While confirming that in dangerous driving cases protection of the public through general deterrence and denunciation are paramount considerations for the Court, the British Columbia Court of Appeal also confirmed how difficult dangerous driving sentencings are as there are never two cases exactly the same. [47] In that case, the British Columbia Court of Appeal, at paragraph 25, stated: [25] The role of this Court on sentence appeal is limited, in recognition of the unique role of the sentencing judge and the discretionary nature of the exercise. That is clearly so in dangerous driving cases, where so much hinges upon an appreciation of the many factors in sentencing. As noted in Bosco [2016 BCCA 55]: [40] The factual circumstances of dangerous driving cases tend to vary widely. That being so, the range of appropriate sentences is quite broad. Factors such as the offender’s age, the circumstances of the accident, the duration of the dangerous driving, the existence or absence of criminal record, the degree of deviation from driving norms, the particulars of the highway and its use and driving conditions are all relevant factors for consideration. Although other cases provide helpful guidance, determining fit sentence in dangerous driving case is particularly fact‑sensitive exercise: Sadler, 2009 BCCA 386 (CanLII) at para. 34. [48] Mr. Bagri was sentenced to three years imprisonment. He was 45‑year‑old professional driver who had failed to adequately check the brakes of the truck he was driving at brake check stop and proceeded down hill on highway resulting in head on collision killing four persons. The Court found that his actions in failing to check the brakes were evidence of intentional risk‑taking and that stated at paragraph 6: [6] The trial judge concluded that, on the totality of the evidence the appellant was driving in dangerous manner. His conduct “was not momentary lapse of attention”. On all of the evidence, “including that of Mr. Bagri’s actual state of mind, failing to stop at brake check, driving large heavy truck in the oncoming lane of busy wet highway, through sharp curve on steep downhill grade, in excess of the posted advisory speed past some five cautionary or warning signs in the 0.7 kms prior to the collision scene”, the appellant’s conduct amounted to marked departure from the requisite standard of care. [49] Mr. Bagri was professional driver, as is Mr. Lavoie. Professional drivers were also involved in the Rij case and the Ernst case. The Rij case resulted in five‑year penitentiary sentence; however, Mr. Rij denied responsibility for the offence, resulting in the necessity of trial after which he was convicted of dangerous driving causing death. He had significant criminal record, including two previous dangerous driving convictions. At paragraph of that decision, the Court stated: [5] do not regard the facts relating to the offence of which the accused has been convicted as the worst possible case. However, find in all the circumstances in the evidence in this trial it is on the cusp of being the worst possible case and find this despite the fact that there was no evidence of alcohol consumption impairment or excessive speed. The accused is professional driver. He was driving five ton truck. He was acquainted with the intersection and think it can be judicially noted that the intersections in certain areas of this jurisdiction are heavily travelled. ... The accused, as professional driver being acquainted with the subject intersection, had to be aware of that. For whatever reasons, he went through red light. There was no evidence that he attempted to stop. characterize those particular facts as being on the leading edge of the worst case of the offence in question. In his submissions counsel for the accused took issue with the Crown's word “deliberate”. It may be question of semantics but it is my view on the evidence which was found as fact in this trial, the accused intended to run the traffic lights at the intersection. As indicated, this is not question of momentary lapse or inattention. He intended to run that intersection with the consequent risk to the safety of others on the highway and as events transpired, to the tragic results in this case. [50] The Ernst case resulted in 2½‑year penitentiary term. Like Mr. Lavoie, Mr. Ernst pled guilty avoiding the necessity of the trial. Although he had criminal record for driving‑related offences, including alcohol use, he, like Mr. Lavoie, had the support of his family. Mr. Ernst was also professional driver who knew that his trailer had no brakes and that the heavy nature of the load would require additional stopping time. His driving included erratic weaving in and out of traffic for some time, and there was no rational reason for his ultimately going through red light other than he was overtired. His actions resulted in the death of one person. [51] The only case that has resulted in six‑year sentence is Regier, which sentence was rendered following five‑day trial during which time Mr. Regier testified. He had three prior Criminal Code convictions and 25 highway traffic convictions. The accident involved “aggressive high speed” and resulted in two deaths and one individual seriously injured. At paragraph 10, the Court noted: [10] The defendant’s driving record discloses 25 highway traffic convictions over the past 28 years, including two further charges after the current charges came before the court: careless driving, and improper lane change when he almost caused an accident. note that when he was stopped by the police on Highway 17 with regard to the careless driving charge, he had driven past the place of the collision giving rise to the convictions currently before the court, and within four days of its second anniversary. [52] And at paragraph 18: [18] The defendant was speeding at the time of the collision between 110 and 120 Km/Hr. The speed limit was 90 Km/Hr. His driving at the time was needlessly aggressive and included very high speeds prior to the collision. Were this merely an isolated serious error in Judgment, it would not be an aggravating factor. However this was not isolated. It was more than an error in Judgment, and carried with it high degree of moral blameworthiness. [53] And lastly, the Court’s inability to accept Mr. Regier’s testimony or remorse was canvassed at paragraph 28: [28] While the defendant accepted responsibility for the collision, his explanation for how the collision came to happen was not accepted. And in fact it wasn’t true. therefore give little weight to the defendant's acceptance of responsibility. reject the defendant's submission that he is remorseful. Remorse is meaningless unless it carries with it some acknowledgement of wrongdoing. Otherwise it is just words. The defendant contends in submissions that he finds he can’t even drive past the place of the accident because he finds himself so overwhelmed. Yet almost two years to the day after the collision in question, just before being stopped by the police and then charged with careless driving, he drove right past the place of the accident on highway 17. reject that submission, and give no weight to the expressions of remorse. [54] Unlike the Court rejecting Mr. Regier’s remorse, the Court totally accepts Mr. Lavoie’s deep and sincere feelings of remorse. Although the Crown argued that Mr. Lavoie was minimizing his moral blameworthiness and was deflecting responsibility for the accident, the Court is not prepared to accept any such suggestions. The Court accepts that Mr. Lavoie, to this day, simply does not know what occurred that caused him to go into “la‑la land” or go “into autopilot” as he travelled Highway No. 6, other than the flat Saskatchewan prairie. There were no issues with his log book, which was analyzed by the Highway Traffic Board presumably with view to determining if he had been travelling too long without break to rest. He thinks he was travelling at highway speed, which would have been 100 kilometres per hour; however, the accident reconstructionist’s opinion is that Mr. Lavoie’s semi‑trailer was travelling at 84 kilometres per hour at the time of the collision. Although he cannot remember traveling that 1.6 kilometres from the beginning of the construction zone or seeing the six construction signs, something was going on in that the speed of the semi‑trailer would appear to be slowing down, although we will never know for sure. What we do know is that there were no steps taken by him to brake or avoid the collision as it was “just there”. [55] There are multiple aggravating and mitigating factors that the Court must consider in this matter. The aggravating factors include:(a) by far the most aggravating factor is the death of three innocent teenagers and the serious injury of a fourth person, a 22‑year‑old flag person;(b) the devastating impact the death of these three teenage boys has had on their families;(c) Normand Lavoie was a professional driver and, thus, capable of exercising more skill and vigilance;(d) the fact that a larger, heavier vehicle was involved, requiring more care; and(e) the accident occurred within a construction zone. [56] The mitigating factors include:(a) Normand Lavoie consented to his committal to trial in Queen’s Bench and pled guilty, accepting full responsibility for this horrific accident;(b) Normand Lavoie’s sincere and profound remorse;(c) alcohol and/or drugs were not a factor in this accident;(d) Normand Lavoie had a clear driving abstract for driving offences and a dated minimal criminal record;(e) Normand Lavoie is a low risk to re‑offend in the future; and(f) Normand Lavoie has the continued support of his family and community. [57] As previously indicated, no sentence will bring back Carter, Kristian or Justin or make it right for their families. While certainly realize that all of the families believe they have been handed “life sentences”, in reality Normand Lavoie has sentenced himself to “life sentence”. There is nothing that this Court can do that would surpass the penalty Mr. Lavoie has already handed down to himself. [58] The best the Court can do, unfortunately, is to consider the objectives and principles of sentencing, the aggravating and mitigating factors of this case and similar sentencing results for similar convictions for dangerous driving. Unfortunately, for the families sentencing is not perfect science but the best the law has to offer. N. Conclusion [59] Mr. Lavoie, would you please stand. [60] Considering all of the objectives and principles of sentencing as contained within s. 718 of the Criminal Code, including, in particular, denunciation and deterrence, both the aggravating and mitigating factors associated with this tragic occurrence, the principles of parity and totality and the voices of all of the victims involved in this matter, I sentence you with regard to Count No. 1, namely, dangerous driving causing the death of Justin Gaja, to a term of imprisonment of three years to be served in a federal institution. [61] As to Count No. 2, being dangerous driving causing the death of Carter Stevenson, I sentence you to a term of imprisonment of three years to be served in a federal institution concurrent to Count No. 1. [62] As to Count No. 3, being dangerous driving causing the death of Kristian Skalicky, I sentence you to a term of imprisonment of three years to be served in a federal institution concurrent to Count No. 1 and Count No. 2. [63] As to Count No. 4, being dangerous driving causing bodily harm to Samuel Fetherston, I sentence you to a term of imprisonment of one year to be served in a federal institution concurrent to Counts No. 1, 2 and 3. [64] Pursuant to s. 259(22) of the Criminal Code, you are prohibited from operating a motor vehicle on any street, road or highway or other public place for a period of five years following your release from imprisonment. [65] There shall be ten‑year mandatory firearm prohibition order pursuant to s. 109 of the Criminal Code. You shall be prohibited for ten years from your release from prison of possession of any firearm, other than a prohibited firearm or restricted firearm, and any cross‑bow, restricted weapon, ammunition and explosive substance. [66] As these charges are secondary designated offences, there shall be an order pursuant to s. 487.051(3) of the Criminal Code in Form 5.04 for the taking of bodily substances from yourself for the purpose of DNA analysis. The Court has concluded that it is in the best interests of the administration of justice to make this DNA order considering the factors as contained within s. 487.051(3) of the Criminal Code, including the nature of the offences, the circumstances surrounding their commission and the impact such an order would have on your privacy and security of your person. [67] Additionally, pursuant to s. 737 of the Criminal Code, order victim surcharge of $800.00 to be paid forthwith, failing which impose sentence in default of payment of eight days to be served consecutively to the global sentence have imposed of three years. “M.L. Dovell” J. M.L. Dovell","The accused was found guilty of three counts of dangerous driving causing death, contrary to s. 249(4) of the Criminal Code, and one count of dangerous driving causing bodily harm, contrary to s. 249(3) of the Code. During his employment as professional truck driver, the accused had driven into construction zone on highway and hit another vehicle that had been stopped. The three teenage occupants of the vehicle were killed and flag person was severely injured as result of the collision. The accused was sure that he had not been asleep at the time of the accident but felt that he had not been paying attention. He had not noticed any of the signs posted at 100-metre intervals after the start of the construction zone 1.6 km south of the accident. The accused was 41 years of age. He had obtained his A-1 driver’s licence in 2009 and had clean driving abstract. He was married and had three children. He had recently been diagnosed with mild sleep apnea. He expressed remorse to the victim’s families and suffered from post-traumatic stress disorder.| HELD: The accused was sentenced to three years in imprisonment on the first count and three years concurrent for the second and third counts, and one year concurrent to the other counts on the fourth count. He was prohibited from operating a motor vehicle for five years and from possessing a firearm for 10 years after his release from imprisonment. The aggravating factors in the case were that the accused’s inattentiveness caused the death of three people and severely injured another person. The impact of the children’s deaths was devastating on their families. The accused was a professional driver and capable of exercising more skill and vigilance, especially when he was operating a semi-trailer truck in a construction zone. The mitigating factors were that the accused pled guilty and expressed profound remorse. He had not been drinking and had a clear driving record. The accused was at low risk to re-offend.",e_2017skqb265.txt
212,"J. 2001 SKQB 50 F.L.D. A.D. 2000 No. 143 J.C. W. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF WEYBURN BETWEEN: HOWARD LESLIE MERRILL PICKERING and SANDRA ARLENE MOORE (Formerly known as SANDRA ARLENE PICKERING) RESPONDENT D.G. Bobbitt, Q.C. for Howard Leslie Merrill Pickering N.M. Drew for Sandra Arlene Moore JUDGMENT GUNN J. January 29, 2001 [1] Howard Pickering (""Howard"") applies to vary the order of Matheson J. of the Court of Queen's Bench of Alberta by extinguishing his maintenance arrears from January 12, 1993 to the present and for an order eliminating any further obligation to pay maintenance for his children. HISTORY OF THE PROCEEDINGS [2] The parties married November 30, 1974 and divorced October 15, 1992. There were two children of the marriage: Cary Stephen Pickering, born April 9, 1975 and Tyler Scott Pickering, born April 12, 1979. The parties executed separation agreement October 3, 1991 wherein they agreed to joint custody of the children and in the event both children were living with one of the parties that the ""non-custodial"" parent pay maintenance of $175.00 per month per child to the ""custodial"" parent. This agreement was confirmed in the judgment of Matheson J. on September 14, 1992. [3] Initially each of the parties had one child in their custody and pursuant to their agreement and the divorce judgment, no maintenance was payable. From and after November 1992, Sandra Moore (""Sandra"") had both children living with her and maintenance was then payable by Howard in the sum of $4,200.00 per year. Sandra registered the divorce judgment with the Maintenance Enforcement Office in Alberta in January 1993. [4] Howard says he has experienced depression and unemployment over the past number of years. He declared bankruptcy in July 1994. According to the records provided, Howard's income for the relevant time periods is the following: 1992 $48,000.00 1993 20,265.00 1994 3,952.00 1995 (social assistance) 3,254.00 1996 5,488.00 1997 17,579.00 1998 21,086.00 1999 29,079.54 [5] The payments made during those years reflected in documents from the Maintenance Enforcement Office in Alberta are the following: 1993: 4,368.00 1994: 1,666.84 1995: 392.98 1996: 1997: 213.86 1998: 2,794.87 1999: 4,917.93 2000: 3,152.00 [6] Up to and including August 18, 2000 Howard is in arrears of payment of $13,693.52. [7] Cary graduated from University of Calgary in July of 2000 with degree in Chemistry. He is now pursuing degree in education with an expected graduation date of April 2003. Sandra says he was financially dependent on her during his university years. Tyler is currently attending the Alberta College of Art and Design with an expected completion date of April 2002 and is still financially dependent on Sandra. However, on March 31, 2000 Sandra wrote to the Alberta Maintenance Enforcement Office to advise them that effective that date she was no longer seeking any ongoing maintenance for the children. She did, however, wish to receive the arrears in payments. Both children have significant student loans, and Sandra says she would use any arrears received to help reduce the student loans for her children. [8] At the time of the agreement, Howard earned $48,000.00. By 1993, the first year in which he was required to pay total of $4,200.00 his income was only 42% of his 1992 income. However, he actually paid little in excess of his required payment that year. In 1994, 1995 and 1996 his income had dropped to 8%, 6% and 11% of his 1992 income. In those years he paid 39%, 9% and 0 of his required maintenance. In 1997, Howard's income improved somewhat. He earned 36% of his 1992 income, but paid only $213.00 or 5% of the maintenance owing. In 1998 he earned 43% of his 1992 income and paid 66% of his required support. In 1999 he earned 60% of his 1992 income and paid 117% of his required support. [9] Based on the original order, the arrears are substantial. However, it is clear that the circumstances, and Howard's ability to pay, changed substantially during the term of the order. He would, on the basis of the evidence filed, have been entitled to apply for variation of the order long before this. Sandra does not dispute the income earned or the payments made during the relevant years. [10] In all of the circumstances there will be an order eliminating the arrears of payment from January 12, 1993 to the present. There will also be an order terminating any ongoing obligation for support based on Sandra's representations to the court and her letter to the Alberta Maintenance Enforcement Office.","The father applied to vary the Alberta order by extinguishing his maintenance arrears from January 1993 to the present and for an order eliminating any further obligation to pay child support. The parties married in 1974 and divorced in 1992. They agreed to joint custody of their two children in their 1991 separation agreement. One child was expected to graduate in 2002 and the other in 2003. The father said he suffered depression and was unemployed for several years. HELD: Arrears from 1993 were eliminated. He paid 39, 9 and 0% of the required support in 1994, 1995 and 1996 when his income dropped. He paid 5% in 1997, 66 in 1998 and 117% in 1999. Any ongoing obligation was terminated in view of the mother's letter to the Alberta Maintenance Enforcement Office and her representations to the court that she was no longer seeking support.",d_2001skqb50.txt
213,"S.C.R 122. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 151 Date: 2013 04 19 Docket: J. No. of 2011 Judicial Centre: Saskatoon BETWEEN: GOVERNMENT OF SASKATCHEWAN (VICTIM SERVICES BRANCH) and HER MAJESTY THE QUEEN and JAKE OTTERTAIL Counsel: Michael J. Morris for the applicant, Government of Saskatchewan (Victim Services Branch) Valerie A. Adamko and Jaimie L. MacLean for the respondent, Her Majesty the Queen Morris P. Bodnar, Q.C. for the respondent, Jake Ottertail DECISION DOVELL J. April 19, 2013 [1] Jake Austin Lee Ottertail is charged that he did: ... between the 6th day of August, A.D. 2010, and the 7th day of August, A.D. 2010, at or near Saskatoon, Saskatchewan, did: unlawfully cause the death of Bert Haverkort, and did thereby commit second degree murder, contrary to Section 235 of the Criminal Code. [2] The applicant, Government of Saskatchewan, Victim Services Branch, has brought a motion before myself as the trial judge for an order permitting a live audio/video broadcast of the trial of this matter set to proceed on April 29, 2013, from a Court of Queen’s Bench courtroom in Saskatoon, Saskatchewan, to a courtroom in a court house in the Greater Toronto area, Ontario, for the exclusive benefit of the family of Bert Haverkort, deceased. Although that trial originally was set for three week jury trial, in all likelihood the trial will not take that long as Mr. Ottertail re-elected to be tried by Queen’s Bench judge alone on April 18, 2013. [3] The respondent, Her Majesty the Queen, has consented to the draft order filed by the applicant and the respondent, Jake Austin Lee Ottertail, has taken no position regarding the application presently before the Court. [4] While the Court has great sympathy for the family of Bert Haverkort and understanding of their plight in not being able to attend all or none of the trial for personal reasons including financial, the Court has concluded that it must dismiss this application due to the serious concerns it has in granting the order being requested. [5] This application is both novel and unprecedented. Saskatchewan has developed protocol for accommodating the participants of the trial process including witnesses, lawyers and the judges within the trial process by way of video conferencing. The Court was presented with no case authority in which court has ever made an order allowing video conferencing for the benefit of specific non-participating persons within Saskatchewan let alone another province. This believe is for several very good reasons. [6] First, although this Court certainly has inherent jurisdiction to govern its own process within its own court within the Province of Saskatchewan, this Court has no jurisdiction to make any orders involving facilities and personnel in the Province of Ontario. It is being suggested that the Victim Services Branch in Ontario would be responsible for ensuring that whatever order the Court may make is complied with including the exclusion of cameras and recording devices. It is being suggested that only approximately 12 family members would be allowed in the courtroom in Ontario and that the Ontario Victim Services personnel would be policing those requirements. What would they do if member of the public wanted to observe the trial? What would happen if family member did not comply with any order made by this Court? The questions go on and on. As well, technical personnel would be required in Toronto to ensure the audio/video feed is connected properly on daily basis. The Court is not prepared to accept the argument of the applicant that courtroom in Toronto where only Bert Haverkort’s family would be in attendance is just an extension of the courtroom in Saskatoon. It is distinct courtroom in another province over which this Court has no jurisdiction or control. [7] Second, the Court is very concerned about the possible ramifications of granting such an order as being requested in this matter. If the Court was to allow this application a dangerous precedent would be set that could potentially result in multiple applications being made in future trials by numerous interested parties throughout the country or indeed the world claiming an inability to attend a court proceeding and asking that they be linked by a live audio/video feed. The Court has concluded that to grant this application would certainly open pandora’s box to which there would be no control and would not be in the interests of the administration of justice. [8] The Court realizes that the family of Bert Haverkort will be very disappointed with this decision and that indeed is regrettable, however, the Court has the responsibility of ensuring that administration of the trial process is fair and within the rule of law. The application is thus dismissed. J. M.L. DOVELL","The applicant, the Government of Saskatchewan Victim Services Branch requested an order permitting a live audio broadcast of the trial of the accused from a courtroom in Saskatoon to a courtroom in Toronto for the exclusive benefit of the family of the deceased victim. The accused took no position. HELD: The Court dismissed the application. Making an order for video-conferencing for non- participating persons was not permitted because the Court had no control over the policing of the courtroom in Ontario. It would set a dangerous precedent that could result in multiple applications being made in future trials by numerous interested parties in different jurisdictions over which the Court had no control.",b_2013skqb151.txt
214,"CANADA PROVINCE OF NOVA SCOTIA 2000 Case #965266-268 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus Jessica Dale KNOX TRIAL DECISION HEARD BEFORE: The Honourable Judge Michael B. Sherar, JPC PLACE HEARD: Halifax Provincial Court #2 DATES HEARD: January 19th, 2001 CHARGE: That she, on or about the 17th day of October, 1999 at or near Halifax, in the County of Halifax, in the Province of Nova Scotia did Have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug, and thereby caused death to Joan Jeanette LITTLE, contrary to s.255(3) of the Criminal Code; And furthermore, AT THE SAME TIME AND PLACE AFORESAID, did unlawfully cause the death of Joan Jeanette LITTLE by criminal negligence in the operation of motor vehicle, contrary to s.220 of the Criminal Code; And furthermore, AT THE SAME TIME AND PLACE AFORESAID, did have the care or control of a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol or a drug, and thereby caused bodily harm to Raelee KANE, contrary to s.255(2) of the Criminal Code. COUNSEL: Darrell H. Martin, for the Prosecution Stanley W. MacDonald, for the Defence Jessica Dale Knox stands charged that on the 17th day of October 1999, at or near Halifax in the County of Halifax, Province of Nova Scotia she did: Have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug and thereby caused death to Joan Jeanette Little contrary to s.255(3) of the Criminal Code; AND FURTHERMORE AT THE SAME TIME AND PLACE AFORESAID, did unlawfully cause the death of Joan Jeanette Little by criminal negligence in the operation of motor vehicle contrary to section 220 of the Criminal Code; AND FURTHERMORE AT THE SAME TIME AND PLACE AFORESAID, did have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug and thereby caused bodily harm to Raelee Kane contrary to section 255(2) of the Criminal Code. At the conclusion of the trial, crown counsel did not seek conviction on the second count of the information; i.e., criminal negligence causing death contrary to section 220, and that charge was dismissed. Viva voce evidence on the two remaining counts was heard on December 13th and 14th, 2000; the Court reserved decision at that time until January 19th, 2001. In the interim, counsel for both parties submitted post-hearing briefs to the Court for its consideration. Jennifer Purdy, 21-year old friend of the accused Jessica Dale Knox, testified that on the evening of October 16th, 1999 she and Jessica drove into Halifax from Terrence Bay in white Corsica motor vehicle. They arrived at the Green Street residence of Denise Hodge around 10:00 p.m. She did not recall taking alcohol to the premises or whether she and Ms. Knox consumed any alcohol at the residence before leaving to attend downtown establishment called the Pacifico. She estimated some six to seven people were in attendance at Ms. Hodge’s apartment, including Ms. Hodge and male friend from the United States called Phil. Ms. Knox’s car was left on Green Street and the group walked to the Pacifico. Ms. Purdy stated the accused had vodka and Sprite at the Pacifico. Ms. Purdy and Ms. Knox walked together to another nightclub called the Palace arriving at 1:30 a.m. and staying until close at 3:30 a.m. She stated she did not drink at the Palace but that the accused, Jessica Knox, ordered beer and set it aside, not drinking. After leaving the Palace they further walked to an area known as the ‘Pizza Corner’, had soft drink and pizza. After 30 to 45 minutes they hired rickshaw to take them back to Green Street. Part way to their destination Jessica Knox, in fact, propelled the rickshaw herself. According to Ms. Purdy, at no time to that point did Ms. Knox have any difficulty in speaking, standing or walking. Ms. Purdy and Ms. Knox arrived at Ms. Hodge’s apartment one-half hour after leaving ‘Pizza Corner’ and with some difficulty, gained admittance. Ms. Hodge met them and Jessica Knox woke up “Phil” who had been visitor of Ms. Hodge’s. Ms. Purdy further states that Phil and Jessica Knox each had beer from the fridge. Ms. Purdy and Phil continued to drink all through the early morning hours until 11:00 a.m. the next day. Ms. Purdy felt that Jessica Knox only had one beer and remembers her leaving the apartment at a.m., which was one-half hour after Denise Hodge had already left the apartment. Ms. Purdy didn’t leave with Ms. Knox because she didn’t know the former was about to depart. Ms. Purdy noted that she was with Jessica Knox all night and Ms. Knox did not sleep at any time they were together. Denise Hodge confirmed that Jessica Knox and Jennifer Purdy showed up at her apartment on Green Street on the evening of October 16th. She recalls they brought six-pack of beer with them. The seven persons at her apartment drank before they went downtown, but she can’t specifically recall if Jessica Knox drank alcohol there or later at the Pacifico. The group departed together for the Pacifico at 10:00 p.m. and Ms. Hodge left the Pacifico in the company of Phil and two others at 1:00 a.m., arriving home at 1:30 a.m. Ms. Hodge felt she herself was intoxicated upon her arrival home. She estimates that at 4:30 a.m. Jennifer Purdy and Jessica Knox arrived at her residence and one-half hour later she overheard voices in her living-room. Phil was having drink with Jessica Knox and Jennifer Purdy. Ms. Hodge tried to get back to sleep but was kept awake. Ms. Hodge observed Ms. Knox spill beer when she tried to sit in rather wobbly rattan chair. She later heard glass break and saw Jessica Knox picking up some glass in the kitchen. Ms. Hodge felt Ms. Knox was very tired and thought she had too much to drink, though she didn’t see her drinking. By 6:00 a.m. on the morning of October 17th Ms. Hodge had had enough of Ms. Purdy, Ms. Knox and Phil sitting around talking. Accordingly, Ms. Hodge left to see her own mother at 7:30 a.m. By the time Ms. Hodge returned to her apartment at 9:00 a.m., Ms. Knox and the white Corsica motor vehicle were gone. Later that morning, after receiving phone call, Ms. Hodge drove out to the Prospect Road to view the scene of the accident involving Ms. Knox. There is no evidence as to the whereabouts or activities of Jessica Knox between 8:00 a.m., when she left Ms. Hodge’s apartment, and 11:00 a.m., the approximate time of the car accident in which Ms. Knox was involved. It is admitted by the defence that the accused, Jessica Knox, was the operator of white Corsica motor vehicle bearing Nova Scotia license plate B2M 469. It is further admitted that as the result of her operation of that motor vehicle, the death of Joan Jeanette Little occurred on October 17th, 1999 and that also bodily harm was caused to Raelee Kane. At approximately 11:00 a.m. on October 17th, 1999 Carolyn McLeod was driving her mother towards Peggy’s Cove. Her mother was visiting Halifax to attend Carolyn’s graduation convocation. Carolyn McLeod noticed white car, some five car lengths ahead of her, go over the centre line of the highway by few inches for approximately 20 seconds. The white vehicle was not speeding, but upon crossing the centre line it came into collision with oncoming traffic travelling in the proper lane and thus causing an accident. The oncoming car went left into ditch. Prior to this, Carolyn McLeod had not taken any particular notice of the white car; it had not been weaving on the roadway nor had it been driven erratically. The road had been clear and the sun was not problem in driving. Ms. McLeod did not notice the driver of the white vehicle but when that vehicle crossed the centre line momentarily, it appeared that the operator of the vehicle did nothing to avoid collision. The road at this point had slight curve though she described the highway itself, as curvy in general. Ms. McLeod did not see the white car collide with second oncoming vehicle until she came up to the scene of the collision. Mrs. Mary Ann McLeod was passenger in the car driven by her daughter, Carolyn McLeod. She noted white vehicle, five car lengths ahead, drift over the centre line for ten seconds or possibly less and felt terrified there would be collision. She hadn’t noted any erratic operation of the white vehicle prior to seeing its tires going over the centre line, nor did she note any braking or swerving of the car to avoid oncoming traffic. She estimated that none of the vehicles involved, including the car she occupied, was speeding. Mrs. McLeod could not see the oncoming cars prior to the accident because of the distance they were ahead. She and her daughter attempted to render assistance to those injured. Mrs. McLeod noted that the driver of the white car appeared unconscious after the accident. Amber Rolfe was passenger in vehicle driven by her boyfriend. Her car was behind the McLeod vehicle travelling in the same direction outbound from Halifax on the Prospect Road. She knew that they were following two cars for period of time, but she was not concentrating on the road and was more interested in talking to her boyfriend. Her attention was drawn to the white car (the Corsica operated by Ms. Knox) when she noticed the driver gradually slump her head down to the right, slow movement consistent with somebody reaching for something. At that point, the white vehicle went over the centre line some one to four feet. The white car hit the first oncoming car, spun, hit the vehicle again and then hit second car. The oncoming cars were in the proper lane. Ms. Rolfe felt that the Knox vehicle went over the centre line as it was going around turn and not on straight portion of the highway. It is acknowledged that the first car hit by the Knox vehicle was occupied by Mrs. Joan Jeanette Little and that the collision caused her death. The second vehicle damaged by the Knox vehicle was operated by Ms. Raelee Kane, who suffered bodily harm as result. Ms. Kane was able to testify and stated she was the owner of Green Ford Escort, license number CRT 254. She was driving from Hatchet Lake to her grandmother’s residence in the company of her two young daughters. She indicated she had stopped at service station for five minutes at 11:00 a.m. Five or six minutes later, while she drove in her proper lane, she heard loud noise and noted something white coming towards her. Prior to this she had not been aware of any cars in front of her. The impact drove her vehicle into ditch on the opposite side of the highway. Ms. Kane’s two daughters sustained bruises. Ms. Kane suffered broken left jaw and left chest injury. She had surgery to drain her joint. She still takes physiotherapy for her jaw and chest and requires anti-inflammatory medications. Constable Gerry Todd, police officer for 24 years, was the accident investigator. He has had training in accident reconstruction. He attended the accident scene the day of the incident and noted the weather was clear and sunny and the pavement dry. From his observations, he concluded there was no indication of braking by the Knox vehicle prior to the point of impact. The collision took place on curve in the highway though he didn’t measure the degree of the curve. He estimated the contact point between the Knox and Little vehicles occurred 1.5 meters from the centre line in the lane properly occupied by the Little vehicle. Mr. Lawrence Chard inspected the three vehicles involved in the accident. He is certified mechanic and motor vehicle inspector for many years. In his opinion, no mechanical failure of any of the three cars caused or contributed to the accident; however, the Plymouth Caravelle, operated by the late Mrs. Little, had been badly rusted. He estimated the driver would have sustained less injuries were it not for the lack of structural integrity of the Little motor vehicle. Ms. Knox was transferred from the accident scene to the QEII Health Sciences Centre in Halifax in an unconscious state. Upon her arrival, she received medical attention. The parties agreed that the testimony of Jean Schneider, R.N., adduced during voir dire hearing reported in [2000] N.S.J. No.426 regarding the admissibility of certain evidence, could be admitted as part of the evidence of this trial. Nurse Schneider testified that on October 17th, 1999 she was nurse at the QEII Health Services Centre Emergency Department. At approximately 11:00 or 11:30 a.m., the department received word that at least one victim of motor vehicle accident would be arriving for treatment. Jessica Knox was admitted and the trauma team was called together. Nurse Schneider acted as the charting nurse for the team. Ms. Knox was unconscious and steps were taken to refit breathing tube in her to ensure she had good airway. Nurse Schneider gathered five vials and passed them to Nurse Dawn Gavin who drew blood from Ms. Knox, filling the five vials. Nurse Gavin indicated that she cleaned the area where she pricked Ms. Knox’s skin to obtain the blood sample with 70% Isopropol alcohol swab. Ms. Knox’s arm was still wet when she made the single puncture. She then drew five tubes of blood. It took approximately 30 seconds to minute in total time. She was of the opinion that she filled the red‑stoppered vials last. The parties agreed that Nurse Schneider recorded the taking of blood from Ms. Knox at between 12:10 and 12:15 p.m. on October 17th and that the vials of blood she sent for analysis all contained samples of the blood of Jessica Knox. Nurse Schneider immediately requisitioned series of tests on four of the vials. Later, upon approaching Ms. Knox who was still unconscious, Nurse Schneider noticed smell of alcohol. Upon informing one of the attending physicians of her observation, request and requisition was made to the hospital laboratory personnel to do an alcohol analysis of the contents of the remaining red‑stoppered vial of blood at approximately 1:30 p.m. Patrick Higgins, laboratory technician with the QEII Health Science Centre, testified he has held that capacity at various Halifax hospitals for the past 22 years. On October 17th, 1999 he was the laboratory technician on duty and he carried out an analysis of Ms. Knox’s blood. He had extensive experience in carrying out ethanol analysis using the equipment in the laboratory. The reading produced as result of the test was 47 millimoles of ethanol per litre of blood. He was of the opinion that the presence of 70% Isopropol alcohol solution on the skin at the site of the blood extraction would produce very low interference in the test results. He noted that the test was specifically calibrated to detect ethanol as compared to alcohol generally. His review of the control equipment and materials used in the testing process indicated the test was conducted properly because the results were inside the expected range. Notes from the testing procedure indicated: “Ethanol values up to mmol/l may be due to background interferences. Values up to mmol/l are not conclusive indicia that the person has ingested alcohol.” The final crown witness was Lori Ann Campbell, civilian employed in the RCMP Forensic Lab in Halifax. Counsel for both parties agreed that she had the requisite training and expertise to offer opinion evidence in the areas of consumption, absorption and elimination of alcohol in the human body and the effect of alcohol on the body. Ms. Campbell interpreted the Hospital Laboratory Report of 47 millimoles of ethanol per litre of blood to be the equivalent of 216 milligrams of alcohol per 100 millilitres of blood serum which she shortened to 216 milligrams per cent. The parties agree that the hospital laboratory analysis is derived from blood serum rather than whole blood. Ms. Campbell was presented with hypothetical containing the following facts: blood was drawn from person at 12:10 p.m. to 12:15 p.m. and no alcohol had been ingested within one-half hour prior to an accident occurring at 11:10 a.m. to 11:25 a.m., and no alcohol had been ingested after the accident and prior to blood being drawn, and blood serum was analyzed rather than whole blood. Based upon those hypothetical facts, Ms. Campbell offered the opinion that the blood alcohol level of person at the time of the accident would be between 180 to 220 milligrams per cent. In her opinion, person who operated motor vehicle with that amount of alcohol in their body would be intoxicated. She was of the further opinion that such person would exhibit slurring of speech; they would be staggering, unsteady. The vehicle would be weaving. The operator would have double vision, blurred vision and their peripheral vision would be impaired. If that person was suffering from lack of sleep, the amount of impairment would be more pronounced and compounded. It was furthermore Ms. Campbell’s opinion that impairment by alcohol ingestion for most persons starts at 20-30 milligrams per cent An experienced drinker would experience impairment at 50 milligrams per cent, but even chronic drinker would exhibit impairment if their alcohol ingestion amounted to ‘90 to 100' milligrams per cent. On cross examination, Ms. Campbell provided the opinion that the average elimination rate for alcohol in human body was from 10 to 20 milligrams per cent per hour. Exhibit #6, the Hospital Toxicology Report on Ms. Knox, purported to contain two test results: (a) at 1310 hours the reading was 47 millimoles per litre; and (b) at 2140 hours reading of less than millimole per litre, which was within the range of background interference for the test equipment itself. Ms. Campbell agreed that all things being equal, that would result in an elimination rate of 22.5 milligrams per cent per hour if the alcohol was eliminated at the time of the second test; i.e., 21:40 hours. If the alcohol had been eliminated earlier, then of course greater elimination rate would have to be assumed, putting Ms. Knox’s elimination rate further outside that of the population norm. It was suggested by defence counsel that Ms. Knox’s elimination rate was either abnormal or that the initial analysis of her blood alcohol was inaccurate. On redirect, Ms. Campbell indicated that blood transfusions and their timing may or may not have affected the later readings. Due to the paucity of information regarding the treatment given Ms. Knox in the intervening time between the initial blood alcohol test and the steps taken to obtain the second sample, recorded in Exhibit #6, very little if any weight can and should be given to the second reading. In point of fact, it is possible that the second sample may not be an analysis of sample of the blood of Ms. Knox, but rather of some other patient. In any case, based upon the evidence at trial, subject to cross-examination, and mindful of the decision of the Ontario Court of Appeal in R. v. Redmond (1990), 1990 CanLII 10971 (ON CA), 54 C.C.C. (3d) 273, it is the opinion of this Court that the initial reading of Ms. Knox’s blood alcohol level at 12:10 p.m. to 12:15 p.m. on October 17th, 1999 was accurately recorded as the equivalent of 216 milligrams of alcohol in 100 millilitres of blood. Counsel for the defence elected not to call evidence. The question remains what if any notice, can the Court adduce from the blood alcohol reading of Ms. Knox at 12:10 to 12:15 p.m. on October 17th, 1999 or the purported extrapolation of that blood alcohol reading back to the time of the operation of the vehicle by Ms. Knox at approximately 11:00 a.m. of the same day. The onus is on the crown to prove the elements of the remaining offences before the Court beyond reasonable doubt. Since the Accused has admitted to being the operator of the white Corsica motor vehicle at the time that vehicle came into collision with the vehicles operated by Joan Jeanette Little and Raelee Kane, the Court must determine if the accused was impaired by alcohol or drug in her ability to operate the white Corsica motor vehicle. In R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, (the Ontario Court of Appeal) affirmed by the Supreme Court of Canada, 1994 CanLII 94 (SCC), [1994] S.C.R. 478, the Court held that the offence of impaired operation or impaired care and control of motor vehicle contrary to s.253(a) of the Criminal Code is made out by proof of any degree of impairment from slight to great. There is no requirement of proof of marked departure from normal behaviour. Impairment is an issue of fact which the trial judge must decide on the evidence. If evidence of impairment is so frail as to leave the trial judge with reasonable doubt, then the accused must be acquitted. In R. v. Andrews (1996), 1996 ABCA 23 (CanLII), 104 C.C.C. (3d) 392, the Alberta Court of Appeal reviewed the Stellato (supra) case in decision wherein leave to appeal to the Supreme Court of Canada was denied, p.106 C.C.C. (3d) vi. At p.399 of the Court of Appeal decision, Conrad J.A. states: Stellato approves the principle that conviction on charge of impaired driving can be founded on proof beyond reasonable doubt of slight impairment of the ability to drive. If the ability to operate motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked. The Court must not fail to recognize the fine, but crucial distinction between “slight impairment” generally and “slight impairment of one’s ability to operate motor vehicle.” Every time person has drink, his or her ability to drive is not necessarily impaired. It may be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread needle. The question is not whether the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree by alcohol or drug. In considering these questions, judges must be careful not to assume that where person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. The corollary to that is the Court’s finding that where the proof of impairment consists of observations of conduct in most cases and where the conduct is slight departure from normal activity, it would be unsafe to conclude beyond reasonable doubt that the ability to drive was impaired by alcohol. In R. v. Laprise (1996), 1996 CanLII 6000 (QC CA), 113 C.C.C. (3d) 87, the Quebec Court of Appeal in case involving impaired driving causing death, considered how the crown could establish that the driver of motor vehicle was impaired: (a) testimony of witness as to the characteristics of the accused’s driving; (b) inferring the accused’s condition from the usual indicia of impairment such as smell of alcohol, glassy eyes or unsteadiness by the accused on his feet, inability to walk white line; or (c) results of breath, urine or blood test. At p.5 of the QuickLaw citation, the Court continues when referring to the test results: However, while such results may corroborate the observations of the police officer as to the cause of the decrease in one’s ability to drive, it does not permit on its own an inference as to the amount of alcohol consumed or its effects, except where an expert has established correlation between the result and the possible impairment of one’s faculties. The Courts do not take judicial knowledge of these facts (R. v. Thomas (1992), 1991 CanLII 3293 (QC CA), R.L.318). The Court further continued: It is clearly established that in cases of impaired driving causing death it is sufficient that the accused’s condition contributed to the smallest degree to the death. The crown need not demonstrate that the decrease in the accused’s ability to drive is the only cause of the victim’s death or the victim’s injuries. The most salient evidence the crown adduced was the blood alcohol reading taken from Ms. Knox’s body at the hospital close to one hour after the motor vehicle accident. The forensic crown expert was of the opinion that at the time of the taking of the blood sample from Ms. Knox’s body, she had reading equivalent to 216 milligrams of alcohol per 100 millilitres of blood. She attempted to extrapolate that reading back to the time of the motor vehicle accident. As previously noted, she assumed two facts as part of the hypothetical presented to her: (1) no alcohol had been ingested one‑half hour prior to the accident; and (2) no alcohol had been ingested after the accident and prior to the blood sample being drawn. The defence objects to the admission of the opinion of the forensic expert as to the blood alcohol in the body of the accused at the time of the accident because those underlying assumptions have not been proven by the crown. In similar case, R. v. English, [1982] A.J.#241 (1986), 1982 ABCA 198 (CanLII), 47 Alta.L.R.(2d), 372 (the Alberta Court of Appeal) was of the opinion: It seems to me to be fundamental that the party introducing opinion evidence based upon hypothetical facts has the burden of establishing those facts in evidence...having asked the witness to rest his opinion on that fact, it was for the crown to prove the fact, not for the accused to rebut it... The burden of proof of the foundation facts lies upon the party seeking introduction of opinion evidence... Since there was no evidence at the trial to prove the fact assumed, the expert evidence of extrapolation had no probative value. This is not to put upon the crown the burden of anticipating and refuting any defence that might be raised. It is simply to require the crown to prove the foundation of its own opinion evidence as prerequisite to that evidence having any probative value at all. Without that foundation, there was no valid opinion evidence to be met by the defence... It is not the law that party may present opinion evidence based on unproven facts and call upon the other side to disprove the assumption. In the present case there is no evidence as to the actions or whereabouts of the accused for some three hours prior to the accident. The crown witnesses did not even take note of the driving of the accused until some mere seconds before the collision occurred. There is no evidence to account for the pattern of alcohol intake of the accused for at least the three hours prior to the accident. It is possible that she ingested large amount of alcohol into her body within half hour of the accident which remained unabsorbed in her system at the time of the accident. With respect, however, to the consumption of alcohol by the accused subsequent to the accident and prior to the blood sample being taken, that appears to be highly unlikely. The first witnesses on the scene describe Ms. Knox as unresponsive and unconscious and she apparently remained so until the blood samples were taken from her body at the hospital. In R. v. Clark, [1995], S.J.#566 Gerein, J. of the Saskatchewan Court of Queen’s Bench, reviewed R. v. English (supra) and other decisions. She quoted with approval R. v. Abbey, 1982 CanLII 25 (SCC), [1982] S.C.R. 24 at p.46: “Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.” In addition, Judge Gerein reviewed R. v. Nelson (1982), 216 Sask. R. 391, where there also was lack of proof that there was no large consumption of alcohol immediately before the time of driving or no intervening drinking between the time of the driving and the time of the test. The Court of Appeal in Nelson (supra) determined the trial judge was correct in determining that since there was no basis in fact for two of the experts’ assumptions, then the opinion was not properly before the Court and of no evidentiary value. In the Clark (supra) case, the facts established that the accused had been drinking between 3:00 p.m. and 6:05 p.m. At 6:05 p.m. he was described as inebriated, but not stumbling. He was observed in store between 6:35 p.m. and 6:40 p.m. and described as drunk once again. He was seen to drive away from the store and an accident occurred at 7:20 p.m. some 31 kilometers from the store. No alcohol or alcohol container was found on the accused or in his car. The accused was removed from the scene to hospital and blood sample was taken. The crown was not allowed to introduce the evidence of an expert attempting to extrapolate the blood test results back to the time of the accused driving because the factual underpinnings of whether alcohol had been ingested by the accused within one-half hour prior to the driving had not been proven. similar result occurred in R. v. Reutow, [1992] 38 M.V.R. (2d) 189; R. v. O’Hara, [1989] O.J.#2675; and R. v. Bangs, [1992] O.J.#3734. Close to home in R. v. Lacey (1992), 111 N.S.R. (2d) 348, the Nova Scotia County Court upheld the determination of Judge Clyde MacDonald of the Provincial Court. An expert was required to interpret two breathalyzer readings made within 14 minutes of each other. The expert attempted to extrapolate backwards the breath test results, but admitted that he did not know whether the accused had consumed significant amount of alcohol within one-half hour prior to the time of driving. Accordingly, the opinion evidence was not allowed to be considered. Finally, in R.v. Snyder, [1997] N.S.J.#435, Her Honour Judge Crawford entered an acquittal where in that case the Court held there was no evidence before the Court to prove the expert’s assumption that the accused had not consumed alcohol in the half hour prior to his involvement in motor vehicle accident. Her Honour arrived at three conclusions upon reviewing many of the cases considered by this Court and previously cited herein. At p.7 of her decision, she concluded: (1) The burden is on the crown to prove all of the assumptions on which its expert opinion is based; (2) Proof can be by direct evidence or indirect evidence; for example, to the effect that any other assumption is such remote possibility or so unreasonable that it need not be considered; (3) Where there is neither direct evidence of such an assumption nor any evidence as to the remoteness or unreasonableness of the alternative assumptions, the crown will be taken not to have proven the assumption and the value of the expert opinion will be diminished accordingly. The second conclusion Her Honour reaches is based upon review of several cases wherein the crown has asked the expert to provide an opinion as to how much alcohol the accused would have had to ingest within one-half hour of the driving or accident (and thus be undigested at the time) which would correlate to the blood alcohol reading subsequently generated and at the same time produce result at the time of driving that would have the accused under the legal limit for alcohol consumption. If the quantum of alcohol based upon given evidence of the physical dimensions of the accused, etc. was unbelievably high, then the factual assumption could be proven by this indirect means. This Court does not have to take that possibility under consideration since that opinion evidence is not before the Court. The crown makes reference to the Ontario Court of Appeal decision in R. v. Grosse (1996), 107 C.C.C. (3d) at p.97, leave to appeal to the Supreme Court of Canada refused. The trial judge found it was “preposterous” that the defendant would have drank such huge amount of alcohol within 30 minutes of the impugned driving as determined by the expert to equate to an amount equivalent to the breath-test results. The Appeal Court held at p.104: In view of the circumstantial evidence that tended to demonstrate the respondent had not engaged in bolus drinking and the respondent’s unique position to offer an explanation, the trial judge was entitled to draw an adverse inference unfavourable to the respondent from his failure to testify to such an unusual drinking pattern. Once again that type of evidence is not before this Court. In R. v. Quiring, [1998] B.C.J.#2631, Justice Wilson in commenting on R. v. Grosse (supra), stated at p.11: accept that it is question of fact for the trier of fact to determine if the assumptions on which the opinion is based have been proven and that the onus is on the crown to meet that burden. There is no onus on the accused to adduce evidence to the contrary. In R. v. Dean (1992), 1992 ABCA 109 (CanLII), 37 M.V.R. (2d) 238, the Alberta Court of Appeal was asked to reconsider its earlier decision in R. v. English (supra) in determining the weight to be given to expert testimony in such circumstances in light of the R. v. Lavallee decision of the Supreme Court of Canada reported at 1990 CanLII 95 (SCC), [1990] S.C.R. 852. The Alberta Court of Appeal concluded at p.242: In the absence of any proof of the facts on which the expert opinion is based, no weight will be given to it. Equally if some proof of the hypothetical facts is offered by admissible evidence, then the question will be whether it is sufficient to meet the requirements for which it was called. Proof beyond reasonable doubt requires more than evidence intended to raise reasonable doubt. The balance of probabilities in civil litigation has its own requirements; in such case, the trier of fact will consider to what extent the hypothetical question has been proven and whether in the circumstances it is sufficient. [emphasis added] R. v. Livingstone, [1992] A. J. No. 967 (1992), 137 A.R. 179 is an example wherein the trial judge decided the defence had not raised reasonable doubt through the use of expert opinion since the facts needed for the basis of the defence expert were not established on balance of probabilities. In conclusion, with respect, this Court cannot give any weight to the opinion evidence tendered by the crown to prove beyond a reasonable doubt the extrapolated blood alcohol level in the body of the accused at the time of the accident. The remaining evidence which is admissible can be briefly restated. Ms. Knox was awake the entire evening of October 16th, 1999. She drank limited amount of alcohol starting at 10:00 p.m. that evening. It is questionable whether she had any alcohol before leaving friend’s home at 10:00 p.m. She had drink of vodka between 10:00 p.m. and 1:30 a.m. She purchased beer between 1:30 a.m. and 3:30 a.m., but did not consume it. She ate pizza and drank soft drink between 3:30 a.m. and 4:15 a.m. She returned to her friend’s residence at 4:30 a.m. and had beer. She was seen spilling that same beer or possibly another one. When last seen by witness at 6:00 a.m., Ms. Knox was tired and the witness thought Ms. Knox had too much to drink but did not see her drink alcohol. That witness left at 7:30 a.m. Ms. Knox left the premises at 8:00 a.m. and was not seen by anyone until 11:00 a.m. Ms. Knox operated motor vehicle unremarkably for period of time and was noted by witness to slowly slump to the right in the driver’s seat as her motor vehicle crossed the centre line of public highway. Ms. Knox took no corrective steps to brake or alter the direction of her motor vehicle as she came into collision with two oncoming cars within mere seconds of crossing the centre line. There was no mechanical failure of her vehicle which would have caused the accident. Ms. Knox was rendered unconscious at the time of the collision and remained so until later treated in hospital. At the hospital it was determined that at approximately 12:10 to 12:15 p.m. of the same day she had blood alcohol reading of 216 milligrams of alcohol per 100 millilitres of blood. In R. v. Ostrowski (1958), 1958 CanLII 102 (ON SC), 122 C.C.C. 196, 29 C.R. 109, the Ontario High Court of Justice determined that the Court is not entitled to take judicial notice that at certain blood alcohol level the accused’s ability to drive would be impaired. Lori Ann Campbell was of the opinion that even chronic drinkers would exhibit some impairment in their ability to operate motor vehicle if their alcohol ingestion amounted to blood alcohol ratio of ‘90 to 100' milligrams per cent. However, the Court has no admissible evidence before it as to the quantum of any alcohol that was absorbed in the body of Ms. Knox at the time of the accident. The Court has no evidence to determine what if any effect, the consumption of alcohol by the accused during the evening of October 16th and early morning of October 17th, 1999 had on the ability of the accused to operate motor vehicle. No opinion evidence is offered to suggest whether that alcohol would have been still affecting the accused in her ability to drive or whether it had been not only absorbed but possibly eliminated by the time that she was operating the motor vehicle. There is evidence that by the time Ms. Knox reached the hospital in the afternoon of October 17th, she had considerable amount of alcohol in her body but we do not know when that alcohol was absorbed and what effect, if any, that alcohol had on her ability to operate motor vehicle at 11:00 a.m., the time of the collision. Referencing once again R. v. Laprise (supra), how can the crown prove beyond reasonable doubt the impairment by alcohol of the accused’s ability to operate motor vehicle besides by the use of breath, urine or blood tests? Normally laypersons, as well as experts, can indicate to the Court their opinion as to the sobriety of another person Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] S.C.R. 819 (S.C.C.) Those opinions must be based upon observation or deduction. No one has testified as to any of the usual indicia of intoxication on the part of Ms. Knox; i.e., glassy eyes, smell of alcohol, unsteadiness on her feet, bloodshot eyes, slurred speech at or near the time of the collision. The only evidence of smell of alcohol emanating from Ms. Knox was made by Nurse Schneider who approached the unconscious Ms. Knox at approximately 1:30 p.m., some two and half hours after the collision. It should be noted that Nurse Schneider had been attending the treatment of Ms. Knox from 12:10 p.m. onwards and had not noted any smell of alcohol prior to 1:30 p.m. The only witness who offered an opinion that Ms. Knox had too much to drink was Ms. Hodge. That observation was apparently made at 6:00 a.m. Ms. Hodge also stated that she did not see Ms. Knox drink and that she felt that Ms. Knox was very tired. Ms. Campbell, the forensic expert, stated that lack of sleep would exacerbate the effects of alcohol ingestion. However, there is no evidence of erratic driving or operation of the motor vehicle by Ms. Knox prior to the collision consistent with absorbed alcohol ingestion. The Court is mindful that the manner of driving need not exhibit marked departure from the norm. What is unusual about the driving was the momentary crossing of the centre line without any attempt to avoid collision. This action or omission on the part of Ms. Knox, was noted to follow her gradual slumping to the right while seated in the driver’s position of her car. Such slumping could be entirely consistent with fatigue; i.e., lack of sleep, with or without the presence of alcohol. Several witnesses concurred that Ms. Knox had not slept all night from at least 10:00 p.m., October 16th to 8:00 a.m. the following morning. While the Court is highly suspicious of the chain of events which culminated in the horrific accident on the Prospect Road wherein loss of life and bodily harm resulted, the Court cannot found conviction on suspicion alone. In R. v. Stellato (supra) the Court has determined that any degree of impairment ranging from slight to great can prove the offence of impaired operation or care and control of motor vehicle contrary to s.253(a); the Court has also declared if the evidence of impairment is so frail as to leave the trial judge with reasonable doubt, then the accused must be acquitted. This case is criminal prosecution wherein the accused not only is presumed to be innocent, but has constitutional right to remain silent. The totality of the admitted evidence before the Court is not so compelling as to allow the trier of fact to draw any adverse inference against the accused due to her election not to testify about her ingestion of alcohol; fact of which she alone, might have knowledge. In civil proceedings, Ms. Knox may be competent and compellable witness for discovery. That is not the case in criminal prosecution. Since the crown has not proven beyond a reasonable doubt the element of impairment by alcohol or drug, the Court is obligated to enter an acquittal on both counts. Dated at Halifax, Nova Scotia on January 19th, 2001. Michael B. Sherar Judge of the Provincial Court","The accused was charged with impaired driving causing bodily harm. Expert evidence was given based on blood samples taken after the accident that the accused was impaired; this opinion was based on two assumptions, namely, that the accused had not consumed alcohol within half an hour of the accident, nor after the accident. The Crown did not offer any evidence to prove these assumptions and, in fact, there was a three hour period prior to the accident where there was no evidence of what the accused, who did not testify, was doing. Acquitting the accused, that the expert evidence cannot be tendered by the Crown to prove beyond a reasonable doubt that the accused had been impaired. The remainder of the evidence against the accused was insufficient to prove the accused's doubt beyond a reasonable doubt.",b_2001canlii2619.txt
215,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 90 Date: 20110727 Between: Docket: CACV2120 Shirley Wanda Sinclair Appellant (Respondent) and Douglas Edward Webb Respondent (Applicant) Before: Vancise J.A. (in Chambers) Counsel: Shirley Wanda Sinclair appearing on her own behalf Davin Burlingham for the Respondent (Applicant) Application: From: Q.B. No. 552 of 2011, J.C. Saskatoon Heard: July 27, 2011 (orally) Disposition: Adjourned sine die Written Reasons: July 28, 2011 By: The Honourable Mr. Justice Vancise Vancise J.A. [1] Douglas Edward Webb obtained an order for possession pursuant to s. 3(3) of The Recovery of Possession of Land Act, R.S.S. 1978, c. R-7 granting possession of land and premises described as 1615 Broadway Avenue, Saskatoon, Saskatchewan. The proposed appellant Shirley Wanda Sinclair did not appear on that application and the order was made in her absence. [2] Ms. Sinclair filed Notice of Appeal alleging certain facts with respect to why the order ought not to have been made. [3] Mr. Webb applied pursuant to Rule 46.1(1) of the Court of Appeal Rules to quash the Notice of Appeal on the basis that the Notice of Appeal was entirely without merit by reason that there was evidence before the Court and no factual basis on which the appeal could have been brought, heard and disposed of. [4] Rather than filing a Notice of Appeal, Ms. Sinclair should have pursued a remedy in the Court of Queen’s Bench. The proper procedure for Ms. Sinclair to have followed was to return to the Court of Queen’s Bench and to apply pursuant to Rule 271 of the Queen’s Bench Rules to have the matter opened up and disposed of on the basis of evidence. [5] The application under Rule 46.1(1) to quash must proceed in two stages in as much as single judge cannot quash an appeal pursuant to that Rule. [6] In the circumstances, this matter is adjourned sine die with leave to bring the matter back before me on five days notice should the proposed appellant Ms. Sinclair be unsuccessful in the Court of Queen’s Bench. [7] There will be no order as to costs.","The respondent applied to quash the Notice of Appeal on the basis that the appeal was entirely without merit because there was no factual basis on which the appeal could have been brought, heard and disposed of. HELD: Rather than filing an appeal, the respondent should have pursued a remedy in Queen's Bench. The proper procedure would have been to apply under Queen's Bench Rule 271 to have the matter opened up and disposed of on the basis of the evidence. The matter was adjourned sine die with leave to bring the matter back to Court if the appellant is unsuccessful at Queen's Bench.",d_2011skca90.txt
216,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 207 Date: 2013 05 30 Docket: F.L.D. No. 98 of 2013 Judicial Centre: Prince Albert, Family Law Division BETWEEN: JEFFREY SHAWN McKERRACHER and BONNIE LYNN MORGAN Counsel: H. Cotton for the petitioner C. M. Ozirny for the respondent FIAT MAHER J. May 30, 2013 [1] Further to the hearing of this matter on May 7, 2013, the issue remaining to be determined is whether the children are to be, on an interim basis, relocated from La Ronge to live with the respondent at Melville, Saskatchewan. [2] The parties commenced common-law relationship in February, 2000. There are two children of the relationship, namely: Justin Morgan McKerracher born May 31, 2001 and Sean Lucas McKerracher born September 26, 2004. [3] The parties separated in April of 2010, while living in La Ronge, Saskatchewan. The initial parenting arrangement was that the children resided with the respondent and with the petitioner having access on the weekends. The petitioner’s uncontradicted evidence is that on January 1, 2011, the parents agreed to verbal co-parenting arrangement. The arrangement that was in place until March 31, 2012, was that the children would change their residence between the parents on each Monday after school. The children have primarily resided in La Ronge or the Air Ronge District of Saskatchewan. They have always attended the Pre-Cambrian Elementary School in La Ronge where Justin is in grade six and Sean in grade three. [4] The evidence discloses that the respondent had sold her home and business in La Ronge by March of 2013. The petitioner says that in March of 2013 he asked the respondent if she was planning to move out of the La Ronge District but received no direct answer. He was advised by the respondent on April 1, 2013, that he would not be receiving the children for their scheduled parenting week because she and the children had relocated to Melville, Saskatchewan. The respondent further advised that she was enrolling the children in school at Melville. RELEVANT CASE LAW [5] There have been numerous decisions of the courts on the issue of interim parenting of children. These principles were set out by Laing J. in Guenther v. Guenther, (1999) 1999 CanLII 12554 (SK QB), 181 Sask. R. 83, [1999] S.J. No. 120 (QL) (Q.B.) where he made the following comments on the maintenance of the status quo on interim custody: It appears from the foregoing case law, it constitutes an error in principle, and reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [6] The Saskatchewan Court of Appeal recently dealt with interim custody in the decision of Mantyka v. Dueck, 2012 SKCA 109 (CanLII), 399 Sask.R. 303 where Richards J.A. commented on the relocation of children on an interim basis when he said the following at para. 31 The case law also provides that significant caution is necessary when deciding whether custodial parent should be allowed to move with child on an interim basis, i.e. before trial of the relevant issues. This is so for two reasons. The first is because an interim change of location can all too easily create new ""normal"" and thereby effectively go some distance toward determining the final result of the proceedings. Ryan-Froslie J. explained the problem as follows in Benson v. Benson, 2011 SKQB 457 (CanLII), 388 Sask. R. 89 at para. 18: The difficulties Court faces in determining mobility issues on interim applications has been the subject of considerable judicial comment. The evidence presented on interim applications is in the form of affidavits. Often those affidavits are not extensive enough to enable court to thoroughly examine the best interests of child. That evidence is often contradictory and the Court has no ability to test its authenticity or determine issues of credibility. Allowing child to move on an interim application uproots the child from its community and makes return to that community unlikely on hearing of the final application because of the consequent disruption to the life of the child. In other words, allowing such move often amounts to final determination of the issue. It is for those reasons that Courts have long held that as general rule moves should not be allowed on interim applications (See: Guenther v. Guenther, [(1999), 1999 CanLII 12554 (SK QB), 181 Sask.R. 83 (Q.B.)] at para. 5). 32 The second reason for approaching interim relocations with caution is that the record before the court normally consists only of affidavit evidence which, by its nature, is often incomplete or somewhat limited in scope. Moreover, such evidence is often contradictory or inconsistent. It is thus both difficult and unwise to make important decisions on the basis of record with these sorts of frailties. See: Nieman v. Bull, 1999 SKQB 204 (CanLII) at para. 7; Shiplack v. Shiplack, 2008 SKQB 254 (CanLII), 317 Sask. R. 223 at para. 19. ... 35 That said, family law culture of ""move first and ask questions later"" is self-evidently not something that can be either approved or encouraged. Neither parents nor their counsel should see relocations of children as means of obtaining tactical advantages in custody or access disputes. Among other things, that is why there is distinct reluctance to give any credit to custodial parent who moves unilaterally, knowing that the move will be controversial, and then attempts to resist an application to reverse the move by arguing that he or she has quit job, sold house or otherwise made decisions which will be difficult to roll back. Problems of this sort are generally seen as being self-imposed. See for example: Ofukany v. Ofukany, supra at paras. and 7; Brandt v. Dean, 2010 SKQB 401 (CanLII), 363 Sask.R. 293 at para. [7] am satisfied on the evidence that the parties had verbal co-parenting arrangement with the children rotating weekly between the parents. find that this arrangement was in place from January of 2011 until April 1, 2013, when the respondent unilaterally relocated the children from La Ronge, Saskatchewan to Melville, Saskatchewan. am satisfied that for some twenty-seven months the parenting arrangement with the children was weekly rotation co-parenting arrangement. I find that this co-parenting was a de facto co-parenting arrangement between the parties. I am also satisfied that there is no risk for the children in the care of either the petitioner or the respondent. CONCLUSION [8] I find on the evidence that the parties are to be joint custodial parents for the two boys. I find the preservation of the status quo is in the best interest of the two boys. Therefore, the two boys are to reside in La Ronge or Air Ronge, Saskatchewan and attend school there while residing with the petitioner. [9] I make the following interim order: 1. That the children shall have their primary residence with the petitioner in Air Ronge, Saskatchewan; 2. The respondent shall be entitled to interim access every second weekend, commencing Friday, May 31, 2013 to Sunday, June 2, 2013. The petitioner shall transport the children to an agreed upon location at Melfort, Saskatchewan by 7:00 p.m. on Friday and the respondent shall pick the children up at that location. The children are to be returned to Melfort by the respondent for pick up by the petitioner on Sunday at 6:00 p.m. at an agreed location; 3. Such access arrangement shall continue every second weekend until further order of the court; 4. In the event that access is on long weekend, the children are to be returned to the petitioner at Melfort, Saskatchewan by the respondent by 6:00 p.m. on the Monday; 5. The petitioner shall make appropriate arrangements for the supervision of the children so that they are supervised prior to their attendance at school and after school if he is unable to personally provide such supervision. The petitioner shall provide in writing details of the supervision arrangement he has in place to the respondent; 6. The respondent shall be entitled to generous telephone access to the children which shall include at least three phone calls per week; 7. In the event that the respondent was to relocate back to the La Ronge District to live, she may apply to vary the terms of this order regarding parenting; 8. order that Voices of the Children’s Report be prepared for the child, Justin, who will be 12 on May 31, 2013. [10] Summer access it is important that there be meaningful summer access for the children with both parents. This issue was not specifically addressed, however am satisfied that it is in the best interests of the children that they spend an equal amount of time with each of their parents in July and August. If the parties are unable to agree to summer access schedule, this matter may be brought back before me and will make determination of an appropriate summer access schedule. [11] The petitioner has been successful in this application. have considered the fact that the respondent unilaterally relocated the children resulting in the petitioner having to bring two applications for the return of the children to their home in La Ronge, Saskatchewan. assess costs against the respondent in the amount of $1500 payable within ten (10) days from the date of this judgment. J. R. D. MAHER","The issue to be determined was whether the parties' children should remain in La Ronge or be relocated to live with the respondent in Melville on an interim basis. The parties were in a common law relationship and had two children, aged 9 and 12. After separation, the children resided with their mother, the respondent, in La Ronge and they had access with the petitioner on the weekends. In January 2011, the parties agreed to a weekly co-parenting arrangement. In April 2013 the petitioner was advised by the respondent that she and the children had moved to Melville. Up until that point the child had always resided in the La Ronge area and attended only one school. HELD: The Court found the co-parenting arrangement to be the de facto parenting arrangement and that there was no risk to the children with either parent. The Court ordered that the parties were joint custodians of the children and that preservation of the status quo was in their best interests. The Court ordered that the children primarily reside in La Ronge with the petitioner and attend school there. The Court also ordered specified access for the respondent.",4_2013skqb207.txt
217,"2001 SKQB 10 D.I.V. A.D. 1999 No. 595 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: ELIZABETH ANN PATTERSON PETITIONER (RESPONDENT BY COUNTER-PETITION) and ALEXANDER CAMPBELL PATTERSON RESPONDENT (PETITIONER BY COUNTER-PETITION) Cheryl A. Cuelenaere for Elizabeth Ann Patterson Gregory G. Walen for Alexander Campbell Patterson JUDGMENT KOCH J. January 8, 2001 [1] This is an action for divorce based on separation. In issue are custody, access, child support, spousal maintenance, possession and division of the matrimonial home and division of matrimonial property. The petitioner seeks costs. [2] To their credit, the parties have reached agreement on some of the issues and substantial agreement on others. [3] The marriage breakdown has been established. The parties have been living separate and apart since January 23, 1998. The divorce is granted. [4] There are two children of the marriage: Robert Scott Patterson, born May 8, 1985, now residing with the respondent, presently student in Grade X; Cynthia Lyn Patterson, born February 1, 1988, now residing with the petitioner, presently student in Grade VII. [5] The parties have agreed on joint custody of both children with Robert Scott Patterson to reside primarily with his father, the respondent, and Cynthia Lyn Patterson to reside primarily with her mother, the petitioner. It has been further agreed in principle that access should be essentially reciprocal on alternate weekends from Friday evening until Sunday evening, with the objective that the children be together with the same parent on most weekends. Clearly this is in the best interests of each of the children. When the weekend includes holiday on the Friday or the Monday, the access for that weekend is to be extended by one day accordingly. There will also be access on one evening each week as may be determined to be compatible with the children's respective activity schedules. The parties will equally share the children\'s time during school vacations. Either party who feels that more specificity with respect to access is required will have leave to apply. BACKGROUND FACTS [6] The contentious issues remaining to be resolved require consideration of the factual background. [7] The petitioner, Elizabeth Ann Patterson, now aged 45, married the respondent, Alexander Campbell Patterson, now aged 46, on May 16, 1981. Neither had been previously married and neither has had any children outside of the marriage. [8] The parties separated for several months in 1995 and finally on January 23, 1998. Neither wishes to reconcile. [9] The parties met in Vancouver in 1978. At that time the petitioner had taken some university classes and was employed in the banking and financial sector. The respondent had received his B.A. from the University of Saskatchewan in 1975 and thereafter studied architecture at the University of British Columbia. The respondent was receiving income while he pursued his education as child of deceased World War II veteran. He also had Canada Pension Plan income as the result of his father's death. In June, 1978 the parties moved to Saskatoon for short time and then to Guelph, Ontario where the respondent entered masters program at the University of Guelph to qualify as landscape architect. The petitioner was again employed at bank. The respondent completed his studies in 1981 at which time the parties married. During the time they lived in Guelph, approximately three years, the parties did not cohabit on full-time basis. [10] In 1981, shortly after their marriage, the parties moved to Japan where they lived for the next year and one-half. The respondent had scholarship to study Japanese gardens and from that and his other income sources was able to provide for their support. The petitioner worked as an English teacher; her income was expended for travel by the parties in Japan and elsewhere in Southeast Asia. [11] In June, 1983 the parties moved to Regina where the respondent was employed by an engineering firm and the petitioner was employed at secretarial and clerical work. Late in 1984 the respondent moved to Ottawa with the same employer. The petitioner moved there to join him early in 1985 prior to the birth of their son. While they lived in Ottawa the petitioner was employed at bank but shortly discontinued that employment in favour of running small daycare out of the home to accommodate more involvement in parenting the children. [12] In fall 1989 the parties moved to Saskatoon, the respondent still with the same employer for whom he continued to work until 1994 when he commenced work with the City of Saskatoon. He is now landscape development coordinator for the City, which he describes as middle-management position. [13] When they moved to Saskatoon the parties, who by then had two children, purchased their residence on 7th Street East because it was suitable, with some renovations and improvements, for the operation of daycare by the petitioner. The petitioner cared for up to six children at time, until late in 1999 when, after the separation, she decided that she would need more income than the daycare business could provide. [14] Early in 2000 the petitioner participated in workforce re-entry program as dietary services worker at City Hospital. This did not lead to full-time employment but she found similar part-time employment at retirement home and continues to be employed there. Shortly before the trial she started two-year dietary program at Kelsey Institute which she expects will qualify her to obtain full-time permanent employment in that field when she completes the course, hopefully in May, 2002. [15] Obviously the breakup of the marriage was an emotional experience for the petitioner and that circumstance, together with the fact that at the time of the separation she had not held employment outside of the home for many years, left her somewhat lacking in confidence as to her job skills and employability. She has, however, made reasonable efforts to upgrade her skills and to become occupationally established. [16] There is no evidence that either party has formed any relationship that involves, at least in the near term, the possibility of remarriage or cohabitation. [17] Commendably, both parties have tried hard to minimize the negative impact of the breakup of their marriage on their children. [18] There is no evidence of any significant health issues. CHILD SUPPORT [19] Both children are healthy and active. [20] For the time being the petitioner is not earning enough from her part-time employment to contribute other than nominally to the support of Robert Scott Patterson. Maintenance for Cynthia Lyn Patterson has to be determined in accordance with the Federal Child Support Guidelines (SOR/97-175 as am.). The respondent\'s gross salary is $59,700 per annum and, as invited by counsel for the petitioner, I am adding $1,500 to reflect the profit the respondent makes on the car allowance he is paid by his employer, to a total of $61,200. Therefore, the appropriate monthly support payment in accordance with the Guidelines is $485 per month subject to any additions pursuant to s. 7. Evidence was presented as to certain expenses for music lessons, band and extracurricular school activities but none of these, in my view, qualifies as a special or extraordinary expense in the context of the basic monthly support payment of $485. In that regard follow the case of Fisher v. Heron, [1997] P.E.I.J. No. 77 (QL); (1997), 157 Nfld. P.E.I.R. 42 (S.C.) cited on behalf of the respondent. [21] In accordance with s. 7, the respondent will have to contribute his proportionate share of the part of the orthodontic treatment expenses for Cynthia Lyn Patterson that is not covered by insurance. direct that he pay, promptly as incurred, his share of the shortfall. Counsel for the petitioner suggested that based on the part-time income of the petitioner of $7,658 the respondent should be paying proportionately 89 percent. As that compilation does not reflect the spousal maintenance hereinafter awarded, I find the appropriate ratio to be 73 percent. [22] The respondent, as he has agreed, is ordered to keep the children on his group insurance benefit plan so long as they are eligible and to designate the children as beneficiaries of his life insurance for such period of time as, in the case of each child, that child continues to be child of the marriage as defined in the Divorce Act, R.S.C. 1985, c. (2nd Supp.). SPOUSAL MAINTENANCE [23] The petitioner contends that in accordance with the provisions of ss. 15.2(4) and 15.2(6) of the Divorce Act, supra, she is entitled to spousal maintenance for an indefinite period. The petitioner\'s prospective job advancement was impeded as the result of the marriage, specifically by the frequent moves to accommodate the respondent\'s job transfers, and arising from her working out of the home for limited income to facilitate child rearing. To meet the needs based and compensation based objectives in accordance with s. 15.2(6) of the Divorce Act, supra, as interpreted by the leading authorities, and to fairly adjust and apportion the economic circumstances of the parties in recognition of their 19-year marriage she contends she is entitled to spousal support of $1,100 per month. [24] The respondent contends, however, that while recognizing the petitioner's needs and the validity of her compensatory claim, consideration must also be given to other factors including: The fact that once the matrimonial home is sold, the petitioner's cost of housing should be drastically reduced and, in keeping with the means of the parties, she should be expected to occupy relatively modest apartment such as the respondent has been doing; The respondent is almost fully supporting both children and that is likely to continue for at least several more years; From practical standpoint the interim spousal maintenance of $750 per month ordered in November, 1999, has proven burdensome to the respondent and caused him to incur debt, whereas the petitioner's cash position seems to have improved since November, 1999; The petitioner is bright, articulate, well motivated individual who can be expected to achieve economic self-sufficiency in the fairly immediate future (paragraph (iv) of s. 15.2(6)) and therefore time limited award for period of no more than three years would be appropriate, ending about one and one-half years after the petitioner is expected to have completed her present course of study and to have had reasonable opportunity to successfully re-enter the workforce. [25] The argument arising from the short-term financial distress of the respondent is somewhat confined to the interim circumstances. Once he receives his share of the proceeds from the sale of the residence he will no longer be carrying any substantial debt, at least not involuntarily. [26] I find the appropriate amount of spousal maintenance to be $900 per month, payable the first day of each and every month commencing as of January 1, 2001. The Divorce Act permits time limited orders, but the trend seems to be to avoid them in situations such as the present where the marriage has given rise to economic dependence (Russell v. Russell (1999), 1999 CanLII 12313 (SK CA), 180 Sask. R. 196 at 229 (C.A.)). The determination of fair and reasonable time period in this case would involve considerable speculation. am not therefore providing for any time limit. I am, however, stipulating that the issue of spousal maintenance be reviewable at the instance of either party at any time after December 31, 2003. It can be reviewed in the meantime on the ordinary ground of material change in circumstances, should such occur. MATRIMONIAL HOME [27] The parties have also agreed that the matrimonial home located at 501 - 7th Street East in Saskatoon, valued at approximately $150,000, subject to loans secured by two mortgages against the title totalling approximately $50,000, is to be sold at the earliest opportunity with the net proceeds, after realtor\'s commission and solicitor\'s fees and disbursements, to be equally divided, subject to matrimonial property adjustment calculations. The petitioner seeks adjustments for some maintenance and repair costs and insurance costs incurred after the date of the petition and with respect minimum monthly payments she made on the Canada Trust Powerline loan. am not prepared to allow such adjustments. Pending the sale the petitioner is entitled to occupy the property and will be obligated to pay the first mortgage payments and the minimum monthly Powerline payments as well as the insurance, utilities and other ordinary occupancy costs, with the cost of any major repairs to be split equally. MATRIMONIAL PROPERTY [28] Each party has claimed as exempt pursuant to s. 23(1) of The Matrimonial Property Act 1997, S.S. 1997, c. M-6-11, certain items of chattel property alleged to have been owned or acquired before the marriage. Understandably there was little evidence of the value of these items at the time of the marriage but as the property in question is not of substantial value and the exemptions claimed were not seriously disputed infer that their respective values at the date of the petition were the same as the value at the date of the marriage. find to be exempt the value of the following items claimed by the petitioner: Mahogany Writing Box Exhibit P-3 Item Communion Mug Exhibit P-3 Item Rocking Chair Exhibit P-3 Nightstand Exhibit P-3 Item 15 Oakwood Chest Exhibit P-3 Item 17 Deacon's Bench Exhibit P-3 Item 35 and the value of the following items claimed by the respondent: Tool Box and Tools Exhibit P-3 Item Leather Kit Suitcase Exhibit P-3 Item 12 Drawings and Paintings Exhibit P-3 Item 35 Antique Round Side Table Exhibit P-3 [29] The respondent also claims that television set included in the list of matrimonial property was acquired after the date of the petition and is therefore not shareable matrimonial property. uphold his contention. [30] During the course of the marriage, at various times, including after the separation, the petitioner received chattel property from her parents which she claims to be antiques and heirlooms, not household goods. She claims it would be unfair and inequitable to distribute that property in accordance with s. 21(2). These items appear to have present value in excess of $6,000. The respondent contends that the petitioner has not met the criteria applicable under s. 21 for the Court to refuse to order distribution. Notwithstanding that contention believe it would be inequitable to order an equal or any distribution of this property simply because the concept of value implies the option of sale or liquidation for value and there is compelling evidence that this property was neither given nor received in that context, but simply as property to be enjoyed and passed along to succeeding generations. [31] The petitioner also requests that an inheritance that she received from her aunt in Great Britain who died in January, 1999, almost year after the separation, be excluded from distribution. The inheritance amounted to $2,297.85 Canadian. The proceeds ultimately ended up in one of the petitioner's accounts at the Bank of Montreal in existence at the date of the petition. The aunt's will is effective at the date of her death. It is most unlikely the aunt would have intended to benefit the respondent nearly year after the final separation. The amount of the bequest should be excluded from distribution. [32] The remaining chattel property, including the motor vehicles, is to be divided as hereinafter set forth and valued as indicated. The motor vehicles are being divided in accordance with their value in October 2000 as the parties have agreed to that. In all other respects the matrimonial property and the debts and obligations will be valued as at the date of the petition. [33] The petitioner will deliver to the respondent promptly when called upon items to 17, inclusive, in the list of chattels set forth in Exhibit P-3 at Tab H. [34] I direct that the respective registered retirement savings plans of the parties at Canada Trust, in the case of the petitioner, accounts 518-3307597 and 518-09301455, and in the case of the respondent, accounts 518-3306519, 518-3302782, 518-04016232 and 518-13659865, be equalized as at October 15, 1999, by rollover from the respondent\'s account to the petitioner\'s account and that the parties promptly when called upon sign and deliver such documents as may be required to accomplish such rollover. [35] The respondent has pension with his employer, City of Saskatoon. The petitioner contends that the value for the purposes of distribution pursuant to The Matrimonial Property Act, 1997, supra, is the amount payable upon hypothetical termination compiled in accordance with the calculation technique adopted in the case of Hamel v. Hamel (2000), 2000 SKQB 263 (CanLII), R.F.L. (5th) 321 (Sask. Q.B.). The respondent does not disagree. In issue is whether the division should be made as at the date of the petition as contended by the petitioner, or at the date of separation, with an allowance for interest thereafter, as contended by the respondent. The test is whether division at the date of the petition would lead to an unfair and inequitable result so as to require compilation at different date, the effect of which would be unequal division. do not find such to be the case. The value of the termination benefit as of the date of the petition is $27,333.50, one-half of which is $13,666.75. The respondent is ordered to convey one-half of the commuted value as of the date of the petition (½ of $21,804.38 = $10,902.19) to a locked-in RRSP in the name of the petitioner. This is the maximum amount transferrable in accordance with The Pension Benefits Act, 1992, S.S. 1992, c. P-6.001. The difference of $2,764.56, subject to the deduction of estimated income tax of 30% results in an equalization adjustment in favour of the petitioner of $1,935.19, which with interest at 4.6% per annum to December 31, 2000 in the amount of $107.56 results in a total adjustment of $2,042.75. [36] At the date of the petition the parties had the following RRSP's: Petitioner Respondent Canada Trust (as at Sept. 30/99, Exhibit P-3, Tab G) $2,362.35 Canada Trust (as at Dec. 31/99, Exhibit P-3, Tab J) $47,818.76 Total: $50,181.11 am not prepared to accept the contention of the respondent that the portion contributed by him after the separation should be excluded. Equalization will require the transfer by the respondent to the petitioner of $22,728.20 plus interest for one year at 4.6%, $1,045.50, for total of $23,773.70. am limiting the interest to one year as the statement filed is dated December 31, 1999. If the parties are unable to agree as to which individual investment in the portfolio is to be transferred, such transfer shall include proportionate share of each investment. [37] At the date of the petition the parties had bank accounts as follows: Petitioner: Toronto Dominion Bank 38.70 Bank of Montreal 205.51 Bank of Montreal GIC 9,500.00 Bank of Montreal Money Market Fund (net of October, November and December interest) 5,563.53 Royal Bank 848.39 Total: $16,156.13 Respondent: Canada Trust 640.16 [38] The petitioner's bank accounts presumably included the inheritance she received from her aunt of $2,297.85, dealt with separately, and retroactive child tax benefit of $4,604.57 received in September, 1999 which is included in the matrimonial property available for distribution, as find it should be. [39] At the date of the petition the financial obligations of the parties, in addition to the loans from Canada Trust secured against the title to the matrimonial home, were as follows:Canada Trust RRSP loan $ 729.08Canada Trust line of credit loan $1,292.00CIBC Visa $ 966.82Each of these three items of indebtedness has been assumed by the respondent. [40] In the result, the final adjustment upon the sale of the matrimonial home will be compiled as follows: Respondent 1995 Plymouth Voyager 9,000 1993 Mercury Topaz 400 Household goods and other chattel property in accordance with Exhibit P-3, Tab (not including items 5, 15, 17 and 35 3,856 Household goods and other chattel property in accordance with Exhibit P-3, Tab (not including items 7, 12, 29, 35, 36 and 37 3,468 Respondent's pension net after assignment 2,043 Bank accounts 640 Adjustment for petitioner's inheritance (2,298) Loans and obligations assumed by respondent (2,988) Net adjustment of proceeds of sale of matrimonial home from petitioner's share to respondent [41] If there are any discrepancies in the above calculations, counsel are invited to bring them to my attention. [42] No costs are awarded.","The divorce action was based on separation for more than a year.  In issue were custody and access, child support, spousal maintenance, possession and division of matrimonial property. HELD: 1)Divorce was granted. The parties, married 19 years, had been living separate and apart since January 1998. 2)They agreed to joint custody of both children. The son was to reside primarily with his father. The daughter resided with her mother. Access was essentially reciprocal on alternative weekends. The children were to be together most weekends. School vacations would be shared. 3)The father was to pay monthly child support of $485 based on his gross salary of $61,200 which included a $1500 car allowance. Expenses for music lessons, band and extracurricular school activities did not qualify as a special or extraordinary expense. The father was to contribute his proportionate share (73% to reflect spousal maintenance) of orthodontic expenses not covered by insurance. 4)Spousal maintenance of $900 was to be reviewable after December 31, 2003. The mother's job advancement was impeded as a result of the marriage, specifically by frequent moves to accommodate her husband's job transfers. She had worked out of the home for limited income to facilitate child rearing. 5)The parties agreed the matrimonial home would be sold and proceeds divided equally after payment of expenses of the sale. Costs of any major repairs were to be split equally pending the sale. The petitioner was entitled to occupy the property and was to pay the mortgage, insurance, utilities and other usual costs.  6)It was inferred the value of the chattels was the same as that at the date of the marriage. It would be inequitable to order a distribution of chattel property given as antiques or heirlooms by her parents valued in excess of $6,000. The inheritance from her aunt who died almost a year after the separation was excluded. The motor vehicles were divided in accordance with their value as of October 2000. All other matrimonial property and debts and obligations were valued as of the date of the petition. RRSPs were to be equalized as of October 15, 1999 by rollover. 7)The respondent was to convey one-half of the commuted value of his pension at date of the petition to a locked in RRSP in the name of the petitioner. The balance in excess of the maximum amount transferable under the Pension Benefits Act resulted in an adjustment of $2,042.75. The respondent was to assume any debts.  8)No costs were awarded.",7_2001skqb10.txt
218,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 168 Date: 20041213 Between: Docket: 1041 Nicole Clavelle and Joseph Paul Clavelle Coram: Tallis, Cameron and Lane JJ.A. Counsel: Lori L. Gollan for the Appellant Tiffany M. Paulsen for the Respondent Appeal: From: Div. 004689 of 2002, J.C. of Battleford Heard: December 13, 2004 Disposition: Appeal dismissed (Orally) Written Reasons: December 14, 2004 By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane TALLIS, J.A. (Orally) [1] We do not need to hear from you, Ms. Paulsen. [2] We are all of the opinion that this expedited family law appeal must be dismissed. [3] The appellant Nicole Clavelle appeals from an order of Ryan-Froslie J. which directed that Danelle, the daughter of the parties, shall attend kindergarten in Saskatoon during the seven week period before the trial fixed for February 21, 2005. For convenience we reproduce the following passages from her written reasons: pre-trial management conference is set for October 5, 2004, after which trial date will be set. It is likely that the trial will proceed in December, 2004 or January, 2005. It must be kept in mind that the application for variation does not relate to final order, but rather an interim one. Interim orders are meant to be temporary until the matter can properly be adjudicated. Counsel for both parties acknowledged in argument that joint custody with an equal sharing of time should continue pending trial. As such, there is no need to vary the interim order. The real issue is where Danelle will attend kindergarten. As indicated above, this matter will be proceeding to trial within the next three to four months. Subject to the parties reaching different agreement, there shall be an order that Danelle continue in kindergarten in North Battleford up to and including December, 2004. Commencing in January, 2005, Danelle shall attend kindergarten in Saskatoon. The evidence discloses that Danelle is happy, well-adjusted child. do not anticipate any problems with her adjusting to change in schools in January and it will give her the opportunity to make friends in both of the communities where her parents reside. Mr. Clavelle’s move to Saskatoon will impact the terms of the final order with regard to the parenting issue. Danelle’s primary residence, and where she will attend school, will need to be resolved prior to her entering Grade 1. That is matter that should be left to the trial judge. The parties indicated they would be able to work out an equal sharing of Danelle’s time once they know where she will be attending kindergarten. If they are unable to do so, they shall have leave to bring this matter back before me by telephone conference within 30 days. If the matter is brought back before me, Danelle’s proposed school schedules, as well as any extra-curricular activities and the parties’ work schedules, should be provided. [4] This order is essentially discretionary order in protracted family law litigation. In such circumstances the Court should not interfere with discretionary order unless it is clearly wrong or is founded on wrong principle of law. The controlling standard of review is succinctly stated by Cameron J.A. in Attorney General of Canada v. [L. (G.)] 2004 SKCA 137 (CanLII): [17] The order was made in the exercise of discretionary power, fact that serves to narrow the basis for intervention on appeal: Only if the chambers judge abused his discretion by acting on some wrong principle, by disregarding some material matter of fact, or by failing to act judicially, is the Court of Appeal at liberty to interfere. Either that or the result must be so plainly wrong as to invite intervention on that basis: Rimmer v. Adshead, 2002 SKCA 12 (CanLII), [2002] W.W.R. 119. Also see Boston v. Boston, 2001 SCC 43 (CanLII), [2001] S.C.R. 413 at para. 73. [5] Applying this test to the impinged order we find that no such error has been demonstrated. Accordingly the appeal must stand dismissed. [6] The award of costs in Queen’s Bench that was challenged on this appeal must be affirmed for the same reason. [7] We cannot part from this case without observing that enormous resources have been expended by the parties in contest to determine where the child Danelle shall attend kindergarten for two days per week during seven week period before trial. We observe that the interest of the parties and their daughter Danelle would have been better served if they had devoted their time and resources to much earlier trial of this matter in Queen’s Bench. This action which was commenced in 2002 is finally proceeding to trial on February 21, 2005. While the order made may be of some inconvenience to the parties this does not constitute reversible error. [8] It is not our function to “fine tune” orders of this nature particularly when they are of such short duration. We have reviewed the voluminous affidavit evidence in the record and find no misuse of judicial discretion. The order under attack is considered attempt to manage the situation for short period before trial. [9] Furthermore, this Court has signalled its reluctance to interfere with the discretion of a chambers judge when dealing with matters of this nature. In Foss v. Foss (1991), 1991 CanLII 7937 (SK CA), 31 R.F.L. (3d) 367 (Sask. C.A.), Madam Justice Gerwing, speaking for the Court at p. 368 stated: Two general comments should be made with respect to this type of application. First, this Court is extremely reluctant to interfere with the discretion of chamber or trial judge with respect to questions of interim maintenance. Second, the most desirable thing in almost every instance is to proceed as rapidly as possible to trial so that the matter can be determined finally after full examination of all of the relevant evidence. Also see Lapoor v. Navidi (2000), 2000 SKCA 95 (CanLII), 14 R.F.L. (5th) 125. [10] We dismiss this appeal with costs on double Col. 5. [11] The respondent’s motion under Rule 15 is now moot. Accordingly it is dismissed as moot with no costs to either party. [12] Since we addressed the appeal proper on its merits, the motion to “quash” is dismissed as moot with no costs to either party.",The appellant appeals from an order that directed that the daughter of the parties shall attend kindergarten in Saskatoon during the 7 week period before trial. HELD: Appeal dismissed orally. 1) No error was demonstrated. 2) This Court has signalled its reluctance to interfere with the discretion of a chambers judge when dealing with matters of this nature.,6_2004skca168.txt
219,"Goldenberg NOVA SCOTIA COURT OF APPEAL Citation: Embanks v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 28 Date: 20080415 Docket: CA 280520 Registry: Halifax Between: Wesley Embanks Workers’ Compensation Claimant (Claim No. 1895971) v. Nova Scotia Workers’ Compensation Appeals Tribunal and the Workers’ Compensation Board of Nova Scotia Respondents and Canadian Manufacturers Exporters Association Intervenor Judges: Cromwell, Saunders and Oland, JJ.A. Appeal Heard: March 19, 2008, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Saunders and Oland, JJ.A. concurring. Counsel: Kenneth H. LeBlanc and Linda Zambolin, for the appellant Alexander MacIntosh, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal Madeleine Hearns and Paula Arab, for the respondent Workers’ Compensation Board of Nova Scotia David Mombourquette for the Intervenor Reasons for judgment: I. INTRODUCTION: [1] This appeal turns on one main question: in deciding the worker’s gradual onset stress claim under the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (GECA), was the Workers’ Compensation Appeals Tribunal (WCAT) wrong to assess the nature of the workplace events and stressors from an objective point of view? [2] In my view, the answer is no. WCAT correctly decided that compensable gradual onset stress requires that there have been work-related events or stressors that are unusual and excessive viewed objectively, that is, in comparison to those experienced by an average worker in the same or similar occupation. [3] would dismiss the appeal. II. ISSUES AND STANDARD OF REVIEW: [4] WCAT found the worker did not qualify for benefits for gradual onset stress under GECA because, in its view, the workplace stressors experienced by the worker were not “... unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation.” Workers’ Compensation Board (WCB) Policy 1.3.6 mandates this sort of objective approach. WCAT found that this reflects the law which was in place before the Policy came into effect in July of 2005. At the heart of the appeal is whether WCAT was wrong to take this approach and if not, whether WCAT applied it unreasonably to the worker’s situation. [5] The worker submits that WCAT erred in three respects: (i) in finding that the worker\'s subjective reaction to external stressors in the workplace was not relevant to determining if he suffered a compensable accident under s. 4(1) of the GECA; (ii) in interpreting and applying the principles required for determining the presence of unusual and excessive stressors in the workplace required for compensable accident under s. 4(1) of the GECA; and (iii) in rejecting and failing to give adequate weight to the opinion of the worker's treating psychologist in the absence of evidence to the contrary to rebut that opinion. [6] There is no dispute about the standard by which we should review these questions on appeal. The question of whether WCAT applied the correct legal test in this case (the first issue) is reviewed for correctness. How it applied that test in light of the evidence in this record (the issue raised by the second and third grounds of appeal) is reviewed according to the reasonableness standard. Counsel agree that this is consistent with the principles very recently enunciated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC (CanLII). A. First Issue: [7] As noted, the first ground of appeal is that WCAT erred in finding that the worker’s subjective reaction to external stressors in the workplace was not relevant to determining if he suffered compensable accident under s. 4(1) of GECA. The worker submits that in applying an objective approach, WCAT erred in two, related respects. The worker’s position is that the Policy is more restrictive than the law in place before its adoption. It was wrong, the worker contends, to find that Policy 1.3.6 did not change the law and to rely in support of that conclusion on court decisions dealing with traumatic onset stress. WCAT also erred, the worker says, by failing to give GECA the sort of broad and liberal interpretation that should be accorded to workers’ compensation legislation. [8] cannot accept these submissions. For the reasons which follow, my view is that WCAT correctly applied the objective approach to determining whether there were workplace events or stressors sufficient to support a claim for gradual onset stress under GECA and that such an approach was the correct one, both under Policy 1.3.6 and under the general law applying to GECA claims in Nova Scotia. This approach is consistent with and furthers the underlying purposes and scheme of the statute. [9] Before turning to my analysis of these points, it will be helpful to set out some background about workers’ compensation for gradual onset stress, the particulars of the worker’s claim and WCAT’s decision. 1. Gradual Onset Stress under GECA: (a.) Before Board Policy 1.3.6: [10] There is significant difference between the treatment of gradual onset stress under the federal and provincial workers’ compensation statutes. This difference gave rise to controversy and uncertainty about whether, and under what circumstances, gradual onset stress may be compensable under GECA. [11] Gradual onset stress is not compensable injury under the provincial Workers’ Compensation Act (WCA), S.N.S. 1994-95, c. 10. It is specifically excluded from the definition of “accident” by s. 2(a)(iii) of WCA. However, there is no comparable express exclusion under GECA. It follows that, under GECA, whether gradual onset stress is compensable turns on whether it is “... personal injury by an accident arising out of and in the course of his employment” as provided for in s. 4(1)(a) of GECA. The term “accident” is not defined in GECA; the statute simply lists certain matters that are included. The question, therefore, is whether the events giving rise to the stress fall within the term “accident”, either because they fall within the express statutory inclusions (i.e., “a wilful and intentional act” or “a fortuitous event occasioned by physical or natural cause”) or because they should be included by judicial interpretation. [12] The difficulty of this and related questions gave rise to uncertainty. There was the question of whether gradual onset stress was compensable at all under GECA. WCAT had often decided that it was, but the issue was unresolved by this Court. Beyond this threshold question, there was uncertainty about the conditions under which gradual onset stress should be recognized as workplace injury. In particular, there was uncertainty about whether the existence of workplace stressors should be assessed objectively or subjectively. (b.) Board Policy 1.3.6: [13] The Board exercised its policy-making authority to bring clarity to these issues. It adopted Policy 1.3.6 which applies to all decisions made on and after July 25, 2005. The Policy provides that both gradual onset and traumatic event stress are compensable under GECA and sets out the conditions under which each type of stress is compensable. [14] To qualify as gradual onset stress, the Policy sets out four conditions which must be met. Most relevant to this appeal is the first requirement, that the workplace events or stressors must be “unusual and excessive in comparison to those experienced by an average worker in the same or similar occupation.” This requires what is often referred to as an objective approach to assessing the nature of the workplace stressors. The four requirements under the Policy are these: (i) The work-related events or stressors experienced by the worker are unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation; (ii) The worker is diagnosed with mental or physical condition that is described in the DSM IV; (iii) The mental or physical condition is caused by the work-related events or stressors; and (iv) The condition is diagnosed in accordance with the DSM IV by health care provider being either psychiatrist or clinically trained psychologist registered with the Canadian Register of Health Service Providers in Psychology. [15] The Policy also sets out certain work-related events that are non-compensable. These include mental or physical conditions caused by labour relation issues or routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation. 2. The Worker’s Claim: [16] The worker was off work from mid February until July of 2005. He sought benefits on the basis that his loss of earnings resulted from stress arising out of and in the course of his employment as civilian employee of the Department of National Defence. The Board refused to recognize his claim, position maintained by hearing officer and ultimately by WCAT in the decision under appeal. In brief, the background to the claim is this. [17] The worker filed Report of Accident on March 2nd, 2005 claiming that he had suffered work-related stress due to physical and psychological harassment since 1999 by management and staff in his workplace. As set out in the worker’s factum, he claimed that his stress injury arose especially from the following: 1. the employer’s failure to accommodate him with respect to parking when he returned to work in March of 1999 following back injury he suffered in June of 1998. 2. an incident in November of 2002 when manager pushed him against photocopier machine during dispute over whether he had permission to make copy of confidential assessment report; 3. his concern in November and December of 2004 that former supervisor who had previously abused him would again become his supervisor; [18] The worker also referred to another incident, but my view is we cannot consider it on appeal. There is evidence that in October, 2005, supervisor “blew up” at the worker, shouted profanities and pointed his finger. WCAT, however, decided that it could not consider this aspect because it occurred after the worker’s February, 2005, report of accident, the worker continued to work after this incident and there was no medical evidence concerning the impact that event may have had on him. WCAT not having taken this incident into account and there being an inadequate factual record with respect to it, we should not now attempt to consider this incident in our analysis of the appeal. [19] The worker first sought counselling for stress in December 2004 or January 2005. Physician’s Report (dated April 12, 2005) advised that the worker had been off work on stress leave due to conflict at work since February 12, 2005. report dated February 10, 2005 from Ms. Sylvia Frausin, the worker’s treating psychologist, advised that he had been experiencing symptoms of generalized anxiety disorder for more than six months and his symptoms included restlessness, fatigue, difficulty concentrating, irritability, muscle tension, and sleep problems. Ms. Frausin stated that, although the worker did not present as clinically depressed, he exhibited some symptoms of depression. Ms. Frausin was concerned that the worker’s mental health would deteriorate if he was not accommodated in another work setting. [20] Ms. Frausin’s report dated September 16, 2005 stated that, in terms of stress, the worker’s workplace was the source of the only change in his life. The worker had no change in his home and financial situations that would have caused increased stress. Ms. Frausin’s report dated November 18, 2005 identified three significant workplace stressors for the worker: (1) his frustration surrounding his attempts to secure parking spot close to his work area to accommodate his back injury after he returned to work in 1999; (2) his belief, approximately from April to November 2004, that he was not given appropriate training for new computer system and that supervisor withheld new computer password from him for several months; and (3) the incident in November 2002, when manager pushed him against photocopier. [21] WCB Medical Advisor, Dr. Heather Zitner, provided an opinion dated April 22, 2005 advising that, on reviewing the claim, she was unable to relate the worker’s condition to his employment duties. [22] case manager with the WCB made decisions denying the worker’s claim for recognition because his stress injury was not personal injury by accident arising out of and in the course of his employment. The worker appealed unsuccessfully to Board hearing officer who confirmed the case manager’s decision. The worker appealed further to WCAT. 3. WCAT’s Decision: [23] As noted, with respect to the claim based on gradual onset stress, WCAT concluded that the workplace stressors experienced by the worker were not “... unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation.” As Policy 1.3.6 applies only to decisions made on or after 25 July, 2005, WCAT had to confront the issue of whether the Policy should be applied to the decisions relating the worker’s claim in this case. WCAT concluded that whether the Policy applied or not made no difference. With respect to the case in hand, the Policy, in WCAT’s opinion, simply codified the better view of the legal principles which applied before its effective date. As WCAT put it: ... find that the argument [about the application of the Policy] is entirely academic in circumstances such as this one where the impugned policy essentially embodies otherwise-binding jurisprudence. In other words, absent Policy 1.3.6, would still require the worker to meet standard set out in the cases and decisions discussed above. ... find nothing in Policy 1.3.6 which differs materially from the interpretation of s. 4(1) of GECA set out in case law, as it relates to the Worker.” (Emphasis added) [24] Turning to the merits of the claim, WCAT concluded that, viewed objectively, the incidents which Mr. Embanks relied on were not unusual and excessive work-related stressors. As the Tribunal put it: ... When viewed objectively, cannot find that reasonable person would conclude that the workplace events described herein were so unusual or excessive so as to give rise to work-related stress claim. 4. Analysis of the Worker’s Submissions: (a.) The Policy did not narrow the law and WCAT did not err in relying on traumatic onset stress decisions to support its position: [25] The appellant submits that WCAT was wrong to say that the Policy did not narrow the pre-existing law. The appellant’s position is that the Policy makes it significantly more difficult than it was previously for federal employees to establish psychological stress injury claim. WCAT was wrong, the worker maintains, to find support for its conclusions in court decisions dealing with traumatic onset stress. [26] The appellant points to two main ways in which the Policy is more restrictive than the prior law. The first is the most directly relevant to this appeal and concerns the place in the analysis of the worker’s subjective view of the workplace events. The second is concerned with the exclusion of work-related events such as “routine employment related actions” and “labour relations issues”. should note that the appellant is not challenging the legality of the Policy in this appeal. (i.) An objective or subjective approach to the workplace stressors? [27] The appellant refers us to number of WCAT decisions in the years from 1996 to 2000 which, he submits, are inconsistent with the approach required under the Policy. However, my view is that, before Policy 1.3.6 was adopted, there was some inconsistency within WCAT concerning whether an objective or subjective approach should be taken to assessing the workplace stressors. However, agree with the Appeal Commissioner in this case that the Policy sets out the better view of the law and should be taken as declaratory of the principles to be applied in this regard to all stress claims under GECA. This view is consistent with the recent decisions of WCAT panels and with judicial decisions. [28] The decision of the Court in Canada Post Corp. v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (Nurnber), 2004 NSCA 83 (CanLII), 224 N.S.R. (2d) 276 (C.A.) briefly reviewed the state of the law at the Tribunal level at that time. As noted earlier, it was then an open question in this Court as to whether gradual onset stress was compensable under GECA. While WCAT had frequently found such claims to be compensable, there were differing tests applied by different appeal commissioners. While agree with the appellant that some WCAT decisions applied mainly subjective test, others took more objective approach: see, for example, 2002-601-AD (February 28, 2003)(N.S.W.C.A.T.). [29] WCAT, in decisions by two differently constituted three person panels, has decided that the requirement that the stressors be viewed objectively as set out in the Policy is consistent with the law before the Policy: see 2006-425-AD (February 19, 2007) (N.S.W.C.A.T.) and 2006-129-AD (January 12, 2007) (N.S.W.C.A.T.) reversed on other grounds sub nom Bishop v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 29 (CanLII), released concurrently. This was also the view of the Appeal Commissioner in this case. [30] In reaching this conclusion, WCAT relied, in part, on two decisions dealing with traumatic onset stress, Logan v. Nova Scotia (Workers’ Compensation Appeals Tribunal, 2006 NSCA 88 (CanLII), 246 N.S.R. (2d) 146 (C.A.) and D.W. v. Workplace Health, Safety Compensation Commission and Via Rail Canada Inc., 2005 NBCA 70 (CanLII), 288 N.B.R. (2d) 26 (C.A.). The appellant submits that WCAT was wrong to rely on these cases as they did not deal with an objective assessment of stressors in the context of gradual onset stress but rather with what could constitute traumatic event. While that is, of course, what the cases were concerned with, agree with WCAT that some of the reasoning in Logan and D.W. supports the conclusion that the existence of stressors must be viewed in the first instance objectively in the sense have described. [31] At the root of the inquires in those cases, as in this one, is whether there has been an “accident” within the meaning of the legislation. note that in Rees v. Canada (Royal Canadian Mounted Police), 2005 NLCA 15 (CanLII), 246 Nfld. P.E.I.R. 79 at para. 32, the Court held under GECA that “... given an ordinary reading of the language, the definition of “accident” clearly is sufficiently broad to include gradual onset stress which results from [a] wilful and intentional [act or] acts of someone other than the employee.” The same “ordinary reading” of the term “accident” (absent some express statutory expansion of the term beyond its ordinary meaning) suggests that it is not appropriate to speak of an “accident” as something that occurred only in the perception of the worker. To put it simply, the question of whether there was an “accident” in the ordinary sense of the word cannot be answered by deciding that the worker thought there had been an accident. Absent statutory expansion of the definition, such an approach is, in my view, inconsistent with the scheme of workers’ compensation legislation as set out in Logan, supra at paras. 84-88 and W.D., supra at paras. [32] In short, while accept the appellant’s submission that the law prior to the Policy was not settled, accept WCAT’s position that the Policy is declaratory of the better view of the law on this aspect of gradual onset stress claims under GECA. [33] It is important to note, however, that this objective view relates to the assessment of the nature of the events which the worker claims gave rise to the stress. That these events are to be examined objectively in the sense required under the Policy does not mean that the worker’s perception of the events is irrelevant or should be ignored in determining whether there has been an injury by accident arising out of and in the course of employment. [34] Without attempting to be exhaustive, there are various ways in which the worker’s perceptions are relevant and therefore should be considered. For example, the worker’s evidence about the nature of the events is, of course, relevant evidence bearing on that issue. While the worker’s perception is not necessarily controlling, this does not mean that the worker’s evidence about the events should either be treated as suspect or ignored. As further example, the worker’s own, subjective reaction is relevant to whether the required link between the events and the disabling stress has been made out. As in all workers’ compensation claims, there must be link between the injury and the accident. As GECA puts it, the employee must be “... caused personal injury by an accident” (s. 4(1)(a)(i)), (emphasis added). Thus, there are certain subjective elements which should be considered in the sense that one must assess the effects on this particular worker of the workplace stressors. In other words, once persuaded of the objective facts that there have been unusual and excessive stressors compared to those experienced by an average worker in the same or similar occupation, it is necessary to go on to consider whether those events, in the particular case, did give rise to disabling stress. [35] To put it in simple language, the events must be excessively and unusually stressful, objectively viewed and, in the actual case of the individual worker, give rise to the mental or physical condition on which the claim is based. do not understand WCAT to say anything contrary to this in its reasons in this case. (b.) “Labour relations issues” [36] As noted earlier, the Policy excludes from compensation certain types of work-related events: Non-Compensable Work-Related Events Mental or physical conditions are not compensable when caused by labour relation issues such as decision to change the worker’s working conditions; decision to discipline the worker; decision to terminate the worker’s employment or routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation. [37] The appellant submits that this provision of the Policy excludes gradual onset stress that would have been compensable before the Policy came into force. In support of this submission, the appellant relies on the decision of the Newfoundland and Labrador Court of Appeal in Rees, supra. The premise of this argument is that the claim, which was found to be within the jurisdiction of the workers’ compensation authority in Rees, would be excluded by the Policy’s limitations on claims relating to labour relations issues. [38] do not accept this premise. In Rees, the worker, at the request of an investigating policy agency, gave statement in relation to alleged misconduct of police officer. Contrary to assurances given to him at the time, the statement was subsequently disclosed to the officer in the course of hearings in relation to allegations against that officer. Thereafter, the worker alleged that he suffered harassment by the officer. In my view, claims of this nature would not be excluded by the so-called “labour relations” limitations in Policy 1.3.6. Providing statement to the police and suffering harassment from the target of the investigation could not be described as “... labour relations issues such as decision to change [his] working conditions, decision to discipline [him or] decision to terminate [his] employment.” These complaints did not relate to “routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation.” [39] The Rees decision does not persuade me that the Policy’s exclusion concerning labour relations issues is more restrictive than the general law that applies absent the Policy. (c.) Interpreting remedial legislation: [40] The worker submits that workers’ compensation legislation is remedial and should be interpreted liberally. Of course, accept this. However, workers’ compensation provisions must be interpreted in way that is consistent with the scheme and purpose of the legislation. As the Interpretation Act, R.S.C. 1985, c. I-21, s. 12 makes clear, “fair, large and liberal” interpretation must be directed to interpreting legislation so as to “assure the attainment of its objectives”. know of no place in workers’ compensation law in which the very existence of an accident is assessed from the worker’s subjective view of events. An objective assessment, as set out in the Policy, is consistent with the scheme and purpose of GECA and, in my view, furthers its overall intent to provide no fault compensation for injuries resulting from workplace accidents. 5. Conclusion on first issue: [41] In summary, WCAT did not err by considering whether stressors experienced by the worker had been unusual and excessive on an objective basis in the sense that they are compared to the work-related events or stressors experienced by an average worker in the same or similar occupation. This requirement, now embodied in Board Policy 1.3.6, sets out the better view of the law that applies even in the absence of the Policy. B. Second Issue: Did WCAT unreasonably fail to give weight to the opinion of the worker’s treating psychologist? [42] The appellant submits that WCAT unreasonably applied the relevant legal principles to the facts. As the appellant puts it in his factum: The Appeal Commissioner’s reasoning process was unreasonable in that, having found there were unusual or excessive stressors in the Worker’s workplace (she accepted that “interpersonal conflict and ineffective management contributed to toxic work environment”), and faced with Ms. Frausin’s evidence supporting causal link between those stressors and his stress injury, she failed to draw that causal link. [43] The premise of the appellant’s submission is that WCAT found that there had been, in fact, excessive stressors in the workplace. cannot accept this premise. [44] It is true, as the appellant points out, that WCAT characterized the appellant’s workplace as “... very negative work environment [rife] with fear, intimidation and bullying.” (reasons, p. 14) and as “toxic work environment” (reasons, p. 16) Contrary to the appellant’s submissions, however, WCAT did not find that there were “unusual or excessive” stressors in the workplace which could ground claim for gradual onset stress. It found that there were not. refer to p. 15 of WCAT’s decision where it is stated: When viewed objectively, cannot find that reasonable person would conclude that the workplace events described herein were so unusual or excessive so as to give rise to work-related stress claim. [45] Again, at page 17 of its reasons, WCAT stated: ... the events in question are neither unusual, atypical or something reasonable person would consider capable of causing disabling reaction. [46] WCAT analyzed in considerable detail the evidence with respect to all of the matters relied on by the appellant. WCAT made clear finding that there were no stressors on which claim for work-related stress could be based. In light of that finding, for which there is plausible support in the record, the worker’s claim for gradual onset stress could not succeed. C. Third Issue: Did WCAT Unreasonably Fail to Give Weight to the Expert Evidence? [47] The appellant submits that, having found that there were unusual and excessive stressors in the workplace, WCAT erred by unreasonably ignoring the expert evidence adduced by the appellant and, instead, relying on the Commissioner’s own sense of whether the events gave rise to the worker’s disabling condition. [48] In my respectful view, the answer to this submission is the same as to the previous one. For reasons have already set out, do not accept the appellant’s contention that WCAT found that there were unusual and excessive events that could ground claim for compensable gradual onset stress. WCAT, in my view, found the opposite. That being the case, the appellant’s claim based on gradual onset stress could not succeed. IV. DISPOSITION: [49] I would dismiss the appeal. Cromwell, J.A. Concurred in: Saunders, J.A. Oland, J.A.","The worker was unsuccessful in his claim for compensation for gradual onset stress when the Workers' Compensation Appeal Tribunal (WCAT) found that the conditions in his workplace did not constitute unusual or excessive stressors as required under the terms of the relevant Board policy. The worker appealed, arguing, inter alia, that the WCAT erred in finding that his subjective reaction to the stressors in the workplace was not relevant. Appeal dismissed; the WCAT correctly applied the objective approach in determining whether there were workplace events or stressors sufficient to support a claim for gradual onset stress. The Board policy reflected the previous applicable law; namely, that workplace events and stressors must be unusual and excessive in comparison to the work- related events or stressors experienced by an average worker in the same or similar occupation.",2_2008nsca28.txt
220,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 33 Date: 2010 01 29 Docket: Q.B.J. No. of 2007 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN Counsel: K. R. Humphries for the Crown L. K. Johnstone-Clarke for the offender JUDGMENT ROTHERY J. January 29, 2010 I. INTRODUCTION [1] J.R.S. (“J.R.S.”) was convicted on September 17, 2008, of the following offences:1. That on or about the 17th day of December, 2004 at T[…] First Nation, in the Province of Saskatchewan he did commit an assault on L.L.A. contrary to section 266 of the Criminal Code. 2. That on or about the 20th day of February, 2005 at T[…] First Nation in the Province of Saskatchewan did break and enter a dwelling house to wit: House #[...] at T[…] First Nation and did commit therein the indictable offence of assault, contrary to section 348(1)(b) of the Criminal Code. 3. That on or about the 20th day of February, 2005 at T[…] First Nation in the Province of Saskatchewan did in committing an assault on L.L.A. cause bodily harm to her contrary to section 267(b) of the Criminal Code. [2] J.R.S. re-elected trial by Queen’s Bench Judge alone on June 23, 2008, and upon arraignment, plead guilty to the following related offences stemming from his breaches of no-contact conditions with L.L.A. and from his obstructing justice by dissuading L.L.A. from testifying against him: 1. That on or about the 20th day of February, 2005 at T[…] First Nation, in the Province of Saskatchewan did being at large on his undertaking given to an officer in charge and being bound to comply with condition of that undertaking directed by the said officer in charge fail without lawful excuse to comply with the condition to wit: abstain from communicating with L.L.A. contrary to section 145(5.1) of the Criminal Code. 2. That between the 1st day of March 2005 and the 7th day of June 2005 at Prince Albert, in the Province of Saskatchewan did while being bound by an Order made by his Honour, Provincial Court Judge K. Y. Young pursuant to section 515(12) of the Criminal Code on March 1, 2005 and being bound to comply with condition of the order, fail without lawful excuse to comply with that condition to wit: that J.S. abstain from communicating directly or indirectly with L.L.A. contrary to section 127(1) of the Criminal Code. 3. That between the 1st day of March A.D. 2005 and the 7th day of June 2005 at Prince Albert, in the Province of Saskatchewan did wilfully attempt to obstruct, or pervert the course of justice in judicial proceeding by dissuading or attempting to dissuade L.L.A. from giving evidence contrary to section 139(2) of the Criminal Code. 4. That between the 9th day of June A.D. 2005 and the 30th day of September 2005 at P[…] First Nation, in the Province of Saskatchewan did while being bound by an order made by his Honour K. Y. Young pursuant to section 515(12) of the Criminal Code on March 1, 2005 and being bound to comply with condition of the order, fail without lawful excuse to comply with that condition to wit: that J.S. abstain from communicating directly or indirectly with L.L.A., contrary to section 127(1) of the Criminal Code. 5. That between the 9th day of June 2005 and the 30th day of September 2005 at P[…] First Nation, in the Province of Saskatchewan did wilfully attempt to obstruct or pervert the course of justice in judicial proceeding by dissuading or attempting to dissuade L.L.A. from giving evidence contrary to section 139(2) of the Criminal Code. [3] Although J.R.S. was charged with possession of cannabis marihuana for the purposes of trafficking, he also plead guilty to the included offence of possession of cannabis marihuana, being count in the direct indictment dated January 4, 2007. [4] J.R.S. and L.L.A. (“L.L.A.”) had been in a common law relationship since she was fifteen years old. L.L.A. moved in with J.R.S. and his parents, J.S.[1] and B.S., and lived at house [...] on the T[…] First Nation. They had four children of the relationship, who were ages 15, 12, 10 and at the time of this trial in September, 2008. At trial, L.L.A. was age 31 and J.R.S. was age 36. L.L.A. was raised by G.T. at house [...]. L.L.A. has returned to her home reserve of P[…] First Nation at the end of 2006. [5] The offences took place in late 2004 and early 2005. The R.C.M.P. had to execute Feeney warrant to locate L.L.A. in the J.R.S.’s basement on February 26, 2008. J.R.S.’s actions after being arrested have led to the length of time to bring the three charges to trial in early September, 2008. The history of this matter has already been chronicled in my decision on J.R.S.’s application for judicial stay, cited at 2008 SKQB 288 (CanLII). [6] Because the offence of assault causing bodily harm is a serious personal injury offence as defined in Part XXIV of the Criminal Code, the Crown applied for an order that J.R.S. be declared a dangerous offender. The Attorney General has consented to the Crown’s application. The order was made for Dr. Roger Holden to conduct an assessment of J.R.S. and to file report with the court in accordance with s. 752.1 of the Criminal Code. That report was filed with the court in January, 2009. The dangerous offender hearing was delayed from March, 2009 until October, 2009, to allow defence to obtain an expert opinion and to prepare for the application. II. THE LEGAL FRAMEWORK [7] On the Crown’s application to have an offender designated dangerous offender under s. 753(1)(a)(i) and/or (ii) of the Criminal Code, as is the case here, it must prove beyond reasonable doubt that J.R.S. has been convicted of serious personal injury offence as defined and that J.R.S. constitutes threat to the life, safety or physical or mental well-being of other persons. The Crown must prove beyond reasonable doubt that J.R.S. exhibits pattern of repetitive behaviours showing failure to restrain his behaviour, and likelihood of causing death or injury to others. The Crown must prove that J.R.S. exhibits pattern of persistent aggressive behaviour showing substantial degree of indifference respecting the reasonably foreseeable consequences to others of his behaviour. In this case, the Crown submits it has proven both patterns of behaviour, although, by law it is only required to prove either the behaviour described in s. 753(1)(a)(i) or (ii) of the Criminal Code. [8] If the Crown has successfully proved the conditions outlined in s. 753(1)(a)(i) or (ii), the court is required to exercise its discretion to determine if the less restrictive sanction under the provisions of s. 753.1 of the Criminal Code may be imposed in the circumstances of this case. That is, the court must determine whether long-term offender designation could be imposed on J.R.S.. [9] The exercise of this discretion is founded on the principles outlined in R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357. At para. 26 29, the Supreme Court of Canada explained: However, this Court confirmed in L.(T.P.), supra, that the phrase ""the court may find the offender to be dangerous offender"" denotes discretion. In support of the Court's conclusion that the dangerous offender regime did not violate the prohibition on cruel and unusual punishment, La Forest J. stated, at p. 338, that ""the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met"" (emphasis added). He reiterated the point at p. 361-62, stating that sentencing judge ""does retain discretion whether or not to impose the designation or indeterminate sentence, or both"" (emphasis added). Insofar as Moore and its progeny suggest that sentencing judges must declare an offender dangerous if the statutory criteria have been satisfied, they have been overruled by L. (T.P.). Having determined that the phrase ""[t]he court may ... find the offender to be dangerous offender"" denotes discretion, the next issue that falls to be considered is the legal principles and factors that sentencing judge must consider in the exercise of that discretion. For the reasons that follow, it is our conclusion that one factor that sentencing judge must consider is the possibility that the sanctions available pursuant to the long-term offender provisions would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance. (2) The Exercise of Discretion Like all discretion exercised in the sentencing context, judge's discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code. As mentioned above, these include the fundamental principle of proportionality contained in s. 718.1 and, most relevant to the central issue in the present appeal, the principle of restraint enunciated in paras. (d) and (e) of s. 718.2, which provide as follows: 718.2 court that imposes sentence shall also take into consideration the following principles: ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The joint effect of these principles is that sentencing judge must consider the possibility that less restrictive sanction would attain the same sentencing objectives that more restrictive sanction seeks to attain. In this case, the sentencing objective in question is public protection: see for example L.(T.P), supra, at p. 329, and Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] S.C.R. 39, in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is ""to protect the public when the past conduct of the criminal demonstrates propensity for crimes of violence against the person, and there is real and present danger to life or limb"". Absent such danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. [10] The exercise of discretion to address the option of long-term offender designation requires the court to consider the following, as stated in s. 753.1(1) of the Criminal Code: 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be long-term offender if it is satisfied that (a) it would be appropriate to impose sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is substantial risk that the offender will reoffend; and (c) there is reasonable possibility of eventual control of the risk in the community. [11] The Saskatchewan Court of Appeal has addressed the requisite factual underpinnings to assist the sentencing judge in exercising this discretion. In R. v. Lemaigre (2004), 2004 SKCA 125 (CanLII), 254 Sask. R. 255 (C.A), Cameron J.A. outlined at para. 50 52 the assessment that must be explored to assist the sentencing judge in determining whether the sentencing sanctions under s. 753.1 are sufficient to reduce the threat of public harm to an acceptable level: want to emphasize that what was called for was this: an assessment of the prospects of eventually reducing the risk to an acceptable level-not altogether eliminating it, but thus reducing it-should Mr. Lemaigre be sentenced to several years in prison, be exposed to the treatment programs offered in prison, and then be released into the community under supervision and on set of conditions aimed at reducing the risk to an acceptable level. In the circumstances of the case, it is this which was not adequately explored. [emphasis included] The circumstances of the case presented borderline situation. That being so, specific consideration should have been given to the rehabilitation programs offered in the Prince Albert penitentiary, especially those aimed at assisting offenders overcome problems such as those experienced by Mr. Lemaigre. What programs are available? How are they structured and administered, and how effective are they? Are there programs geared specifically to aboriginal offenders and, if so, what are they and how do they rate? How might the available programs benefit this man, should he be incarcerated for four or five or six years? In short, what were the prospects of eventually reducing the risk to an acceptable level by means, among others, of lengthy period of incarceration with its attendant deterrent and rehabilitative effects, especially on 52 year-old offender such as Mr. Lemaigre. Likewise, specific consideration should have been given to the rehabilitation programs or services offered in La Loche and area. Does the Meadow Lake Tribal Council have an Aboriginal Justice Committee and, if so, how active and effective is it? Such Committees often wield significant influence in controlling anti-social behaviours within their reach. The Meadow Lake Tribal Council apparently offers some programs, including Dene psychotherapy program. What are they, how do they function, and how do they rate? In addition, there appears to be an alcohol treatment facility in La Loche, one established relatively recently and apparently offering treatment in the Chipewyan language, Mr. Lemaigre's first language. How has this initiative been received in the community, and what, specifically, does this facility offer? In sum, what are the prospects of eventually controlling the risk and reducing it to an acceptable level in the community by means such as these? [12] In exercising the discretion under s. 753.1 of the Criminal Code to determine whether J.R.S. ought to be found long-term offender, the court must be satisfied that all three conditions of s. 753.1 can be met, as stated in ss. (a), (b), and (c). To that end, the Crown is not required to negate the “reasonable possibility of eventual control of the risk in the community” to burden of proof beyond reasonable doubt. As explained in R. v. Moosomin, 2008 SKCA 169 (CanLII), at para. 40: This Court adopts the reasoning of the other appellate courts in Canada. There can be no burden of proof on the Crown to negate the third criterion contained in s. 753.1 in the way in which the burden of proof is usually conceived. Section 753.1 places an obligation upon the sentencing judge to be satisfied on the basis of all the evidence that ""there is reasonable possibility of eventual control"" of the offender's risk ""in the community."" This is not question of satisfaction based on proof beyond reasonable doubt or any other standard of proof. Practical considerations will play role in motivating both the Crown and the defence in these kinds of proceedings. It will be advantageous to the Crown, as well as the defence, to provide whatever evidence will assist the court in determining whether the offender's risk in the community can be managed to an acceptable level. [13] Finally, if the Crown has failed to prove that J.R.S. is dangerous offender, and has failed to prove that J.R.S. even qualifies as long-term offender, the Court is required to impose sentence on J.R.S. for the convictions. [14] J.R.S.’s counsel submits that the court is required to address all options other than incarceration for J.R.S.. Counsel refers to s. 718.2(e) of the Criminal Code which states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” The case of R. v. Gladue 1999 CanLII 679 (SCC), [1999], S.C.R. 688 at para. 93 summarized this sentencing principle as it addresses aboriginal offenders, and the principles articulated therein are often referred to as the “Gladue factors”. [15] J.R.S.’s counsel refers to R. v. Kakekagamick, (2006) 2006 CanLII 28549 (ON CA), 211 C.C.C. (3d) 289 (Ont. C.A.) as support for her submissions that, because J.R.S. is an aboriginal offender, the Gladue factors must be considered in determining his sentence. However, that case deals with the sentencing principles for conviction of aggravated assault, not an application under Part XXIV for dangerous offender designation. That case is of no assistance in addressing the Gladue factors to be considered in dangerous offender application. [16] Dawson J. addressed the Gladue factors in R. v. Stonechild, 2008 SKQB 98 (CanLII) and stated the following at para. 84: An application for finding of dangerous or long-term offender is part of the sentencing process and the principles enacted in s. 718.2 of the Criminal Code apply. As stated in the cases previously referred to, among these objectives, sentencing courts also consider the possibility that less restrictive sanction would attain the same sentencing objectives as more restrictive one notably, because an offender is aboriginal. On this specific characteristic of Mr. Stonechild, it is important to remember that the Supreme Court has decided generally, that the more serious and violent the crime, the more likely it will be, as practical matter, that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. But, the cases clearly require the application of the Gladue principles to the dangerous offender applications. An offender has an opportunity to give evidence of systemic or background factors that will call for the special consideration under Gladue. [17] Dawson J. also stated at para. 17: In summary then, s. 718.2(e) applies to the process of designating an offender to be dangerous or long-term offender. However, because of the serious nature of the offences which bring about dangerous offender application, incarceration will generally be the result for both aboriginal and non-aboriginal offenders alike. An offender's aboriginal heritage may become important when considering the prospects of eventually controlling the risk and reducing it to an acceptable level in the community. There may be specific treatment available in the penitentiary and community which would be appropriate based on the offender's aboriginal heritage or connection. However, the test set out in Johnson, supra, is the governing test and s. 718.2(e) only applies to the extent that it coincides with the principles set out in that case. (Also see: R. v. Nome, 2009 SKQB 149 (CanLII) at para. 14). [18] In other words, Johnson, supra, has clarified that, while the Gladue factors as stated in s. 718.2(e) of the Criminal Code must be considered by the sentencing judge, they must be considered in the context of exercising the court’s discretion in considering long-term offender designation in the situation where the Crown has proved that the criteria for dangerous offender are present. If long-term offender status is considered, the Gladue factors are relevant in framing the appropriate sentence. Lemaigre, supra, outlines the considerations that must be addressed to assist the sentencing judge in framing an order that canvasses all available sanctions other than imprisonment, including rehabilitation services within the offender’s own community. [19] It follows that if J.R.S. is found to be neither dangerous offender nor long-term offender, Part XXIV of the Criminal Code does not apply. The sentencing principles articulated in Part XXIII govern the sentences to be imposed for J.R.S.’s convictions, including those set out in s. 718.2(e). III THE PREDICATE OFFENCE [20] J.R.S. was convicted of assault causing bodily harm to L.L.A., contrary to s. 267(b) of the Criminal Code. He broke into house #[…] on the T[…] First Nation on February 20, 2005, where L.L.A. had been staying, and assaulted her. In my oral decision of September 17, 2008, made these findings of fact: At some point while L.L.A. was sleeping on the couch, she was awakened by the accused. Both J.S.[1] and A. were in the house. The accused pulled her up from the couch. He punched her down the hallway. He pushed her head into the wall. He pulled her hair. J.S.[1] and A. tried to intervene, and finally they convinced the accused to stop punching her with his closed fists. L.L.A. wanted to get L.’s attention as he was in the bedroom, but L. did not make an appearance. L.L.A. testified that the accused, J.S.[1] and A. left G.T.’s house, and she fell back to sleep on the couch. Then, the accused returned and dragged her outside down the wooden steps, and along the side of G.T.’s house. He pulled her hair, kicked her on the chest, head and face with his hard boots. She protected her face as best she could. The accused choked her until she lost consciousness. She believed she would have been assaulted outside in the February night for about twenty minutes. She has no memory of what happened after that or how she got to house […]. She awakened next morning in the accused’s basement bedroom in house […]. She no longer had on her sweatshirt and jeans, but pair of shorts and t-shirt. She was in pain and could not move her head. The accused said “I’m sorry” and was very helpful for the first two days after that, including carrying her upstairs to the main floor to use the bathroom. For the first or days, it hurt to eat and drink, as her throat burned. She noticed clumps of blood on her head. [21] “serious personal injury offence” referred to in s. 753 of the Criminal Code is described in s. 752 to mean: (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, ... [22] As stated in R. v. Goforth (2005), 2005 SKCA 12 (CanLII), 193 C.C.C. (3d) 354 (Sask. C.A.) (Leave to appeal to the Supreme Court of Canada refused December 22, 2005, court file no. 31161), at para. ... we are of the opinion paragraph 752(a) does not-necessarily or otherwise-invite qualitative assessment of the degree of violence or endangerment in the predicate offence. In our respectful opinion the defining character and selected phraseology of paragraph 752(a) suggest otherwise, as does consideration of the object of the term ""serious personal injury offence."" [23] Thus, while qualitative assessment of the degree of violence extracted by J.R.S. on L.L.A. is not required, the facts of this offence leave no doubt that the Crown has proved that the indictable offence under s. 267(b) involved the use of violence against L.L.A.. Furthermore, this offence attracts sentence of ten years. IV. THE CROWN’S PROOF OF J.R.S.’S PATTERN OF BEHAVIOUR [24] The Crown submits that it has proved beyond reasonable doubt that J.R.S. constitutes threat to the life, safety or physical or mental well-being of other persons. It submits that it has established pattern of behaviour described in both s. 753(a) (i) and (ii) of the Criminal Code. Section 753(1)(a) states: (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, [25] The Crown is only required to prove the pattern of behaviour as defined by s. 753(a)(i) or (ii), it does not have to prove both. The pattern does not depend upon the number of offences but on the repetitive nature of the offender’s behaviour. (See: R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.)) [26] As stated by the Alberta Court of Appeal in R. v. N.(L.), 1999 ABCA 206 (CanLII), [1999] 11 W.W.R. 649 at para. 111, the repetitive behaviour can be established on two different bases: Third, repetitive behaviour under s. 753(a)(i) and persistent aggressive behaviour under s. 753(a)(ii) can be established on two different bases. [Persistent in this context has been equated with repetitive: Yanoshewski, supra.] The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice. [27] review of J.R.S.’s criminal history is necessary to determine whether such pattern exists as defined in s. 753(a)(i) and/or (ii) of the Criminal Code. A. J.R.S.’s Offending History [28] Defence admits J.R.S.’s criminal record, entered as Exhibit P-4 in this hearing. Defence lists total of fifty-nine convictions, and sets out the following chart in her brief to classify them: Property offences Driving offences Breach offences (Youth) Breach offences 23 (Adult) Threat offences Firearm offences Common Assault Sexual Assault (Youth) Assault with weapon Assault causing bodily harm [29] This list does not include the matters presently before the court, totalling an additional nine convictions. They include the assault, the assault causing bodily harm, break and enter, unlawful possession of cannabis marihuana, and the breaches and obstruction charges referred to herein. [30] Crown outlined J.R.S.’s criminal history in her brief, summarizing the evidence set out in Tabs 29 found in Exhibit P-6 and Exhibit P-6(a) in this hearing. The history covers time frame from 1986 when J.R.S. was youth up to 2006 when he was convicted of assaulting fellow inmate. The offences correlating to the 29 tabs in Exhibits P-6 and P-6(a) as summarized by the Crown (and referring to J.R.S. as the “defendant”) are as follows: Tab 1986-06-05 Sexual Assault Eighteen months probation Wetaskiwin s.246(1) (not on record) The defendant, 13, was sentenced June 15, 1986 to 18 months probation for sexually assaulting his younger cousin. No other file information exists except references in Pre-Sentence Reports (“PSR”). PSR dated June 5, 1986 noted that the defendant admitted to the offence and stated that he got the idea from watching videos. He later denied the offence to the preparer of the PSR. The PSR outlines J.R.S.’ academic and social history noting that he was kicked out of school the prior October for punching teacher. The PSR assessment of J.R.S. indicates that: ...he is aware that he is very much babied by his parents and uses this to his advantage to get what he wants. Consequently, J.R.S. has successfully learned to become ambivalent to most authority imposed upon him and feels he has the independence to do as he likes. J.R.S. appears to be very aggressive youth who strikes out if someone or something opposes him. He is fairly impulsive and has difficulty in delaying gratification, being oriented almost exclusively to the present, and if he wants to do something, he usually does it regardless of the consequences. Tab 1987-01-20 Breach of Probation day open custody St. Walbourg s. 26 Y.O.A. (not on record) Tab 1987-06–02 Break and Enter x3 months open custody on each conc St. Walbourg s.306(1)(b) (not on record) Theft under x2 s. 294(b) Take motor vehicle s. 295 Wilful Damage s. 387(4) During his probationary period, the defendant broke into the T[..] School, Turtleford Medical Clinic, and Turtleford Hospital and the Co-op on separate occasions. He also broke the window to motor vehicle and in another separate incident stole car. PSR dated June 2, 1987 and prepared for sentencing noted that J.R.S. needs counselling for his volatile temper, pre-occupation with starting fires and inappropriate sexual behavior. The report further went on to state that the defendant failed to complete the prior probationary term to take sex offender treatment because he and his mother denied his guilt. The report recommended that the defendant needed psychological counselling and term in custody would be the only way to ensure that he gets the help that he needs. Tab 1988-06-23 Breach of recognizance 20 months open custody (not on record) Theft under x4 s.294(b) months open custody Fail to Appear s. 133(2)(b) 18 months probation (Youth Court) The defendant committed four separate acts of theft. The first incident the defendant stole an estimated $23.00 from the referee’s room at the Turtleford Arena. He apologized and returned $15.00. The second incident the defendant and others stole gas and tire rim from farm yard. Third incident, the defendant stole tool box from the back of parked car. Fourth incident, the defendant stole cassette tape from department store. PSR dated June 23, 1988 noted that the defendant had little remorse for his involvement in the incident and that the he only showed concern for his legal predicament. In the same report, the defendant’s mother indicated that they have trouble controlling him. The same report also commented that he started re-offending seven weeks after being released from custody on his prior sentence. During the prior custodial sentence he served portion at Ranch Ehrlo, treatment-oriented facility, so that he could get counselling. Custodial Progress Report from the Battlefords’ Youth Cottage dated October 24, 1988 noted that the defendant did not progress well. He had institutional violations like stealing from other residents. Additionally, it was noted that has had inadequate parental discipline and his parents are unable to say “no” to him. Tab 1991-03-19 Break and enter with intent s.348(1)(b) 12 months (not on record) Unlawfully at large 145(1)(b) 75 days consecutive The defendant was serving youth sentence when he went unlawfully at large. While on the run he broke into the Livelong General Store. The defendant was an adult at the time of both offences. The defendant had six months left of his youth custody sentence. After serving his adult sentence, the defendant was returned to youth facility at age 19 to serve the remainder of his youth sentence. Progress Report dated March 26, 1992 noted that upon admission the defendant’s goals were to attain employment, attend Narcotics Anonymous, and to obtain his driver’s licence. The report noted that he realized all of those goals except going to Narcotics Anonymous, and that arrangements had been made for his attendance for service in his home community. Tab 1991-05-21 Assault s. 266 months concurrent with sentence serving The defendant had an altercation with an older disabled cousin at his grandfather’s house. The cousin, who requires crutches, woke the defendant suddenly and aggressively. J.R.S. responded impulsively by pushing the cousin with sufficient force causing him to fall. J.R.S. said he broke the fall. The circumstances of this incident are from the defendant’s account to Dr. Wormith. Tab 10 1991-07-07 Assault s. 266 60 days Dangerous driving s. 249(1)(a) months consecutive Impaired driving s. 253(a) 30 days consecutive Obstruction s. 129 30 days on each Probation Breach Tab 11 1993-04-29 Fail to comply s. 145(3)(a) months Fail to comply s.145(3)(a) $300 Fail to attend s. 145(2)(b) month consecutive The defendant was arrested in relation to offences contained at Tab 13. He was released and 12 days later breached his curfew clause. One month later, police were checking cars at the local bar and the defendant violated his abstain condition. He also failed to keep the peace when relative reported that he had taken battery from vehicle. Tab 12 1993-05-18 Fail to comply s. 145(3)(a) 30 days consecutive to N/A sentence serving Tab 13 1993-06-01 Assault with weapon s.267(1)(a) years less one day Assault causing bodily harm s.267(1)(b) 20 months concurrent Point firearm s. 86(1) year each concurrent Possession of prohibited weapon s.100(12) 10 year prohibition The defendant, who had just been released from jail (Tab 10), seriously assaulted his six month pregnant sister when she refused to give him keys to the family truck because he was drunk and disqualified driver. As result, he became physical with her pushing and hitting. He got her to the ground where he punched her couple of times in the head. The victim asked relative to call the police, but the defendant threatened to hit the victim more. She raced out of the house to call police; he followed and cornered her. She grabbed steak knife to defend herself, but threw it away. He kept asking for the truck keys and the victim jumped out of the kitchen window to get away. The defendant ran out of the house and he repeatedly punched her again and again on the face and head area. He then swung what the victim believed was an axe at her face. The victim said she moved out of the way and it narrowly missed her face. The victim went back into her family’s house and the defendant followed, kicking in the door. The victim ran to the bathroom and locked herself in. She opened the door because he was going to break it down. While the victim was in her parent’s house the defendant retrieved rifle from her parents’ closet. The defendant pointed the gun at the victim and her children, saying that he did not care what he did to her, her children and, her unborn child. The victim gave the defendant the keys. At some point in the assault, the victim said the defendant also kneed her once in the stomach. The entire episode lasted about to hours. She suffered sore jaw, sore hips, headaches, scratches to her neck from when he was choking her. Her unborn child was not affected. In handing down his decision and sentence, the presiding Provincial Court Judge commented at page 95 through paragraph 21 of the transcript: The public must be protected from this very violent person. He’s out of jail very short period of time and right into big trouble again. And until Mr. J.R.S. comes to the realization that he and liquor just do not mix at all, and he may never come to that realization, he is going to be nothing but trouble for those who are unfortunate enough to be in his proximity when he’s not in custody. Tab 14 1995-03-13 Fail to comply Recognizance s. 145(3) 60 days Tab 15 1995-10-02 Dangerous operation of motor vehicle $750.00 Tab 16 1996-10-15 Assault cause bodily harm s.267(1)(b) Time served day (Spousal) Fail to attend s. 145(2) year probation (Spousal) 7days consecutive The circumstances of this assault against his pregnant spouse L.L.A. are not available. However, transcript of the sentencing dated October 15, 1996 notes that the presiding Judge Kim Young PCJ stated that this was minor assault causing bodily harm where: “her injuries weren’t like many, many that you see with broken teeth or cuts or things like that. This some bruising to her neck and to her cheek.” [Transcript of Proceedings page 3, line 18] The judge, as part of the probation term, ordered that the defendant not have any contact with the victim. The prosecutor represented to the judge that the defendant had been phoning the victim upwards of nine times day from jail. [Transcript of Proceedings page 5, line 7] Tab 17 1996-10-29 Assault s. 266 30 days (Spousal) 12 months probation This assault, which pre-dates the assault causing bodily harm against L.L.A. contained at Tab 16, consisted of the defendant striking the victim twice on the head with closed fist. The victim was holding her baby at the time. third blow glanced off the victim and hit the baby. The defendant, who had been out drinking, was angry when he came home. The defendant and the victim started yelling. The defendant’s mother quickly left and then that’s when the assault occurred. Tab 18 1997-01-07 Assault s. 266 (spousal) yr. yrs. Probation Breach of probation months concurrent (Spousal) The defendant, who was on two concurrent probation orders to not have contact with his spouse, L.L.A., and had two months earlier been released from custody, hit her in the side of the head at community dance. An intoxicated defendant, punched her on her left shoulder and side. She tried to ignore him and then he punched her in the back. He began chasing her in the crowded gymnasium. She tried to run out the door and the defendant caught her and dragged her out the door despite bystanders trying to stop him. He pushed her to car, but she ran away with the encouragement of people who had been at the dance. The defendant caught her and put her in headlock taking her back to the car. The defendant had hold of L.L.A.’s hair so that she could not escape. L.L.A.’s brother hit him with bottle and he let go of L.L.A.’s hair. L.L.A. and number of people left the area. The victim suffered sore head and back. She also had some hair loss. The defendant was transferred to community training residence. His plans were to seek employment and address his anger and substance abuse issues. He completed St. Louis programming for substance abuse. He attended Alternatives to Violence programming in North Battleford, but did not complete it. Tab 19 1997-10-06 Refuse Breath Sample s. 254(5) $700, Driving prohibition Drive while disqualified s.259(4) $500 Mischief over $5000 s.430(3)(a) 30 days each concurrent Probation Breach s. 733.1(1)(a) Tab 20 1998-10-20 Probation Breach x2 s.733.1 15 days each consecutive Drive more than 80 mgs s.253(b) months consecutive Probation Breach s. 733.1 15 days consecutive Fail to Attend x2 s. 145(2)(a) 10 days each consecutive There is no file information with respect to the offences in Tab 20 except for the fail to attend. However, the endorsements on the informations indicate an admission to Saskatchewan Hospital North Battleford to determine fitness pursuant to s. 672.13 prior to his being sentenced. Psychiatrist, Dr. Oluwadairo, prepared psychiatric court report that indicates the pending offences including two threat charges against his spouse. In the report, at page the defendant admitted that: “... in the past he had beaten her (L.L.A.) up on several occasions. He also admitted that he failed to appear when he was due in court and explained that he went to work instead of going to court and he was reminded by his boss that he was due in court that day. However, it was already too late for him to get to court. On the second occasion he claimed that he was contemplating not appearing and eventually he forgot to. He claims that there were too many court dates set for him and that he was rather afraid of losing his freedom as he has been in jail almost every year since 1986.” Tab 21 1999-09-07 Breach of Probation s. 733.1 15 days Breach of Probation s. 733.1 15 days The defendant failed to refrain from drinking and failed to refrain from having contact with L.L.A.. Tab 22 2000-05-02 Drive while disqualified s.259(4) Time served (37 days) Tab 23 2001-02-06 Assault (Spousal) s. 266 months The defendant and L.L.A., who was seven months pregnant at the time, were at home. He was upset with her for not sleeping with him the night before. He suddenly punched her in the head. He said he did not care if he went to jail. He punched her twice more when they were outside. They went back into the residence and he punched her in the forehead and was holding her wrist. The defendant’s mother came out and chastised the defendant for his behavior. The defendant’s mother then left. The defendant hit L.L.A. again on the head. L.L.A. left and ran to nearby house. The defendant was arrested and released on and undertaking to not have any contact with L.L.A.. Tab 24 2001-04-19 Assault (spousal) s. 266 years each concurrent Assault with weapon x2 s.267(a) (spousal) firearm prohibition Fail to comply with recognizance x2 s. 145(3) Uttering threats s.264.1 Possession Contrary to order Pointing firearm s.87 Forcible confinement s. 279(2) The defendant was released on an undertaking August 28, 2000 in relation to an assault contained at Tab 23. condition of release was to have no contact with L.L.A.. One month after the defendant’s release, he had their son call L.L.A. and ask when she was coming home. The defendant and son went to where the victim was staying to encourage her to come with them. She did not want to make scene so she went and stayed with him at his parent’s home. She wanted to leave but the defendant told her she was staying. One week later, the defendant was drinking and that is when he started to physically abuse L.L.A. again. The abuse started after L.L.A. and the defendant were drinking with her brother. They drove her brother home and L.L.A. decided to stay with him as she was concerned about the defendant becoming abusive. The victim ran into her brother’s house to call police; the defendant followed her; and started kicking her. Bystanders could not get the defendant to stop. He then dragged the victim out of the house into the bush. The defendant warned that if someone called the police that the victim was going to get it. The defendant calmed down and talked to the victim convincing her to go home with him. few days later the defendant and the victim were at the store. The defendant became jealous of another man that was there. He drove frightened L.L.A. back to their residence. The defendant put the victim in room and started punching her, saying he wanted the truth about her suspected infidelity. He punched her nose and restrained her from running by forcing her to lie on the bed. He brought up how much she had hurt him by causing him to go to jail in 1997. He kept her in the room for to hours. The couple’s four children were in the residence. The victim tried to get them to call police. While in the room the defendant hit her with coffee cup causing cuts to her legs. He hit the victim repeatedly every time she provided an answer he did not like. When the defendant got tired of hitting her with the cup, he hit her with frozen bologna that he had given her to ease her sore nose. He proceeded to hit her all over with the frozen bologna. The defendant did not allow the victim to use the washroom telling her she could “piss herself there”. The next morning the defendant still would not let the victim out of the room. She asked if she could use the washroom she could barely walk and was sore all over. The defendant got rifle and began threatening her with it. He told her that if she ran he would shoot her. He warned that if she did get away and charge him that he would hunt her down and when he got out she would get it worse. The defendant finally allowed her to use the washroom. The victim was trying to figure out how to get away. She ran out the door and the defendant caught her. He dragged her back to the house. She grabbed her son so the defendant would not hit her. The defendant knocked her down in front of their son and then dragged her back into the bedroom. The defendant began whipping the victim’s legs and back with an elastic cord with hooks on it. He eventually stopped and said the victim could take bath. The victim got in the tub and then was concerned that the defendant would drown her so she let the water out. The defendant became angry and was pushing her head telling her not to let the water out. The victim could feel rifle to her head. He kept punching and pushing her. He would not let her put her clothes on. He threatened to tie her up naked so she couldn’t run away. He put her back in the room naked. He threatened that if she ran away he would hunt her down and she would get the same thing but worse. The defendant said that he and the victim could start over. The victim was too terrified to leave. The defendant went hunting. The victim’s brother came over and she gave him letter to give to the police. The defendant was arrested by the police and while he was being held awaiting trial he wrote multiple disturbing letters to the victim that are contained in Tab 24. In one letter he asked her to assist him in his legal predicament and then went on to say that he would be back and would retaliate. Tab 25 2003-04-17 Statutory Release The defendant was released on statutory release April 17, 2003 to live back at T[…] First Nation. Tab 26 2003-09-17 Warrant Apprehension Statutory Release Recommitted The defendant’s statutory release was suspended May 18, 2003 for drinking and assaulting L.L.A.. Tab 27 2003-11-04 Assault s. 266 months consecutive sentence serving (Spousal) The defendant was on statutory release for about one month and with the victim L.L.A. for about one week when punched the victim with both fists causing bloodied nose and redness to the cheeks. She also complained of sore jaw. The defendant, victim and some friends were in car. The defendant was passed out in the front seat. The victim was joking around and tried to wake the defendant by holding his nose. The defendant suddenly awakened, turned around and punched the victim. Tab 28 2006-03-23 Assault s.266 months consecutive The defendant and fellow prisoner were in the transport truck when the defendant struck the victim with his fist few times in the face causing bleeding nose. The dispute was over the victim’s relationship with L.L.A.. Tab 29 Predicate offence Assault s.266 (spousal) Assault causing bodily harm s.267(b) (spousal) Break and Enter with intent s. 348(1)(b) Undertaking s.145(5.1) Breach non-contact s.127(1) Pending Obstruction s. 139(2) [31] Although not referred to by the Crown in her brief, the conviction in Tab of Exhibit P-6 is relevant to this application. The conviction of assault with weapon of January 26, 1989, for which J.R.S. received four months open custody, consecutive to his serving sentence, stems from the following particulars from the prosecutor’s information sheet dated December 15, 1988: On the above noted time and date the accused was waiting for his gym class to start at the A[..] School where he is student. He obtained length of fishing line approximately feet in length from friend of his. He proceeded to wrap the line around each hand leaving length of about foot between. He walked up behind another boy attending the same gym class in manner that would not arouse suspicion, told the boy to “come here” and the reached over the boy’s head with the fishing line stretched tight between his hands in the manner of “garot”. He then attempted to bring the line tight against the boy’s neck, however the boy was able to block this attempt. struggle ensued and the fishing line was dropped by the accused. The accused then picked the boy up, held him over his shoulder, then dropped him to the floor. By the accused’s own admission, there was no provocation for this attack. The victim, Geordie CARSWELL, is thirteen years of age and considerably smaller than the accused who is also years older. B. The Pattern of Repetitive Behaviour and Pattern of Persistent Aggressive Behavior: [32] L.L.A. started relationship with J.R.S. when she was age 15. Between approximately 1995 and February, 2005, J.R.S. has been convicted of assaulting L.L.A. eight times, with an additional two as result of this conviction rendered on September 17, 2008. The conviction of assault causing bodily harm of February 20, 2005 is the predicate offence. [33] Crown submits that J.R.S. can be best described as serial spouse batterer. Crown submits that J.R.S.’s crimes against L.L.A.: ... have been perpetrated in public and in private; in the presence of his children and parents; and, when he and L.L.A. are alone. He has used his fists, feet, cords, cups and guns to cause both physical and psychological harm to L.L.A.. She has sustained spectrum of injury including cuts, bruises, bumps and scrapes to her arms, legs, head, chest, back hands and feet. The Defendant perpetrates violence against L.L.A. whenever and however he wants and always when he is under the influence of alcohol or illicit drugs. [34] On the basis of the evidence on this application, find that Crown has correctly characterized J.R.S.’s behaviour as it pertains to L.L.A.. [35] J.R.S. has been convicted of assaulting other people as well, both when he is sober and when he is intoxicated. He attacked his pregnant sister when she refused to give him the keys to the family truck. He was both intoxicated and disqualified driver at the time. [36] As youth, he attempted to strangle smaller boy, three years his junior. While on remand, he assaulted shackled fellow prisoner. [37] On the whole of the evidence, find that the Crown has proved beyond reasonable doubt that J.R.S. constitutes threat to the life, safety, physical and mental well-being of other persons. The evidence establishes that there is pattern of repetitive behaviour by J.R.S. showing failure to restrain himself and establishing likelihood of causing death or injuries to others in the future, as defined by s. 753(1)(a)(i). [38] Furthermore, the Crown has proved beyond reasonable doubt that J.R.S. exhibits pattern of persistent aggressive behaviour showing substantial degree of indifference respecting the reasonable foreseeable consequences to others of his behaviour, as defined by s. 753(1)(a)(ii). [39] On this basis, the Crown has proved beyond reasonable doubt that J.R.S. meets the criteria of dangerous offender under s. 753(1)(a) of the Criminal Code. However, on the basis of Johnson, supra, the court must enquire whether J.R.S. may be designated long-term offender in accordance with s. 753.1(1) of the Criminal Code. It is only if the court is not satisfied that there is reasonable possibility of eventual control of the risk that J.R.S. will re-offend in the community that dangerous offender designation will be imposed. (See: Moosomin, supra.) [40] now turn to the evidence and the expert testimony presented at the hearing. V. EVIDENCE [41] Crown and defence led evidence in this hearing addressing the issues outline in Lemaigre, supra, and in Moosomin, supra, to assist the court in determining whether J.R.S.’s risk in the community can be managed to an acceptable level. A. Crown Witnesses [42] Jack McDowell is the assistant deputy director of operations at the Saskatoon Correctional Centre. J.R.S. was admitted to remand on March 2, 2005, after he was arrested for the charges which are now the subject of these convictions. McDowell confirmed there is no programming available to persons on remand. J.R.S. committed institutional infractions over the time frame, and the assault on Benjamin Fineday in 2006 was the most severe. McDowell stated J.R.S. has not been member of gang, and he has been employed on the remand unit as domestic, which is position of high trust within the correctional centre. [43] Reyna Siwak is parole officer with Corrections Services Canada (“CSC”), and employed at the Saskatchewan Penitentiary in Prince Albert. She develops and manages offenders’ plans to reduce their risk of re-offending. J.R.S. was one of her cases when he was sentenced to three year term (following guilty plea and joint submissions) for the assaults committed against L.L.A. in 2000. [44] Siwak’s case plan for J.R.S. during his incarceration from April, 2001 to April, 2003 included the cognitive skills programming, the intensive substance abuse programming, and the aggressive behaviour control programming (the “ABC” programme). Siwak recounted that J.R.S. did well in the cognitive skills programming. He completed the intensive substance abuse programme (“OSAP”), but when he was required to participate in the maintenance programme for substance abuse, his motivation deteriorated. Indeed, within one month of being released from the Penitentiary, J.R.S. assaulted L.L.A. while intoxicated, and his release was suspended by the National Parole Board (“NPB”). [45] Siwak stated J.R.S. needed to address his family violence issues when he was incarcerated in 2001. The ABC programme was the one available at that time. It was high intensity six month programme directed at dealing with violent behaviour. [46] While J.R.S. signed the waiver at the time of intake to participate in the ABC programme, he changed his mind and did not take the programming. He stated he wanted to take another programme titled “In Search of Your Warrior” but Siwak explained it was merely pilot project at the time and not available to J.R.S. at his intake. [47] Defence counsel, on cross-examination, pointed out that it has been seven and one-half years since J.R.S. had refused to take the ABC programme. However, this time frame means little, because soon after J.R.S.’s release he committed the predicate offence and other offences, and has been on remand since. There has been no opportunity for CSC to assist him with his domestic violence issues to date. [48] Dr. Wayne Schapkohl is psychologist employed with the Prairie North Mental Health Unit in North Battleford. He treats offenders ordered by the domestic violence options court, project of the Provincial Court of Saskatchewan. He explained how the treatment programme operates. About one third of its participants are from outlying areas, including the T[…] First Nation. [49] Dr. Schapkohl testified that the records of the Battlefords Mental Health Centre indicate that J.R.S. entered therapy in 1989. He was doing well with the sessions, but the group sessions were discontinued before he completed the programme. The records indicate that J.R.S. started an Alternatives to Violence programme in November, 1997. The records indicate he had assaulted his spouse, and that he had long history of alcohol abuse. The records indicate J.R.S. did not complete this programme. [50] It was Dr. Schapkohl’s view that if there is long history of substance abuse by an offender, as well as spousal abuse, it is better to treat the substance abuse issues first. [51] Michelle Ketmerick is the director of the Saskatchewan Impaired Driver Treatment Centre, formerly the St. Louis Alcoholism Rehabilitation Centre. Ketmerick stated that the Centre uses similar treatment model as CSC for substance abuse, that is, cognitive behavioural approach. [52] The Centre’s records indicate that J.R.S. took the substance abuse programme at St. Louis in 1997. He completed the programme. However, he only remained sober for period of six months thereafter. [53] In cross-examination by defence counsel, Ketmerick admitted that relapses are common. However, the person must be able to succeed in his own environment. If an offender returns to the same environment, he will need mentor or support system, like NADAP. [54] Lee Ann Skene is the manager of programmes for CSC at the Saskatchewan Penitentiary. She outlined the intake procedure for an offender and how corrections plan is developed for him. This includes extensive interviews with the offender. [55] All programmes are voluntary, and offenders are paid to attend them. All offenders know the difficulty of early release if they have not addressed areas of concern outlined in their correctional plan. [56] Skene confirmed that high intensity programmes are offered for substance abuse and for family violence. While any inmate in segregation cannot take programming, it is otherwise offered to all inmates, including those serving an indeterminate sentence as dangerous offender. The waiting lists for programmes are short. Skene estimates that J.R.S. could complete both the substance abuse programme and family violence programme within two years after completion of intake. [57] If an inmate is successful in his rehabilitation, he can be reclassified to minimum security. After period of stabilization, even dangerous offenders may apply for temporary absences, then day parole, and full parole. Skene stated that the dangerous offender must make the necessary changes in his risk to re-offend; CSC is there to help him make those changes. [58] In cross-examination by defence counsel, Skene admitted that the question of addressing the offender’s risk in the community includes the community support available to the offender. That is one factor in addressing the offender’s risk. [59] Alan Vermeulen is community parole officer for CSC, and supervised offenders on release in the community in north-west Saskatchewan from 2005 2009, including the T[…] First Nation. He does not know J.R.S. personally. [60] Vermeulen explained that the community parole officer visits offenders on weekly basis on the T[…] First Nation. Along with visiting the offender, Vermeulen usually consulted the NADAP worker and his employer (if applicable) to confirm the offender’s progress. Twenty-four hour supervision is not possible at the T[…] First Nation. The NADAP worker is the only resource for an offender, other than the Alcoholics Anonymous weekly meetings in Turtleford. [61] Vermeulen agreed with defence counsel that it would be ideal if the T[…] First Nation had programme in place to assist J.R.S. and the First Nation wanted to work with him. [62] The last witness to testify for the Crown was L.L.A. herself. At the commencement of the hearing L.L.A. advised the Crown she had recently received two letters from J.R.S.. The Crown arranged for subpoena for L.L.A. to testify. [63] L.L.A. brought two letters from J.R.S., one consisting of two handwritten pages and second one consisting of six handwritten pages. The letters being Exhibits P-10 and P-11, are undated. Both were in her mailbox when she went to collect her mail at Cutknife the second week of September, 2009. [64] L.L.A. explained that J.R.S. telephoned her several times during September, 2009. She talked to him because of their children, who want their parents to be friends. L.L.A. stated that she took therapy for year to deal with J.R.S.’s violence against her. L.L.A. told defence counsel that “J.R.S. needs lot of treatment.” [65] The contents of the two letters are disturbing, to say the least. The first letter instructed L.L.A. to get lawyer and explain that she lied at the trial. J.R.S. told her that his family would pay her legal costs. He told her not to tell anyone that he put her up to it. [66] The second letter, which states that the dangerous offender hearing is forty-nine days away, outlines in point form what J.R.S. wants L.L.A. to do to overturn this conviction. He perceives that if she lies, he will have the case dismissed against him. She, on the other had, will get fined or probation. J.R.S. added at page 2: ...you won’t go to jail because you don’t have prior record. know was wrong the last time but never thought you’d be placed in jail. Contempt of court is more serious case, plus you didn’t have lawyer to protect you. This time you will cause i’ll make sure you have one at my expense. [67] At page 3, J.R.S. continued: ...I don’t feel proud for what i’ve done to you. Hell, was scared right from the start. Do you remember how bad felt and stayed by your side throughout your injuries? was scared for you cause knew could’ve killed you by accident. laid with you, hugged you, and nursed you, my doings to you were so wrong. Here was trying to get back with you and rather than protecting you hurt you ... [68] At page 5, J.R.S. outlined, in point for, what he wanted L.L.A. to do to overturn the conviction: L.L.A., i’ll just write out the steps that you must take if you’re going to help me. Rather than waiting for your letter and then me writing back. By the time we get that done, at least wks will go by. So here are the steps: You’ll have to do it in the order put it. (1) Get ahold of lawyer. (2) Explain the situation that you made mistake that got me convicted. (3) Tell him or her about how you were treated by the system so you only said what they wanted to hear, and that they forced you to lie about my case. (4) Your injuries came from fighting Wop and Kyle throwing you off the steps. Kyle can’t say he did that to you because he already told my lawyer he doesn’t remember anything that evening. (5) If you are questioned why you blamed me, you can say because it’s what they wanted to hear. They even put you in jail because you wouldn’t testify. The letters wrote to you while you were in P.Grove were only answered mail that you had written to me. (6) Ask questions that you need to know. Which ever lawyer you get if you to help me will guide you as well... B. Defence Witnesses [69] Chief D.A. testified that he has been chief of the T[…] First Nation for the last three years of four-year term. He is pipe carrier, and recounted that culture was his personal salvation. Until he was age 24, he had been an alcoholic. Now he has an education degree and has spent time helping others. [70] Chief D.A. filed letter with the court stating that if J.R.S. is released from custody, he “is welcome to reside on the T[…] First Nation as he is not viewed as an imminent threat to the public or to himself”. The letter also states that the chief and council will assist J.R.S. “both generally and financially to ensure that Mr. J.R.S. is able to undergo any necessary treatment as determined by health care professional and further, to ensure he complies with any other Court imposed conditions.” [71] Chief D.A. also filed with this hearing copy of band council resolution from the P[…] First Nation, resolving to assist the court by facilitating the no-contact clause as it relates to its member, L.L.A.. The band council resolution states that “should J.R.S. be released from custody that it is clearly understood that he is not to enter P[…] First Nation for any reason for the duration of the Court order”. [72] Chief D.A. stated that J.R.S. has never contacted him, and he does not know J.R.S. personally. Chief D.A. stated that he has instructed the justice worker to prepare plan for J.R.S.’s return to the community. He stated that the NADAP worker will prepare substance abuse programme for J.R.S.. None of this had been completed by the time of this hearing. Chief D.A. admitted that J.R.S.’s situation is extreme, and an extreme programme will not be developed until needed. [73] Chief D.A. sees J.R.S.’s parents as huge positive influence. They practice traditional cultural ways, and they are respected in the community. [74] M.T. has been the justice co-ordinator for T[…] First Nation for three months. This is an interim position and she will return to her employment in the Yukon at the end of the twelve month term. She brought letter to court which confirms that J.R.S. would have full-time employment as lumber piler upon his return to T[…] First Nation, with the Thunder Employment Field Services. [75] T[…] First Nation stated she started working on case plan for J.R.S. the week prior. There were no details provided to the court. T[…] First Nation stated that there are other resources available on the reserve, including life skills programme offered twice week, and Alcoholics Anonymous weekly meetings in Turtleford. She admits there are no programmes to deal with violent behaviour. However, she states that she is available anytime if J.R.S. feels he has problems. [76] Randall Simpson is corrections worker at the Saskatoon Correctional Centre. He works on the remand unit, and has observed that J.R.S. quickly worked his way up to position of trust in the unit. That is, he is assigned to plate the meals on the unit for the inmates because he divides up the portions of food fairly among the inmates. [77] Simpson agrees that J.R.S. has had periods where he got into trouble on remand. But, he can go for large stretches of time without any incidents. In short, Simpson finds that J.R.S. behaves well in the structured environment of the institution. C. The Expert Evidence [78] Three witnesses testified who were qualified to give expert testimony. Dr. Roger Holden completed the part XXIV assessment on J.R.S. as required by the order. He was qualified as psychologist to give opinion evidence on the assessment of violent offenders who may be designated as dangerous offenders or long-term offenders. [79] The Crown also called Deborah Farden, masters level psychologist, who was qualified as an expert to give opinion evidence on intimate partner violence, including the treatability of intimate partner offenders and the availability of treatment options in the community. [80] Defence called Dr. Stephen Wormith. He was qualified as an expert to provide evidence on the dangerous offender designation as it relates to J.R.S.. 1. Deborah Farden [81] Deborah Farden has worked extensively in the area of femicide, that is, women killed who were involved in an intimate relationship. She now accepts referrals from the domestic violence court operated under the Provincial Court of Saskatchewan in Saskatoon. There are 95 120 men in this programme at any time, most are medium to high risk offenders, including aboriginal offenders. Farden explained that programmes offered in the community to treat offenders for domestic violence are limited to Saskatoon and North Battleford. [82] For an offender to be successful in treatment, he must have an individual level of responsibility. This is so even if First Nation community offers to take responsibility for him. Even if the partner to the intimate personal relationship does not behave well, the offender in treatment is responsible for his own behaviour. [83] An offender is likely to be more successful in his treatment if his family speaks up against the violence. The more strongly the offender gets this message, the more likely it will affect his change. [84] Farden outlined the various lethality indicators of femicide. They include: a. stalking and continued, persistent, unwanted contact (in person, by letter, through other parties); b. an unemployed male; c. history of prior spousal violence; near-femicide predicts future incident; d. history of avoiding arrest for the intimate partner violence, that is, dissuading the partner from going to court; e. children in the home who do not belong to the offender. [85] If all these factors are present, there is high lethality risk for femicide. [86] Farden does not know J.R.S. and did not comment on him personally. However, find that the evidence before the court points to high lethality risk of femicide in J.R.S.’s situation with L.L.A.. He continues to stalk L.L.A. by letter, attempting to put her freedom in jeopardy for his personal gain. The numerous obstruction convictions in this case result from J.R.S.’s attempt to dissuade L.L.A. from testifying against him. The serious spousal violence of 2000 was followed by second serious spousal violence perpetrated against L.L.A. again not long after J.R.S.’s release from incarceration. [87] J.R.S.’s family, to date, has done nothing more then attempt to cover for his violent behaviour against L.L.A.. His father told story at trial that L.L.A. must have sustained her injuries from falling down the basement stairs. His father also took the fifteen year old son along to witness his father beat his mother, and then observe J.R.S. bring her back to house [...] to be hidden from view until the R.C.M.P. executed Feeney warrant to locate L.L.A.. J.R.S.’s mother was an accomplice in hiding L.L.A. in the house while her injuries healed. [88] Neither Dr. Holden nor Dr. Wormith see themselves as experts in intimate partner violence. Farden’s testimony was helpful for the court to appreciate J.R.S.’s level of risk to harm L.L.A.. 2. Dr. Roger Holden [89] As result of the testing and interviewing of J.R.S., Dr. Holden concluded that J.R.S. is high risk to re-offend in violent manner. J.R.S. has chronic alcohol problem and is violent person, especially when he is intoxicated. [90] The release plan J.R.S. completed for Dr. Holden was superficial and did not address the problems he must address to rehabilitate. J.R.S. planned to return home and get job. Dr. Holden stated that there is problem in him returning to the T[…] First Nation. He will return to the same group of peers that facilitate his substance abuse. His family has supported his spousal abuse in the past. Dr. Holden could say no more about the family because he tried to contact J.R.S.’s parents several times for this assessment, but was unsuccessful. [91] Dr. Holden found that J.R.S. does not express remorse for his wrongdoings; he does not accept his culpability; he minimizes his criminal behaviour. Dr. Holden states that all of this leads to poor prognosis for treatment. [92] While J.R.S. is highly intelligent, he has an antisocial personality disorder. He is indifferent to rules, adjusts poorly in the community, and conducts criminal activity. J.R.S. has psychopathic tendencies which makes one less optimistic about the treatment outcome. [93] Dr. Holden testified that J.R.S. requires high intensity violence related programming offered by CSC to address his violent tendencies. He also requires intensive substance abuse treatment. However, because J.R.S. has taken these programmes and re-offended in violent manner afterwards, while intoxicated, definite period of incarceration has the potential for relapse. J.R.S. needs significant change of attitude to stop drinking. It is not impossible that he will stop drinking; but it is highly unlikely. [94] Dr. Holden concluded that J.R.S. is treatable because he is intelligent, young and wants to get out of jail. However, his prognosis for J.R.S. is guarded. J.R.S.’s ability to benefit from treatment is unknown. Dr. Holden cannot estimate time frame for eventual control in the community of J.R.S.’s risk to re-offend. [95] All that being said, Dr. Holden concluded that the court ought to find J.R.S. long-term offender. [96] In cross-examination by defence, Dr. Holden explained that having high intelligence quotient means that J.R.S. is able to understand the programming and he has better potential for insight. [97] Dr. Holden stated that he has “guarded hope” for J.R.S.. If J.R.S. addresses his impulsiveness and alcoholism, and learns more appropriate behaviour, Dr. Holden’s hope is guarded but good. If J.R.S. drinks alcohol again, the prognosis is poor to non-existent. 3. Dr. Stephen Wormith [98] Defence called Dr. Wormith to provide opinion evidence on whether J.R.S. ought to be designated dangerous offender. Dr. Wormith concludes that long-term offender designation is appropriate. [99] Dr. Wormith and Dr. Holden utilized different testing methods, but came to similar conclusions. Both experts agree that J.R.S. is high risk to re-offend generally and violently. The risk is the same as when he was remanded in custody. J.R.S. requires intensive programming to deal with his substance abuse and his domestic violence tendencies. They agree that J.R.S. has an antisocial personality disorder. They agree that J.R.S. is intellectually bright, and the potential for him to learn is good, for example, in using abstract reasoning skills. [100] Dr. Wormith stated the premise that the dangerous offender designation is based on the criteria that it identifies those offenders with an extremely high likelihood of offending in very serious way. The provisions of s. 753(1) of the Criminal Code are not to target individuals who have not committed the most violent offences. He stated that he considers the severity of the offence in providing his expert opinion. Dr. Wormith concluded that the predicate offence of the assault on L.L.A. is not an assault that rises to the level of severity to consider J.R.S. dangerous offender. Therefore, J.R.S. ought to be found long-term offender. [101] Dr. Wormith concluded that full scope of treatment has not been provided to J.R.S. in the past. He suggested that fixed sentence provides time frame for CSC to provide the necessary programming that J.R.S. requires. [102] Dr. Wormith suggested that this dangerous offender application is sufficient motivation for J.R.S. to take responsibility for his behaviour and to reduce his risk to the public. Dr. Wormith stated that J.R.S.’s present risk can be reduced if J.R.S. takes treatment. This presumes that he will participate in programming, that he has positive and appropriate behaviour while incarcerated, that he does not drop out of the programmes, and that he internalizes the programming. Dr. Wormith does admit that J.R.S.’s history of decreasing involvement in programming offered to him while incarcerated is “of concern”. [103] Dr. Wormith referred in his report to patterns emerging from review of J.R.S.’s criminal history. This theme includes at page 12: ... With the exception of some adolescent aggression, the sole victim has been Mr. J.R.S.’s ex-spouse. Although it is not the intention or purpose to assess the dynamics of this relationship, nor to attribute any blame to the victim it is possible that Mr. J.R.S.’s behaviour is at least partially product of this particularly dysfunctional relationship to which both parties have contributed. [104] Dr. Wormith admitted that intimate partner violence is not an area of specialty. Dr. Wormith admitted that the factor of separation between J.R.S. and L.L.A., which he saw as mitigating factor when he prepared his report, may not be so given that J.R.S. has written letters to L.L.A. recently. Those letters envision ongoing contact with L.L.A. on J.R.S.’s part. Dr. Wormith agreed with Crown that J.R.S. has not broken with L.L.A. psychologically. [105] Dr. Wormith admitted that J.R.S. lying to him about his lack of recollection of the assault on L.L.A. has treatment implications. The letters sent to L.L.A. caused Dr. Wormith concern as to whether J.R.S. will comply with court orders. [106] All that being said, Dr. Wormith concluded that long-term offender designation is appropriate. However, J.R.S. may not be able to return to his home community for supervision because it is too easy for him to return to his former lifestyle. [107] Dr. Wormith could not provide an opinion on the length of time it will take for J.R.S. to benefit from programming such that his risk to re-offend may be controlled in the community. He stated that it all depends on J.R.S.’s rate of progress. It is Dr. Wormith’s hope that J.R.S. takes advantage of the opportunity to reduce that risk. VI. ANALYSIS AND CONCLUSIONS [108] The evidence is conclusive that the offence for which J.R.S. has been convicted is a serious personal injury offence as required by s. 753(1)(a) of the Criminal Code. The evidence is also conclusive that J.R.S. constitutes a threat to other persons because of his pattern of repetitive behaviour as defined in s. 753(1)(a)(i) and his pattern of persistent aggressive behaviour as defined in s. 753(1)(a)(ii). The opinions of Dr. Holden and Dr. Wormith both find J.R.S. to be high risk to re-offend in violent manner. [109] Before the court finds J.R.S. dangerous offender, the provisions of s. 753.1(1) pertaining to long-term offenders must be considered. Case law requires the court to be satisfied of all the conditions set out in s. 753.1(1) of the Criminal Code. The Crown has proved beyond reasonable doubt that it would be appropriate to impose sentence of imprisonment of two years or more for the predicate offence. J.R.S. has also been convicted of breaking and entering dwelling house to commit an indictable offence pursuant to s. 348(1)(b) of the Criminal Code. That offence carries maximum sentence of life imprisonment. [110] The Crown has proved beyond reasonable doubt that there is substantial risk that J.R.S. will re-offend. Thus, am satisfied as to the conditions set out in s. 753.1(1)(a) and (b). [111] For the court to find J.R.S. long-term offender such that definite sentence may be imposed, followed by supervision in the community, must be satisfied that there is reasonable possibility of eventual control of the risk in the community, as required by s. 753.1(1)(c). [112] Both Dr. Holden and Dr. Wormith are of the opinion that long-term offender order is appropriate. Although defence counsel suggested that J.R.S. would be given “time served” for being on remand, and then released on certain conditions, neither expert sees this as viable at present. Both experts recognize that J.R.S. requires programming for his substance abuse and his violent behaviour in an institutional setting. [113] The T[…] First Nation wants to provide support for J.R.S.. However, on all the evidence, its support system is at present non-existent. Assurances by the band council that conditions will be complied with and band council resolutions to prevent J.R.S. from contacting L.L.A. are positive steps. However, must conclude that they will no more sanction J.R.S. than any previous or current court orders have done. [114] must reject both Dr. Holden’s and Dr. Wormith’s expert opinions that long-term offender order would be appropriate. Dr. Holden’s opinion is based on hope. Dr. Wormith’s opinion is based on an incorrect premise in law and on misapprehension of the facts. [115] As reviewed in R. v. Haug, 2008 SKCA 23 (CanLII), the test for J.R.S.’s eventual control in the community is not based on hope, but reasonable possibility of eventual control. Smith J.A. stated at para. 87 91: In Goforth, the trial judge had relied upon the evidence of the assessment report of the clinical psychologist, who opined that the offender should be designated long-term offender although his previous behaviour suggested that he was not presently manageable in the community and there was ""little possibility of the eventual control of the risk in the community,"" noting that he had had opportunities in the past to participate in rehabilitative programs while incarcerated but had been unable to apply knowledge learned in ameliorating risk in the community. Nor had he taken any responsibility to address his problem of substance abuse and the pattern of violent behaviour was escalating. Nonetheless, the expert felt that the offender ought to be given an opportunity to avail himself of high intensity programs which ""may"" ameliorate his risk to re-offend if he availed himself of such programs. This witness had testified that he did not feel ""totally hopeless"" about the likelihood of the offender's risk becoming manageable in community setting, and that ""there's smidgen of chance."" (Quoted at paras. 43 and 44 of the appellate judgment) This Court held that the trial judge had wrongly interpreted s. 753.1(1)(c) as meaning dangerous offender designation was available only if there was no possibility Mr. Goforth would respond to treatment. Richards J.A., writing for the Court, said this: 54 The line of analysis employed by Dr. Holden and the trial judge runs counter to substantial body of appellate level case law. Sections 753.1(1)(c) of the Code requires that, in order to warrant long-term offender designation rather than dangerous offender designation, there must be reasonable possibility of eventual control in the community of the risk of reoffending posed by the offender. The authorities indicate that ""reasonable possibility"", of necessity, must involve something more than hope or empty conjecture. In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant conclusion that there is reasonable possibility of eventual control of the risk of reoffending. In other words, dangerous offender designation is not contingent on finding that the offender has absolutely no prospect of successful treatment while incarcerated. ... 65 The real question is whether it is reasonable to conclude Mr. Goforth will make that progress within the period of time comprehended by an appropriate determinate sentence. In my respectful view, the learned trial judge did not come to grips with this root issue. Rather, he proceeded on the basis that, in the absence of proof further programming would not succeed, the dangerous offender application should be rejected. This was misinterpretation of s. 753.1(1)(c) of the Code and an error of law. As this Court commented in Goforth, this view is consistent with substantial body of appellate level case law. The mere possibility that the offender might in the future benefit from treatment, to which he has been completely unamenable in the past, is not sufficient to warrant conclusion that there is reasonable possibility of eventual control of the risk of re-offending. In Pedden, the Court held, at para. 26, that ""the Code does not require that the Crown prove absolute ""intractability"" (a word that does not appear in s. 753) i.e., that the offender will never be treatable in his lifetime"" and added this comment, already quoted above: 30 In the case at bar, would emphasize the word ""reasonable"" as qualifier of ""possibility"" and the phrase ""within the terms of the long-term offender provisions"". Again, the Crown is not required to prove absolute intractability to meet its burden. If, as in this case, there is ""possibility"" of future treatment, but it is unlikely that such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions in the community, long-term offender designation is not appropriate. Similarly, in R. v. Allen, 2007 ONCA 421 (CanLII), 221 C.C.C. (3d) 261, the Ontario Court of Appeal held that the test pursuant to s. 753.1(1)(c) is ""not some vague hope of managing the risk in the community but reasonable possibility of doing so."" [116] Dr. Holden cannot estimate if or when J.R.S.’s risk to reoffend could be controlled in the community. At best, Dr. Holden has guarded hope for J.R.S.’s progress. That falls far short of the test imposed on the Crown to salsify the sentencing judge. [117] Dr. Wormith formed his opinion on the premise that dangerous offender designation is warranted solely for the worst offenders, who have an extremely high likelihood of offending in serious way. That is clearly wrong. As stated in Goforth, supra, qualitative assessment of the degree of violence is not required for finding of dangerous offender. [118] Dr. Wormith has also mis-apprehended the circumstances of the predicate offence. In examination-in-chief, Dr. Wormith referred to page 13 of his report, which stated that “there is no evidence that his domestic assault is escalating as his most serious domestic assault occurred in 2001 ...” He admitted that alcohol was involved in the predicate offence, but stated that, because this offence was not as horrific an offence in comparison to the previous one, that was cause for encouragement. [119] Dr. Wormith has no such cause for encouragement. The predicate offence is an horrific offence, as was the 2000 assault conviction that placed J.R.S. in prison in 2001. J.R.S. wrote to L.L.A. just prior to the hearing, “I could have killed you by accident.” [120] Dr. Wormith also supports the long-term offender status for J.R.S. because he had not been provided the full scope of treatment in the past. This premise is inaccurate. J.R.S. has been offered intensive family violence treatment, but he declined the opportunity. The substance abuse programming that J.R.S. took has been ineffective. He re-offends in serious manner, under the influence of alcohol, in short time after release from prison. [121] Dr. Wormith cannot predict how long J.R.S. will require to benefit from treatment. His opinion is based on hope that J.R.S. will take advantage of the programmes in CSC. As stated previously, an expression of hope is insufficient to satisfy the sentencing judge there is reasonable possibility of eventual control of J.R.S.’s risk to re-offend within the community. [122] The expert testimony of Deborah Farden must be considered. The factors outlined by Farden provide high lethality risk for femicide in J.R.S.’s present situation. L.L.A.’s safety cannot be ignored. As shown by the transcript of my decision on conviction dated September 17, 2008, J.R.S. has made threats against L.L.A. after she testified against him in 2005: [51] Interestingly, letters seized by Robert Legue as result of the Saskatoon Correctional Centre routine inspection of cells shows different side of the accused after L.L.A. did testify against him in Provincial Court. The letter (Exhibit P-12) dated June 13, 2005, written by the accused states: “I can’t believe that let my ex con me into her trap, that sneaky bitch. Hey, is there any (IP) girls in there? If my ex goes back in there will find way to have her tuned up ...” [52] Mr. Legue, the corrections supervisor, explained that “IP” refers to Indian Posse. Because the contents of the letter seemed to be threats against L.L.A., he notified the Crown about it. [123] J.R.S.’s long history of non-compliance with court orders, including his recent contact with L.L.A. to attempt to obstruct justice, provides no assurance that he can be controlled in the community. determinate sentence followed by long term supervision is not appropriate. The possibility that J.R.S.’s risk to re-offend can be eventually controlled in the community is so remote that the requirements of s. 753.1(1)(c) of the Criminal Code are not satisfied. [124] Thus, because the Crown has proved the essential elements of s. 753 of the Criminal Code beyond a reasonable doubt, J.R.S. is designated a dangerous offender. Because no lesser measure under s.753(4) will adequately protect the public, J.R.S. is sentenced to imprisonment in a penitentiary for an indeterminate period on the conviction pursuant to s. 267(b) of the Criminal Code. [125] As to the remaining eight charges (the six guilty pleas and two convictions), J.R.S. is sentenced to time served. [126] Although these following orders have been made by previous sentencing judges, to the extent they are necessary to be repeated, J.R.S. is prohibited from possessing firearms, crossbows, restricted weapons, ammunition, and explosives for life, in accordance with s.109 of the Criminal Code. Furthermore, as this is primary designated offence within s. 487.04, make an order in Form 5.03 authorizing the taking of samples of bodily substances required for the purpose of forensic DNA analysis. [127] It is hereby ordered that all reports, testimony, and transcript of the trial, including my decision and the ruling on the Charter application cited as 2008 SKQB 288 (CanLII), be forwarded to CSC, as required by s. 760 of the Criminal Code. J. A. R. ROTHERY","The accused was convicted of common assault, break and enter and commit assault and assault causing bodily harm and his former common law spouse was the complainant in each instance. The accused also entered guilty pleas to three charges stemming from breaches of no-contact conditions with the same complainant plus two charges of obstruction of justice by attempting to dissuade the same complainant from giving evidence. The RCMP had to execute a Feeney warrant to locate the complainant in the accused basement. The Crown sought an order declaring the accused a dangerous offender. HELD: The accused was designated a dangerous offender and was sentenced to imprisonment in a penitentiary for an indeterminate period on the conviction pursuant to s. 267(b) of the Criminal Code and received time served on the remaining eight charges. The evidence is conclusive that the offence for which the accused was convicted was a serious personal injury offence. The evidence was conclusive that the accused constitutes a threat to other persons because of his pattern of repetitive behaviour and persistent aggressive behaviour. The accused's First Nation would provide support for the accused but its support system is presently non-existent. The Court rejected the expert opinions recommending a long term offender order as being appropriate.",7_2010skqb33.txt
221,"nan 2002 SKPC 80 IN THE PROVINCIAL COURT OF SASKATCHEWAN NIPAWIN, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and SHELDON FEDERUIK G. Parker, Esq. ................................................................................................ Crown Prosecutor R. Saretzky, Esq...................................................................................... Counsel for the Accused (J. Wang, Articling Student) May 8, 2002 DECISION AND May 22, 2002 SENTENCING (ORAL) HALDERMAN, PCJ R. Federuik Decision and Sentence Urban Municipalities Act, s. 135.3(3) [FROM THE TRANSCRIPT, EDITED] MAY 8, 2002: [1] Sheldon Federuik is charged that between the 9th of September and the 25th of September, 2001, at Nipawin, Saskatchewan, he did own a dog, to wit, that without provocation attacks a person, contrary to s. 135.3(3) of The Urban Municipalities Act. With respect to this alleged offence, the Crown must prove beyond reasonable doubt that the offence has been committed, and if the Crown proves on that basis that the offence has been committed, then it’s open to the accused, and necessary for the accused, to establish on balance of probabilities that he took such reasonable steps as were necessary to prevent the offence from occurring. [2] The evidence this afternoon indicated and established that there were four separate incidents in September of 2001 involving Mr. Federuik’s dog. Firstly, on the 9th of September when Mrs. Barks came up the alley towards her house and was frightened by the dog. Secondly, on the 19th of September on the front steps of Mrs. Barks’ house. Thirdly, on the 15th of September (reversing the chronological order) when garage sale was being held at the Barks and Zawislak residence in proximity to Mr. Federuik’s residence. And, fourthly, on the 25th of September when Mr. Federuik’s dog ran through Mrs. Barks’ yard and then was reported to have upset Mr. Zawislak’s daughter. And the issue, as I’ve indicated, is: Has the Crown proven an attack on any of those four occasions? understood Mr. Saretzky to be agreeing that the presumption of non-provocation that’s set out in s. 135.2(1) of The Urban Municipalities Act applies, and that that presumption has not been displaced. [3] Mr. Saretzky provided dictionary definition with respect to the word “attack,” and that definition, as noted it, was, “To set upon violently, to begin battle.” In my view, that definition is not appropriate nor accurate in the context of an attack by an animal. Dogs do not go into battle, not in the ordinary sense of that word, and consider the ordinary sense of that word to be voluntary intention to be involved in some physically violent act. [4] Rather, in the context of The Urban Municipalities Act, the section under which Mr. Federuik is charged, it is my opinion that an attack is an unrequested confrontation of human by dog made in circumstances where the dog exhibits loud and angry-sounding barks, snarls, or growls, and made within close range of the human. If the circumstances disclose that the dog runs toward or up to the human, that makes clearer that the dog’s action is an attack. In the Court’s opinion, common sense and don’t have any law provided to me to the contrary of what consider to be common sense bite is not necessary for there to be an attack, and in that sense the definition of battle again, think, is not apt in that in battle you intend to come into physical not only proximity, but to engage in aggressive and physical contact with the opposing party. [5] If a dog is territorial or protective, and the facts show that the human has, by intruding, been in law provocative, the offence may not be proven beyond a reasonable doubt, but on the evidence in this case I find that on all four dates there was no intrusion which was sufficient to justify an attack or which could be considered as provocation, even if Mr. Saretzky had not conceded the point. [6] Dealing then with the four incidents, the first on September the 9th. The evidence of Mrs. Barks was that she was walking down her alley and toward her house, and that the accused’s dog ran up to her from behind, and then in front of her such that, as find, she had to stop. find that the dog snarled, exhibited distinct signs of vicious, angry behaviour such that she legitimately believed that she might be bitten. Mr. Federuik was the only other witness with respect to this incident. He agreed, as understood his evidence, that the dog, in fact, got out through garbage can enclosure in the fence, but says that the dog didn’t get closer to Mrs. Barks than three feet, and that it went back when he called it. [7] accept the evidence of Mrs. Barks, and disbelieve the evidence of Mr. Federuik. In the Court’s opinion, Mrs. Barks was not discredited on cross-examination as to what she observed or what she felt, and taking the evidence of Mr. Federuik as whole and I’ll refer in few moments to some other of his evidence which causes me to form my conclusion disbelieve his evidence as to what the dog did on that occasion. accordingly find that on the definition of attack, as understand it, that the Crown has established beyond reasonable doubt that there was an attack on Mrs. Barks on September the 9th. [8] Dealing next then and again slightly out of chronological order, just because that’s the way went through this. Dealing with the September 19th incident, which was the dog on the doorstep incident, the only direct evidence was that of Mrs. Barks as to what was observed. The evidence of Mrs. Barks was that the dog was in close proximity, and was snarling and barking, but in that case she was inside of her residence. In the Court’s opinion, the dog’s actions might have justified requiring hearing under the other section of The Urban Munipalities Act, which provides for determination as to whether dog is dangerous or not, but in this case there was not, in the Court’s opinion, any attack on her on that date. do accept her evidence as to what occurred on that occasion, and that evidence, in the Court’s opinion, goes to whether Mr. Federuik took reasonable steps to control his dog, and I’ll deal with that matter at the conclusion of my dealing with each of the incidents. [9] Dealing thirdly, then, with the September 15th incident, the garage sale, the evidence of Ms. Cherepuschak and Mr. Zawislak was that the accused’s dog ran at lady who was leaving the garage sale. Ms. Cherepuschak said in her evidence that the dog came within two feet of the lady, and believe Mr. Zawislak said three feet, and that in their opinion the only reason the dog didn’t get closer was that the lady got into her vehicle and drove away before the dog got any closer. Again, in my opinion, this evidence was not discredited or effectively discounted in cross-examination. contrast that with Mr. Federuik’s evidence that the dog only took few steps towards the lady before he called it back, and Ms. Person’s evidence that she saw nothing untoward happening at all. [10] also take into account, in weighing the evidence and determining the credibility of the various witnesses, Mr. Federuik’s response to the prosecutor regarding the photo of Mr. Federuik’s house window. found him to be less than forthright in his response that he liked the window, and that was the reason that he’d brought copy of the photo along to court with him today. accept, in this case, the Crown’s evidence with respect to the proximity of the animal and the actions of the animal to the lady leaving the garage sale. find that the dog ran at the lady in menacing fashion, did get within three feet of her before she drove away. Mr. Federuik’s evidence, I’m not sure it was heard by others, but understood his evidence in that regard to be that she “burned” away, as recall what he said. On all of the evidence, have no doubt that the Crown has established an attack beyond reasonable doubt. [11] With respect to the fourth incident, that was on the 25th of September, the evidence was that the dog ran through Mrs. Barks’ yard and then ran elsewhere, to the extent that Mr. Zawislak had understood that that was what had caused his daughter’s upset. There’s not any evidence before the Court with respect to an attack on any human. The evidence again goes, in the Court’s opinion, to whether Mr. Federuik took reasonable steps to avoid the offence occurring. [12] And dealing then with that latter matter, whether Mr. Federuik had taken reasonable steps on any of these occasions to ensure that his dog did not attack someone in the fashion prohibited by s. 135.3(3) of The Urban Municipality Act, in my opinion it’s irrelevant at law that after a dog attacks it responds to its owner’s commands. That’s after the fact. But that doesn’t deal with whether an attack, in fact, occurred or whether the dog then does respond if the owner commands it to. Nor in my opinion is it relevant in law that the dog is docile with family members or even with, in this case, Mr. Derbowka. The issue is: Should the owner know that there’s possibility that the animal may attack human, and what does the owner do having such knowledge of that? And in that latter regard, there are seven specific pieces of evidence that I want to point to as backing up my conclusion that Mr. Federuik did not take reasonable steps. [13] There is clear evidence that on the occasion when Mrs. Barks was in her back alley, the dog escaped through the garbage can enclosure. There is similarly evidence that he went through Mrs. Barks’ -- sorry, that there was a second occasion when, on Mr. Federuik’s admission, he came into the back yard and his daughter had either gotten the dog off its logging chain leash, which would indicate that there weren’t reasonable steps taken to prevent a small person, a small child, or the dog from getting free itself. Somehow, inexplicably, the dog got off its leash. Again, both of those either of those possibilities indicate to the Court, without some explanation, that there weren’t reasonable steps being taken, particularly if small child could remove the leash. [14] Thirdly, that there’s clear evidence that the dog was not sufficiently restrained or enclosed, that it ran from its yard and attacked the lady that was attending the garage sale. The evidence was that the dog was at or near Mr. Federuik’s feet, but nevertheless there wasn’t sufficient scheme in place, if could put it that way, by Mr. Federuik to make sure that if the dog decided to get up and leave he wasn’t able to stop it immediately. [15] Fourthly, there’s clear evidence that the dog, in some fashion, was free to run on to Mrs. Barks’ step, and the basis on which the dog was free to do that was not adequately explained, nor was there any suggestion that Mr. Federuik had taken immediate steps just before that to make sure the dog wasn’t on the loose. On the 25th of September incident, the dog was free to run through Mrs. Barks’ back yard and then into the alleyway where it upset Mr. Zawislak’s daughter. [16] Sixthly, that Mr. Federuik considered it necessary in September of 2001 to attempt to keep the dog chained by logging chain affixed to post. This, in the Court’s opinion, doesn’t suggest that he thought he had an animal that should be of no concern to others. logging chain is pretty substantial way of tethering dog, and if person had no concerns at all in that regard, one would not expect dog to be attached to logging chain. [17] And finally, with respect to the matter of the leashing of the dog and the logging chain, Mr. Federuik’s evidence now is that since he’s moved, he continues to keep the dog on logging chain and affixed to four-inch pole inside completely enclosed high fence. All of these, and particularly the fact that he thought it was necessary to chain the dog in September, and he continues to think it’s necessary to chain it and now enclose it, indicates, in the Court’s opinion, the concern that this animal might well cause injury, or at the very least fright to any passerby or person that the dog came into contact with. [18] In light of all of that, conclude that Mr. Federuik has not established that he took reasonable steps such as would exempt him from conviction under this section of The Urban Municipalities Act, and accordingly find him guilty of the incidents alleged on the 9th of September with Mrs. Barks in her yard, and with respect to the lady leaving the garage sale on September the 15th. MAY 22, 2002: Thank you. Well, in passing the sentence that do, Mr. Federuik, take account, obviously, of the evidence that heard at the trial. also take into account the fact that the Province has provided this legislation under which you have been charged, and that both looking at the section you’ve been charged under, and more generally under the entire section dealing with dogs kept by owners, that the purpose of the legislation was to give people in the community who don’t have dogs, or who are neighbours, or who are simply walking down street in an urban community, peace of mind that they’re not going to be run at, let alone bit or badly injured by dog, and the legislation reflects that purpose. And it seems to the Court that it’s appropriate to craft sentence which reflects that general purpose, taking into account, in your case, as Mr. Saretzky says, what you have done yourself to deal with the problem. You do have an animal, which certainly appeared to the people that it ran at and the other people who gave evidence, to have the potential to inflict serious injury. And the fact that it didn’t is fortunate, but it certainly caused those people at whom the dog ran to fear for their personal safety, and think when you have an animal of this size that snarls or barks in vicious-sounding fashion that it’s quite reasonable and objectively reasonable for people on the street and neighbours to be concerned about their safety. [20] Accordingly, with respect to the sentence in this case, I’m of the view, in light of what you’ve done since, that the important consideration is to make sure that this dog does not present a risk to anyone on or off your premises, and my view is that the appropriate fine in the circumstances is $200, and that’s the fine that I impose. [21] In addition, am of the view that: (a) The dog must be kept within an enclosed fence and the fence must be continuous, surrounding the perimeter of your property and include a gate or gates which prevent the dog from exiting the property except when on a leash. (b) That the dog must be kept within the enclosed fence, and unless on a leash shall be chained to a four-by-four post embedded in the ground to a depth of three feet. The chain shall be attached to the post by means of three-quarter-inch diameter eye-bolt or similar attachment, which eye-bolt shall run through the post at height not more than four inches above the ground, and the eye-bolt or similar attachment shall be secured by flat washers on either side of the eye-bolt at the point where the eye-bolt meets the four-by-four. (c) If you remove the dog, and this is in accordance with 5(b) of s. 135.2, if you remove the dog from the enclosed fence, you shall muzzle and leash it in accordance with prescribed criteria (and those criteria are set out in the Regulations), and keep the dog under your direct control and supervision. (d) You shall obtain and keep in effect liability insurance in an amount not less than $300,000 to cover damage or injury caused by the dog. MR. PARKER: wonder if you might set deadline for that? THE COURT: Yes, I’m going to. And you shall within two weeks of today’s date, provide proof of such liability insurance to the Nipawin Detachment of the RCMP. (e) You shall display sign is the sign presently in the front of the property? MR. FEDERUIK: It’s right on the front, right by his dog house. THE COURT: So you shall display a sign on the fence enclosing the dog, warning of the presence of the dog with the following wording, “Guard Dog on Duty, Beware of Dog,” and you shall continue to display the sign in good condition as long as the dog is present on the property. (f) Sub-section (e) of s. 135.2 is simply requirement that you comply with the Regulations and The Animal Disease and Protection Act with respect to detection and control of rabies, but I’m going to include that. (g) I’m going to include clause (g) of 135.2(5) and require that where the dog is moved to different municipality you shall notify the Clerk of that municipality. (h) Where the dog is to be sold or given away, you shall notify any prospective owner of this Court Order before it is sold or given away, and you shall notify the Clerk of the municipality of the name, address and telephone number of any new owner of the dog. And believe that covers all of the conditions that the Court considers are necessary. [22] good number of those Mr. Federuik has already complied with, and unless you have any other conditions or any submissions with respect to those, Mr. Saretzky, those will be the conditions. MR. SARETZKY: think those are satisfactory, Your Honour. nan END OF PROCEEDING ON TAPE RECORDING","The accused was charged with owning a dog that without provocation attacked a person contrary to the Urban Municipality Act s.135.3(3). There were four separate incidents involving the dog in September 2001. At issue was whether the Crown had proven an attack on any of the four occasions. The accused agreed that the presumption of non-provocation set out in s.135.2(1) of the UMA applied and that presumption had not been displaced. HELD: 1)A $200 fine was imposed along with conditions. The dog must be kept within an enclosed continuous fence and chained to a post. There must be a gate preventing exiting except while on a leash and muzzled. The owner must display a sign stating Guard Dog on Duty. 2)If dog is territorial or protective, and the facts show the human has, by intruding, been in law provocative, the offence may not be proven beyond reasonable doubt. On the evidence there was no intrusion sufficient to justify an attack or which could be considered provocation. 3)There were seven specific pieces of evidence which supported the conclusion that the owner did not take reasonable steps to ensure his dog did not attack someone in the fashion prohibited by s.135.3(3). It is irrelevant at law that after dog attacks it responds to its owner's commands. The dog escaped the yard, was off leash and was not sufficiently restrained or enclosed. logging chain affixed to post is substantial way of tethering dog. One would not expect dog to be attached to logging chain if there were no concerns.",e_2002skpc80.txt
222,"Q.B. A.D. 1991 J.C.Y. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: JEANETTE MAY HESHKA and TERRANCE MICHAEL HESHKA RESPONDENT Jeanette May Heshka appearing on her own behalf K. W. Wasylyshen for the defendant JUDGMENT GEATROS J. May 16, 1994 The issues raised in this action is custody andaccess, child and spousal support, and division of thematrimonial property. The petitioner, Jeanette, the wife, is 43 years of age; the respondent, Terrance, the husband, 44 years. They were married in May 1983 and separated in March, 1991. There are two children of the marriage, Mark, born September 19, 1983, and Michelle, born February 11, 1987. Jeanette issued her petition in May 1991. Thehusband counter-petitioned in January 1992. On February 24, 1992, Osborn J. granted interim maintenance as follows: Spousal support$ 400.00 Child support for Mark$ 400.00 for Michelle$ 800.00 $1,600.00 An application by Terrance to reduce the interim support was denied by Matheson, J. on May 11, 1993. It is apt to proceed first with division of the matrimonial property. The result may have an effect on the other issues. The assets and the values placed thereon by the parties are as follows: Assets Valued by Terrance Valued by Jeanette 1. NE 13-29-4-W2 2. SE 13-29-4-W2 3. SE 12-29-4-W2 5. Farm machinery 6. Grain on hand 7. Cash on hand 8. His teachers' superannuation 9. Sask. Wheat Pool equity 10. Yorkton Co-op Investors portfolio (joint 4,186.34 The NE 13-29-4-W2 is the home quarter. It was purchased in 1985 for $75,000.00. There is $5,400.00 owing on that quarter section. One appraisal is by Four Seasons Realty. The other by Cliff Durnford Appraisal. prefer the valuation of the ""accredited appraiser"" over that of the ""realtor"". Including the grain bins, fix the value of the NE 13-29-4-W2 for distribution purposes at $42,375.00 (by Jeanette's appraiser) less $5,400.00 due or $36,975.00. There are no ""improvements"" to take into account as regards the other two quarter sections. There is $25,000.00 owing against the SE 13-29-4-W2. In his ""summary"" prepared for trial Terrance values the quarter section at $34,500.00, and Jeanette in her brief at $47,680.00 on the basis of ""eight times the assessment"". This land was purchased in 1989 for $55,000.00. The valuation of the appraiser and the realtor approximates that submitted by Terrance. The value for the purposes of distribution find to be $34,500.00 less $25,000.00 or $9,500.00. The SE 12-29-4-W2 was purchased by Terrance from his brother Eugene for $55,000.00 in 1982. According to the agreement for sale, $30,000.00 was to be paid before May, 1983, the date of the marriage. Jeanette contends that only $20,000.00 had been paid so that Terrance should be given an exemption of $20,000.00, not $30,000.00. Upon the evidence, on balance, would allow an exemption of $30,000.00 given that Terrance was able to acquire title so it can be presumed it is likely the purchase price was paid according to the tenor of the agreement for sale. Jeanette places the value of the SE 12-29-4-W2 at $52,720.00, again based on ""eight times the assessment"", but her appraiser's value is lower. accept Terrance's value of $36,750.00. There is fourth quarter section of land, the NW 6- 29-3-W2, acquired by Terrance prior to marriage and accordingly Jeanette is not seeking division of that land. Lorne Korpatniski has been auctioneer for 23 years and farmer since 1980. He says the machinery ""is in extremely poor condition ... it was sitting all over the yard"". His view is that there is no room for further depreciation. He itemized and valued each piece of machinery. In my view, his total value of $13,150.00 is well placed. accept that value over the one submitted by Jeanette. The evidence reveals the present value of Terrance's pension benefit accrued during his marriage to be $7,774.00. One half of that amount or $3,887.00 may be transferred to prescribed R.R.S.P. for Mrs. Heshka. The manager of the superannuation program for the Saskatchewan Teachers' Superannuation Commission in her letter in evidence says, ""when the court renders an award and payment is made to Mrs. Heshka by the Teachers' Superannuation Plan, she will have no further claim or entitlement to any pension or benefit pursuant to the Plan"". There is agreement on the value of the remaining assets. The parties concede there is to be equal division. There are three items Terrance says he held prior to marriage to which he claims an ""exemption"". would allow $1,345.00 related to Plan 24, Canora Credit Union by reason of Jeanette's consent, but not the other two. There is no basis for an exemption related to the Canora Credit Union chequing account, and find well founded Jeanette's contention that the fuel that was prepaid would have been used by the time of the marriage. The parties have divided the furniture and personal effects and it was agreed at the trial that Jeanette is allowed to have ""my cabin belongings"". It is ordered that Jeanette shall be entitled to take possession of them on Saturday, May 28th or Sunday, May 29th, next. In summary, Terrance's assets comprise: NE 13-29-4-W2 $36,975.00 SE 13-29-4-W2 $9,500.00 SE 12-29-4-W2 ($36,750.00 less exemption of $30,000.00) $6,750.00 Farm machinery $13,150.00 Cabin $6,000.00 Grain on hand $15,708.56 Cash on hand $4,913.68 Wheat pool equity $2,276.88 Yorkton Co-op equity $475.21 Investors portfolio (joint account) $2,832.66* Investors portfolio (Terrance only) $4,186.34 Total $102,768.33 Less agreed exemption $1,345.00 Total to be divided $101,423.33 Amount payable to Jeanette $50,711.66 *To be placed in Terrance's name solely. The ""amount payable"" does not include Jeanette's share of Terrance's pension benefit in the amount of $3,887.00. My ruling is that the Saskatchewan Teachers' Superannuation Commission shall transfer such sum to an R.R.S.P. as may be prescribed by Jeanette. In this regard, see the Commission's letter to ""Mr. Terry Heshka"" dated April 20, 1994 (exhibit D-7). It is hereby ordered that Jeanette Heshka has fromthis date a beneficial interest created by this order,sufficient to support the registration of a caveat, in thefollowing lands to the extent of $50,711.66:NE 13-29-4-W2nd,SE 13-29-4-W2nd, andSE 12-29-4-W2nd. It is further ordered that Terrance Heshka shall not transfer, mortgage, lease or otherwise encumber the said lands except in accordance with an order of the court. If the sum of $50,711.66, together with interest atthe judgment rate hereby ordered to accrue in the meantime, isnot paid by Terrance by September 1st next, Jeanette may applyto the court for a sale of the lands to facilitate payment ofthe amount then outstanding. Terrance is not seeking custody of the children, but requires firm guidelines as to access. Upon hearing theparties I am of the view that a kind of specified accessshould be put in place. There was discussion at the trial as to how it should be determined. The farm home is 22 miles from Jeanette's residence. Terrance shall be entitled to access every second weekend from Friday, p.m., to Sunday, p.m., beginning Friday, May 27th next. Should Terrance choose not to exercise his access rights during any weekend he must communicate with Jeanette to that effect no later than the prior Wednesday. Jeanette agrees, as do, that the children should be able to visit with their father during the week from time to time. It is not possible to specify the times when these separate visits shall take place. Suffice it to say that they are to be part of the reasonable access to which Terrance is entitled. Such visits must necessarily be kept in balance and require the goodwill and co-operation of Jeanette and Terrance so as not to conflict with the children's school requirements or activities that may have already been arranged for them. The children will spend either the first or second week of each of the months of July and August with their father. He is to inform Jeanette by June 1st each year what week during those months he has selected for the access period. Terrance shall have access during Ukrainian Christmas and Ukrainian Easter each year, from 10 noon Christmas eve to p.m. the day after Christmas, and from 12 noon of Good Friday to p.m. Easter day. Spousal support and child maintenance shall be inthe same terms as in the interim order. There is no basis upon which it can be varied downwards as Terrance contends. Michelle's multiple physical handicaps mitigates against change in the amount that is being paid for her. The evidence does not allow for lessening of the monthly payment of $400.00 for Mark. There is no doubt that the cost of maintaining children increases as they grow older. Concerning Jeanette, there are really no grounds upon which spousal support can be reduced below $400.00 monthly. Medication for her diabetes alone costs her up to $200.00 every month. She does not seek an increase in spousal support. Only that it remain the same as at the present time. Given the employment and farming income of Terrance during 1993 revealed in his 1993 income tax return, am not persuaded that he will not be able to continue making the support payments. In the result,Terrance will pay to Jeanette for her support the sum of$400.00 per month and, as well, the sum of $800.00 and $400.00per month for the maintenance of Michelle and Mark,respectively, for a total sum of $1,600.00, commencing thefirst of June, 1994. An award for retroactive support and maintenance sought by Jeanette must be rejected. There is no basis for an award predating the order of Osborn, J. make no order as to costs on the petition and counter-petition.","The wife petitioned and the husband counter-petitioned for a division of matrimonial property, custody, access and spousal and child support. HELD: 1)The matrimonial property was valued and divided equally. The wife was permitted to register a caveat to protect the value of her 1/2 interest. If the husband did not arrange payment by September 1st next, the wife was given leave to apply for a sale. 2)The wife was given custody of the 2 children of the marriage.  The court ordered specific access for the husband. 3)The court confirmed the interim support orders made before trial in the amounts of $400.00 per month for the wife, $400.00 per month for the oldest child, and $800.00 per month for the youngest child, who was handicapped.",7_1994canlii4892.txt
223,"J. 2003 SKQB 459 Q.B.C.N.J. A.D. 2003 No. J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and ELAINE LAUREL SOURA D.G. Curliss for the Crown T.E. Forsyth for the accused JUDGMENT HRABINSKY J. October 31, 2003 [1] The Crown proceeded against the accused on the following five counts in the indictment:1. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did unlawfully have in her possession a controlled substance, to wit, cannabis marihuana in an amount exceeding three kilograms, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. 2. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did in committing an assault on Constable Darcy Wilson use weapon to wit Buick car bearing Saskatchewan Licence Plate 640 CGC, contrary to Section 267(a) of the Criminal Code. 3. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, operating motor vehicle on highway to wit, Highway and Highway 21 in manner dangerous to the public contrary to Section 249(1)(a) of the Criminal Code. 4. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, while operating motor vehicle being pursued by police, did in order to evade the peace officer fail without lawful excuse to stop her vehicle as soon as was reasonable in the circumstances contrary to Section 249.1(1) of the Criminal Code. 5. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did being at large on her undertaking entered in before Justice and being bound to comply with condition thereof, to wit, keep the peace and be of good behaviour did fail without lawful excuse to comply with that condition contrary to Section 145(3) of the Criminal Code. [2] At the outset of the trial counsel for the accused took the position that the accused’s rights pursuant to ss. 8, 9 and 10 of Canadian Charter of Rights and Freedoms were infringed and that all evidence obtained after the initial stop should be excluded pursuant to s. 24(2) of the Charter. These sections read as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [3] The trial commenced by way of voire dire. [4] Constable Darcy Wilson graduated as an Royal Canadian Mounted Police officer on July 10, 2000. He had taken four-hour course on narcotics which included the smell of burning cannabis marihuana and the smell of raw cannabis. According to him there is drug problem in the Kindersley area where he was stationed and accordingly he had handled some 20 to 30 possession cases and some 10 to 15 trafficking cases. [5] At approximately 4:30 a.m. on February 24, 2002, near Kindersley, Saskatchewan, Constable Wilson stopped the accused’s vehicle because it had cracked rear tail light on the passenger side. The cracked tail light emitted white light approximately two inches by two inches square. No issue is taken with Constable Wilson’s authority to stop the accused’s vehicle since such stop is authorized pursuant to s. 40(8) of The Highway Traffic Act, 1996, S.S. 1996, c. H-3.2. See also R. v. Duncanson (1991), 1991 CanLII 2760 (SK CA), 93 Sask. R. 193 (C.A.) (appeal dismissed), [1992] S.C.R. 836. [6] After Constable Wilson pulled the accused’s vehicle over to the shoulder of the highway he exited his patrol car and approached the accused’s vehicle. The driver’s window on the accused’s vehicle was down or at least partially down and Constable Wilson noticed that the rear of this vehicle was cluttered with blankets and there was red bag which extended about three-quarters of the way up the back seat of the vehicle. Duct tape sealed the lip of the bag and Constable Wilson stated that duct tape is commonly used to seal bags with contraband and narcotics. The cluttered interior of the vehicle gave Constable Wilson some cause for concern that there could possibly be hidden weapon. On cross-examination he acknowledged that the red bag which was actually dog food bag with duct tape could have had dog food in it. [7] When Constable Wilson stopped the accused on the highway she immediately confronted him with the question, “Why are you stopping me?” Constable Wilson said he advised her about the cracked tail light and asked her where she was coming from and where she was going. Constable Wilson said that she was extremely nervous and agitated. [8] Constable Wilson testified that he approached the accused’s vehicle and requested her driver’s licence and vehicle registration. As the accused reached for her purse and put it on her lap to retrieve these documents, Constable Wilson shone his flashlight into the car and into the accused’s purse. At this time the interior light of the accused’s vehicle was illuminated as she was searching for these documents. Constable Wilson testified that as she was reaching into her purse he observed some pill bottles, Zigzag rolling papers and what appeared to be green leafy substance which was loose on the bottom of her purse. He also observed some cash. Constable Wilson could smell very strong odour of raw cannabis coming from the interior of the vehicle and as the accused provided her driver’s licence he noticed dark green stain on it which he said looked like cannabis resin. At this point in time Constable Wilson said he formed the opinion that there was cannabis marihuana in the vehicle and he advised the accused that he could smell cannabis marihuana in the vehicle and that it appeared that there was hash oil on her driver’s licence. She denied this and stated, “If give it to you, will you let me go?” [9] Constable Wilson said that at this point in time the accused was hysterical and he advised her that she was under arrest for possession of marihuana. As he did so, she grabbed the driver’s licence and Constable Wilson reached into her car to prevent her from driving away. In his words, he “wanted to maintain control”. The accused put the car into drive and pulled away. As the car moved forward the door handle brushed Constable Wilson’s side. He said that this was very minor and that red mark appeared few days later. Constable Wilson did not notice any other person or persons in the vehicle. Constable Wilson observed that the licence plate on the accused’s vehicle was 640 CGC. [10] The accused sped east on highway no. going toward Kindersley, Saskatchewan. Constable Wilson was in hot pursuit travelling up to 190 kilometres per hour in an effort to catch up to the accused’s vehicle. After catching up to her vehicle the speed was approximately 170 kilometres per hour. Constable Jason Michael Pshyk, member of the RCMP, followed Constable Wilson in the pursuit of the accused. [11] Constable Jennifer Barnes, another member of the RCMP then stationed at Kindersley, Saskatchewan, blocked the intersection of highways no. and 21 by putting her vehicle diagonally across that intersection which is the first major intersection in that area. [12] All three RCMP vehicles had activated all of the emergency equipment on their vehicles. [13] As the accused approached Kindersley where there is 70 kilometre per hour speed zone, she applied her brakes and turned south on highway no. 21. As she turned south she accelerated and Constable Wilson observed that she reached speeds of 160 kilometres per hour and at this point he noticed some movement in the back seat of the accused’s vehicle. As Constable Wilson pursued the accused’s vehicle he said that large red bag was thrown from the accused’s vehicle and this bag struck the right corner of his vehicle. The accused continued at speed of approximately 150 kilometres per hour for about five kilometres and gradually slowed to 140 kilometres per hour then to 120 kilometres per hour. Approximately 13 kilometres south of Kindersley the accused pulled her vehicle over to the side and Constable Wilson pulled his vehicle up beside her vehicle on the driving lane. Constable Wilson testified that the accused had her hand out of the window and was screaming hysterically. Constable Wilson exited his vehicle as did Constable Pshyk. Both officers had drawn their firearms. [14] Constable Wilson handcuffed the accused and advised her that she was under arrest for dangerous driving, assaulting police officer, possession of cannabis marihuana and flight. The arrest was made at 5:06 a.m. Constable Wilson testified that he read the police warning to the accused and gave her her Charter rights to counsel. According to him, as he did so, the accused stated, “I’m not fucking listening to you. Do fucking what you fucking want.” Constable Wilson asked her if she wished to contact counsel and she replied, “Yes”. Constable Wilson stated that he again read her the police warning from his Charter card and she replied, “I’m fucking scared of you guys.” [15] Constable Barnes conducted pat search on the accused. [16] When the accused was arrested Constable Wilson noticed that there was small girl approximately 10 years of age, wearing only panties, covered with blanket in the back seat of the accused’s vehicle. She was screaming and crying. [17] On the way back to the RCMP detachment the accused was in the back seat of the patrol vehicle. She was screaming and her little girl was crying. While they were travelling northbound toward Kindersley they came across Constable Barnes approximately one kilometre south of the railway track and observed that she was retrieving the red bag that had been tossed out of the accused’s vehicle. [18] The evidence establishes that the weight of marihuana seized was 3.0575 kilograms which at the gram level would be valued at $45,862.50. At the one-eighth ounce level, it would be valued at $34,942.80. At the one-quarter ounce level, it would be valued at $34,942.86. At the one ounce level, it would be valued at $27,300.00. At the one-quarter pound level, it would be valued at $24,570.00, and at the pound level it would be valued at $18,844.00. [19] Detective Constable Vincent Ashmeade, drug investigator with the Saskatoon Integrated Drug Unit, expressed the opinion that the marihuana seized in this investigation was for the purpose of trafficking and not for personal usage. According to him the user usually buys his/her supply in small amounts such as grams, one-eighth ounce lots or one-quarter ounce lots and then rolls joints as required. The marihuana seized in this investigation could not be consumed by an individual before it deteriorated to worthless value. user would not transport large quantities of marihuana around in his/her vehicle. Users would carry their daily supply of marihuana on their person and keep the remaining marihuana in safe location. [20] In this case the accused was in possession of 2,446-day supply or 6.7-year supply. Since the shelf life of cannabis marihuana is six months, under ideal conditions this amount far exceeds what could normally be considered “personal usage”. [21] They arrived back at the detachment office at 6:01 a.m. and at 6:05 a.m. Constable Wilson asked the accused if she wished to contact lawyer. Her response was, “No, just fucking shoot me. am dead already. They’re going to kill me.” [22] Constable Wilson searched the accused’s purse and found one gram of cannabis marihuana, Zigzag rolling papers, $250 Canadian in cash, piece of paper with some writing on it. [23] Social Services was contacted. [24] The accused told Constable Wilson that her common law husband lived in Melfort and so he contacted him for her. [25] Defence counsel admits that the contents of the ziplock bags and the dog food bag is cannabis marihuana with total weight of 3.0575 kilograms. Constable Wilson testified that the most common packaging for cannabis marihuana is to place the cannabis marihuana in ziplock bag and then to place that bag in another ziplock bag and then those two bags with the cannabis marihuana are normally put in vacuum bag. These had not been put in vacuum bag. [26] In the trunk of the accused’s vehicle, Constable Wilson found receipt for recent purchase of dog food. [27] During the initial stop of the accused’s vehicle and after Constable Wilson found the spot on the driver’s licence which he believed to be hash oil, he asked the accused how long she had been in B.C. and noted that she had no luggage. [28] On cross-examination Constable Wilson was asked whether he noticed the smell of cannabis marihuana after the conversation with respect to the luggage and how long the accused was in British Columbia. He answered, “No” “Incorrect”. He was then referred to question 310 on p. 72 of the transcript of the preliminary inquiry and he replied that that answer was incorrect. [29] On cross-examination, Constable Wilson admitted that when the accused drove off she did not manoeuvre her vehicle in such manner as to hit him. He also acknowledged that there was nothing to indicate that she was not in control of the vehicle. [30] The continuity of all exhibits was admitted by defence counsel. [31] Constable Jason Pshyk, an RCMP officer, testified that on February 24, 2002, at approximately 4:35 a.m. he was on the north side of highway no. 7, approximately 10 kilometres west of Kindersley. Constable Wilson was next to him. After he, Constable Pshyk had pulled over vehicle and when he was through with that vehicle he then parked behind Constable Wilson’s vehicle at the place where Constable Wilson had pulled over the accused’s vehicle. Constable Pshyk said that Constable Wilson was on the driver’s side of the accused’s vehicle and he noted that the accused was quite emotional and was crying. He also noticed smaller child in the back seat covered with blanket. He shone his flashlight into the accused’s vehicle and walked ahead beside the driver’s mirror which put him approximately one foot away from Constable Wilson. He said the accused’s driver’s window was down and Constable Wilson was dealing with the accused. He said that Constable Wilson had the accused’s driver’s licence in his hand and he heard Constable Wilson say to the accused that there was hash oil on her driver’s licence. Constable Pshyk said that the accused was crying and saying that it was not hash oil at which time the accused put her vehicle into drive and accelerated. [32] Constable Pshyk substantially corroborated Constable Wilson’s testimony with respect to the pursuit of the accused. [33] On cross-examination Constable Pshyk testified that he was looking for violations under The Highway Traffic Act and that he was on general duty. On further cross-examination Constable Pshyk stated that when he was near the mirror of the accused’s vehicle standing approximately one foot to Constable Wilson’s left, Constable Wilson was in bent position talking to the accused. He could not recall if Constable Wilson’s body was touching the accused’s vehicle but he did note that Constable Wilson had the accused’s driver’s licence in his hand. He heard Constable Wilson ask the accused if that was hash oil on her driver’s licence but he did not recall if there was mention of cannabis marihuana odour in the vehicle. He heard Constable Wilson arrest the accused but stated that he never heard the accused say, “If give it to you, will you let me go?” [34] On further cross-examination Constable Pshyk said that his notes do not indicate that Constable Wilson asked the accused about the odour of cannabis marihuana in her vehicle. He stated, “It may have been asked. just didn’t put it in my notes.” He did not see Constable Wilson being struck by the accused’s vehicle. [35] It is admitted by both counsel that Constable Pshyk did not smell cannabis marihuana when Constable Wilson first stopped the accused. [36] At the commencement of argument, defence counsel admitted that the Charter arguments refer only to count in the indictment. [37] Counsel for the accused submits that Constable Wilson did not see green material in the accused’s purse as he shone his flashlight into it and he submits further that Constable Wilson did not smell the odour of raw cannabis marihuana emanating from the accused’s vehicle. do not accept either of these submissions. The submission that should not believe Constable Wilson when he stated that he saw green material in the accused’s purse because he did not enter that in any one of the four documents which he prepared in connection with this investigation is without merit. [38] Defence counsel’s submission that this Court should not believe Constable Wilson’s testimony that he was able to smell strong odour of raw cannabis marihuana emanating from the accused’s vehicle because Constable Pshyk said he did not smell any such odour and because Constable Pshyk was not able to say that he heard Constable Wilson ask the accused about the smell of odour of raw cannabis marihuana is also without merit. [39] find that Constable Wilson was candid and straightforward in his testimony. Section Search or Seizure [40] Section of the Charter provides that, “Everyone has the right to be secure against unreasonable search or seizure.” [41] Section 495 of the Criminal Code of Canada provides: 495.(1) peace officer may arrest without warrant (a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, (b) person whom he finds committing criminal offence, or [42] find that Constable Wilson observed what he reasonably believed to be marihuana leaves in the bottom of the accused’s purse. He also observed what he believed could have been hash oil stain on the accused’s driver’s licence. find that Constable Wilson smelled strong odour of raw marihuana in the accused’s vehicle. The strong odour of raw marihuana emanating from the interior of the accused’s vehicle would in itself amount to reasonable grounds not only for lawful detention but also for arrest. [43] In The Queen v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.), at 324, the court stated that although grounds for arrest must be reasonable from both an objective and subjective point of view: the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish prima facie case for conviction before making the arrest. [44] In The Queen v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), at 219, affirmed 1989 CanLII 78 (SCC), [1989] S.C.R. 225, the court stated: The standard of “reasonable grounds to believe” is not to be equated with proof beyond reasonable doubt or prima facie case. The standard to be met is one of reasonable probability. [45] In The Queen v. Sewell, 2003 SKCA 52 (CanLII), (2003) 175 C.C.C. (3d) 242, the Saskatchewan Court of Appeal recognized that the smell of raw marihuana alone can amount to reasonable grounds. At para. 39, there is the following: [39] As for the second basis, namely, that the officer, upon smelling the marijuana, then had reasonable and probable grounds to conduct warrantless search, echo and rely on the comments of Tallis J.A. in R. v. Ladouceur, 2002 SKCA 73 (CanLII), [2002] W.W.R. 209, 165 C.C.C. (3d) 321 (Sask. C.A), and his later reference at para. 141 to R. v. (D.)I.D. (1987), 1987 CanLII 206 (SK CA), 60 Sask. R. 72; [1988] W.W.R. 673, 38 C.C.C. (3d) 289 (C.A.), approved by the Supreme Court of Canada in R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.R. 223, 84 C.C.C. (3d) 173. In paras. 125-128 he said: [125] Before turning to the s. question–whether the warrantless search of the vehicle was based on reasonable and probable grounds–I observe that Mellenthin and R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341 (S.C.C.) recognized that police officers need not ignore other legitimate aspects of their general duties and powers when manning checkpoint. In the circumstances of the case before us, either officer had every right to open the car door and speak to the passenger: See Belnavis, supra, p. 358, para. 28. When so engaged, officers do not leave their perceptory senses–whether visual, olfactory or auditory–at some other location. Stolen property or illegal firearms are but two examples [Note 20: See for example Part III of the Criminal Code: Firearms and Other Weapons and regulations thereunder.] [126] Although there is an expectation of privacy in automobile travel, it is markedly decreased relative to one’s home or office: See for example R. v. Wise, 1992 CanLII 125 (SCC), [1992] S.C.R. 527 (S.C.C.). Even the sanctity of the home does not preclude warrantless visual surveillance of its exterior. In such circumstances “the eye cannot by the law of England be guilty of trespass”: Entick v. Carrington (1765), 95 E.R. 807, 19 State Tr. 1029 (Eng. K.B.). [127] The same can be said with respect to auditory and olfactory senses. Aromas that are generated in private home, “distillation” plant, laboratory or opium den enter the public domain if and when they leave the building. Indeed the ordinary use of senses might enable member or passing member of the public to pick up the aroma emanating from home, particularly if it is vented. In my opinion the doctrine of “plain smell” is doctrine of common sense–similar to the “plain view” doctrine: See for example R. v. Smith (1998), 1998 ABCA 418 (CanLII), 126 C.C.C. (3d) 62, 161 D.L.R. (4th) 331 (Alta. C.A.). [128] Given the lessened expectation of privacy in an automobile, police officers are entitled and expected to utilize their senses during the course of their duties. If the aroma of liquor or drug is evident, the question then becomes one of the proper test to determine whether reasonable and probable grounds exist for search. Police officers cannot reasonably be expected to avert their eyes from evidence of activity, whether criminal or otherwise, that could be observed by any vigilant member of the public. So too, police officers do not have to avert their senses from detecting emissions or aromas in the public domain such as traces of smoke and suspicious odours. Such sensing of emissions, aromas or odours and drawing sensible conclusions from their detection is entirely reasonable when considering whether reasonable and probable grounds exist for search. [46] find that the strong odour of raw cannabis marihuana smelled by Constable Wilson combined with the other indicators observed by him provide more than sufficient basis for reasonable grounds either for search or for arrest or for both. [47] The s. Charter argument fails. Detention or Imprisonment [48] Section of the Charter provides that, “Everyone has the right not to be arbitrarily detained or imprisoned.” [49] The authorities are clear that during the course of highway traffic stop the police are authorized to make certain inquiries and need not turn blind eye to matters which legitimately raise their suspicions. [50] In The Queen v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at 623-24, there is the following: There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of flashlight and it is necessarily incidental to check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can place any particular significance upon the fact stressed by the appellant that the police only made use of flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as necessary incident to the check stop routine. However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant’s words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into means of conducting either an unfounded general inquisition or an unreasonable search. [51] In later decision, The Queen v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341, La Forest J. (dissenting on another issue), at p. 371, stated: the police, since Ladouceur, supra, have the power to stop cars at their whim for purposes of traffic regulations and the like and to make enquiries relevant thereto from the occupants. also agree that the police in performing that duty need not turn blind eye to things in plain view that evidence, or raise suspicions of illegality, and that he or she may also ask questions about this, subject, of course, to the occupants’ right to silence. [52] In The Queen v. Sewell, supra, the Saskatchewan Court of Appeal recognized that police have legitimate general duties and powers when dealing with stopped motorists including looking, smelling and listening. Paragraphs 38 to 41 of that decision read as follows: [38] Even if were to find that the officer’s presence at the back of the vehicle was unlawful for the reasons contended by the appellant, would be hard pressed to find that the officer lacked authority to arrest the appellant for an offence he found him committing. By way of analogy, offer this set of circumstances. police officer unlawfully enters dwelling house. That unlawfulness is rooted in breach of one of the occupant’s Charter rights. He finds the occupant pointing gun at another person who is strapped to chair in distraught state. Is the officer precluded from arresting that occupant for committing the offence of forcible confinement on the ground that he, the officer, unlawfully entered the dwelling house? would find it very odd, indeed, if breach of the occupant’s Charter right brought about such result. [40] Tallis J.A. wrote in dissent, but the majority found it unnecessary to deal with the issues reflected in these comments. find that in the present case, the officer, after experiencing “a very strong smell of marihuana, raw marihuana, in the back of the vehicle” (trial transcript, p. 26, lines 23-24), had reasonable and probable grounds to continue the search in question, that the evidence satisfies the D.(I.D.) test and that the search was not unlawful. [41] In the result, I find no breach of the appellant’s s. 8 Charter rights. [53] In The Queen v. Brown, 2001 SKQB 382 (CanLII), (2001) 210 Sask. R. 295 (Q.B.) (appeal dismissed without reasons), Saskatchewan Court of Appeal file 362, the court held that police may ask questions of detained motorist concerning observation or involvement in possible break and enter. [54] In the case before me I find that Constable Wilson was not in breach of the accused’s Charter rights by asking her where she had been and how long she had been there. [55] I find that the accused was not arbitrarily detained and there was no breach of her s. 9 Charter rights. Arrest or Detention [56] Section 10 of the Charter provides in part: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; [57] In the case before me, I find that on the arrest or detention of the accused she was promptly informed of the reasons therefor and she was informed of her right to retain and instruct counsel without delay. There was no breach of the accused’s s. 10 Charter rights. [58] In summary I find that there has been no breach of the appellant’s ss. 8, 9 or 10 Charter rights. However, even if had concluded that evidence was obtained against the accused in manner that infringed or denied any of her rights or freedoms as guaranteed by the Charter, would not find that, having regard to all the circumstances, the admission of such evidence would bring the administration of justice into disrepute. [59] The test for the exclusion or non-exclusion of evidence was first articulated in The Queen v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265. This was later clarified in The Queen v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607. [60] The factors to be considered in an analysis of s. 24(2) of the Charter were recently stated by Arbour J. in R. v. Buhay (2003), 2003 SCC 30 (CanLII), 174 C.C.C. (3d) 97 (S.C.C.). At p. 116, Arbour J. stated: D. Should the Evidence be Excluded Under Section 24(2) of the Charter? [41] Since this Court’s landmark decision in Collins, supra, the various factors to be considered in making this determination have been organized under three-step inquiry which has been generally adopted and applied in subsequent decisions of this Court. In the recent decision of Law [2002 SCC 10 (CanLII), [2002] S.C.R. 227], the Court summarized at para. 33 the process for determining whether the admission of evidence would bring the administration of justice into disrepute: In Collins, supra, this Court grouped the circumstances to be considered under s. 24(2) into three categories: (1) the effect of admitting the evidence on the fairness of the subsequent trial, (2) the seriousness of the police’s conduct, and (3) the effects of excluding the evidence on the administration of justice. Trial judges are under an obligation to consider these three factors. (1) Trial Fairness [50] The evidence obtained in violation of the Charter which does not emanate from the accused but rather existed independently of the violation is classified as non-conscriptive evidence. Its admission will not affect adjudicative fairness, but the second and third sets of factors may militate towards its exclusion: Stillman, supra; R. v. Evans, 1996 CanLII 248 (SCC), [1996] S.C.R. 8, 104 C.C.C. (3d) 23, 131 D.L.R. (4th) 654. [61] find that the cannabis marihuana discovered at the side of the road near the railway crossing after being thrown from the accused’s vehicle was non-conscriptive evidence. [62] At pp. 119-20 under the heading “Seriousness of the Breach”, there is the following: [52] The second set of factors relates to the seriousness of the Charter violation. The seriousness of the police’s conduct depends on “whether it was committed in good faith, or was inadvertent or of merely technical nature, or whether it was deliberate, wilful or flagrant” Therens [1985 CanLII 29 (SCC), [1985] S.C.R. 613], at p. 652. It is also relevant to consider whether the violation was motivated by situation of urgency or necessity: Therens, at p. 652; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297 at p. 367, 97 C.C.C. (3d) 450, 124 D.L.R. (4th) 193; Law, supra, at para. 37. Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant: Collins, supra, at p. 285; Law, supra, at para. 37. The court may also look at some or all of the following factors: the obtrusiveness of the search, the individual’s expectation of privacy in the area searched and the existence of reasonable and probable grounds (R. v. Caslake, 1998 CanLII 838 (SCC), [1998] S.C.R. 51, 121 C.C.C. (3d) 97, 155 D.L.R. (4th) 19, at para. 34). As we have seen, the trial judge is entitled to considerable deference on this point: Law, supra, at para. [63] In the case before me, Constable Wilson conducted legal vehicle stop after observing the broken tail light on the accused’s vehicle. find that Constable Wilson’s conduct was committed in good faith. It was not deliberate, wilful or flagrant. It is apparent that at 4:30 in the morning on dark night on highway there was some urgency or necessity to deal with this matter. Further, in the end result the police officers were able to obtain the evidence of the cannabis marihuana in the accused’s vehicle when it was thrown out of that vehicle. Thus, if there had been any disregard for the Charter rights, such disregard would be rendered gratuitous and blatant. [64] Counsel for the accused submits that the search if any began when Constable Wilson inquired of the accused where she had been and how long she had been there and the statement of fact that she had no luggage. Counsel for the accused also submits that when Constable Wilson shone his flashlight into the accused’s purse, this was search. In the case before me find that the search was not obtrusive. The accused’s expectation of privacy in her vehicle would be minimal and most important of all find that there was an existence of reasonable and probable grounds. [65] At p. 125 in R. v. Buhay, supra, Arbour J., under the heading “The Effect of Exclusion on the Reputation of the Administration of Justice”, states: [67] The third question from Collins is whether excluding the evidence would have more serious impact on the repute of the administration of justice than admitting it. This factor is generally related to the seriousness of the offence and the importance of the evidence to the case for the Crown. In Law, supra, at para. 39, the Court summarized this inquiry as follows: “In general, this turns on whether the unconstitutionally obtained evidence forms crucial part of the Crown’s case and, where trial fairness is not affected, the seriousness of the underlying charge.” [66] In the case before me, the admissibility of the evidence is essential to the Crown’s case in count in the indictment. [67] Count in the indictment is serious offence. [68] At pp. 126-27, Arbour J. stated: [71] Admittedly, there are various precedents where non-conscriptive evidence such as drugs was admitted on the basis that exclusion would bring the administration of justice into further disrepute than admission would, especially where the evidence was essential to the Crown (see, e.g., Mercer [(1992), 1992 CanLII 7729 (ON CA), 70 C.C.C. (3d) 180 (Ont. C.A.)]; Kokesch [1990 CanLII 55 (SCC), [1990] S.C.R. 3]; Evans, supra). Section 24(2) is not an automatic exclusionary rule (see, inter alia, Dyment, supra); in my view, neither should it become an automatic inclusionary rule when the evidence is non-conscriptive and essential to the Crown’s case. [72] The question under s. 24(2) is whether the system’s repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence: Collins, supra, at pp. 285-86. At the end of the day, though, the constitutional question is whether the admission of the evidence would bring the administration of justice into dispute (Collins, supra, at p. 281). [emphasis in original text] [73] The decision to exclude evidence always represents balance between the interests of truth on one side and the integrity of the judicial system on the other: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] S.C.R. 495 at p. 534, 45 C.C.C. (3d) 296, 55 D.L.R. (4th) 673. This was well put by Doherty J.A. in recent decision of the Court of Appeal for Ontario, R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 O.A.C. 169, 166 C.C.C. (3d) 14, at para. 47: “The last stage of the R. v. Collins, supra, inquiry asks whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great toll on the truth seeking goal of the criminal trial.” [69] Although have found that there has been no breach of the accused’s Charter rights, had found that there was breach on the facts before me, would find that having regard to all the circumstances the exclusion of the evidence in these proceedings would bring the administration of justice into disrepute.","The accused was charged with possession of marijuana for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and four other charges related to her attempts to evade arrest. At the onset of her trial, the accused took the position that her s. 8, s. 9 and s. 10 Canadian Charter of Rights and Freedoms were infringed and that all the evidence obtained after the stop should be excluded. HELD: The accused's Charter rights were not breached. 1) The strong odour of raw cannabis marijuana emanating from the interior of the accused's vehicle in itself amounted to reasonable grounds not only for lawful detention but also for arrest. 2) The officer was not in breach of the accused's Charter rights by asking her where she had been and how long she had been there. 3) On the arrest or detention of the accused, she was promptly informed of the reasons therefore and she was informed of her right to retain and instruct counsel without delay.",9_2003skqb459.txt
224,"nan Date:19990705 Docket: CA 153204 NOVA SCOTIA COURT OF APPEAL Freeman, Hart, Bateman, JJ.A. BETWEEN: KATHRYN BUREAU Bernadette Maxwell Michael J. O'Hara for the appellant and KPMG QUALITY REGISTRAR and BARRY TRAVERS Karin McCaskill for the respondent Respondent Appeal Heard: June 16, 1999 nan Judgment Delivered: July 5, 1999 nan THE COURT: Appeal and cross-appeal dismissed as per reasons for judgment of Bateman,J.A., Hart and Freeman, JJ.A., concurring BATEMAN,J.A.: [1] Kathryn Bureau appeals from an Order of Justice K. Peter Richard of the Supreme Court fixing damages in an action for wrongful dismissal. The trial decision is reported at (1998), 1998 CanLII 3563 (NS SC), 171 N.S.R. (2d) 360. BACKGROUND: [2] Ms. Bureau is 40-year-old quality assurance consultant specializing in the ISO quality registration system. Before joining KPMG Quality Registrar Inc. in January of 1996 she was self-employed operating her one-person consulting business under the corporate name, K. Dresser Enterprises Ltd. In the first full year of operation, 1995, her net income from that business was approximately $113,000 on gross billings of $195,000. [3] KPMG decided to establish quality assurance practice in Halifax. In the fall of 1995 that company recruited Ms. Bureau to join the firm as an associate. Her principal contact in that regard was Barry Travers who is partner with KPMG and was at that time charged with the responsibility of starting the quality assurance practice. [4] In series of meetings Ms. Bureau and Mr. Travers discussed her possible employment with KPMG. Their discussions culminated in written offer of employment dated November 14, 1995. She commenced working with the company on January 2, 1996. KPMG terminated her contract of employment March 3, 1997 with one month’s pay in lieu of notice. The relevant circumstances are recited in considerable detail in the trial judge’s decision. [5] Ms. Bureau sued for damages naming KPMG and Barry Travers defendants. Her claim alleged both wrongful dismissal and negligent misrepresentation. [6] The trial judge found no negligent misrepresentation but awarded damages equivalent to five months notice for wrongful dismissal. Ms. Bureau appeals the dismissal of her claim for negligent misrepresentation and also the notice period for the wrongful dismissal. The respondent cross-appeals, claiming that the five-month notice period should be reduced due to Ms. Bureau’s failure to mitigate. [7] The appellant identifies the following issues: (i) Did the trial judge err in failing to properly apply the principles of negligent misrepresentation as set out by the Supreme Court of Canada in Queen v. Cognos, 1993 CanLII 146 (SCC), [1993]1 S.C.R. 87? (ii) Did the trial judge err in failing to award more than five months pay in lieu of notice under all the circumstances of the case? (iii) If the answer to either or both of these questions is yes, how are damages to be calculated? [8] On the cross-appeal the respondent asks: (i) Did the trial judge err in law by not reducing the notice period for five months to account for the appellant’s failure to mitigate her loss? STANDARD OF REVIEW: [9] In Toneguzzo- Norvell (Guardian as litem of) v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] S.C.R. 114, McLachlin said at 121: It is by now well established that Court of Appeal must not interfere with trial judge's conclusions on matters of fact unless there is palpable or overriding error. In principle, Court of Appeal will only intervene if the judge has made manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: see P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] S.C.R. 141, at pp. 188‑89 (per L'Heureux‑Dubé J.), and all cases cited therein, as well as Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] S.C.R. 353, at pp. 388‑89 (per Wilson J.), and Stein v. The Ship ""Kathy K"", 1975 CanLII 146 (SCC), [1976] S.C.R. 802, at pp. 806‑8 (per Ritchie J.). Court of Appeal is clearly not entitled to interfere merely because it takes different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. (Emphasis added) ANALYSIS: (a) Appeal: (i) Did the trial judge err in failing to properly apply the principles of negligent misrepresentation as set out by the Supreme Court of Canada in Queen v. Cognos, 1993 CanLII 146 (SCC), [1993]1 S.C.R. 87? [10] It is the appellant’s submission that in the pre-contractual meetings KPMG, through Barry Travers, materially misrepresented the terms of employment. The appellant says that Travers failed to advise her that KPMG was hiring her for one-year trial period only. Additionally, she says that she was misled by Travers in that he represented that KPMG was making three year commitment to the quality assurance practice when in fact their commitment to that practice was for one year only. [11] At p.364 of his decision the trial judge describes the finalization of Ms. Bureau’s terms of employment with KPMG: Travers and Bureau met again on 24 November at the KPMG office in Halifax at which time Travers presented written ""Offer of Employment"". The salary was shown as $75,000 which was quickly negotiated up to $85,000 which was the upper limit agreed to by Joe McMullen. Travers said that they decided on the higher salary level because they felt that Bureau had the expertise and ability to ""kick start"" the ISO program in the Halifax office. The offer contained provision for bonus based on performance, social membership fees, parking, secretarial support, computer equipment, private office and full range of support services. Bureau said that she felt the ""practice was mine to develop"". The offer also provided for Bureau being able to service some of her present clients until the retainer had been completed and to retain all revenues from that as well as from her teaching assignments at TUNS and other institutions. It was agreed that her outside work would not consume more than one week per month until completed. [12] Although Ms Bureau did not sign the written offer, the trial judge found that it was the contract of employment, both parties having viewed it as such and having conducted themselves in manner consistent with its terms. This finding is not in dispute on the appeal. [13] There was extensive evidence about the working relationship between Ms. Bureau and KPMG. Ms. Bureau’s testified that she did not receive the expected support from the company necessary to get the quality assurance practice going. She felt this particularly in relation to promotional and secretarial assistance. In her view, KPMG was not forthcoming in their expectations of the practice, and left her too much on her own. KPMG, on the other hand, felt that she did not display the requisite leadership and focus and that she alienated staff. While Barry Travers provided positive performance review in August of 1996, after another partner, Brian Rogers, took over responsibility for the practice in the fall of that year, it became clear that her performance was an issue. Nevertheless, testified Ms. Bureau, her dismissal came as shock. [14] Relevant to the issue of what tenure of employment, if any, was promised or implied by KPMG are clauses 13 and 14 of the contract which provide: 13. KPMG has the right to terminate your employment one year after your commencement date, by paying one month’s salary. 14. You have the right to terminate your employment upon giving one month's notice. [15] Ms. Bureau and Mr. Travers, discussed these provisions. Their evidence is in substantial conflict on this important area. Ms. Bureau testified that upon reviewing this aspect of the letter offering employment Mr. Travers assured her that clauses 13 and 14 were there for her protection, to enable her to leave if she was unhappy at KPMG. She acknowledged on cross-examination, however, that Mr. Travers had explained to her that clause 13 was inserted to demonstrate KPMG’s commitment to getting the practice started. She acknowledged, as well, that he did not tell her that KPMG would never invoke the clause. Ms. Bureau knew that her continuation with KPMG would be contingent upon good performance. [16] It was Mr. Travers’ evidence that he explained at their meeting that KPMG was enthusiastic about the ISO practice but that clauses 13 and 14 were included for mutual benefit as neither knew how the business would develop. He explained that KPMG was prepared to guarantee that “regardless of how it goes we would stick with it through the year”. [17] Ms. Bureau testified, as well, that she understood that she might have an opportunity for partnership in KPMG within two or three years. From this she assumed that she had some assurance of long term relationship with the company. Mr. Travers, however, recalled that when she inquired about partnership he had advised her that it was possibility but cautioned that it had taken him 11 years to become partner. He also explained that several senior managers at KPMG did not have partnership status. [18] It is the appellant’s submission that Mr. Travers should have advised her in the pre-contractual negotiations “that KPMG had decided to hire her for one-year trial period only, and that if she did not fit into the corporate culture within that time she would be dismissed without cause on one month’s notice”. The failure to do so was, she says, material lack of disclosure amounting to negligent misrepresentation. The respondent says that the evidence does not support the appellant’s submission that Ms. Bureau was hired on one year trial period. would agree. Brian Rogers, who assumed responsibility for the ISO practice in November of 1996, testified in response to questioning by the appellant’s counsel that he assumed from reading of the offer of employment that Ms. Bureau was hired on one year trial period. That is the extent of the evidence on this point. Clearly the trial judge did not accept that such was the nature of the hiring arrangement. [19] The appellant relies upon Queen v. Cognos, supra. In her submission, the facts of this case are “remarkably similar” to those in Cognos. do not agree. Cognos, an Ottawa‑based computer software company, advertised for an accountant to help with the development of new accounting software product. Mr. Queen, chartered accountant who lived in Calgary applied for the job. During the interview the manager told the appellant that the project in question was major one which would be developed over period of two years with enhancements and maintenance thereafter, and that the position for which he was interviewed would be needed throughout this period. They did not tell Mr. Queen that funding for the project was not guaranteed nor that the position for which he was interviewed was subject to budgetary approval. He accepted the job of manager, financial standards. He signed written employment contract which permitted Cognos to terminate his employment at any time ""without cause"" upon one month's notice, or payment of one month's salary in lieu of notice, and to reassign him to another position within the company without reduction in salary, upon one month's notice. He commenced employment in April 1983. In September Cognos advised him that there would be reassignment of personnel involved with the project owing to diminished research and development funding. The first notice of termination of employment he received was rescinded, but in July 1984 he received second notice effective October 25, 1984. He worked until that day and was paid until November 15. The trial judge upheld the appellant's action against Cognos and awarded him damages for negligent misrepresentation. The Court of Appeal reversed the judgment and dismissed the action on the basis that the misrepresentation was not “negligent” and, in any event, the term in the contract providing for dismissal on notice was an effective disclaimer precluding any separate action in tort. On further appeal the Supreme Court of Canada confirmed the trial judge’s finding that there were misrepresentations by the employer and that they were negligently made. In reinstating the trial judgment, the Court held that the misrepresentation related to the very existence of the job offered, not as to its length and, therefore, the contractual provision for notice did not bar an action in tort. Iacobucci, J., said at p.114: Had the appellant's action been based on pre‑contractual representations concerning the length of his involvement on the Multiview project or his ""job security"", as characterized by the Court of Appeal, the concurrency question might be resolved differently in light of the termination and reassignment provisions of the contract. However, it is clear that the appellant's claim was not that Mr. Johnston negligently misrepresented the amount of time he would be working on Multiview or the conditions under which his employment could be terminated. In other words, he did not argue that the respondent, through its representative, breached common law duty of care by negligently misrepresenting his security of employment with Cognos. Rather, the appellant argued that Mr. Johnston negligently misrepresented the nature and existence of the employment opportunity being offered. It is the existence, or reality, of the job being interviewed for, not the extent of the appellant's involvement therein, which is at the heart of this tort action. close reading of the employment agreement reveals that it contains no express provisions dealing with the respondent's obligations with respect to the nature and existence of the Multiview project. Accordingly, the ratio decidendi of my reasons in BG Checo is inapplicable to the present appeal. While both cases involve pre-contractual negligent misrepresentations, only BG Checo involved an impermissible concurrent liability in tort and contract (Emphasis added) [20] In BG Checo International Ltd. v. British Columbia, 1993 CanLII 145 (SCC), [1993] S.C.R. 12, (S.C.C), companion case to Cognos, Iacobucci, J., dissenting in part, had differed with Justices McLachlin and LaForest for the majority on whether pre-contractual representation which becomes contractual term can found liability in negligent misrepresentation. Iacobucci, J., joined by the late Sopinka, J., was of the view that, generally speaking, duty of care in tort could not be concurrent with duty defined by an express term of the contract. It was the majority position that the mere fact that the parties had dealt with matter in the contract did not inevitably mean that they intended to exclude the right to sue in tort. It depends upon the circumstances of the case and the wording of the contractual terms. Where the tort duty is not contradicted by the contract, it may be sued upon. [21] All judges agreed in Cognos, however, that the question of concurrency did not arise. In other words, that none of the contractual terms addressed the subject matter of the misrepresentation. In addition they accepted the trial judge’s factual finding that the defendant company had negligently misrepresented the nature and existence of the employment opportunity. [22] Iacobucci said at p.129: the representations most relevant to the appellant's action are not those relating to his future involvement and responsibilities with Cognos, but those relating to the very existence of the job for which he had applied. That is matter of existing fact. It was implicitly represented that the job applied for did in fact, at the time of the interview, exist in the manner described by Mr. Johnston. As found by the trial judge, however, such was not the case. The employment opportunity described to the appellant was not, at the time of the interview, fait accompli for the respondent. [23] McLachlin, J., in concurring judgment, agreed with this characterization of the misrepresentation. At p.142: .Rather, by implying that the Multiview project was reality, that it had the financial support of Cognos, and that it had passed through the feasibility and costing stage, Johnston on behalf of Cognos caused the plaintiff to be misled as to the level of the risk to the plaintiff that Cognos might at some point choose to exercise its termination power under the employment contract. The plaintiff, believing Johnston, concluded that the risk of being transferred or terminated was low. [24] Here, at p.368, Justice Richard made crucial findings of fact: Bureau, in her Statement of Claim says she was induced to enter the employ of KPMG QR by the negligent misrepresentations of both defendants. These misrepresentations include but are not limited to firm commitment for funding to promote and develop the ISO practice in Halifax, sufficient funding for administrative support, the likelihood of partnership in KPMG and security of employment. She felt that the possibility of her dismissal within 15 months was essentially non‑existent. To be actionable, negligent misrepresentation must be more than misunderstanding. The fact that the reality of employment with KPMG did not meet with the sanguine expectations of Bureau does not, of itself, constitute negligence. The following factors militate against finding of negligent misrepresentation. 1. Funding for the project was alluded to in the Offer of Employment and was further defined in the ""Client service and marketing costs"" section of Profit Plan which was discussed at the 24 November 1995 meeting. The salary projection would suggest that Bureau would be provided with secretarial and other assistance but not dedicated full time staff. The fact that Bureau expected better office accommodations and full time secretary is not the result of any misrepresentations on the part of the defendants. 2. am satisfied that Travers told Bureau that partnership was ""distinct possibility"". It is reasonable to assume that such possibility would be contingent upon performance and the attainment of revenue objectives. Bureau was mistaken if she honestly believed that partnership would come, as matter of course, after two or three years employment. There is nothing in the evidence to support such belief. 3. Paragraph 13 of the Offer of Employment clearly set out that KPMG could terminate employment after year. Travers explained that this clause gave her the assurance of at least one year employment. Bureau acknowledged that she was aware of this clause. (Emphasis added) [25] Unlike the circumstances in Checo, supra, concurrency was not an issue before Justice Richard. It was the respondent’s position, not that clause 13 precluded the action in tort, but that there had been no misrepresentation. After reciting relevant passage from Cognos, supra Justice Richard said: On the whole of the evidence before me cannot conclude that Travers was negligent in any of the representations made to Bureau during pre‑contractual negotiations. In response to questions he said that there was ""distinct possibility"" of partnership Ms. Bureau put her own ""spin"" on this and assumed that such would materialize in two or three years. The offer of employment promised ""secretarial support"" which Bureau interpreted to mean full time secretary. These and other statements made to Bureau or included in the offer of employment were neither inaccurate or untrue. If they were misleading it was only because of the interpretation which Bureau placed upon them. (Emphasis added) [26] The trial judge thus found that the pre-contractual representations made by Mr. Travers (and KPMG) were truthful, accurate and not misleading. The decision of the judge in this regard reveals no palpable and overriding error, indeed, the evidence supports his findings. Justice Richard did not accept the appellant’s submissions that the respondents misrepresented the nature of the employment opportunity. This is fundamental and material distinction from Cognos, where the trial judge found that there had been such misrepresentation. It is unnecessary in these factual circumstances to consider, had misrepresentation been negligently made, whether clause 13 would bar recovery in tort. [27] The appellant says that the trial judge erred in failing to specifically address the arguments that Ms. Bureau should have been told that she was hired for only one year trial period; that KPMG should have told her that they had made just one year commitment to the quality assurance practice; and that Travers led her to believe that she would have three years to develop the practice. That these representations or omissions on the part of KPMG occurred is simply not supported on review of the transcript, it is therefore unsurprising that the trial judge did not address each in detail. The judge’s comments, above quoted, are adequate in the circumstances. His failure to more specifically refer to these points does not, in my view, speak of misapprehension of the evidence or arguments. [28] In my view this ground of appeal cannot succeed. (ii) Did the trial judge err in failing to award more than five months pay in lieu of notice under all the circumstances of the case? [29] Justice Richard held that KPMG, having extended Ms. Bureau’s contract for three months beyond the one year period waived its right to terminate the contract on one month’s notice as provided in clause 13. That finding is not on appeal. He fixed notice period of five months. [30] The appellant says that Ms. Bureau is entitled to augmented damages because she was induced to leave her company and join KPMG and that she is also so entitled because the dismissal was in bad faith and the manner of the dismissal itself callous, citing Wallace v. United Grain Growers Ltd. (1997), 1997 CanLII 332 (SCC), 152, D.L.R. (4th) (S.C.C.) and Robertson v. Weavexx Corp. (1997), 1997 CanLII 4097 (BC CA), 25 C.C.E.L. (2d) 264 (B.C.C.A.). In Wallace, supra, Jack Wallace, salesperson, was hired away from competitor company by Public Press (a wholly owned subsidiary of UGG). Forty five years old, and having worked for his former employer for 25 years, Wallace sought and received assurances that if he performed as expected he could work for the company until retirement. He commenced employment with Public Press in 1972 and was top salesperson at the company each year thereafter. He was summarily dismissed in 1986 at 59 years of age. At trial he was awarded 24 months salary in lieu of notice and $15,000 in aggravated damages for mental distress. On appeal the notice period was reduced to 15 months and the aggravated damages eliminated. Wallace appealed to the Supreme Court of Canada. Iacobucci, J., writing for the majority, confirmed the long standing legal right of employers and employees to terminate an employment contract at any time provided there was no express provision to the contrary. If an employer dismisses an employee without good cause, he must give the employee reasonable notice or compensation in lieu thereof. In this regard he said at p.28: requirement of ""good faith"" reasons for dismissal would, in effect, contravene these principles and deprive employers of the ability to determine the composition of their workforce. In the context of the accepted theories on the employment relationship, such law would, in my opinion, be overly intrusive and inconsistent with established principles of employment law, and more appropriately, should be left to legislative enactment rather than judicial pronouncement. [31] Iacobucci, J. approved the principles articulated by McRuer, C.J.H.C. in Bardal v. Globe Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.) as those relevant to determining reasonable notice. McRuer, C.J.H.C. said in Bardal at p.145: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. [32] Commenting that Bardal does not purport to list all of the relevant factors, Iacobucci, J. noted that appropriate considerations will depend upon the circumstances of the case. “One such factor that has been considered is whether the dismissed employee had been induced to leave previous secure employment (at p.30). As to an assurance of job security falling short of contractual term he continued (at p.30 Wallace): In my opinion, such inducements are properly included among the considerations which tend to lengthen the amount of notice. there is need to safeguard the employee's reliance and expectation interests in inducement situations. note, however, that not all inducements will carry equal weight when determining the appropriate period of notice. The significance of the inducement in question will vary with the circumstances of the particular case and its effect, if any, on the notice period is matter best left to the discretion of the trial judge. (Emphasis added) [33] The trial judge in Wallace found that “UGG went to great lengths to relieve Wallace’s fears about jeopardizing his existing secure employment and to entice him into joining their company”. Iacobucci, J. was satisfied that the promise of job security and the assurance that he could work for the company until retirement, as well as the assurances of fair treatment, were inducements “which supported the trial judge’s decision to award damages at the high end of the scale” (at p.31). Summarizing, he said at p.33: The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal. In Machtinger, supra, it was noted that the manner in which employment can be terminated is equally important to an individual's identity as the work itself (at p.1002). By way of expanding upon this statement, note that the loss of one's job is always traumatic event. However, when termination is accompanied by acts of bad faith in the manner of discharge, the results can be especially devastating. In my opinion, to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period. And at p. 34: The obligation of good faith and fair dealing is incapable of precise definition. However, at minimum, believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive. [34] He went on to cite examples of “bad faith” discharges: an employer who made wrongful accusation of theft which the employer communicated to other potential employers; an employee who was told that his position would be terminated but another found for him within the company which would require transfer when, in fact, the company was contemplating his dismissal they did not tell him of the decision to dismiss him for over month although the employers knew that he was in the process of selling his house in anticipation of the transfer; an employer decided to fire an employee when he was on disability leave suffering from major depression. These examples illustrate the dramatic departure from good faith standard which would underpin an award of augmented damages. [35] Iacobucci continued at p. 35: It has long been accepted that dismissed employee is not entitled to compensation for injuries flowing from the fact of the dismissal itself: see e.g. Addis, supra. Thus, although the loss of job is very often the cause of injured feelings and emotional upset, the law does not recognize these as compensable losses. However, where an employee can establish that an employer engaged in bad faith conduct or unfair dealing in the course of dismissal, injuries such as humiliation, embarrassment and damage to one's sense of self‑worth and self‑esteem might all be worthy of compensation depending upon the circumstances of the case. In these situations, compensation does not flow from the fact of dismissal itself, but rather from the manner in which the dismissal was effected by the employer. [36] The appellant submits that the contract contained the following implied terms: 1. Her employment status was that of permanent employee on the partnership track; 2. KPMG QR would not dismiss her without just cause; 3. KPMG QR would not dismiss her in bad faith. [37] In the appellant’s view, the fact of her dismissal without cause constituted breach of such terms and thereby entitles her to enhanced damages. It is apparent from Justice Richard’s analysis of the evidence, reproduced above, that he did not find such terms to be implied. As McLauchlin, J. said in Toneguzzo, supra, “the drawing of evidentiary conclusions from the facts is the province of the trial judge.” In fixing the period of notice he said at p.371: There is no question that KPMG ""courted"" Bureau as the person to head up the fledgling ISO program at the Halifax office. The invitation to attend the Toronto meeting in November 1995, the several meetings with Travers and the ""upbeat"" nature of these meetings all combined to give Bureau the feeling that she was really wanted. In addition, Bureau must have been impressed by the fact that KPMG raised the starting salary from $65,000 to 85,000. She saw KPMG as an international professional organization in which partnership was ""distinct"" possibility. She envisaged less stressful work environment in which she could spend more time with her family and maintain her ISO training contracts. On the other hand, KPMG felt that they were gaining very successful and experienced professional who could ""jump start"" the ISO program. They knew that Bureau had clients in the training aspects of ISO and these could become clients of KPMG QR. There was no one in the Halifax office with the knowledge and expertise to get the ISO program up and running. For both parties, the reality did not measure up to expectations. Bureau was disappointed with her conditions of employment. KPMG did not get the ""kick start"" for the ISO program that they anticipated. It is unfortunate that Bureau's marital problems distracted her during this formative stage of her employment. Bureau's dissatisfaction manifested itself in the fall of 1996 when she aggressively attempted to renew her relationship with KPMG's principal competitor QMI. Although Travers gave Bureau ""passing grades"" on the 31 August Performance Assessment, KPMG through Brian Rogers later expressed dissatisfaction with Bureau's performance. He told her that the Managing Partner wanted her fired but Rogers opted to extend her contract for further three months. [38] He made no finding that the respondents engaged in bad faith conduct nor unfair dealings, nor that the manner of dismissal warranted compensation. The evidence does not support the appellant’s allegation of bad faith dismissal. In these circumstances the fact that KPMG had recruited Ms. Bureau to join the firm does not, absent other blameworthy conduct by the respondents, entitle her to an enhanced notice period. Justice Richard was satisfied that Ms. Bureau’s optimistic expectations of her future were not attributable to pre-contractual assurances of tenure from Barry Travers. The facts of this case are not comparable to those in Wallace. [39] Nor is the appellant assisted by comparison with the judgment in Weavexx. There, Mr. Taylor, the head of Weavexx business unit, recruited Peter Robertson, salesperson employed by small competitor of Weavexx. Mr. Robertson was known to change employers as better opportunities arose. Weavexx, in making an offer to Robertson, sought and received commitment that this job would be his last in the industry. In other words, that he would stay with Weavexx for the balance of his working life. There was no written contract of employment. Robertson commenced work with Weavexx on February 22, 1993 but due to corporate reorganization was discharged on August 11, 1993. In fixing the notice period at 12 months, Goldie, J.A. said at p.270: The principal distinguishing feature of the present case is the active recruitment of the respondent. In this respect the offer of permanent employment with the significant prospect of higher earnings and the promise of Mr. Taylor to do his best to obtain recognition of past service for pension purposes were material inducements. Even so the commitment elicited from Mr. Robertson as it conveyed the sense that Weavexx was intended to be ""peak of career"" opportunity. Inducements are of variable significance. nan And at p.272: Also part of the inducement to the respondent in making the move he did was, no doubt, the discussions as to long term employment resulting from the appellant insisting on an undertaking that the respondent would not move to another competitor. As have concluded, those discussions lacked contractual force in terms of the respondent's assertion of fixed term contract but nevertheless, they were and are, in my opinion, significant on the issue of reasonable notice. [40] As these cases reveal, it is not every inducement that results in augmented damages on dismissal. As stated above, while accepting that KPMG “courted” Ms. Bureau, Justice Richard was not satisfied that Mr. Travers gave Ms. Bureau assurances of tenure. He found her expectations of the employment opportunity to have been overly optimistic: statements made to Bureau or included in the offer of employment were neither inaccurate or untrue. If they were misleading it was only because of the interpretation which Bureau placed on them. [41] The appellant says, as well, that the manner of the dismissal was deserving of extra compensation in terms of longer notice period. At meeting in Brian Rogers’ office Ms. Bureau was told that her contract would not be renewed. She was understandably upset. At trial she said of her reaction “I was being difficult and belligerent. said “I am not leaving until have reason, valid reason, as to why you’re doing this.” Brian Rogers suggested that she should leave the building and collect her personal belongings at later date. He walked her to her office to retrieve her coat, asked if she wanted to make telephone call, which she did, and escorted her from the building. Ms. Bureau testified that she felt like criminal. The experience was humiliating. Justice Richard was aware of this evidence. He said: “The final termination notice and dismissal came very swiftly and in somewhat peremptory fashion.” He obviously did not accept that the manner of dismissal in these circumstances entitled her to longer notice period. would agree. As Iacobucci, J. recognized in Wallace, supra, “the loss of one’s job is always traumatic event”. It is not humiliation, embarrassment and damage to one's sense of self‑worth and self‑esteem alone which entitle the employee to augmented damages. There must be an accompanying act of bad faith or unfair dealings on the part of the employer. [42] This ground of appeal must fail. (b) Cross-Appeal: (i) Did the trial judge err in law by not reducing the notice period for five months to account for the appellant’s failure to mitigate her loss? [43] QMI (Quality Management Institute) had been significant client of Ms. Bureau’s company, K. Dresser Enterprises Ltd. Dresser was under contract with QMI to work approximately three or four days per week for fixed fee of $1000 weekly. That contractual relationship ended when Ms. Bureau accepted employment with KPMG. In October of 1996, while still employed with KPMG, Ms. Bureau explored with QMI the possibility of resuming contractual relationship should she leave KPMG. They were unable to agree on an amount of weekly remuneration. QMI was prepared to pay at the same rate as it had previously, while Ms. Bureau wanted substantially more. [44] When she left KPMG Ms. Bureau did not attempt to arrange another contract with QMI. At trial, Arnold Vaz, principal with that company testified that, had she done so, it was likely that she would have been able to arrange work at about $60,000 annually for three to four-day week. [45] In his provisional comments on damages for negligent misrepresentation Justice Richard said (at p.370): nan It seems to me that more reasonable measure of damages would be the amount necessary to restore the plaintiff to an income equivalent to that which she would have enjoyed had her employment not been terminated. It is clear from the evidence of Vaz that the QMI contract would probably have been renewed at about $60,000 per year. Bureau said she was embarrassed to approach QMI. She did contact most, if not all of her other previous clients. Failure to follow up on QMI could be construed as failure to mitigate her losses. These two factors alone would bear very heavily on any calculation of Bureau's damages. (Emphasis added) [46] The respondent argues that in fixing damages for the unjust dismissal Justice Richard should have made allowance for this failure to mitigate. On the damages for wrongful dismissal he said (at p.372): The final termination notice and dismissal came very swiftly and in somewhat peremptory fashion. Although the notice provided for two months' salary, only one month was actually paid. Considering all the factors enumerated in Bardal v. Globe Mail Ltd. quoted in Wallace, supra and also that Bureau's only recourse was to rebuild her consulting practice fix the period of notice at five months. One month was paid on termination leaving balance of four months outstanding. (Emphasis added) [47] Justice Richard’s earlier remarks on damages reveal that he was alive to the question of mitigation. do not, however, take him to be making definitive finding of failure to mitigate by Ms. Bureau. Nor, in my view would the evidence support such an inference. The obligation was upon Ms. Bureau to take all reasonable steps to mitigate. She gave sound reasons, in the circumstances, for her reticence to contact QMI. Keeping in mind that the onus is upon the employer on issues of mitigation, would not disturb the notice period. DISPOSITION: [48] I would dismiss the appeal and cross-appeal with costs on the appeal to therespondent fixed at 40% of those at trial plus disbursements. There shall be no costs on the cross-appeal. Bateman, J.A. Concurred in: Hart, J.A. Freeman, J.A.","The respondent was recruited by the respondents. Her job was to start quality assurance practice. She accepted an offer of employment, giving up her own company to do so. After 15 months she was dismissed. The trial judge in her action for wrongful dismissal and negligent misrepresentation did not find any negligent misrepresentation but awarded damages equivalent to five months notice for wrongful dismissal. The appellant appealed the dismissal of her claim for negligent misrepresentation and the notice period for her wrongful dismissal. The respondent cross-appealed the damage award, claiming the trial judge failed to take into account the appellant's failure to mitigate. Appeal and cross-appeal, that the evidence supports the trial judge's findings, and he did not make any errors in law.",e_1999canlii1479.txt
225,"IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Colley, 2007 NSPC 30 Date: June 12, 2007 Docket: 1706704-06 Registry: Halifax Between: Her Majesty the Queen v. Carlo Lenn Colley Judge: The Honourable Associate Chief Judge R. Brian Gibson, J.P.C. Heard: May 14, 2007 Date of Decision: June 12, 2007 Charges: On or about the 8th day of October, 2006 at or near East Preston, Nova Scotia, did unlawfully wound Roger Simmons thereby committing an aggravated assault, contrary to Section 268(1) of the Criminal Code. AND FURTHER that he at the same time and place aforesaid, in committing an assault on Roger Simmons, use or threaten to use weapon, or imitation thereof, contrary to Section 267(a) of the Criminal Code. AND FURTHER that he at the same time and place aforesaid, unlawfully have in his possession weapon, for purpose dangerous to the public peace, contrary to Section 88 of the Criminal Code. Counsel: G. Arthur Theuerkauf, Senior Crown Attorney David Green, Defence Attorney By the Court: [1] On Sunday, October 8, 2006 between the approximate time of 11 a.m. and 12 noon, at or near East Preston, Nova Scotia, the Accused, Carlo Lenn Colley, struck the right arm of Roger Simmons with shovel causing fracture of his ulna bone. Mr. Colley also struck Mr. Simmons in the rib cage area with his fist, causing fracture of one of his ribs. At the time that Mr. Simmons was struck and injured by Mr. Colley, both individuals were on the residential property occupied by Mr. Simmons. [2] Mr. Colley claims that he struck Mr. Simmons in self-defence. Absent consideration of defence evidence, the Crown evidence clearly establishes prima facie case inasmuch as that evidence establishes that Mr. Colley intentionally struck and thereby intentionally applied force to Mr. Simmons causing him to suffer wounds. The issue to be determined is whether, despite the claim of self-defence and evidence adduced in support thereof, the Crown has proven beyond a reasonable doubt any or all of the Criminal Code charges against him, being that of aggravated assault, by wounding Roger Simmons, contrary to S.268; that of assault of Roger Simmons by using or threatening to use a weapon, contrary to S.267(a); and that of possessing a weapon for a purpose dangerous to the public peace, contrary to S.88. [3] The defence evidence includes testimony given by the Accused. Therefore, have instructed myself regarding the issue of credibility relative to proof beyond reasonable doubt in accordance with the direction found in the case of R. v. W.(D). (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), where at page 409, the following was stated on behalf of the Court by Cory, J.: “In case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as whole: see R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); approved in R. v. Morin, supra, at p.207. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” [4] According to Mr. Colley, Roger Simmons got out of his truck and walked toward him with the knife in his hand. In response, Mr. Colley testified that he retreated, picked up shovel, and swung it with both hands thereby striking the right arm of Roger Simmons. This, according to Mr. Colley’s testimony, caused the knife to fly from Mr. Simmons’ hand to an undetermined location. Apparently no one saw where the knife landed. [5] physical struggle between Mr. Colley and Mr. Simmons then ensued. Mr. Colley, aged 36 years, man significantly larger, heavier and younger than Roger Simmons, who is approximately 30 years older than Mr. Colley, quickly gained the upper hand in that struggle. Roger Simmons went down on the ground and as he did, he grabbed the bottom of the pants worn by Mr. Colley. While he laid on the ground, holding onto Mr. Colley’s pants, Mr. Colley struck Mr. Simmons in the area of his ribs with his fist with at least two and likely more blows. Mr. Colley justified those blows as measures to keep Mr. Simmons from causing him to fall. According to Mr. Colley, Mr. Simmons was pulling on the bottom of the pant legs in what he believed was an attempt to cause him to fall. [6] The struggle ended when one of the individuals who had gone to Mr. Simmons’ property with Mr. Colley in his truck, intervened. About the same time, Vonita Simmons, wife of Roger Simmons, heard the commotion and came outside. [7] Whether or not the evidence establishes that Mr. Colley acted in self-defence or is sufficient to raise reasonable doubt relative to proof of the charges can only be determined by considering all the relevant evidence, including the circumstances that led to the altercation. [8] Mr. Colley stated to Vonita Simmons that Roger Simmons had had knife. conclude that these words were uttered to justify his actions but nevertheless is evidence consistent with his evidence that Mr. Simmons had knife. Mr. Colley would have had reason to make some attempt to justify his actions by virtue of the fact that Vonita Simmons is his aunt, being his mother’s sister. She has son who is Mr. Colley’s cousin. Mr. Colley enjoys positive relationship with both Vonita Simmons and her son and was, prior to this event, frequent visitor at the Simmons’ property. Roger Simmons, who has been married to Vonita Simmons for 20 years, is Mr. Colley’s uncle by marriage. [9] Whatever the quality of the relationship that may have existed between Mr. Colley and Mr. Simmons prior to October 8, 2006, it was clearly soured by the accusations of theft made by Mr. Simmons to Mr. Colley on the morning of October 8, 2006. Mr. Simmons suspected that Mr. Colley had, without authorization or permission, taken some two by four pieces of lumber from Mr. Simmons’ property. Mr. Simmons, upset by his suspicions, had sought out and found Mr. Colley at Mr. Colley’s residence that morning. He stated his accusations to Mr. Colley. Later the same morning, Mr. Simmons again encountered Mr. Colley at the residence of Mr. Slawter and repeated his accusation. In addition to his accusations, Mr. Simmons told Mr. Colley to stay off his property. conclude from the evidence that both individuals were angry at one another, however during these two occasions, no physical altercation occurred. [10] In response to the direction by Mr. Simmons to stay off his property, Mr. Colley stated that he would go to the property if he wanted to because it was his aunt’s property. After the repeated accusation of theft and direction to stay off the Simmons’ property, Mr. Colley proceeded to drive his truck directly to the Simmons property, accompanied by two individuals, Jamal Williams and Cisco Williams. Mr. Colley parked his truck on the right-hand side of the road, across the road from the entrance to the driveway on the Simmons property. Shortly after parking his vehicle in that location, Mr. Simmons arrived in his truck and drove into his driveway distance of approximately three vehicle lengths from the road and parked near his house. Mr. Colley then got out of his vehicle, walked across the road and down the driveway towards the Simmons vehicle. In so doing, Mr. Colley walked past shovel which was lying on the ground close to some garbage cans near the edge of the paved portion of the road adjacent to the Simmons driveway. It was apparent from his evidence that he had seen the shovel as he walked down the driveway. This was the shovel that he subsequently picked up and used after retreating in response to seeing what he described as rusty knife in Mr. Simmons’ hand. [11] Mr. Colley testified that the reason he went to the Simmons property was to talk to his aunt and explain to her that he did not take the missing lumber. While Mr. Colley may have ultimately achieved that outcome if there had not been physical altercation, do not believe that this was his primary motivation for going to the Simmons property, if his motivation at all. accept the evidence of Jamal Williams who testified that the purpose, stated by Mr. Colley, for going to the Simmons property was to show Mr. Simmons that he could go upon the Simmons property despite being directed by Mr. Simmons to stay off that property. Mr. Colley testified that he believed he had right to go on the Simmons property despite being told by Mr. Simmons to stay off that property. Mr. Colley stated to Mr. Simmons that he would go onto Mr. Simmons yard any time he wanted to in response to Mr. Simmons’ direction not to go onto his property. Mr. Colley also testified that he was angered by the allegations of theft and the direction to stay away from the Simmons property. After Mr. Simmons repeated the theft allegations the second time at the Slawter property, Mr. Colley testified that both he and Mr. Simmons went “barrelling out” to Mr. Simmons property. [12] find that Mr. Colley drove to location near the Simmons property and proceeded to enter thereon for the primary purpose, if not the sole purpose, of challenging Mr. Simmons’ authority to direct him not to come upon that property. Although Mr. Simmons denied having either stick or knife in his hand when he got out of his truck, do not find that denial to be credible. Mr. Simmons, in giving statement to the police, stated that he had stick in his hand. Cisco Williams, during his direct testimony, stated that he saw either stick or butcher knife in Mr. Simmons’ hands. Cisco Williams and Jamal Williams, who were both in Mr. Colley’s truck, were not in particularly good position to observe exactly what was in Mr. Simmons’ hands. Whether or not the device in Mr. Simmons’ hand was knife or stick, conclude that it could have been knife. Thus, have assessed Mr. Colley’s evidence and his claim of self-defence on the basis that Mr. Simmons could have had knife in his hand. [13] find that Mr. Colley, by driving in anger to Mr. Simmons’ residential property and entering thereon, despite being told not to enter upon the property, placed himself in the role of an aggressor. It would have been reasonable for Mr. Simmons to have believed Mr. Colley to be a trespasser and thereby, in accordance with S.41(1) of the Criminal Code, justified in using no more force than was necessary to prevent the perceived trespass. In light of the differences in age and size, the preceding verbal exchanges and the clear challenge that Mr. Colley presented to Mr. Simmons’ authority to direct Mr. Colley to stay off his property, it would have been reasonable for Mr. Simmons to arm himself with knife. Beyond stepping toward the advancing Mr. Colley, with the knife in his hand, Mr. Simmons made no motion to use the knife. [14] The evidence establishes that Mr. Colley retreated to the area near where the shovel was located, which was near the edge of the pavement. Cisco Williams and Jamal Williams testified that Mr. Colley ran back to the area where the shovel was located. Mr. Simmons did not chase Mr. Colley. There was no reason why Mr. Colley could not have retreated altogether from the Simmons property, with or without the shovel in hand, to the safety of his truck where two of his friends were sitting. Cisco Williams testified that Mr. Colley would have had no problem outrunning Mr. Simmons if he had been chased. [15] Rather than continue to retreat, find from the evidence that Mr. Colley picked up the shovel and moved toward Mr. Simmons, swinging the shovel, striking Mr. Simmons on the arm and thereafter continuing as the aggressor in the ensuing struggle. Exactly how far back down the driveway Mr. Colley moved toward Mr. Simmons before striking him with the shovel isn’t exactly clear. However, Cisco Williams testified that the “fist fight”, which occurred after Mr. Simmons was struck with the shovel, started beside Mr. Simmons’ truck which was parked about three truck lengths down the driveway. There is no evidence that Mr. Simmons retreated after being struck by the shovel. Thus, conclude that Mr. Simmons had not walked more than few steps past the back of his truck before being struck with the shovel. [16] Consistent with his role as the aggressor in this altercation, Mr. Colley stated, when he saw the knife held by Mr. Simmons, “so it’s going to be like that”. In essence, Mr. Colley retreated, armed himself with shovel in the face of seeing Mr. Simmons armed with the knife, then proceeded toward Mr. Simmons and engaged himself with Mr. Simmons by swinging the shovel. By grabbing the shovel and then proceeding towards Mr. Simmons, rather than retreating, Mr. Colley placed himself in the role of what can only reasonably be seen as resisting trespasser. By virtue of S.41(2) of the Criminal Code, conclude that Mr. Colley committed an assault without justification or provocation. Even if S.41(2) is not applicable, Mr. Colley was under no imminent danger and there was no need to move toward Mr. Simmons and strike him to defend himself. [17] Mr. Colley, until the direction given to him by Mr. Simmons to stay off his property, would have been justified in holding the opinion that he had an implicit invitation to enter upon the Simmons property. That implicit invitation, having been expressively revoked with the direction from Mr. Simmons to stay off the property, ought to have been seen by Mr. Colley as termination of any legal justification to enter upon the Simmons property, absent subsequently expressed invitation from some other individual authorized to extend that invitation, such as his aunt Vonita Simmons. There is no evidence of such an expressed invitation given subsequent to Mr. Simmons’ direction to stay off his property. [18] Mr. Simmons, on the other hand, as a person in possession of real property, was justified in using force to prevent what he perceived as a trespass upon his property provided he used no more force than was necessary. Exhibiting knife and stepping toward Mr. Colley, in my opinion was within the scope of reasonable force. [19] The evidence, given by Defence witnesses, about Mr. Simmons subsequently retrieving what was described as rifle or shotgun after the altercation and pointing it in the direction of Mr. Colley’s truck as he drove away is mostly irrelevant to determination of these charges. Whether or not Mr. Simmons actually carried out that act am not certain. He denied doing so and his wife, Vonita Simmons, stated that Mr. Simmons did not possess or own firearm. However, Mr. Colley’s evidence about how he saw Mr. Simmons’ intention to use what he described as rifle or shotgun is relevant to the assessment of how he saw Mr. Simmons’ intention relative to the knife that he possessed. Relative to the alleged pointing of the rifle or shotgun, Mr. Colley testified that he was not afraid because he “knew” Mr. Simmons “wouldn’t use it”. Regarding the knife, Mr. Colley rather weakly stated that he had concern that Mr. Simmons might throw the knife at him if he ran, thereby offering that as the reason why he chose instead to disarm Mr. Simmons. In light of how Mr. Colley saw Mr. Simmons’ intention to use the rifle or shotgun, I am unable to believe that Mr. Colley could ever have thought that he was facing an imminent attack when Mr. Simmons stepped toward him holding the knife or that Mr. Simmons would throw the knife at him if he retreated fully from Mr. Simmons’ property. Rather, the gesture of holding knife and stepping forward could only reasonably have been seen as warning to come no further and to leave. Mr. Colley was not prepared to heed the obvious meaning of that gesture. Rather, he was intent in prevailing over Mr. Simmons’ direction to stay off his property and assert what he unreasonably believed to be his right to enter thereon. [20] do not believe Mr. Colley’s evidence that he acted in self-defence. The evidence does not support that claim. Furthermore, his evidence, when considered in the context of all the evidence, does not raise reasonable doubt. Nevertheless, do not believe that Mr. Colley intended for Mr. Simmons to suffer such serious injuries. The blow to the arm, although not carefully measured, was intended to disarm Mr. Simmons, not to cause the fracture. Similarly, do not believe Mr. Colley intended Mr. Simmons to suffer cracked ribs. Mr. Colley acted from anger and acted in manner to have his will prevail over that of Mr. Simmons relative to access to the Simmons property. He appears to regret that Mr. Simmons suffered such injuries and is sorry that that was the outcome. [21] In conclusion, I find Mr. Colley guilty of all three charges. However, based upon the principles expressed in the R. v. Kienapple (1974) 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 decision, a conviction should enter upon only the S.268 aggravated assault. R. Brian Gibson, J.P.C. Associate Chief Judge","Immediately after the complainant accused the defendant of stealing lumber from his property and directed him to remain off the property, the defendant entered upon the complainant's property in a state of anger to challenge the complainant's authority to issue such a direction. The complainant armed himself with a knife when the defendant entered the property, at which point the defendant grabbed a shovel, moved towards the complainant, struck him on the arm with the shovel and punched him in the ribs while he was on the ground. The complainant suffered a fractured ulna bone and a fractured rib. The defendant, who was charged with aggravated assault, assault by using or threatening to use a weapon and possession of a weapon, claimed to have acted in self-defence. Defendant found guilty of all three charges; conviction entered only on the aggravated assault charge. The actions of the complainant were justifiable as using no more force than was necessary to prevent a perceived trespass; the defendant, who was under no imminent danger, and could reasonably have retreated  upon seeing the knife, instead chose to arm himself with a shovel and strike the complainant.",2007nspc30.txt
226,"1995 SBW 3096 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: LEI-VALLI DUNHAM-THOMPSON and THE TOWN OF MAHONE BAY and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING HER MAJESTY THE QUEEN IN RIGHTS OF THE PROVINCE OF NOVA SCOTIA DECISION HEARD: before the Honourable Chief Justice Constance R. Glube in Chambers, Halifax, Nova Scotia, August 28 and September 3, 1996 DECISION: Dated the 6th day of September, A.D., 1996. COUNSEL: M. Dunphy and R. Niedermayer for the Applicant, Town Blair Mitchell for the Respondent/Plaintiff Glube, C.J. This application pursuant to Civil Procedure Rule 12.06, is for an order setting aside the default judgment entered against the Town of Mahone Bay on February 7, 1996. As result of filing the default judgment, the application to assess damages has been set down for hearing in Bridgewater, Nova Scotia on October 26, 1996. The applicant filed the affidavits of Peter A. Flett, insurance adjuster for the Town employed by Lombard Canada Limited; Kyle R. Hiltz, the Town Clerk of the Town of Mahone Bay; and Richard S. Niedermayer, an associate with the law firm Cox Downie, solicitors for the Town in this application. The plaintiff/respondent filed the affidavit of her former counsel, Andrea Smillie. At the commencement of the hearing, counsel for the plaintiff advised the court the plaintiff is making no argument or objection to any delay in the Town bringing this application. accept the position of counsel. By letter dated July 18, 1996, counsel advised the Attorney General would not be making representations on this application. In 1989 or 1990, the Town hired CBCL Ltd., consulting engineers, to do study of the Town's sewer and water systems. CBCL was subsequently hired by the Town as consulting engineers to proceed with tenders for the work. Woodlawn Construction Co. was the successful bidder and entered into formal contract with the Town to do Phase 3. They commenced the work in August of 1993 and completed it in September, 1994. As part of Phase 3, an access road was constructed along side the plaintiff's property leading to the sewage treatment lagoon installed on hill adjacent to the plaintiff's property. The road work started in the fall of 1993, stopped for the winter, resumed on June 6, 1994, and was completed on July 18, 1994, when the road was paved. The plaintiff claims mudslide occurred during the road construction causing extensive damage to her property. She further claims general, special and exemplary damages, pre-judgment interest and costs on solicitor and client basis. The claim is for negligence and nuisance and there are additional claims for lost rentals, emotional upset and anxiety. The history of the pleadings and some of the relevant correspondence and contacts are as follows: October 5, 1994, the Town received notice of intended action. This was forwarded by the Town Clerk, to the Town's insurance agent, Mahone Insurance Agency. November 21, 1994, Mr. Baker, solicitor for the Town, received notice of change of solicitor for the plaintiff to Ms. Andrea Smillie. This was sent to the insurer by the Town Clerk. January 19, 1995, Ms. Smillie sent Mr. Baker draft statement of claim. Mr. Baker replied on the same date specifically stating the Town reserved the right to defend the claim fully and that it would raise all available defences. The draft statement of claim and Mr. Baker's reply were sent to the Insurer. January 26, 1995, Mr. Peter Flett of Continental Canada (the predecessor of Lombard) requested from the Town, copy of the contract and the tender to determine who was the proper insurer. May 16, 1995, the Town was served with the originating notice and statement of claim. May 18, 1995, Mr. Flett received copy of the statement of claim. He contacted Ms. Smillie on the telephone and advised he was trying to find out who the correct insurer was. He requested an indefinite waiver of the need to file defence pending his further efforts. May 19, 1995, Mr. Baker sent the affidavit of service confirming service on the Town to Ms. Smillie. By letter, Ms. Smillie confirmed to Mr. Flett the plaintiff would not proceed to judgment except on 10 days written notice. June 8, 1995, the Prothonotary of the County of Lunenburg informed Ms. Smillie and the Town, the Attorney General of Nova Scotia had filed defence. June 20, 1995, Ms. Smillie received certified copy of the Attorney General's defence. October 23,1995, Ms. Smillie wrote the Town Clerk concerning the matter and about any anticipated difficulties arising from the matters at issue. November 27, 1995, Mr. Flett received letter from Ms. Smillie confirming she would provide 10 days notice before filing default judgment. She also wanted the matter to proceed. At that point Mr. Flett spoke to his supervisor, and since he had received no response from Woodlawn's insurer, suggested and it was agreed, Mr. Flett would refer the file to Cox Downie to file defence on behalf of the Town. December 13, 1995, Mr. Flett spoke to Ms. Smillie on the telephone. She again said she wanted the litigation to move forward, at which time he told her he was forwarding the file to lawyers to have defence filed. December 14, 1995, Mr. Flett again asked for and received from the Town Clerk copy of the Woodlawn contract with the Town. December 18, 1995, Ms. Smillie wrote to Mr. Flett indicating defence must be filed by January 15, 1996. Although this letter is date stamped as received by Continental Canada on December 21, 1995, it does not bear Mr. Flett's initials and he has no recollection of being aware of the date the defence had to be filed. It was his usual practise to put his initials near the date stamp. In his affidavit sworn July 4, 1996, he states in paragraph 20, ""I cannot say for certain if reviewed it when received."" February 7, 1996, default judgment signed by the Prothonotary was entered against the Town. February 13, 1996, by letter from Ms. Smillie to Mr. Baker and copied to Mr. Flett, they learned of the default judgment being entered. This letter was received on February 16. Mr. Flett immediately phoned Mr. Dunphy of Cox Downie, with instructions for him to take action to have the default judgment set aside. According to Ms. Smillie, Mr. Flett only initiated one call to her, but Guardian Insurance, insurer of the contractor, Woodlawn, was in touch with her by telephone, meeting was held in August and there was an exchange of correspondence to and including October 12, 1995. Mr. Flett who learned Guardian insured the Town from December 1993 to April 1995, wrote to them about the matter in July of 1995, but received no reply and did not follow up with them. Effectively Mr. Flett did little work on this file from January 1995 until default judgement was filed in February 1996. Although Mr. Flett claims he was putting the material together in December 1995 and early January 1996, he did not complete and forward letter to Cox Downie before the default judgment was filed and entered in February. Following the filing of the defence by the Attorney General on June 8, 1995, the only new filing was list of documents by the Town on July 30, 1996. As of June 18, 1996, the plaintiff had not filed notice of intention to proceed. The current application was filed on July 17, 1996. The applicant raises the following issues: Should the default judgment be set aside because:1. there was no notice of intention to proceed filed prior to entering the default order; and/or 2. the court should exercise its discretion under Civil Procedure Rule 12.06; and/or 3. it was granted by the Prothonotary and not by the court contrary to Civil Procedure Rule 12.03. 1. Notice of Intention to Proceed. Civil Procedure Rule 3.04 is requirement for one month's notice of intention to proceed where six months or more have elapsed since the last step in proceeding: ""3.04 Where six months or more have elapsed since the last step in a proceeding, the party who desires to proceed shall, unless the court otherwise orders, give to the Prothonotary and every other party not less than one month's notice of his intention to proceed, and a notice on which no order was made is not a step for the purpose of rule 3.04. Neither discontinuance nor an application to dismiss for want of prosecution is step in proceeding."" The originating notice and statement of claim were issued on May 4, 1995, served on May 16, and defended by the Province of Nova Scotia on June 8, 1995. The default judgment was filed on February 7, 1996. There had been no intervening step in the proceedings. There is no evidence in the court file of a notice of intention to proceed. No evidence was filed whether or not any notice went to the Attorney General. The applicant submits the decision in Canada v. Kulyk (1994), 88 FTR 211 (FCTD) confirms an application for judgment in default is step in the proceeding requiring notice of intention to proceed if six months or more has elapsed from the last step. It further confirms correspondence between solicitors or the parties without formal notice does not constitute valid notice of intention to proceed. Similarly in Pinard et al. v. Bushell et al (1975), 20 N.S.R. (2d) 317, where default judgment was entered with damages to be assessed and the plaintiff gave the applicant notice of hearing for the assessment of damages more than six months later without having given one month's prior notice of intention to proceed, Cowan, C.J.T.D. held the assessment of damages was ""step in the proceeding"" and the previous step was the default judgment. Failure to give notice was held to be fatal defect. The plaintiff submits her counsel continuously pressed the Town, directly or indirectly, to file defence which would allow her to get on with the matter. The Court agrees with this allegation. However, sending a letter to an insurer does not satisfy the requirement of the Rule. Mr. Flett denies receiving any verbal indication on the 13th of December of the deadline which, even if given, would also not satisfy the requirement according to Civil Procedure Rule 3.04. do not accept the argument that by not specifically using the word ""filing"" in Rule 3.04 that filing is not required. The Rule does say the prothonotary is to be given one month's notice. If that occurs, have no doubt in my mind upon receipt of notice of intention to proceed if in written form, it would be automatically filed in the court file for the case. acknowledge Civil Procedure Rule 3.04 does not require the notice to be in writing or in any particular form, although the Nova Scotia practise is formal document. The important aspect is notice to the prothonotary and every other party. The fact the Prothonotary did not object to the request for default judgment without the notice of intention to proceed is immaterial. In granting the order, the prothonotary would generally rely upon counsel and would not necessarily review the whole file before signing the order. The order was in form which the prothonotary was apparently authorized to sign (Civil Procedure Rule 51.05(1)(d)). If the prothonotary's filing systems were automated, the failure to file or notify the prothonotary under Rule 3.04 would be readily apparent. The system is not automated. Should the doctrine of estoppel or waiver apply as was argued by the plaintiff. She relies on Marchischuk v. Dominion Industrial Supplies Ltd. (1991), 1991 CanLII 59 (SCC), 50 C.P.C. (2d) 231, (S.C.C.) at p. 235. '...equitable estoppel, finds its origin in the early case of Central London Property Trust Limited v. High Trees House Limited, [1947] K.B. 130, which determined essentially that where representation is made by one party and relied upon by another to that person's detriment, the party making the representation will be estopped from following contrary course of action. This concept has been modified to mean basic sense of fairness and equity. One should not be able to say one thing, have it acted upon, and then behave differently than first represented.' [Emphasis original.] ... 'The second issue of waiver comes into effect when party knowingly acts in manner where he waives or foregoes reliance upon some known right or defect. It is important that the right or defect, as the case may be, be known, since one should not be able to waive rights of which he was not fully aware or apprised.' In Marchischuk, although liability was admitted during negotiations which carried on past the limitation period and money offer was sent, eventually the insurer denied the claim based upon the Limitation of Actions Act, R.S.M. 1987, c. L150. The Supreme Court found the insurer was not estopped nor had there been waiver. It also held, waiver must relate to known right, but the facts found the parties never discussed whether the statement of claim had been filed. There was no evidence of any promise not to rely on limitation period. In the case at bar, the plaintiff submits the applicant is estopped from raising procedural issue when it had the benefit of not having to file defence in timely fashion on condition the Town would receive 10 days notice which was sent. It is submitted the insurer accepted this condition by its conduct and thus the court can apply Civil Procedure Rule 2.01. Mr. Flett, during cross-examination on his affidavit, denied any knowledge of the purpose of notice of intention to proceed. Thus, there was no ""known right"" waived by Mr. Flett as expressed by Justice Sopinka in Marchischuk. Also, there is no evidence that former counsel for the plaintiff did not file notice of intention to proceed because she was relying on something said to her by Mr. Flett. In the present case, am unable to find there is any estoppel or waiver. Turning in any event to Civil Procedure Rule 2.01, in Maynard v. Irving Oil Ltd. et al. (1990), 96 N.S.R. (2d) 253 A.P.R. 86, the defendant did not file notice of intention to proceed before filing notice of trial. It was held the failure to file notice was merely an irregularity and there was no prejudice to the plaintiff. In the present case the facts are quite different. Although relying on Civil Procedure Rule 2.01 would be in accord with the Court's view if the facts were as in Maynard, in the case at bar, filing default judgment against the defendant Town causes the Town possible serious injustice. It ends its possibility of filing defence and contesting liability. It also verifies the plaintiff's claims including exemplary damages and solicitor and client costs. In Pick O'Sea Fisheries Ltd. V. National Utility Service (Canada) Ltd. (1995), 146 N.S.R. (2d) 422 A.P.R. 203 (C.A.), the prothonotary had no authority to grant default judgment. Flinn, J.J.A. at p. 214 states: The Rules are an attempt to streamline the process which leads to the ultimate determination of the issues in dispute between the parties. If, in that process, Rules are not complied with, in most cases through inadvertence, the court will invariably allow the noncompliance to be corrected, provided the correction does not cause an injustice to the other party, in order to get on with the determination of the real issues in dispute between the parties. In this case the failure to comply with rule 12.03 is much more serious than an error, or irregularity, in the process leading to the ultimate determination of the real issues in dispute between the appellant and the respondent. The granting of the order for judgment by the prothonotary which the prothonotary had no authority to grant (and to which the respondent was not, at that time, otherwise entitled) was determinative of the proceeding."" [Emphasis in the original]. The applicant submits where default judgment is filed, if Civil Procedure Rule 3.04 is not complied with, then there is no discretion in the court and as of right, the default judgment must be set aside. Although Civil Procedure Rule 3.04 is permissive, that is, the court could order otherwise, find the failure to file notice of intention to proceed is not mere technicality in this case. However, in my opinion, this does lead me to examine whether or not there is fairly arguable defence. Without that, setting aside the default judgment would be meaningless and costly exercise. do not read Pick O'Sea Fisheries Ltd. as automatically requiring in every case the default judgment be set aside. 2. Civil Procedure Rule 12.06. Should the Court exercise its discretion under Civil Procedure Rule.12.06. ""12.06 The court may, on such terms as it thinks just, set aside or vary any default judgment entered in pursuance of Rule 12. [E. 13/91 ]"" From the case law, the two requirements to strike out default judgment are well established. First, the applicant must show the court there is fairly arguable defence or serious issue to be tried and second, there is reasonable excuse for not filing the defence. The position of the applicant is contained in the affidavit of the Town Clerk. the plaintiff submits the applicant has failed to provide the necessary facts on which determination can be made as to whether or not there is fairly arguable defence. First, the plaintiff argues the role of CBCL Ltd., the consultants, as between the Town and the contractor, is missing, and with this lack of evidence, should not find the applicant has fairly arguable defence. In response, the applicant says the whole thrust of the statement of claim relates to the performance and effect of the construction work and in his affidavit, Mr. Hiltz denies there were any servants or employees of the Town who supervised the work. Second, the plaintiff says there is no evidence of an arguable defence on the claim of nuisance. In The City of St. John v. Donald, 1926 CanLII 66 (SCC), [1926] S.C.R. 371, Anglin, C.J.C., discusses the role of contractor who was hired by the City to deepen brook crossing street in the City. Dynamite was stored in shed which also housed tools. There was an explosion and the jury found the contractor was negligent. The judge in turn found the City liable as well. This was upheld by the Supreme Court of Canada. It was found the City had wide powers to interfere and control the contractor, but their mere existence does not make the contractor, or his workmen servants of the City. The person who employs an independent contractor to do work, which generally is not of nature resulting in injurious consequences, is not responsible for the negligence of the contractor or his servants in performing the contract. The case further held, vicarious responsibility will occur where the danger of injurious consequences is so inherent the likelihood of the consequences occurring would be obvious to any reasonably well-informed person unless precautions were taken. That duty cannot be delegated, whether to servant or to contractor, to escape liability for the consequences of failure to discharge it (p.383). On reviewing the affidavit of the defendant, it would appear the Town has fairly arguable defence on the basis that respondeat superior does not apply. On the issue of nuisance, find this will depend upon the facts of the case. It is not my function to decide the case at this stage. The determination of the facts are for the trial judge and whether or not the defendant will be successful depends upon the finding of facts. find the applicant has provided sufficient evidence to show fairly arguable defence. Therefore, the first requirement for setting aside default judgment has been met. Although the applicant, in its written brief, put forward two other possible defences, no submissions were made as the Town determined they were not properly supported by the statement of claim. On the issue of reasonable excuse, although the applicant's submission was that whether or not Mr. Flett was inactive is immaterial, find the main thrust should be whether or not the Town at all times intended to file defence. There is evidence of this fact and that it was known to counsel for the plaintiff as early as January 19, 1995, in letter to Ms. Smillie from the Town solicitor Mr. Baker. Other correspondence and conversations with Ms. Smillie reiterate that position. The Town, through Mr. Baker, and at times through Mr. Flett, always indicated to the plaintiff an intention to defend and this was communicated to Ms. Smillie, counsel for the plaintiff at the time. (See Lewis-Choi Co. Ltd. V. Western Glove Works Ltd. (1990), 1990 CanLII 4098 (NS SC), 98 N.S.R. (2d) 282.) It is my opinion that Mr. Flett's actions or inactions were not necessarily reasonable, and his oversight or inadvertence in failing to read the December 18th letter was not reasonable, but the court should exercise its discretion and not deprive the Town of its right to defend as result of any default by the insurer. Any laxness does not appear to have been on the part of the Town. (See Marissink v. Kold-Pac Inc. et al. (1993), 1993 CanLII 3225 (NS CA), 125 N.S.R. (2d) 203 (C.A.), mistake by counsel and turmoil in solicitors office; Atlantic Rentals Ltd. v. Marine Oil Services Ltd. (1988), 85 N.S.R. (2d) 395 (N.S.S.C.A.D.) laxness of counsel, not of the client; Szczesniak v. Farocan Inc. (1992), 1992 CanLII 4533 (NS SC), 115 N.S.R. (2d) 292 (N.S.S.C.T.D.) difficulties in communication between defendant and counsel.) I find there is a fairly arguable defence and a reasonable excuse for not filing the defence. 3. Granting Order for Default Judgment by the Prothonotary. Should the default judgment be set aside because it was issued by the Prothonotary and not by the court. The applicant submits two possible grounds for claiming the Prothonotary did not have the jurisdiction to sign the order for default judgment. The first is based on the request in the statement of claim for prejudgment interest, and the second, on the claim for exemplary damages. Civil Procedure Rule 51.05(1)(d) allows Prothonotary to make an order where the order is interlocutory or final under Civil Procedure Rule 12.01 or 12.02. Dealing only with the portion which could apply to this case, the Prothonotary may issue the order for judgment if the claim is for unliquidated damages only, in which case the order of the Prothonotary is for damages to be assessed. If this does not apply, then the application for the order must be made to the court. The applicant submits prejudgment interest pursuant to the Judicature Act, S.N.S. 1972, did not exist when Civil Procedure Rule 12.01 came into force, therefore, it is not part of unliquidated damages and it cannot be claimed under 12.01. If it was necessary to decide this issue in my opinion claim for prejudgment interest is included in unliquidated damages. The Interpretation Act, R.S.N.S. 1989, c. 235, s. 9(1) states: ""The law shall be considered as always speaking, and whenever any matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to each enactment, and every part thereof, according to its spirit, true intent, and meaning."" The applicant's second argument is whether exemplary damages are included in unliquidated damages. Liquidated damages are ones the parties have agreed upon at some time and are claimed in the action. Odgers' Principles of Pleading and Practice (22nd Ed.), at p. 46, defines liquidated damages as follows: ""When the amount to which the plaintiff is entitled can be ascertained by calculation, or fixed by any scale of charges or other positive data, it is said to be ""liquidated"" or made clear ... But when the amount to be recovered depends upon the circumstances of the case and is fixed by opinion or by assessment or by what might be judged reasonable, the claim is generally unliquidated ... But if the claim is in its nature claim for damages at large, it is not in law treated as ""liquidated demand"" even if the plaintiff puts figure on the damages which he is claiming."" As set out in Vorvis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085, punitive or exemplary damages are not compensating damages. There must be an actionable wrong causing injury to the plaintiff with malice, fraud, or cruelty involved by the defendant. There must be some harsh, vindictive, reprehensible conduct, requiring condemnation and punishment. Exemplary damages are fundamentally different from general or special damages. Although exemplary damages do not appear to me to fall within the definition of unliquidated damages, which would mean the Prothonotary had no authority to sign the default order, am not satisfied that have had sufficient research on this point and decline to make definite ruling. Since found the default judgment should be set aside based on Civil procedure Rule 3.04, and that there is fairly arguable defence and reasonable excuse for not filing the defence, it is unnecessary to decide whether or not exemplary damages (or solicitor client costs) fall under unliquidated damages. Conclusion As result of finding there is fairly arguable defence, find Civil Procedure Rule 2.01 cannot apply. The failure to file the notice of intention to proceed in these circumstances cannot be saved by Civil Procedure Rule. 2.01. The plaintiff should have taken the matter to court to seek default judgment. This finding is sufficient to set aside the default judgment. Even if am wrong on that issue, find the position of the defendant meets the test for the court to strike the default judgment under the provisions of Civil Procedure Rule 12.06. The application is granted. The defendant Town shall have 10 days in which to file its defence. The plaintiff is entitled to her ""throw away"" costs of obtaining the default judgment. (See Choi, supra, p. 287). These costs are fixed at $100.00. C. J. S. C. Halifax, Nova Scotia","This was an application by the defendants to set aside a default judgment entered against them by the plaintiff. Although a statement of claim was served on the defendant, it's insurer was advised by the plaintiff's counsel that she would not proceed to judgment except on 10 days written notice. More than six months later plaintiff's counsel sent a letter to the defendant's insurer giving 10 days notice. This letter was not seen by him although he was in the process of putting together material for a solicitor to file a defence. The defendant had always advised the plaintiff that it intended to defend. No Notice of Intention, required for default judgment if six or more months had elapsed since the last step in the proceeding, was ever given to the defendant before the filing of the default judgment. Allowing the application and setting aside the default judgment, that there was a fairly arguable defence and a reasonable excuse on the part of the defendant for not filing the defence. Sending a letter to the insurer does not satisfy the requirement of filing a Notice of Intention to proceed. The fact that the prothonotary did not object to the request for default judgment without the Notice is immaterial.",c_1996canlii5370.txt
227,"J. Q.B. A.D. 1996 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: WIND POWER INC. and DOVE INDUSTRIES, INC. PLAINTIFFS (RESPONDENTS) and SASKATCHEWAN POWER CORPORATION DEFENDANT (APPLICANT) Murray R. Sawatzky for the applicant Patrick N. McDonald for the respondents FIAT GEATROS J. April 7, 1998 [1] The defendant ""SaskPower"" seeks an order pursuant toQueen\'s Bench Rule 547 requiring the plaintiffs to postsecurity for its costs in this action, on the ground:. . . that Wind Power Inc. is a non-resident plaintiff with little or noassets in the province of Saskatchewan andDove Industries, Inc., while a corporationin the province of Saskatchewan, wasincorporated specifically for a wind powerdemonstration project which did notproceed (and which is related to thesubject matter of this action) andaccordingly has little or no assets in theprovince. [2] Rule 547 reads in part: 547(1) Where plaintiff in any action or issue, or the petitioner or applicant in any proceeding by way of originating notice resides out of Saskatchewan, or, although temporarily resident within Saskatchewan is ordinarily resident out of Saskatchewan, or where under the provisions of any statute defendant may be entitled to security for costs, and the defendant by himself or his agent alleges by affidavit that he has good defence on the merits and stating the nature of such defence, the defendant shall be entitled to serve notice of motion for an order requiring the plaintiff within time to be limited by the court to give security for the defendant's costs in such amount and in such manner and form as the court may direct. [3] The question arises whether this Court has jurisdiction to direct security in the present circumstances and, if so, whether it should do so. [4] Basic facts alleged are not in dispute. Wind Power Inc. is an Alberta company extra-provincially registered in Saskatchewan. It has developed wind power installations in Alberta. Dove Industries, Inc. is Saskatchewan company. It was formed for the purpose of initiating and developing pilot project in Saskatchewan. Its shareholders are farmers in the Swift Current district. So we have situation where we have resident and non-resident plaintiffs. [5] Rule 547 is limited to cases where the plaintiff is non-resident, or where the defendant is given statutory right to apply. The latter prerequisite does not exist here. The former applies only as to one of the plaintiffs. [6] The plaintiffs contend that their claims are joint. They cite Willowtree Investments Inc. et al. v. Brown (1985), 48 C.P.C. 150 (Ont. S.C.) for authority that where there is more than one plaintiff and their claims are joint, security will not be ordered from non-resident plaintiff where there is plaintiff within the jurisdiction. The headnote of the report fairly summarizes the ruling that was made: Where there is more than one plaintiff and the claims are joint so that all plaintiffs must succeed or all must fail, security will not be ordered from non- resident plaintiff where there is plaintiff within the jurisdiction. Conversely, where the claims are several so that one plaintiff may succeed while another fails, non-resident plaintiff may be ordered to post security. In this case, all of the claims to which was party were joint and therefore security could not be ordered. [7] am inclined to agree with Mr. McDonald that the reason for that rule is because in the case of joint claims both plaintiffs must succeed or both must fail, and if both fail each plaintiff is liable for 100 percent of the costs. Be that as it may, am firmly of the view that am empowered to direct security for costs in the present instance against both plaintiffs even if accept that their claims are joint, notwithstanding the circumstances may not fall in the categories enumerated by Rule 547. [8] In Ontario, it has been held that the court has no jurisdiction to do so. Referring to the rule in that province, at the time Rule 373, covering the situations where security for costs may be ordered, Fraser J., in K.V.C. Electric Ltd. v. Louis Donolo Inc. (1964), 1964 CanLII 295 (ON SC), O.R. 565 (H.C.J.), said, at p. 573: am of the opinion that, subject to any specific statutory provisions, security for costs may be ordered only in the categories enumerated in R. 373. That assessment appears to be in place in Ontario to this time. In Saskatchewan, it is otherwise. [9] In McRobb Holdings Ltd. v. Chelico's Restaurants Ltd., 1993 CanLII 9035 (SK QB), [1993] W.W.R. 752 (Sask. Q.B.), my brother Halvorson J. alluded to the analogous rule in Ontario then in place (R. 56.01) and said: Because most conceivable situations are encompassed by r. 56.01, it has been adjudged that the rule is code. Therefore, the court has no jurisdiction to order security except in the instances enumerated in the rule. Inherent jurisdiction of the court at common law to order security no longer exists in Ontario (see Mark M. Orkin), The Law of Costs, 2nd ed. (Toronto: Canada Law Book, 1993), para. 501). This rationale should not be superimposed on R. 547 which is not as expansive as its Ontario counterpart. It cannot be said R. 547 was intended to be codification of all situations where security could be ordered. comparison with r. 56.01 underscores the many shortcomings of R. 547. Rule 547 is not code which confines the court's jurisdiction to those areas particularly mentioned in the rule. The common law has not been supplanted entirely by the rule. The court is still permitted to invoke its inherent jurisdiction to regulate its own procedure by ordering security for costs in instances not covered by the rule. [10] Reference is made to the statement of Lord Alverstone C.J. in J.H. Billington, Limited v. Billington, [1907] K.B. 106, at p. 109: have always understood that the power of the Superior Courts of common law to order security for costs arose from the inherent jurisdiction of those Courts over their own procedure. [11] Halvorson J., in asserting his inherent jurisdiction, ordered deposit by way of security for the costs of the defence in the circumstances before him that did not fall within Rule 547. In my judgment, this court has the power to order that security be given in all cases where it is thought just to do so. Mr. McDonald makes reference to Clark Window Products Ltd. v. Remai Investment Corp. (1992), 1992 CanLII 7954 (SK QB), 99 Sask. R. 239 (Q.B.) where the court dismissed the application for the reason that the defendant did not meet the requirements of Rule 547. In that case, any questions of inherent jurisdiction were neither raised nor dealt with. [12] have further observation in the matter of inherent jurisdiction. This is Superior Court having specific characteristic that is stated by Furlong C.J. in Bursey v. Bursey (1966), 58 D.L.R. (2d) 451 (Nfld. S.C.) to be as follows, at p. 455: That characteristic is the manner in which plenary powers of superior Court may be cut down or limited. The matter was considered just 300 years ago in Peacock v. Bell and Kendal (1667), Wms. Saund. 73 at p. 74, 85 E.R. 84, when, as it is reported, it was held: And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of Superior Court, but that which specially appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is expressly so alleged. It would appear that this dictum has remained undisturbed by time as find it is repeated in substantially the same words in Hals., 3rd ed., p. 349, as follows: Prima facie, no matter is deemed to be beyond the jurisdiction of superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court. and later at p. 457: can only say then, that in my opinion the jurisdiction of this Court is sufficiently ample for it to dispose of all matters which come before it and which the Court is not specifically forbidden to [13] See also Camosun Commercial Co. Ltd. v. Garetson Bolster (1914-15), VII W.W.R. 219 (B.C.S.C. Ch.). [14] Viscount Haldane stated at an earlier time in Board v. Board, 1919 CanLII 546 (UK JCPC), [1919] A.C. 956 (P.C.), on an appeal from the Supreme Court of Canada, at p. 963: it is the rule as regards presumption of jurisdiction in (a Superior Court) that, as stated by Willes, J. in London Corporation v. Cox (1867) L.R. H.L. 239, 259), nothing shall be intended to be out of the jurisdiction of Superior Court, but that which specially appears to be so. [15] It follows, in my judgment, that the powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the Court, unless, in the words of Stark J. in Re Michie Estate and City of Toronto et al. (1968), 66 D.L.R. (2d) 213 (Ont. H.C.) at p. 215, "". the Legislature divests from this universal jurisdiction by legislation in unequivocal terms."" Accordingly, it is open to me to make the order sought if the circumstances warrant. [16] Given that assessment, it is not necessarily fatal to the applicant's motion if it is determined the plaintiffs' claims are joint. Only that it is consideration, seriously to be looked at. SaskPower insists that the plaintiffs' claims are several, not joint. It argues that even with respect to the joint submission made on the particular proposal concerned, the claims for damages sustained by each plaintiff are different as each performed different work sustaining allegedly different damages. In short, it is urged, that it is not necessarily true that if one plaintiff succeeds at trial the other will necessarily succeed at trial as well. [17] To analyse the nature of the claims in depth at this stage in order to determine whether they are joint or several would be to essentially make findings that are only for the trial judge. At all events, it would be open for me to direct that security be posted in either event against either or both of the plaintiffs. In McRobb Holdings Ltd., supra, Halvorson J. required the plaintiff, not non- resident, to deposit security for costs, in circumstances where the plaintiff no longer carried on business and was without assets. [18] In the present case, given the amount of the claim against SaskPower in the amount of $6,400,000.00 and the significant claim for costs which could be awarded to it in the event of successful defence, in excess of $55,000.00, with little or no assets in the province held by either plaintiff, one being non-resident, would be inclined to grant SaskPower the relief it seeks. But there is significant factor that precludes me from making that kind of an order. It has to do with the delay by SaskPower in bringing its application. [19] This action was commenced in April, 1996. The plaintiffs point out that SaskPower knew that Wind Power Inc. was an Alberta company. SaskPower would know that the action was not going to proceed quickly. There was an exchange of documents, and motion in September 1996, by the plaintiffs for production of documents claimed as privileged. The disclosure of documents is completed, as well as the examinations for discovery. The parties made joint request for pre-trial conference signifying that thereafter they were ready for trial. Yet, an application for security for costs had not yet been launched. The pre-trial conference took place on January 28, 1998. trial date was set for September 28 to October, 1998. SaskPower has only now made this application. [20] It is disclosed that SaskPower raised with plaintiffs' counsel the issue of security for costs back in September, 1996. It was advised of the plaintiffs' position. SaskPower held the matter in suspense before resorting to the present application. [21] Mr. McDonald refers to cases that have held that failure to move promptly for security for costs may be fatal to later application if, through delay, plaintiff has been lulled into the false belief that he may proceed with his action without being called upon to advance security. Included is McCormack v. Newman et al. (1983), 35 C.P.C. 298 (Ont. S.C.). Given the correspondence between the parties in September, 1996, when SaskPower raised the matter of security for costs and nothing was done as regards thereto until the present time, after the pre-trial conference and the fixing of trial date, would that not foster the belief that the plaintiffs could proceed without being called on to advance [22] At all events the delay, which find to be substantial, has to be explained. In general, unexplaineddelay by the defendant in seeking security for costs willprevent an order being obtained: Gosselin v. Wong (1983), 33 C.P.C. 262 (Ont. S.C.). See also Cohen v. Power et al. (1971), 1970 CanLII 228 (ON SC), O.R. 742 (Ont. S.C.). It is obvious that motions of this sort should be taken as early as reasonably possible, so that the plaintiffs will not proceed very far in ignorance of the fact that they are going to be asked to provide security for costs: Petter v. Roberts, [1949] O.W.N. 611 (Ont. H.C.). The practice, suggest, is that the proper time to move for an order for security for costs is immediately after the close of pleadings, in order that the plaintiff, before entering upon discoveries and preparing for trial, may know whether he will be called upon to provide security, and if so, the amount of security. Here SaskPower not only did not move upon the close of pleadings but not even reasonably soon after some discussion of the matter that took place in September, 1996, without resolution. [23] In Thole v. McKenna (1988), 1988 CanLII 5343 (SK QB), 71 Sask. R. 106 (Q.B.) my brother Grotsky said, at p. 108, ""In this jurisdiction, delay has been treated as sufficient ground, in appropriate circumstances, for refusing an application for security for [24] SaskPower says that it did not proceed with an application at an earlier stage of the proceedings as it wished to provide an opportunity at the pre-trial conference stage for the matter to be resolved. am not persuaded that thereby the parties would be more inclined to enter into meaningful settlement discussions, as alleged. accept the reason advanced by SaskPower for the delay, but it does not suffice to grant it the relief it seeks. To make an award forsecurity for costs at this stage would place a burden on theplaintiffs and possibly prevent the action from taking placeat the scheduled time. See Perentes et al. v. Cordogianes Estate et al. (1985), 1984 CanLII 2232 (SK QB), 36 Sask. R. 159 (Q.B.). [25] Again, the time to have brought the application was at least soon after September, 1996. The fact that it was not made until now would have left the plaintiffs with the distinct possibility that, ultimately, the court was not going to be asked by SaskPower to have them furnish security. [26] In my judgment, there are ""appropriate circumstances"", per Grotsky J. in Thole v. McKenna, supra, to deny the defendant an order that the plaintiffs post security for costs at this stage of the action. In the exercise of mydiscretion, I would dismiss SaskPower\'s motion. The plaintiff shall have one set of costs of the application in any event of","FIAT. SaskPower sought an order pursuant to Queen's Bench Rule 547 to require the plaintiffs to post security for costs on the ground Wind Power was a non-resident plaintiff with little or no assets in the province of Saskatchewan. HELD: The motion was dismissed.  1)Rule 547 is limited to cases where the plaintiff is a non-resident or where the defendant is given a statutory right to apply. Wind Power is an Alberta company extra-provincially registered in Saskatchewan. Dove Industries, a Saskatchewan company incorporated specifically to develop a pilot project in Saskatchewan which did not proceed, had shareholders in the province. 2)Given the amount of the claim against SaskPower in the amount of $6,400,000 and the significant claim for costs in excess of $50,000 the Court would have granted the security for costs but for the delay by SaskPower in bringing its application. The action was commenced in April 1996. Unexplained delay by a defendant in seeking security for costs will prevent the grant of an order. To make an award for security for costs at this stage would place a burden on the plaintiffs and possibly prevent the action from taking place at the scheduled time.  3)The plaintiff was awarded one set of costs in any event of the cause.",3_1998canlii14061.txt
228,"J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 97 Date: 20050802 Between: Docket: 698 Langham Credit Union Limited and Gari Holdings Ltd. Coram: Bayda C.J.S., Lane Richards JJ.A. Counsel: Donald H. Layh for the Appellant James W.R. Taylor, Q.C. for the Respondent Appeal: From: 2002 SKQB 524 (CanLII) Heard: June 21, 2005 Disposition: Appeal allowed Cross-Appeal dismissed Written Reasons: August 2, 2005 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane Richards J.A. [1] This case concerns the fixture financing provisions of The Personal Property Security Act, 1993, S.S. 1993, c. P-6.2 (“PPSA”). The respondent Gari Holdings Ltd. claims damages from the appellant Langham Credit Union Ltd. The claim arises from the Credit Union’s delay in removing from Gari’s land a quonset in which the Credit Union held a security interest. The trial judge found in favour of Gari and awarded damages on the basis that the Credit Union became tenant at sufferance of Gari when it failed to remove the quonset and therefore was obliged to pay rent. [2] In order to resolve this appeal it is necessary to consider whether the PPSA precludes a claim by a land owner against a financer arising from the financer\'s failure to remove a fixture within a commercially reasonable time after giving notice of its intentions in that regard. If that issue is decided in Gari’s favour, it will also be necessary to consider the merits of the specific claims advanced by Gari against the Credit Union. [3] Gari leased vacant lot (“the Property”) in Nipawin to Lakeland Leisure Products Ltd. In 1997, Lakeland placed large metal quonset (“the Building”) on the Property. Prior to the Building being constructed, Lakeland granted security interest in it to financing company. That interest was then assigned to the Credit Union and registered in the Personal Property Registry. The Credit Union also registered fixture filing notice with the Prince Albert Land Titles Office. [4] Lakeland discontinued business in April of 1999. Gari advised the Credit Union that it wanted the Building removed, the municipal property taxes attributable to the Building paid, and the Property restored to its original condition. On July 23, 1999, Gari wrote to the receiver for Lakeland and repeated that position. [5] On August 27, 1999, the Credit Union served Gari with notice pursuant to s. 36 of the PPSA. The notice indicated the indebtedness secured by the Building and stated that the Credit Union intended to remove the Building within 15 days unless the indebtedness was discharged. [6] Gari responded to the notice by way of September 1, 1999 letter from its lawyer. The letter indicated that Gari, pursuant to ss. 36(10) and (11) of the PPSA, claimed reimbursement for damages expected to be caused by the removal of the Building. That amount was estimated at $3,000 to $3,500. Gari’s concern in this regard was that the metal walls of the Building were imbedded in concrete foundation and that removing the Building would involve cutting the walls and leaving behind the foundation with ridge of jagged metal protruding from it. The Credit Union responded with correspondence taking issue with Gari’s right to demand security pursuant to s. 36. [7] On November 5, 1999, Gari’s lawyer wrote to the Credit Union saying that Gari did not contest the Credit Union’s right to remove the Building and indicating that “all [Gari] wants is for the premises to be cleaned up to their original state”. The letter concluded by stating that Gari would not allow access to the Building unless $3,500 was paid into its lawyer’s trust account for purposes of covering the cost of cleanup. [8] The Credit Union then served second notice pursuant to s. 36 of the PPSA. It stated that the indebtedness secured by the Building as of that time, including interest, was $11,127.47 and indicated that the Credit Union intended to seize the Building within 15 days unless that amount was paid. [9] The Credit Union’s position prompted Gari to initiate proceedings in the Court of Queen’s Bench. At the end of December 2000, it applied for an order that removal of the Building be postponed until the Credit Union paid (a) $3,500 as security for reimbursement for possible removal damage; (b) rent of $500 per month from April 1999 through to the date the Building was removed, and (c) $2,818.04 of municipal property taxes for the period April 1999 to December 31, 2000. During the course of argument in this Court, Gari’s counsel advised that the relief in relation to rent and property taxes had been included in the motion not because those matters were conditions precedent to the Credit Union removing the Building but because, as Gari was going to be in court anyway on the matter of security for removal damage, it seemed useful to seek additional relief as well. [10] The Credit Union conceded the issue concerning payment of security very shortly before Gari’s motion was argued. In fiat dated February 8, 2001, Laing J. dismissed the application as it related to rent and reimbursement for taxes. He wrote as follows: The Applicant has been attempting to obtain the consent of the Langham Credit Union for similar order [concerning security in relation to reimbursement for damage] for over one year and it is appropriate to grant the Applicant costs of the application. With respect to the Applicant’s claim for occupation rent and reimbursement of taxes paid over the past year, this portion of the application is dismissed. The material suggests the Applicant had no use for the building and wished it removed from the outset. The appropriate remedy for it to follow in this case would be to seek mandatory injunction that the building be removed from the property and for damages suffered during the period of time after the demand that the building was not so removed. The Personal Property Security Act does not statutorily provide for general damage claim such as the one advanced by the Applicant in this matter. [11] The Building was sold to third party in the spring of 2001. However, it was not removed from the Property until the fall of 2002. That delay flowed, at least in part, from refusal by the Town of Nipawin to grant required permit to the purchaser until property taxes were fully paid. In order to facilitate matters, the Credit Union ultimately paid $2,964.71 to the Town in respect of the taxes. The Building was removed, the site returned to its original state and the $3,500 security deposit returned to the Credit Union. [12] For its part, Gari paid total of $6,227.88 in property taxes attributable to the Building during the time period when it says the Building remained on the Property after it should have been removed. That payment was made in order to avoid tax enforcement proceedings by the Town. II. The Queen’s Bench Decision [13] Gari launched the action which underpins this appeal in October of 2001. As amended, its statement of claim sought compensation from the Credit Union on the basis that the Credit Union was either tenant at will or tenant at sufferance and thus liable for use and occupation of the Property. Gari also advanced claim that it should be “reimbursed either as Quantum Meruit, or because [the Credit Union] has been unjustly enriched, or because the payment [of the property taxes] has created constructive trust of the $6,227.88 in the Defendant.” Without commenting on the potential merit of possible alternative arguments, observe that Gari did not advance claim either in trespass or on the basis that s. 65(5) of the PPSA itself creates cause of action. [14] The trial judge awarded Gari judgment in the amount of $6,227.88 plus costs. In so doing, he rejected the Credit Union’s contention that s. 36 of the PPSA operated to preclude Gari’s claim. [15] The trial judge found that the Credit Union was not tenant at will but that it did become tenant at sufferance when it neglected or refused to remove the Building within reasonable time. He determined the amount owing to Gari as being equal to the additional property taxes Gari had paid as result of the Building being left on the Property and reasoned as follows: [17] As am of the view that there was tenancy at sufferance, the plaintiff's damages should be assessed on the rental value. The plaintiff has established that while the building was on the site contrary to its wishes it had to pay $6,227.88 in municipal taxes levied against the building, as distinct from the land. This does not include the sum of $2,964.71 which the Credit Union paid directly to the Town of Nipawin to satisfy condition imposed by the town for the issuance of removal permit. [18] Gari claims that it received revenue from temporary storage of golf carts and for storage of bale loader. When extrapolated to the number of such units that could have been stored on the site, the rental value of the property could have been as much as $750 month. The plaintiff is willing to accept $500 month to allow for contingencies. In my view the evidence falls well short of proving that the plaintiff could have derived any rent from the property, had the building not been there, beyond the amount that the plaintiff actually recovered. On the other hand the reasonable rental value can be estimated, albeit with limitations, by reference to the amount of improvement taxes the plaintiff had to pay to keep the town from taking the property for taxes. [16] The trial judge concluded by saying that, if there was not tenancy at sufferance, he would have awarded Gari an amount for unjust enrichment in the same amount as the damages determined in connection with the tenancy at sufferance issue. [19] Having resolved the tenancy issue in the plaintiff's favour, it is not necessary to further consider the unjust enrichment claim. However had arrived at the conclusion that there was an unjust enrichment, would have assessed the damages for unjust enrichment in the same amount as the damages in lieu of rent. Whether the building was on the plaintiff's site or some other site, it would have, as commercial building, attracted municipal improvement taxes. In the absence of proof that the taxes on some other site, added to the cost of moving the building to that site, would have been less than the improvement taxes paid by the plaintiff, would have arrived at the same amount of damages using that approach. [17] The main questions raised by the Credit Union in its appeal can be summarized as follows: (a) Is s. 36 of the PPSA comprehensive code which precludes Gari’s claim?; (b) If Gari’s claim is not precluded by the PPSA, is Gari entitled to relief from the Credit Union? [18] It is also necessary to consider Gari’s cross-appeal. It alleges that the trial judge erred in failing to award damages in respect of what it refers to as the rental of the Building. [19] further note that this case was presented by both parties on the ground that the Building was fixture within the meaning of the PPSA. will accordingly proceed on that basis but do not wish to be taken as having resolved that point either one way or the other. Analysis A. Relevant Statutory Provisions [20] Section 36 of the PPSA is designed to displace the basic common law principle that goods affixed to land become part of the land. That rule, of course, generally gives priority to real property owner over financer of goods. [21] Cuming and Wood describe the effect of s. 36 in Saskatchewan and Manitoba Personal Property Security Acts Handbook, (N.p.: Carswell, 1994) at pp. 291-292: Section 36 sets out comprehensive regime that governs security interests in fixtures. In general sense, it continues the policy implicit under the older chattel security legislation by permitting secured party to remove goods that have become affixed to land. However, it puts into place four major improvements which are summarized below: (1) Section 36 adopts single policy governing security interests in fixtures. There is no longer difference in treatment depending on the form of the financing device. Section 36 applies to every type of security agreement. In addition, section 36 applies to lease of goods for term of more than one year. (2) Section 36 requires that the fixture financer register notice in the land title system in order to obtain priority over subsequent purchaser or mortgagee of land. This ensures that purchaser or mortgagee can rely on the integrity of the land titles system. (3) Section 36 creates special rule in relation to building materials. Building materials are not subject to removal pursuant to section 36. This prevents the financer from destroying building by the removal of its parts. (4) Section 36 sets out detailed procedure governing the removal of the fixtures. These provisions attempt to achieve reasonable balancing of interests between the fixture financer and the owner of land. [22] The portions of s. 36 which are most relevant to this appeal are set out below: (3) Except as provided in this section and in section 30, security interest in goods that attaches before or at the time when the goods become fixtures has priority with respect to the goods over claim to the goods made by person with an interest in the land. (9) secured party who, pursuant to this Act, has the right to remove goods from land shall exercise this right of removal in manner that causes no greater damage or injury to the land and to other property situated on it or that puts the occupier of the land to greater inconvenience than is necessarily incidental to the removal of the goods. (10) person, other than the debtor, who has an interest in the land at the time when the goods subject to the security interest are affixed to the land is entitled to reimbursement for any damages to the interest of the person in the land caused during the removal of the goods, but is not entitled to reimbursement for reduction in the value of the land caused by the absence of the goods removed or by the necessity or replacement. (11) The person entitled to reimbursement pursuant to subsection (10) may refuse permission to remove the goods until the secured party has given adequate security for reimbursement. (12) The secured party may apply to court for one or more of the following: (a) an order determining the person entitled to reimbursement pursuant to this section; (b) an order determining the amount and kind of security to be provided by the secured party; (c) an order prescribing the depository for the security; (d) an order authorizing the removal of the goods without the provision of security for reimbursement pursuant to subsection (11). (13) person who has an interest in the land that is subordinate to security interest as provided in this section may, before the goods have been removed from the land by the secured party, retain the goods on payment to the secured party of the lesser of: (a) the amount secured by the security interest that has priority over that interest; and (b) the market value of the goods if the goods were removed from the land. (14) secured party who has right to remove goods from land shall give to each person who appears by the records of the Land Titles Registry to have an interest in the land notice of the intention of the secured party to remove the goods, unless the amount mentioned in subsection (13) is paid on or before specified day that is not less than 15 days after the notice is given in accordance with subsections (15) and (16). B. The “Comprehensive Code” Argument [23] The Credit Union’s central submission is that s. 36 of the PPSA is comprehensive code which fully delineates the relative rights of financers and persons with an interest in land. It contends that the trial judge’s award effectively disregards the priority provisions of s. 36 and substitutes new remedy for the rights expressly set out in ss. 36(9) to (16). [24] am unable to accept that the PPSA goes as far as the Credit Union suggests. It is clear that s. 36 is designed to balance the rights of persons who hold security interest in goods which have become fixtures and persons who have an interest in the land to which the goods are attached. There can be no debate on that point. [25] However, it does not follow that s. 36 either can or should be read so aggressively as to exclude every cause of action or claim relating to the conduct of the financer of the goods as it affects the individual with an interest in land and vice versa. Section 36 may speak exhaustively to the relative priorities of financers and land owners in fixtures. It does not necessarily speak in that way to the full range of rights and claims which those parties might have against each other. [26] Speaking generally, see no principled basis on which person with an interest in land should be denied meaningful relief when financer, without excuse, acts in commercially unreasonable manner by failing or refusing to remove fixture after giving formal notice of its intention to do so. Denying remedy in that situation would put persons with interests in land at an unfair disadvantage vis-à-vis financers and would allow financers to effectively “store” fixtures on the property of others at no cost. The PPSA system is apt to function more fairly and effectively if financers are encouraged, through the existence of appropriate legal consequences, to remove their security within commercially reasonable time after giving notice pursuant to s. 36(14). [27] The Chambers ruling referred to above at para. 10 suggested that the appropriate remedy for person with an interest in land who wishes to have fixture removed is to seek mandatory injunction against the financer. do not mean by this decision to suggest that such an option would not be open to person with an interest in land. However, at the same time, there appears to be no reason why such person should not also be able to recover for loss or damage occasioned by commercially unreasonable failure on the part of financer to remove fixture after having given notice in that regard. [28] Section 65 of the PPSA is consistent with this view. Section 65(2) expressly states that principles of the common law, equity and the law merchant supplement the PPSA and continue to apply except to the extent they are inconsistent with the Act. Section 65(3) goes on to say that rights, duties and obligations arising under security agreement or the PPSA are to be exercised or discharged “in good faith and in commercially reasonable manner.” Further, s. 65(5) directly contemplates that where, without reasonable excuse, person fails to discharge duties or obligations under the Act, the person to whom the duty is owed has right to recover reasonably foreseeable loss or damage arising from that failure. The relevant parts of s. 65 are reproduced below: 65(1) In this section, “secured party” includes receiver. (2) The principles of the common law, equity and the law merchant, except to the extent that they are inconsistent with this Act, supplement this Act and continue to apply. (3) All rights, duties or obligations that arise pursuant to security agreement, this Act or any other applicable law are to be exercised or discharged in good faith and in commercially reasonable manner. (5) If person, without reasonable excuse, fails to discharge any duties or obligations imposed on the person by this Act, the person to whom the duty or obligation is owed has right to recover loss or damage that was reasonably foreseeable as liable to result from the failure. [29] The significance of s. 65 is recognized by Cuming and Wood in the Handbook at p. 463: Section 65(2) provides that principles of the common law, equity and the law merchant continue to apply except insofar as they are inconsistent with the provisions of the Act. The section recognizes that the Act is not complete, self-contained code of law applicable to personal property security transactions. It draws on this law as source of rules to fill the gaps in the system and to provide the basic foundation on which it is supported. For example, since the Act contains only few specific provisions relating to security agreements, the law of contract provides the basic infrastructure for regulating the rights of parties to security agreements. [Footnote omitted] [30] In this case, it is common ground that the Credit Union had right to remove the Building from the Property following Lakeland’s default. Pursuant to s. 36(14) and (15), it provided Gari with notice indicating its intention to do so within 15 days and giving Gari the right to retain the Building on payment of the indebtedness owing under the security agreement. On receipt of the notice, Gari relied on ss. 36(10) and (11) and denied the Credit Union permission to remove the Building until it was given adequate security for damage expected to be caused to its interest in the Property. [31] The Credit Union took the position in its factum that Gari refused to allow the removal of the Building until the Credit Union paid both property taxes in relation to the Building and an additional amount for “rent”. However, the record does not support that version of the facts. The affidavits filed with the Court of Queen’s Bench indicate that, although Gari claimed rent and taxes in April and July of 1999, it had changed its position as of September of that year. By September 1, Gari had retained lawyer and he indicated in letter to counsel for the Credit Union that Gari was only requesting security for the damage reimbursement. Accordingly, in my view, the analysis of the positions of the parties must proceed on that same basis, i.e. on the basis that, as of September 1, Gari was seeking security for possible damage caused by removal of the Building but was not seeking rent and reimbursement for taxes paid. [32] That said, I agree with the Credit Union that it would have been improper for Gari to deny permission to remove the Building unless the Credit Union paid an amount in respect of the property taxes attributable to it. That stance would have been inconsistent with the regime established pursuant to the PPSA. Section 36 provides only that person with an interest in land may refuse permission to remove goods until he or she has received adequate security for reimbursement of damages caused by their removal. Allowing person with an interest in land to oblige financers to pay property taxes before realizing on their security would amount to substantial realignment of the careful balance between the rights of fixture financers and holders of property interests which is reflected in s. 36. On this point agree with the observations of Ball J. in Cando Contracting Ltd. v. Sarnia No. 221 (Rural Municipality), 2002 SKQB 40 (CanLII), [2002] W.W.R. 89 at para 36. [33] In summary, find that s. 36 of the PPSA does not operate to preclude the claims advanced by Gari in this case. C. The Merits of Gari’s Claim [34] In light of my reading of the PPSA, it is necessary to consider the merits of the claims set out in Gari’s pleadings. 1. Tenancy at Sufferance and Tenancy at Will [35] Gari’s principal argument, accepted by the trial judge, is that the Credit Union was tenant at sufferance from the time Lakeland discontinued business on April 15, 1999 until the Building was removed in the fall of 2002. In my respectful opinion, the trial judge erred in his analysis of this issue and, more particularly, erred by misapprehending the nature of the legal relationship between Gari and the Credit Union. [36] The essence of tenancy is the right to possess and occupy land belonging to another. Oosterhoff and Rayner in Anger and Honsberger Real Property, 2nd ed. Vol. (Aurora: Canada Law Book, 1985) describe the basic relationship between landlord and tenant at p. 225: The relationship of landlord and tenant is created by contract expressed or implied, by which one person who is possessed with an interest in real property, and who is called the landlord or lessor, confers on another person, called the tenant or lessee, the right to exclusive possession of the real property or some part of it for period of time which is definite or can be made definite by either party, usually in consideration of periodical payment of rent either in money or its equivalent. [37] tenant at sufferance is one who, having entered on land by lawful title, continues in possession after the title has ended without obtaining the consent of the person entitled to the land. tenant at will, on the other hand, is person who possesses property under an express or implied agreement that the tenancy is determinable at the will of either party. See: Anger and Honsberger Real Property, supra, pp. 230-231; Williams and Rhodes, Canadian Law of Landlord and Tenant, 6th ed. looseleaf (Toronto: Thomson), pp. 4-2 to 4-2.1 and 4-17 to 4-19. [38] In this case, there was obviously landlord and tenant relationship between Lakeland and Gari. That relationship was created by 1997 agreement entitled “Lease with Option to Purchase”. However, Gari and the Credit Union were never landlord and tenant. At best, the Credit Union reserved security interest in goods which were affixed to the Property. The Credit Union had no right of occupancy, exclusive or otherwise. Its entitlements were defined by the financing agreement and the PPSA and related only to the existence of security interest in the Building. [39] It is also significant that Gari’s actions following the failure of Lakeland were inconsistent with the notion that the Credit Union was its tenant. The record reveals that Gari took possession of the Building and rented it out for storage of haying equipment and golf carts. These actions on its part reflect the terms of its lease with Lakeland. Paragraph 21 of the lease provides that it would be terminated if rent remained unpaid for seven days after its due date. Paragraph speaks to the disposition of building fixtures upon termination of the lease and provides that they would be owned by Gari: The lessee shall be permitted to erect or place on the land any buildings, and the lessee shall be permitted to make any improvements to the land, without requiring the consent of the lessor, provided that all buildings and improvements shall comply with any applicable laws or regulations of any relevant municipal, provincial, or federal or other authority. Upon the termination of this lease, should the lessee fail to accept the option to purchase hereunder, all buildings, fixtures and improvements made to the land shall be left on the land and shall be and become the property of the lessor absolutely, except for any portable buildings or other personal property of the lessee not affixed to the land [40] In light of the foregoing, I conclude that the Credit Union could not have been either a tenant at sufferance or a tenant at will of Gari for the fundamental reason that there was no landlord and tenant relationship between them. As a result, Gari’s claims in this regard must fail. 2. Unjust Enrichment [41] The other cause of action which Gari advanced was described in its pleadings as quantum meruit or unjust enrichment. The trial judge indicated that he would have allowed Gari to succeed on that basis if there was not tenancy at sufferance and that, if necessary, he would have awarded compensation for unjust enrichment in the same amount as the damages he awarded in connection with tenancy at sufferance, i.e. an amount equal to the property taxes paid by Gari in respect of the Building. [42] claim for unjust enrichment arises on satisfaction of three factors: (a) an enrichment, (b) corresponding deprivation, and (c) the absence of juristic reason for the enrichment. Unjust enrichment in equity permitted number of remedies including payment for services rendered on the basis of quantum meruit. See: Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.R. 980. [43] In this case, Gari’s position is that the nature of the alleged unjust enrichment is the benefit gained by the Credit Union in leaving the Building on the Property from April of 1999 to the fall of 2002 rather than paying for it to be stored at some other location. Gari argues that the amount of the benefit conferred on the Credit Union is the “storage” costs it saved by proceeding in that fashion. [44] find it unnecessary to consider the substantive merits of Gari’s claim because, even assuming there was unjust enrichment in the circumstances at hand, the record does not permit determination of the amount of the benefit said to have been conferred on the Credit Union. Put more specifically, the evidence does not establish storage costs for the Building. [45] For his part, as noted, the trial judge was of the view that compensation for unjust enrichment should be in the amount of the property taxes paid by Gari in respect of the Building. However, in my respectful opinion, that line of reasoning misses the mark. As McLachlin J. observed in Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] S.C.R. 762 at p. 804, it is not enough that plaintiff in an unjust enrichment case has made payment which it was not required to make, “it must also be shown that the defendant as consequence is in possession of benefit, and it is fair and just for the defendant to disgorge the benefit.” [46] There is no logical correspondence between the taxes levied in respect of the Building and the storage costs which the Credit Union avoided by leaving it on the Property. Tax liability is function of the assessed value of land and improvements. That value cannot be translated directly into the wholly separate concept of storage costs. This is particularly so for fabricated metal structure of the sort in issue here which presumably could have either been moved as whole to location outside of the Town for storage or, perhaps more likely, disassembled and stored in much smaller space than the one occupied by the Building proper. In short, the taxes paid by Gari do not equate in any way with what it says was the benefit received by the Credit Union. [47] In argument, counsel for Gari also suggested that figure of $500 per month could be used to approximate storage costs. That amount is rooted in an affidavit which indicates that Gari had rented the Building for $25 per month to store bale mover and that the Building was large enough to accommodate 30 such machines. This was seen as translating into $750 of monthly rental income. Against that figure, $500 per month was said to be reasonable estimate for storage. [48] am not persuaded of the logic of this line of thinking either. First, it is speculative at best to conclude that, because Gari had been able to rent space for the storage of single machine, it could have filled the Building with similar rentals. Indeed, if that was the case, Gari would presumably have proceeded to rent out the entire Building. Second, and more fundamentally, there is no necessary connection of any kind between the value of the rental stream the Building might generate and the cost of “storing” it. These are entirely different concepts. [49] Further, and by way of significant additional complication, some of the delay in the removal of the Building was due to the Town of Nipawin’s refusal to grant the necessary permit to the purchaser until the taxes had been paid. The Town’s position is perhaps questionable in light of s. 69 of the PPSA, but the significant point is that, in light of this issue, it is unclear how much of the delay in removing the Building can properly be laid at the feet of the Credit Union. As result, the period of time over which “storage” costs should be assessed is quite uncertain. [50] do not believe that unjust enrichment claims need be proven with precise mathematical certainty. However, Gari has failed to present evidence which would allow the Court to meaningfully quantify the benefit conferred on the Credit Union and to provide appropriate relief. As a consequence, I am of the opinion that no effect can be given to the unjust enrichment argument. [51] Gari also referred to the concept of the constructive trust in its pleadings. However, it is not readily apparent how trust would arise in the circumstances of this case and Gari quite properly did not press or develop that feature of its claim in argument before the Court. D. The Cross-Appeal [52] In its cross-appeal, Gari argues that the trial judge erred in failing to award damages in the amount of $500 per month in respect of “rent”. Gari’s approach to this part of the case was that, if the Credit Union was tenant at will or tenant at sufferance, it was obliged to compensate Gari at rate equal to the amount for which the Building could have been rented. In order to establish that amount, Gari extrapolated from evidence in the record as to the revenue it generated from storing bale mover in the Building. [53] have substantial doubts about the theory of damages expressed in the cross-appeal. However, in light of my conclusion that there was no tenancy at sufferance or tenancy at will, there is no need to explore the matter. The cross-appeal necessarily fails because there was no landlord-tenant relationship between Gari and the Credit Union. V. Conclusion [54] conclude that s. 36 of the PPSA does not preclude an action for damages in circumstances of the kind involved in this appeal. However, in light of the causes of action it plead and the evidence it brought forward, Gari’s claim against the Credit Union cannot succeed. The appeal is allowed. Further, as indicated, Gari’s cross-appeal is dismissed. [55] The Credit Union’s main argument concerning s. 36 of the PPSA failed but it nonetheless succeeded in overturning the result at trial. It will have costs in this Court in the usual way on double Column and in the Court of Queen’s Bench on the applicable schedule of the tariff. DATED at the City of Regina, in the Province of Saskatchewan, this 2nd day of August, A.D. 2005. RICHARDS J.A. concur BAYDA C.J.S.","This case concerns the fixture financing provisions of The Personal Property Security Act, 1993 (PPSA). The respondent claims damages from the appellant Credit Union. The claim arises from the Credit Union's delay in removing a Quonset in which the Credit Union held a security interest. The trial judge found in favour of the respondent and awarded damages on the basis that the Credit Union became a tenant at sufferance of the respondent when it failed to remove the Quonset and therefore was obliged to pay rent. The issue is whether the PPSA precludes a claim by a land owner against a financer arising from the financer's failure to remove a fixture within a commercially reasonable time after giving notice of its intentions in that regard. HELD: Appeal allowed. Cross appeal dismissed. In light of the causes of action pled and the evidence brought forward, the respondent's claim against the Credit Union cannot succeed.  1) Section 36 of the PPSA may speak exhaustively to the relative priorities of financers and land owners in fixtures. It does not necessarily speak in that way to the full range of rights and claims that those parties might have against each other. There is no principled basis on which a person with an interest in land should be denied meaningful relief when a financer, without excuse, acts in a commercially unreasonable manner by failing or refusing to remove a fixture after giving formal notice of its intention to do so. 2) It would have been improper for the respondent to deny permission to remove the building unless the Credit Union paid an amount in respect of the property taxes attributable to it. Allowing a person with an interest in land to oblige financers to pay property taxes before realizing on their security would amount to a substantial realignment of the careful balance between the rights of fixture financers and holders of property interest reflected in s. 36 of the PPSA. 3) The Credit Union could not have been either a tenant at sufferance or a tenant at will of the respondent for the fundamental reason that there was no landlord and tenant relationship between them. The respondent's claims in this regard fail. 4) The respondent has failed to present evidence that would allow this Court to quantify the benefit conferred on the Credit Union and to provide appropriate relief. As a consequence, no effect can be given to the unjust enrichment argument. 5) In light of the conclusion that there was no tenancy at sufferance or tenancy at will, the cross-appeal fails.",7_2005skca97.txt
229,"Editor’s Note: Corrigendum released on May 5, 2011. Original judgment has been corrected with text of corrigendum appended. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Timmons, 2011 NSCA 39 Date: 20110505 Docket: CAC 329645 Registry: Halifax Appellant William Tracy Timmons v. Her Majesty the Queen Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: November 15, 2010 Subject: Entry and search without warrant ss. and 24(2) Charter Summary: mother who reported that her daughter was being abused by the appellant did not know exactly where he lived. When the police called the daughter, she said that she was fine and friend was picking her up. She refused to say where she was. She also hung up and did not answer when called back. The name she gave of the person who was to pick her up was incorrect. The police continued to try and locate the daughter. After midnight, two hours after the call, five officers arrived at the appellant’s home. Some heard what was described as scream. The police pounded on the door. When the daughter opened it, she said that everything was fine. The police entered. They could see inside bedroom where the appellant lying on bed. One officer went straight there. The appellant cooperated during the pat down search. Officers then entered each room in the house. After seeing number of items, they obtained search warrant. At trial, the appellant alleged breach of s. of the Charter. In his voir dire decision, the trial judge held that the police entry and the search of the house were justified. He did not discuss s. 24(2). The evidence heard on that Charter application was considered in the trial proper along with additional evidence obtained pursuant to the warrant. The appellant was found guilty of several drug offences. Issue: Whether the warrantless entry and search of the home by the police was violation of s. of the Charter? If so, whether the evidence found as result of the searches should have been excluded pursuant to s. 24(2) of the Charter. Result: Leave to appeal granted, the appeal allowed, and the conviction set aside. In the circumstances, although the call was not a 911 call, or made by the alleged victim or from the home of the appellant, it was reasonable for the police to search for her, to go to the appellant’s home, and not to simply leave once the daughter told them at the door that she was fine. However, the trial judge erred in principle by failing to consider alternatives short of police entry into the home and bedroom, and the search of the home, all without a warrant. Their authority to investigate such call includes the police locating the alleged victim, and determining if their assistance may be required but, without more, does not extend to entry or search of premises. The record here is insufficient for this court, at first instance, to engage in a s. 24(2) analysis. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Timmons, 2011 NSCA 39 Date: 20110505 Docket: CAC 329645 Registry: Halifax Appellant William Tracy Timmons v. Her Majesty the Queen Respondent Judges: Oland, Fichaud and Farrar, JJ.A. Appeal Heard: November 15, 2010, in Halifax, Nova Scotia Held: Leave to appeal is granted, the appeal is allowed and the conviction is set aside per reasons for judgment of Oland, J.A.; Fichaud and Farrar, JJ.A. concurring. Counsel: Ralph W. Ripley, for the appellant Monica McQueen, for the respondent Reasons for judgment: [1] The main issue on this appeal concerns the police entry and search of home, without warrant. In the particular facts of the case, did their actions amount to breach of the Charter right to be secure against unreasonable search and seizure? Other issues arising from this appeal concern the validity of the search warrant that issued after that entry and search, and the admissibility at trial of certain certificates of analysis. [2] For the reasons which follow, I would allow the appeal. [3] The appellant, William Tracy Timmons, was charged with unlawful possession of cocaine and possession of marijuana for the purpose of trafficking, contrary to ss. and respectively of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. During the course of his trial, Justice Frank Edwards held voir dire to determine the admissibility of certain evidence. [4] How the police came to arrive and search the home in Gillisdale, Inverness County, Nova Scotia was described by the trial judge in his voir dire decision reported as 2009 NSSC 407 (CanLII): [3] Facts: On October 10, 2008, at approximately 10:30 p.m., Nadine Shaw (then age 24 years) telephoned her mother Peggy Shaw. Nadine advised her mother that she and the Accused (with whom Nadine was living) were having fight and “I wanted her to come pick me up.” [4] The family vehicle was not available so Peggy called the RCMP to have them go for her daughter. Ms. Shaw told the dispatcher that her daughter was being abused. She also told him that the Accused “deals in drugs and has big Rottweiler.” Peggy said she did not know whether or not there were weapons in the Accused’s house. [5] The call was relayed by RCMP telecoms Truro to the Inverness Detachment. Constables Roberts and Bojaruniec were on duty in separate vehicles. When they received the call, they teamed up in one vehicle and began to search for the Accused’s home. Peggy Shaw did not know exactly where the Accused lived and had provided telecom with very vague description. It should be kept in mind that geographical area in question is large sparsely populated rural area. Constable Roberts using her cell phone called Peggy Shaw back to get more details. During that call, Peggy Shaw confirmed her belief that Nadine was being abused and also provided Constable Roberts with Nadine’s cell phone number. Unfortunately, Peggy Shaw could not provide specific directions to the Accused’s location. [6] The RCMP then contacted Nadine who laughed and said “so my mother called.” Nadine insisted that she was fine and did not need the police. Nadine stated further that friend “Jason Timmons” was picking her up. It turns out that there is no such person as Jason Timmons and she mistakenly said Jason Timmons when she meant Jason Phillips. Nadine went on to reiterate to Constable Roberts “I’m just fine and am leaving right now.” Nadine refused to tell police where she was located. [7] Constable Roberts again called Peggy Shaw who advised that the friend is probably Jason Phillips (not Timmons) and provided police with Phillips’ phone number. Constable Roberts phoned that number and spoke with Jason’s mother, Irene. Irene confirmed that Nadine had called and Jason has just left. Irene provided more details about the location of the Accused’s home and gave sufficient details so that police were enabled to successfully find the residence. But it did take them at least two hours to do so. They recorded their time of arrival there at approximately 12:30 a.m. and the initial call, as have noted, was at 10:30 p.m. By the time police got to the Accused’s residence, therefore, the call was hours old. [8] It should be borne in mind that Constable Roberts was aware that the Accused had outstanding charges for obstructing police and impaired driving. Police also considered Mr. Timmons to be in the violent category (Code 10:36). [9] Constable Roberts also believed the Accused to be “major CDSA” (Controlled Drugs and Substances Act). [10] Shortly after Constables Roberts and Bojaruniec arrived, they heard scream coming from inside the residence. Nadine denies there was any such noise but do not believe her. (Nadine is still Accused’s girlfriend doing her best to extricate him from situation she probably feels responsible for). (Nadine’s memory vague e.g. clearly wrong on times. Memory selective. Constable Roberts says the scream increased everyone’s threat level. [11] In fairness to her, there is another possibility which would be consistent with the evidence given by Nadine Shaw. Nadine stated that while police were still outside the residence, the dog, Rottweiler mix, which was inside the home, was whimpering. (The dog was not barking.) It is possible that Constables Roberts and Bojaruniec honestly mistook the whimpering sounds for human sounds. Constable Roberts did described the scream as “... someone trying to scream but not able to actually get scream out as if in panic situation. It would be my first thought when heard it. So it wasn't loud scream cry for help but it was like ... shriek.” [12] Constable Septon arrives five minutes later, followed few minutes after that by Constable Montreuil and Auxiliary Constable Camus. [13] Police also saw dog dish and chain outside indicating the possible presence of guard dog. This observation made drawing weapons prudent and absolutely justified. [5] Nadine Shaw responded to the police pounding on the door, demanding that it be opened and the dog secured. When she opened the door, she said that everything was fine. Nadine told the police that no assault had taken place, she and Mr. Timmons had had verbal argument, she had wanted to leave and he did not want her to take his truck. [6] From where they had entered, the three officers could see inside bedroom off that space. There was person lying on the bed. Cst. Montreuil went straight there. She asked Mr. Timmons to get out of bed and be searched for officer safety reasons. He cooperated. Cst. Septon assisted with the pat down search. Afterwards, Cst. Montreuil took him to the living room. [7] The other two officers entered the residence after the first three. They assisted in “clearing the house” for security purposes. They entered each room and space that could hold person to ensure that no one was concealed there and that there were no firearms. [8] After seeing number of items about the property, the police decided to obtain search warrant. Cst. Montreuil relayed information by telephone to Cpl. MacKay. In her Information to Obtain Search Warrant (the “Information”), Cpl. MacKay wrote that the officers, whom she identified by name in each instance, had observed articles including: “a large Ziploc bag containing substances believed to be Marijuana in the bedroom on top of clothes basket, in plain view”, “a large black garbage bag containing dried marijuana plants in the kitchen”, “approximately 170 pre-planted marijuana seed basket” in the basement, and “Miracle Grow solution, large buckets and insulation venting. As well as halogen lamp, timers, tray with heater, and fans” in the spare room, which had its window covered with dark plastic. [9] In the Information, Cpl. MacKay stated that she had reasonable grounds to believe and did believe that there were controlled substances or precursors at dwelling located at 139 Egypt Road, Scottsville, Inverness County. The information included description of the premises and out buildings. [10] While the RCMP officers waited at the house, Cpl. MacKay took the Information to Justice of the Peace. He issued warrant authorizing the search of the premises described in the Information. [11] During the voir dire, the RCMP officers were not able to substantiate the origin or the description of all the particulars which appeared in the Information. They testified as to some omissions or discrepancies in how the house was described in that document compared with the actual premises. The Voir Dire Decision Unreasonable Search and Seizure [12] In his decision on the voir dire concerning the alleged breach of s. of the Charter by the warrantless entry and search, the judge stated: [14] In those circumstances, police had a responsibility to enter the residence – whether invited or not. The perceived scream meant that either Nadine was lying about being okay, or had been subsequently threatened, or that someone else inside was in trouble. Police had to investigate and check the entire house for the presence of other persons. He stated that there was no qualitative difference between 911 call as in R. v. Godoy, 1999 CanLII 709 (SCC), [1999] S.C.R. 311 and here where Peggy Shaw had phoned police out of concern for her daughter’s safety. [13] According to the judge, the entry by the police was not only justified but entirely necessary. He also stated that once inside the residence, the police were justified in checking the house to ensure that there were no other occupants and in searching Mr. Timmons to ensure he had no weapon. The judge held that the Crown had proved that the police acted reasonably and lawfully in searching Mr. Timmons’ residence and that there was no breach of s. of the Charter. The Trial Decision [14] The evidence heard by the trial judge on that Charter application was considered in the trial proper along with additional evidence called by the Crown. The judge found Mr. Timmons guilty as charged of possession of cocaine and marijuana, and possession of marijuana for the purposes of trafficking, contrary to ss. and of the Controlled Drugs and Substances Act. Mr. Timmons appeals against his conviction. [15] Mr. Timmons collapsed the 18 issues in his notice of appeal into four categories. The issues can be restated as follows: 1. Was the initial warrantless entry and search of the home by police violation of s. of the Charter? 2. Was the further search of the premises under the authority of search warrant violation of s. of the Charter? 3. Should the evidence found as result of the searches have been excluded pursuant to s. 24(2) of the Charter? 4. Should the certificates of analysis tendered at trial have been admitted into evidence? Standard of Review [16] The jurisdiction of this court in this appeal against conviction is set out in s. 675 of the Criminal Code: 675. (1) person who is convicted by trial court in proceedings by indictment may appeal to the court of appeal (a) against his conviction (i) on any ground of appeal that involves question of law alone, (ii) on any ground of appeal that involves question of fact or question of mixed law and fact, with leave of the court of appeal or judge thereof or on the certificate of the trial judge that the case is proper case for appeal ... [17] For questions of law, the standard of review is correctness. For questions of fact, it is overriding and palpable error. For questions of mixed law and fact, it is also palpable and overriding error, unless question of law is readily extricable. In that situation, the standard of correctness applies to that question of law. See Housen v. Nikolaisen, 2002 SCC 33 (CanLII). [18] Whether the correct legal standards were identified and applied is question of law. If no such error was made, an appellate court then considers the evidentiary basis of the decision and the application of the legal principles to the facts of the case which, unless there are extractable legal questions, are questions of mixed fact and law. Analysis Warrantless Entry and Search [19] Mr. Timmons argues that the trial judge erred in law in determining that his rights as guaranteed by s. of the Charter to be secure against unreasonable search and seizure were not breached by the police entry and search of his home. He raises several arguments, including: (a) The call to which the police responded was not 911 call or distress call made from his home; (b) The police were not justified in entering when Nadine opened the door and said that she was fine; and (c) Once the police had entered, their “clearing the house” was not justified. [20] begin by setting out the relevant provisions of the Canadian Charter of Rights and Freedoms, namely, sections and 24: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Enforcement of guaranteed rights and freedoms (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [21] An individual is entitled to privacy in his or her own home. The unauthorized presence of state agents such as the police constitutes an invasion of that privacy. As stated by Cory J. at 141 of R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297: 141 .. It must be the final refuge and safe haven for all Canadians. It is there that the expectation of privacy is at its highest and where there should be freedom from external forces, particularly the actions of agents of the state, unless those actions are duly authorized. This principle is fundamental to democratic society as Canadians understand that term. ... [22] However, the principle is not without exceptions. In her decision in Silveira, L’Heureux-Dubé J. referred to R. v. Landry, 1986 CanLII 48 (SCC), [1986] S.C.R. 145 where the majority concluded that warrantless entry in hot pursuit circumstances was permitted, and stated at p. 744: ... In concurring reasons, Estey J. added in Landry (Beetz and McIntyre JJ. concurring), at p. 166, that the ancient principle of the inviolability of the home ""must yield to the legitimate requirements of law enforcement"" and went on to cite the following passage from the case of Lyons v. The Queen, 1984 CanLII 30 (SCC), [1984] S.C.R. 633, where for the majority he wrote (at p. 657): The home is not castle in isolation; it is castle in community and draws its support and security of existence from the community. The law has long recognized many compromises and outright intrusions on the literal sense of this concept. (Emphasis in original) [23] Once it has been demonstrated that search is warrantless one, the burden is on the Crown to show, on balance of probabilities, that the search was reasonable one. search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was conducted is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 at 23. [24] It is undisputed that here the police activity following entry and before the issuance of the search warrant amounted to warrantless search and thus was prima facie unreasonable. It is not suggested that exceptions to the expectation of privacy in home, such as hot pursuit, exigent circumstances, or statutory authorization, are applicable. In order to be lawful, the search had to have been conducted pursuant to common law police powers. If it was not lawful, it is then necessary to consider whether the evidence obtained as result should be excluded under s. 24(2) of the Charter. [25] With this background, turn to the arguments raised by Mr. Timmons. (a) Not 911 or Distress Call [26] Mr. Timmons characterizes the original call by Peggy Shaw to the RCMP as just call by mother looking for drive for her daughter. He argues that it was not 911 call, nor akin to 911 call. The call was not made by an alleged victim, or from his home. He emphasizes that before the police arrived at his residence, Nadine had told the police on the telephone that she was “perfectly fine”. She had laughed and said that she was in no danger. Nadine had indicated that she did not need help, but drive home, and she had already arranged drive. [27] With respect, cannot accept this argument. Rather, agree with the trial judge. In the particular circumstances of this case, the fact that the call which triggered police response was not through 911, by the alleged victim, or from the house is not material. [28] begin by considering the jurisprudence regarding 911 emergency response calls. The leading case is R. v. Godoy, supra. There the police responded to 911 call which originated from Mr. Godoy’s apartment. It was classified as an “unknown trouble” call, one where the line had been disconnected before the caller spoke. When the accused answered the door, he said there was no problem. He tried to shut the door when the police asked to enter to investigate, but an officer prevented him from doing so. After the officers entered, they found the accused’s wife sobbing and injured. The accused was eventually charged, among other things, with assaulting police officer with the intent of resisting arrest. [29] The trial judge acquitted on the basis that the police entry into the accused’s apartment was unauthorized and, therefore, all subsequent police actions, including his arrest, were illegal. That decision was overturned on appeal. The Ontario Court of Appeal held that the police were acting in the execution of their duty to protect life and prevent injury when they forcibly entered the apartment in response to disconnected 911 call. [30] On appeal to the Supreme Court of Canada, one of the issues was whether the appellate court had erred in that determination. Chief Justice Lamer, writing for the Court, stated: The police were acting in the course of their duty to ""protect life"" which includes preventing death or serious injury. They entered the apartment with the knowledge that 911 call was made from that residence. Entry was necessary to determine the cause of the distress and to give aid if necessary. Giving aid to persons in distress is the very essence of the police duty to ""protect life"". 11 In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case. 20 see no other use for an emergency response system if those persons who are dispatched to the scene cannot actually respond to the individual caller. certainly cannot accept that the police should simply take the word of the person who answers the door that there is ""no problem"" inside. 22 Thus in my view, the importance of the police duty to protect life warrants and justifies forced entry into dwelling in order to ascertain the health and safety of 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on resident's privacy interest. However, emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to 911 call ends there. They do not have further permission to search premises or otherwise intrude on resident's privacy or property. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. [31] Also relevant to this issue is R. v. Norris, 2010 ONSC 2430 (CanLII) where, in response to report of domestic assault, the police forcibly entered home by kicking in the door. One of the issues raised was whether telephone call to the police by third person respecting alleged criminal activity in another residence was sufficient to invoke the same or similar emergency response as 911 call. Stach, J. stated: [15] While it is true that 9-1-1 call must be treated from the outset as “distress” call it does not follow from this that all information which finds its way to the police by other means cannot constitute circumstances of distress. In my view it is the substance of the information in the hands of the police and its analysis that needs to be questioned rather than the precise means by which that information comes into the hands of the police. It is contextual analysis. [32] Twice her mother had told the police that Nadine Shaw had been abused. They had no reason to disbelieve her. The police themselves considered Mr. Timmons to be violent for reasons separate from this incident. While Nadine, the alleged victim, had assured the police on the telephone that she was fine and had arranged for drive home, other information she gave or did not give, was concerning. She refused to tell the police where she was. She hung up on the police and did not answer when they called back. Nadine could have been threatened to respond in these ways which made it more difficult for the police to find her. [33] Nadine gave wrong name for the person she said was to pick her up. The officers could not get confirmation that anyone had picked her up and removed her from the home to safety. In fact, she never was picked up. She was still on the premises when they arrived after midnight, having been trying to locate her for two hours in an isolated countryside. [34] In the circumstances, it was reasonable for the police to believe that something was or could be wrong, and they should find and see her in case Nadine required protection or rescue. Their proceeding to and attendance at Mr. Timmons’ home were actions taken within the course of the police duty to “protect life”. [35] In my view, when this matter is considered in context, keeping in mind all of the surrounding circumstances, it was reasonable for the police to search for the alleged victim and to go to Mr. Timmons’ home. At the Door [36] Although Nadine Shaw had told the police at the door that she was fine, her statements could have been involuntary and made pursuant to threats of violence. At this point, she was still inside with the person reported to have abused her, and possibly under his control. [37] At 20 of Godoy, Lamer, C.J. could not accept that the police should simply take the word of the person who answers the door that there is no problem inside. While he was referring to someone other than the alleged victim, the same concerns can arise when that person is the alleged victim. Here it was reasonable for the police to stand their ground. Their alternative was to accept what Nadine said at the door at face value and simply leave. If they had done so, the officers could have been abandoning an alleged victim of abuse in the company of her alleged abuser and in remote and secluded location, without ever seeing or speaking with her alone. Police Entry [38] In his voir dire decision, the trial judge stated that in the circumstances, including the perceived scream, the police had a responsibility to enter the residence, whether invited or not, and that their warrantless entry, search of Mr. Timmons’ person, and search of his house did not breach his s. 8 Charter right against unreasonable search and seizure. [39] With respect, disagree with the judge’s analysis of the police entry. [40] Four R.C.M.P. officers, with their firearms or Taser out of their holsters and at the low ready position, were at the scene. So was an unarmed auxiliary constable. They had positioned themselves at two entrances to the house. When the police demanded, Nadine came and opened the door. She was the person who had been reported as having been abused by Mr. Timmons. [41] If the police were concerned that her assurances that all was well might not be genuine or made of her own free will, they could have asked Nadine to step outside the house. The police could then have questioned her face to face and away from any possible influence by Mr. Timmons. [42] If she had been in any danger, Nadine then could have simply left with the five officers. She had been located and was safe with them. There would have been no reason or need to enter the residence. [43] The police had no information that there was anyone in the house other than Mr. Timmons and Nadine Shaw. However if, because of the perceived scream or otherwise, they were concerned that there might be anyone else in the house who was in trouble, they could have obtained that information from Nadine Shaw, outside the house. They could also have asked whether there were any firearms or weapons there. If she said that there was someone who needed assistance, the officers would have reasonable grounds to believe that that person’s safety was risk. They then would have been justified in entering the house to locate and protect him or her. [44] If Nadine refused to step outside the house when asked, the police might have suspected that Mr. Timmons was threatening her from behind the door or farther away, and that he was armed. In that case, they would have had to decide how next to proceed. Depending on the circumstances, one reasonable option might well be warrantless entry with the object of protecting Nadine’s safety. [45] But the police did not ask Nadine to step outside the house. Instead three officers entered. Nadine Shaw told them that she was fine. There was no one nearby or who was interfering with their conversation. The only person in view was man lying on bed in bedroom. There was no evidence that he either moved or reached for something suddenly, or indeed at all. Nevertheless the police went straight into the bedroom, had him get up, did pat-down search to which the man cooperated, and then proceeded to search his house. [46] In my view, the trial judge erred in principle by failing to consider alternatives to the warrantless entry of Mr. Timmons’ home and bedroom, and the search of his home. [47] In fulfilling their duties to prevent death and serious injury, the police are often required to make rapid assessments and decisions in potentially dangerous situations. However, they must always include in their considerations the rights set out in the Charter. Chief Justice Lamer’s statements in 22 of Godoy, where he emphasized that the intrusion into dwelling to ascertain the safety of caller was limited to the protection of life and safety, are instructive and clear. repeat: The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to 911 call ends there. They do not have further permission to search premises or otherwise intrude on resident’s privacy or property. [48] In his submissions to the trial judge, counsel for Mr. Timmons emphasized and quoted this passage from Godoy. While the judge referred to Godoy in his reasons, he made no mention of this principle. It does not appear that he considered it in deciding that the police entry without warrant was justified. [49] As to the pat-down search, in R. v. Mann, 2004 SCC 52 (CanLII) the Supreme Court of Canada considered searches incidental to the police power of investigative detention. Such searches are warrantless and presumed to be unreasonable unless they can be justified and found reasonable pursuant to the test in Collins, described earlier. Iacobucci, J, writing for the majority, noted the importance of maintaining distinction between search incidental to arrest (such as in R. v. Golden, 2001 SCC 83 (CanLII)) and search incidental to an investigative detention. 37 The latter does not give license to officers to reap the seeds of warrantless search without the need to effect lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible.” 40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct pat-down search incident to an investigative detention. Such search power does not exist as matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. [50] The judge’s failure to consider alternatives short of police entry and search of person and home without authorization by warrant led to his finding that there had been no violation of the s. Charter right to be secure against unreasonable search and seizure. Having determined that there was no Charter breach, he did not consider s. 24(2) of the Charter. [51] In certain circumstances, an appellate court can proceed with s. 24(2) analysis. In R. v. Caputo (1997), 1997 CanLII 1636 (ON CA), 114 C.C.C. (3d) 1, 98 O.A.C. 30 (C.A.), Rosenberg, J.A. commented: 36. The trial judge did not consider the application of s. 24(2) of the Charter because, in his view, there was no ongoing violation of the appellant's rights at the time that statements #5 and #6 were made and because he determined that the earlier violations did not taint the subsequent collection of evidence. In my view, the trial judge erred in adopting that approach and, consequently, this court is required to consider the application of s. 24(2). This court is in as good position as the trial judge to make the necessary determination under s. 24(2). The evidence concerning the appellant's detention and subsequent arrest was undisputed and, as such, it is only necessary that this court draw the appropriate inferences from this evidence and the findings of fact made by the trial judge. [Emphasis added.] [52] See also R. v. Squires, 2005 NLCA 51 (CanLII), 199 C.C.C. (3d) 509, where the Court of Appeal concluded that the trial judge had erred by failing to engage the s. 24(2) analysis. In rejecting Squires’ argument for new trial, Mercer, J.A. writing for the court stated that it had the record of the pre‑trial applications and therefore could determine whether certain item ought to have been admitted in evidence at trial. As authority for appellate courts undertaking the s. 24(2) analysis, he referred to, for example, R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont. C.A.); R. v. Smith (1998), 1998 ABCA 418 (CanLII), 219 A.R. 109 (Alta. C.A.). [53] In R. v. Ngai, 2010 ABCA 10 (CanLII), 251 C.C.C. (3d) 533, the trial judge determined that there had been no s. breach and therefore did not proceed to s. 24(2) analysis. In the course of its decision, the Court of Appeal observed: 27 while no oral arguments had been made at trial on the section 24(2) analysis, counsel for both the Crown and the appellant had filed written submissions on the point. 31 At trial, evidence was adduced during the voir dire to deal with both the issue as to whether or not there had been section breach and also if so, should the evidence be excluded pursuant to section 24(2). [54] Caputo, Squires and Ngai establish that, where the trial judge has not done so, it is permissible for an appellate court to conduct s. 24(2) analysis when the record is sufficient. When the record is not complete, an appellate panel may send the matter back for new trial. See, for example, R. v. Le, (1996), 181 A.R. 107 (C.A.) where the record was complicated due to the bifurcation of the s. and 24(2) arguments, with the latter to proceed only if and after the s. breach was established. [55] In the case before us, we have transcript of brief oral defence submissions on s. 24(2), but no Crown submissions, as the trial judge told the Crown they were not necessary. We have no copies of any written submissions on s. 24(2) to the judge. In this court, the Crown made submissions on s. 24(2) but the defence (appellant) said very little on the topic and requested that the matter be remitted for retrial. The voir dire decision did not find it necessary to discuss s. 24(2). As result, we have little guidance from the trial judge on the s. 24(2) analysis. In my view, this is not case where it is appropriate for the Court of Appeal, at first instance, to engage in the delicate balance of s. 24(2) analysis. Disposition [56] To dispose of the appeal, it is unnecessary to discuss the second and fourth issues mentioned earlier. I would grant leave to appeal, and allow the appeal. I would set aside the conviction. Any retrial shall be at the option of the Crown and, if held, shall be before different judge. Oland, J.A. Concurred in: Fichaud, J.A. Farrar, J.A. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Timmons, 2011 NSCA 39 Date: 20110505 Docket: CAC 329645 Registry: Halifax Appellant William Tracy Timmons v. Her Majesty the Queen Respondent Revised Judgment: The text of the original judgment has been corrected according to this erratum dated May 18, 2011. Judges: Oland, Fichaud and Farrar, JJ.A. Appeal Heard: November 15, 2010, in Halifax, Nova Scotia Held: Leave to appeal is granted, the appeal is allowed and the conviction is set aside per reasons for judgment of Oland, J.A.; Fichaud and Farrar, JJ.A. concurring. Counsel: Ralph W. Ripley, for the appellant Monica McQueen, for the respondent [57] In 9, line one, replace “Cst.” with “Cpl”.","The police responded to a call from a woman identified as the defendant's girlfriend's mother to the effect that her daughter was being abused. Initially unable to locate the residence, they spoke to the girlfriend on the phone, who advised them that she was fine and did not require the police. They nevertheless continued to the residence, where they heard a scream from inside. Knowing that the defendant was a suspected drug dealer and potentially violent, they demanded entry into the home. The daughter opened the door and told them everything was fine, there had been no assault and she had simply wanted a ride home. From where they entered, the officers could see a person lying down in the bedroom. They approached the man, searched him for officer safety and then conducted a warrantless search to locate any other occupants. During the search, certain items were noted that caused them to obtain a search warrant, following which drugs were found. The defendant's argument that the search was illegal was unsuccessful as the court found that, in these particular circumstances, the police had a responsibility to enter the home without a warrant, do a pat down search of the accused and search for other occupants. Once drugs were seen in plain view, they proceeded to obtain a search warrant. Judicial notice was taken of the fact that complainants in domestic situations often recant due to threats of coercion by their partners. The defendant appealed. Appeal allowed; conviction set aside; although a violation of the defendant's Charter rights had occurred, the record was insufficient for this court to engage in a s. 24(2) analysis. Although it was reasonable, in the circumstances, for the police to search for the girl, go to the defendant's home and not simply leave once she told them she was fine, the trial judge erred in failing to consider alternatives short of police entry (such as conferring with the girl after they had her step outside and close the door) and the search of the home, without a warrant. Police authority to investigate such a call includes locating the alleged victim and determining if their assistance is required, but, without more, does not extend to the entry or search of the premises.",b_2011nsca39.txt
230,"J. Saskatchewan Court of Queen's Bench Family Law Division Judicial Centre of Regina Citation: W.B. and J.B. v. A.G. Date: 1999-08-31 Docket: 1999 F.L.D. No. 188; 1999 SKQB 39 Between: W.B. and J.B. (applicants) and A.-A.G. (respondent) Allbright, J. Counsel: S.L. Fitzsimmons, for W.B. and J.B. E.F.A. Merchant, Q.C., for A.-A.G. [1] Allbright, J.: The applicants, the paternal grandparents, seek an order granting them access to their grandson, R.D.G., born December [...], 1995, pursuant to s. 6.1(1) of the Children's Law Act, 1997, S.S. 1997, c. C-8.2. [2] A.G. is opposed to this access and suggests that any access being exercised by the applicants should be exercised during the access periods granted to their son, P.J.B. [3] have considered the oral arguments of counsel, the deposed material before me, and the authorities cited to me in this matter. [4] I am of the view that it would be in the best interests of the child, R.D.G., to have some ongoing relationship with both his maternal grandparents, and his paternal grandparents. The material satisfies me that the applicants are responsible individuals who have genuine affection and concern for the child. As their son, P.J.B., does not reside in Saskatchewan but rather in Alberta, am of the view that P.J.B. may well not be able to exercise the degree of access which he seeks or indeed has been granted by this court in fiat being released concurrently with this one [see [1999] Sask.R. Uned. 204]. This fact, in my view, warrants consideration by the court in assessing what is in the best interests of the child in terms of access to that child. [5] am not satisfied that it is appropriate to link the access of the paternal grandparents with that of the child's father. They are, in my view, separate relationships with unique characteristics to each of them. While believe that access should be granted to the grandparents, am of the view that it should be less frequent than that which would be granted to the child's father. I believe that one Saturday access period every two months would be appropriate under all of the circumstances and accordingly it is hereby ordered that W.B. and J.B. shall be granted access to their grandson, R.D.G., one Saturday every second month from 10:00 a.m. to 4:00 p.m. The respondent, A.G., shall fix each access period two months in advance. [6] There is no order as to costs. Application allowed.",HELD: The grandparents were granted access one Saturday every second month from 10:00 a.m. to 4:00 p.m. It would be in the best interests of the child to have some ongoing relationship with both his maternal and paternal grandparents. The father lived in Alberta and may not be able to exercise the degree of access he was seeking. The relationships were separate with unique characteristics.,b_1999skqb39.txt
231,"C.R.141404 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN DANY KANE DECISION ON APPLICATION FOR STAY OF PROCEEDINGS HEARD: at Sackville, Nova Scotia before the Honourable Justice Felix A. Cacchione on September 23rd, 1998 DECISION: September 28th, 1998 (Orally) COUNSEL: Pierre Lapointe and Chris Morris, for the Crown Dani6le Roy and Isabelle LaMarche, for the Defence (Applicant) J. The accused, Dany Kane, is charged with murder in the first degree. He did not have the benefit of preliminary inquiry as result of the Crown preferring the indictment against him. There is no evidence before the court on the merits of the case as the trial has yet to begin. The accused brings this application for a stay of proceedings alleging that his rights under ss.11(d) and 11 (f) of Canadian Charter of Rights and Freedoms have been infringed due to the pre-trial publicity generated by this case. The applicants position, in short, is that the pre-trial publicity has prejudiced his right to be tried by an impartial jury of his peers. It is also argued that the security measures presently in place and focussed on by the media have instilled in the general populous climate of fear which makes the selection of an impartial jury impossible. It is argued by the applicant that prejudicial information, which has yet to be ruled admissible by this Court, is contained in many of the media reports aired to date. Reference is made to the following prejudicial comments contained in the news report; (a) the description of Mr. Kane as the accused killer not the alleged accused killer, (b) to Mr. Kane having links with the Hells Angels Motorcycle Gang; (c) to Quebec bikers being notorious for bombings; (d) to an incident during biker trial held in Montreal where car was driven up the courthouse steps; (e) to the RCMP belief that this case was contract killing involving the Hells Angels; (f) to the police taking extra precautions because the case is linked to bikers; (g) to the police saying the accused has ties to violent faction of the Hells Angels; (h) to the accused being transported by three van loads of heavily armed RCMP officers; (i) the escorting of the handcuffed accused into the courthouse. As well it is submitted that coverage about this trial being held in location other that the Law Courts Building together with the extensive security arrangements in place, such as cement barricades surrounding the building, external surveillance cameras, metal detectors, twenty-four hour per day perimeter patrols by civilian clothed RCMP officers and the transportation of the accused to the courthouse by what the media describes as heavily-armed guards travelling in bullet-proof vehicles have made it impossible for this accused to be tried by an impartial jury of his peers. The appellant's position is that the comments noted above coupled with very brief interview of two persons living near the make-shift courthouse who indicate that they are nervous because of the heightened security have made it impossible for the accused to receive fair trial. The applicant argues that these eight television news broadcasts aired at peak times on September 10th, 11 th, 15th, 16th and 17th together with five radio broadcasts aired on September 15th and 16th have created an atmosphere of fear and terror surrounding Mr. Kane's trial such that it will be impossible for him to get fair trial by an impartial jury. The applicant submits that this information is such that it would reasonably be expected to taint the accused in the eyes of the public and that potential jury has been irreparably prejudiced against him. It is the applicant's position that there is reasonable apprehension of bias such that Mr. Kane's rights have been or may be infringed. The Crown respondent acknowledges that the incident in Montreal where car was driven up the steps of the courthouse was not linked to the Hells Angels and that the reporting of this link is clearly wrong. The respondent argues essentially two points, these being: (a) that the applicant has not discharged its burden of proving on balance of probabilities that his Charter rights have been breached; and (b) that the application is premature because no attempt has been made to determine if an impartial jury can be selected. The respondent's position is that it is insufficient to simply say that there has been adverse publicity and therefore the applicant cannot receive fair trial because of that publicity. The respondent submits that the test is what effect has this publicity had on potential jurors and whether that effect is such that it precludes potential jurors from putting aside their preconceptions and judging the case on its merits. It is suggested that simply because two persons living near the courthouse have been made nervous by the visible security arrangements does not necessarily mean that all potential jurors will suffer that same effect to the point of not being impartial. It is clear that some of the pre-trial publicity has covered things which were factually wrong or things which have not, to-date, been established in evidence. It is also true that the media coverage has been sensational and inflammatory by focussing on the security arrangements presently in place. However, the pre-trial publicity generated in this case pales in comparison to the media coverage preceding the criminal trial in the Westray Disaster and in the trials of the Christian Brothers involved in the Mount Cashel abuse cases. In R. v. Kenny (1991), 1991 CanLII 2738 (NL SC), 68 C.C.C. (3d) 36 the accused was charged as result of incidents occurring at Mount Cashel. He applied for Stay of Proceedings on the basis of adverse pre-trial publicity. In his ruling on this application Barry, J. outlined the type of media coverage which preceded the commencement of Mr. Kenny's trial. Justice Barry noted that public inquiry, held before Mr. Kenny's trial, heard from twenty former residents of Mount Cashel who testified under relaxed rules of evidence about the abuse they suffered at Mount Cashel at the hands of various members of the Christian Brothers organization. The vast majority of the public inquiry was broadcast on cable television network covering 83% of the households in the area from which jury panel was to be selected. He noted as well that the story of the Mount Cashel abuse including video taped portions of the inquiry testimony of abuse victims was played and re-played both locally and nationally throughout the period from the commencement of the inquiry through to the date of Mr. Kenny's trial. In two year period leading up to Mr. Kenny's trial, in Newfoundland alone, there were 525 news stories involving 330,000 words relating to the abuse at Mount Cashel. Stay of Proceedings based on the unprecedented amount of prejudicial pre-trial publicity was denied in that case. The issues before me are: (a) has the appellant established on balance of probabilities that the circumstances of this case violate his right to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal under s.11(d) or his right to jury trial under s.11(f) of the Canadian Charter of Rights and Freedoms; and (b) if there has been violation of the accused's Charter rights is the proper remedy Stay of Proceedings. THE LAW It is well noted that in Charter cases the burden of establishing Charter violation rests with the applicant on balance of probabilities. R. v. Mack (1988), 44 C.C.C. (d) 513. The law applicable to Stay of Proceedings applications is clear and has been set out in various decisions of the Supreme Court of Canada commencing with R. v. Jewitt (1985), 1985 CanLII 47 (SCC), 21 C.C.C. (3d) 7; R. v. Keyowski (1988), 1988 CanLII 74 (SCC), 40 C.C.C. (3d) 481; R. v. Conway (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289; R. v. Scott (1990), 1990 CanLII 27 (SCC), 61 C.C.C. (3d) 300; R. v. Potvin (1993) 1993 CanLII 113 (SCC), 83 C. C. C. (3d) 97; R. v. Power (1994), 1994 CanLII 126 (SCC), 89 C. C. C. (3d) and R. v. O'Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1. In R. v. O'Connor the Supreme Court of Canada indicated that there was no utility in maintaining two distinct approaches to abusive conduct. Both the majority and minority judgments are in agreement that the concept of abuse of process has been subsumed in the Charter and should not be considered separately unless circumstances arise to which the Charter does not apply. The above noted authorities hold that Stay should be granted where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency or where proceedings are vexatious or oppressive. It is also established that Stay of Proceedings should only be entered in ""the clearest of cases"". In R. v. Conway it was held that where the affront to decency and fair play is disproportionate to the societal interest in the effective prosecution of criminal cases then the administration is best served by staying the proceedings. Justice L'Heureux-Dube in R. v. Power stated at page 10 that courts have residual discretion to remedy an abuse of process only in the clearest of cases. She described those cases as being ""conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it would warrant judicial intervention."" Further on she states what is required for situation to be deemed the ""clearest of cases"". To conclude that the situation 'is tainted to such degree' and that it amounts to one of the 'clearest of cases', as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interests of justice .... Where there is conspicuous evidence of improper motives of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and decent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.' In R. v. Sherratt (1991), 1991 CanLII 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.) L'Heureux-Dube stated at page 204: The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and respensentativeness, jury would be unable to perform properly many of the functions that make its existence desireable in the first place."" The Supreme Court of Canada in R. v. Valente (1985), 1985 CanLII 25 (SCC), 23 C.C.C. (3d) 193 has stated that the test for independence and impartiality is the reasonable apprehension of bias. Has the pre-trial publicity generated in this case caused reasonable apprehension of bias? It may well be that at this stage there is an apprehension of bias but the question is whether that apprehension is reasonable. As was stated by the Ontario Court of Appeal in R. v. Hubbert (1975) 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279 at page 289: ""...There is an initial presumption that juror not disqualified by the statute under which he is selected, will perform his duties in accordance with his oath."" The Supreme Court of Canada in R. v. Sherratt referring with approval to the Ontario Court of Appeal decision in R, v. Hubbert stated at page 206: ""Impartiality is state of mind to be tested at the time of the swearing-in of each juror."" As of this date it is impossible to say whether an impartial jury can be selected because no potential jurors have been questioned on the effect of pre-trial publicity on their impartiality. In R. v. Vermette 1988 CanLII 87 (SCC), [1988] S.C.R. 985 case which involved exceptional pre-trial media publicity given to the statements of very popular Quebec Premier made in the National Assembly about matter then before the courts and about the credibility of witnesses the Supreme Court of Canada determined that Stay of Proceedings in that case was premature. At page 992 LaForest, J. stated: "".. It is only at the stage when the jury is to be selected that it will be possible to determine whether the respondent can be tried by an impartial jury... In deciding the question, one must not, in my view, rely on speculation... In an extreme case (and the present certainly qualifies), such publicity should lead to challenge for cause at trial, but am far from thinking that it must necessarily be assumed that person subjected to such publicity will necessarily be biased."" am satisfied that in the present case the pre-trial publicity, filled as it is with prejudicial and inflammatory information has lead to an apprehension of bias. However am also of the opinion that until it is known to what extent this information has affected ­potential jurors, the issue remains speculative. Has that publicity so irreparably prejudiced potential jurors or so impaired the presumption of innocence that it is impossible to say that fair trial can be held? As of this writing there is no evidence that this has happened. It will only be at the stage of jury selection that this can be determined. Simply because there has been adverse publicity does not necessarily mean that fair trial cannot be held. As stated by Cory, J. in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) (1995), 1995 CanLII 86 (SCC), 98 C. C. C. (3d) 20 at p. 71: "".. The alleged partiality of jurors can only be measured in the context of the highly developed system of safeguards which have evolved in order to prevent just such problem. Only when these safeguards are inadequate to guarantee impartiality will s.11(d) be breached."" In Phillips Cory, J. makes the valid point that impartiality cannot be equated with ignorance of all the facts of the case. He makes the following observation at p. 71. ""...A definition of an impartial juror today must take into account not only all our present methods of communication and news reporting techniques, but also the heightened protection of individual rights which has existed in this country since the introduction of the Charter in 1982. It comes down to this: in order to hold fair trial it must be possible to find jurors who, although familiar with the case, are able to discard any previously formed opinions and to embark upon their duties armed with both an assumption that the accused is innocent until proven otherwise, and willingness to determine liability based solely on the evidence presented at trial."" At p. 72 Justice Cory catalogues the safeguards he previously referred to as: The solemnity of the juror's oath, the existence of procedures such as change of venue and challenge for cause, and the careful attention which jurors pay to the instructions of judge all help to ensure that jurors will carry out their duties impartially. In rare cases, sufficient proof that these safeguards are not likely to prevent juror bias may warrant some form of relief being granted under s.24(1) of the Charter."" In my opinion to this list can also be added the safeguard jury unanimity and peremptory challenges. Justice Cory notes that relief will not be granted on speculation alone and that the proper time for assessing whether the accused's s.11(d) rights have been violated is at the time of jury selection. As stated in R. v. O'Connor at p. 41 ""A Stay of proceedings is last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted."" Although v. O'Connor dealt with violation of the accused's s.7 Charter rights due to non disclosure, the principle enunciated is equally applicable to situation involving an accused's 11 (d) and (f) rights. In my opinion the Applicant in the present case has not established on balance of probabilities that his right to fair trial by an impartial jury has been violated. What the applicant has established is that challenges for cause are desirable and I will permit counsel to challenge prospective jurors for cause should counsel so wish providing that a list of proposed questions is presented to the Court for it perusal by 930 a.m. Thursday October 1 st, 1998. It may be that such an exercise will lead to the discovery that noimpartial jurors can be found, but until this exercise is attempted we are left with mere speculation as to the effect of the pre-trial publicity. Accordingly the application for a stay of proceedings is dismissed.","The accused was charged with first degree murder. Prior to jury selection, he applied for a stay of proceedings, alleging that there had been a breach of his right to a fair trial due to negative pre-trial publicity. Dismissing the application, that the application was premature. However, the accused would be permitted to challenge potential jurors for cause due to the highly prejudicial and inflammatory pre-trial media reports.",7_1998canlii2924.txt
232,"nan 2001 SKQB 473 Q.B.A. A.D. 2001 No. 003 J.C.B. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: LAWRENCE MATCHEE and HER MAJESTY THE QUEEN RESPONDENT Michael W. Owens for the appellant William R. Campbell for the respondent JUDGMENT October 25, 2001 BALL J. [1] The appellant was convicted on August 8, 2000, of dangerous driving contrary to s. 249(1)(a) of the Criminal Code and sentenced on January 2, 2001, to a fine of $1,200 plus a surcharge of $180 and an 18-month driving prohibition. He appeals his conviction and sentence. Conviction Appeal [2] The grounds of appeal with respect to the conviction are as follows: 1. The evidence does not support guilty verdict for dangerous driving. 2. That the learned Trial Judge misinterpreted the law with respect to the required elements that must be proven when considering charge of ""dangerous driving."" 3. That the learned Trial Judge erred when he applied the test of R. v. Stellato to the ""marked departure"" consideration that the Supreme Court of Canada in R. v. Hundal [1993], C.S.R. 867, held to be the prevailing test when determining whether driving can be termed ""dangerous"" according to the Criminal Code of Canada. The Applicable Law [3] S. 249(1) of the Criminal Code provides: Everyone commits an offence who operates (a) motor vehicle in manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; [4] The proper standard to be applied to charge under s. 249(1) was established by the Supreme Court of Canada in R. v. Hundal (1993), 1993 CanLII 120 (SCC), 79 C.C.C. (3RD) 97, at page 108: It follows then that trier of fact may convict if satisfied beyond reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in manner that was ""dangerous to the public, having regard to all the circumstances..."" In making the assessment, the trier of fact should be satisfied that conduct amounted to marked departure from the standard of care that reasonable person would observe in the accused's situation. [5] There must be such marked departure from the standard of care of reasonable person that it can be said beyond reasonable doubt that the driving was dangerous. (See R. v. Rajic (1993), 1993 CanLII 3423 (ON CA), O.J. 819 (Ont. C.A.); R. v. Bartlett (1998), 1998 CanLII 2998 (ON CA), 15 C.R. (5TH) 35 (Ont. C.A.); v. Fiest (1991), 1991 CanLII 7648 (SK QB), 92 Sask. R. 318; and R. v. Holland (N.G.) (1992), 1992 CanLII 8322 (SK CA), 105 Sask R. 122 (C.A.)) [6] Upon convicting the appellant, the learned trial judge made the following comments: In all of these circumstances, must ask myself whether applying the test in Stellato, Mr. Matchee's driving was departure from the norm, and have to say, at the end of the day, think it was. The law doesn't require any longer than Mr. Matchee's departure be marked departure, but in my view, pursuing the vehicle as he did, in the circumstances he did, close enough that at whatever speed he was driving, he managed to run into the back of this other vehicle, amounts to more than mere lapse in attention such as would be required for finding of driving without due care and attention under the provincial legislation, and shades over the line, in my view, albeit perhaps not far over the line but far enough that one ought to, and do, properly characterize it as dangerous driving, and in those circumstances find him guilty as charged. Though to be clear, as have said, it is on his version of events, and not the full Crown description with multiple rammings and so forth. [7] With respect, it was incorrect for the learned trial judge to say that the standard to be applied to charge of dangerous driving is whether the driving ""was departure from the norm,"" and that ""the law doesn't require any longer that Mr. Matchee's departure be marked departure."" That is not the correct standard to be applied to charge of dangerous driving under s. 249(1)(a) of the Code. [8] R. v. Stellato (1994), 1994 CanLII 94 (SCC), 31 C.R. (4TH) 60, 90 C.C.C. (3 RD) 160 (S.C.C.), affirming 1993 CanLII 3375 (ON CA), 78 C.C.C. (3RD) 380 (Ont. C.A.), dealt with the offence of impaired operation of motor vehicle. Its conclusion that the Crown need only establish proof of any degree of impairment and need not establish a marked departure from normal behaviour did not apply to a charge under s. 249 of the Code. [9] Simple judgmental errors in routine driving do not constitute conduct amounting to a ""marked departure"" from the standard of care required. Mere negligence is not sufficient, nor is driving without due care and attention. The application by the learned trial judge of the Stellato principle to a charge of dangerous driving under s. 249(1) of the Code was an error in law. The Evidence [10] Where an appeal is taken from summary conviction, the Court may dismiss the appeal if, notwithstanding wrong decision by the trial court on question of law, no substantial wrong or miscarriage of justice has occurred. (See s. 822(1) and s. 686(1)(b)(iii) of the Code) Thus, it remains to be determined whether the evidence accepted by the learned trial judge supported his decision to convict the appellant. [11] The learned trial judge made number of findings of fact. In doing so, he gave the benefit of any reasonable doubt to the accused. At the same time, he accepted the evidence of the two Crown witnesses in respect of factual matters not dealt with by the accused in his evidence. At page 85 of the transcript the learned trial judge stated: When listened to the first Crown witness, Timothy Iron, was impressed. His evidence was given in straight-forward fashion. was left with an impression that he was not embellishing, making things up to fill in gaps in his memory or anything like that. Certainly, the evidence is clear that he, and for that matter the other witnesses, were none of them drinking on this occasion, and so no one's ability to experience the events would be impaired by alcohol. While it's true that Timothy Iron was confronted with discrepancies or apparent discrepancies between what he said to the police in his written statement and what he said today in court, the re-examination conducted by Crown counsel satisfied me that part of the reason for that lies, first of all, in the fact that Mr. Iron had no resort to his written statement before testifying here today, and secondly, that many of the items were that were omitted in his statement were things that he wasn't asked about by the police, so what appeared on the face of it should be discrepancy often resolved itself into something less. And so, as say, found Timothy Iron to be believable witness, and would say that his credit, his believability at the conclusion of his evidence was as strong as it was when he began. Ryan Stewart Iron falls roughly into the same category, in my view. He was little less careful in the testimony that he gave, but that was not marked, and it was certainly not enough to suggest to me that he was not doing his best to tell the truth. The accused's evidence, while it troubles me in some respects, in particular his reference to the convenient damage which he says he discovered upon coming out of the dance at 2:00 o'clock in the morning, to the rear of his vehicle, providing as it does an innocent explanation as to how the vehicle became thus damaged, as opposed to it becoming damaged because he did what the Crown witnesses said he did, while am troubled in several respects by the accused's evidence, and while this case, applying the tests am to apply, is very, very close to the line, cannot say, in all conscience, that am able to completely reject what the evidence-what-the evidence that the accused has given. It might reasonably be true, and in that circumstance he is entitled to the benefit of that, and to be-have his guilt or innocence determined on his version of events. Well, what does that version consist of around the issue of dangerous driving? accept and agree with the characterization of Mr. Matchee's conduct, as Crown counsel put it in closing submissions moment ago. believe that Mr. Matchee was angry when he came out of the arcade and viewed missing tapes, and was of the opinion they had been taken by the occupants of vehicle which he saw leaving the parking lot. believe he was determined to try and recover the property and to confront those he believed had taken it. To that end, am satisfied that, initially through his agent, Willie, and thereafter himself, he gave chase. In the course of that chase collision occurred between the two vehicles, which Mr. Matchee described as ""tap"" of the back bumper of the car he was pursuing. He said that occurred at moment in the pursuit-my word, not his- when he thought the car was slowing down, thought it was going to stop, and while he didn't say this, took the ""tap"" to be miscalculation on his part about the speed the car and the truck were going, that it was inadvertent. In Mr. Matchee's evidence, there was no description as to the length of travel over which this pursuit occurred, nor is there any evidence about the speed that was attained, other than the reference he made early in his evidence to the fact that his car had sped out of the parking lot at high rate of speed. There's nothing in his evidence to suggest how fast he went to pursue them, nor over what route, nor the speed that he was going, nor the time of the chase. On the other hand, Mr. Matchee was not asked in particular about other users of the road, but in accepting that his version of events might reasonably be true, it is not necessary for me, and in fact in my view not appropriate for me, to reject the evidence of the Crown witnesses about the other users of the road, most of that being pedestrian traffic. Indeed, Mr. Matchee himself, asked whether he had ever managed during this pursuit to draw abreast of the car, explained that he could not do that because the roads were crowded because there was hockey game on and there were other-too many other vehicles along the roadside, and so forth. [12] As noted by the learned trial judge, the evidence given by the accused did not address how fast he was going (when asked, he answered that the speedometer in his truck was not working ), nor over what route, nor the time of the chase. However, there was ample evidence on those issues from the two Crown witnesses. [13] The driving which led to the charge occurred at night on October 23, 1999. The accused gave chase to an automobile driven by the first Crown witness, Timothy Iron. The vehicles travelled at high speed (the accused acknowledged that they were travelling ""fast"") both on and off two-lane gravel road. number of pedestrians, including children, were present on the road. During the chase, the two vehicles collided with enough force to dent the rear bumper on the Iron vehicle. [14] The accused did not deny the Crown witnesses' description of the force of the impact or the presence of others. During cross-examination he gave the following answers at page 81 of the transcript: You heard Timothy Iron testify that when he was hit from behind, it was hard enough that his head kind of snapped and his hat fell off. Do you think you hit the car ahead of you that hard? If did, I'm really sorry. never meant to. never meant to maim or hurt anybody, just wanted my property. Did you ever get beside the car with your truck? No. You're sure of that? It's too narrow. They had hockey game going on. And what did that have to do with you getting beside the They park right around the whole arena, just enough for person to drive around to make it out if you were not going to if you were leaving the game. [15] The question is whether the evidence found by the trial judge established both the mens rea and actus reus of the offence beyond a reasonable doubt. In my view, his findings of fact established that the appellant's driving conduct did amount to a marked departure from the standard of care a reasonable person would exercise in those particular circumstances. [16] It was not necessary for the Crown to prove that the accused intended to collide with the automobile driven by Timothy Iron in order to prove the offence of dangerous driving. Whether or not collision occurred, and whether or not the accused intended to collide with the other motor vehicle, were only aspects of the totality of the accused's conduct. The test is whether a reasonably prudent driver in the circumstances ought to have been aware of the risk and of the danger involved in his driving conduct. [17] The accused engaged in a planned and deliberate course of conduct when he gave chase to the automobile driven by Mr. Iron. His course of conduct continued over a significant distance at a high rate of speed at night with children and other pedestrians in the vicinity. It was not necessary for the Crown to establish that the collision with the Iron vehicle caused significant damage or, for that matter, that a collision occurred at all. Thus, the trial judge's acceptance of the accused's assertion that the collision was inadvertent did not mean that the Crown had failed to prove the necessary mens rea. [18] In conclusion, I find that by applying the wrong standard the learned trial judge committed an error of law, but that no miscarriage of justice occurred. Accordingly, the appeal against conviction is dismissed. When the correct standard as enunciated in R. v. Hundal, supra, is applied to the evidence found by the trial judge, the conviction was appropriate Sentence Appeal [19] The appellant appeals the sentence imposed by the trial judge on the basis that it did not take into account the mitigating circumstances, case law or sentencing principles. The appellant does not question the amount of the fine and surcharge imposed by the learned trial judge. However, he questions whether the 18-month prohibition from driving was excessive in the circumstances. [20] The appellant is employed as a truck driver and therefore he relies upon his operator's licence to earn a living. Counsel for the appellant points out that the accused gave chase to the Timothy Iron motor vehicle because he believed its occupants had stolen some tapes from the accused's vehicle. Although the appellant was convicted in June of 1997 for refusal to provide a breath sample under s. 254(5) of the Code and a conviction for .08 under s. 253(b) of the Code in 1989, counsel notes that alcohol was not a factor in this case. [21] Counsel points out that the accused's conduct was at the low end of the continuum of conduct constituting dangerous driving such that it was described by the trial judge as being just ""shades over the line."" He notes that there was little damage to either motor vehicle and that no personal injuries occurred. [22] Counsel for the accused suggests that the learned trial judge may have been at some disadvantage because he sentenced the accused approximately five months after the trial without having benefit of his trial notes, fact confirmed at page 91 of the transcript. Nevertheless, he notes that at page 99 of the transcript the learned trial judge stated as follows: He says that he has learned from the experience, and believe him when he says that. He strikes me today as thoughtful individual, one with relatively good life. He is earning an income for his family, he is steadily employed. He obviously enjoys good reputation in the community else the chief of his First Nation would not be writing letter of support for him. [23] The prohibition from driving for 18 months imposed by the Court is consistent with the prohibition generally imposed where conduct constituting dangerous driving has resulted in bodily injury or death or, at the very least, serious property damage. Although the accused was convicted for refusal to provide a breath sample two years prior to his conviction for dangerous driving, alcohol was not a factor in this matter. Crown counsel acknowledges that in circumstances of the kind before the Court, one would anticipate driving prohibition of less than the 18 months imposed. [24] In my opinion, a prohibition of 18 months was excessive. In the circumstances a prohibition of nine months' duration is more appropriate and I so order. The fine of $1,200 and surcharge of $180 imposed by the trial judge is confirmed.","The appellant appealed his conviction for dangerous driving (Criminal Code s.249(1)(a)) and sentence of a $1,200 fine, $180 surcharge, and 18 month driving prohibition. In issue was whether the evidence found by the trial judge established both the mens rea and actus reus beyond a reasonable doubt. The sentence appeal was brought on the ground it did not take into account mitigating circumstances, case law or sentencing principles. HELD: The appeal against conviction was dismissed. The driving prohibition was reduced to 9 months. The fine and surcharge were confirmed. 1)By applying the wrong standard, the trial judge committed an error of law, but no miscarriage of justice occurred. When the correct standard, as enunciated in Hundal, is applied to the evidence as found by the trial judge, the conviction was appropriate. 2)The application of the Stellato principle to a charge of dangerous driving under s.249(1) was an error in law. The conclusion that the Crown need only establish proof of any degree of impairment and not a marked departure from normal behaviour does not apply to a charge under s.249. Simple judgmental errors in routine driving do not constitute conduct amounting to a marked departure from the standard of care required. Mere negligence or driving without due care and attention are not sufficient. 3)The accused's evidence did not address how fast he was going (he stated his speedometer was not working) nor over what route or the time of the chase. There was ample evidence on those issues from the two Crown witnesses. 4)The findings of fact established the appellant's driving conduct did amount to a marked departure from the standard of care a reasonable person would exercise in those circumstances. The test is whether a reasonably prudent driver in the circumstances ought to have been aware of the risk and of the danger involved in his driving conduct. The accused engaged in a planned and deliberate course of conduct when he gave chase and continued over a significant distance at a high speed at night with children and other pedestrians in the vicinity. It was not necessary for the Crown to establish the collision caused significant damage or that a collision occurred at all. The acceptance of the accused's assertion that the collision was inadvertent did not mean the Crown failed to prove the necessary mens rea. 5)An 18 month prohibition was excessive. The conduct was at the low end of the continuum. He was employed as a truck driver and relied on his operator's licence to earn a living. He chased the other vehicle because he believed its occupants stole tapes from his vehicle. Although he was convicted for refusal to provide breath samples 2 years ago, alcohol was not a factor here.",e_2001skqb473.txt
233,"Q.B. A.D. 1992 No. 3039 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN MIKOLAYCZYK, AS LITIGATION GUARDIAN OF JESSEE MIKOLAYCZYK, MINOR, SHERRY MIKOLAYCZYK and JOHN MIKOLAYCZYK RESPONDENTS (PLAINTIFFS) and CHRISTOPHER PAUL REID and CANADA TRUCK LEASE LTD. APPLICANTS (DEFENDANTS) G. A. Thompson for the applicants (defendants) J. A. Morrison for the respondents (plaintiffs) JUDGMENT BARCLAY J. March 28, 1995 This is an application by Christopher Paul Reid andCanada Truck Lease Ltd. (the ""defendants"") for an orderpursuant to the Court\'s inherent jurisdiction severing theissues of liability and damages. The grounds that were argued in connection with the application are as follows: (a) determination of the issue of liability in favour of the defendants will render determination of the issue of damages unnecessary; (b) given the quantum of damages claimed by the plaintiffs and the volume of evidence necessary to prove this aspect of the claim, the prior determination of the issue of liability may result in very significant reduction in trial time and costs; (c) the evidence to be heard with respect to each issue is easily segregated, and prior determination of the issue of liability will not require repetition of the evidence on that point; (d) the plaintiffs' position as to the quantum of damages claimed will not be prejudiced by prior determination of the point of liability; (e) severance of the issues will not result in any significant delay in the overall management of the action. FACTS This action arises out of tragic motor vehicle accident which occurred in the City of Saskatoon, on September 20, 1991. minor, Jessee Mikolayczyk (""Jessee""), who was riding his bicycle, collided with delivery truck operated by the defendant, Christopher Paul Reid, and owned by the corporate defendant, Canada Truck Lease Ltd. Jessee was seriously injured and such injuries include brain damage, fractured pelvis and laceration of the groin area with associated blood loss, internal injuries including injury to his bladder and bowel, collapsed lung, injury to the left eye, hearing loss and injury to the facial nerves. At the time of the accident he was years of age. Liability is in issue. The plaintiffs have served demand that the trial of the issues be heard by jury. Section of The Jury Act, 1981, S.S. 1980-81, as am. S.S. 1990-91, c. C-81, ss. 68(1) and (2) provides statutory right to jury trial in cases such as the one before the Court. This section reads: 1(1) In an action for libel, slander, malicious arrest, malicious prosecution or false imprisonment and in an action where the amount claimed exceeds $10,000, any party to the action may demand jury in accordance with The Queen's Bench (2) The party demanding jury: (a) shall deposit with the local registrar in advance of the trial any sum that the local registrar considers sufficient for the fees and expenses of the jury for the estimated length of the trial; and (b) subject to subsection (3), is responsible for the full cost of the jury and is not entitled to recover any part of the cost of the jury from the opposing party in the event of success at trial. (3) Where party is successful in an action: (a) for libel, slander, malicious arrest, malicious prosecution or false imprisonment; or (b) in respect of personal injury or death where the amount claimed exceeds $10,000; the judge presiding at the trial may make any order as between the parties regarding the cost of the jury that he considers appropriate. previous motion was made to sever and Goldenberg J. dismissed the application. He did however, grant leave to the defendants to reapply. The terms of Goldenberg J.'s order are as follows: IT IS ORDERED THAT: (a)on the undertaking of Mr. J. A. Morrison, counsel on behalf of the Respondents (Plaintiffs), that he has briefed medical practitioners and will be calling medical experts to testify as to the nature of the injuries which evidence is beyond the medical evidence which has been disclosed to date and which evidence the accident reconstruction expert retained by the Respondents (Plaintiffs) require, the application to sever the issue of liability from the issue of quantification of damages is dismissed; (b)as condition of the dismissal of the application the Respondents (Plaintiffs) shall serve and file Notice of Expert Witness disclosing the earlier referenced medical evidence referenced by their counsel in compliance with the Rules of Court at least 60 days prior to trial; (c)the Applicants (Defendants) are given leave to thereafter apply anew to sever the trial of the issues of liability and quantification of damages claimed; (d)the costs of the application are costs in the cause. THE LAW The controlling authority in Saskatchewan on the issue of severance is Central Canada Potash Co. Limited and Attorney General of Canada v. Attorney General of Saskatchewan, Minister of Mineral Resources of Saskatchewan and Government of Saskatchewan (No. 1), 1974 CanLII 976 (SK CA), [1974] C.A.). Culliton C.J. canvassed the circumstances under which an application for severance of issues will be granted. He referred to the case of Emma Silver Mining Company v. Grant (1879), 11 Ch.D. 918, in which Jessel M.R. considered this point and court's jurisdiction with respect thereto. Jessel M. R. noted, at p. 926, that: The discretion is general. Of course it is judicial discretion, and there must be sufficient reason for exercising it. He went on, at p. 927, to enunciate the rule when an application to sever is made by defendant: In case of this kind my opinion is that the Judge must have some evidence which will make it at least probable that the issue will put an end to the action. The Plaintiff is not to be harassed at the instance of the Defendant by series of trials, each trial taking issue on every link of the Plaintiff's case. That is not the meaning of the rule as understand it, but it may properly be applied in such case as that have stated, where the Judge has serious reason to believe that the trial of the issue will put an end to the action. He also noted that the situation is different than when the application is made by plaintiff, and at p. 928, commented on the difference thusly: The Defendant has of course right to shape his own case, and to say to the Plaintiff, ""You must prove every part of your case; if can put my finger on one part of your case and shew that there is no foundation for it whatever, it is quite wrong to subject me to the whole expense of protracted investigation, and especially when you, the Plaintiff, cannot pay the costs of it"". From his discussion of Emma Silver Mining Company v. Grant Culliton C.J., in Central Canada Potash Co. Limited, went on to enunciate what the Saskatchewan Court of Appeal considered to be the principles to be followed in determining an application such as the one at bar. He stated, at pp. 377 and 378: [T]hat separate trials should be granted only in exceptional cases, and in cases where the issues to be tried separately are simple, and that there should be some evidence which makes it at least probable that the trial of the separate issue will put an end to the action. think the principle is accepted by all courts that piecemeal trial of an action must be avoided. It appears as well that courts are reluctant to have separate trial of an issue if, in the disposition of that issue, all or most of the evidence will be called that would have been called to dispose of all the issues. In my opinion an application for severance of the issues should only be granted for the most compelling reasons and in cases in which it is probable that the trial of one issue will put an end to the action. In this case accept the submission of the plaintiffs that there is relationship between liability and damages and that both of these issues will depend extensively upon the same testimony. Counsel for the plaintiffs, in his written brief, succinctly set out the plaintiffs' position on severance in this case. He stated in part as follows: The determination of liability in this case will depend extensively upon the accident reconstruction of experts. In order to determine liability, to which the Plaintiff himself cannot speak, it will entail assessing the conflicting opinions of the accident reconstruction experts as to how the accident itself occurred. This will require, an examination of the injuries and how they where [sic] caused by the accident reconstruction expert. It is therefore necessary in order to determine liability to also determine the cause and effect of the impact of the Plaintiff and the Defendants' vehicle and that this is consistent with the nature of the injuries sustained. This will necessitate themedical testimony required to establish the quantum of damageswhich will be required to establish one of the factualunderpinning of the evidence of the accident reconstructionexpert that will be called by the Plaintiff. The Defendants are therefore grossly underestimating the substance and time that will be required to establish liability in this litigation. Such evidence would necessarily be replicated ina second trial with possibly an incongruous result. agree with this argument. In this case, the determination of liability will involve both an examination of the injuries and the contention between experts as to their origin and their significance in formulating an opinion as to how the accident happened. Therefore, severing the issues will cause repetition of this costly expert testimony and if not properly considered would be prejudicial to the plaintiffs. An important additional factor to consider is that the plaintiffs have served demand that the trial of the issues be heard by jury. If the issues of liability andquantum are severed, it is at least arguable that theplaintiffs may well be disentitled from their right to have ajury decide what is the appropriate quantum of damages. In Beddow v. Megyesi (1992), 1992 CanLII 735 (BC SC), C.P.C. (3d) 12 (B.C.S.C.), Thackray J. held no jury, whether discharged or not, can be reassembled some time later to carry on with the second part of the trial whence it followed that where the issue of liability on severed trial was tried by the court with jury, the only proper body left to hear the balance of the case is the judge who presided in the first part of the trial. On that issue Thackray J. stated at p. 19: If the liability portion of trial is by judge and jury, that jury, after discharge, cannot be reconstituted. In Lew v. Lee (1925), 1925 CanLII 320 (BC CA), 37 B.C.R. 81, [1926] D.L.R. 678 (C.A.), the Chief Justice noted that counsel could find no case, ""nor can he cite one from all the history of our jurisprudence,"" where jury that had been discharged had been recalled to assess damages. The court held that such jury could not be recalled. I would go further and say that no jury, whetherdischarged or not, can be reassembled some time later to carryon with the second part of the trial. The court in Beddow also emphasized that credibility considerations, even though made on the issue of liability, are part of the entire trial. Evidence such as impact and severity of impact continue to be relevant evidence in the quantum portion of the trial. This was commented on by Trainor J. in Bernhardt et al. v. Vernon Board of School Trustees et al. (1979-80), 11 C.P.C. 82 (B.C.S.C. At p. 84 Trainor J. stated: Both the assessment of credibility and an appreciation of the nature and extent of injuries and consequent damage can best be achieved by trying the issues together. am also comforted by the comments of Thackray J. in Beddow in which he stated at p. 171: In Bernhardt, Mr. Justice Trainor referred to the remarks of Lord Denning in Coenen [v. Payne [1974] W.L.R. 984, [1974] All E.R. 1109 (C.A.)] that the normal practice is for liability and damages to be tried together, ""but the courts should be ready to order separate trials wherever it is just and convenient to do so."" However, Trainor J. preferred the approach of Stephenson L.J. in Coenen who stated [p. 1114]: In most personal injury cases the issues of liability and damages, though clearly separate, are rightly tried together. That is so, even where the issue of damages, perhaps because of complicated medical evidence, takes longer to try than the issue of liability. In personal injuries case the courts will not depart from the normal practice except for good reason. have examined the medical evidence which was filed by the solicitors for the plaintiffs as result of the order of Goldenberg J. and this evidence, in my view, is relevant both as to liability and quantum. In fact, the plaintiffs' accident reconstruction expert, Clifford Anderson, states in his affidavit filed herein, that these opinions are consistent with one of the factual considerations he used in formulating his opinion in the accident reconstruction report, namely that the nature and extent of the injuries sustained by Jessee, were result of crushing type force. There should be compelling reasons before a trialshould be severed. This has not been established in thiscase. Therefore, for all the above reasons, the application to sever the action is dismissed with costs.","The Defendants applied to sever the issues of liability and damages for purposes of the trial of this matter. The trial was to be held before a jury.HELD: 1)The Court has a general discretion as to severance of issues which must be exercised judicially. 2)Severance should only be ordered when the judge has a serious reason to believe that the trial of the issue proposed to be severed will put an end to the action. 3)The Court accepted the Plaintiff's submission that expert medical evidence would be necessary to establish the cause of the accident since the Plaintiff had suffered brain damage and would be unable to testify. This medical evidence would have to be repeated to establish the Plaintiff's damages if the issues were severed and liability was found. 4)The severance of the issues would deny the Plaintiff the right to have the jury determine his damages. A jury cannot be disassembled and then recalled to conclude the trial of the remaining issues. 5)The Court was of the view that there should be compelling reasons before issues should be severed for trial, but that no compelling reason had been established in this case.",7_1995canlii5894.txt
234,"J. Dated: 20021108 2002 SKCA 122 Docket: 500 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Bayda C.J.S., Sherstobitoff Jackson JJ.A. LAWRENCE WILLIAM DIDUCK and HER MAJESTY THE QUEEN COUNSEL: Lawrence W. Diduck on his own behalf Lane Wiegers for the Crown DISPOSITION: On Appeal From: Q.B. Crim. 1886, J.C. of Yorkton Appeal Heard: November 5, 2002 Appeal Dismissed: November 5, 2002 (orally) Written Reasons: November 8, 2001 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Chief Justice Bayda The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. (orally) [1] Mr. Diduck, the procedure in this Court is for the judges to prepare for the hearing of cases by reading all of the record of proceedings in advance of the hearing of the appeal. In this case, all of the members of the Court read your notice of appeal, the relevant portions of the transcript of the trial proceedings, and the Crown factum prior to hearing your arguments today. We are all fully familiar with what happened. [2] We are unanimous in our opinion that your appeal against both conviction and sentence must be dismissed. [3] Your first ground of appeal was that transcripts of court proceedings in previous cases were not available to you, and that the Court would not subpoena certain witnesses whom you wished to call to give evidence on your behalf. We all agree that Mr. Justice Zarzeczny made no error in ruling that all of the evidence to be derived from these sources was irrelevant to the charges against you, being too remote in time, being unrelated to the charges which were the subject matter of the trial, and being unnecessary to establish your state of mind which was adequately established by your own evidence and your summation to the jury. [4] Your other ground of appeal was that your state of mind at the time you made the telephone calls which were the subject of the charges somehow exonerated you from responsibility for them. This defence was put to the jury through your own evidence, through your summation to the jury, and by the following portion of the judge’s summation to the jury: Finally, the accused, Lawrence Diduck, gave evidence on his own behalf at this trial. He testified that he had had number of previous encounters and dealings with the RCMP which caused him to be fearful of them. He alleges he was seriously assaulted and injured during one of those encounters at his home. He testified that he had filed number of formal complaints against the members of the RCMP and that these were being investigated. His evidence was that he was frustrated with and fearful of the RCMP and with the legal proceedings against him generally involving the RCMP and others and it was in these circumstances that when he received the phone message from Constable Rusty Spragg in January of 2001, he made the phone calls and left the two messages he did at the Esterhazy and Langenburg RCMP offices out of- acting out of fear, anger and frustration. In these circumstances for these reasons, he testifies his purpose and intent in the messages overall was to be left alone; it was not his purpose and intention to be threatening. [Transcript pp. 190-91] Your defence, such as it was, was fully and fairly put to the jury which chose not to accept it. Since your defence was fully and fairly put, it cannot be said that you did not have fair trial. [5] As to the appeal against sentence, since the sentence was limited to time already served by you while awaiting trial, it is now moot: that is, there is no issue to be decided. Were we to rule upon its fitness, we would have no difficulty in finding it fit. [6] The appeals against both conviction and sentence are dismissed.",Appeals of sentence and conviction on the grounds the transcripts of court proceedings were not available; the court would not subpoena certain witnesses on his behalf; his state of mind when he made the telephone calls exonerated him. HELD: The appeals against conviction and sentence were dismissed. The judge made no error in ruling that all of the evidence from the prospective witnesses and transcripts was irrelevant as being unrelated to the charges and too remote in time. The appellant's state of mind was adequately established by his own evidence and the summation to the jury. The defence was fully and fairly put to the jury which chose not to accept it. The sentence appeal was moot since it was limited to time served while awaiting trial. The Court would have found the sentence to be fit in any event.,c_2002skca122.txt
235,"J. Q.B. A.D. 1991 No. 4813 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MADELON SMID and ROBERT ROOKE and FRANK BIRD DEFENDANTS Reynold A. Robertson and Tracy McManus for the plaintiff Jennifer Bailey for the defendants JUDGMENT KLEBUC J. February 7, 1995 Ms. Smid seeks judgment for damages she suffered as consequence of Mr. Rooke's negligent operation of the motor vehicle owned by Mr. Bird. All of the elements of Ms. Smid's claim have been resolved with the exception as to whether Ms. Smid's injuries were caused by Mr. Rooke's negligence. Theparties propose to resolve the issue of causation by havingthis Court answer the following question:Did the motor vehicle accident cause or contribute to any ofthe plaintiff's injuries or damage? BACKGROUND FACTS Ms. Smid is 46 years of age and her principal occupations are that of writer and home maker. Her claim arises out of motor vehicle collision that occurred on public thoroughfare within the City of Saskatoon on February 4, 1991 (hereinafter called the ""collision""). On this date Ms. Smid was driving 1983 Cierra Cutlass Oldsmobile which she had stopped in line of traffic near controlled intersection when 1986 Hyundai Pony motor vehicle owned by Mr. Bird and operated by Mr. Rooke struck the rear bumper of the Cierra. The impact of the collision jarred Ms. Smid and her passenger, and caused loose objects sitting on the seats of the Cierra to fall to the floor, but caused no visible physical damage to either vehicle. Ms. Smid suffers from chronic condition which makes it uncomfortable for her to distribute her upper body weight equally between her left and right buttock while seated in motor vehicle. To avoid discomfort, she turns her body slightly to the left in order to place disproportionate amount of her body weight on her left thigh and left buttock. At the time of the collision she was sitting in such position in the driver's seat of her vehicle and had both hands on the steering wheel. Within hours following the collision, Ms. Smid experienced back pain for which she sought immediate medical treatment. She continued to experience pain and discomfort for protracted period and consulted numerous medical practitioners for treatment of her problems. will discuss the nature of medical consultations and the treatments prescribed only to the extent they are relevant to the issue of causation. The defendants submit the pain and discomfort experienced by Ms. Smid relate to pre-existing injuries and to two mishaps that pre-date the collision. The first of these events occurred in mid-January, 1991 while Ms. Smid was visiting third party in Edmonton, Alberta. On this occasion she ""pulled something in her right hip"" while moving large wardrobe box (hereinafter called the ""box event""). On this occasion she experienced considerable pain in her right hip and lower back but she refrained from seeking medical advice until she returned to Saskatoon on January 18, 1991. On this date she arranged for an appointment to see Dr. Alana Danilkewich, her family physician, on January 28, 1991, such date being the earliest date on which Dr. Danilkewich was available. Shortly before January 28, Ms. Smid slipped and fell to the ground while playing with young children (hereinafter called the ""fall event""). While Ms. Smid appeared not to have clear recollection of such event, Dr. Danilkewich's notes covering her examination of Ms. Smid on January 28 confirm that Ms. Smid complained of back pain and pain in her right buttock as result of the fall event and that Ms. Smid could not travel in motor vehicle as result. During the examination, Dr. Danilkewich conducted series of neurological examinations including flexing test, sensation test, strength test, range of motion test, gate test and straight leg test and observed straightening of the back, some tenderness over the right sacroiliac joint, and pain primarily in the right sacroiliac joint. She diagnosed the condition to be pain in the right sacroiliac joint with evidence of muscle spasm in lower back and then referred Ms. Smid to Dr. Michael Sax for chiropractic treatment. In his medical report dated October 4, 1991 (exhibit P-2a), Dr. Sax confirmed that he attended on Ms. Smid and diagnosed her condition as ""lateral sacroiliac joint dysfunction"" which he treated with three sessions of spinal manipulation. In his report he comments that the manipulation settled much of her lower back pain. Ms. Smid confirmed that shortly after the treatments her pain and discomfort quickly subsided to the point where she could undertake normal activities. Following the collision, Ms. Smid testified she experienced pain in her lower back immediately after the accident and because Dr. Danilkewich was not available, she immediately consulted Dr. Fanner who arranged for her spinal column to be x-rayed. In his medical report dated September 27, 1991 (exhibit P-2b), Dr. Fanner confirmed that the x-rays taken showed no evidence of fracture and that in the absence of x-ray findings, he was of the view the injuries sustained were those of ""muscular and ligamental strain, undoubtedly more severe in Ms. Smid's case because of her pre-existing sacroiliac problems"". The next day, being February 15, 1991, Ms. Smid consulted Dr. Sax who examined her and found that she had ""persistent dysfunction of the left sacroiliac joint"" which he treated by series of manipulations of such joint. In his medical report he confirmed that he last saw Ms. Smid on February 25, 1991, at which time no sacroiliac joint dysfunction was evident. Ms. Smid's pain persisted. Therefore, she consulted Dr. Danilkewich on March 8, 1991. Dr. Danilkewich confirmed she examined Ms. Smid on March 8th and observed: straightening of the curvature in her spine due to tightness in her back muscles; that Ms. Smid could only bend forward to within one inch from the floor; change in sensation to touching on the right side of her body; normal reflexes; straight leg raises were limited to 80% rather than 90%; muscle spasms over entire back rather than only on right side; and pain on left side of body rather than the right side as before. Based on her examinations and clinical experience Dr. Danilkewich opined that the lack of sensation indicated nerve injury or continued nerve injury, or that this disc may have herniated and was pushing against the nerve root. However, the diagnosis recorded in her notes at the time of Ms. Smid's complaint is that of ""lumbar sprain"" for which she prescribed physiotherapy treatment and Moltrine. Despite her alleged pain and discomfort, Ms. Smid accompanied her husband on skiing trip to Kalispell, Montana, where she skied for several days. While skiing, she fell on one occasion and shortly thereafter she had to stop skiing due to back pain. On her return to Saskatoon she continued with physiotherapy treatments and experienced some temporary relief. On March 27, 1991, Ms. Smid was again examined by Dr. Danilkewich who noted that her leg flexion had returned to 90� angle; that her back muscles were less tender; and that her overall condition had markedly improved. She did not revise her earlier diagnosis of lumbar sprain with the possibility of nerve damage. Ms. Smid next attended on Dr. Danilkewich on April 4, 1991, with complaint of back pain. On this occasion Dr. Danilkewich notes that Ms. Smid is writing four hours day and is experiencing pain in the lower lumbar; that her ability to flex is reduced to 75%; that her sacroiliac joint is tender; and that she can raise her legs to 90%. Dr. Danilkewich attributed the lower back pain to Ms. Smid having increased her work load and having discontinued the physiotherapy treatments prescribed earlier. While Ms. Smid consulted Dr. Danilkewich on various occasions subsequent to April 4, the next major attendance was on July 24, 1991, when Ms. Smid complained of tingling sensation in her right foot. During her examination of Ms. Smid, Dr. Danilkewich observed more muscle spasm; tenderness on the right side of her body; an inability to do straight leg raises; and limited back bending. Her diagnosis was ""right sided sciatica"". Dr. Danilkewich prescribed muscle relaxant called ""Flexoril"" and referred Ms. Smid to Dr. Dust, an orthopaedic surgeon. Dr. Dust in medical report dated February 29, 1991 (exhibit P-2f) reports as follows: On examination at that time, she moved around with mild to moderate amount of difficulty. She walked with limp and stood with list. She had decreased range of motion in her back. Straight leg raising was positive on the right side at 40 degrees. Cross straight leg raising was positive at 50 to 60 degrees. There was decreased sensation in both the right L5 and S1 dermatomes. Motor strength was correspondingly weak in the L5 distribution with weakness of extensor hallucis longus and tibialis posterior. The right calf musculature was smaller in circumference than the left by cm. X-rays of the pelvis and lumbar spine were normal. My clinical impression at that time was that she was suffering from disc protrusion with right L5 radiculopathy. The picture was somewhat clouded by her previous history of weakness in her right leg raising the possibility that some of these findings were chronic. At that point she had received two courses of physiotherapy and was encouraged to continue on with the exercises as she appeared to be improving. She was seen again August 26th, 1991. She found that the back pain was much improved although it could still be quite severe at times. The leg pain, however, was still present and, if anything, seemed to be getting worse. The pains had flared up two days previously and she started to notice numbness in her left 2nd and 3rd toes. Physical examination at that time was basically unchanged although in addition there was decreased sensation in the left 2nd and 3rd toes. As she was not improving, CT scan of the spine was arranged. The CT scan report was that of slight disc bulging at L4-5, however, on reviewing this there seems to be discreet central L4-5 disc herniation, which is in keeping with her clinical situation. Dr. Dust was not called at trial nor did he express an opinion as to the cause of Ms. Smid's problems in his medical report which makes no mention of the box event or the fall event. At trial Dr. Danilkewich, Dr. Gordon Wyant, Mr. Carl Shiels and Dr. Lawrence M. Elson testified as expert witnesses. Each of them expressed an opinion as to the cause of Ms. Smid's problems. Since the opinion of Dr. Elson contradicts those rendered by Dr. Danilkewich and Dr. Wyant, propose to discuss the qualifications of each expert and the basis for their respective opinions. Dr. Danilkewich is member of the College of Physicians and Surgeons for the Province of Saskatchewan and is certified to practice family medicine, which she has done for period of in excess of 20 years. She also teaches courses in family medicine at the College of Medicine, University of Saskatchewan. During her career she has not participated in any basic research concerning back pain or the causation of back injuries nor has she published on the subject in any recognized medical journal, nor has she undertaken any post graduate studies in the fields of anatomy or neurology. However, she is clinician with many years of experience in treating patients suffering with lower and sacroiliac problems. In preparing to testify she examined no material pertaining to the collision or causation of injuries in low velocity rear-end collisions. Counsel for Ms. Smid put the following question to Dr. Danilkewich: In your opinion as family physician, what event would you look to as precipitating the change in Ms. Smid's condition from January 28 to March 8, 1991? Dr. Danilkewich responded: would assume with the chronology of all the events that it would be the accident of February 14, 1991. Dr. Wyant is licensed medical practitioner and member of the College of Physicians and Surgeons. In addition to taking post-graduate training in anaesthesiology, he has studied and published in the area of pain management. Dr. Danilkewich he has not participated in any basic research relating to the causation of back pain nor pursued post graduate training relating to anatomy or neurology. However, he possesses considerable clinical experience which enabled him to observe the consequences of certain kinds of trauma on different human bodies. Many of these observations he admits were of an anecdotal nature. He likewise has not reviewed the collision in detail nor has he read or studied in the area of the causation of injuries in low velocity rear-end collision. The treatment of pain and not its etiology has always been his primary concern. Based on his examinations of Ms. Smid, review of x-rays, the CT scan report and medical reports provided by Dr. Danilkewich and others, he concluded Ms. Smid's pain involved nerves leading primarily to her right leg. In his opinion the source of the pain could be either Ms. Smid's herniated disc at L4-L5, or an inflammation of the nerve root at the right sacroiliac joint. He opined that if the nerve at sacroiliac joint is irritated, it can cause pain to radiate into the adjoining leg as well as up to the area of the L4-L5 vertebrae in the lower back. In his opinion, the box event or the fall event, or the collision could have given rise to the symptoms Ms. Smid presented. However, because Ms. Smid experienced pain in her right leg and loss of sensation in several toes on her right foot following the collision, but not prior, he concluded some irritation at the L4-L5 area was caused by the collision. He further opined that the collision may have caused the herniation of Ms. Smid's disc at L4-L5, particularly if such disc was unhealthy at the time. In his opinion the force exerted on her body during the collision was sufficient to herniate weakened disc. He produced no calculations or empirical study to support his conclusion. Mr. Carl Shiels was qualified as an expert in the field of mechanical engineering and to limited degree in the field of biomechanics, an area of study that deals with the application of engineering principles to biological material, and specifically with the effect the application of force has on the human body. Mr. Shiels is not medical doctor nor has he any significant training in the area of anatomy or neurology, nor is he qualified to diagnose injuries. Further, he has conducted no basic research or any significant clinical research relating to the causation of injury in the spinal area of the nature and kind before me. However, he is well versed in the application of the principles of physics to the operation and behaviour of motor vehicles while in motion and to some extent, the effect such forces may have on the human body. Mr. Shiels gave two opinions: the first related to the speed of Mr. Rooke's vehicle at the time of impact; the second related to the cause of Ms. Smid's injury. In preparing his opinion regarding speed, Mr. Shiels referred to various technical journals relating to the construction of the bumpers and other material parts of the motor vehicles involved in the collision. He further reviewed the examinations for discovery of Ms. Smid and Mr. Rooke and took into account data published in the July, 1985 edition of Consumers Reports (exhibit D-2 for identification), and the October, 1986 edition of Consumers Reports (exhibit D-3 for identification). These articles principally deal with the ability of the shock absorber mechanism comprising part of the rear bumper of motor vehicles very similar to Ms. Smid's to absorb the force exerted by another motor vehicle striking it. Based on the technical data examined for the vehicles involved, the results published in the aforementioned Consumers Reports and his experience as mechanical engineer, Mr. Shiels opined that the shock absorber mechanism comprising part of the rear bumper of Ms. Smid's vehicle was capable of absorbing the force created by vehicle of the size and type driven by Mr. Rooke at speeds up to eight kilometres per hour without sustaining any damage. Given that Ms. Smid's motor vehicle was stationary at the time of the collision and no damage to its bumper or rear section occurred, he concluded that at the time of impact Mr. Rooke's vehicle was travelling at eight kilometres per hour or less. have no difficulty in accepting Mr. Shiels' opinion in this area given the degree of his expertise as mechanical engineer in the area of accident reconstruction and the research and inquiries he undertook. Mr. Shiels also offered an opinion relating to the causation of Ms. Smid's injury. In preparing his opinion regarding causation he reviewed and relied on the medical reports of Dr. Danilkewich dated April 1, August 27, September 18, October and 23, 1991 and May 3, 1994; the medical report of Dr. Sax dated October 4, 1994; the medical reports of Dr. Fanner dated February 22, and September 27, 1991; the medical reports of Dr. Wyant dated February 13 and 17, 1992; the medical report of Dr. Dust dated February 29, 1992; the medical report of Dr. Majeran dated February 6, 1992; the reports of Sandra Church, physiotherapist, dated May 11 and October 26, 1992. In addition, he reviewed and relied on the data contained in three abstracts of studies conducted concerning low speed rear-end impacts published in several recognized technical journals. The first of such articles is entitled ""Analysis of Human Test Subject Kinematic Responses to Low Velocity Rear End Impacts"" conducted by Whitman E. McConnell et al (exhibit D-5 for identification) (the ""McConnell report""). The McConnell report describes the effect on four volunteer test subjects caused by series of low velocity rear-end collisions. In the McConnell report, the authors conclude, inter alia: The reported results of this low velocity test series suggest compression-tension injury causation mechanism which probably can cause self-limited minor cervical, thoracic and lumbar muscle strains and, possibly, connective tissue and/or vertebral joint micro-contusional injuries and that may account for the discomfort symptoms commonly reported after low velocity rearend collisions. The very mild discomfort symptoms experienced by our three test subjects, after multiple test exposures, indicated that the to kph (4 to mph) struck vehicle test conditions were probably at, or near, typical human threshold for very mild, single event musculoskeletal cervical strain injury. The test results from our small number of test runs and relatively homogeneous test panel [four healthy volunteer males ranging in age from 45 to 56] should be supplemented by further testing. This testing, which should include wider variety of test subjects arranged in different seating positions, various riding postures and restraint system usage, would better define the complete range of expected kinematic responses by the vehicle riding general public to low and very low velocity rearend collisions. The second abstract relied on by Mr. Shiels covers series of tests conducted by D. H. West et al. The abstract is entitled ""Low Speed Rear-end Collision Testing Using Human Subjects"" (the ""West report""). This report deals with the consequences to the cervical spine of occupants in motor vehicle which is struck from behind. The third abstract, entitled ""Human Occupant Kinematic Response to Low Speed Rear-end Impacts"" (exhibit P-7 for identification), was written by Thomas J. Szabo et al (the ""Szabo report""). The Szabo report deals with the effect on the human body of low velocity impact collisions. In the tests conducted, four human volunteers ranging from ages 27 to 58, with various degrees of cervical and lumbar spinal degeneration, were used. Two of the volunteers were male and two were female. Multiple rear-end collisions involving delta velocity of eight kilometres ("" of kph"") were simulated in which the volunteers occupied the struck vehicle. The term ""delta velocity"" or V"" means the ""change in velocity"" in the struck motor vehicle following it being hit by another vehicle. The researchers found negligible relative motion in the thoracic and lumbar spines of the human subjects at the time of impact. Based on these tests they concluded the likelihood of significant low back injury for restrained occupant in rear-end impact with of kph or less is remote. Of particular significance is that none of the volunteers who participated in the study complained of any orthopaedic or neurological symptoms, nor were any abnormal findings noted at the time of the pre-test orthopaedic examination but following two rear-end impacts, one of the volunteers reported transient minor neck stiffness the morning following the first test. Mr. Shiels opined that biomechanical injuries are caused by one part of the anatomy being forced to move against another part in an abnormal manner. Based on the McConnell, West and Szabo reports and his own analysis, Mr. Shiels concluded the uniform support provided to Ms. Smid's spinal column by the seat of her motor vehicle, regardless of how she sat, prevented any part of her back to move against another part and thereby give rise to the subject injury. In his opinion, the seat on which Ms. Smid sat would have absorbed most of the force created by the impact with inconsequential rebounding by the seat. He speculated the fall event had greater potential for injury than the collision. have not considered his speculation in these reasons for judgment. In view of the evidence of Dr. Elson, need not rely on Mr. Shiels' opinion as to whether the forces in question could have caused injury to Ms. Smid's back. In my opinion Mr. Shiels is not well qualified to give an opinion as to causation of injury in the human spine because of its complexity and his very limited knowledge of human anatomy and neurology. Further, his research appears to be limited to reviewing the McConnell, West and Szabo reports which may have been prepared by researchers having limited knowledge of human anatomy. Dr. Elson, who described himself as clinical and forensic anatomist, was called to give evidence on behalf of the defendants. He holds doctorate of philosophy in human anatomy, has written extensively regarding spinal injuries and soft tissue damage and their causation in recognized medical journals, has taught anatomy at several medical colleges in the United States, and has consulted with medical doctors in the treatment of patients. His consultations include the review of x-ray films and CT scans for the purposes of determining what is anatomically wrong with patient. He describes the field of anatomy as substrate of medicine that specializes in determining how the human body works rather than on treating patients and their symptoms. He has also taken extensive courses in the area of biomechanics. He is member of the American Academy of Forensic Science, the Society of Forensic Engineers; the Association for the Advancement of Automotive Medicine; the Society of Automotive Engineers; and the American Back Society. He has testified in excess of 50 times and has read most if not all of the medical and mechanics literature pertaining to injury of the lower back. accepted his qualification as an expert in the field of forensic anatomy as it applies to anatomical principles. In preparing his opinions Dr. Elson reviewed: medical summary prepared by the Saskatchewan Department of Health for the purpose of getting an overview of the extent of the medical treatments received by Ms. Smid but not as to any particular injury or management; the medical reports reviewed by Mr. Shiels; the examinations for discovery of Ms. Smid and Mr. Rooke for the purpose of getting background information rather than specific data for the purposes of his opinion; the outpatient report from Royal University Hospital dated March 4, 1993 regarding its treatment of Ms. Smid; the McConnell report, West report and Szabo report including videotapes and measurement taken in connection with the McConnell report; SGI accident reports covering the collision; and report prepared by Mr. Shiels and delivered to Dr. Elson few days prior to the trial. Dr. Elson provided number of opinions. He first opined that the collision occurred at of kph or less and thereby confirmed the opinion of Mr. Shiels. He then opined that where healthy person is seated in the passenger seat of motor vehicle which is struck from behind by another vehicle at speed of not greater than kph, the lower back of such person is not susceptible to injury. In support of his opinion he testified that in such circumstances the struck vehicle, in matter of milliseconds, accelerates its seat and head rest into the body of the person occupying the seat with the result that the body compresses the cushioning and padding forming part of the seat. Upon full compression of the seat padding, the entire seat structure bends back until the vehicle stops or the body and the vehicle commence travelling at the same speed. In either event, the seat rebounds to its pre-collision position but the rebound is of an inconsequential nature from an injury causation point of view, according to Dr. Elson. Dr. Elson advised that he based his opinions on review of 100 or more cases involving rear-end collisions, his clinical observations, the review of files of numerous persons involved in such collisions and the findings reported in the McConnell report, West report, and Szabo report. These studies he noted collectively constitute approximately 60% of the current research in the area. While he generally concurs with the finding in such reports, he disagreed with the conclusion of McConnell that micro- contusion in the cervical spine might occur in low velocity impact. In his opinion such injuries did not occur in the tests conducted by McConnell and will not occur in low velocity rear-end collisions. With respect to Ms. Smid, he opined that she could not have sustained the injury complained of notwithstanding her unusual seating position because her back was uniformly supported by the seat of her motor vehicle, and therefore no part thereof could move against another part and thereby cause an injury of the kind noted by Ms. Smid. Hence, the collision did not cause or contribute to any of Ms. Smid's injuries or damage. He did admit that nerve root can be irritated if encased in degenerated spine, but expressed the view that Ms. Smid's spine had not degenerated to the degree necessary to produce such an injury. During cross-examination he admitted that many persons involved in low velocity rear end collisions complain of lower back pain and that he is unable to explain the cause of such pain. Dr. Elson further opined that the symptoms presented by Ms. Smid relate to the pre-existing conditions identified by Dr. Danilkewich, Dr. Sax and Dr. Fanner and not to the collision. In his view there is way of differentiating the pain allegedly arising from the collision from the events that transpired prior thereto. He further observed that the fall event had greater potential of causing injury to Ms. Smid than the collision because of the substantial change in acceleration caused by such fall. He equated the impact to be equivalent to the human body falling distance of ten inches. gave very little weight to such observation in the absence of detailed calculations and full particulars of the fall involved. Faced with competing and contradicting expert opinions, the Court must decide which of the opinions, or which parts thereof, it is prepared to accept. With respect to the question of the speed of the motor vehicle driven by Mr. Rooke at the time of impact, accept the evidence of Mr. Shiels. therefore conclude Mr. Rooke's vehicle was not travelling more than eight kilometres per hour when it struck Ms. Smid's vehicle. With respect to potential injuries that might arise to the spinal column of person occupying seat in motor vehicle rear-ended by another motor vehicle having of kph, give very little weight to Mr. Shiels' opinion thereon. But do accept without any hesitation Dr. Elson's opinion that healthy person properly seated in the driver's seat of motor vehicle which is struck in the rear by another vehicle travelling at not more than eight kilometres per hour will not sustain any injury to his or her lower back because the lumbar spine is evenly supported, thereby prohibiting the movement of any one part of the lumbar spine against the other. am also well satisfied that Ms. Smid had experienced considerable pain and discomfort in her lower back, her right sacroiliac joint and her right leg before the collision. am further satisfied Ms. Smid suffered from other pre-existing medical problems prior to the collision and consequently was not healthy person. For example, she had weak stomach muscles which Dr. Danilkewich opined made her susceptible to back injury. am further satisfied that she had weak or degenerated disc at L4-L5 and recurring sciatic condition prior to the collision. These conditions would flare up together or separately from time to time causing pain of the kind noted by Ms. Smid but would respond favourably to chiropractic and physiotherapy treatments. find that at the time of the collision both conditions were dormant. believed Ms. Smid when she said that she felt crunch in her lower back at the time of collision and persistent lower back pain. also accept Dr. Danilkewich's observation that Ms. Smid presented with different symptoms following the collision and that those symptoms were referrable to nerve irritation at L4-L5. While a normal healthy person may not haveexperienced a lower back injury in the collision, I amsatisfied that because of her weakened state of health and herpoor sitting position, the collision did contribute in amodest manner to Ms. Smid's injury and damage. In so doing accept the evidence of Dr. Danilkewich over that of Dr. Elson or Mr. Shiels because as the attending physician, she was in the best position to observe the symptoms Ms. Smid presented both before and after the collision and to evaluate the same from clinical perspective having regard to Ms. Smid's unique problems. In summary therefore the answer to the question posedis ""yes"".","The Plaintiff commenced these proceedings seeking to recover damages for personal injuries alleged to have been suffered in a motor vehicle accident. The Defendants claimed that the Plaintiff's condition related to 2 pre-existing injuries. The only issue which the Court was asked to resolve was whether this accident had caused or contributed to the Plaintiff's injuries. HELD: The question posed was answered in the affirmative. While a normal healthy person might not have been injured in this low speed rear-end collision, the Court was satisfied that, because of the Plaintiff's previous injuries and poor sitting position, the collision did contribute to her current condition in a modest manner.",b_1995canlii6134.txt
236,"THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and KEVIN EUGENE McGUIGAN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff COUNSEL: G. JOSEPHSON for the Appellant C.A. SNELL Q.C., for the Respondent DISPOSITION: Appeal Heard: May 4, 1995 Appeal Allowed: May 10, 1995 On Appeal From: QBCNJ 103/94 J.C. Regina Appeal File: 6597 Reasons by: The Honourable Mr. Justice Wakeling In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Sherstobitoff WAKELING J.A. The appellant pleaded guilty to the following charge:That Kevin Eugene McGuigan of Regina between 1 October 1991 and 31 October 1993 at or near Regina did commit numerous assaults on Ashley Bjornson by slapping and striking her with miscellaneous objects, contrary to s. 266 of the Criminal Codeand was sentenced to one year imprisonment and one year's probation. The evidence indicated that the assault consisted of cuffing the eight year stepdaughter rather frequently as a disciplinary measure. There was also an incident where a small paddle was employed and she had been struck with a cookie box. No injury had ever resulted from these assaults. The more grievous conduct was the belittling and sarcastic verbal abuse the appellant directed frequently at the child over her eating habits and consequent weight. At trial, the Crown and defence agreed that it was probably an instance where fine and probation order would create the necessary special deterrence and parental guidance the situation called for. The trial judge was however of the view that the conduct of the accused warranted more severe penalty. We have concluded that the trial judge must have been influenced to substantial degree by the lack of parenting skills displayed by the appellant in the way he mistreated and verbally abused the young girl in manner which was demeaning and destructive of her self image. As offensive as that conduct may be, a lack of parental skill does not constitute a criminal offence and the only thing that the appellant pleaded to was an assault which was not severe and produced no injury. The sentence of one year under these circumstances, even with the record of the appellant, is excessive. In addition, it will no doubt mean the appellant would lose his current employment upon which the family is reliant. We are mindful of the fact the Crown and defence counsel recommended fine and probation, but we must also be aware of the view the trial judge took of the appellant's conduct and accept that some degree of incarceration is appropriate given the position of authority he enjoyed and the existence of his past criminal record even though it does not include similar instances of violence. We therefore conclude the appeal should be allowed and a sentence of 60 days intermittent be substituted for the sentence of one year. The sentence to commence at 5:00 p.m. on Friday May 12th with release each Monday morning after the weekend. The probation order is to remain unchanged except to substitute the word `approved' for `supervised' in the first condition. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of May, A.D. 1995. WAKELING J.A. concur BAYDA C.J.S. concur SHERSTOBITOFF J.A.",The accused pleaded guilty to a charge of assaulting his 8 year old stepdaughter by slapping her and striking her with a small paddle. The Crown and counsel for the accused agreed that a fine and probation would be appropriate. The trial judge sentenced him to 1 year in prison and 1 year's probation. He appealed his sentence. HELD: Appeal allowed. 1)The force applied was minimal and the child was not injured physically. 2)The sentence imposed would result in the accused losing his employment which would harm his dependents. 3)The Court reduced his sentence to 60 days intermittent.,d_1995canlii3966.txt
237,"nan Date: 19980213 Docket: CA 141313 NOVA SCOTIA COURT OF APPEAL Freeman, Pugsley and Cromwell, JJ.A. 3004876 Nova Scotia Limited -and- LASERWORKS COMPUTER SERVICES INC. Respondent James A. Musgrave for the Appellant Roy F. Redgrave for the Respondent D. Bruce Clarke and Pamela J. Clarke-Priddle for the Respondent Trustee Appeal Heard: December 9, 1997 Judgment Delivered: February 13, 1998 THE COURT: The appeal is dismissed, per reasons for judgment of Freeman, J.A.; Pugsley and Cromwell, JJ.A., concurring. FREEMAN, J.A.: The respondent LaserWorks Computer Services Inc., a dealer in supplies for laser printers, made a proposal to its creditors under the provisions of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA). A competitor, Datarite, operating through the appellant 3004876 Nova Scotia Limited, acquired the claims of eighteen creditors and voted them over the objections of LaserWorks at the meeting of creditors, defeating the proposal. Only two of the remaining sixteen creditors opposed the proposal. Acceptance required votes representing majority in number and two-thirds in value of the class of unsecured creditors present in person or by proxy. The Registrar of Bankruptcy of the Supreme Court of Nova Scotia in Bankruptcy, Tim Hill, found: Upon the vote being taken, fourteen creditors with total claim value of $206,531.65 voted in favour of the proposal. Twenty creditors with total claim of $140, 370.00 voted against the proposal. Thus 41% of creditors representing 59% of the claims voted pro, and 59% of the creditors with 40.5% of the claims voted con. The proposal was defeated, subject to the resolution of the objections before the court today. At the hearing into the objections the Registrar, after hearing evidence from the appellant's solicitor Victor Goldberg, who was not counsel on the appeal, disallowed the appellant's votes. He found the proposal had been accepted by the votes of the other creditors. His decision was upheld by Justice Stewart on an appeal to the Supreme Court of Nova Scotia in Bankruptcy. Issues and Standard of Review The overriding issue is whether the court's inherent supervisory jurisdiction should be invoked to interfere in proposal to creditors under the BIA when it appears the statutory process is being used for purposes not contemplated by Parliament. The appellant submits it was true appeal before Justice Stewart, and not hearing de novo, on the authority of Re McCulloch Estate (1992), 1992 CanLII 2799 (NS SC), 13 C.B.R. (3d) 201 Tr. Div.) and Cockfield Brown Inc. (Trustee of) v. Reseau de Television TVA Inc. (1988), 1988 CanLII 875 (QC CA), 70 C.B.R. (N.S.) 59 (Que. C.A.) On further appeal to this court the grounds are whether Justice Stewart erred in: 1. Failing to reverse the Registrar's finding that 18 creditors of LaserWorks assigned their rights to the appellant; 2. Sustaining the Registrar's finding that Datarite engaged in an improper purpose in acquiring and voting the claims of the 18 creditors; 3. Sustaining the Registrar's finding that the Appellant's purpose in acquiring and voting the claims was relevant; and 4. Concluding that there was an abuse on minority of class of unsecured creditors and that duty in this respect was owed by the appellant. An appeal lies to this court under s. 193 of the BIA which reads in part: 193. Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of judge of the court in the following cases: (a) if the point at issue involves future rights; ... (e) in any other case by leave of judge of the court of appeal. The appellants assert future rights are involved and no leave is necessary. The respondents take no issue with this. Neither is issue taken with the jurisdiction of the Registrar and Justice Stewart to deal with the matters in question pursuant to the BIA. The issue is whether they erred. The appellant's submission with respect to the standard of review is that: the Registrar's discretion will not be disturbed on appeal unless he failed to consider or misconstrued material fact or violated principle of law. If the Registrar did not appreciate the nature of the evidence before him, it was open to the Supreme Court to substitute its discretion for that of the Registrar. There is also authority that the Registrar's decision should not be disturbed unless it was clearly wrong: Re Achilles (1993), 23 C.B.R. (3d) 20 B.S.S.C.). It cites Industrial Acceptance Corp. v. Lalonde, 1952 CanLII (SCC), [1952] S.C.R. 109 p. 120; Re Gilmartin bankrupt), [1989] nan All E.R. 835 (Ch. D.) p. 838; and Re Barrick (1980), 36 C.B.R. (N.S.) 286 (B.C.C.A.) p. 290. In Industrial Acceptance Estey J., writing for the Supreme Court of Canada, held at page 120 that: judgment rendered in the exercise of judicial discretion under s. 142 ought not to be disturbed by an appellate court, unless the learned judge, in arriving at his conclusion, has omitted the consideration of or misconstrued some fact, or violated some principle of law. The respondent LaserWorks urges that this court should only substitute its own discretion when the Registrar is clearly wrong. Apparent failure by the Registrar to appreciate the nature of the evidence before him is too low threshold: The court in Re Barrick ((1980), 36 C.B.R. (N.S.) 286 (B.C.C.A.)) substituted its discretion for that of the trial judge only after ruling that he misapplied legal test. Justice Taggert, at page 290, gives three reasons the Court of Appeal should substitute its discretion for that of the trial judge: In these circumstances, it would seem to me that the learned judge has not applied the correct test, has not given the effect that ought to be given to the trustee's report and has not appreciated the nature of the evidence which was before him. In these circumstances, think we are justified for substituting our discretion for that of the trial judge. On that basis the respondent submits the first three grounds of appeal fail. The Trustee under the Proposal submits that ""the Appellant has not satisfied the onus upon it in this appeal to overturn the decision of the Honourable Justice Stewart to decline to substitute her discretion for that of the Registrar."" The respondent also referred to the principles stated by McLachlin, J., in Toneguzzo-Norvel (Guardian Ad Litem of) v. Savein and Burnaby Hospital (1994), 1994 CanLII 106 (SCC), S.C.R. 114 at page 121, which this court has followed consistently: It is by now well established that Court of Appeal must not interfere with trial judge's conclusions on matters of fact unless there is palpable or overriding error. In principle, Court of Appeal will only intervene if the judge has made manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: see P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] S.C.R. 141, at pp. 188-89 (per L'Heureux-Dube J.), and all cases cited therein, as well as Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), 1991] S.C.R. 353, at pp. 388-89 (per Wilson J.), and Stein v. The Ship ""Kathy K"", 1975 CanLII 146 (SCC), [1976] S.C.R. 802, at pp. 806-8 (per Ritchie J.). Court of Appeal is clearly not entitled to interfere merely because it takes different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. These principles apply in bankruptcy matters, and provide guidance when, as here, the Registrar's findings have been upheld by judge of the Supreme Court. The Registrar's Decision The Registrar based his decision on the following findings: Before turning to deal with these submissions, it is essential that make some findings of fact. In large part the facts are uncontested. No affidavits were filed, but counsel agree that may rely on the minutes of the meeting of creditors, the testimony by Mr. Goldberg upon the section 163(2) examination, and the list provided by Mr. Goldberg in compliance with his undertaking on the examination. find that Datarite through its solicitor approached some but not all of the creditors of Laserworks with the intention of obtaining an assignment of those creditors' claims and consequently rights to vote on the proposal. The claims were obtained and the votes utilized to defeat the proposal. This would have the effect under section 57(a) of the BIA of placing LaserWorks into bankruptcy by virtue of deemed assignment. can only conclude that the purpose of Datarite was to effect the bankruptcy of LaserWorks. It is reasonable supposition that the purpose was to remove competitor from the marketplace. find that it was the intention of Datarite to put LaserWorks in bankruptcy. further find that the motive was to lessen competition. In my view, Datarite was engaged throughout in an improper purpose not contemplated by the BIA, the purpose of which is far removed from the use to which Datarite put it. It is apparent that the Registrar, in speaking of ""purpose"", included both motive or intent and the steps taken to give effect to that motive or intent. While the record is somewhat sparse, as counsel have remarked, there was evidence in support of these findings. am not satisfied that the Registrar failed to appreciate the nature of the evidence before him or that he was clearly wrong, or alternatively that he omitted the consideration of or misconstrued some fact, or violated some principle of law. The questions before this court relate to the effect of these findings. The Registrar disallowed the votes of the eighteen creditors represented by the appellant because he considered they had been cast for an improper purpose. In the absence of authority specific to proposals to creditors, he applied jurisprudence related to bankruptcy petitions, stating: It has long been held that the court will not grant petition in bankruptcy where the petition is filed for an improper purpose: Re E. De La Hooke (1934), 15 C.B.R. 485 (Ont. S.C.); Re Pappy's Good Eats Limited (1985), 56 C.B.R. (N.S.) 304 (Ont. S.C.); Dimples Diapers Inc. v. Paperboard Industries Corporation (1992), 15 C.B.R. (3d) 204 (Ont. G.D.); Re Shepard (1996), 1996 CanLII 18061 (MB QB), 40 C.B.R. (3d) 145 (Man. Q.B.). In Hooke the petitioner obtained an assignment of judgment against the debtor for the sole purpose of filing petition in bankruptcy and of removing the debtor as business competitor. In that case, as is the situation in this case, there was no evidence that the debtor had any business dealings with the party seeking to place the debtor in bankruptcy. The petition was dismissed. In Hooke the court made extensive reference to the decision of the House of Lords in King v. Henderson, [1898] A.C. 720. The comments of James, L.J., at p. 732 are particularly germane here: After what Lord Justice Cotton has said, in which entirely agree, people will probably think twice before they buy debts for the purpose of taking bankruptcy proceedings. Lord Justice Cotton had commented that the proceedings in bankruptcy were not taken to obtain payment of the debt, but rather the debt was purchased for the purpose of taking the proceedings. would simply add that in tight of the decision make here persons should certainly think twice before they purchase debts in order to defeat proposal. It is my opinion that the eighteen creditors are tainted with the improper motive of Datarite. In Pappy's Good Eats the petition was filed by creditor with genuine claim. The creditor entered into an agreement with three franchisees of the debtor. This agreement provided that the creditor would prosecute the bankruptcy proceedings while the franchisees financed the proceeding in exchange for share of the dividends. The motive of the franchisees was to bring about bankruptcy so as to terminate the franchise agreements between them and the debtor. The court found that there had been an improper use of the bankruptcy legislation. The effect of the agreement was to embroil the creditor in the improper objectives of the franchisees who were intermeddling in the proceeding. This tainted the whole proceeding. Clearly where the object of the intermeddling party is to bring about the bankruptcy of the debtor an improper purpose is present. The court will act to prevent such an abuse of the legislation. The other cases have referred to, Dimples Diapers Inc. and Shepard also deal with bankruptcy petitions instigated for an improper collateral purpose. In Dimples that purpose was to recover trademark and business opportunity. In Shepard that purpose was to obtain control of certain shares. While this case does not involve bankruptcy petition, it does involve the placing of Laserworks into bankruptcy. In my view, it would be wrong to allow Datarite to do in the proposal process what it cannot do by petition. Datarite's intention was to place Laserworks in bankruptcy. The motive was to remove competitor. That motive reveals an improper purpose. The court will not allow to be done by the back door what cannot be done by the front. By entering into this arrangement with the numbered company the eighteen creditors have tainted themselves and become embroiled in the improper purpose of Datarite. Their votes cannot stand. If Laserworks has the right to be free of this type of interference the Court must be able to fashion remedy. This court does have the inherent jurisdiction to supervise the bankruptcy process and consequently the conduct of creditors where that conduct constitutes an abuse of the provisions of the BIA. While creditors can certainly vote in their own best interest, they may not collude with third party to place debtor in bankruptcy for an improper purpose. Such activity lacks commercial morality and offends the integrity of the bankruptcy process. While Datarite was not permitted to vote the claims it had acquired, they remained debts of the insolvent debtor. Justice Stewart The first ground of appeal to this court, the issue of whether the claims of 18 creditors were actually assigned to Datarite, does not appear to have been ground of appeal before Justice Stewart. On the next two grounds of appeal, whether the Registrar failed to appreciate the evidence before him in concluding that Datarite's purpose in acquiring and voting the 18 claims was an improper one, and whether such purpose was relevant consideration, Justice Stewart, in upholding the Registrar, took different route to arrive at the same conclusion. She stated: Although stated in the context of voting by debenture holders when the majority had votes to modify the rights of the debenture holders in clause, the statements of principle by Viscount Haldane of the Judicial Committee of the Privy Council in British America Nickel Corporation v. M. J. O'Brien, 1927 CanLII 470 (UK JCPC), [1927] A.C. 369 at p. 371 are, no less, here applicable: To give power to modify the terms on which debentures in company are secured is not uncommon in practice. The business interests of the company may render such power expedient, even in the interests of the class of debenture holders as whole. The provision is usually made in the form of power, conferred by the instrument constituting the debenture security, upon the majority of the class of holders. It often enables them to modify, by resolution properly passed, the security itself. The provision of such power to majority bears some analogy to such power as that conferred by s. 13 of the English Companies Act of 1908, which enables majority of the shareholders by special resolution to alter the articles of association. There is, however, restriction of such powers, when conferred on majority of special class in order to enable that majority to bind minority. They must be exercised subject to general principle, which is applicable to all authorities conferred on majorities of classes enabling them to bind minorities, namely, that the power given must be exercised for the purpose of benefitting the class as whole, and not merely individual members only. And later at p. 373, noting this to be principle which does not depend on misappropriation or fraud, stated: but their Lordships do not think that there is any real difficulty in combining the principle that while usually holder of shares or debentures may vote as his interest directs, he is subject to the further principle that where his vote is conferred on him as member of class he must conform to the interest of the class itself when seeking to exercise the power conferred on him in his capacity of being member. The court, applying the principle stated by Viscount Haldane, should not sanction scheme if it appears that the majority have not voted bona fide in the interests of the class as whole. Justice Quilliam in an unreported decision of the High Court of New Zealand, Re: Farmers' Co-Operative Organization Society of New Zealand Limited (M 12/97, August 1987) in addressing the very issue of company whose proposal had been defeated by the votes cast by some of its direct competitors, in circumstances where the majority had the right to bind the minority by statute relied on the principle enunciated in British American Nickel Corp. Inc. v. O'Brien, supra, during the objection to votes application before him. He concluded the votes should be discounted as their votes were cast out of self-interest and not in the interest of the class of creditors as whole, or of the company. Unlike the present case, he did not determine there was specific activity of an improper purpose other than recognizing the votes were cast by creditors in direct commercial competition with the company. The Registrar, on his finding of facts, was not faced with preexisting creditor voting as it wished for whatever reason. He was faced with unique set of circumstances where he found the appellant shelf company and Datarite, competitor of Laserworks, involved selective, secret arrangement with creditors against Laserworks, an arrangement that would hurt some creditors and favour other creditors, although as competitors rather than as creditors, given its purpose of removing Laserworks from the market place and diverting from it, its asset, the market share, so it could be available to Datarite, all of which would result in the balance of the creditors receiving little, if anything, and Laserworks having been deemed bankrupt. Justice Stewart found that Datarite was not entitled to use its votes for motives unrelated to the best interest of the creditor group and only pursuant to its own self interest in removing potential competitor from the market place without regard to the interests of the other members of its class, the other voting creditors. She concluded: The Appellant is not entitled to use its votes to achieve this improper purpose. The Registrar's decision prevents an abuse on minority of the class of unsecured creditors and in so doing upholds fundamental and viable in the circumstances principle of class voting. He did not err in concluding improper purpose is relevant. On the fourth ground she found that while there had been no collusion by the eighteen creditors sufficient to deprive them of the right to vote, the Registrar was justified in determining that in the circumstances Datarite controlled the way the claims were voted. She upheld the Registrar's decision and declined to interfere with it. Assignment The First Ground The appellant submits that the judge erred when she declined to address and reverse the Registrar's finding that 18 unsecured creditors of LaserWorks assigned their rights to the appellant. On proper appreciation of the evidence, it submits, no assignment took place. It states in its factum: The appellant did not take issue with the Registrar's finding that four of the 18 creditors received payment for them prior to the vote .... Each of the four creditors provided executed assignments and proxies to Mr. Goldberg, and each assignment was completed by payment. The 14 remaining creditors did not receive payment for their claims prior to the vote, and the appellant submits that the teamed Registrar failed to appreciate the evidence in this regard when he concluded that the claims of these 14 creditors had been assigned to the appellant before the vote was taken. LaserWorks submits that the Registrar did not decide whether or not the claims voted by Datarite were assigned: The conclusion of the Registrar with respect to the assignment issue is: Given my findings with respect to the intent and motive of Datarite, find it unnecessary to consider whether Datarite should have exercised vote or 18. The reference to vote or 18 relates to the assignment of claims. If the 18 claims had been assigned to the Appellant, the authorities establish that only one vote could be cast on the proposal. The Registrar found it ""unnecessary to consider"" this issue. We submit that the Registrar would need to consider the issue before making decision. It seems reasonable that the Registrar did not intend to decide whether the claims were assigned because it would not determine the question before him. Even if the appellant were restricted to voting as one creditor, leaving majority of creditors in favor of the proposal, the value of the claims voted by the appellant was sufficient to defeat the proposal and thus achieve the appellant's objective. If the claims had been assigned to the appellant, the voting rights would have been merged and the appellant could only cast one vote for the value of the claims it had acquired. If the creditors retained their own claims, the appellant could have voted once for each creditor for whom it held proxy. There is authority for this proposition and the parties seem in agreement with it. The rationale is clear. Each creditor has vote, to be exercised in person or by proxy. If the claim is assigned, the assignor ceases to be creditor. It loses its right to vote in person or to control the vote of the proxy. The assignor becomes creditor and is able to vote its claim, no matter the amount of the claim. If it acquires the claims of other creditors the amount of its claim increases, but it does not pluralize itself. It remains one creditor, entitled to one vote. The appellant referred to Toia v. Cie de Cautionnement Alta Inc. (1989), 77 C.B.R. (ICS.) 264 (Que. S.C.). The respondent insurance company paid out 19 claims against bankrupt under performance bond; each claimant signed release and subrogated its claims to the respondent, which filed 19 proofs of claim. The Official Receiver permitted 19 votes but the Quebec Supreme Court reversed this, allowing only one vote. The appellant purports to distinguish Toia because ""there the respondent completed the assignments by payment prior to the vote."" In my view it is of small importance whether the appellant bought for cash or on credit. The situation seems clear when creditors authorize votes on their behalf by proxy: each creditor is entitled to its vote and the proxy may cast votes for several creditors. It is equally clear when creditor assigns its claim to another creditor: the assignee creditor has only one vote. This was the case with the four creditors whose assigned claims were accepted and paid for by the appellant. It is less clear with respect to the remaining fourteen creditors who had executed assignments to the appellant. The appellant says they had not yet been accepted, pending proof of the claims. However they had to be proven before they could be voted, and their values were proved for the purpose of calculating their percentage of the total of the unsecured claims. Any condition on the assignment would appear to have been met. The intention of the parties must be determined: did the appellant vote those claims on its own behalf, or as an agent exercising the rights of the original creditors by proxy? If it had been necessary for the Registrar to decide this question, there was evidence before him that the original creditors had given control over their claims to the appellant by entering into enforceable contracts to assign them. That is, while the appellant voted the claim in the form of proxies, in fact it had acquired sufficient interest in the claims to vote them in its own right, as assignee, as though the assignments had been fully executed. It is clearly an improper practice for an assignee to purport to vote as the proxy of creditor which has assigned its claim, thereby ceasing to be creditor. If Datarite was otherwise entitled to vote at the creditor's meeting, it had one vote for the full value of the claims it had acquired. It was not justified in voting by proxy. I would dismiss this ground of appeal. Evidence of Datarite's purpose the second ground Mr. Goldberg testified as follows to Datarite's purpose in buying claims and voting against the proposal: Q. Can you tell me the benefit the numbered company will get in the bankruptcy of LaserWorks? A. Well, the purpose of the numbered company hopefully in buying the claims is that it'll buy the claims at reduced price and get full payment one day. The appellant states that Mr. Goldberg's evidence was uncontradicted, and submits: It is respectfully submitted that the Registrar was clearly wrong in his appreciation of the evidence. The learned Judge concluded that the Registrar made finding of credibility with respect to Victor Goldberg's evidence on this issue. However, the Registrar's decision does not indicate that Mr. Goldberg's evidence on this key issue was even considered. The Registrar simply failed to address Mr. Goldberg's evidence on this issue at all. It is therefore open to this Honourable Court to substitute its discretion for that of the Registrar. It is submitted that the Registrar could only find an improper purpose on the record by overlooking the only piece of direct evidence before him on Datarite's intentions. Mr. Goldberg was obviously only stating his client's ostensible intentions, not its true ones. The Registrar in fact had commented on Mr. Goldberg's evidence after quoting passage from the minutes indicating how he had responded to certain questions. He said: It is not unfair to say that Mr. Goldberg was obtuse to very great degree. While this does not necessarily confirm suspicion as to the motives of his client, it does explain the concern expressed by the principals of LaserWorks. The evidence before the Registrar included the proposal itself, which shows total liabilities of $585,459 of which $247,651 was unsecured, $334, 838 secured and $2,970 preferred. Assets totaled $306,158 including book debts of $170,000, leased vehicles 95,958, stock in trade $18,500, cash in the bank (which was the principal secured creditor) $8,000 plus fixtures, furnishings and equipment. Virtually all of the assets would be subject to security. The overall deficiency is shown as $279,301. It is difficult to see basis for Mr. Goldberg's client's optimism that it might get full payment for the claims it bought at reduced value, or indeed, to see any significant source of dividends for unsecured creditors, on bankruptcy. Datarite had not been creditor of LaserWorks before the proposal. There was evidence, however, that it had been competitor. The Registrar was entitled to consider the evidence as whole in making findings of fact and drawing inferences that led him to the conclusion that: ... Datarite's intention was to place Laserworks in bankruptcy. The motive was to remove competitor. That motive reveals an improper purpose... In my view the Registrar did not fail to appreciate the evidence nor otherwise err in arriving at this conclusion. Neither did Justice Stewart err in upholding him. I would dismiss this ground of appeal. Is Purpose Relevant? The Third Ground. (i) The Statute The appellant submits that the trial judge erred in upholding the Registrar's decision that Datarite engaged in an improper purpose in acquiring and voting the claims of the 18 creditors, and that its purpose was relevant. In view of the conclusion on the second ground that the Registrar did not err in finding improper purpose, the appellant is left with the relevancy argument. It argues that the authority relied on by the Registrar, De La Hooke, Pappy's Good Eats, Dimples Diapers and Shepard, arises under s. 43(7) of the BIA which deals only with bankruptcy petitions: 43(7) Where the court is not satisfied with the proof of the facts alleged in the petition or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made, it shall dismiss the petition. (emphasis added.) It cites the discussion of the discretion thus created in Houlden Morawetz, Bankruptcy and Insolvency Law of Canada (3d) at p. 2-50: Section 43(7) permits the court to dismiss petition if it concludes ""that for any other sufficient cause no order ought to be made"". Section 43(7) confers discretion; the exercise of that discretion must be founded on sound judicial reasoning based on credible evidence and must be exercised judicially according to common sense and justice in manner which does not occasion miscarriage of justice. Section 43(7) clearly does not create the supervisory jurisdiction of the court over the bankruptcy regime; it is simply concrete application of discretionary power inherent in the scheme of the BIA. Each step in the bankruptcy process, whether initiated by creditor's petition for receiving order or debtor's assignment for the benefit of creditors, is supervised by court officials or the court itself. For example s. 108 in Part V, the Administration of Estates, relates to ""any meeting of creditors"". At the meeting which gave rise to this appeal the chairman applied s. 108(3): 108(3) Where the chairman is in doubt as to whether proof of claim should be admitted or rejected, he shall mark the proof as objected to and allow the creditor to vote subject to the vote being declared invalid in the event of the objection being sustained. Section 187(9) provides broad directive: 187(9) No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court before which an objection is made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court. The short answer to the question raised by this ground of appeal is that motive or purpose is relevant to court authorized to remedy substantial injustice. The appellant takes the narrow position that proposals are outside the discretionary supervisory jurisdiction of the court because they are not specifically included in s. 43(7) or some equivalent provision. This submission cannot be sustained. There is similarity between creditor's petition for receiving order under s. 43 and refusal of proposal. In either case it is something done by creditor or creditors that places the debtor in bankruptcy, likely against its will. But proposal is also similar to an assignment: the debtor has itself resorted to protection under the BIA and its proposal will be deemed to be an assignment unless it succeeds in persuading its creditors to accept it in their own best interests. The appellant submits that s. 54 is the provision in the proposals Part of the BIA which corresponds with s. 43(7). S. 54 provides: 54(1) The creditors may, in accordance with this section, resolve to accept or may refuse the proposal as made or as altered at the meeting or any adjournment thereof. While s. 43(7) provides an occasion for the exercise of the court's supervisory jurisdiction, an examination focused on the merits of the petition itself, s. 54(1) does not. Such an examination of proposal is not necessary at that stage. The validity of the claims voted at the creditor's meeting at which the proposal is accepted or refused is subject to the court's scrutiny under s. 108(3). If the proposal is refused by regular vote of creditors it vanishes and further examination is unnecessary; the debtor is deemed under s. 57(a) to have made an assignment in bankruptcy and the matter proceeds as on an actual assignment. If the creditors approve the proposal, it is then examined on its merits under s. 59, which provides: (1) The court shall, before approving the proposal, hear report of the trustee in the prescribed form respecting the terms thereof and the conduct of the debtor, and, in addition, shall hear the trustee, the debtor, any opposing, objecting or dissenting creditor and such further evidence as the court may require. (2) Where the court is of the opinion that the terms of the proposal are not reasonable or are not calculated to benefit the general body of creditors, the court shall refuse to approve the proposal, and the court may refuse to approve the proposal whenever it is established that the debtor has committed any one of the offences mentioned in sections 198 to 200. Proposals are therefore just as much part of the bankruptcy regime, and just as subject to the supervision of the court exercising an equitable jurisdiction under the statute, as petitions and assignments. In Whiteman v. UDC Finance Ltd., [1992] NZLR 684, Hardie Boys J., writing for the New Zealand Court of Appeal with respect to the New Zealand Insolvency Act, which varies in detail but not in principle from our own, said at p. 691 that proposals are merely the other side of the coin to petition for adjudication. The only distinction between petitions and proposals in the exercise of the court's supervisory jurisdiction is that under the scheme of the BIA occasions for judicial scrutiny occur at different stages of the process. In the present appeal, court intervention was occasioned by objections to proofs of claims affecting the right to vote at the creditors' meeting considering the proposal. The correct procedure was followed, and the objections were considered by the Registrar who had jurisdiction under s.187(9) to remedy substantial injustice. Motive or purpose is not relevant to objections to proofs of claim based on statutory exceptions under the BIA. These are established in several sections, including s.109(1), persons who had not duly proved and lodged claim; s.54(3), relative of the debtor (who may vote against but not for proposal); 109(4), the debtor as proxy for creditor; s.109(6), creditor who did not deal with the debtor at arm's length (with exceptions); s.110(1), person with claim acquired after the bankruptcy unless the entire claim is acquired; s.111, creditor with claim on or secured by current bill of exchange (subject to conditions); s.112, creditor holding security (subject to conditions); and s. 113(2), trustee as proxy (subject to restrictions). See also s. 109, the trustee as creditor. (It will be noted that many of these exceptions arise from circumstances that could give rise to conflict of interest. This will be considered further under the fourth ground of appeal.) However the statutory exceptions are not code exhausting the forms in which substantial injustice may manifest itself. Objections will be sustained under s. 108(3) if they result from crime or tort against the debtor or crteditor. In the present appeal, and in the authorities cited by the Registrar, the substantial injustice assumes the guise of tortious behavior, to which motive is relevant. In the s. 108(3) context the commonest torts, or instances of substantial injustice arising from tortious behavior, relate to abuse of process and fraud. However conspiracy to harm was also found in Dimples Diapers. Tortious or tort-tike behavior falling short of fully developed tort susceptible of formal proof or definition can nevertheless result in substantial injustice, particularly for persons at point so vulnerable they must resort to insolvency protection. (See Shepard.) In my view that is why Parliament chose the language it did in s.187(9): to create discretionary jurisdiction in courts that is not fettered, for example, by the high standards required for establishing such torts as abuse of process in other contexts. What remains to be considered is the threshold level of the substantial injustice which will result in remedial action by the court. (ii)The Authorities The four cases cited by the Registrar establish that the threshold is crossed when the BIA is used for an improper purpose. An improper purpose is any purpose collateral to the purpose for which the bankruptcy and insolvency legislation was enacted by Parliament. Farley J. held in Dimples Diapers that: the Bankruptcy Act, R.S.C. 1985, c. B-3 has as its purpose the provision of ""the orderly and fair distribution of the property of bankrupt among its creditors on pari passu basis"". (L.W.Houlden and C.H.Morawetz, Bankruptcy Law of Canada, 3rd ed. (looseleaf) (Toronto: Carswell, 1989) at p. 1-3 [A&4].... In the cases cited the improper purpose takes the form of abuse of process or tortious behavior closely analogous to abuse of process. In each case the court reacted to what could be seen as substantial injustice. The remedy of choice arising under s. 43(7) is refusal of the petition. The appropriate remedy in the present case is rejection of the tainted votes. In vigorous judgment in Dimples Diapers Farley J. dismissed the bankruptcy petition because it was brought for an improper purpose, to recover the diaper trademark and business opportunity, and awarded damages for abuse of process and conspiracy against three creditors. He held at p. 219: .. The tort of abuse of process consists in the misuse of legal process for any purpose other than that which it was designed to serve. It is immaterial in establishing abuse of process that the process was properly commenced or founded by the defendants and it does not matter that the process be concluded in the instigator's favour. The improper purpose is the gravamen of liability. See Unterreiner v. Wilson (1982), 1982 CanLII 1814 (ON SC), 40 O.R. (2d) 197, 24 C.C.L.T. 54, 142 D.L.R. (3d) 588 (H.C.), at p. 203 [O.R.], appeal dismissed (1983), 1983 CanLII 1968 (ON CA), 41 O.R. (2d) 472, 146 D.L.R. (3d) 322 (C.A.), and J.G.Fleming, The Law of Torts, 7th ed. (Sydney: Law Book, 1987) at pp. 591-592. Potts J. In R. v. Cholkan Co. v. Brinker (1990), 1990 CanLII 6865 (ON SC), 71 O.R. (2d) 381, C.C.L.T. (2d) 291, 40 C.P.C. (2d) (H.C). at p. [C.P.C.] said: Most recently, Montgomery J. writing for the divisional Court in Bentham v. Rothbart (1989), 36 O.A.C. 13 (Div. Ct.), stated: The constituent elements of the tort of abuse of process are: (a) collateral improper purpose such as extortion; and (b) definitive act or threat in furtherance or purpose not legitimate in the use of the process. Montgomery J. was clearly using ""extortion"" as an example only. Any crime or tort would be an improper purpose. In de la Hooke the petition was dismissed when petitioning creditors, who had had no business dealings with the debtor, obtained an assignment of judgment debt he owed for the sole purpose of filing petition in bankruptcy to remove him as business competitor who was using similar trade name. Registrar Cook cited number of leading English cases relevant to the circumstances of the present appeal. These included King v. Henderson, [1898] A.C. 720 at p. 731 which considered abuse of process or fraud on the court; Ex Partre Griffin; in re Adams (1879), 12 Ch. Div. 480 in which worthless debt was purchased to take proceedings in bankruptcy to force the debtor to give up just debt, causing Brett L.J. to remark, ""a viler fraud have never heard of""; Ex parte Harper; In re Pooley (1882), 20 Ch. D. 585 at p. 692 in which buying debt to force bankruptcy in order to get rid of trustee was found ""a gross abuse of the bankruptcy laws;"" and In re Debtor [1928] Ch. 199 at p. 211 in which the bankruptcy laws were used for the collateral purpose of extortion. In Pappy's Good Eats petition was denied when three franchisees of the debtor, who were not creditors, contracted with the petitioning landlord who had $65,000 unsatisfied judgment against the debtor, to pay the landlord's costs to petition the debtor into bankruptcy so they would be relieved of obligations under their franchise agreements. Henry J. held the effect of the agreement was to ""embroil the petitioning creditor in the improper objective of the purchasers who as non-creditors have no status in these proceedings and are intermeddling in it. The whole proceeding is inescapably tainted; the petition must be dismissed."" He found that ""the abuse occurred when the parties agreed or arranged improperly to use the facility of the Act to advance the objectives of the franchisees to cause injury to the debtor."" In Shepard it was found that the purpose of the petitioner was to gain control over certain shares of the debtor, an important business advantage. ""It is not appropriate or indeed, correct in law, to have the courts facilitate such an objective when the objective is very clearly the main purpose of the application."" This finding is consistent with finding of substantial injustice resulting from abuse of process. (iii) The Present Case It is most significant that the appellant was not creditor of LaserWorks prior to the proposal. Intermeddling by strangers to the pre-existing debtor creditor relationship for an improper purpose was determinative factor in Pappy's Good Eats. The practice of buying dubious claims against an insolvent for purposes foreign to the bankruptcy process was denounced in the English cases cited in de la Hooke. The Registrar in the present case understandably looked askance at it. Few legitimate reasons come to mind for buying into bankrupt estate. When somebody does so, it is matter of common sense to assume, subject to correction, they intend to use the bankruptcy process for some purpose it was not meant for. In the present case it was readily apparent that mischief was afoot. The ""orderly and fair distribution of the property of bankrupt among its creditors on pari passu basis"" was not the purpose behind the acts of the appellant. The appellant made separate approaches to each of the eighteen creditors whose claims it succeeded in acquiring. It negotiated separate deal with each for varying considerations presumably seen to be more advantageous to the creditor than reliance on the proposal. From most of them it obtained an agreement, an executed assignment and proxy. It purported to vote the proxies of former creditors whose claims had been assigned to it. Its purpose was not an orderly recovery of debts from the debtors assets but to limit competition by the debtor in its own marketplace by rejecting the debtor's proposal and forcing it into bankruptcy. The appellant was acting on its own making sharp use of the provisions of the BIA for its own advantage. There was no evidence that the co-operating creditors were part of conspiracy with the appellant to injure the debtor. Otherwise the tort of conspiracy to injure could be found where the predominant purpose of the appellant's conduct is to cause injury to the plaintiff, whether the means used by the defendants are lawful or unlawful: Canada Cement LaFarge Ltd, v. British Columbia Lightweight Aggregate Ltd., [1983] S.C.C. 452. It is undeniable that the appellant caused injury to the debtor not negligently but deliberately. The debtor made its proposal to avoid bankruptcy; bankruptcy therefore must have been seen by Laserworks as more injurious alternative than acceptance of the proposal by the creditors. Laserworks had the heavy burden of persuading its creditors that their best interests lay in approving the proposal; it did not have the impossible burden of dissuading financially stronger competitor bent on using the provisions of the BIA to destroy it as competitor. The appellant derailed the proposal procedure to force the debtor into bankruptcy. Using bankruptcy to cause injury, thereby eliminating the debtor as an entity capable of competing in the marketplace, is abusive of the purpose of the BIA. It does not qualify as ""the orderly and fair distribution of (its) property."" Annihilation of an individual business or company may be an unfortunate consequence of bankruptcy, an unavoidable side-effect, but it is not the purpose of the BIA. Use of the Act to accomplish such an objective is in my view so abusive of the purpose of the legislation as to engage the supervisory jurisdiction of the courts under s. 187(9). It is substantial injustice to be remedied. No distinction in principle is possible between the present case and the four cited by the Registrar. He identified the problem and he applied the remedy. He was upheld on appeal in the Supreme Court. I would dismiss this ground of appeal. Class voting The Fourth Ground In upholding the Registrar Justice Stewart added string to his bow by introducing the class voting analysis of Viscount Haldane in British American Nickel. In light of the holdings respecting the second and third grounds of appeal, it is not necessary to the outcome to decide this ground. The appellant submits that the trial judge was wrong in concluding there was an abuse on minority of class of unsecured creditors and that duty in this respect was owed by the appellant: nan There was no abuse on minority of the unsecured creditors and no duty was imposed on the Appellant to cause votes to be cast in the best interest of the class. Without such duty the learned Judge was without authority to consider Datarite's motives and the votes in question should have been allowed. In British America Nickel Viscount Haldane stated that where power is conferred on special class, majority in exercising power to modify the rights of minority must exercise that power in the interests of the class as whole. nan But their Lordships do not think that there is any real difficulty in combining the principle that while usually holder of shares or debentures may vote as his interest directs, he is subject to the further principle that where his vote is conferred on him as member of class he must conform to the interest of the class itself when seeking to exercise the power conferred on him in his capacity of being member... In the present case the minority creditors saw their alternative of furthering their best interests by voting in favour of the proposal disappear when the votes amassed by the appellant were exercised, not in the interest of making the most favourable recovery from combination of distribution of the assets of LaserWorks and its continuance in business as customer or potential customer, but in the interests of removing competitor of Datarite. Justice Stewart was concerned that the other creditors, as well as the debtor, suffered from the abusive use of the provisions of the BIA. Of the sixteen creditors who did not assign their claims to Datarite, fourteen voted in favour of the proposal. The rationale for Viscount Haldane's conclusion in British America Nickel was carefully reviewed by Hardie Boys J. in Whiteman v. UDC Finance Ltd. The court found it should not intervene in the refusal of proposal by creditors including several who were being sued by the debtor, and who therefore had collateral interest in seeing him out of business. Hardie Boys J. cited the same passage quoted above by Justice Stewart from Vicount Haldane's judgment. It concludes that there is restriction on powers conferred on majority of special class in order to enable that majority to bind minority: .. They must be exercised subject to general principle, which is applicable to all authorities conferred on majorities of classes enabling them to bind minorities; namely, that the power given must be exercised for the purpose of benefiting the class as whole, and not merely individual members only. Hardie Boys J. considered Re Farmers' Co-operative, which was also cited by Justice Stewart, in which votes of several creditors who were competitors of the debtor were disallowed .. In later development of the same matter, but not now involving the Court's sanction under s. 205, Gallen J. accepted that the Court has an overriding control, not limited to the approval stage under s. 205, and may restrict right to vote where the equities of particular situation require it: see [1992] NZLR 348. It is unnecessary for present purposes to decide whether these cases were correctly decided, for even if they were, the principle is not of unlimited application, and does not apply to the exercise of voting rights generally. This is clear from what Viscount Haldane said in the British America Nickel case. Immediately after the passage already quoted, his Lordship said Subject to this, the power may be unrestricted. It may be free from the general principle in question when the power arises not in connection with class, but only under general title which confers the vote as right of property attaching to share. Thus in Pender v. Lushington (1877) Ch. D. 70, 75-76 Jessel MR said there is: no obligation on shareholder of company to give his vote merely with view to what other persons may consider the interests of the company at large. He has right, if he thinks fit, to give his vote from motives or promptings of what he considers his own individual interest. While the voting rights conferred by Part XV of the Insolvency Act are not akin to ""right of property attaching to share"", they are rights conferred without reservation. There is no requirement for class voting; there is instead general right conferred equally on all creditors. The rationale of the principle does not apply. It is well settled that the motive (short of fraud) of petitioning creditor, no matter how reprehensible, is irrelevant to his right to obtain an order of adjudication: King v. Henderson [1898] AC 720, Re King, ex parte Commercial Bank of Australia Ltd. (No. 2) [1920] VLR 490. The motive of creditor voting on proposal, really the other side of the coin to petition for adjudication, can be no different. That is not to say that there may be no remedy in an extreme case, such as fraud or mistake. But certainly where, as here, there are perfectly legitimate reasons for opposing the proposal, creditor is not to be denied that right because he may have some other motive as well... If the exception made for fraud is broadened to ""substantial injustice"" would take Hardie Boys J.'s conclusions to be fair statement of the law in Canada as well, as applied by Canadian courts in the cases cited by the Registrar. The New Zealand court included mistake as well as fraud as an exception. creditor is not to be deprived of the right to vote for wrongful motives alone; motive must be coupled with tortious act to support finding of improper purpose. Canadian case supporting broad interpretation of the right of creditors to vote on proposals is Re Bedard Louis Inc. (1991) 1991 CanLII 3533 (QC CA), 22 C.B.R. (3d) 218. The debtor sued three creditors who had sought to seize his goods before judgment for amounts far exceeding their claims against him. One creditor petitioned for receiving order, and the Quebec Superior Court rejected the debtor's argument that the petitioner was not creditor because of the large undecided actions. The debtor was declared bankrupt and later filed proposal. The trustee refused to let the three creditors vote at creditors' meeting considering the proposal because of possible conflict of interest. The Superior Court allowed an appeal against the trustee's decision, and the Quebec Court of Appeal upheld the Superior Court, holding (headnote) that: No provision of the Act authorizes the trustee to exclude creditor whom he considers to have conflict of interest. The debtor's action for damages against the creditors, which constituted debt not yet payable, did not strip the creditors of their status of ordinary creditors. By the proposal, the debtor presented the creditors with terms of payment which were different from those provided legally by contract. The Act was intended to allow the voting of all duly acknowledged creditors. Exceptions to that rule were properly specified in the Act and none of them pertained to creditor against whom debtor had filed legal proceedings. The Proposals Part of the BIA recognizes only two classes of creditors, secured creditors who are presumably protected by the security they hold, and unsecured creditors, all the others. This does not appear to meet Viscount Haldane's criterion of special class bound to exercise its voting rights for the benefit of the class as whole. That concept seems surplus to and difficult to reconcile with the scheme of the BIA where, as the Quebec Court of Appeal found in Bedard, all duly acknowledged creditors are entitled to vote as they please, subject to exceptions set out in the Act (and the exception for tortious or criminal behavior.) As remarked above, those exceptions reflect the manner in which Parliament dealt with conflicts of interest which might arise in the context of voting on proposals. Parliament has obviously legislated on the subject and cannot be assumed to have created by implication an exception for general, unspecified, conflicts of interest. The mere fact that creditor is also competitor of the debtor or otherwise in conflict of interest with the debtor does not give rise to statutory exception. The scheme for protecting minority creditors adopted under the BIA was not class voting concept but rather system of specific exceptions coupled with discretionary power in the courts to remedy substantial injustice. It is not necessary to make final determination on this point. The rational of Justice Stewart's decision is found in her adoption of the Registrar's conclusions as to improper purpose in the following passage: The applicant is not entitled to use its votes to achieve this improper purpose. The Registrar's decision prevents an abuse on minority of the class of unsecured creditors and in so doing upholds fundamental and viable in the circumstances principle of class voting. He did not err in concluding improper purpose is relevant. That is, while the Registrar's decision was consistent with considerations of class voting, he was upheld on his findings of improper purpose. I would dismiss the fourth ground of appeal. Conclusion The appellant attempted to abuse the provisions of the BIA by using them to intermeddle for an improper purpose with the proposal of a debtor to its creditors, giving rise to a substantial injustice. This affected not only the debtor but the remaining creditors who supported the proposal. The Registrar made no error in discerning this from the evidence and in exercising the court's discretionary jurisdiction to remedy substantial injustice. He was upheld on appeal to the Supreme Court. The appellant's actions are not to be condoned. I would dismiss the appeal with costs which I would fix costs at $3,000 plus disbursements to the Respondent and $3,000 plus disbursements to the Trustee. Freeman, J. A. Concurred in: Pugsley, J.A. J.A. 1997 B19853 IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY IN THE MATTER OF the Proposal of Laserworks Computer Services Inc. -and- IN THE MATTER OF Section 194(2) of Bankruptcy and Insolvency Act, &S.C. 1985, c.B-3 and IN THE MATTER OF an appeal by 3004876 Nova Scotia Limited DECISION HEARD: at Halifax, Nova Scotia, before the Honourable Justice Margaret J. Stewart on June 24, 1997 DECISION: August 13, 1997 COUNSEL: Michael, S. Ryan, Q.C. Counsel for the Appellant, 3004876 Nova Scotia Limited Roy F. Redgrave Counsel for the Laserworks Computer Services Limited D. Bruce Clarke Counsel for McCuaig Company Inc., Trustee under Proposal C.A. No. 141313 NOVA SCOTIA COURT OF APPEAL BETWEEN: 3004876 NOVA SCOTIA LIMITED -and- LASERWORKS COMPUTER SERVICES INC. Respondent REASONS FOR JUDGMENT BY: Freeman, J.A.","The respondent made a proposal to its creditors under the provisions of the Bankruptcy Act. A competitor, operating through the appellant company, acquired the claims of 18 creditors and voted them over the objections of the respondent at a meeting of the creditors, defeating the proposal. Only two of the 16 remaining creditors opposed the proposal. The Registrar disallowed the appellant's votes, and found the proposal had been accepted by the votes of the remaining creditors. The Supreme Court upheld the decision. The appellants appealed. Dismissing the appeal, that the appellant attempted to abuse the provisions of the Act by using them to interfere for an improper purpose with the proposal of a debtor to its creditors. The Registrar made no error in discerning this from the evidence and in exercising the court's discretionary jurisdiction to remedy this substantial injustice.",e_1998canlii2550.txt
238,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 35 Date: 20110315 Between: Docket: CACV 2053 George Forrester, Phillip Scott, Keith Bowers and R. Gary Cooper Applicants (Proposed Appellants) (Defendants) and University of Saskatchewan Respondent (Proposed Respondent) (Plaintiff) Before: Richards J.A. (in Chambers) Counsel: Timothy P. Ryan for the Appellants Michelle J. Ouellette, Q.C. for the Respondent Application: From: 2011 SKQB 55 (CanLII) Heard: March 9, 2011 Disposition: Leave to appeal granted Written Reasons: March 15, 2011 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [1] The Applicants, George Forrester, Phillip Scott, Keith Bowers and R. Gary Cooper (the “Applicants”) are defendants in an action commenced by the Respondent, University of Saskatchewan. They applied to have the University’s claim against them dismissed for want of prosecution but were unsuccessful. They now seek leave to appeal that decision. II. Basic Background [2] The relevant background facts are set out in the decision of the Queen’s Bench Chambers judge now reported at 2011 SKQB 55 (CanLII). will outline only their key features. [3] The Applicants were partners in an architectural firm that provided design drawings and specifications for the construction of the Education Building on the University of Saskatchewan campus. The building was substantially complete by 1970. [4] In 1985, some of the stone panels on the exterior of the building fell to the ground. [5] In 1986, the University commenced an action against its insurer for coverage of the loss. In 1991, in order to preserve the University’s right to relief, the insurer commenced an action against the Applicants as well as against Cana Construction Co. Ltd., Haid Construction Ltd. and Con-Force Structures Limited. With respect to the Applicants, the University alleged that its loss occurred as result of their negligent design efforts. [6] The litigation between the University and its insurer moved forward. However, it was not resolved until 1997 when this Court held there was no coverage. [7] As result, the University did not assume control of the action in issue here until 1998. The Chambers judge summarized what happened between 1998 and today in these terms: [7] At that point the insurers no longer had an interest in this action, but the University did. Accordingly, the University assumed control of this action in February of 1998. The following steps took place in 1998 and in 1999: (a) In early March 1998 the University served Notice of Intention to Proceed. (b) Throughout much of the rest of 1998 the parties delivered various defences, cross-claims and statements as to documents. (c) In November 1998 the University's counsel conducted examination for discovery of Cana's proper officer. (d) Through the rest of 1998 and up to March 1999 the parties delivered various particulars, defences and responses to undertakings. [8] Following March of 1999 no progress was made in the action until 2005. The following occurred beginning in late 2005: (a) In November 2005 the University obtained an appointment for the examination for discovery of Phillip Scott, one of the defendants Forrester, Scott, Bowers and Cooper (""the architects""). (b) In February 2006 the University's counsel conducted examination for discovery of Phillip Scott. (c) In April 2006 the University's counsel conducted examination for discovery of Keith Bowers and Gary Cooper. (d) In September 2006 the architects' counsel conducted examination for discovery of the University's proper officer. (e) In 2007 the University and the architects delivered responses to undertakings given at examination for discovery, and the University delivered revised statement as to documents. (f) In 2008 the University and the architects agreed to request that judge of this court preside over negotiation session, for the purpose of exploring settlement. (g) In August 2008 the University and the architects filed ""Joint Request for Post-Pleadings/Pre-Trial Conference"" that had been completed and executed on behalf of the University and the architects. conference date was set by the local registrar. Before the conference was conducted, the University invited Cana to attend as well. (h) On February 5, 2009 conference was convened by judge of this court. It was attended by representatives of and counsel for the University, the architects and Cana. The conference was adjourned for additional exchange and gathering of information. (i) The conference was reconvened on July 26, 2010, with the same participants. No resolution was achieved. III. The Queen’s Bench Decision [8] In September of 2010, all of the defendants moved to have the University’s claims against them dismissed for want of prosecution. [9] The Chambers judge struck the claims against all of the defendants but the Applicants. [10] In considering the situation of the Applicants, the Chambers judge concluded that the delay from 1991 to 1998 (when the University’s insurer was prosecuting the action) was not problematic. However, he said the delay from 1999 to 2005 was both inordinate and inexcusable. [11] That done, the Chambers judge nonetheless concluded it was not in the interests of justice that the action be struck for delay. In arriving at this result, he emphasized three considerations: (a) the litigation had progressed to late stage, (b) the action had been pursued in timely manner since 2005 and the Applicants had participated in those proceedings, and (c) the lack of availability of people connected with the Applicants’ design work was not overly significant because the University’s negligence claim would be resolved at trial on the basis of documents and expert testimony. [12] The test for determining whether to grant leave to appeal is well known and there is no need to repeat it. See: Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask. R. 121 at para. 6. The test involves consideration of both the merits of the proposed appeal and its importance. [13] As to the issue of merits, the Applicants say the Chambers judge erred in several respects. They stress that (a) he treated them inconsistently by striking the claim against Cana Construction Co. Ltd. even though it too had progressed to a very late stage in the litigation, (b) he improperly discounted the fact that many of their key witnesses would be unable to testify due to death or mental and physical disability and failed to properly assess the prejudice that they would suffer if they are forced to proceed to trial, (c) he improperly discounted the problems they will face in obtaining appropriate expert evidence so many years after the work in issue was done, (d) more specifically, he wrongly discounted the importance of their difficulty in finding expert witnesses by saying the University would face the same problems, and (e) he failed to give sufficient or any weight to the overall delay, i.e. from 1991 to 2010, in considering whether it was in the interests of justice for the case to proceed to trial. With respect to the importance of the appeal, the Applicants say it will be useful for this Court to refine what it said in International Capital Corp. v. Schafer, 2010 SKCA 48 (CanLII), [2010] W.W.R. 407 about dismissing claim for want of prosecution. They stress, of course, that an appeal would potentially be determinative of the claim against them. [14] For its part, the University submits that the proposed appeal has little merit. It says the Chambers judge identified and applied the proper principles of law as set out in International Capital Corp. It submits, as well, that the Chambers judge considered the relevant evidence and acted judicially, arriving at decision which is neither unjust nor clearly wrong. Accordingly, in light of the deferential standard of review applicable to proceedings such as the one in issue here, the University contends the Applicants’ proposed appeal is destined to fail. It also says the appeal is of no general importance and will have no implications beyond the facts of this case. [15] The standard of review applied in respect of decisions such as the one in issue here will present some difficulty for the Applicants on appeal. Nonetheless, I am persuaded there is enough merit in their position to warrant granting leave. As matter of first impression only, arguments (a) and (b), summarized above in para. 13, appear to be of particular interest. Given my ultimate conclusion with respect to this application, will refrain from saying more about the substance of the Applicants’ arguments or about the University’s position in response to them. [16] am also persuaded that this appeal is of sufficient importance to warrant the attention of the Court. Granted, like all cases, it is grounded in its own facts but this does not necessarily mean it will be of no larger jurisprudential significance. The issue of delays in litigation is important and this case appears to present some opportunity for this Court to clarify the legal framework relating to such matters. [17] All of that said, appreciate there is an arguable irony in decision granting leave to appeal in case like this because the appeal itself will cause additional delay. However, this appeal is not particularly complex and it should be capable of resolution within reasonably short timeframe. Having been granted leave to appeal, expect the Applicants to move the proceedings forward with dispatch. V. Conclusion [18] Leave to appeal is granted. Costs will be in the discretion of the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of March, A.D. 2011. “RICHARDS J.A.” RICHARDS J.A.","The applicants applied for leave to appeal from a Chambers decision denying their application to dismiss the respondent's claim against them for want of prosecution. The applicants were partners in an architecture firm that provided design drawing and specifications for the construction of the Education Building at the University of Saskatchewan. The building was substantially completed in 1970. In 1985, stone panels fell off the exterior of the building. In 1986 the respondent commenced an action against its insurer for coverage of the loss. In 1991, the insurer commenced an action against the applicants in order to preserve the respondent's right to relief. In 1997, the Court determined the respondent was not entitled to coverage from its insurer. The respondent commenced control over the litigation against the applicant in 1997. Between 1997 and 2010, documents were exchanged, discoveries were held and an unsuccessful settlement negotiation was held. In 2010 all of the defendants applied to have the respondent's claim dismissed for want of prosecution. The Chambers judge struck the claims against all the defendants except the applicant. HELD: Leave to appeal was granted because there was some merit to the applicant's arguments that they had been treated inconsistently and that key witnesses were no longer available to testify because of death or mental or physical disability, which would prejudice the applicant. Secondly, the issue of delays in litigation is important and the case will present an opportunity for the Court to clarify the legal framework pertaining to such matters.",8_2011skca35.txt
239,"J. 1999 SKQB 60 Q.B.G. A.D. 1999 No. 639 929 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DANIEL TAPP and 626170 SASKATCHEWAN LTD. and WILLIAM KURK and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION GARNISHEE(RESPONDENT) and A.K. EUTENEIER SONS TRUCKING LTD. RESPONDENT D.S. Tapp for Daniel Tapp G.J. Moran for the Director of Labour Standards JUDGMENT MacDONALD J. September 9, 1999 [1] The plaintiff, Daniel Tapp (""Tapp""), is a practising lawyer in the Province of Saskatchewan. On March 4, 1999, Tapp commenced an action against the defendant, 626170 Saskatchewan Ltd. for fees and disbursements in the amount of $4,647.85. [2] On March 9, 1999, Tapp obtained a garnishee summons issued prior to judgment against the said defendant and served it on Saskatchewan Property Management Corporation (""SPMC""), the proposed garnishee. [3] As a result of that garnishee, the sum of $337.46 was paid into court on April 26, 1999, to the credit of Q.B.G. 639 of 1999. On April 13, 1999, an application was made by SPMC on Q.B.G. 969 of 1999 for an order pursuant to Rules 411 and 415(1) of the Queen's Bench Rules of Court that the sum of $2,521.68 and any further amounts due and owing from SPMC to the defendant company be paid into court and disposed of as the court may direct in full satisfaction of SPMC's obligations to the various parties who may have had a claim against the money. That order was granted by Justice Wright together with costs of the application to SPMC to be taxed. [4] Prior to the application the sum of $2,521.68 had been paid into court on March 30, 1999, on Q.B.G. 929 of 1999 and an additional amount was paid in on that file number on April 26, 1999, in the amount of $968.39. As of that date total of $3,827.53 was paid into court on these two files. [5] On April 29, 1999, the Labour Standards Branch filed notice with the registrar of the Court of Queen's Bench of their claim with respect to potential wage claims owing by the defendant company to its employees pursuant to s. 54 of The Labour Standards Act, R.S.S. 1978, c. L-1. [6] On May 27, 1999, Tapp obtained default judgment against the defendant in the amount of $4,646.85. Tapp then made an ex parte application on May 28, 1999, for payment out of the moneys which had been paid into court by SPMC. The court, however, in view of the third party claim by the Director of Labour Standards directed that the application for payment out should be made by notice of motion and that all parties interested in the funds should be served. [7] Tapp then served all of the various parties potentially interested in the moneys with the notice of motion and the matter was heard on June 17, 1999, in Chambers. On that date the only parties to appear were Tapp in person and counsel for the Minister of Labour. No one appeared on behalf of the other parties. The matter was reserved for decision on that date. At the time of the application for payment out the Minister of Labour had not obtained judgment against the defendant company and there was no certificate of the Minister on file. However, this was later obtained and filed with the local registrar at the judicial centre of Regina on July 12, 1999. [8] Although I agree with counsel for the Minister of Labour that the moneys paid into court according to the decision in the Polyco Window Manufacturing Ltd. v. Prudential Assurance Co., 1994 CanLII 5009 (SK QB), [1994] 5 W.W.R. 659 (Sask. Q.B.) create a fund from which creditors must be paid; in this instance however, the claim by the Minister of Labour as of the date of the application was not a proven claim. No certificate had been issued and no judgment had been entered as of that date. A judgment by Tapp had been filed in May, 1999, so that on June 17, 1999, he was the only party entitled to the moneys. [9] The claim by the Minister of Labour with respect to the funds paid into court as of the date of the application is therefore dismissed. The applicant/plaintiff, Daniel Tapp, shall therefore have payment out to him of all moneys paid into court by Saskatchewan Property Management Corporation with respect to Q.B.G. 639 of 1999, and Q.B.G. 929 of 1999, together with accrued interest less that amount which was previously ordered paid out as costs to SPMC by Justice Wright in the amount of $324.33.","The plaintiff lawyer commenced an action for fees and disbursements in the amount of $4,647.85. The proposed garnishee, SPMC, paid $337.46 into court and brought an application for an order pursuant to Rules 411 and 415(1) of the Queen's Bench Rules of Court. An order that any further amounts due and owing from SPMC to the company be paid into court to be disposed as directed by the court was granted with taxed costs to SPMC. Labour Standards filed notice of potential wage claims. The plaintiff obtained default judgment and made an ex parte application for payment out of the monies paid into court by SPMC. HELD: The applicant/plaintiff was to be paid all monies paid into court by SPMC with respect to the two files together with accrued interest less the amount previously paid out. The claim by the Minister of Labour was dismissed. Although the monies paid into court according to the decision in Polyco Window Manufacturing Ltd v. Prudential Assurance Co create a fund from which creditors must be paid, the claim by the Minister of Labour as of the date of the application was not a proven claim. No certificate had been issued and no judgment had been entered as of that date. A judgment had been filed by the plaintiff. He was the only party entitled to the monies.",c_1999skqb60.txt
240,"SUPREME COURT OF NOVA SCOTIA Citation: Smith v. Department of Community Services, 2009 NSSC 86 Date: 20090305 Docket: Hfx 301934 Registry: Halifax v. The Department of Community Services (Income Assistance) Respondent Judge: The Honourable Justice N. M. Scaravelli Heard: March 5, 2009, in Halifax, Nova Scotia Counsel: Andrew Pavey, for the Applicant Terry D. Potter, for the Respondent By the Court: (Orally) [1] This matter involves an application under Civil Procedure Rules (1972) for an Order in the nature of Mandamus compelling the Respondent, Department of Community Services to comply with an Order of the Income Assistance Appeal Board, dated September 17th, 2007. Carl Smith, the Applicant, is disabled and has been long term recipient of income assistance benefits from the Department of Community Services. [2] Mr. Smith’s income assistance was terminated in May 2006 due to failure to disclose requested information. He re-applied for income assistance in may 2007. His application was again denied based on failure to provide requested information. He appealed the decision and the appeal was heard by the Assistance Appeal Board on September 6, 2007. The Board allowed the appeal and found that Mr. Smith was “a person in need” as defined in the Employment Support and Income Assistance Act (ESIA). The Board ordered that his assistance was to be effective the date that he was assessed which was June 27, 2007. [3] Rather than comply with the Board’s decision, the Department of Community Services in October 2007, requested further financial information from Mr. Smith. The reason, as stated in the Affidavit of Mr. Thompson, income assistance case worker, was that “after having the opportunity to review in detail the documents presented at the hearing, number of questions arose about Mr. Smith’s income, which is another important aspect of eligibility.” [4] Mr. Smith refused to comply with the request. As result on December 6th, 2007 the Department sent notice of ineligibility to Mr. Smith based on non-disclosure. Mr. Smith originally intended to appeal the Department’s decision. series of correspondence followed between Mr. Smith’s counsel and Department of Community Services. Ultimately the Department was provided further information and Mr. Smith’s eligibility was reinstated from October 27th forward. However, the Department continues to refuse to reinstate eligibility from June 27th to September 7th as period covered by the Order of the Assistance Appeal Board. [5] The issue is whether the Court should grant an Order in the nature of Mandamus compelling the Respondent to implement the Appeal Board’s decision awarding the Applicant benefits from June 27th to September 30th , 2007. [6] Our courts have repeatedly adopted the criteria from Rawdon Realties Limited v. Rent Review Commission (1982), 56 N.S.R. (2d) 403 (N.S.T.D.), where the court stated: In order for mandamus to lie, or an order in the nature Mandamus to lie, there must be: 1. Standing, sufficient legal interest in the parties making the application. 2. No other legal remedy, equally convenient, beneficial and appropriate. 3. duty to the applicant by the parties sought to be coerced to do the act requested. 4. The duty owed must not be of one of discretionary nature but may be established either at common law or statute. 5. The act requested to be done must be required at the time of the application, not at some future date. 6. There must be request to do the act and that request must have been refused. [7] The Respondent’s position with respect to not complying with the decision of the Appeal Board is that the basis for granting the appeal was that the Applicant did not have the assets as alleged by the Department. That following the decision of the Appeal Board, the Department reviewed the documentation provided at the appeal hearing which the Department says, raised concerns about the applicant’s income. Therefore, it is argued, the Department was entitled to request further information regarding Mr. Smith’s income regardless of the decision of the Appeal Board. [8] As stated in the respondent’s brief: While the appeal board may have determined the applicant’s eligibility within the context of the information before it, the appeal board decision does not conclude the issue of eligibility. In this case, the department clearly had the right to request additional information from the applicant; especially when presented with new information at the appeal hearing that raised questions about the applicant’s finances. [9] As for the criteria for granting an order for mandamus, the Respondent’s position is that the Applicant has another legal remedy than mandamus which is an appeal of the Respondent’s most recent decision on eligibility. [10] The ESIA defines person in need as follows: 3(g) ‘person in need’ means person whose requirements for basic needs, special needs, and employment services as prescribed in the regulations exceed the income, assets and other resources available to that person as determined pursuant to the regulations. [11] The effect of an Appeal Board decision is set out at Section 14 of the Assistance Appeal Regulations. Effect of appeal decisions 14(1) decision of an appeal board binds both the appellant and the minister; (2) an appeal board decision is retroactive to the date of the decision that is being appealed. [12] The Respondent’s position appears to be that it can ignore an Appeal Board decision simply by demanding further information even when the Appeal Board has made finding on eligibility. The determination that Mr. Smith was person in need meant that he met the criteria set out in the definition that included his income assets and other resources available at the time. This information was produced at the appeal hearing. The Respondent did not request an adjournment to examine financial information. Moreover, the Respondent did not seek judicial review of the Appeal Board decision. Nowhere in the Act or Regulations is there provision providing the Respondent is permitted to make further requests for information relating to the very subject matter the Appeal Board was dealing with. Accepting the Respondent’s position would create situation where the Appeal Board’s decision would not bind the Department if the Department chooses to request further information. The actions of the Respondent following the Appeal Board decision amounted to determination that the Appeal Board was wrong to make its decision as result of lack of more information regarding Mr. Smith’s income. [13] If the Respondent had the right to ignore decisions of the Appeal Board, the Appeal Board’s function would be meaningless. [14] In Dewolf v. Halifax City) (1979), 1979 CanLII 2633 (NS SC), 37, N.S.R. (2d) 259: 19 It seems to me that there was clear legal right established to have the decision of the Appeal Board enforced. The respondents have argued that the decision of the Appeal Board derogates from the requirements of the Act and the Regulations in that the Appeal Board failed to properly exercise its judicial functions under the Act in making determination of whether the DeWolf's were ‘persons in need’ under the Social Assistance Act. Since the board so erred, the respondents argue that the provisions of regulation 36 would apply and that the Director and the Social Services Committee were entitled to implement the decision in accordance with the provisions of the Act and the Regulations. Even if it meant in this case complete refusal and rejection of the Appeal Board's decision. 20 cannot accept this argument because it would mean that the establishment of the Appeal Board would be meaningless. If the findings of the Appeal Board as established were subject to acceptance or rejection by that group which it was intended should implement those findings, then the whole system would break down and the appeal board would serve no useful prupose [sic] at all. cannot believe that the intent of the legislation was to set up an Appeal Board whose decisions could be totally ignored. 21 It is my feeling that Regulation 36 was designed to apply to procedural matters where the Appeal Board perhaps made an Order providing for benefits in excess of that allowed by the Act and the Committee would adjust the benefits to fit the legislation. Insofar as the basic finding of the Appeal Board is concerned however, it seems to me that the Director and the Social Services Committee were bound by that decision and are bound by the regulations to implement that decision subject to any action the Committee might take to question the decision of the Board by way of perogative writ. 22 have no difficulty in interpreting Regulation 36 as providing the authority to the director and the social services committee to vary an Order of the Board in certain procedural details in its implementation of that Order, but not as authority to reject the entire finding of the Appeal Board because the Committee does not agree with it. [emphasis added.] [15] The same reasoning applied by Glube, C.J.S.C. (as she then was) in Parker v. Campbell; Parker v. Director of Family Benefits (N.S.) (1987), 80 N.S.R. (2d) 361; 1987 Carswell NS 262 (S.C.T.D.): 15 The Director in the present case has taken it upon himself to decide that the finding of the Appeal Board is wrong. The DeWolf case held the Director may review for procedural errors only and may not review the Board's findings of fact or law. If the Director disputes the Appeal Board's decision, the remedy is to make an application for an order in the nature of certiorari. It is not for the Director to unilaterally decide that review board's decision fails to comply with the Act or Regulations. That is for the court to determine. 16 Until higher court declares otherwise, am bound by the decision in DeWolf as is the Director whose only discretion is if the Appeal Board makes procedural error. Such was not the case in the case at bar. When the Director takes it upon himself to overrule decision of an Appeal Board, he is denying the applicant the right to natural justice by taking away the applicant's right to make submissions and to be heard. [16] While the above cases were decided under different statutory scheme, these cases provide strong basis upon which to conclude that mandamus is available in circumstances similar to that present in this application. [17] reject the Respondent’s submission that the appropriate remedy for the Applicant is to appeal the Department’s most recent decision on eligibility. In fact the Respondent refused to comply with the decision of the Appeal Board and the Applicant should not be required to appeal the Respondent’s refusal to abide by an existing appeal decision. As to the other requirements of mandamus; the Applicant has a legal interest in the outcome of the proceeding; the duty to the Applicant arises from the Appeal Board’s decision which binds the Respondent as per the regulations; the regulations also confirm the Respondent has no discretion, either as to whether the decision is binding generally or as to the time period effected. As to timing, the Act was required to be done when the Appeal Board released its decision, retroactive to June 2007. [18] As to the requirement that request be made, although the Applicant provided further information to the Respondent, he was consistent in his demand that the Respondent comply with the Order of the Appeal Board with respect to assistance effective June 2007. [19] Accordingly, the Court will grant the application for an Order in the nature of Mandamus compelling the Respondent to implement the Appeal Board’s decision of September 2007. The Applicant shall have costs in the amount of $750.00 exclusive of disbursements.","The applicant applied under the Civil Procedure Rules (1972) for an order of mandamus compelling the respondent department to comply with a prior order of the Income Assistance Appeal Board. The applicant was denied income assistance for failure to supply requested information. He appealed the decision and the appeal board ordered his income assistance be reinstated. The respondent refused to reinstate assistance and made a request for additional information. Eventually, the applicant supplied the requested information and his assistance was reinstated. He sought retroactive amounts for the period falling between the appeal board's order and the time of reinstatement. Order granted, costs to the applicant in the amount of $750: assistance to be reinstated retroactively according to the time frame ordered by the appeal board. The respondent's argument that the applicant should be required to appeal their most recent decision on eligibility must be rejected. It would not be appropriate to require the applicant to appeal the respondent's refusal to abide by an existing appeal decision. To allow the respondent to ignore the appeal board's ruling and request additional information effectively undermines the appeal board's authority and makes a ruling by them meaningless. As for the other requirements for mandamus, the applicant had a legal interest in the outcome of the proceeding, the duty to him arose from the appeal board's decision, and the relevant Regulations (see Assistance Appeal Regulations, s. 14) confirm the respondent had no discretion to refuse to implement the appeal board's decision or to change the time period referenced in that decision.",2009nssc86.txt
241,"S.C.A. No. 02548 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Hallett and Chipman, JJ.A. BETWEEN: STEPHEN LEWIS JENKINS and CHERYL ANN JENKINS Respondent Darrell E. Dexter and M. Jean Beeler for the Appellant Deborah I. Kitson‑Conrad for the Respondent Appeal Heard: April 14, 1992 Judgment Delivered: April 14, 1992 THE COURT: The appeal is dismissed as per oral reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Hallett, J.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: This is an appeal from corollary relief judgment of Mr. Justice Richard dividing matrimonial assets and from an order for support of the children of the marriage, with respect to its effective commencement date. Mr. Justice Richard divided the matrimonial assets equally. The appellant, the husband, contends that he should have included in those assets money manager bank account. The account was in the wife's name alone and was valued at $5,961.20 at the time of separation. By the time of trial, this balance was reduced to approximately $100.00. The wife\'s testimony was ‑that when she went back to work, the marriage was in difficulty and that it was unlikely that the parties would be staying together. Her uncontradicted evidence was that it was agreed by the parties at that time that what she made should be hers. She was attempting to save money to cover legal costs and additional expenses respecting herself and the children. Some of the money was used to purchase furniture. The trial judge observed in his decision that the furniture had already been divided equally by the parties and did not require consideration by him. We are satisfied that the trial judge did not err in not finding that this spent money should be included in the division, in the unusual circumstances of this case. Mr. Justice Richard fixed the support for the children at $1,000.00 per month and set the effective date retroactively to March 1, 1991. The appellant seeks an earlier effective date so that he can obtain income tax deductions for certain monies which he said he paid prior to March 1, 1991 covering largely expenses relating to the matrimonial home in which the wife was living with the children. We see no error on the part of Mr. Justice Richard in exercising his discretion to fix the effective date of the order as March 1, 1991. The appeal is dismissed, in the circumstances with costs, which we fix at $750.00, plus disbursements to be taxed. J. A. Concurred in: Clarke, C.J.N.S. Hallett, J.A. CANADA PROVINCE OF NOVA SCOTIA 1991 1201‑043175 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CHERYL ANN JENKINS Petitioner ‑and- STEVEN LEWIS JENKINS Respondent HEARD BEFORE: The Honourable Mr. Justice K. Peter Richard PLACE HEARD: Halifax, Nova Scotia DATES HEARD: February 18, 1991 COUNSEL: Ms. Deborah Conrad, for the Petitioner Mr. Darrell Dexter, for the Repondent S.C.A. No. 02548 IN THE SUPREME COURT OF NOVA APPEAL DIVISION BETWEEN: STEPHEN LEWIS JENKINS and CHERYL ANN JENKINS Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A. (Orally)","The trial judge's decision fixing a retroactive effective date for child support was also upheld as there was no error on the part of the trial judge in fixing the date.,the Appeal Division upheld the trial judge's decision which did not include in the division of matrimonial assets a bank account held in the wife's name alone where the uncontradicted evidence of the wife was that the spouses had agreed when the wife went back into the work force that anything she earned would be hers. At the time of this agreement the marriage was already in difficulty.",7_1992canlii2622.txt
242,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 397 Date: 2007 11 01 Docket: Q.B.G. 1807/2005 Judicial Centre: Regina BETWEEN: KUSY’S ELECTRIC LTD. and TIM SULLIVAN, SULLIVAN INSTRUMENTATION INC. and POTASH CORPORATION OF SASKATCHEWAN Counsel: Paul J. Harasen for the plaintiff Neil B. Fisher for the defendant, Potash Corporation of Saskatchewan Inc. J. Paul Malone for the defendants, Tim Sullivan and Sullivan Instrumentation Inc. JUDGMENT McLELLAN J. November 1, 2007 [1] The plaintiff claims damages against the defendant Potash Corporation of Saskatchewan Inc. (“PCS”) for breach of contract whereby the plaintiff was to supply electricians to perform work at its potash mine at Rocanville, Saskatchewan. (the “mine”) [2] The plaintiff also claims damages against the defendants Tim Sullivan and Sullivan Instrumentation Inc. (collectively called “Sullivan”) for breach of an employment contract when Sullivan was employed by the plaintiff to perform services for PCS at the mine. [3] PCS entered into contract with the plaintiff on February 16, 2005 for term of two months. The plaintiff was to supply two instrument technicians to perform electrical instrumentation work at the mine. The contract was extended by PCS in mid April and then again in June until the end of September, 2005. [4] The plaintiff alleges that the contract was extended for further three months from September 30 until the end of December 2005. PCS disputes that claim. [5] Sullivan worked for the plaintiff at the Saskferco plant at Belle Plaine from August 2003 until February 2005 at which time he agreed to work for the plaintiff at the PCS mine. He worked there until September 29, 2005. Sullivan met with Darrell Kusniak (“Kusniak”) in the summer of 2005 in Regina and at that time informed Kusniak that he was leaving his company and going into business on his own at the end of September. [6] Kusniak disagrees with that but prefer Sullivan’s account of the meeting. [7] In addition to Sullivan the plaintiff hired Compton Bird (“Bird”), an apprentice instrumentation mechanic to work at the mine site. Bird left his employment with the plaintiff on August 31, 2005 (the plaintiff was not able to find replacement for Bird) which left Sullivan as the sole employee at the mine. [8] Kusniak claims that on September 20, 2005 he received telephone call from Darren Green (“Green”) who was the instrumentation supervisor of PCS at the mine extending the contract for further three months until the end of December 2005. [9] Green’s version of that conversation differs from Kusniak. He claims that during the telephone call with Kusniak he said words to the effect “if need someone from the end of September to the end of December, would you be able to supply someone?” [10] At the time he made the telephone call Green was aware that Bird had left the plaintiff’s employ and had not been replaced. He also knew that Sullivan was leaving employment with the plaintiff. [11] Green pointed out that he advisedly used the word “if” because the usage of outside contractors had gone on for much longer than had been originally anticipated and he did not, nor was he certain he would ever get, authorization to continue to utilize outside contractors. PCS had, on its permanent staff, individuals to do the type of work which was being done by the plaintiff. The decision to hire outside contractors past September 30th would be made by Joseph Fortney (“Fortney”), the General Manager of Operations for PCS at Rocanville. [12] Kusniak went on trip to British Columbia on September 27th and did not return until October 2nd. [13] He knew that PCS might need two outside electricians by October 3rd. Before leaving for British Columbia he had telephoned the union hall and was informed they could not supply any workers. He knew Sullivan was leaving at the end of the month. He claimed he could have moved people from Saskferco to do the job for PCS. He was charging Saskferco the same hourly rates that he was charging PCS. It seems highly unlikely that he would jeopardize that contract which he had for some time to obtain contract for three months without any additional profit. He agreed that he had never spoken to any other employees about going to Rocanville. [14] Kusniak’s credibility was seriously damaged when he suggested that the contract had been extended and yet had made no arrangements to have electricians available to be at Rocanville on October 3rd. Sullivan had faxed his time sheet to the plaintiff on September 22 and added handwritten note asking for his Record of Employment. Even if had accepted Kusniak’s version of the meeting with Sullivan in Regina he would have known at that time that Sullivan was leaving his employ. [15] When consider all the evidence accept Green’s version of the telephone call and as result find that the contract between the plaintiff and PCS was never extended past September 30th. The claim against PCS is therefore dismissed. [16] Sullivan incorporated his company on September 14, 2005 and at that time started to consider other opportunities. He knew the plaintiff’s contract with PCS was expiring at the end of September, 2005 so he made proposal on September 19 on behalf of his company to PCS to do instrumentation work for it. He was advised on September 21 that his proposal was rejected. He revised his proposal and submitted new proposal on September 26, 2005. [17] Fortney made the decision to hire outside electricians past September 30th on September 26th. He knew, at that time, that Sullivan was leaving the employ of the plaintiff. He realized that it would be more cost effective and quicker to have Sullivan complete the work. Sullivan had already had all safety orientations, was familiar with the site and the PCS employees and would have no learning curve to negatively offset productivity. IV [18] The only remaining sole issue is whether Sullivan breached his employment contract by submitting a proposal to PCS when he was still employed by the plaintiff. [19] The law is well settled that an employee is under an implied obligation not to compete with an employer during the term of his or her employment. Although Sullivan had given notice that he would no longer work for the plaintiff after September 30th he was still employed at the time he made his proposal. [20] find nothing wrong with Sullivan setting up his corporation with view to starting competitive business after his employment with the plaintiff ended. An employee must be free to plan his future after his employment with his employer ends. He did not prepare the proposals during working hours. He prepared them with the assistance of his wife, when he was off work in Regina. [21] However the B.C. Court of Appeal in the case of Restauronics Services Ltd. v. Forster 2004 BCCA 130 (CanLII); [2004] 5 W.W.R. 233; 239 D.L.R. (4th) 98 held that an employee who submitted a bid for a food services contract in competition to her employer during a period of working notice was in breach of her employment contract. [22] The facts in that case are summarized in the headnote as follows: The plaintiff was engaged in the business of providing institutional cafeteria services. It had employed the defendant as regional director. On July 26, 1995, the plaintiff gave the defendant two months’ working notice. In the course of her duties, the defendant had compiled information used by the plaintiff in bid to provide cafeteria services to the Burnaby Correctional Centre for Women (“BCCW”). In August 1995, in the course of renegotiating the prices for the BCCW contract, the defendant had attended meeting between the plaintiff and BCCW and advised that the plaintiff should maintain its prices. The plaintiff refused and so the BCCW issued request for proposal. The defendant, through company she incorporated, submitted bid for the BCCW contract on September 25, 1995. The defendant’s company was the successful bidder. The plaintiff then commenced an action for breach of contract and breach of fiduciary duty. The trial judge had concluded that the defendant had been wrongfully dismissed when she was given only two months’ notice and found that she was entitled to four months’ notice. He also found that although the giving of unreasonable notice constituted fundamental breach of the employment contract, the defendant had not elected to treat the contract as being at an end when given notice of her dismissal. Accordingly, the employment contract had not terminated until the end of the notice period, October 7, 1995. Finally, the trial judge found that the defendant was not “key employee” and, therefore, she did not owe fiduciary duty to the plaintiff. He also found that as the defendant had only planned to carry out competing business while still employed, she had not breached her duty of good faith. [23] The Court of Appeal held that the trial judge erred in finding that the defendant’s actions had amounted to mere preparation. [24] Ryan J.A. writing for the court held that the defendant breached her duty of fidelity. [25] He stated that: [45] The relationship of employer and employee continued after Ms. Nicolas was given working notice on August 3, 1995. Her duties and obligations to her employer did not change during that time. As Madam Justice Southin summarized in Kalaman v. Singer Valve Co. (1977), 1997 CanLII 4035 (BC CA), 38 B.C.L.R. (3d) 331 (B.C.C.A.), at para. (4) During the period of working notice, the relationship of employer and employee continues. Thus, the employer continues to owe the same obligations to the employee in matters of his remuneration, provision of proper work and so forth, as he would have owed to the employee before the notice was given. For his part, the employee continues to owe to the employer the same obligations as he owed under happier circumstances (see, if any authority is needed for such trite proposition, Schilling v. Kidd Garrett Ltd., [1977] N.Z.L.R. 243 (New Zealand C.A.) If therefore, in the period of working notice, the employee does act inconsistent with the continuance of the contract of employment, he may be summarily dismissed. [46] Madam Justice Southin continued her comments at para. 101 with discussion of the duties owed by an employee to an employer: (5) The duties of an employee to an employer in the absence of an express contract are those implied by law. They have been variously put. ... The obligation is sometimes described as one of “good faith and fidelity”. In the words of Richmond P. in the Schilling case at pp. 247-248: ... It seems to be impossible to lay down any fixed test applicable to all circumstances. Some helpful passages from various judgments will be found collected by Havers J. in Sanders v. Parry [1967] WLR 753, 766; [1967] All ER 803, 808-809. One of those references is to the judgment of Lord Greene in Hivac Ltd. v. Park Royal Scientific Instruments Ltd. [1946] Ch 169; [1946] All ER 350, where Lord Greene said: It has been said on many occasions that an employee owes duty of fidelity to his employer. As general proposition that is indisputable. The practical difficulty in any given case is to find exactly how far that rather vague duty of fidelity extends (ibid, 174; 353). [47] In State Vacuum Stores of Canada Ltd. v. Phillips, 1954 CanLII 240 (BC CA), [1954] D.L.R. 621 (B.C.C.A.), Sidney Smith J.A. said this, at p. 625: The principle that an unfaithful employee may be answerable in damages is well established in the decided cases although, as Lord Greene M.R. points out in Hivac Ltd. v. Park Royal Scientific Instruments Ltd., [1946] All E.R. 330, this breach of the law may not yet have been fully explored in its remoter aspects. Bowen L.J. refers to the principle in this language in Lamb v. Evans, [1893] Ch. 218 at p. 229: “The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual. What is an implied contract or an implied promise in law? It is that promise which the law implies and authorizes us to infer in order to give the transaction that effect which the parties must have intended it to have, and without which it would be futile.” And it is discussed in Robb v. Green, [1895] Q.B. 315, where A. L. Smith L.J. said at p. 320: “It is my opinion that this judgment should be upheld, and upon the ground that there has been breach by the defendant of his contract of service with the plaintiff. think that it is necessary implication which must be engrafted on such contract that the servant undertakes to serve his master with good faith and fidelity”. [48] The jurisprudence in this court establishes that competition with an employer will in almost all cases constitute breach of the duty of loyalty. In Cariboo Press (1969) Ltd. v. O’Connor, 1996 CanLII 1553 (BC CA), [1996] B.C.J. No. 275 (QL) (B.C.C.A.) [summarized 61 A.C.W.S. (3d) 290], Chief Justice McEachern said at paras. 19-20: The remaining question then, is whether O’Connor breached his employment duty by having secret interest in competitor from March 1, 1991, to July of the same year. Such would normally constitute conflict of interest and would be regarded as breach of the duty of loyalty and fidelity that is expected of an employee. In this respect, see Gurry’s Breach of Confidence, (Oxford: Clarendon Press, 1984) at 179, where the author says that “[t]he employee must not compete with his employer during the subsistence of the employment relationship.” think the foregoing must be an absolute, or almost absolute, prohibition. During the period in question, O’Connor was deriving benefit from both his employer and from competitor. In my view, this constitutes breach of his contract of employment. [49] In the case at bar the trial judge seemed to rest his decision in part on finding that Ms. Nicolas’s conduct in bidding on the BCCW contract while employed with Restauronics amounted only to planning carried out to establish competing business and that as such it may not have constituted breach of the duty of good faith. He then listed other factors, such as the fact that the bid was made two weeks before the contract ended, which persuaded him that her conduct in bidding against her employer was not breach of fidelity. [50] The authors of Employment Law in Canada, [3rd. ed., Vol. (Markham, Ont: Butterworths, 1998) (looseleaf)] note at §11.131: Difficulties have arisen in determining the exact point at which planning and preparation by an employee who is still employed to set up himself or herself in competition with the employer will violate his or her implied duty of fidelity ... After all, if it is lawful for an employee to engage in post-termination competition with an employer, it hardly makes sense to hold it unlawful to plan the form that such competition will take. In more recent decisions on point, the courts have held that merely planning to establish competing business does not ipso facto violate the duty, unless it is clear that the employee has already determined to abuse the employer’s confidential information or trade secrets in his or her future business or has already begun to canvass the employer’s customers or entice fellow employees of the employer to join him or her in the new business. [Corporate Classic Caterers v. Dynapro Systems Inc. (1998), 1997 CanLII 4408 (BC SC), 33 C.C.E.L. (2d) 58 (B.C.S.C.); Leith v. Rosen Fuels Ltd. (1984), C.C.E.L. 184 (Ont. H.C.J.), esp. at 195.] [Emphasis added.] [51] In my view the trial judge erred in fact in characterizing Ms. Nicolas’s actions as mere preparation. Ms. Nicolas competed with her employer for business which had been the employer’s; her placing of the bid went beyond preparation. [52] Her conduct was similar in this regard to that of the defendants in Woodrow Log Scaling Ltd. v. Halls, [1997] B.C.J. No. 140 (QL) (B.C.S.C.) [summarized 68 A.C.W.S. (3d) 454]. In that case employees submitted competing bid against their employer and did not terminate their employment until after they had secured the contract for their own benefit. The court found this to be breach of the employees’ duty of good faith and awarded damages to the employer. (D.L.R. pp. 111-113) [26] could find no case law on point in this province and am unable to distinguish Sullivan’s actions from those of the defendant in Restauronics Services Ltd. v. Forster, supra. I therefore find that Sullivan breached his duty of fidelity to the plaintiff. [27] However I am not satisfied that the plaintiff proved it would have been in a position to perform further work for PCS if Sullivan had not submitted a proposal. [28] Kusniak had telephoned the union hall and was told there were no members available for him to hire. [29] As noted above he did not return to Saskatchewan until the day before PCS required two technicians and had no employees ready to go to Rocanville. It would appear that he had abandoned any thought of continuing the contract until the end of December. Further if he had pulled employees from Saskferco he would have suffered no damage. [30] Ryan J.A. pointed out at p. 117: [73] The case law seems to indicate that where there has been misuse of confidential information or trade secrets, the employer may recover damages against the employee for profits it has lost as consequence of the breach or, instead of damages, elect to take judgment for an account of the profits the employee has obtained through the wrongful exploitation of the material in question. The employer is free to choose whichever method will result in greater compensation. (E.g., 57134 Manitoba Ltd. v. Palmer (1985), 1985 CanLII 572 (BC SC), 65 B.C.L.R. 355 at 371, C.P.R. (3d) 477 (B.C.S.C.), affirmed (1989), 1989 CanLII 2743 (BC CA), 37 B.C.L.R. (2d) 50, 26 C.P.R. (3d) 8(B.C.C.A.)). [74] In the case at bar, the appellant proved that the respondent breached her duty of loyalty by competing with it for the BCCW contract while she was in its employ. It did not prove, however, that Ms. Nicolas used any confidential information or trade secrets in doing so. [31] Sullivan was not in a managerial position with the plaintiff. He did not possess any confidential information or trade secrets. He knew nothing as to profit margins, etc. of the plaintiff. He did have the experience suggested by Fortney but I do not consider that to be confidential information or a trade secret. If there had been electricians available through the union hall they could have undertaken the work being performed by Sullivan. [32] As pointed out by Ryan J.A. the position of Sullivan when he submitted his proposal is almost identical to that of Ms. Nicolas: [76] ...Ms. Nicolas prepared her bid for the contract based on information she had obtained over the years simply by virtue of being in the business. Restauronics failed to prove that Ms. Nicholas used any confidential information or trade secrets in preparing her bid. [77] Aside from the effrontery of Ms. Nicolas’s bid, there is nothing that Restauronics can complain of in this case. [33] Ryan J.A. then held that Restauronics was not entitled to anything more than nominal damages and awarded it $500.00. I likewise hold that the plaintiff in this case is entitled to no more than nominal damages. I also award it $500.00. [34] In the result PCS is entitled to costs against the plaintiff and the plaintiff is entitled to costs against Sullivan. J. I.D. McLellan","The plaintiff claims damages against the defendants Tim Sullivan and Sullivan Instrumentation (collectively 'Sullivan') for breach of an employment contract when Sullivan was employed by the plaintiff to perform services for PCS at the mine. The issue is whether Sullivan breached his employment contract by submitting a proposal to PCS when he was still employed by the plaintiff. HELD: 1) There is nothing wrong with Sullivan setting up his corporation with a view to starting a competitive business after his employment with the plaintiff ended. An employee must be free to plan his future after his employment with his employer ends. He did not prepare the proposals during working hours. He prepared them with the assistance of his wife, when he was off work in Regina. However, it has been held that an employee who submitted a bid in competition to his or her employer during a period of working notice was in breach of the employment contract. Therefore, Sullivan breached his duty of fidelity to the plaintiff. 2) However, the Court was not satisfied that the plaintiff proved it would have been in a position to perform further work for PCS if Sullivan had not submitted a proposal. There were no union members available for it to hire. It had no employees ready to perform the contract. It would appear the plaintiff had abandoned any thought of continuing the contract until the end of December. If he had pulled employees from another contract, he would have suffered no damage. 3) Sullivan was not in a managerial position with the plaintiff. He did not possess any confidential information or trade secrets. He knew nothing as to the profit margins of the plaintiff. He did have business experience but not confidential information or a trade secret. 4) The plaintiff in this case is entitled to no more than nominal damages in the amount of $500 plus costs.",4_2007skqb397.txt
243,"R. V. HOUSTON QB08175 Date of Judgment: April 22, 2008 Number of Pages: 12 QUEEN'S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 174 Date: 2008 04 22 Docket: 1/07 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and SIMON M. HOUSTON Counsel: Michael A. Segu for Her Majesty The Queen William H. Roe, Q.C. for Simon M. Houston SENTENCE LAING C.J.Q.B. April 22, 2008 [1] Mr. Houston pled guilty at the opening of trial to one count ofdistributing child pornography, in the form of written works, between the 12th ofJune and the 8th of August, 2005, contrary to s. 163.1(3) of the Criminal Code ofCanada. [2] In the time in question Mr. Houston was active on pedophile website dedicated to man-girl relationships. The Crown evidence is that he had 1,200 postings on the website in this period, which included 11 stories that are the subject of the charge, and described sexual activity between adults and either infants or preteen girls. The moderator of the website encouraged stories, and Mr. Houston also urged others to submit stories. In one posting on the website on June 18, 2005 he wrote: am getting pissed off with the apathy in this ... group. Ya post pictures galore, but NOT once have any of you ever told juicy story, voyeuristic situation, or perhaps sexual encounter with preteen girl. Just put down you were 11 when it happened, instead of 35 or 23. But let's get some entertaining stories here, guys.!! Is something wrong with your memories or writing abilities. Shyness should NOT stop with your memories or writing abilities. Shyness should NOT stop you from at least couple of short sex stories. use ""FIRST LAY"" or ""SUBTEEN GIRL'S BIKINI BOTTOMS MISSING"" as model stories. Make one up like did with the Finnish girl at the Russian nudist colony. Are your lives that fucking boring, that you cannot tell one single damned funny story about the little Missy's ya met in your whole shitten life??? [3] Most of the stories express the narrator's pleasure with the opportunity to be exposed to nude infant and/or preteen female bodies, extol their genitalia, and result in the narrator performing some form of oral sex on them. Several involve the narrator and preteens masturbating. Three stories describe the main adult character having vaginal and anal sexual intercourse with infants. In the stories the infants or young girls are sometimes portrayed as the aggressors, and always portrayed as acquiescing or enjoying the activity. [4] On July 29, 2005, Mr. Houston posted, ""I am more of voyeur than actively sexual with girls."" On August 4, 2005 with respect to his Tara-Kristen stories he posted: Most of my ""little girl"" stories are part true and part ""phoney!"" The sexual parts are ""wishful fulfillment fantasies"" of what wish had done with those two girls when had them under my roof. [5] Mr. Houston claims he did not know such stories were unlawful in Canada. The website he was accessing had section called ""ask cop"". On August 3, 2005 he posted: In Canada, the Criminal Code noew [sic] protects the rights of writers, and artists who write sex stories concerning preteen girls (or boys). The Robin Sharpe case in BC was decided in favor of the defendant for just thuis [sic] reason: artistic expression. On August 4, 2005 another user of the website pointed out the provisions of s. 163.1 of the Criminal Code, pointed out that the Supreme Court of Canada in the Sharpe [2001 SCC (CanLII), [2001] S.C.R. 45] case had upheld most of the law, and drew attention to the fact in December 2005 Parliament had, through amendments to the Criminal Code, limited the definition of artistic merit. Of the 11 stories submitted in evidence two were posted by Mr. Houston on August and one on August 8. He was not deterred by his new found knowledge, if indeed it was new found. [6] Mr. Houston maintains, and there is no evidence to the contrary, that he has never acted out his fantasies, and has never touched young girl in sexual manner. He has no criminal record. At the same time Mr. Houston maintained in one statement to police that pedophilia should be accepted in today's culture. He laments the fact that his type of stories are criminal in Canada which he claims not to be the case in some other countries. He advised the probation officer he feels he is being punished because he cannot express his point of view. He is not repentant, and completely lacks insight into the harm to children that results from child pornography. [7] Mr. Houston is 55 years old and has always been single. He has an advanced bachelor of arts degree which he achieved in 1975. He has never developed career but has worked at different jobs, including as private tutor of children. His last paid employment was in 2007 in retail sales. Since then he has been living with, and looking after, his ailing 83-year-old mother on an acreage site near North Battleford. [8] The probation officer wrote in the pre-sentence report: While Simon was employed as tutor in Saskatoon, he wrote an assessment on his eight (8) year old student describing her sexual aggressiveness and behavior. This was given to the parent by Simon and the ""authorities"" became involved. There was no legal involvement, but as result, Simon voluntarily entered Sex Offender Treatment Program in Saskatoon. Mr. Jerry Turta, Probation Officer with that program, verified his short participation in the program. He indicated Simon was very disruptive attempting to contaminate the entire group. He was asked to leave after the third (3) sessions. This writers experience with interviewing Simon, as well as facilitating Sex Offender Programs would suggest he is not an appropriate candidate for programming. Simon now states he knows his behavior was wrong, and it will not be repeated. However, he continues to watch adult pornography, seeking out the youngest looking female to fulfil his needs. Simon has no explanation for his behavior, except the attraction has always been there. Simon is prepared to participate in psycho forensic psychiatric/psychological evolution which may/may not be beneficial in attempting to understand/treat this behavior. Mr. Houston's sister, who is mental health nurse in Calgary, in letter to the court disputes the probation officer's finding that Mr. Houston is not amenable to sex offender programming. Mr. Houston's sister offers the opinion he was in the wrong group, which she states consisted of three aboriginal men considered ""deniers"" and who were reluctant to say anything at all. She concludes ""clearly this was not an appropriate group for Simon, who feel would benefit from one- to-one sessions with therapist or psychiatrist."" [9] Mr. Houston did not own computer at the time he engaged in this activity. He had enrolled at the University of Saskatchewan in 2005 in Latin course. He used the University of Saskatchewan computers to engage in the above described activity. Ironically, it was his attempt to assist authorities that brought him to the attention of the Saskatoon Police Service in this matter. He had reported to cyber-net that he thought he had seen picture of missing girl on the man-girl website he was accessing. His electronic trail in providing this information led to his arrest. When he was arrested on September 16, 2005 he provided sworn statement to police officers and admitted his activity. [10] Mr. Houston states he has not accessed the internet since he was arrested. He stated he does not own computer, he has never owned computer, and he does not intend to again access the internet. [11] The position of the Crown is that Mr. Houston's writings are hard core child pornography, which he relished distributing, and encouraged others to distribute. He submitted recent cases such as R. v. Warn, 2007 ONCJ 417 (CanLII); R. v. Treleaven, 2006 ABPC 99 (CanLII), 400 A.R. 201; R. v. Shelton, 2006 ABCA 190 (CanLII), 209 C.C.C. (3rd) 527; and R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (Sup. Ct. J.), which point out the menace posed by the distribution of child pornography through the internet, and which emphasize denunciation and deterrence of others to engage in such activity as the dominant principles of sentencing which he submits can only be met by term of incarceration. He points out that on November 1, 2005 Parliament amended the Criminal Code to provide one year minimum sentence for the distribution of child pornography, which became law approximately six weeks after Mr. Houston was charged in this matter. He notes that other judges have taken this amendment into account when sentencing on charges that arose shortly before the amendment came into force, and submits Parliament's wishes in this respect should be taken into account in this case as well. He submits an appropriate sentence would be two years less day imprisonment. [12] Defence counsel submitted number of reasons why conditional sentence should be imposed on Mr. Houston. Defence counsel's starting point is that written pornography of the type that Mr. Houston produced does not cause actual harm to children in its production, and for this reason should be viewed on lower scale than hard core images of children who have been sexually abused and harmed by production of the images. He submits that part of Mr. Houston's motivation in producing the stories was to provide discussion, and that he admitted in his postings that the sexual acts in his stories were fantasies and made it clear that he was not personally engaged in such activity. He submits that Mr. Houston's foray into distributing child pornography was situational, by reason of his access to computers at the University of Saskatchewan, which access he did not have, nor seek out previously. He submits Mr. Houston has learned his lesson and he should be taken at his word when he says he will not attempt access in the future. He also points out that Mr. Houston attempted to be helpful in locating missing child, which effort led to his arrest, and, states this shows good character and the fact he wants to be good citizen. He points to the factMr. Houston has abided by his release conditions over the past two and halfyears, has no previous criminal record, and is now serving the useful socialpurpose of looking after his ailing mother who lives on an isolated acreage andwho will also be punished if he is incarcerated. He refers to R. v. Cohen, 144 O.A.C. 340 (C.A.) and R. v. Kozun, 2007 MBCA 101 (C.A.) (CanLII) which upheld conditional sentences of 14 months and 18 months respectively for distribution of child pornography. Finally he notes that the pre-sentence report states ""incarceration, in this instance would appear to be inappropriate"". [13] In the pre-sentence report the probation officer noted the Saskatchewan Primary Risk Assessment to reoffend placed Mr. Houston in the medium risk category, which category recidivates at approximately 50 percent over three-year period, and that Mr. Houston was assessed at the 24th percentile, meaning 76 percent of the offenders were assessed as having more risk factors. The report identifies the major risk factors for Mr. Houston are ""anti- social behavior, attitude, self management"". It notes alcohol and drugs have never been factor in Mr. Houston's life. It states electronic monitoring would not be considered necessary and curfew would suffice. It concludes one-on-one counselling through mental health services would be reasonable term of any probation order. ANALYSIS AND DECISION [14] accept that the proliferation of child pornography has been greatly accelerated and become far more of societal problem in recent years with the arrival of the worldwide web. Pedophilia is not new condition but the material, which includes photographic images, videos, and written material, now available to persons who seek such material far exceeds anything that was historically available. The societal harm of such material is borne almost exclusively by infants and children, the most defenseless members of society, who are sexually and physically abused and bear all of the consequences of satisfying some adult's sexual desires or fantasies. As with any other product, if there are barriers put in place to restrict distribution of the product, this in turn should result in restriction of production and possession. The goal of the criminal law in this area is to discourage such distribution. For this reason denunciation and deterrence are the dominant principles of sentencing. [15] With respect to the defence submission that child pornography writings do not in their production actually harm children the way production of images do, and therefore should not be subject to the same denunciation, two comments can be made. In the absence of evidence to the contrary, it cannot be assumed that writings do not stimulate the demand for images which do directly harm children. Secondly, not all pedophiles are voyeurs only. Some will act on their desires. Anything that stimulates that desire places children at risk in the real world. [16] With respect to the circumstances of the offence, Mr. Houston, apartfrom extolling pedophilia, wrote hard core child pornography in several of hisstories, which on the scale of written child pornography places it in the upper halfof the scale. He directly encouraged others to produce similar stories, which is anaggravating factor in this offence. The fact that he disclosed his stories were largely fantasies is not mitigating factor that detracts from the effects such written pornography has, as set out above. Mr. Houston was a high profilecontributor to the website during the time he was active, and he remainsunrepentant, meaning he does not yet believe there is anything wrong with writingsuch stories, but simply agrees to stop doing so because the law requires it. [17] The range of sentence for distribution of child pornography prior to Parliament increasing the minimum sentence to one year imprisonment was three months-18 months, barring exceptional circumstances in the offence, or with respect to the offender, such as lengthy record. As noted in R. v. Shelton, supra, at para. 12, conditional sentences for distribution of child pornography were rare, particularly if the volume of material was significant. [18] Based on the circumstances of this offence, and the circumstancesof the offender, I conclude that a conditional sentence would not be a fit sentenceon the facts in this matter, although I agree Mr. Houston qualifies for the same tothe extent a fit sentence would not exceed two years, and I agree on the limitedinformation available that he would not endanger the community if one wereimposed. However, house arrest for an isolated individual such as Mr. Houstonwould not be much different from the life he presently leads, and would notrepresent sufficient denunciation. A conditional sentence also would not bestrong enough to deter others who might be inclined to engage in the activity ofdistributing child pornography. fit sentence in this matter requires period of incarceration. [19] I have taken into account the mitigating factors referred to bycounsel for the defence, such as the fact that Mr. Houston has no criminal record,and did plead guilty, albeit at the opening of trial, along with the other material Ihave referred to in the foregoing in arriving at what I consider to be theappropriate length of sentence. Mr. Houston, I sentence you to 15 monthsimprisonment, to be followed by a term of probation of three years, as well as theadditional orders I am about to make. [20] make the following orders provided for in the Criminal Code of Canada: (1) Pursuant to s. 490.012 of the Criminal Code, it is ordered you besubject to an order which will issue in Form 52 requiring you tocomply with the Sex Offender Information Registration Act, 2004,S.C. c. 10, for a period of 20 years, which is the mandatory timespecified in s. 490.012(1) for a person convicted of distributing childpornography. (2) Pursuant to s. 487.051 of the Criminal Code an order shall issue inForm 5.03 which authorizes the taking of samples from you forforensic DNA analysis. (3) consider it appropriate to make an order pursuant to s. 161(1) prohibiting you for period of 20 years from (a) attending public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or daycare centre, schoolground, playground or community centre; (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being volunteer in capacity, that involves being in position of trust or authority towards persons under the age of fourteen years; or (c) using computer system within the meaning of subsection 342.1(2) for the purpose of communicating with person under the age of fourteen years. [21] The terms of the three-year probation order are as follows: (1) Keep the peace and be of good behaviour. (2) Appear before the court when required to do so by the court. (3) Report to supervisor within two working days from the date of release from jail and thereafter continue to report as directed by the supervisor. (4) Remain in Saskatchewan unless written permission to go outside the province is provided by the court or the supervisor. (5) Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation. (6) That you not possess or use any computer equipment or communication device capable of accessing the internet. (7) That you not reside where such computer equipment or communication device is available. (8) That you attend sex offender treatment programming as directed to do so by the supervisor. It is strongly recommended in the evidence that Mr. Houston would benefit from one-on-one individual counselling by professional person appropriately trained in sex offender treatment. Every effort should be made to facilitate such program. (9) That you not communicate with any female person under the age of 18 years unless that person is in the company of an adult who is present during the communication. [22] The foregoing is the sentence imposed on you, Mr. Houston.","Accused pleaded guilty at opening of trial to one count of distributing child pornography in the form of written works. The accused was active on a pedophile website and posted 11 stories describing sexual activity between men and infants and pre-teen girls. HELD: Accused received 15 months imprisonment followed by 3 years of probation with addition orders including providing DNA samples and being added to the Sex Offender Registry. The Court accepted that the internet has led to the accelerated proliferation of child pornography, making it an increasing social problem. The social harm of such material is borne almost exclusively by infants and children, the most defenceless members of society. For this reason, denunciation and deterrence are the dominant sentencing principles. The defence submitted that the writings do not actually harm children in their making and, therefore, should not be subject to the same denunciation as pornographic images. The Court rejected this argument because it cannot be assumed that the writings do not stimulate the demand for images and since not all pedophiles are voyeurs only some will act on their desires and anything that stimulates this desire places children at risk in the real world. Aggravating factors in this case were 1) the fact that the accused extolled pedophilia and wrote hard core child pornography and encouraged others to the same. 2) The accused was a high profile contributor to the web site and he remains unrepentant û he does not believe there is anything wrong with writing these stories and only stopped because the law requires it. A conditional sentence would not represent sufficient denunciation or deterrence. Mitigating factors in this case included a lack of criminal record, the guilty plea and the fact that the accused is looking after his elderly mother.",4_2008skqb174.txt
244,"Q.B. No. 2000 of A.D. 1981. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: BETWEEN: FOSSIL FUEL DEVELOPMENT LTD., PLAINTIFF PLAINTIFF and and TUDEX PETROLEUMS LTD., DEFENDANT DEFENDANT AND BETWEEN: TUDEX PETROLEUMS LTD., PLAINTIFF BY COUNTERCLAIM and and FOSSIL FUEL DEVELOPMENT LTD., and SYDNEY LOVELL, DEFENDANTS BY COUNTERCLAIM W. J. HERLE for the plaintiff, P.J. GALLET for the defendant, GEATROS, J. This action is brought by Fossil Fuel Development Ltd. ""Fossil"" against Tudex Petroleums Ltd. ""Tudex"" for breach of contract claiming damages. The following scenario is illustrative of my determination of the facts on the evidence. Sydney Lovell is the principal officer of Fossil. Indeed, it is his company. He incorporated it for the purpose of becoming involved with Tudex. Andrew Crooks, Lionel Conn and Bill Molle were at the material time the three principal officers of Tudex. heard evidence from Lovell, Crooks and Conn. Molle was not called. That he was not required to testify found not to be factor on my assessment of the events as they unfolded. Conn is the main force behind Tudex. He and his father are the main shareholders. Crooks, lawyer, was brought into Tudex by Conn. He is the counsel for Tudex. Molle was until June, 1982, the chief financial officer of Tudex. Lovell made known to Conn his interest in becoming involved with Tudex. It was time when Tudex needed investment money. Tudex came into being for the purpose of exploring properties for oil and gas. Funds would be needed for drilling operations. Investment capital was foremost in the minds of Crooks, Conn and Molle. Tudex was not concerned where the investment capital should come from. Lovell held out that he had contacts in eastern Canada. He had no experience in, or knowledge of, the oil and gas field. He had most recently been involved in the operation of restaurant. He had sold art. But Lovell had impressed Conn in particular, as salesman. So in April, 1981, Lovell's company was retained by Tudex to survey the market in eastern Canada. The relationship between the parties is fairly stated in memorandum, dated April 19, prepared by Molle for Crooks, to the effect that Fossil would be retained ""... to conduct marketing study of the Montreal and eastern Canadian market places relative to the willingness of these market places to participate with Tudex in series of drilling programmes .. It was agreed that the fee for the aforementioned study would be $31,500 and that the fee would be payable in advance."" Tudex says the study was to take three months. The position of Fossil is that the period was six months. Whatever may have been the time frame the marketing study did not continue beyond June 2. That was when the parties entered upon the arrangement or contract constituting the basis of this action. At all events, the consideration of $31,500 was paid. The new contract is reflected in the letter written by Conn for Tudex to Fossil for the attention of Lovell: This is to confirm our understanding that you will engage Mr. Syd Lovell as Fund Development Officer and in that capacity you will cause Mr. Lovell to devote the bulk of his time to drilling fund program for Tudex Petroleums Ltd. in accordance with the terms of that drilling program established by Tudex from time to time and in consideration thereof, it is agreed that Tudex will pay to Fossil Fuel Development Ltd. the sum of $75,000 in twelve equal and consecutive monthly instalments of $6,250 each, such instalment to be payable on the last day of each calender month commencing June 30, 1981. The allegation of Tudex, consistent with its pleading, is that it was induced to engage Lovell as ""fund development officer"", through the medium of Fossil, by Lovell representing to Tudex that investment capital in significant sums was readily available, and that Lovell had access to such sums. Mr. Herle contends, as Lovell testified, that Lovell's only obligation was to introduce potential investors to Tudex, and then it was to be left to Tudex, through one of its officers, to meet with those people and explain to them the advantages of investing. find Lovell was of that view. But not so Tudex Lovell's retainer was to actually acquire funds which would be used to finance Tudex. reject the contention that Tudex was induced to enter into the agreement of June 2. There was no misrepresentation. But at the same time find that when Conn wrote the letter that day it was intended by Tudex that Lovell was obligated under the agreement (following the market study) to bring in investment capital, and Lovell thought his part in the venture was confined to the area of introducing potential investors. There was a misunderstanding. It may be classified as mutual mistake. In the words of Cheshire Fifoot, 9th ed. (1976), page 225, ""Each is mistaken as to the other's intention, though neither realizes that the respective promises have been misunderstood."" Much time and space has been taken up by counsel in oral and written argument having to do with the parol evidence rule. Mr. Herle argues that Tudex is seeking to contradict or vary the terms of the contract outlined in the letter of June 2, 1981. That is not so. There is no ambiguity. Lovell was hired as fund development officer. The question is what was intended by that designation. In Staidman Steel Ltd. v. Commercial Home Builders Ltd. (1977), 1976 CanLII 826 (ON SC), 71 D.L.R. (3d) 17, Southey, J., at pages 21 and 22, referred to the following statement of Blackburn, J. in Smith v. Hughes, L.R. Q.B. at page 607: ""If, whatever man's real intention may be, he so conducts himself that reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms."" Here mutual mistake existed. Tudex thought Fossil, through Lovell, was to bring in investment capital and Lovell thought his obligation did not extend to that. The applicable principle, stated by Southey, J. in the Staidman Steel Ltd. case, at page 22, is that ""... the Court must decide what reasonable third parties would infer to be the contract from the words and conduct of the parties who entered into it. It is only in case where the circumstances are so ambiguous that reasonable bystander could not infer common intention that the Court will hold that no contract was created."" In this case, have little difficulty in concluding reasonable man would infer contract conditional upon Lovell acquiring investment capital for Tudex. Indeed, the designation ""fund development officer"" and the phrase ""drilling fund program"" is indicative of that. There was contract to that effect binding on Fossil. The market study program was terminated prematurely. The time had come for Lovell to deliver the funds needed by Tudex. Lovell had indicated that identifiable investors were in place. There was an instance, for example, of an imminent likely investment of $500,000. And that was when the market study was still in progress. The market study could accomplish much of what Lovell says he was to do as fund development officer. It is not reasonable that the market study would be terminated and Lovell hired at monthly retainer of $6,250 if his new duties were to be more or less the same. That is not mere speculation. find it to be an irresistible inference to be made on the evidence. In the words of Grange, J. in Brooklin Heiqhts Homes v. Major Holdings Development Ltd. (1978) 1977 CanLII 1831 (ON SC), 80 D.L.R. (3d) 563, at page 570: "".. "".. The undertaking was not ambiguous, (Tudex) was not mistaken as to its meaning, had reasonable expectation which is entitled to protection and in no way contributed to the mistake of (Lovell). Upon any objective test the plain meaning of (the letter of June 2, 1981), and the meaning taken from it by (Tudex) could reasonably be inferred."" Now, by September Tudex rightly concluded that the kind of performance it was entitled to expect from Lovell was not forthcoming. Lovell was not delivering for the monthly stipend he was being paid. No investment capital whatever had been received. So Tudex sought new relationship with Lovell. To that end there was telephone conversation between Crooks and Lovell. There followed letter, dated September 18, 1981, from Crooks, for Tudex, to Fossil directed to Lovell; ""This letter will confirm our telephone conversation with you of September 18, 1981, wherein we agreed to substantial change in Fossil Fuel's relationship with the Tudor Group."" (Tudex is part of the Tudor Group). No longer was there to be monthly retainer. Compensation would be negotiated on ""deal-by-deal basis"". Lovell denies that he agreed to the termination of Fossil's arrangement with Tudex outlined in the letter of June 2, 1981. Assessing the evidence relating to Lovell's conduct after Crooks' letter of September 18, find that he realized his relationship with Tudex, in the terms of the letter of June 2, 1981, was at an end. It is unnecessary to outline that evidence because upon my stated view of the matter it is of no moment whether Lovell agreed or not. When there was a failure of performance by Fossil in an essential part of the contract Tudex was entitled to repudiate it. The letter of September 18 effectively did that. So the claim of Fossil that there has been breach by Tudex entitling it to damages must be denied. In its counterclaim Tudex seeks rescission, not only of the contract of June 2, 1981, but also of the agreement relating to the market study. The dismissal of Fossil's action effectively releases Tudex from any further obligation under the contract of June 2, 1981. The repudiation of the contract by Tudex is legitimized. So an order for rescission is not necessary. And Tudex, having accepted the performance by Fossil on the marketing study and paid the consideration therefor, there is no basis for rescission of the agreement pertaining thereto. Tudex further counterclaims for judgment for $56,500, and damages. Presumably, that sum reflects $31,500 paid for the market study and $6,250 for each of the months of June to September, 1981 (a total of $25,000) on the agreement of June 2, 1981. The claim for $31,500 is rejected on the same ground that rescission of the agreement relating to the market study is disallowed. The claim for the balance, $25,000, is not well founded. It is implicit in Crooks' letter of September 18 that Tudex would forgo any claim for payments made to Fossil to the time of termination. That is so because the payment of the retainer for the month of September was enclosed by Crooks with the letter. Similarly, case for an award of damages apart from the claim for $56,500 has not been made out. final matter. Fossil amended its statement of claim to provide for claim of damages relating to common shares of Tudex. The allegation is that contemporaneously with the contract of June 2, 1981, it was agreed Fossil would purchase the shares and payment for same deducted from the monthly instalments of $6,250 under the primary agreement. That agreement having failed, Fossil's claim as regards the shares falls with it. The main issue was whether Fossil's allegation of breach of contract is well founded. have determined that it is not. would dismiss Fossil's claim with costs. would also dismiss the counterclaim of Tudex but, in the circumstances, without costs. DATED at the City of Melville, in the Province of Saskatchewan, this 31st day of July,A.D. 1984.","The Plaintiff contracted to provide market survey to the Defendant. Before its completion, the contract was replaced by second contract for Fund Development Officer. Each party had a different understanding of the duties of the Fund Development Officer which misunderstanding the Judge classified as a mutual mistake. The failure of performance by plaintiff entitled defendant to repudiate the contract. Defendant's counterclaim for rescission of first agreement, and repayment of monies paid under second agreement, failed where it accepted plaintiff's performance and paid consideration therefore.",e_1984canlii199.txt
245,"Morgan, IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 080 Date: May 17, 2011 Information: 24412696 Location: Melfort Between: Her Majesty the Queen Appearing: Nicole Leinenweber For the Crown Roseanne Newman For the Accused RULING ON S. 752.1 ASSESSMENT APPLICATION L. DYCK, [1] On January 26, 2011, Brian Ben was found guilty on charge of assaulting peace officer with weapon, contrary to s. 270.01(1) of the Criminal Code. [2] The Crown has applied, pursuant to s. 752.1(1) of the Code, for an order remanding Mr. Ben for an assessment performed by an expert for use as evidence in an application to have Mr. Ben declared a dangerous offender. Defence counsel submits the order should not be made as the predicate offence is not a serious personal injury offence and it is not within the realm of possibility that Mr. Ben could be found to be a dangerous offender. Is the Predicate Offence “Serious Personal Injury Offence”? [3] Section s. 752.1(1) of Code states as follows: 752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be dangerous offender under section 753 or long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for period not exceeding 60 days, to the custody of person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. [4] In order for the assessment order to be made, the Court must be satisfied that the offence is “serious personal injury offence”, which is defined in section 752 of the Code, the relevant portion of which reads as follows: 752. In this Part, “serious personal injury offence” means (a) an indictable offence ... involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more ... [5] Mr. Ben has been found guilty of assaulting peace officer while using weapon. The Crown proceeded by indictment and therefore this offence carries maximum penalty of “a term of not more than 10 years”. [6] The facts as found after trial were that Cpl. Hodge had received information that Mr. Ben, who had an outstanding warrant, was at particular residence. Cpl. Hodge went to that location, and saw Mr. Ben at the front of the house. Mr. Ben began to run away from the officer. The officer gave chase. [7] The officer yelled at the accused to stop and Mr. Ben finally did, about 25 feet away from Cpl. Hodge. Mr. Ben turned toward the officer, with his hands raised and his fists clenched. Mr. Ben appeared to be in combative or assaultive stance. [8] The officer drew his taser and yelled for Mr. Ben to get down on the ground. The accused began walking toward Cpl. Hodge and was closing the distance between them. When Mr. Ben was distance of about eight feet away from the officer, the officer fired his taser. This had only momentary effect on the accused. Mr. Ben was trying to break free of the taser wires and Cpl. Hodge was attempting to load cartridge on his taser. [9] Mr. Ben picked up large tree branch, which was about seven feet long, and about three-quarters to two inches in diameter, and began swinging it at the officer. The branch was stick that had been made by the accused to be used to hold up clothesline when clothes were on it. As the branch went by, Cpl. Hodge dropped his taser, backed away, and drew his sidearm. Given the distance between Cpl. Hodge and Mr. Ben, and the length of the stick, the stick would have come very close to Cpl. Hodge when the accused was swinging it. Cpl. Hodge feared for his life at that time. [10] Cpl. Hodge told Mr. Ben to put down the weapon. The accused complied, then turned around and ran in the same direction he had originally been running. The officer pursued Mr. Ben briefly, then stopped and called for back-up. [11] In his victim impact statement, dated March 15, 2011, filed as Exhibit P10 in this hearing, Cpl. Hodge stated “I have never feared for my own life more than on that day” and “there is not day that has passed since then that do not think about my encounter with Mr. Ben”. He also noted that “when my wife heard about this incident she was also effected [sic], as everyday go to work she worries about whether will come home safe”. [12] In R. v. Goforth, 2005 SKCA 12 (CanLII), Justice Cameron discussed the definition of “violence” with respect to s. 752 of the Code, and stated at paragraph 22 that “to speak of the use of violence against another person, as in paragraph 752(a), is to speak of using physical force against another with intent to hurt, injure or kill another”. Later at paragraph 82, it was noted that the definition of “serious personal injury offence” as found within paragraph 752(a) of the Code does not imply the use or attempted use of “serious” violence or conduct “seriously” endangering or likely to “seriously” endanger the life or safety of another person. [13] The decision of R. v. Wright, 2007 SKQB 350 (CanLII), dealt with whether charge of possession of loaded prohibited firearm under s. 95(1) of the Code was serious personal injury offence in the context of an application for an assessment under s. 752.1(1) of the Code. The accused had entered into federal half-way house with sawed off rifle. Mr. Wright was in his room with female commissionaire for period of 25 minutes. At no time did he point the gun at the commissionaire, nor did he use any force or threaten her. Mr. Wright had consumed cocaine on the day of the offence. [14] At paragraphs 10-11 of Wright, Justice Gunn stated that the fact Mr. Wright had loaded restricted weapon in the circumstances described satisfied her “that this was conduct endangering or likely to endanger the life or safety of another person”. She indicated it “was also conduct which was likely to inflict severe psychological damage even if it did not actually inflict severe psychological damage in these circumstances”. [15] In R. v. Roy, 2008 SKCA 41 (CanLII), the Court looked at whether the sentencing judge had erred in law in failing to find that Mr. Roy had committed serious personal injury offence within the meaning of s. 752 of the Code, again in the context of s. 752.1(1) Code application for assessment. At paragraph 14, the Court referred to paragraph 29 of the written decision of the sentencing judge: .. The Court must also be satisfied that the predicate or index offence is serious personal injury offence. According to Constable Doetzel the accused was approximately eight feet away when he was cornered by both officers. There was no attempt to try and strike either officer. Brandishing the bat at Constable Kinzel is technically an assault and the accused has acknowledged that by pleading guilty. Both officers had their batons out and would assume that each was equipped with standard issue pepper spray and revolver. No attempt was made by the accused to lunge at either officer. It is certainly possible that the situation could have escalated and the accused could have attacked either or both officers. He did not do this. have difficulty accepting that standing eight feet away and holding the bat over his head could, in all the circumstances, “constitute the use or attempted use of violence”. also do not accept that the accused engaged in conduct endangering or likely to endanger the life or safety of either officer. have already dismissed the severe psychological component for lack of evidence. Section 752(b) also does not apply. Accordingly am unable to find that the predicate or index offence is serious personal injury offence which is prerequisite to ordering an assessment. [Emphasis added] [16] In confirming the ruling of the sentencing judge, Justice Jackson, at paragraph 30, stated: do not think there can be any question that the brandishing of the bat, if we call it that, cannot be “conduct endangering or likely to endanger the life or safety of another person.” While brandishing weapon like gun may constitute endangerment, the judge’s conclusion that brandishing bat, in the face of unknown intent and at distance of eight feet could not, in and of itself, endanger or likely endanger the life or safety of someone, is reasonable conclusion. [17] R. v. Lebar, 2010 ONCA 220 (CanLII), is decision which addresses whether the offence of robbery was “serious personal injury offence” thus making Mr. Lebar ineligible for conditional sentence. At paragraph 50, Justice Epstein noted that “finding that violence was used remains matter of factual determination for the trial judge. Whether the criminal conduct amounted to the use or attempted use of violence is matter relating to the circumstances under which the crime was committed.” Further, at paragraph 51, the Court held that it “was reasonable for the trial judge to find that holding knife with five-inch blade to person’s neck, for the purpose of requiring her to yield to demand for money, is use of violence”. [18] In R. v. Otter, 2010 ABPC 218 (CanLII), Judge Brown had occasion to consider whether, on the facts before her, the robbery was “serious personal injury offence”, thus making Mr. Otter ineligible for conditional sentence order. In that case, the accused had entered convenience store, stated “you should open your till; I’m robbing you”, and short struggle ensued. The store clerk wrestled Mr. Otter to the ground where he was kept until police arrived. [19] At paragraph 25 of her decision, Judge Brown referred to paragraph 16 of the Alberta Court of Appeal decision of R. v. Ponticorvo, 2009 ABCA 117 (CanLII), which noted “We are not saying that every threat with weapon involves the use or attempted use of violence. For instance, it may be that the act of brandishing weapon at person from distance, with no immediate danger to the victim, does not fall within the phrase, violence or attempted use of violence.” Ultimately, Judge Brown found that, given the brief nature of the interaction between Mr. Otter and the store clerk, plus the fact the store clerk was unharmed and appeared unperturbed during the events, the accused did not use or attempt to use violence against the clerk. [20] Paragraph 16 of Ponticorvo also discusses the agreed statement of facts in that decision, which were that Mr. Ponticorvo “swung knife three times, at police officer who was in close proximity, forcing him to back away down some stairs”. The assault ended because Mr. Ponticorvo was shot by another officer, “which disabled him from pursuing his goal”. The Court held that in “the circumstances of this case, the assault with weapon, involved the use of violence or attempted use of violence” and was “therefore serious personal injury offence”. [21] find that the facts in the decisions of Roy and Otter are distinguishable from those found in this case. In this case, as opposed to Roy, the accused picked up the branch with the intention of using it against the officer. Mr. Ben then swung the weapon at Cpl. Hodge, coming so close to the officer that it caused him to back away and pull his sidearm. The weapon was of such a size that, as I noted when giving the decision after trial, “there is no doubt that if struck in the head with this object, it could cause serious damage”. Also, as opposed to Otter, the events were of longer duration, and the victim was affected by the actions of the accused. [22] In convicting Mr. Ben, stated “I reject the defence suggestion that this is low-level assault. This was very frightening situation for any peace officer to be in: facing an adult male carrying weapon and using it in an intimidating way”. [23] I find this offence is a “serious personal injury offence” as defined by s. 752. Mr. Ben’s actions involved the use of violence. In addition, Mr. Ben’s conduct endangered or was likely to endanger the life or safety of Cpl. Hodge, and his conduct inflicted, or was likely to inflict, severe psychological damage on the officer. Is it within the realm of possibility that Mr. Ben could be found to be dangerous offender? [24] Section 753(1) of the Code sets out the factors for the Court to consider in finding an accused to be dangerous offender: 753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint... [25] The Crown is relying predominately on s. 753(1)(a)(i) and (ii) in this instance. [26] Justice Cameron in R. v. Fulton, 2006 SKCA 115 (CanLII), at paragraph 21 speaks of what the Court must consider at this stage of the proceedings and the test to be applied: ...section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, dangerous or long-term offender. It does no more than call upon the court to consider whether there exist reasonable grounds to believe the offender might be found to be dangerous or long-term offender; and it does so for no other purpose than that of deciding whether to order an assessment. The word “might” speaks to possibilities: is the prospect of the offender being found to be dangerous or long-term offender within the realm of possibility or beyond it?... [27] In R. v. Peters, 2011 SKQB (CanLII), at paragraph 17, Justice Popescul also discussed the test to be applied: It is evident from the precise wording of s. 752.1(1), and jurisprudence that has interpreted this section, that the threshold is low. This Court must consider the totality of the record of evidence and the other information presented in support of the application in order to decide whether there are reasonable grounds to believe the offender might, not will, be found dangerous or long-term offender. This would appear to be burden far less than the criminal burden of proof and even less than the civil burden of proof. In order to require any more at this stage of the proceedings would run the risk that the Court is being asked to make findings on incomplete and imprecise information and without the benefit of the assessment proposed under s. 752.1. Consequently, my task is to consider the prospect of whether the offender being found to be dangerous or long-term offender is “within the realm of possibility or beyond it”. [28] Mr. Ben’s criminal record is significant. In summary, it begins in 1976 and has entries from as recently as January 26, 2011. There are 58 Criminal Code convictions on it. Fifteen of those are for violent offences, six of which relate to peace officers. He was sentenced to 15 and years on these violent offences. In addition, he has violated his mandatory supervision orders on three separate occasions and been recommitted to the Penitentiary and breached conditional sentence order once, resulting in termination of the conditional sentence order. [29] The crimes of violence for which Mr. Ben has been convicted have involved the use of weapon on more than one occasion: the robbery with violence in 1979 involved the use of both bottle and screwdriver, the manslaughter in 1992 involved the use of 4, and the present case involved branch. [30] Alcohol addiction has been problem for Mr. Ben for his entire adult life. He commenced drinking when he was approximately 15 years old. He was admitted to the Slim Thorpe Recovery Centre in Lloydminster, for alcohol counselling when he was 16 years old. His counsellor stated “Brian is aware of what happens to him when he drinks and he wants to change the things he has been doing in the future. He sees his drinking as serious problem in his life and wants to quit” (Exhibit P4, “Documents re: Slim Thorpe Recovery attendance in 1977”). [31] At page of the Pre-Sentence Report dated October 10, 1991 (Exhibit P3), the probation officer noted: Brian’s major problem appears to be alcohol. For the first time in his life, Brian sees his abuse as the first stumbling block he must overcome. He has taken serious look at his use and abuse and appears committed to learning “new way”. Brian’s motivation to quit drinking is heightened by his desire to return to school. As well, his wife and child play major influence. [32] In the Agreed Statement of Facts (Exhibit P8) with respect to the manslaughter conviction, it is noted that, on the date of the incident of March 21, 1992, “Brian Ben was very intoxicated at the time of the initial offence”. [33] Mr. Ben’s Institutional Summary (Exhibit P9) relating to his 1992 conviction for manslaughter indicates that: Mr. Ben was released to Statutory Release on March 21, 1997. His release was suspended on September 26, 1997 after Loon Lake RCMP picked up Ben after he was found consuming alcohol in beverage room.. After review it was determined that Ben would benefit more in the community than to remain in the institution. In order to help maintain sobriety, he was accepted to the Loon Lake Alcohol/Drug Treatment Centre. The suspension was cancelled and Ben was again released with the condition to attend the Treatment Centre. Mr. Ben was discharged from the Treatment Centre on December 18, 1997. Unfortunately, Mr. Ben was found to be extremely intoxicated day later on December 19, 1997. [34] The Institutional Summary goes on to say that Mr. Ben’s “Statutory Release was revoked on February 18, 1998. The National Parole Board felt that substance abuse is his primary criminogenic risk factor and any return to its use makes his manageability and risk undue.” [35] Finally, the Institutional Summary states that “Mr. Ben was again released on Statutory Release on July 21, 1999. Due to substance abuse being his primary criminogenic risk factor, the National Parol Board felt that special condition to abstain from all intoxicants was necessary. He was released to Pelican Narrows, SK. little more than three months later, Warrants of Apprehension and Suspension were issued due to Mr. Ben consuming alcohol and traveling [sic] outside of his travel area”. [36] transcript of the sentencing hearing relating to the June 23, 2004, convictions for Theft Under and Uttering Threats was filed (Exhibit P7). The accused, upon being arrested for vehicle theft, stated “that he had gun with bullet in it for the officer’s head”. Defence counsel noted that Mr. Ben had been drinking and doesn’t remember lot of what took place. At page of the transcript, Judge Fraser stated “The primary goal in this sentencing is individual deterrence, in my opinion. The RCM Police and any police officer is entitled to the full protection of the court as best can do that, and that expression is to make sure that Brian Ben does not circulate in our society for awhile.” Judge Fraser’s last comment to Mr. Ben was “Only you can take control of your life, sir.” [37] Similarly, in the incident before me, Mr. Ben admitted that he had been drinking wine and whiskey for “a couple of hours” before the police officer arrived and when asked if he would say he was pretty intoxicated, he said “Cut, yeah”. He admitted that his memory was pretty shaky due to alcohol consumption. (Trial Transcript, p. 71) [38] must decide whether there is evidence of “pattern” of behaviour in Mr. Ben’s actions to meet the requirements of s. 753(1)(a)(ii) and (ii). In R. v. Casemore, 2009 SKQB 306 (CanLII), at paragraph 9, Justice Ottenbreit discussed what is meant by “pattern”: “pattern” does not need to equate to similar fact evidence; general similarity is sufficient. There need not be lengthy history of violence or aggression for pattern to be found, so long as there are sufficient elements of similarity in the offender’s behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychological damage. Or, alternatively, the pattern must contain aggressive behaviour that demonstrates substantial degree of indifference to the reasonably foreseeable consequences to the victims of the offences. [39] Judge Giesbrecht, in R. v. Steppan, 2010 MBPC (CanLII), discussed what was meant by “pattern” at paragraph 102: In order to be found dangerous offender there must be “pattern” of repetitive or persistent behaviour by the offender under s. 753(1)(a)(i) or (ii). In determining whether the offender’s behaviour constitutes relevant pattern the sentencing judge may have regard to past criminal conduct by the offender which involves some degree of violence or endangerment, the criminal record of the accused and psychiatric reports relating to past conduct and future risk assessment. There need not be lengthy history of violence or aggression for pattern to be found. [40] I find that given the number and nature of violent offences on Mr. Ben’s record, and that many of those violent offences involve peace officers and alcohol use, a pattern of behaviour has been established. [41] Under s. 753(1)(a)(i) of the Code, the Crown need not prove that the offender will commit acts which will cause injury to other persons in the future, but only that there is likelihood that the offender will cause such injury in the future (Steppan, para. 108). The best prediction of future behaviour is past behaviour. In looking at Mr. Ben’s past actions, find there is likelihood that Mr. Ben will cause injury in the future. [42] Under s. 753(1)(a)(ii) of the Code, the Crown must prove substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour. Again, in looking at Mr. Ben’s past actions, and most notably the facts in this case, it would appear that Mr. Ben does demonstrate such indifference. [43] The Court of Appeal at paragraph 15 in Roy made reference to the fact that the sentencing judge had found that: there were no reasonable grounds to believe that Mr. Roy might be found to be either dangerous offender or long-term offender in any event. He arrived at this view largely on the basis that he did not believe sentence of two years or more would be appropriate for the predicate offence, thus —in his view— ruling out the possibility of long-term offender designation, and therefore, also ruling out the possibility of dangerous offender designation. [44] As previously noted, the Court of Appeal upheld the sentencing judge on the point of whether the offence was “serious personal injury offence” and as result, at paragraph 41, Justice Jackson said “.. do not need to consider whether the trial judge erred in his interpretation of s. 752.1 and his reliance upon two year threshold before ordering an assessment.” [45] As the matter of penalty may be relevant, both counsel made submissions before me on the appropriate sentence in this case. The Crown referred to the decision of R. v. Kolarava, 2007 MBPC 66 (CanLII), in which Judge Preston, at paragraph 41 discussed an unreported decision with respect to assault peace officer: An unreported, but trenchant, decision of my colleague Sidney Lerner, PJ, R. v. McGinnis, delivered December 4, 2006, is illustrative of the paramount sentencing principles for an assault against peace officer. In this case, the offender had huge animosity towards the police and, in fact, kicked and slapped the police. He had 67 prior convictions, four of them assaulting peace officers. Judge Lerner highlighted the principles of specific deterrence, general deterrence and denunciation. Mr. McGinnis was sentenced to three years in jail. [46] The Crown noted that the charge under s. 270 of the Code, Assault Peace Officer, carries maximum of five years, while the relatively new offence of s. 270.1 of the Code, Assault Peace Officer with Weapon, has maximum of ten years. She suggested that given the prior record of the accused and the number of convictions with respect to peace officers, penitentiary sentence is warranted. [47] Defence counsel referenced paragraph 39 of the Kolarava decision where Judge Preston reviewed the following sentencing decisions: In the Rudderham decision, drunken young man with lengthy record for violence broke police officer’s nose. He was sentenced to two years in jail. In the Jodouin case, police officer’s leg was broken during the assault. Mr. Jodouin was incarcerated for two years. In the Brooks judgment, the Court sentenced Mr. Brooks to four-year jail sentence for severe and sadistic attack on police officer. Mr. Brooks had lengthy and related criminal record. In the Pederson case, the offender was 32 years old, had 50 prior offences, 13 of them violent, and was on parole for robbery at the time he assaulted police officer. He was sentenced to one year in jail. [48] Defence counsel submitted that the cases in which an offender was sentenced to term of two years are ones that involve serious violence. She suggested that an appropriate sentence would be that of six months in custody. [49] I find that given the serious nature of this offence, which carries a maximum penalty of 10 years, and taking into account Mr. Ben’s previous record, a sentence of two years or more is possible. [50] Mr. Ben is 50 years old and has lengthy criminal record, containing numerous convictions for violent offences, some of which involve the use of weapon. He has committed serious offences against peace officers in the past on seven occasions, including the present matter. He has an ongoing, unresolved alcohol addiction, which appears to be contributing factor to his reoffending. [51] For all these reasons, I find that it is not beyond the realm of possibility that Mr. Ben could be found to be a dangerous offender. I order that an assessment be conducted, as contemplated by s. 752.1 of the Code, for use as evidence in an application under s. 753 or s. 753.1. L. D. Dyck,","The accused was found guilty on a charge of assaulting a police officer contrary to s. 270.01(1) of the Criminal Code. The Crown applied under s. 752.1(1) for an order remanding the accused for an assessment by an expert for use as evidence in an application to have the accused declared a dangerous offender. The defence opposed the application on the basis that the predicate offence was not a serious personal injury offence and it was not within the realm of possibility that the accused could be found to be a dangerous offender. The accused was 50 years old. He had a criminal record commencing in 1976 which included 58 Criminal Code convictions. Fifteen of his prior convictions were for violent offences and six related to police officers. He had violated mandatory supervision orders on three separate occasions and had breached a conditional sentence order. The crimes of violence on his record involved the use of a weapon on more then one occasion. The facts of the predicate offence involved swinging a branch at a police officer. The officer had tasered the accused, but it had no effect. The accused grabbed a branch and swung it in sufficient proximity to cause the officer to back up, drop his taser and draw his sidearm. The officer provided a victim impact statement outlining the fear he experienced and the psychological impact the offence had on himself and his family. HELD: The offence is a serious personal injury offence as defined in s. 752. The accused picked up the branch with the intention of using it against the officer and it was of sufficient size that if the accused had struck the officer it would have caused serious damage. The accused's actions were found to have endangered or been likely to endanger the officer's life or safety and to have inflicted or been likely to inflict severe psychological damage. Given the number and nature of violent offences on the accused's record, the fact that many of the offences involve violence against police officers and the accused's prolonged issues with alcohol, a pattern of behaviour has been established. The best predictor of future behaviour is past behaviour and there is likelihood that the accused will cause injury in the future. The accused has demonstrated indifference to the reasonably foreseeable consequences to other persons of his behaviour. Given the serious nature of the offence and the accused's prior record for similar offences, a sentence of two years or more is possible.  It is not beyond the realm of possibility that the accused could be found to be a dangerous offender. The assessment under s. 752.1 was ordered.",2_2011skpc80.txt
246,"J. IN THE FAMILY COURT OF NOVA SCOTIA Citation: Family and Children’s Services of Yarmouth County v. L.J. 2004 NSFC Date: March 31, 2004 Docket: 04Y030046 Registry: Yarmouth Between: Family and Children’s Services of Yarmouth County Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on December 9, 2008. Publication restriction: Publishers of this case please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94 provides: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. Judge: The Honourable Judge John D. Comeau, Chief Judge of the Family Court of Nova Scotia Heard: March 10, 2004, in Yarmouth, Nova Scotia Written Decision: March 31, 2004 Counsel: Martin J. Pink, Q.C., for the Applicant Murray R.K. Judge, for the Respondent THE APPLICATION: [2] This is an application brought by the Agency for a finding that the Respondent has abused a child as described in Section 62(a) or (b) or (c) of the Children and Family Services Act. It is for the purpose of entry of the Respondent’s name in the Child Abuse Register. [3] The Complainant born [in 1989], is now fifteen years of age and is in Grade Nine. She has known the Respondent for considerable period of time and has stayed over at his house alone with him. The original connection was her mother’s boyfriend is the Respondent’s nephew. This is how the Complainant got to know him and stay over at his house. [4] The Respondent at the time of this hearing was seventy-seven years of age and he has never been married or lived with woman, just him and his dog. [5] When the Complainant started staying over at the Respondent’s she was eleven or twelve years old and she says they had sexual contact as follows (in the words of the Complainant): He came in the room and found me fooling around with the dog (dog’s penis), and he said, “If you want to play with one, play with mine,” (and she did). He had an erection and then went and cleaned up. OTHER SEXUAL CONTACT: He tried to get his penis in my bum but it did not work so we used liquid detergent but it still did not work. [6] She says that this and other times she was most likely undressed and he had his shirt unbuttoned and pants down to his knees. The attempt at anal intercourse was so she would not get pregnant. [7] Another time (her idea) she sat on the toilet with her legs apart and he stood over her to pee together. [8] During her stays at the Respondent’s home she slept in the bedroom and the Respondent asked her where she wanted him to sleep but she told him she did not care. He would lie down on the bed but never woke up with her in the morning. She thought so much of him that she would do anything for him. [9] These sexual incidents came to light in October, 2002, when the Complainant and her grandfather were watching television program about sexual assault. At this time she confessed what had happened to her grandfather. [10] Consequently and subsequently the Respondent was tried and acquitted of sexual assault in criminal court. [11] Her mother and grandfather confirm that the Complainant told them what had taken place. [12] The Respondent testified that he was lonely, just him and his dog, and the Complainant’s company was great and that she came over almost every weekend. He denies any sexual contact with her. He says she spent lot of time with the dog, and one time he caught her with the dog’s penis out and on top of her. “I told her not to do this because she would ruin the dog.” [13] The first night she came he slept in the same bed as her but only this one time because her mother called and said, “Don’t sleep with her.” [14] The Respondent does admit that the Complainant would grab his crotch on occasion but “I told her this had to stop.” [15] There is evidence that on July 29, 2002, the Respondent was severely beaten by home invader. He was ill for considerable period of time and had three operations. His memory has suffered since and friend would drop by there three to four times day. This witness gives evidence that the Complainant did not visit after this beating (confirmed by the Respondent’s evidence as well). [16] The Complainant says she visited with the Respondent on two occasions after the assault and he was bruised and had bad headaches and was falling lot. Her mother confirms these visits took place. [17] This evidence is relevant according to the Respondent’s Counsel as it goes to the credibility of the Complainant. [18] Whether the Respondent has abused child within the meaning of the Children and Family Services Act. [19] The relevant sections “abuse” defined: 62 In Sections 63 to 66 “abuse” of child by the person means that the child (b) has been sexually abused by the person or by another person where the person, having the care of the child, knows or should know of the possibility of sexual abuse and fails to protect the child; or Child Abuse Register 63(1) The Minister shall establish and maintain Child Abuse Register. Entry of information (2) The Minister shall enter the name of person and such information as is prescribed by the regulations in the Child Abuse Register where (a) the court finds that child is in need of protective services in respect of the person within the meaning of clause (a) or (c) of subsection (2) of Section 22; (b) the person is convicted of an offence against child pursuant to the Criminal Code (Canada) as prescribed in the regulations; or (c) the court makes finding pursuant to subsection (3). Application for finding of abuse (3) The Minister or an agency may apply to the court, upon notice to the person whose name is intended to be entered in the Child Abuse Register, for finding that, on the balance of probabilities, the person has abused child. In camera hearing (4) hearing pursuant to subsection (3) be held in camera except the court may permit any person to be present if the court considers it appropriate. 1990, c. 5, s.63. [20] Although the standard of proof is “on a balance of probabilities” courts have considered the standard of proof elevated with the seriousness of the allegations and its implications (considerably less, however, than proof beyond a reasonable doubt). See MCS v. K.F., 2002, NSSF, 28 (CanLII). [21] In CAS v. R.G., F.H. C92-17 at p. the Court stated: The Court must determine, on balance of probabilities, whether R.G. committed the alleged offence. It is the civil burden of proof. However, given the gravity of the application and its implications, the standard of proof is considered to be high, but not as high as the standard of proof in criminal cases, where the proof must be beyond reasonable doubt. This, although the standard is still the civil standard, considering (a) the nature of the allegation and the moral capability attached thereto and (b) the consequences of finding; that is, publication of the name in the Child Abuse Registry, then the Court must adopt the position that was adopted in J.L. v. CAS of Halifax v. Attorney General of Nova Scotia, 44 R.F.L. (2d) 437. Jones, J.A. discusses extensively the burden of proof at pp. 449 to 451, and specifically states that although the civil rule applies, “... court must have regard to the gravity of the consequences of the finding.” (page 449 to 450) His Lordship goes on to quote Cartwright, J., Laskin, C.J.C., and Lord Dennings. Laskin, C.J.C. in Continental Insurance Company v. Dalton Cartage Company Limited 1982 CanLII 13 (SCC), [1982 S.C.R. 164] refers to “... proof commensurate with the gravity of the allegations ...” Laskin, J. goes on to quote Lord Dennings in Bater v. Bater [1952 All E.R. 458, at p. 459.] It is true by our law there is higher standard of proof in criminal cases than in civil cases but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt but there maybe degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous so ought the proof to be clear, so also in civil cases. The case may be proved by preponderance of probability, but there may be degrees of probability within that standard. The degree depends upon the subject matter. civil court, when considering charge of fraud, will naturally require higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high degree as criminal court even when it is considering charge of criminal nature but still it does require degree of probability which is commensurate with the occasion. CONCLUSIONS/DECISION: [22] The Complainant gave specific detailed evidence of sexual relations with the Respondent all of which is denied by him. There are very serious allegations and the Court will consider this within the standard of proof. At the time the sexual contact she describes took place the Complainant was child within the meaning of Section 3(1)(e) of the Act, “a person under sixteen years of age”. [23] In determining whether or not the allegations of the Complainant are probable peripheral evidence should be looked at. [24] The Respondent is now seventy-seven years old and would have been approximately seventy-two or seventy-three at the time of the alleged sexual contact. He lived alone and was very happy to have this little girl visit. The first night she was there he slept on her bed, maybe not all night and not under the covers. This fact came to her mother’s attention and he was told not to do this. [25] He admits seeing her playing with the dog’s penis but instead of telling her how bad this was and reporting it to her mother, he told her not to do this anymore. “It would ruin the dog.” [26] There were occasions, not denied by the Respondent, that she would grab his crotch. He told her this had to stop but there is no evidence that this was reported by him to her mother. This would have been the most reasonable and logical thing to do. [27] The Complainant’s credibility has not been impeached. [28] On “balance of probabilities” the Court finds that the evidence of the Complainant that she was sexually assaulted by the Respondent has more probability of truth than disbelief. [29] The Court finds that the accused has abused a child within the meaning of Section 62(b) of the Children and Family Services Act. John D. Comeau Chief Judge of the Family Court of Nova Scotia","The Agency brought an application for a finding that the Respondent had abused a child, for the purposes of entering his name in the Child Abuse Register. The complainant described certain incidents that amounted to sexual assault when she was under the age of 16. The Respondent had previously been acquitted of charges based on the same allegations in criminal court. The Respondent has abused a child within the meaning of the Act. Although the standard of proof is on the balance of probabilities, it is elevated with the seriousness of the allegations and their implications. However, it is considerably less than proof beyond a reasonable doubt.",4_2004nsfc6.txt
247,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 040 Date: February 25, 2014 Information: 2451090 Location: Melfort Between: Her Majesty the Queen Appearing: Tom Healey For the Crown Todd Parlee For the Accused DECISION ON PEACE BOND APPLICATION J. RYBCHUK, INTRODUCTION [1] The defendant, R.N.S., is a repeat violent and sexual offender who was still serving a sentence for sexual assault and out on a weekend parole pass when he committed his last sexual assault offence against his 14 year old niece. He was therefore, returned to prison and served his entire sentence to warrant expiry before being placed on s. 810.1 peace bond recognizance upon his release from prison in 2010, and then again in 2012. The Crown now applies for third recognizance. The issue is whether the recognizance should be granted again. [2] Corporal Jason Teniuk of the RCMP swore an Information that he has reasonable grounds to believe that R.N.S. will commit either serious personal injury offence or sexual assault offence involving someone under the age of 16 years and requests that R.N.S. be bound over to keep the peace and be of good behaviour. [3] The Consent of the Attorney General has been filed with the Court as required pursuant to s. 810.2(1) of the Criminal Code. [4] The Crown called two witnesses at the hearing: 1. Corporal Jason Teniuk, 13 year member of the RCMP, in charge of the recently constituted High Risk Offender\\Serious Violent Offender Response Unit, who affirmed his belief that R.N.S. will re-offend and provided his reasons therefor; and 2. Janice Woytiuk, Parole Officer with 29 years experience working with Correctional Service of Canada, who outlined R.N.S.’s history in the federal prison system. It was also her belief that based upon this history, he remains high risk to re-offend both sexually and violently. [5] binder of documents was filed and admitted into evidence by consent of the parties as Exhibit P-1. These documents were referred to and relied upon heavily by the Crown witnesses in their testimony. The binder was comprised mainly of: 1. Documents prepared by the Correctional Service of Canada relating to R.N.S.’s last sentence and stay at the Prince Albert Federal Penitentiary from 2007 to 2010, including: a) Criminal Profile Report; b) Correctional Plan Initial-Intake; c) Progress and Assessment Reports; d) Psychological/Psychiatric Assessment Reports; and e) National Parole Board Canada Detention Extension Decisions. 2. Transcripts of Sentencing Proceedings and Hearings for offences committed by R.N.S.’s since his release from prison in 2010 to 2013. 3. Criminal Record of R.N.S.. [6] R.N.S. testified in his defence that his life is going much better now and he feels pretty good, except that he believes he is still being penalized by the conditions in his recognizance and that his life is on trial to everyone. [7] Whether the analysis is regarding recognizance pursuant to s. 810.1 or s. 810.2, there are common underlying principles applicable to both. R.N.S. is not charged with criminal offence. No criminal conviction flows from person entering into such recognizance. The recognizances involved are designed to be preventative rather than punitive measures. While both impose restrictions upon an individual’s freedoms, such restrictions are only those as are necessary to assist the individual from committing future offences or misconduct (see R. v. Loysen, 2006 SKQB 290 (CanLII); R. v. Bilida, 1999 ABQB 1016 (CanLII)). [8] No triggering event is required to engage s. 810 hearings, but defendant’s previous criminal convictions are relevant to support the application for recognizance (see R. v. Budreo, 2000 CanLII 5628 (ON CA), 2000 46 O.R. (3d) 481 (ONCA) at para. 44; as adopted by Wilkinson J. in R. v. Loysen, supra, at paras. 17 and 18). There were nevertheless some triggering events here with R.N.S.’s repeated violations of his s. 810.1 recognizances, including most recently on November 6, 2013, and his violent outburst in Court on October 15, 2013 where he told the Crown prosecutor “you’re fucking bitch” and another person in the courtroom to “fuck you”, “fuck you, man” and “Yeah. Fucking, take these off.” [9] The Crown bears the persuasive burden of proof in peace bond applications as outlined in ss. 810.2(3) and s. 810.1(3) of the Criminal Code, both of which provide as follows: (3) If the Provincial Court Judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into recognizance to keep the peace and be of good behaviour for period that does not exceed 12 months. [10] Therefore, the Crown has the onus of proving on balance of probabilities that Corporal Teniuk’s beliefs that R.N.S. will re-offend are reasonable. There is both subjective and an objective component to his beliefs that must be established by the Crown (see R. v. Soungie, 2003 ABPC 121 (CanLII) at para. 46; R. v. Bird, 2010 SKPC 25 (CanLII) at para. 5). Defence counsel does not dispute Corporal Teniuk’s subjective belief that R.N.S. will commit another serious personal injury or sexual assault offence. The sole issue to be determined is whether Corporal Teniuk’s belief is reasonable in the circumstances (i.e. that an objective person armed with the same knowledge as Corporal Teniuk would agree that his fears are reasonable). [11] In R. v. Teneycke, 2008 SKQB 239 (CanLII), Madam Justice Rothery adopted the test as outlined in Nobel v. Teale (2005) 2005 CanLII 44305 (QC CS), 36 C.R. (6th) 258 (leave to appeal to Que. C.A. dismissed 2005 QCCA 1174 (CanLII)) at para. 2: the fear to be established is that the defendant will commit personal injury offence imports component of imminency. (Note 9: R. v. Budreo, 1996 CanLII 11800 (ON SC), 104 C.C.C. (3d) 245 (Ont. Gen. Div.) at p. 263): Judges should take care before exercising their preventative jurisdiction. Both ss. 810 and 810.1 speak of reasonably grounded fear that the defendant “will” commit an offence. To my mind, as matter of legislative construction, this takes the appropriate threshold notch above simple demonstration that defendant is more likely than not to commit an offence. reasonably grounded fear of serious and imminent danger must be proved on balance of probabilities. [Emphasis added to both quotes] [12] Further, in R. v. Budreo, (2000) 2000 CanLII 5628 (ON CA), 142 C.C.C. (3d) 225 (Ont. C.A.) Justice Laskin stated at para. 51: the phrase “fear on reasonable grounds” in section 810.1(1) connotes reasonably based sense of apprehension about future event. [Emphasis added] [13] The Information prays for two recognizances:1. Count #1: Section 810.2 of the Criminal Code serious personal injury offence; and2. Count #2: Section 810.1 of the Criminal Code sexual assault offence in respect of someone under the age of 16 years. [14] The Crown has indicated it is only looking for one recognizance and it does not matter under which section they obtain it. So, will consider them in the order in which the counts are presented in the Information. COUNT #1: SECTION 810.2 [15] ‘Serious personal injury’ offence is defined in s. 752 of the Criminal Code as indictable offences for which the offender may be sentenced to imprisonment for 10 years or more, involving: (i) The use or attempted use of violence against another person; or (ii) Conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or various sexual assault offences. [16] Corporal Teniuk and Janice Woytiuk both testified in an honest, open and straightforward manner. They both reviewed the voluminous binder of materials filed as Exhibit P-1 in this hearing and based upon their observations and experience came to the same conclusion with respect to R.N.S.. [17] They gave detailed account of R.N.S.’s criminal history. They did not seem to have any particular agenda with him. They testified to both the programming R.N.S. took and the programming he refused to take to address the serious risks identified in his Intake Assessment and Plan and Progress and Assessment Reports. They both outlined the risks and concerns they have with R.N.S. that remain untreated to this day. [18] Ms. Woytiuk provided her observations of R.N.S. while he was in prison, including in particular the last months to his warrant expiry date after he was refused release by the Parole Board of Canada on statutory remission after having served two-thirds of his last sentence for sexual assault. [19] Corporal Teniuk’s role in the RCMP High Risk Offender/Serious Violent Offender Response Unit is to monitor serious violent offenders upon their release from prison and assess whether s. 810 recognizance orders should be sought. After reviewing the binder of materials filed as Exhibit P-1 and relying on his own personal experience in reviewing and dealing with matters of this sort, he determined that another recognizance for R.N.S. would be in order. [20] too, have no hesitation in relying upon Exhibit P-1 in reaching my decision. The defendant provided the Court with the case of R. v. George, 2007 ONCJ 16 (CanLII) to argue the proposition that the very nature of the Correctional Service of Canada and the Parole Board of Canada documentation filed as Tabs through in Exhibit P-1 “streamlined” or dictated very strongly the outcome of all future assessments that the defendant should not be released from prison or subject to recognizance, as they are all built on the same foundational material (i.e. that the defendant was assessed as high risk to re-offend) and should therefore, be disregarded. [21] was not provided with the documentation that was prepared relative to the defendant in that case, Mr. George’s own individual circumstance and filed with the Ontario Court of Justice. So was unable to review and compare and contrast them against the documentation that was prepared relative to R.N.S.’s own individual circumstances in this case and filed with the Saskatchewan Provincial Court. They are standard format documents common to federal penitentiary services across Canada, but Ms. Woytiuk testified that there still exists differences in the documentation and how it is prepared from jurisdiction to jurisdiction across Canada, with differing authors and differing offenders in differing circumstances. am therefore, unable and refuse to make generality of that sort. [22] also find the facts apparent from that case distinguishable from the facts of this case. Ms. Woytiuk testified that she has worked with the Correctional Service of Canada at the Federal Penitentiary in Prince Albert for 29 years, the last 19 years of which as parole officer. She has plenty of experience in the areas of assessing and supervising inmates while institutionalized. They are required by law under the Corrections and Conditional Release Act S.C. 1992, c. 20 and Corrections and Conditional Release Regulations (SOR/92-620) to prepare most of the documentation contained in Exhibit P-1. They are professionals doing their job. Their focus is on helping offenders to minimize their risk of re-offending through programmes designed to assess their needs. They utilise variety of programming, treatment and tools to help offenders identify, understand and develop plans to address the behaviours that get them into trouble and the prison system. They develop Correctional Plan Reports that intervene in need or risk areas of the offender to steer them from intake to release. However, it is up to the offender to avail themselves of these tools or programming and treatment options. They can either progress or digress. The offender’s security risks can either be downgraded or upgraded based upon their actions, or lack thereof, while in prison. [23] The Progress Reports contained in Exhibit P-1 are unbiased and present in professional and accurate manner R.N.S.’s history. They present in an objective manner both favourable and unfavourable information relative to the defendant. [24] Ms. Woytiuk acknowledged that the reports indicate that alcohol remains major substance abuse risk for the defendant, but that marihuana and drug use appears to have slowed down over the years and is only minor now. [25] The Exhibit P-1 documents also bear out Ms. Woytiuk’s testimony that: 1. R.N.S. did participate in moderate intensity Aboriginal sex offending, substance abuse and domestic violence programming on his first federal sentence and before she became involved in his case; 2. He commenced his sentence with less than Grade 10 education and obtained his GED and was trying for Grade 12; and 3. During his stay in prison he only had minor institutional infractions, but noted institutional behaviour means very little in relation to behaviour in the community. [26] Ms. Woytiuk also explained any missing pages from the documentation such as picture of the defendant and standard letter to governmental agencies that also received the package of materials. [27] As such, find Exhibit P-1 to be professional and objective documentation properly admitted into evidence as full exhibits by consent of the parties, and properly considered by hearing judge in making decision whether to grant recognizance. They do not dictate the outcome in relation to R.N.S.’s own unique circumstances. [28] R.N.S. did take some Aboriginal programming in the Pathways Range/Unit at the Saskatchewan Penitentiary, but that fell apart for variety of reasons and R.N.S. was removed from the range before Ms. Woytiuk came along. That was good effort on R.N.S.’s part, but it is not enough to address his underlying risk factors of substance abuse, domestic violence and sexual offending. [29] After carefully considering all of the testimony and materials filed at the hearing, find that an objective person armed with the same knowledge would agree that the fears of Corporal Teniuk, and indeed Ms. Woytiuk too, that R.N.S. will commit serious personal injury offence are reasonable in the circumstances of this case. That is, they both have the required subjective and objective fear and apprehension that he will commit serious violent or sexual offence and those fears are serious and imminent for the following reasons: 1. R.N.S. has 59 prior criminal convictions comprised of: 12 assault related, including sexual assaults, and also common assaults against his spouse; impaired/exceed .08; drive while disqualified; 13 breaches of recognizance (s. 145); escape lawful custody; fail to attend/appear; breaches of recognizance (s. 811). 2. R.N.S. entered the criminal system at young age. He continued to re-offend and became entrenched there. There was no de-escalation in the violence or success in getting back on track. The sexual assaults got worse over time. 3. R.N.S. has over 20 failures to comply (i.e. breaches) of lawful court orders. The three escapes from lawful custody are important and speak to his lack of self control and impulse behaviour. For example, on one of them R.N.S. had only been allowed to work on work crew in prison for five days when he attempted to escape. police officer came to arrest him and he ran off into the bush. 4. R.N.S.’s 12 assault related convictions indicate serious history of violence and potential for future harm. It gives an insight to his degree of impulsivity and inability to telegraph his behaviour. The victims of his violence are almost always women and defenceless or passed out. 5. R.N.S. testified that his life was pretty good now. The same cannot be said for the victims of his various assaults, such as his own father who lost an eye. 6. R.N.S. was still serving his last sentence for his second sexual assault offence and was out on weekend pass from halfway house when he committed his third sexual assault against his own 14 year old niece. He also breached conditions of his release and committed three other assaults at the same time. R.N.S. has demonstrated history of re-offending within short order of his release from prison, even while under supervision, which is to be taken very seriously. 7. R.N.S. had already completed moderate intensity programming for sexual offending on his prior sexual assaults when he committed his third sexual assault. So he is now assessed as high risk to re-offend sexually and required to complete high intensity sex offender programming. R.N.S. has never availed himself of such programming either during the almost last four years he served in prison, nor afterwards in the almost four years since his release from prison. This is in spite of all the encouragement he received from parole officers, including Ms. Woytiuk to take the programming. She testified he was always resistant to it. do not believe the defendant’s testimony that it was only moderate intensity course that was being offered to him and that Ms. Woytiuk was in his words, “bullshitting you”. R.N.S. admitted in cross-examination that he did not review the documents contained in Exhibit P-1. Had he, he would have clearly seen that it was high intensity sex offender programming that was being offered to him while in prison, which he refused to take. 8. R.N.S. has serious alcohol abuse problem. He is almost always intoxicated when he commits offences. It has plagued him for over 20 years. He has had every opportunity to address this issue and participate in programming, but refuses to do it. He believes that talking to his uncle who is an elder couple of times week, as he has been for the last number of years, is satisfactory way to deal with this glaring issue. With respect, this is simply not satisfactory way to deal with it and has not been satisfactory way to deal with it over the last 20 years while he committed all the offences on his Criminal Record. 9. R.N.S. would not indicate to Corrections officials where he was going upon his release. Although there is no legal obligation upon him to do so, this does provide some insight to his mind set. 10. Since R.N.S. was released from prison in 2010 he has committed five more Criminal Code offences (i.e. two drive while disqualified and three breaches of his s. 810.1 recognizances). R.N.S. also volunteered in cross-examination that he was recently charged with, but acquitted of, another assault offence. am entitled to consider this unproven prior misconduct in assessing threat imposed by defendant in s. 810.2 application, but such information is by its very nature, of suspect probative value and was accorded little weight in my balanced judicial consideration. 11. R.N.S. argues that his most recent breaches of his s. 810.1 recognizances are minor in nature (e.g. not carrying copy of the recognizance on him) and should not be taken too seriously in deciding whether further restrictions need to be placed upon him. However, when examined in the context of his criminal past, breach of section 810.1 recognizance must be seen as particularly serious matter and principles of deterrence and public protection are of heightened importance as the community faces potentially significant risk to the safety of its members when person bound by section 810.1 recognizance fails to comply with it (see R. v. Helary (2007) 2007 NLCA 47 (CanLII), 225 C.C.C. (3d) 265 (Nfld C.A.) at paras. 10 16; R. v. Ballantyne, 2009 SKCA 27 (CanLII)). 12. Since R.N.S. was released from prison, 26 of his 36 months have been spent in jail. 13. The Psychological/Psychiatric Assessment Reports contained in Tabs and of Exhibit P-1 indicate that R.N.S.’s high risk areas are: a. Domestic violence; b. Substance abuse; and c. Sexual offending. He did not sufficiently address these high risk issues, especially the substance abuse issue which affects the others. He was and continues to be high risk to re-offend both violently and sexually. 14. Following R.N.S.’s release from prison, the Crown obtained further Progress Report from Probation Officer, Jenna Milne, on July 12, 2011 which is contained in Tab of Exhibit P-1 and sets out that R.N.S.’s Saskatchewan Primary Risk Assessment is in the 92nd percentile, which means that only percent of Saskatchewan offenders were assessed as having more risk factors. As well, R.N.S.’s Ontario Domestic Assault Risk Assessment of domestic violence recidivism scored within the highest range, which means that no man scored higher and 93 percent scored lower, and 70 percent of men with scores in this range re-offend against their partners. 15. R.N.S.’s Static 99-R assessment of risk to recidivate sexually scored in the high risk category, which falls into the 94.9 to 97.8 percentile for being charged or convicted of another sexual offence. Offenders with the same score have been found to sexually re-offend at rate 25.4 percent in five years. This percentile range means that 94.9 to 97.8 percent of sex offenders in these samples scored at or below R.N.S.’s score. Conversely, 2.2 5.1 percent of the sample sex offenders scored higher. 16. Probation Officer Jenna Milne’s report concludes with the following paragraph: Following numerous meetings with the subject, this writer is of the opinion that R.N.S. portrays negative attitude in regard to the current conditions of his s. 810.1 Recognizance. He has indicated that he finds the conditions restricting and therefore, he is actively placing his own personal agenda before the safety of the community in which he resides. Having R.N.S. reside in the community without strict conditions, is jeopardizing the safety of the young people within the community. [30] trial judge hearing peace bond application must balance competing interests of the safety of the community against the defendant’s individual liberty being restricted. On the facts of this case, the balance of convenience favours strongly the safety of the community over R.N.S.’s right to be left alone. [31] gave very little weight to R.N.S.’s evidence in general for some of the same reasons indicated above, but also because: 1. He admitted he did not read the Exhibit P-1 binder of materials that had been provided to him through his lawyer. 2. He could remember and provide details of matters that benefited him, but could not recall or minimized details of matters that did not benefit him, such as: a) when and how many times he may have assaulted the mother of his children; and b) he did not have clue about when and what forms of counselling he took (e.g. whether it was for the first, second or third offence). 3. He told the Court on January 20, 2014 that he was not an alcoholic when three months earlier on October 15, 2013 he told the Court he was an alcoholic. 4. He gave evidence that contradicted other more credible evidence contained in Exhibit P-1 and testimony of Ms. Woytiuk. For example, he claimed that he did not attend AA because it is not offered in the Saskatchewan Penitentiary, when it is. [32] also do not believe R.N.S.’s evidence that he did not take the high intensity training because it is not offered by the Saskatchewan Penitentiary and that only moderate training was offered. Instead, accept the Correctional Services of Canada and Parole Board Canada documentation and Ms. Woytiuk’s testimony that it is offered by the Saskatchewan Penitentiary and he simply refused to take it because he was concerned about how the other inmates would treat him knowing that he was in that programme. All other sexual offenders face the same stigma and this is no excuse for him not to take the programming. [33] believe Ms. Woytiuk when she says that R.N.S. never did submit required transfer application to another federal institution to take the high intensity sexual programming and that when he did mention it, it just seemed to be superficial to her and could not be accomplished within his timelines for release anyway. also do not believe R.N.S. when he says he only met with Ms. Woytiuk less than four times. Ms. Woytiuk indicates that she knew him from before her direct involvement and that she met with him frequently. [34] R.N.S. also testified that he does not have any anger management issues. However, he became quite agitated on the stand to the point that extra court security staff needed to be called in. am also convinced that he still has untreated anger management issues which are evident from the transcript of proceedings in Provincial Court held in Tisdale on October 15, 2013 at Tab of Exhibit P-1, page 21: The Court: Okay, so you are remanded to November 12. If you talk to Mr. Parlee and there’s another date that the Crown and Defence can bring it forward to, then they can do that. Alright. So you can talk to Mr. Parlee about that. Thank you. R.N.S.: You’re fucking bitch. The Court: And that’s November 12 R.N.S.: You know that eh. The Court: at 9:30 in Male: Hey. Watch your mouth. R.N.S. Hey, hey. Come on. The Court: Melfort. R.N.S.: Do it. Male: Show little respect, why don’t you, R.N.S.. R.N.S.: Do it. Male: R.N.S.. R.N.S.: Come on. Male: R.N.S., have seat. Show little respect. (Very loud disturbance in courtroom) The Court: We’re going to adjourn court Ms. O’Connor: Thanks. The Court: for five minutes. Male: Show little respect. Fuck you. (Very loud disturbance continues in courtroom) R.N.S.: Fuck you, man. Male: You’re real tough guy, aren’t you. R.N.S.: Yeah. Fucking, take these off. (Very loud disturbance continues in courtroom) COURT ADJOURNED. END OF PROCEEDINGS ON RECORDING. [35] I therefore find myself in the position where I agree with the beliefs and opinions expressed by all the Corrections, Parole and Probation Officers, the psychologists and psychiatrists, the members of the Parole Board of Canada and Corporal Teniuk in particular, that his fear that R.N.S. will re-offend in a violent or sexual manner is real and poses an imminent danger to public safety. I therefore, grant another recognizance to bind R.N.S. over to keep the peace and be of good behaviour pursuant to s. 810.2 of the Criminal Code of Canada. COUNT #2: SECTION 810.1 [36] My previous finding that the Crown has already proven on balance of probabilities under s. 810.2 of the Criminal Code the fear of Corporal Teniuk that R.N.S. will commit serious personal injury offence includes the offences of s. 271 (sexual assault), s. 272 (sexual assault with weapon, threats to third party or causing bodily harm) or s. 273 (aggravated sexual assault) also contained in s. 810.1(1) of the Criminal Code. [37] R.N.S.’s most recent and third sexual assault was perpetrated on his 14 year old niece. He has refused to take any of the high intensity sexual programming recommended for him since that time. As such, he remains high risk to re-offend and find the Crown has also proven on balance of probabilities that the fear of Corporal Teniuk that he will commit another sexual assault offence in respect of one or more persons who are under the age of 16 years is objectively supported by the same evidence set out under Count #1 of this decision. [38] The mere passage of time is not enough to reduce his risk of re-offending. agree with Ms. Woytiuk’s evidence that the passage of time may only reduce risk factor nominally, and even then it must be over an extended period of time. R.N.S. is only 40 years of age and is in good physical health. His sexual assault offences have been committed after drinking. He has not taken seriously his need to address his substance abuse issues. He continues to refuse professional treatment or attend AA. As such, substance abuse continues to be real risk to his re-offending sexually. CONCLUSION [39] I therefore, order that R.N.S. be bound over on a third section 810.2 or 810.1 recognizance for a term of one year commencing February 25, 2013, on the following terms and conditions:1. Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so by the Court; 3. That you shall report, in person, between 8:00 a.m. and 4:00 p.m. to the Tisdale Detachment of the RCMP, Tisdale, Saskatchewan, within 24 hours to register and to have your photograph taken; 4. That you shall report, in person, to the Chief Probation Officer or his designate within 24 hours at 107 Crawford Avenue East, Melfort, Saskatchewan, 306 752 6240 and, thereafter, to follow all lawful instructions of the Chief Probation Officer or his designate; 5. That you shall continue to report, in person, to the Tisdale Detachment of the RCMP, Tisdale, Saskatchewan, each Wednesday between 8:00 a.m. and 4:00 p.m. until the expiration of the Order, except that if you are to be away from Tisdale for work purposes, you shall advise the Tisdale RCMP in advance of the name and contact information for your work, and if you are away you shall report each Wednesday by phone at 306 878 3810 between 8:00 a.m. and 4:00 p.m. to the Tisdale RCMP; 6. That you shall reside at place approved by the Chief Probation Officer or his designate and shall not change your address without prior approval of the Probation Officer; 7. That you shall attend any programming that may be required as part of treatment as directed by Probation Services; 8. That you shall attend for the purpose of Risk Assessment as directed by your Probation Officer, months from the signing of this Order, or as directed by your Probation Officer; 9. That you shall not have any contact directly or indirectly with L.P., except through member of the Law Society of Saskatchewan or third party for the purpose of arranging access to your children; 10. That you shall not have any unsupervised contact with any person under the age of 16 years, except your children, C., S., O.1 and A. and your step-children, O.2, T. and E. and grandchildren, L.C. and J.T.; 11. Any supervised contact must be by an adult who is familiar with R.N.S.’s criminal history; 12. That you shall notify the police immediately of any female person with whom you become involved in relationship, and agree that the police, where they deem appropriate will notify any child caring agency or any female person with whom you become involved in relationship of your offence history; 13. That you shall not possess or consume alcohol or drugs that have not been prescribed for you by medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores; 14. That you shall not be employed, either for remuneration or as volunteer, in any capacity or activity that will bring you into contact with persons under the age of 16 years; 15. That you shall report to the Tisdale Detachment of the RCMP, Tisdale, Saskatchewan any travel plans outside the jurisdiction, including destinations, accommodations, departure date and return date prior to travelling; 16. That should you alter your appearance, you shall upon demand of peace officer submit to photograph; 17. That you shall carry copy of the recognizance on your person at all times and present the recognizance upon contact with any police officer; 18. That you shall agree that in the event you are granted permission from the Courts or Probation Services to move from your area of residence for any reason, all these conditions and enforcement thereof will be transferred to the police agency in the jurisdiction in which you relocate. J. Rybchuk,","Criminal Law – Recognizance The defendant was a repeat violent and sexual offender who was still serving a sentence for sexual assault and out on a weekend parole pass when he committed his last sexual assault offence against his 14-year-old niece. He was returned to prison and served his entire sentence to warrant expiry before being placed on a s. 810.1 peace bond recognizance upon his release from prison in 2010 and then again in 2012. The Crown then applied for a third recognizance. An RCMP officer with the High Risk Offender/Serious Violent Offender Response Unit swore an Information that he had reasonable grounds to believe that the defendant would commit either a serious personal injury or a sexual assault offence against someone under the age of 16 years and requested that he be bound over. A parole officer with Correctional Services Canada also testified to the defendant’s history in the federal prison and to her belief that based, upon his history, the defendant remained at high risk to re-offend. The Crown indicated that it was looking for one recognizance, either under s. 810.2 or s. 810.1 of the Criminal Code. The defendant had 59 prior criminal convictions, 12 of which related to sexual or common assaults. He had a serious alcohol abuse problem and committed most of the assaults while intoxicated. While in prison, he had refused to participate in programming. As a high risk to re-offend for sexual offending, the defendant was required to complete high-intensity sex offender programming but had not availed himself of the opportunity to do so during the last four years. HELD: The Court granted the recognizance to bind the defendant over to keep the peace and be of good behaviour pursuant to s. 810.2 of the Code because it agreed with the beliefs and opinions expressed by the witnesses and their evidence that they believed that he would re-offend in a violent or sexual manner, which posed an imminent danger to public safety.",6_2014skpc40.txt
248,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 265 Date: 20050608 Docket: U.F.C. No. 173/1991 Judicial Centre: Saskatoon, Family Law Division BETWEEN: KELLIE ANNE HUBBARD (Formerly Gore-Hickman) and PATRICK O’BRIEN GORE-HICKMAN Counsel: L. G. Greenhorn for the petitioner K. J. Ford, Q.C. for the respondent FIAT RYAN-FROSLIE J. June 8, 2005 [1] Mr. Gore-Hickman applies to vary his February 28, 1992 divorce judgment to fix support for his oldest son, Brett, who resides with him, retroactive to August 1, 2004 and to terminate the payment to his former spouse for Brett, also effective August 1, 2004. [2] On March 30, 2005, this Court made an order fixing the parties’ incomes and providing for ongoing support for Brett of $129 per month. It also terminated Mr. Gore-Hickman’s payments for Brett as of that date. The issue of whether these orders should be made retroactive was reserved and that is the sole issue now before the Court. [3] The parties were married on May 23, 1980 and separated in December, 1990. They have two sons, namely: Brett O’Brien Gore-Hickman, born February 20, 1987 (age 18) and Kurt O’Brien Gore-Hickman, born May 12, 1989 (age 15). On February 28, 1992, Justice M. Y. Carter granted judgment for divorce after trial in which the parties were given joint custody of their two sons with primary residence to be with their father. Ms. Hubbard was to have the children with her every weekend from Friday at 9:00 a.m. to Monday at 8:00 p.m. and every Wednesday from 8/9:00 a.m. to 8:00 p.m. Holiday time was to be shared equally and Ms. Hubbard was to be the babysitter of first resort should Mr. Gore-Hickman go away on holiday without the boys. Mr. Gore-Hickman was ordered to pay $670 per month per child to Ms. Hubbard as child support. This was done even though Mr. Gore-Hickman had primary residence of the children. In her written decision, Justice Carter indicated child support was warranted given the amount of time the children would be spending with their mother and the disparity in the parties’ incomes. The judgment was pre-Guideline decision and the payments were tax deductible to Mr. Gore-Hickman and taxable in the hands of Ms. Hubbard. [4] In January, 1999, both parties applied to vary the judgment. Ms. Hubbard sought to bring the payments under the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] which came into effect May 1, 1997 and Mr. Gore-Hickman sought to eliminate the payments. On July 12, 1999, Justice Laing dismissed both applications. He held that the circumstances leading to the child support award had not changed. The parties’ incomes were similar to what had existed in February of 1992 and the children continued to spend substantial portion of their time (38.6%) with their mother. Justice Laing viewed the support granted by Justice Carter as “special provision” within the meaning of s. 17(6.2) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). [5] Commencing with the summer of 2002, the oldest child, Brett, began to spend less and less time with his mother. On February 25, 2004, legal counsel for Mr. Gore-Hickman wrote to Ms. Hubbard requesting that the support payment for Brett terminate (See Exhibit “C” to the affidavit of Mr. Gore-Hickman sworn February 22, 2005). This was followed by further letter dated June 22, 2004. [6] On June 28/29, 2004, the parties’ youngest child, Kurt, went to live with his mother and in July, 2004, Ms. Hubbard began an application to vary claiming child support for Kurt in accordance with the Guidelines. On February 3, 2005, following hearing, Justice Koch varied Justice Carter’s 1992 judgment to provide Kurt’s primary residence would be with his mother. He found Mr. Gore-Hickman’s income for child support purposes to be $524,418 per year and Ms. Hubbard’s income to be $17,265 per year. He ordered Mr. Gore-Hickman to pay $3,550 per month as support for Kurt commencing August 1, 2004, being the first day of the month immediately following Mr. Gore-Hickman’s receipt of notice of the application to vary. While Mr. Gore-Hickman requested Justice Koch to deal with support for Brett, the judge declined to do so, indicating there was no formal application before him. At para. 16 of his judgment he stated: It may be that this variation with respect to support for Kurt will give rise to the need to have the Court consider variation of the existing support order with respect to Brett.... [7] Following Justice Koch’s decision, Mr. Gore-Hickman immediately commenced this application for variation which was filed with the Court on February 25, 2005. Both parties agreed Justice Koch’s findings with regard to the parties’ incomes should be applied in this application. [8] Ms. Hubbard and Mr. Gore-Hickman have both remarried and they continue to live in close proximity to each other. Preliminary Matter [9] As preliminary matter, counsel for Ms. Hubbard argued that because the issue of support for Brett was raised before Justice Koch, it is now “res judicata”. cannot accept that argument. For matter to be res judicata, the cause or issue must have been decided or dealt with in previous proceeding involving the same parties. While Justice Koch may have been able to deal with the issue of Brett’s support pursuant to Rule 591 of the Queen’s Bench Rules of Court, he declined to do so. It is clear from Justice Koch’s written decision that he did not deal with the issue and, in fact, contemplated that the issue would be dealt with by further application. The father’s position [10] Counsel for Mr. Gore-Hickman argues that the order providing for ongoing support for Brett, as well as the termination of his obligation to make payments to Ms. Hubbard for Brett, should both be made retroactive to August 1, 2004. This would be consistent with the order made by Justice Koch with regard to Kurt. Moreover, it is argued Ms. Hubbard had notice of Mr. Gore-Hickman’s position both with regard to terminating the support for Brett and requesting support from Ms. Hubbard by that date. They argue there is presumption in favour of retroactive order and rely on the Alberta Court of Appeal decision in D.B.S. v. S.R.G., 2005 ABCA (CanLII), (2005), R.F.L. (6th) 373 (Alta. C.A.). The mother’s position [11] Counsel for the mother argues the circumstances of this case militate against retroactive order. With reference to the termination of Mr. Gore-Hickman’s payment, they argue that even though Brett’s time with his mother has diminished there was still need on her part to maintain an adequate residence for him and corresponding ability on the part of Mr. Gore-Hickman’s to pay. They also raise the great disparity in income between the parties and argue there was an unreasonable delay in Mr. Gore-Hickman bringing this application. They also argue Ms. Hubbard has spent the funds paid to her by Mr. Gore-Hickman and, as such, they can no longer be returned to him. Ms. Hubbard also points out that the payments made to her were taxable in her hands. With reference to the ongoing payment, she pleads need and inability to pay and again raises the issue of delay. She relies on the British Columbia Court of Appeal decision in L.S. v. E.P., 1999 BCCA 393 (CanLII), (1999), 50 R.F.L. (4th) 302 (B.C. C.A.) and the Ontario Court of Appeal decision in Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 46 R.F.L. (5th) 455 (Ont. C.A.). Legislation [12] The application before me is pursuant to s. 17 of the Divorce Act. The relevant portions of that Act read as follows: 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses. (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. (6.2) Notwithstanding subsection (6.1), in making variation order in respect of child support order, court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, judgment or written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit child, or that special provisions have otherwise been made for the benefit of child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. The Case Law [13] Section 17(1)(a) of the Divorce Act gives this Court jurisdiction to vary support orders retroactively. The issue here is when and from what date retroactive order is appropriate. [14] Judicial authority is divided on this issue. Two lines of authority have developed since the coming into force of the Guidelines. The first line of authority is that of the British Columbia Court of Appeal as set out in the case of L.S. v. E.P., supra. In that case, the British Columbia Court of Appeal held that the granting of retroactive child support lies within the discretion of the Court. There are no provisions that indicate how that discretion is to be exercised. The British Columbia Court of Appeal identified non-exhaustive list of factors which may mitigate for or against retroactive support. These factors are set out at paras. 66 and 67 of the decision as follows: review of the case law reveals that there are number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end. Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and (3) significant, unexplained delay in bringing the application. [15] The British Columbia Court of Appeal held that Court has jurisdiction to make child support order effective prior to the commencement of the proceeding but that it is the “norm” to limit the retroactive award to the date when notice was given. In L.S. v. E.P., the British Columbia Court of Appeal was dealing with provincial legislation. They indicated in their reasons, however, that the same analysis would apply to retroactive orders pursuant to the Divorce Act. The approach taken in L.S. v. E.P. was reconfirmed by the British Columbia Court of Appeal in Tedham v. Tedham, 2003 BCCA 600 (CanLII), (2003), 44 R.F.L. (5th) 204 (B.C. C.A.) and more recently in Macdonald v. Macdonald, 2005 BCCA 23 (CanLII), [2005] B.C.J. No. 38 (B.C. C.A.) (QL). This approach has also been endorsed by the Ontario Court of Appeal in Horner v. Horner, (2004), 2004 CanLII 34381 (ON CA), R.F.L. (6th) 140 (Ont. C.A.), Walsh v. Walsh, supra and Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.) (QL). The Ontario Court of Appeal held that nothing in the Divorce Act or the Guidelines gives court jurisdiction to re-calculate child support retroactively because of an increase in the payor’s income nor does failure to disclose an increase in income have that effect as there is no duty on payor to disclose absent contractual duty, court-ordered obligation or request from the payee for financial information pursuant to s. 25.1 of the Guidelines. The Ontario Court of Appeal held, however, that Courts have broad power to order retroactive support. The Ontario Court of Appeal applied the factors set out by the British Columbia Court of Appeal in L.S. v. E.P. and held that the real question in each case is whether the circumstances justify the making of retroactive order. They also pointed out that court must be careful on an interim application, the purpose of which is to grant temporary relief pending trial, not to render final determination on issues such as retroactive child support where full disclosure and an opportunity to hear all the relevant evidence is seldom available. [16] The second line of authority is from the Alberta Court of Appeal which dealt with the issue of retroactive child support in “trilogy” of cases: D.B.S. v. S.R.G., supra, L.J.W. v. T.A.R., 2005 ABCA (CanLII), (2005), R.F.L. (6th) 232 (Alta. C.A.) and Henry v. Henry, 2005 ABCA (CanLII), (2005), R.F.L. (6th) 275 (Alta. C.A.). Leave to appeal these decisions to the Supreme Court of Canada has been granted. The Alberta Court of Appeal held there is presumption in favour of retroactive child support to the date the obligation arose and that there is positive duty on payors to adjust their support payments when there is change to their income. The onus is on payor to rebut this presumption. The Alberta Court of Appeal recognized there may be some exceptions to the application of the presumption such as where parents share custody of their children. They also held that the presumption applies regardless of the nature of the application, that is, whether it is an interim or final one. [17] Both lines of authority recognize that certain principles have developed with regard to retroactive child support including recognition that parents have joint financial obligation to support their children, that that obligation arises from the time of the child’s birth, that the right to support belongs to the child and as such cannot be bartered away by the parent and finally that the court is always free to intervene and determine the appropriate level of support for children. [18] Both lines of authority also recognize that there is jurisdiction under the Divorce Act to make retroactive orders for child support and that those orders may cover periods that pre-date the commencement of the proceedings themselves. They also held that child’s right to support should not be function of the marital status of his or her parents and that there is strong policy interest in ensuring the same principles and factors apply to judge’s discretion in awarding retroactive support regardless of whether federal or provincial legislation applies. While both lines of authority recognize retroactive support falls within the Court’s discretion, they vary on how that discretion is to be exercised and the factors to be taken into consideration. The British Columbia Court of Appeal has held that “...the discretion to make such an order is not to be exercised as matter of course” (See para. 41 of L.S. v. E.P.). The Alberta Court of Appeal has held that subject to certain specified exceptions “...it is reasonable and consistent with the obligations of child support that payor be required to pay the support retroactive to the date the obligation arose...” (See para. 136 of D.B.S. v. D.R.G.). [19] Prior to the Alberta Court of Appeal trilogy, the “norm” in awarding retroactive child support was restricted to the date of the application for the order except in special circumstances (See: Headrick v. Headrick (1969), 1969 CanLII 249 (ON CA), D.L.R. (3d) 519 (Ont. C.A.); Pritchett v. Pritchett, [1996] B.C.J. No. 2704 (B.C. S.C.) (QL)). [20] While both lines of authority were heard post-Guidelines, the British Columbia Court of Appeal does not directly refer to the impact of the Guidelines on retroactive child support. The Alberta Court of Appeal examines that issue in great detail and concludes: 1. That the exercise of judicial discretion with regard to retroactive child support orders must be shaped by the goals and objectives of the Guidelines (See: para. 153 of D.B.S. v. D.R.G.). 2. child is entitled to child support and therefore need is presumed (See: para. 153 of D.B.S. v. D.R.G.). 3. The Guidelines presume an ability to pay in accordance with the payor’s income (See: para. 153 of D.B.S. v. D.R.G.). 4. That as part of the financial obligation to provide support, parents have duty to disclose changes in their income situation. (See: paras. 131 and 133 of D.B.S. v. D.R.G.). 5. That there is presumption in favour of retroactive support to the date the obligation arose or the payor’s income changed unless the payor has satisfied the court his financial obligation was met in some other manner, that he has taken all reasonable steps to fulfill the obligation, that previous arrangements for child support that contemplate the provisions of the Guidelines were made or that the payee has failed to act diligently and without reasonable cause. (See: para. 153 of D.B.S. v. D.R.G.). [21] This Court agrees with the Alberta Court of Appeal that the Guidelines apply to applications for retroactive support pursuant to the Divorce Act. This is evident from the wording of s. 17(6.1) of the Act. This Court also agrees that in exercising its discretion the Court must do so keeping in mind the objectives set out in s. of the Guidelines, that is, to establish fair standard of support for children that ensures they continue to benefit from the financial means of both parents, to reduce conflict and tension by making the calculation of child support orders more objective, to improve the efficiency of the legal process by giving guidance in setting the level of child support and encouraging settlement and finally, to ensure consistent treatment of spouses and children who are in similar circumstances. [22] It is noted, however, that none of the objectives are given precedence over the others. All of them must be weighed by judge in reaching their decision. Adequate and consistent support must be weighed against the requirement for fairness. [23] This Court, however, does not agree that there is presumption in favour of retroactive support. It prefers the approach taken by the British Columbia and Ontario Courts of Appeal over that of the Alberta Court of Appeal for the following reasons: 1. Neither the Divorce Act nor the Guidelines set out any principles to be applied by the Court in exercising its discretion with regard to retroactive orders. adopt the reasoning of Justice J.A. Hunt in his dissent in Henry v. Henry, supra at paras. 43 to 52. There is no presumption for or against retroactive child support orders. Parliament has left this for judicial determination. (See also: Walsh v. Walsh at paras. 20 to 23 and Homer v. Homer at para. 78). 2. Neither the Divorce Act nor the Guidelines mandate an automatic increase in support payments when payor’s income increases. As pointed out by Justice Laskin of the Ontario Court of Appeal in Walsh v. Walsh at para. 25: “Parliament could have made the policy choice to require parties to exchange financial information annually or at some other regular interval and to vary child support in accordance with the Guidelines. ... But Parliament has not made this policy choice.” 3. Section 25.1 of the Divorce Act contemplates agreements between the federal government and the provinces to establish agencies to recalculate child support orders at regular intervals on the basis of updated income information. The fact these agreements have not been put in place does not impose on those that pay support mandatory obligation to do the recalculation themselves. 4. Different considerations apply to different situations. As such, presumption in favour of retroactive support is not fair or equitable approach to the issue. It is difficult to provide comprehensive list of factors that may affect the granting of retroactive support simply because the situations that come before the Court are as diverse as the spectrum of families that exist in this country. The British Columbia Court of Appeal in L.S. v. E.P. set out non-exhaustive list of some factors that may militate for or against retroactive support. The Alberta Court of Appeal disagreed with many of these factors. This is not surprising given its “presumptive approach”. Parents of children cannot be compared to debtors and creditors. Their relationships are far more complex and personally intertwined. What affects the parent affects the children. No two sets of parents are alike nor are their situations identical. Some are single parents others become parts of blended families. Some parents are financially secure others struggle for every penny. Some parents are very involved with their children others have no involvement at all. Some parents live close at hand others live thousands of miles apart. Some parents assume other obligations for aging parents, new spouses, step-children or for other children of their own. Some remain unencumbered by family relationships. One fact is very clear. The financial impact of separations on families is devastating. When families break up, often there is not sufficient income to support two homes. Tradeoffs are made. One parent may be allowed to live in the family home with the children and retain all of the household goods while the other parent attempts to start over, the consideration being that no child support would be paid for period of time. One parent may assume all of the debts which allows the other parent to retain vehicles, household goods or recreational assets which benefit the children. Sometimes the mother of child wants nothing to do with the father and the father respects that wish. If court acts blindly without consideration for the circumstances, it does disservice to the families involved, especially the children. 5. While child support is the right of the child and cannot be waived, it falls to the custodial or primary parent to enforce that right. In doing so, they must act in the best interests of the child. They cannot “hoard” the support and enforce it at later date when the need may have passed or been met by other sources. They cannot squander it. It is incumbent on them to take action when warranted. They cannot merely sit back and say it is owed. Custodial or primary parents owe duty to the child to enforce child support rights. If they choose not to do so and assume the obligation themselves, they run risk that the Court, in weighing all of the circumstances, may not provide retroactive support. 6. It is important to remember that individuals who care for children or provide support are not always the biological parents. They may be step-parents, extended family members or “others”. Parents, or those who stand in their place, have duty to enforce child support rights. Sometimes they choose not to do so because they are frightened or intimidated by the payor, because they cannot afford to do so or because they feel overwhelmed by the legal system. Sometimes they choose not to do so because it suits their own purposes. Perhaps they want to limit the child’s contact or involvement with the payor or because they wish new partner to be the sole parental influence in their child’s life. Sometimes they choose not to because they recognize the other parent is struggling financially to hold on to family farm or family business or to help an ailing parent or spouse. The primary parent may have moved away from the payor and recognizes that the cost of access bears on the other parent’s ability to have relationship with the children even though the costs associated with that access may not be sufficient to meet the test of undue hardship pursuant to the Guidelines. They may assume greater share of the financial obligation for the children because their situation allows for the needs of the children to be met from other sources, be they extended family, new spouses, trust funds or social programs such as the child tax credit, supplements and social assistance payments. 7. Retroactive support is not the same as ongoing support in that the period of time to which it applies has passed and the resources needed for its payment may no longer be available. The problem with retroactive orders is that very often the income stream that would normally fund the payment has been used up. payor who has no notice of the claim cannot arrange their financial situation to accommodate the order. Retroactive orders often create debt that may not only affect the payor’s ability to meet his ongoing obligations to the children covered by the order but may also adversely affect their ability to provide for other children in their care. Courts must be careful not to penalize these children or place them in situations of poverty in order to provide retroactive support. For payors on fixed incomes, such debts can be crippling. It does the judicial system no good to make orders which cannot in reality be enforced. Such orders bring the judicial system into disrepute and do nothing to quell conflict between the parents. 8. Requests for retroactive support arise in number of different contexts and the context does have an impact on how the Court deals with the request. Retroactive support can arise on an interim application. Interim applications, by their very nature, are meant to put in place temporary measures pending trial or settlement. They are not meant to determine the ultimate issues between the parties. Courts on interim applications, for the most part, are dealing with affidavit evidence that is often incomplete and contradictory. There is no opportunity for either party to cross-examine the other or adduce further information that may very well sway the ultimate determination. If parties do not proceed with their application beyond the interim order stage, one must assume they are satisfied with the terms of that order. The fact some people never proceed further is not justification for courts to decide ultimate issues of retroactive support on interim applications. Requests for retroactive orders are more properly dealt with at trial or after hearing where all relevant evidence can be adduced. Variation applications result in final orders and judges dealing with such applications can order the parties be cross-examined on their affidavits or can order viva voce evidence. 9. Applications for retroactive support can include periods that are post-Guideline, pre-Guideline, or combination of the two. The importance of these periods is not only the grounds which may lead to change of circumstances but the fact that orders or agreements made prior to May 1, 1997 had tax component to them. Child support was taxable in the hands of the recipient and deductible in the hands of the payor. Orders that apply the Guidelines retroactive must consider these tax implications. As well, other sources of income may be affected by retroactive orders such as child tax credits, supplements and social assistance benefits. Courts should not mechanically make retroactive orders without considering the ultimate effect of such orders on both the payor and the payee. For example, to give mother who is on social assistance retroactive support order may not improve the situation for the children at all and may trigger overpayment from the safety net programs. 10. Parties should be entitled to rely on agreements or court orders that are in effect and should be provided with notice of intent to change them. While there is merit to the argument that parent is presumed to know they have an obligation to support their child and that one parent should not be unfairly burdened with this obligation, there is also merit to the encouragement of parents to settle matters amicably between themselves. In family relationships, this is extremely important. When agreements and court orders are made, the parties know it is likely that changes will occur in their financial situations in the future. If no provision is made for the exchange of information or recalculation, then the parties must rely on the request for information provisions set out in s. 25.1 of the Guidelines. To hold otherwise is to incorporate into those orders, agreements, and indeed the Guidelines themselves provision for automatic recalculation which simply does not exist. 11. Finally, it is questionable whether every change in income necessarily triggers change as contemplated by s. 14 of the Guidelines. How large of change is necessary, and for what time period? Often people go through temporary deviations in income due to sickness, unemployment, layoffs, unexpected overtime or the assumption of temporary duties. Over the course of tax year, their income may remain fairly constant in spite of these changes. No one can argue that for the month or two when the circumstances existed there was change of income but is this sufficient under s. 14? Many child support orders are based on income tax information which traditionally reflects income earned in the past and expected to be earned in the future. What is the date for an income change? Is it the date of the new tax return or the date the change actually occurred? [24] There is no doubt that mechanical, presumptive application of the Guidelines to request for retroactive support would provide greater certainty but it would do little else to achieve the objective of the Guidelines. [25] In summary, this Court favours the approach taken by the British Columbia and Ontario Courts of Appeal, that is, that the awarding of retroactive child support lies within the discretion of the judge. In exercising that discretion the Court must keep in mind the objectives of the Guidelines and take into consideration the circumstances of each individual case. There are many factors that may apply to the analysis and the decision of courts of various levels, including the British Columbia Court of Appeal in L.S. v. E.P., have set out number of such factors. An exhaustive list, however, is not possible. number of principles should apply to retroactive child support. Firstly, the Court must keep in mind the nature of the application and whether it is an interim one as opposed to final application. Secondly, the Court must keep in mind the objectives of the Guidelines. Thirdly, the same principles and factors should apply to retroactive orders whether they increase or decrease child support and whether they are pursuant to federal or provincial legislation. Finally, the Court must consider the individual facts of each case to ensure result which balances the requirement that parents be jointly responsible for the support of their children with the principles of fairness and equity. If the Court decides to order retroactive support, then, pursuant to s. 17(6.1) of the Divorce Act, it must do so in accordance with the Guidelines. Application of the law to the facts [26] In this case, Mr. Gore-Hickman requests that his obligation to pay support for Brett should terminate and Ms. Hubbard’s obligation to provide support for Brett should commence, both retroactive to August 1, 2004. Ms. Hubbard’s obligation to provide support for Brett probably arose after the summer of 2002 when the time Brett spent with his mother decreased dramatically. Since that time, it is uncontroverted that Brett has spent little time with his mother. It is clear from Justice Carter’s written decision that two factors prompted the awarding of support to Ms. Hubbard for Brett. First was the amount of time the child was to spend with his mother, and secondly, was the disparity in the parties’ incomes. While the disparity in income remains, it is clear that Brett, who has now reached the age of majority, is spending virtually no time with his mother. As such, the basis for the special provision no longer exists. It probably ceased to exist sometime in 2002/2003. By February, 2004, Mr. Gore-Hickman had written to Ms. Hubbard, putting her on notice that he wanted the payment to terminate. Ms. Hubbard, whose order was registered with the Maintenance Enforcement Office, refused the request to vary even though she acknowledges Brett had very little contact with her. There was no justification for the payment for Brett to continue. Justice Koch of this Court ordered Mr. Gore-Hickman to pay support for Kurt effective August 1, 2004. He declined to deal with the issue of Brett’s support but it is clear that Ms. Hubbard had notice of Mr. Gore-Hickman’s intent to request such support. It is also clear that she was aware of her obligation to provide such support. It is difficult to understand Ms. Hubbard’s failure to provide support for Brett while at the same time she insisted on the continuation of Mr. Gore-Hickman’s payment for Brett, who was spending virtually no time with her. This is particularly true when at the same time she was claiming full Table support for Kurt. It is difficult to justify situation that would provide support for one child but not the other. While there is considerable disparity in the parties incomes, there is no evidence retroactive award would negatively impact Ms. Hubbard’s ability to pay ongoing support for Brett or to provide proper level of support for Kurt. Parents have financial obligation to their children, even when their income is substantially less than that of the other parent. This is not situation where long time has passed. There has been no unreasonable or unexpected delay and Mr. Gore-Hickman should not be penalized because he attempted to negotiate the matter before proceeding with his Court application, nor should he be penalized because the judge who heard Ms. Hubbard’s application refused to deal with the matter. The fact Ms. Hubbard may have paid tax on the $670 per month paid to her from August 1, 2004 to December 31, 2004 is easily remedied by her filing an amended return. This would result in decrease in her income and may actually provide benefit to her in the form of reducing her tax. [27] Taking into account all of the circumstances, it would be fair and equitable to terminate Mr. Gore-Hickman’s obligation to pay the $670 per month to Ms. Hubbard for Brett, effective August 1, 2004 and to make Ms. Hubbard’s support payments for Brett likewise retroactive to that date. 1. There shall be an order that Mr. Gore-Hickman’s payment of $670 per month to Ms. Hubbard for the support of Brett terminate effective August 1, 2004. 2. There shall be an order that Ms. Hubbard’s child support obligation to Brett which was fixed by the fiat of March 30, 2005 at $129 per month shall be retroactive to August 1, 2004. 3. Any monies owing by Ms. Hubbard to Mr. Gore-Hickman as result of this order shall be paid to Mr. Gore-Hickman at the rate of $500 per month, which amount shall be offset against Mr. Gore-Hickman’s child support for Kurt. [28] At the request of counsel, there shall be no order as to costs with regard to this application at this time. Within 30 days, either party may apply to the local registrar to have date set before me to argue the issue of costs. J. J. A. Ryan-Froslie J.","The respondent applies to vary his 1992 divorce judgment to fix support for his oldest son, who resides with him, retroactive to August 2004 and to terminate the payment to his former spouse for him. In March 2005, this Court made an order fixing the parties incomes and providing for ongoing support for this son of $129 per month. The sole issue is whether these orders should be made retroactive. HELD: It is fair and equitable to terminate the respondent's obligation to pay $670 per month for the oldest son effective August 2004 and to make the petitioner's support payments for him retroactive to that date.  1) This Court favours an approach to retroactive child support that leaves the decision to the discretion of the Court. In exercising that discretion, the Court must keep in mind the objectives of the Guidelines and take into consideration the circumstances of each individual case. 2) The Court must consider whether the application is interim or final, the objectives of the Guidelines, the same factors should apply to retroactive orders whether they increase or decrease child support and whether they are pursuant to federal or provincial legislation, and the individual facts of each case must be considered to ensure that parents are jointly responsible for the support of their children and the principles of fairness and equity are met. If the Court decides to order retroactive support then, pursuant to s. 15(6.1) of the Divorce Act, it must do so in accordance with the Guidelines. 3) By February 2004, the respondent had written to the petitioner, putting her on notice that he wanted the payment to terminate because the oldest son was residing with him. The petitioner refused even though the son had very little contact with her. There was no justification for the payment to continue. It is difficult to understand her failure to provide support for this son while at the same time insisting on the continuation of the respondent's payment for that same son, who was spending no time with her.",4_2005skqb265.txt
249,"QUEEN’S BENCH FOR SASKATCHEWAN FAMILY LAW DIVISION Citation: 2006 SKQB 218 Date: 20060508 Docket: F.L.D. No. 329/04 Judicial Centre: Battleford BETWEEN: SHAUNA SHARON PETERSEN PETITIONER (RESPONDENT) and ROCKY DEAN ELPHINSTONE RESPONDENT (APPLICANT) Counsel: James A. Morrison for the applicant (Rocky) Monte J. Sheppard for the respondent (Shauna) JUDGMENT KRUEGER J. May 8, 2006 [1] Rocky Dean Elphinstone (Rocky) applies to vary the consent joint custody order granted on October 14, 2004. His application was prompted by the relocation of Shauna Sharon Petersen (Shauna) on March 3, 2006, with one of the couple’s two children, Tyson Elphinstone (Tyson), from the Kindersley district in northwestern Saskatchewan to the Archerwill district in northeastern Saskatchewan. viva voce hearing was directed. BACKGROUND INFORMATION [2] According to Rocky, he and Shauna started living together on an acreage five miles south of Flaxcombe, Saskatchewan, on July 12, 1994. Two children were born of that relationship: Kailey Elphinstone, born April 11, 1995 (11 years old); Tyson Elphinstone born August 25, 1999 (6 years old). The parties separated on May 12, 2004, when Shauna left the family home with the two children. [3] From May 12, 2004, until the end of June, 2004, Shauna and the children lived with friend, Katherine Grimsdale, in trailer in the Town of Kindersley. For the summer months they moved in with Shauna’s parents at Marean Lake in northeastern Saskatchewan. In August, 2004, Shauna obtained low-income housing in Kindersley where the family resided until July, 2005. Shauna, her fiancé, Lee Etsell, with whom she was then living, and the children then moved to Coleville. [4] Through their respective counsel, Rocky and Shauna had issued the consent order of October 14, 2004. It provides for: (a) Joint custody of the children with their primary residence being the home of Shauna at Kindersley; (b) reasonable access to Rocky, including his four days off every second week; (c) child support in the amount of $702.00 per month based on an annual income of $53,600.00 by Rocky, commencing on October 1, 2004; (d) spousal support for Shauna in the sum of $300.00 per month to run from October 1, 2004, until September 1, 2006; and (e) the delivery by Rocky to Shauna of specific furniture and furnishings on or before November 4, 2004. [5] The terms of the consent order have been more honoured in their breach than in compliance. Except for one payment of $1,002.00 on October 4, 2004, another on December 17, 2004, in the amount of $2,004.00 and grocery voucher (gift certificate) in the sum of $250.00, no spousal or child support has been paid. Rocky acknowledges his failure to make regular payments of spousal and child support as an error in judgment, but has not been moved to rectify the error. The furniture and furnishings promised have not been delivered. [6] After the separation Rocky remained on the acreage south of Flaxcombe. The home is an older four-bedroom house. understand bedrooms for Kailey and Tyson are located in the basement. Shauna started having difficulty managing Kailey and by agreement Kailey went to live with Rocky and his wife, Tara Elphinstone, in mid October, 2005. Rocky enrolled Kailey in school at Marengo where she continues to attend classes by bus. [7] From the outset access was problem for Rocky. Initially he would see the children every second weekend for three or four months in row, then would not have any access for the next month. There were always circumstances that created problems. By the summer of 2005 only Kailey was attending at Rocky’s home for access visits. After Kailey went to live with Rocky, access for Tyson became even less frequent. Between mid October, 2005, and the end of February, 2006, Rocky had just three access visits with Tyson. [8] After Kailey moved to her father’s home Shauna’s access to her was primarily by telephone. Those conversations occurred on weekly basis and sometimes included conversations between Tyson and Kailey. Personal access visits were infrequent. [9] On March 3, 2006, Shauna and Tyson moved from Coleville to the Archerwill district. Lee Etsell was already working for Walker’s Seeds at Tisdale, Saskatchewan, and the plan was for Shauna, Lee and Tyson to live with Shauna’s parents at their Marean Lake cabin until they could permanently settle into home of their own. The move had been planned in advance and when Rocky learned of Shauna’s plan to relocate, he contacted her to discuss the future. [10] There is some conflict as to what was discussed at the meeting between the parties. Shauna insists that Rocky had no objection to her move provided that she agree to contact the maintenance enforcement office and withdraw her claim for child and spousal support. That would allow Rocky to have his driving privileges reinstated. When she declined to do so, Rocky stated that she would be sorry. [11] Rocky claims that the focus of the discussion was access and that he did not initially raise the matter of Shauna’s planned move. When Shauna did not mention moving, Rocky inquired about the rumour he had heard. Shauna indicated that there was no certainty about moving, but if she moved they could discuss different access options. The following day Rocky was advised that Shauna was moving and there would be no access agreement. According to Rocky, he was told by Shauna, “You have your family, we have ours”. [12] Marean Lake is 15 miles from Archerwill. Shauna’s parents own and live in two-level three-bedroom cabin with two bathrooms and deck on two sides. Tyson has his own bedroom on the second level. Shauna plans to purchase, with the assistance of her parents, an acreage in the Archerwill district in the near future. She and Lee Etsell plan to marry later this year. [13] Tyson rides school bus to Archerwill where he attends Lynn Prosko’s grade one and two class. He is in grade one with two other boys. Ms. Prosko also teaches kindergarten part time and Tyson participates in some of those classes. Tyson has some motor co-ordination and information processing deficiencies. He is easily distracted and has difficulty concentrating. No medical evidence was provided, but Tyson may also have chronic ear infection. He requires special education resource help, but is good natured and readily adjusts to different school and environmental situations. [14] Kailey has settled in well with Rocky and his wife, Tara. She was variously described at the hearing as mature, articulate, bright and able to assert her views. She misses her brother and wishes that they could live together. Neither parent suggested changing Kailey’s primary residence from Rocky’s home. At present there exists de facto split custody situation. THE ISSUE [15] The sole issue on this variation application is determining the primary residence of Tyson. That entails deciding what is in his best interests. [16] The law relating to the mobility rights of divorced parents was clearly defined in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27 (S.C.C.). Before custodial/primary parent is permitted to relocate child where there is an existing custody order or agreement, there must be material change in circumstances affecting the child since the making of that order or agreement. Once the threshold test has been met, the court embarks upon fresh inquiry into what is in the best interests of the child in the new circumstances. Ultimately the focus is the best interests of the child under either The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, or the Divorce Act, R.S.C. 1985, c. (2nd Supp.) [17] change from one community to another that involves changing schools, living arrangements and new associations is change in circumstances. The proposed relocation of Tyson to the Archerwill district, community five and half to six hours away from Flaxcombe, also requires changing the access arrangements. Those are not changes that were contemplated by the consent order of October 14, 2004. They are changes in circumstances that are material. The original order, however, was made pursuant to The Children’s Law Act, 1997, and not the Divorce Act. material change within the meaning of the Divorce Act may not be threshold requirement. See Johnston v. Kurz, 2004 SKQB 362 (CanLII). In any event there is ample reason to embark upon an inquiry as to Tyson’s best interests resulting from the change in circumstances. [18] In every case, determining what is in the best interests of the child comes down to weighing the benefits of retaining close contact with one parent against the detriment that results from losing close contact with the other parent and the community in which the child has lived. [19] In deciding what is in the best interests of Tyson, consider the following to be relevant factors: 1. The existing split custody arrangement and the relationship of each child with the other. 2. The existing living arrangements and the time spent by each child with each parent. 3. The desirability of maximizing the contact of each child with both parents. 4. The views of Kailey as expressed through the expert. 5. The disruption for Tyson resulting if removed from the Kindersley area. 6. The disruption to Tyson if his custody or primary residence is changed. [20] Both parents, am satisfied, dearly love their children. Shauna has developed strong bond with Tyson and Rocky has very close relationship with Kailey. That does not make one better parent than the other. The existing circumstances do, however, hinder the ability of the children to maintain close relationship with each other and with both parents. [21] After Kailey went to live with Rocky, neither parent did much to facilitate the access of either child. Although only short distance apart, neither Kailey nor Tyson saw his/her non-custodial parent and sibling on regular basis. Even telephone access has been sporadic. Shauna admits that she has call display on her telephone and does not always return phone calls from Rocky’s phone number. [22] The existing living arrangements have been far from satisfactory. While neither parent is prepared to accept responsibility for the lack of time spent by each child with the other, both parents have established homes that have accommodated only one child. Since directing the hearing and ordering, on an interim basis, access every second weekend involving both children, more time is being spent by each child with the other parent. [23] In the past Kailey has initiated telephone contact with Shauna to arrange access visits. Shauna has insisted that any access times be approved by Rocky. Access has not often occurred. Access to Tyson, although seldom, when exercised is mainly with Kailey and Tara. Rocky’s acreage comes complete with horses, dogs and cats and Tyson always enjoys himself on the access visits to his father’s acreage. [24] Shauna, am satisfied, had no intention of informing Rocky of her planned move to the Archerwill district. When they met in February, 2006, the move, although imminent, was not mentioned until Rocky raised the matter. do not believe that Rocky raised the moving issue in order to discuss access. He had been permitted access to Tyson on only three occasions in the past four months, yet had not sought any redress. Rocky was more interested in resolving his financial obligations to Shauna and in obtaining her undertaking to contact the maintenance enforcement office than in discussing access. In the future it is imperative that more and better access be granted to both Kailey and Tyson. [25] On March 28, 2006, Kailey was interviewed by Richard Kuckartz, youth and family counsellor with over 20 years experience in the field. He was not requested to and did not conduct home study. Perhaps because he was not able to also interview Tyson, Mr. Kuckartz limited his testimony to reiterating what had been related to him during his interview with Kailey. She feels that her mother lied to her about Tyson’s availability to talk to her on the telephone. The conclusion that Shauna lied may have been influenced by Rocky’s reading to Kailey portions of an affidavit sworn by Shauna. Three wishes expressed by Kailey were: (a) That there be more happiness; (b) that her brother, Tyson, live with her; and (c) that her mother not act like child. At the time Mr. Kuckartz interviewed Kailey she was already aware that Shauna and Tyson had moved to the Archerwill district and that court hearing was pending. Understandably, Kailey viewed the circumstances from the perspective of her father. [26] Tyson has personality that allows him to adjust easily to changes in circumstances and surroundings. Tara Elphinstone indicated that it takes Tyson awhile to adjust, but that he warms to everyone in time. Lynn Prosko, his present teacher, stated that by the end of the first week in his new school Tyson was hugging and kissing her before going home each night. He has been well received and accepted by everyone in the classroom. Sharon Petersen, Tyson’s maternal grandmother, saw no difference in him when he moved from one home to another. There has not been any disruption to Tyson in moving from Coleville to the Archerwill district. There would not likely be any disruption in his moving to Flaxcombe. Disruption to Tyson as result of being moved away from Kindersley is not determining factor. [27] Placing Tyson in the home of Rocky as his primary residence because of the relocation of Shauna to the Archerwill district must be considered in the context of the impact that such change would have on him. Shauna has always been Tyson’s primary caregiver. As described by Madam Justice L’Heureux-Dubé in Gordon, supra, she is the psychological parent. The strong bonding between Shauna and her son, Tyson, is stabilizing influence on his life. While Tyson readily adjusts to changes in circumstances and surroundings, the one constant in his life has been his mother. Tyson misses Kailey and speaks of her in positive way, but depends on his mother for support. Deference must be paid to Shauna’s views, including her choice of where to live and to work. POSITION OF EACH PARENT [28] It is the contention of Rocky that moving Tyson from Kindersley to Coleville, although unilateral, did not uproot him from his community, friends, school, activities and certainty. The move to the Archerwill district is to an entirely new and different community. He will be living with grandparents, attending school less able to provide for his special needs and away from his friends and family. That will be disruption to him. [29] The wishes of both Kailey and Tyson are that they live together. The home of Rocky, it was suggested, is stable and familiar to both children. That is where Tyson has spent considerable portion of his life. Lee Etsell, who is now permanent part of Shauna’s life, has criminal record of violence. Kailey was scared when living with him. In the final analysis, it was argued, it would be better if both children were in the same home and there was no suggestion that Kailey should be removed from Rocky’s home. [30] According to Shauna, it is in the best interests of Tyson to maintain the status quo. Shauna is the psychological parent and Tyson gets along well with Lee Etsell. There is no evidence of any violent behaviour or conduct by Lee Etsell toward any member of Shauna’s family. It will not, it was argued, be any more difficult to maximize access between the parents and the children at distance than it was when they all lived in the same community. The relocation may actually improve the access attitude of the parents. [31] Changing Tyson’s primary residence to the home of Rocky will not return him to the school he was previously attending. He would have to adjust once again to new school (Marengo), teacher and classmates. Tyson is no stranger to the Archerwill district or to the home of his maternal grandparents. He has, it was suggested, spent considerable time with them in the past. The evidence is that Tyson interacts mainly with Kailey when on access visits to Rocky’s home. [32] It is clear to me that the only viable options at this time are to either permit Shauna to relocate Tyson to the Archerwill district or to change the primary residence of Tyson by placing him in the home of Rocky. Shauna has foreclosed the option of returning to live in the Kindersley district. Too many irreversible events have taken place. In any event it would not necessarily serve Tyson’s best interests to order that Shauna be entitled to retain Tyson’s primary residence only by returning to the Kindersley district. [33] For Tyson there are negative consequences involved in moving to the Archerwill district. Access to his father and his sister become more problematic and travel arrangements more difficult. The move must, however, be considered in light of the circumstances that existed prior to the relocation. The parties had already adopted split custody arrangement without formalizing access or adjusting child support. They had not bothered to consult with their counsel or to advise counsel that they were no longer following the terms of the consent order of October 14, 2004. [34] There are also negative consequences involved in changing Tyson’s primary residence. He would be separated from his psychological parent. The special needs of Tyson require that he have the assistance and support of someone to whom he is closely bonded. Kailey, admittedly at age 11 years, is mature and adult-like. She is sibling who would be positive consequence if Tyson were living in the same home as her. She must not be asked to assume parenting role. [35] This has not been an easy decision to make, but permitting Shauna to relocate Tyson to the Archerwill district is, in my view, in his best interests. It is important that Tyson continue to live in the home of the parent whose constant presence he has become accustomed to No matter what the decision, it involves change of location for Tyson. Ultimately what is best for him must be the only consideration. Kailey has made her choice and her parents have accepted her decision. [36] Counsel for the parties have agreed upon an access arrangement pending the rendering of this judgment. The hearing has also established the payments that have been made and acknowledged on account of child and spousal support. Hopefully an agreement can be reached between the parents on these matters. If not, the issue of access, ongoing child support and arrears of support may be returned to me by contacting the Local Registrar and arranging for time. Outstanding family property issues may have to be dealt with at pre-trial conference. [37] There shall be an order as follows: 1. The parties shall continue to have joint custody of Kailey and Tyson. 2. The primary residence of Kailey shall be with the respondent, Rocky Dean Elphinstone. 3. The primary residence of Tyson shall be with the petitioner, Shauna Sharon Petersen. 4. The petitioner, Shauna Sharon Petersen, shall be permitted to relocate Tyson to the Archerwill district. 5. Access and child support issues may be returned to me for orders or directions at the request of either party. 6. Each parent shall keep the other provided with health, educational progress and extracurricular activity information relating to the child in that parent’s home. 7. There shall be no order as to costs. J. D. K. KRUEGER","The respondent applies to vary the consent joint custody order granted in October 2004. His application was prompted by the relocation of the petitioner with one of their two children, Tyson. The sole issue on this variation application is the determination of the primary residence of Tyson. HELD: 1) The petitioner wants to move Tyson 5.5 hours away from the respondent. This also requires a change in access arrangements. These are changes in circumstances that are material.  2) The petitioner has developed a strong bond with Tyson. The respondent has developed a close relationship with the parties' other child Kailey. After Kailey went to live with the respondent, neither parent did much to facilitate the access of either child. Before the petitioner and Tyson moved, although a short distance apart, neither Kailey nor Tyson saw his or her non-custodial parent and sibling on a regular basis. Even telephone access has been sporadic. Both parents have established homes that accommodate only one child. 3) The petitioner's move must be considered in light of the circumstances that existed before the petitioner's relocation. The parties had already adopted a split custody arrangement without formalizing access or adjusting child support. 4) Permitting the petitioner to relocate is in the best interests of Tyson. It is important that Tyson continue to live in the home of the parent whose constant presence he has become accustomed to. The petitioner has always been Tyson's primary caregiver. The petitioner is the psychological parent.",b_2006skqb218.txt
250,"D.P. BALL QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 160 Date: 2016 05 09 Docket: CRM 80 of 2015 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and JAY JAMES DRYSDALE Counsel: David Kim Jones for the Crown Andrew Hitchcock for the accused JUDGMENT ZARZECZNY J. MAY 9, 2016 INTRODUCTION [1] On August 7, 2014, Jay James Drysdale was panhandling, along with companion, at the 7-Eleven convenience store at the corner of Winnipeg Street and Victoria Avenue in Regina. Mr. Drysdale is First Nations and he was homeless at the time. He and his companion had much to drink that day and Mr. Drysdale was intoxicated. He had verbal confrontation with Simon Brown, security officer providing loss protection services to the 7-Eleven. Mr. Drysdale returned to his dufflebag short distance away from the confrontation, took out kitchen butcher knife and walked towards Mr. Brown. Frightened, Mr. Brown, and second security officer also in his company, ran Mr. Brown to his SUV vehicle in the parking lot short distance away. Mr. Drysdale pursued him to the vehicle and slashed one of the vehicle’s tires with the knife he was still carrying. Mr. Drysdale left the scene, went to the rear of the 7-Eleven building and, in an alleyway, went into yard and threw away the knife. Police attended, arrested and charged him with the offence that he faced at his trial. THE INDICTMENT [2] The indictment sworn against Mr. Drysdale dated October 1, 2015 charges as follows: 1. THAT HE, the said Jay James Drysdale on or about the 7th day of August, A.D. 2014 at or near Regina, Saskatchewan, did in committing an assault on Simon Brown threaten to use a weapon, to wit: a butcher knife, contrary to section 267(a) of the Criminal Code. [3] This case rests primarily upon its facts. For that reason, will review the evidence presented in some detail. The Crown called five witnesses who gave evidence at the trial including Simon Brown and his security officer in training, Jason Hedstrom, Cst. Tyler Lerat and two bystander witnesses, Michael Dyck and Adam Fretz. The defence called Mr. Drysdale to give his evidence. The evidence of these witnesses, which will now review, provided the facts and circumstances of this case. [4] Cst. Lerat testified that he was uniformed officer on patrol the early evening of August 7, 2014. He received call to attend at the 7-Eleven store at Victoria Avenue and Winnipeg Street from his dispatcher who had received call that man with large knife was at that location and that he had chased victim and slashed tire on the victim’s car. Cst. Lerat attended at the scene and spoke to number of witnesses who reported seeing the individual in question running into yard at 1925 Winnipeg Street. second police vehicle and officers attended and they apprehended and arrested Mr. Drysdale. Cst. Lerat inspected the yard at 1925 Winnipeg Street and he found and seized large “butcher knife” entered as Exhibit P1 at the trial. [5] Simon Brown, the primary victim of these circumstances, testified that he is the Regional Manager of Impact Security Group, company whose security services were engaged by 7-Eleven to provide loss prevention mainly shoplifting, but as well general store security, at its location on Victoria Avenue and Winnipeg Street. At that location, he was accompanied by Jason Hedstrom, another security officer in training employed by Impact. Both were dressed in casual clothes. [6] Mr. Brown testified that he and Mr. Hedstrom were in the 7-Eleven store but walked out of the front main door and took position sitting on ledge, distance away from it. Mr. Brown was having cigarette when the accused, Mr. Drysdale, came up to him and at very close quarters, held cigarette to his face. Mr. Brown admits saying to Mr. Drysdale, in stern voice, “Get the fuck out of my face”. He did not recall seeing Mr. Drysdale before the events of this day but he had seen Mr. Drysdale panhandling by the main entrance of the store before the confrontation. [7] Mr. Brown testified that it appeared Mr. Drysdale was angered by Mr. Brown’s stern comment. He saw Mr. Drysdale walk away, returning to the area of the front entrance of the store where he had apparently left dufflebag. He observed Mr. Drysdale rummaging through his dufflebag and throwing out cans and bottles that were in it. He then saw Mr. Drysdale pull large knife out of his bag and, with the knife in his hand, walking towards him. [8] Seeing this, Mr. Brown testified he took off running into the parking lot. Mr. Drysdale chased after him. Mr. Brown ran to his SUV vehicle at the end of the parking lot, some 100 feet away, followed all the while by Mr. Drysdale. Mr. Brown got into his vehicle and locked the doors. He saw Mr. Drysdale come up to the vehicle, heard him yell something, and heard him hitting the vehicle with the knife. Mr. Brown called 9-1-1on his cell phone and testified he “thought my life was in danger”. In his rear view mirror, he observed Mr. Drysdale with the knife in his hand and saw him making stabbing motion downward towards his vehicle. He then saw Mr. Drysdale heading towards the back alley at the rear of the 7-Eleven store. Mr. Brown followed in his vehicle, which now had flat tire. He saw Mr. Drysdale, still with the knife in his hand, run into yard, observed the police arriving, and Mr. Drysdale being arrested. [9] few days later, Mr. Brown returned to the 7-Eleven store and recovered video tape depicting some of the events that occurred. He delivered copy to the Regina Police Service, retaining one for his records. As it would later come to light, the copy delivered to the Police Service was misplaced, however, Mr. Brown’s copy was discovered after the case for both the Crown and defence was closed. By an Agreed Statement of Facts, entered as Exhibit P4, both defence and Crown counsel agreed to open the case, have the video tape entered as Crown exhibit and played. [10] Jason Hedstrom testified to much the same effect as did Mr. Brown. What he remembered of the verbal altercation between Mr. Brown and Mr. Drysdale was slightly different than testified to by Mr. Brown. Mr. Hedstrom testified that Mr. Brown said “Get the fuck out of my face or I’ll knock you out”. [11] Mr. Hedstrom, too, was frightened when he saw Mr. Drysdale coming towards he and Mr. Brown with large knife. He testified that he was “fairly petrified” and ran quickly block or so away from the scene of the initial confrontation between Mr. Brown and Mr. Drysdale. He testified he saw Mr. Drysdale chase after Mr. Brown with the knife in his hand. [12] Mr. Brown testified, on cross-examination, that he was six feet tall and approximately 265 pounds at the time and Mr. Hedstrom that he was also six feet tall and approximately 275 pounds. Both accepted that Mr. Drysdale was considerably smaller than either one of them. Messrs. Michael Dyck and Adam Fretz were two bystanders who lived in the neighbourhood and were walking to the 7-Eleven where they intended to buy some confections. Mr. Dyck testified that he saw two persons outside of the 7-Eleven, one being Mr. Brown and the other the accused, Mr. Drysdale. He testified he saw the accused becoming upset, saw Mr. Drysdale going to dufflebag, digging through it and pulling out the knife. [14] He described Mr. Drysdale as being very upset and yelling. He saw him with the knife in his hand going towards Mr. Brown. He saw Mr. Brown running away and the accused chasing him to his vehicle. He saw Mr. Drysdale stab the tire of the vehicle with the knife. He then observed Mr. Drysdale walking behind the 7-Eleven into an alley, still with the knife in his hand. He testified that he thought Mr. Drysdale to be drunk and that he saw can of beer in his hand during the altercation with Mr. Brown. [15] Mr. Dyck followed the accused into the back alley and saw him throw the knife he still carried away in the yard of residence backing onto it. He eventually went into that back yard, saw where the knife was lying, and after one arrived, showed the police officer where it was. [16] Mr. Adam Fretz’s testimony was much to the same effect as Mr. Dyck’s. He was the individual in the company of Mr. Dyck. He, too, saw and heard the altercation between “native guy”, as he described Mr. Drysdale, and two individuals who later became identified as Messrs. Brown and Hedstrom. [17] Mr. Fretz had specific recollection of seeing Mr. Drysdale digging through dufflebag, throwing cans and bottles out of it and pulling out the knife which he then had in his hand. He observed Mr. Drysdale chasing Mr. Brown to his car, slashing tire on the car and Mr. Drysdale taking off down the back alley. He, too, thought he saw the accused with can of beer in his hand, which he specifically identified as an MGD (Miller Genuine Draft) beer. He observed the accused run into yard in the alley at the back of the 7-Eleven store. [18] Mr. Drysdale, the accused, gave evidence and his account of the events differed to some degree from that given by the Crown witnesses. He testified that at the time he was homeless and approximately five feet eight inches tall, weighing 145 pounds. He admitted to having lots to drink the day of this incident and that he and his companion went to the 7-Eleven store to panhandle and get more money. He testified that at the 7-Eleven store he “blacked out” only to find himself, when he came out of it, standing in front of two guys. He recalled he offered them cigarette “for being in their personal space”. He testified one of the guys said he would punch him out. As best he could recall, that individual (accepted to be Mr. Brown) said something to the effect “Get the fuck out of my face or I’ll beat the fuck out of you”. [19] Mr. Drysdale testified that he was nervous, that he went back to his bag to show them he was not afraid of them. He got his knife, intending to “show them had more power than them”. He admits that he had the knife in his hand and testified he walked towards the two men who he testified were walking towards him. They looked at him and ran away. He testified that the two men “made me feel small”. He testified, in chief, that it was not his intention to stab Mr. Brown, but rather he grabbed his knife “to make myself bigger than those two men”. [20] At one point in his examination-in-chief he admitted going after Mr. Brown to his vehicle, but at another point said although he followed one of the men, he stopped because he felt he had made his point. He then testified he did not follow the man to his vehicle. [21] Mr. Drysdale testified he tried to get away from the area, intending first to cross Winnipeg Street. He still had the knife with him. He testified he was prevented from doing so by large black vehicle that was blocking his way. He then turned and went into the back alley at the back of the 7-Eleven store. He said that on number of occasions, the black vehicle chased him in the back alley, and blocked his way and caused him to go into panic mode. That is when and where he testified he stabbed the vehicle’s tire. Mr. Drysdale then testified he went into yard where he admitted he threw the knife away. [22] On cross-examination, he admitted not only to drinking for most of the day with his companion, but as well taking the drug methadone. He testified that he blacked out at the 7-Eleven, which meant that he did not remember anything until he recovered to find himself in the personal space of Mr. Brown. He admitted he went for his knife to show them that “I wasn’t alone”. He stated that if they intimidated him, he would intimidate them back by showing his knife “I was pretty drunk”. He testified that it was his friend, not he, who had the MGD beer in his hand. [23] Mr. Drysdale further testified, on cross-examination, that after the verbal confrontation with Mr. Brown, he admitted Mr. Brown did not “come after me” and that he (Mr Brown) did not yell after him. He admitted that he went to his bag, got his knife and reiterated that his intention was to show the two men that he was not alone. He admitted that Mr. Brown never touched him or hit him and again, that Mr. Brown did not follow him to his bag. His intention, he stated, was to intimidate Mr. Brown. He testified that he thought he probably said “want piece of this” when approaching Mr. Brown with his knife. He said Mr. Brown and his friend ran away when they saw him with the knife, that he went after Mr. Brown when he ran away (this is illustrated in the video tape), testifying his purpose was to ensure that Mr. Brown would not come back after him. He accepted that he went to the back alley to get away from the black vehicle which was blocking his way as he attempted firstly to cross Winnipeg Street, and thereafter blocking his way, on number of occasions, in the back alley behind the 7-Eleven, two or three times. He testified, as he did in chief, that it was at that time that he stabbed the tire of the vehicle. He did not see nor recognize who the driver of it was. [24] The main issue for the determination of the court in respect to this case is whether or not Mr. Drysdale is guilty of the offence as charged in the indictment. Counsel for Mr. Drysdale raises self-defence as defence to the charge against him, thereby also placing self-defence in issue in this case. ANALYSIS The Criminal Code [25] Section 267(a) of the Criminal Code, RSC 1985, C-46, the section with which Mr. Drysdale is charged, provides in part as follows: 267 Every one who, in committing an assault, (a) carries, uses or threatens to use weapon or an imitation thereof, ... is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years [26] Section 265 of the Criminal Code defines assault, in part, as follows: 265 (1) person commits an assault when (b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; [27] Finally, s. of the Criminal Code defines “weapon” as follows: In this Act, weapon means any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person The Evidence [28] Because of stipulation made by counsel for the defendant, there is no issue respecting the identification of Mr. Drysdale. There is also no question that the Crown has established, beyond a reasonable doubt, that the offence charged occurred on the date and at the location alleged in the indictment and that the butcher knife entered as Exhibit P1 is clearly a weapon as defined by s. 2 of the Criminal Code. [29] I also have no hesitation in finding and concluding that it was Mr. Drysdale who initiated the confrontation between he and Mr. Brown by walking up to him and, in very close quarters, as Mr. Drysdale himself testified, getting into his personal space. also accept that the evidence proves, beyond reasonable doubt, that Mr. Brown said something to Mr. Drysdale that caused him to become upset, go to his dufflebag, retrieve the large butcher knife in it (it was 15 inches long and the blade 10 inches), and that Mr. Drysdale then approached Mr. Brown and Mr. Hedstrom with the knife in his hand. am also satisfied, beyond reasonable doubt, that the Crown has established that by these actions, Mr. Drysdale threatened to apply force to Mr. Brown and that Mr. Brown believed, on reasonable grounds, that Mr. Drysdale had the present ability to effect his purpose, namely to threaten to apply force to him. Clearly Mr. Brown did not consent to him doing so. [30] By his own evidence and admissions during both examinations-in-chief and cross-examination, Mr. Drysdale condemned himself. He admits that it was he who initiated the confrontation with Mr. Brown by being “in his personal space”, that Mr. Brown, although saying something offensive to him, nevertheless did not touch him nor did he go after Mr. Drysdale when Mr. Drysdale left the scene of the verbal confrontation to go to his dufflebag and retrieve the knife. He admits that his purpose was to intimidate the two men (a word that he used) and to show them that “he wasn’t alone”. His intention was to make himself bigger, which the court took him to mean that although he was smaller than the two men he was confronting, the large knife would compensate for their differences in size. He admitted in his evidence that when Mr. Brown ran away, he followed with the knife still in his hand. [31] Where Mr. Drysdale’s evidence differs from those of the five Crown witnesses, it does so on peripheral events and circumstances and not on the main circumstances containing the elements of the offence charged. The one exception is his evidence regarding the stabbing of tire on the SUV vehicle which he testified took place in the alley behind the 7-Eleven. This directly contradicts the evidence not only of Mr. Brown, but as well, the eye-witness evidence of Messrs. Dyck and Fretz, two bystanders having no involvement with the confrontation Mr. Drysdale had with Mr. Brown. have concluded that the evidence of these latter witnesses on this point reflects what occurred both at Mr. Brown’s vehicle in the parking lot and in the alley. [32] My colleague, Mr. Justice Mills, in the case of Severight, 2010 SKQB 278 (CanLII), 357 Sask 304, had occasion to consider and apply the provisions of s. 267(a) of the Criminal Code in that case. That case, too, involved an individual carrying knives moving towards individuals, in that case, police officers. The case is an illustration of the dangerous consequences of such an action not only for the individuals who are victimized by such actions but as well, an accused, who in that case, was shot by one of the peace officers. At para. 44, quoting from the decision of Justice Batten in the case of Madsen (1991) 1991 CanLII 7629 (SK QB), 95 Sask 290 (QB), Justice Mills adopted the principle stated in that case as follows: ... ""It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. Mens rea lies in the intention to threaten not in the intention to carry out that threat."" [emphasis added] See also: Horncastle (1972), 1972 CanLII 1320 (NB CA), NBR (2d) 821 (NBSC) at 262 and 263; Jorden (2000), 2000 CanLII 19647 (SK PC), 196 Sask 300 (PC)) Self-defence [33] Counsel for Mr. Drysdale argues that this Court should find that self-defence is applicable in all of the circumstances established by the evidence given in this case. He relies upon s. 34 of the Criminal Code which provides as follows: 34 (1) person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to use or threat of force that the person knew was lawful. [34] In his submissions, counsel for Mr. Drysdale points to the evidence to establish that Mr. Brown threatened Mr. Drysdale. Counsel also submitted that it is not for the accused to establish self-defence but the burden rests with the Crown to establish, beyond reasonable doubt, that self-defence is not applicable in all the circumstances and, therefore, that this defence does not succeed. accept these submissions. [35] Mr. Hedstrom testified Mr. Brown said words to the effect “Get the fuck out of my face or I’ll knock you out”. Mr. Drysdale testified Mr. Brown said “Get the fuck out of my face or I’ll beat the fuck out of you”. Mr. Hitchcock submitted these words, in either case, constituted the use of “threat of force” made by Mr. Brown against Mr. Drysdale. also accept that submission. [36] Mr. Hitchcock goes on to submit that Mr. Drysdale was entitled to defend himself by taking the actions that he did, which are the subject matter of this charge against him. He further points to the fact that both Mr. Brown and Mr. Hedstrom were far bigger in size and weight than Mr. Drysdale and that, in and of itself, would be threatening to the latter. The accused’s comments, that he intended to make himself bigger by having and carrying the knife, reflects his mental state and the impact that Mr. Brown and Mr. Hedstrom’s size and Mr. Brown’s statement to him had on Mr. Drysdale namely they threatened him. [37] Mr. Hitchcock submitted for the court’s review the cases of Bladon, 2011 ABPC 145 (CanLII); B.E.N. (2000), 2000 CanLII 19579 (SK PC), 190 Sask 109 (PC) and Rice, 2013 BCPC 196 (CanLII), each being cases, as Mr. Hitchcock submitted, illustrating decisions where the courts either applied self-defence or rejected it. In addition to illustrating the analysis appropriate to application or non-application of self-defence, these cases illustrate the importance of an analysis of the particular facts and circumstances applicable to reach the appropriate legal result. It is also noteworthy that some of the cases pre-date the recent amendments to s. 34 of the Criminal Code. As the Supreme Court of Canada observed in the case of Ryan, 2013 SCC (CanLII), [2013] SCR 14, self-defence is justification based on the principle that it is lawful in defined circumstances to resist force or threat of force with force. [38] When one considers the factors set out in ss. 34(2), I have concluded, in all of the circumstances, that the nature of the force or threat that was presented by the size of Mr. Brown and Mr. Hedstrom, and the words used by Mr. Brown spoken to Mr. Drysdale, were not of a nature that would warrant, as reasonable, the action subsequently taken by Mr. Drysdale against Mr. Brown. I have reached this conclusion for a number of reasons, including the fact that it was Mr. Drysdale who initiated the confrontation by his approach to and very close contact with Mr. Brown. While Mr. Brown’s reaction and his statement was regrettably crude, disrespectful and insensitive to Mr. Drysdale and his circumstances, nevertheless the fact that he did not further assail Mr. Drysdale, nor touch him, nor, as Mr. Drysdale admitted on cross-examination, pursue him as he left, could only lead to the reasonable conclusion that Mr. Brown considered the matter over and he had no intention to use any force against Mr. Drysdale, nor was its use imminent within the meaning of ss. 34(2)(b). [39] While it is the case that the ss. 34(2)(d) factors clearly establish that both Mr. Brown and Mr. Hedstrom were much bigger than Mr. Drysdale and because of the latter’s apparent state of intoxication would be far more physically capable, if force were to be used, no physical force was actually used by Mr. Brown against Mr. Drysdale nor anything done or action taken by him after he verbally accosted Mr. Drysdale that would support reasonable conclusion that Mr. Brown’s use of force was imminent or posed threat to Mr. Drysdale. There was no history between these individuals as contemplated by ss. 34(2)(f), (f.1) nor does ss. 34(2)(h) apply. [40] I have concluded, as argued by the Crown, that Mr. Drysdale’s actions in leaving the area of confrontation and going back to his dufflebag to retrieve the knife and thereafter approaching Mr. Brown with the knife in his hand, pursuing him in the parking lot as he ran away, and using the knife to slash Mr. Brown’s vehicle’s tire, was completely out of proportion to any reasonable response to any threat that Mr. Drysdale may have perceived was made or presented by Mr. Brown in the circumstances of this case. [41] I have concluded that the Crown has established, beyond a reasonable doubt, that the facts and circumstances of this case do not give rise to the defence of self-defence. Mr. Drysdale’s actions were not reasonable in the circumstances and do not constitute lawful protection of himself from any use or threatened use of force against him by Mr. Brown. Nor was it reasonable for Mr. Drysdale to believe that there was a threat of use of force made against him warranting the measures that Mr. Drysdale took. [42] The accused testified but, as pointed out, where his evidence is at odds with that of the Crown’s witnesses, it is on peripheral matters only. His evidence does not raise reasonable doubt as to his guilt nor does it, in the context of the whole of the evidence and law have reviewed, leave reasonable doubt about his guilt. (R D.W., 1991 CanLII 93 (SCC), [1991] [43] have concluded that the Crown has established, beyond reasonable doubt, all of the elements of the offence and that the facts and circumstances of the case do not establish self-defence within the meaning of s. 34 of the Criminal Code after my analysis of those factors set out in ss. 34(2). In the result, I find the accused guilty as charged. J. T. C. ZARZECZNY","Criminal Law – Assault with a WeaponCriminal Law – Defences – Self-defence The accused was charged with assault by threatening to use a weapon, a butcher knife, contrary to s. 267(a) of the Criminal Code. The accused was panhandling outside a store when he and one of two security officers had a verbal confrontation. The accused walked towards the security officer with a butcher knife. The security officer ran to his vehicle and the accused followed him and slashed a tire on the security officer’s vehicle. The attending officer was directed to a yard where he located the accused. A knife was also located in the yard. A videotape from the store was entered as an exhibit and played for the court. The accused was considerably smaller than either of the security officers. The accused testified that he was homeless and had a lot to drink the day of the incident. He indicated that he “blacked out” and was in front of two security officers when he came to. He said that he offered them a cigarette for being in their personal space and one of the men told him that he would punch him out. The accused indicated that he got the knife out of the bag just to show the men that he was bigger than them. He said that he did not intend to stab them. At one point the accused admitted following the security officer to his vehicle and at another point said he did not. The accused said he then tried to get away from the area but was prevented from doing so by a large black vehicle. The accused said he eventually stabbed the vehicle’s tire because it was blocking his way and he went into panic mode. The accused raised the issue of self-defence. HELD: There was no question that the Crown established the offence beyond a reasonable doubt. The court found that the accused initiated the confrontation by walking up to the security officer and getting very close to him. The court found that the Crown witness’s evidence was preferred over the accused’s where it differed, namely the slashing of the vehicle tires. The court accepted the accused’s submission that the security officer told the accused to get out of his face or he would knock him out or something to that effect. The court considered the factors set out in s. 34(2) and concluded that the force or threat faced by the accused due to the size of the security officers and the words used by one of them did not warrant the action taken by the accused. The court offered numerous reasons for the conclusion: the accused initiated the confrontation; the security guard did not touch or further go after the accused; no physical force was used against the accused; and there was no history between the accused and security officer. The accused’s actions were out of proportion to any reasonable response to any threat. The court held that the Crown established, beyond a reasonable doubt, that the facts and circumstances of the case did not give rise to the defence of self-defence. The accused was found guilty as charged.",4_2016skqb160.txt
251,"J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: McLellan v. Shea Malik, 2004 NSSC 255 Date: 20041018 Docket: SN 111374 Registry: Sydney Between: Kenneth A. McLellan and Sadie McLellan and Marian McLellan v. Tina Louise Shea and Dr. H. G. Malik Respondent Judge: The Honourable Justice F.B. William Kelly Heard: October 13, 2004, in Sydney, Nova Scotia Written Decision: December 6, 2004 Counsel: Harvey M. MacPhee, for the plaintiffs Brian W. Downie, for Dr. H.G. Malik Robert M. Purdy, Q.C. for Tina L. Shea By the Court (Orally): [1] The applicant, Mr. Kenneth McLellan, was injured in single motor vehicle accident shortly after midnight on November 26, 1998, while riding in vehicle operated by one defendant, Ms. Tina Louise Shea. The accident is substantially based on injuries he received in the accident and, more specifically, on the treatment provided to him by the other respondent, Doctor H.G. Malik, at the Cape Breton Regional Hospital in Sydney, Nova Scotia. [2] Doctor Malik now applies, pursuant to s. 34 (a)(ii) of the Judicature Act R.S.N.S. 1989, c. 240, to set aside the Jury Notice filed by the applicants. The application was heard at Sydney on October 13, 2004. The other Applicants in the action are Mr. McLellan’s wife, Sadie McLellan, and his mother, Marion McLellan, who died after the commencement of the action. Counsel for the Applicants advises that he had not been made aware of the death of Marion McLellan until the hearing of this application. He indicated he needs to further consider the effect of her death on the action before taking any steps in response to this information. do not consider this uncertainty will affect the outcome of this application such that should not proceed to decision on this time. [3] The claim against the other defendant, Ms. Shea, was dismissed by Court Order dated March 21, 2001. However, she is still party by virtue of her cross-claim against Doctor Malik and his cross-claim against her. Her counsel has advised the Court in writing he would not appear at this hearing to make submissions but that his client desires the matter to be heard by jury. [4] In Marshall v. Curry (No. 2), 1933 CanLII 346 (NS CA), [1933] D.L.R. 198 (N.S.S.C.), Chisholm C.J. concluded that “[i]f the trial requires scientific investigation, think it must be conceded that the investigation cannot conveniently be made with jury” (p. 200). This decision was subsequently affirmed (see pp. 200-201). Since that time the education and experience of the average juror has improved considerably and it has been acknowledged by our courts that some level of complex and scientific evidence could comfortably be left with the jury. In the modern era, an established authority in this province with respect to striking jury has been the decision of Hallet, J., as he then was, in Leadbetter v. Brand (1980), 37 N.S.R. (2d) 660 (T.D.), where he stated that: “the degree of complexity is the key issue in an application to strike on that ground” (para. 8; emphasis in original). He concluded that the judge hearing the matter must review the relevant facts to assess whether or not the party who served the notice should be deprived of his or her prima facie right to jury trial (at para. 8). [5] Further, in MacIntyre Nova Scotia Power Corp.(1995), 1995 CanLII 4399 (NS SC), 145 N.S.R. (2d) 209 (S.C.) Tidman J. expanded this obligation at paragraph 14: The “degree of complexity” ... relates not only to the expert evidence per se, but also encompasses the extent and type of other evidence to be offered and the complexity in relating and applying all of the evidence to the issues before the court. [6] It is not disputed that the right of party to civil jury pursuant to the Judicature Act is right of substance, not to be easily set aside by the Court. This principle is well expressed in Neelands and Neelands v. Haig (1957), 1957 CanLII 357 (ON CA), D.L.R. (2d) 165 (Ont. C.A.), at p. 167: The right of party to trial with jury is substantive one. The defendant in this case gave notice of trial by jury, and he is not lightly to be deprived of his right to have the trial proceed in that way. trial Judge has wide, and indeed one might say an absolute, discretion as to the mode of trial, but his power to decide whether case should be tried with jury or without jury is one that cannot be exercised arbitrarily or capriciously. It must be exercised in judicial manner and there must be sufficient reason to deprive party of the substantive right to trial in the manner chosen by him.... In Leadbetter, supra, Hallett J. cited the Alberta decision in Wenger v. Marien (1977), 1977 CanLII 584 (AB QB), 78 D.L.R. (3d) 201 (Alta. S.C.T.D.), where Milvain C.J.T.D. discussed the problems that can arise in medical malpractice cases. Hallett J. said, at paragraph 7: In Alberta party has right to jury trial as in Nova Scotia.... [Milvain C.J.T.D.] considered number of cases dealing with the question of scientific investigation. He came to certain “definite conclusions” which he stated as follows [at p. 205]: (1) Section 32(2) [of the Alberta Jury Act] confers discretionary power that must be exercised judicially and which should not be cabined and confined within rigid rules. (2) The situations envisaged in the subsection require wide rather than restricted interpretation. (3) jury is suitable tool for determining common sense matters but not those of more complex nature. (4) Cases involving negligence of professional people bring into play determination beyond that of the reasonably prudent man in his actions, to that of the properly trained and careful professional. (5) In general, consideration of evidence where professional negligence is in issue falls into two important aspects. One aspect is as to what all of the relevant facts are and in the second place as to what are the requirements which must be met by the professional and what departure amounts to negligence. (6) That it is certain the search for evidence in any action involving the professional conduct of doctor does involve complicated and difficult scientific investigation, both from the point of view of determining and understanding the relevant facts as to what happened and from the point of view of determining whether there has been departure from professional skill, knowledge and care. [7] would also refer to Vaninetti Victoria General Hospital and Huestis (1994), 1994 CanLII 4260 (NS SC), 135 N.S.R. (2d) 385 (S.C.), where Gruchy J. said, at para. ... am sure that (to use the words of MacDonald J. in Young et al. v. St. Rita Hospital and Critchley (1985), 68 N.S.R. (2d) 293 (T.D.), ... ...a jury's discernment of the issues will improve when the jargon of the medical experts is reduced to terminology more easily understood"". Grant, J. made much the same point in Heartz v. Halifax Infirmary and Attia (1990), 1990 CanLII 4149 (NS SC), 99 N.S.R. (2d) 317 ... when he said that, ""Much of the terminology used is of Latin or Greek derivation; however, the terms can be readily translated into lay term."" tried the latter case and my observation was that the jury appeared to experience no difficulty. had similar experience with the case of Upham v. You (1990), 1990 CanLII 4147 (NS SC), 101 N.S.R. (2d) 376.... [8] It remains fore me to review the submissions of the parties and the materials presented at the hearing, most significantly the affidavits of counsel with attached medical and actuarial evidence, to determine if this material is of such complexity and of such technical nature that it could not be fully assessed by properly informed jury. [9] In the particular context of this application, follow number of authorities in citing with approval the words of Rogers J. in Myra v. Langille (1987), 80 N.S.R. (2d) 135 at paragraphs 13 to 17: 13. Not all malpractice suits, perhaps not even the majority, involve that kind of complexity, although with technical expert testimony, that jury cannot come to grips with the evidence with which they have been presented, particularly with the help of counsel and the court directing their attention to the relevant evidence and law, and particularly if they have the necessary time to deliberate. 14. In my view, reasonably educated and informed jury is just as capable, perhaps even more so, because there are seven of them, of assessing expert medical testimony, as single judge. This is so, particularly if that evidence is presented to it, as it should be, in way that reasonably educated and informed group of lay people can understand it. No more is done when single judge hears the case. The judge is not an expert in medicine when he hears medical malpractice suit and must assess what are often conflicting medical opinions without medical expert's background. He is faced with the same difficulties jury is faced with when medical evidence is introduced. He and they must assess the evidence, the weight of it, the conflicts in it, and make findings with respect to it. 15. Complicated medical evidence is often presented in criminal jury trials, yet the trials go forward and the juries deal with the issues raised by that evidence. 16. The knowledge of no profession which deals with the public should be clothed in so much mysterious complexity that it cannot be explained in understandable terms to reasonably intelligent jury of fellow citizens. 17. In applications to strike out jury notice otherwise properly made judge must weigh the complexity of the evidence that will be adduced at trial against the longstanding, traditional and substantive right of applicant in Nova Scotia to jury trial. There must be cogent reasons to remove case from jury. [Emphasis in original.] [10] would suggest that many medical malpractice suits, almost all of which involve expert medical reports with associated records and comprehensive actuarial reports, should not be beyond the capacity of civil jury. In most cases, as here, they will be handled by competent and experienced counsel who are skilled at presenting such evidence to judge or jury. If, at trial, the judge considers the case is becoming too complex, she or he may sever part of the case or, if necessary, may refuse to leave the case to the jury. [11] Most of the facts relating to causation in this matter appear to be agreed upon or not in significant dispute. The principal dispute relates to the medical condition of Mr. McLellan in the period before his treatment by Dr. Malik, the doctor’s medical involvement with the patient and the patient’s medical condition after Dr. Malik’s treatment. ACCIDENT AND MEDICAL SUMMARY [12] will give an overview of the facts relating to causation. Mr. McLellan was injured in motor vehicle accident at approximately 12:30 a.m. on November 26, 1998 when the vehicle in which he was passenger (driven by Ms. Shea) apparently hit an ice patch and went off the road near Ingonish Beach, Nova Scotia. It was reported that he was able to “walk away with assistance” from the accident scene and he, along with Ms. Shea, was driven by passerby to residence where he spent an uncomfortable night. Around 8:05 the next morning he attended at the Buchanan Memorial Hospital, where it was reported that he walked into the emergency room and had the use of all four extremities. Because he complained of severe cervical pain and other symptoms, cervical x-ray was taken which revealed C-6 subluxation on C-7, and spinous process fracture; in effect, broken neck. The physician placed him in cervical collar and arranged transport to the Cape Breton Healthcare Complex in Sydney later that day. [13] During transport Mr. McLellan was observed to be capable of limited movement of his limbs. In Sydney he came under the care of Dr. Malik, who instituted cervical traction to reduce the spinous dislocation, process that appears to have brought the spine into reasonable alignment. Subsequently, at about 3:00 p.m. on November 26, it was reported that he had some sensations in all of his limbs, but some muscle reflex was diminished, as was pin prick perception in both hands. Dr. Malik observed the injured area at about 8:00 p.m. using an x-ray device which apparently, in this case, produced no record. He determined from this observation that he should operate, and did so the following day, November 27. understand that the purpose of the operation was to stabilize the injured site by the application of internal fixators or clamps. When Mr. McLellan was in the recovery unit after this surgery nurse noted that he was not moving his legs and Doctor Malik was called again. myelogram indicated complete blockage in the upper thoracic area, apparently indicating complete C6 quadriplegia. [14] The next day Mr. McLellan was flown to the Queen Elizabeth II Health Science Centre in Halifax, where an M.R.I. imaging sequence revealed C6/7 acute disk herniation which caused displacement of the spinal cord. Another operation resulted in the removal of the clamps inserted by Dr. Malik. Other procedures were performed, including internal fixation by lens plate and screws. Despite this intervention, Mr. McLellan was discharged many weeks later from the Q. E. II Rehabilitation Centre with the same diagnosis as the admission diagnosis: “traumatic C6-7 facet dislocation (C6 fracture) with C6 quadriplegia.” CONSIDERATION [15] The burden of proof in an application to strike jury is on the applicant to show that there are cogent reasons to do so: Atkinson v. Flynn et al. (1998), 1998 CanLII 6303 (NS CA), 170 N.S.R. (2d) 385 (C.A.) at para. 5. Counsel for the applicant submits that the action will involve complex medical questions and notes that the medical charts exceed 1,500 pages, but it appears that the more relevant hospital records are less than 100 pages. Volume is relevant in assessing complexity but, as Grant J. said in Corkum v. Sawatsky et al. (1992), 1992 CanLII 4653 (NS SC), 113 N.S.R. (2d) 406 (S.C.T.D.) at paragraph 34: “The volume of the material in itself is not the determining factor. Here, however, much of it is contradictory and all of it is complex.” Grant J. concluded that the expert evidence was of such complexity that it should be assessed by judge and not jury. He considered splitting the two elements of the trial between the judge and the jury, noting that there may be circumstances where it would be equitable to split, but said he had “not been asked to do so” (para. 37). [16] In Corkum, supra, damages included ten disputed appraisals of property along with several reviews of these appraisals, one by consulting economist, all lengthy. This expert evidence was in addition to the assessment of damages to an applicant totally disabled from employment as well as the usual medical evidence. In these somewhat unusual circumstances Grant J. struck the jury in part because he was not the trial judge. As in the present proceeding, the trial judge was not yet appointed. Grant J. commented that the trial judge should normally deal with an application to strike (para. 35). [17] Counsel in the present matter agree that the length of the trial will be approximately three weeks. They appear to agree that the essence of the liability issue will be limited in time (since the medical interventions occurred within two to three days), in the most relevant anatomical area (the thoracic vertebrae region of the spinal column) and in the number of medical personnel involved in the relevant interventions. [18] The medical experts will mainly focus on the interventions of physicians and neurosurgeons at the medical centres at Neil’s Harbour, Sydney and Halifax. The principal subject matter will be the interventions of Doctor Malik and of the personnel at the Q.E.II Health Sciences Centre, particularly the neurological surgeon, Doctor R.O. Holness. [19] Counsel for the respondent proposed that the causation issue could be set out as follows (I paraphrase): was Mr. McLellan’s dramatic result caused by or contributed to by Doctor Malik’s operation to insert pressure clamps in the presence of an undetected disk hernia? The respondent’s expert reported in an opinion letter that he believed the spinal cord injury was exacerbated during the surgery, resulting in quadriplegia. The medical report of the defendant’s expert (dated June 14, 2004) indicated that he believed “there were three major contributing factors that combine to precipitate it. 1. congenitally narrow spinal canal. 2. C6/7 herniation and, 3. Insertion of the clamp fixating devices.” presume his reference to the fixating devices are those inserted by Doctor Malik. [20] understand that the position of the respondent/applicant is that Doctor Malik, when presented with the x-ray evidence of C6 dislocation on the C7 and the C6 spinous process fracture, should have used further radiological investigation to determine if there was disk herniation or other impingement into the spinal canal. The submission is that he should have used more appropriate imaging device before operating or, failing access to such device, transport Mr. McLellan to Halifax where such imaging devices were available. [21] The position of the applicant/defendant is that, because Mr. McLellan presented with very unstable dislocation and was at high risk for neurological injury, it would have been dangerous to transport him to Halifax in that condition, and that his medical intervention demonstrated an acceptable standard of care given the imaging resources available to him. [22] In my opinion much of the factual material relating to these issues is not substantially contested, but the opinions of the opposing medical experts will be a major area of contention at trial. [23] It is my opinion these issues are no more complex than most causation issues presented in medical malpractice cases. The three opinion letters provided by the respective medical experts consists of total of nine pages and appear to agree on most of the facts upon which their contradictory opinions rely. am satisfied that jury will be capable of dealing with the medical evidence. [24] The other major matter to be considered in this application is the potential evidence relating to damages. The applicant/defendant submits that this evidence will be so technical and complex that, combined with the evidence relating to causation, it will be of such complexity and volume that it should be taken from the jury. Mr. McLellan has advanced substantial claim, including pain and suffering, past and future cost of care, loss of income and amenities and interest on those claims, as well as costs. [25] substantial part of these claims will be based on the report of Linda Stanley, M.S.W., R.S.W., consultant in rehabilitation and cost of future care. This is 17-page report, including 15 pages of analysis of Mr. McLellan’s pre-injury personal profile (including his medical history), summary of the accident, diagnosis and treatment as well as post-injury complications. It also gives the reporter’s assessment of his present functional abilities and his present daily living activities. Finally the report deals with his current management and care, including medications. Each category concludes with her recommendation of methods to assist him in coping with his limitations in the future. Attached to the report is breakdown and explanation of cost projections and summary of the costs of these recommendations, extending to ten pages. further five-page appendix deals with information about spinal cord injury, which assume is the technical medical information that the reporter used for reference. [26] In my opinion, none of this material appears to be unusually complex. It is the usual type of analysis expected with most claims, particularly those involving significantly disabling injuries. [27] do not doubt counsel for Doctor Malik when he claims that many of the reporter’s assumptions will be challenged. The applicant’s expert reports differ somewhat in their conclusions, but this is not unexpected, as Mr. McLellan’s income was not regular, consistent one. They agree, however, that the source of his income was fishing, employment insurance benefits and the operation of camp ground, as well as whale-watching tour operation. In any event one could also expect that the assumptions of report by Brian A. Burnell of Burnell Actuarial Consulting Inc. would be challenged in the same way. The report provides an opinion of the value of Mr. McLellan’s past and future losses. As have stated above, reports such as these are not unusual nor unexpected in such cases and are helpful to the trier of fact in considering variations from the amounts claimed, after hearing directions by the trial judge as to relevant evidence and law and after receiving argument by counsel. have reviewed these reports in detail. [28] Counsel for Dr. Malik advises that an expert report from an economist will be presented at trial in support of his client’s position. This will add to the complexity but have no basis to determine that this report will add substantially to the complexity of the evidence. [29] After considering the issues involved in this case and the nature of the medical and actuarial evidence that will likely be adduced, am satisfied that jury would be capable of understanding the issues. I conclude that the evidence will not be so complex and scientific that the applicant’s substantive right to a trial by jury should be denied. To do justice to all of the parties, including those other than Mr. McLellan and Dr. Malik, find that there are not sufficiently cogent reasons to set aside the jury in this case. [30] Consequently, the application of the defendant, Dr. Malik, to set aside the jury notice is dismissed with costs of $2,500 and disbursements relating directly to the application.","The defendant doctor in a personal injury case applied to set aside the Jury Notice filed by the plaintiff. Application dismissed; the evidence would not be so complex and scientific that the plaintiff's substantive right to a jury trial should be denied. Although the medical charts exceeded 1500 pages, the more relevant hospital records were less than 100 pages; the essence of the liability issue would be limited in time, in the most relevant anatomical area and in the number of medical personnel involved in the relevant interventions; the factual material did not appear to be in dispute; and the issues were no more complex than most causation issues presented in medical malpractice cases.",b_2004nssc255.txt
252,"1998 S.H.146123 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: CANADA TRUSTCO MORTGAGE COMPANY and HALIFAX REGIONAL MUNICIPALITY DECISION HEARD BEFORE: at Halifax, Nova Scotia before the Honourable Justice Margaret J. Stewart on June 10, 1998, Special Chambers, 2:00 p.m. DECISION: July 9, 1998 COUNSEL: Joel Fichaud, Q.C., for the plaintiff Michael Moreash,for the defendant Stewart, J.: The plaintiff, Canada Trustco Mortgage Company, (""Canada Trust""), a municipal tax payer paid its property taxes as assessed for the years 1994, 1995, 1996 but on appeal was held entitled to a refund for each of the three years in the total amount of $420,177.13. Canada Trust, pursuant to s. 41(i) of the Judicature Act, R.S.N.S., 1989, c. 240 seeks payment of interest on this amount from the date of the payments and stresses it does not seek the alternative remedy of entitlement to the interest based on unjust enrichment. The facts are not in issue. Canada Trust, municipal taxpayer, in the City of Dartmouth, now Halifax Regional Municipality (""HRM""), the defendant, was assessed for municipal property taxes on fourteen multi-unit residential properties. As required by the Assessment Act, R.S.N.S., 1989, c. 23, Canada Trust paid its taxes as assessed. It appealed its assessments for the years 1994, 1995 and 1996 inclusive. The appeal process ended with the Nova Scotia Court of Appeal, on March 3, 1997, upholding the Utility and Review Board's assessment determination which translated into $420,177.13 overpayment of taxes. Within five months, on September 5, 1997, HRM issued $420,177.13 property tax refund cheque to Canada Trust. HRM earned interest on this money from the time of receipt or had the use of these monies. As noted, Canada Trust seeks interest pursuant to s. 41(i) of the Judicature Act, supra on the refund from the date it made the overpayments to HRM in response to HRM's tax invoices requiring payment of those amounts on the ""due dates"" in 1994, 1995 and 1996. Section 41(i) reads: In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions: (i) in any proceeding for the recovery of any debt or damages, the Court shall include in the sum for which judgment is to be given interest thereon at such rate as it thinks fit for the period between the date when the cause of action arose and the date of judgment after trial or after subsequent appeal. Canada Trust submits s. 41(i) provides an ""independent"" statutory basis for interest claims on debts and states pre judgment interest is payable from ""the date when the cause of action arose"" and ""the cause of action arose"" when Canada Trust was required to overpay its property taxes, thereby causing it to suffer loss. Canada Trust submits it is entitled to compensation for the deprivation. Basically, Canada Trust contends pre judgment is payable on the overpayment of property taxes from the time of remittance for the same reasons pre judgment interest was payable in Cherubin Metalworks Limited v. Nova Scotia (Attorney General) (1995), 1995 CanLII 4314 (NS CA), 137 N.S.R. (2d) 197 (C. A.) where an overpayment of Health Services tax under the Health Services Tax Act, R.S.N.S., 1989, c.198, over period of several years resulted in the trial court and the Nova Scotia Court of Appeal, in an action for unjust enrichment, awarding judgment for substantial overpayment of sales tax and concurrently, under s. 41(i) of the Judicature Act, supra, prejudgment interest on the overpaid sales tax amount from the time of the remittance of the tax overpayment by Cherubin Metalworks Limited. Justice Roscoe, speaking for the unanimous court, at p. 209-11, stressed the court's previous findings that firstly, the purpose of s. 41(i) is to compensate the litigant for the profit he might have made if he had use of the money and secondly, interest is payable under this section on ""any sum of money which is recoverable by one party from another, either in common-law or in equity or under Statute"" thereby giving the phrase ""debt or damages"" ""very wide"" definition. Canada Trust stresses the issue is not when there is an obligation to pay prejudgment interest i.e. upon determination by the Court but rather the issue is when did the facts which if proven in the appropriate proceedings support the cause of action. When did those facts i.e. the overpayment of taxes because the properties were over-assessed happen? Canada Trust cites Cherubin, supra as an example of the trial judge finding an obligation to refund excess taxes in 1994 but awarding the prejudgment interest back to 1988, being the date when the overpaid health taxes were first remitted. HRM paid the refund of overpaid real property taxes to Canada Trust, pursuant to s. 90 of the Assessment Act, supra. Section 90 reads as follows: When person has paid any money on an assessment or rate that is subsequently quashed, reversed or varied as result of which his rates have been overpaid, he shall be repaid by the treasurer out of the general revenues of the municipality the amount overpaid, but if an appeal is taken against the order quashing, reversing or varying the assessment or the rate, the person is not entitled to repayment until the disposition of the appeal. HRM submits s.90 provides tax payer has no right to refund of any overpayment of taxes until the disposition of any appeal of the assessment. It specifically and expressly requires the municipality to refund the amount overpaid and intentionally makes no mention in this or in any other section to paying interest on that overpayment. This lack of obligation to pay interest on an overpayment of taxes, resulting from incorrect assessment, is fact that HRM contends is consistent with similar statutes in other provinces. HRM submits the legislature did not intend other statutory provisions, like s. 41(i) of the Judicature Act, supra, to apply or to be read in conjunction with the Assessment Act, supra. This intention can be drawn from the fact the Assessment Act, supra is complete code and s. 90 specifically is exhaustive in describing clearly what payment the municipality is required to pay, ie. the amount overpaid. No interest payment is authorized, either directly or indirectly, by the Assessment Act, supra and even the refund of taxes cannot be paid until the appeal process is complete. Secondly, the intention can be gained from the very terms or phrases in s. 41(i) of the Judicature Act, supra. Section 41(i) only applies where there is proceeding for the recovery of any debt or damages and it is ""mischaracterization"" of the various levels of assessment appeals to suggest they are proceedings for the recovery of debt or damages. am satisfied there was no cause of action for return of any overpayment of taxes until after the appeal provisions of the Assessment Act, supra had been exhausted. The Nova Scotia Court of Appeal ruled upholding the reduced assessment in March, 1997. Consequently, the date from which interest is calculated in this action to pursue Canada Trust's right to interest on the amount of the overpayment is upon completion of the appeal process. Appeal proceedings before the Utility Board and the Nova Scotia Court of Appeal were not ""proceedings for the recovery of any debt or damages"". No amount of money was awarded as judgment for overpayment. Rather, the appeal proceedings were limited to confirming or amending the assessment. At the end of the process, the assessment was reduced and this had the ramification of an overpayment when the taxes were recalculated. No order was provided for recovery of the overpayment. HRM was under direct mandatory statutory obligation, pursuant to s. 90 of the Assessment Act, supra to refund any amount overpaid as soon as the appeal process concluded. As noted in Island Realty v. Corner Brook (City) (1994), 1993 CanLII 7758 (NL CA), 113 Nfld. P.E.I. 198 (C.A.), at this point failure by HRM to repay the overpaid taxes could result in an action for recovery of the overpayment, pursuant to the Assessment Act, supra and interest could be claimed under s. 41(i) of the Judicature Act, supra from the time the overpayment was to be paid. There is no provision in the Assessment Act, supra to pay interest on the overpayment. Section 90 clearly states there is no entitlement to repayment of an amount overpaid until disposition of the appeal. Canada Trust could not bring an action to recover an overpayment from HRM at any time before the decision was rendered on the assessment by the appeal body. Appeal proceedings under the Assessment Act, supra relate to the validity and appropriateness of the assessment and are not proceedings for the recovery of ""debt or damages"". The taxpayer, Canada Trust, had no cause of action for return of any overpayment of taxes until the appeal provisions of the Assessment Act, supra had been exhausted and resulted in reduced assessment. Unlike Cherubin, supra the payment of taxes were not overpayments at the time they were paid. The payments were simply the payment of taxes on assessment and could not be said to have been overpayments until the conclusion of the appeal process (Zaidan Group Limited v. Corporation of the City of London (1988), 1988 CanLII 4803 (ON SC), 37 M.P.L.R. 261 at 264 (O.D.C. Austin, J., dissenting); (1990), 1990 CanLII 2624 (ON CA), 47 M.P.L.R. at 3(O.C.A.); (1992), 1991 CanLII 53 (SCC), 129 N.R. 227 (S.C.C.)). The date when it could be said to be an overpayment of taxes does not change or revert back to an earlier date when the tax payments were remitted because the appeal process has concluded. proceeding under the Judicature Act, supra does not create debt. There was no right to a refund of overpaid taxes until March 1997 when the Nova Scotia Court of Appeal rendered its decision upholding the reduction in the assessment. An appropriate interest claim does exist under s. 41(i) of the Judicature Act, supra on the principal amount for the five month period between the Nova Scotia Court of Appeal assessment determination in March, 1997, and the payment of the property tax refund, in September 1997, as well as on the unpaid interest until date of judgment. An interest rate of 8.75 % being a rate equatable to the interest rate charged by HRM on overdue taxes (prime plus 4 %) is an appropriate rate on the principal amount of $420,177.13 fro m March 3, 1997 to the date of the refund on September 5, 1997 and on the unpaid interest only from September 6, 1997 to the date of judgment. would ask counsel to make the appropriate calculations and subject to any agreement wil hear the parties as to costs by way of brief written submissions.","The plaintiff paid its municipal property taxes as assessed for three years. On appeal it was held to be entitled to a refund for each of the three years in the total amount of $420,000. The plaintiff, pursuant to s. 41(I) of the Judicature Act, sought payment of interest on this amount from the date of the payments. Awarding 5 months interest, that the date from which interest is calculated in this type of action is upon completion of the appeal process. An appropriate interest claim under s. 41(I) therefore only exists for the five month period between the Court of Appeal's assessment determination and the refund of the property tax five months later.",9_1998canlii1737.txt
253,"J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: E.S. v. Children’s Aid Society of Cape Breton-Victoria, 2005 NSSC 172 Date: 20050622 Docket: S.N. No. 19697 Registry: Sydney Between: E.S. and M.S. v. Children’s Aid Society of Cape Breton-Victoria Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on October 9, 2008. Publishers of this case please take note that s.94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child” Judge: The Honourable Justice Arthur J. LeBlanc Heard: June 9, 2005, in Sydney, Nova Scotia Counsel: M. Frances Roach MacDonald for the applicant Robert M. Crosby, Q.C., for the respondent By the Court: INTRODUCTION 1.E.S. and M.S. have applied for leave to terminate an order for permanent care and custody respecting their three children: D.-O.H., born [in 1998]; S.B.C.H., born [in 1999] (who is referred to as R.); and E.C.S., born [in 2001]. The decision of MacLellan J. to grant an order for permanent care and custody pursuant to the Children and Family Services Act (CFSA) was affirmed by the Court of Appeal in October 2004 (see [2004] N.S.J. No. 398). [2]The application for leave is dated December 2004. It was adjourned several times. In April 2005, the applicants filed an application to terminate the order for permanent care. Prior to January 31, 2005 prospective adoptive parents for R. and E.C.S. gave notices of proposed adoption. [3]At the hearing the Agency suggested that the court lacked jurisdiction to hear the application to terminate in respect of R. and E.C.S., because notices of proposed adoption had been given. Counsel for the applicants indicated that they intended to proceed with the application for leave rather than the application to terminate. The Agency opposed the leave application on the basis that the applicants had not made sufficient progress sufficient progress to justify granting leave to apply to terminate the Permanent Care and Custody Order. EVIDENCE [4]The applicants provided several affidavits, whose content will discuss below. Affidavit of E.S. and M.S., dated December 20, 2004 [5]E.S. and M.S. state that since the permanent care order was made they have taken “parenting courses” as well as marriage counselling and parenting counselling, and are living together as husband and wife again after temporary separation “at the suggestion of the agency.” They state that they have better understanding of how to cope with day-to-day parenting problems and that they are living in “clean safe home ... with appropriate accommodations for the children.” They also say they have reflected on how to raise and care for their children, and that it was necessary for them to make changes in order to better understand their parenting role. Finally, they state that they can present evidence to establish that there have been material changes in their lives since the Order for Permanent Care and Custody was made. Supplemental Affidavit of M.S., dated February 27, 2005 [6]M.S. states that she had unresolved anger but that she “didn’t fully realize it until my children became involved with the agency.” She states that she was foster child in the care of the Agency, and that she was “essentially on my own from the time was 13 years old.” She had given birth to two children (one of whom died in infancy) when she was 17 years of age, and the third, E.C.S., was born with form of cancer when she was 20 years old. She was “completely overwhelmed” and blamed her husband for her difficulties. Matters got worse when the Agency undertook Protection Application. She and her husband fired their lawyers and turned to “a lay person who ‘helps’ people who are involved with the agency.” Throughout the proceedings including the Appeal, she claims she was badly advised by this person, who she says suggested that the Agency was violating their rights. Consequently, she felt victimized by the Agency and “could not get past my anger to deal in rational manner with anyone.” It was only after the appeal decision had that she felt that she had reacted quite incorrectly and that this layperson did not know how to deal with the problem and neither did she and her husband. M.S. says she takes full responsibility for her conduct. She maintains that at the time, she did not know any better, and at “no time did (particularly me) we understand nor were we advised that we had corresponding responsibility to co-operate for the benefit of ourselves and especially for the benefit of our children.” [7]M.S. says she has been diagnosed with bipolar disorder and obsessive compulsive disorder. She is under the care of Dr. Scott Milligan, psychiatrist at the Cape Breton Regional Hospital. She maintains that she “feels like new person since the medication has taken effect.” She suggests that she would not have been influenced by the lay person, but for the chemical imbalance. [8]M.S. also states that she and her husband have worked at their marriage. She says they “love each other and are getting along like we have never gotten along before.” She maintains that they are ready to undertake formal marriage counselling in order to further develop their skills for problem solving and maintaining tolerance even when they disagree. [9]M.S. states that her medical condition caused her great difficulty in staying focussed, and “now that my brain is stabilized feel that can successfully parent and that can benefit from courses and training.” To that end, she has enrolled in parenting courses at the Family Resource Centre. She states that she also intends to upgrade her education. M.S. claims that both she and husband are “totally committed to breaking the cycle of bad parenting, foster care and social assistance and raising our children to have respect for others and for authority....” [10]M.S. states that she and her husband have made significant improvement in the cleanliness of their home. [11]Although they are concerned about disturbing the children, M.S. and her husband are anxious to speak with them. She states that they are “prepared to co-operate in any way possible with the agency to have them returned” or even “to have access to them.” Supplemental Affidavit of E.S., dated February 27, 2005 [12]E.S. states that during the course of the proceedings, he felt that he was unable to take different position than that of his wife despite the fact that he thought she was being misdirected by the lay person. However, he deferred to his wife because she had prior dealings with the Agency. He feels that she was unable to do any better because of her medical condition and unresolved conflicts. He states that he feels much stronger than before, and has vision for the children and for the entire family that he believes M.S. shares. He states that he and his wife “fully understand and appreciate how counter-productive are anger, rage and all negative emotions, not only towards the Agency but to anyone.” [13]E.S. states that he completed “35 session Anger Management Course through Family Services of Eastern Nova Scotia with Sr. Gwendolyn O’Neill.” He was initially sceptical about the program but now says it was “the best thing ever did in my life.” [14]E.S. says he is in the process of arranging marriage counselling through Family Services. He and M.S. had initiated marriage counselling with Sister O’Neil, but she was no longer available. E.S. states that he and his wife “love each other and are getting along better than we ever have.” [15]He states that their residence is clean and organized. He says his wife has consistent energy since going on medication and keeps the house spotless, and “I make sure help her.” They also intend to start attending church services to make it part of their life. [16]E.S. says he wants his children to become strong and decent citizens and “I know that starts with me.” He states that he is prepared to cooperate with the Agency “in becoming competent and effective parent.” Affidavit of M.S., dated May 16, 2005 [17]M.S. states that she and her husband intended to have the application for leave heard on February 9, 2005, and their new counsel was retained the day before. The hearing was adjourned to February 28. On that date, Robertson J. granted an adjournment to allow them more time for preparation. They subsequently filed the two supplemental affidavits described above. [18]On March 7, 2005, M.S. states, they received two Notices of Proposed Adoption from the Agency. They oppose the adoption of the two children. [19]M.S. states that she has taken parenting courses and that she has learned much from them, due in large measure to her medication. She attributes her attitudinal change and more mature approach to problem-solving to the medication and her psychotherapy with Dr. Milligan. M.S. also states that she and her husband have enrolled in counselling with Family Services of Eastern Nova Scotia and that they “intend to participate fully in every program available to us.” She also maintains that she and E.S. have been working at improving their marriage and that their relationship has “never been better.” She maintains that the children’s best interests in the long term would be better served if they were in their parents’ care. Affidavit of E.S., dated May 16, 2005 [20]E.S. states that there has been extreme change in his wife since she has been under the care of Dr. Milligan: “She is able to remain calm. Her energy level has increased in consistent and stable matter. She keeps our home spotlessly clean.... She no longer reacts to situations in negative manner. She is working diligently to become better person and parent.... too am involved in this endeavour.” He confirms that they have enrolled in counselling with Family Services of Eastern Nova Scotia and that they “intend to pursue any and all resources to better equip us to become effective parents in the long term.” He states that they will co-operate with the Agency “in any and every way” in order to have their children returned or to be “allowed to see our children and interact with them.” He maintains that the long-term best interests of the children would be met in their parents’ care. [21]The Agency provided an affidavit of Mairi MacLean, supervisor with the Agency. Affidavit of Mairi MacLean, dated February 9, 2005 [22]Ms. MacLean states that E.S. is not the biological father of D.-O.H., and that M.S. “has indicated at times that E.S. is, and at other times is not, the biological father of ... S.B.C.H. ....” [23]Ms. MacLean states that the arguments made by E.S. and M.S. before the Court of Appeal only related to matters of process, not to substantive issues. She maintains that no new evidence of parenting courses, marriage counselling or parenting counselling was presented to the Court of Appeal when the appeal was heard on October 15, 2004, and that no evidence has been presented to the court or to the Agency since that date. [24]Ms. MacLean refers to the Parental Capacity and Psychological Assessment completed by Michael Bryson, dated August 27, 2003. The assessor wrote: E.S. and M.S. are currently unable to provide the stability, consistency or appropriate parenting that their children require. If they could provide such stability, it would only likely occur after significant period of individual and couple therapy, modelling of skills, and intensive intervention. Neither parent values the services offered by the Applicant. While other parenting services are available through programs such as The Cape Breton Family Place Resource Centre, it is unlikely that these services will benefit them sufficiently. M.S. has already completed nine such programs and her parenting is abysmal. [Emphasis added by Ms. MacLean.] [25]Ms. MacLean also refers to the Parental Capacity Assessment by Rule and Associates, dated May 26, 2004: Although it is evident ... that the S.’s have made some positive changes, it is not significant enough to make meaningful difference and result in improved parenting that would enhance the children’s lives. The prognosis may have been improved if the S.’s demonstrated any level of cooperation with the agency. However, there is great deal of evidence that suggests that this is impractical to expect. In response to the assessor’s query regarding what she felt need to change in order for things to be better for her family, M.S. reported, “I gotta get rid of CAS. We’re not violent with our kids and we’re not verbally abusive with our kids. mean, you seen it yourself. bathe my kids. am always looking out for their best interest. don’t care what the agency has to say, it’s not the agency I’m looking out for it’s my kids and besides that wouldn’t change nothing about them. She continued, don’t think E.S. needs to make any changes. With me just gotta be me. just gotta learn everything can and take it day by day and it not I’ll be jumping the gun and can’t afford to do that. Like at one point in time used to say this is going to happen tomorrow and that is going to happen tomorrow and I’m gonna make sure of it. Now don’t do that. Now just live day by day, minute by minute. These statements suggest that M.S. does not perceive that she or E.S. need to make any changes. If they don’t perceive that they play part in the difficulties, they will not be motivated to make any change. E.S. is not motivated in terms of working with the agency. He stated, “We made the deal with CAS on the twenty sixth of September that it was temporary care order the kids would be returned. They agreed to it. Maureen MacLean the supervisor and Carrie Evely agreed to it verbally, but when we walked into court five days later, they apprehended my children because didn’t demand Carrie Evely bring me in that little piece of paper to sign my John Henry for temporary care. “He reported that, “Now when we put in our lawsuit, they have sent back their defence plan and it is our strict responsibility to prove beyond shadow of doubt that they did what they did. They have supplied every piece of it themselves. They have dug their own grave. They have piled the dirt up and pulled it on themselves. Honestly and truthfully have told every one of them; family court is one thing, you might be able to pull it off. The whole system could be one big corrupt thing on this island. ain’t gonna say it is and ain’t gonna say it isn’t, but in my opinion, one hand is washing the others back.” His discussion regarding the lawsuit against the agency suggests that it is impractical to expect that he and M.S. can work in cooperative manner with the agency. It appears that their preoccupation regarding their perception of the agency’s treatment of them supercedes their ability to recognize the cost of the ongoing conflict to the children. They do not appear to have the insight or ability to place the children’s needs before their own. [26]Ms. MacLean says the applicants have not “presented any evidence ... that any efforts, successful or otherwise, have been made in the areas of mental health, anger management and impulse control.” [27]Ms. MacLean states that the Agency has attempted to place all of the children in one home for adoption. This appears to be impossible and as result, they have placed each child to be adopted by different adoptive parents, “with ongoing, informal contact between the children.” She states that arrangements for the placement of E.C.S. and S.B.C.H., including contact with the prospective adoptive homes and the preparation of the necessary paperwork, continued during the month of December 2004, and that notices of proposed adoption were signed and filed prior to January 31, 2005. EVIDENCE OF DR. SCOTT MILLIGAN [28]Dr. Scott Milligan is clinical psychiatrist at the Cape Breton Regional Hospital. He was qualified to give expert opinion evidence in the field of General Psychiatry. He testified that he started seeing M.S. in 2004 and continues to do so. He sees her approximately every four weeks for half-hour meetings, primarily for medication management. [29]Dr. Milligan said M.S. suffers from bipolar disorder. He described this disorder by referring to the DSM 4. Basically, this is disorder of depression and mania. He agreed that there are different degrees of the disorder. Some cases are more extreme than others. He said M.S. reported decrease of sleep, increase in sex drive, racing thoughts and increased energy. While she was in his presence, she was upbeat and appropriate. He took her history, as well as collateral information from third parties, in forming the diagnosis. He testified as to the types of medication he had prescribed for her. Dr. Milligan stated that he spoke to M.S.’s husband, her mother-in-law, and her foster mother. They reported that she was calmer and not as loud, and less argumentative, than before she started on medication. [30]Dr. Milligan said M.S. also suffers from an obsessive compulsive disorder. He described this as form of anxiety disorder. It becomes worse under stress. He described this disorder as having strong biological basis, but also psychological component. He had not performed any objective “hard wire”-type testing on M.S.. [31]Dr. Milligan did not know how these conditions impact on M.S.’s ability to raise children, because he would have to see the interaction between parent and child. This is not his area of expertise and did not perform any parental assessment. He agreed that mental disorders can affect person’s ability to make decisions. However, his treatment of M.S., satisfied him that she presents in careful and thoughtful manner. He said her life history was his main concern, and that she appears to be improving. [32]On cross-examination, Dr. Milligan was provided with copies of the parenting assessment prepared by Dr. Landry and Dr. Bryson, dated April 25, 2005. [33]Dr. Milligan said he has been treating M.S. since June 2004. She has missed three out of 13 appointments. He is not providing her with psychotherapy, but said this would be available, in the public or private setting. [34]Dr. Milligan stated that M.S.’s symptoms are subject to self-report and objectively he does not see the symptoms. He agreed that these conditions can arise over time. For example, an obsessive-compulsive disorder can begin suddenly after an illness. In his initial assessment, he did not diagnose all the symptoms that she reported in October 2004. However, he said, it is sometimes the case that some report symptoms later than the first interview. [35]On one occasion Dr. Milligan noted that the medication was not noticeable in M.S.’s blood test. It is possible that she was not taking her medication. He brought it to her attention and the test was re-done. On the retest the medication was detectable. Cross examination of M.S. [36]On cross-examination M.S. stated that there was an error in her initial affidavit. She had not participated in the marriage counselling and parenting counselling as it suggested. However, she claimed, with her medication she is able to parent the children. She claimed she has certain skills, such as playing musical instruments. She is also nature lover and is involved in the program known as Day Camp Canada. She has other hobbies, such as knitting and crocheting, that she believes would be helpful in raising children. She has been involved in sports teams, as well as the Terry Fox run, the Salvation Army program at Christmas and other charity events, such as Red Cross and working with senior citizens. She has been member of the cheerleading squad at school and is involved in Karate. [37]M.S. stated that she is now calmer and can compromise with others. She is less adversarial. She believes she can cooperate with the Agency. Before going on medication, she was fighting an old war, blaming the Agency for her past. She said anger caused the difficulties she is now facing. She said she had taken nine parenting courses before this application was filed and was prepared to take more parenting courses. She said she is thinking more clearly, and has better understanding, because she is continuing to try to improve. She understands that the Agency has concerns because in the past she lashed out and was unwilling to cooperate. She is prepared to work to alleviate their concern and to become better parent. [38]M.S. said she wants to learn how to communicate better with children. Before, she was not listening to the children’s views at all. She has learned to make eye contact and to use such techniques as “time out” and “grounding”. She has learned about nutrition and how to differentiate between daytime and nighttime, and that bedtime is time for rest. [39]Initially, M.S. said, she sought the assistance of the Agency to come in and help. However, this turned to anger. The children at the time were doing things she was unable to control. She did not realize the severity of the difficulties she had. She realizes that hygiene was an important issue before Justice MacLellan. She said the house is now very clean. She is much more consistent in maintaining clean house, and her husband is helping. She said the photographs attached to her affidavit provide an accurate representation of the manner in which he is maintaining the home. [40]When she was having the difficulties in the past, she said, she wanted to end it all. She didn’t even feel as if she wanted to get out of bed. Now, she has the potential to get it right. This came together for her shortly after she lost visitation rights with the children. Although she prevented her children from having normal life, she said she has made significant changes. [41]M.S. claims that she can deal with the oldest child, who suffers from Attention Deficit Hyperactivity Disorder. If she could not, she said she would then resort to professional guidance and assistance. [42]She said April 29, 2004 was the last time she saw her children. She has seen them since, on the street or the mall, but has not want to contact them or talk to them because she is under an order that she does not have access. She said she does not expect the Agency to return the children immediately. However, she would like to have phone call. She is agreeable to having access on weekends only to start and to allow the children to be with the foster parents. She claims that she would like to speak to the children to see them or hold them. She said the children have been at multiple foster homes, except the daughter, who has been only in one. [43]M.S. said that before she began taking medication, she and E.S. had marital difficulties. However, the relationship is now stable. They have learned to communicate. They have common goals in dealing with the children. Her plans are to include the children in skating, and other family activity, including travelling. Her plans also include college education. [44]M.S. said she is seeing James Gouthro with Family Services of Eastern Nova Scotia to improve on the communication problems. She said her husband’s anger is under control. Although he may get upset at things, he has much more control than he did in the past. She said the marriage would be positively affected by the return of the children. [45]She claims she is physically healthy and is not as downcast and anxious as before. She is sleeping properly. In cross examination, she agreed that Dr. Milligan had not done any psychotherapy. She thought she was receiving such treatment. She said she is anxious to undertake such program. She claims that Dr. Milligan gives her advice without telling her. She agrees to continue with the medication, so long as these are prescribed by her doctor. She plans to continue her visits with Dr. Milligan because she believes the medications have had positive impact on her anger and mood. [46]While hearings were underway before Justice MacLellan, she was asked to attend for marriage counselling and she had stopped. Her husband’s counselling between 2002 in 2004 with Sr. O’Neil, but it is more likely it terminated in October 2003. [47]This application was filed in December 2004, and it was prepared by the layperson, Mr. O’Neil. She claims that paragraph of the original affidavit is wrong. The sessions of counselling occurred two years ago and she had taken parenting courses in 2005. As to paragraph 3, she admitted that she had not taken any courses between the date of the appeal and December 2004. She had taken marriage courses since 1999. She also agreed that some of the information contained in paragraph and of the first Affidavit was incorrect. M.S. agrees that she walked out of the courtroom and dismissed her lawyer during the earlier proceeding. She also agreed that he made an inappropriate allegation of improper touching. This required Agency involvement. Cross-examination of E.S. [48]E.S. stated that the statements contained in paragraphs three and five of the original Affidavit are incorrect. [49]He stated that the positions that they adopted during the hearings and appeal are serious mistakes and that they have learned from them. In not stepping in on time, he allowed matters to escalate with the Agency. In fact, he had supported her aggression against the Agency in order to avoid an outburst with her. [50]E.S. said he took 34 anger management courses. He said he was trying to control his wife, rather than discussing things with her and accepting that on occasion she was wrong without trying to convince her that she should change her mind. He is aware that certain events trigger his temper but has found means to control it. When they have serious disagreements he does not argue with her and they agree to disagree. He said his respect for his wife has gone up 90%. He said that as result of the diagnosis and treatment of M.S. by Dr. Milligan, their relationship has much improved. It is now joy to be with her. He is presently in marriage counselling and has found that to be very positive to improve their communication. To date, he has only had one counselling session. [51]E.S. said he is in good physical condition, and he is mentally stable. The marriage is very strong. Before he and M.S. were avoiding each other and did not appreciate the impact this was having on their children. He hopes to be family person and he claims his wife is different person. [52]E.S. referred to number of photographs of this residence and said it is much cleaner than before. M.S.’s energy has increased. It is now easy for him to assist her in keeping it clean. Previously, he complained because he was doing lot of the work on his own; now it is more 50/50. [53]He agreed that the children have problems. But with the assistance of the Agency he believes that they can meet these challenges. He admits they emotionally damaged the children and that he had struck one of them and was not allowed to live in the home. He acknowledges that this was serious mistake. He also agreed that they made false allegation against the foster parent for R. He claimed he was not out to hurt anyone, but only wanted to have his children back. [54]He feels that with parenting courses he can be good father. He said that in the past, he had no eye contact with the children. Now he is prepared to use adult communication techniques and skills and to employ lower tone of voice. He has seen the children on the street or on the mall, but has not spoken with them. He is concerned about the fact that they could be separated when they are adopted and the family unit will be destroyed. He is prepared to abide by the direction of the Agency or the Court. [55]He agreed that at the time they filed the application to leave, there had been no major changes except that M.S. was doing much better than prior to the hearing and during the hearing. He finished his anger management courses in October 2003 and this, combined with his wife’s treatment, has helped them greatly. He has switched over to Jim Gouthro and finished these courses in December 2004. He took parenting courses in 2002 and 2003, but none since. He claimed that there have been six or more sessions of marriage counselling. [56]E.S. said he and his wife are both knowledgeable of musical instruments and play several of them. He is involved in outdoor activities and he believes that this would benefit the children. He enjoys working in the woods. He also enjoys fishing, hunting, baseball and tennis. He would also enjoy family skating. Cross examination of Mairi MacLean [57]Ms. MacLean supervises this file because it was difficult one. In this case, there were threats made against worker. Ms. MacLean said E.C.S. and R. were in adoptive placements. The plan for D.-O.H. was on hold pending the outcome of this application. [58]Ms. MacLean agreed that there were some changes and that many are positive, according to the psychiatric report and testimony. She agreed in that in certain circumstances, the CFSA mandate is to reunite the family. However, the overall objective of the statute is to protect the children from harm. Ms. MacLean said the children were at risk when they were with their parents. In June 2004 there were not sufficient changes made. There were two parental assessments, both of which recommended permanent care. [59]After permanent care order is made, then the focus of the Agency shifts to advance the children’s interest. [60]As there is in no-access provision in the final order, she could not report on how the children are doing. However, she said there are no problems with any of the families. [61]She noted that there had been one session of marriage counselling. However, upon review of the report of Dr. Landry or Dr. Bryson, both claim that M.S. required intensive therapy by counsellor. She agreed that M.S. was on medication at the time these reports were prepared, but said it is possible that she was not getting the right medication. ISSUE [62]The issue is whether there is sufficient evidence to grant leave to the applicants to go to apply for termination of the Permanent Care Order. ANALYSIS Statutory provisions [63]This application is governed by section 48 of the Children and Family Services Act, particularly ss. (6). Termination of permanent care and custody order 48 (1) An order for permanent care and custody terminates when (a) the child reaches nineteen years of age, unless, because the child is pursuing an education program or because the child is under disability, the court orders that the agencies permanent care and custody be extended until the child reaches twenty-one years of age; (b) the child is adopted; (c) the child marries; or (d) the court terminates the order for permanent care and custody pursuant to this Section. Age of Majority Act (2) In subsection (1), ""twenty-one years of age"" means twenty-one years of age notwithstanding the Age of Majority Act. Application to vary or terminate order (3) party to proceeding may apply to terminate an order for permanent care and custody or to vary access under such an order, in accordance with this Section, including the child where the child is sixteen years of age or more at the time of application for termination or variation of access. Restriction on application for order (4) Where the child has been placed and is residing in the home of person who has given notice of proposed adoption by filing the notice with the Minister, no application to terminate an order for permanent care and custody may be made during the continuance of the adoption placement until (a) the application for adoption is made and the application is dismissed, discontinued or unduly delayed; or (b) there is an undue delay in the making of an application for adoption. Application by agency (5) Subject to subsection (4), the agency may apply at any time to terminate an order for permanent care and custody. Restriction on right to apply (6) Notwithstanding subsection (3), party, other than the agency, may not apply to terminate an order for permanent care and custody (a) within thirty days of the making of the order for permanent care and custody; (b) while the order for permanent care and custody is being appealed pursuant to Section 49; (c) except with leave of the court, within (i) five months after the expiry of the time referred to in clause (a), (ii) six months after the date of the dismissal or discontinuance of previous application by party, other than the agency, to terminate an order for permanent care and custody, or (iii) six months after the date of the final disposition or discontinuance of an appeal of an order for permanent care and custody or of dismissal of an application to terminate an order for permanent care and custody pursuant to subsection (8), whichever is the later; or (d) except with leave of the court, after two years from (i) the expiry of the time referred to in clause (a), or (ii) the date of the final disposition or discontinuance of an appeal of an order for permanent care and custody pursuant to Section 49, whichever is the later. Powers of court on application to vary access (7) On the hearing of an application to vary access under an order for permanent care and custody, the court may, in the child’s best interests, confirm, vary or terminate the access. On application to terminate care and custody (8) On the hearing of an application to terminate an order for permanent care and custody, the court may (a) dismiss the application; (b) adjourn the hearing of the application for period not to exceed ninety days and refer the child, parent or guardian or other person seeking care and custody of the child for psychiatric, medical or other examination or assessment; (c) adjourn the hearing of the application for period not to exceed six months and place the child in the care and custody of parent or guardian, subject to the supervision of the agency; (d) adjourn the hearing of the application for period not to exceed six months and place the child in the care and custody of person other than parent or guardian, with the consent of that other person, subject to the supervision of the agency; or (e) terminate the order for permanent care and custody and order the return of the child to the care and custody of parent or guardian or other person. Application of certain provisions (9) Where the court makes supervision order pursuant to clause ©) or (d) of subsection (8), subsections (1), (2) and (3) of Section 43 and subsection (1) of Section 46 apply. Matters to be considered (10) Before making an order pursuant to subsection (8), the court shall consider (a) whether the circumstances have changed since the making of the order for permanent care and custody; and (b) the child’s best interests. Report to Minister Where (a) child is and has been throughout the immediately preceding year in the permanent care and custody of an agency; (b) no application to terminate or to vary access to the child has been heard during that time; and (c) subsection (4) does not apply, the agency shall at least once during each calendar year thereafter submit written report to the Minister in the form prescribed by the regulations concerning the circumstances of the child and the agencies plan for the child’s care and placement and the Minister shall review the report and make such further inquiries as are considered necessary. 1990, c. 5, s. 48; 1996, c. 10, s. 7. Procedural issues [64]As am proceeding on the basis of the application for leave, am not considering the application to terminate. Therefore, believe have jurisdiction to entertain this application in respect of all three children, not only D.-O.H.. This is so despite the fact that notices of proposed adoption were filed in late January 2005 for the other two children, at least two months after the application for leave was filed. [65]The Agency properly points out that there are restrictions on the right to apply to terminate, and that in the case of an application for leave, it can only be done with leave if the application is filed within six months of the date of final disposition of an appeal of an order for permanent care and custody. The Agency states that an application for leave to terminate is neither conceptually nor legally equivalent to an application to terminate and does not have the effect of placing “termination” substantially in issue before the court. If this were otherwise, the Agency argues, the intention of s. 48(6) would be muted because “a parent could keep the agency and its plans on permanent hold simply by continuously applying for leave.” [66]I am of the view that once an application for leave is properly before the court, and steps are taken to place of the children in an adoptive home and to provide notice of adoption pursuant to the provisions of the statute, it is nevertheless appropriate to deal fully with the application for leave. This application cannot be arrested simply because in the meantime the Agency has taken steps to have the children adopted. Admittedly, there is restriction on making an application to terminate permanent care order once the notice of intended adoption has been served. This is provided in s. 48(4) of the Act. also do not agree with the submission of the Agency that the application for leave somehow lose its status simply because more than six months has elapsed. The intention of the Legislature was to allow restricted opportunity for parents or legal guardians to seek termination of permanent care order if this attempt was made within six months of the permanent care order. That is why the Legislature did not permit applications to terminate within the six-month period without leave of the court. However, once the application for leave is sought, am satisfied that there is corresponding duty on the part of the Agency to suspend the filing of the notice of proposed adoption and the adoption process. Professor Thompson states at page 254 of his Annotated Children and Family Services Act (1991): ... It can properly be argued that an adoption notice should not be filed until the disposition of the leave application ... but once leave has been denied, it is up to the applicant party to seek stay pursuant to Section 49 (2) or (3) pending any appeal of the denial, in order to forestall any continuation of the adoption process. By this means, it should be possible for the courts to address the merits and demands of individual cases, with the onus squarely placed upon the appropriate party in such situations. [67]The Agency acknowledges that in C.A.S. of Cape Breton-Victoria v. G.L. [2004], N.S.J. No 289 (S.C.) Wilson J. heard an application for leave despite the fact the Agency had given notice of proposed adoption. The Agency claims that s. 48(4) overrides any application for leave. Therefore, the Agency contends, an application for leave does not preclude the filing of valid notice of proposed adoption, because if it did it would have the effect of stalling permanent planning for the children. adopt the position of Justice Wilson in G.L. The application to leave can be heard despite the fact that the Agency has given notice of the proposed adoption of two of the children. [68]I must also decide whether should consider evidence which was not included in the original affidavit in support of the application for leave. This evidence was in the form of supplementary evidence and viva voce evidence. The applicants did not make any reference in the original documents supporting the application to the fact that M.S. had been diagnosed with bipolar disorder and an obsessive-compulsive disorder after the permanent care order was made (but before the application was filed). am aware that counsel for the applicants was only retained sometime after the initial application for leave was filed. Counsel for the applicants maintains that should exercise the Court’s inherent jurisdiction and include all of the evidence which is before the court. infer that the position of the Agency is that should refer to the affidavit of the applicants in support of the application for leave, but not to any subsequent affidavits or evidence which was not specifically identified or referred to in subsequent evidence or affidavits. [69]In C.A.S. of Cape Breton-Victoria v. G.L. [2004], N.S.J. No 289 (S.C.), Wilson J. did not determine, as threshold question, whether it would be appropriate to consider evidence that had become available only after the application for leave was filed. He denied the application because there was insufficient evidence to show material change in circumstance since the date of the permanent care order. [70]In view of the fact that the applicants only retained their counsel after the original application was filed, as well as the nature of the issue at stake, I am satisfied that the best interests of the children require that I consider all of the relevant evidence before me, not only the evidence that was provided with the original application. Arguments on the substantive issue [71] As preliminary, note that the best interests of the child are the ultimate consideration on an application such as this. In this respect, note s. 3(2) of the Children and Family Services Act: (2) Where person is directed pursuant to this Act, except in respect of proposed adoption, to make an order or determination in the best interests of child, the person shall consider those of the following circumstances that are relevant: (a) the importance for the child’s development of positive relationship with parent or guardian and secure place as member of family; (b) the child’s relationships with relatives; (c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity; (d) the bonding that exists between the child and the child’s parent or guardian; (e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (f) the child’s physical, mental and emotional level of development; (g) the child’s cultural, racial and linguistic heritage; (h) the religious faith, if any, in which the child is being raised; (I) the merits of plan for the child’s care proposed by an agency, including proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to parent or guardian; (j) the child’s views and wishes, if they can be reasonably ascertained; (k) the effect on the child of delay in the disposition of the case; (l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of parent or guardian; (m) the degree of risk, if any, that justified the finding that the child is in need of protective services; (n) any other relevant circumstances. [72]The test on leave application was set out in Children’s Aid Society of Cape Breton v. L.M. 1999 CanLII 18566 (NS CA), [1999] N.S.J. No. 236, where the Court of Appeal referred to the statement of Judge Levy in D.L.G. v. Family and Children’s Services of Kings County (1994), 136 N.S.R. (2d) 131 (F.C.): 71 As to the burden on the applicant, Judge Levy said at p. 134: ... the applicant for leave must, in my opinion, present ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that led to the care and custody order being granted have improved, or are being convincingly and meaningfully addressed with realistic expectation of success in the reasonably foreseeable future. 72 And further: The applicant for leave does not have to prove that the children should be returned forthwith. What must be established however, is that there is sufficient evidence to warrant holding hearing and of having any agency plans, put on hold; some reasonable prospect of success. The parent's rights and her evidence are to be weighed against whatever negative consequences there might be from holding hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children. [73]Ms. MacDonald refers to the scheme of the Children and Family Services Act, which is to support the integrity of the family and maintain family relationships unless it is not in the best interests of the child. She cites Children’s Aid Society of Halifax v. L.P. (1994), 139 N.S.R. (2d) 241, where Daly J. stated: The scheme of the CFSA is to support family relationships but when those relationships are not in the best interests of the child, it is to provide permanent alternate relationships. The scheme also provides for the family relationships to be maintained even under permanent alternate relationships, if it is best for the child. In fact, termination of permanent care and custody order is permitted. Clearly, permanent does not mean that there should be no further parent-child contact. The scheme is thwarted if the parent is able to obtain access only at the time the permanent care and custody order is made. How is parent to successfully recover custody of the child, if there are no opportunities for continuing relationship. Surely, the legislators could not have shut this door and hence subverted the scheme of the CFSA. Section 47(2) provides conditions when the permanent order may provide for an ongoing parent-child relationship, policy that did not exist in the repealed Children's Services Act. Access is permitted if permanent family placement is no planned or is not possible and access would not impair future opportunities for permanent placement s. 47(2)(a). Or, the child has been or will be placed with person who does not wish to adopt the child s. 47(2)©). Or, if the child is 12 years or older and wishes to maintain contact with person eligible to have access s. 47(2)(b). Or, for some other special circumstance that justify access s. 47(2)(d). There may be circumstances unknown at the time of, but that arise after, permanent care and custody order is made, that shows access would be in the best interests of the child. The legislators could not have intended to deny child that opportunity. 10 Finally, the term permanent is misleading in this context. The CFSA permits an agency to have guardianship responsibility for the child. permanent order does not mean final. It is subject to variation by termination and like its counterpart, permanent custody order under custody law, the issue of custody remains an open issue when the best interests of the child are the issue. permanent care and custody order only places an obligation on an agency to provide for the care, in its broadest sense, of child including long term care through an adoption by an adoptive family. [74]Ms. MacDonald, on behalf of the applicants, argues that, although this case dealt with an application for access, the same approach should be followed in the case of an application for leave or an application to terminate. [75]Ms. MacDonald claims that as result of the diagnosis by Dr. Milligan, and the medication he prescribed, M.S. is different person. This is borne out by the evidence of E.S.. She is now capable of dealing with unpleasant issues from her childhood and controlling her emotions, and is working diligently to become responsible, proactive adult. Considerable progress has been made to having clean home and both she and her husband had been working on their marriage with great success. Rather than blame others for the loss of their children, they take full responsibility for their role in the loss. [76]The applicant notes that Justice MacLellan found that M.S. had so much anger towards the Agency that she could not focus on the changes necessary to improve her domestic and parenting skills. With the benefit of medication, counselling and parenting courses, she says that she is now capable of being much better parent. Because of her undiagnosed medical condition, she claims that she felt inadequate. She felt betrayed by the assessment of Michael Bryson. She felt betrayed or persecuted when the children were apprehended by the Agency. As to the anger management courses, E.S. stated that he did not benefit from them at the time because he was deferring to his wife’s wishes. Although there may be need for the Agency to supervise the children’s return to the applicants, they argue that this is preferable to foster or adoptive home, particularly where the children will be separated despite the best intentions of Justice MacLellan to see them adopted as one unit. The applicants also maintain that there should be pause because the children are being adopted by individuals who are not scrutinized by the court. [77]Admittedly, E.S. did strike one child on one occasion and was barred from the family home; however, the applicants say, this was not repeated, and he took full responsibility. While Mr. Bryson noted that M.S. had difficulty with D.-O.H. and that she was rough with him during the interview, Mr. Landry said neither of the applicants were likely to abuse the children intentionally or physically. [78]The parties agree on the test to be applied on leave application. The evidence must give credible reason to believe that the parents are in better position to deal reasonably with their children or have realistic chance of doing so in the reasonably foreseeable future. The Agency contends the parents were dysfunctional as family unit with devastating consequences to the children, particularly the two older children. The assessors who gave evidence, Bryson and Rule, concluded that the children were so severely compromised that it would take better than average parents to parent them effectively. The Agency points out that the Permanent Care Order was made because of poor hygiene, poor nutrition, lack of supervision, domestic disputes, the exposure of the children to the parents’ behaviour, overall poor parenting, physical risk to the children because of inappropriate discipline, M.S.’s explosive temperament and emotional health, E.S.’s anger, lack of insight, desire or inability to improve by the parents, undermining by the parents of the foster care arrangement of R., inability to control themselves during access or exercise access meaningfully, and an all-consuming anger and preoccupation with the Agency. [79]As to the evidence, the Agency claims that even if the applicants have experienced an “Epiphany” and have stopped blaming the Agency, they not yet made any changes in order to understand their parenting roles. [80]The Agency argues that the applicant’s evidence is not credible because they continue to blame someone else for their conduct, such as the lay person who gave them advice. Furthermore, although Dr. Milligan has diagnosed M.S. with bipolar disorder and obsessive compulsive disorder, he is unable to offer any opinion whether or not she is fit to raise children. He has not witnessed M.S. attempt to parent children because it is outside his field of expertise. Furthermore, they only undertook parenting and marriage counselling in February and March 2005, not earlier, as claimed in their original affidavit of December 2004. The Agency claims that there is nothing in the affidavits filed to date, or any other evidence, that demonstrates any real appreciation by either parent of the severity of the problems of their children manifested as result of poor parenting and the domestic chaos to which they were exposed, nor do they speak of how they intend to cope with very challenging children. They point to the fact that M.S. had taken nine parenting courses during the protection proceedings, with no improvement. The agency also takes issue with M.S.’s statement that they are “not bad people we did not abuse our children. We were victims of stress overload and in my case it had medical component and obviously detrimental effect on the children.” The agency maintains that this hardly represents insight into the nature and source of their prior conduct and the need for protection of the children, and says this is simply minimizing behaviour and an attempt to evade responsibility. [81]In L.M. the Court of Appeal applied the reasoning of Judge Levy in D.L.G. to the effect that the applicant must present “ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that led to the care and custody order being granted have improved, or are being convincingly and meaningfully addressed with realistic expectation of success in reasonably foreseeable future.” It was not necessary to prove that the children should be returned forthwith, but there should be sufficient evidence to justify holding hearing and placing any agency plans on hold. There must be “some reasonable prospect of success. The parent’s rights and her evidence are to be weighed against whatever negative consequences there might be from holding hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children.” It is clear that any decision to grant leave must only be made in the context of what is in the best interests of the children. [82]In her oral decision on the application for permanent care and custody, Justice MacLellan stated: [30] The presenting problems ... were the lack of hygiene, lack of structure, inappropriate discipline, domestic disputes, inability to provide proper nutrition, parental difficulties in managing anger, lack of supervision. It is noteworthy that during the short time that the children were returned to the S.s for the unsupervised visits that did take place in December, 2002, that the children’s aggressive behaviours were reactivated and that they once again began hoarding food in their rooms. [31] The presenting problem, in my view, is anger and poor parenting in practically every aspect. At the conclusion of the evidence, it would appear that the presenting problems were altered very little by interventions. E.S. has shown that he can improve his parenting practices at times but he can’t sustain to the change. M.S. made virtually no progress. [32] The assessors indicate that the prognosis for both parties is guarded. The energies the S.s may have used to effect change was directed instead at the Applicant. The S.s are unable to: (1) acknowledge problem areas; and (2) to appreciate that these problem areas affect their children. Their ability to acknowledge these two problems is non existent. M.S.’s anger is so apparent on video #6 and in Mr. Bryson’s viva voce evidence where rough handling of one child happened in his presence. M.S.’s anger has been well chronicled as she has left the Court room here in an angry manner and it has been chronicled by both Mairi MacLean and Brenda MacInnis who cite numerous examples of extreme anger by both parents in front of the children. Also the request last year for an early return of the children back to foster care is clear example of absence of commitment. The accusation against the foster family in relation to R. shows wish to upset the placement in order to further their case against Children’s Aid as opposed to the welfare of an already compromised child. [34] note the Bryson report was available in the summer of 2003 had number of recommendations for them, number at which were not acted upon. So self-direction or self-help, even with the support of the Agency, was not something that the S.s could see as assisting them. The S.s couldn’t see these services assisting them because fundamentally they don’t see that there is problem. When asked by one of the assessors what M.S. had to work on, she said getting rid of Children’s Aid. E.S. made some concessions to anger but basically felt that he could get the job done without further interventions. note that they took number of courses. think M.S. may have taken up to nine parenting courses but it seems that they took very little from the courses. At the end of the day and have had this file from inception, could not understand if they were unwilling or unable to change, but they simply didn’t change in very chronic areas. It appears that their energy used to get rid of the Children’s Aid Society has consumed any ability to effect the necessary parenting changes and correct chronic problems. Now the result of the S.’s care, their resistance to change is that the children have been in different homes, not their own home, for one year and nine months. E.C.S. is three years and three months old and has been in foster care for one year and nine months. These children, especially the two older, are seriously compromised as pointed out by the assessments. One of the foster placements where the two oldest children were placed they had to be separated because two of them were so challenged that the foster parents, although they tried, they couldn’t deal with R. and D.-O.H. at the same time. [35] had an opportunity to review exhibit 6, the video, to view the effect of the mother’s anger on the children. As have indicated already, they went from rambunctious play, and they certainly are rambunctious, to destructive play within less than moment. The children have been exposed to physical risk as chronicled, that is, R. burning herself in the presence of her parents; D.-O.H. dangerously climbing high chair, wandering without supervision across the road and up the street; corporal correction by both parents; numerous disputes and domestic upsets between both parents in front of the children; and the removal of R. from the foster home where she was content; having her examined by doctors and social workers for no valid reason whatsoever. The children have been put at risk by their parents and if returned would remain at rest with the harmful effects intensified by the passage of time. [36] As stated, the evidence in my view is clear and overwhelming that the S.s have not been able to parent and are unlikely to change in the foreseeable future. As have indicated, whether they are unwilling or unable to change. E.S. is articulate. His cross examination of Mr. Bryson was able, but the all consuming direction is to continue the poor relationship with the Agency. The S.’s aim is to continue the conflict as opposed to working on meaningful efforts to secure the return of their three children [37] find that all less than intrusive steps have been taken and were not accepted or were not successful. Right up to March, 2004 when another avenue under Section 21 was tried, it was rejected days after the Plan was put into place. Representation was eliminated and the Respondents sought help from an untrained third party and so the Plan put under s. 21 was not able to develop. The S.s have refused to accept reasonable access requests by the Applicant and will be unlikely to continue to work with the applicant in the future. [39] believe the children are attached to their parents, from the evidence and the video, however cannot conclude that the S.s will allow the children to stabilize in foster care. We already have very apparent example of how they would not let R. thrive in foster care. So for all the reasons that have given, and it is with regret, adopt the Plan of the Agency in its entirety. find it is in the best interests of the children to have them placed in permanent care for adoption. Given the history of the parents, cannot see how access can take place. It’s really sad situation where you have three little people who are compromised in their development, have bond with their parents, but the parents have made it such that they can’t continue to see the children so the children are being hurt again.... will order permanent care without access as it is not in the children’s best interests for them to continue with access. It is in their best interests that they be adopted. find all the formalities both directive and mandatory under the Act have been met, under the Agency’s obligation, for service, the least intrusive avenues, the foreseeable future test, the best interest test have all been satisfied. [83]In G.L. Justice Wilson determined that there was insufficient evidence offered by the applicant to support reasonable prospect of success in hearing. Similarly, in D. L.G., Judge Levy noted that an application to terminate causes delay and uncertainty in the agency’s plan for children, and such uncertainty and delay might compromise the best interests of the children. However, the CFSA has established mechanism whereby, during the six-month period after an order is made, an application to terminate can only go ahead provided the court grants leave. Judge Levy based his decision on the evidence of the mother and the position taken by the father: 13 What was missing from the mother's application for leave in this case was any evidence to which one could point and get any real sense that things were different even if her evidence was unchallenged by the Agency. 14 The applicant for leave does not have to prove that the children should be returned forthwith. What must be established however, is that there is sufficient evidence to warrant holding hearing and of having any agency plans, put on hold; some reasonable prospect of success. The parent's rights and her evidence are to be weighed against whatever negative consequences there might be from holding hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children. 15 For reasons elaborated more specifically in the oral decision, did not get the impression that the shortcomings of the mother identified by Judge Legere were resolved, or that resolution is in sight. had exhaustively reviewed Judge Legere's decision and the evidence before her before this hearing. At its highest the evidence before me gave me no particular sense that there was any basis to be optimistic about any meaningful changes being under way. In essence her position, and evidence before me, was not materially different than that which was known by Judge Legere. must say also, that was discomforted that her evidence in her affidavit about her turbulent relationship with the children's father turned out, once again, to have been less than frank. Judge Legere had cause to question her credibility. So did I. [84]It is apparent that the judge could not find any evidence to which one could point to get real sense that things were different, even if the mother’s evidence was unchallenged. He did not get the impression that the shortcomings identified by the Judge were resolved or that resolution was in sight. He had no sense, he said, of optimism about any meaningful changes. She still had relationship with the children’s father and she had been less than forthright. The trial judge had cause to question her credibility, and so did he. There are no further details of the nature of the evidence which was brought forward. [85]In G.L., Justice Wilson found that although the applicant claimed that she could show substantial change in her circumstances, and that she had made many changes in her life, she had not satisfied the burden for the court to grant leave. After reviewing the evidence before him on the application, including the applicant’s own evidence and psychiatric evidence, he stated, in conclusion: 20 Since the Permanent Care and Custody Order was issued, G.L. has managed to function well and is progressing in therapy very well. In the opinion of Dr. Mian she currently is not suffering from any mental infirmity that would negatively impact upon her ability to provide appropriate care for her daughter. 21 G.L. has spent the time since the Permanent Care Order was issued volunteering with Loaves and Fishes, attending an adult learning center, completing Christopher Leadership course, applying and being accepted into program at the community college. She continues to take her prescription medication on regular basis. 22 G.L. is to be commended for the progress and gain she has made in her personal functioning. 23 The findings of the court at the permanent care hearing indicated extensive personality and psychological deficiencies which negatively impacted on G.L.'s ability to care for her child. Dr. Landry recommended psychotherapy to deal not only with mental health issues but G.L.'s maladaptive interpersonal relationships including anger and hostility and consultations with psychologist regarding the psychological aspects of chronic pain. Dr. Mian agreed with Dr. Landry's recommendations. Dr.Mian also noted at that hearing that G.L. suffered from psychological difficulties including borderline personality disorder and post traumatic stress disorders which could not be cured but managed. Dr. Mian did not give an opinion on G.L.'s capacity or her ability to parent, only that currently she did not suffer from any mental infirmity (such as depression or anxiety) which would negatively impact on her ability to care for her child. 24 G.L. did not adduce any evidence regarding treatment for the psychological difficulties reported by Dr. Landry. G.L. indicated she was seeing Dr. Mian every two or three months regarding her prescription needs and Ms. MacIsaac regarding supportive counselling throughout the court process which will end in August. 25 find that G.L. has not presented sufficient evidence to indicate that the deficiencies in her circumstances and her parenting abilities that lead to the care and custody order being granted have improved or are being convincingly and meaningfully address with realistic expectation of success in the reasonably foreseeable future. 26 have considered the best interest of the child as required by the statute. The child has been in the care of the agency for almost three years. She will soon be five years of age. It is important that there be permanent plan put in place for her well being and development. At the same time the negative consequences that might flow from holding hearing are to be weighed against G.L.'s evidence if there is some reasonable prospect of success. find that the applicant, G.L. has not brought forward sufficient evidence which would indicate some reasonable prospect of success if hearing was held. [86]Consequently, Justice Wilson found that there was insufficient evidence to indicate that the deficiencies in her circumstances and parenting abilities that led to the care and custody order be granted had improved or were being convincingly and meaningfully addressed with realistic expectation of success in the reasonably foreseeable future. [87]In the present case, I find that some of the factors relied upon by Justice MacLellan when she made the order for permanent care and custody are being addressed by the applicants, although they have not been fully dealt with. The essential question is whether this limited progress gives hope that the parents can achieve an acceptable standard of parenting by the date of future hearing to terminate, such that it would then be in the best interests of the children to terminate the order. [88]The main achievements of the applicants so far appear to be the apparent improvement in the parents’ relationship; the courses of counselling and parenting instruction they have embarked upon, as well as M.S. expressed willingness to undertake psychotherapy; M.S.’s diagnoses and medication. am not convinced that there must be major progress in each discreet area of deficiency identified by Justice MacLellan in order to find that reasonable efforts are under way. [89]Justice MacLellan’s decision indicates that good deal of the difficulty caused by the parents related to their hostility towards the Agency, leading to bitter accusations and feelings of victimization. The applicants now express their willingness to co-operate with the Agency in any way in order to facilitate the return of, or access to, the children. They also claim they have scrupulously abided by the terms of the permanent care order. [90]It is also clear that M.S., at the time of the permanent care hearing, showed no interest in improving her own, or the children’s, circumstances. The apparent changes in M.S.’s outlook since the permanent care order was made are described above. [91]The Agency claims that the applicants have not taken responsibility for their conduct and have blamed the lay person who assisted them during the proceeding. While agree that they believe they were misled by this third party, am satisfied that they have taken responsibility upon themselves for following his advice, and that they regret doing so. [92]There must, of course, be cogent reasons to underly granting of leave, given the interests at stake. Overshadowing all other considerations under the CFSA, of course, is the best interests of the children. Certainly it can be argued that the best interests of the children are best served, in these circumstances, by expediting their adoptions. also note that it appears that the children will be placed separately for adoption. [93]The principal changes revealed by the evidence are the diagnosis and medication of M.S., and her willingness to move on to psychotherapy; the marriage and parental counselling the parties have undertaken; the parties changed attitude regarding co-operation with the agency, their observance of the terms of the permanent care order, and their acceptance of responsibility for the course of conduct suggested by their third-party advisor; the parties’ efforts to address their marital difficulties; and the improvements in housekeeping in the parties’ home. [94]While these signs of improvement do not necessarily all bear on the applicants’ ability to parent, they do signify degree of progress. Are these all signs of immediate success? The short answer is no. However, I consider these to be significant building blocks on which to anchor intense parental counselling and, if necessary, extensive marriage counselling. am mindful that am dealing with threshold issue: should the applicants be permitted to apply to terminate the permanent care order. My findings relate only to the leave application, not to the result of any eventual termination application. Whether the parents will indeed succeed in establishing that the order should actually be terminated is not for me to decide at this stage. [95]On the threshold issue of whether the parents should be granted leave to apply to terminate the permanent care and custody order, I am satisfied that the best interests of the children will be best served by allowing the parents’ application. [96]I have not addressed the issue of access in this decision. I am not willing to order access at this time, on the evidence before me. To establish whether access with the parents would be in the children’s best interests requires further evidence. [97]The applicants’ counsel shall prepare the Order accordingly. refer counsel to Civil Procedure Rule 69. In view of the nature of the issues and the best interests of the children, urge counsel to see that this matter proceeds as quickly as possible.","The parents applied for leave to apply to terminate a permanent care and custody order respecting their three children. Proposed Notices of Adoption were filed for two of the children after the parents' application was filed but before it was heard. The order had been made due to, inter alia, issues of poor hygiene and nutrition; lack of supervision; domestic disputes; physical risk to the children due to inappropriate discipline; the mother's explosive temper and mental health; the father's anger; lack of insight, desire or inability to improve by the parents; inability to control themselves during access or exercise access meaningfully and an all-consuming anger and preoccupation with the Agency. Since the order was made, the mother was diagnosed with and now receiving medication for bipolar and obsessive compulsive disorders. Application for leave granted; access not ordered at the present time; supplemental affidavits and viva voce evidence were considered given that the parents had only obtained counsel after the application was filed and the nature of the issue at stake; the application could not be arrested simply because the Agency had taken steps to have the children adopted after the application was filed. Some of the factors leading to the permanent care order were being addressed by the parents, although they had not been fully dealt with; the main achievements so far appeared to be an improvement in the parents' relationship, the courses of counselling and parenting instruction they had embarked upon, an expressed willingness by the mother to undertake psychotherapy, the mother's diagnosis and medication and the parents' changed attitude towards cooperation with the Agency; these are significant building blocks on which to anchor intense parental counselling",5_2005nssc172.txt
254,"THE COURT OF APPEAL FOR SASKATCHEWAN [M.H.] and [A.H.] (Petitioners) RESPONDENTS [R.M.F.] (Respondent) APPELLANT CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Lane COUNSEL: Mr. John Benesh for the appellant Mr. R. Wiebe for the respondents DISPOSITION: Appeal Heard: 17 November 1994 Appeal Dismissed: 22 December 1994 On Appeal From: U.F.C. 578/92, J.C. of Saskatoon Appeal File: 1816 Reasons by: The Honourable Mr. Justice Lane In concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling LANE J.A. The appellant, who is mentally handicapped, appeals the entrusting of custody of her five year old son to the respondents. The child was born in July of 1989 and in May of 1990 the appellant and her child were placed in the home of the respondent [M.H.]. The child and his mother were placed with [M.H.] and [A.H.] pursuant to Family Support Services Contract whereby the Harrises were to ""spend individual time with [R.M.F.] in supervising and teaching her to properly care for [A.] and provide for his needs."" [M.H.] later married [A.H.] who is the other respondent. The child was in the care of the appellant and the respondents from May of 1990 to June 1992 and since that time solely in the care of the respondents. The relationship between the appellant and the respondents broke down and she left the care of the respondents on May 30, 1992. The facts are more completely set out in the judgment of Dickson J., which judgment is appealed from, in essence, on the following two grounds: 1. Did the trial judge err in ruling the respondents have sufficient interest, and as result, status, within the meaning of s. 6(1) of The Children's Law Act, S.S. 1990-91, c.C-8.1, to apply for custody? 2. Did the trial judge err in awarding custody of the child to the respondents and not to the child's natural mother? The respondent cross-appealed for costs here and below contending the appellant's position had no merit and her case was being pushed forward by others, including the Department of Social Services. APPELLANT'S POSITION The appellant contends the respondents failed in their contractual duty (which the appellant classifies as fiduciary duty) to teach the appellant both how to properly care for the child and how to properly provide for his needs, and having failed to meet their obligations the respondents do not have ""sufficient interest"" as required by s.6(1) of The Children's Law Act, S.S. 1990-91, c.C-8.1 and are therefore without status to make an application for custody. The appellant then argues the trial judge erred in deciding the issue was simply to determine the best interests of the child. The appellant contends the trial judge should have started with the premise the natural relationship between mother and child ought to be preserved unless protection for the child is needed or the child is abandoned. The appellant says there was no evidence protection was needed and no evidence the child was ever put in jeopardy and the child was not abandoned. As result the child's right to be secure in its relationship with its natural parent should not be disturbed. The appellant contends the contract should govern and if those who sign such contract to supply custodial and support services are able to obtain custody, their dominating position vis vis those with disability in their care would encourage predatory actions against the less powerful. The appellant further contends the trial judge misconstrued important evidence and misinterpreted important facts. The evidence misconstrued was the finding by the trial judge the appellant was classified by her doctor as person requiring level care when in fact the classification was for departmental funding. Finally, the appellant says the trial judge misinterpreted the appellant's expert psychologist, failed to consider the resource material supplied by the appellant's psychologist, and failed to consider the support the Department of Social Services was prepared to supply the appellant. LEGISLATION The applicable statute respecting the custody of children is The Children's Law Act and the relevant provisions are: 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; The relevant provisions of The Child and Family Services Act S.S. 1989-90 c.C-7.2 are: Subject to this Act and the regulations, the minister may: (a) establish, operate and maintain family services; (b) provide family services to or for the benefit of parent or child where the minister considers them essential to enable the parent to care for the child; (c) enter into agreements with any person providing family services by which the minister is obliged to make payments for the provision of family services pursuant to this section. DECISION OF THE TRIAL JUDGE The trial judge ruled the respondents had ""sufficient interest"" because on earlier applications their status was not challenged and although there had been no specific declaration of the respondents ""sufficient interest"" in these past applications it was obvious the presiding judge in chambers was satisfied the respondents had ""sufficient interest"". The trial judge then went on to find the respondents had, in fact, sufficient interest in the application to qualify as applicants for custody and we are in agreement with his finding. Relying on s.8 of The Children's Law Act the trial judge stated ""The court's role is not to determine broad social issues, but instead, to determine what custodial arrangement is in [A.]'s best interest"". And further, ""The court's task is, once again, not to decide whether mentally challenged parents can be taught to care for children, but instead, in who's care will [A.]'s best interests be advanced."" After reviewing the evidence, he stated ""the evidence clearly demonstrates that [A.]'s best interest will be served if he remains in the care of the petitioners"" (respondents). He then ordered reasonable access and if the parties could not agree on reasonable access they were granted leave to apply for further directions. ANALYSIS After deciding that the respondents had ""sufficient interest"" within the meaning of s.6 of The Children\'s Law Act and therefore status, a decision with which, as noted, we agree, the trial judge then had to decide the issue of custody. Simply put, the trial judge was correct in his statement of the law that his duty was to determine what custodial arrangement was in the child\'s best interest. The Children's Law Act makes it clear this is the only consideration. This rule prevails even in contests between a natural parent and a stranger. The parental tie between mother and child is, of course, not to be ignored in such contest. It is taken into account by the judge when considering the factors outlined in paragraph (i) of clause (a) of s.8. The trial judge's error as to the categorization of the appellant as needing level care when in fact the level is funding level and not ""care"" level is not material as there exists other strong evidence, including that of the court appointed psychologist, as to concerns about the mother's ability to care for the child, and the risk to the child if he is left unsupervised for extended periods of time in the mother's care. The trial judge considered the testimony of the appellant's expert psychologist, (who did not interview the parties) and the expert's written material and simply accepted the evidence of the other psychologists in making his determination as was the trial judge's prerogative. See Toneguzzo-Norvell v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] W.W.R. 609 wherein McLachlin J. states at p. 614 and p. 615: agree that the principle of non-intervention of Court of Appeal in trial judge's findings of facts does not apply with the same force to inferences drawn from conflicting testimony of expert witnesses where the credibility of these witnesses is not in issue. This does not however change the fact that the weight to be assigned to the various pieces of evidence is under our trial system essentially the province of the trier of fact, in this case the trial judge. It is trite law that the trier of fact may accept such evidence as he or she finds convincing, and that an appellate tribunal ought not to interfere unless it is persuaded that the result amounts to ""palpable or overriding error"". The findings of the trial judge were strongly supported by the evidence, the law was correctly applied, and therefore his decision ought not be overturned. There is, however, concern about appropriate access. The trial judge was prepared to order reasonable access but gave the parties chance to work out what that meant. The appellant must know and understand what the rules of access are and the respondents must recognize an appropriate relationship between mother and child must be encouraged. The matter is, therefore, remitted to the Family Court to determine reasonable access. COSTS The trial judge made no order as to costs and the respondents' cross-appeal for costs, here and below. They are not looking for the appellant to pay costs, but they believe the appellant was supported by third parties in case which had no merit. The respondents, however, were not prepared to name any of the third parties other than the Department of Social Services and none of these third parties are parties to the action. There is little doubt the respondents have incurred significant financial burden. Given the comment of counsel for the respondent, he was not looking to the appellant to pay costs but that an award of costs may assist him in alleviating some of the financial burden, it is fair to award the respondents' costs on the Queen's Bench tariff on the trial below and on double Column on appeal. The appeal is, therefore, dismissed with costs here and below and the matter returned to the Family Court for a determination of reasonable access to the child by the mother. DATED at the City of Regina, in the Province of Saskatchewan, this 22nd day of DECEMBER A.D. 1994. concur BAYDA C.J.S. concur WAKELING J.A.","The Respondents contracted with the Department to care for a child and his Mother who was mentally disabled. After two years, the relationship between the Respondents and the Mother broke down and she left their home. The Respondents sought and were granted custody of the child. The Mother appealed. HELD: Appeal dismissed. 1)The Respondents had sufficient interest under s.6 of The Children's Law Act to seek custody of the child. 2)The trial judge correctly determined that the only issue was the child's best interests, even in a contest between a parent and a stranger, although the parent/child relationship was one factor to be considered. 3)The findings of the trial judge were strongly supported by the evidence, the law was correctly applied, and therefore his decision ought not be overturned. 4)The matter was returned to the Family Court for a determination of reasonable access.",4_1994canlii3885.txt
255,"J. IN THE PROVINCIAL COURT vs. CRAIG NICKERSON (Cite as v. Craig Nickerson 2002 NSPC 004) DECISION The Honourable Judge C. H. F. Williams, JPC Delivered orally March 1st, 2002 v. Craig Nickerson Delivered orally March 1st, 2002 The Honourable C. H. F. Williams, JPC Counsel: Mr. R. Woodburn, Crown Attorney Mr. G. Allen, Defence Attorney Introduction Six persons including the accused, Craig Nickerson, shared an upstairs apartment at 6319 Pepperill Street in the Halifax Regional Municipality. The complainant, Brent Andrews, is the boyfriend of another tenant Marilyn Veinot. Occasionally, and usually when they had been drinking, the male tenants would get together in the basement to indulge in wrestling and horseplay. They called these occasions “the fight club.” The female tenants considered “the fight club” as strange bonding ritual something that the men did to rid themselves of their frustrations. Findings of Fact After hearing the evidence and on my assessment of the witnesses as they testified, find that on January 6, 2001, the tenants invited some guests, including the complainant, for sociable and convivial evening together. The complainant was regular visitor to the apartment and had heard about the fight club from Veinot. In any event, as the evening progressed and all present were in various stages of intoxication, the accused invited the complainant to go to the basement to participate in the fight club. The complainant willingly accepted the invitation. On arrival in the basement, the complainant took off his shirt and squared off with the accused as if to wrestle. However, instead of wrestling hold, he advanced and struck the accused in the face. Surprised and stunned, the accused put his arms around the complainant to prevent him from striking again, and, as result, they stumbled to the floor. In brief struggle that followed, the accused ended on top of the complainant and commanded the situation. However, after calming an agitated complainant and after receiving assurances of no further belligerency, he got up and allowed the complainant to stand. The complainant hurt his knee during this contact. Angrily, the complainant left the basement and went upstairs with Veinot into her bedroom from where he was shouting threats and swearing at the accused. Concomitantly, Veinot was persuading him to leave the apartment and he was arguing loudly with her. Nonetheless, the accused, ostensibly to protect Veinot, opened her closed bedroom door, entered and angrily confronted the complainant. Veinot, who had not requested assistance from anyone, stood between them and implored them not to fight. Some persons present also came to the bedroom. Nevertheless, in spite of her efforts, the complainant swung at the accused and struck him in the face. In the sudden commotion that followed, someone pushed Veinot aside. Again, the accused put his arms around the complainant and in the confined space of the bedroom their momentum caused them to crash into glass window that broke. They also stumbled into dresser and then ended on the floor with the accused on top of the complainant. While on the floor they struggled and exchanged blows. However, at some stage of their contact, the complainant sustained a nasal fracture for which he sought and received medical attention. The following day, after receiving an allegation of misconduct, the police arrested and charged the accused with assault causing bodily harm to the complainant. The accused does not deny that the complainant was hurt but argues self defence. Issue Is self defence applicable in the circumstances of this case? Applicable Legislation Here, the applicable sections of the Criminal Code, are: (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. 35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if (a) he uses the force (i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. (1) person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; Analysis The accused submitted that he is entitled to rely on Criminal Code sections 34 and 35. He submitted that the complainant did not know how or when during their contact, if at all, he sustained his injuries. Furthermore, the complainant was the aggressor. Essentially, the accused’s submission was that he was scared and only responded to blows delivered by the complainant without the intention to hurt the complainant. On the other hand, the Crown submitted that, from the beginning, the accused was the aggressor. From this perspective, there was no dispute that the complainant sustained his injury in the bedroom, where on the complainant’s testimony, the accused struck him in the face. However, it seems to me, on the evidence that accept, the evening’s confrontation between the accused and the complainant was one continuing episodic event. It started with the struggle in the basement and ended with the struggle in Veinot’s bedroom. In my view, initially, both parties voluntarily agreed to participate in physical contest. Therefore, both parties reasonably would have appreciated the risks involved while participating in the fight club antics. Further, it is reasonable to conclude that they also consented explicitly or by implication to some form of bodily contact and the risk of injury that would occur within any existing customary norms or rules of the fight club. In the basement, however, the complainant’s conduct took the accused by surprise but the event ended unsatisfactorily for the complainant. It was also unresolved from the accused’s point of view as the complainant apparently did not play by the assumed rules. Thus, in my view, on the evidence, it is reasonable to conclude that they both had bruised egos and were immaturely seeking an opportunity to resolve their differences through physical force. Because of my factual findings, the accused cannot rely on the Criminal Code s.35, for his defence. This section only affords self defence in cases of aggression. Firstly, for this section to apply, the accused would have had to commence the assault on the complainant without justification and without the intention to cause him grievous bodily harm. Secondly, the accused must have tried to stop the fight, if at all possible, by quitting or retreating before it became necessary for him to protect himself from serious injury. Thirdly, before the fight reached the stage where he felt threatened with serious bodily harm, he himself must not have tried to inflict serious bodily harm on the complainant. Here, the accused has not admitted nor did find that he was the aggressor. Although the accused might have invited the assault, he did not strike the initial blow with the intention of hurting the complainant and without any justification. In fact, he did not strike the initial blow. In addition, found that there was no evidence to support the proposition that without justification the accused provoked an attack upon himself by the complainant. Furthermore, in my view, the accused did not shy away from confronting the complainant nor did he take any reasonable steps to avoid such hostile contacts. However, by virtue of the Criminal Code s.34(1) person is justified in using force to repel an unprovoked unlawful assault. Thus, the initial question is: Was the application of force to the person of the accused by the complainant unprovoked and unlawful? Further, the accused must not have intended to cause grievous bodily harm to the complainant and he must have used no more force than, in the circumstances, was necessary to protect himself. Accordingly, to establish the factual underpinning of his defence under s.34(1), must also consider his conduct, as have found. Essentially, must ask myself whether the accused had an honest belief, in all the circumstances, that he was being unlawfully assaulted without having provoked the assault. The Criminal Code, s. 36 states that, “provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.” [Emphasis added.] “Bodily harm” in s.2 means any hurt or injury to person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” “Grievous bodily harm” is not defined. However, R.v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C.(2d) 211 (B.C.C.A), for the purposes of s.25(3), at p.217 defines the term “grievous bodily harm” as “causing hurt or pain.” Consequently, in assessing his conduct to determine the applicability of s.34 (1), considered, along with my other impressions of the witnesses as they testified, the following: (a) the accused invited the complainant into the basement to wrestle where they had an unsatisfactory and unresolved contact; (b) on his own testimony, the accused met the complainant in the hallway upstairs where the complainant, still upset, stuck him in the face despite Veinot’s efforts to prevent them from fighting; (c) the accused heard the complainant and Veinot arguing in Veinot’s room and the complainant angrily shouting threats at him from Veinot’s room but with the door closed; (d) without any invitation or reasonable justification, the accused entered Veinot’s room to confront the complainant; (e) the complainant suffered nasal fracture during the melee. On the evidence that accept, find, by reasonable inference, that the accused, by his considered conduct, intended to invite an assault upon himself by the complainant. find that given his observed emotional state of the complainant and the complainant’s hostile attitude toward him, the accused's persistence in accosting the complainant, in the circumstances, was provocative and intentional, or wilfully blind or foolhardy. He knew that the complainant was dissatisfied with the outcome of the physical contact in the basement. Further, he was aware that the complainant was making threats to even the score. Therefore, concluding that he was wilfully blind or foolhardy was difficult. Accordingly, on the evidence, do find, by reasonable inference, that the accused was still prepared to challenge the complainant. therefore conclude that reasonable person, in his position and in those circumstances, reasonably would have perceived that his overall conduct would be provocative to the complainant. Therefore, on balance, it is reasonable to conclude that the assault by the complainant was anticipated by the accused. In my view, he anticipated the complainant’s predictable reaction by indulging in strategic sporadic verbal confrontations. When the facts and the true situation are examined, it seems to me that this was his stratagem as part of the ongoing and unresolved squabble. Thus, his subjective belief that the action of the complainant presented to him an imminent danger of grievous bodily harm and that his counter action was necessary to protect himself, objectively, given his own conduct, in my view, was not reasonable. He was struck twice in the face by the complainant without the opportunity to really even the score. It is therefore reasonable to infer, from the evidence that accept, that the accused was probing for an opportunity to strike back. Consequently, in my opinion, the incidents of the assault, in these circumstances, would not have occurred without the accused “having provoked” them by his conduct. See, for example, R.v. Nelson, (1992) 1992 CanLII 2782 (ON CA), 71 C.C.C. (3d) 449 (Ont. C.A.). As result, it is my opinion, on the analysis that have made, the accused cannot avail himself to the protection of s.34(1). have found that the accused provoked the assault upon himself. Therefore, he may, at first blush, avail himself to the protection of s.34(2). However, as was put by Lamer C.J., in R. v. Petel 1994 CanLII 133 (SCC), [1994] S.C.R.3, [1994] S.C.J. No.1., at paras. 19 It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self‑defence, when as here the victim has died: (1) the existence of an unlawful assault; (2) reasonable apprehension of risk of death or grievous bodily harm; and (3) reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. 20 In all three cases the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable. Accordingly, this is an objective determination. With respect to the last two elements, this approach results from the language used in the Code and was confirmed by this Court in Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] S.C.R. 396, at p. 404: The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused’s appreciation of the situation and his belief as to the reaction it required, as long as there exists an objectively verifiable basis for his perception. Thus, the law requires me to ask myself not whether “the accused was unlawfully assaulted” but rather whether “the accused reasonably believed, in the circumstances, that he was being unlawfully assaulted.” It is his state of mind that is relevant. Therefore, here, did he have reasonable apprehension of any danger posed by the complainant? And, if so, did he have reasonable belief that he could not extricate himself otherwise than by injuring the complainant? On the evidence, however, find that there was no “objectively verifiable basis” for the accused's submission, in argument, that he had reasonable apprehension that the complainant would cause him “grievous bodily harm.” Nothing in his testimony, supported his submission, in argument, that he was afraid of the complainant because of some continuing violent act on the part of the complainant towards him. On the contrary, the evidence suggests and find that the accused took every available opportunity to be within the complainant’s space, so to speak, even though he knew that the complainant quite clearly had animosity toward him. In my view, he had the opportunity to leave the complainant alone in that it was not necessary for him to enter Veinot’s bedroom and there to approach the complainant and to become involved in heated argument. He was uninvited and unwelcomed. Therefore, his submission that he entered the room out of concerns for Veinot’s safety, on the evidence and in my view, lacked an air of reality and has no merit. When eventually they did embrace angrily and engaged in fighting, the accused's explanation, in the end and in hindsight, was that he did not intend to hurt the complainant. His explanation was not that he believed on reasonable grounds that he had to fight the complainant as it was not possible to preserve himself from harm otherwise and except by hurting the complainant. Generally, it is reasonable inference that man intends the natural consequences of his act. Here, the accused averred that he intended to fight but not to cause injury to his opponent. However, the natural risk involved in fighting is injury either to one's self or your opponent or both to self and opponent. On the evidence and on my impression of the accused as he testified, think that because he was also injured in the fracas he now baulks at the notion that he should be held criminally responsible for the complainant’s injuries in what started off as consensual physical contact. Consequently, he claims self defence. However, on the analysis that have made, in my opinion, he cannot avail himself to the protection of s.34(2). In short, the facts, as have found, do not support the defence of self defence and the evidence does not lend an air of reality to the submitted factual underpinnings for me to apply the provisions of the Criminal Code sections 34 and 35 for the benefit of the accused. There is no doubt, in my mind that the complainant suffered bodily harm. According to Dr. Thomas Currie, the attending emergency physician, the complainant’s history was injuries to the face that on examination and diagnosis revealed nasal fracture without any obvious evidence of bony deformity. There was significant swelling to the bridge of the nose that needed icing for several days to improve the swelling but would be painful for several months. The injury, however, needed no surgical intervention. The doctor opined that the probable cause of the injury was “blunt trauma.” Further, it would have required “a significant amount of force to break bone.” The critical questions however are: How did it happen? When did it occur? Here, because of the manner in which the parties conducted themselves causation has become the essential factor to establish culpability. Consequently, the questions that must answer are: Was the facial trauma the result of other probable causes? or, Was it the result of force applied intentionally and directly by the accused to the person of the complainant? Here, the injury complained of apparently occurred in the bedroom as the evidence points to the fact that apart from his leg, the complainant was free of any other injuries before the accused entered the bedroom. However, eyewitnesses’ accounts of what happened in the bedroom are conflicting. The complainant testified that the accused struck him first when he was standing and that he offered no response to the accused. He testified that, “nothing happened on the floor.” This version is supported by Veinot. However, another Crown witness, Terri Grant, testified that the complainant threw the initial punch striking the accused in the face. The accused did not hit the complainant when he was standing. They clinched and stumbled into the window and the wardrobe. At that point she and Veinot were pushed out of the bedroom but she could hear “crashing” noises through the open door. Chris Hache, another Crown witness, testified that the complainant threw the first punch and that “they grabbed each other” and with the momentum they fell into the window and then to the floor with the accused on top. While on the floor, they were both throwing blows at each other. the accused was throwing blows to the complainant’s body “from the stomach up.” The complainant’s blows were aimed at the accused’s face. The accused testified that the complainant struck the first blow. He grabbed the complainant and their momentum took them towards glass window breaking it, then into closet and then onto the floor with him on top. On the floor the complainant was punching up at him and he was punching back. He is not sure whether he struck the complainant in the nose. However, the complainant has asserted that he did not receive the injury to his nose when he was on the floor. Consequently, as assessed the witnesses as they testified and my impressions of their testimonies in light of the total evidence, have no doubt and find that the complainant threw the first blow that struck the accused in the face. do not find that the accused first threw punch that struck the complainant in the face while the complainant was standing. Receiving the blow to his face the accused advanced and they grabbed each other. In addition, find that their momentum caused them to stumble into glass window breaking it. Still holding each other they then stumbled into dresser and finally fell together to the floor with the accused on top. In Smithers v. The Queen (1977), 34 C.C.C.(2d)] 427 (S.C.C.) Affirming 1975 CanLII 1284 (ON CA), 24 C.C.C. (2d) 344, the Supreme Court of Canada affirmed that causation is question of fact to be decided by the jury beyond reasonable doubt. But, it is question of law as to whether there is any evidence to put the issue to the jury in the first place. Here, in my view, the Crown did not undertake to show any casual relationship between the blows of the accused, on my findings of fact, and the broken nose sustained by the complainant. There was no well grounded opinion as to the cause. The doctor’s opinion was that it was occasioned by blunt trauma. There was, however, no opinion as to what the blunt trauma would have been consistent with as causative factor. Here, in my opinion, there are too many variables and probabilities. There was the fall into the glass window; the fall into the dresser and the fall to the floor. Rather than speculate, think that the evidence was not only contradictory but also disturbing. Further, on the total evidence, think that the direct factual cause of the injury was also unclear. The Crown has the burden of showing factual causation beyond reasonable doubt. In short, it must prove beyond reasonable doubt, that the blows delivered by the accused to the complainant when they were on the floor were the actual cause or were contributing factors “outside the de minimis range.” Absent the bodily harm this, in my view, was consensual fight. Conclusion Consequently, on the analysis that have made, find that there is insufficient evidence for me to conclude, beyond reasonable doubt, that the accused caused bodily harm to the complainant. This does not mean that the complainant did not suffer bodily harm. It means, in my opinion, on the evidence before me and on the analysis that have made, that the Crown has not proved beyond reasonable doubt the elements of the offence as charged. I find the accused, Craig Nickerson, not guilty, as charged, and will enter an acquittal on the record.","The accused was charged with assault causing bodily harm. The complainant willingly took part in a fight club after which the accused followed him and engaged in a second physical altercation with him. During the fight, the parties fell into a dresser, onto the floor and out a window. At some stage of the fight, the complainant sustained a nasal fracture, which was the basis of the charge. Accused not guilty of assault causing bodily harm. The confrontation between the accused and the complainant was one continuing episodic event and the complainant's actions were provoked by the accused. However, no causal relationship was shown between the blows of the accused and the broken nose sustained by the complainant. There were too many variables and probabilities as to how the complainant's nose might have become broken.",9_2002nspc4.txt
256,"J. Q.B.M. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: JEAN ROSE ZACHARUK and RUSSELL Y. ZACHARUK RESPONDENT P.E. Pacholek for the applicant R.B. Hunter for the respondent JUDGMENT MacLEOD J. March 25, 1994 The parties married February 24, 1952, and were divorced in 1984. The matrimonial property was settled by the parties and consent order giving effect to that settlement was presented to and granted by the court on December 19, 1985. Clause 14 of that order is as follows: 14. The pension of the Respondent at the University of Regina, more particularly described by reference to the Social Insurance Number of the Respondent, 613-582-097, shall be divided as follows: (a) The Applicant shall receive vested interest in the pension to the extent described in this order and the University of Regina is hereby directed to give effect to this vesting order and to make all monthly pension payments for the Applicant directly from the pension plan to her; (b) If the Respondent retires at the normal retirement date of June 30, 1993, the share of the pension to be received by the Applicant shall be 40%; (c) If the Respondent retires at age 60, the share of the pension to be received by the Applicant shall be 44%; (d) If the Respondent retires between age 60 and age 65, the share of the pension to be received by the Applicant shall be calculated on pro rated basis between the percentages of 40% and 44% such that if he retires, for example, at age 62.5 years, the percentage to be received by the Applicant will be 42%; (e) If the Respondent retires voluntarily prior to age 60, the share of the pension to be received by the Applicant shall be 48% and the specific intent of this order is to encourage the Respondent to continue in his employment until at least age 60; (f) If the Respondent dies prior to his retirement, the Applicant shall receive the greater of $100,000.00 or pro rated share of the death benefit of the University of Regina pension plan on the same percentage as set out above with the remaining share of the Respondent to be paid to his estate; (g) In the event that either party requires further clarification of the intentions of the parties with respect to the division of the University of Regina pension plan, either party hereto hereby has leave to apply to this Honourable Court for further directions. Russell Zacharuk retired from the University ofRegina effective June 30, 1993. He elected to receive monthly payments for life with guaranteed period of 15 years. As result, Jean Zacharuk has been receiving monthly payments from July 1, 1993, of $1,543.13 which is 40% of the total pension. Russell Zacharuk receives $2,314.69, or 60% of the total pension payable. Jean Zacharuk would like to receive her vestedinterest as a lump sum benefit. Russell Zacharuk does not consent to this. He perceives the pension plan arrangement to be something of tontine. Russell Zacharuk is 65 years old now and Jean Zacharuk turns 65 this year. Based on a comparative historyof their two families, Russell Zacharuk expects to outlive hisformer wife and on her death he expects thereby to regain thethen remainder of the pension asset. The parties apply for ""a further clarification oftheir intentions"". The court prefers to treat the application as one for an order interpreting the previous order, and consequential declarations and directions. Paragraph 14(a) provides that Jean Zacharuk is to receive ""a vested interest in the pension to the extent described in this order"". The order provided for vesting to the applicable extent, depending on future event, namely, the date of his retirement or the date of his death if it occurred before his retirement. His retirement was merely the pivotal event which determined which paragraph was applicable. Thereafter, matters were and are beyond his control. The provision for the monthly payments in clause 14(a) is merely direction to the University of Regina, and was not and is not intended to define the form of payment or restrict or limit the vesting. The following orders, declarations and directions are granted: 1.Under clause is 14(a), the applicable clause, the applicant received vested interest. 2.By electing retirement at ""the normal retirement age of June 30, 1993"" the pension was vested in Jean Zacharuk to the extent of 40% under paragraph 14(b). 3.This interpretation of clause 14(a) is supported by clause 14(b) which refers to ""the share of the pension to be received by the applicant"". 4.The University of Regina is to make monthly payments to Jean Zacharuk of her vested share. Whether this is converted to lump sum payment or continues as monthly payments is exclusively the concern of the University of Regina and Jean Zacharuk. 5.For greater certainty, it is hereby declared that: (a)The share vested in Jean Zacharuk is not now in any way under the control of Russell Zacharuk. (b)The share vested in Russell Zacharuk is not now in any way under the control of Jean Zacharuk. (c)Russell Zacharuk is not beneficiary of her share in the plan to hold otherwise would be to deprive her of an important attribute of ownership of her vested share and her vested interest on her death would not become his property under the consent order. (d)Jean Zacharuk is not beneficiary of his share for the same reasons. (e)The order of December 19, 1985, does not contemplate joint ownership or any implied right of survivorship. Accordingly, the 40% share, having vested in JeanZacharuk, is a share she may deal with without reference to,or the consent of, Russell Zacharuk. This order shall not be acted on until the expiration of 15 days, and not then if there shall be an appeal. Because the parties contemplated the need to return to court for further directions, the successful party will have costs, but they are hereby fixed at $300.00.","The parties divided their matrimonial property in 1985 by agreement as confirmed in a consent order. The order provided that when the husband retired, the wife would receive, as her vested share of his pension, 40% of his benefit. The order also provided that the parties could apply for further directions as necessary. After the husband's retirement, the wife sought to receive her share of the pension from the employer as a lump sum. The husband objected, claiming that he was entitled to any remaining benefit from her share in the event she should predecease him. The wife applied for directions. HELD: The wife is entitled to her share of the pension in any form permitted by the terms of the pension plan. She is also entitled to leave her interest in the pension to a named beneficiary, without reference to or the consent of the husband.",4_1994canlii5226.txt
257,"IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY AND INSOLVENCY Citation: Field-Currie (Re), 2010 NSSC 41 Date: February 4, 2010 Docket: 32729 Registry: Halifax District of Nova Scotia Division No. 03 Sydney Court No. 32729 Estate No. 51-084705 In the Matter of the Consumer Proposal of Catherine Field-Currie LIBRARY HEADING Registrar: Richard W. Cregan, Q.C. Heard: January 14, 2010 Written Decision: February 4, 2010 Subject: The Bankrupt, who had outstanding student loans of about $39,000 applied for relief under Subsection 178(1.1) of the Bankruptcy and Insolvency Act. Summary: Her studies ended in 1997. She completed Consumer Proposal being advised that it would discharge these loans, only to find out that it did not. Although she has good income, it would still take several years to discharge the loans without prejudicing the reasonable frugal lifestyle she and her family enjoy. Held: To discharge the loans would require several years on top of the already 13 years she has been burdened with them. Relief was granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY AND INSOLVENCY Citation: Field-Currie (Re), 2010 NSSC 41 Date: February 4, 2010 Docket: 32729 Registry: Halifax District of Nova Scotia Division No. 03 Sydney Court No. 32729 Estate No. 51-084705 In the Matter of the Consumer Proposal of Catherine Field-Currie Registrar: Richard W. Cregan, Q.C. Heard: January 14, 2010 Counsel: Darren Morgan representing Catherine Field-Currie [1] This is an application by Catherine Field-Currie for an order under Subsection 178(1.1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (BIA) directing that Paragraph 178 (1)(g) does not apply to her outstanding student loans [2] On March 27, 2000 Ms. Field-Currie filed Consumer Proposal under the BIA. She successfully completed it on March 4, 2005 and received Certificate of Full Performance dated April 13, 2005. The proposal was administered by the Government of Nova Scotia through the Department of Service Nova Scotia and Municipal Relations Debtor Assistance. She made this proposal because she was advised by the debt counsellor that it would be an effective way of satisfying her outstanding student loans. After completing the proposal she learned that this advice was not correct. The balances owing on her student loans remain outstanding. [3] Ms. Field-Currie received her education at St. Francis Xavier University, the University of St. Anne and the University of Maine between the years 1988 and 1997. The loans, administered by Human Resources Development Canada and various banks originally totalled about $39,000. The present balance is approximately this amount. [4] After obtaining her degree in 1997 she was able to find some work as substitute teacher. This was followed by term appointments. She acquired permanent employment as teacher with the Cape Breton Victoria Regional School Board during the school year 2001 2002. She continues to be teacher with this board. She married Blair Currie in 2005. He has supervisory position with the Cape Breton Regional Municipality. They have two young children. They bought home in 2005 which is financed with mortgage, the balance of which is approximately $106,000. It has monthly payments of $850. [5] She and her husband have net monthly employment incomes of $4,265.33 and $3,300.45, respectively, for total of $7,565.78. Their total monthly nondiscretionary expenses are $1,097.50. This is mostly day care. Their available monthly income then is $6,468.28. Their discretionary expenses are $4,716.13. This leaves surplus of $1,752.15. [6] Their expenses are very modest. They could without justifying criticism be spending more. Considering that they have two children and considering the financial contingencies of family life, their surplus is really much less. As their children grow older their expenses will increase. They are presumably at or near the top of their earning capacity. [7] Subsection 178(1.1) requires that before can grant relief from student loan debts must be satisfied that: (a) the bankrupt has acted in good faith in connection with the bankrupt’s liabilities under the debt; and (b) the bankrupt has and will continue to experience financial difficulty to such an extent that the bankrupt will be unable to pay the debt. [8] It gives me two options, one to refuse relief, the other to discharge the indebtedness in its entirety. There is no middle ground. [9] I am satisfied that Ms. Field-Currie has acted with good faith. She had applied for interest relief. She had significant debt. It is understandable in the early years when she did not have permanent employment she was unable to service it. She sought the advice of debt counsellor provided by the provincial government, having had judgment entered against her. She followed this advice with proposal, thinking it would discharge this debt. This proposal was fully performed in 2005, but then she learned it was ineffective against the student loans. That year she married. Now she has two children. [10] More difficult for me is whether she would be able to pay the debt. She and her husband together have good income according to the standards of many people. They might well be able to set aside and pay each year to the credit of these loans significant sum of money say $3000 to $5000. This would encroach on their lifestyle, more particularly on what they can do for their children. But with interest continuing to accrue the discharge of the debt would take ten or more years. [11] These debts date back 13 years. She made her proposal in 2000, and completed it in 2005 and was no further ahead. Another five years have passed. There is principle underlying the BIA that except in special circumstances one should not be subject to the penalties of bankruptcy for long period of time. These debts are now 13 years old. Any reasonable repayment scheme that is not going to prejudice the reasonably frugal lifestyle they have could well take another 10 years. To expect them to pay in a shorter period say five years would be a continuation of financial difficulty which has prevented her from paying the loans. Any period longer would be too long. It would also protract the burden of these loans in manner inconsistent with the overall objectives of the BIA. [12] It is useful to analyze the situation by reference to the Superintendent’s Standards under Directive No. 11R2 Surplus Income. understand she has surplus income of about $800 per month. Before the amendments to the BIA were proclaimed, it would be normal for someone in Ms. Field-Currie’s circumstances to be required to pay surplus income for fifteen months. This would require total payments of about $12,000. This was an option open to her from 2007. Now with the amendments she would be required to pay surplus over 21 months. [13] If I could compromise the debt, I would have no difficulty in requiring her to pay a significant portion of the debt, say half of it. This, however, is not open to me. Also, note that none of the creditors appeared at the hearing to oppose this application. [14] Considering the factors mentioned above in their totality, am satisfied that Ms. Field-Currie also meets the second test. [15] She is entitled to an order that Paragraph 178 (1)(g) does not apply to her outstanding student loans. R. Halifax, Nova Scotia February 4, 2010","The bankrupt, who had outstanding student loans of approximately $39,000, applied for relief under s. 178(1.1) of the Bankruptcy and Insolvency Act. She had completed her studies to become a teacher 13 years ago and had erroneously been advised that a consumer proposal would discharge these loans. Although both she and her husband had good incomes, it would still take several more years to discharge the loans without prejudicing her family's reasonably frugal lifestyle. Relief granted; to require the bankrupt to discharge the loans in a reasonable manner would require an additional 10 or more years on top of the 13 years with which she had already been burdened, and to expect her to pay in a shorter period would cause her continuing financial difficulties. The bankrupt had acted in good faith and had been unable to service the loans in the early years when she did not have permanent employment. Compromising the debt and requiring her to only pay half of it was not an available option.",c_2010nssc41.txt
258,"J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Grady v. Grady, 2009 NSSC 364 Date: 20091210 Docket: 1201-060920 Registry: Halifax Between: Nicolas Grady and Daiga Grady Respondent Judge: Justice Lawrence I. O’Neil Heard: October 13 and November 2, 2009, in Halifax, Nova Scotia Counsel: Terrance Sheppard, for the Applicant Timothy Gabriel, for the Respondent By the Court: Introduction, para. Background to the Relationship, para. Issues, para. Evidence of Mr. Grady, para. Evidence of Ms. Grady, para 18 Registration of the Separation Agreement, para. 21 Clause 9(a) of the Separation Agreement, para. 27 The Interaction of the Separation Agreement and the Divorce Act, para. 30 Other Clauses of the Separation Agreement, para. 47 Conclusion, para. 48 Introduction [1] This is decision in the matter of Nicolas Grady and Gallegos Grady. divorce hearing was held on October 13, 2009 and November 2, 2009. Through the evidence of Mr. Grady, the parties marriage was established; the court’s jurisdiction to grant divorce was established, the grounds for the divorce were established and there being no bars to the divorce, the divorce was granted. The parties have effected division of their former matrimonial property. They concluded an agreement, described in its body as “separation agreement/minutes of settlement” on October 22, 2008. Herein, the document will be referred to as separation agreement. The agreement was registered with the Supreme Court of Nova Scotia on June 17, 2009. Background to the Relationship [2] The parties were married August 19, 1995 and separated May 15, 2006. They have four children born November 25, 1996; April 28, 1998; July 3, 2001 and February 4, 2003. [3] The parties entered parenting agreement, which is exhibit “B” to the affidavit of Ms. Grady, filed October 2, 2009, being exhibit in this proceeding. It provided for shared parenting arrangement. It is agreed, however, that since May of 2009, the children have been primarily resident with the Respondent mother. Issues [4] The main issues for the court’s consideration are the spousal and child support obligations of the Petitioner, Mr. Grady and whether they are to be incorporated into the corollary relief judgment. [5] Mr. Grady now seeks to have the spousal support obligation reflected in paragraph of the October 22, 2008 separation agreement changed in as much as he seeks corollary relief judgment that would not contain this obligation. The principal basis for the argument is (1) a significant reduction in his income, and (2) a loss of income tax deductibility for his payment under clause 9 of the separation agreement because he is no longer in a shared parenting arrangement . Ms. Grady argues that Mr. Grady has not met the obligation to pay spousal support of $2,000 per month as required by clause of the separation agreement and he must continue to pay this amount as combined child and spousal support. [6] Ms. Grady filed an Answer to the Petition for Divorce on September 15, 2009. At paragraph it states: 1. admit the facts and allegations in paragraphs to 10 of the Petition for Divorce with the exception of: Paragraph state that the parties entered into comprehensive settlement of all corollary relief issues in this proceeding, which agreement has been registered with this Honorable Court. Evidence of Mr. Grady [7] Mr. Grady’s direct evidence is contained in Exhibit 3, his affidavit dated September 21, 2009. He also gave oral evidence. [8] Mr. Grady has worked as financial advisor, under the supervision of his father. They both represent Assante Capital Management Ltd., an investment firm. He describes his work as creating retirement plans and managing investment portfolios with clients through to their retirement. The office has consisted of the Petitioner and his father as financial advisors and several support staff. Mr. Grady, Sr. took his son, the Petitioner, into the business and they have worked together for seventeen years. [9] Mr. Grady states his maximum earnings in 2009 will not exceed $40,000, and more realistically, will be $30,000. (see para 15 of his affidavit, being exhibit 3). He explains the decline in his earnings as follows (para 8, and 11 of exhibit 3): 8. During 2007, the Fall of 2008 and the Winter of 2009, global capital markets fell as result of among other things, the financial crisis in the United States. Along with the markets, the value of my assets under administration fell, dragging with it the service fees that earn. Further exacerbating the drop in income was the reluctance of retail clients to invest new money. Revenue dropped dramatically while expenses stayed the same causing my net income to fall. 9. Below is list of my earnings and expenses from January 1, 2009 to September 15, 2009. So far my net income for the last nine months is just little over $8,000.00 dollars. have fixed expenses such as wages for staff, rent, telephones, postage and other overhead expenses, which need to be paid to keep the business running. am paid last. Accrual Basis January 1, 2009 to September 15, 2009 Year to date commission income $188,407.08 Interest Income RBC Daily Banking 0.07 Total Income $188,407.15 Expenses: Advertising Co-Op ($450.00) Charitable Expense ($25.00) Commission Charge Backs ($22,876.20) IT-Advertising/Promotion ($7,742.70) IT-Bus, Tax, fees, lic., dues ($3,133.86) IT-Insurance ($590.00) IT-Interest Bank Ser. Chg. ($2,627.12) IT-Legal, account. Prof Fees ($429.40) IT-Meals Entertainment ($1,649.06) IT-Office Expenses ($8,374.91) IT-Property Taxes ($822.10) IT-Rent Expenses ($33,575.59) IT-Salaries, Wages, Expenses ($88,307.86) IT-Supplies ($3,404.23) IT-Telephone/Internet ($3,071.88) IT-Travel ($27.12) IT-Vehicle Expense ($3,272.21) Total Expense ($180,379.24) Total net Ordinary Income from $8,027.91 11. Then the finance world plummeted. did not anticipate stock market downturn of this magnitude or duration. have had to withdraw most of my RRSP’s, over $23,000.00, in order to meet expenses. [10] In addition, he has filed financial statements identified as Exhibit 7, and being his income tax returns for 2006; 2007 and 2008 respectively. He has also filed Exhibit 10 and Exhibit 11, being his notices of reassessment for 2006 and 2007. On the subject of the Petitioner’s earnings, the Respondent filed Exhibit 12 which is two‑page document purporting to summarize the business income of the Petitioner for the years 2005, 2006, 2007 and 2008. [11] Mr. Grady testified that as financial advisor he has two sources of income. One source is immediate commission income when new assets are brought under management and the other is an annual fee or commission that he receives for the ongoing management of assets once brought under his management. [12] Mr. Grady testified that the world financial crisis resulted in reduction in the total value of the assets he has under management and consequently, significant reduction in the recurring commissions he receives by virtue of his management of the subject assets. New assets for management also became more difficult to attract, resulting in reduction in earnings as well. [13] Mr. Grady testified further that he has been working many additional hours outside the typical business day in an effort to gain new clients and new assets to manage. He testified that business pressures forced him to move away from the shared parenting arrangement to an arrangement whereby he sees his children less frequently. He offers this explanation for his no longer sharing the parenting of the children. [14] He was cross examined at length about his business expenses. In the course of that cross examination, the Respondent learned that Mr. Grady is currently paying his father $3,000 per month, pursuant to buy out agreement pertaining to his father's interest in the business. [15] By way of background, Mr. Grady explained that in January 2009, he essentially agreed to buy his father's interest in the business by paying him over seven years. Mr. Grady, Sr. will continue to attend at the office but will not to be expected to bring new investments under the management of this company. Mr. Grady, Jr. explained that he will be paying his father slightly in excess of 17% of the recurring commission on the funds his father had under his management at the time the father and son entered the agreement. In addition, if Mr. Grady, Sr. attracts additional investments to the firm, he and his son will equally split any commissions payable for having acquired the new assets for management. [16] Mr. Grady, Jr. explained that regulations governing his industry require that every office have manager and that his father's presence as manager is required. He did explain that system of remote management is now available and would be an expense equivalent to 2% of commissions and management fees. He has not opted for that arrangement. [17] As stated, the essence of Mr. Grady\'s argument that he should not be bound by clause 9 of the separation agreement is that his income (1) has taken a dramatic and unanticipated drop; and (2) forced him to abandon the parties’ shared parenting arrangement with resulting tax consequences for him. Evidence of Ms. Grady [18] Ms. Grady was the primary caregiver of the parties’ children, while they lived together. She is now in the second year of study at local community college. Several years ago she wanted to be trained as license practical nurse but because there were no openings in the program she began technology program. Subsequently position in the nursing program became available and she switched to the licensed practical nursing program. It is one year program and will be completed in June 2010. Her counsel advises that she expects to quickly obtain full‑time employment. The separation agreement contemplated the foregoing. At paragraphs 1(e) and 9(b) it provides: 1.(e) Daiga is currently unemployed and is attending full time 2-year program at post-secondary institution for Electronic Engineering Technology. It is anticipated that she will graduate in May/June of 2010. 9.(b) The parties agree that the spousal support shall be reviewed on or after September 1, 2010. Daiga acknowledges her obligation to become economically self-sufficient, to complete her post-secondary education, and to obtain full-time employment regardless of whether in her chosen occupation and to make all diligent and reasonable efforts in this regard. [19] She has been financing her education by managing her spousal support; other child related government income; and student loan income. She lives in the parties’ former matrimonial home. [20] In her direct evidence and on cross examination, she confirmed that there are arrears on the mortgage on the home and that she is at risk of losing her program of study, as well as her home, if Mr. Grady discontinues or does not resume payment of the spousal support in the amount of $2,000 per month. Registration of the Separation Agreement [21] The parties’ agreement was registered on June 17, 2009. The effect of registration of the agreement is described in s.52 of the Maintenance and Custody Act, R.S.N.S. c.3, s.52. It reads as follows: 52(1) judge may, with the consent of either party, register in the court an agreement entered into between the parties respecting maintenance or respecting care and custody or access and visiting privileges or any amendment made to the agreement. (2) Before registering an agreement pursuant to subsection (1), judge may inquire into the merits of the agreement and, after giving the parties an opportunity to be heard, may vary its terms as he deems fit. (3) An agreement, including amendments registered pursuant to this section, shall for all purposes have the effect of an order for maintenance or respecting care and custody or access and visiting privileges made under this Act. [22] Registration of the separation agreement resulted in the obligations therein becoming an order enforceable by the Maintenance Enforcement office. (see exhibit “c” to the affidavit of Ms. Grady, filed October 2, 2009, being exhibit in this proceeding). [23] There is no previous order under the Divorce Act. corollary relief order will result from this hearing. am therefore, dealing with situation where the agreement was made and an order issued under the Maintenance and Custody Act on June 17, 2009, when registration of the agreement was effected by Judge of the Supreme Court, Family Division. [24] The Divorce Act proceeding prevails over proceedings initiated pursuant to Provincial legislation in matters of support. However, the existence of divorce proceeding is not bar to proceedings under Provincial legislation. The registration of the separation agreement herein is case in point. The order that flows from that process fills void until, if and when an order is issued, pursuant to the provisions of the Divorce Act. There is concurrence of jurisdiction with Federal paramountcy when the Divorce Act is invoked. [25] am forced to ask whether the MCA order has the same status as an order under the Divorce Act and whether the application before me is, in essence, an application to vary as opposed to an application for an original order under the Divorce Act. [26] Section 17(1) of the Divorce Act (as read with s.2(1)) dealing with variation of orders expressly provides that it is meant to apply to the variation of earlier orders under the Divorce Act in corollary relief proceeding. In addition, corollary relief judgment addresses wider range of issues. therefore conclude that this proceeding should not be treated as an application to vary under s.17. The governing section for this discussion is s.15.2 of the Divorce Act. Alternatively, and for reasons that follow, am satisfied that my analysis is unaffected by the distinction. Clause 9(a) of the Separation Agreement [27] Clause 9(a) of the separation agreement describes the monthly obligation as follows: 9. Spousal Support (a) Nicolas agrees to pay to Daiga for spousal support the sum of $2,000.00 per month commencing October 1, 2008 and continuing on the 1st day of the month thereafter, less any payments made to Daiga as income or dividends from family trust or corporation controlled by Nicolas. Both parties acknowledge and confirm the factors set out in the Divorce Act as it relates to spousal support. [28] Mr. Gabriel, counsel on behalf of the Respondent, in his written and oral submissions, argued that the Supreme Court of Canada decision in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] S.C.R. 303, requires that Mr. Grady continue to pay the agreed‑upon amount of $2,000 per month to Ms. Grady; regardless off any changes in his income. Mr. Shepherd, counsel on behalf of Mr. Grady, argues that the assumptions that gave rise to the agreement are no longer correct and therefore there has been drastic change in the parties’ circumstances that justify movement away from the strict terms of the agreement. He argues, for example, that Mr. Grady will no longer be eligible to claim the $2,000 per month as spousal support because the children are no longer in shared parenting arrangement and part of this amount must be reclassified as child support. [29] Mr. Shepherd is asking the court to order that Mr. Grady now, pay only child support based on the tables reflecting an income of approximately $30,000 per year. The child support obligation in that circumstance would be $750 per month. Mr. Shepherd observes that this obligation would be met with after‑tax income by Mr. Grady and leaves Mr. Grady with no resources for spousal support and no spousal support should be ordered. The Interaction of the Separation Agreement and the Divorce Act [30] The Petition for Divorce was issued August 2, 2006 and served September 7, 2006. As stated, an Answer was filed September 15, 2009. [31] In the case of an original order, an application may be made for corollary relief judgment that is at variance with the parties’ separation agreement. In the case of proceeding pursuant to the Divorce Act, the governing legislative provision is s.15.2. It provides: Spousal support order 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Terms and conditions (3) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self‑sufficiency of each spouse within reasonable period of time. [32] In contrast, once the agreement is incorporated in corollary relief judgment, an application seeking to, in essence, vary the agreement is an application to vary the corollary relief judgment. The governing provision of the Divorce Act is then s.17. [33] The provision reads as follows: (1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (b) custody order or any provision thereof on application by either or both former spouses or by any other person. Terms and conditions (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. Factors for child support order (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. Factors for spousal support order (4.1) Before the court makes variation order in respect of spousal support order, the court shall satisfy itself that change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [34] The court’s authority to decide upon corollary relief judgment at variance with the parties’ separation agreement must be reviewed when the court is called upon to issue an original corollary relief judgment or to vary an existing corollary relief judgment. [35] Justice MacDonald in the recent decision of MacLean v. MacLean [2009] N.S.J. No. 328 considered whether separation agreement should be set aside. She identified eight factors relevant to determining the validity of the agreement. This is often the first determination court is called upon to make when party seeks to set aside separation agreement in part or in its entirety. Justice MacDonald went on to find the subject agreement invalid and set it aside. [36] There is no suggestion herein that the parties did not enter a binding agreement or that the agreement was not binding at the time it was entered. Faced with similar issue, the Supreme Court of Canada in Rick v. Brandsema 2009 SCC 10 (CanLII), [2009] S.C.J. 10 also assessed the circumstances at the time the separation agreement was negotiated and signed. Justice Abella, on behalf of the court, overturned an agreement because of incomplete disclosure by the husband. In the course of her discussion of the principles to be applied when the court is asked to set aside separation agreement, Justice Abella referenced the Miglin decision and the guidance lower courts must take from it. [37] At paragraph 48, she stated: 48 An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties. It is, as result, an agreement that courts are more likely to respect. [38] There is authority for the proposition that the court’s considerations are the same when called upon to set aside separation agreement regardless of whether the application arises at the time the original corollary relief judgment is being issued, or in the context of an application to vary corollary relief judgment. At para. 91 in Miglin supra, the court stated: 91 Although we recognize the unique nature of separation agreements and their differences from commercial contracts, they are contracts nonetheless. Parties must take responsibility for the contract they execute as well as for their own lives. It is only where the current circumstances represent significant departure from the range of reasonable outcomes anticipated by the parties, in manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. As we noted above, it would be inconsistent if different test applied to change an agreement in the form of an initial order under s. 15.2 and to variation of an agreement incorporated into an order under s. 17. In our view, the Act does not create such inconsistency. We do not agree with the Ontario Court of Appeal when it suggests at para. 71, that once material change has been found, court has “a wide discretion” to determine what amount of support, if any, should be ordered, based solely on the factors set out in s. 17(7). As La Forest J. said in his dissent in Richardson, supra, at p. 881, an order made under the Act has already been judicially determined to be fit and just. The objectives of finality and certainty noted above caution against too broad discretion in varying an order that the parties have been relying on in arranging their affairs. Consideration of the overall objectives of the Act is consistent with the non‑exhaustive direction in s. 17(7) that variation order “should” consider the four objectives listed there. More generally, contextual approach to interpretation, reading the entire Act, would indicate that the court would apply those objectives in light of the entire statute. Where the order at issue incorporated the mutually acceptable agreement of the parties, that order reflected the parties’ understanding of what constituted an equitable sharing of the economic consequences of the marriage. In our view, whether acting under s. 15.2 or under s. 17, the Court should take that into consideration. [39] Justice Dellapinna in Stening-Riding v. Riding, 2006 NSSC 221 (CanLII) at para 22 observed that Miglin applied to variation proceedings. In helpful analysis, Justice Dellapinna systematically applied principles enunciated in Miglin to the evidence before him and factual conclusions he reached. [40] Beginning at paragraph 37 he paraphrases the test he is applying as, “the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act”. [41] Obstacles to performance by either party should not be confused with determination of the original intentions of the parties. In my view, care must be taken to distinguish between circumstances giving rise to the agreement and those which make compliance with the agreement difficult, assuming substantial compliance with the objectives of the Divorce Act. [42] Counsel for Mr. Grady argues that the extent of the change in Mr. Grady’s circumstances impacts on the integrity of the bargain the parties reached. As earlier stated, he argues that (1) Mr. Grady has suffered a dramatic drop in income, and (2) he is no longer in a shared parenting arrangement. [43] He is not arguing that the original agreement was unfair when it was made, or that the agreement, when reached, did not promote the relevant support objectives outlined in the Divorce Act. In any case, find the agreement to be fair when made and that it promoted the objectives of the Divorce Act. [44] The terms of the separation agreement must be given great deference. The leading authority dealing with when separation agreement may be subject to change is Miglin, supra. [45] The Supreme Court of Canada, in Miglin supra, rejected the requirement that “radical, unforeseen” change had to be shown before an agreement could be varied. It also rejected “material change” test. As discussed in McLeod and Mamo (2008, Carswell) at page 570, the court enunciated two step process: (i) determining whether the agreement was fairly negotiated and reflected the support objectives set out in the Divorce Act, as well as the overarching objectives of finality and certainty to enable the parties to move on with their lives; and (ii) whether anything outside the parties’ reasonable contemplation had occurred since the date of the agreement to undermine the integrity of the settlement. [46] We are concerned with the second branch of the test. Other Clauses of the Separation Agreement [47] The parties’ separation agreement speaks to both of these issues. Paragraph 2(a), (b), (c) and (d), 6(a) and 12 provide: 2. Agreement and Intention (a) Both parties covenant and agree that they have negotiated the Agreement in good faith. Both parties covenant and agree that this Agreement is executed voluntarily and that neither party has been subject to oppression, pressure or any other vulnerabilities. (b) Both parties covenant and agree that this Agreement complies with all applicable relevant legislation including but not limited to the factors set out in the Divorce Act relating to spousal support. Both parties recognize that there may be changes in circumstances in the future. These changes (no matter how radical or unforeseen) will not have the effect of setting aside the terms of this Agreement as the terms relate to division of property and debt and any and all spousal support obligations except as set out herein. (c) Both parties agree that the intention of this Agreement is to recognize the contribution of each of them to the marriage and provide an equitable resolution on full and final basis of all matters relating to the marriage and its breakdown, including but not limited to their parenting responsibilities, financial support and division of property and debt. (d) Both parties agree that any divorce proceedings between them shall be uncontested and that either of them may proceed with an uncontested divorce based on the ground of living separate and apart and that an Answer, if filed by either of them, shall be withdrawn. 6. Child Support (a) Child Support The parties, after considering the totality of their agreement and the best interest of the children, have agreed to opt out of the Federal Child Support Guidelines. This may be varied if there is change of circumstances in the future. Releases (a) Each of the parties hereto releases and discharges the other from any right, title, or interest in and to the property of the other, whether real or personal, legal or equitable. (b) Each of the parties hereto agrees that this Agreement and Minutes of Settlement may be pleaded by either party as an estoppel in respect of any claim or application whatsoever which may be made pursuant to the provisions of the Matrimonial Property Act, and Divorce Act, or any other similar legislation in Nova Scotia or any other jurisdiction by the other party in respect of any matter dealt with by this Agreement which is full and final settlement between the parties and may be pleaded as complete defence to any action brought by either party to assert claim in respect of any matter dealt with by this Agreement, except where: (i) this Agreement expressly provides for review or variation of particular term or condition; or (ii) where party has failed to disclose significant circumstance with respect to his or her financial or asset position which should have been raised during negotiation of this Agreement; or (iii) the matter deals with support or parenting of or access to child. (c) The parties agree that no property, which either owns or hereafter acquires shall be considered matrimonial asset or an asset subject to division within the meaning of the Matrimonial Property Act, or any other similar legislation in Nova Scotia or any other jurisdiction, or any successors thereto. (d) All rights and obligations of Nicolas and Daiga, whether arising during the marriage, either before or after separation, or upon and after divorce or annulment, including the rights and obligations of each of them with respect to: (i) Possession of property; (ii) Ownership in or division of property, and (iii) Spousal maintenance or support are governed by this Agreement which prevails over all provisions of the Matrimonial Property Act, and the Divorce Act, 1985, or any successor or similar legislation thereto, whether in existence or in force on the date of execution of this Agreement. [48] am satisfied that Ms. Grady cannot find more affordable housing for herself and her children if the home she currently occupies is foreclosed upon, or sold. In addition, the court views the need for Ms. Grady to become self‑sufficient and fully employed as licensed practical nurse as in the interests of both parties and an objective that was at the heart of the parties’ separation agreement. [49] The court accepts that Mr. Grady is in financial bind. However, Mr. Grady should not be relieved of the essence of the obligations he accepted in the October 22, 2008 agreement. There are no attractive options for the parties. [50] The court was struck by Mr. Grady's tendency to treat Ms. Grady's interest as secondary to his. He is prepared to accept that the home in which his children live might have to be sold and that Ms. Grady may have to discontinue her program because of Mr. Grady's business pressures. [51] In my view that is an outcome of last resort. [52] Mr. Grady must examine the operating costs of his business with view to finding the money that is necessary to meet his obligations in whole or in large measure. He is the one most qualified to do so. [53] He may need to make reduction in the number of staff, the number of hours the staff work or to reduce the salaries for employees. Faced with the loss of employment, concessions from staff may be achievable. Mr. Grady was clear that he could not reduce his costs any further. am not satisfied that this is so. His business can not sustain the overhead. He must therefore reduce it or face closure of his office. The financial pressure may also require him to find another or second job. [54] Within this financial context, Mr. Grady testified that he has new domestic partner, woman he met one year ago. In August or September the new partner was joined by her daughter, her daughter’s boyfriend and her daughter's child. Mr. Grady expressed some optimism that his partner’s daughter and her family would soon leave the home. Mr. Grady also testified that he had no knowledge of the financial circumstances of his new partner and was uncomfortable having discussion of that nature with his new partner or seeking any financial contribution to the operation of the home from his new partner. Late in the proceeding, the court received financial information concerning the circumstances of Mr. Grady’s new partner. am satisfied that her presence in Mr. Grady’s home should have no impact on my decision one way or the other. am satisfied she has modest income and this is directed to covering her medical and household expenses. The relationship with Mr. Grady has been of short duration and is of uncertain security and his partner has covered the incremental cost of her being in the home. [55] The parties impressed the court as hard‑working, bright and committed to their children. The court is satisfied that the Respondent is striving for independence and self‑sufficiency. The Petitioner is also hard‑working, bright and believe, committed to his children. [56] As stated, the Petitioner argues that because he is no longer in shared parenting arrangement, basis of the agreement is no longer present and therefore, this is significant part of the reasons for changing it. This argument is not accepted by the court. Ms. Grady decided to discontinue the shared parenting arrangement. He should not be permitted to, in effect, unilaterally alter his separation agreement. The court acknowledges his explanation for doing so. It does not accept his choice in this respect, as either reasonable or fair, given all the circumstances, not the least of which has been to transfer the total parenting burden to Ms. Grady, who is also managing significant financial and professional challenges. [57] In the context of this argument, Mr. Grady argues that he should now pay only child support based on the tables. have considered clause 6(a), which arguably provides for Mr. Grady to opt in to the Federal Child Support Guidelines if there is change of circumstances. do not interpret the parties’ contract to consequently permit Mr. Grady to opt out of his obligation in clause 9(a). see his child support obligation, whatever it is, as subsumed in the global amount of $2,000 per month provided for in clause 9. [58] One’s parenting responsibilities are to be fulfilled, not transferred. Ms. Grady does not and has not taken the view that anyone else has the responsibility to meet her parenting obligations. Mr. Grady’s position should not be different. [59] In light of this ruling, for Mr. Grady’s argument to succeed, must conclude that notwithstanding the strong and clear language of the parties’ separation agreement, must find that something “outside the parties’ reasonable contemplation” has occurred to undermine the integrity of the settlement. As stated in paragraph 88 in Miglin, must inter alia conclude that “these new circumstances were not reasonably anticipated by the parties and have led to situation that cannot be condoned”. The burden is on the Petitioner to demonstrate that is so. [60] The world economic crisis of 2008-2009 was more extreme than anticipated. However, I can and do take judicial notice of the concerns in this regard that were the subject of much public debate in October 2008, prior to the Federal general election held in October, 2008. I agree that the economic downturn was more extreme than anticipated at the time the parties concluded the separation agreement. The parties agreed, however, that such an event would not excuse compliance with the agreement by both parties. [61] have ruled that the change from shared parenting does not meet the test for disregarding the separation agreement. am further satisfied that the test is not met in any other way. The agreement at clause 2(b) expressly provided that the parties would be required to honour the agreement. [62] In coming to this conclusion, I have considered the: (1) strong, unambiguous language of the agreement arrived at after extensive negotiation and a judicial settlement conference; (2) the fact of legal representation by both parties at the time the agreement was signed; (3) the sophistication of the parties; (4) the value of this agreement to both parties; (5) related issue, the consequences for Ms. Grady and the children if the agreement is not upheld; and (6) the changes in circumstances identified. [63] The parties herein were both represented by counsel. Their agreement was reached after significant effort and following judicial settlement conference. Neither party is asserting that they were poorly served by their counsel or lacked an appreciation for the agreement reached. In fact, the agreement was designed to result in short term spousal support obligation on the part of Mr. Grady. Ms. Grady had an identifiable plan to achieve self sufficiency. Given the history and circumstances of the parties’ relationship, failure on her part to do so could result in spousal support obligation for significantly longer period. The agreement also provided Mr. Grady with tax benefit because his support is characterized as spousal support. [64] It may be that Mr. Grady’s concern about losing the deductibility aspect of the monthly payment can be addressed by his returning to the shared parenting arrangement the parties negotiated. That is for him to decide. [65] Mr. Grady believes that saving his business must take precedence over the agreement, even if this means that Ms. Grady is forced to abandon her studies. The court does not agree. [66] The opportunity for Ms. Grady to complete her education and gain qualification as licensed practical nurse is in the best interests of the children. She is currently their primary care giver. Over the course of the parties’ marriage, she sacrificed her employment opportunities in favour of her parenting responsibilities. This choice was undoubtedly benefit to Mr. Grady in his work. As matters were explained by Mr. Grady, Ms. Grady’s income prospects in the short term may be more positive than his. She is very confident of gaining self sufficiency by September 2010. [67] Ms. Grady negotiated an agreement to ensure that she could become self sufficient. She is prepared to honour the agreement. Mr. Grady must be called upon to do the same. He is proposing that his dire circumstances be transferred to Ms. Grady. That is an outcome that (in the words of Justice Bastarache in Miglin at paragraph 88) cannot be condoned. Upholding the agreement is the only acceptable option. [68] Mr. Grady describes her circumstances as follows in paragraph 17 of her affidavit (exhibit 4): 17. The Petitioner is more than aware, that have no financial ability to go to the bank and get them to agree to remove him from this indebtedness. While have great deal of personal and financial difficulty caused by these developments. am attempting to maintain my position at the Community College in order that may graduate with my class and have productive career. To be forced out in the workforce now, would have no training or experience that would fit me for other than an entry level store clerk job somewhere which would pay (even if could get it) minimum wage with no benefits. Our children, and would never get out of our present circumstances if that happens. [69] The court is not prepared to rewrite the parties’ agreement or disregard it, given all of the circumstances and the jurisprudence. If both parties are ultimately going to suffer should changes not be made to the terms or implementation of the agreement, then they, of course, are free to amend the agreement. [70] It is the parties who are best equipped to renegotiate the agreement if it is necessary that the renegotiation occur. Mr. Grady’s continuing default is not in the interest of either party. His business failure would not be in Ms. Grady’s short or long term interest. The accumulation of arrears does nothing to meet Ms. Grady’s current financial needs. She has significant interest in working with Mr. Grady to address the financial circumstances they both face. [71] I do not conclude the circumstances described by Mr. Grady undermine the integrity of the agreement. am more inclined to the view that Mr. Grady’s proposal for changing/disregarding the agreement would bring about this result. [72] A corollary relief judgement incorporating the support provisions of the parties’ separation agreement will therefore issue. understand the parties have agreed upon modifications to the parenting agreement and less significant issues. reserve the jurisdiction to rule on any of these issues and others if am advised that counsel wish that do so.","The parties entered into an agreement and registered it with the court in 2008. It provided for a combined spousal/child support payment of $2,000/month, which the husband was able to claim on his taxes because of the shared custody arrangement they were in at the time. At the time of their divorce in 2009, the wife wanted to incorporate the agreement into the corollary relief judgment. The husband argued a dramatic drop in his income forced him to abandon the parties' shared parenting regime, which resulted in significant tax consequences and justified a change to the agreement's support provisions to include only the table amount of child support. He argued the change in circumstances was so extensive as to undermine the integrity of the agreement. The evidence showed the wife needed $2,000/month in order to keep the bank from foreclosing on the home she occupied with the children, and to allow her to finish retraining so she could enter the workforce. The husband (a self-employed financial planner) argued the recent world economic crisis had adversely affected his business to an extent unanticipated when the agreement was executed (October 2008). The evidence showed that his focus was to solicit new business rather than cut expenses to make his business more viable. He chose to spend less time with the children to do this, which impacted the children and wife. The agreement is binding; the support provisions are to be incorporated into the corollary relief judgement. This concerns an agreement registered under the Maintenance and Custody Act. It is not an application to vary under the Divorce Act, but rather an application to overturn an agreement (although the distinction doesn't impact the outcome). The terms of the agreement must be given great deference. Will enforcing it reflect the parties' original intent and be in substantial compliance with the Act? The court looked at the second branch of the test in Miglin: whether something has happened that was outside the parties' contemplation when the agreement was made. Care must be taken to distinguish between circumstances giving rise to the agreement and those making compliance difficult. Taking judicial notice, the court observed the world economic crisis was the subject of much debate before the agreement was made, even if it was more extreme than anticipated. Here, the agreement: used strong, unambiguous language; was arrived at after extensive negotiations by sophisticated parties and with the assistance of counsel; and was very important to each party. To overturn it would not be in the children's best interests: they would lose their home and their mother would be unable to finish her retraining, adversely impacting her ability to provide for them. The change in the husband's circumstances are less likely to impact the integrity of the agreement than would his proposal to disregard it. The husband cannot unilaterally alter the agreement simply by deciding to change the parenting arrangements. His decision to work additional hours and spend less time with his children was not reasonable or fair and in effect transferred the financial and parenting burden to the wife (who was also managing significant financial and professional challenges).",2_2009nssc364.txt
259,"NOVA SCOTIA COURT OF APPEAL Citation: Murphy v. Wulkowicz, 2005 NSCA 147 Date: 20051123 Docket: CA 217527 Registry: Halifax Between: Martha A. Murphy v. Robert M. Wulkowicz Respondent Judge(s): MacDonald, C.J.N.S., Freeman and Fichaud, JJ.A. Appeal Heard: September 30, 2005 in Halifax, Nova Scotia Held: Appeal and cross-appeal dismissed without costs, per reasons for judgment of MacDonald, C.J.N.S.; Freeman and Fichaud, JJ.A. concurring. Counsel: Martha A. Murphy, the appellant in person Robert M. Wulkowicz, the respondent in person Reasons for judgment: [1] Chief Justice Kennedy of the Supreme Court granted the parties’ divorce and resolved several corollary issues including the division of assets. The appellant wife took issue with this division, citing several purported errors by the judge. The respondent husband also cross-appealed. He too sought more favourable division of assets. He also claims, for the first time on appeal, an entitlement to the appellant’s health care coverage. [2] Both parties, as self-represented litigants, sought to introduce fresh evidence on appeal. [3] Having carefully reviewed the record together with the parties’ submissions, conclude there is no basis for admitting any of the proposed fresh evidence on appeal. This evidence was either readily available at trial, irrelevant, or both. Furthermore, conclude that the judge committed no reversible error. I would dismiss both the appeal and the cross-appeal without costs. [4] The parties are from the State of Illinois. They were married in 1994, each for the second time. Their dream was to sell their home in Chicago to retire in Nova Scotia. In May of 1999, they purchased home on approximately 7.5 acres of land located at Half Island Cove, Guysborough County (“the home property”). year later they purchased an adjoining 100 acre lot referred to as the “camp property” together with third nearby 30 acre lot known as the “acreage”. [5] Unfortunately, after selling their Chicago home and while still in the process of transporting their belongings to Nova Scotia, the parties separated. This was in March of 2001. That same month the appellant filed for divorce in Nova Scotia. [6] The trial was held in Truro on January 17, 2003. The primary contest related to the division of assets. The main focus involved the disposition of the “camp property”; it apparently being agreed that Ms. Murphy would receive the “home property” and the “acreage”. second related issue involved the proceeds from the sale of the Chicago property. Mr. Wulkowicz handled this transaction and was called to account for the net proceeds. He insisted that the proceeds had already been divided evenly after expenses. On the other hand, Ms. Murphy insisted that there were significant monies unaccounted for and that this shortfall should at least justify her receiving all three Nova Scotia properties. [7] The judge awarded the disputed “camp property” to Mr. Wulkowicz. In doing so he observed that Mr. Wulkowicz’s accounting left lot to be desired and that there was shortfall owed to Ms. Murphy from the sale of the Chicago property. However, on the sparse evidence before him, the judge was unable to determine the exact amount of this shortfall. In the end the judge felt that any such shortfall would be adequately “addressed by the favourable differential in the value of the Nova Scotia land [two lots] and the motor vehicles that she will receive”. THE ISSUES ON APPEAL [8] Both parties have listed extensive grounds of appeal. Because they are self-represented, rather than repeat these grounds, will try to paraphrase the thrust of their respective positions. [9] Ms. Murphy’s main concern involved the fact that Mr. Wulkowicz was awarded the “camp property”. She feels that this is patently unfair for several reasons. First she feels that the judge ignored or underestimated the significance of the shortfall owed her from the sale of the Chicago property. Furthermore, Mr. Wulkowicz’s failure to provide proper accounting should not prejudice her. She also suggests that the judge ignored or underestimated the significance of awarding Mr. Wulkowicz lot of land adjoining her “home property”. Her “home property” she felt would be rendered useless to her because she is afraid of having him living so close by. Furthermore she asserts that Mr. Wulkowicz lied not only in his accounting but also when he said he planned to make Nova Scotia his home. She feels that the judge missed obvious evidence in this regard. [10] Ms. Murphy also sought credit for certain receivables she asserts were family debts which Mr. Wulkowicz should collect and share. She challenged the judge’s rejection of this claim. [11] Ms. Murphy also takes issue with the fact that she has been unable to access her personal belongings which for several years now have been locked in two large trailers that Mr. Wulkowicz arranged to transport from Chicago to Nova Scotia. She also asserts that the judge rendered too much assistance to Mr. Wulkowicz who was also self-represented at trial. Finally she suggests that the judge’s decision was not rendered in timely fashion and that this delay hampered his ability to unravel what was already confusing body of evidence. [12] From Mr. Wulkowicz’s litany of confusing contentions, the following claims can be distilled. He seeks an entitlement to Ms. Murphy’s health insurance which was cancelled by her post separation. He denies any agreement giving Ms. Murphy the “acreage” property and feels that he should receive it. Finally, because the “camp property” is landlocked, he seeks access by way of an easement over Ms. Murphy’s “home property”. In justifying much of this relief, Mr. Wulkowicz does not point to alleged errors on the part of the judge. Instead he feels justified as “sanctions and damages for the malicious egregious bad faith actions of the appellant”. [13] will address each assertion in order. However, first will deal with the respective applications to introduce fresh evidence on appeal. ANALYSIS The Requests to Introduce Fresh Evidence [14] Hamilton, J.A. of this court recently addressed the four part test for admitting fresh evidence on appeal. In Harris v. Nova Scotia Barristers' Society 2004 NSCA 143 (CanLII), [2004] N.S.J. No. 463, she noted: 105 With respect to the first two affidavits, the test for the admission of fresh evidence on appeal was set out by the Supreme Court of Canada in Palmer v. The Queen, 1979 CanLII (SCC), [1980] S.C.R. 759 at page 775: Parliament has given the Court of Appeal broad discretion in s. 610(1)(d). The overriding consideration must be in the words of the enactment ""the interests of justice"" and it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice. Applications of this nature have been frequent and courts of appeal in various provinces have pronounced upon them ‑‑ see for example Regina v. Stewart (1972), 1972 CanLII 1445 (BC CA), C.C.C. (2d) 137 (B.C.C.A.); Regina v. Foster (1977), 1977 ALTASCAD 300 (CanLII), A.R. (Alta. C.A.); Regina v. McDonald 1969 CanLII 334 (ON CA), [1970] C.C.C. 426 (Ont. C.A.); Regina v. Demeter (1975), 1975 CanLII 685 (ON CA), 25 C.C.C. (2d) 417 (Ont. C.A.). From these and other cases, many of which are referred to in the above authorities, the following principles have emerged: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases: see McMartin v. The Queen [1964 CanLII 43 (SCC), [1964] S.C.R. 484]. (2) The evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. 106 In Thies v. Thies (1992), 1992 CanLII 2590 (NS CA), 110 N.S.R. (2d) 177, this Court approved the use of the Palmer test for admission of fresh evidence on appeals in civil cases. am satisfied the Palmer test is the appropriate test to apply in this appeal. Mr. Wulkowicz’s Proposed Fresh Evidence [15] On appeal, Mr. Wulkowicz attempted to introduce four volumes of materials. The first volume is essentially reproduction of the post trial brief that Mr. Wulkowicz tried to have the judge consider. It contained great deal of untested evidence which was either irrelevant or in any case would have been readily available at trial. The trial judge properly refused to consider this material after the fact. Likewise it ought not be accepted by us. The second and third volumes essentially represent the entire record of parallel claim Ms. Murphy made in the Circuit Court of Cook County, Illinois. This material bears absolutely no relevance to the issues either at trial or on appeal before us. Mr. Wulkowicz’s fourth volume was filed on September 29, 2005, the day before we heard this appeal. It purports to be his sister’s medical records verifying the many visits she made to the emergency department of the Oak Park, Illinois Hospital. Mr. Wulkowicz thought these may be relevant to show why he was remiss in producing the appropriate documentation at trial. His excuse was that he was preoccupied caring for his sister. Again these documents have absolutely no relevance to any trial or appeal issue. would deny Mr. Wulkowicz’s application to admit fresh evidence in its entirety. Ms. Murphy’s Proposed Fresh Evidence [16] We received material from Ms. Murphy on September 30, 2005, the actual day that this appeal was heard. They are the closing documents relative to the purchase of the “camp property” and the “acreage” property. According to this material, it appears that Mr. Wulkowicz overstated the purchase price of this property by as much as $70,000.U.S. Thus these documents may have been relevant at trial. Yet with due diligence, they could have been readily available for trial. In her affidavit supporting their admission, Ms. Murphy explained her failure to produce them at that time: As testified at trial, Respondent insisted on handling all details of the transaction and excluded me from all aspects of the purchase of the Camp Property. 11 continually asked Respondent for copies of the purchase documents in 2000 and after. At first, he told me he “couldn’t find them”; after we separated, he simply never responded to my requests. 12 Despite the many attempts by Respondent to keep me from getting any of the documents relating to our purchase of the Camp Property and the Acreage, have now managed to locate such documents and am including them herewith. 20 Although asked for these documents many times over the last five years, never received copies. It was only now, without the assistance of either Respondent, who was acting on my behalf in self-appointed fiduciary status, that was able to get copies which now submit to the Court. [17] Yet these documents, generated by the parties’ property lawyers, date back to the year 2000. Ms. Murphy is an identified client and (either directly or through her then counsel) could have easily secured this material well in advance of the trial. While this omission is regretful, it would not be proper for us to accept this material untested on the day of the appeal. In no case, without consent, could the Court of Appeal just admit the document as is and then use it. There would have to be the same opportunity for direct and cross-examination related to the document as would exist at trial. This highlights the rationale for the principle that the document, if available, should have been rendered at trial. It is not the role of the Court of Appeal to exercise de novo trial functions for the consideration of evidence which was available for the trial. [18] In fact, it appears that both parties have attempted to essentially treat this appeal as new trial supplementary to the original hearing. Considering they are self-represented litigants in an emotionally charged conflict, perhaps this should not be surprising. In any event, would deny Ms. Murphy’s application to admit fresh evidence. The Case on Appeal Standard of Review [19] In reviewing an order for the division of assets, the usual civil standard applies. Recently, Bateman, J.A. in Hendrickson v. Hendrickson [2005] N.S.J. No. 145; 2005 NSCA 67 (CanLII), succinctly explained: The standard of review on appeals from orders for child support and the division of assets is the usual civil standard. Findings of fact and inferences from facts are immune from review save for palpable and overriding error. Questions of law are subject to standard of correctness. question of mixed fact and law involves the application of legal standard to set of facts and is subject to standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law, subject to standard of correctness (Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235; MacIsaac v. MacIsaac (1996), 1996 CanLII 5612 (NS CA), 150 N.S.R.(2d) 321 (C.A.) ). The Appellant’s Grounds of Appeal The Camp Property [20] As noted, Ms. Murphy felt entitled to this property in large measure because of the significant shortfall she felt existed from the sale of the Chicago property. She maintains that Mr. Wulkowicz deceitfully withheld pertinent information in order to deprive her of her fair share. Yet the judge made clear finding of fact rejecting this submission. He found Mr. Wulkowicz to be “creditable” on this issue. He wrote: 44 The matrimonial home was in Chicago. It was this property that the husband returned to the United States to sell. It did sell in October of 2000, for the price of $500,000.00 U.S. 45 Much of the hearing involved the questions of where that money went. The evidence is confusing. 46 The wife testified that she does not know what happened to much of the equity arising from that sale. The sale was overseen by the husband and he disbursed the funds. The husband struggled to explain that distribution. 47 Let me say that found the husband to be creditable. Judges are too familiar with the spouse who hides, transfers, undervalues and manipulates assets, with the intent of preventing the former partner from sharing, in matrimonial property. 48 do not believe that the husband in this case is acting in that matter. conclude, rather, that he at trial was legitimately confused about how that money was used. [21] The judge acknowledged the difficulty in tracking the proceeds from the sale of the Chicago property. In fact he was unable to determine the exact amount of the credit due to Ms. Murphy. Instead he chose pragmatic solution. He concluded that the value of the assets retained by Ms. Murphy exceeded the value of those retained by Mr. Wulkowicz. This resulted in credit to Mr. Wulkowicz. He then simply set one credit off against the other. He reasoned: 51 The wife submits that after debts were paid off and the Nova Scotia property purchased, there should have been approximately $186,500.00 U.S. left to be divided. She submits that she should have half of that, approximately $93,250.00 U.S. 52 She said that she received $60,000.00 U.S. from the sale proceeds, approximately one year after the closing. She agrees that an additional $8,000.00 U.S. was transferred to her account to look after household bills. 53 She says the remaining $118,500.00 from the sale was kept by the husband. 54 The husband says that she is mistaken. He is left with roughly the equivalent of what the wife received. 55 On the basis of the evidence properly before me, it is not possible to make definitive finding. 56 can determine that the wife should have received more of the equity derived from the sale of the Chicago property, however, on the evidence, am unable to conclude exactly how much more. 57 determine that this shortfall is addressed by the favourable differential in the value of the Nova Scotia land and the motor vehicles that she will receive. 58 will not be ordering cash equalization payment as sought by the wife. [22] There was an evidentiary basis for the judge’s conclusion that the value of the assets retained by Ms. Murphy exceeded the value of those retained by Mr. Wulkowicz. In fact, the evidence supported differential in excess of $30,000 Cdn. For example, the judge accepted Ms. Murphy’s value of the Nova Scotia real estate. 22 As indicated, the parties own three separate properties, all located at Half Island Cove, Guysborough County, Nova Scotia. There were no appraisals put into evidence. accept the values submitted by the wife; the “house property” at $42,046.70, the “camp property” at $31,060.99, and the additional lot referred to as “the acreage” at $2,543.00. [23] He also noted agreement on the value of the motor vehicles most of which went to Ms. Murphy. In doing so he accepted Mr. Wulkowicz’s evidence that two of the vehicles in his possession no longer had any value: 29 The parties own or owned number of motor vehicles. It is agreed that the wife will retain the 1996 Dodge Van (value $8,000.00) and the 1984 Ford Teaga Motor Home (value $8,000.00) and the 1979 Dodge Teaga Motor Home (value $2,000.00). These valuations are agreed upon. 30 It is agreed that the husband will keep the Ford Ranger truck that has value of $500.00. 31 The wife has submitted that the husband should be credited with the value of Travellers Motor Home and “Cube Van,” both of which, she says, will remain in his possession. 32 The husband responds that neither of these latter vehicles has any value. In fact, they will not be possessed by him. The Travellers Motor Home, he says, was left in the driveway of the Chicago house after the sale of that property, because it had no value. The Cube Van was purchased with proceeds of the sale of the Chicago property, to move the family goods to Nova Scotia, but broke down en route and was abandoned because the cost of repairs would have exceeded the value of the vehicle. 33 accept the husband’s explanation that the Travellers Motor Home and the Cube Van are now not factor in the division of assets. [24] Based on the above and as the following table demonstrates, Ms. Murphy would owe Mr. Wulkowicz $15,514.50 Cdn. to equalize the value of the Nova Scotia properties and motor vehicles she retained. DIVISION OF NOVA SCOTIA PROPERTY AND VEHICLES Total Mr. Wulkowicz Ms. Murphy ASSETS: Real Property: (a) “House” property $42,046 $42,046 (b) “Acreage” property 2,543 2,543 (c) “Camp” property $31,060 $31,060 Motor Vehicles: (a) 1996 Dodge Van 8,000 8,000 (b) 1984 Ford Teaga 8,000 8,000 (c) Motor Home 1979 Dodge Teaga 2,000 2,000 Motor Home (d) Ford Ranger truck 500 500 TOTAL ASSETS: $94,149 $31,560 $62,589 Difference: $31,029 Equalization payment to Mr. Wulkowicz ($31,029. 2) $15,514.50 As the chart shows, Ms Murphy owed Mr. Wulkowicz $15,514.50 for his share of the real property and vehicles. The trial judge then needed to determine what amount Mr.Wulkowicz owed Ms. Murphy from the proceeds of the Chicago house. [25] While the judge was unable to calculate the value of Ms. Murphy’s credit from the Chicago proceeds, it fell somewhere between zero (according to Mr. Wulkowicz) and $25,250 U.S. (as noted by the judge using Ms. Murphy’s figures- $93,250 $68,000): 51 The wife submits that after debts were paid off and the Nova Scotia property purchased, there should have been approximately $186,500.00 U.S. left to be divided. She submits that she should have half of that, approximately $93,250.00 U.S. 52 She said that she received $60,000.00 U.S. from the sale proceeds, approximately one year after the closing. She agrees that an additional $8,000.00 U.S. was transferred to her account to look after household bills. [26] Ms. Murphy's equalization claim of $25,250 U.S. is equivalent to approximately $35,000 Cdn. The judge faced the following conflicting submissions: on one hand, Mr. Wulkowicz claimed the credit from the proceeds was $0, and on the other hand, Ms. Murphy claimed it was $35,000 Cdn. The trial judge was unable to come to conclusion on what the exact amount was, but he found it to be approximately what Ms. Murphy owed Mr. Wulkowicz for the real property and vehicles ($15,514.50). That amount, $15,514.50, is approximately half‑way between what Ms. Murphy was claiming was owed ($35,000), and what Mr. Wulkowicz was claiming was owed ($0). Faced with two conflicting claims, the judge committed no error in finding the amount owed for the proceeds was approximately half‑way between the two claims, and then setting it off against the amount owed to Mr. Wulkowicz for the real property and the vehicles. While his approach may appear somewhat arbitrary, this is sometimes necessary when it comes to dividing matrimonial assets. As Hallett, J.A. of this court observed in Gomez-Morales v. Gomez-Morales, [1990] N.S.J. No. 357; (1990) 1990 CanLII 2349 (NS CA), 100 N.S.R. (2d) 137, it comes down to question of fairness: ... This valuation of half the equity is therefore somewhat arbitrary and for those who will criticize this approach, all can say is that there is often little accounting precision on the division of assets between spouses. While one attempts to make the calculations with as much accuracy as possible, the basis of such calculations are generally estimates of value by experts. As consequence, even as general rule, court's division of property is, at best, an estimate of what is fair in the circumstances applying the criteria of the matrimonial property legislation. Furthermore, the courts are regularly called upon in assessing damages arising out of personal injuries or death to fix amounts involving numerous contingencies and there is no reason why the court should not do so in determining fair values in matrimonial property cases. [Emphasis added] [27] Finally on this issue, note that the judge did in fact take into account Ms. Murphy’s concerns about living next to Mr. Wulkowicz: 28 The husband has told this Court that he has developed love for the camp land and considers it to be his only home. find that the wife’s unhappiness with the husband’s proximity is not sufficient reason to deny him the opportunity to stay on that property. Having given the house property to the wife, find it fair that the husband should have the “camp” property, and so determine. [28] In short the judge made certain factual findings that supported his conclusion to award Mr. Wulkowicz the camp property. see no palpable or overriding error in this regard. The Receivables [29] At trial, Ms. Murphy maintained that the parties were owed two loans from family friends and that only Mr. Wulkowicz had the ability to seek repayment. They totalled $46,000. The judge rejected this claim and concluded that one was gift to family friend and that the other was joint loan that Ms. Murphy could also seek to collect. Thus he concluded that they were not assets for division. 37 The wife has testified that the husband has loaned money to two acquaintances and should be credited with the value of these loans as receivables. The greater of the two is in the amount of $40,000.00 U.S. given to one John Gubbins, friend of the husband’s. 38 The wife characterized the transaction as loan, which can only be collected by the husband. 39 The husband says that the money was given to pay the Chicago office rent for Gubbins, close friend and social activist lawyer, about 16 years ago. 40 He says that the money is gone; Gubbins, having given up his practice and moved away. He says that the wife was close friend of Mr. Gubbins’ spouse and knew that the rent was being paid by the husband. 41 accept the explanation of the husband and will not consider the amount receivable to the husband. 42 The second transaction was the loan of $6,000.00 U.S. to one John Umlauf, another friend of the husband’s. The husband agrees that this is loan and anticipates repayment, however he says it was loan made with the knowledge and consent of both he and the wife, and should be receivable divided equally between the parties. [30] Before us Ms. Murphy maintained that the judge’s reference to her being close friend to the debtor’s wife is not supported by the evidence. Instead this assertion formed part of Mr. Wulkowicz’s post trial submission which the judge expressly rejected. In her factum, Ms. Murphy develops the argument this way: 45 Concerning the Gubbins transaction, an essential part of the learned Trial Judge’s opinion was based on the fact that “the wife was close friend of Mr. Gubbins’ spouse and knew that the rent was being paid by the husband.” In fact, there is no testimony anywhere in the record that Appellant and Mrs. Gubbins were close friends. In fact, the only statement to this point is contained in Respondent’s Brief, in which he asserts that Gubbins’ wife “was [Appellant’s] best friend.” In addition to this being blatant untruth, it is interesting that Respondent never offered testimony on this point at trial, when he knew it would be challenged as the blatant untruth that it was, but waited until he could no longer be cross-examined to make factual statement totally unsupported by the evidentiary record, which the learned Trial Judge accepted as fact. [Emphasis added by the appellant] [31] cannot accept Ms. Murphy’s submissions on this point. The evidence establishes that both Mr. Wulkowicz and Ms. Murphy were friends of Mr. Gubbins: Martha Murphy, Direct Examination Q. The next thing is the accounts receivable. Let’s deal firstly with the loan to John [Gubbins?]. It’s showing an amount of $40,000 US. Can you explain the circumstances? A. John Gubbins was friend of ours, prominent attorney in Chicago. He had cash flow problems and needed to pay his rent and expenses. We happened to have some cash at that time and Bob just loaned it to John. [32] Further, the evidence supports the fact that Ms. Murphy according to Mr. Wulkowicz likely would have discussed this issue with Mr. Gubbins’ wife and that Mrs. Gubbins would have (erroneously) referred to the transaction as loan. Robert Wulkowicz, Cross-Examination Q. Well that’s my question, did you expect at that time that it would have been paid back? A. had never characterized it as loan, and the reason that Martha says it that way is because John Gubbins explained it to his wife as loan. [33] In this light, it is not palpable and overriding error for the judge to infer that Ms. Murphy was friend of Mrs. Gubbins and that she [Ms. Murphy] knew that the rent was being paid by the husband [Mr. Wulkowicz]. [34] In any event there was ample evidence for the judge to justify his conclusion that this transfer was gift and not loan. refer to the following evidence tendered by Mr. Wulkowicz: certainly told Martha, she certainly knew about it. It is none of her business what chose to do with my money then. We were not married. We were living together, but she had no right to my assets or even to any sense that she could direct me in the use of my assets. gave him that money. It was not loan. did it for specific reason. John Gubbins later went under, got disbarred, and lives in Wisconsin, which think is an ugly, ugly way, but certainly an understandable way about how bureaucracies deal with distressing intruders. [35] see no reversible error in these circumstances. The Appellant’s Personal Belongings [36] Both parties agree on one thing. Mr. Wulkowicz arranged to have their personal belongings stored in two large trailers and shipped to Nova Scotia. For the past several years the trailers have been locked and Mr. Wulkowicz has had the key. Before us Mr. Wulkowicz acknowledged Ms. Murphy’s right to access these items forthwith, although he asserted that they first had to be moved from her “home property” to his “camp property”. would direct that she be given immediate unconditional access. In other words, these trailers shall be unlocked while at their present location and Ms. Murphy shall be entitled to secure her personal belongings forthwith. Other Alleged Errors [37] Ms. Murphy asserts that the judge offered too much assistance to Mr. Wulkowicz as a self-represented litigant. I disagree. It is difficult for judge to conduct trial when one of the parties is self-represented. Two competing interests must be balanced. First the judge obviously cannot be an advocate for party. At the same time the trial must be run as efficiently and fairly as possible. This may require the judge to offer guidance to self-represented party. The appropriate balance falls within the judge’s discretion. See R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.). In this context I conclude that the judge in guiding Mr. Wulkowicz did no more than was necessary to ensure that the trial proceeded fairly and efficiently. The judge did not act as Mr. Wulkowicz’s advocate. [38] Finally Ms. Murphy submits that the judgment was filed beyond the six month deadline prescribed in s. 34(d) of the Judicature Act, R.S.N.S. (1989) c. 240. The judgment, dated September 4, 2003, was given within six months of March 4, 2003 when the final written submissions were filed. Section 34(d) therefore has no application. [39] Except for Ms. Murphy’s claim to access her personal belongings, I would dismiss her appeal. The Respondent’s Grounds of Appeal [40] As earlier noted, Mr. Wulkowicz points to no error on the part of the trial judge. He simply seeks relief because he feels mistreated by Ms. Murphy throughout the trial and appeal process. There is no merit to any of this. His claim for health care would fall under spousal support and that was never pleaded or appealed. His claim to the “acreage property” has no merit. For reasons already provided, the judge committed no reversible error in distributing the Nova Scotia land as he did. Finally his claim for an easement over Ms. Murphy’s “home property” was never before the trial judge for consideration. It is not properly before us. I would dismiss his appeal. DISPOSITION [41] Aside from a direction that Ms. Murphy be given immediate access to her personal belongings, I would dismiss both the appeal and the cross-appeal in the circumstances without costs. MacDonald, C.J.N.S. Concurred in: Freeman, J.A. Fichaud, J.A.","The parties separated shortly after relocating from the United States to Nova Scotia. As part of the divorce, the Supreme Court ordered a division of assets. Both parties appealed the asset division; in the process, both parties sought to introduce fresh evidence. The wife also questioned the level of assistance offered by the trial judge to the husband who was self-represented at trial. Appeal and cross-appeal dismissed with the exception that the wife is to be given immediate access to her personal belongings; both applications to introduce fresh evidence dismissed; on the sparse record before him, the trial judge did not err in his division of assets and did not offer the husband unwarranted assistance as a self- represented litigant. Faced with two competing claims as to the amount of the proceeds of sale, if any, of one of the parties' properties, the trial judge committed no error in finding the amount owed to be half-way between the two claims and then setting it off against the amount owed to the other party.",c_2005nsca147.txt
260,"J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 424 Date: 2005 10 05 Docket: Q.B.G. No. 1275 of 2005 Judicial Centre: Regina IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH AND THE INHERENT SUPERVISORY JURISDICTION OF THE COURT BETWEEN: BRAD GALGER and THE WORKERS’ COMPENSATION BOARD OF SASKATCHEWAN Counsel: R.A. Nordal for the applicant W.P. Dale for the respondent FIAT CURRIE J. October 5, 2005 [1] On December 18, 2000 the medical review panel of the Workers’ Compensation Board of Saskatchewan decided that Brad Galger was not fit for employment. On January 20, 2005 the Board’s appeals committee upheld a 2004 decision of the Board’s case management division that Mr. Galger was fit for employment. [2] Mr. Galger says that the decisions of the Board’s case management division and appeals committee are contrary to s. 64(2) of The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1: 64(2) The decision of the majority of the members of the medical review panel is the decision of the panel and is binding upon the board and the worker. [3] Mr. Galger applies to the court for an order: (a) in the nature of certiorari quashing or setting aside the decisions that Mr. Galger was and is fit for employment; (b) as consequence, remitting the matter back to the medical review panel, if required; and (c) as consequence, in the nature of mandamus directing the Board to pay benefits to Mr. Galger in accordance with the decision of the medical review panel. [4] Although Mr. Galger has another avenue of appeal available to him within the workers’ compensation system, he takes the position that the impugned decisions were made without jurisdiction, so that there is no proper decision from which to appeal, leaving him with an application for judicial review as his only remedy. [5] The Board says that, on examination of the circumstances, the decisions are not contrary to s. 64(2), and that in any event Mr. Galger must exhaust his right to appeal before seeking judicial review. [6] Mr. Galger says that the return should include his counsel’s April 5, 2005 letter and the April 13, 2005 reply from the Board’s appeals committee. He argues that the April 13, 2005 letter is clarification of the Board’s position, and that it can be understood only by reference to the April 5, 2005 letter. [7] The April 5, 2005 letter from Mr. Galger’s counsel attaches letter from Mr. Galger’s doctor, and indicates that Mr. Galger is on surgical waiting list. The April 13, 2005 reply from the appeals committee advises that the committee is not changing its January 20, 2005 decision, because nothing in the April 5, 2005 correspondence changes the committee’s conclusion that Mr. Galger is fit for employment. [8] The Board takes the position that the letters are neither part of the impugned decisions nor part of the record. [9] The Board is correct. Rule 669 requires return that includes information up to and including the impugned decision and the reasons therefor. Such information has been provided in the return in this case. [10] The Board’s appeals committee did not create clarification or addendum to its decision or reasons by simply responding to the letter from Mr. Galger’s counsel. In that response there is no decision, and there is no expansion on the January 20, 2005 decision. [11] The return will not be amended to include the documents suggested by Mr. Galger. The panel’s decision [12] On December 18, 2000 the medical review panel issued certificate, the relevant parts of which provided that: (a) Mr. Galger was not fit for employment; and (b) “after proper surgical treatment and surgical fusion it is hoped that the permanent functional impairment will be minimal”. [13] On August 13, 2001 the medical review panel issued an “additional clarification” to its earlier decision. The clarification states: 1) If surgery is booked or planned it should be expedited then functional capacity evaluation should follow his post surgical rehabilitation period. 2) If Mr. Galger wants surgery and it is not planned the panel urges an immediate surgical consultation. 3) If Mr. Galger refuses the recommended surgery (as per the medical review panel certificate of December 18, 2000) then the functional capacity evaluation should proceed to determine his fitness for employment and further evaluation would be required. The Board’s actions [14] Following delivery of the medical review panel’s December 18, 2000 certificate, the Board began to develop the view that Mr. Galger might be fit for employment after all. The Board thought this because Mr. Galger actually was working full-time at the time of the panel’s review. [15] The Board, through its case management division, eventually asked Mr. Galger to undergo functional capacity evaluation, and Mr. Galger did so in May 2003. Following completion of the functional capacity evaluation the case management division evaluated Mr. Galger’s claim, and the division concluded in April 2004 that Mr. Galger was fit for employment. [16] Effective July 1, 2004 the division reduced Mr. Galger’s benefits. That led to Mr. Galger’s appeal to the Board’s appeals committee. In its January 20, 2005 decision the appeals committee upheld the determination that Mr. Galger was fit for employment. This decision has led Mr. Galger to apply for judicial review of both the decision of the case management division and decision of the appeals committee. [17] It is not necessary for me to address Mr. Galger’s argument on the issue of jurisdiction because, however that issue might be determined, his application is determined on the issue of the availability of relief in the nature of certiorari. Availability of relief in the nature of certiorari [18] Mr. Galger acknowledges that he has available further right of appeal in the workers’ compensation system. He may appeal from the decision of the appeals committee to the Board members. [19] Such circumstance was addressed by the Saskatchewan Court of Appeal in Bayne No. 371 (Rural Municipality) v. Saskatchewan Water Corp. (1990), 1990 CanLII 7675 (SK CA), 90 Sask. R. 102. Referring to the Supreme Court of Canada decision in Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] S.C.R. 561, Cameron, J.A. said at paras. [9] We indicated that we were, of course, bound by the statements of principle found in the majority decision in Harelkin’s case. Mr. Justice Beetz, speaking for the majority expressed three opinions of particular significance to the matter at hand. [10] The first had to do with whether, in principle, certiorari goes as of right or grace, even in cases entailing lack of jurisdiction. He said this (at pp. 574-576): “The principle that certiorari and mandamus are discretionary remedies by nature cannot be disputed. The principle was recently affirmed in unanimous decision of this Court, P.P.G. Industries Canada Ltd. v. The Attorney General of Canada, 1975 CanLII 204 (SCC), [1976] S.C.R. 739 at p. 749 ... “The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on contradiction and imports great deal of confusion into the law. “Ex debito justitiae literally means ‘as of right’, by opposition to ‘as of grace’ (P.G. Osborne, Concise Law Dictionary, 5th ed.; Black’s Law Dictionary, 4th ed.); writ cannot at once be writ of grace and writ of right. To say in case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit latin, has no magic virtue and cannot change writ of grace into writ or right or destroy the discretion even in cases involving lack of jurisdiction.” [11] The second concerned whether, conceptually, an order which is nullity might nevertheless be appealed, depending on the scope and effect of the appeal provisions bearing on that issue. Of this Mr. Justice Beetz said (at p. 586): “Furthermore, and even if it can be said that the decision of the council committee was nullity, believe it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null ... Prov. Sec. P.E.I. Egan, 1941 CanLII (SCC), [1941] S.C.R. 396; 76 C.C.C. 227; [1941] D.L.R. 305 ...” [12] The third of the opinions of particular significance to the instant case centred on whether the right of appeal there in issue “constituted an adequate alternative remedy”. Mr. Justice Beetz suggested that that question be addressed with reference, among other considerations, to the nature of the complaint and the right of appeal; the composition, powers and duties of the appellate body; the manner in which it was apt to exercise its powers; and the comparative expedition and cost of proceeding by way of appeal rather than alternatively. [13] In light of the foregoing, we took Harelkin’s case as standing for the following propositions: 1. Certiorari remains “a writ of grace” to grant or withhold as, in the discretion of the court, circumstances suggest. 2. If in the circumstances right of appeal of sufficient scope and appropriate effect exists, then an order, even though it be nullity, is nevertheless appealable. 3. If the right of appeal provides an “adequate alternative remedy”, having regard for the considerations bearing upon that matter, the residual discretion in the court will ordinarily be exercised in denial of certiorari. Only if “special circumstances” are present will the courts then exercise their prerogative power and quash on certiorari. [20] When person has an adequate alternative remedy available that he or she has not pursued, relief in the nature of certiorari is not available to that person except in special circumstances: Bayne at para. 13. Mr. Galger has available to him further right of appeal that he has not pursued. [21] He argues, though, that the decisions that he is fit for employment were made without jurisdiction, so that there is no proper decision from which to appeal. In effect, he argues that each of the decisions of the case management division and of the appeals committee is nullity, depriving Mr. Galger of an adequate alternative remedy. As discussed in Bayne at paras. 11 and 13, however, even if the decision is nullity it still can be appealed. [22] If the appeal available to Mr. Galger in the workers’ compensation system is an adequate alternative remedy, then in the absence of special circumstances he must attempt to have the alleged error of fact remedied through appeal before resorting to judicial review. Adequate alternative remedy [23] The right of appeal from the appeals committee to the Board members does provide Mr. Galger with an adequate alternative remedy. The power of the Board to delegate its powers, and to provide for review of decisions made under the Act, stems from ss. 19, 21-24 and 104(1): 19 Subject to subsection 21.1(4), the board shall sit at any time and conduct its proceedings in any manner that it considers advisable for the conduct of its business and affairs. 21(1) The board may delegate any of its powers or functions to any of its staff and any employer or worker affected by any act of person in the exercise of any delegated power may apply to the board to review, set aside, amend, stay or otherwise deal with the act of that person. (2) The board may, upon an application under subsection (1) or of its own motion, exercise its powers and perform its functions with respect to the delegated power in issue as if the person had not acted in that manner. 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board (2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. (3) Notwithstanding subsection (2), the board may reconsider any matter that it has dealt with or may rescind, alter or amend any decision or order it has made. 23 The board shall have the same powers as the Court of Queen’s Bench for compelling the attendance of witnesses and examining them under oath, and compelling the production of books, papers, documents and things. 24 The board may cause depositions of witnesses residing within or outside the province to be taken before any person appointed by the board, in manner similar to that prescribed in The Queen’s Bench Rules for the taking of those depositions. 104(1) Any weekly or other periodical payment to worker or dependent spouse of worker payable out of the fund may be reviewed on the motion of the board or at the request of the worker, dependent spouse or employer and, on that review, the board may terminate or diminish the payment or may increase the payment to sum not beyond the maximum compensation prescribed in this Act. [24] Under these provisions the Board has established its appeal process, including final right of appeal to the Board members. The Board has made information available to workers that describes the appeal process. That information includes: (a) Saskatchewan Workers’ Compensation Board policy no. POL 03/96, entitled “Appeals”; (b) Saskatchewan Workers’ Compensation Board policy no. POL 13/91 (amended by ADM03/2000), entitled “Reversing Decisions”; and (c) Saskatchewan Workers’ Compensation Board Fact Sheet, entitled “Appeals: how to have an injury claim decision reviewed”. [25] These materials establish that: (a) worker who disagrees with decision of the appeals committee may obtain “further review” by the Board members; (b) if requested by the worker, the Board review will include personal attendance by the worker; (c) in appeal proceedings worker may be represented; (d) there is no restriction of the subject matter of an appeal to the Board members; and (e) Board members will rule on an appeal with full written reasons. [26] The subject matter of an appeal to the Board members is not limited to points of law, and so on appeal the Board members would be able to consider Mr. Galger’s issue of fact. [27] In the case of the Board there is not, in either the Act or in the information made available by the Board, detailed recitation of procedures relating to an appeal to the Board’s members. Countering that absence, though, are the remarks of Sopinka, J. in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] S.C.R. 890 at pages 913-914: The composition, tenure, and powers of the Board demonstrate that it has very considerable expertise in dealing with all aspects of the workers’ compensation system. Not only does the Board have day-to-day expertise in handling claims for compensation, in setting assessment rates and promoting workplace safety; but it also has expertise in ensuring that the purposes of the Act are not defeated. As Wakeling J.A. commented at p. 301 in his dissenting reasons: [The Board members] are well equipped to draw on background of experience to determine how the Act will best function so as to assure continued consistent development of the intended purposes of the Act. have no reason to doubt they are well qualified to decide the various issues the legislation is designed to present them. [28] The legislature has chosen to establish the workers’ compensation system as an self-contained system, with no right of appeal to the courts beyond the final decision of the Board: s. 22(2). The legislature regarded this as sufficient in matters of workers’ compensation, likely because of the extensive system that it established in the Act. [29] Finally, especially in light of the comments of Sopinka, J. in Pasiechnyk, there is no reason to suppose that the Board members would not effectively deal with the issue raised by Mr. Galger. Conclusion [30] Whether or not each of the impugned decisions was made without jurisdiction and consequently is a nullity, Mr. Galger has an adequate alternative remedy available to him. No special circumstances, that might justify judicial intervention at this time, have been presented. An order in the nature of certiorari is not available to Mr. Galger because he has not yet pursued his right of appeal. [31] The application is dismissed. The parties may speak to costs. J. G.M. CURRIE","FIAT: In December 2000, the medical review panel of the Workers' Compensation Board of Saskatchewan decided that the applicant was not fit for work. On January 2005, the Board's appeals committee upheld a 2004 decision of the Board's case management division that the applicant was fit for employment. Although the applicant has another avenue of appeal available to him within the workers' compensation system, he takes the position that the impugned decisions were made without jurisdiction, so that there is no proper decision from which to appeal, leaving him with an application for judicial review as his only remedy. HELD: Whether or not the impugned decisions were made without jurisdiction and consequently are a nullity, the applicant has an adequate alternative remedy available to him. No special circumstances that might justify judicial intervention at this time have been presented. An order in the nature of certiorari is not available to him because he has not yet pursued his right of appeal. The application is dismissed.",d_2005skqb424.txt
261,"nan NOVA SCOTIA COURT OF APPEAL Citation: Workers’ Compensation Board of Nova Scotia v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2009 NSCA 123 Date: 20091204 Docket: CA 309638 Registry: Halifax Between: The Workers’ Compensation Board of Nova Scotia Workers’ Compensation Appeals Tribunal, Attorney General of Nova Scotia and Martin Kaye Respondents Judge: The Honourable Justice Oland Appeal Heard: November 25, 2009 Subject: Workers’ Compensation Act, s. 228 Chronic Pain Regulations, s. nan Summary: The Workers’ Compensation Board appealed the effective date of the chronic pain benefits awarded to a worker. That date has been found on the evidence to be earlier than November 26, 1992 which is set out in s. 228, one of the Act’s transitional provisions which deals with injuries between March 23, 1990 and February 1, 1996 (the “window period”). Issue: Does s. 228 of the Act limit the retroactive payment of chronic pain benefits stemming from injury within the window period? Result: Appeal dismissed. Section 228 has no application to payment of chronic pain benefits for injuries during the window period. Nor is entitlement under s. 9 of the Regulations restricted to an effective date of November 26, 1992. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of pages. NOVA SCOTIA COURT OF APPEAL Citation: Workers’ Compensation Board of Nova Scotia v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2009 NSCA 123 Date: 20091204 Docket: CA 309638 Registry: Halifax Between: The Workers’ Compensation Board of Nova Scotia Workers’ Compensation Appeals Tribunal, Attorney General of Nova Scotia and Martin Kaye Respondents Judges: Oland, Hamilton, Fichaud, JJ.A. Appeal Heard: November 25, 2009, in Halifax, Nova Scotia Held: Appeal is dismissed per reasons for judgment of Oland, J.A.; Hamilton and Fichaud, JJ.A. concurring. Counsel: Roderick H. Rogers and Paula Arab, for the appellant Workers’ Compensation Board of Nova Scotia Alexander MacIntosh, for the respondent Workers’ Compensation Appeals Tribunal Jane A. Spurr and D. William MacDonald, for the respondent Martin Kaye Reasons for judgment: [1] On June 19, 1990, while at work, the worker injured his lower back. On February 26, 2008 Board Adjudicator determined that he had chronic pain related to that injury. The worker was awarded three percent pain-related impairment, effective November 26, 1992. [2] In determining that effective date, the Board Adjudicator relied upon s. 228 of the Workers’ Compensation Act, S.N.S. 1994-95, c. 10 (the “Act”) which reads in part: 228 (1) Subject to subsection (2), where worker (a) was injured on or after March 23, 1990, and before the date this Part comes into force; (b) suffered permanent impairment as result of the injury; and (c) at the date this Part comes into force, is receiving or is entitled to receive compensation for permanent partial disability or permanent total disability as result of the injury, the compensation awarded between March 23, 1990, and the date this Part comes into force is deemed to be and always to have been awarded in accordance with the former Act. (2) The Board shall recalculate the amount of compensation payable to the worker in accordance with Sections 34 to 58. (3) Where recalculation made pursuant to subsection (2) entitles the worker to greater award than the award the worker was receiving when this Part comes into force, the Board shall commence payment of the recalculated amount of compensation as of the latest of (a) the date on which the Board determines the worker has permanent impairment, whether pursuant to Section 34 or the former Act; (b) the date on which the worker completes rehabilitation program pursuant to Sections 112 and 113, where the worker is engaged in rehabilitation program on or after the date the Board determines the worker has permanent impairment pursuant to Section 34; or (c) November 26, 1992. (5) For greater certainty, nothing in this Section entitles any person to compensation for period prior to November 26, 1992. [Emphasis added.] [3] The worker’s appeal of the Board Adjudicator’s decision to Hearing Officer was denied. The worker then appealed to the Workers’ Compensation Appeals Tribunal (“WCAT”). [4] In decision dated March 9, 2009 and reported as WCAT #2008-424-AD, WCAT increased the pain-related impairment to six percent. It also determined that s. 228 did not restrict the worker’s entitlement to chronic pain benefits to an effective date of November 26, 1992, and found that the evidence warranted an effective date of October 1, 1990. The Workers’ Compensation Board (the “Board”) appeals. [5] The issue on appeal is narrow: does s. 228 of the Act limit the retroactive payment of chronic pain benefits stemming from injury between March 23, 1990 and February 1, 1996 to November 26, 1992? [6] The issue on appeal involves question of law and the interpretation of statutory provision with no specialized technical meaning, for which the standard of review is correctness. [7] In its decision, WCAT summarized the history of the jurisprudence and legislation which gave rise to the transitional provisions in the Act. These include s. 228 which pertains to injuries which occurred in the so-called window period between March 23, 1990, when this court’s decision in Hayden v. Workers’ Compensation Appeal Board (N.S.) (1990), 1990 CanLII 2423 (NS CA), 96, N.S.R. (2d) 108 was released, and February 1, 1996, when the current Act came into force. Payment of any permanent compensation was suspended after the decision until the Board started compensating workers through an interim loss policy effective November 26, 1992 which was later amended. The policy was temporary with compensation to be recalculated when the final earnings loss policies were adopted. [8] The Chronic Pain Regulations did not come into effect until 2004. Section pertains to chronic pain for injuries during the window period: Original compensable injury on or after March 23, 1990 nan If worker’s original compensable injury occurred on or after March 23, 1990, and the worker is found to have pain-related impairment, (a) the worker’s permanent benefit will be calculated in accordance with Sections 34 to 48 of the Act; and (b) the worker may be eligible to receive an extended earnings-replacement benefit. [9] After reviewing these provisions and submissions on behalf of the worker and the Board, WCAT concluded: agree with the Worker’s Advisor that his benefits should be determined by the Chronic Pain Regulations, and that s. 228 has no bearing on his entitlement to chronic pain compensation. There is no issue of recalculation here, which is the stated purpose of this section. The November 26, 1992 date, chosen by the Board as the effective date of the Worker’s pain-related impairment, is one choices (sic) under that section for when the recalculated award is to take effect. As there is no recalculation in this case, s. 228 does not apply. [10] Having carefully considered the written and oral submissions presented by counsel for the Board and the worker, am of the view that WCAT’s reasoning and determination satisfy the standard of review of correctness. [11] Section 228 as worded sets out recalculation mechanism for addressing how and when payments to workers injured within the window period would be calculated under the new Act. Counsel for the Board acknowledges that in order for its appeal to succeed, it must show that entitlement to chronic pain benefits involves recalculation within the meaning of s. 228. am not persuaded that it does. When the new Act came into effect in February 1996, chronic pain was not compensable. There was no entitlement whatsoever for benefits for chronic pain prior to the Chronic Pain Regulations in 2004. Hence, there could be no benefit which would be recalculated. Section 228 has no application to payment of chronic pain benefits for injuries during the window period. Nor is entitlement under s. 9 of the Chronic Pain Regulations restricted to an effective date of November 26, 1992. There is no authority which prevents the payment of benefits for chronic pain for period prior to that date. [12] I would dismiss the appeal. Oland, J.A. Concurring: Hamilton, J.A. Fichaud, J.A.","The Workers' Compensation Board appealed the effective date of the chronic pain benefits awarded to a worker. That date had been found on the evidence to be prior to November 2, 1992, which was the date set out in the legislation's transitional provisions (s. 228) dealing with injuries suffered during the 'window period.' appeal dismissed; s. 228 has no application to the payment of chronic pain benefits for injuries during the window period as no recalculation of benefits is involved; nor is entitlement under s. 9 of the regulations restricted to an effective date of November 26, 1992.",e_2009nsca123.txt
262,"J. 2000 SKQB 340 Q.B.G. A.D. 1999 No. 170 J.C.M. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: DANIEL HURD and MEDICAL SERVICES INCORPORATED DEFENDANT Grant Carson for the plaintiff Richard K. Gabruch for the defendant JUDGMENT DIELSCHNEIDER J. July 27, 2000 [1] The plaintiff, Daniel Hurd, purchased medical insurance policy from the defendant, Medical Services Incorporated (MSI), for the period of time he expected to reside in Chicago, Illinois, U.S.A. pursuing studies in optometry. The policy was in effect for the period commencing August 1, 1997 and ending July 31, 1998 and provided coverage to Hurd except for those periods when he was in Saskatchewan. [2] Hurd ordinarily resided with his parents at Melfort, Saskatchewan. While home from Chicago during study break Hurd had an accident while water-skiing following which he experienced chest pains. On August 3, 1997 he consulted Dr. Nelson at Melfort who believed he had strained muscle. When the pain persisted, Hurd, on August 8, 1997, saw the family’s doctor, Dr. Lionel Lavoie. After x-ray, Dr. Lavoie determined that Hurd had pneumothorax, collapsed lung, which he associated with the events of water-skiing engaged in by Hurd, and he referred him to Dr. S.C. Kanthan at the Royal University Hospital in Saskatoon. [3] Dr. Kanthan resolved the pneumothorax by performing thoracostomy, procedure whereby tube is placed into the pleural cavity, the chest area where escaped air is collecting. The tube drains the air and allows the lung to re-inflate. When Dr. Kanthan removed the tube the lung collapsed second time whereupon the procedure was repeated, successfully so. [4] On August 11, 1997, Dr. Kanthan discharged Hurd from hospital and reported to Dr. Lavoie that the pneumothorax was resolved and that follow-up treatment was not necessary. [5] On August 12, 1997, Hurd returned to Chicago to continue his studies. [6] On February 6, 1998, while in class, Hurd experienced discomfort in his chest. Four days later, on February 10, 1998, he had friend drive him to emergency at Mercy Hospital in Chicago. Emergency personnel diagnosed pneumothorax and hospitalized him referring his case to Dr. Craig Adams. [7] Dr. Adams confirmed the diagnosis. He expressed to Hurd his belief that the cause of his condition was bleb which required surgery. bleb is bubble-like structure which develops when there is coalescence of air sacs in the lung. [8] Dr. Adams advised immediate surgery. [9] Two, perhaps three, events combined to postpone the “immediate” surgery to February 24, 1998. Hurd was then writing final examinations and wanted to complete them. On February 12, 1998, when Hurd learned that Medex, the agency representing MSI in the U.S.A., was refusing to authorize payment, Hurd became concerned and contacted MSI in Saskatoon and his parents and Dr. Lavoie in Melfort concerning his position. And thirdly, hospital scheduling had to be taken into account. [10] In any event Dr. Adams agreed to postpone the surgery but subject to conditions. Hurd was never to be alone. He was not to drive an automobile. He was to remain within fifteen minutes travelling time from Mercy Hospital. And he would immediately return to emergency if the symptoms became more severe. [11] On February 24, 1998, the surgery proceeded. Dr. Adams performed thoracotomy with bleb resection, procedure that involved opening up the chest cavity to permit stapling of the offending bleb. [12] The cost to Hurd for the surgery was $26,864.46. MSI rejects Hurd’s claim for reimbursement on two grounds. MSI states that Hurd should have returned to Saskatchewan for the surgery and that, in any event, Hurd’s condition pre-existed purchase of the insurance policy and was not covered thereby. [13] The questions raised by MSI in defending Hurd’s claim are therefore essentially two. Was the surgery necessarily performed in Chicago or could it have been postponed and performed later in Saskatoon? Even if necessary, was the bleb pre-existing condition which in any event exempted MSI from payment under the policy? [14] The medical reports on Hurd’s condition agree that surgery was necessary. There is also substantial agreement that the surgery could be postponed for time. But there is disagreement over the length of any postponement, or the patient’s ability to travel home to Saskatchewan given the circumstances of collapsed lung and the suspected but unconfirmed existence of bleb. [15] Dr. Adams, as Hurd’s attending physician, was adamant that travel was not possibility. His report is dated April 10, 1998: It was medically necessary to perform the surgery in Chicago since Mr. Hurd was firstly symptomatic with pleuritic chest pain and dyspnea on exertion and secondly, at risk of developing tension pneumothorax if subjected to air transportation or pneumothorax becoming larger due to the delay of prolonged ground transportation back home to Canada. Delaying surgery until the patient returned back to Canada could place Mr. Hurd’s life in jeopardy and not be standard of care for treatment of recurrent pneumothorax. [16] have reviewed the medical evidence filed by MSI expressing views contrary to those of Dr. Adams. accept the evidence of Dr. Adams as definitive. do so because he was the attending physician who examined Hurd during his illness. conclude from his report that the surgery was necessary and that it was necessarily performed in Chicago at the time in question. [17] turn then to discussion as to whether the terms of insurance exempted MSI from payment because Hurd could have returned to Saskatchewan. [18] Section IV of the policy is entitled Terms and Conditions and the portion thereof relied upon by MSI in support of one of its reasons for non-payment reads: BLUE CROSS, in consultation with the attending physician, reserves the right to return the patient to Saskatchewan. If any covered person chooses not to return and is, on medical evidence, able to return to Canada following the diagnosis of or the emergency treatment for medical condition which requires continuing medical services or surgery performed outside of Canada, the expense will not be covered by this Policy. Coverage under this Policy will cease and refund of the unused portion of the coverage will be available on request. [19] It is the position of MSI that this clause must be read in conjunction with the following clause set out in Section of the policy under the heading Exclusions and Limitations: The following services are expressly excluded from coverage under this Policy: (Applicable to all sections of this Policy). Any treatment or surgery not required for the immediate relief of acute pain and suffering, or treatment or surgery which could reasonably have been delayed until the Subscriber returned to Saskatchewan, or any treatment or surgery which the Insured elects to have rendered or performed outside of Saskatchewan following emergency treatment or diagnosis outside of Saskatchewan, unless the medical condition reasonably prevented the Insured from returning to Saskatchewan prior to such treatment or surgery. [20] Accepting as I do the evidence of Dr. Adams that travel was dangerous and put Hurd’s life in jeopardy, I find that Hurd was unable to return to Saskatchewan for surgery. conclude therefore that neither of the quoted terms can be construed to relieve MSI of its obligation to pay. [21] turn now to discuss whether the terms of insurance exempt MSI from payment because of condition pre-existing the effective date of the policy. [22] The relevant portions of the policy appear in Section V: The following services are expressly excluded from coverage under this Policy: (Applicable to all sections of this Policy). Services required as result of pre-existing condition. pre-existing condition is any condition which licensed physician was consulted or for which treatment or medication was received prior to the effective date of this insurance. [23] The question must decide is whether the exclusionary clause relied upon by MSI exempted it from liability for payment of Hurd’s claim. Setting aside for the moment the question of the “effective date” of the policy, ask myself whether there is clear evidence of “pre-existing condition” to bring Hurd within the operation of the exclusionary clause. [24] On the medical evidence of this case, two qualified physicians, Dr. Lavoie and Dr. Kanthan, both licensed as the clause under consideration requires, treated Hurd for pneumothorax and sent him on his way to Chicago to continue his studies. Neither doctor detected or made mention that they even suspected bleb as the underlying cause of Hurd’s condition. After restoring the collapsed lung Dr. Kanthan specifically reported that follow-up was not necessary. [25] In February 1998 however, after his initial examination of Hurd, Dr. Adams explained to him, as is reported in paras. 11 and 12 of Hurd’s affidavit, that the previous pneumothorax which was thought to have resulted from the skiing mishap was actually the symptom of an underlying condition, condition which remained undiscovered until there was recurrence. Dr. Adams then went on to express his belief, which he thought surgery would confirm, that the bleb could have existed from birth. In fact subsequent surgery confirmed the diagnosis. [26] The question therefore is whether the drafter of the policy intended as pre-existing condition which two physicians did not detect, and did not treat, or prescribe medication for; condition which Dr. Adams said could not be diagnosed until there was recurrence. rely for guidance on the judgment of Trainor J. in Hoult Estate v. First Canadian Insurance Corp. (1994), 25 C.C.L.I. (2d) 255 at pp. 259-60: In Privest Properties Ltd. v. Foundation Co. of Canada, Vancouver Registry C884875, 28 June 1991 [reported at 1991 CanLII 2346 (BC SC), C.C.L.I. (2d) 23 (S.C.)], Drost J. referred with approval to Couch on Insurance and said at p. 19 [p. 38, C.C.L.I.], It has been said that the general principles of insurance policy interpretation are 1. the objective in construing the policies’ coverage of liability must be to give effect to the policies’ dominant purpose of indemnity; 2. ambiguity in an insurance contract must be construed in favour of the insured; 3. the court should ordinarily strive to give effect to the objectively reasonable expectations of the insured. [27] I conclude therefore that the definition of a “pre-existing condition” is not clear and does not operate to relieve MSI of its obligation under the policy to extend to Hurd the benefits for which he sues in this action. [28] The final consideration concerns the “effective date” of the policy referred to in the exclusionary clause. As said in opening, the policy under review was in effect from August 1, 1997 to July 31, 1998. The strongest and clearest evidence of this is provided in letter dated August 26, 1997 by Colin Wrishko, MSI’s director, to Hurd’s mother in response to her request for confirmation of the period of time through which her son would have medical coverage while out of the province. This letter was written after Hurd experienced the pneumothorax and, perhaps more importantly after Wrishko was informed about it. If, as Wrishko now claims, Hurd was excluded from coverage because of the August experience, he did not raise it as an issue. attach no significance to what he now says. [29] In summary conclude that MSI insured Hurd for medical services required by him while outside the province of Saskatchewan for the period from August 1, 1997 to July 31, 1998. find that during that period of time, in February 1998, Hurd required medical attention and surgery, necessarily performed in Chicago, for condition undetected earlier by qualified medical personnel and therefore not pre-existing condition as that term is defined in the policy. [30] The plaintiff will therefore have judgment for the sum of $26,864.46 prayed for in this action together with costs to be taxed.","The plaintiff purchased a medical insurance policy from MSI for the time he expected to reside in the USA pursuing studies. The policy did not cover the periods he would be in Saskatchewan where he ordinarily resided with his parents. The plaintiff suffered chest pain following a water-skiing accident in August 1997 in Saskatchewan and underwent a thoracostomy for a collapsed lung while in Saskatchewan. He underwent a further thoracotomy in February 1998 while in the USA. MSI denied coverage arguing the plaintiff should have postponed the operation and returned to Saskatchewan for the surgery and that, in any event, the condition pre-existed the purchase of the insurance policy. The medical reports agreed that surgery was necessary. They also agreed it could be postponed for a time but there was disagreement over the length of any postponement or the patient's ability to travel home given the circumstance of a collapsed lung and the suspected but unconfirmed existence of a bleb. HELD: The plaintiff was awarded $26,864.46 plus costs, to be taxed. 1)The evidence that travel was dangerous and put the plaintiff's life in jeopardy was accepted. Therefore the plaintiff was unable to return to Saskatchewan for the surgery. 2)The exclusionary clause did not exempt MSI from liability for payment. The definition of a 'pre-existing condition' is not clear and does not operate to relieve MSI of its obligation under the policy to extend the benefits in question. The policy was in effect from August 1, 1997 to July 31, 1998. It was not raised in a letter confirming the dates of his coverage sent after the plaintiff had experienced the pneumothorax of which MSI had been informed.",4_2000skqb340.txt
263,"J. Q.B. A.D. 1994 No. 1531 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GARY SEMENCHUCK and CHRISTIAN RUHR and SASKATCHEWAN GOVERNMENT INSURANCE DEFENDANTS Michael T. Megaw for the plaintiff Michele T. Klebuc-Simes for the defendants JUDGMENT DAWSON J. August 9, 1996 This is a claim for damages to the plaintiff's leasedautomobile arising out of an accident on May 11, 1993. The action has been abandoned as against the defendant Ruhr, and is continued by the plaintiff against the insurer, Saskatchewan Government Insurance. FACTS On May 11, 1993, vehicle (hereinafter referred to as the BMW) leased to Gary Semenchuck (the ""plaintiff""), was struck from behind by vehicle owned and operated by the defendant, Christian Ruhr. Mr. Ruhr was solely liable for the accident. The BMW was damaged as result of the automobile accident. The BMW was leased to the plaintiff from Crestview Chrysler Dodge Ltd. (""Crestview"") pursuant to standard lease agreement. Pursuant to the terms of the lease agreement, the vehicle was to be registered in the name of Crestview. The certificate of registration for the BMW was issued to Crestview. The plaintiff was listed as the ""secondary name"" on the registration. After the accident, the plaintiff took the BMW to Saskatchewan Government Insurance (""SGI"") Claims Centre and an SGI adjuster appraised the damage to the BMW. The plaintiff then took the vehicle to Woodcrest Motors Inc. (""Woodcrest"") for repairs. Woodcrest is the BMW dealership affiliated with Crestview. The vehicle was ultimately repaired by the Crestview automobile repair shop, with the parts being purchased from Woodcrest. During the course of repairing the vehicle, Crestview discovered damage to the BMW's exhaust system which had not been assessed by SGI. Crestview contacted SGI and roving SGI appraiser attended to the autobody shop and reappraised the BMW. The appraiser determined that the entire exhaust system required replacement. SGI reassessed the claim to include damages for the replacement of the exhaust system. The actual replacement cost of the exhaust system was $2,518.66. However, SGI deducted from the replacement cost, 20% for depreciation or ""betterment"". The 20% deduction for depreciation amounted to $503.73. After the damage to the vehicle was reassessed, the Crestview repair shop completed the repairs to the exhaust system. Neither SGI, Woodcrest nor Crestview advised the plaintiff before the repairs were undertaken that 20% was being deducted for depreciation. The plaintiff was not aware of the 20% deduction for depreciation until he attended to Woodcrest to pick up the vehicle. The repairs were complete at that time. The manager of the Crestview repair shop signed the ""certification of repairs"", authorizing SGI to pay the cost of repairs to the repairer. This document is normally signed by the registered owner (or owner's agent) of the vehicle. SGI paid the Crestview repair shop $2,014.93 for the repairs. This left the $503.73 (the amount deducted for depreciation) owing to the Crestview repair shop for the repairs. Crestview billed the plaintiff for this amount and the plaintiff paid the $503.73 to Crestview. The plaintiff brings this actionfor reimbursement of the $503.73 deducted for depreciation. The plaintiff argues that SGI elected to repair or replace theexhaust system under statutory condition 8(4) of s. 39 of TheAutomobile Accident Insurance Act, R.S.S. 1978, c. A-35, asam. (the ""Act""). The plaintiff argues that SGI, having elected to repair, is responsible for the entire repair and is not entitled to deduction for depreciation. SGI takes the position that as Crestview was the registered owner of the vehicle the plaintiff is not entitled to bring this action as he is not the ""insured"" within the meaning of the Act. Further, SGI takes the position that Crestview authorized the repairs and acknowledged the 20% depreciation deduction, and that it did so as the registered owner. SGI denies that it elected to repair or replace the exhaust system within the meaning of statutory condition 8(4). SGI states that if the plaintiff paid the $503.73 to Crestview for the depreciation, he did so under his private lease contract with Crestview, for which SGI cannot be held responsible. In addition, SGI argues that it is entitled to deduct for depreciation in any event. 1. Did SGI elect to repair or replace the BMW under statutory condition 8(4) of s. 39 of the Act? 2. Is SGI estopped from claiming that the plaintiff is responsible for the depreciation? 3. Is depreciation to be deducted under Part III of the 4. Does the plaintiff, Gary Semenchuck, as the lessee of vehicle registered to Crestview have cause of action against SGI under the terms of Part III of the Act? STATUTE The relevant portions of the Act are: In this Act: (f) ""comprehensive insurance"" means the obligation of the insurer pursuant to Part III to pay insurance money to an insured in the event of loss of or damage to vehicle; (p) ""insured"" includes: (ii) person to whom insurance money is payable pursuant to Part III (q) ""insurer"" means Saskatchewan Government Insurance 37 In this Part ""insured"" means person to whom insurance money is payable in the event of loss of or damage to vehicle resulting from one of the perils mentioned in section 38. 38(1) Subject to this Act, an owner's certificate shall further insure the person named therein in the amounts hereinafter specified against direct and accidental loss of or damage to the vehicle designated therein, including its equipment, occurring in Canada, or in the United States of America, or upon vessel plying between ports thereof, from any peril. 39 Comprehensive insurance in respect of any vehicle shall be subject to the following statutory conditions: 8(1) The insurer is not liable beyond the lesser of: (a) the actual cash value of the vehicle or any part or item of equipment of the vehicle, as the case may be, at the time of the loss or damage, with proper deduction for depreciation; and (b) the maximum value of the vehicle or any part or item of equipment of the vehicle, as the case may be, fixed by the regulations. (2) The actual cash value shall in no event exceed what it would cost to repair or replace the vehicle or any part or item of equipment of the vehicle, as the case may be, with material of like kind and quality. (4) Instead of making payment in accordance with subsection (1), the insurer may, within reasonable time after receipt of the proofs of loss, elect to: (a) repair or rebuild; or (b) replace with other property of like kind and quality; the property damaged or lost. (5) Subsection (4) of this statutory condition does not apply where there has been an appraisal in accordance with statutory condition 9. 10 Neither the insurer nor the insured shall be deemed to have waived any term or condition of this Part by any act relating to the appraisal or to the delivery and completion of proofs of loss, or to the investigation or adjustment of the 77 No term or condition of this Act shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by an officer of the insurer. 1. Did SGI elect to repair or replace the BMW under statutory condition 8(4) of s. 39 of the Act? Statutory condition 8(1) of s. 39 of the Act outlines the extent of SGI's liability. Statutory condition 8(1) provides that SGI is not liable beyond the lesser of the actual cash value of the exhaust system before the accident (with proper deduction for depreciation) and the maximum value of the exhaust system as fixed by regulations. By statutory condition 8(2), the actual cash value of the exhaust system is not to exceed the cost to repair or replace the exhaust system. To this point, the statutory scheme is quite clear. MacLeod J., in Niefer v. Saskatchewan Government Insurance and Magnuson (1983), 1983 CanLII 2032 (SK QB), 22 Sask. R. 246 (Q.B.), concluded at p. 249 that statutory condition 8(1): [I]dentifies the limit of the insurer's liability for the damage. It is measurement of the plaintiff's benefit and the defendant's obligation. However, the clarity of this scheme is clouded by statutory condition 8(4) which adds an additional element to the statutory limits placed on the liability of the insurer. Statutory condition 8(4) states that SGI, instead of making payment under 8(1), (that is payment for the cash value of the exhaust system) may elect to repair or replace the vehicle with property of like kind and quality. The plaintiff herein argues that an election under statutory condition 8(4) amounts to an irrevocable decision to repair the vehicle, regardless of the cost of repairs. The plaintiff further argues that SGI has elected to repair the BMW, and is therefore liable for the entire cost of the repair, even if it exceeds the limit under statutory condition A. Election in General An examination of the definition of ""election"" indicates that an election is, at minimum, unfettered choosing between two or more alternative and mutually exclusive things or courses of action. For instance, Canadian Law Dictionary (Toronto: Barron's, 1983) defines election at p. 73, in part, as follows: Election The exercise of choice by an unrestrained will to take or do one thing or another. The obligation conferred upon person to choose between two inconsistent or alternative rights or claims. Cooper v. Canadian Northern Ontario Ry. Co. (1924), 55 O.L.R. 256 (S.C.). In case law, the legal definition or explanation of an election often relates to specific topic such as an accused's right to elect the mode of trial or plaintiff's right to elect remedy. For example, Lord Blackburn in Scarf v. Jardine (1882), App. Cas. 345 (H.L.) explained the principle of election with regard to remedies as follows at pp. 360 and 361: The principle, take it, running through all the cases as to what is an election is this, that where party in his own mind has thought that he would choose one of two remedies, even though he has written it down on memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election. [Emphasis added] Lord Blackburn's words were adopted by Martin L.J. Adm. in the Canadian case Dagsland v. SS. ""Catala"", 1927 CanLII 377 (FC), [1927] D.L.R. 426 at 430 (Ex. Ct.). Also see North West Electric Company Limited and Rosen v. Switzerland General Insurance Company, Saskatchewan Mutual Insurance Company and Zurich Insurance Company, 1976 CanLII 927 (SK QB), [1976] W.W.R. 446 at 454 (Sask. Q.B.). In insurance law, the definition of an ""election"" has received its own treatment. B. Election under Insurance Law i. Election to Reinstate In the instant case, the plaintiff argues that the insurer has elected to repair the damaged motor vehicle pursuant to statutory condition 8(4) of s. 39 of the Act. In the language of insurance law, the plaintiff is arguing that the insurer has ""elected to reinstate"". E.R.H. Ivamy in General Principles of Insurance Law, 4th ed. (London: Butterworths, 1979), comments as follows on reinstatement under an insurance contract at pp. 486 and 487: The policy, however, usually contains in the appropriate branches of insurance, e.g. fire, burglary, plate glass, steam boilers and motor vehicle insurance, ""reinstatement clause"", which confers upon the insurers the option of making good the loss by reinstatement. The contract contained in the policy, nevertheless, remains contract [sic] pay sum of money, subject to the right of the insurers, if they think fit, to substitute different mode of discharging their liability. The clause is intended to benefit the insurers and to protect them from liability to pay the full pecuniary value of the loss, if the loss can be more cheaply made good otherwise. Hence, the assured cannot take advantage of the clause and insist upon reinstatement if the insurers do not elect to reinstate; nor on the other hand, can he prevent them from reinstating if they have elected to do so. [Emphasis added; footnotes omitted] Reinstatement clauses are included in insurance contracts for the benefit of the insurer. The benefit to the insurer is that reinstatement clause provides the insurer with an option to choose the least expensive means of complying with the insurance policy. The insurer's decision to either pay the insured or reinstate is the ""election"". Once the election is made, the insurer is bound by its election to either pay or reinstate. Indeed, Cannon J., for the majority in Maher v. Lumbermen's Mutual Casualty Company et al., 1932 CanLII 349 (SCC), [1932] D.L.R. 593 (S.C.C.), describes the effect of an election to reinstate as follows at pp. 600 and 601: The parties agreed that the insured would be indemnified, either in money or by reinstatement of the car. Respondents duly made the option to repair and the question is whether or not they have carried out this undertaking. Their sole liability would be for damages resulting from the breach of the second contract which superseded the policy. In Brown v. Royal Ins. Co., El. El. 853, 120 E.R. 1131, Lord Campbell, C.J., said (pp. 858-9):- ""The case stands as if the policy had been simply to reinstate the premises in case of fire; because, where contract provides for an election, the party making the election is in the same position as if he had originally contracted to do the act which he has elected to do."" The exercise of this option to repair the automobile, which the appellant was bound to accept, converted the original contract into new one on the part of the insurer to repair the car and restore it to its former condition. The contract to pay the loss was thus superseded by the contract to repair. The insured no longer had right of action under the policy; his sole remedy is upon the new or substituted contract. The court in North West Electric Company Limited came to the same conclusion wherein Disbery J. said at p. 456: The obligation of insurers to repair is not merely to lay out the insurance money in reinstatement as far as it will go, but to reinstate completely: MacGillivray, s. 1814. Thus if the gamble fails and the cost of reinstatement turns out to be greater than the actual cash value of the damage and loss, the insurers must pay the full cost without any contribution from the insured because by their election the insurance contract no longer remained contract to pay sum of money but became contract to reinstate the property insured: Ivamy, p. 407. Accordingly, the defendants having elected to repair the fire damage to the building and its contents, the monetary limitations of liability set forth in the policy for such losses, the actual cash value of the property damaged and destroyed, the co-insurance provisions and the amounts spent by the insurers have no relevance whatsoever with respect to such losses. The policy having in effect become contract to repair the defendants are liable to the plaintiff in damages for breach of contract for items of repair that have not been done or done negligently: Ivamy, p. 409; MacGillivray, ss. 1818-1820; Laverty, p. 314. Thus, the insurer's election to reinstate unilaterally creates new contract between the insurer and the insured. Once created, the insurer may not unilaterally revoke the new contract to reinstate. The issue next to be examined is how an insurer makes its election. E.R.H. Ivamy in General Principles of Insurance Law, discusses the method of election, at p. 488): The insurers may expressly notify the assured that they intend to exercise their option to reinstate the property insured, in which case no difficulty arises. At the same time, an express election is not necessary. There may be binding election by conduct, where the insurers have so conducted themselves as to mislead the assured into thinking that they intend to reinstate. Since, however, it would be unreasonable to expect that the insurers would elect to reinstate unless and until they had all the materials before them requisite for their guidence [sic] in deciding which of the two courses open to them would be more advantageous, no act by them for the purpose of ascertaining the extent of the loss or damage, or the cost of reinstatement, can fairly be considered an election under which they are bound to reinstate. It may, indeed, be made an express term of the policy that the insurers are not called upon to elect, unless and until they have obtained all such information, and all such plans and estimates as may be deemed necessary or expedient for the purpose. [Emphasis added; footnotes omitted] Similarly, MacGillivray Parkington on Insurance Law, 6th ed. (London: Sweet Maxwell, 1975), state as follows 1920. Notice of election. If the insurer wishes to reinstate he must give the assured unequivocal notice that he intends to exercise his option. If the policy does not stipulate period within which the notice must be given, it must be given within reasonable time to the assured or his agent having authority to receive such notice on his behalf. It is sometimes provided in the policy that the option to reinstate is conditional on giving notice within certain time of completion of proofs; it has been held that such clause refers to the formal preliminary proof of loss and not proof of loss before court or arbitrator. [Emphasis added; footnotes omitted] If there is not an express election to reinstate, it is often difficult to determine whether any specific conduct of the insurer constitutes an election. In MacGillivray Parkington on Insurance Law two divergent cases were noted at 1921 where the Court of Session examined an insurer's conduct to determine if it had elected: In Sutherland v. Sun Fire Office [(1852) 14 D. 775] stationer's premises and stock were insured and damaged by fire. Before any formal claim was made the defendant insurance company sent an expert to examine the premises and report on the damage. After formal claim was made the company made an offer of cash payment which was refused and subsequently an offer to refer the amount of damage to arbitration which was also declined by the assured. The company then said it would exercise its option to reinstate but the assured brought an action for money indemnity. It was held by the Court of Session that it was still open to the office to elect to reinstate. The Court of Session arrived at different conclusion, however, in Scottish Amicable Heritable Securities Association v. Northern Assurance Co. [(1883) 11 R. 287], where different incumbrancers (mortgagees) were insured with different insurance companies. After fire had occurred on August 1, 1881, there were prolonged negotiations for settlement. The prior incumbrancers claimed certain sum or reinstatement. The insurers took no notice of the alternative claim for reinstatement, but disputed the amount claimed, and they prepared minute of reference to arbitration on the question of damage; this minute was not, however, signed as the insurers insisted upon all the other insurers being made parties to the reference. On February 5, 1883, the assured raised their action for payment and for the first time the insurers offered to reinstate in their defence. It was held that the offer was too late since it was clear from the terms of the correspondence that the insurers had elected to settle in money for the loss covered by the policy and that the only difference between the parties was the amount payable which would be fixed by arbitration. [footnotes omitted] MacGillivray Parkington on Insurance Law go on to state 1922. In the light of these authorities it is not easy to lay down any general principles as to what conduct constitutes an election, since in each case it is question of fact. But court would be reluctant to hold that an insurer had exercised an election by conduct unless it was satisfied that the insurer had all the available information before him on which to decide which of the two courses was more advantageous to him. In particular, mere offer to settle by payment of certain sum of money will probably not of itself be an election to pay if that offer is refused; insurers would however be wise to state that any such offer was made without prejudice to their right to reinstate. [Footnotes omitted] Hutcheon J. in Lepin v. Unigard Mutual Insurance Company, [1976-1978] I.L.R. 265 (B.C.S.C.) also addressed the issue of whether an insurer's conduct constituted to an election to reinstate. In that case, building owned by the insured suffered fire and water damage. In order to prevent further damage from the elements, the insurer approved the construction of ""temporary permanent roof"". Hutcheon J. examined the facts to determine whether the insurer's conduct constituted an election to reinstate and stated at p. 269: The conclusion have reached on the evidence is that Lepin [the insured] was misled by the conduct of Unigard [the insurer] through its agents into thinking that Unigard intended to reinstate. However, earlier in the judgment, Hutcheon J. placed significant emphasis on the fact that ""the work was carried out on the instructions of Unigard."" In Lepin, the basis for finding an election to repair was the insurer's conduct as manifested by the insurer's control over the repairs and repairers. The conduct of an insurer may bind the insurer to specific course of action. In other words, where an insurer has conducted itself so as to mislead the insured to believe that the insurer intends to reinstate, the insurer is deemed to have elected to reinstate. In each case, whether or not the insured has elected is question of fact. However, two qualifications are placed on when an insurer's conduct will constitute an election to reinstate. First, reasonable insurer would not elect to reinstate unless it had all the information and materials necessary to choose the most advantageous course of action. Therefore, an insurer is not deemed to have elected until it has the necessary materials to make an informed decision. Second, where an insurer acts for the purpose of ascertaining the extent of loss or damage, or the cost of reinstatement, such acts are not considered an election under which the insurer is bound to reinstate. Herein, an election under statutory condition 8(4) of the Act amounts to an irrevocable decision to repair the vehicle, regardless of the cost of repairs. The effect of such provision is the same as reinstatement clause. C. Brown and J. Menezes, Insurance Law in Canada (Toronto: Carswell, 1982), support this contention wherein they state at 13:2:22. For automobile insurance, the Uniform Act provides in its statutory conditions that the insurer shall not be liable for more than ""the actual cash value"" at the time of loss. Further, proper deduction is to be made for depreciation. If the actual cash value exceeds the amount it would cost to repair or replace the automobile, then whichever of these latter amounts is appropriate in the circumstances is payable. Except where an appraisal has been made, the insurer may opt to repair, rebuild or replace the property damaged or lost although there is requirement that written notice of this intention be given within seven days of receipt of the proof of loss. This is only rarely done because of practical difficulties in satisfying the insured as to the quality of the replacement. When the insurer does elect to replace, new contract is established and the policy limits do not apply, making the insurer liable for the increased costs involved. [Footnotes omitted] Therefore, if SGI elected to repair the vehicle, it will be liable for the entire cost of the repair, whether it exceeds the limits in statutory condition 8(1) or 8(2). As stated, reinstatement clause is for the benefit of the insurer and if SGI wished to take advantage of the reinstatement it must give the insured unequivocal notice that it intended to exercise its option. On the evidence before me it cannot be said that SGI has expressly elected to reinstate. SGI did not expressly notify the plaintiff, nor Crestview that they intend to exercise their option to reinstate the BMW. However as stated earlier, an express election is not necessary. An insurer by its conduct may be deemed to have made an election to reinstate. The test, as used in Lepin, concentrates on whether or not the insurer's conduct ""misled"" the insured into thinking that the insurer would reinstate. Consequently, if SGI's actions in this matter can be said to have misled the plaintiff to believe that SGI had elected to repair the exhaust system, then SGI is deemed to have elected as such. The plaintiff says that SGI elected to repair when it issued the second appraisal and authorized Crestview to replace the exhaust system without the knowledge or involvement of the plaintiff. SGI on the other hand states it did not authorize Crestview to replace the exhaust system, but simply paid out to the repair shop cash payment under statutory condition 8(1). SGI did send out roving appraiser to determine the damage to the exhaust system, upon being notified by Crestview that there was damage which was not previously ascertained. Those acts are the acts which the plaintiff relies upon to substantiate the claim that SGI has elected to reinstate. Those acts, however, relate to ascertaining the extent of loss or damage to the vehicle. They do not constitute an election under which the insurer is bound to reinstate. As noted, where an insurer acts for the purpose of ascertaining the extent of loss or damage, or the cost of reinstatement, such acts are not considered an election. Further, the plaintiff suggests that SGI authorized Crestview to repair the exhaust system. However, there was no evidence of such authorization. It cannot be said that the work was carried out on the instructions of SGI. Crestview appears to have proceeded with the repairs on their own. In the Lepin case, one of the basis for finding an election to repair was the insurer's conduct as manifested by the insurer's control over the repairs and repairers. Again, here there is no evidence that SGI exercised any control over the repairs or the repairer. The roving appraiser appraisedthe damage, provided an appraisal which included the deductionfor depreciation and advised Crestview. Thereafter, Crestview repaired the vehicle without advising the plaintiff. Consequently, on the facts of this case, the insurer has neither expressly elected to reinstate, nor elected to reinstate by its conduct. 2. Is SGI estopped from claiming that the plaintiff is responsible for the depreciation? The plaintiff claims that SGI is estopped from claiming the depreciation, or has waived its right to claim that the plaintiff is responsible for the depreciation. The plaintiff argues that SGI, by it's conduct, has waived its right to limit its liability under statutory condition 8(1). i. Waiver and Estoppel Waiver and estoppel usually arise in insurance law in the context of disputes over coverage. That is, the insured alleges that the insurer has waived any deficiencies in the insured's claim or that the insurer is estopped from denying coverage to the insured. Although the case here does not involve total denial of liability, the reasoning remains applicable since an election under statutory condition 8(4) effectively increases the liability of SGI beyond the liability limits found in statutory condition 8(1). Therefore, the same principles that apply where an insurer seeks to avoid liability would apply where an insurer seeks to avoid additional liability. So, if the plaintiff can establish that SGI waived its right to limit its liability or estopped from doing so, SGI may be responsible for the total cost of replacement of the exhaust system. There is some confusion in insurance law as to whether ""waiver"" and ""estoppel"" are synonymous terms. C. Brown and J. Menezes in their treatise Insurance Law in Canada explain the confusion surrounding ""waiver"" and ""estoppel"" in insurance law as follows at pp. 282 and 283: 14:1:2. Several essentially different concepts have been indiscriminately referred to under the rubric ""waiver and estoppel"". There is in fact distinct lack of consensus in the courts and among the writers as to whether waiver and estoppel are merely different aspects of single concept, or whether they relate to completely separate theories. The term ""estoppel"" is used rather freely and not always accurately in many areas of the law but particularly in insurance law. It is, however, relatively uncomplicated matter to establish the principles that make up the various estoppel doctrines. The same is not true for waiver. The identification of substantive doctrine of waiver in relation to insurance contracts is illusive. The wide use of the term makes sense only if ""waiver"" is considered to merely describe an effect that the operation of some clearly identifiable principle may have. Thus to say: ""the insurer has waived his right to terminate the policy"" means simply that circumstances have arisen whereby the insurer is prevented from denying claim by the insured notwithstanding some term in the policy appearing to give it that right. Clearly, to establish whether such proposition is supportable, it is necessary to determine whether the circumstances alleged fit some theory that the law clearly recognizes as having such an effect. In the result, it is essential to abandon the use of the term ""waiver"" as referring to some substantive doctrine. [Footnotes omitted] As stated in MacGillivray Parkington on Insurance Law at 911. The classic doctrine of estoppel requires (i) an unequivocal representation by word or conduct of present fact, which is (ii) made to someone expected to rely on it, who (iii) does rely upon it to his detriment. It is clear that in many cases where plea of waiver has succeeded, the court has not applied these strict conditions, and it is submitted that the doctrine of waiver of breach is really an application of the doctrine of election, namely that, once party has manifested his intention to forgo contractual right, either by express statement or by inference from conduct inconsistent with exercise of that right, he may not revoke that election later. [Footnotes omitted] The doctrine of waiver on the other hand is really the application of the doctrine of election. waiver of right or benefit is the opposite of an election of right or benefit. waiver is choice to relinquish whereas an election is choice to retain. Therefore, whether party has waived right or elected another right is matter of characterization. Usually the term ""waiver"" is used to refer to the insurer's waiver of an insured's default. But clearly, the concept of ""waiver"" in insurance law encompasses an election to pay or to reinstate. Hyndman J. for the court in Crump et al. v. McNeill et al., 1918 CanLII 696 (AB CA), [1919] W.W.R. 52 (Alta. S.C.), pronounced this definition of waiver at p. 57: Waiver is defined as the act of waiving, or not insisting on some right, claim or privilege; foregoing or giving up of some advantage, which but for such waiver, the party would have enjoyed; an election to dispense with something of value, the giving up, relinquishing, or surrendering some known right; an intentional relinquishment of known right, or such conduct as warrants an inference of the relinquishment or waiver of such right; waiver involves both knowledge and intention. It is distinguishable from estoppel inasmuch as estoppel may arise where there is no intent to mislead; it depends upon what one himself intends to do; estoppel depends rather upon what he caused his adversary to do; waiver involves the act and conduct of only one of the parties; estoppel involves the conduct of both. waiver does not necessarily imply that one has been misled to his prejudice or into an altered position; an estoppel always involves this element. [Emphasis added] Lamont J.A. in Western Canada Investment Company, Limited v. McDiarmid, 1922 CanLII 171 (SK CA), [1922] W.W.R. 257 (Sask. C.A.), defined ""waiver"" in comparable terms at p. 261: Waiver implies the abandonment of some right that can be exercised, or renouncement of some benefit or advantage which, but for such waiver, the party relinquishing would have enjoyed. To constitute waiver, two essential prerequisites are in general necessary. There must be knowledge of the existence of the right or privilege relinquished and of the possessor's right to enjoy it, and there must be clear intention of foregoing the exercise of such right. Martin C.J.S. defined waiver in identical terms in Canadian Acceptance Corp. Ltd. v. Fisher (1957), 10 D.L.R. (2d) 247 at 254 (Sask. C.A.). To constitute waiver of the right to elect, there must be the abandonment of some right that can be exercised, and the insurer must know of the existence of its right to elect, and the insurer must give clear intention of foregoing the exercise of the right. As stated in MacGillivray Parkinson on Insurance Law at 912: 912. Confusion has arisen, however, through the application of species of estoppel to achieve the same effect as waiver in cases of breach of contract. In recent years doctrine of ""estoppel by conduct"" has been developed, whereby party who has so conducted himself as to convey the impression to another that given state of affairs exists, cannot change his stance later. As applied to breaches of contract, it means that when one party represents to another who has committed breach of contract that the breach will be overlooked, he cannot later rely on it where that would be unjust to the other party. This principle is premised upon the desirability of fostering fair and consistent dealings between parties in contractual relationship. It is obvious that it is distinct from the notion of waiver, since in an appropriate case it would be right to allow the representor to change his mind, perhaps after notice, whereas an election is not revocable in that way. Estoppel by conduct is in truth very much closer to the modern doctrine of ""equitable estoppel,"" which in turn has much wider application than waiver of breaches of contract, and requires different facts to be established. It is submitted that the uncertainty attaching to the use of the word ""waiver"", in this context is the result of mistaken attempts to define it as species of estoppel, whereas it is in fact distinct doctrine. [Footnotes omitted] In treating estoppel and waiver as distinct doctrines, the first issue is whether SGI is estopped from claiming the depreciation. Here, the plaintiff argues that even though SGI made no representation to the plaintiff, it authorized the repairs without the plaintiff's consent and as such it is estopped from arguing the plaintiff is responsible for any portion of the repairs. However, it cannot be said herein that SGI authorized the repairs as the evidence does not support this assertion. Nor can it be said that SGI represented to the plaintiff by word or conduct that it did not intend to deduct depreciation. It cannot be said that SGI conducted itself so as to convey that it would not claim depreciation as it deducted for betterment as soon as the second appraisal was complete. Estoppel is not applicable. The issue is then has SGI waived their right to elect to pay the cash value of the exhaust system under statutory condition 8(1). That is, did it by its actions waive its right to elect to choose the less expensive means of fulfilling its obligation. In Saskatchewan, two provisions of the Act provide that SGI, in certain situations, is not deemed to have waived provisions of the Act. First, statutory condition 10 of s. 39 reads as follows: 10 Neither the insurer nor the insured shall be deemed to have waived any term or condition of this Part by any act relating to the appraisal or to the delivery and completion of proofs of loss, or to the investigation or adjustment of the claim. Second, s. 77 of the Act states: 77 No term or condition of this Act shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by an officer of the insurer. The term ""waiver"" in statutory condition 10 and s. 77 also applies to an election to reinstate. Under automobile insurance legislation, this conclusion is supported by the decision of the court in Roberts v. Insurance Corp. of British Columbia (1990), 45 C.C.L.I. 55 (B.C. Co. Ct.), wherein the court considered the effect the Insurance Act, R.S.B.C. 1979, c. 200, which contains provisions similar in effect to statutory condition 10 and section 77 of our Act. In 1990, s. 13 of the British Columbia Act read: 13.(1) No term or condition of contract shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by person authorized for that purpose by the insurer. (2) Neither the insurer nor the insured shall be deemed to have waived any term or condition of contract by any act relating to the appraisal of the amount of loss or to the delivery and completion of proofs or to the investigation or adjustment of any claim under the contract. In Roberts, the British Columbia state insurer had agreed to replace the plaintiff's motor vehicle following its theft. However, the plaintiff's vehicle was recovered by police one day before the plaintiff signed contract to purchase new replacement vehicle. The insurer withdrew its agreement to replace the vehicle and re-elected to repair the stolen vehicle. The court found that the insurer had made an election where Catliff J. stated at p. 57: Nevertheless, I.C.B.C. clearly elected to finance the purchase of new car for the plaintiff before it learned his stolen car had been found. At common law, once an election is made the insurer is bound by it: ""where contract provides for an election, the party making the election is in the same position as if he had originally contracted to do the act which he elected to do."" per Lord Campbell, C.J., Brown and others v. The Royal Insurance Company (1859), E.L. and E.L. per Lord Campbell, C.J., p. 859. `The defendants are bound by their election; and; if the performance has become impossible, or (which is all they have shewn) more expensive than they had anticipated, still they must either perform their contract or pay damages for not performing it.' per Crompton, J. at p. 860 op cit."" The court noted the insurer's position that it was not bound by this election when it stated at p. 57: In spite of the election made, I.C.B.C. claims it should be deemed not to have waived its choice of paying the lesser cost of repairing or replacing the plaintiff's car. Catliff J. went on to state at p. 59: [T]he effect of s. 13(2) of the Insurance Act is that I.C.B.C.'s acts ""relating to the adjustment of [the] claim"" do not deprive it of its statutory option [to elect]. In my view, the offer of I.C.B.C. to pay for replacement car for the plaintiff was clearly an ""act relating to the adjustment"" of the claim. Clearly, the basis for Catliff J.'s decision is an unstated finding that the ""statutory option"", or election to pay or reinstate, fell under the definition of ""waiver"" as found in s. 13(2) (which is the equivalent of statutory condition 10 in Saskatchewan). As such, as the conditions of the ""waiver"" under s. 13(2) had not been met, the insurer was not bound by the waiver. similar situation arises herein. As stated, reinstatement clauses are included in insurance contracts for the sole benefit of the insurer. The inclusion of reinstatement clause in the Act provides the same benefit to SGI, i.e., the option to choose the least expensive means of complying with its obligation to the insured. Therefore, only SGI, as the insurer, has the option to choose or elect the least expensive means of repairing the vehicle. In other words, only SGI can waive its right under statutory condition 8(1) by opting to repair under statutory condition 8(4). The plaintiff argues that SGI has waived their right to elect to payout under statutory condition 8(1) by their actions. However as noted, waiver is not to be presumed from the mere fact that an insurer has taken steps in conjunction with the assured to ascertain the amount of the loss, since, until this has been done, they are not in position to decide whether to make good the loss by payment or reinstatement. Herein, after the initial appraisal, roving appraiser attended at the repair shop and reviewed the extended damage to the exhaust system. The roving appraiser reassessed the claim and included damages for the new exhaust system. Under statutory condition 10, these acts relate tothe appraisal of the claim and, therefore, cannot constitute awaiver of statutory condition 8(1), i.e., they do notconstitute an election under statutory condition 8(4). Thereafter, SGI took no steps to have the vehicle repaired. Crestview took the steps to repair the vehicle. Further and finally, s. 77 indicates that, unless and until the insurer has provided written and signed waiver to the insured, the insurer remains entitled to re-elect the manner in which it will fulfil its obligations and complete the insurance contract. Therefore, as the plaintiff did notreceive a written waiver of statutory condition 8(1), theinsurer cannot be deemed to have waived its option to enforcestatutory condition 8(1). 3. Is depreciation to be deducted under Part III of the Act? Depreciation is defined in Black's Law Dictionary, 5th ed. (St. Paul: West, 1979), as: Depreciation. fall in value; reduction in worth. The deterioration, or the loss or lessening in value, arising from age, use and improvements, due to better methods. decline in value of property caused by wear or obsolescence and is usually measured by set formula which reflects these elements over given period of useful life of property. Statutory condition 8(1) of the Act, provides that SGI is not liable beyond the lesser of the actual cash value of the exhaust system, with proper deduction for depreciation, and the maximum value of the exhaust system as prescribed by regulation. Pursuant to this statutory condition, SGI is entitled to make an allowance for reasonable depreciation, before it makes payment to an insured under the Act. If the repairs made result in an increase in the value of the property repaired, there may be deduction made to offset the increase. The roving appraiser herein arrived at the 20% deduction for depreciation on the BMW exhaust system. Unfortunately, there was no evidence led as to how the appraiser arrived at the 20% depreciation deduction. The question is whether the 20% deduction is appropriate. In the case of Lepin, the court referred to Ewer v. National Employers' Mutual General Insurance Association Ltd. (1937), All E.R. 193 wherein it confirmed that court will make an allowance in favour of an insurer for the increase in value of building before and after the repairs. In Lepin, the court made an allowance for the newness of the heating and cooling system installed in the building. The court also noted that there was no set standard by which it could determine the allowance to be made for the fact that the building now contained items which were new and were therefore of longer life than those destroyed. In Lepin the court chose to reduce the damages by 30%. In the circumstances of the case herein, the warranty on the BMW exhaust system was three years or 80,000 kms. At the time of the accident, the exhaust system on the BMW was three years old and had withstood 46,000 kms. of wear. The BMW exhaust system was replaced with new exhaust system. In light of those facts, it cannot be saidthat the 20% deduction for depreciation on the exhaust systemis inappropriate, and as such the 20% for depreciation isallowed. 4. Does the plaintiff as the lessee of vehicle registered to Crestview have cause of action against SGI under the terms of Part III of the Act? SGI has argued that the plaintiff does not have cause of action against SGI as he is not the ""insured"" as defined under the Act. In light of the previous findings, it is not necessary for me to determine this issue. CONCLUSION The plaintiff's claim against SGI is dismissed withcosts to be taxed.","A claim for damages to the plaintiff's leased automobile arising out an accident. The action against the defendant Ruhr had been discontinued. An SGI adjuster appraised the damage but during the course of repairing the vehicle further damage was found. A roving adjuster authorized the replacement of the exhaust system but deducted 20% for depreciation. The plaintiff brought an action for reimbursement of the $503.73 arguing that SGI elected to repair or replace the exhaust system under statutory condition 8(4) of s39 of the Automobile Accident Insurance Act. SGI took the position that as Crestview was the registered owner of the vehicle the plaintiff was not entitled to bring this action as he was not the insured within the meaning of the Act. SGI also argued that Crestview authorized the repairs and acknowledged the 20% deduction as registered owner and that if the plaintiff paid the $503.73 he did so under his private lease contract with Crestview. It also argued that it is entitled to deduct for depreciation in any event. HELD: The claim against SGI was dismissed with taxed costs.  1)An election under statutory condition 8(4) amounts to an irrevocable decision to repair regardless of costs of repairs. Once an election is made the insurer is bound to pay or reinstate. An insurer by its conduct may be deemed to make an election to reinstate. The insurer's election to reinstate unilaterally creates a new contract which the insurer may not unilaterally revoke. On the facts the insurer neither expressly nor by its conduct elected to reinstate. The roving appraiser provided an appraisal to Crestview which included the depreciation deduction. Crestview repaired the vehicle without advising the plaintiff. 2)The concept of waiver in insurance law encompasses an election to pay or to reinstate. Estoppel was not applicable. Two provisions of the Saskatchewan Act provide that SGI in certain situations is not deemed to have waived provisions of the Act. The roving appraiser reassessed the claim and included the newly found damages. These acts related to the appraisal of the claim and could not constitute a waiver of statutory condition 8(1). They did not constitute an election under statutory condition 8(4). Crestview, not SGI, took the steps to repair the vehicle. As the plaintiff did not receive a written waiver of statutory condition 8(1) pursuant to s77 the insurer could not be deemed to have waived its option to enforce statutory condition 8(1).  3)The exhaust system was three years old and had 46,000 km of wear. A 20% deduction for depreciation was appropriate and therefore allowed.  4)It was not necessary to determine whether the plaintiff was the 'insured' as defined by the Act.",b_1996canlii7148.txt
264,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fournier v. Green, 2005 NSSC 322 Date: 20050908 Docket: SH 225931 Registry: Halifax Between: Michelle Fournier v. Debra Green and Eric Craig Defendant Judge: The Honourable Justice Simon J. MacDonald Heard: June 10, 2005 in Port Hawkesbury, Nova Scotia Counsel: Gerald A. MacDonald, for the plaintiff Sandra Arab Clarke, for the defendant By the Court: [1] This is an application for an Order for summary judgement pursuant to Civil Procedure Rule 13 and an interim payment under Civil Procedure Rule 31.01. have read the affidavits on file as well as the briefs submitted by counsel. as well heard Counsel representing both sides in oral argument at the chambers hearing for this application. [2] Civil Procedural Rule 13.01 states as follows: 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed. [3] The Plaintiff ,in order to succeed in summary judgement application, first has the obligation to prove her claim and then the burden shifts to the Defendant to satisfy the court that he has bonafide defence or at least an arguable issue to be tried before the court. He must disclose the nature of the defence or the issue to be tried with clarity through sufficient facts to indicate that it is bonafide defence or issue to be tried. [4] comprehensive review of the law applicable in summary judgement matters can be found in the judgement of Justice Jamie Saunders in Webber et al v. Canadian Surety Company (4) (1992) 112 N.S.R. (2d) 284. [5] The court must also be aware of the comments made by MacKeigan C.J.N.S. in Lunenburg County Press Ltd. v. Deamond (1977) 18 N.S.R. (2d) 689 at para. 5: We are very conscious, however, as Judge should be in dealing with an application of this sort, that summary judgment is summary proceeding which should not be lightly granted so as to deprive litigant of his right to have any bona fide case disposed of after full trial. We must accordingly allow the appeal and set aside the order of His Honour Judge Burke dated June 14, 1976. We direct that the costs of this appeal and of the application before Judge Burke be costs in the cause of the action.” [6] In this particular application involving a rear-end collision, there is a heavier burden upon the Defendant. This authority can be found in the words of Freeman, J.A. in MacNeil v. Black [1998] N.S.J. No. 83 at paragraph where he said as follows: “A further burden of proof, and considerably heavier one, falls on the defendant in rear‑end collision cases. The driver of the rear car must rebut presumption that the collision occurred as result of his negligence. See the judgment of Roscoe J. in Wilson v. McInnis (1992), 1992 CanLII 4671 (NS SC), 111 N.S.R. (2d) 78. [7] This accident happened at the intersection of Kings Road and Alexander Street in Sydney, Nova Scotia, on the 4th of March, 2004. The Plaintiff was operating her motor vehicle and said in her affidavit that she was struck from behind by one of the Defendants named in the action. [8] In describing how the accident occurred the defendant, Eric Craig stated in his affidavit: “4. THAT the intersection of Kings Road and Alexander Street is governed by traffic lights. As approached the intersection, noticed that there were three or four vehicles ahead of mine, including Pontiac Montana van (“Montana”) being operated by an individual who was later identified to me as the plaintiff, Michelle Fournier, and which was the vehicle immediately ahead of mine. 5. THAT two or three of the vehicles referred to in paragraph above proceeded through the traffic light. As advanced toward the traffic light, my speed was approximately 10 to 15 km per hour. As the traffic light turned red, did not see brake lights on the Montana and the front of my vehicle struck the rear bumper of the Montana.” [9] In second affidavit filed by Michelle Fournier, she stated as follows in paragraph and 5: 4. THAT attached hereto and marked Exhibit “A” by the person swearing this my Affidavit is photo of vehicle similar to the vehicle that was driving, which is Pontiac Montana, and the tail lights are quite high off the ground and would have been visible to any person paying the slightest attention to the vehicle in front of them. 5. THAT have checked with Pat LeBlanc, who repaired my vehicle after the accident and have checked with Shawn Aucoin, who was the insurance adjuster for my insurance, Co-Op Insurance, and both have declared to me that the tail lights were working when took the vehicle to be appraised and took it in for repair. [10] The defendant argues summary judgment ought not to be allowed because there is an arguable issue to be tried, namely, that even if one accepts the evidence of the Plaintiff that one has to consider the issue of contributory negligence. Mr. Craig said in his affidavit, he did not see any brake lights on the Montana. Thus the defendant says there is an issue as to whether or not they were on or working. Secondly, the defence argues there might possibly be contributory negligence issue in this case because the Plaintiff suddenly stopped. [11] adopt the position of Freeman, J.A. in MacNeil Black, supra at para 10, where he said: “The threshold for showing the existence of defence worthy of trial is not high one, but the defendant has not met it. The standard pleading that the plaintiff stopped abruptly, without more by way of supporting facts, lacks an air of reality. It does not meet, nor suggest how the defendant hoped to meet, the plaintiff's assertion that she had been stopped for 45 seconds. It was necessary for the defendant in his pleadings or by way of affidavit or other evidence to assert facts capable, if proven at trial, of rebutting the presumption that the collision resulted from his negligence. The bald statement in the pleadings does not disclose the existence of an actual or probable defence and cannot fend off an application for summary judgment.” [12] have listened to the argument of the defendant and have read her affidavits and material attached thereto. I am satisfied there has to be an “air of realty” to the defendant’s argument. If the brake lights did not work then the defendant drove straight into the rear of the plaintiff’s car. Secondly if the plaintiff stopped suddenly and as the defendant noted in his affidavit, the traffic light turned red then the plaintiff’s vehicle was supposed to stop as well. To strike the plaintiff’s vehicle from behind on these facts then the defendant was travelling too close or didn’t have enough care or control of his vehicle and consequently the collision occurred. In any event, I am satisfied when you read the material there was no “air of reality” to the defendant’s argument. [13] The defendant also argued that plaintiff ought not to be successful in her application for summary judgment because she has not been able to establish the motor vehicle accident resulted in her suffering injuries. The defendant referred to the case of Griffiths Martell [1999] N.S.J. No. 285. At paragraph Hamilton J.A. states as follows: “I considered if this Rule authorizes me to issue summary judgment limited only to liability for the accident itself and not causation, because of its use of the words ""a part thereof"", but on reading the whole of Civil Procedure Rule 13.01, am satisfied that it means that summary judgment is not to be granted when there is any issue other than the amount of damages still in issue between the parties, which interpret to only be the case after causation has been determined as part of the summary judgment application.” [14] am satisfied upon reading the reports of Doctor Steve Crosby and Doctor Douglas Watt attached as appendix and to the plaintiff’s affidavit that the causation of certain amount of her physical injuries resulted from the accident. [15] I am not satisfied the defendant has met the required burden and I allow the application. Judgement is entered against the respondent/defendant as to liability with damages to be assessed. [16] INTERIM PAYMENT The Plaintiff, now having obtained summary judgement, fulfills the conditional precedent for the application for interim payment under Rule 33.01 (A)(1). Which states as follows: “Nothwithstanding the provision of rule 33.01, the court may order the defendant to make an interim payment of such amount as it thinks just, not exceeding reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross-claim or counter-claim on which the defendant may be entitled to relay, if the court is satisfied: (a) that the defendant against whom the order is sought had admitted liability for the plaintiff’s damages or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed. [17] The general principles involving interim payments where summary judgment has been allowed was discussed in Bogaczewicz Faulkner, [1997] N.S.J. No. 237. See also Mahoney Almeco Leasing Limited [1999] N.S.J. No. 390 and MacDonald MacPherson [1999] N.S.J. No. 283 affirmed on Appeal 1999 N.S.J. No. 445. The case law may be summarized as follows: 1. It is not the function of the Court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. This might ultimately be for Trial Judge at an assessment of damages. 2. An Order of an interim payment is not mandatory. It is discretionary Order of the Chambers Judge. 3. The Court must exercise caution in assessing likely recovery of plaintiff in the early stages of litigation particularly where there is lack of medical opinion in the discovery of experts where necessary. 4. An application under Rule 33.01(A) is not to be trial or mini trial where an estimate of the plaintiff’s ultimate recovery can be difficult and may amount to nothing more than haphazard guess. In such cases the Court should refrain from making an order of interim payment. 5. In cases where there is considerable uncertainty existing as to what is likely to be recovered by the Plaintiff, the proper approach is that where the Court is faced with such degree of uncertainly, it should conclude that it is unable to make determination of reaching an opinion as to what is likely to be recovered in those damage areas of uncertainty. [18] The evidence submitted by way of the Plaintiff’s affidavits causes the court difficulty. The plaintiff is making a significant claim yet when one listens to defendant’s counsel and reads the material attached to the defendant’s affidavit, one concludes there is a significant amount of other factors relating to the health of the plaintiff. There is no doubt this would impact on any assessment of damages that might be made in this particular case. am looking at the evidence submitted in the affidavits without the benefit of any examination or cross examination before me in an attempt to decide what is likely to be recovered by the plaintiff. have however, read the discovery evidence of the plaintiff submitted as attached to the affidavit of Ms. Sandra Arab Clarke, the defendant’s counsel. [19] The plaintiff blames her neck injury, shoulder injuries, tingling in her hands and arms as well as other injuries on the accident. There is conflict in her evidence about her depression and other problems she is having with her health in the report of Doctor Watt dated November 8, 2004 where the plaintiff interpreted comments from visit with her family doctor that her problems were not related to her motor vehicle accident. [20] Defence counsel has gone to great extent to show the Plaintiff’s prior conditions would all combine to contribute in significant way to her current health complaints. These range from an injury to her right shoulder and elbow prior to the motor vehicle accident, tennis elbow in the right arm, malaise and fatigue, pain in joints, as well as obstructive lung defect to name but few. Defence counsel states there is long medical history involved here and has argued strenuously there are credibility issues in relation to certain claims relating to her injuries. [21] It is not the function of this court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. I am satisfied any amount of assessed damages which might be arrived at will depend largely upon credibility and medical evidence at trial. The defendant argues there has yet to even be an independent medical examination of the plaintiff. In my opinion to assess any amount in this case at this point in time would be a most difficult task and would only be a haphazard guess. [22] Serious issues exist between the parties as to whether or not the plaintiff’s injuries sustained in the motor vehicle accident have resulted in any on going inability of the plaintiff to work in any capacity. As well there is question as to her claim involving loss of valuable service as to whether or not the amount claimed is appropriate when the plaintiff stated in discovery that she was able to do some housework and did so. [23] The plaintiff’s damage claim is further complicated in this particular matter as a result of the recent amendments in 2003 to the Insurance Act, R.S.N.S. 1989, C-23, especially as it would relate to non-pecuniary general damages. On the information provided to the Court from both parties it is conceivable with the material before me, the plaintiff’s injuries could be described as minor. If, after trial, Court assessed that Ms. Fournier suffered minor injury, it would bring her under the new legislation. Her general damages could be capped at $2,500. [24] Thus, Court should be extremely cautious in approaching an award in this particular category in absence of significant medical evidence which would clearly establish this injury classification could be overcome. It must be recalled that under the legislation the onus is on the plaintiff to prove that any injuries she sustained are not minor injuries. [25] On a review of the material supplied for this application, I am not satisfied that this is an appropriate case to order an interim payment at this point in time and I decline to do so. In my opinion, to assess any amount of interim payment on facts presented would be most difficult task and would only be haphazard guess. [26] However, as I said before, I would order summary judgment be entered against the defendant with damages to be assessed. [27] Each party having been partially successful, would order no costs to either side. [28] Order accordingly.","The plaintiff, who was injured in a rear-end motor vehicle accident, applied for summary judgment and an interim payment of damages. Application for summary judgment granted; application for interim payment dismissed. There was no 'air of reality' to the defendant's defence; whether or not the plaintiff's brake lights were working, to strike her vehicle from behind on these facts meant that the defendant was either travelling too close or didn't have enough care and control of his vehicle. The plaintiff was making a significant claim for damages but she suffered from numerous previous injuries and conditions relating to her health; any damage assessment would depend largely upon credibility and the medical evidence at trial; to assess interim damages in this case would be a most difficult task and would only be a haphazard guess. The plaintiff's claim was also complicated by the fact that it could possibly be subject to the 'minor injury' cap on damages.",d_2005nssc322.txt
265,"M.T. MEGAW IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 104 Date: September 16, 2016 Information: 24496574 Location: Yorkton Between: Her Majesty the Queen and Vincent William Lehman Appearing: Andrew Wyatt For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN, INTRODUCTION [1] Vincent Lehman is charged with driving a vehicle while his ability to do so was impaired by alcohol (under s. 253(1)(a) of the Criminal Code) and while his blood alcohol concentration exceeded the legal limit of .08 (under s. 253(1)(b)) and, lastly, with failing to stop for a police officer as soon as reasonable in order to evade that officer (under s. 249.1(2)), all on August 17, 2013 at Togo. [2] This case arose during the early morning hours of that day. Cst. David Cobbledick, of the Kamsack RCMP, had motorist pulled over at 2:50 a.m. in the village of Togo. Just as he was completing that stop, he heard truck, which turned out to be one driven by Mr. Lehman, on an adjacent street. [3] After finishing with the first motorist, he drove to the street on which he had first heard Mr. Lehman’s truck, and followed dust trail from the truck down that street until he saw Mr. Lehman coming around corner, in his words “kind of creeping”. He engaged his emergency lights, and came up behind his truck. Mr. Lehman spun his tires and fish-tailed, and in the officer’s words sped up rapidly and “took off”. The pursuit lasted over about four blocks, during which Mr. Lehman failed to stop at two stop signs before turning onto Highway 5, and after block or so on the highway turned onto Baker Street, where he finally stopped in the driveway of his house. [4] Cst. Cobbledick soon arrested Mr. Lehman for an offence under s. 249.1(2) and, after he received fail result from him on an Approved Screening Device (ASD) between 3:01 and 3:03 a.m., read the breath demand to him at 3:03 a.m. He then drove him back to Kamsack, where Mr. Lehman provided samples of his breath of 110 mg% at 3:55 a.m. and 100 mg% at 4:17 a.m. (as per the Certificate of Analyses, Exhibit P-2). [5] While Mr. Lehman admitted that he was drinking alcohol that evening and night, Mr. Lehman denied that he was impaired by alcohol when seen driving by the officer, and further denied that he was trying to evade the police officer when he did not stop for him: rather he was just trying to make it back to his driveway as he believed this would legally protect him from having his truck seized. Mr. Lehman as well, through his lawyer, asserted so-called “last drink” defence: that alcohol he drank just before driving was not yet in his blood stream when he was stopped by the officer, but was at the time his breath tests were taken at the detachment. [6] The only witness for the Crown was Cst. Cobbledick. The defence called alcohol expert Mary Ellen Scott and Mr. Lehman. [7] The issues for me to determine are:(1) Whether there is proof beyond a reasonable doubt Mr. Lehman’s ability to drive was impaired by alcohol;(2) Whether Mr. Lehman’s evidence, together with expert Mary Ellen Scott’s evidence, raises a reasonable doubt that his blood alcohol concentration was over the legal limit at the time when he finally stopped his vehicle for Cst. Cobbledick; and(3) Whether Mr. Lehman had a reasonable excuse for not stopping immediately for the police officer and whether his actions amounted to him evading the police officer. [8] Cst. Cobbledick said that Mr. Lehman drove up his driveway as far as he could, then jumped out of his vehicle and came back toward the police vehicle. This struck the officer as an aggressive move, and he told Mr. Lehman he was under arrest for flight from police. He said, at that point, Mr. Lehman had glossy, watery eyes, but his walk and his speech were “fairly normal” and he was polite and cooperative throughout his dealings with Cst. Cobbledick. The officer smelled beverage alcohol coming from Mr. Lehman, but, overall, was surprised that he did not see the signs of impairment in Mr. Lehman’s person that his driving suggested. Mr. Lehman’s level of intoxication was in the officer’s view borderline, and he required the ASD test to give him the grounds to make an Intoxilyzer demand. [9] Mr. Lehman was bare-footed, and, as result, after the breath demand the officer took Mr. Lehman into the house to get his shoes. Upon entering the house, the officer noted approximately ten to twelve beer cans on the coffee table, which got his attention because Mr. Lehman had told him that he had only drank six beer throughout the day. Although the officer did not specifically count the beer cans and put them in his notes, he was adamant that there were more than six beer cans on the table. [10] Cst. Cobbledick said Mr. Lehman told him on three occasions that what he had to drink that day was six beer. At the detachment Mr. Lehman told him he had purchased an 18 pack of Kokanee beer earlier that day. He, as well, said Mr. Lehman apologized for not stopping for the officer because he needed to keep his Class licence and because he did not want to have his truck seized. [11] Mr. Lehman, who is feet tall and 170 pounds, said he did some housework and watched television this morning. He left for Yorkton at approximately 1:30 p.m. and had no alcohol to drink before he left for Yorkton. In Yorkton, he went to Wal Mart and went to wash his truck. He ate at McDonald’s and left Yorkton at 4:30 p.m. He drove back to Kamsack and stopped at the liquor store. There he claimed that he bought six Kokanee beer. [12] Mr. Lehman said he returned to his house in Togo sometime after 6:00 p.m. He finished eating at 6:30 p.m. and then had one beer. He then watched television and did some things around the house until 10:00 p.m. At that time, he had another beer. He then watched television and downloaded some music onto his computer. He continued to drink beer and said he finished the last of the remaining beer at about 2:15 a.m. [13] Mr. Lehman said, after 2:15 a.m., when he finished his sixth beer, that he got out his DVD player and watched show, which he then got bored with. He then decided to go out to his truck and listen to the music that he had downloaded. He said he grabbed his coffee cup, and poured what was left in vodka bottle he had which he said was little more than half full, or about six or seven ounces into the cup and mixed it with Tang orange juice. [14] Mr. Lehman said he took that drink out to the truck, at approximately 2:40 to 2:45 a.m. He said he listened to two or three songs then decided he wanted to go for spin. He said he did not want to take his drink with him, so he “downed it”, and put the cup into the console of his truck. He said he was not planning on going anywhere as he was in bare feet and did not have his driver’s licence, and further left his house at 132 Baker Street unlocked. [15] Mr. Lehman said he drove from his house into the downtown area of Togo, turning onto East Street. He saw another vehicle which he thought he recognized, but then discovered it was the police officer when the officer engaged his emergency lights. He said his truck is pretty loud. He was on gravel road and “gunned it”, which spun his tires bit, and he then turned onto 3rd Street. He said, after the officer put his lights on, he panicked. While he denied feeling impaired, he said that he had consumed some drinks and sped up. He said he was worried because he had Class licence, as this was how he made his living. As he had been drinking, he was also concerned that he thought his vehicle would be towed away and he was afraid the vehicle might have some items stolen from it. [16] Mr. Lehman denied trying to outrun the officer, but said he wanted to get his truck home to park it in the driveway, where he thought the truck would be safe from impoundment. He claimed he later drove the route he took that night at 40 km/hr., just days before the trial, and it took him three minutes and nine seconds to drive that route. He claimed he was going slowly, about 15 mph, when he first saw Cst. Cobbledick. He said there were six empty cans of Kokanee on the table in his house when he went in with the officer. He said he told the officer as many as three times that he drank six Kokanee beer that day. [17] Regarding his memory of what happened on this day in 2013, Mr. Lehman had no specific explanation about why he remembered particular things that day, other than saying it was important to him to remember. He further said he had good memory of that day as “I wasn’t drinking lots so remember it like yesterday”. He further denied that his memory about how much he drank had ever changed. When asked by his lawyer whether he had vivid memory of when he finished his last beer he said “apparently yeah”. He said he looked at his watch, and thought “you know what, wish had another one, but don’t”. [18] On cross-examination, Mr. Lehman, when asked whether he knew how much more than half he had in the vodka bottle, said he did not. He admitted that it could have been eight ounces in the bottle. Further, he said that there was no way there could have been five ounces in that bottle. He said he was sure it was above the halfway mark. He further said that the only reason he went for drive was to hear his music and drive. When asked whether he was being honest when he told the officer that what he had to drink that evening was six beer, he replied that what he said was “close”. Regarding not stopping for the police officer, he admitted that he could have stopped for the officer, and said that he made some bad choices and kept going until he came to his driveway. [19] Pursuant to s. 12 of the Canada Evidence Act, Mr. Lehman admitted that his criminal record has nine Criminal Code drinking and driving convictions: two from 1982, three from 1986, two from 1990, and one each in 2000 and 2007. [20] Mary Ellen Scott was qualified as an expert and allowed to give opinion evidence in the area of distribution, elimination and the effects of alcohol on person, and the measurement and calculation of blood alcohol concentrations in an individual using forward and retrograde calculation methods, as well as the effects of alcohol on the human body. [21] Ms. Scott gave number of opinions which were based on the drinking history Mr. Lehman gave in his direct evidence and on average absorption and elimination rates in the human body. Although her evidence was in my view difficult to follow at times, her opinions, relevant to Mr. Lehman’s BAC at the time of driving and the time his breath samples were taken at the detachment, can be summarised as: (1) For person of his height and weight, and based on the drinking history testified to by Mr. Lehman in direct evidence at this trial, including the bolus consumption of vodka shortly before driving, he would have had approximately three ounces of vodka unabsorbed in his stomach at 2:50 a.m. This meant that she believed he was not over 80mg% at that time, and, by forward calculation, she also believed this drinking history to be consistent with reading of 100 mg% at 4:17 p.m. She said her conclusions were the same: (a) whether the amount of vodka consumed shortly before driving was either six or seven ounces; and (b) whether either amount was consumed at 2:35 a.m. or at 2:40 a.m.; and (2) Based on the drinking history given by Mr. Lehman in direct evidence at this trial, she opined that his BAC at 2:50 a.m. would have been between 15 and 91 mg%. [22] In cross-examination, Ms. Scott admitted that an opinion she had given on July 31, 2015 (Exhibit D-4) was based on different drinking pattern regarding the amount and times of consumption from Mr. Lehman: that he drank total of seven Kokanee beer, with one at supper at 6:00 p.m. and six between 10:00 p.m. and 2:15 a.m., and that at 2:15 a.m. he poured and consumed very quickly drink containing approximately five to six ounces of hard liquor and was then stopped by the officer within fifteen to thirty minutes of consuming this hard liquor. III. WAS MR. LEHMAN’S ABILITY TO OPERATE HIS VEHICLE IMPAIRED BY ALCOHOL? [23] The Supreme Court of Canada in Stellato, 1994 CanLII 94 (SCC), [1994] SCR 478 approved the following test for impairment: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [24] Mr. Wyatt argued that in this case impairment, albeit at the low end of the scale, had been proved beyond reasonable doubt. [25] Despite Mr. Lehman’s manner of driving, and in particular not stopping for the officer, his glossy and watery eyes and the smell of alcohol coming from him, Cst. Cobbledick said his walk and his speech were “fairly normal” and he was polite and cooperative throughout his dealings with Cst. Cobbledick. Overall, the officer was surprised that he did not see the signs of impairment in Mr. Lehman’s person that his driving suggested and, most significantly, said that Mr. Lehman’s level of intoxication was in his view borderline and he required an ASD test to give him the grounds to make an Intoxilyzer demand. Taken together, this leaves me with reasonable doubt that Mr. Lehman was impaired. IV. IS THERE REASONABLE DOUBT MR. LEHMAN WAS OVER .08 WHEN HE STOPPED HIS VEHICLE? [26] Section 258(1)(d.1) of the Criminal Code sets out the bounds of the so-called “last drink” defence. If breath samples have been taken showing blood alcohol concentration (BAC) of over 80 mg% and if the Certificate of Analyses is otherwise admissible under s. 258(1)(c), as is the case here: ... evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 ml of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both: (i) concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) ... at the time when the sample or samples were taken; (emphasis added) [27] As result, the issue is whether am satisfied that there is credible evidence which tends to show that Mr. Lehman’s consumption of alcohol was consistent with both: (1) him not having BAC of over 80 mg% at the time of driving; and (2) the BAC readings contained on the Certificate of Analyses. [28] I am satisfied that Mr. Lehman was drinking alcohol steadily over the hours before he drove, and that this factor, taken together with the time since this day, has effected his recollection of this day and what he drank. As a result, given that finding, where the evidence of Cst. Cobbledick and Mr. Lehman is at odds, I reject the evidence of Mr. Lehman and accept the evidence of Cst. Cobbledick. [29] For the reasons that follow, I am not satisfied that the defence provided a credible account of Mr. Lehman’s alcohol consumption this evening and early morning: (1) Mr. Lehman discussed his alcohol consumption with Cst. Cobbledick during this investigation, after receiving his rights to counsel and the police warning, but did not mention any consumption of vodka or hard liquor; (2) The drinking history Mr. Lehman gave at the trial was different in terms of both the amount of beer and hard liquor consumed and the time the hard liquor was consumed than the history he gave to alcohol expert Mary Ellen Scott, as set out in her letter of July 31, 2015 (Exhibit D-4). As result, it is clear to me that his memory, and/or version, of what he drank this evening and night, and when he drank it, has changed over time; (3) accept that Mr. Lehman told Cst. Cobbledick that he purchased 18 beer that day, in contrast to his testimony that he told him he bought six beer in Kamsack; (4) further accept and find that Cst. Cobbledick saw about ten to twelve beer cans on his coffee table, and in any event significantly more than the six cans Mr. Lehman claimed were there. In so finding, note that even Mr. Lehman’s drinking history initially given to Ms. Scott suggested he consumed more than six beer (at seven beer); and (5) The scenario he presented that he drank as much as eight ounces of vodka in few minutes before going for leisurely drive to listen to music, after drinking six beer over the preceding seven and half to eight hours is in my view not believable; [30] As I am not satisfied that there was a credible account of Mr. Lehman’s alcohol consumption this evening and early morning, there is not in my view a basis to apply the opinions given by Ms. Scott. As a result, and as I am satisfied that all other prerequisites in s. 258(1)(c) have been proved by the Crown beyond a reasonable doubt, I do not have a reasonable doubt that Mr. Lehman’s blood alcohol content was over 80 mg% at the time he got out of his vehicle and approached Cst. Cobbledick. V. DID MR. LEHMAN EVADE THE PURSUING POLICE OFFICER? [31] Section 249.1(2) establishes an offence if person operating motor vehicle, while being pursued by peace officer operating motor vehicle, fails without reasonable excuse and in order to evade the peace officer to stop the vehicle as soon as is reasonable in the circumstances. There is no doubt, based on the evidence, that Mr. Lehman knew he was being pursued by a police officer who had engaged his emergency lights for a stop or that Mr. Lehman did not stop as soon as was reasonable in the circumstances. The questions to be answered, however, are whether: (1) he had reasonable excuse for doing so; and (2) he did so to evade the police officer. [32] Mr. Lehman submits that he did have reasonable excuse that he wanted to reach his driveway where he would not have his truck seized by the officer and that he was further concerned that his truck would be vandalised if left by the side of the road. Further, he said he was not trying to evade Cst. Cobbledick, as he drove about four blocks back to his house, on cul-de-sac, and parked on his driveway. On the latter point, in effect, he submits he was not trying to get away from the officer, as he had nowhere to go from his house. [33] Considering Mr. Lehman’s evidence, I am not satisfied that he had a reasonable excuse for not stopping. While he said he wanted to avoid seizure of his truck on his driveway, he as well said he was concerned about his Class licence from which he earned his living. As result, am satisfied he was concerned both about losing his licence and having his vehicle seized, by virtue of the officer’s powers under The Traffic Safety Act. His belief that he would, in effect, be “home free” if he reached his driveway was clearly mistake of law, because of what accept was this officer’s power to stop Mr. Lehman under s. 209.1 of that Act taken together with the Saskatchewan Court of Appeal’s interpretation of the extension of that power from public road to private road in Anderson[1]. Regardless of such mistake, though, don’t accept that desire to avoid the application and consequences of The Traffic Safety Act is reasonable excuse for not stopping for police officer. [34] Nor do accept Mr. Lehman’s contention that he was not trying to evade this police officer. The Alberta Court of Appeal in Kulchisky[2] defined “evade” in the following way: To evade, in our view, equates with an attempt to elude or get away from. The motive for evasion, assuming the absence of reasonable excuse, is of no moment. [35] There is no doubt on the evidence that Mr. Lehman attempted to get away from the police officer when he turned on his emergency lights, because he was afraid of the legal consequences that could befall him at that point. [36] As a result, I am satisfied beyond a reasonable doubt that Mr. Lehman operated a motor vehicle while being pursued by Cst. Cobbledick in his police vehicle, and failed, without a reasonable excuse, and in order to evade Cst. Cobbledick, to stop his vehicle as soon as was reasonable in the circumstances. CONCLUSION [37] For the reasons I have stated, Mr. Lehman is found not guilty on the impaired driving charge (count 1), guilty on the over .08 charge (count 2) and guilty on the flight from police charge (count 3). [1] 2014 SKCA 32 (CanLII). At par 25 of that decision, Whitmore J.A. said: “.... where police officer has formed the intention to stop driver on public highway pursuant to s. 209.1 of The Traffic Safety Act, the police officer is acting within the statutory authority by following the driver onto private property in order to complete his investigation. [2] 2007 ABCA 110 (CanLII) at para 10.","Criminal Law – Evidence – CredibilityCriminal Law – Evidence – Expert Evidence – Blood Alcohol ConcentrationCriminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08 The accused was charged with three Criminal Code offences: driving while impaired, contrary to s. 253(1)(a); driving over .08, contrary to s. 153(1)(b); and with failing to stop for a police officer as soon as reasonable in order to evade that officer, contrary to s. 249.1(2)). As he was completing a traffic stop, an officer heard the accused’s truck in the early morning hours. When the officer engaged his police vehicle emergency lights, the accused spun his tires, fish-tailed, and took off. The accused failed to stop at two stop signs and eventually stopped in the driveway of his house. The accused was arrested for the s. 249.1 offence and was given a breath demand after he failed as ASD. He failed the ASD between 3:01 and 3:03 and the breath samples were taken at 3:55 and 4:17. The accused admitted that he was drinking alcohol that evening, but denied being impaired. He said he was not trying to evade the officer when he failed to stop for him. He also said that alcohol he had just had was not in his system yet when he was driving, but was at the time of the breath samples. The officer indicated that the accused had glossy, watery eyes, but his walk and speech were fairly normal. The officer smelled alcohol coming from the accused, but was surprised he did not show more impairment given his driving. The accused indicated that he had consumed six beer that day, but the officer noted more than six empty beer cans on the accused’s table when he was getting his shoes. The accused indicated that he downed six or seven ounces of vodka just before driving at 2:45. An alcohol expert and the accused testified. The defence expert testified that the accused’s blood alcohol concentration (BAC) at the time of driving would not have been over .08 based on the drinking the accused testified to. The issues were: 1) whether there was proof beyond a reasonable doubt that the accused’s ability to drive was impaired by alcohol; 2) whether the accused’s evidence raised a reasonable doubt that his blood alcohol concentration was over the legal limit at the time when he finally stopped his vehicle; and 3) whether the accused had reasonable excuse for not stopping immediately for the officer and whether his actions amounted to him evading the police officer. The accused had nine drinking and driving convictions since 1982 with the most recent in 2007. HELD: The issues were determined as follows: 1) the Crown did not prove beyond a reasonable doubt that the accused’s ability to drive was impaired; 2) section 258(1)(d.1) deals with the last drink defence. The court had to be satisfied that the accused’s drinking was consistent with his BAC being not over .08 at the time of driving yet being consistent with the BAC’s in the Certificate of Analysis. The court preferred the officer’s evidence over the accused’s, given the drinking affected his recollections. The court was not satisfied that the defence provided a credible account of the accused’s alcohol consumption. Given the findings, the court was unable to apply the expert’s opinions. The court did not have a reasonable doubt regarding the accused’s guilt on the driving while over .08 charge; and 3) there was no doubt that the accused knew he was being pursued by the police and did not stop as soon as was reasonable in the circumstances. The court concluded that the accused did not have a reasonable excuse for not stopping. There was also no doubt that the accused attempted to get away from the officer because he was afraid of the legal consequences that he could face. The accused was found guilty of the evading charge.",7_2016skpc104.txt
266,"SUPREME COURT OF NOVA SCOTIA Citation: Johansson v. General Motors Canada Ltd., 2011 NSSC 20 Date: 20110121 Docket: Hfx No. 230488 Registry: Halifax Between: Maria Johansson, Steven Johansson and Jody Johansson v. General Motors of Canada Limited, body corporate registered to carry on business in the Province of Nova Scotia Defendant Judge: The Honourable Justice Glen G. McDougall Heard: October 21, 2010, in Halifax, Nova Scotia Counsel: Michelle Awad, Q.C. and Jeff Aucoin, Esq., for the defendant Nicolle Snow, Esq., for the plaintiffs By the Court: [1] The defendant, General Motors of Canada Limited (henceforth “GMCL”), moves for an Order for Summary Judgment on Evidence to dismiss the claims made by two of the plaintiffs, Steven Johansson and Jody Johansson (formerly Jody Robichaud). [2] Steven and Jody Johansson were injured in a single vehicle accident while passengers in a vehicle driven by the other plaintiff, Maria Johansson. The accident occurred on October 25, 1998. [3] Both Steven and Jody Johansson were paid damages for the injuries they sustained. The amount paid to each of the plaintiffs was acknowledged in writing and they each signed a release acknowledging full and final settlement of any claims arising from the accident. The releases were given to The Citadel General Assurance Company (henceforth “Citadel”), George Johansson, the owner of the motor vehicle involved in the accident and the driver, Maria Johansson. The releases are both dated the 14th day of April, 1999. [4] On September 13, 2004 a Statement of Claim was filed on behalf of all three plaintiffs alleging that the motor vehicle accident which occurred on October 25, 1998 was caused by an inherent defect in the design and manufacture of the vehicle being driven by Maria Johansson. [5] The vehicle, 1997 Chevrolet Lumina, was manufactured by GMCL. The plaintiffs now claim damages for the injuries they sustained as a result of the accident which they allege was caused by the careless and negligent actions of GMCL in the design and manufacture of the vehicle involved. [6] GMCL’s motion for summary judgment is against Steven and Jody Johansson only. It does not involve the other plaintiff, Maria Johansson. [7] Is the defendant, GMCL, entitled to summary judgment, dismissing the claims made by the plaintiffs, Steven and Jody Johansson, as result of the releases given to Citadel? [8] Civil Procedure Rule 13.01(1) allows for summary judgment either on pleadings that are clearly unsustainable or on evidence establishing that there is no genuine issue for trial. [9] Rule 13.04 deals specifically with summary judgment motions on evidence. It states: 13.04 (1) judge who is satisfied that evidence, or the lack of evidence, shows that statement of claim or defence fails to raise genuine issue for trial must grant summary judgment. (2) The judge may grant judgment for the plaintiff, dismiss the proceeding, allow claim, dismiss claim, or dismiss defence. (3) On motion for summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question of genuine issue for trial depends on the evidence presented. (4) party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by judge. (5) judge hearing motion for summary judgment on evidence may determine question of law, if the only genuine issue for trial is question of law. (6) The motion may be made after pleadings close. [10] There have been number of cases decided after the implementation of the new rules. The test for summary judgment remains the same as that used under the 1972 Rules. In Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 (S.C.C.); Carswell Ont 3171, Iacobucci and Bastarache, J.J., stated the following at para 27: 27 The appropriate test to be applied on motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is proper question for consideration by the court. See Hercules Management Ltd. v. Ernst Young, 1997 CanLII 345 (SCC), [1997] S.C.R. 165 (S.C.C.) at para 15; Dawson v. Rexcraft Storage Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.) at pp. 267-68; Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), O.R. (3d) 545 (Ont. C.A.) at pp. 550-51. Once the moving party has made this showing, the respondent must then “establish his claim as being one with real chance of success.” Hercules, supra, at para. 15. [11] This test was adopted by the Nova Scotia Court of Appeal in the case of Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38 (CanLII), 2007NSCA38. Justice Cromwell (as he was then) indicated at para. that: Summary Judgment is appropriate when defendant shows that there is no genuine issue of material fact requiring trial and responding plaintiff fails to show that its claim is one with real chance of success: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 (S.C.C.) at para 27. [12] Previously the Nova Scotia Court of Appeal dealt with the situation where it is the defendant making the motion. In Cook’s Oil Company Ltd. v. Parkhill Construction (1980) Ltd., 2005 NSCA 36 (CanLII), [2005] N.S.J. No. 69, Roscoe, J.A. had this to say at paras. and 10: As noted by the chambers judge, this court first examined the Rule after it had been amended to allow summary judgment applications by defendants in United Gulf Developments Ltd. v. Iskandar, where the following test was approved, at ¶9: ... The appropriate test to be applied on motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is proper question for consideration by the court. [case references and citations omitted] Once the moving party has made this showing, the respondent must then “establish his claim as being one with real chance of success.” 10 It is two part test. First the applicant, must show that there is no genuine issue of fact to be determined at trial. If the applicant passes that hurdle, then the respondent must establish, on the facts that are not in dispute, that his claim has real chance of success. [13] It should further be noted that sub-section (1) of Rule 13.04 requires “A judge who is satisfied that evidence, or the lack of evidence, shows that statement of claim or defence fails to raise genuine issue for trial must grant summary judgment. [emphasis added]. There is no room for the exercise of discretion in such instances. (See Eikelenboom v. Holstein Assn. of Canada (2004), 2004 NSCA 103 (CanLII), 226 N.S.R. (2d) 235 (NSCA)). Application of the Law to the Facts: [14] Counsel for the plaintiffs argues that GMCL has failed to establish that there is no genuine issue of material fact requiring trial and as such the moving party has failed to pass the initial hurdle. [15] She also argues that GMCL cannot rely on the releases given by the two plaintiffs (who are the subject of this motion) to Citadel as GMCL was not party to the agreement nor was there an intention on their part to extend the benefit of the releases to GMCL. In short there was no privity of contract and since the alleged manufacturing defect was not known at the time the releases were signed there could be no intention to include GMCL. [16] The operative provisions of the releases signed by Steven Johansson and Jody Robichaud (as she was then) contain the following: UNDERSIGNED hereby for themselves, their heirs, executors, administrators, successors and assigns i) release and forever discharge The Citadel Assurance and George Johansson and Maria Johansson (herein referred to as the “Releasee”) from any action, cause of action, or claim for damages specified above where the injury or, as the case may be, the damage, has been sustained as at the date hereof or may be sustained thereafter, as result of collision on the Golden Grove Road, Saint John, NB on or about the 25 day of October, 1998. ii) agree not to make any claim or take proceedings against any person or corporation who might claim contribution or indemnity under provisions of any statute or otherwise; iii) agree that the said payment does not constitute an admission of liability on the part of the Releasee; and iv) declare that the terms of this settlement are fully understood, that the amount stated herein is the sole consideration of this release and that such amount is accepted voluntarily as full and final settlement of the claim for damages specified above. [17] The releases are clear and unambiguous and although neither of the two plaintiffs had the benefit of independent legal counsel they both accepted payment in full and final settlement of any claims they had for damages arising from the accident that spawned the current action. They each stated that they fully understood the terms of the settlement and agreed to it voluntarily. They should not now expect to be compensated further, particularly where to pursue a claim could result in a claim for contribution or indemnity against Citadel. This is indeed what could result based on the defence filed on behalf of GMCL. GMCL places the blame solely on the driver and plans to seek contribution from her and her insurer should Steven and Jody Johansson be allowed to proceed with their claims. [18] In the Supreme Court of Canada decision in Fraser River Pile Dredge Ltd. v. Can-Dive Services Ltd., 1999 CanLII 654 (SCC), [1999] S.C.J. No. 48, the following was written at para. 32 In terms of extending the principled approach to establishing new exception to the doctrine of privity of contract relevant to the circumstances of the appeal, regard must be had to the emphasis in London Drugs that new exception first and foremost must be dependent upon the intention of the contracting parties. Accordingly, extrapolating from the specific requirements as set out in London Drugs, the determination in general terms is made on the basis of two critical and cumulative factors: (a) did the parties to the contract intend to extend the benefit in question to the third party seeking to rely on the contractual provision; and (b) are the activities performed by the third party seeking to rely on the contractual provision the very activities contemplated as coming within the scope of the contract in general, or the provision in particular, again as determined by reference to the intentions of the parties? [19] Both “Fraser River” conditions are satisfied and GMCL should be entitled to use the Releases to defend against the two plaintiffs who have already been compensated for their injuries by Citadel. To allow their action to proceed would be an abuse of this Court’s process. Conclusion [20] As between the plaintiffs, Steven and Jody Johansson, and the defendant, GMCL, there are no genuine issues of material fact requiring a trial. What facts are in dispute only pertain to the claim made by Maria Johansson. GMCL has passed the initial hurdle leaving it to the other two plaintiffs to establish, on the facts that are not in dispute, that their claim has real chance of success. They have failed to do so. As a result, the motion for summary judgment is granted and the claims of both Steven Johansson and Jody Johansson are hereby dismissed. [21] The parties are encouraged to try to reach agreement on costs failing which they are invited to file written submissions within 30 calendar days of the date of release of this decision. McDougall, J.","The plaintiffs, Steven and Jody Johansson, were injured in a single vehicle crash while driving with the plaintiff, Mary Johansson. They both received a damage settlement from, and signed releases in favour of, the vehicle's owner and his insurance company ('Citadel'). More than five years later, they brought this action against the car's manufacturer (the defendant, GMCL), claiming the accident was caused by an inherent flaw in the vehicle's design and seeking further damages. GMCL moved for summary judgement on the pleadings in relation to Steven and Jody Johansson, on the basis of the releases. They indicated that, should this matter proceed to trial, they would be joining Citadel as a third party. Motion granted; Steven and Jody Johansson's claims dismissed. There are no genuine issues for trial; the only facts in dispute relate to Mary Johansson. The releases were clear and unambiguous. Although neither plaintiff had the benefit of independent legal advice when signing, they both accepted payment in full and final settlement of any damages arising from the accident. They should not now expect to recover further compensation, especially where pursuing the claim will result in a claim for contribution or indemnity against Citadel. While GMCL was not a party to the release, the release did contemplate third parties being covered insofar as those third parties 'might claim contribution or indemnity'. Both conditions from the SCC case of Fraser River [1999] have been met: the parties to the contract (Citadel and the plaintiffs) intended to extend the benefit in question to the third party seeking to rely on it; and the very activities concerned are those contemplated as coming within the scope of the contract in general. GMCL should be entitled to use the releases to defend the action brought by these plaintiffs. To allow the action to proceed would be an abuse of the court's process.",c_2011nssc20.txt
267,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Chater et al v. Canada Lands Company, 2005 NSSC 120 Date: 20050518 Docket: S.H. 204478 Registry: Halifax Between: Eli Chater and Almon Investment Plaintiffs/Respondents v. Canada Lands Company CLC Limited Defendant/Applicant Judge: The Honourable Justice Walter R.E. Goodfellow Heard: February 15, 2005, in Halifax, Nova Scotia (Chambers) Final Written Submissions: May 9, 2005 Counsel: Gary A. Richard, for the Plaintiffs/Respondents Peter M.S. Bryson, Q.C. and Jeff Aucoin, Articled Clerk, for the Defendant/Applicant By the Court: [1] Application to strike pleadings and for summary judgment granted in Chambers February 15, 2005 upon the court concluding that mere intentions, negotiations, etc., and pleadings of a cause of action failed to create a cause of action. [2] The written release of decision February 17, 2005 left counsel to attempt to reach agreement with respect to costs and disbursements failing which the court would receive representations from both parties which have now been received. [3] The originating notice action in this matter was filed July 21, 2003 and therefore the new tariff of September 29, 2004 does not apply, (Little v. Chignecto Central Regional School Board (2004), 2004 NSSC 265 (CanLII), 230 N.S.R. (2d)1). [4] There is no tariff that provides direction with respect to the determination of the amount of costs in Chambers’ applications. Normal Chambers’ applications have been awarding costs generally in the range of $250 to $750, (Hi-Fi Novelty Co. et al v. Nova Scotia (Attorney General) (1993), 1993 CanLII 4632 (NS SC), 121 N.S.R. (2d) 63. In many applications where the results brings finality the court has utilized Tariff “A”, Keating et al. v. Bragg et al. (1997), 1997 CanLII 1961 (NS CA), 160 N.S.R. (2d) 363. In this application Canada Lands sets out that its solicitor and client fees to the date of the hearing amounted to $24,856.50 plus disbursements of $510.97 and counsel for Chater indicate that his solicitor and client fees were approximately half that amount. While time sheets, etc., can be very helpful in determining party and party costs, the level of solicitors’ fees in this application is not very helpful in measuring an amount that is just and appropriate. [5] The hearing in this matter was less than two hours in duration, however, there were a number of steps taken prior to the application including filing a list of documents, exchange of documents and apparently two days of discovery. The defendant made an offer of settlement in the amount of $5,000, inclusive of costs, which take to be an attempt to have the action simply go away due to the heavy costs of litigation. As indicated, the sale price of the property which was approximately $2,000,000 was not, in my view, the appropriate “amount involved”, and it was very difficult and, in fact, impossible for me to really get handle on what amount of loss of profits was being pursued or to what extent the defendants were monetarily at risk. am left therefore with judgment call as to what is reasonable level of indemnity to the defendants who have been successful on an application which does dispose of the matter before the court. [6] In the circumstances, I think a reasonable and fit party and party level of costs is $5,000 plus disbursements of $510.97 and the defendant is entitled to judgment for costs and disbursements herein taxed and allowed in the amount of $5,510.97.","The court granted the defendant's application for summary judgment of claim. Costs were at issue. Costs awarded in the amount of $5,000 plus disbursements; although the hearing was less than 2 hours in length, there were a number of steps taken prior to the application, including two days of discovery examination.",c_2005nssc120.txt
268,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 301 Date: 2008 07 29 Docket: Q.B.G. No. 375/2007 Judicial Centre: Saskatoon BETWEEN: 101055204 SASKATCHEWAN LTD., and 101055205 SASKATCHEWAN LTD., carrying on business as “DT Consulting” and “FRP Consulting Group”, Plaintiffs (Defendants by Counterclaim) and MARK WOLFF, CLAYTON SPARKS and ADVANCE‑TEK CONSULTING INC., Defendants (Plaintiffs by Counterclaim) and DANIEL BEAULAC and TREVOR HEWISON, Defendants by Counterclaim Counsel: L.P. Barrett for the plaintiffs and defendants by counterclaim J.M. Howe for the defendants (plaintiffs by counterclaim) FIAT ROTHERY J. July 29, 2008 [1] The parties to this action have reached an impasse on the required disclosure and seek various orders. The defendants (plaintiffs by counterclaim) (referred to as the “defendants”) ask that the Court exercise its discretion and sever the plaintiffs’ claim between liability and damages. The defendants also seek an order that certain paragraphs of the plaintiffs’ claim be struck. [2] The plaintiffs and defendants by counterclaim, which includes the two principal individuals of the plaintiff corporations, shall be collectively referred to as the “plaintiffs”. The claims and counterclaims arose as result of one of the defendants, Mark Wolff, leaving the employ of the plaintiffs’ consulting partnership. The statement of claim alleges that Wolff, along with Clayton Sparks, set up competing business through their corporation, Advance‑Tek Consulting Inc. The plaintiffs are consultants to businesses applying for scientific research and experimental development (“SR&ED”) grants from the Canada Revenue Agency. The plaintiffs allege that they have developed unique application process for the SR&ED grants. [3] The plaintiffs state that Wolff is bound by confidentiality and non‑competition agreement with DT Consulting. By sharing this information with the other defendants, Wolff has breached that agreement and his contract of employment. Furthermore, the plaintiffs state Wolff owes the plaintiffs fiduciary duty, and by competing with the plaintiffs, he has breached that duty. The plaintiffs seek injunctions against the defendants, return of property taken by the defendants, and damages for breach of contract and disgorgement of all profits gained through the breaches of fiduciary obligations. [4] Along with issuance of the statement of claim on March 29, 2007, the plaintiffs applied ex parte for an Anton Piller order against the defendants to seize computers, emails and files. The plaintiffs alleged that Wolff removed the plaintiffs’ confidential business information during his employ and was using it in conjunction with Sparks and their corporation, to compete against the plaintiffs in the business of SR&ED consulting. [5] granted the Anton Piller order on March 29, 2007, and the supervising solicitor conducted the search. After execution of the order, counsel for the defendants applied to vary the order. The parties directed draft consent order to the court on June 13, 2007. The consent order provides that the supervising solicitor would retain all documents, materials, computer discs and data until mutually agreed by the parties or further order. The plaintiffs would not, on an interim basis, seek any further order to restrain the defendants from competing with them. The defendants would not solicit any of the plaintiffs’ clients or employees, other than few specified clients. The defendants would not use or disclose any of the plaintiffs’ information or material. [6] The defendants deny that the plaintiffs have unique SR&ED application process and deny that the plaintiffs have proprietary right in that SR&ED application process. Wolff alleges the confidentiality and non‑competition agreement is void, and that there is no contract of employment. The defendants deny that Wolff owes fiduciary duty to the plaintiffs, and deny that the plaintiffs have suffered damages. The defendants launched counterclaim alleging unlawful interference with their business and certain unpaid salaries and commissions owed to Wolff. [7] The parties have been unable to proceed to discoveries because respective counsel have not provided disclosure to the other. The defendants’ counsel have not provided disclosure pertaining to the medical records which would tend to show mental anguish, nervous upset and depression as alleged by the individual defendants. Disclosure of the defendants’ loss of income has not been made. [8] The plaintiffs’ counsel states that it requires disclosure of the defendants’ financial information, and all documents pertaining to its consulting business with its present clients in preparing SR&ED applications. The plaintiffs state they are entitled to the defendants’ business records and financial information because they are entitled to the disgorgement of profits resulting from Wolff’s breach of fiduciary duty to the plaintiffs. The plaintiffs allege proprietary right to its SR&ED application process and require disclosure to determine if the defendants continue to wrongfully use their property since the execution of the Anton Piller order. The plaintiffs require disclosure of the names of the defendants’ clients to ensure that the defendants are not soliciting the plaintiffs’ own clients. The Application to Sever [9] Counsel for the defendants applies pursuant to Rule 41(1) and Rule 215(1) of The Queen’s Bench Rules and the Court’s inherent jurisdiction for an order severing the issues of liability and assessment of damages in the plaintiffs’ claim. That is, disclosure, discoveries and the trial ought to proceed to determine whether the defendants are liable to the plaintiffs and to what extent. Then, if liability is found, disclosure, discoveries and the trial should proceed to assess damages. Counsel for the defendants argue that, unless the lawsuit is bifurcated between liability and damages, the disclosure required by the defendants of its present business records and names of clients would seriously prejudice it. [10] In Saskatchewan, authority to sever the issues at trial is founded on the Court of Queen’s Bench inherent jurisdiction. While other provinces, such as Ontario, have specific rules addressing the withholding of disclosure until after an issue has been determined, our The Queen’s Bench Rules are silent on the matter. The case of Prairie Irrigation Development Ltd. v. Derdall (1984), 1984 CanLII 2267 (SK QB), 35 Sask. R. (Q.B.), makes reference to the repealed Kings’ Bench Rule 261 which allowed similar relief as Ontario’s present Rules 30.04(8) and 31.06(5) considered in L.C.D.H. Audio Visual Ltd. v. I.S.T.S. Verbatim Ltd. (1986), 1986 CanLII 2758 (ON SC), 54 O.R. (2d) 425 (Ont. H.C.). Case law has confirmed that such authority now rests with our inherent jurisdiction. [11] The Saskatchewan Court of Appeal in Potash Corp. of Saskatchewan Mining Ltd. v. Allendale Mutual Insurance Co. (1988), 1989 CanLII 5140 (SK CA), 80 Sask. R. 184 (C.A.), clarified that, although there is no specific rule in The Queen’s Bench Rules, such authority lies with the Court to sever an action. Bayda C.J.S. stated at paragraph 26: [26] That is not to say that plaintiff is never entitled to divided discovery and production of documents and never to divided examinations-for-discovery. Other common law provinces have specific rules governing those divided procedures. refer to Ontario’s Rules 31.06(5) and 30.04(8) and to Alberta’s Rule 223, British Columbia’s Rule 26(15), Manitoba’s Rule 316, Newfoundland’s Rule 32.02(c), Nova Scotia’s Rule 20.02(c) and Prince Edward Island’s Rule 20.02(c). Only Saskatchewan and New Brunswick have no similar rules. Despite the absence of specific rule in Saskatchewan, have no doubt that the court is empowered to order divided discovery and production of documents and divided examinations‑for‑discovery, that is to say, the court has the power to order severance for purposes preliminary to trial as well as trial. [12] The principles articulated in Potash Corp., supra, have been applied in such cases as Chieftain Industrial Contractors and Consultants Ltd. v. Man‑Ore Industrial Contractors Ltd. (1990), 1990 CanLII 7438 (SK QB), 81 Sask. R. 223 (Q.B.). At paragraph 24, Wright J. stated: .. The first, and most important issue, has to do with R's application to sever the issue of damages and to postpone it until liability has been determined. Both counsel conceded that the Court has the inherent jurisdiction to sever and postpone. This view has been expressed number of times and some of those expressions have emanated from the Saskatchewan Court of Appeal. The most helpful decision however is perhaps the most recent of the same Court, Potash Corporation of Saskatchewan v. Allendale Mutual Insurance Company (judgment rendered October 15, 1989). In that decision, the Chief Justice reviews, with care, the principles that are applicable to applications of this sort. What he had to say there is, in my respectful view, particularly apt to this application and for the reasons there expressed, would not grant the application for severance and postponement. [13] More recently, Laing C.J.Q.B. reviewed the discretion available to the Court in such situations in the case of Chaban v. Kramer Ltd., 2008 SKQB 27 (CanLII), [2008] S.J. No. 133 (Q.B.) (QL). At paragraphs and 6, Laing C.J.Q.B. outlined the factors to be considered in determining whether severance should be granted: [5] The decision to postpone disclosure or discovery with respect to matter that is admittedly relevant to the pleadings is discretion that is available to the Court, but is one which has been judicially circumscribed. In Potash Corporation of Saskatchewan Mining Ltd. v. Allendale Mutual Insurance Co. (1989), 1989 CanLII 5140 (SK CA), 80 Sask. R. 184, (C.A.), Bayda C.J.S., on behalf of the Court, in paragraph 28, noted as follows: [28] In the first place, divided discovery and production of documents and divided examinations‑for‑discovery should be resorted to in only the clearest of cases. The order should be made only in case that is clearly destined to be severed for the purposes of the trial. It should be made in an exceptional case where the plaintiff has established that the failure to make the order would be oppressive to him or her or cause him or her serious prejudice. Ordinary prejudice and inconvenience may or may not be deterrent to the making of an order (for discussion of the difference between the two degrees of prejudice see: L.C.D.H. Audio Visual Ltd. v. I.S.T.S. Verbatim Ltd. (1986), 1986 CanLII 2758 (ON SC), 54 O.R. (2d) 425 (O.H.C.J.) at 436 per Henry J.). [6] In L.C.D.H. Audio Visual Ltd. v. L.S.T.S. Verbatim Ltd. (1986), 1986 CanLII 2758 (ON SC), 54 O.R. (2d) 425 (O.H.C.J.), referred to by Bayda C.J.S. in the foregoing, Henry J. in that decision made the following points: (a)The discretion to postpone discovery or disclosure of documents may only be exercised when there is clear severability between the threshold issue and the consequential issue (damages). (b)In the normal course, the discretion should only be exercised if there is severe prejudice to the moving party as opposed to ordinary prejudice. (c) If severe prejudice is established, there still remains discretion in the court. (d) One of the factors to take into account in exercising the discretion should be that resolution of litigation by settlement is now generally endorsed, and consideration should be given to whether disclosure of the information is desirable for this reason. [14] Upon considering the factors summarized in Chaban, supra, it must be concluded that the defendants’ application has merit. First, there is clear severability between the threshold issue of liability and the consequential issue of damages in the plaintiffs’ action. The entitlement to sue for the disgorgement of profits hinges on whether Wolff, as its former employee, was in position of fiduciary. This is not the case of alleging one of the traditional classes of fiduciary, such as trustee and cestui que trust or solicitor and client. The fiduciary relationship must be found on the specific facts proven in the case. Disclosure pertaining to the defendants’ ongoing business, financial affairs and clientele become relevant only upon finding of liability. [15] Secondly, the Court may exercise its discretion only if the Court can make finding that the defendants will suffer severe prejudice if the issues of liability and damages are not bifurcated. In this application, the defendants assert that they have developed their own SR&ED application process by cultivating relationships with accounting firms, industry associations, post‑secondary learning institutions and various business organizations. Much of the defendants’ client base results from a joint venture with a major accounting firm. This joint venture requires confidentiality. Disclosure of these relationships would jeopardize the defendants’ obligation to maintain this confidence. The defendants could be liable to the accounting firm should it breach that confidence. [16] The defendants’ situation is not unlike that of the defendants in Reichmann v. Vered, [1995] O.J. No. 1662 (Ont. Ct. Gen. Div.) (QL), where Chilcott J. applied the factors articulated in L.C.H.D. Audio Visual, supra, and concluded that immediate disclosure pertaining to an accounting would seriously prejudice the defendants. At paragraphs 15 and 16, the Court states: [15] The Court must also determine that there will be serious prejudice by immediate disclosure. There are two other actions in which the same or related parties are involved. have read the affidavit of Gilad Vered and he has indicated in the affidavit the market for engineering and consulting work in which Ron International and other Vered family corporations are involved is highly competitive. He indicates that to reveal financial statements, operating costs, engineering methods, terms of leases and of financing to Reichmann and his companies would harm Ron International and other Vered family corporation’s competitive position. [16] am persuaded that to have to answer these questions and provide these documents would severely prejudice the defendants. [17] The presiding judge in Reichmann, supra, in exercising his discretion, considered the great expense and resources required to assemble the information. The Court also considered that the disclosure sought by the plaintiff would reveal information about other of the defendants’ family corporations who were strangers to the litigation. The Court ruled that production and discovery on the consequential issue of damages and profits be withheld until determination of the defendants’ liability. [18] Serious prejudice to the defendants in the instant case has been established. It is appropriate to exercise my discretion in their favour and grant the order to sever the plaintiffs’ claim against them. In exercising my discretion, have considered the effect of disclosure on promoting settlement between the parties. The issues in this litigation are such that delay in full disclosure of material pertaining to damages makes little difference. Both parties know the profitability of the SR&ED consulting business. The risks that must be weighed in considering settlement pertain to liability. Those risks have not changed by granting the defendants their application. [19] Counsel for the plaintiff submits that the case of Anderson Preece Associates Inc. v. Dominion Appraisal Group Inc., 2000 ABQB 254 (CanLII), 264 A.R. 177, is on point. The plaintiffs in that action sought further disclosure of documents taken by the defendants from the plaintiffs’ appraisal company. The defendants in that case argued that they should not disclose the plaintiffs’ documents the defendants later modified. The Court found the modified documents must be disclosed. [20] The Anderson Preece case is not helpful in this application because it does not ask the Court to determine whether the action should be severed. The Alberta Court considered the application under its Alberta Rules of Court pertaining to the contents of the defendants’ affidavit of documents. [21] Counsel for the plaintiffs argues that bifurcation of the liability and damages issues will lead to further motions if the parties cannot agree on the characterization of the documents or the questions in discovery. agree that some debate may occur between counsel on this point. However, that does not outweigh the severe prejudice the defendants would suffer without the order for bifurcation. If objections arise pertaining to what ought to be produced or discovered, either counsel has leave to bring the matter back to court. [22] Counsel for the plaintiffs submits that, without the defendants providing full disclosure at this stage, the plaintiffs have no assurance that the defendants are not pursuing their clients. That is not valid concern because the plaintiffs already have an immediate remedy should the defendants poach their clients. The defendants would be liable for breach of the consent order of June 13, 2007. The plaintiffs can easily discern if the defendants are breaching that order. At this stage, no breach has been alleged. [23] Counsel for the plaintiffs further submits that, without disclosure of the defendants’ work product, it is unable to prove that the defendants are continuing to utilize the SR&ED application process to which the plaintiffs claim proprietary right. However, the documents seized under the Anton Piller order have provided full disclosure to the plaintiffs of the defendants’ work product. Those documents will support the plaintiffs’ claim, if successful, on the threshold issue of liability. The defendants’ ongoing work product becomes relevant to the issue of damages and must be disclosed to the plaintiffs if the litigation reaches that second stage. The plaintiffs are not disadvantaged in their claim by allowing the defendants to withhold their work product at this stage. [24] The application to sever the threshold issue of liability from damages only pertains to the plaintiffs’ claim. The defendants’ counterclaim against the plaintiffs and their two principals shall continue in the normal course. It follows that the defendants must disclose documents relevant to their counterclaim alleging damages suffered as result of the plaintiffs’ tortious actions. In turn, the plaintiffs are required to disclose documents pertaining to Wolff’s salary and commissions. [25] The plaintiffs have specifically sought an order for disclosure of “documents relating to the incorporation and corporate ownership of Advance‑Tek Consulting Inc. and any and all of its predecessors and/or affiliates”. Because these documents are relevant to liability, the defendants are ordered to disclose them. The Application to Strike Portion of the Pleadings [26] The defendants seek an order pursuant to Rule 173 of The Queen’s Bench Rules striking paragraphs 10, 11 and 23 of the plaintiffs’ claim. These paragraphs refer to Wolff being an applied science technologist and holding himself out as person with strong sense of ethics, which was important to the plaintiffs as Wolff would be privy to sensitive information. The plaintiffs plead that the code of ethics for an applied science technologists provides that person with such designation “will not use directly or indirectly an employer’s or client’s confidential information in any way which is competitive, adverse or detrimental to the interests of the client.” The plaintiffs further allege that Wolff has breached the code of ethics. [27] The defendants’ application to strike these portions of the claim is dismissed. While Wolff may be subject to discipline by his governing body, that does not constitute multiplicity of proceedings as defined by s. 29 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q‑1.01. Paragraphs 10, 11 and 23 are material facts, relevant to the plaintiffs’ claim of Wolff’s breach of fiduciary duty and breach of contract. They are properly pled. [28] The defendants are granted their application to have the plaintiffs’ claim severed so that the threshold issue of liability shall be tried prior to requiring the defendants to disclose and be discovered on the issue of damages. [29] The defendants’ application to strike portions of the plaintiffs’ claim is dismissed. [30] Because success has been divided, there will be no order as to costs. [31] Any further applications pertaining to this litigation are to be directed to my attention in the first instance. J. A.R. Rothery","FIAT: The defendant applies pursuant to Rule 41(1) and Rule 215(1) of the Queen's Bench Rules and the inherent jurisdiction of the Court for an order severing the issues of liability and assessment of damages in the plaintiff's claim. They ask that disclosure, discoveries and the trial ought to proceed to determine whether the defendants are liable to the plaintiffs and to what extent. Then, if liability is found, disclosure, discoveries and the trial should proceed to assess damages. The defendant also seeks an order pursuant to Rule 173 of the Queen's Bench Rules striking a paragraph of the plaintiff's claim. HELD: 1) Authority to sever trials in Saskatchewan is founded on the Court's inherent jurisdiction. Laing C.J.Q.B. reviewed the discretion available to the Court in Chaban v. Kramer Ltd., 2008 SKQB 27. Upon considering the factors in Chaban, it must be concluded that the defendants' application has merit. There is clear severability between the threshold issue of liability and the consequential issue of damages in the plaintiffs' action. The entitlement to sue for disgorgement of profits hinges on whether the defendant, as the plaintiff's former employee, was in a position of a fiduciary. Disclosure pertaining to the defendants' ongoing business, financial affairs and clientele become relevant only upon a finding of liability. The Court may exercise its discretion only if the court can make a finding that the defendants will suffer severe prejudice if the issues of liability and damages are not bifurcated. Much of the defendants' client base results from a joint venture with a major accounting firm. This joint venture requires confidentiality. Disclosure of these relationships would jeopardize the defendants' obligation to maintain this confidence. Serious prejudice to the defendants in the instant case has been established. It is appropriate to exercise the Court's discretion in the defendants favour and grant the order severing the plaintiffs' claim against them. The application to sever the threshold issue of liability from damages only pertains to the plaintiffs' claim. The defendants' counterclaim against the plaintiffs and their two principals shall continue in the normal course. 2) The defendants' application to strike portions of the plaintiffs' statement of claim is dismissed. The paragraphs refer to Wolff being an applied science technologist and holding himself out as a person with a strong sense of ethics. The plaintiffs plead that the code of ethics for an applied science technologist provides that a person with such a designation will not 'use directly or indirectly an employer's or client's confidential information' in competition with the client and alleges that Wolff has breached the code of ethics. While Wolff may be subject to discipline by his governing body, that does not constitute a multiplicity of proceedings as defined by s. 29 of The Queen's Bench Act. The facts pled are material facts relevant to the plaintiff's claim of Wolff's breach of fiduciary duty and breach of contract.",9_2008skqb301.txt
269,"2004 SKQB 12 Q.B.G. A.D. 2003 No. 2147 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: MARY BULIZIUK and GEORGE BULIZIUK and PUBLIC TRUSTEE, ADMINISTRATOR OF THE ESTATE OF HELEN PISCHNOT RESPONDENT R.G. Gates, Q.C. for the applicants G.A. Treleaven for the respondent JUDGMENT MATHESON J. January 15, 2004 [1] The applicants have applied for an order setting aside the grant of Letters of Administration of the Estate of Helen Pischnot and granting to them Letters Probate with respect to a document, or documents, purporting to be the last will and testament of Helen Pischnot in which they are named as executors and sole beneficiaries. [2] The applicants met Helen Pischnot in September, 1996. The second hand store operated by the applicants was less than block from where Helen Pischnot resided. [3] In December, 1996, Helen Pischnot became ill. The applicants began attending at her residence three times each day, to bring groceries to her, clean her house, shovel snow from her sidewalks, mow her lawn and effect minor repairs to the house. [4] In February, 1999, Helen Pischnot fractured her hip. The applicants transported her to the hospital, where she was confined for two months. The applicants visited Helen Pischnot in the hospital three times each day, and looked after her house and cat. On the hospital social work referral form it is stated, under the heading of Next of Kin, “no family”, but the plaintiffs were listed as “friends”. [5] After Helen Pischnot was released from the hospital on April 7, 1999, the applicants continued to visit her each day and assist her with chores and errands. [6] In August, 1999, Helen Pischnot gave to the applicants an old tape recorder which required repairs. After it was repaired conversation between the applicants and Helen Pischnot was recorded and subsequently transcribed. It is clear from the transcript that Helen Pischnot wanted all of her property to go to the applicants upon her death. [7] On January 10, 2000, Sheri A. Hupp, at the time an associate with the law firm of Gates and Company, met with Helen Pischnot. Sheri Hupp does not recall the meeting, but she made notes at the time. Helen Pischnot stated that she wanted will prepared; the applicants were to be named as executors and sole beneficiaries. [8] On January 26, 2000, Sheri Hupp again talked to Helen Pischnot, who apparently did not recall the conversation on January 10. However, she asked Sheri Hupp if she had will. She was told “Not yet because she hadn’t signed anything”. [9] Helen Pischnot told Sheri Hupp not to come to her residence that afternoon because she was feeling sick; she had the flu. Helen Pischnot declined to set date for the signing of the will which Sheri Hupp had drafted. [10] On February 8, 2000, Sheri Hupp went with Ronald Gates to Helen Pischnot’s residence. Mary Buliziuk was at the residence when they arrived and informed them that Helen Pischnot had fallen the previous evening and had the shakes. [11] Ronald Gates went into Helen Pischnot’s bedroom to talk to her. When Sheri Hupp, who apparently had the draft will with her, joined them in the bedroom she noted that Helen Pischnot was sitting in chair and looking very weak; she was non-responsive. Nevertheless, Helen Pischnot said her hand hurt and she could not sign the will. [12] When Helen Pischnot was asked what she wanted in her will, she said whatever you want. When asked again “She said you know want to leave everything to you (ie. Ron)”. [13] Helen Pischnot died shortly thereafter without signing the document proffered as her last will and testament. [14] On April 26, 2001, the Public Guardian and Trustee of Saskatchewan was appointed administrator of Helen Pischnot’s estate. No beneficiaries have been located. There is $44,245.25 in cash remaining in the estate trust. [15] The applicants have applied for an order declaring that the draft will prepared by Sheri Hupp, or her notes, or both, be admitted to probate as the last will and testament of Helen Pischnot. LEGAL REQUIREMENTS FOR WILL [16] The law of wills in Saskatchewan is governed by The Wills Act, 1996, S.S. 1996, c. W-14.1 (the “Act”). [17] Section of the Act states that holograph will, wholly in the handwriting of the testator, and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by witness. Otherwise, s. 7(1) provides the formalities for valid will: 7(1) Unless provided otherwise in this Act, will is not valid unless: (a) it is in writing and signed by the testator or by another person in the testator’s presence and by his or her direction; (b) it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will; (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses who are in the presence of the testator at the same time; and (d) at least two of the witnesses in the presence of the testator: (i) attest and sign the will; or (ii) acknowledge their signatures on the will. [18] The documents propounded as the will of Helen Pischnot do not, of course, comply with the requirements of s. 7(1). However, the applicants have referred to s. 37 of the Act, which states: 37 The court may, notwithstanding that document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where court, on application is satisfied that the document or writing embodies: (a) the testamentary intentions of deceased; or (b) the intention of the deceased to revoke, alter or revive will of the deceased or the testamentary intentions of the deceased embodied in document other than will. INTERPRETATION OF SECTION 37 [19] In Re Balfour Estate (1990), 1990 CanLII 7460 (SK QB), 85 Sask. R. 183 (Sask. Q.B.), Gerein J. noted that the equivalent section in the Manitoba statute had been interpreted in Re Pouliot (1984), 1984 CanLII 3766 (MB QB), 30 Man. R. (2d) 178; 1984 CanLII 3661 (MB QB), 17 E.T.R. 225; Re Briggs (1985), 21 E.T.R. 127; and Kuszak v. Smoley (1986), 1986 CanLII 4996 (MB QB), 46 Man. R. (2d) 14; 23 E.T.R. 237 as giving the court broad discretion to validate testamentary document. He agreed with that approach. [20] Instructions for will have been accepted as valid will, but only if properly executed: Re McNeil (1918) 45 N.B.R. 479 (C.A.); George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.). [21] In Re Mate Estate (1999), 1999 CanLII 12652 (SK QB), 179 Sask. R. 298 (Sask. Q.B.), the applicants had applied for probate of the instructions delivered by Elizabeth Mate to her solicitor. The notes had not been signed by Elizabeth Mate. Dielschneider J. noted that although Gerein J. had concluded, in Re Balfour Estate, supra, that s. 37 of the Act should be interpreted as giving the court broad discretion to validate testamentary documents, Gerein J. had also stated: [6] Yet it must be kept in mind that the section’s purpose is to overcome noncompliance with formal requirements. It does not empower the court to render document testamentary in nature when it is otherwise not so. [22] Dielschneider J. remarked that “Some form of execution must appear on the document sought to be admitted to probate pursuant to this section. Section 37 does not dispense entirely with the requirements of s. but rather grants relief against its formality.” [23] The solicitor’s notes were not accepted as the last will and testament of Elizabeth Mate. [24] An appeal was taken from the refusal by Dielschneider J. to accept the solicitor’s notes. In an oral judgment dated May 17, 2000, the Saskatchewan Court of Appeal stated that “We are not satisfied that Mr. Justice Dielschneider erred in his construction and application of s. 37 of The Wills Act”. [25] Section 37 of the Act permits the court to order document to be fully effective as will notwithstanding that “it was not executed in compliance with all the formal requirements imposed by this Act” (emphasis added). The discretion granted to the court does not extend, however, as concluded in Re Mate Estate, supra, to endorsing a document as testamentary which does not comply with any of the formal requirements of the Act as to execution; in particular, a document which does not bear the signature of the deceased. [26] Although there is no reason not to accept the assertion of Sheri Hupp that her notes accurately reflect the instructions she received from Helen Pischnot, it has been acknowledged that not only did Helen Pischnot not sign either the notes of Sheri Hupp or the draft will, she never saw either of those documents. [27] Helen Pischnot no doubt intended to bequeath her assets to the applicants. However, she did not do so in any manner prescribed by The Wills Act. Thus, regretfully, it must be concluded that the documents presented as the last will and testament of Helen Pischnot do not meet the statutory requirements for valid last will. Consequently, the application must be dismissed, but under the circumstances the applicants shall be entitled to their costs, on a solicitor and client basis, to be approved by me, payable from the estate assets.","The applicants asked for an order setting aside the grant of Letters of Administration and granting Letters Probate with respect to a document purporting to be the Will of the deceased. The document was a draft Will prepared by the deceased's solicitor, which was never signed. HELD: The application was dismissed, but the applicants were entitled to their costs on a solicitor and client basis, payable from the estate. Section 37 of The Wills Act permits the Court to order a document to be fully effective as a Will notwithstanding that it was not executed in compliance with all the formal requirements imposed by the Act. The discretion granted to the Court does not extend to endorsing a document as testamentary which does not comply with any of the formal requirements of the Act as to execution, and, in particular, a document which does not bear the signature of the deceased.",5_2004skqb12.txt
270,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 438 Date: 2007 12 03 Docket: DIV. No. 570 of 1997 Judicial Centre: Saskatoon, Family Law Division BETWEEN: BARBARA HELEN FLASCH and GREGORY CHARLES FLASCH Appearing: Barbara Helen Flasch petitioner, on her own behalf Gregory Charles Flasch respondent, on his own behalf JUDGMENT McMURTRY J. December 3, 2007 [1] The respondent father applied to vary an order made May 14, 2002 by Justice M.E. Wright. The order provides for child support, payable to the petitioner mother on behalf of the two youngest children, Michael, born March 15, 1990, and Jessica, born December 30, 1991. Mills J. directed a trial on the issues of the residence of Michael in 2006; the incomes of the father and mother, for the purposes of the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”); and, any s. 7 expenses. At the hearing, the parties agreed that it would be beneficial also to address the issue of any ongoing s. expenses. Residence of Michael [2] Jessica and Michael have lived with the mother since the parties divorced on February 21, 1998. In June, 2006, however, Michael began living in Saskatoon in order to be eligible to play with particular AAA baseball team. To that end, his parents entered into guardianship arrangement with his maternal aunt. Although the agreement stipulated that he live with his aunt, in fact, Michael began living with his maternal grandmother on the west side of the city. While there, his mother paid his grandmother $400.00 each month for room and board and she gave Michael an allowance. [3] In July, 2006, the father decided to move from the west side of Saskatoon to larger, more expensive apartment on the east side, to accommodate what he understood to be Michael’s interest in moving in with him and Jerrilyn, Michael’s older sister. The father mistakenly believed that it was necessary for Michael to live on the east side of Saskatoon, when in fact Michael’s attendance at an east side school satisfied the residency requirements of the baseball league. In September, 2006, Michael moved in with his father and Jerrilyn. [4] Michael’s schedule was very busy. In an affidavit filed with the Court, Michael stated that he played baseball at competitive level, requiring couple of hours practice or play each day and road trip every second weekend. In addition to baseball, Michael played football and attended school. He needed vehicle to be able to keep up his activities. (Michael was permitted to file an affidavit, rather than testify as determined that it was not in Michael’s best interests to testify, particularly as the parties are self-represented.) During the summer of 2006, Michael had the use of his mother’s vehicle because she was in Viet Nam visiting her husband. When she returned in August, 2006, Michael had the use of his step-father’s truck. [5] Michael’s use of his step-father’s truck was conditional upon some rules. The truck had to be parked in his grandmother’s driveway every night. It had to be kept cleaned and regularly maintained and Michael could not take the truck out of town without his mother’s permission. The conditions made it hard for Michael to use the truck and live with his father. [6] The father works for CN Rail as railway conductor. He is away from home between seven and sixteen nights month, depending upon the runs he is assigned. When he is in town, he is available to drive Michael, but his vehicle is not available to Michael otherwise. Problems with transportation eventually lead to Michael spending most of his time at his grandmother’s house. In his affidavit, Michael stated that from mid-September, 2006, until the end of January, 2007, he split his time “approximately equally” between his father’s house and his grandmother’s house. [7] The father’s evidence is that Michael spent more nights at his grandmother’s after September because of conditions placed on the truck, although he said that Michael still ate his meals at his father’s house. The father does acknowledge, however, that he was away from home working almost half of every month. The father also acknowledged that Michael had to make arrangements with others to transport him when he lived at his house. The father testified that Michael stopped living with him after car accident on February 22, 2007 when the vehicle Michael was driving at that time was rendered inoperable. The vehicle was truck loaned to him by his paternal uncle in mid- January, 2007. [8] do not find that there is much conflict in the evidence. I am satisfied that from September 4, 2006 until, approximately, February 22, 2007, the parties shared custody of Michael. Whether the shared custody arrangement, which lasted only short period of time, warrants retroactive support order will be addressed next. Shared Custody [9] In Fraser v. Fraser, 2007 SKQB 398 (CanLII); [2007] S.J. No. 580 QL (Sask. Q.B.) (at paras. 12-15), Ryan-Froslie J. summarized the usual approach taken by courts in shared custody situations following the Supreme Court of Canada decision in Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII); [2005] S.C.R. 217: ¶12 As general rule, child support is paid pursuant to s. of the Guidelines in accordance with the applicable Table. One exception to this general rule is s. of the Guidelines which applies when parents “share” custody of their children, and in particular when parent exercises right of access to or has physical custody of child for not less than 40% of the time over the course of year. Section reads as follows: 9. Where spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. ¶13 The leading authority with regard to calculating child support pursuant to s. of the Guidelines is the Supreme Court of Canada decision of Contino v. Leonelli-Contino, [2005] S.C.R. 217, 2005 SCC 63 (CanLII). ¶14 Section of the Guidelines provides the Court with discretion in awarding child support in shared custody situations to ensure fairness. That section requires the Court to take into account three factors in determining the appropriate level of child support, namely: (i) The Table support applicable to each party; (ii) Any increased costs associated with the shared custody arrangements; and (iii) The condition, means, needs and other circumstances of each parent and the children for whom support is sought. ¶15 As the Supreme Court of Canada pointed out in Contino, s. does not provide presumption in favour of Table support, nor does it provide presumption in favour of the proposition that parent who exercises access more than 40% of the time will have his or her child support obligation decreased. Rather, s. gives to the Court discretion to review all of the relevant circumstances in an attempt to achieve fair standard of support for the children involved. (Emphasis added) [10] As is noted above, s. directs the court to consider that shared parenting situation exists whenever “a spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year. .” In this case, Michael began living with his father at least 40% of the time in September, 2006. This ended in January or February, 2007, which is a period of no more than five months. Thereafter, he resumed living with his grandmother and was supported by his mother. Accordingly, the father does not meet the threshold provided for in s. 9. As Justice Wright explained in Hus v. Hus (1998), 1998 CanLII 13597 (SK QB), 174 Sask. R. 317, [1998] S.J. No. 803: [5] The onus is on the parent wishing to invoke the operation of s. to demonstrate to the court's satisfaction that shared custody arrangement as contemplated by s. is in fact in place, and has been, or will be in place over the course of year. While it is not necessary that there be in all circumstances written agreement or court order to this effect before the onus can be discharged, the court should, in my opinion, exercise caution before imposing s. child support regime on what may be short-term informal custody arrangement. [11] In the absence of shared parenting regime, child support is based on the father’s income and the applicable table. Incomes of the Parties [12] Neither party has filed their 2006 tax return. The father’s T-4 from his long-time employer CN shows earnings of $109,694.49. In evidence he indicated that his union dues for 2006 were much the same as in 2005, which were $1,065.00. Accordingly, find his 2006 income to be $108,629.49. The mother’s 2006 income consisted only of investment income of $1,672.37. The mother also receives an allowance from her husband, from whom she is separated, in the amount of $2,000.00 each month. Section Expenses [13] Both Michael and Jessica have significant expenses in their respective sports, baseball and speed skating. The mother has been responsible for Jessica’s expenses, however, some confusion arose in 2006 with respect to Michael’s. The guardianship agreement, which was for period of three months, provided that the father pay for Michael’s extraordinary expenses. Accordingly, he paid for number of baseball related expenses that previously the mother had paid for. The mother also continued to pay for some expenses. In addition, Michael’s school and clothing expenses were paid by both his mother and his father. [14] The parties have been divorced since 1998. Michael has played AAA baseball since 2004. Jessica has speed skated since 2001. The mother has paid the extraordinary expenses of both children, without reimbursement from the father. It was only in 2006 that the father paid any of Michael’s expenses. Accordingly, 2006 is not the appropriate year to begin reimbursing the father for expenses he may have paid for Michael. To do so would be exceedingly unfair to the mother who has borne the expenses of both children on her own for many years. [15] am satisfied that Michael and Jessica’s expenses related to fees, registration and equipment for baseball and speed skating are extraordinary expenses within the meaning of s. of the Guidelines. am satisfied also that the orthodontic work needed by Michael and the medical/dental fees not covered by the father’s employer’s insurer also fall within s. 7. The baseball and speed skating expenses, as outlined above, may be estimated at $2,000.00 and $1,000.00, respectively, for total of $3,000.00, annually. In addition, the orthodontic work, which is estimated at $2,522.00, should be amortized over two years, which works out to $1,261.00 each year. do not consider the alternative acne treatment, proposed by the mother for Jessica, to be an appropriate health related expense, covered by s. 7, in the absence of medical referral or prescription. Therefore, find the total ongoing s. expenses to be $4,261.00, annually. [16] These parties do not speak to one another, notwithstanding the difficulty it undoubtedly causes their children. It is not practical to order that the mother produce receipts for reimbursement from the father. Two incidents illustrate why not. In the fall of 2006, the mother paid for dental appointment for Jessica and submitted the charge to the father’s insurer for reimbursement. The father was paid by the insurer and he refused in turn to remit the payment to the mother. The second example is the father’s refusal to provide signed insurance forms to the mother, notwithstanding clear direction to do so in the fiat of M-E. Wright J., dated June 28, 2002. In any event, both parties have requested that determine the appropriate amount to be paid by the father each month to cover s. expenses. [17] Section of the Guidelines provides as follows: 7.(1) In child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health‑related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post‑secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d) and (f), the term ""extraordinary expenses"" means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc. (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. Universal child care benefit (4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. [18] As noted above in s. 7, the parties are responsible for their proportionate share of expenses according to their income. am attributing income to the mother in the amount of $2,000.00 each month which is the allowance she receives from her estranged husband. Accordingly, for the purposes of s. 7, the mother’s income is $25,672.37. The father’s income is $108,629.49. The father’s proportionate share is 80%; the mother’s is 20%. The current s. expenses total $4,261.00 yearly. The father’s share is 80% of that amount, or $3,408.80. Paid monthly, the amount is $284.00. [19] am directed by the order for trial by Mills J. to determine, amongst other things, the incomes of the parties. Although the mother did not bring an application to vary child support upward, the filing of the application to vary by the father is sufficient to re-determine the issue of child support based on current incomes. The current order, dated May 12, 2002 provides for child support, payable to the petitioner mother on behalf of the two youngest children, Michael, born March 15, 1990, and Jessica, born December 30, 1991, in the amount of $1,065.00 each month. The support order is based on the father’s income at that time of $87,794.00. The father’s income is considerably higher now. Beginning December 1, 2007, the father will pay support in the amount of $1,486.00 each month, based on income of $108,629.49, on behalf of Michael and Jessica, for as long as they remain children within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). In addition, the father will pay $284.00 each month, beginning December 1, 2007, for the s. 7 expenses, until further order, or for as long as Michael and Jessica remain children within the meaning of the Divorce Act. [20] The mother seeks costs for two court appearances, before this was set down for trial, when she was represented by counsel. The mother is entitled to costs in the amount of $500.00, payable forthwith. J. J. E. McMurtry","The parties have two children, a son born March 1990 and a daughter December 1991. A trial on the issues of the son's residence in 2006, the parties' income for the purposes of child support and any s. 7 expenses was held. HELD: 1) From September 2006 to February 2007 the parties shared custody of the son. This is a period of no more than 5 months. Thereafter he resumed living with his grandmother and was supported by his mother. The father does not meet the threshold provided for in s. 9 of the Guidelines.  2) The father's income from employment shows earning of $108,629. The mother's income consisted only of investment income of $1,672.37 and allowance of $2,000. 3) The parties have been divorced since 1998. The son has played baseball since 2004. The daughter has speed skated since 2001. The mother has paid the extraordinary expenses of both children, without reimbursement from the father. It was only in 2006 that the father paid any of the son's expenses. Accordingly, 2006 is not the appropriate year to begin reimbursing the father for expenses he may have paid for him. To do so would be exceedingly unfair to the mother who has borne the expenses of both children on her own for many years.  4) The children's expenses related to fees, registration and equipment for baseball and speed skating are extraordinary expenses within the meaning of s. 7 of the Guidelines. The expenses may be estimated at $2,000 for baseball and $1,000 for speed skating, annually. The orthodontic work, which is estimated at $2,522 should be amortized over two years. The alternative acne treatment, proposed by the mother for the daughter is not an appropriate health related expense in the absence of a medical referral or prescription. The father's proportionate share is 80% and the mother's is 20%. Paid monthly the father's payment is $284. 5) Although the mother did not bring an application to vary child support upward, the filing of the application to vary by the father is sufficient to re-determine the issue of child support based on current incomes. The current support order is based on the father's income of $87,794. His income is considerably higher now. His child support payments are adjusted accordingly.",4_2007skqb438.txt
271,"IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. M.M., 2011 NSPC 27 Date: April 19, 2011 Docket: 2261626, 2261628, 2261630, 2261632, 2261634, 2261636, 2261638, 2261640, 2261642, 2261644, 2261646, 2261648, 2261650, 2261652, 2261654, 2261656, 2261658, 2261660, 2261662 Registry: Halifax Her Majesty the Queen v. M.M., young person DECISION Judge: The Honourable Judge Jamie S. Campbell Heard: April and 8, 2011 Decision: April 19, 2011 Charges: cc 344, cc 267(a) 2, cc 264.1(1)(a), cc 279(2), cc 87, cc 88(1), cc 88(1), cc 94(1), cc 94(1), cc 95(2), cc 86(1), cc 86(2), cc 90 3, cc 91(2) 2, cc 92(1), cc 96(1) Counsel: John Nisbet Crown Attorney Eugene Tan Defence Counsel By the Court: [1] On December 13, 2010 the police stopped a car driven by Candace MacDonald. It was suspected of having been involved in a robbery with a firearm at a specific address in Sackville. In the car were the driver, Candace MacDonald, another adult, Cody Muise and two young men, K.M. and M.M. In the car were also found, some drugs, some items reported to have been stolen in the robbery, set of brass knuckles and 32 calibre semi-automatic handgun. The gun was found under the back seat of the car, loaded. [2] M.M. has been charged with number of offences, including robbery. He provided statement to the police. That might be an overly generous description. It might be more accurate to say that he just said some random things. He said that he and Candace MacDonald were in the car. They picked up some guys, at some building, somewhere in Fairview. At first he said he didn’t know the guys but then agreed that he just didn’t want to name them. Given that the two guys were in the car with M.M. when the police stopped it in high risk take down and that their identities would be pretty quickly determined, that is perhaps technically in strict compliance with the non-ratting provisions of the code of the street. Otherwise, it doesn’t seem to make much sense at all. [3] He said that he had not been in Sackville at all. He had nothing to do with any robbery. It was not at all clear how and when he ended up in the car with Candace MacDonald. While at the police station, M.M. was observed by the police reaching into the waistband of his pants. He took out gold and diamond ring that had been reported stolen in the robbery and placed it on his finger. M.M. is found in car, with the property reported stolen in the robbery, now wearing the ring reported to have been stolen. [4] It only gets worse. K.M., the other young person in the car, pleaded guilty to the robbery and to the possession of the gun and the brass knuckles. While that may be seen as taking the responsibility it has another affect. It means that M.M. was found, in the car, with the gun and the stolen property, with the stolen ring directly in his possession, in the company of person who has now admitted to having committed the robbery, having the gun and having the brass knuckles. [5] K.M. gave evidence. He was not asked about what had taken place during the robbery or who had been there when it happened. In other words, he was not asked to implicate M.M. directly. He just confirmed that he had pleaded guilty to those offences. As he left the courtroom, M.M. said to him, “Thanks buddy”. [6] The driver of the car, Candace MacDonald gave evidence as well. She too is facing criminal prosecution arising from this incident. She was not asked about the robbery itself. She was asked only about the drive from her home in Sackville and the route she took. She said she drove directly from her home to the point where the vehicle was stopped by the police. She said that she did not stop anywhere else. It was direct drive. [7] Her evidence is in direct contradiction to some of what M.M. said to the police. No one was picked up in Fairview according to Candace MacDonald. Two guys were not picked up. The evidence given by Ms. MacDonald and M.M. is the same in this sense though. Neither of them suggested that M.M. was picked up anywhere along the highway or in Fairview. The circumstantial evidence at this point is piling up. [8] K.M. admitted to doing the robbery. The car left Sackville, where the robbery is supposed to have taken place and he was in the car when it was stopped. Candace MacDonald said they didn’t stop to pick anyone up or drop anyone off. It is entirely logical to infer that the people found in the car when it was stopped by the police were the people who got in the car when it left Sackville. [9] Candace MacDonald’s car was stopped on Northwest Arm Drive. The police observed the car taking the exit from the highway from Sackville. Had it gone to Fairview, using this exit would have required considerable backtracking. From the time when the robbery report was called in, to the take down by the police, would allow for direct drive from the address in Sackville to the place on Northwest Arm Drive where the car was stopped. It was suggested that the times are not precise. The time when the robbery is said to have taken place could be off by some minutes. The time of the police stop could also be off by some minutes. The time of the drive itself would depend on the traffic patterns at the time. [10] Considering the time periods involved, it is possible that stop was made. The time allows for that. The other evidence doesn’t. The problem is that Candace MacDonald herself said nothing about stopping anywhere. M.M., in his statement, such as it was, spoke about picking up guys in Fairview and not having been in Sackville himself. He did not make any reference to Candace MacDonald and the guys stopping to pick him up in the moments before the car was stopped by the police. Having been in vehicle when the police executed the high risk take down procedure and where robbery and guns were being talked about, if person had just been picked up, that would be an overpoweringly relevant piece of information for him to have provided. It would have been simple enough to have said. He had only to say that he had not been in Sackville but had been picked up just few moments before in Fairview or somewhere else for that matter. He has the right to remain silent, but when he made the statements he did to the police, inferences can be drawn from what he said and what was left out. [11] In summary then, M.M. is found in car driven by Candace MacDonald, who says she drove straight from Sackville, with person, K.M., who has pleaded guilty to the robbery that had taken place few minutes before in Sackville. Also in the car are gun and number of items reported to have been stolen in that robbery. M.M. himself has ring reported stolen in the robbery. If M.M. was not at the scene of the robbery, why was he in the car that had driven directly from the scene? If he had been picked up on the way, why did he tell the police that he had been in the car with Candace MacDonald when the others were picked up in at some building, somewhere in Fairview? If he had nothing to do with robbery why was he hiding the stolen ring and why did he later put it on his finger? At this point it is very difficult to conceive of how M.M. was not involved with that robbery. [12] Nykell Brooks was the victim of the robbery. It is no longer an alleged robbery. K.M. has pleaded guilty to robbing him. Mr. Brooks told of how he had been lured to Candace MacDonald’s house and essentially ambushed by Ms. MacDonald and three males. He said that Ms. MacDonald wrongfully accused him of taking her wallet. Ms. MacDonald says that Mr. Brooks was her drug dealer. She was not asked about the circumstances surrounding the robbery itself. [13] Nykell Brooks says that he was taken into Candace MacDonald’s house. gun was placed to his head. He was forced to sit down and empty his pockets. His brass knuckles were taken. Money was taken from his wallet. His prescription drugs were taken. His watch, his ring and his earrings were taken. The robbers went to his car and removed his GPS system. Mr. Brooks said that the robbers wrote down his address and warned him of repercussions for himself and his family if he reported the matter to the police. handwritten note with his address written on it was found in the car. [14] Mr. Brooks did not get merely fleeting glimpse of these people. He was with them for some minutes. The situation as he reported it was stressful in the extreme. He was however able to provide detailed descriptions of the individuals. First, they were in the company of Candace MacDonald, whom he certainly knew. [15] He said that he did not know any of the three young men. They were, in his judgment all young men of about the same age. One of them had red hair. K.M., who has pleaded guilty to the robbery of Mr. Brooks, at least now, has short and distinctively red hair. It is reasonable to conclude that the red haired person identified by Mr. Brooks was K.M. [16] One of the remaining two was described as having black hair and the other blond hair with “buzz cut”. Mr. Brooks said that the blond person with the buzz cut hair also had tattoo on his forearm. The adult male found in the car, Cody Muise, has short hair and tattoo on his forearm. While in the photograph put in evidence of Cody Muise his hair appears dark, Mr. Tan pointed out that the police officers described Cody Muise as having short light hair. Mr. Muise would appear at least, to fit the description of the second of the three males. [17] The third male was described by Mr. Brooks as having black hair and wearing dark jacket and jeans. M.M. was not found wearing either dark jacket or jeans. Mr. Brooks was asked to look at M.M. in the dock and say whether he believed him to have black hair. He said no. When asked whether any of the three males was in the court room, he said no. Significantly, he did not say that he didn’t know or wasn’t sure. After looking around the court room he said no. [18] When shown the gun that was found in the car, Mr. Brooks said that this was not the same gun. He said that the gun that he saw was older with chipped paint. Something doesn’t seem quite right. Given the strength of the circumstantial case, it seems natural to try to reconcile these troubling inconsistencies. [19] Perhaps Mr. Brooks was just scared to make an identification. He had said that threats were made against his family. But Mr. Brooks is not witness who was reticent about identification of the people involved. He gave descriptions of the three men. One is clearly consistent with the description of K.M. The other is reasonably consistent with the description of Cody Muise. He was not hesitant about saying that Candace MacDonald was the “mastermind” to use his word. There is nothing here to allow that inconsistency to be resolved by inferring that Mr. Brooks just didn’t want to point the finger at M.M. [20] Perhaps Mr. Brooks was too agitated, intoxicated or confused to recognize the people involved. The police confirmed that he was not intoxicated, and while agitated he does not appear to have been addled. He gave description that fit the one person who has pleaded guilty. [21] It is now trite to say that an in dock identification is not the most compelling of evidence. person who is asked to identify his assailant and for the first time picks the accused out of the dock, may be acting in good faith. He may also be subconsciously drawn to the one person in the courtroom who is most obviously implicated by virtue of where he is seated. [22] An identification made in the moments or hours after the event may also be questioned if the witness caught fleeting glimpse of the suspect as he fled, if the lighting was poor or if the person is being asked to distinguish or identify features of race other than his own. [23] Identification in some circumstances can be more compelling. People are able to identify and distinguish one person from another. The proper but sometimes artificial skepticism of the courtroom goes only so far. Each day we do not wander through world made up entirely of complete strangers. Of course people can recognize other people. It is far from perfect, and perhaps much less reliable than is often thought. But there is difference between appropriately critical skepticism and the outright denial of reality. [24] Here, Mr. Brooks clearly saw the people who robbed him. He described them. None of the people he described fit the description of M.M.. Had he simply not been able to identify M.M. in the courtroom as one of those people, it could be said that with the passing of a few months that could be accounted for by fading memory. [25] But here, the failure to identify must be considered in light of two other things. The first is the fact of what might be called positive non-identification. This was not to the extent of looking him the eyes and saying…”No, that’s not one of the guys”. It is very close. Mr. Brooks did not simply say that he couldn’t be sure. He positively said that none of the people who robbed him were present in the courtroom. M.M. was no more than few feet away, sitting on the bench next to the lawyers. The second is the failure of the description to match M.M. Had Mr. Brooks provided no description of the third assailant, or had he given description that generally fit M.M. his failure to identify him might be capable of being explained away. [26] This is where the highly probable meets that something else. The circumstances in which M.M. was taken into custody on December 13, 2010 are more than suspicious. am conscious of being repetitive here. He was found in car, minutes after robbery with the person who has pleaded guilty to the robbery, another who was identified as being involved, and third who fit the general description of one of the robbers. The driver of the car said they left the location of the robbery and didn’t stop until they were apprehended by the police. M.M. is found in the car with hand gun under the seat and with the stolen property. He has in his possession ring taken from the victim, Mr. Brooks. His statement given to the police makes no reference to his having been picked up moments before and instead suggests that he and Candace MacDonald had picked up “two guys”, from some building, somewhere in Fairview. That all suggest that it is highly probable that M.M.was one of the people involved in the robbery of Nykell Brooks. [27] It is natural, it seems, to try to resolve the loose ends of any narrative by making some inferences. The known knowns add together to fill in the gap left by the known unknowns. Given the probability that M.M. left Sackville with the others in Candace MacDonald’s car, after robbing Nykell Brooks, it seems logical to resolve the discrepancy by assuming that Nykell Brooks was either mistaken or not telling the whole truth. In some situations that inference might be entirely reasonable. There are reasons here why it is not. [28] Nykell Brooks was critical Crown witness. He is the only person who told of how he was robbed. Neither Candace MacDonald nor K.M. gave any evidence about what happened in the house where the robbery took place. If Nykell Brooks were intentionally refusing to identify M.M. as one of the robbers, it would beg the question as to why he was doing that and what else he might be saying that was not true. That also seems to be unlikely given that he readily identified Candace MacDonald and provided descriptions of the others. [29] The other inference to resolve the narrative inconsistency is that Mr. Brooks was just mistaken or confused. That is also difficult inference to draw. He clearly saw his assailants. They were close to him. He saw them for number of minutes. He gave detailed descriptions. The descriptions, match K.M. who has pleaded guilty and Cody Muise who was also in the car. The descriptions do not match M.M., either in terms of hair colour or clothing. [30] In court Mr. Brooks looked directly at M.M. He had already confirmed red haired man, and blond man with tattoo on his arm. That left the black haired man. He said that M.M. did not have black hair. When asked if any of the people who robbed him were in the courtroom he said that they were not. He did not say that he was not sure or that he couldn’t tell. People who are most sure are often the least reliable. Of course he could be wrong. [31] The evidence of M.M.’s involvement would have to be so strong that it would allow the inference to be made that Nykell Brooks was just wrong, having regard to the factors that add to the reliability of his assertion that none of the people who robbed him were in the courtroom. In the face of evidence that is plainly inconsistent with his guilt, and which itself has some indicators of reliability, the evidentiary gap cannot be closed. The circumstantial evidence does not support the inference, in the absence of anything else, that Mr. Brooks was just wrong. It does not provide an answer to what will now call the critical known unknown. If M.M. robbed Nykell Brooks, why didn’t Mr. Brooks describe him or identify him when given the opportunity? [32] That important question remains unresolved. The narrative is incomplete. There is an inconsistency in the story that is so important that it raises a reasonable doubt. That doubt applies to all of the charges. The Crown has not proven beyond a reasonable doubt that M.M. was involved in the robbery, assault, confinement or threatening of Nykell Brooks. It has proven that he was in vehicle, with the stolen property and the gun. It has not proven that he was involved in the robbery and because of that there is no evidence that he knew or should have known that he was in a car with a gun or stolen property.","The female driver, the accused and two other men were in a vehicle that was stopped on suspicion of being involved in a robbery. A gun and many of the stolen items were found in the vehicle and all the occupants were charged with a number of offences, including robbery. The accused denied being in the area where the robbery occurred but alleged that they had stopped and picked up the two other men. While at the police station, he pulled a ring that had been reported stolen out of his pants and placed it on his finger. At his trial, one of the other men testified that he had pled guilty to the robbery; the driver testified that she had driven directly from her home to where the vehicle was stopped by the police, without stopping; and the complainant testified that he had been lured to the driver's house, where he was ambushed by her and three men, robbed and threatened. Although his descriptions matched the two other males in the vehicle, he positively stated that the accused was not the third person. Accused found not guilty on all charges; the Crown had not proven that he was involved in the robbery or that he should have known there was a gun or stolen property in the car. Although the circumstances in which the accused was taken into custody were more than suspicious, the fact that the complainant had clearly seen the robbers but had made a positive non-identification created an inconsistency that raised a reasonable doubt.",7_2011nspc27.txt
272,"Q.B. A.D. 1996 No. 2118 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 49.21 OF THE SASKATCHEWAN MEDICAL CARE INSURANCE ACT R.S.S. 1978, c. S-29 FROM SEPTEMBER 24, 1996 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE and IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF SEPTEMBER 24, 1996 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE BETWEEN: CARLOS HUERTO APPLICANT (APPELLANT) and THE MINISTER OF HEALTH, THE DIRECTOR OF PROFESSIONAL REVIEW AND THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE RESPONDENTS (RESPONDENTS) Brian J. Scherman and David G. Gerecke for Dr. Huerto Murray J. Hinds for the respondents JUDGMENT BAYNTON J. June 2, 1998 Summary of the Issues and the Proceedings [1] Dr. Huerto, a cardiologist, appeals an order madeagainst him by the Joint Medical Professional Review Committee(the ""Committee"") that he repay $207,821.03 in medical fees hereceived over a fifteen month period from the Medical CareInsurance Branch (the ""MCIB""). The appeal is brought under s. 49.21(1) of The Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S-29 (the ""Act""). The statistics generated by MCIB illustrate that Dr. Huerto's cost per patient is dramatically higher than that of the group mean comprised of his fourteen cardiologist peers. Dr. Huerto challenges the reliability of these statistics as fair and meaningful indicator of comparative patient costs. [2] Dr. Huerto also applies under Part 52 of the Rulesof Court for a judicial review of the proceedings. Two issues are raised for review. The first is whether there is areasonable apprehension of bias raised by the involvement ofthe Director of Professional Review in the hearing conductedby the Committee. The second is whether there is a reasonableapprehension of institutional bias raised by the roles of theDirector and the Committee assigned to them by the Act. The notice of appeal was subsequently amended to include these judicial review issues. [3] Dr. Huerto was previously the subject of competency review ordered by the College of Physicians and Surgeons and was found to be competent to conduct cardiology practice. The Committee in its decision acknowledged that Dr. Huerto is competent cardiologist and that the standards of patient care aspect of his practice is not an issue in these proceedings. What is in issue is the economic aspect of his practice. The Committee is mandated under the Act to determine whether Dr. Huerto's pattern of medical practice is acceptable to it considering that his billings to medicare is out of line with the billings to medicare by the other cardiologists in Saskatchewan. [4] One of the primary questions the Committee had to consider was whether the MCIB comparative billing statistics should be adjusted to take into account that all costs associated with Dr. Huerto's patients are reflected in his medicare billings while this is not the case with the patient costs associated with the other cardiologists. Dr. Huerto does not have hospital privileges so he treats his patients at his own clinic. He has equipped and staffed it so that it is equivalent to coronary care unit in hospital. The other cardiologists treat many of their patients in hospital. The consequence of this distinction is that if all the costs incurred during the hospitalization of patients of the other cardiologists are included in the comparative statistics, Dr. Huerto's patient costs are less than those of the group mean. [5] The legislative objective of the professional review provided for in The Saskatchewan Medical Care Insurance Act is to impose some controls and limits on the liability of the public purse to pay billings by care providers (in this case medical doctors) for services to their patients (in this case cardiac patients). Even though the ultimate goal of the provision of medical services is to provide quality patient care, the depth of the public purse is not unlimited. Unless such care is provided in cost effective manner the demands on the public purse will become unacceptable. Accordingly the economics of providing quality patient care is the primary issue to be determined by professional review. [6] But the statistics generated by MCIB which trigger the professional review reflect only the medicare billings associated with cardiac patients. It is only these costs that show up in the comparative cost per patient statistics. Medicare costs however are but one side of the coin. Hospitalization costs are the other. The public purse must ultimately pay for both medicare and hospitalization costs involved in the care and treatment of cardiac patient. With this in mind, any review to determine if there has been departure from an acceptable pattern of medical practice appears to be fundamentally flawed if it considers only medicare patient costs without corresponding consideration of hospital costs. The problem is that apparently reliable data is not available to enable hospital costs to be included in the comparative statistics generated by MCIB. [7] The hearing appealed from was conducted in stages over period of four months from February to May 1996. The proceedings generated hundreds of pages of transcript, volumes of exhibits, and lengthy written decision. The appeal briefs address each ground of appeal and are also lengthy. have concluded that one ground of the appeal has merit and that the order appealed from should be varied. The judicial review application has no merit. The Specific Grounds of Appeal [8] The appellant has raised numerous grounds of appeal. In view of my conclusions it has been necessary to deal with each of them. They are summarized as follows: 1. The rules of natural justice werebreached in the following ways: a. The Committee failed to provide adequate reasons for its b. The Committee heard and relied on evidence outside the presence of the appellant, and it refused to advise the appellant of such c. The involvement of the Director with the Committee before and during the hearing and in its deliberations raised reasonable apprehension of bias; d. The lack of institutionalindependence of the Committeefrom the Director and MCIBraised a reasonable apprehensionof institutional bias. 2. The Committee made the followingerrors of law:a. By improperly placing the burdenof proof on Dr. Huerto;b. By failing to take into accountall relevant factors in:i. Ignoring the statisticalanalysis presented onbehalf of Dr. Huerto thatwas more reliable than thestatistical analysispresented by MCIB;ii. Considering as beyond itsmandate Dr. Huerto\'ssubmission that he wasproviding cost effectiveservices in keepingpatients out of hospital;c. By using and relying on theknowledge of the members of theCommittee in preference to theuncontroverted expert evidence. 3. The orders made by the Committeeconcerning the various medicalservices were not reasonablysupported by the evidence before it. The Unique Aspects of Dr. Huerto's Pattern of Medical Practice [9] Dr. Huerto has been medical doctor for thirty years and for over half of that time has been authorized to practice cardiology and internal medicine. He taught for time at the College of Medicine in Saskatoon. Since 1989 he has practised primarily as cardiologist from his own clinic in Saskatoon. His practice is unique from that of the other cardiologists in Saskatchewan in three aspects. The first is that he does not have hospital privileges. He has attempted to reduce the limits this places on him by developing clinic with staff and diagnostic equipment that is equivalent to cardiac care unit in the hospital. Many of the tests routinely conducted by other cardiologists on cardiac patients in the hospital are not reflected in MCIB's comparative statistics. All the tests conducted by Dr. Huerto in his clinic are reflected in MCIB's comparative statistics. The significance of this distinction is that the comparative statistics artificially understate the ratio of diagnostic tests done per patient by the group mean. [10] second aspect of Dr. Huerto's practice that is unique is that he orders more diagnostic tests on his patients and does more follow up on them himself than do other cardiologists. Most cardiologists tend to refer patients back to their respective family doctors for follow up. Dr. Huerto maintains that cardiac patients are better served if it is the cardiologist rather than the family doctor who does the follow up. He says that this cannot be done safely or effectively without the results of contemporary testing. He submits that prevention, education and holistic approach is required to effectively treat cardiac patients. He has staffed his clinic with critical care nurses to assist him in this regard. This difference in pattern of cardiology practice results in higher ratio of repeat patients of Dr. Huerto than that of the group [11] third aspect of Dr. Huerto's practice that is unique is his extended office hours and the availability of his clinic to his patients at any hour of the day or week. He and his head nurse testified that he is in his clinic 15 hours per day (4:30 a.m. to 7:30 p.m.). The evidence establishes that in many instances, particularly on week-ends, the patients of other cardiologists are referred to the emergency department of hospital. These patients are usually hospitalized and treated in the cardiac care unit, often by another doctor or cardiologist. This difference in pattern of cardiology practice eliminates the significant costs that would otherwise be incurred if Dr. Huerto's patients were hospitalized and tested in the hospital in the same fashion as the patients of other cardiologists. Because these hospitalization costs are not reflected or accounted for in the MCIB statistics for billings by cardiologists, these cost savings respecting Dr. Huerto's patients are not offset against his other higher costs per patient that are reflected in the comparative statistics. The Events Leading to these Proceedings [12] As mentioned previously, the MCIB statistics on medicare billings (""insured services"") for the 15-month period September 22, 1992 to December 29, 1993, illustrate marked departure of Dr. Huerto's medicare billings from those of the other cardiologists comprising the group mean. These statistics were referred by the Director of Professional Review (the ""Director"") to previously appointed Joint Medical Professional Review Committee (""JMPRC"") which met on February 11 and 12, 1994 to consider the data package which also included comparative statistics for prior period extending from March 28, 1987 to September 24, 1990. Dr. Huerto was notified on March 30, 1994 by the previous JMPRC that his billing pattern was under review and that the JMPRC had concerns about his billing pattern as compared to the group mean of other specialists in internal medicine and cardiology. The concerns were (a) the high rate of contacts per patient, and (b) the high costs per patient contributed to by high rate of partial and major assessments, diagnostic tests, and first-patient seen surcharges. [13] The previous JMPRC selected twenty of Dr. Huerto's patient files for review. Dr. Huerto made written submissions on each of them after being granted three extensions to do so. The previous JMPRC decided to meet with Dr. Huerto to discuss the files. Dr. Huerto then brought successful application to disqualify the previous JMPRC due to reasonable apprehension of bias respecting the involvement of one of its members in prior proceeding against Dr. Huerto by the College of Physicians and Surgeons. new JMPRC (the Committee whose decision is now the subject of this appeal and judicial review) was formed consisting of eight general practitioners from Regina. No cardiologist was placed on the Committee due to the objection of Dr. Huerto that all cardiologists in Saskatchewan were biased against him. The Committee reviewed the twenty files and also questioned him extensively about thirteen of the files during the hearing. The Committee rendered its decision in September 1996. The appeal and judicial review application did not come on for hearing until this year. [14] The statistical package presented by MCIB for the period in issue show that Dr. Huerto's comparisons to the group mean are as follows: Cost per patient 706% Number of major assessments 250% Number of other assessments 1,174% Rate of consultations 415% Patient load (discrete patients) 30% Initial patient surcharges 660% Dr. Huerto was paid $679,947, group mean $484,946. The difference in payment to Dr. Huerto and the group mean was $272,126. The total amount ordered by the Committee to be repaid by Dr. Huerto was $207,821. [15] In response to the statistical package, Dr. Huerto prepared his own package of statistics and spreadsheets with various adjustments made to compare ""apples to apples"". Dr. Huerto maintains that unless such adjustments are made to the MCIB statistics, they compare ""apples to oranges"" and do not accurately or fairly provide realistic assessment of his patient costs reflected in his pattern of billings compared to the cardiologists comprising the group mean. The adjustments made by Dr. Huerto to the statistical comparison take into account the unique aspects of his practice outlined previously. They are an attempt to compare the total costs of Dr. Huerto's patients to the total costs of patients of the other cardiologists comprising the group mean. His statistics show that he compares very favourably to the group mean and that his cost per patient is far below the group mean. [16] In general terms the first set of adjustments ""back out"" the costs of those kinds of diagnostic tests done by Dr. Huerto in his clinic that would routinely be conducted at hospital on patients of the other cardiologists comprising the group mean and that would accordingly not be reflected in their billings for insured services. As Dr. Huerto has no hospital privileges, any diagnostic tests done by him are done at his clinic and are reflected in his billings for insured services. The second set of adjustments ""attribute"" to the patients of the other cardiologists comprising the group mean, the costs associated with the hospitalization of such patients during treatment. As Dr. Huerto's clinic is equivalent to coronary care unit in hospital, he treats his patients at his clinic rather than in the hospital. Very few of his patients are referred by him to another cardiologist for treatment in hospital. The cost of treating cardiac patient on an outpatient basis is substantially less than the cost of treatment in the hospital. The third set of adjustments is to ""back out"" discrete patients (i.e. those actually not seen by the other cardiologists comprising the group mean). The hospitalization adjustment component is the most controversial aspect of the comparative statistics generated by Dr. Huerto. [17] Although not strictly relevant, it is evident that Dr. Huerto's net income is likely less than that of his peers. The costs of operating his clinic include the acquisition and maintenance of expensive diagnostic equipment and the provision of highly trained support staff. These costs are payable by Dr. Huerto out of the billings he receives from MCIB. Dr. Huerto's financial position at the current time is particularly critical in that deductions are being made by MCIB to recover previous repayment order of approximately $385,000 for prior period. Dr. Huerto claims he is left with no personal income once he has paid for the operating costs of his clinic. As well, the costs of certain tests and services rendered to patients by Dr. Huerto are routinely not charged to either MCIB or his patients to avoid complications with MCIB. These include certain precautionary diagnostic tests, certain drugs that can be obtained at no patient expense only in hospital, the provision to his patients of the services of dietician and social worker, and the like. The Testimony Supporting Dr. Huerto's Position [18] Dr. Hughes, specialist in internal medicine and cardiology from Ontario, testified on behalf of Dr. Huerto. Dr. Hughes operates busy cardiology practice and holds executive positions in the Ontario Medical Association and the Ontario Association of Cardiologists. His own billings had previously been reviewed in Ontario due to his variance with the group mean, but the reviewing committee made no order for repayment. It should be pointed out however that Dr. Hughes has far greater patient load than does Dr. Huerto. Dr. Hughes stated that it was far more cost effective to treat cardiac patients on an outpatient basis than to treat them in hospital. He claims this pattern of practice is now becoming the trend. It is how he has conducted his practice in Ontario for some time. He stated that the patients of most cardiologists are still treated in hospital unlike his own patients and those of Dr. Huerto. He observed that each of Dr. Huerto's patients making up the twenty profiles would have been hospitalized at some time had they been treated in the usual fashion by another cardiologist. In his opinion, the follow up of cardiac patients by cardiologist was in most cases preferable to follow up by general practitioner. [19] Dr. Hughes visited Dr. Huerto's clinic to observe its operation. He also reviewed the twenty patient files available to the Committee. He concluded that each of those patients were in need of cardiac care and that Dr. Huerto's treatment of them was appropriate. Although Dr. Huerto utilized multiple testing to compensate for his lack of hospital privileges, the up-to-date information provided by multiple testing is particularly helpful in treating cardiac patients. From his observations he concluded that Dr. Huerto was conducting competent cardiology practice in well equipped and staffed clinic which afforded his patients with level of care comparative to hospital care. Dr. Huerto's pattern of medical practice, including his follow up and multiple testing of cardiac patients, was medically and economically appropriate. Dr. Hughes was strongly of the view that reliable cost of patient care comparisons cannot be made on the basis of medicare billings alone. Hospitalization costs must be factored in as well. [20] Dr. Atkinson, an anaesthesiologist from Ontario who discontinued his practice five years ago to provide consulting services on the economics of health care, testified on Dr. Huerto's behalf. Dr. Atkinson is former Chief of Medical Staff at the Ottawa Civic Hospital, position he held for eight years. He currently holds executive positions with the Ontario Commission on Health Facilities and the Canadian Institute for Health Information. He has recently conducted reviews and made reorganization proposals respecting the hospitals in Edmonton, Saskatoon, and Regina. He testified that the current trend in the provision of medical care is to use hospitals less and to use outpatient facilities more. greater emphasis is also being placed on prevention. He was of the opinion that these trends will save significant costs without triggering any corresponding reduction in the quality of health care. [21] Dr. Atkinson testified that the cost for the hospitalization of patient in Saskatoon is $622 per day. The cost of cardiac patient, based on the national average, is approximately 25% higher, for total estimated cost of $777 per day. Dr. Atkinson is not cardiologist and accordingly he was not able to give an opinion on whether the pattern of medical practice utilized by Dr. Huerto was appropriate. Dr. Atkinson agreed with Dr. Hughes however that the methodology utilized by Dr. Huerto in the statistical package he presented to the Committee was appropriate from patient cost comparison perspective. [22] Dr. Diaz, general practitioner in Saskatoon with experience in critical care, testified that she routinely referred patients to Dr. Huerto with excellent results. She chose him primarily because of his availability on short notice at any hour, and because of the personal interest he took in his patients. She stated that in her experience most patients referred to other cardiologists, especially on week- ends and after hours, were hospitalized for several days for diagnostic tests. Due to the sophistication of Dr. Huerto's clinic, he was able to diagnose and treat almost all of his patients without the necessity of hospitalization. Some of the patients he has taken on used to be hospitalized routinely before they were referred to him but are no longer treated in hospital because of the care they receive at his clinic. Although she has been divorced from Dr. Huerto since 1986, she continues to refer most of her patients to him. [23] Professor Heaslip, an associate professor of nursing at the University of Saskatchewan, testified on behalf of Dr. Huerto. Professor Heaslip is critical care nurse with 25 years of experience. She is former Director of each of the intensive care unit and the coronary care unit at the Royal University Hospital. Through her students she maintains contact with the hospital and staff. She works part time in Dr. Huerto's clinic managing his staff, doing his accounting and managing patients who would otherwise go to the emergency department of hospital and be admitted. She testified that Dr. Huerto's clinic is of standard equivalent to the coronary care unit at the Royal University Hospital. She referred to the opinion letter of Dr. David Johnson, the Director of the adult critical care unit at the Royal University Hospital, to the same effect. Dr. Johnson had previously evaluated Dr. Huerto's clinic, its policies, procedures, and management of patients. [24] In preparation for the hearing, Dr. Heaslip recruited the services of three critical care nurses at the Royal University Hospital to independently review the patient profiles set out in the twenty files reviewed by the Committee. She and the other nurses concluded unanimously that patients with the symptoms exhibited in the profiles were the kind of patients they would see routinely in the emergency department or the coronary care unit at the hospital. They agreed with Dr. Huerto's estimates of the number of times his patients would have been admitted to hospital had his clinic not been available to them. They felt however that he had underestimated the duration of the perspective periods of hospitalization. [25] One of Dr. Huerto's patients testified on his behalf. She stated that since she has been treated by Dr. Huerto, she has stayed out of the hospital and has experienced significant improvement in her health and ability to function normally. [26] Dr. Huerto also testified on his own behalf and gave detailed explanations to questions from the Committee respecting most of the 20 files reviewed by it. [27] All of the evidence presented on behalf of Dr. Huerto was uncontroverted with one possible exception. negative assessment of Dr. Huerto's practice was made by Dr. Sommerville, now deceased, in correspondence with the College of Physicians and Surgeons. Although this correspondence was referred to in the respondents' legal brief, am not certain that it was placed before the Committee. In any event, it has not changed my decision. will go on to review it in the event it was considered by the Committee. The Potential Sommerville Evidence [28] Dr. Sommerville had been appointed by the College to supervise Dr. Huerto's practice for the last four months of the period under review. His role was entirely different than that of the Committee in the review proceedings before me. He was cardiologist however and his opinions would constitute relevant evidence that could be considered by the Committee. But because of his death he could not be witness at the review hearings nor could he be cross-examined by Dr. Huerto on his comments and assessments contained in his correspondence. [29] Dr. Sommerville stated in his correspondence to the College that the patients seen by Dr. Huerto were the same type of patients that are seen by cardiologists on an out- patient basis without the requirement of hospitalization. In his opinion, Dr. Huerto had usurped the role of primary care physician by departing from the normal role of consultant and referral specialist who manages patients in conjunction with the respective family physicians. Dr. Sommerville's opinion was that Dr. Huerto had high incidence of surcharging resulting from patient convenience or demand rather than medical necessity, and that his pattern of medical practice was self-chosen with little clinical judgment being made respecting the necessity for diagnostic tests. He viewed Dr. Huerto's style of practice as highly lucrative one that involved few referrals, frequent follow-ups, low patient load, and different perception of what constituted an emergent situation. The Reasonable Apprehension of Bias Evidence [30] In response to Dr. Huerto's allegations of reasonable apprehension of bias, the chairman of the Committee filed an affidavit setting out the involvement of the Director in the affairs of the Committee. As mentioned previously, the Committee was struck to replace the former JMPRC. As none of the members of the Committee had served on JMPRC before, the Director met with the Committee to explain the procedure utilized by previous committees. After this initial meeting, the Committee sought the guidance of the Director from time to time on matters of procedure but made its own decision on what procedure it would eventually follow. The Director was present throughout the hearing and sat beside the chairman. From time to time the Director asked few questions to clarify and explain matters arising out of the statistical packages presented. He did not however, contrary to what was alleged by Dr. Huerto, take part in any deliberations of the Committee, nor did the Committee consider any information that was not put before it during the hearing and in the presence of Dr. Huerto or his counsel. The Law and Analysis [31] As an appeal under the Act is an appeal on the record, the judicial review application was brought to enable the court to consider evidence which did not form part of the record and avoid the issue that arose in Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 85 Sask. R. 42 (Q.B.) at pp. 46-47. [32] Osborn J. in Appavoo v. Saskatchewan (Minister of Health) et al. (1995), 1995 CanLII 5625 (SK QB), 127 Sask. R. 34 (Q.B.), at pp. 36-37 reviews the case law and summarizes the nature of statutory appeal from an order of Joint Medical Professional Review Committee: Pursuant to s. 49.21(1) of the Saskatchewan Medical Care Insurance Act, this court has jurisdiction to (a) affirm or vary the Committee's orders appealed from; (b) refer the matter back to the Committee with directions to reconsider it; or (c) quash the Committee's orders and substitute orders that it thinks the Committee ought to have made. The authorities have identified four circumstances in which an appeal of this nature might succeed: (a) if the Committee proceeded without jurisdiction or exceeded its jurisdiction; (b) if it did not observe rules of natural justice; (c) if it made an error of law; and (d) if the evidence does not reasonably support the Committee's findings. See: Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 1990 CanLII 7328 (SK QB), 85 Sask. R. 42 (Q.B.); Barber v. Saskatchewan (Minister of Health) et al., (1991), 1991 CanLII 7644 (SK QB), 94 Sask. R. 37 (Q.B.); Malhotra v. The Joint Medical Professional Review Committee, (January 22, 1992, Q.B. No. 981 of 1990, Sask. Q.B., unreported); Huerto v. Saskatchewan (Minister of Health) et al., (1994), 124 Sask. R. 121 (Q.B.). Pursuant to s. 49.21(2) of the Saskatchewan Medical Care Insurance Act, this court is restricted to considering only the record of the proceedings of the Committee. When assessing the four criteria identified above, this court, as an appeal court, must critically examine the evidence and ask whether, taken as whole, it reasonably supports the findings of fact reached by the Committee. [33] The appellant has in effect appealed on each of the four grounds identified by the case law. will deal first with the natural justice grounds raised in the judicial review application and in the notice of appeal. will then go on to deal with the remaining grounds raised by the notice of appeal. a. Natural Justice Issues [34] Section 49.2(10) of the Act provides as follows: (10) In making an order pursuant to this section, [the section applicable to the case before me] the committee shall observe the rules of natural justice. [35] It is trite law that the rules of natural justice impose the duty to act fairly and to provide procedural fairness. [36] The first breach of natural justice alleged is that the Committee failed to provide adequate reasons for its decision. The Committee gave lengthy written decision. Although the reasons contained in the decision may not have been to the satisfaction of the appellant, they are not inadequate as alleged and do not constitute breach of natural justice. The second breach of natural justice alleged is that the Committee heard evidence outside the presence of the appellant and refused to advise the appellant of such evidence. The affidavit filed by the chairman of the Committee refutes these allegations. accept this evidence and conclude that no breach occurred as alleged. [37] The existence of reasonable apprehension of bias is the alleged third breach of natural justice. The natural justice duty to act fairly and to provide procedural fairness cannot be achieved if an adjudicator is biased or if there is reasonable perception that it is biased. Grandpr� J. in Committee for Justice and Liberty et al. v. National Energy Board (1976), 1976 CanLII (SCC), 68 D.L.R. (3d) 716 (S.C.C.) defines what constitutes reasonable perception or apprehension of bias. This test has been consistently endorsed by the Supreme Court in various cases including R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484 in which the court stated at p. 505: The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice and Liberty, supra.) The person postulated is not ""very sensitive or scrupulous"" person, but rather right-minded person familiar with the circumstances of the case. [38] Our Court of Appeal has specifically dealt with this principle in connection with the role of committee under the Act. Milne v. Joint Chiropractic Professional Review Committee, 1992 CanLII 8304 (SK CA), [1992] W.W.R. 354 at pp. 360-361, and Huerto v. College of Physicians and Surgeons (Saskatchewan), [1996] W.W.R. 153. The latter case involved the same appellant as the one before me on this appeal. At p. 156, Mr. Justice Cameron stated that the essence of the principle was identified by Mr. Justice Cory in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] S.C.R. 623 at p. 636: The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against standard of reasonable apprehension of bias. The test is whether reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. [39] am satisfied that Dr. Huerto's allegations respecting the involvement of the Director in the deliberations of the Committee are groundless. accept the affidavit evidence of the Chairman of the Committee to the effect that the Director did not influence the deliberations or decision of the Committee. As well, the transcript indicates that the Committee did everything within its power to accommodate the wishes of Dr. Huerto. It also indicates that the Director co-operated fully with Dr. Huerto's counsel by attempting to provide the additional information sought by Dr. Huerto to make adjustments to the statistical data presented by MCIB. Many courtesies were also extended to Dr. Huerto by the Committee. Although several of the questions asked of Dr. Huerto and his witnesses by members of the Committee evidenced sense of frustration on the part of the Committee, many of those questions would not have been required had the witnesses been more concerned with giving evidence and less concerned with advancing Dr. Huerto's position. [40] Neither the Director nor the Committee acted in aprosecutorial fashion. It is obvious that the Committee was attempting to understand Dr. Huerto's submissions and the statistical information that he was presenting. The former JMPRC gave Dr. Huerto several extensions to respond to the statistical information presented by MCIB. As well, the Committee granted him an adjournment when he failed to show up personally at the continuation of the hearing. His failure to attend was discourteous and inexcusable, put his own counsel in an awkward position, and caused considerable inconvenience to the Committee. Another accommodation made by the Committee to Dr. Huerto was that it yielded to his request that no cardiologist be placed on the Committee. As later acknowledged by the Committee, this made its task much more difficult. In the circumstances of this case, no reasonably informed bystander could reasonably perceive bias either on the part of the Director or on the part of the Committee or from the involvement of the Director with the Committee. [41] The existence of reasonable apprehension of institutional bias is the fourth alleged breach of natural justice. Dr. Huerto submits that the provisions of the Act cast the Director in the role of policeman and prosecutor. He asserts that the regulations [s. 13 of The Medical Care Insurance Peer Review Regulations, c. S-29, Reg. 18] permit the Director to attend all meetings of the Committee which in itself is contrary to the rules of natural justice. The legislative role of the Director has been ruled on previously and includes providing assistance to the Committee. Ramsahoi, supra, at p. 53. Dr. Huerto also alleges that the Director can influence the Committee, can meet with it behind closed doors and can provide it with information not discussed at the hearing. Finally Dr. Huerto alleges that the Committee members are intimidated by the Director because if they do not co-operate they may in turn become the subject of review. [42] Dr. Huerto relies on three authorities for his submission: 2747-3174 Qu�bec Inc. v. Quebec (R�gie des permis d'alcool), 1996 CanLII 153 (SCC), [1996] S.C.R. 919 (the ""R�gie decision""), Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] S.C.R. and Ruffo v. Conseil de la Magistrature (1995), 130 D.L.R. (4th) (S.C.C.). Institutional bias involves lack of either institutional independence or institutional impartiality, and the Court must assess the legislative structure and operating procedure of the tribunal with these factors in mind. In the interests of brevity, will not deal with each separately. [43] The review procedure and the respective roles of the Committee and the Director are set out in s. 49.2 of the Act. These statutory provisions have been canvassed and interpreted by this Court in previous cases and need not cover the same ground again. It is sufficient to observe that the majority of the members of review committee must be comprised of the peers of the professional care provider under review, and that those peers cannot be employed by the Government of Saskatchewan. Neither the Minister nor the Director can influence the outcome of matter referred to the Committee. It is the Committee who, in its sole discretion, decides whether or not an investigation is warranted. If it decides that an investigation is not warranted the matter ends. If it decides that an investigation is warranted, it holds hearing and determines whether or not to make any order for repayment. [44] The legislation also provides that it is the Committee that decides on the procedure it will follow and it may consider whatever it deems relevant. The only significant statutory requirement imposed on the conduct and operations of the Committee is that it must observe the rules of natural justice. There is no appeal by the Minister from the decision of the Committee. [45] Although the legislation vests the Committee with the dual roles of investigation and adjudication, it clearly provides that it is the Committee, not the Minister or the Director, who controls the process. In R�gie, supra, the Court observed that in substantial number of cases the plurality of functions in single administrative agency could raise reasonable apprehension of bias. But Gonthier J. at para. 47 noted that plurality of functions is not necessarily problematic. One exception to the general rule is where the overlap of functions has been authorized by statute, assuming the constitutionality of the statute is not in issue. No challenge respecting the constitutionality of the Act has been made in the case before me. [46] In Ringrose v. College of Physicians and Surgeons of Alberta, 1976 CanLII 172 (SCC), [1976] W.W.R. 712 (S.C.C.) Grandpr� J. at p. 718 stated that no reasonable apprehension of bias is to be entertained when the statute itself prescribes overlapping functions. In Appavoo, supra, at p. 42, Osborn J. (although he did not categorize the issue as institutional bias) did not accept the submission that the overlap of functions on the part of the Committee constituted reasonable apprehension of [47] Finally, it should be noted that each of the R�gie and Ruffo decisions relied on by Dr. Huerto arose in connection with the civil law in Quebec and involved constitutional challenges. These two cases are distinguishable from the case before me which is more on point with the other cases have cited. The appellant has notestablished that there is a reasonable apprehension of bias ora reasonable apprehension of institutional bias respecting thestatutory roles of the Committee and the Director or thealleged lack of institutional impartiality of the Committee orits alleged lack of institutional independence from theDirector and MCIB. b. Errors of Law Issues [48] The appellant alleges that the Committee committed three errors of law. The first is that the Committee placed the onus of proof on Dr. Huerto. Although some of the comments made by Committee members during the hearing might give rise to this allegation, it must be borne in mind that the statistical package presented by MCIB indicated that Dr. Huerto's pattern of billing constituted dramatic departure from the pattern of billings of the other cardiologists comprising the group mean. In other words this statisticalevidence could be considered by the Committee as a prima faciecase (or a presumption) that Dr. Huerto\'s billings constituteda departure from a pattern of medical practice acceptable tothe Committee. It was then open to the Committee, in the face of this presumptive evidence, to call on Dr. Huerto to address and rebut the presumed departure. If he failed to respond, the Committee was entitled (but not compelled) to rely on the presumptive statistical evidence and conclude that Dr. Huerto had received payment from the minister by reason of departure from pattern of medical practice acceptable to the Committee. On the basis of this finding it could then make the order it deemed appropriate. This by no means shifted theoverall burden of proof to Dr. Huerto nor did it require himto prove that his pattern of medical practice was acceptableto the Committee. [49] On the other hand if Dr. Huerto chose to respond and give an explanation or adduce evidence from other witnesses or sources (as he did in the case before me) then the Committee was required to consider all the evidence as whole in deciding whether it was satisfied that there had been payment by reason of departure from pattern of medical practice acceptable to the Committee. It could not rely solely on the presumption as being determinative of the issue. It appears from the proceedings that the Committee understood that once Dr. Huerto had addressed and adduced evidence respecting the variation illustrated by the MCIB statistics, these statistics were no longer solely determinative. They were simply evidence that had to be considered along with all the other evidence presented. [50] The respondents submit that the principle of onus of proof does not apply to the review proceedings because the Committee is not bound to follow the rules of evidence and in any event the proceedings are of an investigative nature. disagree with this submission. Although counsel were not able to refer me to any authorities on this issue, it is evident that before any tribunal can rule that an occurrence has been established, it must be satisfied on balance of probabilities that the occurrence has been established. The phrase ""balance of probabilities"" means ""more likely than not"". To hold otherwise would make nonsense of administrative law and would violate the rules of natural justice. Even though neither the strict rules of evidence nor the adversarial nature of criminal or civil trial are applicable to the review proceedings, the burden of proof principle is basic to the determination of any issue affecting the rights of an individual who is entitled to be heard. The Committee has dual role which involves adjudication as well as investigation. The respondents suggest that the comments set out on pp. and of The Law of Evidence (Toronto: Irwin Law, 1996) by Paciocco and Stuesser, support their position. disagree with their interpretation of these comments. [51] The second error of law alleged by the appellant is that the Committee erred in construing its mandate under the Act and ignored the statistical analysis presented by Dr. Huerto. Throughout the review hearing and this appeal, the appellant made much of purported distinction between the phrases ""pattern of medical practice"" and ""pattern of billing"". Unfortunately these two phrases were used interchangeably by members of the Committee during the hearing and in the written decision. In effect, the appellant contends that the Committee erred in law in focusing its consideration on the pattern of Dr. Huerto's billings rather than on the pattern of his medical practice. This distinction however is more matter of semantics than of substance. The phrase ""pattern of medical practice"" appears only once in s. 49.2(2) which provides as follows: 49.2(2) Where, in respect of insured services provided by physician, it appears to the director that physician has received or may receive from the minister or that physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from pattern of medical practice acceptable to the committee, he may refer the matter to the committee. [52] It is important to put this phrase in perspective. Taken literally, this subsection containing the phrase simply sets out the condition that must be met before the Director can refer the matter to the Committee. The words ""it appears"" indicate that the condition is met if the Director subjectively believes that funds were paid by reason of any departure from pattern of medical practice that he understands is acceptable to the Committee. Although agree with the appellant that this phrase does as well set out the mandate of the Committee, the legislation does not clearly so provide. Neither ss. (5) that sets out what the Committee can order, nor ss. (8) that sets out what the Committee may take into account in determining whether an order should be made ""pursuant to subsection (5) or (7)"", refers to or uses the phrase. In determining whether an order should be made, the Committee is not required to take into account anything, even statistical comparison. But it may take into account anything it considers relevant. [53] Subsections (5) to (8) of s. 49.2 are as follows: (5) Where matter has been referred to the committee pursuant to subsection (2), the committee may order that: (a) in the case of insured services for which payment has not been made by the minister, payment should not be made, or should be made at reduced level, for all or any part of the services; (b) in the case of insured services for which payment has been made by the minister, all or part of the amount paid by the minister should be recovered from the physician. (6) Any order made pursuant to clause (5)(b) is to be restricted to period of not more than 19 consecutive months beginning not earlier than 25 months prior to the day the notice is served pursuant to subsection (3) and ending not later than that day. (7) Where the committee makes an order pursuant to subsection (5), it may make further order requiring the physician to pay to the minister an additional amount not exceeding $50,000. (8) In determining whether an order should be made pursuant to subsection (5) or (7), the committee may take into account anything that it considers relevant, including statistical or other comparison between the provision of insured services by the physician whose insured services are being considered and the provision of insured services by other physicians or groups of physicians, but it is not required to examine the provision of any individual insured service that has been provided by the physician. [54] Assuming that ss. (2) does spell out the mandate of the Committee, it must be borne in mind that billings are just as significant component of the pattern of medical practice as is the type of speciality practised, the numbers of patients treated, the quality and appropriateness of the treatment, and the like. The whole object of review hearing pursuant to s. 49.2 is to determine if the billing aspect of the pattern of medical practice is acceptable to the Committee. Section 49.2 is not concerned with the professional competence of physician but with the billings of physician respecting insured services. The appellant seems to imply that so long as he is found to be competent in his provision of medical services, he is immune from the economic consequences that flow from his pattern of medical practice. This artificial distinction flies in the face of the clear objectives of the Act. By way of example, cardiologist who restricted her practice to one patient and constantly monitored and tested that patient by way of preventative treatment, would provide safe and sound pattern of medical practice. But this pattern of medical practice would undoubtedly not be acceptable to committee from cost effective perspective. [55] The appellant submits that the courts have erred in previous cases by upholding committee repayment orders made purely for reasons of economics. Certainly repayment orders made on the basis of economics have been upheld by various cases before this Court. But those cases did not hold that economics was the sole issue or that other considerations were not important. Osborn J. in Appavoo, supra, at p. 37 sets out the features of the insurance plan established under the Act. have reproduced it in full as it addresses many of the submissions raised by the appellant on this issue. The primary object of the Saskatchewan Medical Care Insurance Act is to relieve each of the residents of the province from having to bear, directly and individually, his or her costs of medical care. That purpose is achieved by means of plan of insurance, with the government being constituted as the insurer and the residents as the beneficiaries. Among the important features of this ""insurance (1) It assumes the continued existence of an independent medical profession engaged in the private practice of medicine; (2) It preserves the traditional legal relationship between patient and doctor, including the usual fee- for-service method of payment (except that in most cases the insurer rather than the patient pays the fee pursuant to the contractual arrangement between the government and the doctor); and (3) It does not require the patient- beneficiary or the doctor to obtain the insurer's prior approval of either service or the expenditure involved in the diagnosis and treatment of illness. Section 17 provides for the continued independence of doctors from the government, stating: ""17(1) It is not the intention or purpose of this Act to establish plan of medical care insurance for the residents of Saskatchewan under which: (a) the general basis for remunerating physicians for insured services provided to beneficiaries would be exclusively or largely fixed sum of money calculated on yearly or other periodic basis; (b) the relationship between the minister and physicians who provide insured services would be that of employer and employee; or (c) the exercise of professional judgment by physicians is in any way diminished. ""(2) Nothing in subsection (1) interferes with or prevents physician from exercising free choice as to the method by which he is to be remunerated for insured services provided to beneficiaries."" The relevant portions of the contract in place between the government and Dr. Appavoo are as follows: ""1. The Saskatchewan Medical Care Insurance Commission, hereinafter called the 'Commission', shall make payment directly to the physician for insured services provided by the physician to beneficiaries with respect to accounts submitted directly to the Commission. ""2. Payment for each service shall be made in accordance with: (a) the Commission's Payment Schedule and the Assessment rules contained in that schedule applicable to the service on the date it was provided; and (b) the regulations made under the Saskatchewan Medical Care Insurance Act. ""5. The Commission or the physician may request reassessment of an account."" Under the contract, then, the Commission undertook to pay Dr. Appavoo for each insured service performed by him in accordance with the Payment Schedule (including the Assessment rules) and the Regulations, subject to either initiating reassessment. [56] It is also important to observe that while s. 17 preserves the integrity of doctor's professional judgment, s. 23 of the Act preserves the integrity of patient's choice of doctor. It provides as 23 Nothing in this Act or in the regulations is intended to interfere with or restrict: (a) the right of beneficiary to select the physician or other person providing insured services from whom he will receive those services; (b) the right of physician, or other person providing services, to accept or refuse to accept patient who is beneficiary; (c) the right of physician, or other person providing services, to make charges for insured services provided to patient who is not beneficiary. [57] Although the appellant's submission on this issue may not have been raised as ground of appeal in the previous cases, the comments by Osborn J. clearly indicate that the courts have not been concerned purely or solely with economics. If that was the only consideration, the review process would be useless exercise and the statistical comparative evidence would not simply be capable of raising presumption but would be conclusive of the issue. [58] With these considerations in mind, I conclude thatthe Committee did not err in law in misconstruingits mandate or by ignoring the statistical analysispresented by Dr. Huerto. The mandate defined by theappellant is much narrower than what is envisaged bythe legislation. The Committee set out to determine whether the substantial payments Dr. Huerto received over and above the mean of his cardiologist peers constituted departure from pattern of medical practice acceptable to it that warranted some form of order for repayment. The use by the Committee of the phrase ""pattern of billings"", although not the phrase used in the Act, was appropriate in the context in which it was used. The Committee did not ignore the statistical information presented by Dr. Huerto, nor did it conclude that it could not take into consideration his submissions respecting hospital costs and related issues. [59] The third error of law alleged by the appellant is that the Committee used and relied on the knowledge of its own members rather than making decision based on the evidence. The law is clear that the members of tribunal can utilize their own expertise to assess the evidence but they cannot use it to supplement the evidence or to substitute their own opinion for the evidence. Huerto v. College of Physicians and Surgeons (Saskatchewan), 1994 CanLII 4900 (SK QB), [1994] W.W.R. 457 (Sask. Q.B.) affirmed 1996 CanLII 4920 (SK CA), [1996] W.W.R. 153 (Sask. C.A.). There is nocredible evidence that the members of the Committee misusedtheir expertise and relied on it rather than determining theissues from the evidence presented. The record discloses that the Committee considered and assessed all the evidence presented and it acknowledged that its members were general practitioners, not cardiologists, making its task more c. The Evidentiary Support for the Orders [60] The final ground of appeal raised by the appellant is that the orders made by the Committee were not reasonably supported by the evidence. Several cases in this Court have clearly defined the scope of this specific ground of appeal. The first was Ramsahoi v. Saskatchewan (Minister of Health) et al., supra. Wedge J. stated at p. 51: It is clear, from reading of the transcript, that the Committee did not accept Dr. Ramsahoi's explanations as to why his billing practices were markedly different from those of his peers. Although judge on appeal is given the power, in s. 49.21(1), to substitute an order it considers that the Committee ought to have made for the order it did make, it must be acknowledged that the Act gives committee of physicians the responsibility of insuring that no other member of its profession is over-billing the Minister of Health. In so doing, these physicians use their medical background and experience in making their assessments of patterns of medical practice. The physicians at the meeting on March 31, had the opportunity of hearing and evaluating Dr. Ramsahoi's explanations. Like any appeal court, should not substitute my assessment of the facts for that of those who heard the evidence, providing that these facts are reasonably supported by that evidence. This is an important consideration in case such as this, where the legislative intent is that the primary responsibility for reassessment lies with committee of professional colleagues. [61] Ramsahoi has been followed in the numerous cases cited by Osborn J. in Appavoo, supra, and in Minhas v. Saskatchewan (Minister of Health) et al. (1992), 102 Sask R. 171. Malhotra v. The Joint Medical Professional Review Committee, (January 22, 1992, Q.B. No. 981 of 1990, Sask. Q.B., unreported) and the Minhas case both refer to what is inherent in the other cases. See also the recent unreported decisions of Zarzeczny J. in Dr. Thomas E.R. Blackwell v. The Joint Medical Professional Review Committee, (April 24, 1998, Q.B. 2069 of 1997, Sask. Q.B., unreported) and Dr. Subramaniam Sothilingam v. The Joint Medical Professional Review Committee, (April 24, 1998, Q.B. 2070 of 1997, Sask. Q.B., unreported) to the same effect. The Court observes that to determine whether the decision of committee is reasonably supported by the evidence, the Court must critically examine the evidence. The appellant contends that the case law has given too much deference to decisions made by Joint Medical Professional Review Committees. But the standard of review set out in the cases is really no less rigorous than that afforded to decision of this Court under appeal. Much of the evidence placed before review committee is highly technical and cannot be reliably assessed without rudimentary understanding of medical disciplines and procedures. Usually the evidence considered by review committee involves conflicting medical opinions and differing views of what constitutes sound professional judgment and responsible billing patterns. [62] The Court is usually placed in the unenviable position of having to consider the validity or credibility of this conflicting opinion evidence. Certainly medically qualified committee is in much better position than court to assess such issues. In fact the legislation implies, as affirmed by the case law, that committee is entitled to use its expertise in assessing the evidence. The Court has no such advantage. If the decision of committee is reasonably supported by one version of the evidence, the Court in my respectful view should give deference to the committee and should not substitute its own view of the evidence. The Court should intervene only if the evidence as whole clearly demonstrates that the decision of the committee is in error because it is not reasonably supported by that evidence. [63] The determination by the Court of whether the decision is ""reasonably"" supported by the evidence will depend in part on the nature of the evidence presented. The Court, for example, will be more inclined to rely on its own view of the evidence if the evidence is comprised primarily of statistical analyses rather than medical opinions. As well, less deference will be given to committee in cases, such as the one before me, where considerable evidence has been presented on behalf of the medical professional under review. In such case the judicial role of committee becomes more prominent than its investigative role and its own expertise becomes less crucial to its ultimate decision. [64] My decision to this effect in the Barber v. Saskatchewan (Minister of Health) et al. (1991), 94 Sask. R. 37 (Q.B.) case was reinforced as attempted to comprehend the volumes of ""evidence"" pertaining to the manner in which Dr. Huerto diagnosed and treated the patients comprising the twenty files mentioned previously. But the issues raised in his appeal are quite unique and distinguish it from the previous appeals considered by our Court. There is little conflict in the evidence presented to the Committee and it consisted of far more than simply technical question and answer session by members of the Committee and Dr. Huerto. Numerous witnesses testified at length on behalf of Dr. Huerto, most of whom were experts in various aspects of the medical practice. [65] As outlined previously, Dr. Hughes, cardiologist, gave evidence that not only was Dr. Huerto's medical practice sound from medical perspective, but that it is cost effective. Dr. Atkinson, an expert on health economics, gave evidence that hospital care was major component of health costs and must be taken into account in any meaningful comparison of patterns of billings and patterns of medical practice. The professional evidence of Dr. Diaz and Professor Heaslip support the assumptions made by the two expert witnesses in arriving at their respective opinions. The appellant himself and one of his patients also gave evidence that tended to support the validity of those assumptions. Finally there was the adjusted comparative statistical data compiled and presented by counsel for Dr. Huerto. [66] Unfortunately the written decision of the Committee does not come to grips with this considerable body of evidence. It is clear from the record that this evidence was considered by the Committee but it is not clear why it was rejected. The Committee did not comment on the credibility of the various witnesses but it cannot be presumed that their evidence was considered to be unreliable. Nor does the Committee appear to have relied on the evidence of Dr. Sommerville (if that evidence was before it). It appears from the written decision of the Committee and its questions during the hearing that it rejected the adjustments made by Dr. Huerto to the comparative statistical data presented by MCIB because these adjustments were predicated on assumptions that had not been established. It also appears that the Committee dismissed the evidence of Dr. Huerto's witnesses, particularly that of Dr. Hughes, on the same basis. [67] The subject of the hearing was the acceptability of Dr. Huerto's pattern of medical practice as cardiologist. The only evidence before the Committee that contradicted the evidence presented on behalf of Dr. Huerto was the statistical data presented by MCIB and possibly the letters from Dr. Sommerville to the College. The comments of Halvorson J. in Huerto, supra, illustrate the difficulty in relying on Dr. Sommerville's evidence if Dr. Huerto was not given the opportunity to test it. If the Committee had arranged for cardiologist (from Saskatchewan or elsewhere) to testify at the hearing such evidence may have conflicted with that of Dr. Hughes. In such event the evidence as whole may have reasonably supported the Committee's decision. But no such evidence was presented that countered the evidence presented by Dr. Huerto. The only evidence supporting the decision of the Committee was the MCIB statistics. [68] But it was clear from the evidence as whole that the statistical data presented by MCIB was not valid comparison of Dr. Huerto to the mean of his peers. As previously outlined, his practice is significantly different in three respects from that of his cardiologist peers. Those differences have significant impact on his pattern of billings. The statistical data generated by MCIB do not reflect these substantial differences. [69] It appears that the Committee was overwhelmed by the unavailability of statistical information to support Dr. Huerto's position on hospital costs respecting cardiac patients. But the Committee made fatal error if it came to its conclusion based primarily on MCIB's comparative statistics. The overwhelming weight of the evidence presentedto the Committee demonstrated that the MCIB statistics wereflawed as a reliable comparison tool and that the adjustedstatistics presented by Dr. Huerto were more reliable even ifthey were based on estimates rather than substantiated data. [70] My decision should not be interpreted to suggest that review proceedings are invalid unless they take on the appearance of formal trial or court hearing. That is obviously not what is intended by the legislation nor is it the most effective procedure by which to determine if repayment orders should be made. The costs in most cases would be prohibitive. But this case is unique and raises issues never before canvassed at review hearing. The appellant obviously expended substantial effort and expense in preparing and presenting relevant evidence to support his position respecting the issue before the Committee. It may well be that the Committee made the correct decision in the circumstances. But as an appeal judge, my role is to critically assess the evidence to see if it reasonably supports the decision made by the Committee. If it does not, then must intervene. The appellant has established to mysatisfaction that for the most part the decision of theCommittee is not reasonably supported by the evidence. Instead it is contrary to the evidence. [71] Once the appeal court determines that it cannot uphold the decision appealed from, it is permitted by s. 49.21(2) of the Act to (a) quash the order and substitute any order that it considers the Committee ought to have made, (b) refer the matter back to the Committee with directions to reconsider it, or (c) vary the order. Understandably neither party desires that refer the matter back to the Committee as the ultimate costs involved will likely exceed the amount in issue. Nor in the unique circumstances of this case is it necessary or desirable to refer the matter back to the Committee. The evidence contained in the extensive record of the proceedings is relatively uncontradicted and is credible and compelling. It establishes that the MCIB statistics in this particular case were seriously flawed as reliable comparison of billing patterns and cardiac patient costs. No repayment order based on departure from the group mean was warranted. But am not inclined to simply quash the order entirely as the evidence reasonably supports that portion of the order that deals with surcharges. [72] Dr. Huerto in effect admitted that many of thesurcharges had been billed by him because of his erroneousinterpretation of the tariff. Even though he felt he was entitled to payment for his services, these services did not fall within the parameters of the surcharge tariffs. The order of the Committee that Dr. Huerto repay the amount of these surcharges should stand. The decision of the Committeeis accordingly varied to quash all repayment orders made by itexcept for the repayment orders pertaining to the 815A, 817Aand 819A surcharges in the amounts of $5,750.50, $3,273.34,and $5,215.92 respectively totalling $14,239.76. [73] The judicial review application is dismissed and theappeal is allowed and the repayment orders set aside exceptfor the orders respecting surcharges. If the parties are not able to agree on costs, leave is given to bring the costs issue back before me for determination.","Administrative Law - Judicial Review - Bias/Institutional BiasAdministrative Law - Medical Care Insurance - Medical Fees - Repayment - AppealProfessions and Occupations - Physicians and Surgeons - Cardiologist - Medical Fees_____ A cardiologist appealed an order made against him by the Joint Medical Professional Review Committee for repayment of  $207,821.03 in medical fees he received over a fifteen month period from the Medical Care Insurance Branch (MCIB). Alleged errors of law included improperly placing the burden of proof on the doctor; failing to take into account all relevant factors including the doctor's statistical analysis; considering it beyond his mandate to provide cost effective services in keeping patients out of the hospital; by using and relying on the knowledge of the Committee in preference to the expert evidence; the orders made concerning various medical services were not reasonably supported by the evidence. The numerous grounds of appeal also included breach of the rules of natural justice by reason of a lack of institutional independence. The application under Part 52 of the Rules of Court for a judicial review was brought to determine whether there was a reasonable apprehension of bias raised by the statutory roles of the Committee and Director or lack of institutional impartiality of the Committee or its lack of independence from the Director or MCIB. _____ HELD: The judicial review application was dismissed. The appeal was allowed and the repayment orders were set aside except for the orders respecting surcharges. 1)Natural justice issues: A reasonable apprehension of bias or institutional bias were not proven. The Committee provided adequate written reasons for its decision. The chairman refuted the allegations that the Committee heard and relied on evidence outside the presence the appellant about which he was not advised. Neither the Director nor the Committee acted in a prosecutorial fashion. Examples included the adjournment granted when the appellant failed to attend and the concession to his request that no cardiologist be placed on the Committee. 2)Errors of law issues: The statistical evidence could be considered by the Committee as a prima facie case. It was then open for it to call on the doctor to rebut the presumed departure from an acceptable pattern of medical practice. This did not shift the overall burden of proof to the doctor nor did it require him to prove his pattern of medical practice was acceptable to the Committee. The Committee did not err in law in misconstruing its mandate or by ignoring the statistical analysis presented by the appellant whose definition of the mandate was much narrower than envisaged by the legislation. It was not agreed that the Committee is not bound to follow the rules of evidence and the proceedings were of an investigative nature. The phrase 'balance of probabilities' means 'more likely than not'. To hold otherwise would make nonsense of administrative law and would violate the rules of natural justice. The distinction between the pattern of the doctor's billings and the pattern of his medical practice was more a matter of semantics than substance. If economics were the only consideration the review process would be a useless exercise and the statistical comparative evidence would be conclusive of the issue. There was no credible evidence that the members of  the Committee misused their expertise and relied on it rather than determining the issues from the evidence presented. 3)The appellant established that for the most part the decision of the Committee was not reasonably supported by but was contrary to the evidence. The MCIB statistics were flawed as a reliable comparison tool and the appellant's adjusted statistics were more reliable even if based on estimates rather than substantiated data. The appellant's medical practice was unique in three respects. He did not have hospital privileges and  had staff and diagnostic equipment equivalent to a cardiac care unit in the hospital; he ordered more diagnostic tests and did more follow up than other cardiologists and had extended office hours. 4)The decision of the Committee was varied to quash all repayment orders except for $14,239.76. The appellant admitted that many of the surcharges had been billed because of his erroneous interpretation of the tariff.  5)Leave was granted to bring the issue of costs back for determination if necessary.",1998canlii13596.txt
273,"LANE J.A. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Sutherland, 2009 NSPC 21 Date: May 4, 2009 Docket: 1929864 Registry: Shubenacadie Her Majesty the Queen v. Mark Sutherland DECISION Judge: The Honourable Judge Anne S. Derrick Heard: May 4, 2009 Oral Decision: May 4, 2009 Charges: Occupational Health and Safety Act Section 74(1) Counsel: Glenn Hubbard for the Crown Brad Yuill for the Defence [1] Mark Sutherland owns and operates a family dairy farm. It is his family’s livelihood. Mr. Sutherland has been active in the farming community and has been developing and improving his farm since acquiring it in 1996. He is 38 years old and supports two children. On August 13, 2006, one of his employees, Gary Boake, died in an accident at the farm property. [2] Mr. Sutherland has pleaded guilty to an offence under the Occupational Health and Safety Act , that he failed to take every precaution that is reasonable in the circumstances to ensure the health and safety of persons at the workplace. Mr. Sutherland’s guilty plea relates to the fact that on August 13, 2006, there was a manure pit on the farm that did not have a barrier. Mr. Sutherland’s responsibility to safeguard employees from risks associated with that manure pit arise under section 13(1) of the Occupational Health and Safety Act. The Act also requires, under section 17(1), that every employee, while at work, shall ""take every reasonable precaution in the circumstances to protect the employee’s own health and safety...at or near the workplace."" [3] On August 13, 2006, Gary Boake, nineteen years old, met ghastly and tragic death. He drowned in a manure pit. The tragedy that resulted in his death unfolded in matter of minutes after he got to the farm. The facts establish that he had been out all night at social event, and like many young people sowing their wild oats, had been drinking and had not slept. His blood alcohol concentration was significantly over the legal limit for operating any kind of vehicle. Nevertheless, he was responsible enough to show up for his job at the Sutherland dairy farm. He probably should not have gone to work in his condition but he did, perhaps because he was not the kind of young man to let an employer down by not showing up. However he was in no condition to be operating equipment, which he needed to do to remove manure to the manure pit, and placed himself at risk. Mr. Sutherland ’s failure was in not securing the manure pit which had its damaged barricade removed while a new one was on order, or not arranging for an alternative to using the pit, alternatives that did exist on the farm at the time. [4] The news of Mr. Boake’s death was the news families dread. And it was the worst news imaginable. Not only had there been an accident, and farm work being inherently dangerous, accidents are daily risk, but Mr. Boake had died. There is nothing that will bring any comfort to Mr. Boake ’s family: they are left to mourn the loss of such young life. His mother, Bonnie McMullen continues to grieve. In her Victim Impact Statement she says the following: think what upsets me the most is not really knowing what he was going through as he was being submerged deeper into the pit. think of him every day, and yes, have the memories, but it is just not the same. want my baby back. Without the support of my husband, family and friends, would not have made it through this ordeal."" [5] Section 74(1) of the Occupational Health and Safety Act provides that the penalty for corporation violating the regulations under the Act is maximum fine of $250,000. Section 75 establishes range of additional sentencing options, sometimes referred to as ""creative sentencing options"" that can include: directing the offender to pay to the Minister an amount for the purpose of public education in the safe conduct of the activity in relation to which the offence was committed, and principles of internal responsibility provided for in the Act; community service; and requiring the offender to comply with such other reasonable conditions as the court considers appropriate and just. [6] The Crown and Defence have taken joint position that the total amount of the fine in this case should be $25,000. have heard submissions on how this penalty should be broken down, into fine portion and portion representing the value of Mr. Sutherland’s time and expertise in educating other farmers about farm safety and promoting new Farm Safety Association. [7] The legal framework for this sentencing has been constructed by the purpose and principles of sentencing found in sections 718 to 718.2 of the Criminal Code, which apply here by operation of Nova Scotia’s Summary Proceedings Act, and the occupational health and safety cases applying these norms. The principles of sentencing for occupational health and safety violations that is reflected in these sections of the Criminal Code mentioned has been described as follows: There are three primary objectives of sentencing for violation of the applicable health and safety legislation. First, there is the deterrence aspect of the sentencing process, both specific to the convicted party and generally for the community. Secondly, there is the retribution aspect of the sentencing process, indicating the moral wrong and the need to reinforce the value or standard that was violated. Thirdly, there is the rehabilitation‑reform aspect of the sentencing process for the convicted party to be assisted in not repeating the offence. [8] Principles of sentencing that must be examined closely in arriving at fit and proper disposition are proportionality, parity and restraint. The principle of proportionality requires that Mr. Sutherland’s sentence be proportionate to his moral blameworthiness for the offence of failing to take reasonable precautions to address the problem of the damaged barricade having been removed at the entrance of the manure pit. Other factors that are relevant to the issue of proportionality in this case are the fact that Mr. Sutherland is before me as an individual not a large corporation and the fact that Mr. Boake also had responsibilities under the Occupational Health and Safety Act that he did not meet. [9] The principle of parity in sentencing requires that ""a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances"", but this case does not lend itself easily to comparisons. am satisfied that it cannot be equated to Occupational Health and Safety Act cases where fatalities have led to high fines being imposed against corporate offender. Punishment should be mitigated by Mr. Sutherland’s lesser degree of culpability. He also has no prior record for Occupational Health and Safety Act violations. It is material to me as well that the evidence in Exhibit 1, containing diagrams and photographs of Mr. Sutherland’s farm, and the submissions of Mr. Yuill, indicate clearly that Mr. Sutherland was conscientious about safety issues before August 13, 2006 and has endeavored to address and improve safety at his farm since the tragedy of Mr. Boake’s death. He has made substantial changes to the farm since August 2006, including building new dairy barn. These plans were in the works before Mr. Boake’s death but have been informed by this tragedy, including safer method for disposing of manure, through gravity fed tightly spaced gratings that Mr. Sutherland designed himself. [10] The primary goal in sentencing Mr. Sutherland is general deterrence; the sending of message to other employers that safety in the workplace must be rigorously maintained. Satisfying the imperatives of general deterrence in sentencing however has to be accomplished in manner that reflects the particular circumstances of the case. General deterrence may mean different things in different cases. [11] Having accounted for the mitigating factors that apply in this case, Mr. Sutherland’s guilty plea and the steps he has taken since Mr. Boake’s accident to improve safety at the farm, I am satisfied that the joint recommendation of counsel for a total penalty of $25,000 is appropriate in this case. I accept the submission that a $25,000 penalty is a significant penalty for Mr. Sutherland. [12] also accept that the penalty should include significant contribution by Mr. Sutherland to farm safety initiatives. Nothing can bring Mr. Boake back to life but the experience of the tragedy and, very importantly, Mr. Sutherland’s knowledge of addressing farm safety issues, can assist in preventing the loss of another life, which at least will mean that however heartbreaking the loss of Mr. Boake’s life, he will not have died in vain. [13] I am going to direct that the fine portion of the penalty be paid, as is jointly recommended, to the Canadian Farmers’ Disability Registry. That amount will be $15,000. In addition I am directing that Mr. Sutherland perform 160 hours community service specifically with respect to farm safety, including preparation and travel to meetings associated with the issue. can say that regard the total penalty that am imposing here to be substantial penalty for Mr. Sutherland, accepting that this is family run dairy farm. Mr. Sutherland is before me as an individual. have, of course, taken into account that the failure to have met the requirements of the Occupational Health and Safety Act here did result in fatality and so that is material in recognizing the appropriateness of substantial penalty. [14] am not imposing Victim Surcharge for the reason that consider it to be an undue hardship in Mr. Sutherland ’s circumstances and also because the joint recommendation, which have accepted, did not propose Victim Surcharge portion and recommended that Mr. Sutherland be responsible for an amount totaling $25,000, and in doing so, recognized that the components would be straight fine and community service. [15] will finally note that while certainly appreciate that farmers do not work 40 hour weeks, that if one takes conventional 40 hour week, obviously 160 hours is four such weeks and that is how arrived at the 160 hour figure. That is substantial contribution directly by Mr. Sutherland to farm safety in light of his other responsibilities with respect to his dairy business.","The defendant farmer pled guilty to failing to take every precaution that was reasonable in the circumstances to ensure the health and safety of persons in the workplace, after a young employee drowned in a manure pit that was not properly secured due to a damaged barricade having been removed while a new one was on order. Defendant sentenced to fine of $25,000, from which the sum of $15,000 shall be paid to the Canadian Farmers' Disability Registry; defendant ordered to perform 160 hours of community service with respect to farm safety. The defendant was an individual and not a huge corporation, had been conscientious about safety issues prior to this incident and had endeavored to improve safety at his farm after the incident; the deceased had also failed in his responsibilities under the Act and was working with a significant blood alcohol content.",2_2009nspc21.txt
274,"Dated: 20020617 2002 SKCA 80 Docket: 66 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Bayda C.J.S., Tallis Lane JJ.A. TERRY BRIAN STEFIUK APPELLANT (Applicant) and TRINA STELLA PLANEDIN (formerly Stefiuk) RESPONDENT (Petitioner) COUNSEL: Mr. Richard A. Mayer for the Appellant Written submission filed by the Respondent with no one appearing DISPOSITION: On Appeal From: QB 01902 of A.D. 1991, J.C. of Yorkton Appeal Heard: June 10, 2002 Appeal Decided: June 17, 2002 Written Reasons: June 17, 2002 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Tallis [1] The parties divorced in 1992 and at that time the appellant was ordered to pay $200 month support for their child. The appellant later entered into new relationship and he and his common-law spouse had mentally handicapped child born in 1995. In 1996, the appellant was laid off from his employment and heceased making his support payments. He remained at home to care for the child. In 1997, his common-law spouse died suddenly and he has since remained the sole care and support of the child. He used his common-law spouse’s modest insurance proceeds for living expenses and he made no payment towards the accumulated arrears of support. [2] In March, 2000, he made an application to vary the support order both by suspending payment until he gained employment, and by reducing the arrears. The application was dismissed without reasons. He appealed the resulting order. [3] The appellant has had representation through Legal Aid. The respondent did not appear because she does not have the financial resources. We originally adjourned the appeal to obtain information from the appellant as to his employment status. The adjournment was granted on the condition enforcement of the order was stayed so long as he continued to make payment of $30 month to Maintenance Enforcement which he has done. [4] The appellant, and his daughter (now full-time student), live on the Canada Pension Plan Survivor and Orphan’s Benefit, the Federal Child Tax Benefit, the Saskatchewan Child Benefit and the G.S.T. Credit. He has filed further affidavit material which shows he is presently unable to work because of medical condition and is on the waiting list for back surgery. He is now studying to obtain his GED grade 12 which he hopes to receive in December of this year. [5] The respondent has been sympathetic but in response to the appellant’s application to vary was of the view he was able to work at that time. She herself has very limited financial resources as she and her husband are raising three children. [6] The appellant must recognize, and counsel assures us he now does, that he must obtain employment when his health allows. In these unfortunate circumstances it is clear the arrears are not likely to ever be paid in full and we order them reduced to $5,000. Enforcement of the order below is stayed so long as the appellant continues to make the payment of $30 a month to Maintenance Enforcement. When his employment situation is known, it is, as suggested by his counsel, open to the parties to negotiate resolution of the matter or he can make an application to finally decide the matters of arrears and support. The appeal is therefore allowed to this extent. There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 17th day of June, A.D. 2002. concur BAYDA C.J.S. concur TALLIS J.A.","The father was ordered to pay child support of $200 per month in 1992. He was laid off his employment in 1996 and ceased support payments. His common law spouse died suddenly in 1997 and he has remained the sole care and support for their mentally handicapped child. He appealed the dismissal of his application in March 2000 to vary the support order by suspending payment until he gained employment and by reducing arrears. HELD: The appeal was allowed in part. He must obtain employment when his health allows. Arrears were reduced to $5,000 and enforcement was stayed so long as he continues to make monthly payments of $30 to Maintenance Enforcement.",5_2002skca80.txt
275,"J. 1997 Date: [20010911] Docket: [S.H. No. 143464] IN THE SUPREME COURT OF NOVA SCOTIA (Cite as: Haughn et al v. Halifax Regional Board of Police Commissioners et al, 2001NSSC117) BETWEEN: LENARD HAUGHN, TIM MOSHER, KEVIN TELLENBACH, JOE COLLINS, DAVE WORRELL and CHRIS MELVIN and HALIFAX REGIONAL BOARD OF POLICE COMMISSIONERS and VINCENT J. MacDONALD, CHIEF OF POLICE OF THE HALIFAX REGIONAL POLICE SERVICE and MUNICIPAL ASSOCIATION OF POLICE PERSONNEL DECISION HEARD: Before the Honourable Justice A. David MacAdam, in Chambers, at Halifax, Nova Scotia, on July 19, 2001 DECISION: July 19, 2001 WRITTEN RELEASE OF DECISION: September 11, 2001 COUNSEL: Nancy L. Elliott, counsel for the Plaintiffs Terry L. Roane, Q.C., counsel for the Defendants Ronald A. Pink, Q.C., counsel for the Intervenor Date: [20010911] Docket: [S.H. No. 143464] [1] The Halifax Regional Municipality Act, S.N.S. 1995, c. (the “Act”), effective as of April 1, 1996, provided for the amalgamation of the Cities of Halifax and Dartmouth, the Town of Bedford and the remainder of the County of Halifax into the Halifax Regional Municipality (“HRM”). The amalgamation included the joining together of the various municipal police forces under one administration. [2] Prior to amalgamation the plaintiffs, other than Tim Mosher, had all been employed as police officers by the Town of Bedford, each holding the rank of corporal. In February 1994, Bedford decided to eliminate the rank of corporal and these plaintiffs were named to the rank of sergeant. The plaintiff, Tim Mosher, was constable who was promoted to the rank of sergeant in 1995. As sergeants in the Town of Bedford, the plaintiffs were not members of union but were subject to working agreement established between the Town and Liaison Committee on behalf of the sergeants. [3] Some members of the City of Halifax Municipal Police Force, including sergeants, were members of Bargaining Unit represented by the intervenor, Municipal Association of Police Personnel (“MAPP”). Under the collective agreement between MAPP and the City of Halifax, there were provisions designating two pay levels for the classification of sergeant, being Sergeant and Sergeant II. [4] Prior to amalgamation vote was held, pursuant to the Trade Union Act, R.S.N.S. 1989, c. 35 (“TUA)”, of police employees of the various former municipalities to determine the bargaining agent to represent them. On September 27th, 1995, the Labour Relations Board (Nova Scotia)(the “Board”) declared MAPP as the successor trade union in relation to bargaining unit, described as follows: “all police personnel employed by the Halifax Regional Municipality below the rank of Deputy Chief, including Communication Technicians, and other civilian employees performing police functions and former police functions”. Labour Relations Board Order, No. 4277, September 27, 1995 [5] As result, the plaintiffs were to be included in the bargaining unit established pursuant to Labour Relations Board Order, No. 4277. Consequently, as result of amalgamation, on April 1, 1996 the plaintiffs became employees of “HRM” and members of the bargaining unit represented by MAPP. [6] The defendant, Vincent J. MacDonald, who was appointed Chief of Police of the newly constituted police force, on April the 12th, 1996 issued Department Order which provided, among other things, that the plaintiffs would “now be referred to as Sergeant II”. The Order also provided that the titles of the job classifications would not increase or decrease the benefits of the respective ranks but would create two-tier structure within the sergeant rank and members were required to “qualify” for any change in classification from the Sergeant II to the Sergeant level. [7] Although MAPP, in June 1996, filed grievance on behalf of some of the plaintiffs in respect to another issue involving the appropriate rate of pay for police personnel holding acting positions, it advised the plaintiffs it would not support their position that the Order of the Chief of Police constituted demotion. The position of MAPP was that the designation of Sergeant II was “pay level, not rank”. [8] The Halifax Regional Board of Police Commissioners, in response to a letter from the plaintiffs dated January 14, 1997, indicated they supported the decision of the Chief of Police. The Nova Scotia Police Commission (“the Commission”), as a result of a letter from the plaintiff, Lenard H. Haughn, dated October 9, 1996, by response dated November 8, 1996 declined to consider the matter on the basis it had no jurisdiction to convene an investigation or inquiry since there was no evidence any demotion was the result of a disciplinary default. [9] HRM and MAPP had commenced collective agreement negotiations in January 1996, and prior to concluding an agreement agreed the sergeant rank would include the designations of Sergeant and Sergeant II. However, no agreement was reached on the appropriate rates of pay for the designations and the matter was referred to an Interest Arbitration Board. The Interest Arbitration Board, by Award dated November 27, 1997, assigned wages to the sergeant classifications, and subsequently on January 12, 1998, HRM and MAPP signed collective agreement which incorporated the findings of the Interest Arbitration Award, including the classifications of Sergeant and Sergeant II. [10] On December 2, 1997, the plaintiffs initiated this proceeding seeking judicial review of the April 12, 1996 decision of the Chief of Police and the May 29, 1997 decision of the Halifax Regional Board of Police Commissioners on the ground the two-tier system for sergeant violates Section 35(1) of the Regulations made under the Police Act, R.S.N.S. 1989, c. 348. Section 35(1) of the Regulations reads as follows: Every municipal police force may have all or any of the following ranks, but no others: Chief of Police Deputy Chief Staff Superintendent [11] The plaintiffs also claim they were reduced in rank contrary to Regulation 4(3) of the Police Act, which states: No member of municipal force is subject to any penalty, including reduction in rank or dismissal, until after proceedings have been taken pursuant to the Act and these regulations... [12] At issue in this application is whether this Court has jurisdiction to deal with the subject matter of this proceeding. MAPP and the defendants maintain this Court has no jurisdiction, in that the issues are matters which fall within the exclusive dispute resolution process established under the TUA. They say the nature of the dispute arises from the “interpretation, application, administration and potential violation of the terms of collective agreement”, and, therefore, the plaintiffs are bound by the provisions of the collective agreement pursuant to s. 41 of the TUA. They add, the plaintiffs are bound by the provisions of s. 42 which provides for final and binding settlement of differences between the parties to or persons bound by collective agreement and the issues raised by the plaintiffs in this proceeding fall within the exclusive jurisdiction of an Arbitrator appointed under the provisions of the collective agreement and the TUA. They also suggest the issues raised by the plaintiffs involve the interpretation of sections of the TUA and in particular, s. 23(7) and s. 35. These sections provide that employers may not increase or decrease rates of wages or alter any other term or condition of employment, in the case of s. 23(7), without consent of the Board, after an application has been made for certification of union as bargaining agent and after certification before notice to commence collective bargaining has been given under s. 33 and in the case of s. 35, without the consent of the bargaining agent, after notice to commence collective bargaining has been given under s. 33 or s. 34. [13] MAPP and the defendants also note that pursuant to s. 43(1)(e) of the TUA an arbitrator or arbitration board has jurisdiction to interpret and apply the provisions of other statutes that affect relations between parties to collective agreement. [14] The plaintiffs, on the other hand, and as summarized in the agreed statement of facts filed by the parties on this application, maintain the court has jurisdiction to hear the matter on the basis of the following grounds: 1. Sections 41 and 42 of the Trade Union Act do not apply because the cause of action pre-dates the collective agreement; 2. If there is conflict between the Police Act and any other Act or collective agreement, the Police Act prevails; 3. The terms and conditions of employment during the statutory freeze prior to the signing of the first collective agreement between MAPP and HRM included the rights of the Plaintiffs to pursue their common law rights in the courts; 4. The dispute in its essential character does not arise out of the collective agreement but instead centres on the meaning of the Police Act Regs. 4(3) and 35(1); 5. The exclusivity of the bargaining agent is not applicable because police officers’ rights under the Police Act are individual rights as opposed to collective rights. Also, any individual who can establish standing has right to challenge whether statute has been violated. [15] Counsel for the defendants on an earlier application by the defendants to dismiss the plaintiffs’ action on the basis the court lacked jurisdiction referenced statements by the Supreme Court of Canada adopting the “exclusive jurisdiction” model in respect to the interpretation and application of collective agreements and trade union legislation. Her submission reads: The Supreme Court of Canada adopted and has held scrupulously to an “exclusive jurisdiction” model since at least 1975 when Laskin, C.J. wrote the decision for the majority in McGavin Toastmaster Limited and Ainscough, 1975 CanLII (SCC), [1976] S.C.R. 718. It was decided in McGavin that individual contracts/rights (whether pre-existing or not) are fully replaced by the collective agreement and the Union’s status as exclusive bargaining agent under labour relations legislation: do not think that in the face of labour relations legislation such as existed at the material time in British Columbia, in the face of the certification of the union, of which the plaintiffs were members, as bargaining agent of specified unit of employees of the company and in the face of the collective agreement in force between the union and the appellant company, it is possible to speak of individual contracts of employment and to treat the collective agreement as mere appendage of individual relationships. The majority of this Court, speaking through Judson J. in Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, at p. 212, said this in situation where union was certified for collective bargaining under Quebec labour relations legislation: There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations. [16] In her submission on this application counsel notes the recent decision of the Nova Scotia Court of Appeal in Pleau v. Canada (Attorney General) (1999), 181 N.S.R. (2d) 365, in which Justice Cromwell, on behalf of the court, set out three interrelated considerations governing the determination whether court should decline jurisdiction in favour of the grievance/arbitration process. She notes from paras. 50-52: First, consideration must be given to the process for dispute resolution established by the legislation and collective agreement. Relevant to this consideration are, of course, the provisions of the legislation and the collective agreement, particularly as regards the question of whether the process is expressly or implicitly regarded as an exclusive one. Language consistent with exclusive jurisdiction, the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme should be considered. Second, the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation and the collective agreement should be considered. In essence, this involves determination of how closely the dispute in question resembles the sorts of matters which are, in substance, addressed by the legislation and collective agreement. What is required is an assessment of the “essential character” of the dispute, the extent to which it is, in substance, regulated by the legislative and contractual scheme and the extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme. Third, the capacity of the scheme to afford effective redress must be considered. Simply put, the concern is that where there is right, there ought to be remedy. [17] Counsel then continues: Applying those principles to the facts in Pleau, the Court of Appeal concluded that the Statement of Claim should not be struck out. The Court of Appeal based its decision on finding that the grievance procedure in that collective agreement and/or mandated by the governing legislation (the Nova Scotia Public Service Staff Relations Act), did not create an exclusive mechanism for the resolution of the plaintiff’s dispute. The Court of Appeal concluded that the collective agreement did not explicitly or by reference govern the substance of the dispute in Pleau and, given the structure of the Act and the fact that third party had no independent right to challenge the outcome of the grievance procedure, decided that no adequate form of redress existed. The Defendants submit that, although the principles enunciated by the Court of Appeal apply...the facts in the two cases are substantially different and necessarily lead to different conclusion. Specifically, the applicable legislation in this case (the Trade Union Act, R.S.N.S. 1989, c. 475) and the Collective Agreement between the Defendant Halifax Regional Municipality and MAPP, differ significantly from the legislation and collective agreement considered in Pleau in that they establish an exclusive arbitration process which encompasses the allegations made by the Plaintiffs in this proceeding. [18] Counsel for the plaintiffs, on the other hand, after referencing the decision of Justice Cromwell in Pleau v. Canada (Attorney General), supra, responds: The collective agreement does set out grievance and arbitration process. However, it is clear from the collective agreement that there is also an alternate forum for some matters: Article of the 1997-1999 collective agreement...explicitly provides that all disciplinary and non-disciplinary matters which affect the employment status of police officer shall be dealt with in strict accordance with the procedural and substantive requirements for discipline as set out in the Police Act and its regulations. The exclusivity of the grievance/arbitration process does not exist for police officers. However, from the plaintiffs perspective the more compelling of the considerations set out by Justice Cromwell are the latter two. The substance of the dispute in its essential character is dispute over the meaning of the Police Act and its regulations. From the plaintiffs’ review, it does not appear that the collective agreement includes any provisions regarding the demotion of police officer who falls under the Police Act. The collective agreement does, however, include provision for non-police officers: “The Region shall show just cause to demote, suspend, or discharge, for disciplinary and non-disciplinary reasons, members who are not included under the Police Act.”.. It would appear that the parties did not contemplate demotions except under proceedings taken under the Police Act. Further, even if the parties had explicitly agreed that demotions could take place for administrative reasons, the plaintiffs would still say such an agreement constitutes violation of the Police Act. union and an employer cannot simply agree to establish provisions within collective agreement that violates statute and thereby become impervious to challenge. There must be some means for union member to challenge provisions in collective agreement where they believe statute has been contravened. For example, if an employer and union put provision in collective agreement that constitutes discrimination under the Human Rights Act, then an employee can take complaint before the Human Rights Commission. It is submitted that likewise, if police officer believes union and an employer have put provisions in collective agreement which violate the Police Act, there must be means of having that dispute heard. The plaintiffs claim the ranks of Sergeant and Sergeant II were not permitted under the Police Act regulations... The essential character of the dispute arises out of the legislation, not the collective agreement. This is especially so when it is considered whether there is an effective remedy. The Defendants and Intervenor have suggested the plaintiffs could have brought an action against MAPP for failure to represent. However, such an action, if successful, would only have provided the plaintiffs’ damages it would not have remedied any statutory violations. Such result can hardly be said to be an effective remedy. [19] As noted by counsel for the intervenor, in her submission of November 17, 1998, s. 23(7) of the TUA provides “statutory freeze” on terms and condition of employment once an application for Certification has been made and s. 35 provides “similar statutory freeze in terms and conditions of employment where notice to commence collective bargaining has been given”. Subsection (b) of s. 35 recognizes an exception where the employer is able to obtain the consent of the “certified or recognized bargaining agent” or the ”Board” to alter terms and conditions of employment. Counsel also suggests s. 36 makes it clear that the bargaining agent has exclusive authority to represent employees in bargaining unit in circumstances where an alleged breach of terms and conditions of employment has occurred. [20] Section 36 of the TUA provides that where the Minister of Labour of the Province of Nova Scotia, receives complaint from party to collective agreement that another party to the collective bargaining has failed to comply with s. 35, they may refer the complaint to the Board and, in such circumstance, the Board is to inquire into the complaint and to do all things necessary to ensure compliance with s. 35. Section 36, therefore, vests jurisdiction in the Board to make the determination as to whether or not there has been violation of s. 35, and secondly, to fix the appropriate remedy. [21] Counsel references the decision of Chair Christie of the Board, in Order No. 2372, dated June 13, 1977, involving the Kentville Hospital Employees Association and Kentville Hospital Association, as to the purpose of s. 35 in “maintaining the status quo”. The purpose of Section 33(b) (now Section 35(b)) is to maintain the status quo between an employer and his employees once notice to bargain has been given. The employer may not increase or decrease wages or “alter any other term or condition of employment” without the consent of the certified bargaining agent because to allow him to do so is inconsistent with the collective bargaining regime to which he had become subject by certification. In cases of hardship the consent of the Labour Relations Board is made available. That does not mean, however, that the general terms of employment already in force should not be given effect in relation to specific employees... [22] Counsel for the intervenor, in her submission, continues: The Intervenor submits...the question of whether term or condition of employment was changed by the employer is one within the exclusive jurisdiction of the Labour Relations Board as set out in the provisions of Section 35 and 36 of the Trade Union Act. The exclusive bargaining agent has the authority to either consent to change, or alternatively to make complaint to the Minister of Labour. The employer does not need to obtain the consent of individual employees for any change to terms and conditions of employment. The ability to consent has been transferred, by the Trade Union Act, to the certified bargaining agent. Whether the ability to pursue breach of an employment contract was part of terms and conditions of employment prior to certification, clearly the Trade Union Act has taken away that right of individual employees. It is not matter of the union and the employer “agreeing to take away common law rights prior to the conclusion of collective agreement”. It is expressly contemplated by Section 35 and 36 of the Trade Union Act. Employees are not left without remedy. They may raise the issue of whether term or condition of employment has been changed with the exclusive bargaining agent. If the union goes not agree that term or condition of employment has been changed, then it may decide not to refer the matter to the Minister of Labour. If the union agrees that term or condition of employment has been changed, it may make complaint to the Minister of Labour. Alternatively, if the Union agrees that term or condition of employment has changed, the union might decide not to make complaint, but rather to agree to the change with the employer. In all cases, the certified bargaining agent makes those determinations, not the individual employees. If the employees do not like the actions of the certified bargaining agent, they have options like application for de-certification, or to sue the union for breach of its common law duty to represent employees. Employees are not left without remedy. [23] As noted, amalgamation occurred effective April 1st, 1996, although, as agreed in the agreed statement of facts, collective agreement negotiations between HRM and MAPP had commenced in January 1996. The plaintiffs are correct, that in September 1995 when the Board declared MAPP as the successor trade union in relation to the bargaining unit to be composed of former police personnel of the various municipal units, and at the time negotiations for collective agreement commenced in January 1996, they were not employees of HRM. This only occurred on April 1, 1996. However, on that date they did become employees; they did become members of the bargaining unit and were such on April 12, 1996 when Chief MacDonald issued the Department Order. The “status quo” provided for in s. 35 of the TUA therefore may be applicable. Whether the Order violated the provisions of the TUA, the Police Act or any employment rights of the plaintiff is matter to be resolved having regard to the procedures for such resolution established in the applicable labour relations legislation. [24] If the plaintiffs are correct in asserting ss. 41 and 42 of the TUA do not apply, because the order of the Chief of Police predated the collective agreement, or there is conflict between the Police Act and another Act or the collective agreement, or the statutory freeze contained in the TUA, does not preclude the plaintiff pursuing any common law rights in the courts, or that the dispute in its essential character does not arise out of the collective agreement but rather pursuant to the Regulations under the Police Act, or that the exclusivity of the bargaining agent provisions in the TUA are not applicable because the plaintiffs’ rights as police officers under the Police Act are individual as opposed to collective rights, these are matters that involve the threshold question of whether the question is itself arbitrable. As such, the decision of Justice Cromwell of the Nova Scotia Court of Appeal in Nova Scotia Union of Public Employees, Local v. Halifax Regional School Board (1999), 1998 CanLII 3382 (NS CA), 171 N.S.R. (2d) 373, is informative as to the appropriate approach to be taken when there is such threshold question. [25] Recognition of the central role of the arbitration process in the scheme of collective bargaining labour relations was noted by Justice Cromwell in referencing the decision of Justice Estey, for the court, in St Anne-Nackawic Pulp and Paper Co v. C.P.U. Local 219, 1986 CanLII 71 (SCC), [1986] S.C.R. 704, at p. 721: What is left is an attitude of judicial deference to the arbitration process. ... It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in labour relations setting. Arbitration ... is an integral part of that scheme, and is clearly the forum preferred by the Legislature for resolution of disputes arising under collective agreements. (emphasis added) [26] Justice Cromwell, at para. 22, continues: In the cases of Weber and O’Leary, supra, the court has reaffirmed this view. Those cases establish an “exclusive jurisdiction” model for analyzing the effect of final and binding arbitration clauses. This model holds that, if the difference between the parties arises from their collective agreement, arbitration is the exclusive process for its resolution; the courts have no concurrent jurisdiction: see e.g., Weber v. Ontario Hydro, supra at p. 956 [S.C.R.]. The court has reinforced this approach by stressing that, in determining whether the dispute arises from the collective agreement, its essential character, not simply its legal characterization, must govern: see Weber at p. 956 [S.C.R.]. conclude, therefore, that the pre-eminent role of the arbitration process is not simply product of particular provisions, but is central aspect of the overall scheme of collective bargaining labour relations. [27] In the present circumstance, MAPP has consented to the order of the Chief of Police and this consent is evidenced by the fact the classifications were included in the Collective Agreement entered into on January 12, 1998. It would appear, as observed by Justice Cromwell in Nova Scotia Union of Public Employees v. Halifax Regional School Board, supra, that as there, there has here been no determination by any arbitrator whether the complaints set out in the statement of claim are in fact arbitrable. Justice Cromwell, at para. 32, continues: This is an important aspect of the question of whether the court has jurisdiction. The interests of ensuring that matters do not fall between the two jurisdictions are better served by having determination of arbitrability made first at arbitration. In that way, the court will know when it rules on the question of its jurisdiction the full implications of its decision. [28] Justice Cromwell then continues at para. 33: In my view, each of the four factors just discussed supports the conclusion that, where there is doubt about the arbitrability of the dispute, that issue should generally be determined initially at arbitration. This view is mandated by the text of the collective agreement and the Trade Union Act. It also best reflects the central role of arbitration in collective bargaining labour relations, recognizes that arbitration is the forum best suited to conducting the necessary inquiry and helps ensure that no one, absent sound reasons, will be left with rights but no effective remedy. [29] In addressing the limits of the court’s jurisdiction, including where the union declines to proceed with an individual employee’s grievance or settles it against the employee’s wishes, Justice Cromwell at paras. 27 and 28, comments: think it is of fundamental importance in Weber that the limits of court jurisdiction can only be understood in light of the breadth of arbitral jurisdiction. Weber was not case in which it was suggested that neither the arbitrator nor the court would have jurisdiction to determine the rights of the parties. This is underlined by McLachlin, J.’s quotation in Weber from St Anne-Nackawic to the effect that matters “addressed and governed” by the collective agreement should not be pursued in the courts and that the courts should not be “duplicative forum” (at pp. 952-953 [S.C.R.]). In Weber, there was no question that the grievance was arbitrable. grievance was, in fact, pursued and settled. The question was which forum had jurisdiction. It was not suggested or contemplated that neither had jurisdiction. Of course, arbitral and court jurisdiction are not always the mirror image of each other; the correlation is not exact. In some cases, court action may be barred even though there is no remedy available through the arbitration process. For example, if grievance is time barred, there may be no remedy available at arbitration and yet the court may also decline jurisdiction: Piko v. Hudson’s Bay Co. (1997), 24 O.T.C. 238 (Gen. Div.). Similarly, union may decide not to proceed with an individual employee’s grievance or settle it against the employee’s wishes and yet the court may not take jurisdiction in the individual’s court action raising essentially the same complaint: Bhairo v. Westfair Foods Ltd. (1997), 1997 CanLII 17826 (MB CA), 118 Man.R. (2d) 172; 149 W.A.C. 172; 147 D.L.R. (4th) 521 (C.A.); Callow v. Board of Education of School District No. 45 (West Vancouver) et al. (1997), 1997 CanLII 4147 (BC CA), 86 B.C.A.C. 241; 142 W.A.C. 241; 29 B.C.L.R. (3d) 199 (C.A.). The premise of such decisions is that all of the employees’ rights, substantive and procedural, in the given area are exhaustively codified in the collective agreement. There are no others to be asserted in court. [30] Justice Cromwell, at para. 36 concludes his summary by stating: ...absent sound reasons to the contrary, courts should apply the general principle that arbitration, and not the court, is the forum for the initial determination of whether matter is arbitrable. [31] In concluding, at para. 37, he adds: Whether or not an arbitrator finds this dispute arbitrable at the end of the day, it is more respectful of the processes adopted by the parties and the Legislature and in the interests of sound decision-making in this key area of labour relations law to have the matter first addressed at arbitration in light of all the facts and circumstances of the particular situation. The arbitration process is better suited to that exercise. [32] During the course of argument, it was suggested the plaintiffs may yet have right to argue before the Commission that HRM has violated the Act. Whether the plaintiffs have such right and whether given such right their argument has merit, are not matters before this court. Nothing in these reasons is intended directly or indirectly to suggest the plaintiffs do or do not have such right or whether HRM has or has not violated the Act. Nor is it relevant if the plaintiffs have now, for any reason, lost the right to initiate the arbitration process. The only issue before this court is whether there is jurisdiction to entertain the proceeding brought by the plaintiffs and, having concluded there is no jurisdiction, it is not for this court to comment on the merits or lack of merits of the position of any party in the event any such alternative proceeding may be brought, nor not having been brought in time, has now been lost. [33] Justice Cromwell, in Nova Scotia Union of Public Employees v. Halifax Regional School Board, supra, at para 40, in addressing the question of whether the appropriate relief was to stay or strike the proceeding, made the following comments: In this case, have addressed only one question. It is whether the court action should not proceed because an arbitrator, and not court, should determine at first instance the issue of arbitrability. In light of my conclusion, it is not necessary for me to address the broader aspect of the employer’s substantive argument that the court has no jurisdiction regardless of the conclusion of the arbitrator on the question of arbitrability. That issue not having been decided in this appeal, it will be open to the parties to raise it again in the future, if for example, an arbitrator finds the dispute not to be arbitrable. Out of an abundance of caution that these reasons not be seen as settling anything other than the narrow issue which they address, think the wise course is to direct stay of the action which could be lifted by judge of the Supreme Court in appropriate circumstances in the future. So as to avoid the possibility of the action being suspended indefinitely, would add the proviso that if no application is made to lift the stay within two years of today’s date, the action will stand dismissed. [34] Similarly, the only issue addressed in these reasons is whether this court action should not proceed because an arbitrator has not, in the first instance, determined the issue of arbitrability. Broader issues as to the substantive rights of the plaintiffs, if any, have not been addressed. As a consequence, I would, as Justice Cromwell did, stay the present proceeding, pending submission to arbitration or any other form of proceeding that is permitted under the statutory enactments applicable to the parties and the disputes in question. Also, so as to avoid the possibility of this action being suspended indefinitely, I would add the proviso that if no application is made to lift the stay within two years of the date of these reasons, then this action will stand dismissed.","The plaintiffs were Sergeants in the Town of Bedford Police Department. Following amalgamation and before any collective agreement was concluded, the Chief of the amalgamated force issued a department order declaring that all persons in the position of the plaintiffs would be referred to as a level two Sergeant which created a two-tier structure within the Sergeant rank. The bargaining agent for the union declined to process a grievance on behalf of the plaintiffs and agreed with the two-tiered structure which was eventually incorporated into the collective agreement. After unsuccessfully complaining to the Nova Scotia Police Commission and the Halifax Regional Board of Police Commissioners, the plaintiffs commenced an action alleging that the creation of the two-tiered structure was a violation of the Police Act and adversely affected their employment rights. The intervenor union brought an application to strike the plaintiffs' proceeding on the basis that the court lacked jurisdiction to hear the matter. Application granted; proceeding stayed pending submission to arbitration or any other form of proceeding that is permitted under the statutory enactments applicable; if no application is made to lift the stay within two years, the action will stand dismissed. Where there is a threshold question of whether the dispute is arbitrable, that decision should initially be made, absent very limited exceptions, by an arbitrator and not by the court. It is irrelevant if the plaintiffs have now lost their rights to initiate the arbitration process.",3_2001nssc117.txt
276,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 183 Date: 2006 04 19 Docket: Q.B.G. No. 952/2004 Judicial Centre: Regina BETWEEN: MORLEY CATTELL and CHERYL MACK PLAINTIFFS (DEFENDANTS BY COUNTERCLAIM) and CRAIG BOSENBERG and PAULA STRASSBURG and GREAT PLAINS LEASEHOLDS LTD. DEFENDANT (PLAINTIFF BY COUNTERCLAIM) and EMERALD PARK GOLF AND COUNTRY CLUB LTD. and THE TOWN OF WHITE CITY Counsel: Richard B. Morris, Q.C. for the plaintiffs J. Paul Malone for the Emerald Park Golf and Country Club Ltd. and Great Plains Leaseholds Ltd. Rodney J. Rath for the Town of White City JUDGMENT MacDONALD J. April 19, 2006 1) This is an action by the plaintiffs, Cattell, Mack, Bosenberg and Strassburg pursuant to Part Forty of The Queen’s Bench Rules for damages arising to them from the alleged nuisance and negligence caused by the defendants, Great Plains Leaseholds Ltd. and the Town of White City with respect to their operation of the Emerald Park Golf and Country Club Ltd., and for a permanent injunction to prohibit the defendants from continuing to operate the golf course in a manner that causes errant golf balls to enter the property of the plaintiffs. 2) The plaintiffs Morley Cattell, Cheryl Mack, Craig Bosenberg and Paula Strassburg are neighbours and live in the community of Emerald Park just east of the City of Regina. Their homes are adjacent to one another and abut the ninth hole of the Emerald Park Golf Course. 3) Until recently, the golf course was owned and operated by the defendant, Emerald Park Golf and Country Club Ltd. On January 12, 2005, the property was purchased by The Town of White City who entered into an agreement with Great Plains Leaseholds Ltd. and PW Lorch Associates Ltd. for the continued operation of the course. 4) The plaintiffs, Cattell and Mack, acquired their lot in early 1997 and the plaintiffs, Bosenberg and Strassburg bought their home from the previous owners in February 2003. 5) In the span of approximately nine years, the plaintiffs, Cattell and Mack, have had approximately 1,000 golf balls per year enter their property. Although fewer balls have landed in the yard of Bosenberg and Strassburg, the number in 2004 was around 400 and in 2005, their evidence is they collected 250 balls. 6) The golf season on this course is from mid-April until October. During the peak season, the plaintiffs say they can experience approximately 10 to 15 balls day entering their yard. Some of the balls roll under the fence, but many of these balls are hard driven and as result the plaintiffs have sustained extensive damage to their homes, the windows of their vehicles and on other occasions the balls have narrowly missed hitting workmen and guests in the yard. 7) The inconvenience is so great and the potential for injury so substantial that the plaintiffs have been prevented from using their yards during the seven months of the year that the course operates. 8) In addition, golfers who have shot their balls into the plaintiffs’ yards will often attempt to enter the property to either retrieve their golf balls or occasionally will try and play the shot from the plaintiffs’ yards. On one occasion an angry golfer deliberately shot ball at the plaintiffs’ house and when he was being asked to leave threatened to burn the house down. 9) The golf course was designed and built in the late 1980s by Great Plains Leaseholds Ltd. The course operated for approximately 10 years without any residential development adjacent to it; however, in 1997, the defendant, Great Plains Leaseholds Ltd., entered into an agreement with Parkview Homes Ltd. to open up the land beside the golf course for residential development. 10) Ben Kuzmicz, President of both Emerald Park and Country Club Ltd. and Great Plains Leaseholds Ltd. and one of the original developers of the golf course, testified at trial that the design plans for the residential area were not part of the initial design of the golf course, nor were the services of the original golf course architect used in planning the development. The actual development plan came later. 11) Mr. Kuzmicz, to his credit, was very candid in his cross-examination and when asked about the development plan, acknowledged that the original residential lot design was based on his own configuration with input from local surveyor who was employed to survey out the lots, prepare and register the plan. 12) He also acknowledged that although he does not golf and did not have any residential or golf course design experience when he set about to design this subdivision, he felt confident that everything would be fine. He confirmed, however, that the design of the ninth hole and the configuration of the adjacent lots has been an ongoing problem since the houses were built. 13) He further confirmed that although there have been attempts by the defendant, Great Plains Leaseholds Ltd., over the years to remedy the problem, they have never commissioned any reports or sought out any professional advice on how this situation could be properly remedied. Rather, he has preferred to rely on his own observations and judgment and the recommendations of the various course managers as to how this problem might be abated. 14) Unfortunately, he said the input of those managers has not been very helpful in finding solution, but he is now hopeful that with assistance of the new golf course manager, who is business woman with interior design experience, and his own life experience as farmer, that the problem will be resolved. 15) One of his solutions has been to oversee the planting of both spruce trees and deciduous trees in an attempt to block some of the shots. He also argued that the plaintiffs should have planted more trees themselves and that if they had, it might have prevented some of the damage to their property. He relies on paragraph 2.07(g) of the contract to support this proposition. He did acknowledge though that the plaintiffs did plant spruce trees which were destroyed by the golfers and that the reference to trees in the contract requires them to be on the lot and not necessarily as protection from flying golf balls. 16) The plaintiffs’ lots border the right hand or east side of the ninth hole. The ninth hole is described as long hole and is oriented from east to west. An examination of the sketches and pictures attached to the affidavits show that the design of the hole places the plaintiffs’ homes right in the line of fire, not only from those golf balls being hit off of the ninth tee, but also from balls hit from second or third shots being played on that hole. 17) Prior to trial, and in an attempt to find resolution to this matter, the plaintiffs commissioned the report of Mr. Ken Tanner, an expert in golf ball trajectory. 18) In his report he describes several factors that would cause golf balls being hit from the ninth hole of the Emerald Park Golf Course to enter the plaintiffs’ yards. These factors include what he refers to as golfer’s obsession with distance. This obsession, when combined with recent advances in technology, have resulted in golfers being able to hit the ball farther without increasing their swing speed. He also says that while this may be one reason for the existing problem, this is not the only reason for the plaintiffs’ problem. If you overlay this obsession with distance onto the current design of the ninth hole, and add to that the prevailing wind direction, together with the golfer’s perceived or real need to compensate for the wind direction and speed, you often end up with misalignment of the shot. All or many of these factors can cause the ball to land in the plaintiffs’ yards instead of on the course. 19) In addition, he suggests that some golfers would, in fact, intentionally aim their shots toward the residential lots. 20) His report makes several recommendations which he believes would remedy the present situation and thereby prevent golf balls from entering the plaintiffs’ property. 21) The first recommendation is to move the tee box back and construct 30 metre fence. 22) The second recommendation is to change the nature of the hole from that of par four to par three, which in his opinion would prevent golfers from driving the ball as hard as they are presently doing in an attempt to reach the green. This would also prevent the balls that are being hit from second and third shots from entering onto the property of the plaintiffs. 23) While the defendants are now amenable to moving the tee box back and did, in fact, move it back last fall, they refuse to erect fence to the size recommended in the report stating that it would be unmanageable and unsightly. 24) The plaintiffs agree that fence of that size might be unsightly, but argue that the defendants have advanced no expert evidence to support the proposition that just moving the tee box will fix the problem. The plaintiffs say that the only evidence the defendants have that this might correct the problem are the recorded observations of two course marshals over two day period in October, 2005. These observations were made when the prevailing wind was from the northwest, not the southeast, and the number of golfers was low and is therefore not reliable since it does not reflect the conditions present during the majority of the golfing season. 25) Mr. Kuzmicz also refuses to accept the second recommendation in the report, saying that in his opinion, if the course was changed from par four to par three, the defendant, Emerald Park Golf and Country Club Ltd., could no longer advertise itself as championship golf course and this he believes would reduce its attractiveness to some golfers. He did agree on cross‑examination, however, that in the 20 plus years that the golf course has operated, it has held only one or two championship games and that he has no expert or other evidence to support this proposition. 26) The administrator for the Town of White City, the current owner of the course, was asked at trial whether she was familiar with the recommendations in Mr. Tanner’s report. In reply she stated that she was; however, although she had been advised by the operator of the course that change to par three might affect its ability to attract champion golfers, the Town officials themselves were not really that concerned with the par three issue since the main reason the Town had acquired the course was to provide recreational site to its residents and not to make money. 27) She did state, however, that the first recommendation to move the tee box back and erect 30 metre fence could probably be accomplished by moving the box back and the erection of much lower fence. She had no basis for this view and when questioned as to how she came to that conclusion she acknowledges she was simply relying on the advice of the operator and not on any expert evidence or reports. 28) Because the defendants refuse to accept either of the recommendations in the report, the plaintiffs are now left in the position where they are being encouraged to once again just wait and see how badly they will be affected in the 2006 season. 29) Since the problem has been ongoing for ten years and the attempts by the defendant operator to ameliorate the damage has been unsatisfactory, the plaintiffs are no longer prepared to wait and have asked the Court for relief in the form of an injunction to prevent the defendants from operating the ninth hole until the situation has been remedied in accordance with the recommendations in the expert’s report. ISSUES (a) Does the manner in which the defendants allow the ninth hole of the Emerald Park Golf and Country Club to be played constitute nuisance? (b) Are the defendants negligent for the design and management of the golf course and for its failure to remedy the problem of golf balls hitting the plaintiffs’ property? If so, what are the plaintiffs’ damages? (c) What is the effect of the indemnity clause in the development agreement between the defendant, Great Plains Leaseholds Ltd., and the plaintiffs, Cattell and Mack? (d) Is injunctive relief an appropriate remedy in the circumstances and if it is, should it be suspended for period of time in order to give the defendants an opportunity to see whether the location of the new tee box will remedy the situation? 30) Private nuisance is defined as an unreasonable interference with the use and enjoyment of land. “This may come about by physical damage to the land ... or injury to the health, comfort or convenience of the occupier” (see Allen M. Linden, Canadian Tort Law, 7th ed. (Markham, Ont.: Butterworths, 2001) at 525. 31) Whether the operation of golf course adjacent to an individual’s land is defined as being an unreasonable interference with the use and enjoyment of that land appears to depend on the nature and frequency of the behaviour complained of. 32) The plaintiffs’ position is that the golf balls which are hit from the adjacent golf course onto their property is and continues to be an interference with the use and enjoyment of their property. They argue that not only is the interference unreasonable, it is potentially dangerous to them and their families. 33) There are number of recent cases from various jurisdictions that have examined whether golf balls flying from an adjacent golf course onto an individual’s property constitutes nuisance. Our own Court of Appeal examined this issue in the case of Lakeview Gardens Ltd. v. Regina (City), 2004 SKCA 110 (CanLII); [2005] W.W.R. 651; (2004), 254 Sask. R. 212. In that very specific fact situation the court held that few golf balls of 10-20 over five-year period, with limited damage to property did not constitute continuing nuisance. 34) If we look to the other jurisdictions for some guidance as to what number of errant balls might fairly constitute nuisance, it would appear that anything from 200 golf balls and up over the span of year is definitely an unreasonable interference with the use and enjoyment of one’s own property. Mr. Tanner, an expert in golf ball velocity, said that it is hard to estimate how many errant golf balls being hit into someone’s yard would constitute too many. Given the fact that the majority of the balls are hit at speeds of between 100 and 120 miles per hour, even few can, in his opinion, cause considerable damage and serious injury when they hit something. 35) Here, the number of golf balls being hit onto the adjacent properties from the defendant golf course is far greater than the number cited in many of the cases put forward. In fact, the evidence of everyone, the defendant operator of the golf course and the plaintiff, Cattell, affirms that no one ever anticipated that the problem would be this bad. 36) There is no doubt then that the present operation of the ninth hole of the Emerald Park Golf Course is a nuisance and continues to be a nuisance. 37) Which then leads us into the argument advanced by the defence that the plaintiffs, Cattell and Mack, cannot succeed in their action because of the wording in the Optionee’s Indemnity clause as contained in paragraph 2.12 of the Option Agreement between Great Plains Leaseholds Ltd. and Parkview Homes Ltd. and which agreement was later assigned to Cattell and Mack upon their lot purchase from Parkview. 38) In that clause, Mack and Cattell, contract to indemnify and hold harmless the optionor (Great Plains Leaseholds Ltd.) “from, and against, all claims, demands, damages, losses ... related to, occasioned by or arising out of, resulting from or attributable to the acts or omissions of the [optionee], anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, in breaching the covenants, agreements, undertakings and obligations of the [defendant] hereunder.” 39) The clause then goes on to hold the defendant optionor harmless against all injuries, damages, losses, expenses costs etc. occasioned by or arising from the operation of the golf course. 40) It would appear to me that this clause is of little value to the defendants given that the evidence of all of the parties, including the evidence of Ben Kuzmicz, confirms the fact that when the residential area was developed and the contract was signed, no one, including the operator (Great Plains Leaseholds Ltd.), anticipated the extent of the existing problem and, accordingly, the plaintiffs Cattell and Mack could not have agreed to save the defendant harmless from a problem of this magnitude. 41) This clause does not therefore afford any protection to the defendants, and even if it did bind the plaintiffs, Cattell and Mack, it does not release the defendants from the claim by Bosenberg and Strassburg, who continue to have the same problem with the golf balls. 42) Accordingly, the defendants, Great Plains Leaseholds Ltd. and Emerald Park Golf and Country Club Ltd., are therefore liable to all of the plaintiffs in negligence for the failure over the past years to remedy or eliminate this hazardous and dangerous situation. This failure has not only caused extensive physical damage to the plaintiffs’ properties, but has also resulted in the loss of the use and enjoyment of their yards for seven months of the year and for these damages they should be compensated. 43) The Town of White City argued that they should only be responsible for those damages which have arisen since they became the owners of the golf course. do not agree and accordingly the defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd. and The Town of White City shall be jointly and severally liable to the plaintiffs for those special damages as set out in the affidavits filed. The defendants did not dispute the amount of those damages at trial. 44) The plaintiffs, Morley Cattell and Cheryl Mack, shall also be entitled to recover from the defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd. and The Town of White City, jointly and severally, the sum of $18,000.00 for the loss of use and enjoyment of their property over the past nine years. The plaintiffs, Craig Bosenberg and Paul Strassburg shall be entitled to the sum of $6,000.00. 45) In addition, for the reasons as outlined in the preceding paragraphs, I am of the view that the plaintiffs are entitled to injunctive relief to put an end to the nuisance which has continued for the past nine years. am not prepared to order the specific course of action that the defendants should take in order to remedy the problem. The expert’s report has been filed. In that report he has made certain recommendations, one of those recommendations should be fully complied with unless the defendants can come up with better solution for resolving this dangerous and annoying problem. I therefore order the following:(a) The defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd., and The Town of White City are hereby enjoined from allowing its members and their guests or any other users of the golf course from hitting golf balls on the ninth hole of the course so that they land anywhere on the plaintiffs’ property. J. L. B. MacDonald","The plaintiffs seek damages arising from the alleged nuisance and negligence caused the defendants in the operation of the golf course. The plaintiffs also seek an injunction to prohibit the defendants from continuing to operate the golf course in a manner that causes errant golf balls to enter the plaintiffs' property. HELD: 1) The court looked at other jurisdictions for guidance as to what number of errant balls might constitute a nuisance. It would appear that anything from 200 golf balls and up over the span of a year is definitely an unreasonable interference with the use and enjoyment of one's own property. Over a span of 9 years, the plaintiffs have had approximately 1,000 golf balls per year enter their property. In this case, the number of golf balls being hit onto the adjacent properties from the defendant's golf course is far greater than the number cited in many of the cases put forward. There is no doubt then that the present operation of the ninth hole is a nuisance and continues to be a nuisance.  2) The wording of the Optionee's Indemnity clause is of little value to the defendants given the evidence of the parties. The evidence confirms that when the residential area was developed and the contract signed, no one, including the operator, anticipated the extent of the existing problem. Accordingly, the plaintiffs could not have agreed to save the defendant harmless from a problem of this magnitude. 3) The plaintiffs will be compensated for the extensive physical damaged to the plaintiffs' properties, but also for the loss of the use and enjoyment of their yards for 7 months of the year. 4) The plaintiffs are entitled to injunctive relief to put an end to the nuisance that has continued for the past 9 years. The defendants are enjoined from allowing golfers from hitting golf balls on the ninth hole so that they land anywhere near the plaintiffs' property.",b_2006skqb183.txt
277,"J. SFSNCFSA13037 IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: CAS v. N.D. and R.M., 2003 NSSF 019 BETWEEN: THE CHILDREN’S AID SOCIETY OF CAPE BRETON-VICTORIA and N.D. and R.M. RESPONDENTS Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on September 25, 2008. HEARD: Before the Honourable Justice M. Clare MacLellan, at Sydney, Nova Scotia DATES HEARD: HEARINGS/APPLICATIONS: November 2, 2001, November 27, 2001, January 8, 2002, January 28, 2002, April 30, 2002, May 29, 2002, June 11, 2002, June 18, 2002, October 7, 2002, December 9, 2002, December 13, 2002 PERMANENT CARE HEARING: January 6, 2003, January 10, 2003, January 23, 2003, January 24, 2003, February 3, 2003, February 5, 2003 and February 13, 2003 DECISION: February 20, 2003 (oral decision) May 27, 2003 (written decision) COUNSEL: Robert Crosby, Q.C., Counsel for the Applicant David Campbell, Q.C., Counsel for the Respondent N.D. David Raniseth, Counsel for the Respondent R.M. Doug MacKinlay, Counsel for Mr. L. and M.L. M.C. MacLellan, J. [1] The matter before the Court is the Permanent Care Application for four (4) children. The first child is S.M., born [in 1997] - she is 5 ½; the second child is D.D., born [in 1999] - she is 4; the third child is O.D., born [in 2000] - she is 3; and the fourth child is A.D., born [in 2001] - he is 2 (at the time of written decision). [2] As indicated, the children range from approximately 5 ½ to about 2 years of age and they are the offspring of three (3) or four (4) fathers. All three (3) children, except A.D. have, according to the Applicant’s evidence, displayed some form of special needs or developmental delay. These needs are being addressed in their current placements. [3] The three (3) younger children have been in temporary care; S.M., has been in supervised care of her paternal grandparents. The children have been out of their mother’s care since December, 2001. A.D. was approximately nine (9) months old at the time of apprehension. [4] The chronology of Agency involvement with N.D. and R.M. is as follows: [5] The parents had informal involvement with the Agency since approximately March, 1996. The referral dealt with problems of money, food shortage, and housing. [6] There was one (1) child, K.D., born to N.D. and R.M., who tragically died at fifteen (15) months when she contacted bacterial infection. Due to her death, the police made referral to Children’s Aid when N.D. was expecting her second child, S.M.. There is no more information on this referral. It appeared to be based on caution, given the actual cause of K.D.’s death was never determined. [7] The child, S.M., lived with her biological father, R.M., and her grandparents (the L.s), shortly after her birth and custody order was granted to the biological father, R.M.. [8] S.M. lived with R.M. and the L.s, or with the L.s alone, for approximately one-half of her short lifetime. This was back-and-forth again arrangement from birth. believe she was with the L.’s for approximately eleven (11) months, after which she was with them on-and-off for time, and finally from July, 2001 to the present. S.M. lived with her mother and father on-and-off during their various periods of cohabitation. They were couple for somewhere between four (4) and six (6) years. The parents describe their personal relationship as being one of on-and-off again. The custody order to R.M. was not altered until Supervision Order was granted by this Court last year. [9] N.D. gave birth to third child, D.D., [in 2001]. The child was premature. The Agency received referral in relation to D.D. seeking assistance with items needed to care for newborn infant. The referral also alleged that N.D. had been harassed, shortly after D.D.’s birth, by an ex-partner while still in hospital. [10] On March 1, 1999, N.D. agreed to work with Family Skills Worker and Parent Aid. R.M. was part of the plan at that time. The Parent Aid and N.D. dealt with several matters from basic feeding, to late hours outside the home by the mother and father, to the need to be receptive in learning to parent. [11] N.D. gave birth to another baby girl, O.D., [in 2000]. D.D. was approximately thirteen (13) months old at the time that O.D. was born. Shortly after O.D. was born, N.D. returned to work. She was working back-shift hours. This complicated her involvement with the Children’s Aid Parent Aid because N.D. was often tired when the Parent Aid appeared for training sessions. [12] In June, 2000, the Family Skills Worker reported that all seemed well with N.D. and the babies. In August, 2000, the police reported that N.D. had been badly assaulted by her current boyfriend. His name was T.I.. N.D. confirmed the assault took place. At the time of the assault, R.M. was babysitting. He recalled that D.D. was present and saw T.I. grab her mother by the throat. [13] On December 19, 2000, R.M. advised the Applicant that N.D. was neglecting the children. He and S.M. were living with N.D. at the time he made this complaint. As of December 20, 2000, the Parent Aid services ended. Family Skills continued to visit the residence approximately once week. At that time, R.M., N.D. and the three (3) baby girls appeared to be doing well. [14] In January, 2001, R.M. made another referral to the Applicant against N.D.. Children’s Aid decided, in case conference, that risk to this family would be increased if R.M. was no longer living in the home. On January 20th, according to the Protection Application and Affidavit, C.B. (who lived with N.D. and R.M.) complained of N.D.’s treatment of the children. In close proximity to that time, Mrs. L. called to make similar complaint, as did R.M.. All complaints related to slap one of the girls was alleged to have received from N.D.. [15] On January 20, 2001, R.M. again complained to the Children’s Aid Society that N.D. was not taking O.D. to the doctor when she should (O.D. had diaper rash). On January 16, 2001, the Children’s Aid provided transport and money to secure O.D’s diaper rash lotion, as well as product to deal with the children’s infestation of head lice. [16] On February 7, 2001, R.M. and N.D. separated again. N.D. lacked some essential provisions for the children. On February 16th and 19th there were similar complaints that N.D. was short of basic provisions and heating oil. [17] On February 19, 2001, Dr. Myatt advised the Agency verbally that he had concerns. Dr. Myatt’s complaints, at paragraph (49) of the Protection Hearing Affidavit were: (a) the Respondent’s children are not always bundled up properly; (b) the Respondent, N.D., misses appointments regularly; (c) she blames everyone but herself; (d) the child’s rash was due to the child not being looked after properly, that the skin was very dry and there had been some cold exposure; (e) he had prescribed some antifungal and anti-inflammatory and that the rash was fifty percent better than the last time he saw it; (f) he was concerned about the conditions in N.D.’s home and asked her to contact Community Services in regards to oil. [18] On March 1, 2001, R.M. advised that the children O.D. and D.D. were poorly clothed for March weather and both were still infested with head lice. [19] On March 8, 2001 the Children’s Aid received phone call from Dr. Myatt expressing concern re N.D’s parenting practices. The doctor wrote two (2) letters to the Children’s Aid Society on this problem (attached to the Protection Application). The first letter dated March 5, 2001 (although the date is obscured), is in relation to O.D., who was not yet one (1) at the time. have grave concerns for this child. The child did not show up for appointment. We had suspicious concerns lately and have been following her closely. was wondering if VON could go into the home and will make an appointment with Dr. Abenheimer. [20] His next letter dated March 6, 2001, states as follows: saw O.D. today and she continues with the rash. find out from N.D. today that her temperature in her house is from 10 to 15 degrees! Clearly this is unacceptable and appreciate consideration for provision for more financial assistance for oil. It may be more appropriate that she move into an apartment. have referral in to Dr. Abenheimer to also assess O.(D.). Because of the continued rash, she has been unable to receive her booster needle. ve also advised N.(D.) to keep the temperature in the house at 20 degrees. appreciate your assistance. [21] On March 13th, 22nd, and April 5, 2001, either N.D. or her mother called the Children’s Aid for assistance in relation to securing diapers and filling prescriptions. [In 2001], N.D. gave birth to her son, A.D.. The Children’s Aid assisted obtaining the basic provisions for the new baby. Affidavit material alleges hospital staff were concerned that N.D. wished to call her son “L.”. At hearing, N.D. indicated she was joking with friends and did not have discussion with nurses re calling A.D. “L.”; but rather, the nurses overheard this discussion she had with her friends. [22] On April 30, 2001, N.D. and R.M. reunited. The Applicant’s first visit was on May 11, 2001, and was positive. The next visit of May 20, 2001, was reasonably positive. On June 20, 2001, N.D. advised the Applicant she did not need any help in the form of Parent Aid or Family Skills Worker. [23] On July 17, 2001, the workers were advised by R.M. that the children again had head lice. R.M. advised he was the principle caregiver. N.D. confirmed the children had head lice infestation from time to time. She maintained the reasons were beyond her control given that she treated the children, but other people in the home were not treating their head lice, and the cycle of infestation continued. [24] The protection affidavit chronicles that in September, 2001, workers went to N.D.’s home and heard some babysitter allegedly yelling and cursing at the children. Neither parent was in attendance at that time. No evidence was tendered in support of the allegation. [25] On October 19, 2001, R.M. advised Children’s Aid that N.D. was neglectful and using corporal punishment as method of disciplining the children. R.M., in his evidence, does recall making this referral but denies saying there was an assault on the children. R.M. indicated to Children’s Aid in October 2001 that he planned to move out of the residence. By this time, S.M. was already living with her grandparents, the L.s. [26] The Children’s Aid began Section 32 Children and Family Services Act Supervision Application on October 21, 2001. This application chronicled the history as set forth above and concluded in paragraph 82: THAT on October 22, 2001, Risk Management Conference was convened; present were Director, Mairi MacLean, Family Skills Worker, Annette Murphy, worker Nora MacDonald and this worker (which would be Lisa Robinson); the case history was reviewed and the following decisions were made: protection application would be made to the Court under Section 32 of the Children’s Family Services Act; (N.)D. will participate in parental capacity assessment and psychological assessment as soon as one can be arranged; (N.)D. will comply with all recommendations of the Children’s Aid Society; (N.)D. will attend anger management counseling; (N.)D. will cooperate with the Agency Family Support Worker; (N.)D. will agree to meet with Agency Protection Worker and will permit this worker to meet with children; (N.)D. will attend to all medical appointments for the children and any other necessary appointments. [27] The first part of the Section 39 hearing was held on November 2, 2001, and proceeded on affidavit evidence. The Court added clause prohibiting any form of physical punishment to the children. Part II of the Section 39 hearing was completed on November 27, 2001. Supervision Order was issued and remedial measures for N.D. were outlined. [28] Prior to the Protection Hearing, five (5) day Review of the Section 39 Order was applied for by the Agency seeking apprehension of the three (3) children and the continued placement of S.M. with the paternal grandparents, the L.s. The application was granted based on affidavit evidence of Agency workers Carrie Evely and Jessica LeBrun. Extensive materials were filed by the Agency for the Review Hearing. Research of the file indicates that the affidavits were never tendered, but were filed and discussed in Court. Carriage of the file was transferred to Paul Moore. [29] After that point, due to illnesses, snowstorms and competing court dockets, the Protection Hearing was not held until January 28, 2002 and the Protection finding was made in relation to N.D. only. The Protection Hearing proceeded by consent pursuant to Section 40(3). The transcription in relation to that hearing reads as follows: MR. CROSBY: Yes, My Lady apologize for the late start, but counsel and myself...well Mr. Raniseth and myself had matters before Justice Wilson but in the interim we entered into discussions with...among all three counsel and can indicate that there is consensus that the finding be entered under 22(2)(b) pursuant to Section 40(3) and that finding is made with respect to the Respondent, N.D., and on the basis of the risk...the substantial risk to the children caused by the failure of the parent to supervise adequately. We’re also in consensus position that the matter be adjourned for Disposition Hearing, that during the adjourned period of time, the three children, D.D., O.D. and A.D. will continue to remain in the Temporary Care of the Applicant with access to both Respondents. The Respondent, N.D., has twice weekly access with the children and (R.)M. has once weekly, that also acts as sibling access for S.M.. Given the children’s schedule it’s difficult to increase the number of access visits, but we will be increasing the duration of the access visits. The Order will also provide that the child S.M. remain in the supervised care of the Respondent, R.M.. The Order will also provide that both Respondents will cooperate with the completion of Psychological and Parental Capacity Assessment and that general costing clause be included in the event that either Respondent identifies any service in the interim that they may feel may be benefit and they wish to access. The other thing I’ll put on the record is that there will also be consideration given to moving the supervised access visits out of the Agency Office and into more comfortable circumstance in the Respondents home. THE COURT: Mr. Campbell? MR. CAMPBELL: Yes, My Lady those terms have been gone over with (N.)D. and she’s aware of them all and she informs me that she prepared to consent to them. THE COURT: Okay, you may be seated. (N.)D. you heard what Mr. Campbell said? (N.)D.: Yes did, Your Honor. THE COURT: And do you agree with what he said on your behalf? (N.)D.: It’s not...it wasn’t exactly worded the same as what Mr. Campbell said to me, but guess it’s pretty much the same, so yeah. THE COURT: That your children are in need of protective services and that the three will remain in the care of the Agency and the older girl...or the younger...the youngest will remain in the supervised care of (R.)M.? (N.)D.: Actually it’s the oldest, Your Honor. THE COURT: read it backwards, sorry. (N.)D.: That’s alright. THE COURT: The oldest will remain with (R.)M. and there will be an assessment performed and access will be arranged and the access will be moved to more comfortable location. (.N)D.: Yes, Your Honor. THE COURT: That’s pretty well what Mr. ... if change(d) around Mr. Campbell words that’s basically it. So do you agree with that? (.N)D.: Unfortunately yes, Your Honor. THE COURT: At this time, okay. Alright and (R.)M.....Mr. Raniseth, the finding is not in relation to him, but he’s in agreement with the placement? MR. RANISETH: Ah, yes. I’ve had discussions with Mr. Crosby about the access as he’s already indicated and he is agreeing to be part of the Parental Capacity Psychological Assessment as well. THE COURT: Okay, that fine then. Anything further? MR. CROSBY: No, My Lady. THE COURT: Alright, Mr. Campbell if there’s any remedial measures that your client feels she needs to help her on the way, that the Agency is not giving her forthwith and they’re reasonable, just bring the matter back and will re-examine it. Okay, thank you. MR. CROSBY: Thank you, My Lady. THE COURT: So we will set for Disposition and make consensual finding against...in relation to (N.)D. alone on the failure to supervise ground only, in relation to the four children. The rest of the relief will be as specified by Mr. Crosby as I’m satisfied in the representations made by the parties and the affidavit material. [30] On April 30, 2002, the assessment ordered was not completed and so all parties agreed the matter would be adjourned to May 3, 2002 for Disposition to allow the Assessment to be completed. [31] The Court heard from Mr. Bryson on May 31, 2002, who conducted the assessment on all the parties except S.M.. Mr. Bryson’s qualifications were questioned by Mr. Campbell. After reviewing his experience and training, he was accepted as witness capable of giving opinion evidence in the area of parental capacity. It was unclear why S.M. was not part of that assessment. There are comments made by Mr. Bryson in the report that relate to S.M’s interaction with her mother. [32] have reviewed this report many times and have some comments to make. It is unclear when one looks under the heading, “N.D.’s mental status”, why it was necessary for the assessor to chronicle whether or not she had tattoos and the nature of the tattoos. am at loss to see how that would have an effect on any determination that have to make, or that he had to make. [33] In reviewing N.D.’s medical history, Mr. Bryson noted that as teenager she was diagnosed as having Conduct Disorder and Oppositional Defiant Disorder. He goes through her history of [...] [group home]. He noted her anger in general and in particular with the Children’s Aid, who had monitored her since her first child, K.D., passed away. He indicated that N.D. held out to him that she basically did not have too many parenting problems with her three (3) children and that they were generally satisfactory, but that her oldest child, S.M., exhibited challenging behaviors. Much of the Assessment contains derogatory, saucy or rude quotes that Mr. Bryson attributed to N.D.. [34] In relation to the objective testing overall, N.D. performed well on the tests the Child Abuse Test and the Child Stress and Substantive Abuse Test. The results of the MCMI-3, were acceptable as well. Mr. Bryson concludes: N.D.’s personality style are indicative of individuals who are behaviorally rigid and constricted, conscientious, polite, organized, meticulous, punctual, respectful, often perfectionistic, formal, prudent, over-conforming, cooperative, compliant with rules, serious, moralistic, self-righteous and self-disciplined, efficient, and relatively inflexible. They place high demands on themselves. They are emotionally controlled. They are socially conforming and prone toward repetitive life-style, as result of engaging in series of patterned behaviors and rules that must be followed. They have fears of social disapproval and are model of propriety and restraint. They show excessive respect for authority but may treat subordinates in an autocratic manner. They operate from sense of duty that compels them not to let others down, thus risking the condemnation of authority figures. They thus show an anxious conformity. They strive to avoid criticism but expect it because of what they perceive to be their personal shortcomings. They fear making mistakes because of expected disapproval. Their behavior stems from conflict between felt hostility which they wish to express and fear of social disapproval should they expose this underlying oppositional resentment. This circumstance forces them to become over-conforming, thus placing on themselves high demands that serve to control this intense anger, which occasionally breaks through into their behavior. [35] As outlined later, these character traits or personality traits as put forward in the objective testing, do not conform with Mr. Bryson’s objective observation of N.D.. Overall, as was stressed by her lawyer, N.D.’s objective tests, excluding Mr. Bryson’s observations, which are also objective, show her to have average, or at least acceptable, character traits. Mr. Bryson believes, however, due to her “L” Scale evaluation in the MMPI (another test) that her readings are unreliable, but in oral evidence he agreed that overall she was average in the objectives test portion of the assessment. N.D.’s parental stress index has an average score but Mr. Bryson noted under cross- examination that it was elevated in relation to her dealings with S.M.. However, S.M. was not assessed at all. Any behaviors that S.M. might manifest that could cause an elevation in this scale were not provided to Mr. Bryson and were not considered. [36] Mr. Bryson concludes during his viva voce evidence that N.D. cannot parent on the long-term; that she cannot put her children first; that she does not, and has not had positive relationships. N.D. is resistant and it will take long time for her to improve. He finds that she loves her children, but she loves herself more. He concludes that she has poor impulse control, cannot supervise and has problems communicating with her children. When asked by Mr. Raniseth (counsel for R.M.) to advise how he arrived at his conclusions, Mr. Bryson stated: MR. RANISETH: O.K. and take it you do that summary after the completion of the interview? MR. BRYSON: No this summary would be done at the completion of the report. MR. RANISETH: O.K.? MR. BRYSON: So it not specific to any specific interview. It after reviewing all of the materials including collateral information, the Applicant files, the psychological testing, then do summary or discussion based on all the findings. [37] Mr. Campbell (counsel for N.D.) continued on this theme while he is cross-examining the elevated “L” Scale in the MMPI: MR. CAMPBELL: Okay. Now the second last paragraph says she obtained slight five code type. This code type is relatively infrequent and occurs more in women than men. These individuals are very comfortable with themselves and their behavior. As consequence they report mainly emotional distress and are relatively free of any disabling anxieties or guilt. They are in good physical health. They report they do not abuse substances, isn’t that positive? MR. BRYSON: think would view it more positive if the fact that the scale which is known as the Lie Scale was not elevated. MR. CAMPBELL: But am suggesting to you that if you were to take any parent anywhere on Cape Breton Island and submit them to the battery of tests you ve done, that there isn’t one that would pass with flying colors and you say this person must parent. Everyone would have their faults? MR. BRYSON: No, actually in my experience have found some parents that have done very well in their scores on this one in particular have come up with what’s called W.N.L. profile. MR. CAMPBELL: Okay, can you tell us how many studies you’ve done, what percentage of success you’ve had and can you...or are you aware of any population studies across the country that give some indication of how many parents would pass something like this? MR. BRYSON: No, I’m not aware of those. MR. CAMPBELL: There are no studies on it, that’s why, isn’t it? MR. BRYSON: I’m not aware of any. MR. CAMPBELL: Yeah, you just do it on an individual case by case basis, there are no statistics to guide us are there? MR. BRYSON: All can go by is my experience and that there have been parents I’ve’assessed who have not had the same profile. [38] He was subsequently questioned about the W.N.L profile by Mr. Crosby on re-direct. Mr. Bryson referred to it as form of code. MR. CROSBY: You made reference to W.N.L. finding... MR. BRYSON: Right. MR. CROSBY: ...maybe I'm just being curious. What, what, what does that stand for? MR. BRYSON: Okay. W.N.L. I'm not sure the exact words it represents believe it's just code itself. It's for someone who has been found to be quite open and honest in completing the M.M.P.I. 3, that...or M.M.P.I. 2, that they do not appear to have any social skills deficits, there are no indications of any significant personality issues or deficits and appear to be quite happy and quite well functioning in all areas of their life. [39] However, in his conclusion, Mr. Bryson describes N.D. in harsher terms. On cross-examination he advised the only way to safely return the children to N.D. was to have person in her home full-time to help her raise the children, make sure they got to school, were properly fed and supervised. Overall, N.D.'s objective tests yielded average results. At the end of the day, Mr. Bryson did not explain the discrepancy between the objective tests and his objective observation (with the exception of the one elevated validity test in the MMPI), nor was he able to satisfactorily answer Mr. Campbell's questions in relation to these points. [40] The MMPI-2 has recently come under scrutiny in Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994. Dr. Philip Michael Stahl has Ph.D. and is psychologist in North Carolina. He has worked with families of divorce for fifteen (15) years. He did his original doctoral thesis on attitudes and beliefs about joint custody. He has been doing such evaluations custodial evaluations and has performed approximately six hundred (600). He is past president of the Michigan Inter-professional Association on Marriage, Divorce, and the Family. He is currently member of the National Board of Directors of the Association of Family and Conciliation Courts and Co-Chairs private practice and number of Custodial Evaluation Committees.1 He states at page (55) of his text: One of the very important issues associated with psychological testing is that most of the psychological tests used for purposes of custody evaluations were designed for different purpose. One of the most widely used tests in custody evaluations, the Minnesota Multiphasic Personality Inventory (MMPI), was designed for hospital use in diagnosing severe psychiatric disturbances. The recently updated MMPI-2, although it has been normed over broader population, has been described by many psychologists as significantly flawed outside the hospital population. [emphasis added]2 [41] Further, he goes on to discuss the positive aspects of the Parenting Stress Index to the evaluation and on page (56) wrote: The MMPI and similar computer-scored objective tests are useful for providing rough assessment of personality dynamics, defensiveness, affect, ability to deal with hostility, and aggression, which is important in complete understanding of the person's psychological functioning.3 [42] Finally, he concludes that Chapter at page (57): Finally, with the careful use of psychological testing, we can gain insight into some of the psychological dynamics of each individual and the role that these dynamics play in the overall assessment.4 [43] The responses from Mr. Bryson provides the Court with no insight as to why young woman, who is basically healthy and passed the majority of her psychological tests, acts in the manner she does. Nor, are the recommendations particularly helpful. If she is non-receptive to learning and putting the children first, what good is full-time caregiver in the home? [44] could not, at the end of the day, having spent substantial time on this report, understand, based on Mr. Bryson's report and his testing as quoted, how he arrived at the conclusions he did when one looks at his own basic decision making practices. It consists of gathering information and objective testing. When all steps are taken, the conclusion is forthcoming. When examined his own methodology, was at loss to understand how he came to his conclusion (as exhibited at the Disposition Hearing). Page (34) states as follows: N.D. presented as an angry, aggressive, impatient, defiant, moody parent with very low frustration tolerance, highly impulsive behavior, and very little insight. She is unable to maintain lasting and meaningful relationships. When others, including her children, place demands on her, she is likely to react in an abrupt and explosive manner. Her personality structure, which was well formed as child and is consistent with her current presentation, finds her to be defiant and oppositional person who values shocking others. She has profound lack of insight into her responsibilities to her children, minimizing or denying her parenting deficits. N.D. is not motivated to make changes, as she appears to genuinely believe that others are responsible for her difficulties. It is highly unlikely that she would co-operate with the Applicant if her children were returned to her care. By not taking responsibility for the neglect of her children, they would be at significant risk of neglect or harm if they were returned to her care. [45] As indicated, Mr. Campbell cross-examined Mr. Bryson rigorously as to why the objective tests were acceptable, but the objective input from Mr. Bryson was less so. Mr. Bryson’s conclusions are not supported by the objective tests and this discrepancy remains unexplained. [46] His conclusion appears to be based on N.D.'s outspokenness and on substantial portions of the Children's Aid file. C.A.S. materials were not vetted and were not subject to cross-examination. Secondly, his conclusions in relation to her behavior, e.g., whether or not she could have lasting relationship, whether or not she had short temper, whether or not she was committed to raising her children are conclusions that Court, with properly presented evidence, can make without opinion evidence. [47] Mr. Bryson’s description of how the children reacted to N.D. as opposed to R.M. during access was helpful, but this is also material that could have been presented through Family Skills Worker, an Access Supervisor, or any objective lay witness. [48] In any event, find his conclusion re parental capacity is not borne out by the data he presented. find that he has discrepancies between his objective testing and his office interviews. He has been unable to explain or reconcile his own conflict within his own report. Secondly, find that he relied to substantial degree on the material in the Agency file, which was not subject to cross-examination. The Agency file is an internal document. It was not meant as the ultimate document of truth and does not have any of the safeguards. Perhaps the most glaring example is the reference to N.D.'s loss of her child through possibly dirty baby bottle. It was clear at the end of the day that there was never evidence of this allegation. This is highly prejudicial comment to consider in the absence of proof. [49] The use of this type of speculation and the basis that an opinion witness is able to use background material, is very important issue. It has been referred to by many Courts. think it is particularly important in Children's Aid cases, where the Agency staff, by their mandate, have to take unsubstantiated complaints people make and look into the allegations. The Children’s Aid Society staff dismiss them or validate them or continue their investigation until they complete risk assessment. This is running file it is not truthful chronology it is working document for an Agency who is given the obligation to look into matters. They obviously looked into an allegation about illness and death associated with dirty baby bottle. The allegation was never substantiated, but is referenced in the protection affidavit. It is in Mr. Bryson's assessment, and it is in Dr. Hann's assessment. [50] The decision of Justice Sopinka in R. v. Lavallee (1999), 1990 CanLII 95 (SCC), 55 C.C.C. (3d) 97, in assessing similar problem, critiques four (4) features of the controversial case of R. v. Abbey, 1982 CanLII 25 (SCC), [1982] S.C.R. 24, and he says: Upon reflection, it seems to me that the very special facts in Abbey, and the decision required on those facts, have contributed to the development of principle concerning the admissibility and weight of expert opinion evidence that is self-contradictory. The contradiction is apparent in the four principles set out by Wilson J. in the present case, ante, pp. 127-8, which reproduce here for the sake of convenience: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (heresay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based. 3. Where the psychiatric evidence is comprised of heresay evidence, the problem is the weight to be attributed to the opinion. 4. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. The combined effect of Nos. 1, and is that an expert opinion relevant in the abstract to material issue in trial but based entirely on unproven hearsay (e.g., from the mouth of the accused, as in Abbey) is admissible but entitled to no weight whatsoever. The question that arises is how any evidence can be admissible and yet entitled to no weight. As one commentator has pointed out, an expert opinion based entirely on unproven heresay must, if anything, be inadmissible by reason of irrelevance, since the facts underlying the expert opinion are the only connection between the opinion and the case. The resolution of the contradiction inherent in Abbey, and the answer to the criticism Abbey has drawn, is to be found in the practical distinction between evidence that an expert obtains and acts upon within the scope of his or her expertise and the evidence that an expert obtains from party to litigation touching matter directly in issue (as in Abbey).5 [51] Further, he states at page 643: Where, however, the information upon which an expert forms his or her opinion comes from the mouth of party to the litigation, or from any other source that is inherently suspect, court ought to require independent proof of that information. The lack of such proof will, consistent with Abbey, have direct effect on the weight to be given to the opinion, perhaps to the vanishing point. But it must be recognized that it will only be very rarely that an expert's opinion is entirely based upon such information, with no independent proof of any of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight. In this respect, agree with the statement of Wilson, J., ante, p. 130, as applied to circumstances such as those in the present case.6 [emphasis added] [52] Mr. Bryson's tests on R.M., interpreted alone and with his viva voce evidence, and with his objective testing, contains some consistency. The tests and the objective data bring together coherent picture that would permit person to give an opinion based on something more than what the lay person could discern. However, was still left with the conundrum that did not know the extent the objective data was influenced by, by the review of the Agency file and input from various untested collateral sources. At page 34, Mr. Bryson concluded: R.M. presented as an egotistical, narcissistic, self-absorbed male who is driven by his desire to be in sexual relationship with N.D.. When he has become intolerant of her behavior, he has left the relationship, leaving the children in her care. Concerned with his belief that the children were being neglected and harmed, he admits to contacting the Applicant. When the Applicant investigated, and found that risk of neglect or harm did exist for the children, the children were removed from the home. During the Assessment, R.M. indicated that he contacted the Applicant in error. He no longer believed that the children were in need of care. He claims that N.D. has offered herself to him if he helps her in having her children returned to her care. This is the N.D. who petitioned the Applicant to deny him access visits with the children. That there is long history of conflict between R.M. and N.D. that is not disputed by either. That they can cohabit and provide care in the best interests of the children is doubtful. Even if the couple could put their needs aside, they both lack the necessary parenting skills. R.M. has clearly said that he does not have any parenting deficits, and is now saying the same about N.D.. R.M. has very little insight into the needs of the children. Similar to N.D., he has driving need for attention. [53] There is not the same discrepancy between the testing data, the independent observation and the summary conclusion in relation to R.M.. Some weight can be given to the assessment of R.M., but at the end of the day, his conclusions may well have been made without the recourse to opinion evidence. [54] Mr. Bryson's summary of R.M. did withstand scrutiny during the cross-examination by counsel. [55] Children’s Aid Protection Worker, Paul Moore, who had carriage of the file, indicated that it was the Agency's plan, up until April 2002, that the family would be reunited as soon as possible. The concerns he outlined were problems with the mother regarding lack of supervision of very young children, consistent lack of food in the home, lack of money to run the home, cleanliness in the home and with the children, and her absence of family support. [56] The Children's Aid placed fair amount of emphasis on the Bryson Report as negative element against the return of the children to N.D.. The Bryson Report caused the Applicant to take more intense look at R.M.’s parenting practices. The Agency, via Mr. Moore, did acknowledge that S.M. had strong attachment to the L.s and she has an attachment to her father. It was his view that S.M. should remain with the L.s and with R.M., under the Children’s Aid Society’s guidance. He indicated as well, it was his view that the three (3) youngest children must be placed in permanent care, to be adopted with no access to the parents. [57] Mr. Moore advised the Court that Family Skills Worker had been with the family for years with no noted success. Mr. Moore indicated that it was his belief that N.D.’s chronicle neglect of the children constituted danger which could result in physical harm. He gives one example when one of the children was vomiting, and N.D. took the child to the hospital. The doctor ordered CatScan, but N.D. would not have the CatScan performed at that time. He indicated as well that even during supervised access with N.D., she had to be reminded to take care of the children when they placed themselves at physical risk. R..M had the same supervision deficit. [58] N.D. later explained the CatScan incident. The doctor advised her to take the child home and she went back at later time to have the CatScan performed, which was negative. [59] By consent of the parties and based on the best interests of the children, it was agreed that the Disposition Hearing would not be completed and new assessment ordered. The transcript which dealt with the new assessment contained: THE COURT: Okay. And you should also examine what material, if you can discuss it, what material does the psychologist get. have difficulty with an independent assessment that includes the whole Agency file myself, but ll leave that to you. If you have an independent study think it should be just that, but anyway...okay, how long? We should notify the assessor that we want this sooner than later and you are running into summer time now. If there is any particular issues that the Respondents counsel want the psychologist to examine, now is the time to outline that, any particular portions of the Bryson Report that you want specific comment on, you can add that to the very broad Parental Capacity/Psychological Assessment. So whatever you want, now is the time to phrase it, and we should notify whoever...(And then we go on to state) Are you in agreement as to who will do the assessment? (And the discussion continues) [60] The Disposition Review could not continue until the Fall because the re-assessment, or the second opinion assessment, requested and agreed to, was not prepared. In the interim, between the June 18th adjournment, the new assessment was performed, and the L.s (R.M.’s parents) were granted standing on December 13, 2002 to seek custody of S.M. and perhaps A.D., if R.M. was the biological father of A.D.. [61] Dr. Hann asked to discuss with the Court the parameters of the Assessment. time was set up with the lawyers and myself to have conference call with Dr. Hann to map this matter out, but at the appointed time the lawyers were coordinated, it was not possible to have Dr. Hann to attend by phone. It is my recollection at that time, that Dr. Hann wanted to see the whole Agency file and the Bryson Report. was advised subsequently that Dr. Hann only wanted to see the Bryson Report. interpreted the matter to be settled between the lawyers as it was communicated that it was agreed that Dr. Hann would have the Bryson Report. am less clear whether or not the consents did or did not deal with the Agency file. have no transcription and no memorandum of that fact, so it is left unclear. During the course of time it took to complete the Hann assessment, it was my understanding that Counsel had agreed to what materials he could examine in his re-assessment. However, during summations last week, counsel for R.M. indicated that he did not and never did consent to Dr. Hann reading the Bryson Report, and that he had remained opposed throughout. [62] This confusion is odd, as 98% of matters are done by transcription or by memorandum, however, in this case, there is no record to chronicle the discussion. The Court accepts that Mr. Raniseth did not wish this material released to Dr. Hann. The purpose behind the second assessment was to give N.D. (and R.M.) chance to obtain second fresh opinion so perhaps there would be remedial measures or perhaps better outcome of the assessment so that she would be able to continue to parent her three (3) children. [63] In my view, Dr. Hann was viewed as first time assessor. have problems with the treatment with first time assessors. In any event, he was treated as first time assessor and not re-assessment. have indicated that have always had problems with reliance on the Children’s Aid file for any assessment. It is my opinion that protection affidavit, with serious allegations consented to in the protection finding, is very different from the whole Agency file, which is not evidence. The consent of party to protection finding based on protection affidavit raises the evidentiary integrity of the protection affidavit. This is not the same status held by the entire Agency file. This is not to be seen as condemnation of the Agency that is not my intention. It is simply that the agency file is heresay material which was not subject to cross-examination. It contains matters that may have been resolved. It is document that could cause erroneous impressions. The use of the agency file in this case has clearly resulted in unfounded assumptions which influenced the opinion evidence. [64] Substantively, have several problems with Dr. Hann’s Report and with his viva voce evidence. However, do not need to examine those issues in depth because of the conclusion make in relation to the re-assessment. The dangers are apparent when an independent assessment is ordered. Ultimate fairness and balance are essential. The appearance of ultimate fairness is essential. The problems with Dr. Hann’s report are: He does not state what his source documents are. He sprinkles sources throughout his Report but there are no listings of sources as Mr. Bryson and others have provided. do not know what materials he reviewed, but can gather from his evidence, he read the Bryson Report. He seemed to have read portions of the Children’s Aid file and believe he makes reference to medical evidence that he secured from the Agency file. This means person on the medical staff told someone in the Agency something which Dr. Hann picked up and reproduced in his report. STATING THE BASIS OF THE OPINION The general rule is that an expert may give an opinion on any issue he or she is qualified to give an opinion on. He or she must state the basis of that opinion so the trier of fact can evaluate the facts and the opinion based on those facts. Failure to identify the facts upon which an opinion is founded might result in an opinion being given little, if any, weight. Whether or not counsel has proven the assumptions on which an expert’s opinion is based is an issue of fact to be decided by the trier of fact. The Alberta Court of Appeal has described the task as follows: In the absence of any proof of the facts on which the expert opinion is based no weight will be given to it. Equally, if some proof of the hypothetical facts is offered by admissible evidence, then the question will be whether it is sufficient to meet the requirements for which it was called. Proof beyond reasonable doubt requires more than evidence intended to raise reasonable doubt.. In each case the trier of fact will consider to what extent the hypothetical question has been proven and whether in the circumstances it is sufficient. [65] On page (3), Dr. Hann addresses the issue which was never discussed on record concerning the Court’s view of what ought to be in second opinion. He states as follows: The current assessment represents the second parental capacity assessment of N.D. and R.M.. As part of the current assessment, the assessor reviewed previously completed parental capacity assessment, which had been conducted in May 2002. Some concern was originally expressed by Justice MacLellan that the re-assessor not have access to the previous report and agency files. Justice MacLellan apparently expressed concern during court proceedings about the potential bias that may be created for the present assessor by reviewing the agency files and the past psychological report. It is the professional opinion of the present assessor that if the current assessment did not incorporate thorough file review, including access to the previously completed parental capacity assessment, this would not constitute best practice model of assessment. Psychological therapy and assessment is always potentially impacted by bias. psychologist by nature of training and expertise continually self-monitors the potential impact of his or her bias in the assessment process. By being aware of potential issues, which could subtly or directly influence the assessment process, he or she minimizes the impact of such bias on his or her conclusions. Ignoring or not being granted access to previously conducted assessments or historical information is not an adequate solution to preventing bias. In fact, ignoring such information would represent serious deficit in assessment practice and could potentially be considered professional misconduct. The solution to this dilemma is to conduct thorough and multi-modal assessment, while continually monitoring the potential for assessor bias. During the current assessment, the assessor explained this rationale to both Mr. MacKinnon and Ms. Davidson. They both understood the rationale and agreed to the current assessment with the full understanding that the current assessor would conduct comprehensive file review and review the previous assessment. The assessor also apprised the agency and agency lawyer of this and also made an attempt to discuss the matter with Justice MacLellan and counsel for the Respondents, but difficulties in coordinating telephone consult prevented this discussion from occurring. It is the opinion of the examining psychologist that the present assessment results are valid and represent an accurate profile of parent and child functioning. Readers of this report are reminded that the recommendations contained herein are considered to be guidelines based upon assessment findings and clinical judgment at the time of assessment. [66] Sprinkled through Dr. Hann’s Report is information from various collaterals, and he says on page (17) and (18): [1] Extensive documentation of CAS, reviewed as part of the current assessment, reveals that N.D. has been well known to the CAS of Cape Breton since March 15, 1996. referral to CAS was made by concerned hospital staff that reported that N.D. had reported to the Cape Breton Regional Hospital at 23 weeks gestation and requested that labor be induced. Agency records reveal that N.D. was well known to hospital staff and prior to the birth of her daughter was constantly at the hospital complaining of abdominal pain. Agency records also reveal that N.D. acted in very bizarre manner with hospital staff and that she reported that three teenage girls had threatened to take her baby. [2] K.D., N.D. first child, who was fathered by R.M., was born [in 1996]. An intake by the CAS office occurred on March 19, 1996. Concerns included N.D.’s lack of resources to care for the child (e.g., no crib, limited money and chronic financial difficulties such as $1900.00 in rent arrears). N.D. and her baby, K.D. were followed by the agency until January 16, 1997. Agency records reveal that supervision was no longer deemed necessary. On June 2, 1997, N.D.’s baby died and cause of death was reported to be staph infection, which was possibly contracted through poorly cleaned baby bottles. [67] In the second paragraph, there has been no evidence whatsoever before this Court to substantiate the allegations. There have been contra-indications as to why .K.D passed away, which had nothing to do with baby bottles, according to the autopsy conclusions provided by way of viva voce evidence. We have that highly inflammatory statement now made by two (2) independent assessors who are monitoring their bias. It should be noted that an autopsy on this child was performed, and an investigation was performed by the police. It concluded there were no charges to be laid in relation to this child’s passing. No reason for the child’s death attributed to the parents was ever provided. [68] This unsubstantiated cause of death in Mr. Bryson’s Report and Dr. Hann’s independent second Assessment is disconcerting to the Court. It would appear that the self-analysis that Dr. Hann discusses to remove his bias and his continued monitoring to remove the appearance of bias was not successful in the case of N.D. and R.M.. [69] In short, self-monitoring was not successful at least it does not appear to be. It is essential that bias not be present and that bias not appear to be present. There are errors in Dr. Hann’s report, while of lesser significant, make one wonder as to the caliber of the overall preparation, e.g. his comment that R.M. regularly visits his father, when R.M.’s father had passed on four (4) or five (5) years ago. That is the sort of error that makes one question the accuracy of the basic information intake. [70] Referring again to Dr. Stahl’s text on Conducting Child Custody Evaluations, Comprehensive Guide, at page (149), he states the following: Ethics, Bias and Professional Responsibility Throughout this chapter and throughout this book, have focused on the paramount issues of ethics and professional responsibility. It is clear that the evaluator’s primary job is to maintain high ethical standard in his work. If we do nothing else, by maintaining such high standard for ethical responsibility we can educate the court and the attorneys about these critical issues. If we do only evaluations that are court ordered (or agreed on) and if we refuse to take cases where there is even hint of inappropriate bias, it is harder for one of the attorneys or one of the parents to question our recommendations as unprofessional. For example, in my recent experience, father continues to have very hard time accepting the recommendations of an evaluator, in part because the mother cousin is psychologist who works on the same faculty as the evaluator. do not even know if the evaluator knew this, but this was enough of potential source of bias, at least in the father eyes, to give him reason to question the evaluator recommendation that went more in the mother favor. will not take referrals from close friend who is family law attorney simply because of the potential for appearing to have conflict of interest. Similarly, recently knew of an evaluator who, at the end of the evaluation, 4-year-old children need mothers in that capacity. The evaluator had not informed the parents or attorneys of that potential gender bias at the start of the evaluation, and because it came out that way, the father had hard time accepting the recommendations. In essence, it is critical for evaluators to pay attention to potential conflicts of interest and their inherent biases, know their source (research-based, theory-based, or value-based), and make them clear to the parties and attorneys before commencing with the evaluation if there is any doubt whatsoever.8 [71] In conclusion, there are references to materials in the Hann Report that were never consented to by all of the lawyers, which is not Dr. Hann’s difficulty, because it was my understanding that they all had consented (and my understanding was incorrect). However, Dr. Hann used material in his report that was never proven. He used this material as if it was accurate. Also it is not appropriate to refer to background material that was hearsay as necessary for historic background. [72] Dr. Hann’s report ought to have cited his source documents. He did not. There should have been concerns as to the background material that he reviewed. It must be recognized that parents who are at risk of losing children often love the children, but they have problems problems which result in the children being at risk. All evidence used to calculate this risk and remedial measures must be properly acquired and properly presented. [73] It is my view that an opinion must be procedurally accurate and, as have indicated, find that Dr. Hann’s Report in the areas cited, is not. Furthermore, Dr. Hann used portions of Mr. Bryson’s I.Q. tests and did not repeat these tests. During viva voce evidence, he acknowledged that he placed some reliance on Mr. Bryson’s report. This is not appropriate and it does not appear fair. The manner the Hann Report was prepared, and the viva voce evidence he gave, does not amount to properly obtained opinion evidence. [74] Also, Dr. Hann referred to himself as friend of the Court, however, throughout most of his examination, he tended to debate as opposed to clinically answer all questions regardless of who was asking the questions. [75] As indicated again in the text, Conducting Child Custody Evaluations, Comprehensive Guide, Dr. Stahl outlines the assessors job at page (147) as follows: Our job during both direct and cross-examination is quite simple. It is to: .1 Remain neutral, impartial, and fair to both parents; .2 Avoid adding to the splitting and polarization in the courtroom; .3 Answer all questions honestly, clearly, and succinctly; .4 Avoid over-explaining or getting too technical; .5 Avoid arguing with anyone; .6 Maintain our position; and, .7 .Be clear with the court if we do not know something or cannot be certain about an event.9 [76] find that Dr. Hann did not follow the recommended behavior for the opinion witness. [77] For all of the reasons have given, place no weight on Dr. Hann’s report. [78] Paul Moore, again gave evidence on January 10, 2003 and he was still the main Children’s Aid Worker on the file. [79] The Agency staff wished permanent care for the three (3) younger children and for S.M. to remain with the L.s. Mr. Moore believes that the L.s have taken all possible steps to improve their situation for S.M.’s benefit and to learn how to deal with her very challenging behaviors so that she can improve; and, S.M. has improved. [80] The reasons the Agency is seeking permanent care is outlined in the Plan of Care at paragraph (7). 7. Where the agency proposes that the child be placed in the permanent care and custody of the agency: (a) Why the circumstances justify the proposal are unlikely to change within reasonable foreseeable time not exceeding the maximum time limits: The Agency became involved with this family as result of concerns with issues of lack of supervision, lack of adequate food supplies, potential hazards in the home, home cleanliness, no diapers and the unwillingness or inability of the parents to provide for the children. [81] The Agency then goes on to discuss the Bryson Report (portion not cited). On page (3), paragraph (3) of the Plan, the Agency indicates: The Agency has provided the services of family support worker to address issues of parenting, budgeting and discipline. To that end, the Respondents have repeatedly expressed their belief that they are not in need of such services. They continue to experience the same difficulties that they had at the beginning of this Agency involvement. The children, A.D., O.D., D.D., are at ages where the coming months and years are becoming more crucial. For A.D. especially, this is key period for child development and the permanency of stable, nurturing home would assist in this stage of child development. The longer the time period before permanent placement is implemented increases the risk of permanent detachment. It is the Applicant’s hope to minimize the risks of permanent detachment with adoption to occur at the earliest possible time. [82] Mr. Moore describes S.M.’s past behavior where she would bite, kick, hit and not get along with other children. All the children, except A.D., have manifested behavioural problems and all improved in their current placements. Mr. Moore believes the L.s wish to have A.D. eventually, however, Paul Moore is not supportive of this proposal, although he is very supportive of the L.s in general. Paul Moore is not supportive of A.D. being placed with the L.s because S.M.’s behavior is so challenging that he fears that adding new baby to this household would jeopardize S.M.’s placement and ultimately have negative placement effect on both children. [83] Mr. Moore stated, based on the Children’s Aid experience with R.M., and the Assessments, that he believes R.M. cannot parent effectively. He stated all the telephone calls that R.M. made to Children’s Aid were never on timely basis. The reports were made well after the fact. R.M. would reconcile with N.D. and move S.M. back into that setting. This was the cycle of R.M.’s relationship with N.D.; and S.M. was often caught in the middle. Even with supervised access, Mr. Moore has advised that R.M. is not sufficiently attentive to the children’s safety. [84] The Applicant does not support N.D.’s position due to: (1) Their long involvement with her over parenting issues, without success; (2) Her refusal to accept services; (3) That she has discussed with them being overwhelmed with the care of four (4) children; (4) Her refusal to follow through on the mental health recommendation; (5) The long-time pattern of the children poorly clothed, poorly fed and poorly supervised; Her lengthy placement with Family Skills and Parent Aid, which was not successful; (6) His belief that the children are emotionally neglected; (7) That during access with the children, N.D. has to be told something as basic as removing toy from A.D.’s mouth; (8) That all of the children have improved in the foster care and it is now time to respect their sense of time and find stable homes for them their need to form lasting attachment with someone who can meet their fundamental needs. [85] Paul Moore attributes S.M.’s improvement, while with the L.s, to their commitment to her and the L.s’ commitment to work with the Children’s Aid Society. The L.s have shown commitment to work with the teachers in the use of different reward methods that are age-appropriate for curbing unbecoming behaviors of five (5) year old. S.M. is seeing pediatrician who has referred her to child psychologist. [86] Mr. Moore admitted that R.M. had legal custody of S.M. and that the Agency did not have any problems with R.M. until receipt of the Bryson Report. Although the Agency had problems with the timing of his complaints against N.D. and access supervision, Mr. Moore indicated that they felt that R.M. had positive input in the raising of S.M. and maintaining the household in the earlier years prior to the Bryson assessment. [87] M.L. gave evidence on January 24, 2003. It is her wish and she believes it is her husband’s wish to have custody of S.M.. They received standing in December, 2002 and filed custody application in February. They wish to adopt A.D. when they are ready, which would dependent on S.M.’s behavior. They wish custody of also take A.D. if it is proven he is R.M.’s child. This issue was debated for days, but the Court was not given any conclusive proof as to whether or not A.D. is the son of R.M.. There was discussion of some DNA or blood samples, which were never tendered to the Court. R.M. believes that he is the father and it seems the Agency staff may believe that as well. At the end of the hearing, have no definitive answer as to who is the father of A.D.. [88] At the time of giving evidence last month, M.L. was fifty-seven (57) and her husband was sixty-two (62). M.L. co-operated with the Children’s Aid Society, the school and with anyone who has input to assist S.M.. S.M. is close to M.L. and R.M., but M.L. holds herself out to be the principle caregiver. [89] Mr. L. is diabetic. M.L. first indicated Mr. L. only suffered from heart condition, but under cross-examination indicated, “Yes, he is also diabetic”. His wife believes that he and she will be able to parent S.M., who has been with them approximately half of her life. [90] M.L. indicates that R.M. works now and gives her money to help out with S.M., follows her directions with S.M. and helps around the house. She indicated that if she has custody of A.D. she would treat him like S.M.. She cannot remember asking for access to A.D. since December 1st, 2001, when he was taken into care. [91] Historically, she indicated that she has seen N.D. and R.M.’s home in shambles unsanitary, dishes on the floor, and hazards on the floor when the children were present. She indicates that she heard “slap” while on the phone and child cry and made complaint to Children’s Aid immediately. [92] R.M. was with N.D. in the Fall before the apprehension and moved out approximately two (2) weeks before the children were taken. It is interesting to note that M.L. does not attribute much blame for the shape of the house or the unsanitary conditions of the children to R.M. but reflects most of the blame, if not all of it, on N.D.. [93] It is apparent M.L. and N.D. do not enjoy good relationship. They both agree on that and they both agree it is the result of K.D.’s passing. [94] M.L. does not want R.M. to have sole custody as she is afraid that he may reconcile with N.D. as he has in the past. M.L. indicates that R.M. has past of putting himself first. She indicated that R.M. has changed lately. He is taking better care of himself, he is working, he is giving her money, and she hopes that he will mature. When asked if she believes he will mature, she indicated that she did not believe that he would. She viewed her experience with this couple as “R.M. and N.D. put themselves first, ahead of the children”. [95] She did not agree on cross-examination that R.M. was good example of how she and her husband parent. R.M., as teenager, would not listen, hung out with the wrong crowd and ended up in the Springhill Penitentiary. She acknowledges that he has approximately five (5) children from five (5) different women only one of whom he supports financially. She has had to correct R.M.’s disciplinary practices in the past when he disciplined S.M. by having her raise and hold her hands in the air and hold them there. [96] She and her husband will care for S.M., who will want for little. They will give her love, security, and financial security. S.M. also has friends in her neighbourhood and she is doing reasonably well in school, considering her past behaviors. S.M.’s behavior overall is improving. M.L. described the reward system, which appears to be labour intensive for parent. It requires constant monitoring, but appears to be working according to Mr. Moore and M.L.. [97] M.L. will facilitate access with S.M. and N.D. through her mother (P.). P. and N.D. get along well. P. is seventy-six (76) years old and in good health. M.L. indicated that she never enjoyed good relationship with N.D. but N.D. has reasonably sound relationship with Mr. L.. [98] M.L. impressed the Court as credible witness, whose parenting commitment was already noted by S.M.’s improved performance. It is clear that M.L. loves S.M. and will take the necessary steps to ensure that she reaches her full potential. It is so, even though all witnesses agree that S.M. is challenging five (5) year old. [99] Her plan for A.D. is vague. M.L. indicates by her own evidence that she does not have bond with the child. The fact she and her husband never sought access to A.D. since December 2001 clearly illustrates there is no effort by the L.s to establish bond with A.D.. [100] R.M. gave evidence on January 24, 2003 and advised that he and N.D. had an on-and- off-again relationship for approximately five (5) years. He believes he is the father of three (3) of the children K.D. (who is deceased), S.M. and A.D.. He has had legal custody of S.M. almost from birth. He has had approximately eleven (11) residences since S.M. was born, between 1997 and the date of apprehension, December 2001. He has had approximately six (6) children from five (5) women. He financially supports S.M. in the amount of five hundred and fifty dollars ($550.00) per month and has summer visits with another one of his children. Two (2) of his other children were adopted and therefore he was not able to interact with them. [101] S.M., as have indicated, had been with the L.s for the first eleven (11) months of her life, then with her father at various residents on and off and then back with the L.s since approximately July, 2001. R.M. indicates that he has called Children’s Aid approximately five (5) times in the last two (2) years twice looking for provisions and three (3) times to complain about N.D.’s care. One time he called because he heard one of N.D.’s daughters being slapped and he believed that N.D. slapped the child. At the time of trial, he no longer had the same belief. He indicated he did not see the assault but rather heard the noise and heard baby cry. He advised that he never used threats of involving Children’s Aid to keep N.D. in relationship with him. [102] R.M. indicated that he learned great deal from his Family Skills counseling, except he did not follow through on all of the advice given when he found it not to be realistic or necessary. He indicated, as an example, when Annette Murphy told him he should always be in the room with S.M. when she was two (2) years of age, he did not follow that recommendation as he felt that it was not realistic. He believes that he had approximately fifteen (15) sessions with the Family Skills Worker over the years. [103] He does want to parent A.D. and S.M. and believes he has the ability. He would like to parent all four (4) children but he knows it is not realistic. He is working full-time and he knows that his mother will help out babysitting the children while he is at work. R.M. has had DNA testing performed, indicating that it is 99% certain that he is the father of A.D.. He recalls he did have sexual relations with N.D. around the possible time of conception. No documentation was provided regarding parternity. [104] R.M. admits he is not as active with S.M. as the L.s are, but believes he can parent S.M. better than his parents. He believes he cannot parent better than N.D.. He did call, he admitted, to complain about N.D.’s long hours at work when they were cohabiting. Some of the calls, he indicated on cross-examination, were about neglect, but not about safety. He described the calls were due to, “a reasonable amount of neglect”. [105] R.M. broke down his financial situation to advise how he can take care of two (2) children. It would appear that the idea of budgeting was new experience for him. It is the Court’s opinion that his budget is not well thought out. [106] On cross-examination R.M. cannot recall complaint that he allegedly made to Scott Clarke of Children’s Aid regarding the baby sleeping in crib in the closet or N.D. putting Tylenol in the baby’s bottle. He did indicate that “yes”, one of the baby’s did have crib in the closet and N.D. only put Tylenol in the bottle because the baby would not take the medication any other way. He indicated that he did not often think about emotional abuse the children may have suffered. If they did suffer, both he and N.D. were the cause. [107] J.R. was called as witness. He is friend of both the Respondents. He is in long-term relationship and has steady job. He had completed high school with R.M. and knew N.D. for years. He is D.D.’s Godfather, and has been since June, 2001, which was six (6) months prior to apprehension. He was at N.D.’s home visiting, but more often after he became D.D.’s Godfather. He believes that the children are happy and that the parents are attentive to their needs. He does not have any children of his own, but he has indicated that he has certainly seen children who were less well cared for than N.D.’s children. [108] He describes N.D. as patient with all of the children, but indicates that S.M. is challenge. He found the house always to be adequate. He recalled that the parties separated often, but seemed to get along when he was present. He saw them often because he is their friend and their taxi driver. He knows very little of the Children’s Aid involvement with the family. [109] The Court next heard from N.D. on February 3, 2003. She is clear in her wishes that she wants all the children returned to her. She has problems with access at the Children’s Aid office as it is artificial and she finds her access visits awkward with people looking at her through the one glass mirror. Also, she wishes there was television or radio available in the visitation rooms. [110] She was concerned about the children’s health and care. There were three (3) incidents chronicled when she believed the foster parents were slow in seeking medical intervention; particularly, when one of the girls bit her tongue. [111] N.D. indicated she had tried to get help for K.D. (her deceased daughter), however both the hospital staff and with her doctor, only gave her lotions and not the medication the child needed. She and the children remain patients of the same doctor, up-to-date of apprehension. [112] N.D. indicated that when the hospital wanted her to leave O.D. in the hospital for CatScan after O.D. fell, she did not, due to her doctor’s recommendation to take the child home, which she did. She had the CatScan performed later, which was negative. [113] N.D. has indicated that her house was always clean, as she cleaned it regularly. Her home was never in shambles as described by M.L. and the Children’s Aid workers. [114] She indicated that she had the children with sitter when the Children’s Aid apprehended. The sitter did not answer the door because the Children’s Aid were knocking at the wrong door. She denies that the two (2) year old, O.D., was left unsupervised watching the workers through the door for approximately thirty (30) minutes. [115] N.D. explained that at the time of apprehension, December 30, 2001, the children were not clothed because the sitter was getting them ready for their bath and that children with diaper rash healed better if their bottoms were left exposed for periods of time. [116] N.D. agreed the children have had head lice, which she feels was quite common. She tried to treat it, but other grown-ups in the house also had head lice and did not follow the treatments. Therefore, N.D. had problems keeping the head lice under control in relation to her children. [117] N.D. indicated that she did move to number of apartments, but she was never evicted. On cross-examination she indicated she may had been evicted once because her cheque was late. There may have been two (2) other occasions when she was the subject matter of an eviction but these evictions were against R.M. because he had not paid his rent and she happened to be cohabitating with him at that time. She indicated that she has returned to R.M. on numerous occasions because of his need for financial support to keep his car going and his insurance paid. [118] At the time of trial, N.D. indicated that she quit her job at local restaurant in [..] as she was told to quit or be fired. She said that she was having difficulty with people at work, who were customers. She believed these people were getting even at her because they were not able to get even with her brother. She believes that some people believe she is bad person because of the death of her daughter, K.D.. [119] At the time of trial, she didn’t have an apartment and was living with friend. She had no income, but she has number of job prospects she is examining. Her first plan was to obtain home through Regional Housing, which she believes can happen quite quickly. Until that time, her friend in [...] has house and will allow N.D. to take the children there until she has suitable accommodations. [120] N.D. has no concerns if R.M. has custody of S.M.. Before, she had concerns because he had too many girlfriends and they all became known to S.M. as “mommy”. She maintains that she has many boyfriends but describes most of her relationships as on again, off again she indicated on examination from Mr. Campbell: Q. Do you in fact know who the father of A.D. is? R. It’s not R.M.? .A No it’s not. S. Does that person appear anywhere on an official document? Did you list that person’s name as the father? .A don’t know if it was officially written down but have told Children’s Aid Workers who the father was. T. When did you do that? .A On several occasions actually. U. After apprehension or before apprehension? .A Both. When J. would come over she would look at A.D. and say, “Is he ever cute” and this and that and the other thing and we got into the conversation of who the...as bad as this is going to sound there is more than one father of my children. There’s not much can do about it. [121] She is quite certain that R.M. is not the biological father of A.D.. She puts that certainty at 98%. But, there is small, but remote, chance that he may have been intimate with her without her knowledge, after she had had consumed couple of beer, however, she does not think this is likely. [122] N.D. believes that M.L. is not really close to S.M.; however she believes, S.M. is close to Mr. L.. N.D. has no problem with Mr. L.. She believes the L.s will take care of S.M.’s necessities, but not her emotional needs. If she receives custody of S.M., she will take S.M. off all prescribed medications and cancel her current behavioural modification program. N.D. is skeptical of the improvements that S.M. has made so far, believing there is possibility that S.M. may regress. [123] N.D. believes that she and M.L. did not get along because M.L. felt guilty for not spending time with D.D. when she did spend time with S.M.. She also believes M.L. harbors ill feelings towards her due to K.D.’s death. [124] She attributes her many changes of address at least eight (8) since 1997 to R.M. or to her landlord. She gave conflicting evidence whether or not she believed these multiple moves were not healthy for her children. [125] N.D. indicated that she called Children’s Aid several times over the years to provide food, formula and diapers. She also relied on family and friends from time to time to assist her in acquiring basic provisions. She admitted under cross-examination that she, on at least two (2) occasions, worked for cash under the table which is cash without deductions while accepting Family Benefits. She has had approximately six (6) jobs since S.M. was born in 1997. [126] She believes that she is not resistant to change. She has completed two (2) six-week courses on Stress Anger Management and “How to Talk to Children”. She told Children’s Aid she would take whatever courses they want, “read book”, or do whatever they want. All Children’s Aid did to help her was to give her two (2) courses on budgeting. She did have Parent Aid come to the house, she recalled, but it did not work out as well, as the Aid arrived when she and the baby were resting. She advised the Family Skills worker saw her only few times. However, N.D. agreed on cross-examination that it was possible that the Family Skills worker made up to twenty-two (22) separate visits to her home. [127] She indicated R.M. did report her to the Children’s Aid, but this was only to get back at her and had nothing to do with her care of the children. She indicated R.M. used the threats of Children’s Aid to keep her in relationship. She remained with him after the time of apprehension. They started business together because she believed if she did R.M. would tell Children’s Aid the truth and her children would be returned to her. [128] N.D. wants her children returned as she believes she can care for them. She believes she has never done anything to disentitle her from caring for her children. She believes that the Children’s Aid are biased and are “nit-picking” because of complaints made about her. She believes that R.M. and C.B. caused her to lose her children due to their calls to Children’s Aid about her slapping one of the girls. Although she did agree that her children were in need of protective services at the Protection finding, she could not explain at permanent care hearing why she agreed to the protection finding, except that she felt that she had no choice. [129] She was unable to explain why R.M., C.B. and M.L. would all call the Children’s Aid on the same day to complain that they saw or heard one of the children being slapped by N.D.. [130] Dr. Myatt, her physician, wrote the two (2) letters referred to in the Protection Affidavit. She indicated that Dr. Myatt wrote for the purpose of helping her get oil, and that he has retracted the negative portions. No evidence was provided to support her claim. [131] She indicated that if she does not have the children returned to her, she wants all four children to remain in foster care. She does not want S.M. to stay with the L.s. She would prefer S.M. be placed in foster care. She believes that if S.M. is moved, she would be disrupted for awhile, but in her own words, “after awhile it would go unnoticed”. [132] N.D. cannot explain why so many people have complained about her in the past nurses at the hospital, her treating physician, Department of Community Services, R.M., C.B., the police and M.L.. N.D. has indicated she only joked about calling her son “L.”, and she was not talking to the nurses at that time. This is one of the examples that she uses for being taken out of context by service providers. [133] She agreed the October, 2001 protection application for supervision was more serious than any of her previous Children’s Aid involvements. When asked what she did to improve her situation with the children prior to apprehension in December,2001, indicated that she tried to listen and to be patient with Children’s Aid. She appeared to agree she should not have left broken window in her apartment when the children were around, but she denies that her two (2) year old daughter was anywhere near the window unattended as the Children’s Aid workers alleged. [134] N.D. agrees that she had been advised to obtain counseling but would rather talk to her friends who can better relate to her problems. N.D. complained the L.s had frustrated her weekly access to S.M. in November, December and January; however, on cross-examination agreed that she cancelled some of these visits due to work or Court. She maintained the L.s at least failed to provide access for two (2) visits in row. She did not accept the Agency records that there was only one (1) such default, nor did she accept M.L.’s evidence that the L.s had never intentionally frustrated access. [135] She concludes that she has no deficits as parent. Her only deficit is that she does not have her children with her. DECISION [136] The Agency applied for permanent care of the three (3) younger children and for custody of S.M. to be granted to the L.s. Counsel agree that the outer time for completion of this case runs from the date of this decision, February 20, 2003. Where adjournments were made to allow assessments to be prepared, all parties agreed it was in the best interests of the children, and the best interests of the parties, that the extensions were granted. Adopting this premise the maximum time period for improvement, and to assess change in the foreseeable future expires on February 20, 2004. [137] The L.s filed an application for custody for S.M. on February 12, 2003. All parties expected the application to be made as the standing application was granted previously in December, 2002. The Agency supports this placement if Children’s Aid will continue to supervise S.M.. R.M. is to have limited involvement with S.M.. A.D. is not to be placed with the L.s as this would be too demanding for the L.s and S.M. and could jeopardize S.M.’s placement. [138] The Court finds, based on the review of all of the evidence, both N.D. and R.M. have very serious parenting deficits. acknowledge R.M. was not part of the Section 40 Protection finding but subsequent reliable evidence shows he has serious parenting deficits. [139] Without the assessments, the evidence is clear that all four (4) children would be at risk of harm under both Section 22(2)(b) and 22(2)(g) if returned to either parent as primary caregiver. [140] Both parents have caused or allowed the children to experience the following: (1) have head lice for protracted times; (2) endure bad diaper rash; (3) be without diapers, milk and food, frequently; (4) miss medical appointments, to the nature that even the doctor made report to Children’s Aid; (5) move eight (8) to eleven (11) times over four (4) years; (6) live in houses with mice, insufficient heat, broken windows and dangerous items on the floor; (7) witness the parents with multiple partners; one boyfriend physically abused N.D. in front of the child D.D.; (8) their home kept in an unhygienic state with dishes on the floor, while the children were present; (9) children in the home not dressed appropriately for time of year; (10) children were left without appropriate supervision; inappropriate supervision of the children continued even in supervised access setting; efforts to remedy this problem were not successful. [141] Neither parent learned from the numerous sessions of Family Skills Worker or Parent Aid. They were unwilling to accept direction unless it was to their liking. Neither parent accepted they have serious parenting deficits and that these deficits pose danger to the child. Neither parent acknowledged that they have any room to improve essential parenting skills. [142] Evidence from every source, excluding the assessments, and including N.D.’s own evidence, shows that she has bad temper and reacts badly to life’s stresses. Throughout the hearing she gestured frequently in court, interrupted the hearing on occasion and left the courtroom when testimony was negative. [143] certain amount of upset is understandable in permanent care cases and in Family Court generally, but N.D. presented to the Court to be in constant state of agitation. The Court acknowledges Judges are cautioned against placing too much emphasis on courtroom decorum, however, have observed N.D.’s deportment throughout the hearing; in particular the constancy of her agitation. [144] R.M. could have protected the children. He could have worked to at least provide the necessities for them. His calls to complain about Children’s Aid were often not timely. He has many children that he does not support. What is more alarming is he does not seem to have problem with the failure to support. He has modified or forgotten many of his complaints again N.D.. He exhibits no difficulty with discrepancies in his own evidence. Any child rearing complaints are due to N.D. or causes he cannot remember. At the same time, he believes that N.D. has no child-rearing problems at the present time due to of the two (2) six-week programs she completed. [145] The Applicant seeks to have the three (3) youngest children placed in permanent care without access to the parents. To agree with the Applicant’s position, must find all less intrusive avenues have been tried and failed or would not likely be changed within the foreseeable future, which is year from today’s date. [146] The remedial measures for both parents have been numerous money, transportation, budgeting, Family Skills Worker, Parent Aid, Counseling Referral Assistance, recommendation to mental health, coordinated care for S.M. to help her with her behavior, addressing concerns in the foster home and investigating various complaints. After approximately seven (7) years of involvement, four and one-half (4 ½) years of informal involvement, two and one-half (2 ½) years of court involvement, despite the consensual protection finding by N.D., both parents believe they have no problem areas to correct. One cannot correct serious parenting problems which put children at risk- if the parents cannot see that they have the need to correct these problems. Even up to the last day of evidence, N.D. believes that she has no deficits and R.M. supports her in this belief. [147] find the onus under Section 42(2) of the Children and Family Services Act has been met in this case. 42 (2) The court shall not make an order removing the child from the care of parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13, 1.(a) have been attempted and have failed; (b) have been refused by the parent or guardian; or (c) would be inadequate to protect the child. [148] Based on the evidence at the Protection Hearing, the protection finding and the evidence at the Disposition Hearing as already set forward in this decision, I find neither parent can, or wishes to, change in the foreseeable future. Less intrusive avenues have been tried and failed. [149] While I have effectively disregarded both assessments, the Respondents were not willing to accept any input from any professional. There is nothing to be gained, nor is it in the children’s best interests to order yet another Assessment or any further remedial measures. Therefore I find there is no likelihood of change in either parent in the foreseeable future as specified in Section 42(4) of the Children and Family Services Act. [150] The assessments were to provide an aid for new avenues to help the Respondents parent. The Respondents were not impressed with either assessment, which were negative to their cause. However, the Respondents have repeatedly refused to listen to any professional on how they could improve. The Respondents, by their own evidence, proved clearly the children would be at great risk if returned to them. It is not in the best interests of the children to be returned to the Respondents’ care, either together or separately. [151] The case has been made out against the Respondents on evidence excluding the opinion evidence. The Applicants plans could have been presented without opinion evidence. In this case, opinion evidence could be classified as “nice to have” and that is not the onus. refer the Court to the decision of R. D.(D.), decision of Major J. and the citation is 2000 SCC 43 (CanLII), 2000 S.C.J. No. 44 at page 48, where Justice Major said: The second requirement of the Mohan analysis exists to ensure that the dangers associated with expert evidence are not lightly tolerated. Mere relevance or helpfulness is not enough. The evidence must also be necessary. agree with the Chief Justice that some degree of deference is owed to the trial judge’s discretionary determination of whether the Mohan requirements have been met on the facts of particular case, but that discretion cannot be used erroneously to dilute the requirement of necessity. Mohan expressly states that mere helpfulness is too low standard to warrant accepting the dangers inherent in the admission of expert evidence. fortiori, finding that some aspects of the evidence might reasonably have assisted the jury is not enough.10 [152] Justice Major goes on to quote Professor Paciocco, when he said: As the Mohan Court explained, the four-part test serves as recognition of the time and expense that is needed to cope with expert evidence. It exists in appreciation of the distracting and time-consuming thing that expert testimony can become. It reflects the realization that simple humility and desire to do what is right can tempt triers of fact to defer to what the expert says. It even addresses the fact that with expert testimony, lawyers may be hard-pressed to perform effectively their function of probing and testing and challenging evidence because its subject matter will often pull them beyond their competence, let alone their expertise. This leaves the trier of fact without sufficient information to assess its reliability adequately, increasing the risk that the expert opinion will simply be attorned to. When should we place the legal system and the truth at such risk by allowing expert evidence? Only when lay persons are apt to come to wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts. As Mohan tells us, it is not enough that the expert evidence be helpful before we will prepared to run these risks. That sets too low standard. It must be necessary.11 [153] In this particular case, ordered the assessments as possible road map to examine some personality deficits which would provide remedial measures for the purposes of reuniting this family. At the end of the day, am not putting any weight, or very little weight, on the Bryson Report and none on the Hann Report for reasons already given. In the final analysis, and hindsight is wonderful thing, the expert opinion in this particular case with this history, was not necessary at least not necessary to decide if future remedial measures may work. [154] find there is no extended family capable of caring for these children as meant by Section 42(3) of the Children and Family Services Act, with the exception of S.M.. Section 42(3) of the Act states as follows: Where court determines that it is necessary to remove the child from the care of parent or guardian, the court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (e) or (f) of subsection (1), consider whether it is possible to place the child with relative, neighbour or other member of the child’s community or extended family pursuant to clause (c) of subsection (1), with the consent of the relative or other person. [155] endorse the decision of Justice Cromwell where he quotes Judge Levy, in the case of Nova Scotia (Minister of Community Services) v. C(B).T. and F.Y. (2002), 2002 NSCA 101 (CanLII), 207 N.S.R. (2d) 109, at page 7, T.B. v. Children’s Aid Society of Halifax that the evidence of the extended family must involve family that has the extra dedication to make the long-term commitment; that they have to be good and caring people and be willing to assert the responsibility of adding another child to their home. The evidence is clear, however, that the extra dedication that is needed to their own children is long-term commitment, conceivably until they leave home. These are good and caring people and parents, but it appears third child would be taking on more than they could handle. [156] find that with the exception of S.M., there is no other extended family member that has been put forward as an appropriate placement for the three (3) younger children. [157] In my review of Sections 22 and (2) of the Children and Family Services Act, and the best interests of these children. I find it is to be in S.M.’s best interest to be placed in the supervised care of M.L.. did not hear from Mr. L.. If the L.s wish to pursue their custody application for S.M., it may be prudent to have an actual medical opinion of Mr. L.’s health, as is usually provided in these cases, and to hear evidence from Mr. L. as to his view of his role in S.M.’s life. [158] R.M. is to find his own quarters apart from his parents. R.M.’s vision on parenting, his credibility, and his responsibility to his family are so diverse from that of his mother that he cannot serve as long-term positive force living in that household. He can have visits with S.M., unsupervised, and these are to be four (4) times week, over the next four (4) months and then two (2) times week after that for two-hour period. He is to always advise M.L. where he is taking S.M.. He will be courteous and prompt, failing which, access may be curtailed or terminated if it is not in S.M.’s best interests. acknowledge that S.M. will obtain professional help shortly. Therefore, if it is in her best interests to increase her access with her father, leave that in the discretion of the caregivers and the Children’s Aid Society, after proper consultation with S.M.’s counsellors. [159] S.M.’s access to her father is to be carefully monitored. If access becomes positive feature, it is to be expanded. If it becomes negative feature, it is to be terminated. [160] find that N.D.’s access record with S.M. has not been consistent. However, she seems to have exercised her access consistently with the other three (3) children. It is my finding, as I have indicated already, that these children have experienced a chronic environment of absence of necessity; multiple moves; one child has seen physical violence; medical needs have not been met; basic hygiene had not been met; supervision and safety concerns have not been met. The provisions of the Children and Family Services Act are preventative in nature. We have four (4) children who have been overwhelmingly neglected by one or both parents. It is in their best interests, that the three (3) youngest children will be placed in permanent care for the purposes of adoption, and there is to be no access to either parent. find that access is not in their best interest. The adoption option is the best hope for their right to secure home; their right to have an attachment; their right to have their basic needs met; and their right to be safe. [161] They have limited opportunity to bond with other people and to have another family to be happy, stable and content. find that their needs can be met if placed for adoption, with appropriate families. [162] Access to the mother and father shall be weaned from the three (3) younger children. If either party does not comply with proper access provisions, access will be terminated. All three (3) children shall be placed for adoption forthwith. N.D shall have supervised access to S.M., as supervised by Mr. L.. If this access is not exercised, it shall be terminated. Access shall take place twice month for two (2) hours at time convenient for N.D. and Mr. L.. [163] have heard very little, unfortunately, of S.M. and her bond with her siblings. Unfortunately, do not have authority to have input as to the terms of adoption. It may well be that all four (4) children would benefit from knowing each other. Hopefully, D.D. and O.D. will be adopted by the same family. am advised they have solid bond. Ideally, it would be better if all three (3) children be adopted by one family, but that is tall order, especially with the needs D.D. and O.D. have. [164] This Court now has spent two and one-half (2 ½) years with these children’s problems; it is my view they may benefit from form of an open adoption arrangement. This possibility is prohibited by the current Nova Scotia Adoption Legislation. Therefore, access between all four (4) children will continue at least until it becomes impossible due to the current adoption law in Nova Scotia. When adoptions are pending, an appropriate weaning-off process is to take place before access between these four (4) children is terminated. M. Clare MacLellan Justice of the Supreme Court of Nova Scotia (Family Division) 1Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994 at pg. 261 2Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pg. 55 3Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pg. 56 4Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pg. 57 5Delisle, R.J., Evidence: Principles Problems, 5th Ed., 1999 Thomson Canada Limited at p. 643 6Delisle, R.J., Evidence: Principles Problems, 5th Ed., 1999 Thomson Canada Limited at p. 643 Chayko Gulliver, Forensic Evidence in Canada, Canada Law Book, 1999, pg. 19. Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pgs. 149 150 Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pgs. 147 148 10 Doherty, M.P., The Portable Guide to Evidence, Thomson Canada Limited, 2001, at pg. 53 11 Doherty, M.P., The Portable Guide to Evidence, Thomson Canada Limited, 2001, at pg.","The Agency applied for the permanent care of four young children, aged 2 to 5 years. The three youngest children had been in the Agency's temporary care and the oldest child had been in the supervised care of her paternal grandparents. The family had come to the Agency's notice due to problems with money, food shortage and housing. Despite several years of assistance from a Family Skills Worker and Parent Aid, concerns remained as to the mother's willingness and ability to care for her children. The oldest child had continuously moved between her biological father's home (which was often with the mother) and her paternal grandparents. The biological father had custody of her at the present time. The paternal grandparents wanted custody of both the oldest and youngest children, whom they believed to be their son's children. Application granted; the oldest child to be placed in the supervised care of her paternal grandmother and the biological father is not to live in that home; both parents can have supervised carefully monitored access to that child (if access is not exercised by either party, that access will be terminated); the three youngest children are to be placed in the permanent care of the Agency for the purposes of adoption with both parents' access to these children to be weaned. Access between all four children will continue at least until it becomes impossible due to the current adoption law in the province. Although the expert evidence presented by the Agency was rejected due to its apparent lack of objectivity and the fact that the experts appeared biased by their access to the entire Children's Aid file which contained numerous unproven allegations, the court found that despite extensive remedial measures provided to the family, all four children would be at risk of harm if returned to either parent due to an environment of absence of necessities, multiple moves, one child having witnessed physical violence, medical needs not having been met, basic hygiene not having been met and basic supervision and safety concerns not having been met. The father failed to either protect the children or provide the necessities for them. Both parents were not willing to accept input from any professional. Neither parent could, nor wished to, change in the foreseeable future.",b_2003nssf19.txt
278,"C.A. No. 113623 NOVA SCOTIA COURT OF APPEAL Hallett, Chipman and Flinn, JJ.A. BETWEEN: WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA -and DONALD LANGLEY Respondent David P.S. Farrar for the Appellant Louis M. Walsh for the Respondent Appeal Heard: May 29, 1995 Judgment Delivered: June 20, 1995 THE COURT: The appeal is allowed and the decision and order of the Chambersjudge are set aside as per reasons for judgment of Chipman, J.A.; Hallett and Flinn, JJ.A., concurring. CHIPMAN, J.A.: This is an appeal from a decision in the Supreme Court in Chambers allowing an application for certiorari to quash a decision of the Workers\' Compensation Board and remitting the matter to the Board to determine the rate of compensation payable to the respondent in accordance with s. 37 of the Workers\' Compensation Act, R.S.N.S. 1989, c. 508. The respondent had worked for M-I Drilling Fluids Canada Inc. or its parent company since 1963, and experienced periods of layoff for as long as two years. He had returned to work in November 1990. Effective January 31, 1993 he was laid off from full-­time employment as warehouse manager. His last day worked as such was January 15, 1993. Since January 31, 1993, the respondent was employed by M-I on contract basis as property caretaker for which he was paid $100.00 weekly and, in addition, he was given part-time casual work for which he was paid at the rate of $15.00 per hour. The part-time work included at least some of the duties he had been performing before he was laid off. On March 16, 1993 while performing his casual work, the respondent sustained back injury. He was able to continue with his caretaking duties for which he was paid the weekly sum of $100.00, but he was unable to continue with the casual work. The respondent submitted claim to the Board and by decision dated June 14, 1993 the Claims Adjudicator of the Board found that the respondent had sustained back injury. He was found to be no longer disabled as of June 14, 1993, and had thus suffered total temporary disability within the meaning of the Act. As he was working on part-time basis, the Adjudicator found he was entitled to be paid compensation for one day of work per week from March 19, 1993 until May 26, 1993 and thereafter for one day of work per month until June 14, 1993. The respondent appealed to Review Officer of the Board who by decision dated December 20, 1993 affirmed the decision of the Adjudicator. The Review Officer's findings of fact included that effective January 31, 1993 the respondent was employed as labourer for one eight hour day per week. Effective May 26, 1993 he was employed as labourer for one eight hour day per month. Temporary total disability benefits had been awarded to him on the basis of wages lost as such labourer. Although the respondent was not disabled from his duties as caretaker, he was to be reimbursed on the basis of total temporary disability for the time lost from casual work. His appeal was dismissed. The respondent appealed to Hearing Officer of the Board who held hearing on March 1, 1994 and filed decision on March 22, 1994. The Hearing Officer reviewed the facts, noting that the respondent's ""average weekly earnings"" during the previous 12 months from February 1, 1992 to January 31, 1993, based on salary of $30,690 were $590.19. It was on this basis that the respondent's benefits were calculated, albeit on part-time basis. The Hearing Officer reviewed the decisions of the Claims Adjudicator and the Review Officer, the evidence of the respondent, as well as medical reports and other data relating to his income and employment. The Hearing Officer referred to s. 37 of the Act dealing with total temporary disability. She also referred to the respondent's lay off on January 31, 1993 and, in effect, declined to treat the respondent as full-time employee for the purpose of fixing compensation. At the time of the injury, the respondent was part-time employee and as result of the Adjudicator's decision, was compensated with respect to actual time missed from work. He thus received total temporary disability benefits from the Board to replace the income he would have earned as part-time employee had he not suffered the accident on March 16, 1993. The Hearing Officer concluded: ""In light of the evidence on the file, do not accept the argument that Mr. Langley should have received temporary total disability benefits on 'full-time basis', given the fact that Mr. Langley's lay off may have been only temporary in nature. This assertion is speculative at best. The Workers' Compensation system is wage replacement system or wage loss system designed to compensate workers for actual wages loss as result of work related accidents. It would be improper to pay Mr. Langley benefits that would reflect Mr. Langley was employed on full-time basis as of the date of his accident, because this was not, in fact, the case. When Mr. Langley suffered his work related accident on March 16, 1993 he had been employed for the past six weeks on an hourly rate basis, earning $15.00 an hour and working one day week. He was not employed on full-time basis nor is there any indication in the file other than speculation, that Mr. Langley would have been reinstated to full-time status during the spring or summer of 1993."" The Hearing Officer concluded that to compensate the respondent based on full-time employment status as of the date of the accident would be contrary to the evidence and to the intent of the legislation in performing wage replacement function. The appeal was dismissed. On certiorari proceedings before the Chambers judge, he reviewed the facts and the argument of counsel and referred to s. 37 of the Act: ""37 Where temporary total disability results from the injury, the compensation shall be weekly payment of seventy-five percent of the worker's average weekly earnings during the previous 12 months, if he has been so long employed, but if he has not been so long employed, then for any less period during which he has been in the employment of his employer."" After referring to the general principles regarding the standard of review by the courts of decisions of administrative tribunals, the Chambers judge concluded that s. 37 of the Act limited the Board's jurisdiction. Thus, he concluded that the interpretation by the Hearing Officer of such provision was one which was subject to review for correctness. The Chambers judge held that the Hearing Officer had ignored the clear words of s. 37 and had arbitrarily decided upon a different rate of compensation. The Board had thus exceeded its jurisdiction. The decision was quashed and the matter remitted to the Board to determine the rate of compensation in accordance with s. 37 of the Act. On the Board's appeal to this Court, two issues are raised: (1) whether s. 37 of the Act limits the Board's jurisdiction; (2) if s. 37 does not limit the Board's jurisdiction, whether the Board's decision was nevertheless patently erroneous and properly set aside in any event. ISSUE ONE JURISDICTIONAL LIMITATION The scope of review of tribunal decisions by courts was recently discussed by the Supreme Court of Canada in Pezin v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] S.C.R. 557 at 589-90. ""From the outset, it is important to set forth certain principles of judicial review. There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal's role or function. Also crucial is whether or not the agency's decisions are protected by privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved. Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where tribunal protected by true privative clause, is deciding matter within its jurisdiction and where there is no statutory right of appeal. See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] S.C.R. 227, U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v. Quebec (Commission d'appel en matiere de lesions professionelles), 1993 CanLII 106 (SCC), [1993] S.C.R. 756. At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] S.C.R. 321, Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] S.C.R. 554 and University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] S.C.R. 353."" This Court recently reviewed these principles in Cape Breton Development Corporation v. Workers' Compensation Board Nova Scotia, et al. (unreported February 6, 1995) when at p. Hallett, J.A. said: ... In my opinion one of the clearest statements on this question is that made by Mr. Justice Beetz of the Supreme Court of Canada in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048 at pp. 1086 to 1090. The key parts of his statements are the following: 'In its decision tribunal may have to decide various questions of law. Certain of these questions fall within the jurisdiction conferred on the tribunal; other questions however may concern the limits of its jurisdiction. It is, think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error: 1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in patently unreasonable manner; tribunal which is competent to answer questions may make errors in so doing without being subject to judicial review; 2. if however the question at issue concerns legislative provision limiting the tribunal's powers, mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.""' In Canadian Broadcasting Corporation v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] S.C.R. 157, lacobucci, J. writing for the majority of the Supreme Court of Canada said at p. 179: ... In distinguishing jurisdictional questions from questions of law within tribunal's jurisdiction, this Court has eschewed formalistic approach. Rather, it has endorsed 'pragmatic and functional analysis', to use the words of Beetz J. in U.S.E., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048. In that decision Beetz J. noted, at p. 1088, that it was relevant for the reviewing court to examine: '. not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.' The goal is to determine whether the legislature intended that the question in issue be ultimately decided by the tribunal, or rather by the courts."" We must determine then whether the Board's interpretation of s. 37 of the Act was within its jurisdiction or whether such provision was one conferring jurisdiction on the Board. The purpose of the Act is to provide compensation on no-fault basis to workers who are injured on the job. The compensation is designed, as far as available resources permit, to replace lost earnings or compensate for lost earning capacity. See Hayden v. Workers' Compensation Appeal Board (1990), 1990 CanLII 2423 (NS CA), 96 N. S. R. (2d)108. The cost of the benefits is met from the levies charged by the Board against employers in the industries governed by the Act, based upon payrolls. The Board administers the entire scheme. Claims by workers are decided in the first instance by the Claims Adjudicator. An appeal lies to Review Officer and further appeal lies to Hearing Officer. The Board, acting through these officials can be presumed to have high level of expertise in the assessment of disabilities and awarding compensation. In determining the legislative intent as to where the ultimate decision making power is to rest, the following sections of the Act are relevant: ""148 The Board has jurisdiction to inquire into, hear and determine all matters and questions of fact and law necessary to be determined in connection with compensation payments and the administration thereof and the collection and management of the funds therefor. 150 Except as stated in Sections 169, 182 and 183, the decisions and findings of the Board upon all questions of law and fact shall be final and conclusive, and in particular, but not so as to restrict the generality of the powers of the Board hereunder, the following shall be deemed to be questions of fact: (d) the degree of diminution of earning capacity by reason of any injury; (e) the amount of average earning;"" (emphasis added) Sections 169, 182 and 183 are not relevant to this inquiry. In my opinion, the Board's function in applying s. 37 involves the determination of matter within its jurisdiction, namely the fixing of compensation for temporary total disability based on the amount of average weekly earnings. Another section available for the Board's use in carrying out this function is s. 53, and in particular subsection thereof. It appears that this section was not drawn to the attention of the Chambers judge. ""53 (1) Where owing to the shortness of the time during which the worker was in the employment of his employer or the casual nature of his employment or the terms of it, it is impracticable to compute the rate of remuneration as of the date of the accident regard may be had to the average weekly or monthly amount which during the twelve months previous to the accident was being earned by person in the same grade employed at the same work by the same employer or if there is no person so employed then by person in the same grade employed in the same class of employment and in the same locality. (2) Employment by the same employer shall mean employment by the same employer in the grade in which the worker was employed at the time of the accident uninterrupted by absence from work due to illness or any other unavoidable cause. (3) Where in any case it seems more equitable, the Board may award compensation having regard to the earnings of the worker at the time of the accident."" These are not sections which confer or limit jurisdiction on the Board, but rather they govern the Board in carrying out its function of determining compensation in case of disability. The Board is not here concerned with its jurisdiction to award compensation, but rather the amount that ought to be awarded in given case. In my opinion, the Board's interpretation of s. 37 must be judged not by standard of correctness but by standard of reasonableness. The only question left to determine is whether the interpretation by the Hearing Officer was patently unreasonable. ISSUE TWO REASONABLENESS At first blush, it is tempting to say that s. 37, when applied to this case, left the Hearing Officer with no other choice but to take the average earnings of the respondent during the one year period from March 17, 1992 to March 16, 1993, all of which earnings were received during his employ with M-I Drilling Fluids Canada Inc. That is certainly an interpretation of s. 37 which is not unreasonable. However, in considering the application of s. 37, it was also open to the Board to have regard to the Act as whole. On January 31, 1993, the respondent's employment status changed. He was laid off from full-time hourly employment. In its place, the same employer engaged him in two separate ways: contract employment as watchman at rate of $100.00 week (from which he was not disabled) and part­time hourly employment totaling one day week until May 26, 1993 and one day month thereafter. As the Hearing Officer observed ""it would be improper to pay Mr. Langley benefits that would reflect Mr. Langley was employed on full-time basis as of the date of the accident, because this was not, in fact, the case."" The result of accepting the respondent's submission would be that the hearing officer would award him 75% of an amount close to full-time worker's pay. At the time he was injured he was not full-time worker. This would mean that he would get more compensation than he would have received from his work had he not been disabled. The Hearing Officer rejected the contention that the lay off was temporary, holding that it ""was speculative at best"". This finding negates any argument based on loss of earning capacity. It was open to the Board to take different approach from that mandated by s. 37. The other option was that prescribed by s. 53(3): ""53 (3) Where in any case it seems more equitable, the Board may award compensation having regard to the earnings of the worker at the time of the accident."" This provision was particularly applicable to the unique situation before the Hearing Officer. As the privative clause makes clear, the intention of the legislature was to confer upon the Board and not the courts the function of awarding compensation to disabled workers. The scheme of the Act contemplates that the officials of the Board are persons versed in carrying out their function of assessing disabilities, fixing compensation and raising the money to pay for it. In applying the provisions of the Act in the way that she did, I cannot say that the Hearing Officer adopted a patently unreasonable interpretation. Indeed, such interpretation was sensible one in accord with the justice of the situation. I would allow the appeal and set aside the decision and order of the Chambers judge. There should be no costs to either party on this appeal. Chipman, J.A. Concurred in: Hallett, J.A. Flinn, J.A. 1994 S.H. No. 107846 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DONALD LANGLEY -and­- WORKERS' COMPENSATION BOARD OF NOVA SCOTIA DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Gordon A. Tidman on September 22, 1994, in Chambers DECISION: November 4, 1994 COUNSEL: Louis M. Walsh, Solicitor for the Applicant Graham J. Steele, Solicitor for the Respondent C.A. No. 113623 NOVA SCOTIA COURT OF APPEAL BETWEEN: WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA -and- DONALD LANGLEY Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A.","The appellant Board granted the respondent temporary total disability benefits on a part-time basis. The respondent contended that it should be on a full-time basis, and applied to the Supreme Court in chambers for an order quashing the appellant's decision. The chambers judge found that the appellant had ignored the clear words of s.37 of the Workers' Compensation Act in reaching its decision, and thus had exceeded its jurisdiction; the decision was quashed and the matter remitted back to the Board. The appellant appealed. Allowing the appeal and setting aside the order to quash, that s.37 of the Act was not a section limiting the Board's jurisdiction and that, considering s.37 and s.53 of the Act, the decision of the Board was not patently erroneous.",3_1995canlii4243.txt
279,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Burnac Corporation v. United Dominion Industries Corporation, 2007 NSSC 40 Date: 20070208 Docket: SH 160320 Registry: Halifax Between: Burnac Corporation v. United Dominion Industries Corporation Defendant Judge: The Honourable Justice C. Richard Coughlan Heard: October 2-4, 10-12, 16-19, 23-25, 30-31, November 1-2, 6-8, 14-16, 2006, in Halifax, Nova Scotia Decision February 8, 2007 Counsel: Aidan J. Meade and Kevin D. Gibson (Genevieve Dawson on October 10-11, 2006 only), for the Plaintiff Michael J. Wood, Q.C., Ronald S. Noseworthy, Q.C. and Cory Withrow, for the Defendant Coughlan, J.: [1] The roof of the Sears store at the Village Mall in St. John’s, Newfoundland collapsed February 9, 1987. Then, in January, 1995, the roof of the Centrac warehouse in Mount Pearl, Newfoundland collapsed. Both buildings were constructed with open web steel joists fabricated by Robb Engineering of Amherst, Nova Scotia. The Association of Professional Engineers and Geoscientists of Newfoundland notified professional engineering associations across Canada there could be structural problem with open web steel joists fabricated by Robb Engineering between 1970 1985. The Association of Professional Engineers of Nova Scotia provided the Province of Nova Scotia with list of contracts in Nova Scotia that contained Robb Engineering open web steel joists. The Nova Scotia Department of Housing and Municipal Affairs wrote owners of buildings containing Robb joists, recommending open web steel joists fabricated by Robb Engineering between 1963 and 1985 be inspected by qualified professional engineer. [2] The owners of the Mayflower Mall, Sydney, Nova Scotia received the notification. Consulting engineers were engaged to verify the presence of Robb joists in the Mall. An inspection was carried out and report prepared. [3] The report stated that of 1,900 open web steel joists which could be inspected, total of 199 or 10.5% were found to have at least one panel point with broken or missing weld. The average for buildings inspected in Nova Scotia containing Robb joists was 2.28%. The evidence of experts for all parties is cracked or missing weld is danger and must be repaired. The report set out proposed remediation scheme, which was the same as implemented by the Nova Scotia Department of Transportation and Public Works for the Government’s own buildings. The owners, concerned with safety issues arising from the report, followed the consultants’ recommendation and undertook the remediation of the Mall. [4] Burnac Corporation, the owner of the Mayflower Mall, claimed against United Dominion Industries Corporation, of which Robb Engineering was a division, for the cost of the inspection and remediation of the Mall. United Dominion Industries says the actual repairs to the welding and webs of the open web steel joists were necessary, but the reinforcing of the joists undertaken in the remediation was not necessary to repair defects to the joists and mitigate the danger. [5] The issues for the Court are: Were there defects in the open web steel joists manufactured by the defendant? Was there real and substantial danger to the occupants of the Mall? Was that danger caused by the defendant’s negligence? Were the repairs and remediation undertaken by Burnac required to alleviate the danger? [6] The Mayflower Mall was constructed in 1979. United Dominion Industries Corporation, formerly United Dominion Bridge Company Limited, admits it fabricated, transported and erected the open web steel joists in the Mayflower Mall. [7] Robb Engineering, wholly owned subsidiary of United Dominion Bridge Company Limited (Dominion Bridge), was located in Amherst, Nova Scotia. Robb had various divisions. One division was engaged in the fabrication of open web steel joists. The joists at the Mayflower Mall were fabricated by Robb Engineering. [8] Carl Freeman Smith was Welding Supervisor at Robb Engineering from approximately 1967/1968 until he retired in 1985. He supervised welding in all Robb Engineering divisions. Approximately 25% of the welding at Robb Engineering was on the joist line. As general rule, less experienced welders worked on the joist line. There were welding data sheets prepared by the Engineering Department to provide welders with information concerning particular weld welder was to make, including type of joint, number of passes to be made and type of electrode to be used. Mr. Smith kept the data sheets on the walls of his office so the welders could see them. There were no welding data sheets for joists. [9] The joists had top and bottom chords, each chord had two lengths of steel plate on angles called chord members, with round bars between them called web members. The web members connected the top and bottom chords. The web members were welded to the chord members. Where the web and chord members are connected by welds are called joints, panel points or nodes. Joists were of various lengths. [10] Joists were assembled in jig. The top and bottom chords on one side were placed in the jig. Then the web rods were put in place and tack welded. Next, the remaining top and bottom chord angles were put in place. The joist was clamped in the jig and flipped. The joist was then standing up. Two welders welded one side of the chord angles. One starting at the end of the joist and working toward the centre, the other starting at the centre and working toward the other end. When one side was finished, the joist was flipped and the other chord was welded. The welds used were flare beveled and puddle welds. [11] Once the welders were finished, the joists were put on trolley and went to be painted and dipped in tank of paint. There were no inspection of the joist between welding and painting. [12] There was no standard way to pile joists for inspection. The joists were in pile which allowed an inspector to see either the top or bottom chord, depending on how the joist was placed on the pile. What the inspector could not see was not inspected. The amount of work in the plant determined how much Mr. Smith inspected. If he was busy, he had no time to inspect joists. Mr. Smith said Norman Ellis was an inspector who he thought inspected joists once day. Mr. Ellis did inspections other than joist inspections. There was another person who did joist inspections, but Mr. Smith did not know how often he conducted inspections. Mr. Smith agreed on cross-examination there could be joists not inspected. [13] Michael John Pates was employed by Dominion Bridge from June, 1976 until September, 1986. metallurgical and welding engineer, he became welding engineer for Robb Engineering in May, 1978. Prior to that he had worked on the welding at Robb Engineering. Mr. Pates visited Robb Engineering about four or five times year, each visit lasting two days. Robb Engineering was one of Dominion Bridge’s smaller operations. [14] At Robb Engineering, the shielded metal arc welding process, also known as stick welding, was used in the fabrication of joists. [15] Mr. Pates thinks his first visit to Robb Engineering was on May 19-20, 1977. He observed problems with the welding of open web steel joists. The joists could not be inspected to determine if weld was acceptable as the welds were covered with slag. During welding, weld is in molten state. Slag floats to the surface and covers the weld. Slag should be removed. If slag is not removed, it hardens and makes it impossible to inspect the weld. With slag present, one could not see if there was cracking or fusion problem with the weld. He had been told by his colleagues at Head Office there was problem with welding at Robb Engineering. [16] Following his visit, Mr. Pates wrote letter dated May 31, 1977, addressed to Mr. L. H. Naylor, Robb Engineering, Amherst, the subject of which was “visit re welding practice and procedure”, which stated in part: As you are aware, the situation regarding the control of the quality of welding during the fabrication of joists is not satisfactory. This is due, in part, to the non-removal of slag after shielded metal-arc welding of the flare-groove and puddle welds, which makes it virtually impossible to inspect for weld length and freedom from defects. Whilst appreciating that program does exist to provide an ongoing quality surveillance, this clearly cannot be performed successfully on welds which are masked by slag deposits. Further areas of concern are: 1) The control over throat sizes of flare-groove joints when no approved weld data sheets exist designating welding parameters proven to have produced deposits meeting the design throat thickness. 2) The use of Jetweld #3 electrodes which are not certified by the Canadian Welding Bureau. Successful joints could be established on the basis of direct throat measurements on sectioned welds deposited under controlled welding conditions. Acceptable welding parameters could then be submitted to the Canadian Welding Bureau for approval. [17] Mr. Pates was trying to get the joist line under control. [18] He then visited the Robb Engineering facility on September 29-30, 1977. The welding in the joist line was the same as during his previous visit. [19] The joist line remained problem during Mr. Pates’ visit to the Robb Engineering plant on January 24-25, 1978. There was no control over how the welds were made. [20] Mr. Pates made further visit to Robb Engineering on April 18-19, 1978. meeting was held, attended by Mr. Pates, Lionel Naylor of Robb Engineering, Carl Smith, Robb Welding Supervisor, R. Fisher and R. Golec, Seniors Managers of Robb. Mr. Pates summarized the discussions concerning the joist line in letter to Mr. Naylor dated April 24, 1978 as follows: Joist Line The comments of our initial meeting held in the earlier part of this year were pursued further. In addition to ourselves, R. Golec, S. Fisher and C. Smith were present during these discussions. Various aspects relating to the joist fabrication were discussed and it was agreed that welding consumables used on the line must be brought in line with code requirements. It was decided that the GMAW process was the best candidate, and that Robb should forward flare groove throat sizes, lengths, etc. which would satisfy the latest addition of W59.1 where specific reference to flare groove joints is made (see attached copy). Once this design information is available then work on GMAW deposits, using representative joints, may proceed in the laboratory. The distortion problem, where some joist (≻40') were experiencing sweep in the top chord and an “S” type sweep in the bottom chord was traced back to the rigidity of the jig being used in the shop. This jig needs to be redesigned in order to maintain chord tolerances. [21] Mr. Pates again visited Robb Engineering June 14-15, 1978. At that time the joist line was not in operation due to lack of work. Mr. Pates stated that from his recollection while other areas of the Robb Engineering facility were not bad, the joist area felt like it was off limits. It was dirty. [22] There was an ongoing attempt to improve the welding process on the joist line. joist line program was established to investigate changing the welding process to bring the line within the National Building Code without the need to “deslag” the welds. [23] Tests were carried out and report entitled “Joist Assemblies Robb Engineering. An Investigation into Present and Alternate Welding Processes” dated July, 1979 was prepared. Mr. Pates was an author of the report. The purpose of the test and report was to determine if an alternate welding process could be used to meet the Code without the need to deslag. Samples of production welds from Robb Engineering were sectioned and examined. Weld metal cracks were evident in the samples examined. The report concluded, strict quality control program needed to be established at Robb Engineering. Such program was not implemented during Mr. Pates’ involvement with Robb Engineering. The report recommended all joists be deslagged to allow for routine inspection for weld quality and weld length. Mr. Pates stated the report raised concerns in his mind, but he was told by Messrs. Fisher and Golec there was no need to deslag as there had never been failure, load tests had been performed and joists performed satisfactorily. Prior to the report, no deslagging was allowed. [24] During visit by Mr. Pates to Robb Engineering on September 25-26, 1979, presentation was made to Robb senior management dealing with joist line problems. It was decided action was to be taken to improve the quality of welding on joists. In letter to Mr. L. Naylor dated October 2, 1979, Mr. Pates set out the course of action agreed upon: Further tests on production joists also showed that many of the end joints, where the larger diameter bars had been used, contained similar linear defects. After discussions with yourself and Carl Smith, presentation was made to R. Golec, R. Crossman and S. Fisher. The outcome of this meeting concluded that, effective immediately, the following steps would be undertaken to bring the welding of joists to quality acceptable to Engineering. 1. Electrodes will be changed to E7014 and all craters will be filled. 2. The three critical end joints will be deslagged and inspected on all joists. These will be subsequently inspected by MPI until we have the assurance that the cracking problem has been overcome. 3. One joist per shift will be deslagged completely and inspected by Carl Smith. MPI inspection may be performed at Carl’s disgression (sic). Additionally, the following work will be performed: a) Carl will carry out tests to find the best parameters for flare groove joints. Data sheets will be made up for these and welders will carry out trial welds which will be sectioned at the centre and end to assure that penetration is achieved. Welders will carry out such tests at regular intervals; this approach to checking the quality of their work will mean that it becomes unnecessary to section production joists at this time. b) Engineering would look into the possibility of increasing the bend radius of the webs to allow for less downhill welding. c) Management indicated that they would be looking into the procurement of new bending equipment in the coming year. This would be extremely beneficial in reducing bad fit up and would therefore increase weld quality. d) All joists incorporating 1"" diameter and 15/16"" diameter bars at the critical end joints, and which are now lying in the yard, will have these welds repaired according to the procedure agreed between Carl and myself. e) document incorporating welding data sheets and correct welding and inspection procedures will be drawn up by ourselves to act as control document for the short span joist line. The meeting concluded that the situation regarding inspection should be reviewed with time once the weld quality had improved to our satisfaction. It is my opinion, however, that the decisions made at the meeting represent minimum inspection and that we should maintain such system for all future joists. During my visit, we also discussed the puddle joints on the joist line, and it was thought necessary that we should carry out some mechanical testing of typical joists in the R&D Centre at Lachine. enclose copy of Report No. L106/1/73 which describes the testing of flare groove joints and this may be of help to you in the design of relevant jig. [25] Testifying about the above items, Carl Smith stated with regard to item numbered one, the electrode was changed and some of the craters filled. With regard to item numbered two, the three end joints were deslagged and inspected on all joists. The MPI inspection was carried out. With regard to item numbered three, one joist was completely deslagged and inspected by Mr. Smith on few occasions. Due to his workload, Mr. Smith was unable to say how many times he conducted such an inspection. Mr. Smith testified the work set out in items a) and e) was not done. Items b), c) and d) were done and, with regard to item d), insufficient welds on the end joints were found and the welds were increased. [26] Mr. Smith was aware Robb Engineering advertised their joists as complying with CSA (Canadian Standards Association) W59 Standard (Welded Steel Construction (Metal Arc Welding)). He was aware the joists were not fabricated in accordance with it. He was told by Robb management they could not make joists in compliance with W59 and stay competitive. [27] Mr. Pates complained that contrary to CSA W47.1 (Certification of Companies for Fusion Welding of Steel Structures), Carl Smith had too many duties. The Standard required welding supervisor be employed full-time in that position. [28] Mr. Pates stated he had concerns joist welding may be danger to the public, but did not inform his supervisors of his view. Mr. Pates tried for over two years to have data sheets for joist welding produced. Although Mr. Smith knew CSA W59 required data sheets be prepared, welding data sheets for joists were not prepared. [29] An Advisory was issued by the Department of Housing and Municipal Affairs and sent to owners of buildings thought to be constructed with Robb open web steel joists. As result of the Advisory, the owners of the Mayflower Mall commissioned an inspection of the Mall. CBCL Limited, assisted by fga Consulting Engineers Limited, was retained to conduct the inspection. The inspection took place from September to November, 1998. To limit the disruption of Mall operations, for the most part the inspections took place between 11:00 p.m. and 6:00 or 7:00 a.m. James Bradley Kennedy, civil engineer employed by CBCL Limited, was lead engineer on the project and involved in preparing the inspection report. The purpose of the inspection was to inspect the joists in the Mall and look for cracked, broken or missing welds. Mr. Kennedy also inspected some joists. Most of the joist inspections were conducted by Darrin Frederick McLean, professional engineer employed in the Sydney office of CBCL, and by Kevin James Pinhorn, Level II welding inspector, certified by the Canadian Welding Bureau. Mr. Pinhorn was also certified welder and pipe fitter. Mr. Pinhorn was employed by fga Consulting to work on the project with CBCL. Each of Messrs. McLean and Pinhorn testified he inspected about 50% of the joists in the Mall. An inspection sheet was prepared for each weld inspected. The inspectors were looking for bent web and chord members and missing or cracked welds. [30] The same procedure was used by all inspectors. The bottom chord of the joists was approximately two feet above the 14 foot ceiling, with the top chord 26 to 30 inches above the bottom chord. Ceiling tiles were removed and the inspectors climbed stepladders which were as high as 14 feet. As there was no light above the ceiling tile, flashlights were used. Inspectors also used prybars, approximately 18 inches in length. The inspectors looked at joint to determine if weld was present. If weld was present, the prybar was placed between the web and chord member and pressure applied to determine if there was separation. If there was movement, that indicated cracked weld. If the weld was sound, nothing happened. [31] All accessible panel points on all joists were inspected. There were difficulties in conducting the inspections. Mr. Kennedy testified some of the joists were inaccessible and could not be inspected. Some of the welds on the top chord could not be seen as the deck of the Mall’s metal roof was sitting on the top chord. Where possible, on the top chord, the top of the weld was inspected with the aid of small inspection mirror. [32] Mr. McLean testified not all welds were visually accessible because of duct work, piping or where the corrugated metal roof rested on the top of the joist. In addition to resting on the top of the joist, the roof was spot welded to the joist. The joists were painted which affected their visibility. There were also cracks on the bottom chord not visible without using prybar. In general, it was difficult to see cracks on the top chord. The inspection mirror could not be used to examine welds covered by the roof deck. [33] Where the roof deck was attached to the top chord, the length and width of the weld could not be measured. The inspectors were not able to inspect all welds or joists, and some welds or joists were enclosed by drywall or duct work. [34] Mr. Pinhorn testified it was physically impossible to measure the length or width of welds on top chords as he could not get tape measure there. Where the roof deck rested on the top of the joist, he could not see welds. Where the roof deck was raised, he could use mirror. Not all areas of the joist could be accessed because of obstructions, such as gyprock, conduits and wiring. In those areas he could not see the welds. There was slag all over the joints on the bottom chords, as well as the ones he saw on the top chords. Where slag covered welds, he could not see the welds. [35] While Mr. Pinhorn was not asked to determine the quality of the welds, he observed weld quality was poor, with porosity, overlap and undercut present. He did not record all porosity, slag or undercut, but testified it was persistent. He described some of the welds as being as “thin as an eggshell”. [36] After inspection of the joists was completed, CBCL prepared report and fga Consulting commented on it. The report stated, “In general, welding quality was poor with weld failures and poor fit up noted throughout.” Of the 1,900 open web steel joists inspected, total of 199 or 10.5% were found to have at least one panel point with broken or missing weld. Also 84 joists were found to have one or more bent web members and 40 joists had one or more bent chord members. It was Mr. Kennedy’s opinion the majority of the bent members occurred during construction. One web member was missing and another was broken. The report recommended the remediation scheme implemented by the Nova Scotia Department of Transportation and Public Works be adopted for the Mayflower Mall. [37] Gary Follett, President of fga Consulting Engineers Limited, was qualified as an expert in welding engineering matters and structural engineering, entitled to give opinion evidence in those areas. Mr. Follett is professional engineer. He has extensive experience with Robb joists. [38] After the partial collapse of the roof at the Village Mall, fga Consulting was hired to inspect the part of the Mall that had not collapsed. The company became more involved until the Mall owners relied solely on fga Consulting concerning engineering matters respecting the collapse. Fga Consulting carried out detailed inspection. The company found cracked joists and welding errors. Welds full of porosity and with very little penetration were observed. There were lot of faults with the welding. He saw puddle welds from the Village Mall which were little more than blob of metal on an end of rod. [39] In January, 1995, the Centrac roof collapsed. Fga Consulting was hired to assist with the inspection and advise regarding welding matters. The quality of the welds inspected was poor. As Mr. Follett said, there were more problems than normal, even for building constructed with Robb joists. [40] Mr. Follett was appointed to the Open Web Steel Joist Review Committee for the Province of Newfoundland. The purpose of the Committee was to determine how the problem concerning open web steel joists was to be addressed. The Committee visited every Newfoundland government building containing open web steel joists. If building contained Robb open web steel joists, it was inspected and remediation program developed. [41] Subsequently, Mr. Follett was hired as consultant to the Open Web Steel Joist Working Committee established by the Province of Nova Scotia. The Committee’s mandate was to assess the Robb open web steel joist issue, determine if problem existed in Nova Scotia and recommend the appropriate action to correct any problems. report dated July 8, 1998 titled “Open Web Steel Joist Investigation Interim Remediation Report” was produced. Mr. Follett authored the report. The report dealt with the proposed remediation of buildings owned by the Province of Nova Scotia constructed with Robb open web steel joists. [42] The inspection of public buildings in Nova Scotia constructed with open web steel joists fabricated by Robb Engineering resulted in the determination 2.28% of joists had at least one failed joint, that is, at least one cracked or non-welded joint. The comparable failure rate in Newfoundland was 8.3%. [43] The report stated there are in excess of 22,000 joists in public buildings containing more than 65,000 panel points or joints. It was assumed every second or third top chord panel point was inaccessible for inspection due to the down flute of the building’s roof and, therefore, between 113,000 and 168,000 joints could not be inspected. Additional joints were inaccessible due to the location of mechanical equipment. [44] Section 4.0 of the Nova Scotia report contains discussion of inspection results and states in part: The theory of brittle flare bevel welds contributing to the weld cracks is supported by the random nature of the location of these cracks. Figure seems to imply that the cracks have occurred throughout the joist as opposed to the more highly stressed location which in turn seem to suggest that many of the cracks are not service related. Joists in length categories and (10 to 14 m) have more cracks on percentage basis. Initially this would appear to be service related. Such may not be the case, these failures may not be related to the susceptibility of longer joists to cracking during handling, or to the fact that the longer joists have larger members, which means faster cooling rates and thus higher hardness. Once again further investigation to determine the mode of failure would be advisable. Figure certainly does indicate marked increase in failures above length category 4. This suggests additional remediation may be advisable around the or 10 length and above. [45] remediation scheme was proposed with buildings categorized on the basis of the percentage failure and age. In buildings that had satisfactorily performed for twenty years and had failure rate of 1% or less, only failed welds or members would be repaired. The remediation scheme was divided into various levels as follows: Proposed Joist Remediation (Roof Floor) Category Description Suggested Remediation (Prel.) Level Includes any joist: 1) with span exceeding 9m, or 2) in snow build up area (ie. high low roofs) or 3) in high floor load areas (i.e. libraries, stockroom, etc.) or 4) in an area with excessive failures, or 5) that has more than two (2) failed joints. 1) Carry out 100% inspection and make necessary repairs to joints. 2) Install spacers in compression chords where force is ≥50% of the maximum force. 3) Reinforce members/panel points on each end until resultant shear force ≥50% of end value. Level II Includes any joist: 1) with span between 4m and 9m inclusive, and 2) that is in non-snow build up area. 1) Carry out 100% inspection and made necessary repairs to joints, and 2) Install spacers in compression chord where force is ≥50% of the maximum force. Level III Includes any joist: 1) with span less than 4, and 2) that is in non-snow build up area. 1) Carry out 100% inspection and make repairs. Level IV Includes any roof joist: 1) designed to 0.6 snow load factor and, 2) with failures or obvious deficiencies. Note for joist designed to 0. with no failures or obvious deterioration, treat at Level I, II, or III above. 1) Analyse and upgrade to 0.8 snow load factor Note: 100% inspection for joint failures must be carried out for all buildings, regardless of category. [46] During remediation, Mr. Follett visited the Mayflower Mall. He looked at existing welds, as well as the remediation. The existing welds were typical of what he saw elsewhere. He saw undercut, porosity, slag not removed, cracked welds and missing welds. There was inconsistent profile of welds present. The weld would meet requirements and then get narrower. He observed craters. Mr. Follett did not see any evidence of base metal flaws or overstressing at the Mall. [47] Mr. Follett said, in construction, one first turns to the National Building Code, which is Code of minimum requirements for buildings or structures. An engineer should design to the Code. company should build to the Code. The Code requires conformation to CSA S16.1 (“Steel Structures for Buildings”), which requires welding design and practice to conform to CSA W59 (“Welded Steel Construction”) and that the welding be carried out by company certified to CSA W47.1 (“Certification of Companies for Fusion, Welding of Steel Structures”). This was summarized by Mr. Follett in his report “Open Web Steel Joist Remediation, Mayflower Mall, Sydney, Nova Scotia” dated January, 2004 as follows: Essentially, for structural steel units such as OWSJ’s to be termed “safe” it should have at least been welded by company certified to CSA W47.1 who should have followed welding procedures which were approved by the Canadian Welding Bureau (CWB) as the W47.l Standard administrator. Through the approval process for these procedures, the company should have verified that competent weld could be produced. The certified company should have then used welders who had current certificates of competency, certifying that they were capable of completing the required weld. This should have been done under the supervision of welding supervisor who was accepted by CWB as possessing sufficient knowledge and experience as stipulated by CSA W47.1. [48] The flare beveled welds and puddle welds used in Robb joists were not pre-qualified. If fabricator intended to produce weld not pre-qualified by the Canadian Welding Bureau, the following procedure should be followed. The fabricator first should satisfy itself it could consistently develop weld to comply with the Standard and design. Then the fabricator would prepare test of the weld witnessed by representative of the Canadian Welding Bureau. The Bureau, in turn, would test the weld to determine if the procedure was valid and whether the welder could receive “ticket” to make that weld for that particular company. Subsequently, other welders would be tested by the Bureau to determine if they could receive “tickets” to make the weld. [49] Welding data sheets are prepared, which are, as Mr. Follett described them, instruction sheets as to how to make weld. They contain instructions to welders as to how to make particular weld. Mr. Follett testified the accepted procedure is to be consistently followed to ensure there were no cracks in roots of welds as, in the field, there is no non-destructive way of determining if there is crack in the root of weld. [50] Mr. Follett said joists with cracked and missing welds would not get out of the Robb plant if proper procedures were followed. He said it was shoddy practice. He did not consider the welding adequate, nor the Mayflower Mall safe. If weld was missing or cracked, it had no capacity. Mr. Follett said anyone can make mistake, but to have 19 joists containing joint not welded is astonishing. It calls into question the fabricator’s attention to quality. Anyone should see if weld is missing. 10.5% of joists with missing or broken weld, as at the Mayflower Mall, is monstrous number. [51] In the Mayflower Mall 1.6% of joists had three or more broken or missing welds. Many of the failures were not in the most stressed areas, which indicated to Mr. Follett cracks occurred as result of poor welding. Mr. Follett testified with Robb joists in general he noticed failures occurred in groups, with no apparent reason for the failure. The failures were random. [52] Mr. Follett testified if he knew the welds had been made by welders following approved procedures, properly qualified, with all checks in place, he could have confidence in the welding. The problem with Robb joists was he had information welders had failed welding tests, there were no approved procedures, non-standard weld was being produced without acceptance by the Canadian Welding Bureau. Measuring the length of welds could be valid approach to determine the strength or capacity of welds if you knew the fabricator followed approved procedures in making the welds. However, given Robb Engineering’s practices, he could not understand how measuring the outside of weld could give one confidence. Many of the welds he saw could have been measured, but were cracked. [53] Mr. Follett testified there were problems in inspecting joists. The roof deck of the Mayflower Mall rested on the top chord of the joists, which made much of the top chord inaccessible and impossible to inspect. He also testified it was near impossible to measure welds on the top chord. [54] The remediation program provided for placing spacers on the top chord of joists. In addition to connecting web members to chord angles, welds held chord angles together. The spacers were added as the engineers considered the welds inadequate to prevent lateral movement. [55] Commenting on the use of prybar to inspect welds, Mr. Follett said such little force is used it should not break weld. He said he would like to see the man who could take an 18 inch prybar, stand on top of ladder and apply enough force to break weld. He had never seen such man. [56] Emad Pasha, Director of Construction for Burnac Corporation, was involved with the Robb joist issue at the Mayflower Mall. He reviewed the Mayflower Mall joist inspection report. The company was concerned about safety issues arising from the report’s findings of joint failures four times higher than the Nova Scotia average. Safety was not to be compromised. He reviewed the remediation program. He was of the opinion the remediation recommended by the report should be implemented. Burnac should do what the Province was doing to their own buildings. Burnac authorized the recommended remediation. [57] Tender documents were prepared and the job was tendered through requested bids from companies with experience with Robb joists. Bids were received, but were considered high. The consultants made suggestions to reduce costs. Lower bids were received, but still considered high. The bidders were told the numbers were high and lower bids were received. The job was awarded to Metal World Incorporated. [58] CBCL and fga Consulting were involved in the remediation project. [59] George Byron Crocker Level II welding inspector, certified by the Canadian Welding Bureau was employed by fga Consulting in association with CBCL on the remediation project. He commenced work on the project in January, 2000. Mr. Crocker carried out inspections on joists which had been previously inaccessible, as well as joists after remediation was performed. When conducting an initial inspection, he visually inspected the chord when he could see it. He could not see all the welds on the bottom chord. Sometimes the welds were covered by slag or paint and he could not see whether the weld was cracked. Mr. Crocker applied pressure with prybar to determine if the weld was cracked. He used the prybar on both the top and bottom chords of the joists. It was harder on the top chord, as sometimes you could not apply enough pressure. He did not want to apply too much pressure on the top chord as he might break spot weld which attached the roof deck to the top chord, or bend the chord. Mr. Crocker testified he had never broken good weld with prybar. He described the welding at the Mayflower Mall as of poor quality throughout. There were missing welds. He saw burn through, undercut, overlap, porosity, crater cracks, unfilled craters, undersized welds and blobs of metal. [60] Dr. Ralph Edward Southward, professional engineer, President of Southward Consultants Limited, was qualified as an expert entitled to give opinion evidence in structural engineering and in welding engineering as that relates to welded steel construction, welding design, welding procedure and welding practices, and the quality and capacity of welds in construction, including open web steel joists. Dr. Southward was member of CSA W47.1 “Certification of Companies for Fusion Welding of Steel Structures” from 1979 until 1996, and member of CSA W59 “Welded Steel Construction (Metal Arc Welding)” since 1979. He has chaired CSA W59 since 1994. He has doctorate in structural engineering from Cambridge University. [61] Dr. Southward was retained to review the report “Mayflower Mall Joist Inspection” prepared by CBCL and fga Consulting, and comment on the reasonableness of the proposed remediation. He was also asked to comment on the original welding of Robb open web steel joists. [62] Dr. Southward testified there is unique welding system in Canada. Most countries are working toward our system. The National Building Code places obligations on companies. Quality in production is needed to ensure the public is safe. The public assumes buildings are safe. CSA W47 was written in 1947. It establishes the protocol in Canada for quality control in steel fabrication shops. The Standard requires engineers be involved in and take responsibility for the design and work of steel fabricators. To ensure proper procedures and designs are in place, CSA created the Canadian Welding Bureau to manage the Standard. Professional engineers take responsibility. The fabricator has to have full-time welding supervisor. In addition, welders have to pass Standard tests and be tested every two years. Welders are tested for the process, position of welding and type of welding. Welders have to be certified by the Bureau on each type of welding they do. Robb Engineering did shielded arc welding. There are standard welding configurations in the industry. Welders’ “tickets” for flare beveled welds are normally transferable from company to company if the welder changes jobs, but the Canadian Welding Bureau provides “tickets” for flare beveled welds in open web steel joists are not transferable. Canadian buildings generally have very high safety level. The fabricator does the engineering, supervision and ensures competent welders, all supervised by the Canadian Welding Bureau. [63] There are welds the Bureau has pre-qualified. There is an obligation on the fabricator to do the work properly. If the Standard is followed, one can assume welders could do proper job. fabricator is not restricted to using pre-qualified welds. If the fabricator wishes to use different joint or weld, it would have to prove it. The fabricator prepares procedure and test joint and submits it to the Canadian Welding Bureau. The Bureau reviews the procedure, tests the weld and determines if the weld is acceptable, and if so, qualifies the fabricator to make the weld. [64] About year after the roof of the Sears store in the Village Mall collapsed, Sears asked Dr. Southward to review information concerning the collapse. After reviewing the joists involved, he had real concerns about the welding at Robb Engineering. Then, after the Centrac collapse, Dr. Southward was asked to give his opinion of the welding of the open web steel joists used in the roof. What he saw outside the collapsed area at Centrex was consistent with what he observed at the Village Mall examples of what you do not do in welding. He could not rely on the quality of Robb joists when there are joists with missing or cracked welds. It is unheard of in Canada to have all these joists with missing or cracked welds. [65] Dr. Southward visited the Mayflower Mall in July, 1999. At the Mall, he observed missing welds and lack of fusion. For example, he saw puddled weld welded across two web rods with minimal or no welding to connect the angle on the left side, and there was no fusion between the web members and the right chord. He also observed poor fit-up of web members to the chord angles. Poor fit-up is concern. In the fabrication shop, the web members are pre-bent and brought to the welder. The web rods should be of fixed length. Therefore, if there is poor fit-up in one chord, there will be problem with poor fit-up in the other chord. With poor fit-up on the bottom chord, Dr. Southward has concern for the welding on the top chord. [66] The only practical way to inspect welds in open web steel joists is visually. Radiographic and ultrasonic methods of testing are not appropriate for welds in open web steel joists. In commenting on the possibility of determining the effective throat or capacity of weld by measuring the weld from the outside, Dr. Southward referred to figure 21 in Mr. Pates’ July, 1979 report “Joist Assemblies Robb Engineering. An Investigation into Present and Alternate Welding Processes”, in which there appears to be large gas pocket and crack at the root of the weld. There is no way to see that crack in the field. An outside measurement would not tell you the strength of the weld because of the defect in the root of the weld. It is difficult, virtually impossible, to examine welds non-destructively. [67] Both CSA S16 and CSA W59 require slag be removed from welds at the time the welds are made. Slag prevents the inspection of welds. [68] Dr. Southward testified cracks are not acceptable. The Standards do not allow for cracks to exist. crack means joint cannot carry load. One cannot rely on weld with crack in it. Cracks have to be corrected. missing or cracked weld effects the strength of welds. [69] Dr. Southward testified the Village Mall, Centrac and the Mayflower Mall had the same systematic problem. It is difficult to have any confidence in welds if quality control process allows joists shipped with missing or cracked welds it puts the rest of the welds in question. He could not answer the question as to what was the chance of failure if the welds in the Mayflower Mall were not reinforced. No one knew the extent of the lack of fusion at the Mayflower Mall. He could not rely on the quality of Robb joists because of the missing and cracked welds. Dr. Southward did not attempt to determine the capacity of welds at the Mall. [70] Considering the results of the Newfoundland “Open Web Steel Joists Load Testing and Inspection Program Final Report”, Dr. Southward concluded in his report: Since “broken” weld should not exist in properly designed and fabricated open web steel joist, these findings represented very real and substantial risk of collapse, and concern for the safety of the public. [71] In response to question as to what effect prybar may have on sound weld, Dr. Southward stated he did not think an inspector with an 18 inch prybar would generate enough force through his body weight and strength to fracture welds if they were sound welds of adequate size to do the job they were expected to do. [72] Dr. Southward accepted the remediation approach adopted for the Mayflower Mall. He said it was not practical to do rewelding on the top chords as it was hard to get at the chords. The remediation program was necessary. The Mall contained higher number of missing or cracked welds than the Nova Scotia average 10.5% versus 2.28%. Welds were covered with slag. Considering Robb Engineering’s welding procedures, there was no way to know if the welds had strength. There was no method available to test the strength of the welds that remained at the Mall. Just repairing the missing or cracked welds at the Mall was not sufficient to determine the joists were safe. To Dr. Southward, the remediation was matter of public safety, the joists had to be remediated to attempt to establish the reliability expected of Canadian buildings. It was necessary to ensure the remaining welds were all right. [73] With Level remediation for joists thirty feet or more in length, 25% of the joints at each end of the joists were to be reinforced and the missing and cracked welds repaired. Engineers made the decision, not every joint had to be reinforced. At the Mayflower Mall slightly less than 50% of joists were reinforced. Dr. Southward testified it would have been easier to replace the joists, but the decision was made the remediation would protect the public. [74] Spacers were also placed in the top chord in the Level remediation. It was not practical to reweld the cracked welds on the top chord with the roof deck sitting on the top chord. It was not acceptable to weld over cracked weld. W59 is clear the crack is to be removed. The chord members of Robb joists were designed so as not to require spacers. Spacers were included in the remediation program to provide for missing welds or welds that may crack. Spacers were used to prevent chord members from buckling. [75] Dr. Southward said the testing at Memorial University reported in “Open Web Steel Joists Load Testing and Inspection Program Final Report” only provided information about the welds tested. He did not place lot of weight on the test. Nothing in the report indicated remediation was unnecessary. The purpose of the testing was to give confidence in the remediation scheme. [76] In the 2003 edition of CSA W59, flare beveled welds are now pre-qualified for applications other than open web steel joists. There was not any discussion to extend flare beveled welds’ pre-qualification to open web steel joists. In his report, Dr. Southward sets out his conclusions as follows: 1. The rate of failure of Robb Engineering open web steel joists indicated something was fundamentally wrong. 2. Since “broken” weld should not exist in properly designed and fabricated open web steel joist, these findings represented very real and substantial risk of collapse, and concern for the safety of the public. 3. The problem with Robb Engineering open web steel joist was the welding practices and lack of quality control associated with the fabrication of their joists. Robb Engineering joists did not meet the requirements of CSA Standards S16, W47 and W59. 4. The Mayflower Mall, located at 800 Grand Lake Road in Sydney, Nova Scotia was identified by Robb Engineering as being constructed using their open web steel joists. 5. An inspection of the welding of the open web steel joists in the Mayflower Mall indicated the welding was of greater concern than the welding typically found on other Robb Engineering joists in Nova Scotia. 6. For public safety, the issue of the welding of the Robb Engineering joists at the Mayflower Mall had to be addressed. 7. In our opinion, the remediation program devised for the Mayflower Mall was necessary, and justified, because of the welding practices of Robb Engineering. 8. The remediation program was based on method of repair that was suitable for joists that had already been installed in buildings. The program recognized the joists had existed for some time, and categorised the level of remediation required relative to the risks associated with the potential failure of each joist. [emphasis in original] [77] Dr. David James Laurie Kennedy, professional engineer and professor of engineering since 1956, was qualified as an expert entitled to give opinion evidence in structural engineering and in the research and testing of structural components and welded connections, as well as the design and investigation of steel structures including welded connections in open web steel joists. Dr. Kennedy has doctorate from the University of Illinois in structural engineering. He was member of CSA S16 “Steel Structures for Buildings” from 1962 to 2001, and Chairman of S16 from 1968 until 2001. Dr. Kennedy developed strong interest in steel structures in 1960 and did fundamental work on open web steel joists in 1965. Besides his teaching duties, Dr. Kennedy has been engaged in consulting engineering. [78] Dr. Kennedy stated he was not welding engineer and he did not assess welding practices or procedures in his consulting practice. He agreed Dr. Southward was the expert for W47 and W59. [79] Dr. Kennedy had been involved with Robb’s joist issue since the late 1980's. His involvement included testifying in the trial arising from the Centrac collapse. He was also involved with the Village Mall, the Mall in Summerside and the North Sydney Mall. He has not tested Robb joist, nor Robb flare beveled welds or puddle welds. [80] Dr. Kennedy visited the Mayflower Mall on July 6, 1999 with Greg Saunders of SGE Acres and Joseph Schneider, former employee of Dominion Bridge. Prior to the visit, Dr. Kennedy had copy of the inspection report prepared by CBCL and fga Consulting. The purpose of the visit was to determine if they could corroborate the results of the CBCL/fga Consulting inspection and determine how they could participate in the remediation program, if needed. Messers. Schneider and Saunders visited the Mall and inspected joists prior to Dr. Kennedy’s arrival. Dr. Kennedy read notes prepared by Mr. Schneider which corroborated the CBCL/fga Consulting inspection report. Dr. Kennedy wanted to measure the size of the flare beveled weld and puddle welds, and look at the Mall’s roof. He was on the roof about one hour, but his observations there did not play an important part in his opinion. Using small measuring tape, approximately four millimetres wide, and calibrated calipers, Dr. Kennedy looked at seven joists. He did not inspect all panel points or joints on any joist. None of his measurements were made on the top chord of any joist. None of his measurements were made at the end of joist. Dr. Kennedy’s opinion was the capacity of welds could be determined by measuring the face length and width of welds. [81] Dr. Kennedy testified missing welds, broken welds or damaged end joints are gross defects and constitute danger in building. They must be repaired, he said. In an article he wrote, “Evaluation of structural weld defects”, Dr. Kennedy stated: Cracks. Perhaps of all the defects, cracks are the most serious and under no circumstances should such defects be tolerated. ... Careful control must be provided over welding procedures to prevent cracking in, for example, the case of making welds between heavy parts that are severely restrained. ... Under almost any condition of loading the strength of structural member or welded joint is likely to be reduced substantially by the presence of even very small crack. ... Cracks can be prevented by conforming to proper welding procedures. [82] Dr. Kennedy did not know if the welds at the Mayflower Mall were filled flush. Welds transfer shear forces and hold chord angles together in the top chord. The joints he measured at the Mayflower Mall was very small sample. The question was, what load can Robb joist carry, and Dr. Kennedy said he had lot of data from the Newfoundland report, “Open Web Steel Joists Load Testing and Inspection Program Final Report”. [83] The top chords of joists were more difficult to examine than bottom chords as the roof deck was welded to the top chord. Dr. Kennedy testified it was problem to determine if weld was of sufficient size in the field. On cross-examination, Dr. Kennedy reluctantly agreed you cannot physically measure length and width of welds on top chords. He gave the following evidence: Q. Now if someone wants to measure ... sorry, someone wants to calculate the capacity of weld, you need to measure how much weld is present? A. That is correct. Q. And you need some device to measure, obviously? A. That’s correct. Q. And you used measuring tape to measure lengths ... A. That’s correct. Q. ... in the Mayflower Mall? And you say you used calipers to measure the face width? A. That’s correct. Q. And when measuring face widths, you have to measure number of locations along the length of the weld if the width is not constant? A. That is correct. Q. And then you ... you’d add them all up and average them? But ... my friend walked into that last week. That’s basically what you do? A. That’s correct. You measure them at number of locations when the ... it appears that there’s visible variation in the width. Q. Now for the top chord, Dr. Kennedy, you’d need flashlight to see up there? Q. And you need your tape measure to measure? A. But did not measure any top chord welds. Q. Fair enough. understand that. Q. You’d also need mirror? A. That would be help, yes. Q. Because you can’t see the top of the welds from the top chord because of the presence of the roof deck? A. That’s correct. Q. You can’t get your head up there? Q. So in order to measure let’s say flared bevel weld that’s located in an up flute ... A. Yes. Q. ... of corrugated deck, you’d be at the top of your ladder just about? A. That’s correct. Q. And you have flashlight in one hand? A. I’m going to have three hands here pretty soon. Q. You ... you see where I’m going, Dr. Kennedy. Q. So you’ve got three hands and ... but most of us are short one. We got problem there, don’t we? Correct? A. didn’t ... and didn’t measure any top chord welds. ... acknowledge that, you didn’t measure any top chords. Q. So you’ve got your flashlight in one hand, your mirror in the other hand, and your calipers ... we’re missing hand to do that or ... or the tape measure, whichever, correct? A. Yes. Q. Now, if the ... of course, if the down flute is on top of weld, you can’t get up there to measure anything anyway, can you? A. If ... the down flutes are ... are not as ... harmful is not the right word ... as they’ve been made out to be, in my opinion. Let’s take the flare beveled groove weld that we’re talking about. It goes around the corner. The corner is quite gradual corner. It starts here, goes up, around and down. can still look at the ends. agree with you that cannot get proper estimate of the width of the weld, but can see both ends. Q. So you’d have to estimate the length of the weld? A. You can ... yes, you’d ... you have to estimate the length. You can make mark on the rod at right angles to its length at this end and at that end, and then get that length from ... Q. Okay. A. ... from the inside of the rod. Making allowance for the thickness of the rod, the dam of the rod and you have the length. It is more difficult. Q. Okay, so. Yeah.. Would you agree that it’s ... you cannot practically measure face widths and lengths at the top chord? A. It’s more difficult ... difficult ... It’s ... A. ... and ... Q. It’s very difficult. For example, how do you get your caliper up there to measure the face width? A. You ... you can’t get the caliper, only on the end. And we’ve discussed that issue already. Q. Yeah. So if there are variations in the width, you’re going to be in some trouble with the measurements of the face width. A. So what you do is you say, all of these flare beveled groove welds were made in the same manner. They were made with the welder standing over the joist and looking down and going wooooozzzzz zzzzzzzzz, and then the joist is flipped over and those welds that he just did are now the bottom chord welds, and now we do the top chord welds zzzzzzzzzz zzzzz. So knowing the sequence of welding and measuring the bottom chord welds, it is not very difficult to draw the conclusion that top chord welds are like bottom chord welds, and if can make some measurements on the bottom chord welds is you ... have grasp of the top chord welds. Q. Okay. Coming back to my question though, it’s not practical to actually measure the top chord welds. You’ve just described as ... ... way of estimating the top chord welds, but you cannot practically measure them, can you? A. Well, I’ll ... I’ll say it again. can look at the ends of the welds, and then I’m using my knowledge of the variation in the width of such flare beveled groove welds to say, is the measurement at this end and that end likely indicator of the average width of the weld face. Q. My question is very simple, Dr. Kennedy. A. And thought my answer was. Q. You can’t physically measure them at the top chord the whole weld? A. That is correct. [emphasis added] [84] Dr. Kennedy said if an engineer is looking at any problem, he or she should obtain all information available, for example, if one is looking at Robb joists, the National Building Code, CSA S16, snow data and the Newfoundland testing report. He did not review Mr. Follett’s report, Dr. Southward’s report or the plaintiff’s List of Documents prior to preparing his report. [85] Dr. Kennedy placed great deal of emphasis on the testing done at Memorial University. He said the Newfoundland report shows the reinforcing done at the Mayflower Mall was unnecessary. In the report at p. 31, s. 3.5.3, the following statement is made: The open web steel joists were of two distinct levels of quality. The joists that were obtained from Holy Cross School contained better welds than those obtained from the Mall. The joists from the Mall, however, had many repairs to connections to make them suitable for testing. [86] Dr. Kennedy, who was not present for the testing in Newfoundland, was not prepared to accept that the joists tested were of two distinct levels of quality. He agreed the joists were lying on test bed when tested, with access to all panel points and chords for inspection and repair. He also agreed the rates of broken and missing welds varied from building to building in Newfoundland. Most of the joists tested in the Newfoundland report were repaired prior to testing. Dr. Kennedy agreed fair amount of repairs were made in accordance with W59 and the welds, when tested, were no longer Robb welds. [87] In his report, Dr. Kennedy did two sets of calculations concerning the strength of welds in the Mayflower Mall. Table III was based on factors only added to CSA S16 in 2004, and the equations were not available at the time of the remediation of the Mayflower Mall. The second calculations in Table IV used older factored resistance to calculate effective throat. On cross-examination, Dr. Kennedy agreed the calculations in Table IV were incorrect. [88] Dr. Kennedy testified crater cracks do not propagate in statically loaded structures such as the Mayflower Mall. He stated open web steel joists are designed with redundancies built in, that is, different ways to carry load. In dealing with redundancies in his report, Dr. Kennedy stated at p. 3: These three redundant paths for carrying load exist but are not relied upon in the basic design and fabrication. Neither are they used to avoid necessary repair. But, with the redundancies, an isolated or unknown defect in all probability would not lead to collapse. ...” [emphasis added] [89] Having reviewed the Newfoundland report, Dr. Kennedy testified the puddle welds were fantastic and the flare beveled welds doing their job. In dealing with the Robb joist problem, he said he would ask himself what he has to do to repair the joists to prevent failure. He would repair defects. He would either measure the welds or, on the top chord, use prybar to determine the strength of welds. His opinion is the scheme devised should be the minimum which would allow the joists to do their job, that is, repair major defects. [90] In his report, Dr. Kennedy came to the conclusion 43% of the broken welds at the Mayflower Mall were broken during the course of the inspection by CBCL and fga Consulting. [91] Dr. Kennedy’s opinion was the Level remediation which required reinforcing of 25% of the joists at each end was over and beyond what was required for the structural sufficiency of the joist. The Newfoundland report showed this reinforcing was unnecessary. In the tests in Newfoundland, all welds carried the loads they had to carry. The reinforcing of welds at the ends of joists would not affect welds at mid-span. The puddle welds demonstrated that they carried load in badly damaged situations. Dr. Kennedy was of the opinion the spacers provided for Level remediation were unnecessary. The spacers have nothing to do with transferring shear from chord to web members, but are to prevent lateral buckling. The Robb joists were engineered not to require spacers. If there was broken weld, it should be identified during the inspection. [92] Dr. Kennedy’s conclusions concerning the Mayflower Mall are set out in his report as follows: Summary and Conclusions 1. CBCL and FGA carried out close to 100% inspection of the joists of Mayflower Mall in 1998 which revealed miscellany of defects. 2. At the time of the inspection the roof structure had withstood “the test of time” for about 20 years. 3. limited inspection of the joists by Saunders, Schneider and Kennedy as reported herein indicated that about 43% of the welds reported as broken by CBCL and FGA were broken by excessive prying forces in the attempt to determine which welds were cracked, broken or missing. Damage seven inelastic deformations in the chord angles provides evidence that the prying forces were excessive. 4. Field measurements of the weld face width and length reported herein indicate that the flare bevel groove welds have calculated shear strengths greater than required to transfer the maximum force in web rods to the chord angles. There is no evidence in the CBCL and FGA report that any attempt was made to determine the throat areas of welds and thus to assess or estimate their strengths. 5. The “Newfoundland” report contains two significant series of tests that demonstrate (a) joists with the minimum level of repairs as given by CBCL and FGA carried loads greater than the factored load level and are therefore structurally sufficient and (b) joists with puddle weld severely damaged including the most critical puddle weld at panel point were also structurally sufficient. 6. Since CSA Standard S16.1-1974 came into effect, the capacity of the top chord of Robb joists in their RF series has been based on skew axis buckling of the individual angles and therefore no spacers are needed. They are irrelevant. 7. CBCL and FGA recommend three levels of remedial work. The least extensive, Level III consists of 100% inspection together with repairs to failed joints and bent members. The intermediate Level, Level II, in addition, requires top chord spacers to be installed in accordance with CSA S16.1-94. Much more work is required for highest Level with significant reinforcement of members and panel points over about one-half of the joist span. We consider this remediation scheme based on that proposed in the Newfoundland Report to be inconsistent with the favourable joist strength test results. 8. Based on the two significant series of joist strength tests in the “Newfoundland” Report and corroborated by weld face and length measurement, we opine that the necessary and sufficient remedial work to bring all joists to the desired state of structural sufficiency comprises, following 100% inspection, repair of failed welds and straightening of bent compression members. [93] Stig Rolf Skarborn, professional engineer, President of Skarborn Engineering Limited, was qualified as an expert entitled to give opinion evidence in structural engineering and in welding engineering as that relates to welded steel construction, welding design, welding procedure and welding practices, and the quality and capacity of welds in construction, including open web steel joists. [94] Mr. Skarborn is also Level III welding inspector and is the retained welding engineer for number of companies. His firm was retained by the Department of Supply and Services of New Brunswick to inspect buildings with Robb joists, to provide an opinion as to whether the joists were capable of carrying the load of the building. Mr. Skarborn inspected thirteen buildings for the Province of New Brunswick, as well as two shopping centres, the Lancaster Mall in Saint John, New Brunswick and the Cumberland Mall in Amherst, Nova Scotia. In addition, Skarborn Engineering Limited conducted inspections in Nova Scotia as sub-agent for CBCL Limited. [95] The procedure Mr. Skarborn used was to inspect the first three or four panel points or nodes on one-third of the joists. If there was problem, all joists were inspected. In areas with snow load, the first three or four panel points on all joists were inspected. At school he inspected in Saint Louis de Kent, New Brunswick, there was large number of cracked and missing welds, as well as other problems with the joists. [96] When doing his inspections in the late 1990's, Mr. Skarborn was proceeding on the basis that welding procedure data sheets for Robb Engineering existed. It came as surprise to him that Robb Engineering did not have flare beveled welds approved by the Canadian Welding Bureau. Mr. Skarborn was unaware of Robb’s internal correspondence about the problems with welds. Although he was not at first successful in obtaining documentation concerning Robb’s welding procedure, he eventually obtained welding procedure documentation date stamped 1992. [97] Mr. Skarborn testified crack is defect which is never acceptable and must be repaired, and the problems with Robb joists had to be repaired. [98] Mr. Skarborn wanted to determine the strength of the flare beveled welds and puddle welds used in Robb open web steel joists. He had six Robb flare beveled welds and five Robb puddle welds. That was not sufficiently large sample to make an engineering assessment. Additional welds were simulated for testing. The simulated welds were of superior quality to the Robb welds. Mr. Skarborn tested the welds and concluded if the ratio between the face width and effective throat thickness of weld is established, the resistance of flare beveled weld can be determined by inspection of the weld’s face length and width. Mr. Skarborn’s position was set out in paper by himself and Gary Daneff entitled “Shear Resistance of Flare Beveled and Puddle Welds in Open Web Steel Joist Applications” presented to the Annual Conference of the Canadian Society for Civil Engineering in June, 1998. Mr. Skarborn testified his paper assumed competently made welds. [99] The August, 2003 CSA W59-03 Standard adopted face width and effective throat ratio identical to that used by Mr. Skarborn. The ratio did not apply to open web steel joists. [100] Mr. Skarborn did not know the required lengths of welds when he conducted his inspections. [101] In commenting on Mr. Skarborn’s report, Dr. Kennedy said he was comfortable with Mr. Skarborn’s data. The welds simulated for Mr. Skarborn’s testing were the same as the welds made by Robb Engineering. Dr. Kennedy had confidence in the welds. [102] Mr. Skarborn testified it was impossible to measure the length of welds on the top chord where the roof deck obstructed it. In his report, Mr. Skarborn stated, “Welds on the top chord are almost completely obscured by the deck.” He testified it was impossible to measure lengths of welds which were so obscured. He had difficulty inspecting welds on the top chord it could not be done where the roof deck rested on the top chord, where the roof deck was raised an inspection mirror could be used. He stated it was not an ideal methodology, but was the one they used. There were cracked welds on the top chords when Mr. Skarborn conducted the inspection of the Ellerslie Elementary School in Prince Edward Island. The welds were difficult to repair, but pencil grinder could be used to remove the welds prior to rewelding. [103] Welds connect the two top chord angles to prevent buckling. If weld is not present, the length for assessing buckling is longer. [104] All welds should have slag removed to be inspected under normal conditions. Mr. Skarborn normally insists slag be removed before he inspects weld, but he testified, he is practical man and Robb joists were special case. The presence of slag helped in the inspection. Slag is very brittle and if there was movement, the first thing to happen was the slag would crack. [105] Mr. Skarborn had met Gary Follett at number of conferences. He contacted Mr. Follett when he started working on the Robb joist issue. He attended meeting in Fredericton, New Brunswick, he thinks in late 1997 or 1998, which was attended by Mr. Follett and representative of the Nova Scotia Government, where the New Brunswick approach up to that time was explained. [106] When acting as CBCL’s sub-agent in conducting inspections in Nova Scotia, Mr. Skarborn used the Nova Scotia methodology. Mr. Skarborn agreed it is possible for reasonable engineers to disagree and approach the same problem differently. [107] Michel Comeau, professional engineer, testified and was qualified as an expert entitled to give opinion evidence in structural engineering and the design of buildings, and the investigation and remediation of buildings containing open web steel joists. Mr. Comeau is Principal and Director of Engineering of Campbell Comeau Engineering Limited. He has been member of CSA S16 Technical Committee Steel Structures for approximately eighteen years. [108] Mr. Comeau has dealt with Robb joists since the early 1980's. His firm has been involved in thirty buildings containing Robb joists. Starting in 1998, Mr. Comeau looked after half of the buildings himself. The firm inspected buildings for the Royal Bank of Canada. The welding in the Royal Bank buildings was not particularly bad. In buildings inspected by his firm, only small number of defects were found. He inspected the South Centre Mall where the joists had higher percentage of defects. Mr. Comeau stated defective welds are function of workmanship of the joist fabricator. With poor workmanship, more defects of various types can be expected. One could expect defects inside welds of poor workmanship. [109] Mr. Comeau assumed Robb Engineering was qualified fabricator, with qualified welds and welders. He assumed compliance with all Standards: W59, W47 and S16. The use of Standard W59 and S16 is based on the assumption all welding was done in accordance with W59; if not, the use of S16 for further calculations may not be accurate. [110] In preparing his report dated June 9, 2006, Mr. Comeau did not review Mr. Follett’s or Dr. Southward’s reports. He agreed an engineer should take into account available information when preparing report. [111] Mr. Comeau visited the Mayflower Mall for one-half day on August 10, 1999. He looked at the interior of the Wal-Mart store, the roof area of the mezzanine of the Wal-Mart store and was also on the Mall’s roof. He does not recall if ladder was used during the visit. His inspection was visual, to look at the defects set out in the CBCL/fga Consulting report and the repairs carried out. The repairs he observed were reinforcing plates in the area of broken welds. Vertical plates with welds added to reinforce joists. Joists with three or more defective welds were repaired. Broken welds in joists were observed. Mr. Comeau looked at dozen joists. He did not inspect all panel points on any one joist. He did not measure welds or calculate the capacity of welds at the Mayflower Mall. He did not calculate the forces on the Mall or look at design drawings for the Mall. [112] In discussing the remediation scheme for the Mayflower Mall, Mr. Comeau testified broken or missing welds and bent web members must be repaired. joist with missing or cracked welds should never leave fabricating shop. He stated, the reinforcing of 25% of each end of joists 30 feet or more in length is not necessary if all other defects in the joist have been repaired. [113] Mr. Comeau stated if there is crack at the root of weld, it should be deducted in determining the strength of the weld; but as it cannot be seen from the surface, the strength of the weld would be over-estimated. Mr. Comeau testified the reinforcing of the joists would increase the strength of the joist as it would reinforce 25% of the joist at each end. The spacers added to the top chord stiffen the top chord and increase the strength of the joist if the weakest link is on the top chord. Welds from panel point to panel point determine the buckling length of joist. If weld is broken, the buckling length is the distance between sound welds. Spacers limit the buckling length of the joist if there is missing or broken weld. [114] Mr. Comeau stated it is difficult to see welds on the top chord and is not practical to measure welds on the top chord. If the roof decking is down, resting on top of the joist, the welds cannot be measured you can only look up at the welds. When conducting inspections, the only inspection Mr. Comeau made of puddle welds was to look to see if weld was present and feel it with finger. [115] Mr. Comeau did not know when he became aware of the paper “Shear Resistance of Flare Beveled and Puddled Welds in Open Web Steel Joist Applications” by Skarborn and Daneff. He did not think he was aware of it at the time of his visit to the Mayflower Mall. [116] John Richardson, professional engineer and partner in DMR Engineering testified. He was involved with inspecting ten to twenty buildings to determine if they contained Robb joists. If the building contained Robb joists, it would be inspected. Mr. Richardson would look at 5% of joists by doing visual inspection. He said the top chord of joists was difficult to see because of the roof deck resting on it. He spent most of his time looking at the bottom chord. He used prybar mainly in inspecting the top chord. If deficiencies in welds were found, he recommended full inspection. Then he looked at every bottom chord weld and as many top chord welds as he could. [117] Referring to work he did at the North Sydney Mall, he stated welds were not measured as the welds varied along their length and the depth of the weld could not be measured in any way to give meaningful information. He reviewed the work of seven or eight consultants in New Brunswick dealing with Robb joists and agreed their approaches varied widely, as each consultant had his or her own approach. [118] The following facts have been established by the evidence. The Mayflower Mall was built in 1979. It was constructed with open web steel joists, fabricated by the defendant through its subsidiary, Robb Engineering, of Amherst, Nova Scotia. The open web steel joists were transported and erected by the defendant. The Mall’s corrugated metal roof sat on the top chord of the joists. [119] There were problems with the welding of open web steel joists at Robb Engineering. There was lack of quality control. Welding of the joists was not in accordance with Standards CSA W59 and W47.1. As welds were covered with slag, they could not be inspected to determine their adequacy. There was no standard way to pile joists for inspection. Joists were piled so inspectors could see either the top or bottom chord, but not both. There was not adequate inspection of joists. No welding data sheets existed concerning open web steel joist welding. [120] Robb Engineering was aware of the problems with the welding. Samples of production welds were sectioned and examined. Weld metal cracks were evident in samples examined. The welding of Robb joists was inadequate. Considering the Robb Engineering welding practices, there was no non-destructive method to determine if weld had strength and was sound. [121] At the Mayflower Mall all accessible panel points and all accessible joists were inspected. Of the 1,900 open web steel joists that could be inspected, total of 199, or 10.5%, had at least one panel point with broken or missing weld, 84 joists had one or more bent web members and 40 joists had one or more bent chord members. The quality of the welding at the Mayflower Mall was poor, with porosity, overlap and undercut present, slag not removed, and cracked and missing welds. accept the evidence of Messrs. Pinhorn, Crocker and Follett and Dr. Southward as to the quality of the welding at the Mayflower Mall. The length and width of welds on the top chord of joists could not be measured. Where the metal roof deck rested on the top chord, welds could not be seen or inspected. Cracked or missing welds are danger and must be repaired. [122] There were defects in the open web steel joists at the Mayflower Mall. The defects constituted a real and substantial danger to the occupants of the Mall. The danger was caused by the defendant’s negligence in the fabrication, transportation and erection of the open web steel joists. [123] prefer the evidence of Mr. Follett and Dr. Southward to the evidence of the defendant’s experts. [124] have difficulty with Dr. Kennedy’s evidence for the following reasons. [125] Firstly, Dr. Kennedy considered the remediation at the Mayflower Mall unnecessary as the capacity of welds in the joists could be determined by measuring their length and width. Determining the capacity of welds by outside measurements is premised on properly fabricated welds. To use outside measurements to determine capacity, Dr. Kennedy testified he depends on the efficacy of the welder. Dr. Kennedy also assumed welds on the top chord were the same as welds on the bottom chord. This assumption is not supported by the evidence. It is obvious from the evidence, including the great number of cracked and missing welds, and lack of quality control, welds were not properly fabricated at Robb Engineering. Welds on the top chord could not be measured Dr. Kennedy said the length could be estimated that is not sufficient when dealing with public safety. [126] Secondly, Dr. Kennedy placed great importance on the results of the testing contained in the Newfoundland report. He considered only gross defects had to be repaired, as the joists performed well during testing. However, as he agreed on cross-examination, fair amount of repairs had been made to the joists in accordance with W59 and the welds, when tested, were no longer Robb welds. [127] Thirdly, while stating it was important for an engineer to review all available information when undertaking an assignment, when preparing his report Dr. Kennedy did not review the available Robb Engineering documentation concerning the welding process or Mr. Follett’s and Dr. Southward’s expert reports. [128] Fourthly, the calculations set out in Table IV of his report were wrong. When the calculations were corrected, the resistance of three of four welds was less than the maximum potential shear load. Table IV does not tell anything about the top chord welds as they were not tested, nor does it indicate what is going on inside the weld. On redirect examination, Dr. Kennedy, after his calculations were corrected, described the welds referred to in Table IV as “marginally inadequate”. [129] Finally, in his report, Dr. Kennedy concluded 43% of the broken welds at the Mayflower Mall were broken by excessive prying forces during the inspection by CBCL and fga Consulting. do not accept that conclusion. Mr. Crocker testified he used the prybar on both top and bottom chords, but sometimes he could not apply enough pressure on the top chord as you might break spot weld which attached the roof deck to the top chord or bend the chord. He added, he had never broken good weld with prybar. Both Mr. Follett and Dr. Southward testified person could not apply enough pressure to crack sound weld. accept that person standing on stepladder holding flashlight and prybar could not apply enough force to crack sound weld. [130] am not prepared to attach any weight to Dr. Kennedy’s opinion that the remedial work carried out by the plaintiff was excessive. [131] have difficulty with Mr. Comeau’s opinions for the following reasons. [132] Firstly, Mr. Comeau’s opinion was, broken or missing welds and bent web members must be repaired. The reinforcement of 25% of each end of joists thirty feet or more in length was unnecessary if joist had properly fabricated welds, and missing or cracked welds repaired. His opinion is based on there being properly fabricated welds. That is where his opinion fails. Nobody knew the capacity of the welds. They were fabricated without following recognized Standards. There was lack of quality control. Mr. Comeau testified, with poor workmanship or defects of various types, including interior defects, can be expected. Mr. Comeau assumed compliance with all Standards. [133] Secondly, Mr. Comeau examined only very small number of joists, only dozen. He did not inspect all panel points on any one joist. [134] Thirdly, in his report, Mr. Comeau comments on the snow load data for Sydney and says the Sydney area has received snow loads up to the design values for the Mall since the Mall was constructed. On cross-examination, he stated he did not know how much snow was on the roof of the Mayflower Mall. [135] am not prepared to attach any weight to Mr. Comeau’s opinion that the remedial work carried out by the plaintiff was excessive. [136] have difficulty with Mr. Skarborn’s opinion for the following reasons. [137] Firstly, Mr. Skarborn did not visit the Mayflower Mall and could not and did not give evidence of the condition of the welding at the Mall. [138] Secondly, Mr. Skarborn was not prepared to agree that his method of determining capacity of welds by outside measurement required the welder to follow approved procedures. He assumed high enough amperage was used in the welding to ensure an adequate weld. He agreed an outside measurement will not show partial fusion of web and chord, porosity inside weld or crack inside the weld. He was unaware of the internal correspondence concerning welding problems at Robb Engineering. Considering the problems with Robb Engineering’s welding, there is not sufficient consistency in the welding to use his method. [139] Thirdly, Mr. Skarborn measured bottom chord of joists. He testified it was impossible to measure the length of welds on top chords were the roof deck obstructed them. [140] Fourthly, although critical of the inspection methodology used in Nova Scotia when acting as sub-agent of CBCL Limited in conducting inspections in Nova Scotia, Mr. Skarborn used the Nova Scotia methodology. [141] am not prepared to accept Mr. Skarborn’s opinion that the remediation carried out by the plaintiff was excessive. [142] Burnac’s claim is for economic loss for the cost of repairs and remediation to the Robb joists at the Mayflower Mall. The test to recover for such an economic loss was set out by La Forest, J. in giving the Court’s judgment in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. Ltd., 1995 CanLII 146 (SCC), [1995] S.C.R. 85 at p. 121 as follows: conclude that the law in Canada has now progressed to the point where it can be said that contractors (as well as subcontractors, architects and engineers) who take part in the design and construction of building will owe duty in tort to subsequent purchasers of the building if it can be shown that it was foreseeable that failure to take reasonable care in constructing the building would create defects that pose substantial danger to the health and safety of the occupants. Where negligence is established and such defects manifest themselves before any damage to persons or property occurs, they should, in my view, be liable for the reasonable cost of repairing the defects and putting the building back into non-dangerous state. [143] In describing the burden of proof on plaintiff, La Forest, J. stated at p. 125: ... The burden of proof will always fall on the plaintiff to demonstrate that there is serious risk to safety, that the risk was caused by the contractor’s negligence, and that the repairs are required to alleviate the risk. [144] United Dominion Industries Corporation, through its subsidiary, Robb Engineering, fabricated, transported and erected the open web steel joists in the Mayflower Mall. [145] The evidence clearly shows there was lack of control at Robb Engineering over how welds on open web steel joists were made. There was protocol established through CSA Standards W47 and W59 to be followed in the fabrication of welds to ensure confidence the welds are properly fabricated. Robb Engineering did not comply with the Standards. Robb welds were covered with slag, which made them virtually impossible to inspect. There was no comprehensive inspection of joists at Robb Engineering. Inspections took place in “hit or miss” fashion. When joists were inspected, only one chord, top or bottom, depending on how the joists were piled, was inspected. Mr. Smith testified, if he was busy, he had no time to inspect joists. He agreed there could be joists not inspected. [146] Through his involvement with the Open Web Steel Joist Review Committee for the Province of Newfoundland, Mr. Follett was aware of the problems with Robb open web steel joists, including the lack of quality control. This lack of quality control was obvious, considering the number of missing or cracked welds found during inspections. Dr. Southward was also aware of the problem with Robb open web steel joists. [147] The inspection at the Mayflower Mall showed there were many defects in the welds in the joists, many more than the average number of defects found in buildings containing Robb joists in Nova Scotia. The evidence shows, and find, there were defects in the open web steel joists at the Mayflower Mall. [148] All experts who testified at the trial agreed missing or cracked welds had to be repaired. The evidence clearly shows that the defects created real and substantial danger to the occupants of the Mall. Joists should not leave fabricators’ facilities with cracked or missing welds. From the evidence, the danger was caused by the defendant’s negligence. [149] The defendant agrees missing and cracked welds, as well as damaged chord and web members, have to be repaired, but says the reinforcing of the joists and the addition of spacers to the top chord was not necessary to mitigate the damage. Through inspections, as described by witnesses called by the defendant, not all welds could be inspected and their capacity determined. Once the repairs of missing or cracked welds, and damaged web or chord members were made, the joists were capable of supporting the load on them. There being no danger once the repairs were made, there was no longer any real and substantial danger needing repairs. [150] The defendant says the reinforcing of the joists was dealing with “perceived” danger and not an actual “real and substantial” danger. In support of its position, the defendant cites M. Hasegawa Co. v. Pepsi Bottling Group (Canada) Co., 2002 BCCA 324 (CanLII), [2002] 213 D.L.R. (4th) 663 (B.C.C.A.), where Finch, C.J.B.C. stated in giving the Court’s judgment at p. 676: With respect, test of perceived as opposed to actual danger is, in my view vague, overbroad, and impractical. The plaintiff does not suggest whose perception should govern, or how trier of fact could, on any reasoned basis, choose between evidence of differing perceptions of risk. would accept as sound the premise that the policy of the law should encourage the production and distribution of food products that are wholesome, and not danger to health. But whether food product is an actual danger is matter upon which scientific opinion, however uncertain it may sometimes be, can be offered, tested and weighed. test of “perceived” danger is, however, no test at all. Perception is not matter susceptible of proof, or disproof, by evidence. [151] The plaintiff takes the position remediation was necessary. No confidence can be had in the capacity of Robb joists. Proper welding procedures were not followed. There was no quality control at Robb Engineering. Inspections at the Robb facility were haphazard and incomplete. There were internal problems with welds from Robb Engineering which could not be discovered by non-destructive inspection. The lack of proper welding procedures and quality control issues prevented one from having confidence in Robb welds, at least on external observations. Welds on the top chord could not be inspected to determine if problem existed. There being real and substantial danger, the extent of which could not be determined, the remediation, including reinforcement and addition of spacers, was necessary to alleviate the danger. [152] I find the remediation program carried out at the Mayflower Mall was necessary to alleviate the real and substantial danger existing at the Mall. The fabricator, Robb Engineering, did not employ proper welding procedures and practices in welding the joists. There was no quality control. Given what was known about the practices at Robb Engineering, and observations made in the field, reasonable person could not have confidence in the capacity of welds used by Robb Engineering. Welds on the top chord of joists could not be inspected. The evidence was the defects in the welding occurred randomly and, what was found on the bottom chord, could not be taken as what existed on the top chord. [153] The placing of spacers on the top chord was part of the alleviation of the danger. The state of the welds on the top chords was unknown. If there was cracked or missing weld on the top chord, the lateral buckling length of the chord would be lengthened and, therefore, the possibility of lateral buckling increased. The placing of spacers reduced the possibility of lateral buckling. [154] The remediation was required to alleviate the real and substantial danger existing at the Mayflower Mall caused by the defendant’s negligence. [155] The parties agreed, subject to determination of liability, the following are the hard construction costs incurred by the plaintiff: A. Weld Repair 10,119.00 B. Web Repair 22,252.00 C. Web Reinforcement 1,324,210.00 D. Spacers 103,020.00 E. Chord Repair 10,428.00 F. 1998 Repairs 13,021.00 G. Design Update (C.O. No. 1) 74,668.00 TOTAL $1,557,718.00 [156] Agreement was also reached that soft construction costs were in the amount of $845,925.00 and the plaintiff will recover the soft construction costs in the same percentage it recovers hard construction costs. Inspection costs were agreed to be $50,895.00. The parties also agreed Harmonized Sales Tax (HST) is to be included in the calculation of damages. [157] The plaintiff abandoned its claim for the cost of design upgrade (C.O. No. 1) in the amount of $74,668.00, as not being needed to alleviate the danger. [158] Having found the remediation was required, the defendant will pay to the plaintiff the sum of $1,483,050.00 in hard construction costs as follows: A. Weld Repair $10,119.00 B. Web Repair 22,252.00 C. Web Reinforcement 1,324,210.00 D. Spacers 103,020.00 E. Chord Repair 10,428.00 F. 1998 Repairs 13,021.00 Total 1,483,050.00 [159] The plaintiff recovered 95.2066 per cent of its hard construction costs and will recover 95.2066 per cent of its soft construction costs, which results in recovery of soft construction costs of $805,376.43. [160] The defendant will pay to the plaintiff soft construction costs of $805,376.43 and inspection costs of $50,895.00. The plaintiff will also recover from the defendant HST due on the above amounts. [161] If the parties are unable to agree, will hear them as to prejudgment interest and costs. Coughlan, J.","Following the collapse of the roofs of two buildings in Newfoundland, both of which were constructed with open web steel joists fabricated by the same company, the Nova Scotia government wrote to owners of buildings containing these joists, including the plaintiff mall owner, recommending that the joists be inspected by a qualified professional engineer. An inspection of the mall roof revealed that 10.5 per cent of the joists inspected had at least one panel point with a broken or missing weld and the same remediation scheme as that implemented by the Province for the government's own buildings was recommended. The plaintiff, concerned with safety issues arising from the report, followed the consultant's recommendations and undertook remediation of the mall and then claimed against the defendant, which was the parent company of the corporate entity which had fabricated the joists. The defendant's expert took the position that although the actual repairs to the welding and webs of the open steel joists was necessary, the reinforcing of the joists undertaken in the remediation was not required in order to mitigate the danger. Judgment for the plaintiff; there were defects in the open web steel joists at the mall which constituted a real and substantial danger to the occupants; this danger was caused by the defendant's negligence and the remediation program carried out at the mall was necessary to alleviate the real and substantial danger. There were internal problems with the welds which could not be discovered by non-destructive inspection and the lack of proper welding procedures and quality control issues at the company prevented one from having confidence in any welds fabricated by them, at least based on external observations.",2_2007nssc40.txt
280,"J. 2002 SKPC 138 ON THE INFORMATION OF S/CST L.C. SMITH PEACE OFFICER FOR THE CITY OF YORKTON IN THE PROVINCE OF SASKATCHEWAN -AND- JOSHUA SCHWARTZ ACCUSED JUDGMENT E.S. BOBOWSKI, PCJ DECEMBER 23, 2002 T. Wellsch for Crown K. Wasylyshen for Accused 1. The accused is charged that:On or about the 13th day of April A. D. 2002 at Yorkton in the Province of Saskatchewan did without reasonable excuse fail to comply with a demand made to him by a Peace Officer, to wit: Cpl. Ian McLean, pursuant to Section 254(3) of the Criminal Code of Canada requiring him to provide then or a soon thereafter as is practicable such samples of his breath as in the opinion of a qualified technician are necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5) of the Criminal Code. 2. On April 13, 2002, Cpl. Ian McLean, 28 year member of the RCMP, while on duty, at 2:00 a.m. was alerted by the Citizens on Patrol Program personnel to be on the lookout for certain vehicle that was driving erratically. 3. As that particular vehicle passed Cpl. McLean on Broadway Avenue, he pulled in behind it and followed it for one or two blocks. When it turned north on Barber Avenue, Cpl. McLean turned on the emergency lights and the accused did not stop until Cpl. McLean pulled alongside him and honked his horn to get his attention, about block later. 4. The accused was the lone occupant and identified himself to Cpl.McLean as Joshua Schwartz and because of smell of liquor emanating from the vehicle, asked if the accused had anything to drink. The accused replied that he did not. 5. When Cpl. McLean stated he could smell liquor, the accused then replied that he'd had little bit of beer earlier. Cpl. McLean concluded that the accused had alcohol in his body and called for roadside screening device which was delivered by Cst. Chambers within five minutes and the accused blew fail without problem on one attempt at around 2:20 a.m. 6. As result of the fail, Cpl. McLean believed his ability to operate motor vehicle was impaired by alcohol and made breathalyser demand on the accused, gave him his rights to counsel including free legal aid and police warning. The accused understood what was told to him. 7. They arrived at the Yorkton Rural Detachment within five to seven minutes and Mr. Schwartz was taken directly to room with phone and list of local lawyers and given an opportunity to contact counsel. 8. Cpl. McLean observed through the window the accused use the phone for short period of time. The accused then stood there and after hanging up the phone, made no attempt to move towards the door. 9. Cpl. McLean then opened the door and asked if he had contacted his lawyer. The accused indicated that he didn't contact his lawyer, that his lawyer would not be able to come down. Cpl. McLean then told him that he wasn't compelled to have his lawyer attend the office and he could get his legal advice over the phone and that he could call his lawyer back. The accused then told Cpl. McLean that he got an answering machine. No call back was ever received from any lawyer at all times pertinent hereto. 10. Cpl. McLean then asked him if he wanted to contact someone else and advised him that there was list of lawyers as well as phone book. He then closed the door and watched the accused for approximately ten minutes. During the approximately ten minutes, the accused did not use the phone nor did he turn towards the phone list, just stood there looking at the window. 11. Cpl. McLean then opened the door and asked him if he wanted to contact lawyer. He said he did but his lawyer was not available. Cpl. McLean replied that he had two hour window presumption in breathalyser investigations and that it would be necessary for him to contact counsel and dialled the Legal Aid number and handed the phone to the accused and left the room. 12. When the accused hung up, Cpl. McLean opened the door and took the accused into the intoxilyzer room for breath tests. This was at 2:55 a.m. 13. The accused indicated to Cpl. McLean that he was not satisfied with the advice he received from the Legal Aid lawyer but he did not ask Cpl. McLean to call another lawyer. 14. Cpl. McLean is qualified to obtain readings on the Intoxilyzer, an approved instrument in the Criminal Code. He has had considerable experience with respect to obtaining breath samples doing over 700 tests on the Breathalyser and 200 tests on the Intoxilyzer. He has also blown into both the roadside screening device that was used and the Intoxilyzer and indicated that it is more difficult to blow into the roadside screening device, that is, the effort required to blow into the Intoxilyzer is less. 15. While Cpl. McLean was preparing the Intoxilyzer by entering Mr. Schwartz's statistics, the accused advised Cpl. McLean that he was subject to anxiety attacks. Cpl. McLean made conversation with the accused to try and keep him relaxed and instructed him to blow long, hard and steady until the tone stopped. 16. The accused then began to gasp and hyperventilate. He was moving back and his chest was rising and falling and his head was moving. Cpl. McLean told him to calm down, to take deep breaths, to get control and relax. He did so and asked him to blow again. As Cpl. McLean held the mouthpiece up to him, the accused started to pant again. He did this the third time after which time Cpl. McLean had to reenter his statistics into the Intoxilyzer to get sample. The deficient sample was given at 3:07 a.m. 17. Cpl. McLean once again told him to relax and stay calm. As the accused leaned forward to give the sample, he started to hyperventilate again and contaminated the mouthpiece causing an ambient failure. The Intoxilyzer was prepared again but Mr. Schwartz hyperventilated again and Cpl. McLean told Mr. Schwartz that he believed he was faking. 18. Upon this accusation, the accused started to argue with Cpl. McLean and immediately stopped hyperventilating, i.,e, he was breathing normally. Cst. McLean told him to stay that mad so sample could be taken and advised him of the consequences for failing to blow. 19. Some conversation was then exchanged about whether the accused was faking it and Cpl. McLean pointed out to him that he didn't seem to be sweating nor were his pupils moving nor did he show any other signs of anxiety outlined in First Aid books, but that he only seemed to not be able to breath when it was time to obtain sample from him. 20. The Intoxilyzer was prepared again, and as he placed his mouth over the mouthpiece, Cpl. McLean saw that the accused sealed the mouthpiece with the tip of his tongue. 21. Cpl. McLean then advised him that he could not block the mouthpiece with his tongue, that free-flowing breath sample was required. The accused moved forward again and blew but there wasn't enough air entering the Intoxilyzer to start the tone because he didn't seal his mouth off and air escaped before entering the mouthpiece. There was no sound of air going through the tube, nor were there obstructions in any of the mouthpieces used. 22. Cpl McLean advised the accused that he had to seal off his mouth but for at least two times the accused failed to do so. It was at this time (3:16 A.M.) that Cpl. McLean became satisfied that the accused was not going to provide suitable sample and charged him accordingly, 23. At the outset of the accused's testimony he indicated that he might be little choppy every once in while because he was anxious right now and if he had to stop for few seconds, he hoped not to annoy the court. This statement was offered after the Court asked if he wanted to speak to his counsel privately for minute or two. The accused replied that his counsel knew what he was going to say and defence counsel did not object. 24. It is rare when witness or an accused would offer an opening statement. However, with the statement in mind, did not detect in his giving of evidence any indications of anxiety, such as described by Cpl. McLean and that he appeared to be in control of his breathing. 25. The accused testified that during the day of Friday, April 12, 2002, he was pretty hung over and at lunchtime he went to friend's house for few beer, then went back to bed for while, then got up and went to Holly's night club at about 12:15 or 12:30 a.m. of Saturday morning, April 13. When asked by defence counsel, how many beer he consumed, the accused replied""I would say three beer, yes"". 26. At Holly's, he indicated: ""I would have had two or three beer, probably three beer as was there until probably quarter after 2:00"". 27 When Cpl. McLean stopped him and told him that he smelled liquor on him, the accused replied that he had quite large amount of alcohol spilled on him that night at the bar from drunk friends and whatnot. 28. The accused admitted replying no to Cpl. McLean when asked whether he drank anything but after being told by Cpl. McLean that he could smell alcohol, the accused replied yes, did have few drinks of beer earlier on. 29. The accused further admitted that he had no difficulty blowing into the roadside test. 30. When at the detachment, the accused testified that his first phone call was to Ron Bell, lawyer who was not there. He made second call to defence counsel, Mr. Wasylyshen and got an answering machine. 31. After advising Cpl. McLean that he could not get hold of his lawyer, Cpl. McLean put him back into the room. The accused stated he was sitting there for approximately 10 minutes doing nothing waiting for call back from Mr. Wasylyshen because the answering machine said he would call back. He did not communicate his reason for waiting to Cpl McLean. 32. Cpl. McLean then came into the room and dialled the Legal Aid number for him. The accused stated that earlier on when Cpl McLean mentioned about Legal Aid lawyer, he expressed to Cpl. McLean that he did not want to get one of them because he didn't think he would get the advice that he needed. 33. He stated he was on the phone to Legal Aid for maybe 30 seconds, it wasn't five minutes and was told not to say anything. 34. Then he was taken to the breathalyser room and that's where he couldn't breathe normally. 35. He testified that prior to April 13, 2002, he had two prior anxiety attacks. Firstly, December 22, 2001 at Kamsack, Saskatchewan and secondly, in February 2002, at Yorkton. 36. The accused admitted that he did stop hyperventilating when he was being shouted at by Cpl. McLean. He stated that the attacks are erratic in that his heart could be pounding one minute and the next minute he can be sitting back and it will be okay. That he was trying to control his attacks while he was in the breathalyser room. 37. He admitted that lowering his head to his knees helped ""for the time being, until it seemed you know, it's going to seem until, yeah, until it was ready to go again. And then it just automatically, bang, it kicked in again"". 38. When asked whether he put his tongue over the mouthpiece, his reply was: ""No, maybe for split second, but other than that, no, it wasn't on there, while was trying to blow"". 39. When asked by his counsel and to return to his testimony about phone calls to lawyers, he was asked; ""Did you you talked about phoning two lawyers, did you phone,can you go back and and recall, is there anything you've missed in terms of Without allowing counsel to complete the question, the accused replied; ""Yes, that's right, I'm sorry, did phone third at the same time phoned Dave Rusnak at the same time as did the first and got no answer"". 40. The accused further testified that he did not ask Cpl. McLean to call another lawyer after expressing his dissatisfaction about Legal Aid because he was on the way to the breathalyser room and Cpl. McLean indicated to him that the time was up. 41. When referred back to the time when he was in the room for ten minutes the accused testified that; ""I was sitting there for the ten minutes after after was in the room for the first time, that's when was waiting for call from Mr. Wasylyshen"". Q. After you left message on the machine? Q. And you told this to the Cpl.? A. Yes, told him that I'd left message on the answering 42. When asked by the court what the recording was on the answering machine, the accused replied; ""The answering machine said, believe, I'm not in right now, but will call you back as soon as possible"". 43. In cross-examination, when asked what triggers these anxiety attacks, he replied that driving on highway, hard night of drinking the night before and situations that don't know how to handle. He then referred to the situation right now (while testifying) that it's pretty nerve racking. must comment that at the time did not notice any outward signs of anxiety on the accused and that he appeared to be quite controlled and calm giving his evidence. 44. When asked to describe the attacks, he stated that it usually starts off with just slight pressure in the chest and then increases to where he breathes pretty rapidly. He gets sweaty and then his vision gets blurry and he gets dizzy. 45. In further cross-examination, the accused stated that when he was in the room waiting for the ten minutes, he did nothing but wait for Mr. Wasylyshen's return call. He stated that most of the other lawyers on the wall were Real Estate lawyers who would be absolutely no use to him in this situation but he did not communicate this to Cpl. McLean. He admitted that he did not tell Cpl. McLean that he was waiting for phone call back from Mr. Wasylyshen and that he told Cpl. McLean that he could not get hold of lawyer before Cpl. McLean suggested Legal Aid. 46. He further admitted in cross-examination that he didn't get anxious until presented with the mouthpiece to blow and that after relaxing his breathing became normal. 47. On the third time, he stated that he blew as hard and long as he could and did not block the mouthpiece with his tongue. That although he was anxious, he had no difficulty blowing as hard as he could. That he had sweaty palms but displayed no other signs of sweating or cold sweats. He further admitted that he could get sweaty palms without having an anxiety attack and that on this night he did not have major anxiety attack whereby he had to seek medical attention. 48. The defence then called Dr. Bashara Issa, licensed medical doctor and physician licensed to practice medicine in the Province of Saskatchewan, who currently had the accused as patient. 49. He has had no experience of blowing into an Intoxilyzer but based on his known medical history of the accused, Dr. Issa stated that if an individual is having an anxiety attack, his or her breathing becomes extremely short and rapid and therefore deep lung sample will not be obtained. These attacks can be triggered by stress, alcohol and/or drugs. 50. He stated that he was not treating Mr. Schwartz for anxiety attacks but advising him on how to manage them. He surmised that Mr. Schwartz's anxiety disorders were precipitated by alcohol and other factors and was advised to try and eliminate as much as possible the known triggering factors. 51. In cross-examination, the Dr. agreed that if one's breathing is normal then deep lung breath could be obtained but when shallow and rapid, it could not. 52. Counsel for the accused then made an application under Section 10(b) of the Charter without calling further evidence and both him and Crown counsel decided to apply the evidence already heard for the purposes of the Charter issue. The onus of proof is on the accused to prove on balance of probability that there was Charter violation. 53. Defence counsel argues that the accused was not given reasonable opportunity to contact counsel of his choice as was his right under Section 10(b) of the Charter. That for the police to insist that the accused blow into an intoxilyzer 35 minutes into the two hour window of opportunity is unreasonable and constitutes an infringement of his rights. 54. The law with respect to Section 10(b) rights was canvassed by the New Brunswick Court of Appeal in R. v. Dunnett, (1991), 1990 CanLII 2346 (NB CA), 62 C.C.C. (3d) 14 as cited by defence counsel. Mr. Justice Hoyt cites four factors arising from recent Supreme Court of Canada decisions concerning detained or arrested person's right to lawyer. 1) When request for lawyer is made, unless there is an urgency because of the time limit imposed either by the Code or the circumstances of the situation, the police must permit the accused reasonable opportunity to consult counsel. Lamer, J., as he then was in R. v. Tremblay (1987), 37 CCC (3d) 565 said at pages 567 and 568; ""In the case the accused was promptly informed of his right to counsel, asked for lawyer, was given telephone and placed call to his wife. It appears, though the evidence on this point is not all that clear, that she was to call lawyer for him. Right after that call, the police officers requested that the accused give his first sample of breath, request he complied with. When that request was made, there remained ample time to comply with the requirements set down in the Criminal Code as regards the time limits for the taking of breath samples; there was thus no urgency to proceed, and to do so right after his call was what, in my opinion, triggered the violation of this accused's rights. From the moment the accused was intercepted on the road to the moment he was asked to give the first sample of his breath his behaviour was violent, vulgar, and obnoxious. reading of the record and the findings of fact below satisfy me that, while the police, following the request for counsel, did not, as they must, afford the accused reasonable opportunity to contact lawyer through his wife before calling upon him to give breath sample, their haste in the matter was provoked by the accused's behaviour. Indeed, throughout this encounter with the police, the accused, as was found by the trial judge as matter of fact, ""was deliberately attempting to make the investigation difficult"" and ""was actively obstructing it"". As testified to by police officer, it appeared to the police that the accused was stalling when he was given the telephone to contact lawyer. Generally speaking, if detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this court's decision in R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385, 41 D.L.R. (4th) 301, [1987] S.C.R. 1233, imposed on the police in situation where detainee has requested the assistance of counsel are suspended and are not bar to their continuing their investigation and calling upon him to give sample of his breath. While this is not the case here, the accused's conduct was, to some degree, misleading in that regard. While the police hastiness does not change the fact that the detainee's right to counsel was violated, the reasons therefor make it understandable and are relevant when one addresses the s. 24(2) issue. In my view, the admission of the evidence obtained would not, having regard to all of the circumstances, bring the administration of justice into 2) The accused must be diligent in attempting to obtain counsel once he indicates this wish. 3) After R. v. Brydges (1990), 53 (CCC)(3d) 330, (S.C.C.) the police must, in some circumstances, assist the person in his efforts to obtain lawyer. 4) An accused may waive his right to counsel. 55. Regarding urgency at Page 23, Mr. Justice Hoyt of the New Brunswick Court of Appeal states; ""I do not say that in all circumstances the police would have to wait until the two hour period is about to expire. In this case, however, there remained sufficient time in the circumstances surrounding the detention to afford Mr. Dunnett further opportunity to attempt to consult counsel. Although some of the Supreme Court of Canada decisions involve circumstances where there was no urgency due to some time constraint, the tenor of those decisions is that, if the person is diligent in asserting his right and the circumstances permit, he must be permitted to continue his efforts. Once it is apparent that further efforts will be futile or when time-limit is approaching, the person can no longer refuse and invoke his rights under S. 10(b) of the Charter; During argument, counsel pressed us to indicate cut-off time, say one hour or one hour and half, after which person would have to give breath sample or be faced with refusal charge. That, of course, is impossible as each case depends on its own unique circumstances"". 56. Regarding the case at bar, granted that the accused was charged with refusal 51 minutes after the demand for the breath tests, I find that even though Mr. Schwartz was diligent in attempting to reach counsel, he was not diligent in pursuing his rights after he unsuccessfully tried to contact a lawyer three times. No one was at Ron Bell's number. An answering service was reached on his second call to Mr. Wasylyshen and no one answered at David Rusnak's number. That does not surprise me as it was 2:30 a.m. find that he did not communicate the contents of the message on the answering machine to Cpl. McLean thus not allowing Cpl. McLean to consider longer waiting period than the 10 minutes he did allow. In any event, find that when the message on the answering machine at 2:30 a.m. is that the party is not here and would call back as soon as possible, that message is not an indication that it's reasonable to assume that the call back would be made in the next 10 or 15 minutes or even one hour. 57. When Cst. McLean realized that Mr. Schwartz was not able to reach his lawyer, he then proceeded to comply with the ruling in v. Brydges, that is, he got him the services of Legal Aid lawyer. It is not police officer's obligation to go further if the accused does not appreciate the advice of Legal Aid counsel. 58 This case is basically similar to the Alberta Court of Appeal decision of R. Topp (Quicklaw) cited by the Crown which although not binding is persuasive wherein Mr. Justice Cote states the accused must not conceal his reasons for refusing to give breath samples. The case has to be decided on the basis of what the police knew or could readily surmise, not the hidden facts which the accused had not disclosed to the police. He states further that since the administration of justice is prejudiced by delay then after initial attempts to reach the chosen lawyer at home failed, the police need not delay further if it is unlikely to do the accused any good. Accordingly, the Charter application is dismissed. 59. Besides the Charter argument, defence further argues that the accused had a reasonable excuse to refuse the intoxilyzer based on his medical condition of anxiety attacks at the time of blowing. 60. adopt the statement of law enunciated by Richard J. of the Yukon Territory Supreme Court in R. v. Pederson dated March 25, 1993 where he states at paragraphs and 6; ""In my respectful view the trial judge, in his oral reasons, correctly stated the law as to when medical condition constitutes ""reasonable excuse"" in the context of s.254(5): ""The law is clear that if person cannot provide sample of this kind by reason of medical condition that is reasonable excuse. Now, when say he cannot provide sample, this does not mean that it is absolutely and utterly impossible for him to provide sample. It means that the medical condition must make it either extremely difficult or extremely painful\\or uncomfortable or involve some risk to the accused's health. So it is not an absolute, but it must be condition which, as say, makes compliance extremely difficult. It is simply not the case that any respiratory difficulty which makes it more difficult for the accused than for the average person involves reasonable excuse."" This statement of the law is in accordance with R. v. Nadeau (1974) 1974 CanLII 1538 (NB CA), 19 C.C.C. (2d) 199 (N.B.S.C., App. Div.) and v. Phinney (1979) 1979 CanLII 2928 (NS CA), 49 C.C.C. (2d) 81 (N.S.S.C. App. Div.). And the onus is on the accused person to satisfy the trial judge that he had reasonable excuse. ee R. v. McDougall (1975) 15 N.B.R. (2D) 279 (N.B.C.A.) and v. Phinney, supra. 61. On the evidence before me, I cannot conclude that the accused's respiratory problems made it impossible for him to provide a sample. In fact, Dr. Issa stated, he could do so when his breathing returned to normal as did the accused. 62. Further, an accused, who is aware of what triggers his anxiety attacks, for example, a hard night of drinking the night before and continues to drink alcohol and operate a motor vehicle cannot be later heard to say and hope to avoid conviction, that the refusal was a result of a known medical condition. He should not drink and drive. 63. Furthermore, the accused did provide an adequate supply of air in the roadside screening device about one hour before. It was only when he was asked to blow into the mouthpiece of the Intoxilyzer each time that these supposed anxiety attacks caused him difficulty in blowing. I do not believe his evidence on this point. 64. He suggests further that he blew long and hard on the last attempt indicating that he had sufficient air to do so. Yet, nothing registered on the intoxilyzer. I find that the intoxilyzer did not register because he was not blowing properly into the mouthpiece. 65. Accordingly, find the accused guilty as charged. DATED this 23rd day of December A. D. 2002 at the City of Yorkton in the Province of Saskatchewan. E. S. Bobowski, PCJ","The accused was charged with failure to comply with a demand to provide a breath sample contrary to s.254(5) of the Criminal Code. He argued that he had a reasonable excuse to refuse based on his medical condition of anxiety attacks at the time of blowing. HELD: 1)This case is similar to the Alberta Court of Appeal decision in Topp which stated the accused must not conceal his reasons for refusing to give breath samples. The case has to be decided on the basis of what the police knew or could readily surmise, not on the hidden facts, which the accused had not disclosed. The New Brunswick case of R. v. Dunnett canvassed the law with respect to s.10(b) rights and cited four factors arising from recent SCC decisions concerning detained or arrested person's right to a lawyer. Granted the accused was charged with refusal 51 minutes after the demand for the breath tests, even though he was diligent in attempting to reach counsel, he was not diligent in pursuing his rights after he unsuccessfully tried to contact a lawyer three times. It is not a police officer's obligation to go further if the accused does not appreciate the advice of Legal Aid counsel. 2)His evidence was not believed as to the anxiety attacks. The intoxilyzer did not register because he was not breathing properly into the mouthpiece. He provided an adequate supply of air in the roadside screening device about an hour prior. The statement of law enunciated in Pederson out of the Yukon Territory Supreme Court was adopted. It could not be concluded on the evidence that his respiratory problems made it impossible to provide a sample. The doctor stated he could do so when his breathing returned to normal as did the accused. Further an accused who is aware of what triggers his anxiety attacks, for example a hard night of drinking the night before, and continues to drink alcohol and operate a motor vehicle cannot be later heard to say and hope to avoid conviction that the refusal was a result of a known medical condition. He should not drink and drive.",d_2002skpc138.txt
281,"nan IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2008 SKPC108 Date: May 30, 2008 File: SC #174 of 2007 Location: Saskatoon Between: Dennis Ens and Anne Ens and Pacific Home Products Ltd. Lynne Greenhorn For the Plaintiff Jon Danyliw For the Defendant JUDGMENT D.M. ARNOT, [1] Dennis and Anne Ens wanted to build deck and glass sunroom on the back of their home in Warman, Saskatchewan. They attended trade show in the spring of 2004 and met Mr. Doug Goertzen from Pacific Home Products Ltd. The Defendant corporation is in the business of building decks and sunrooms and has been for 18 years. Mr. Goertzen is the President and owner of the corporation. Pacific Home Products Ltd. has built approximately 400 such sunroom additions to homes. [2] Mr. Goertzen attended the Ens home in early April, 2004. He had discussion to ensure he knew what the Ens’ expected. Mr. Goertzen took the information he received and on April 10, 2004 created detailed quotation which included the provision of four new ten inch by ten feet deep concrete pilings designed as the foundational support for wood deck upon which would sit custom manufactured glass wall sunroom. Mr. Goertzen attended the Ens’ home on May 5, 2004 with an amended quotation. The total cost to the Ens was to be $11,847.53. The Ens accepted the quote and contract was made to supply and install sunroom at the Ens home. The Ens made deposit of 20% which was $2,200.00 paid by cheque. [3] Mr. Ens knew that Pacific Home Products Ltd. would be ordering the material to complete the project after they had received the deposit. The project was to be completed in the summer of 2004. Time was of the essence. Mr. and Mrs. Ens gave the project very high priority as they wanted to complete landscaping of their yard in the late summer of 2004 after the sunroom was completely installed. [4] Mr. Goertzen attended the Ens’ home later in May of 2004, after the contract was made, to take final detailed measurements and drawings to ensure that the glass sunroom structure would be ordered with the most exact specifications. On May 13, 2004 Pacific Home Products Ltd. submitted an application to the Town of Warman for building permit for the construction of the sunroom at the Ens residence, which was approved by the Town of Warman on May 18, 2004. Pacific Home Products Ltd. ordered the sunroom to be manufactured and Pacific Home Products Ltd. was invoiced on May 26, 2004 by the factory, AAA Aluminum Products Ltd. of British Columbia in the amount of $5,529.13. Pacific Home Products Ltd. also incurred shipping costs of approximately $400.00 to have the product shipped to their warehouse in Saskatoon. The sunroom was delivered to Pacific Home Products warehouse prior to July10, 2004. The necessary excavation was arranged for July 10, 2004. [5] On July 10, 2004 Craig’s Excavation attended the Ens residence at the request of Pacific Home Products Ltd. pursuant to subcontract with Pacific Home Products Ltd. Mr. Betky, the construction manager for Pacific Home Products, attended and marked out the locations of the piles. The excavator used bobcat tractor and attempted to drill ten inch diameter hole, ten feet deep as per the original contract. In drilling the first hole it became apparent that the plan for provision of piles would not work. The hole could not be emptied of soil material. The auger came up wet. The hole was filled with water saturated sand and kept falling in on itself such that Mr. Betky determined that the concrete piles could not be created at this job site. [6] There is high water table in the Martensville area which was unbeknownst to Mr. Ens or Mr. Goertzen in May, 2004. Mr. Goertzen believed that he could not drill pilings due to the existing soil conditions. He communicated this to Mr. Ens within two weeks of the failed attempt to create the pile holes. In discussion with Mr. Ens, Mr. Goertzen wished to proceed with the building project and offered to use an alternate method for the building of the foundation for the deck and the sunroom. He suggested that pad and pillar system be utilised. This would require excavation with backhoe tractor to significant depth and then pouring concrete pad and further making concrete pillar to sit on top of the pad and thus become the foundational support for the beams and joists for the wood deck on which the sunroom would sit. Mr. Goertzen advised that he had used this system in other applications and was satisfied it would work in this application. He advised that this would entail an additional cost of approximately $1,500.00. Mr. Ens rejected the concept that he would be required to pay additional costs. He further rejected the solution proffered by Pacific Home Products Ltd. of constructing concrete pad and pillar system. [7] Mr. Ens believed that the pad and pillar method would destroy the integrity of the weeping tile system around the foundation of his house. Two pads and pillars would necessarily have to be installed very close to the foundation of his house. He was especially concerned because of the high water table issue. He believed it could lead to serious foundation drainage problems if the weeping tile system was disturbed. Further, he was concerned about the integrity of special in-floor basement heating system in his home. Mr. Ens believed that 13 foot piles could be drilled as they had been drilled for his garage and an existing pile in the backyard. He believed that other contractors in the Warman area were able to drill 13 foot piles and therefore, make foundation with concrete piles at that depth. find Mr. Ens reasons for rejecting the installation of the concrete pad and pillar system, different foundation type and design, were reasonable in the circumstances. [8] The contract made on May 5, 2004 was clearly frustrated by the unforseen soil conditions which prevented the drilling of ten foot depth pile holes for concrete piles. Neither party could have foreseen this issue. The parties could not come to an agreement as to how to remedy the frustrated contract. [9] Mr. Ens attended the Pacific Home Products show room some time after, probably in early August 2004, and it was alleged that he was abusive to an employee. Mr. Goertzen on behalf of Pacific Home Products Ltd. sent Mr. Ens letter dated August 16, 2004 advising him not to attend the Pacific Home Products Ltd. show room in the future, and further, he suggested that binding mediation process be used by both parties to resolve the outstanding issues between the parties. [10] In response to that letter, Mr. Ens engaged lawyer to act on his behalf as the relationship between he and Pacific Home Products Ltd. received deleterious blow during the visit Mr. Ens paid to the Pacific Home Products Ltd. showroom. The lawyer, acting on Mr. Ens’ instructions, contacted Mr. Goertzen. record of their discussion is contained in letter dated August 30, 2004 from the lawyer to Mr. Ens. The contents of the letter reveal that Mr. Goertzen agreed to use concrete pilings, as requested by Mr. Ens, but that Pacific Home Products would not guarantee their work if those concrete pilings were used. Mr. Goertzen suggested that if Mr. Ens agreed to the pad and pillar method which he was putting forward Pacific Home Products would guarantee their work. Mr. Ens rejected this offer. Mr. Ens felt he could not proceed as the relationship had devolved to such degree that he did not believe he would receive any service or any warranty work if it was required. His rejection and the reasons therefor were never communicated to Pacific Home Products Ltd. [11] Mr. Goertzen was anxious to complete the product as he had in stock the unique custom built sunroom material for application at the Ens job site. However, without formal response from Mr. Ens, Mr. Goertzen and Pacific Home Products Ltd. treated the project as being left in abeyance. [12] There was no agreement between the parties as to how to proceed. The relationship between Mr. Ens and Mr. Goertzen became irreconcilable after August 31, 2004. Pacific Home Products Ltd. did not receive any response or any communication whatsoever from Mr. Ens post August 31, 2004 and was entitled to assume that their obligations concerning the contract were at an end based on the frustration of the contract and the fact that the parties were unable to agree as to any remedy that would be satisfactory to both parties. [13] There was no further contact between the parties until Mr. Ens demanded repayment of his $2,200.00 deposit in letter dated March 27, 2007, period of approximately two years and eight months. [14] Mr. Ens and his wife attended trade show in the spring of 2005 and eventually engaged Mr. Martin Doell of Pyramid Sunrooms. Mr. Doell was engaged to construct foundation, deck and glass sunroom at the Ens home. The structure was completed satisfactorily in October, 2005. Pyramid is competitor of Pacific Home Products Ltd. Pyramid used different method of deck support. They installed an engineered screw pile as an alternate to concrete piles. This is one and three-quarter inch solid steel shaft with an eight inch in diameter auger screw, eight feet long. Mr. Doell constructed the foundation, beams and joists and deck floor. He then took exact measurements and at that point ordered the glass sunroom to be custom made. His method of staging the construction is different than that of Pacific Home Products Ltd. He chooses to order the sunroom after the deck is constructed to ensure the base is stable and all measurements are entirely accurate. The glass sunroom product is made of tempered glass walls. Any settling of the base can result in cracked glass and malfunction of both windows and doors. [15] After August 31, 2004 Mr. Ens had paid the sum of $2,200.00 as deposit which was not returned to him by Pacific Home Products Ltd. Pacific Home Products Ltd. had in stock unique custom made glass sunroom for application at the Ens job site. Pacific Home Products Ltd. was able to mitigate its losses by salvaging approximately $1,000.00 in parts from the Ens sunroom material. [16] The Plaintiffs, Dennis Ens and Anne Ens sued the Defendant, Pacific Home Products Ltd., for the return of the $2,200.00 deposit they gave to the Defendant on May 5, 2004. [17] The Defendant in that claim, Pacific Home Products Ltd., filed a dispute note and became a Plaintiff in the Counterclaim against Dennis Ens and Anne Ens for recovery of the amount of $3,604.13, which they allege represents the losses incurred by Pacific Home Products Ltd. as a result of the frustration of the contract with Dennis Ens and Anne Ens. [18] Pacific Home Products Ltd. led evidence to show that they paid the sum of $5,529.13 to AAA Aluminum Products Ltd. for the custom made sunroom. In addition, they alleged they incurred costs of $400.00 for the shipping of the sunroom product to their warehouse, $80.25 paid by them to the Town of Warman for the building permit application fee, $272.85 paid by them to Craig’s Excavation for the excavation at the Ens job site, and the labour and costs in preparing detailed designs and drawings for both the AAA Aluminum Products Ltd. order and the application for building permit. These costs they estimate at $500.00. Pacific Home Products Ltd. led evidence to show that they mitigated their losses by salvaging $1,000.00 worth of parts from the Ens sunroom material and further they deducted the down payment of $2,200.00 received and kept by them. They then sued by way of Counterclaim against the Ens, Defendants in the Counterclaim for a balance, they believe owing to them, of $3,604.13. [19] The doctrine of frustration operates as an excuse for the non-performance of contractual obligation. The accepted view of this doctrine was described in Davis Contractors Ltd. v. Fareham U.D.C., [1956] nan All E.R. 145 (H.L.). In that case the doctrine of frustration was analyzed. Lord Radcliffe described the test as the “radical change in obligation test” that effectively rewrites the bargain in terms that were previously unintended. He stated at p. 160: So perhaps it would be simpler to say at the outset that frustration occurs whenever the law recognizes that without default of either party contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it thing radically different from that which was undertaken by the contract. Non haec in foedera venie. It was not this that promised to do. ... it is not hardship or inconvenience or material loss itself which calls the principles of frustration into play. There must be as well such change in the significance of the obligation that the thing undertaken would, if performed, be different thing from that contracted for. [20] Another definition was provided by Viscount Simon, L.C. in the case of Cricklewood Property Investment Trust Ltd. v. Leighton’s Investment Trust, Ltd. (1945) A.C. 221, as follows: “... the premature determination of an agreement between parties, lawfully entered into and in course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by the law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement.” [21] Recently in Canada the Ontario Court of Appeal quoted with approval the definition of frustration of contract given by Lord Radcliffe in Davis Contractors Ltd., (supra) in the case of Capital Quality Homes Colwyn Construction Ltd. (1976) 1975 CanLII 726 (ON CA), 61 D.L.R. (3d) 385, See Evans, J.A. who comments as follows: “The legal effect of the frustration of contract does not depend upon the intention of the parties, or their opinions or even knowledge as to the event that has brought about the frustration, but upon its occurrence in such circumstances as to show it to be inconsistent with the further prosecution of the adventure. On the contrary, it, seems that when the event occurs, the meaning of the contract must be taken to be, not what the parties did intend (for they had neither thought nor intention regarding it) but that which the parties as fair and reasonable men, would presumably have agreed upon if, having such possibility in view, they had made express provision as to their several rights and liabilities in the event of its occurrence: Dahl v. Nelson et al. (1880) 6, App. Cas. 38. The supervening event must be something beyond the control of the parties and must result in significant change in the original obligation assumed by them. The theory of the implied term has been replaced by the more realistic view that the Court imposes upon the parties the just and reasonable solution that the new situation demands.” [22] Most recently the doctrine was considered in KBK No. 138 Ventures Ltd. v. Canada Safeway Limited (2000), 2000 BCCA 295 (CanLII), 185 D.L.R. (4th) 650. In that case the Plaintiff agreed to purchase land from the Defendant. The Plaintiff intended to construct mixed residential and commercial building. After the land purchase contract was entered into, but prior to construction, the municipality amended its zoning bylaws which prevented the proposed building from being constructed as intended. The British Columbia Court of Appeal applied the law of frustration, summarized by Folia v. Trelinski (1997), 14 R.P.R. (3d) (B.C.S.C.). The six-part test may be characterized as follows: In order to find that the contract at issue has been frustrated the following criteria would have to be satisfied. The event in question must have occurred after the formation of the contract and cannot be self-induced. The contract must, as result, be totally different from what the parties had intended. This difference must take into account the distinction between complete fruitlessness and mere inconvenience. The disruption must be permanent, not temporary or transient. The change must totally affect the nature, meaning, purpose, effect and consequence of the contract so far as concerns either or both parties. Finally, the act or event that brought about such radical change must not have been forseeable. [23] The required constituent elements for the application of the doctrine of frustration of contract are distilled in Dicastri on the Law of Vendor Purchaser (2nd Edition) 1976 at page 319 to be: 1. The express words of the contract; 2. Its nature and subject matter; 3. The circumstances surrounding the making of the contract; 4. The circumstances that are said to have brought about the frustration. THE FINDINGS [24] find the contract in this case made on May 05, 2004 called for the provision of ten foot deep, ten inch diameter concrete pilings to be the foundation for the deck upon which would sit glass sunroom. This provision of the contract was fundamental element in the contract. Movement of the foundation or the deck could cause damage to the glass sunroom, the walls, the window openings, and the door openings. The type and design of the foundation was critical to the mutual satisfaction of both parties and the overall success of the installation in both the short and long term. Both parties acted in good faith. [25] The contract was frustrated on July 10, 2004 when it was discovered that the intended foundation could not be constructed due to the high ground water in the town of Warman and specifically on the Ens job site. [26] The frustrating event or circumstance occurred after the formation of the contract. I find as a matter of fact in this case that it was not reasonably forseeable by either party. The change affected the fundamental nature of the contract. The event was permanent and non-transient. The contract as a result would be totally different from what the parties intended. The difference was much more than mere inconvenience. I find that the supervening event was beyond the control of both parties and resulted in a significant change in the original obligation assumed by them. [27] Based on the facts as I find them, and the applicable law, I find the contract was frustrated. [28] further find that there was not sufficient evidence to show that the sum of $96.25 was paid by Pacific Home Products Ltd. to Craig’s Excavation and Landscaping. find that Dennis Ens and Anne Ens are responsible to pay that sum directly to Craig’s Excavation and Landscaping as it was Dennis Ens who made the contract for the removal of miscellaneous items from his lot. [29] The Plaintiff Ens submitted that the Defendant Pacific Home Products Ltd. abandoned the contract. I find that the Plaintiff Ens has failed to prove that claim on a balance of probabilities. [30] The Plaintiff in the counterclaim, Pacific Home Products Ltd. submitted that the Defendant in the counterclaim, Ens repudiated the contract. I find that the Plaintiff in the counterclaim, Pacific Home Products Ltd. failed to prove that claim on a balance of probabilities. [31] With respect to damages find that The Frustrated Contracts Act, Chapter F-22.2, Statutes of Saskatchewan, 1994, applies. Under that Act the Court is given discretion to determine what amount of restitution is appropriate in the circumstances. 5(1) Every party is entitled to restitution of benefits conferred by that party’s performance or part performance under the contract on another party prior to the frustration or avoidance. (2) In determining the value of the benefits conferred, the court shall consider: a) the contract price; and b) any diminished value of performance caused by the failure to complete the contract. 6(1) In determining the value of the expenses lost due to frustration or avoidance, the court shall consider the contract price. (2) The court may apportion the value of expenses lost due to frustration or avoidance: a) equally between the parties; or b) in any manner that the court consider appropriate. (3) In apportioning the value of expenses lost, the court shall consider: a) course of dealing between the parties; b) custom or common understanding in the trade practice relating to insurance and; and c) any other relevant circumstances that suggests that: (i) one of the parties should bear the risk of expenses lost due to frustration of avoidance; or (ii) each party should bear the risk of its own lost expenses. [32] Considering all the facts presented in the case, I find that a just and reasonable resolution demands that the value of the expenses lost due to the frustration of the contract should be borne by the parties in a 65/35 ratio. I find that Pacific Home Products Ltd. should bear 65% of the loss and Dennis Ens and Anne Ens, 35% of the loss. make this finding based on the fact that Pacific Home Products Ltd. is in the business of constructing sunrooms. The Ens’ and Pacific Home Products Ltd. were not on an equal plane because Pacific Home Products Ltd. has more experience in constructing glass sunrooms. The Ens’ relied on the contractors experience to some degree, although not entirely, as Mr. Ens had firmly fixed definite opinions on some of the construction issues. The corporation may be able to further mitigate its losses over the course of time by using more parts salvaged from the material left over in the failed Ens project. Further I find that the corporation will be able to write off this loss over the course of time. [33] find the total loss proven in evidence to Pacific Home Products Ltd. is as follows: a) Sunroom material $5,529.13 b) Shipping costs 400.00 c) Building permit 80.25 d) Excavation costs 272.85 e) Design and drawing labour 500.00 Subtotal $6,782.23 f) Minus mitigation through salvage -1,000.00 TOTAL LOSS $5,782.23 [34] find this loss to be fairly apportioned as follows: 65% to Pacific Home Products Ltd. $3,758.45 35% apportioned to Dennis Ens and Anne Ens $2,023.78 [35] find that the Defendant Pacific Home Products Ltd. is required to pay the sum of $176.22 to the Plaintiff, Ens’ being the balance between the deposit of $2,200.00 received on May 05, 2004 and the apportionment of damages pursuant to the Frustrated Contracts Act, as have assessed it. [36] Therefore I award judgment in favour of the Plaintiff Ens’ against the Defendant Pacific Home Products Ltd. in the amount of $176.22. [37] In the circumstances of this case there will be no order as to costs.","The plaintiffs wanted to build deck and glass sunroom on the back of their home. They attended trade show and met the defendant, whose corporation had been in the business of building decks and sunrooms for 18 years. The plaintiffs contracted with the defendant to build their sunroom. The contract called for the provision of ten-foot deep, ten inch diameter concrete pilings to be the foundation for the deck upon which would sit glass sunroom. This provision was fundamental element in the contract. The type and design of the foundation was critical to the mutual satisfaction of both parties and the overall success of the installation in both the short and long term. The contract was frustrated when it was discovered that the intended foundation could not be constructed due to the high ground water in the town of Warman and specifically on the job site.  The plaintiffs sued the defendant for the return of their $2,200.00 deposit. The defendant filed a dispute note and counterclaimed for a balance they believed was owed to them of $3,604.13. HELD: There will be a judgment in favour of the plaintiffs against the defendant in the amount of $176.22. In the circumstances, there will be no order as to costs. Based on the facts and the applicable law, the contract was frustrated. The frustrating event or circumstance occurred after the formation of the contract. It was not reasonably foreseeable by either party. The change affected the fundamental nature of the contract. The event was permanent and non-transient. The contract as a result would be totally different from what the parties intended. The difference was much more than mere inconvenience. The supervening event was beyond the control of both parties and resulted in a significant change in the original obligation assumed by them. Both parties acted in good faith. The plaintiffs submitted that the defendant abandoned the contract. The court finds that the plaintiff has failed to prove that claim on a balance of probabilities. The defendant, in its counterclaim, submitted that the plaintiffs repudiated the contract. The court finds that the defendant (plaintiff in the counterclaim) failed to prove that claim on a balance of probabilities. Considering all the facts presented in the case, the court finds that a just and reasonable resolution demands that the value of the expenses lost due to the frustration of the contract should be borne by the parties on a 65/35 ratio: the defendant should bear 65% of the loss, and the plaintiffs should bear 35% of the loss. The plaintiffs and the defendant were not on an equal plane. The plaintiffs relied on the contractor's experience to some degree, although not entirely. The defendant corporation may be able to further mitigate its losses over the course of time by using more parts salvaged from the material left over in the failed project. Further, the corporation will be able to write off this loss over the course of time.",e_2008skpc108.txt
282,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 458 Date: 2010 12 15 Docket: F.L.D. No. 182 of 2009 Judicial Centre: Regina, Family Law Division BETWEEN: JAMES ALAN SCHEIBEL and ROBERT JAMES CROFT Counsel: James J. Vogel and Joanne C. Moser for the petitioner Gregory G. Walen, Q.C. for the respondent DECEMBER 15, 2010 SUPPLEMENTARY REASONS KEENE J. to November 25, 2010 JUDGMENT (2010 SKQB 439 (CanLII)) [1] am satisfied that the petitioner served the respondent with formal offer of settlement on September 14, 2010. The offer was not accepted (and indeed never was accepted) and the case proceeded to trial. The trial was concluded and the matter stood reserved pending my decision. About week after the conclusion of the trial, but before rendered my decision the petitioner revoked his offer. [2] have compared the offer of settlement to my decision. Suffice to say that my decision ended up being considerably more favourable to the petitioner than what the petitioner offered to settle for. This was the case for not only the family property issues (which the petitioner calculates he received about $229,888.00 more in my judgment than what he proposed in his offer) but also in terms of spousal support. The petitioner had offered to waive any spousal support but after trial ordered retroactive spousal support in the amount of $18,000.00. [3] The purpose of making formal offers to settle pursuant to the Queen’s Bench Rules of Court is obvious. Nor is this new or novel proceeding under the Queen’s Bench Rules of Court. The parties are encouraged to try and settle their disputes on reasonable basis and thereby avoid the heavy financial and emotional burden of trial. The sanction so to speak of not accepting a reasonable offer properly tendered and proceeding to trial is found in Rule 184B of the Queen’s Bench Rules of Court. This Rule calls for double costs from the date of service of the offer. [4] The wrinkle here is that the petitioner’s offer was revoked. However it was revoked week after the conclusion of the trial. Obviously if it had been accepted when tendered there would not have been trial with the attendant costs of running the trial. The fact the offer was revoked in my view does not alter the concept set out above and the resulting sanction. [5] The respondent argues that both parties received mixed results. The respondent further argues that the issues that were litigated were substantial and merited trial. agree that the positions put forth by both parties at trial did not result in either party getting exactly what they argued they should. However, nonetheless the fact remains that an offer to settle was tendered which was not accepted and the trial proceeded. Again all of this would have been avoided had the offer been accepted. That is the intent in my opinion of Rule 184B and shall implement the Rule. [6] In addition I wish to use my discretion offered to myself under Rule 545 to award costs as I see fit. [7] The combination of Rule 184B and Rule 545 lead myself to the following conclusion. I order that the petitioner shall have party to party costs under Column 3 up to September 14, 2010. From September 14, 2010 the petitioner shall be awarded double party to party costs under Column 3. In addition the petitioner shall receive his costs for this application fixed at $500.00. Since these matters have now been concluded all costs of course are payable forthwith. J. T. J. Keene","Supplementary reasons to 2010 SKQB 439. The petitioner served the respondent with a formal offer of settlement on September 14, 2010. The offer was not accepted and the matter proceeded to trial. A week after the trial was concluded and while the decision was reserved, the offer was revoked. The petitioner applies for costs against the respondent pursuant to Queen's Bench Rule 184B. HELD: Queen's Bench Rule 184B calls for double costs from the date of service of the offer. The fact the offer was revoked does not alter the concept in Rule 184B and the resulting sanction. The petitioner was awarded party to party costs under Column 3 up to September 14, 2010 and double party of party costs under Column 3 thereafter, together with the costs for this application. All costs were payable forthwith.",d_2010skqb458.txt
283,"J. 2006 SKPC 95 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT REGINA, SASKATCHEWAN Between: HER MAJESTY THE QUEEN [F.R.] Mr. John Stoesser For the Crown Mr. Drew Belobaba For the Accused C.A. Snell, PCJ JUDGMENT October 18, 2006 I. INTRODUCTION [1] The Crown has applied pursuant to section 753 of the Criminal Code to have Mr. [F.R.] designated a dangerous offender. The Defence position is that he should be designated long-term offender. This decision addresses the question of whether the Crown has established beyond reasonable doubt that the offender is “dangerous offender” and must be sentenced to indeterminate detention. II. PROCEDURAL BACKGROUND [2] On April 19, 2005 found [F.R.] guilty of aggravated assault for wounding [P.M.] between July 1st, 2004 and August 25th, 2004. then ordered the preparation of pre-sentence report. However, prior to sentencing the Crown applied for remand for assessment, pursuant to section 752.1 of the Criminal Code, and presented materials indicating that Dr. Roger W. Holden would be qualified and able to provide the Court with the necessary assessment within the required time.[1] [3] was satisfied on the information before me that Mr. [F.R.] might be found to be dangerous or long-term offender and therefore remanded Mr. [F.R.] for the purpose of having Dr. Holden perform the assessment and provide his report to the Court. The matter was adjourned to permit Dr. Holden to complete his assessment, as initially he did not provide his report on the date promised. Once Dr. Holden’s report was received there were further adjournments to permit an examination by an expert chosen by the Defence. Dr. Holden’s report offered the opinion that Mr. [F.R.] should be found dangerous offender. Due to the delays in receiving the reports, the hearing did not proceed until June 12, 2006, more than year after the conviction for the predicate offence. [4] propose to review the applicable law at the outset, given that there were significant amendments to Part XXIV of the Criminal Code in 1997 which have been interpreted recently by both the Supreme Court of Canada and the Saskatchewan Court of Appeal, and given the unusual nature of this sentencing procedure. [5] The statutory requirements for finding that an offender is dangerous offender are found in section 753(1) of the Criminal Code as follows: The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be dangerous offender if it is satisfied (a) That the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;... [6] new designation was created in the 1997 amendments. Section 753.1 sets out the requirements of the new long-term offender designation, as follows: (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be long-term offender if it is satisfied that (a) it would be appropriate to impose sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is substantial risk that the offender will reoffend; and (c) there is reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there is substantial risk that the offender will reoffend if ... (b) the offender (i) has shown pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms part, that shows likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons.[2] [7] There is significant difference between the sentence imposed on dangerous offender as opposed to long-term offender. The dangerous offender is made subject to an indeterminate sentence, with parole eligibility beginning after seven years in custody and reviewed every two years thereafter. The long-term offender is sentenced to definite term of imprisonment of more than two years, with normal parole eligibility, plus term of community supervision of up to ten years, which term can be reduced in certain circumstances. The result of the 1997 amendments, which did not change the criteria for finding person dangerous offender, is that some offenders who would previously have been found to be dangerous offenders may now be found to be long-term offenders, according to the cases decided since the amendments, which will now review. [8] In R. v. Johnson[3] the Supreme Court of Canada made it clear that the Court must now also consider, on dangerous offender application, whether the subject of the application might be found long-term offender, despite the fact that the requirements of s. 753(1) for dangerous offender finding have been met. The Court emphasized that the principles of sentencing contained in s. 718 to 718.2 of the Criminal Code continue to apply to the exercise of discretion in dangerous offender applications when determining what result will satisfy the sentencing objective of public protection. In particular, the fundamental principle of proportionality and the principle of restraint set out in paragraphs 718.2 (d), that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and (e) that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders, must be considered. The Supreme Court concluded as follows, at paragraph 28: The principles of sentencing thus dictate that judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e.. where definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. [9] The Saskatchewan Court of Appeal issued concurrent judgments on three cases involving Part XXIV of the Criminal Code in 2004: Lemaigre v. The Queen,[4], R. v. K.R.S.,[5] and J.L.A.G. v. The Queen.[6] These cases all involved trial court decisions which pre-dated the Supreme Court of Canada decision in Johnson, so the Court of Appeal had to assess whether the trial judges in each of these cases had recognized the need to consider finding the offender long-term offender, even if he met the criteria of dangerous offender, and appreciated that the essential question to be considered was whether the risk to re-offend is reasonably open to eventual control in the community. Mr. Justice Cameron outlines the proper analysis in Lemaigre at paragraphs 14 to 16[7]: Having regard for the respective criteria governing the dangerous and long-term offender designations, an offender who qualified as dangerous offender will almost always qualify as long-term offender as well, provided there exists reasonable possibility of eventual control of the risk in the community. That leaves open the possibility that an offender, who would otherwise be sentenced as dangerous offender, might be sentenced as long-term offender instead. The sentence reserved for the latter is less restrictive, matter of significance because in principle the less restrictive sentence is to be imposed whenever reasonably fit. Hence, on dangerous offender application, the sentencing judge, before sentencing person to an indeterminate period of imprisonment as dangerous offender, must suitably consider the alternative, namely sentencing the person as long-term offender to determinate period in prison followed by period of community supervision: R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357. And in keeping with Johnson it is incumbent upon the judge, when considering the alternative, to bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention. The corollary of this is that the sentence reserved for long-term offenders, the lesser of the two, is meant for that much broader group of offenders whose risk of re-offence, while exceptional, appears open to eventual control in the community by means of term in prison followed by period of supervision in the community supervision under such conditions as may serve to control the risk and reduce it to an acceptable level. [10] R. v. Lemaigre was case involving domestic violence which continued throughout the accused’s twenty year marriage to the victim. Mr. Lemaigre had lengthy criminal record for violence towards his wife and others, but over time he became less violent towards others. He also had serious alcohol problem. The types of offences committed by Mr. Lemaigre seemed to be explosive incidents of violence in the context of drunken arguments. The Court of Appeal remitted this matter back to the trial court as it was of the view that there had not been adequate consideration of the opportunities that might exist for the eventual control of the offender’s risk to re-offend in the future, stating as follows at paragraph 57 of the report: His test is not so much concerned with reducing the threat to an acceptable level as it is concerned with virtually eliminating the threat prior to release from prison. Not only that, his test excludes the potential for reduction of the risk to an acceptable level by means of community supervision, including the prescribed conditions to which community supervision is subject and the additional conditions that may be imposed by the Parole Board. [11] Mr. Justice Cameron also addresses, in Lemaigre, the responsibility of the trial court in assessing the evidence. At paragraphs 68 and 69 he states: .. An application to have an offender declared dangerous offender, and sentenced accordingly, cannot succeed without the sentencing judge being placed in position to properly discharge these responsibilities. Their proper discharge requires an appropriate base of fact and opinion. To the extent that base is lacking, the prosecutor’s application is at risk of being dismissed. Thus, if prosecutor, in advancing an application under section 753, should do nothing more than establish the existence of one or more of the dangerous offender criteria appearing in section 753(1)(a) the application runs the distinct risk of being dismissed, for the offender may choose to do nothing but stand passively aside. In that event, the sentencing judge would be left without the requisite base of fact and opinion to determine the essential question of whether the sentencing sanctions available under s. 753.1 are sufficient to reduce the threat of public harm to an acceptable level, notwithstanding the fact the requirements of section 753 have been met. In many instances the void will prove fatal to the application. This is especially so in borderline cases. [12] In R. v.K.R.S. the Court reversed finding that the accused was dangerous offender and found him to be long-term offender instead. The predicate offence which the offender had committed was an extremely brutal aggravated assault in which he caused irreversible brain damage to the victim whom he believed had sexually assaulted his sister. The accused had stomped on the victim’s head, stomach and groin area and kicked him when he was lying on the floor gravely injured. He had previously been convicted of another aggravated assault nine years earlier in which he had beaten the victim with baseball bat. Other previous convictions included robbery which involved him stabbing the victim in the thigh and assault with weapon for spanking six year old child with shoe. The error in law found by the Court in this case was the same as it found in Lemaigre; the standard is not whether cure is guaranteed but whether there is reasonable possibility of eventual control in the community. [13] On that issue Justice Jackson stated as follows, at paragraph 53 of the K.R.S. decision: To determine whether there is reasonable possibility of Mr. K.R.S. eventually being controlled in the community, one has to be concerned about behaviour exhibiting the degree of violence reflected in the aggravated assaults, and, to some extent, set aside the other offences. When one does this, one is left with one occasion with two aggravated assaults which occurred in 1991 when Mr. K.R.S. was 21 and the predicate offence, nine years later. There have been also periods when Mr. K.R.S. was drug and alcohol free, and he was working and not committing offences. From 1995 until 1998, Mr. K.R.S. seems, by all accounts, to have been living an appropriate life. Even after severely striking child in the guise of discipline in 1998, Mr. K.R.S. managed for almost another year and half to avoid violence. [14] The third case in the trilogy of Court of Appeal decisions noted above is R. v. J.L.A.G. The predicate offence in this case involved the attempted murder of woman and her parents. The accused had dated the woman briefly, but she had told him she no longer wished to date him. He attended to their home armed with three knives. The father was stabbed twenty-four times, the mother twelve times and the daughter thirty-six times. All suffered significant and long-term physical and emotional damage. The offender had previously been convicted of manslaughter for stabbing man who lived with his mother. He was only twenty years old at the time of this offence. [15] There was conflicting evidence at the hearing. The Crown expert reported that the accused “...suffered from severe personality disorder and presented high risk of serious violence offence, risk which was highly unlikely to be significantly modified within the foreseeable future, either through treatment, or aging, or restraining measures.”.[8] The Defence expert provided the opinion that the offender suffered from “...depression, post-traumatic stress, and an ‘intermittent explosive disorder’, conditions which were amenable to effective treatment with drugs.”[9] There had also been psychological assessments of the offender conducted previously, one of which suggested that he had an entrenched belief system foreclosing appreciation of the wrong he had done in his earlier offence. The trial judge concluded that the offender was not amenable to treatment. The Court of Appeal found he had properly considered the availability of long-term offender designation, therefore it upheld the dangerous offender designation. [16] Another Saskatchewan Court of Appeal decision which is instructive is R. v. Otto[10]. In this case the long-term offender designation was set aside and dangerous offender designation substituted. The Court concluded that the trial judge had failed to properly consider the evidence concerning attempts which had been made to control the offender’s behaviour in the community and the failure of the expert who testified to consider this when he gave his opinion. The Court quoted with approval at paragraph 20 passage from decision of the Ontario Court of Appeal[11] as follows: 47 Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long‑term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within definite period of time: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA 66 (CanLII), 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(c), namely, whether there is reasonable possibility of control in the community of the risk of the offender re‑offending. The court also noted that the French version of the section requires ""une possibilité réelle"", or ""real possibility"", which may require an even higher degree of certainty in the evidence than the English version, ""reasonable possibility"". [17] Thus, the decision in the present case will rest upon careful examination and evaluation of the evidence of the expert witnesses. There must be more than an expression of hope that the person can be treated, but we must not require an absolute guarantee of treatability. found the decision of my brother judge White, J. in R. v. R.H.L.,[12] to be very helpful on this issue, particularly his analysis at paragraph 13: The key factors which will determine whether there is reasonable possibility of control of the risk of harm in the community are those things that suggest that changing the offender’s behaviour is possible or whether it is well nigh impossible. Two situations immediately come to mind: the offender who is of low intelligence and/or has severe learning disabilities and the offender who suffers from deeply entrenched psychological disorder that is resistant to cognitively-based programming and/or treatment. These would constitute strong cases for dangerous offender designation. The contrary is also true; where the offender does not suffer from an inherent defect of character or reason one can often conclude that the possibility of change and reduction of risk in the future with treatment is not unrealistic it is not what one would call remote or unreasonable possibility. (references omitted) IV. PERSONAL HISTORY [18] Mr. [F.R.] is thirty-two years of age. He has amassed criminal record consisting of forty previous convictions, many of which were for violent offences, although ten convictions were for mischief. He is the youngest of eleven children.[13] He observed violence between his parents and did not have good relationship with his father. He has reported that he was physically abused by his father and by his siblings. His mother was, and is, his primary support within the family. However, his mother has acknowledged that she was busy raising some of her grandchildren when he was child and that he may have been neglected as result. [19] Mr. [F.R.] was placed in the Lebret Residential School when he was eight years of age for eight months, during which time he was subjected to physical and sexual abuse. Following the family’s move to Regina, he suffered racially based bullying at school, had few friends and often was involved in fights. His school attendance was poor and ended early. He achieved his Grade at the age of twenty, while he was in the penitentiary. [20] Mr. [F.R.] has long-standing history of alcohol and drug abuse. He began drinking at age twelve and by age fourteen he was drinking on regular basis, as much as he could, increasing as he got older. Similarly, he began using illicit substances at the age of twelve, beginning with marijuana and then Restoril, Valium and speed when it was obtainable. By the age of twenty he was using cocaine, morphine, Talwin and Ritalin intravenously. [21] Mr. [F.R.] has three children aged thirteen, eleven and nine from three separate relationships. He has little contact with his children. He acknowledged to the person who prepared the pre-sentence report that all three relationships involved domestic violence. As will be seen below, the most serious of his previous offences involve domestic violence. [22] He reported to one of the experts[14] that his father introduced him to Aboriginal traditions and his mother introduced him to Christian traditions. His familiarity with Aboriginal traditions is rudimentary at this time, but he has recently established contact with an Elder from his home Reserve. [23] Mr. [F.R.] has been made subject to various court orders to take substance abuse treatment and anger management or domestic violence treatment. His commitment to treatment while in the community was negligible. The probation documents in exhibit P-5 are replete with instances of his failures to report and to take programming arranged for him. He was manipulative with the probation officers who were very tolerant with his excuses and failures to respond and who were persistent in their efforts to supervise him and provide him with the programming he required and had been ordered to take. Although he was occasionally charged with breach of probation, he was by no means charged on every occasion when he might have been. [24] He did better when taking treatment while incarcerated. In particular, during his three year penitentiary term he successfully completed programs related to cognitive skills, parenting skills training, living without violence, and anger and emotions management. However, he was suspended for lack of attendance to an Aboriginal specific Alcoholics Anonymous program within the institution. Progress Report dated October 25, 1996 contained within the Correctional Service of Canada documents, marked exhibit P-6, states that he did not attend the Batterers Group as suggested, he did not make commitment to address his substances abuse issues and he did not address his aggression through the ABC program at the Regional Psychiatric Centre. V. CRIMINAL HISTORY A. The Predicate Offence- Aggravated assault of [P.M.] from July to August 25, 2004 [25] Mr. [F.R.], who was almost thirty years old at the time of the offence, and Ms. [P.M.], who was nineteen at that time, had been living together for about month and half prior to August 25th, 2004, when he was arrested for assaulting her. However, they had previously lived together for significant period of time prior to his service of jail term in 2003, beginning when she was seventeen years old. She testified at the hearing about Mr. [F.R.]’s violence toward her during that earlier time period, which will be outlined later in this decision. [26] On August 25, 2004, the police were investigating reported stabbing which took them to Mr. [F.R.]’s residence. Mr. [F.R.] initially denied them entry into the residence, but eventually did allow them to come in to check if anyone inside required assistance. [P.M.] was found lying in bed in one of the bedrooms, flat and still, with the sheets pulled up to her face. The officer was able to observe some injuries to Ms. [P.M.] and although she was not immediately cooperative, she went with the officer to the police vehicle and then to the hospital. Ms. [P.M.] initially blamed third party for her injuries, but later gave statement that Mr. [F.R.] had caused them. [27] The evidence at the trial was that Mr. [F.R.] had assaulted the victim with his fists, had whipped her with an electrical cord and had hit her on the head with bottle. She was observed to have suffered many injuries, but some of them had been caused on an earlier occasion. For example, her jaw was broken in two places but she had suffered pain in that area prior to the night in question so Ms. [P.M.] was not sure if it was broken on that night or if it had been broken previously. She testified that she had been whipped on the back with electric cords both on that night and previously. Ms. [P.M.]’s right eye was completely swollen shut; her other eye was swollen and bruised. She had cut to her right earlobe and the top of her ears were black with bruises. She had two cuts to the top of her head. She had bruises, of different ages, on both legs, her breasts and her arms. Her hands had cuts all over them. The photographs of her injuries which had been marked exhibit P-1 at the trial, made it clear that Ms. [P.M.] had been assaulted over period of time and not just on the evening of August 25, 2004. [28] Ms. [P.M.] testified that she did not report any of the incidents of violence to the police because Mr. [F.R.] told her that he would leave her and her family alone if she did not tell on him. She said that she was not allowed to see her family and rarely went out. She testified that she did not try to get away that night because he was always there making sure she did not phone anyone. B. Previous Criminal Behaviour [29] will review only the offences which involve violence. In addition to receiving evidence concerning previous convictions, the Court is entitled to receive and consider evidence of events which did not proceed to judicial determination previously, if the evidence is credible and reliable.[15] Accordingly, received evidence from [S.O.] concerning an assault on her by Mr. [F.R.], and, as noted above, from [P.M.] concerning other incidents of violent behaviour towards her by Mr. [F.R.], in addition to the predicate offence. [30] The incidents are set out in chronological order, except that have placed the description of Mr. [F.R.]’s only sexual offences in sequence at the time when they were dealt with in court, despite the fact that they would have been the first offences he committed. Since it is significant to know whether there have been periods of time when Mr. [F.R.] has been law-abiding citizen, have also attempted to outline when he was at large in the community although was not provided with documentary evidence of his release dates from prison, so have had to estimate those as best could. (1) Aggravated assault of Trevor Leigh on August 25, 1991 [31] On October 2nd, 1991 Mr. [F.R.] was convicted in youth court of aggravated assault. He received sentence of 11 months secure custody plus probation for two years, condition of which was that he take alcohol treatment. As there was no transcript available concerning this conviction, but there was Certificate of Conviction, admitted the statement of Lisa Marie Grey, as exhibit P-11, which outlines the circumstances surrounding the offence. She describes an incident in which Mr. [F.R.] got into fight with male victim. He then produced knife and stabbed the victim twice in the back. Apparently the injuries were not life-threatening. At the time of this offence he had already been before the youth court on two occasions concerning break and enter offences for which he had received probation and community service work sentences. He would have just completed his probation term when he committed this offence. [32] The next three violence related convictions all concern [T.R.], who was involved in relationship with Mr. [F.R.] on and off from January to December of 1993. There are three separate sentencing proceedings concerning offences during that time because initially Ms. [T.R.] was only prepared to testify about isolated incidents and not the entire sequence of events. In the result, there is an overlap, as outlined below, in the dates of the offence covered by the last of those convictions, which was entered on April 15, 1994 (for an assault causing bodily harm between April and October 1, 1993) and those entered earlier (on May 5, 1993 and December 29, 1993). Mr. [F.R.] would have been on probation at the time all of these offences were committed, having been released from custody on Sept. 21, 1992. (2) Assault on [T.R.] on January 14, 1993 [33] On May 5th, 1993 Mr. [F.R.] was convicted of assaulting [T.R.], for which he received $150.00 fine plus probation for months. The circumstances surrounding this offence are contained in the sentencing transcript, exhibit P-3. The victim was approached by Mr. [F.R.], who was her ex-boyfriend, at family recreation centre. An argument ensued. Mr. [F.R.] yelled at her, slapped her and kicked her. The Crown characterized the incident as unprovoked. However, the Summary of Mr. [F.R.]’s previous convictions prepared by the Crown (P-4) indicates that the incident was precipitated by Ms. [T.R.] having had fight with Mr. [F.R.]’s present girlfriend. This additional comment, while not in the sentencing transcript, is of benefit to Mr. [F.R.], as somewhat mitigating factor, so will consider it as such given that it was mentioned by the Crown in its Summary. (3) Assault causing bodily harm to [T.R.] and breach of probation on December 7, 1993 [34] Mr. [F.R.] was convicted of this offence on December 29, 1993. He received one month in jail for the assault and 15 days concurrent for the breach of probation, plus one year probation with the condition that he take anger management counselling. [35] Information provided at the sentencing hearing was that the parties became involved in an argument. Mr. [F.R.] grabbed Ms. [T.R.] by the hair and tried to pull her upstairs, then he grabbed her by the throat and choked her, following which he punched her in the eye so hard she fell to the ground. She was unable to see because her eye was swollen shut, cut and bleeding. She required stitches to her right eyelid and had other bruises to the face area. [36] The accused said in his sentencing remarks that he had enrolled in the Alternatives to Violence program himself. He said he was sorry and ashamed of himself. When asked by the court what started the fight he indicated that Ms. [T.R.] had been swearing at him and calling him down in front of his nephews and he felt humiliated. He said they had previously talked about his bad temper and that their relationship needed to be worked on, and that he had pleaded with her not to test his temper or provoke him but to help him work with it. He said he had quit drinking and drugs but that day it went awry and he felt really bad about that. He stated that he breached his probation condition not to contact her because he wanted to see how she was doing as she was having his baby in one month. He said that he wished she could really understand that he has problem with his temper and that he felt the program he was in could help him. (4) Assault causing bodily harm to [T.R.] between April 1, 1993 and October 1, 1993, and breach of probation [37] On April 25, 1994 Mr. [F.R.] plead guilty to serious continuing assault on Ms. [T.R.], which in fact preceded the individual incident that he was sentenced for on December 29, 1993 and in terms of the time period covered, would have included the single incident that led to the assault conviction on May 5, 1993. It may be noted that much of the assaultive behaviour occurred after the conviction on May 5, 1993. [38] The Crown outlined to the presiding judge that Ms. [T.R.] had been subjected to lengthy period of physical and emotional abuse by Mr. [F.R.] during their common law relationship. The Crown stated that Ms. [T.R.] had suffered beatings inflicted by Mr. [F.R.] on numerous occasions, beginning in mid-April of 1993 and carrying on through that year. She was pregnant for part of this time. The Crown indicated that Mr. [F.R.] isolated Ms. [T.R.] from her family and friends; that if Ms. [T.R.] wanted to go out he would ask his mother to keep an eye on her to make sure that she did not go anywhere. In addition, if she did go out, he would often accompany her. [39] Some of the events which Ms. [T.R.] provided details about are described in the sentencing submissions. One incident occurred when Mr. [F.R.] and Ms. [T.R.] were sleeping in bed. Mr. [F.R.], for no apparent reason, began kicking Ms. [T.R.] in the jaw. Her jaw locked and also she suffered swelling and bruised eye. [40] The next incident described occurred when Ms. [T.R.] decided to leave and was packing her clothes. An argument resulted. Mr. [F.R.] hit her in the face when she got out the door. She fell to the ground and screamed for the accused’s mother to try to stop him. However, Mr. [F.R.] then grabbed her by the hair, dragged her back into the apartment and kneed her in the head so hard that she blacked out. When she regained consciousness he was slapping her on the face. He proceeded to choke her until she passed out and then he threw her into the tub. Although he was continuing to hit her in the tub, his mother convinced him that he should stop because he was frightening his nephew who was present in the apartment. Mr. [F.R.] threatened to kill Ms. [T.R.]’s family and threatened to use Indian medicine on her. Approximately forty-five minutes later he renewed the assault and began hitting her with the crutches she required at the time as she was recovering from an operation on her foot. She suffered black eye and numerous bruises on her body. [41] On May 13th, 1993 Ms. [T.R.] moved out of the apartment. She visited Mr. [F.R.] periodically following that time but she did not move back in with him. In mid-August of 1993 Ms. [T.R.] was at her sister-in-law’s apartment when Mr. [F.R.] arrived there and began punching her, pulling her hair and burning her with cigarettes. They left to go to party and get something to eat. Mr. [F.R.] began hitting her again while she was driving the vehicle. They eventually pulled up to Mr. [F.R.]’s parents’ apartment. Ms. [T.R.] got out of the vehicle and began running. Mr. [F.R.]’s parents told her to keep running, but Mr. [F.R.] caught her on the front lawn and dragged her into the apartment. Once inside the apartment he kept the apartment door shut with her crutch and punched her in the face four times, which resulted in bruising on her forehead and swollen lip. She also suffered bruising to her wrists and legs. Although the police were contacted regarding this incident, Ms. [T.R.] did not complete the statement form they left for her so no charges were laid at that time. [42] In September of 1993 Ms. [T.R.] and Mr. [F.R.] got into an argument over his allegations that she was dating someone else. He punched her, knocked her to the ground and then punched her in the face. As she got up he pulled out inch locking blade knife and threw it at her, however it stuck in the wall. Ms. [T.R.] ran to the door but as she did he stabbed her in her upper left biceps. [43] In the same month Mr. [F.R.] and Ms. [T.R.] again got into an argument over her seeing another man. On this occasion Mr. [F.R.] took hockey stick and hit her several times causing significant bruises to her head, ribs and back. She indicated that her head hurt so badly that she could not wash her hair for at least month. Subsequently to the hockey stick assault Mr. [F.R.] hit Ms. [T.R.] on her legs with baseball bat, resulting in soreness and bruises. Ms. [T.R.] advised that Mr. [F.R.] had also occasionally struck her with steel bar. [44] In another incident, Mr. [F.R.] criticized Ms. [T.R.] for going to tanning studio. He grabbed her leg stating that if she wanted her skin another colour he would make her think twice. He then cut her above the left ankle and smeared blood up her leg. Finally, in October of 1993 Mr. [F.R.] inflicted two puncture wounds to Ms. [T.R.]’s left leg and one to her right leg. The Crown stated that Mr. [F.R.] prevented Ms. [T.R.] from seeking medical attention regarding any of her injuries. He stated to the Correctional authorities that this was because none of the injuries were serious enough to warrant medical attention.[16] [45] Mr. [F.R.] received penitentiary term of three years imprisonment for the continuing assault and one month concurrent for the breach of probation offence. In addition, he was made subject to ten year Firearms Prohibition Order. [46] Arrangements were made for Mr. [F.R.] to plead guilty to three dated sexual assault offences after he received the three year jail term, so what follows is not in chronological order. (5) Sexual Assault on S.C. October 21, 1988, sexual assault on N.B. between July 27, 1986 to August 31, 1987; sexual assault of A.R. between July 27, 1986 to August 31, 1987- conviction June 16, 1994 [47] On June 16th, 1994 Mr. [F.R.] entered guilty pleas to three counts of sexual assault related to offences occurring between July 27th, 1986 and August 31st, 1987 when Mr. [F.R.] was twelve and thirteen years of age, and one count which occurred on October 21st, 1988 when he was fourteen years of age. The Crown submissions were that these incidents were episodes of fondling younger cousins on their private parts, over their clothing. [48] In light of the fact that two of these three incidents occurred before Mr. [F.R.] was fourteen years old there was joint submission of one year concurrent time with respect to the incident which occurred in 1988, and time served on the two other matters since he had been denied bail earlier with respect to those charges. The presiding judge noted that had Mr. [F.R.] been sentenced at the time of the offences the sentence would not have been so severe and he would not have been denied bail. In all the circumstances, he accepted the joint submission, stating that the sentence was likely heavier than it would have been if imposed earlier. [49] Mr. [F.R.] was held until warrant expiry on his three year sentence in the penitentiary so he was not released until April 24, 1997. (6) Assault on [M.Z.] on November 6, 1997 [50] On March 17th, 1998 Mr. [F.R.] was convicted of assaulting [M.Z.]. He received sentence of six months imprisonment plus eighteen months probation. The transcript with respect to these proceedings was not available and Ms. [M.Z.] did not respond to personally served subpoena to testify on the application hearing. Since there was Certificate of Conviction in exhibit P-2 confirming that she was the complainant in this matter, permitted the Crown to file her statement regarding the incident, which was marked exhibit P-12. [51] Ms. [M.Z.]’s statement indicates that she began going out with Mr. [F.R.] around the beginning of July, 1997. His violence towards her commenced around the end of July. She lived with Mr. [F.R.] for few months but there were also times of separation. She agreed to go back to his house with him on November 6, 1997. Mr. [F.R.] became angry at her lack of response to his overtures and hit her once on the cheek, twice on the back of the head and punched her in the buttocks. Photographs marked exhibit P-7 from the Regina Police Service file, which also admitted, show minor bruising to the face and abdomen. [52] Since Mr. [F.R.] was released in April of 1997 there was really no gap in his violent behaviour prior to the commission of this offence, given Ms. [M.Z.]’s statement that he became violent with her towards the end of July, 1997. He would have been released from the jail term he received for his offence against Ms. [M.Z.] around the middle of July, 1998 so there was short gap of four months prior to his next offence but he would have been on probation at the time he committed the next collection of offences. (7) Uttering threats to [N.R.] November 30, 1998 (conviction January 31, 2000) [53] The complainant reported that her brother, Mr. [F.R.], telephoned her residence. When Ms. [N.R.]’s boyfriend answered the phone, Mr. [F.R.] told him to tell the complainant, “Quit fucking phoning here”. Ms. [N.R.] picked up another phone and told him that he was not supposed to be telephoning her residence. She indicated that Mr. [F.R.] started to swear and use foul language towards her and said that he was going to “come over and kill her”. He also threatened to damage her vehicle. She indicated that he sounded sober. Mr. [F.R.] received sentence of four months imprisonment for this offence. (8) Breach of Probation on January 26, 1999 (conviction January 31, 2000) [54] This offence related to Mr. [F.R.]’s failure to take the Abuse Prevention Education Supervision Group as instructed. He received two year suspended sentence. (9) Assault on Falcon Bitternose on June 23, 1999 (conviction January 31, 2000) [55] Apparently Ms. Bitternose and Mr. [F.R.] occasionally stayed in the same residence, but they were not involved in domestic relationship at the time of the offence. Mr. [F.R.] came home the evening of this offence and stood in front of Ms. Bitternose, who was lying down. He stated to her several times that he was not skinner and that he liked her. She reported that he then kicked her in the mouth. Although she tried to leave, Mr. [F.R.] grabbed her by the arm and told her she was not allowed to go anywhere. He apologized for kicking her. However, he then became aggressive again and punched her in the face. She told Mr. [F.R.] that she was feeling dizzy, but he punched her in the face again. The Crown indicated that she stated she was punched so hard that she blacked out. When she awoke she went downstairs and Mr. [F.R.] told her to get dressed because he wanted her to go out and commit theft. She ran to the 7-11 store with Mr. [F.R.] chasing her. She waited there until he left. When she was seen by the police later, they noticed bruises on her face and cuts to her shoulder. [56] Mr. [F.R.] spoke to Dr. Holden about this incident.[17] He stated that he came home drunk and was blacked out and he accidentally stepped on the victim’s head. He told Dr. Holden that the fact that he was charged with this made no sense to him. However, he was present at the sentencing hearing so he would have heard the facts related by the Crown on this occasion, and more importantly, the remarks of the sentencing judge, which will reproduce in the next paragraph. [57] The presiding judge, on this sentencing, noted that the accused was getting close to the point when the Crown might be prepared to consider taking habitual offender proceedings. Defence counsel told the court that the accused was now motivated to change. The judge addressed Mr. [F.R.] as follows:[18] You’ve shown by your record and what I’ve heard today that time and time again your mother, other members of your community, Probation Services, the courts have attempted to do things with you to help you to get hold of your spirits and make some changes so that rather than getting into trouble learn to understand the respect that people owe as first obligation to one another so that we can live in harmony in our communities. And you haven’t been able to do that and until you do you leave me with absolutely no choice with all of these violent offences in the past, particularly violent offences against women. You leave me no choice. don’t give up on you and that’s why- and I’m sure your family doesn’t give up on you either. That’s why there’s going to be probation order for as long as can make it at the end to provide for people to help open doors again for you. But do you understand what mean when say you’ve got to walk through those doors? It doesn’t do any good if make probation order saying you’re going to get treatment. If you don’t go for that treatment you’re going to be back here. And you are in very, very vulnerable position. You’ve got whole lot of serious offences against women, violent offences against women. And that’s why asked the prosecution that question. They are very close to making some form of habitual criminal application which would mean that you’d be in jail for –one doesn’t know how long, but you know it could be for the rest of your life, mean it’s as close as we come to throwing away the keys. When somebody has shown themselves by their offending to be permanent threat to the innocent members of society there are ways that those people can be locked up for literally permanently. And you don’t need that, your family doesn’t need that. You have to make these changes that are necessary. [58] Mr. [F.R.] was sentenced to four months imprisonment, consecutive, for this offence, and was placed on probation for two years as result of the suspended sentence received for the breach of probation offence dealt with at the same sentencing proceeding. (10) Assault causing bodily harm to [S.O.] on November 17, 1999 [59] Ms. [S.O.] is Mr. [F.R.]’s niece. She testified at the dangerous offender hearing about an incident which she said occurred on November 17th, 1999. However, it may be that she is mistaken about the date as the transcript of the January 31, 2000 hearing indicated that Mr. [F.R.] had been on remand from the end of October, 1999. Alternatively, it may be that the time of remand began little later. There was no evidence concerning whether this incident had been reported to the police but was not proceeded with, for some reason, or if it simply was not reported. However, as there was no indication that this matter had previously been adjudicated upon, permitted Ms. [S.O.] to testify about this incident and considered her evidence on the application. [60] Ms. [S.O.] testified that she had fallen asleep at her residence but awakened to discover that her sister Kara was arguing with Mr. [F.R.] outside the residence. She went outside and asked what was happening. Mr. [F.R.] asked Ms. [S.O.] to tell the other women who were there at the time who he was. She replied that he was “nothing but woman beating punk”, because she was friend of [F.B.], who had been assaulted by Mr. [F.R.] as outlined above. Mr. [F.R.]’s immediate response to this insult was to punch her in the jaw, breaking it. Her jaw was wired shut for two months. Ms. [S.O.] was sixteen years of age at the time of this incident. [61] Ms. [S.O.] was very good witness. She gave her evidence in very straightforward fashion and there was nothing in her demeanour or her testimony which would suggest that her evidence should not be accepted as truthful. Accordingly, believe her evidence and am satisfied, beyond reasonable doubt, that Mr. [F.R.] did assault her as testified to.[19] [62] As noted above, Mr. [F.R.] was sentenced on January 31, 2000 to total of eight months imprisonment, having been credited for three months on remand, plus two years probation. [63] There is gap in Mr. [F.R.]’s record from whenever he was released from jail after this sentencing, presumably around June of 2000 until March of 2002 when he was convicted of breach of recognizance, fail to appear and two counts of breach of probation, for which he received total sentence of four months imprisonment. This appears to be the only real gap of no criminal convictions or evidence of violent behaviour since his initial conviction as youth in 1990. There is only short period of time, from approximately May or June of 2002, when he would have been released after the four month jail term, until he began his relationship with Ms. [P.M.] later in 2002 or early 2003. (11) Assault causing bodily harm to [P.M.] alleged to have occurred prior to, and on April 9, 2003 [64] On April 9th, 2003, when the police were investigating an incident involving an assault and threats to Ms. Keshane, Mr. [F.R.]’s neighbour, which will be described below, the investigating officers discovered Ms.[ P.M.] (also the victim in the predicate offence) hiding in closet in the basement suite. She was taken to the General Hospital. Constable Hegi testified at the dangerous offender hearing that he observed great deal of swelling to her face and that her cheekbones were starting to blacken. When she was at the hospital in hospital gown the officer could observe that Ms. [P.M.] had great deal of swelling on her back and small lacerations, some short and some long, as well as puncture wounds to her legs. She had bruising and swelling on almost all parts of her body and the officer indicated that it was the worst assault result that he had ever seen to that point in his career. [65] Ms. [P.M.] testified at the dangerous offender hearing with respect to this incident and the period of time she cohabited with Mr. [F.R.]. She stated that during the time period when she lived with Mr. [F.R.], which began when she was seventeen years old, he would often assault her, when he was angry. She indicated that she often did not know what he was angry about. [66] She heard his argument with the neighbors on April 9, 2003. Mr. [F.R.] then came downstairs and took his anger out on her. He told her that she had better not tell anyone about him hitting her or she would get worse licking. She said that she had hidden in the closet because she had been beaten and Mr. [F.R.] did not want the police to see her like that. He told her to go into the closet and she did so. Although she was initially cooperative with the police, she later lied about the events because she was still with Mr. [F.R.] and did not want to get him in trouble and because he had promised that it would not happen again. [67] Ms. [P.M.] testified that she still has scars all over her body from the beatings she suffered at Mr. [F.R.]’s hands throughout the time she lived with him. The photographs introduced both at the trial and at the dangerous offender hearing confirm her evidence. She testified that in addition to whipping her on the back with curtain rod, he would use bat on her, on one occasion breaking her arm. Her arm was in cast when the police found her in the closet. In addition, he would use his hands and knives. She also testified that he would make her stand with her arms against the wall and then he whipped her with radio cord. [68] She indicated that marks shown in the photographs on her knee and just above her knee are places where he stabbed her. She also said that she had bald spots from stitches on the top of her head from injuries that he had caused. She agreed that Mr. [F.R.] used alcohol and drugs whenever he possibly could and that he certainly was high at the time of the incident on April 9, 2003. [69] found Ms. [P.M.]’s evidence to be credible and reliable and accepted it without reservation. (12) Assault with weapon and uttering threats to Shirley Keshane on April 9, 2003 (P certificate of conviction; transcript) [70] Mr. [F.R.] was convicted on December 16th, 2003 for assault with weapon and uttering threats. He had spent months on remand and received further six months imprisonment. This incident concerned an encounter between Mr. [F.R.] and neighbors who lived in the same building. Mr. [F.R.] came to the back door of the building and was pounding on it yelling, “let me in”, or words to that effect. This disturbed Ms. Keshane and her siblings who were living in an upstairs suite. They eventually went to the door and let him in. They asked what the noise was all about and asked him to be quiet. There was an argument, in the course of which Mr. [F.R.] threatened Ms. Keshane. She stated to him that she was not afraid of him at which point he pulled knife and threatened that he could “do her right there on the stairs”. He also uttered words to the effect that he could make phone call and have all of them “done in”. At that point Mr. [F.R.] went to the lower suite which was his and Ms. [P.M.]’s residence. [71] Presumably Mr. [F.R.] would have been released from this last jail term sometime in April of 2004. This was his last conviction prior to the predicate offence which was committed between July and August 25, 2004. [72] Before leaving this portion of the decision, some comments would be in order concerning Mr. [F.R.]’s criminal history. There are striking similarities between the evidence of Ms. [P.M.] and that of Ms. [T.R.] regarding the type of continuing physical and emotional abuse they suffered, controlling behaviour and threats to them and their families. [M.Z.] also referred in her statement to this type of behaviour when describing her relationship with Mr. [F.R.]. She mentions in her statement that Mr. [F.R.] made her kneel in front of him, lined up to be struck, while he yelled at her. At one point he threatened to cut her face. There are elements in these offences of acts designed to subjugate the victims which appear to be taken deliberately, as opposed to impulsively. [73] Since Ms. [M.Z.] did not testify, was hesitant to consider allegations which were not essential facts for the common assault offence on which the court was sentencing Mr. [F.R.]. However, given the similarity between what she describes and the accounts of the accused’s behaviour towards Ms. [T.R.] and Ms. [P.M.], believe that am entitled to consider his behaviour towards her to be another example of that pattern of behaviour. [74] also note that Mr. [F.R.] seems to have been particularly inclined to hit or kick women in the face, since this was an element of his assaults on [T.R.], [P.M.], [F.B.] and [S.O.]. VI. EXPERT EVIDENCE A. Evidence of the Crown Expert Dr. Holden[20] [75] Dr. Holden was qualified as an expert in forensic psychology. He has had extensive experience with providing risk assessments both for the National Parole Board and as an expert witness to the courts of Manitoba and Saskatchewan on many dangerous and long-term offender application hearings. [76] Dr. Holden interviewed Mr. [F.R.] for approximately six hours on September 26th and 27th, 2005. In addition, he administered number of tests or had Mr. [F.R.] complete tests on his own. In all, thirteen tests are outlined at pages 13 and 14 of his report. He felt that the results of the Minnesota Multiphasic Personality Inventory (MMPI) were not valid, on the basis that he felt Mr. [F.R.] was “faking good”, so he did not have the benefit of that test result in arriving at this opinion. However, he indicated that the fact Mr. [F.R.] did this did not affect the risk assessment, since this is not surprising thing for someone in Mr. [F.R.]’s position to do.[21] [77] With respect to his assessment of the risk which Mr. [F.R.] would present, Dr. Holden relied to great extent on the HCR-20, version 2, which is list of risk factors for predicting violent behaviour. There are twenty items of which ten are past or historical factors, five are present or clinical variables and five are future risk or risk management variables. One of the variables was psychopathy for which Dr. Holden used the PCL-R test. He stated that score of above 30 indicates serious psychopathy. Mr. [F.R.]’s score was 32. His total score on the HCR-20 was 36 out of 40, which resulted in Dr. Holden concluding that he has very high risk to re-offend violently in the future. On each variable examined in this test Mr. [F.R.]’s score was either that he was at an extremely high risk to re-offend violently or at very high risk or probability to re-offend violently, except with respect to the variable concerning mental illness. Mr. [F.R.] does not have any mental illness. [78] Dr. Holden testified that Mr. [F.R.] has significant personality issues; that he is untreatable; that his risk to re-offend is very high; that his risk to re-offend sexually is high and that he meets the criteria of dangerous offender. His opinion was that Mr. [F.R.] suffers from an antisocial personality disorder, some kind of substance abuse disorder and that aspects of his personality mirror psychopathy. [79] He testified regarding the issue of whether Mr. [F.R.] was psychopath or not, as follows:[22] I’m reluctant to label anyone psychopath because of the amount of connotations in the public of labeling someone psychopath, so prefer to suggest that he has aspects of personality which mirror psychopathy as we-as understand it. Psychopathy is constellation of personality attributes which tend to produce an individual who has little or no regard for convention, tends to be quite selfish, tends to justify behaviour on the basis of expediency, tends not to learn from one’s own–his own mistakes, tends not to accept treatment or accept even the possibility of needing treatment, very often has –psychopathy is (inaudible), 93 percent of the time actually with substance abuse; alcohol, 26 percent of the time with alcohol abuse, so there is hard relationship between (inaudible) abuse disorders and psychopathy. [80] Although Dr. Holden outlined what types of changes and treatments would be required, at minimum, to permit Mr. [F.R.] to be safe in the community, his conclusion was that it was not realistic to think that this could be achieved. He testified as follows:[23] think he has well-entrenched antisocial behavioural patterns. He has well-entrenched violence patterns going back to his early adolescence, perhaps earlier. He has personality traits which suggest that he hasn’t been able, up to this point, to live successful life, hasn’t been able to establish non-violent part of living, and hasn’t been able to establish any of the skill-sets or demonstrate the skill-sets which we would suggest are part of being successful in the community. So my suspicion is that it would take significant amount of work on his part. If indeed he is psychopathic, that’s not likely to work. In fact, the cognitive behavioural approaches which are the basis of corrections and other agencies rehabilitative efforts with inmates probably would be counterproductive with Mr. [F.R.]. [81] Dr. Holden was familiar with the Aggressive Behavioural Control program at the Regional Psychiatric Centre, and acknowledged that it is superior program. He agreed that if Mr. [F.R.] came out of that program admitting that he was very high risk to re-offend violently for the rest of his life, it might possibly make him safe, but only if he completely abstained from drinking. However, he doubted that Mr. [F.R.] would be able to do this. He notes in his report that Mr. [F.R.] told him that he had essentially sabotaged any treatment offered to him and that he continued to use illicit substances during his present incarceration at the Regina Correctional Centre. [82] Dr. Holden recognized that if there was any possibility of treatment rendering Mr. [F.R.] safe in the community, long-term offender designation should be the result, but his conclusion was that there was no possibility of that which he could anticipate at this time.[24] While it is not for the experts, but for the Court, to determine whether dangerous offender or long-term offender designation should be made, Dr. Holden’s opinion regarding Mr. [F.R.]’s potential for effecting change in his behaviour is worthy of consideration. [83] An issue arose concerning the reliability of one aspect of Dr. Holden’s opinion, as he was given incorrect information about Mr. [F.R.]’s criminal background. description of Mr. [F.R.]’s only sexual offences, which occurred between 1986 and 1988, but on which convictions were not entered until June 16th, 1994, is presented at page four of Summary prepared by the Crown, which was marked exhibit P-4. The description of these offences in this Summary is completely different from the circumstances presented by the Crown at the sentencing hearing as set out in the transcript, exhibit P-3, which have outlined above. The facts asserted, apparently from the police report, outline extremely intrusive and deviant behaviour far beyond that described by the Crown at the sentencing hearing which were incidents of fondling younger female cousins on their private parts, over clothing. [84] The information provided to Dr. Holden in the Summary was that one incident involved Mr. [F.R.] rubbing his penis on the sides of the victim’s vagina and forcing that same victim to perform fellatio on him. The other offences were described as fondling as well as one instance of Mr. [F.R.] laying his privates on top of the victim’s privates. The Summary states the plea bargain was necessary because of the weakness of the Crown’s evidence. It acknowledges that the facts provided to the court were “minimized” and sets out those facts. Nevertheless, from this point on in the Summary, with one exception, only the more serious facts are mentioned and noted to have been relied upon by the various correctional authorities who had subsequent dealings with Mr. [F.R.].[25] In the course of his testimony, Dr. Holden noted that he found Mr. [F.R.] to be in denial regarding his sexual crimes and resistant to any treatment concerning sexual deviancy. [85] The Crown Prosecutor candidly acknowledged that it was an error to provide the Crown expert with the more serious facts regarding the sexual offences. In the result, must discount Dr. Holden’s opinion concerning the risk Mr. [F.R.] presents of future sexual offending. [86] When asked to comment on the report and conclusions of the defence expert, Dr. Hengen, Dr. Holden stated that in his opinion Dr. Hengen’s assessment that Mr. [F.R.] was amenable to treatment was really an assessment that he was amenable to be taught to change, in the sense of having the intellectual capacity to change, rather than an assessment of his motivation to change.[26] [87] Dr. Holden testified that persons who are made subject to dangerous offender designation are provided with treatment opportunities such that this is no longer lifetime commitment to jail, as it used to be. In his view, person who is committed to treatment may well do very well under dangerous offender designation within the system.[27] B. Evidence of the Defence Expert Dr. Thomas J. Hengen[28] [88] Dr. Hengen has doctorate degree in cognitive psychology. His primary area of expertise concerns adult education. He also has extensive experience with Aboriginal learning, the Cree culture and post-traumatic stress disorder. He is clearly someone who has had great involvement and success in treating Aboriginal persons and the description of the programming and counselling he provides in his practice was quite impressive. He had never before been involved in providing an opinion in dangerous offender hearing but he had treated persons who were involved with the criminal justice system and utilized some tests specifically created to assess criminality. [89] Dr. Hengen also interviewed Mr. [F.R.] for considerable period of time and administered different tests than those used by Dr. Holden. He and Dr. Holden agree that Mr. [F.R.] is fairly bright individual, certainly above average intelligence. [90] Dr. Hengen’s conclusion was that Mr. [F.R.] likely suffered from post-traumatic stress disorder, the adult consequences of childhood attachment issues and serious drug and alcohol abuse problem. He outlines in the conclusions portion of his report at pages 17 to 21 the specific types of programs and focused treatment which he believes would render Mr. [F.R.] safe in the community by the use of intensive investment in holistic counselling and case management. He notes the importance of strong culture base to the learning plan, and the support required which has already begun by the involvement of Mr. Frank Lerat, an Elder who has been contacted by Mr. [F.R.] and is apparently willing to assist him in the future. [91] Dr. Hengen’s opinion was that one should not conclude, from Mr. [F.R.]’s history of involvement with treatment programs, that he is unwilling or unable to change his violent behaviour. He was critical both of the type of program offered to Mr. [F.R.] in the past and of the lack of culture base to that programming. Dr. Hengen’s conclusion at page 19 of his report is that: ...[F.R.] presents sufficient indicators of learning capability to provide reasonable probability that learning program designed specifically to address deficits in his self-regulating mechanisms of behaviour, based on the appropriate psycho-neurological assessment, might yield desirable results. Such an individualized learning program based on prescriptive assessment and professionally assigned remedy does not appear in any of the records or reports available to me at the time of the present report. include in this statement the records and reports that issue from various corrections services. [92] Dr. Hengen advised that the treatment programs he would be creating for Mr. [F.R.] would not be instituted in the correctional setting, but rather on release, and that one would know in the first six months if any success was being achieved. He indicated that motivation can be instilled through the programming, and that success provides its own motivation. [93] There was an area of disagreement between Dr. Holden and Dr. Hengen where felt Dr. Hengen’s opinion had more validity. Dr. Holden took note of the fact that Mr. [F.R.] had been involved in four fights and once was found to have an iron bar in his cell, while on remand at the Regina Provincial Correctional Centre. Dr. Holden factored this into his conclusion that Mr. [F.R.] was untreatable on the basis that if he could not control himself in structured setting like the jail he would not be able to do so in the community.[29] However, Dr. Hengen noted that the remand centre is very stressful environment and one’s behaviour there should not be used to determine how they would respond to treatment.[30] [94] There is no question but that Mr. [F.R.] presents, at this time, clear danger to the community, so in my view the fact that he also presents that danger, and acts it out, in the jail, is of little assistance in determining if his behaviour could eventually be controlled in the community on long-term offender sentence made up of lengthy period of incarceration followed by strict supervision in the community. Accordingly, do not accept Dr. Holden’s opinion that this is factor which should be taken to contribute to negative conclusion regarding Mr. [F.R.]’s amenability to treatment. [95] Dr. Hengen’s primary conclusion was that he does not believe that Mr. [F.R.] is psychopath who cannot be treated. He states at page six of his report that Mr. [F.R.] does not present evidence of entrenched psychopathy that is not profoundly influenced by his lack of impulse control in respect to drugs and alcohol. He clarified this statement in his evidence. He believes that Mr. [F.R.] is not psychopath, but rather that his violent behaviour will be controlled if his drug and alcohol addictions can be controlled. [96] Dr. Hengen questioned some of the variables of the psychopathy checklist utilized by Dr. Holden, indicating that they might not be accurate for Aboriginal persons. Examples he gave concerned the factors of having multiple relationships and of having children from multiple relationships. He indicated that these are not behaviours which are viewed negatively by the Aboriginal community and therefore they should not be assessed as indicators of psychopathy. Dr. Holden agreed with the suggestion by defence counsel that care must be taken to ensure there are no cultural impediments to an accurate test result, thus Dr. Hengen’s evidence raised concern about the reliability of Dr. Holden’s conclusions concerning Mr. [F.R.]’s score on the psychopathy checklist. Dr. Holden was cross-examined on this issue and stated that the way many of Mr. [F.R.]’s relationships ended was part of the assessment which resulted in points being attributed on this factor.[31] This makes it clear that there is more to this test and its proper application than is apparent from simply looking at the checklist. [97] Nevertheless, this is an important area of dispute, relating directly to the issue of whether Mr. [F.R.] is psychopath, and untreatable, or not. Dr. Hengen testified that neuropsychological assessment would be the only way to determine whether Mr. [F.R.] is amenable to treatment, or is psychopath who cannot be treated.[32] Since there was clear dispute between the experts on this issue, and it was the defence expert who was of the view that further investigation was required, concluded that should obtain this further information, particularly in light of the fact that of the experts, Dr. Holden had far greater experience in forensic psychology so his evidence on this specific issue would normally carry more weight. [98] Accordingly, ordered that such an assessment be conducted pursuant to section 723 of the Criminal Code. It was determined that Dr. Stevens would be able to perform this service, so the hearing was adjourned to August 28, 2006 to permit the assessment and report to be prepared, and for Dr. Stevens to attend to be questioned on his report. C. Evidence of Dr. Greg Stevens[33] [99] found Dr. Stevens to be an excellent and knowledgeable witness who was completely independent. Accordingly, within his area of expertise, where his opinion differs from that of the other experts, accept his evidence. Where his evidence confirms that of one of the other experts, it gives greater weight to that opinion. Dr. Stevens made it clear in his evidence that he was not in position to comment on the likelihood of success of any treatment programs which might be devised for Mr. [F.R.] as this was outside his area of expertise. [100] Although was not provided with the materials given to Dr. Stevens about Mr. [F.R.]’s previous offences, received an assurance by the Crown that the materials would be corrected to remove the improper information about his previous sexual offences.[34] [101] Dr. Stevens administered two personality tests, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2)[35] and the Self-Regulation Skills Interview (SRSI). With respect to the results of the MMPI-2, Dr. Stevens’ report states at page 16 that while those with similar personality profile might express personal misgivings or vague sense of remorse for past acts, these feelings are often situationally based and dependent on their current circumstances. Such persons are often poor candidates for psychotherapy as they often resist psychological intervention, tend to argue with others, and rationalize or blame others for their problems. [102] In support of these findings, Dr. Stevens recounts at page 17 of his report Mr. [F.R.]’s comments concerning his present situation. He spoke of the ongoing uncertainty, dehumanizing treatment, lack of programs, “doing all these tests like monkey”, and the sense that the entire system is working against him “for one drunken night”, which has him on edge and under lot of pressure. While have some sympathy for the earlier comments, am concerned about his reference to his situation being the result of “one drunken night”, rather than prolonged period of violent conduct towards Ms. [P.M.]. It is of particular concern that even after two years on remand, with one of those years being under the threat of being found dangerous offender, he still does not appear to have accepted the seriousness of his offences and that he cannot drink or use drugs if he is to be in the community.[36] [103] This attitude is similar to that noted in the Penitentiary Placement Report dated October 1, 1994, contained within exhibit P-6 on the application, during Mr. [F.R.]’s incarceration in the Penitentiary for his previous serious domestic assault on [T.R.]. The report notes that Mr. [F.R.] admits most of the events and demonstrates some remorse, but also lacks empathy and insight, given that he made the statement that he didn’t owe her anything now as he is serving three year sentence for only six months of abuse. [104] The Self-Regulation Skills Interview (SRI) mentioned above is designed to measure number of dimensions related to rehabilitation and change. It assesses person’s awareness of the behaviour that needs to be changed, his expressed motivation to change the behaviour and the likely effectiveness of various strategies designed to counteract the target behaviour. While Mr. [F.R.] self reported that he was well motivated to change, his scores on the other two dimensions were closer to individuals who have experienced brain injury than non-brain injured individuals. Mr. [F.R.] is not in fact brain injured, but his similarity to those who are bodes ill for the likelihood of him responding positively to treatment. [105] In cross-examination Dr. Stevens indicated that the conclusion he drew from Mr. [F.R.]’s poor performance on this test was that he does not have the sophistication around the awareness to change and does not have the depth and richness to explore it. Dr. Stevens did not rule out the possibility that there are aspects of Mr. [F.R.]’s behaviour that are amenable to change, but he could not answer the question about whether there were enough aspects or if they would change to an acceptable degree to be safe in the community. [106] Dr. Stevens states in the summary of his report that Mr. [F.R.] could rightfully be classified as having an antisocial personality disorder and at least one or more substance abuse-related disorder. He noted that in addition to demonstrating number of the antisocial/lifestyle behaviours associated with psychopathy, he could also be evaluated as having some of the affective/interpersonal features of the disorder. [107] At Dr. Hengen’s suggestion, the instruction to Dr. Stevens was that he should place emphasis on the assessment of Mr. [F.R.]’s executive functions. Dr. Stevens describes executive function as being related to an individual’s ability to engage in goal-directed, planned and controlled behaviour. Dr. Stevens found no impairment of Mr. [F.R.]’s executive functions and found he had intact neuro-cognitive functioning, which were all in the average or above average ranges. In the result, there was no evidence of neuro-cognitive cause for Mr. [F.R.]’s violent behaviour. That being said, Dr. Stevens explained that this does not mean that his tests have established that Mr. [F.R.] is not psychopath, it just means that he did not find neuro-cognitive basis to state that he is psychopath. [108] Dr. Stevens testified that psychopathic personality disorder does not exist as legitimate diagnostic category in the DSM-IV-TR, which is the most widely used taxonomy of official classifiable mental disorders. As he is not trained in the administration and interpretation of the PCL-R instrument which Dr. Holden administered to Mr. [F.R.], he was not in position to comment on those results. He accepted that this test was the most widely accepted “formal” way to determine if person is psychopath, noting that it must be administered by suitably trained and experienced individual.[37] Accordingly, while did have some concern about the possible cultural bias in the PCL-R, as raised by Dr. Hengen, and noted earlier, was satisfied by Dr. Stevens’ evidence that Dr. Holden’s conclusions based on this test could properly be relied upon. [109] Dr. Stevens testified that there has recently been some change in the belief that psychopaths cannot change. He testified that many of the core elements which are the hallmarks of psychopathy are too entrenched to change. These include: being superficial, narcissistic, egocentric, having limited remorse, insight or empathy regarding the effect of their behaviour on others, and failure to accept responsibility. But there is now belief that psychopathy tends to decrease with age (from mid-40's on) and that the anti-social/lifestyle features of psychopathy including impulsivity, irresponsibility and the need for stimulation could be changed with proper programming and analysis. However, he was not able to give any indication of how long it would take to effect such changes, other than to say it would be long-term, nor was he able to indicate way to predict if the efforts would be successful. In his view, at minimum the individual must be willing, insightful and motivated to change. [110] There was no dispute about whether the offence of which Mr. [F.R.] was convicted qualifies as ‘serious personal injury offence’ as that term is defined in section 752, and as interpreted by the Saskatchewan Court of Appeal in R. v. Goforth.[38] [111] In addition, it is clear that Mr. [F.R.]’s predicate offence and past behaviour leads to the conclusion that the requirements set out in s. 753(1) have been met. The evidence presented at the trial of the predicate offence and during the dangerous offender application establish that he presently constitutes threat to the life, safety and well-being of other persons because of his persistent, repetitive behaviour that has shown failure to restrain his behaviour and that there is likelihood that he will cause injury to others through failure to restrain his behaviour in the future. There is also pattern of persistent, aggressive behaviour showing substantial degree of indifference regarding the reasonably foreseeable consequences of his behaviour to other people. In sum, he meets the criteria to be found dangerous offender. [112] It is equally clear that the pre-conditions in s. 743.1 (2)(a) and (b) have been met. Since he was previously sentenced to three years for similar offence, sentence of greater than two years would necessarily result if he was sentenced in the normal course on the predicate offence. Given his previous record of convictions there is clearly substantial risk that he will re-offend in violent manner. The sole issue left for me to determine is whether the evidence permits me to find that there is a reasonable possibility of eventual control of the risk Mr. [F.R.] poses to the community, so that he could be designated a long-term offender rather than a dangerous offender. This is not case where definite term of imprisonment would be appropriate, as was conceded by Defence counsel in argument. [113] The case law makes it clear that in order to find Mr. [F.R.] to be long-term offender it is not necessary to find that the risk he poses could be eliminated. The assessment relates to whether the risk he poses could be eventually reduced to an acceptable level if Mr. [F.R.] were sentenced to several years in prison, exposed to the treatment programs offered in prison, and then released into the community under supervision on conditions specially created to reduce the risk. This could include conditions that he take the treatment and counselling which could be provided by Dr. Hengen, and there could be limitations on his freedom of movement and living companions. [114] Dr. Hengen provided great deal of information about the opportunities for treatment programs specially designed for Aboriginal offenders and the evidence indicates that Mr. [F.R.] has the intellectual capacity to benefit from those programs if he has sufficient motivation to do so. The description he gave of an individualized adult learning program with holistic approach including cultural support seems the ideal program for any offender. Dr. Hengen has undertaken to assist Mr. [F.R.] in establishing connections to Elders and to provide the treatment programs required. [115] have referred earlier to the problem created by Dr. Holden having been given facts concerning Mr. [F.R.]’s sexual offences which did not accord with, and which were much more serious than those admitted in court at the time of sentencing.[39] Those more serious facts had also been provided to the Correctional Service of Canada following the sentencing, while Mr. [F.R.] was serving his three year penitentiary sentence. This has created an additional issue for me to consider in this application. [116] The correctional officials accepted the more serious facts as accurate, therefore they considered Mr. [F.R.] to be dangerous sexual offender who required specialized treatment. Mr. [F.R.] continued to assert that the facts were as stated in court and he refused treatment on the basis that the offences involved minor touching of an experimental nature, when he was very young, and that he did not require treatment since there had been no further sexual offence convictions. His refusal to take sex offender treatment resulted in the National Parole Board refusing him parole and holding him until his warrant expiry.[40] have had to consider Dr. Hengen’s evidence in the context of the Correctional Service of Canada focus on Mr. [F.R.] as dangerous sexual offender, which do not believe the evidence establishes, and whether the programming that he was offered was so inappropriate as to lead to the conclusion that he has not shown himself resistant to treatment and that he should therefore be allowed the opportunity to take the programming Dr. Hengen suggests. [117] However, while the programming offered to Mr. [F.R.] was not individualized, he was offered and in fact took programs designed to address aggression, domestic violence, anger management and substance abuse. Nevertheless, his conduct concerning [P.M.] was almost identical to his treatment of [T.R.]. In the result, while his failure to agree to take sex offender treatment resulted in his being denied parole, cannot conclude that Mr. [F.R.] was denied appropriate programming for his problems. He received the programming but his behaviour was not altered by taking that programming. Similarly, although he was denied the opportunity for gradual release into the community under supervision, he was often subject to sentences of community supervision through probation orders. These were not in any way successful in changing his behaviour, even after he was warned that an application such as this one might be taken if he continued with his violent behaviour. [118] Justice Jackson, as noted earlier, found it significant that the offender in R. v. K.R.S., supra, had managed, for some significant periods of time, to be in the community without criminal behaviour. I note, to the contrary, that Mr. [F.R.] does not have significant gaps in his violent offending, except for one period of about nineteen months between August of 2000 to March of 2002. While there is a significant time period between his offences concerning Ms. [T.R.] (1993) and those involving Ms. [P.M.] (2003), there are also the other violent offences concerning women which are of concern, both with respect to [M.Z.], which is a third example of that type of controlling, violent behaviour and the incidents concerning [F.B.] and [S.O.] which denote more explosive violent behaviour. [119] Dr. Stevens agreed with the suggestion by defence counsel that many of Mr. [F.R.]’s antisocial kinds of explosive behaviour, acts done in rages, are somewhat uncharacteristic of psychopath.[41] However, while some of the assaults which are on his record appear to be of this type, such as the immediate punch to Ms. [S.O.]’s jaw when she insulted him, his treatment of his domestic partners, as noted above, was not of that character, being deliberate rather than explosive. [120] In my assessment of the expert evidence am placing great deal of weight on Dr. Stevens’ evidence, since he is independent of both the parties and was specially qualified to assess Mr. [F.R.]’s personality characteristics and the potential for altering his future behaviour. consider Dr. Stevens to have corroborated the evidence of Dr. Holden in many respects, which has resulted in my acceptance of his opinion regarding Mr. [F.R.]’s amenability to treatment over that of Dr. Hengen. [121] In particular, on the issue of Mr. [F.R.]’s psychopathic characteristics, I have concluded that Dr. Stevens’ opinion supports that of Dr. Holden that Mr. [F.R.] is not someone who can be treated so as to reduce the risk of re-offence he presents to the community to an acceptable level. Dr. Stevens disagreed with Dr. Hengen’s conclusion that Mr. [F.R.] suffers from post-traumatic stress disorder. This then adversely affects Dr. Hengen’s opinion regarding the treatment programs which would be beneficial for Mr. [F.R.] and his anticipated prognosis for possible success in altering his behaviour after taking those programs. [122] There is also concern about Dr. Hengen’s conclusion that Mr. [F.R.]’s violent propensities will disappear if he gains control over his substance addictions. Although many of Mr. [F.R.]’s offences were committed while he was under the influence of drugs or alcohol, it is doubtful that the continuous beatings which he inflicted on his domestic partners can all be attributed to violence while under the influence of substances. Dr. Stevens noted that some, but not all, of Mr. [F.R.]’s previous offences involved the use of alcohol, therefore he viewed this as crucial area to be addressed, but he did not accept that substance abuse was the cause of all the earlier behaviour.[42] accept Dr. Stevens’ opinion on this issue. [123] Unlike the situation in R. v. Lemaigre, the risk Mr. [F.R.] poses is not just to a single person. Any woman he has contact with either through family relationships, intimate relationships or purely social relationships is at risk of his penchant to punch or kick them in the face. Those he is involved with in domestic or intimate relationship are at grave risk of his controlling, violent and torture-like abusing behaviour over lengthy period of time. It is unlikely that restrictions on his living arrangements would be effective in preventing him from being intimately involved with women, who would then be at risk. [124] Mr. [F.R.] is relatively young, so one is reluctant to order his detention on an indeterminate basis. As set out in the relevant authorities which were outlined above, restraint must be exercised in determining what sentence to impose. It must be the least restrictive sentence which is appropriate in the circumstances. On the other hand, Mr. [F.R.] is still long way from the age at which the experts say there may begin to be diminution of violent behaviour. [125] designation of Mr. [F.R.] as long-term offender subject to definite period of incarceration followed by close supervision, even for many years, would be based on hope that all persons are capable of rehabilitation rather than on evidence that it is reasonable to anticipate that he could be treated and controlled by combination of lengthy jail term and community supervision to the point where the risk he would pose to the community would be at an acceptable level. Unfortunately, I have come to the conclusion that Mr. [F.R.] has significant psychopathic features of his personality that are so entrenched as to be impervious to change such that the sentencing principle of public protection can only be achieved by an indeterminate sentence. Mr. [F.R.] falls within that small group of offenders described by the Supreme Court of Canada in R. v. Lyons as those “...whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration...”.[43] [126] Accordingly, for these reasons, and pursuant to section 753(4) of the Criminal Code, I find Mr. [F.R.] to be a dangerous offender and sentence him to indeterminate detention. Pursuant to section 760 of the Criminal Code order that copy of all reports filed, this decision and the trial transcript be forwarded to the Correctional Service of Canada. [127] will hear counsel with respect to any other orders which should be made to conclude sentencing. C.A. Snell Judge of the Provincial Court of Saskatchewan [1]Section 752.1 of the Criminal Code requires that the remand order for the purposes of the assessment should be for period not exceeding 60 days, and that the report of the person conducting the assessment is to be made available 15 days after the end of the assessment period. [2]This creates presumption that substantial risk is to be found in these circumstances, but it can also be found without the necessity of finding this pattern of repetitive behaviour. (see R. v. K.R.S., 2004 SKCA 127 (CanLII), [2004] S.J. No. 591; 2004 SKCA 127; 254 Sask.R. 211, para. 49) [3]2003 SCC 46 (CanLII), [2003] S.C.R. 357; 177 C.C.C. (3d) 97; 13 C.R. (6th) 205. [4]2004 SKCA 125 (CanLII), [2004] S.J. No. 589; 2004 SKCA 125; 254 Sask.R. 255; 189 C.C.C. (3d) 492 [5]Supra, footnote [6][2004] S.J. No. 590; 2004 SKCA 126 (CanLII); 254 Sask.R. 276; 189 C.C.C. (3d) 512 [7] Mr. Justice Cameron expresses the same principles in R. v. J.L.A.G. at paragraphs 40 to 42. [8]At paragraph 12. [9]At paragraph 21. [10] 2006 SKCA 52 (CanLII), [2006] S.J. No. 303; 2006 SKCA 52 [11]R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C.(3d) 541; [2005] O.J. No. 1178 [2005] S.J. No. 70 (CanLII) 2005 SKPC 9; upheld without written reasons by the Sask.C.A., Oct. 19, 2005, leave to appeal to the S.C.C. denied, [2006] S.C.C.A. No. [13]This is according to the Pre-sentence Report. Other personal histories in the materials contain different numbers. do not think this is significant as the relevant point is that he came from large family and was by far the youngest. [14]Dr. Hengen’s report, page 10. [15]See R. v. Probe, [1983] S.J. No. 912 (Sask.C.A.) [16]Psychological/psychiatric Assessment Report dated July 28, 1994, Correctional Service of Canada records, exhibit P-6. [17]See page of Dr. Holden’s report, exhibit P-9. [18]At pages 50-51 of the collection of sentencing transcripts, P-3. [19]Note: Dr. Holden’s report includes an account by Mr. [F.R.] concerning an assault on niece, but it is so different from the account given by Ms. [S.O.] that am not confident that Mr. [F.R.] was referring to the same event. am giving him the benefit of the doubt and will not consider it to be his version of the events, which would have amounted to serious minimization of the incident. [20]His report was marked exhibit P-9 on the application. [21]Pages 21 to 23, Transcript. [22]Page 26, Transcript. [23]Page 35 to 36, Transcript. [24]Pages 50 to 51, Transcript. [25]Another defect in the Summary, P-4, concerns an assertion that the accused stabbed Mr. Desjarlais on the same date as the predicate offence. This was not established and should not have been referred to. [26]Pages 99-101, Transcript. [27]Page 128, Transcript. [28]His report was marked exhibit P-10 on the application. [29]Page 182-184, Transcript. [30]Page 322, Transcript. [31]Page 165, Transcript. [32]Page 292, Transcript. [33]His report was marked exhibit C-1. [34]Page 396, Transcript. [35]This was the personality test on which Dr. Holden was unable to obtain valid results. [36]Dr. Stevens recounts at page of his report that Mr. [F.R.] stated to him that he acknowledged that many of his problems occur when he is intoxicated and that he has “been considering making decision to stop- no, have made decision to stop.” [37]Page 18 of Dr. Stevens’ report. [38]2005 SKCA 12 (CanLII), [2005] S.J. No. 79; 257 Sask.R. 123; 193 C.C.C. (3d) 354; (motion for extension of time to apply for leave to appeal dismissed Dec. 22, 2005 [2005] S.C.C.A.No. 456). [39]Paragraphs 83-85 of this decision. [40]See exhibit P-6, the Correctional Service of Canada records. [41]Page 460, Transcript. [42]Page 456, Transcript. [43]1987 CanLII 25 (SCC), [1987] S.C.R. 309; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1, at paragraph 44.","The Crown has applied pursuant to s. 753 of the Criminal Code to have the accused designated a dangerous offender. There is no question that the accused was convicted of a 'serious personal injury offence' as that term is defined in s. 752 of the Code. It is also clear that the accused's predicate offence and past behaviour lead to the conclusion that the requirements set out in s. 753(1) of the Code have been met. The sole issue left for the Court to determine is whether the evidence permits the Court to find that there is a reasonable possibility of eventual control of the risk the accused poses to the community so that he could be designated a long term offender rather than a dangerous offender. This is not a case where a definite term of imprisonment would be appropriate, as was conceded by defence counsel. HELD: The accused is a dangerous offender. He is sentenced to indeterminate detention. 1) The accused does not have significant gaps in his violent offending, except for one period of about 19 months beginning August 2000. While there is a significant time period between his offences concerning T.R. (1993) and those involving P.M. (2003) there are also the other violent offences concerning women which are of concern, both with respect to MZ, which is a third example of that type of controlling, violent behaviour and the incidents concerning F.B. and S.O. which denote more explosive violent behaviour. 2) The expert evidence supports a finding that the accused is not someone who can be treated so as to reduce the risk of re-offence he presents to the community to an acceptable level.  3) Although many of the accused's offences were committed while he was under the influence of drugs or alcohol, it is doubtful that the continuous beatings which he inflicted on his domestic partners can all be attributed to violence while under the influence of substances. 4) The accused does not pose a risk to just a single person. Any woman he has contact with either through family relationships, intimate relationships, or purely social relationships is at risk of his penchant to punch or kick them in the face. Those he is involved with in a domestic situation or intimate relationship are at grave risk of his controlling, violent and torture-like abusing behaviour over a lengthy period of time. It is unlikely that restrictions in his living arrangements would be effective in preventing him from being intimately involved with women, who would be at risk. 5) The Court was of the opinion that the accused has significant psychopathic features of his personality that are so entrenched as to be impervious to change such that the sentencing principle of public protection can only be achieved by an indeterminate sentence.",d_2006skpc95.txt
284,"J. Bankruptcy No. 4344 Estate No. 023291 J.C.R. IN THE QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE BANKRUPTCY OF LARRY PETER CLOUTIER Larry Peter Cloutier, Bankrupt P.M. Tomney, Deloitte Touche Inc., Trustee Julie Rogers-Glabush, for Her Majesty the Queen in Right of Canada, as represented by the Minister of National Revenue, objecting creditor JUDGMENT MAURICE J. HERAUF, July 22, 1999 Registrar in Bankruptcy This discharge application involves another bankrupt who is self employed and through indifference, disregard and neglect does not pay his taxes. This is the second bankruptcy for this bankrupt. The sole unsecured creditor is Revenue Canada with a proved claim of just under $89,000.00 for unpaid income tax and unremitted G.S.T. It should come as no surprise that Revenue Canada was also the major creditor in the first bankruptcy. The bankrupt has horrendous record for non-payment of his tax obligations which stretches back at least 15 years. Not only does the bankrupt not pay his taxes he also does not file his returns. The bankrupt is 43 years of age, in good health and has no dependants. He is a self-employed contractor and has an enviable income. In fact, the only issue at the discharge hearing was the determination of the amount of surplus income available to pay toward conditional order. The trustee calculated surplus income at $435.00 per month and recommended a conditional order requiring the payment of $7800.00. It would take approximately 18 months to complete the terms of the order. The objecting creditor calculated surplus income at $750.00 and requested a four year conditional order providing for monthly payments of this sum. It should come as no surprise that the bankrupt preferred the recommendation of the trustee. have carefully reviewed the financial material on file and considered the submissions of the parties. I have concluded that the bankrupt can safely accommodate a payment of $500.00 per month for three years without jeopardizing his ability to pay toward his current tax obligations. Therefore, there will be an order requiring the bankrupt to pay to the trustee the sum of $18,000.00 for distribution to the unsecured creditors. The bankrupt shall pay this amount by monthly instalments of $500.00 per month commencing September 1, 1999 and continuing on the 1st of each month thereafter until paid in full. Judgement interest will accrue on any payment in arrears. The right of prepayment exists. Since the bankrupt denies any knowledge of his obligation to make regular instalment payments on his self-employment income would be remiss if did not offer the court’s assistance to educate the bankrupt relating to this obligation. Accordingly, there will also be an order that during the term of the conditional order the bankrupt will be required to make regular instalment payments on his self-employment income and comply with income tax and G.S.T. filing requirements. The objecting creditor is entitled to costs of $400.00 payable out of the estate. Registrar in Bankruptcy","The bankrupt was self-employed and failed to pay his taxes, owing Revenue Canada $89,000. The trustee calculated surplus income at $435 per month and recommended a conditional order of discharge requiring the payment of $7,800. Revenue Canada objected, requesting a conditional order for monthly payments of $750 over 4 years. HELD: Conditional order of discharge granted. The court found that the bankrupt was 43 years old, in good health and with no dependents. The bankrupt was also a self-employed contractor with an 'enviable' income. Following a review of the bankrupt's financial material on file, the court ordered the bankrupt to pay $500 per month for 3 years, to make regular installment payments on his self-employment income and comply with tax filing requirements.",d_1999canlii12779.txt
285,"1994 S. H. No. 106474 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: ROBERT DOUGLAS BAIRD and DOUGLAS SINCLAIR and SHAUN JANES DECISION HEARD: Before the Honourable Justice D. Merlin Nunn, at Halifax, Nova Scotia on May 12,13,14 and 15,1997. DECISION: July 18, 1997 COUNSEL: Sandra MacPherson Duncan and Paul Arab O'Leary, for the Plaintiff Brian W. Downie and James L. Chipman, for the Defendant NUNN, J. The plaintiff alleges negligence by the two defendant medical doctors and claims damages arising from the negligence. The facts, as find them, are that on the evening of April 17, 1993, the plaintiff, between 6:30 p.m. and approximately 1:30 a.m. on Sunday, April 18th, visited with friends, drank few beers and then he and his friends visited three local drinking establishments, where the plaintiff indicates he had couple of beers at two of the places and one at the third and last. At about 1:30 a.m. he left alone and began walking home. As he approached Bell Road he decided to walk across the base of Citadel Hill as the fence there was open. When he got to the other side there was no opening in the fence and he decided to climb over it. The fence is an iron fence with iron pickets, pointed at the top. As he reached the top, he slipped and his right calf became impaled on picket. According to him, he was hanging, upside down, on the fence, for about half an hour before several young people helped him off the fence. He then walked to the Victoria General Hospital Emergency Department, arriving there at 2:20 a.m. He was first interviewed by the triage clerk, Jeffrey Newton, who took the initial history and whose notes are in Exhibit 2, Tab at page 2. These notes indicate the presenting complaint as puncture/tear wound received while climbing an iron fence. No mention is made of the fact that the plaintiff was impaled on the fence for half an hour and am satisfied that the plaintiff did not mention this fact. Before continuing, must indicate that the triage clerk's notes indicate an extremely low temperature of 33.6 and low blood pressure of 98/60. Nobody who subsequently dealt with the plaintiff seemed concerned, explaining that the digital tympatic thermometer used was notoriously inaccurate and that the plaintiff's presence and appearance was totally inconsistent with those readings. accept that such was the case. There is no evidence whatsoever to suggest that the plaintiff was in shock. Although these readings were referred to extensively in the trial, am satisfied that they have no bearing on the real matters of concern here. The triage notes also indicated that the plaintiff had consumed alcohol. Following triage the plaintiff was then assessed by the emergency nurse, Linda Foroughi, who noted, on pages and of Exhibit 2, Tab 6, that the plaintiff was drowsy and oriented and that the plaintiff caught his leg on metal fence. Again, there is no mention of the fact that the plaintiff was impaled for half an hour. In her testimony she explained that ""drowsy and oriented"" meant that the plaintiff was not drunk and that on scale where 15 is normal, the plaintiff would be 14. Again, accept her evidence that the plaintiff did not indicate he was impaled on the fence for length of time. also am satisfied that the plaintiff was not drunk: His drowsiness can be explained by the fact that he had been drinking and it was then about 3:00 a.m. should add that the plaintiff, himself, testified that he was not drunk. It was about an hour after arrival at Emergency before the plaintiff was seen by the defendant, Dr. Janes, an intern in the Emergency Department. On duty with him was the defendant, Dr. Sinclair, an emergency room specialist, who was Dr. Janes' supervisor. Dr. Janes testified that, following usual procedures, he read the triage clerk and nurse's notes and, then asked the plaintiff what happened. The plaintiff's response was that he was jumping fence and picket stuck in his leg. Dr. Janes asked him about the picket, how far it penetrated, whether anything was broken off the picket and whether there were any other injuries to which the plaintiff responded. Dr. Janes testified that no mention was made of being impaled on the fence and though that contradicts the plaintiff's testimony on this point, accept Dr. Janes' account of what was told. Dr. Janes then examined the leg, found no arterial or neurological damage, cleaned around and into the wound with saline and savlon solutions for about 10 minutes, then gave local anesthetic to freeze the wound area. The wound itself was gaping wound about cm across. He then put his finger in the wound to check if there were any other tracks of the wound and to make sure there was no foreign bodies in it. None were found. His finger had entered the wound to cm. He again wiped out the wound with gauze soaked in solution and syringed it out for further 10 minutes finding no foreign bodies. At this point Dr. Janes reported to Dr. Sinclair, indicating the history, what he had done and his physical findings. After discussion Dr. Sinclair advised him to further flush out the wound well, to close it and have the plaintiff see his family doctor the next day. Dr. Janes then flushed out the wound for another 10 minutes, sutured it with vertical mattress suturing and dressed the wound. He testified that, throughout the whole time he was treating the plaintiff, he was talking to him and told him to keep his eye on the wound for any sign of infection, to see his family doctor on Monday and, in the meantime to keep off his leg, to elevate it and to use crutches. He did not give or prescribe antibiotics, having made the judgment call that, in accordance with best practices, antibiotics are not required in young, healthy males where the wound is clean after extensive flushing out. On this latter point, the evidence bears out the wisdom of this decision and, as well, even if given, would not have altered the result. Dr. Janes testified that he looked at the whole leg, front and back and never saw any indication of wound on the front of the leg, nor did his finger probe indicate anything on the front of the leg. The plaintiff, however, testified that Dr. Janes asked him about mark on the front of his leg. have difficulty accepting the plaintiff's testimony on this point. The medical records prepared at the time make no reference to such mark or wound, Dr. Janes was definite that none was observed and Dr. Petrie, who was called as an expert by the plaintiff, indicated that the skin on the front of the leg would not show any such mark so soon after the injury had occurred. As result accept Dr. Janes' testimony on this point. In total, Dr. Janes spent approximately an hour with the plaintiff before discharging him. The doctor's notes at page of Exhibit 2, Tab contain the discharge advices noted in the preceding paragraph though they do not indicate anything about keeping an eye on the wound for any infection. The contents of the discharge recommendations were fortified by the nurse's discussions with the plaintiff on discharge. The plaintiff testified that no mention was made of infection or of what to look for if infection set in. However, in all the circumstances, particularly of the heavy flushing out and the conversation of Dr. Janes, am satisfied that such discussion did take place. Perhaps it was missed by the plaintiff due to his drowsy condition. Dr. Sinclair, an emergency medicine specialist, testified at length on the emergency room procedures and how interns work under the supervising physician. He confirmed that Dr. Janes reported to him the history and physical finding and that his recommendation was profuse cleaning before suturing and he agreed that antibiotics were not required. He had observed the wound as it was being sutured. Following discharge, the plaintiff returned to his apartment in Halifax, arriving there around 4:15 a.m. He was in some pain and around 8:00 a.m. he phoned his parents in Truro, told them what had happened and that his leg was very painful. His mother is nurse. His father came to Halifax and took him to Truro. Throughout the day his pain grew worse. At around 5:30 p.m. he went to the Truro Hospital Emergency Department, where he wasattended to by Dr. DiQuinzio, who took his history, examined his leg, took out the stitches, had X-rays taken, as well as blood tests and called in Dr. Curtis, surgeon. At this time, the plaintiff told Dr. DiQuinzio that he had been impaled on the fence for about 10 minutes. The result of this was he was advised that he would have to return to hospital to have the leg opened and debrided and that this would be best done in Halifax. He was then sent by ambulance to the Victoria General Hospital where at about 10:00 p.m., he again arrived at Emergency. He was admitted to Hospital, given four potent antibiotics in maximum doses after examination by an orthopedic intern, with X-rays ordered for the morning to compare with the Truro X-ray. The initial fear in Truro was the possibility of gangrene poisoning although this did not materialize. On Monday, April 19th, at about 3:30 p.m., Dr. Petrie performed the necessary surgery, fasciotomy and debridement of the infected right calf. In simple terms, after general anesthetic, Dr. Petrie explored the wound, found it extended through to the skin on the front of the leg, which by this time, showed signs of damage. That skin was excised and the muscle cut away to surgically clean wound (debrided). It was then irrigated and packed but not closed. The plaintiff spent the next three weeks in hospital during which time the dressings were cleaned frequently, the packing finally removed and skin graft was performed by Dr. Parkhill so that the wound would heal. The skin graft was approximately by 11 cm in size and was quite successful. In hospital he received an assortment of antibiotics, morphine, demerol, gravol, and Tylenol 3. Following the skin graft, he required physiotherapy to get his foot dorsi flexed as his foot was in an extended position for the skin graft. The final result, about one week after discharge, in the appearance of the leg, is shown in the photograph Exhibit 3, though its appearance has greatly improved by the time of trial. Following discharge the plaintiff was on crutches for to weeks. He now indicates that he has pain when walking up steep inclines or hiking, that he has difficulty sleeping, having to hang his right leg out, that he has pain when engaging in sports activities, that he is very aware of and embarrassed by the scar which restricts his dressing in shorts. As to sports, the plaintiff had hoped to have summer recreation jobs, but he indicated he had to turn down job with Sackville Recreation and could not apply for job with Sport Nova Scotia because he felt he could not perform with the pain. On cross-examination he indicated that he is not taking medication since June 1993 and there is nothing in day to day activities that he cannot do, though squatting causes some pain. He still plays some tennis and golf though not without pain. Although he formerly played volleyball, he has only done so once during which he injured his left leg which he attributes to his right leg injury. The testimony of other witnesses, notably Dr. William Stanish, sports medicine expert, does not support the plaintiff on this latter point. There is evidence that the plaintiff had, before this incident, some medical problems particularly rheumatological condition which affected some of his activities and there is note in Exhibit 2, Tab 3, Page 1, clinical record, that the plaintiff had to quit work as cook at the Sheraton Hotel because of low back problem. The plaintiff denies that he had to quit work and states he was laid off. only mention these points as they occurred in the evidence, but they are of no relevance. The plaintiff's father testified that he did not take the plaintiff to the hospital on the morning of April 18th because the plaintiff said he was instructed to see his family doctor on Monday. The same response was given to several suggestions during the day that they go to the hospital in Truro. Dr. David Petrie was qualified as an expert in orthopedic surgery and also in the emergency treatment of trauma to extremities. As he was the treating surgeon, he testified as to what he had done for the plaintiff, all of which have already referred to. Though he was so qualified by the Court, he is not an emergency room physician, nor is he certified as such and most trauma he sees is referred to him. With regard to the plaintiff's initial treatment, Dr. Petrie's opinions are expressed in Exhibits and 9. In Exhibit 8, Dr. Petrie states: ""I do feel that the severity of the initial injury was not recognized by the treating physicians on his arrival in the Emergency Department. Whether this was problem in communication by the patient or failure by the intern and/or staff emergency room physician to properly inquire as to the nature of the injury, am not certain."" (emphasis added) That letter continues with the notation that the plaintiff was impaled, hanging upside down for about twenty-five minutes. It then goes on to discuss ""a through and through puncture wound of the calf with an impalement type history"" and the manner such wound should be treated. Paragraph of that letter is quite significant. It states: ""I think it is difficult to respond as to what the duration and nature of his hospitalization and treatment would have been if the wound had been treated primarily with surgical debridement. Some of these impalement (emphasis added) problems can be very difficult to manage and do not always respond quickly to our treatment, that is incision, drainage, debridement, antibiotics, elevation, etc."" In the next paragraph he indicates that the plaintiff's scarring is result of the treatment and would have occurred in any event. After indicating that he would think it appropriate to have kept the plaintiff in hospital for observation, he concludes by saying that ""these situations occur not uncommonly and it is left up to the treating physician as to how far one should go in managing these wounds."" In his subsequent letter, Exhibit 9, written two years later and responding to questions of plaintiff's counsel, Dr. Petrie expresses the opinion that the medical history take by Dr. Janes was inadequate. The relevance of the length of time impaled was important as it indicates significant period during which contamination and damage to the soft tissues was likely to take place as opposed to gunshot wound for example. In his opinion, this wound should have had surgeon's consultation at the initial presentation. He then provides his opinion that antibiotics should have been prescribed, the plaintiff should have been kept in hospital, and the would should not have been closed. He does state that the cause of the subsequent infection was contamination in the wound that occurred at the time of impalement. He concludes: ""It is my opinion that Doctor Janes and Doctor Sinclair did not take the necessary steps as to how to best manage this wound because they really did not appreciate the depth and nature of the wound."" Dr. Jan Ahuja, was called by the defence and qualified as an expert in Emergency Medicine, being certified both in the United States and Canada. He practices in Ottawa. He was provided with all the medical reports and, in his opinion, the note taking was adequate as he explained that in emergency treatment, it is the standard of care that is most important and not the note taking especifically with the number of persons treated daily in an emergency facility. He opined that the level of care and procedures followed here were appropriate and within the standard of care of proper emergency care. He concluded that emergency care is initial treatment and the plaintiff here was advised to quick follow. As well, in emergency, judgments are made with little information. He was satisfied that the discharge advice was adequate and acceptable and shows careful consideration and assessment. Dr. Ahuja disagreed with Dr. Petrie in number of areas. First, he testified that in his opinion, there was no reason to involved the surgeons as the initial examination did not reveal the presence of any foreign bodies in the wound. It was not through and through wound at the time of initial presentation, nor were there any signs of infection. The really very significant point of impalement was never revealed to the triage clerk, the nurse or Dr. Janes. While admission to hospital is always an option, there was nothing here at the initial time which warranted admission. As well, nothing indicated debridement of the wound. On the whole, in view of the evidence Dr. Janes had at the time, the decision to thoroughly flush out the wound and close it was appropriate and within the standard of an emergency room physician. At the time of closing the wound, there was no concern for infection as the wound was thoroughly cleaned with no reason to suspect soft tissue damage or infection, though the discharge instructions contemplated that any onset of infection would be discovered. It was his opinion that the quite lengthy impalement and the obvious movement to dislodge and actually getting off the picket led to the infection and these were facts the plaintiff had not revealed on his initial presentment at the Emergency Room. transcript of the evidence in this case will reveal that every aspect of the emergency room treatment of the plaintiff was examined and questioned minutely. However, it is not for me to deal with each particular process of emergency room practice and make judgement thereon. My concern is whether, on these facts, the performance of the defendants, or either of them, was negligent and, if so, what are the damages following therefrom. Before dealing with the law, and on the matter of damages, Dr. William Stanish, was called by the defence and qualified as an expert in orthopedic surgery, sports medicine, muscle injury and treatment. He examined the plaintiff, at the request of the defendants' counsel, and filed his report, which is Exhibit 17. He found 20% loss in ability to dorsi flex his foot which was caused by the scarring and legitimate difficulty in ability to squat. He indicated that it would be difficult to determine if the result would have been different if the plaintiff had been sent to surgery when he initially presented. In other words, there might have been similar degree of debridement though possibly the infection led to more. In his view if, in the judgement of the treating physician, the wound was clean, then surgery is not indicated. As to the final result, it is Dr. Stanish's opinion that the plaintiff suffers very mild disability. Turning to the law, there is not doubt the defendants owed legal duty to the plaintiff. But, to recover, the plaintiff must show negligence on the part of one or both of the defendants and then that he suffered loss or damage as result, with that loss flowing directly from that negligence of the defendants, or either of them. The standard of care required at law is, as stated by Schroeder, J. A. in Crits and Crits v. Sylvester et al, 1956 CanLII 34 (ON CA), [1956] D.L.R. (2d) 502 at p. 508: ""Every medical practitioner must bring to his task reasonable degree of skill and knowledge and must exercise reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing, and if he holds himself out as specialist, higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability."" In the present case then the standard to apply for the defendant, Dr. Sinclair, is higher than for the defendant, Dr. Janes. Dr. Janes, as an intern, must exercise the degree of skill and care which is not less than the ordinary skill of junior doctor. Acknowledging the standard, one cannot assume negligence merely because particular treatment was unsuccessful or that further complications arose. This is not perfect world and though, to some, the standard of perfection is expected, such is not always the case. If the treating doctor chose one of several recognized methods of treatment, though that particular method was unsuccessful and another would have been better, he is not negligent because of his lack of success. As Taschereau, J., stated in Cardin v. City of Montreal (1961), 1961 CanLII 77 (SCC), 29 D.L.R. (2d) 492, at p. 494: ""The doctor is not guarantor of the operation which he performs or the attention which he gives. If he displays normal knowledge, if he gives the medical care which competent doctor would give under identical conditions, it is difficult to sue him in damages, if by chance an accident occurs. Perfection is standard required by law no more for doctor than for other professional men, Accidents, imponderables, what is foreseeable and what is not, must necessarily be taken into account."" Perhaps one of the better summaries of doctor's liability is contained in this passage from MacDonald v. York County Hospital (1972), 1972 CanLII 392 (ON SC), 28 D.L.R. (3d) 521 which was adopted by Hallett, J. in Leadbetter and Leadbetter v. Brand and MacLellan (1980), 37 N.S.R. (2d) 581 at 591 and by Boudreau, J. in Grant Estate v. Mathers et al (1991),100 N.S.R. (2d) 363 at p. 373: ""It cannot be assumed that doctor has been negligent merely because the operation was unsuccessful or because the plaintiff sustained injury. He is protected from liability where he has honestly and intelligently applied his mind to the problem and arrived at conclusion or judgment upon which he acted, although, that conclusion or judgment proves subsequently to be incorrect. Whether doctor's mistake is classified as an error of judgment or negligence really depends on the standard of care required in the circumstances. If the doctor's act is in accord with the standard or care but, nevertheless, still caused injurious results he will be said to have committed an error of judgment. If his act or judgment is so unreasonable that an average practitioner would not have proceeded in this manner, he will likely be held to be negligent."" At first blush it would appear that there is decided difference of opinion between the medical experts who testified as to what should have been done but, upon closer inspection such is not the case. Dr. Petrie's opinion is based upon the knowledge that the plaintiff was impaled for approximately 25 minutes and that the injury was ""through and through"" wound. Those two facts but, perhaps, mainly the first lead him to the conclusion of what should have been done. However, those two facts were not within the knowledge of the defendants. The plaintiff did not reveal that he had been impaled for length of time and, as Dr. Petrie stated, that was very important fact as it would have indicated soft tissue damage and called for more than simple irrigation. Dr. Janes was presented with fresh wound, with no indication that it had penetrated through the leg. He examined it, irrigated it profusely and found no presence of foreign matter. Indeed, there may never have been any foreign matter in the wound as the later infection was attributed to the length of the impalement and the damage to tissue which was not evident at the time. am satisfied that he met the required standard of care, exercised the appropriate skill and adopted well accepted method of treatment. No fault can be found with his exercise ­of judgment on the appropriate treatment at the time. Similarly, he can not be faulted for not prescribing antibiotics, though there are different views on this among medical experts. His view, supported by Dr. Sinclair, that they were not required with clean wound, after profuse irrigation, for healthy young male is unassailable. great deal was made in argument of the discharge instructions given by Dr. Janes and fortified by the nurse by the plaintiff's counsel who alleged they were inadequate. The notes on discharge instructions are indeed brief but what is overlooked is that Dr. Janes was talking to the plaintiff throughout the treatment though admittedly the plaintiff was drowsy and may have fallen asleep. am satisfied that the possibility of infection was mentioned and the instruction to see his family doctor the next day was clearly indicative of the possibility of complications. certainly cannot say that he was negligent in not giving adequate instructions on discharge. While the standard for Dr. Sinclair is higher because he is specialist, there is nothing in the evidence to indicate any failure on his part to meet that higher standard. He also had no more information than Dr. Janes and, following standard emergency room procedures, with the information of Dr. Janes, his advices in the case of the wound, as presented, were appropriate and within the type of performance expected of an emergency medicine specialist. On the totality of evidence, it is clear that the subsequent infection was caused by the injury itself and nothing done by the defendants contributed to it in any way. Essentially, their treatment was ineffective. Though it is, in retrospect, true that the defendants underestimated the nature and extent of the injury, the real fault lies with the plaintiff who, for whatever reason, failed to reveal fully what had happened to him. There is no doubt that the wound observed by Dr. DiQuinzio and later by Dr. Sinclair and the surgical staff and Dr. Petrie was very different from the same wound observed by the defendants on first presentation at the Emergency Department, but that is attributable to the infection which set in. During the trial one troublesome point was whether the result, i.e. the debridement of muscle tissue and the subsequent skin graft and resulting scars and subsequent debilities would have been the same if the plaintiff had been kept in hospital and operated on on the Sunday, April 18th. No satisfactory proof was offered that suggested differently and can only find that, in this regard, the plaintiff has failed to meet his burden of proof. Even if were wrong in finding no negligence on the part of the defendants, there is no satisfactory evidence that any of the plaintiff's damage resulted from the acts of the defendants. At best the evidence might permit the argument that perhaps more tissue had to be removed because of the infection, but that, again, does not contribute much to calculation of damages. As to damages, the plaintiff's counsel argued for damage award in the $20,000.00 to $30,000.00 range. On the evidence presented to me, am satisfied that his disability is very mild and, if were wrong in my determination that the defendants were not negligent, would have assessed damages at $3500.00 allowing nothing for the scar or the embarrassment due to it as that is attributable to the injury itself and would have resulted in any case. In conclusion, find that the defendants and each of them did not fall below the standard of care required of them in their treatment of the plaintiff. Further the plaintiff's loss is not attributable to any of the acts of the defendants but rather is the direct result of the injury he suffered. The plaintiff\'s case, therefore, is dismissed with costs. J. July 18, 1997 Halifax, Nova Scotia","The plaintiff's leg was impaled for 25 minutes on an iron fence which he had attempted to climb for. He was treated at the emergency department of the Victoria General Hospital for an hour. He did not inform the doctors as to the length of time he had been impaled. Upon his release he was advised to watch for any infection. He was not issued antibiotics. The wound quickly worsened, and the plaintiff was forced to undergo surgery and a skin graft to repair his leg. He sued the doctors who initially treated him for negligence. Dismissing the action, that the subsequent infection was caused by the injury itself and nothing done by the defendants contributed to it in any way. While the defendants underestimated the nature and extent of the injury, they provided a recognized method of treatment based upon the knowledge they had. The real fault lies with the plaintiff who failed to reveal fully what had happened to him.",1997canlii1932.txt
286,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 34 Date: 2007 01 23 Docket: B.A. 30/2006 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and LESTER WAYNE FAVEL Counsel: Tammy E. Pryznyk for the Crown Lester Wayne Favel self-represented JUDGMENT GUNN J. January 23, 2007 [1] Lester Favel (the “accused”) brings an application pursuant to s. 520 of the Criminal Code for a review of the order denying him judicial interim release. Mr. Favel previously entered guilty pleas to number of offences which include assault on Santana Stonechild, break and enter residence, assault on Tamara Michiskinic, and four charges of breach of undertaking. Mr. Favel received conditional sentence on these charges April 12, 2006 and the Crown alleges that Mr. Favel has breached the conditions imposed at that time. Pursuant to s. 742.6 of the Criminal Code this places the onus on Mr. Favel to show cause why his detention in custody is not justified. [2] In addition, Mr. Favel is facing new charges. He is charged that he did on or about September 15, 2006 assault Juanita Sunshine. He was originally released on that charge on October 2, 2006, but failed to appear in court as required to do on October 16, 2006. He appeared in court in custody on October 31, 2006 and he has remained in custody since that time. He is also charged with the offence of assault causing bodily harm on Robert Landry on October 31, 2006 and with breach of his undertaking. Because the accused was previously released on bail and is now charged with additional offences and with breaching the conditions of his previous release the onus is also on the accused in respect of these charges to show cause why his detention in custody is not justified within the meaning of subsection 515(10). [3] The powers of judge on review application are set out in subsection 520(7) of the Criminal Code. They are the following: 520.(7) On the hearing of an application under this section, the judge may consider (a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (b) the exhibits, if any, filed in the proceedings before the justice, and (c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, and shall either (d) dismiss the application, or (e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted. [4] The grounds upon which the detention of an accused is justified are set out in subsection 515(10) of the Criminal Code. This section provides as follows 515.(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (b) where the detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit criminal offence or interfere with the administration of justice; and (c) on any other just cause being shown and without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy term of imprisonment. [5] In deciding this matter have received and reviewed the original Informations on all outstanding matters involving the accused. have considered the criminal record of the accused which has been admitted by him. have not considered the transcript as it relates to the circumstances of the new offences, as am not satisfied that the comments of Crown counsel contained in it are evidence within the meaning of s. 518 of the Criminal Code. No admission was sought from, nor made by the accused who was representing himself, concerning any of these factual assertions. The accused did not make any admissions in relation to the alleged facts on this bail review. [6] The accused’s criminal record commences in December 2001, with the last conviction being registered July 19, 2006. It consists of 36 convictions including six offences involving assault or threats. There are also 11 convictions which show that the accused does not comply with court orders. These convictions include driving while prohibited, breach of probation and breach of undertaking. In addition, there are two convictions for failing to appear and one for being unlawfully at large. [7] The Crown submits that all outstanding matters will be dealt with in Provincial Court on February 12, 2007. It is opposed to the accused’s release relying primarily on s. 515(10)(b) of the Criminal Code. [8] The accused submits that he would have place to stay with his grandmother if he were to be released. He further submits that he would be prepared to comply with any conditions imposed by the Court. He submits that alcohol treatment is essential to his success. He wants to make significant changes in his life. [9] In R. v. Morales, 1992 CanLII 53 (SCC), [1992] S.C.R. 711; (1993), 17 C.R. (4th) 74 (S.C.C.), Lamer C.J.C. commented on the “public safety” component of s. 515(10)(b) at pp. 736 and 737, as follows: The public safety component of s. 515(10)(b) provides that pre-trial detention is justified where it is necessary “for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit criminal offence or interfere with the administration of justice”. The appellant concedes, quite properly in my opinion, that danger or likelihood that an individual will commit criminal offence does not in itself provide just cause for detention. In general, our society does not countenance preventive detention of individuals simply because they have proclivity to commit crime. The appellant accepts this proposition but submits that there is just cause for preventive detention where an individual who presents danger of committing an offence is already awaiting trial for criminal offence. ... Bail is not denied for all individuals who pose risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. [10] The accused submits that he will attend court on February 12, and if alcohol can be eliminated from his life, that protection and safety of the public will not be an issue. [11] It should be noted that the accused received the benefit of conditional sentence in April of 2006 and in July was found to have breached the orders which formed part of the conditional sentence. He is now facing additional allegations of breach. Even though he was still bound by conditional sentence and was charged with another violent offence, which is alleged to have occurred in September, he was once again released from custody in October. This was followed by the allegation of yet another and more serious assault which has lead to Mr. Favel remaining in custody for the past three months. [12] I am satisfied based on the material before me that Mr. Favel’s continued detention at this time is necessary for the protection or safety of the public. In coming to this decision I put significant weight on Mr. Favel’s continued disregard of court orders and the fact that the number and severity of the assault incidents is increasing. [13] find that the accused has failed to meet the onus on him to justify that his detention in custody is not necessary and pursuant to s. 520(7)(d) of the Criminal Code his application is dismissed.","The accused brings an application pursuant to s. 520 of the Criminal Code for a review of the order denying him judicial interim release. HELD: The accused's continued detention is necessary for the protection of the public The Court puts significant weight on the accused's continued disregard of court orders and the fact that the number and severity of the assault incidents is increasing. The accused received the benefit of conditional sentence in April 2006 and in July was found to have breached the orders which formed part of the conditional sentence. He is now facing additional allegations of breach. Even though he was bound by conditional sentence and was charged with another violent offence, which is alleged to have occurred in September, he was once again released from custody in October. This was followed by the allegation of yet another and more serious assault which has lead to the accused remaining in custody for the last months.",e_2007skqb34.txt
287,"Q.B.G. A.D. 1999 No. 341 J.C.R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART FIFTY-TWO OF THE RULES OF THE COURT OF QUEEN’S BENCH AND IN THE MATTER OF AN APPLICATION TO PROHIBIT HEARING OFFICER DIRK SILVERSIDES FROM CONTINUING WITH HEARING IN RESPECT OF DISCIPLINARY CHARGES MADE AGAINST CST. SHAUN YOUNG PURSUANT TO THE POLICE ACT, 1990 BETWEEN: CST. SHAUN YOUNG and CHIEF OF POLICE, REGINA POLICE SERVICE and DIRK SILVERSIDES, in his capacity as Hearing Officer under The Police Act, 1990 RESPONDENT Merrilee D. Rasmussen, Q.C. for the applicant D. Neil Robertson for the respondents JUDGMENT GUNN J. March 24,1999 [1] The applicant, Cst. Shaun Young seeks an order in the nature of prohibition to prevent the respondent hearing officer, Dirk Silversides, from proceeding with the hearing into the conduct of the applicant pursuant to discipline charges brought against him by the respondent police chief, dated October 26, 1998. [2] The applicant also seeks declaration that: 1. member of police service must be informed of any investigation of his conduct prior to the commencement of the investigation, as required by Section 54 of The Police Act, 1990, S.S. 1990-91, c. P-15.01 (the “Act""). 2. The Act does not permit the amendment of the Form discipline notice, since it is statutory form. The relief sought in the motion regarding disclosure has been abandoned by the applicant. [3] The applicant is member of the Regina Police Service. Pursuant to the Act the applicant was charged with discreditable conduct in respect of an alleged offence occurring on May 2, 1998. Cst. Young was served with the Notice of Formal Discipline Proceedings in Form under the Act on October 28, 1998. He received no notice of the investigation pursuant to s. 54(1) of the Act. hearing before Dirk Silversides, hearing officer appointed to hear such matters under the Act with respect to this charge commenced December 10, 1998. [4] The applicant took objection to the prosecutor's request to amend the Form notice of the discipline offence with which Cst. Young was charged and with the failure by the Chief of Police to provide notice to Cst. Young of the discipline proceedings as required by the Act. [5] The hearing officer held that s. 42 of the Act provides complete discretion to the Chief of Police to amend charges without the need to obtain leave to do so from the hearing officer or, in the alternative, that the hearing officer had the discretion to grant leave to amend and leave was granted. The hearing officer held that, although s. 54(1) of the Act requires the Chief of Police to advise the member of the police service who is the subject of discipline proceedings prior to or concurrent with an investigation into the member's conduct, where the required notice is not provided, the validity of any subsequent hearing will not be affected by that failure, unless the failure to give notice affects the member's right to be apprised of the case against him in accordance with the rules of natural justice. [6] The hearing officer held that in the absence of any evidence that the applicant's right to fair hearing was affected, the hearing could proceed, although the hearing officer cautioned the Chief of Police that failure to provide the required statutory notice in future could lead to different result. [7] The applicant seeks writ of prohibition to prohibit Silversides from proceeding with the hearing into the conduct of the applicant on the grounds that there are contraventions of the Act, The Municipal Police Discipline Regulations, 1991, R.R.S., c. P-15.01, Reg. and the rules of natural justice and the duty of fairness which have resulted in the hearing officer having exceeded or lost jurisdiction to proceed with the hearing. [8] The respondent takes the position that this Court should not entertain the application where there is a convenient alternative remedy provided in the Act by way of appeal to the Saskatchewan Police Commission. Further it submits that the Chief of Police was entitled to amend the ""Notice of Formal Discipline Proceedings"" and in the event that such amendment required leave of the hearing officer, he would be entitled to grant such leave. Lastly, the respondent submits that the hearing officer erred in holding that s. 54(1) of the Act requires notice of an internal investigation to be provided to the member who is the subject of the investigation. THE LEGISLATION [9] The following provisions of the Act and the regulations are relevant: The Act: In this Act: ... (d) “commission” means the Saskatchewan Police Commission continued pursuant to section 3; ... (i) “investigator” means the complaints investigator appointed pursuant to section 16. 4(1) The commission is to consist of not less than three commissioners to be appointed by the Lieutenant Governor in Council. 12(1) Subject to the approval of the Lieutenant Governor in Council, the commission may make regulations; (a) prescribing minimum standards for the selection and training of members; (b) prescribing police training program for members or any category of members; ... (j) establishing uniform disciplinary code for all police services, including the procedure to be followed in hearing and determining breaches of discipline, unsuitability or incompetence; (k) prescribing offences under any code established pursuant to clause (j) and the penalties that may be administered; (l) providing for and prescribing rules respecting appeals with respect to discipline, breaches of conduct, suspensions or dismissals from employment; Complaints COMPLAINTS PROCEDURE 37 In this Part: (a) “internal discipline” means disciplinary proceedings initiated within the police service. ... 42 Where complaint or charge against member or chief pursuant to this Part is expanded or altered as result of an investigation, the chief or board conducting the investigation shall provide that member or chief with written notice of that expansion or alteration. INTERNAL DISCIPLINE 54(1) Where internal discipline proceedings are initiated pursuant to this Part with respect to member, the chief shall immediately: (a) in writing, advise: (i) the member who is the subject of the proceedings; and (ii) where the matter directly relates to member of the public, the investigator; of the substance of the matter; and (b) cause an investigation into the matter to be conducted. 56(1) Where hearing is proceeded with pursuant to section 48, 52, 54 or 55, the rules prescribed in this section apply to the hearing. (5) The rules of evidence for all hearings conducted pursuant to this Part are the same as in civil cases in Her Majesty's Court of Queen's Bench for Saskatchewan. (10) All oral evidence received at hearing conducted pursuant to this Part, is to be taken down in writing or recorded by electronic means. (11) All the evidence taken down in writing or recorded by electronic means and all documentary evidence and things received in evidence at hearing conducted pursuant to this Part forms the record of the hearing. 59(2) hearing officer, after making decision with respect to internal discipline proceedings, shall immediately give notice in writing to: (a) the person who is subject of the proceedings; and (b) the board or the chief, as the case may be; of the findings of the hearing, any action taken pursuant to section 58 and the rights of appeal provided for pursuant to this Act. (3) Within 30 days after the day on which member, chief, board or complainant is given notice of decision of hearing officer pursuant to section 58, the member, chief, board or complainant may apply to the commission for permission to appeal that decision to the commission pursuant to section 69. INCOMPETENCE AND UNSUITABILITY ... 62 Subject to any right of appeal to the commission under this Act, every decision or order of the hearing officer is final, and no order, decision or proceeding of the hearing officer shall be questioned, reviewed, restrained or removed by prohibition, injunction, certiorari, mandamus or any other process or proceeding in any court. ... APPEAL TO COMMISSION 69(1) person entitled to apply to the commission for permission to appeal shall serve on the commission notice of application for permission to appeal all or part of the decision to the commission. (4) The commission shall grant permission to appeal where: ... (b) the decision affecting the member or chief seeking an appeal imposes: (i) dismissal; or (ii) demotion in rank; (c) after considering: (i) the notice of application; (ii) the record; and (iii) any other information the commission considers necessary; the commission has concerns regarding the thoroughness or fairness of the investigation or hearing; (d) in the opinion of the commission, the disciplinary action imposed may not be comparable to disciplinary action imposed with respect to similar proceedings; or (e) there are any other grounds that the commission considers appropriate. 70(1) An appeal to the commission pursuant to this section shall proceed on the basis of the record unless the commission orders otherwise. (2) The commission shall cause all proceedings on an appeal pursuant to this section to be recorded. (9) All evidence heard before the commission or commissioner shall be taken under oath or affirmation. 71(1) On hearing an appeal pursuant to section 70, the commission may: (a) adjourn the appeal from time to time; (b) dismiss the appeal; (c) allow the appeal; (d) vary the decision or order; (e) order new hearing by the hearing officer. ... 72 Subject to subsection 71(5), every decision or order of the commission is final, and no order, decision or proceeding of the commission shall be questioned or reviewed, restrained or removed by prohibition, injunction, certiorari, mandamus or any other process or proceeding in any court. The Municipal Police Discipline Regulations, 1991, R.R.S. c. P-15.01, Reg. 4. 7(1) If the chief or member designated by the chief considers that discipline charge should be laid against member he or she will cause notice to be prepared in Form setting out the offence alleged to have been committed and advising the member that the hearing officer will notify the member of the date, time and place of the first hearing of the alleged offence. (2) Subject to subsection (3), the notice mentioned in subsection (1) is to be served on the member alleged to have committed the offence not less than 10 days before the day of the first hearing, and is to be accompanied by: (a) copies of the statements made by witnesses; (b) copy of the statement, if any, made by the member; and (c) list of the names of those witnesses who will be called. 23(1) Subject to subsections (1.1), (2) and (3), no proceedings to prosecute charge shall be commenced after the expiry of six months from the day on which the alleged charge should have been discovered. (3) Where matter has been referred to the minister or the Attorney General of Canada pursuant to section 47 or 51 or subsections 54(3) of the Act, proceedings to prosecute charge may be commenced within three months after the completion of the investigation by the minister or the Attorney General of Canada. APPROPRIATE REMEDY [10] The respondent submits the Court ought not to entertain the application as there is an adequate remedy, by way of appeal, provided for by the Act. In particular, the respondent argues the Court should decline to hear judicial review applications of interim decisions in discipline hearings. [11] The applicant argues that the fundamental questions to be addressed in this case revolve around issues of statutory interpretation that must be resolved on a standard of correctness. The alternative remedies are not adequate in the view of the applicant. [12] The leading case on this issue is Harelkin v. University of Saskatchewan, 1979 CanLII 18 (SCC), [1979] W.W.R. 676 (S.C.C.) which establishes the doctrine of the “adequate alternative remedy” as bar to judicial review. The existence of an adequate alternative remedy is held to constitute bar because judicial review is discretionary remedy. Thus, if an adequate alternative method of securing justice for the parties is available, it ought to be accessed. [13] Mr. Justice Beetz, writing for the majority, set out the test to be applied in making the determination of whether or not an alternative remedy is adequate in the following manner at 697: In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even better remedy than recourse to the courts by way of prerogative writs, several factors should have been taken into consideration, among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by body which was not professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of previous finding, expeditiousness and costs. [14] In Bayne No. 371 (Rural Municipality) v. Saskatchewan Water Corp. (1990), 1990 CanLII 7675 (SK CA), 90 Sask. R. 102 (C.A.); 46 Admin. L.R. 23, the applicant municipality sought certiorari arguing the respondent had no jurisdiction over roads and had lost jurisdiction by not acting within statutory period. The statute in question contained broad right of appeal to the Water Appeal Board with further right of appeal on questions of law to the court. [15] Cameron J.A. found that even assuming the matter in issue did pertain to the jurisdiction of the Saskatchewan Water Corporation, certiorari is discretionary remedy. Provided right of appeal of sufficient scope and appropriate effect exists, alleged nullities can be challenged by that route. Where an adequate alternative remedy exists, special circumstances had to exist before court would award certiorari. [16] After reviewing the decision of the Supreme Court of Canada in Harelkin, supra, Cameron J.A. stated the following at 105: In light of the foregoing, we took Harelkin's case as standing for the following propositions: 1. Certiorari remains “a writ of grace” to grant or withhold as, in the discretion of the court, circumstances suggest. 2. If, in the circumstances right of appeal of sufficient scope and appropriate effect exists, then an order, even though it be nullity, is nevertheless appealable. 3. If the right of appeal provides an “adequate alternative remedy”, having regard for the considerations bearing upon that matter, the residual discretion in the court will ordinarily be exercised in denial of certiorari. Only if “special circumstances” are present will the courts then exercise their prerogative power and quash on certiorari. [17] In determining whether ""special circumstances"" exist, reference may be made to Gage v. Ontario (Attorney-General) (1992), 1992 CanLII 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Ont. Ct. Gen.Div.). The court held at 553: The Act provides the applicant, if the board finds against him on the merits, with full right of appeal. It is the practice of this court to discourage premature applications for judicial review where there is an adequate alternative remedy by way of appeal. If there is prospect of real unfairness through denial of natural justice or otherwise, superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted: see, generally, Bell v. Ontario Human Rights Commission (1971), 1971 CanLII 195 (SCC), 18 D.L.R. (3d) 1, [1971] S.C.R. 756; Re Hayles and Sproule (1980), 1980 CanLII 1595 (ON SC), 29 O.R. (2d) 500 (Div. Ct.), per Callaghan J., at pp. 501-2. The board heard full evidence on the jurisdictional facts going to natural justice. That part of the record is complete and there is nothing to add. We are in as good position to deal with that issue as we would be on an appeal from the board. The unfairness in this case is so obvious that it would be inappropriate to put the officer through trial before tribunal that lost jurisdiction through denial of natural justice. Having regard to the prejudice noted above and the fundamental unfairness in the process of the commission, an appeal is not an adequate alternative remedy. This is one of those exceptional cases where the court should exercise its extraordinary jurisdiction at this stage to prevent further denial of natural justice. [18] The Supreme Court re-examined the issue in Matsqui Indian Band v. Canadian Pacific Ltd. 1995 CanLII 145 (SCC), [1995], C.N.L.R. 92. Lamer C.J. at 108-109 set out the factors to be considered in determining whether or not to enter into judicial review as follows: ... [T]he convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). do not believe that the category of factors should be closed, as it is for the courts in particular circumstances to isolate and balance the factors which are relevant. [19] The proposition that the courts should not entertain such an application where there is convenient alternative remedy provided in the Act has been accepted by this court in other challenges to police disciplinary proceedings. (See Romanuck v. Penkala and Henderson (1984), 1984 CanLII 2251 (SK QB), 35 Sask. R. 216 at 217-218 (Q.B.); affd (1987), 1987 CanLII 4911 (SK CA), 56 Sask. R. 27 at 34 (C.A.) and Shykitka v. Regina Police Service (1989), 1989 CanLII 4613 (SK QB), 79 Sask. R. 311 at 316 (Q.B.); affd (1990) 1990 CanLII 7733 (SK CA), 83 Sask. R. 70 (C.A.)). [20] In Selinger v. Chief of Police of Regina Police Service et al. (1998), 1998 CanLII 13967 (SK QB), 173 Sask. R. 40 (Q.B.), affd by the Saskatchewan Court of Appeal, March 9, 1999, McIntyre J. considered the same matters to which the applicant objects in this case as well as other issues. Mr. Justice McIntyre analysed the individual issues raised and held there was an adequate alternative remedy and found there to be no “special circumstances” upon which he would exercise his discretion to determine the merits of the application. am in substantial agreement with the decision of McIntyre J., which has been upheld by the Court of Appeal, and do not find there to be significant differences in the circumstances before me. [21] I find there is an adequate alternative remedy which should be pursued and find there to be no “special circumstances” upon which I would exercise my discretion to determine the merits of the application. In the exercise of my discretion, the application is dismissed.","The constable sought a writ of prohibition to prevent the respondent hearing officer from proceeding with the hearing into his conduct pursuant to discipline charges brought against him by the Chief of Police on the grounds there were contraventions of the Act, the Municipal Police Discipline Regulations and the rules of natural justice and the duty of fairness which resulted in the hearing officer having exceeded or lost jurisdiction to proceed with the hearing. He sought a declaration that a member of the police service must be informed of any investigation of his conduct prior to the commencement of the investigation as required by s.54 of the Police Act.; the Act does not permit the amendment in Form A discipline notice since it is a statutory form. The relief sought regarding disclosure had been abandoned by the applicant. The applicant argued that the fundamental questions to be addressed revolved around issues of statutory interpretation that must be resolved on a standard of correctness and the alternative remedies were not adequate. The respondent took the position that this Court should not entertain the application as there is a convenient alternative remedy provided in the Act by way of appeal to the provincial Police Commission; that the Chief was entitled to amend the notice and would be entitled to grant leave if required; the hearing officer erred in holding that s.54(1) of the Act requires notice of an internal investigation to be provided to the subject member. HELD: The application was dismissed. There is an adequate alternative remedy which should be pursued. There were no 'special circumstances' upon which the court should exercise its discretion to determine the merits of the application.",6_1999canlii12571.txt
288,"SUPREME COURT OF NOVA SCOTIA Citation: Longard v. Keel 2011 NSSC 75 Date: 20110218 Docket: Hfx No. 224020 Registry: Halifax Between: Roy E. Longard v. Ronald Harold Keel and Petra Simone Keel Defendants Judge: The Honourable Chief Justice Joseph P. Kennedy Heard: July to 15, 2010, in Halifax, Nova Scotia Counsel: Allen C. Fownes for the Plaintiff D. Mark Gardiner, for the Defendants By the Court: [1] This is dispute about the use of property. [2] Eldred and Borden Longard were brothers and had close relationship. They had joint ownership of family property at Tantallon on public Highway No. and in August of 1942 they exchanged deeds dividing the property into two abutting parcels, both of which were fronted on that highway. [3] Borden's property was adjacent to the Nine Mile River, while Eldred's property was to the east of Borden's. [4] After the division, Eldred continued to maintain garden on Borden's property and he and those accessing his property used driveway that ran from Highway No. across Borden's parcel to Eldred's land. This access road ran adjacent to Borden's house (""the Borden driveway""). [5] That garden and that driveway are central to this action. [6] The Plaintiff, Roy Longard, is Eldred's son and in 1986 he obtained portion of his father's parcel next to Borden's land. For years after his father's death he continued to use ""the Borden driveway"" to access his property from the highway and continued to maintain the garden on Borden's property that had been his father's. [7] Borden's driveway is not the only access to Roy Longard's property from Highway No. 3. There is another driveway that lies wholly on Roy Longard's land to the east of the disputed access (""the other driveway""). [8] ""The other driveway"", although not as convenient, has also been used and is used to access the lots that once were Eldred's parcel. [9] ""The other driveway"" is shown on plan of survey that was created August 11, 1980 and entitled ""Plan of Survey showing the lands of Eldrid [sic] and Borden Longard"" (Exhibit No. D24). [10] On this plan, ""the other driveway"" is shown running from public Highway No. onto Eldred Longard's ""Lot B"" it is referred to as the ""existing driveway"". [11] Borden Longard transferred his property to the Seventh Day Adventist Church by deed dated June 14, 1995. The Church sold the property to Laurie and Linda Mills by deed dated October 22, 1995. The Mills, in turn, conveyed the property to the Defendants, Ronald and Petra Keel, by deed dated November 22, 1999. [12] The Defendants have shut off ""the Borden driveway"" to Roy Longard and do not consent to his continued use of the garden on their property. [13] The Plaintiff, Roy Longard, wants to continue to garden on the Keel property and use ""the Borden driveway"". By this action he claims that he has the right to do both. AS TO THE DRIVEWAY [14] There is clear evidence that after the Longard brothers divided the land and each occupied their respective lots, Eldred and those accessing his property commonly would travel over ""the Borden driveway"". [15] This use continued uninterrupted after Roy Longard received the portion of Eldred's property and as long as Borden remained on his property and continued when the property was transferred to the church and then to the Mills family. [16] This use of ""the Borden driveway"" by Eldred and then Roy is testified to by Roy Longard and confirmed by numerous creditable witnesses: this usage is not in dispute. [17] Roy Longard's submits that his use of this driveway as of right is based on two grounds: 1) expressed reservation, and 2) prescription. Reservation [18] Whether there is an expressed reservation is question of fact. [19] The Plaintiff, Roy Longard, submits that in the deed from Eldred Longard to Borden Longard, created when the brothers divided the family property in 1942, Eldred reserved to himself right-of-way over Borden's land which he claims is ""the Borden driveway"". [20] The description for the land conveyed from Eldred to Borden, aforesaid, reads as follows: Beginning on the eastern line of the Nine Mile River at its intersection with the southern side line of Public Highway leading from Halifax to Margaret's Bay thence easterly along the said southern line of the Public Highway for distance of 222 feet to post thence south 31 degrees 22 minutes west for distance of 611 feet to Juniper Post; thence south 48 degrees 30 minutes west for distance of 288 feet to Juniper Post; thence north 41 degrees 30 minutes west for distance of 19 feet to the middle of the road leading from the Public Highway to the Nine Mile River; thence southerly along the middle of said road for distance of 1134 feet or to the edge of said Nine Mile River, thence up stream following the said Nine Mile River to the place of beginning saving and reserving the free and uninterrupted Right-of-Way of the said road for the said Vendors, their Heirs and Assigns but granting the said Purchaser the free and uninterrupted use of the said Road. [21] Roy Longard says the ""right-of-way of the said road"" is ""the Borden driveway"" in question. [22] do not find this to be so. The ""said road"" in the description clearly refers to the ""road leading from the public highway to the Nine Mile River ... [23] This is the only ""road"" previously referred to in the description. This is not ""the Borden driveway"". It is more likely that this reservation refers to an existing road that leads from public Highway No. to the river, then along the river's edge across the Borden Longard property. This road is shown as ""the Old Mill Road"" on the survey plan which was created August 11, 1980, and entitled ""Plan of Survey showing lands of Eldrid [sic] and Borden Longard"". This plan is Exhibit No. D24. There is evidence that this road was in use in 1942. [24] It is telling that this reservation does not say that the road in question provides access to Eldred Longard's parcel. [25] That 1980 survey was accomplished when Eldred was alive and it shows subdivision of his property. Subsequently, Eldred sold portion of his property to his son David, Roy's brother, and his wife Dorothy by deed dated December 1, 1980. In that deed there is no reference to any access right-of-way across Borden's land. [26] When Eldred conveyed the portion of his land to Roy in August of 1986, the deed makes no mention of right-of-way across Borden's property. [27] There is no reference to the Borden right-of-way in any subsequent conveyances by Eldred or Borden. It would seem that if it were right-of-way as significant as roadway running proximate to Borden's house and accessing Eldred's land, it would have been referenced in these subsequent deeds. [28] I find that the Plaintiff has not shown that the reservation contained in the 1942 Eldred deed to Borden is or incorporates ""the Borden driveway"". [29] There is no expressed reservation shown by the Plaintiff herein. Prescription or ""Lost Modern Grant"" [30] Roy Longard submits that reservation or no reservation, his father Eldred and he have used ""the Borden driveway"" to an extent and in manner that has created right. [31] The Nova Scotia Court of Appeal visited the law of prescription in Mason v. Partridge, 2005 CarswellNS 479. Oland, JA states at paras. 17-22: 17 Mr. Mason's appeal is based on the doctrine of modern lost grant. Charles MacIntosh, Nova Scotia Real Property Practice Manual, at 7‑21 described that doctrine as follows: The [doctrine of lost modern grant] is judge‑created theory which presumes that if actual enjoyment has been shown for 20 years, an actual grant has been made when the enjoyment began, but the deed granting the easement has since been lost. However, the presumption may be rebutted. 18 In Henderson, supra the Ontario Court of Appeal set out the requirements for establishing an easement pursuant to either limitations statute or the doctrine of modern lost grant in the following passage: 14. It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate use and enjoyment of the right‑of‑way under claim of right which was continuous, uninterrupted, open and peaceful for period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20‑year period immediately preceding the bringing of an action. 19 The trial judge relied upon two decisions for the proposition that the claimant must also establish that the enjoyment of an easement was without permission: Gilfoy v. Westhaver, 1989 CanLII 1494 (NS SC), 92 N.S.R. (2d) 425, [1989] N.S.J. No. 268 (N.S. T.D.) and Publicover v. Publicover (1991), 101 N.S.R. (2d) 75 (N.S. T.D.). The Nova Scotia Real Property Practice Manual, supra referred to these decisions and then stated at 7‑23: The claimant must show such use was made without force, secrecy, or evasion and without consent of the servient owner. [Emphasis in original] 20 The case law does not unambiguously support the conclusion concerning the burden of proof, but in my view, it is not necessary to resolve that issue to decide this case. 21 The enjoyment required to acquire an easement must demonstrate certain characteristics. Gale on Easements, 17th ed. (London: Sweet Maxwell 2002) at p. 208 states: The civil law expressed the essential qualities of the user, by the clear and concise rule that it should be ""nec vi, nec clam, nec precario"". None of the evidence in the proceeding on appeal indicates that the enjoyment was by violence. Nor was it secret the trial judge was satisfied that there was at least 20 year period of ""open use"". Thus the question becomes whether the user meets the third requirement that it be ""nec precario."" 22 In that regard, Gale on Easements at p. 214‑215 states: 3. Nec precario The enjoyment must not be precarious. What is precarious? ""That which depends not on right, but on the will of another person."" Enjoyment had under licence or permission from the owner of the servient tenement confers no right to the easement. [32] There is, as stated, considerable and convincing evidence that Eldred and Roy Longard in combination used ""the Borden driveway"" in a continuous, uninterrupted, open, and peaceful manner for many years (well in excess of 20 years) prior to it being blocked off by the Defendants. Roy Longard claims that such use has resulted in right to continue to use this driveway. [33] The Defendants claim that this usage was with the permission of Borden Longard, that he did not ever intend for Eldred Longard or his successors to acquire right to the use of ""the Borden driveway"". [34] They have produced Statutory Declaration that was executed by Borden Longard on September 1996 (Exhibit 1A, Tab 10). Paras. 3, and of that Statutory Declaration reads as follows: 3. THAT on August 5, 1942, Eldred Longard and his wife conveyed the lower portion of ""family lands"" bordering on Nine Mile River (LRIS #40026783) to me. This Deed is recorded at the Registry of Deeds at Halifax in Book 845 at Page 813. The property referred to in that Deed is presently owned by Laurie and Linda Mills who acquired the property on October 27, 1995 (Book 5800, Page 1067). 4. THAT some time after acquiring the property referred to above my brother, Eldred, asked if he could use the circular driveway on my property. He also asked if he could use small area (30' 40') of my property for garden (the driveway and garden as it exists today are shown on the plan attached hereto as Schedule ""B""). Given that the entrance to my property was safer to use than the driveway on Eldred's property and the fact that had garden there myself, gave him my permission to use the driveway and make garden on my property. While both the driveway and the garden were used by him (and later by his son, Roy) regularly over the following years they both knew that they were using the driveway and the garden with my consent and that the property belonged to me. never said, or implied, that either of them owned the property or could have the property. always exercised all other elements of control and ownership over LRIS 40026783 including the driveway and the area the garden was located on. 5. THAT, furthermore, had wished that Roy Longard have the garden in question would have deeded it to him prior to selling the property to the Maritime Conference of the Seventh-Day Adventist Church in 1995. deliberately chose not to convey the garden property to him when sold this property to the Church. [35] am satisfied that ""the circular driveway"" referred to in paragraph 4, is ""the Borden driveway"". [36] Borden's averral in that document is significant to the prescription issue. [37] This is the only evidence as to the communication between Borden and his brother, Eldred. The only evidence as to the nature of the arrangement which led to the use of ""the Borden driveway"" (and the garden) by Eldred Longard. [38] The Plaintiff, however, claims that Borden was not competent when he executed this document, so as result the circumstances surrounding the execution are highly relevant. [39] This Statutory Declaration was accomplished at the initiative of Linda Mills, predecessor in title to the Defendants. She is retired teacher. She testified. found her to be an impressive and creditable witness. [40] She and her husband, Laurie, purchased the Borden Longard property from the church in October of 1995, intending to build house in the area where their successors, the Keels, eventually built. [41] Linda Mills testified to difficult relationship with Roy Longard. She said he was upset that ""outsiders"" were purchasing the Borden Longard property. Roy continued to use the garden area that was on the Mills land, and trees that they planted along the border that separated the properties were ""torn out"". [42] Roy Longard's claim to the use of both the garden and ""the Borden driveway"" on the Mills property was formalized by letter dated August 20, 1996, sent to Linda and Laurie Mills by his then lawyer, Kelly Patrick Shannon (Exhibit 1B, Tab D11). This letter reads in part: You are no doubt aware by now that Mr. Longard has claimed that he has possessory interest in this land operated by virtue of this Limitations of Actions Act. We have reviewed the various facts and circumstances surrounding this matter and it would appear to us that Mr. Roy Longard has in fact been in actual, open, notorious, exclusive and continuous possession of this garden property as well as road access for period of time well in access [sic] of 20 years. In fact, his father before him had owned Roy Longard's property and had utilized this property continuously dating back to the 1930's. Mr. Longard informed us when you purchased this property you had undertaken survey of the line between the property you subsequently purchased and that of Mr. Longard's which, presumably, would have disclosed the existence of this encroachment. It is our view that Mr. Longard has established his prescriptive right to the garden property and portion of the roadway of this property and his intention is to continue to the use of this property in the same manner in which he has used this property for several years and to which he has acquired an entitlement to do. [43] Linda Mills testified that as result of the receipt of this letter and the actions of Roy Longard she decided to go and speak to Borden Longard at the nursing home medical facility where he then resided. [44] She said that she saw Borden twice before the Statutory Declaration was drawn up. ""We shared with him the trouble with Roy. As result of these conversations the Mills engaged counsel to prepare the Statutory Declaration. [45] Linda Mills said that she believed that Borden was of sound mind during these discussions and that he ""articulated well"". As result of the conversations with Borden Longard, Mills engaged Les Doll, the counsel who had acted for the Mills when they had purchased the property, to prepare the Statutory Declaration. [46] Les Doll testified. He has been member of the Nova Scotia Bar since 1986 and property law specialist. With respect to the preparation and execution of the Statutory Declaration, he said ""you have to make sure that the signing party knows what he or she is doing that's crucial especially with older people"". [47] Les Doll attended at the nursing home with Linda Mills and Glenna Doubleday (a niece of Borden Longard). He said he asked Borden questions to determine his situation, ""Borden was bright and lucid, he knew what he wanted to do. He was amazed at Roy Longard's assertions. Borden made the point 'if had wanted to give it to him would have'."" [48] Les Doll said that he read the document to Borden paragraph by paragraph before the signing. [49] Glenna Doubleday is the niece of Borden and the cousin of Roy Longard who was present at the signing of the Statutory Declaration. She visited her Uncle Borden frequently until his death. She estimated she was at the nursing home at least once week. She assisted with his banking once month, ""I never thought his mind was failing"". ""His mind was good to the very end"". She made notes in her diary on the day that the Statutory Declaration was signed. She wrote that the document was signed ""so Roy can't claim the garden or the driveway"". [50] Glenna Doubleday was creditable witness. She showed no bias as between these parties and was in an excellent position to have assessed Borden's cognitive ability at time proximate to the signing of this document. [51] Roy Longard claims that Borden was not capable at the time of the execution of the Statutory Declaration. Roy testified that he had contact with Borden in 1996 and believed he was suffering from dementia, ""He knew who was but didn't know what day it was"". [52] do not find that Roy Longard had contact with Borden that allowed him the advantage that Glenna Doubleday had when assessing Borden's competence. [53] am satisfied that Borden Longard was competent on the 5th day of September 1996 when he executed the Statutory Declaration. We have the testimony of the three witnesses who were present when he signed, one being his niece who had regular contact with him at times proximate to this signing. [54] am satisfied that counsel, Les Doll, made the effort to satisfy himself as to Borden's competency prior to the execution of that document. am further satisfied that Borden Longard knew what he was declaring. Although there is some legal terminology in the document, its overall content strikes me as being information that Borden Longard would have possessed and conveyed. [55] conclude that it is viable declaration that accurately communicates Borden Longard's position at that time. [56] There is another document that consider significant to the determination of the matter. [57] David Longard, as indicated, is Roy Longard's brother. The Eldred Longard property was subdivided as shown on the Plan of Survey dated 19th day of June 1986 (Exhibit No. 1B5). David Longard owned the land shown as Lot X, Lot 10, on that survey plan. That lot was behind Roy Longard's Lot No. 2, vis-a-vis the public Highway No. 3. [58] In April of 1987, David and Roy Longard entered into right-of-way agreement that is Exhibit 1, Tab B5. In that agreement, David is the party of the first part; Roy is the party of the second part. The agreement reads in part: NOW THIS AGREEMENT WITNESSES THAT, in consideration of the premises, (a) the Party of the First Part grants to the Party of the Second Part right-of-way for the use of the owners and occupants from time to time over the northern part of Lot where the Existing Driveway shown on the Plan runs from Highway No. to Lot 2; (b) the Party of the Second Part grants to the Party of the First Part right-of-way for the use of the owners and occupants from time to time over the Existing Driveway shown on the Plan which runs from Highway No. 3, over the northern part of Lot and then over part of the western half of Lot as shown on the said Plan to the southern part of Lot X; [59] The ""existing driveway"" described is that access to Highway No. that was shown as ""existing driveway"" onto Eldred's land in the Plan of Survey of August 11, 1980 (Exhibit No. D24). It is ""the other driveway"". [60] By this agreement, created 23 years ago, Eldred's sons are negotiating the rights to the access right-of-way that runs across Roy's land. There is no mention in this document of ""the Borden driveway"". [61] David Longard, user of ""the Borden driveway"", is securing access to No. Highway over ""the other driveway"" access to Roy's land. [62] David Longard testified as to why he entered into this agreement. He said he did so because ""he didn't have legal right-of-way across Borden's property although he had always used it"". [63] believe that David Longard's understanding is insightful he had used this entrance but he knew he didn't have right-of-way over it and so made arrangements with his brother, Roy, to obtain right-of-way over Roy's property. [64] Roy Longard testified, ""David and his wife brought the agreement out to me and asked me to sign. shouldn't have signed because knew this was not the existing driveway"". [65] I am satisfied on the basis of the Statutory Declaration and on the totality of the evidence that Eldred Longard, his sons Roy and David, and others accessing their properties from Highway No. 3 by use of ""the Borden driveway"", did so with the permission of Borden. [66] This permission extended by Borden to Eldred and then to Roy precludes the creation of any right to cross ""the Borden driveway"" created by prescription or lost modern grant. [67] find further that the use of the garden on Borden's property by Eldred and then Roy was with the permission of Borden Longard, as Borden sets out in his Statutory Declaration. [68] Similarly, as result, no right has vested in the Plaintiff, Roy Longard, as to the use of this garden. [69] Having found the Statutory Declaration of Borden Longard to accurately set out the circumstances of the use of ""the Borden driveway"" and the garden by Eldred and then Roy Longard, I find that Roy Longard has no right to the use of either and that the Defendants are able to legally terminate his use of their property. [70] If necessary, will receive written submissions as to costs. Kennedy, C.J.","After a piece of family property was divided into two parcels, one of the brothers continued to use a driveway and maintain a garden on the other parcel. When this brother died, his son continued to use the driveway and garden, even after the second property changed hands many times. When the current owners of the second property refused to allow the continued use of their property, the son claimed that his use of the driveway was of right on the basis of expressed reservation or prescription. He argued that his uncle was incompetent when he executed a statutory declaration stating that the use of both the driveway and the garden had been with his express permission. Judgment for the defendants; there was no express reservation of the driveway in the deed to the second property and the plaintiff did not have a prescriptive right to use the driveway. Although the plaintiff and his father had used the driveway in a continuous, uninterrupted and peaceful manner for well in excess of 20 years, the statutory declaration showed that this use had been with the uncle's permission.",b_2011nssc75.txt
289,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 037 Date: March 7, 2013 Information: 24384124 Location: Carnduff Between: Her Majesty the Queen and Milan Lawrence Ac Appearing: James Fitz-Gerald For the Crown David Kreklewich For the Accused JUDGMENT J. BENISON, CHARGES [1] The accused is charged that on the 5th of September 2010 at Oxbow, Saskatchewan:(1) while his ability to operate a motor vehicle was impaired by alcohol he did operate a motor vehicle contrary to section 253(1)(a) of the Criminal Code; and(2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood he did operate a motor vehicle contrary to section 253(1)(b) of the Criminal Code. CIRCUMSTANCES [2] Around midnight on September 5, 2010, the accused was stopped by an RCMP officer shortly after driving away from bar/restaurant in Oxbow. The accused blew fail on the approved screening device and was taken to Carlyle, where samples of breath were obtained with readings of 130 mgs and 120 mgs at 1:21 a.m. and 1:41 a.m. respectively. 1) Were the accused’s rights to counsel infringed and, if so what is the remedy? 2) Did the destruction of video evidence held by the RCMP breach the accused’s right to make full answer and defence? RIGHT TO COUNSEL DEFENCE ARGUMENT [3] The defence argued that, since the accused had been allowed to call his wife from his cell phone in the police cruiser on the way to Carlyle, the investigating officers should have waited reasonable time for the accused’s wife to call him back. In fact, the accused’s cell phone was taken from him on arrival at the Carlyle Detachment. [4] The second issue raised by the defence related to the availability of phone books and lists of lawyers for the accused. Phone books were available in the main office of the detachment but not in the lawyer room where the accused was placed to speak to counsel. [5] Thirdly, the defence argued that the officers, having full control over the phone, were obligated to act with the same diligence as the accused would have done if attempting to contact lawyer by phone. [6] Fourthly, the defence argued that the accused had, by implication, expressed dissatisfaction with his call to Legal Aid. Accordingly, the officer(s) should have provided “Prosper” warning to the accused before proceeding to take samples of breath. [7] Having heard testimony from Cst. Lachapelle and the accused on this issue, make the following findings of fact. [8] En route to Carlyle in the police cruiser, the accused made call on his cell phone to his wife, who was in Calgary, and asked her to find lawyer for him. The accused did not receive a call back from his wife by the time he arrived at the Carlyle Detachment and his cell phone was taken away from him. [9] At the Carlyle Detachment, Cst. Lachapelle asked the accused which lawyer he wanted to call and the accused said that his wife hadn’t called him back. Cst. Lachapelle advised the accused that he could provide phone book and access to phone and that Legal Aid was available. The accused stated that he would talk to Legal Aid. Contact was made with Legal Aid by the officer and the accused consulted with Legal Aid lawyer. After his consultation with Legal Aid, the accused asked the officers if they had got the dumbest lawyer they could find. Cst. Lachapelle asked the accused if he was satisfied and he said “sure”. Although the accused testified that he was being sarcastic, Cst. Lachapelle testified that he took this response at face value. The accused said nothing further to indicate that he was dissatisfied with his telephone consultation. CREDIBILITY OF ACCUSED [10] Except on few points, the accused’s testimony confirms the Crown evidence. found the accused to be very credible witness and accept all of his testimony, including his statements that he did not recollect number of details found that the accused was very frank in admitting that he did not remember Cst. Lachapelle offering to provide him with phone books at the detachment or offering to call Legal Aid; he did not specifically deny that these things had happened. In addition, at this point he did not make any further requests to call his wife. Finally with reference to his telephone call with Legal Aid lawyer, he did suggest that the officers had got the dumbest lawyer they could find; however on being asked if he was satisfied with his call to legal counsel he said “sure”, intending his reply to be sarcastic. After this, he made no further request to call another lawyer or call his wife. ANALYSIS OF RIGHT TO COUNSEL ISSUE [11] Based on my findings of fact set out above, it is my conclusion that there was no breach of the accused’s right to counsel. The removal of the accused’s cell phone at the detachment does give me some pause for thought in that the accused had initiated a procedure for obtaining legal advice which clearly could not be pursued once his cell phone was taken away. However, it is clear from the evidence that the accused made a conscious decision to consult with Legal Aid and, by implication, did not wish to pursue his first course of action. In this situation there was no obligation on the police officer to provide the accused with a Prosper warning. This was not situation where the accused opted not to contact legal counsel and thus waived his rights under s. 10(b). accept the Crown’s submission that there is no obligation on the police to monitor the quality of legal advice received by an accused: R. v. Willier, [2010] S.C.R. 429. On my view of the evidence, the accused did not clearly indicate that the legal advice he received was inadequate or suggest that he wanted to consult with another lawyer. Accordingly, the officer was justified in assuming that he was satisfied. On hearing the accused’s testimony, formed the opinion that he is an easygoing individual and not at all aggressive. accept his testimony that he was not satisfied with the legal advice he received, but find that he did not clearly communicate his dissatisfaction to the officer. [12] With reference to the issue raised by the defence about the RCMP having control over the phone, find that, in the circumstances of this case, there was no interference with the accused’s right to counsel. believe that, if the accused had had control over dialling the phone, no different outcome would have occurred. DESTRUCTION OF VIDEO EVIDENCE [13] Cpl. Guider of the Carlyle RCMP Detachment testified that occurrences in the hallway and breathalyzer room are recorded on VHS; there is still video with pictures taken every four seconds, with no audio. The cameras are placed in the top corner of each room and according to Cpl. Guider it would not be possible to pick out the features of individuals. Every 60 days, the tapes are put back into use, thus erasing the previous content. The tape in question had been erased before the defence had requested disclosure. [14] If the videotape had been preserved, it would have provided series of still shots, taken every four seconds, with no audio covering the period that the accused was in the hallway and the breathalyzer room, but not in the lawyer room. It is not necessary for the Court to decide whether the RCMP was negligent in erasing the recording after 60 days. This would only become an issue once the Court determines that the destroyed evidence was relevant. There must be reasonable possibility that the information could be useful to the accused in making full answer and defence: R. v. Banford, 2011 SKQB 418 (CanLII) at para. [15] Applying this principle to the facts in the case before me, note, firstly that the Crown directed stay of proceedings on the impaired driving charge before the conclusion of the trial. With reference to the remaining charge of driving while over .08, the observations of the accused, the roadside screening demand and the demand for samples of breath all occurred at the roadside and would not have been recorded on video at the detachment. The only remaining issue, the accused’s right to counsel, would have been covered by the video to the extent of the discussion about the accused talking to lawyer, his decision to talk to Legal Aid lawyer and his comment about the RCMP getting the dumbest lawyer they could find. In my opinion, series of still photos taken every four seconds with no audio could not conceivably have provided assistance to the Court on this issue. I therefore find that the destroyed video evidence was of no relevance and could not have assisted the accused in making full answer and defence. On the facts of this case, the accused’s rights were not breached by the destruction of the video evidence. CONCLUSION [16] The Certificate of Analyses filed as Exhibit P-1 is admitted into evidence. I find the accused guilty of the charge under s. 253(1)(b) of the Criminal Code. J. Benison,","The accused was charged with impaired driving and driving with a blood alcohol level over .08. The accused was permitted to use his cell phone on the way to the RCMP detachment to call his wife in Calgary and request help in finding a lawyer. He did not receive a call back from his wife. The RCMP officer advised the accused that he could provide a phone book and access to a phone and that Legal Aid was available. The accused stated that he would talk to Legal Aid. After the call was completed, the accused asked the officer if they had got the dumbest lawyer they could find. The officer asked the accused if he was satisfied with his call and he said 'sure.' The accused testified that his response was sarcastic, but the officer took it at face value. The accused said nothing further about the lawyer call. The accused's movements in the detachment were recorded on VHS videotape. The video is a series of still shots taken every four seconds and there is no audio. The video was taped over every 60 days and had been destroyed before it was requested by defence counsel. HELD: There was no breach of the accused's rights under s. 10(b) of the Charter. Even though the accused's cell phone was taken from him before he received a call back from his wife, it is clear that the accused made a conscious decision to call Legal Aid, and by implication, did not wish to pursue the first course of action. There was no obligation on the part of the RCMP to provide the accused with a Prosper warning. The accused did not clearly indicate that the legal advice he received was inadequate or suggest that he wanted to consult with another lawyer. The officer was justified in assuming that the accused was satisfied with the legal advice he had received. The Crown stayed the impaired driving count prior to the conclusion of the trial. The videotape evidence was not relevant to the .08 offence because all observations were made at roadside. The video would not have shown anything of relevance to the charge. There is no breach of the accused's rights under s. 7. The Certificate of Analysis was admitted into evidence and the accused was convicted of the .08 charge.",c_2013skpc37.txt
290,"S.C.C. 02288 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Matthews, JJ.A. BETWEEN: ROGER KENNETH PORTER and HER MAJESTY THE QUEEN Respondent Deborah M. Gass for the appellant William D. Delaney for the respondent Appeal heard: October 16, 1990 Judgment delivered: October 16, 1990 THE COURT: Appeal against sentence allowed and sentence varied to twelve months imprisonment for offence of aggravated assault causing bodily harm (Criminal Code, s. 268(1)) per oral reasons for judgment of Clarke, C.J.N.S.; Hallett and Matthews, JJ.A. concurring. The reasons for judgment of the Court were delivered by: CLARKE, C.J.N.S.: The appellant applies for leave to appeal from sentence of two years less one day and an order of two years probation imposed on May 8, 1990, by the Honourable Judge MacDonnell. The appellant entered guilty plea to charge of aggravated assault contrary to Section 268(1) of the Criminal Code. The offence was committed at Joggins where, late in the evening and while intoxicated, the appellant fired shots from his 12‑gauge shotgun, first at the mobile home wherein the parents of his estranged wife lived and, second, at his brother‑in‑law, who was injured in the leg. The latter was admitted to hospital for treatment. The appellant contends the trial judge erred by placing undue emphasis on general deterrence and failing to adequately consider the circumstances of the offence and the offender. Aggravated assault is serious offence for which the Code provides maximum penalty of fourteen years. The acts of the appellant placed the lives of several persons at risk, particularly that of his brother‑in‑law. After reviewing the record and the remarks of the trial judge at sentencing and after considering the submissions of counsel, we' are of the opinion that the trial judge imposed a sentence which fails to adequately reflect the special circumstances of the offender. Accordingly, we grant leave to appeal and allow the appeal by varying the sentence to twelve months incarceration. The other orders issued by the trial judge will continue. C.J.N.S. Concurred in: Hallett, J.A. Matthews, J.A. CANADA PROVINCE OF NOVA SCOTIA CAM 6710 IN THE SUPREME COURT OP NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER FIVE HER MAJESTY THE QUEEN v. ROGER KENNETH PORTER HEARD BEFORE: The Honourable Judge B. J. MacDonnell, J.C.C. PLACE HEARD: Amherst, Nova Scotia DATE HEARD: May 8, 1990 COUNSEL: C. Ellis, Esq., for the Prosecution D.M. Gass, for the Defendant APPEAL ON SENTENCE S.C.C. 02288 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: ROGER KENNETH PORTER and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.","Appellant, who was intoxicated, fired shots at the mobile home where the parents of his estranged wife lived and at his brother-in-law, who was injured. 2 years less a day plus 2 years probation varied to 1 year incarceration with two year probation and firearm prohibition - trial judge placed undue emphasis on general deterrence and failed to adequately consider the special circumstances of the offender.",d_1990canlii2519.txt
291,"J. 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, ‑and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties HEARD: at Kentville, Nova Scotia, before the Honourable Mr. Justice William J. Grant, Trial Division, on November 19, 20, 21, 1990. DECISION: February 20, 1991 COUNSEL: Mr. D. J. Kimball, Mr. Nash Brogan, for the plaintiff Ms. Heidi Foshay, Mr. J. Davies, for the Attorney General of Nova Scotia Mr. E. J. Flinn,Q.C., for Reddens and Lockharts 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, ‑and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties GRANT, J.: At about 3:00 p.m. on November 26, 1983 the plaintiff was in good health and driving his half ton truck on the Falmouth Back Road, so called, public highway, near Falmouth, Nova Scotia. A tree fell on his truck, crushing him inside the cab. He is now a paraplegic. The action had been presented in two steps, by agreement of counsel. Liability is to be tried now and the quantum of damages is to be determined later. This action was originally brought by the plaintiff against the defendants, Mr. Mrs. Redden, the owners of the property and the defendants, Mr. Mrs. Lockhart as the occupiers of the property on which the stump or trunk of the tree was located. It was originally framed in nuisance and negligence. separate action also in nuisance and negligence was started against the defendant, the Attorney General. The actions were consolidated and joined. The plaintiff's action against the defendants Redden and Lockhart was discontinued. The action against this defendant, the Attorney General, was not discontinued. This defendant, the Attorney General, did not consent to the discontinuance against the other defendants. This defendant has joined the defendants Redden and Lockhart as Third Parties seeking contribution and/or indemnity from them. The action against this defendant is now in tort for negligence. It is under the general duty of care and under special duty of care arising from its implementation of programme for the removal of trees which were an immediate hazard to the public. The Falmouth Back Road is public highway, it is paved and the right‑of‑way is 66 feet in width. It runs generally North and South from Falmouth to Route 14 leading to Chester. The Lockhart farm is located on the West side of the road. The third party Earl Lockhart is 82 years of age and not in good health. He is the husband of the third party Violet Lockhart. The third party Dorothy Redden is daughter of the Lockharts and the wife of the third party Reginald Redden. The property was the Lockhart homestead but was conveyed to the Reddens in 1974. The Lockharts continued to occupy the premises. The tree which fell was an Elm said to be about 110 years old. The stump was located about 2.9 feet beyond the highway right‑of‑way. It was estimated to be about 60‑70 feet tall. Its branches overhung the highway, probably at least to or beyond the centre line of the highway. This Elm tree was probably infected by Dutch Elm Disease (DED), although it had foliage, it may have exhibited some of the symptoms of DED. In addition it was infected by disease called Ganoderma applanatum. This was probably caused by mechanical wound in the base of the tree into which wound parasite had entered. The interior of the tree was killed and became pulpy, losing its strength, although the area near the bark was still healthy. On November 26, 1983 there was wind of about 37 km/hr. from the South West. It was cloudy but fine. The condition of the tree was such that even light wind (20 km/hr) could blow it over. It broke off from to 10 feet above the ground, leaving chair back stump, i.e., part of the outer layer of the tree was strong enough to partially hold. In the 1970's and early 1980's DED was causing extensive damage to Elm trees in this Province. The Town of Windsor appointed Tree Commission which took inventory of its trees and numbered and examined each one. If disease was suspected samples were sent to the Federal Forestry Lab in Fredericton to examine. If the tree was infected it was destroyed. Walter Stephens, age 73, is former member of the Windsor Tree Commission. He was Windsor fire chief in 1983 and attended at this accident scene. He had frequently driven past the Lockhart farm and had admired the stand of Elms. He knew they were old but prior to the accident he did not notice anything wrong with them. He did not notice symptoms of DED. During 1983 citizens were telephoning the local (Windsor) Department of Highways (Transportation‑D of T) office about dangerous trees overhanging the highways. Department of Transportation crews were doing what they considered they could do within their capabilities by using their chain saws in removing hazardous trees. There had earlier been maple tree problem but in 1983 the complaints related to Elms. In the Summer of 1983 the Divisional Engineer, Robert Colburne, decided to do an inventory of the trees which were dead and/or hazardous to the public. He appointed Gerald Allen, to examine the Elm trees. Allen came to of as foreman in the Summer of 1983. He had no training or expertise in trees or tree diseases. He was assigned survey technician, presumably to measure the location of the tree in relation to the highway. Allen was given no written instructions but was given notebook for log. He was to mark each such tree by numbered stake. The trees were to be noted in the log. If tree was considered by him to be an immediate hazard an asterisk was noted and that tree was examined by the engineer. took it some or most of those trees were removed. The engineer as well had absolutely no training or expertise relating to trees. In two or three weeks Allen located, staked and noted each Elm tree in the West Hants area which might be highway hazard. He examined the Elms at the Lockhart farm including the tree that fell. He marked as No. 150 an Elm about 400 feet from the tree that fell. It was not stated but Allen dealt principally with Elms. On the log page in evidence 10 trees are noted and all of them were Elms. Allen identified 234 such Elm trees in West Hants. Tree No. 150 was noted, an asterisk was placed by it in Allen's log but it was not removed until the Fall of 1984 when Redden removed it himself. Tree No. 150 was dead, it had no leaves or foliage in 1983. In 1974 the Town of Windsor employed Stan Kochanoff, Falmouth horticulturist, to examine the Elms in the Town Core area, to prepare an inventory and survey the health of each tree. This took months and cost $1,200.00. Kochanoff is currently doing the same for the City of Dartmouth for $10,000.00. Kochanoff said there were trained forestry personnel at the Provincial Department of Lands Forests in Truro and Debert. There were Federal forestry personnel at Kentville, at Truro and at Fredericton. Kochanoff lived near the Lockhart Farm and passed the trees frequently. In 1981‑2 he thought some of the Lockhart Elms had DED. By 1986 he considered that one of these trees was dead or the DED was quite advanced in one tree. He did not closely examine any of these trees. His comments were based on his observations as he passed the property in his car prior to the tree falling on the plaintiff. Dr. Jorgensen: In 1989 the defendant employed an expert, Professor Erik Jorgensen. He is Professional forester with Masters Degree in Forestry. He received his early education in Denmark. He had been at the University of Toronto from 1962 to 1973. He had been an Assistant Professor from 1959 to 1965, an Associate Professor from 1963 to 1967 and Professor from 1967 to 1973. He was research scientist and Chief of the Urban Forestry Program, Forest Management Institute, with the Department of Environment, Ottawa from 1973 to 1978. He was Consultant to the National Capital Commission. He was Director of the University of Guelph Aboretum and Professor of Environmental Biology from 1978 to 1986. He taught Arboriculture at the University of Guelph from 1980 to 1986. He retired from teaching in 1986 and since then has been working as consultant on forestry related matters. Professor Jorgensen was retained in 1989 and attended at the site on November 3rd. He located the stump of the tree which fell on the plaintiff. This was confirmed by Lockhart. He examined the relevant stump and found it was severely decayed. The wood had turned into pliable soft fibrous mass of whitish, light brown, colour. It revealed the presence of dead fruiting body or dead fungus identified as Ganoderma applanatum, the Artists Conk. Professor Jorgensen located stump 150 (as marked with survey marker). It had two young conks, or years old. It was the opinion of Professor Jorgensen that the tree had not fallen due to DED but from Ganoderma applanatum, the Artists Conk, in combination with wind. He gave the following description of decay caused by Artists Conk (Ganoderma (Fomes) applanatum): It Ganoderma applanatum, the Artists Conk, is one of the most commonly occurring decay fungi on hardwoods in Eastern North America. The fruiting bodies are found commonly on dead tree trunks and stumps of all the species of hardwoods. However, it is also widespread wound parasite of living trees where it can cause extensive decay in sapwood and particuarly invade the heartwood of standing, living trees. Most often the infection takes place in mechanical wound close to the base of the trunk or on major root. The outer part of an infected mechanical wound is in most cases hard and the extent of the decay underlying such wound can only be measured in drilling. The hard crust gives no indication of severe internal deterioration unless conk (or fruiting body) is present. Conk formation always indicates severe internal decay, which often extends for to metres in the central core of the trunk. On occasions, the fungus will fruit in tree crowns or major branches, where it has infected branch wound. In such cases, the decay in general is extensive for 2‑3 metres above and below the conk. The rot produced is referred to as white mottled rot and the fungus hyphae are congregated in the white areas which consist of almost pure cullulose. The fungus readily breaks down and feeds on lignin in the cell wall, but where nitrogen is in short supply, the cellulytic activity is reduced preserving the cellulose. Where nitrogen is available, hollows will be formed as the fungus removes all cell wall materials. When one examines trunk of an infected tree, which has been broken in storm, the break is across the grain and the decayed wood has tendency to break into cubes (see photo #7). When decay proceeds beyond this point, the wood is turned into cream coloured fibrous mass without any structure (photos #2, 4)."" It was the opinion of Professor Jorgensen, based on the presence of the disease in the remains of the stump and the evidence of those who described the tree at the time of the accident, that the cause of the fall was due to the disease. It was the opinion of Professor Jorgensen that arborists and foresters are familiar with the fact that infected trees with conks are to be classified as ""hazard trees"" and should be removed. However, even if no conks are present, the trees may be equally dangerous and tree in full leaf may suddenly collapse due to Ganoderma applanatum. Professor Jorgensen found the ""most likely and probable cause was the basal infection and rot by the fungus Ganoderma applanatum found on the stump of the fallen tree"". He was unable to say that conks of this fungus were present at the time of the accident. He considered the wind on that day to be sufficient to fell the tree. He noted that an unsupported tree with basal rot may fall with very little force being exerted. Professor Jorgensen expected there was an older mechancial wound (from tractor or farm machinery), as was on tree No. 150 nearby. He considered the wound would be ""fairly large"" (at least inches across), to serve as ""an infection court"". Professor Jorgensen said the presence of the artists conk indicates severe decay and knowledge of this conk and its activity is prerequisite for its recognition. However, if there was no conk but wound, then the presence or absence of the disease could not be determined without drilling into the tree trunk. He concluded there would have to be an inspection by person trained in tree pathology to detect the disease and its extent, in the tree. He concluded that only by drilling into the wound, or the presence of fruiting body (fungus) could determine the extent of the decay and evaluate the hazard. accept the evidence of Professor Jorgensen that the tree which fell on the plaintiff was diseased and had extreme decay caused by Ganoderma applanatum. find that the wind blew the tree down. find the disease entered the tree through mechanical wound, probably from farm machinery. Was Conk present Before the Tree fell?: At the time of his inspection on November 3, 1989 Professor Jorgensen found dead fruiting body (conk) on the stump at soil level. (Para. 2.1 his report). It is described as ""an old dead fruiting body of this fungus was found on the base of this stump"". (para. 4.1 of his report). The stump of tree No. 150 exhibited large young conks at various levels from soil level. These were estimated to be to years old. Professor Jorgensen thought the conk on the tree that fell had been there for 3‑4 years. He described it having been there for considerable time, as the cells were dead when he inspected it. Professor Jorgensen said it would require person with some qualifications to recognize the symptoms. There would have to be careful inspection of each tree, looking for major wounds, cracks on the stem, dead branches, etc. If there was mechanical wound but no fungus present then the suspected area would have to be drilled and the drill core analyzed to see if the disease was present. highly qualified expert would be required to analyze the core sample. Professor Jorgensen agreed the of in Hants could employ an expert to supervise and train their own personnel. He agreed someone with minimal training could detect the mechanical wound. Such wound he said was major thing to look for. An expert should then examine the wound. If there was fungus the expert could determine the kind of fungus, the cause of the decay and the extent of the decay. If no fungus sample could be taken and examined, if required. Professor Jorgensen said that this decay, when examined, was 10‑12 years old and in his opinion resulted in the death of the tree. Professor Jorgensen thought there would be no fungus present in 1983. He said the fungus was common on stumps but rare on the area of wound parasite. He considered the fungus on this tree ""most likely"" formed on the stump rather than on the living tree. Findings on Tree that Fell: 1. accept the evidence of Professor Jorgensen and find that the tree which fell on the plaintiff was infected with Ganoderma applanatum and probably also had DED. 2. find the cause of the collapse was the Ganoderma applanatum combined with the wind and not caused by DED. 3. find the disease followed mechanical wound at the base of the tree. 4. find that at the time the tree fell there probably was no visible fungus or conk. 5. find that the mechanical wound left scar at least 3‑4 inches wide. 6. find the wound had probably been inflicted 8‑10 years before the tree fell, i.e. in 1972 to 1974. What was Probably visible in 1983?: Professor Jorgensen considered that there would be no fungus or conk present in 1983. The wound, however, would be visible. It may have been somewhat concealed by the overgrowth of the bark. As well the dead portion of the wound may not have been at the actual wound site. Was the Wound Visible Hazard?: am satisfied and find the wound would have been visible to be seen in an inspection of the tree. Professor Jorgensen thought an expert would have found the wound. However, he also said that it would not take an expert to find the wound. He said ""it was plain to him"" that it would not take an expert to find the wound. find with minimal training person could be qualified to examine the trees to check the foliage, to look for conks and to look for wounds. find that minimally trained person with instructions to examine tree for dead foliage (no new or green foliage); for fungi or fungus; or with wounds (mechanical or other) within feet of the ground, probably would have led to the identification of this tree as one requiring an inspection by more highly trained person. also find that once identified as tree requiring further inspection trained person would probably require core sample be sent for examination. Alternatively person with more expertise could be called in to look at the tree or if there were others with such wounds the person could examine all of them. find that upon examination of the core the disease would be identified and the extent of the disease would be determined. Had this been done in the Summer of 1983 find this tree would probably have been cut before it fell. The Law: The law in Canada was recently set out by the Supreme Court of Canada in Just v. British Columbia (December 1989) 1989 CanLII 16 (SCC), 64 D.L.R. (4th) 689. The case dealt with father and daughter who were driving from Vancouver to Whistler Mountain to ski. There had been heavy snowfall and they were forced to stop on Highway 99. While stopped large boulder weighing more than ton crashed down on their car from an embankment. The daughter was killed and the father was seriously injured. Action was brought against the Province for negligence in their maintenance of the highway. The Province had system for inspection and remedial work along that highway to safeguard traffic against rock falls. The action was brought in negligence. The Province submitted that its system of inspection and implementation were policy matters in respect of which no liability could arise. Cory, J. (speaking for the majority of the Court, Dickson, C.J.C., Wilson, La Forest, L'Heureuz‑Dube, Gonthier,JJ.) and Sopinka J. dissenting) said at pages 700‑709: ""Test to be applied In cases such as this where allegations of negligence are brought against government agency, it is appropriate for courts to consider and apply the test laid down by Lord Wilberforce in Anns v. Merton London Borough Council, [1978 A.C. 728(H.L.). At pp. 751‑2 he set out his position in these words: Through the trilogy of cases in this House‑Donoghue v. Stevenson,[1932] A.C. 562, Hedley Byrne Co. Ltd. v. Heller Partners Ltd.,[1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004, the position has now been reached that in order to establish that duty of care arises in particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter‑in which case prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to be negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise: see Dorset Yacht case, [1970] A.C. 1004, per Lord Reid at p. 1027. .. Nevertheless, it is sound approach to first determine if there is duty of care owed by defendant to the plaintiff in any case where negligent misconduct has been alleged against government agency. .. All the provinces across Canada extol their attributes and attractions in the fierce competition for tourist business. The skiing facilities at whistler are undoubtedly just such magnificent attraction. It would be hard to imagine more open and welcoming invitation to use those facilities than that extended by the provincial highway leading to them. In light of that invitation to use both the facilities and the highway leading to them, it would appear that apart from some specific exemption, arising from statutory provision or established common law principle, duty of care was owed by the province to those that use its highways. That duty of care would extend ordinarily to reasonable maintenance of those roads. The appellant as user of the highway was certainly in sufficient proximity to the respondent to come within the purview of that duty of care. In this case it can be said that it would be eminently reasonable for the appellant as user of the highway to expect that it would be reasonably maintained. For the Department of Highways it would be readily foreseeable risk that harm might befall users of highway if it were not reasonably maintained. That maintenance could, on the basis of the evidence put forward by the appellant, be found to extend to the prevention of injury from falling rock. Even with the duty of care established, it is necessary to explore two aspects in order to determine whether liability may be imposed upon the respondent. First, the applicable legislation must be reviewed to see if it imposes any obligation upon the respondent to maintain its highways or alternatively if it provides an exemption from liability for failure to so maintain them. Secondly, it must be determined whether the province is exempted from liability on the grounds that the system of inspections, including their quantity and quality, constituted 'policy' decision of government agency and was thus exempt from liability. .. Once policy to inspect is established then it must be open to litigant to attack the system as not having been adopted in bona fide exercise of discretion and to demonstrate that in all the circumstances, including budgetary restraints it is appropriate for court to make finding on the issue. The functions of government and government agencies have multiplied enormously in this century. Often government agencies were and continue to be the best suited entities and indeed the only organizations which could protect the public in the diverse and difficult situations arising in so many fields ..... The increasing complexities of life involve agencies of government in almost every aspect of daily living. Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were person. However, the Crown is not person and must be free to govern and make true policy decisions without becoming subject to tort liability as result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of policy. Thus, the dilemma giving rise to the continuing judicial struggle to differentiate between policy and operation. Particularly difficult decisions will arise in situations where governmental inspections may be expected. The dividing line between 'policy' and 'operation' is difficult to fix, yet it is essential that it be done. The need for drawning the line was expressed with great clarity by Becker J. of the United States District Court in Blessing v. United States, 447 F.S. 1160. The case required him to deal with claim under the Federal Tort Claims Act, 28 U.S.C. para. 2689, which provides: The provisions of this chapter and section 1346(b) of this title shall not apply to- (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of statute or regulation, whether or nto such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform discretionary function or duty on the part of federal agency or an employee of the Government, whether of not the discretion involved by abused. He wrote, at p.1170: Read as whole and with an eye to discerning policy behind this provision, it seems to us only to articulate policy of preventing tort actions from becoming vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government and of protecting 'the Government from liability that would seriously handicap efficient government operations,' United States v. Muniz, 374 U.S. 150,163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963). Statutes, regulations, and discretionary functions, the subject matter of para. 2680(a), are, as rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions. Rather, the judiciary confines itself‑or, under laws such as the FTCA's discretionary function exception, is confined‑to adjudication of facts based on discernible objective standards of law. In the context of tort actions, with which we are here concerned, these objective standards are notably lacking when the question is not negligence but social wisdon, not due care but political practicability, not, reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political or economic decisions. The need for distinguishing between governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort. What guidelines are there to assist courts in differentiating between policy and operation? Mason, J., speaking for himself and one other member of the Australian High Court in Sutherland Shire Council v. Heyman (1985), 1988 ABCA 234 (CanLII), 60 A.L.R. set out what find to be most helpful guidelines. He wrote: Anns decided that duty of care cannot arise in relation to acts and omissions which reflect the policy‑making and discretionary elements involved in the exercise of statutory discretions. It has been said that it is for the authority to strike that balance between the claims of efficiency and thrift to which du Parcq LJ referred in Kent v. East Suffolk Rivers Catchment Board [1940] KP 319 at 338 and that it is not for the court to substitute its decision for the authority's decision on those matters when they were committed by the legislature to the authority for decision (Dorset Yacht Co. v. Home Office, [1970] AC 1004 at 1031, 1067‑8; Anns, at p. 754; Barratt v. District of North Vancouver (1980) 1980 CanLII 219 (SCC), 114 D.L.R. (3d) 577). Although these injunctions have compelling force in their application to policy‑making decisions, their cogency is less obvious when applied to other discretionary matters. The standard of negligence applied by the courts in determining whether duty of care has been breached cannot be applied to policy decision, but it can be applied to operational decisions. Accordingly, it is possible that duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other. This classification has evolved in the judicial interpretation of the 'discretionary function' exception in the United States Federal Tort Claims Act‑see Dalehite v. United States (1963) 346 US 15;...United States v. Varig Airlines, supra. The object of the Federal Tort Claims Act in displacing government immunity and subjecting the United States Government to liability in tort in the same manner and to the same extent as private individual under like circusmtances, subject to the 'discretionary function' exception, is similar to that of s. 64 of the Judiciary Act, 1903(Cth). The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of duty of care. But it may be otherwise when the courts are called upon to apply standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. The duty of care should apply to public authority unless there is valid basis for its exclusion. true policy decision undertaken by government agency constitutes such valid basis for exclusion. What constitutes policy decision may vary infinitely and may be made at different levels although usually at high level. The decisions in Anns v. Merton London Borough Council and Kamloops v. Nielsen indicate that government agency in reaching decision pertaining to inspection must act in reasonable manner which constitutes bona fide exercise of discretion. To do so they must specifically consider whether to inspect and if so, the system of inspection must be reasonable one in all the circumstances. For example, at high level there may be policy decision made concerning the inspection of lighthouses. If the policy decision is made that there is such pressing need to maintain air safety by the construction of additional airport facilities with the result that no funds can be made available for lighthouse inspection, then this would constitute bona fide exercise of discretion that would be unassailable. Should then lighthouse beacon be extinguished as result of the lack of inspection and shipwreck ensue, no liability can be placed upon the government agency. The result would be the same if policy decision were made to increase the funds for job retraining and reduce the funds for lighthouse inspection so that beacon could only be inspected every second year and as result the light was extinguished. Once again this would constitute the bona fide exercise of discretion. Thus, decision either not to inspect at all or to reduce the number of inspections may be an unassailable policy decision. This is so provided it constitutes reasonable exercise of bona fide discretion based, for example, upon the availability of funds. On the other hand, if decision is made to inspect lighthouse facilities the system of inspections must be reasonable and they must be made properly; see Indian Towing Co., 350 U.S. 61 (1955). Thus, once the policy decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care. At lower level, government aircraft inspectors checking on the quality of manufactured aircraft parts at factory may make policy decision to make spot check of manufactured items throughout the day as opposed to checking every item manufactured in the course of one hour of the day. Such choice as to how the inspection was to be undertaken could well be necessitated by the lack of both trained personnel and funds to provide such inspection personnel. In those circumstances the policy decision that spot‑check inspection would be made could not be attached.... Thus, true policy decision may be made at lower level provided that the government agency establishes that it was reasonable decision in light of the surrounding circumstances. The consideration of the duty of care that may be owed must be kept separate and distinct from the consideration of the standard of care that should be maintained by the government agency involved. Let us assume case where duty of care is clearly owed by governmental agency to an individual that is not exempted either by statutory provision or because it was true policy decision. In those circumstances the duty of care owed by the government agency would be the same as that owed by one person to another. Nevertheless, the standard of care imposed upon the Crown may not be the same as that owed by an individual. An individual is expected to maintain his or her sidewalk or driveway reasonably, while government agency such as the respondent may be responsible for the maintenance of hundreds of miles of highway. The frequency and the nature of inspection required of the individual may well be. different from that required of the Crown. In each case the frequency and method must be reasonable in light of all the surrounding circumstances. The governmental agency should be entitled to demonstrate that balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in light of all the circumstances including budgetary limits, the personnel and equipment available to it and that it had met the standard duty of care imposed upon it. It may be convenient at this stage to summarize what consider to be the principles applicable and the manner of proceeding in cases of this kind. As general rule, the traditional tort law duty of care will apply to government agency in the same way that it will apply to an individual. In determining whether duty of care exists, the first question to be resolved is whether the parties are in relationship of sufficient proximity to warrant the imposition of such duty. In the case of government agency, exemption from this imposition of duty may occur as result of an explicit statutory exemption. Alternatively, the exemption may arise as result of the nature of the decision made by the government agency. That is, government agency will be exempt from the imposition of duty of care in situations which arise from its pure policy decisions. In determining what constitutes such policy decision, it should be borne in mind that such decisions are generally made by persons of high level of authority in the agency, but may also properly be made by persons of lower level of authority. The characterization of such decision rests on the nature of the decision and not on the identity of the actors. As general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that duty of care is owed by the government agency and no exemption by way of statute or policy decision‑making is found to exist, traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered. The manner and quality of an inspection system is clearly part of the operational aspect of governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment. Turning to the case at bar it is now appropriate to apply the principles set forth by Mason J. in Sutherland Shire Council v. Heyman, supra, to determine whether the decision or decisions of the government agency were policy decisions exempting the province from liability. Here, what was challenged was the manner in which the inspections were carried out, their frequency or infrequency and how and when trees above the rock cut should have been inspected, and the manner in which the cutting and scaling operations should have been carried out. In short, the public authority had settled on plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described as 'the product of administrative direction, expert or professional opinion, technical standards or general standards of care'. They were not decisions that could be designated as policy decisions. Rather they were manifestations of the implementation of the policy decision to inspect and were operational in nature. As such, they were subject to review by the court to determine whether the respondent had been negligent or had satisfied the appropriate standard of care. At trial the conclusion was reached that the number and frequency of inspections, of scaling and other remedial measures, were matters of policy; as result, no findings of fact were made on the issues bearing on the standard of care. Since the matter was one of operation the respondent was not immune from suit and the negligence issue had to be canvassed in its entirety. The appellant was therefore entitled to finding of fact on these questions and new trial should be directed to accomplish this."" The appeal was allowed and the case was remitted back to the trial level for new trial to make findings of fact to determine in all the circumstances if the respondent Province had met the standard of care that should reasonably be imposed upon it relating to the frequency and manner of inspections and the cuttings and sealing operations carried out on the rock. The Just v. British Columbia (supra) case sets out the criteria to be used in determining if such duty of care arises under the existing facts and law. If such duty of care arises, then the standard of care of that duty must be examined. If the standard of care has not been met then the duty of care has been breached. Duty of Care: Statutory: The Public Highways Act, R.S.N.S. 1967, c. 248 (R.S.N.S. 1989 c. 371): ""Section The Minister has the supervision, management and control of the highways and of all matters relating thereto R.S.,c.371,s.4 Section (1) The Minister may appoint in each municipality one or more superintendents of highways who shall, under the direction and control of the division engineer, supervise the work and expenditures made upon the highways of the municipality or portion of the municipality for which he is appointed."" Proceedings against the Crown Act, R.S.N.S. 1967, c.239 (R.S.N.S. 1989, c.360): ""Right to enforce claim against Crown Section Subject to this Act, person who has claim against the Crown may enforce it as of right by proceedings against the Crown in accordance with this Act in all cases in which (c) the claim is based upon liability of the Crown in tort to which it is subject by this Act.R.S.,c.239,s.3."" ""Tort liability of Crown Section (1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were person of full age and capacity, it would be subject (a) in respect of tort coniniitted by any of its officers or agents; (b) in respect of any breach of the duties that person owes to his servants or agents by reason of being their eniployer; (c) in respect of any breach of the duties attaching to ownership, occupation, possession or control of property; (d) under any statute, or under any regulation or by‑law made or pased under the authority of any statute."" Finding: I find there is a prima facie duty of care owed by the Department of Transportation to users of the highways against reasonably foreseeable hazards, including the falling of trees onto the highway. find the parties are in relationship of sufficient proximity to warrant such duty. Is there an Exemption?: Having found there was prima facie duty of care must next consider if the defendant enjoys or has an exemption from that duty of care. (a) Statutory Exemption: find there was no statutory authority exempting the defendant from this duty. (b) Was it ""Policy"" decision?: Past Practice: Robert Colburne, the divisional engineer, considered such hazardous trees to be an ""obvious"" problem in the area. Highway crews under his direction had been removing dead trees which might be hazard for some years. He used the term ""very often"". They had been doing this within their own capabilities without additional funding. At least from 1978 on there had been problem necessitating removal of trees. At one time Colburne requested advice from the provincial Department of Lands and Forests. In 1983 Colburne had tree survey done to determine the number of hazardous trees in West Hants. Allen was appointed head of the tree inspection group. He was to identify the trees he considered were priority for removal. Once identified by Allen, Colburne would look at them and make decision on them. Perhaps Colburne would also consult Boyd, the Super. They did have their own resources to remove some trees, presumably those which were an imminent hazard. Allen identified 234 trees for removal. Most of these were also inspected by Colburne who presumably decided they could await additional funding. At least he did not use his own available forces to remove them all. Presumably those which Allen, Colburne and/or Boyd considered priority were removed immediately. The tree marked No. 150 was identified by Allen and examined by Colburne and probably also by Boyd. Although dead it was not deemed to be such hazard that they would use their own forces to immediately cut it down. All 234 trees were identified within 2‑3 weeks by Allen. No. 150 is in the same area as the tree that fell. conclude that the tree that fell was examined by Allen during the first week or so of the Summer. Colburne said that had he known then what he knew at trial he would have acted differently. interpret that answer (in cross‑examination) to mean that had. he known the tree that fell was in the condition it in fact was in, he would have immediately cut it down. Budget: There was $600,000. budget within and from which the Divisional Engineer and/or Superintendent could interchange their own priorities. Boyd said that sometimes money was taken out of the budget and spent and request for extra funds would be made later on. Cost: There is presently removal programme by tender at $250.00 per tree. Presumably in 1983 it would have been considerably less. The cost of examining the tree would be negligible. Allen was on staff. The only extra cost would be to train Allen and have expert backup upon which Allen could call, if required. Closure: Boyd said he would close the highway if there was tree which was an immediate hazard until the tree was removed. The project to remove all the 234 trees was one which Colburne considered required departmental approval for funding. That is, it was beyond his capacity as the divisional engineer. However, find it was within the scope and capability of the divisional engineer to remove with his own forces those trees which constituted an immediate hazard. It was also within his scope and capability to get some reasonable training and backup expertise for Allen. Had this tree been properly identified it could have been removed immediately and probably would have been moved immediately. Removal of the tree by the Department of Transportation would be at negligible cost. Inspection Team: consider must also look at the inspection team. What would such team cost or what would it cost to instruct Allen? There was government expertise at Kentville one half hour away. There was government expertise at Truro and Debert less than two hours away. There was government expertise in Fredericton. In addition there was private expertise in the area. The cost to train Allen would be negligible, certainly lot less than having Professor Jorgensen attend to inspect the stump or attend at trial. find there was no policy decision exempting this defendant from this duty. In fact the opposite is true. There was the will, the plan and the money to remove trees which were an immediate hazard. Standard of Care: Having found there was duty upon the defendant must next examine the standard of care one would reasonably expect. I find the reasonable standard of care required would be that which would determine from an examination of the Elm trees those which posed an immediate hazard. This find, would require an examination for obvious signs of death such as no living leaves or branches, those with outside fungi and those with visible mechanical wounds in the trunk. As in Just v. British Columbia (supra) those were not policy decisions but were ""manifestations of the implementation of the policy decision to inspect and were operational in nature""(p.709). find that with minimal instruction Allen could have isolated and identified trees which were an immediate hazard. find that minimal training would have enabled Allen to either have an expert look at wounded trees or drill bore sample to be sent to either Kentville, Truro or Debert to be examined. At the minimum he would be able to consult an expert on trees with wounds and/or fungi. Summary: find the operational implementation of programme of removal of hazardous trees had been in place for some years prior to 1983. find in the Summer of 1983 the manner of implementing or carrying out the programme was beefed up. Instead of using their regular crews new man was brought in to head up this team. Allen was hired in the Summer of 1983 and in the Summer of 1983 was appointed to survey the area for hazardous trees. His background was working with I.G.A. He had absolutely no training or expertise on Elm trees or other tress or tree diseases or DED. He was given no written material to study or read, he was given no instruction and was given no backup of available expertise. He was to report to Colburne who likewise had absolutely no training, no instructional material and no expertise relating to trees or tree diseases. However, within half hour drive there was local expertise, both governmental and private. Within two hours was more governmental expertise and all of this was available by picking up the phone. There was equipment and personnel on staff to remove Elm trees which were an immediate hazard. If tree was identified as an immediate hazard Boyd would have found the money to remove it. Training for Allen: From my observations of Allen find he could have been instructed on what to look for in very short period. In about hours Professor Jorgensen gave out sufficient information to permit one to inspect Elms for dead branches, crowns, fungi and mechanical wounds. Upon detection of fungi or such wounds call would have identified the fungus and the type of wound. drill sample would have identified this disease and the extent of the damage to the tree. In two or three weeks Allen had inspected all the roads in West Hants for hazardous Elm trees and in the course of doing so, find, he examined the tree that fell. Had Allen been reasonably well informed or instructed he would have, find, identified the wound on the tree that fell and sought advice on it. Had he sought such advice and sent core sample am satisfied and find that the true condition of the tree would have been known. Had the true condition of the tree been known, find, Colburne would have ordered it immediately removed. It is not unreasonable to assume that would have been in late July or August 1983. find the inspections would require an inspector with reasonable level of expertise, within the normal capacity of the Department of Transportation. Instructional and training expertise was available here in Government departments nearby. The cost would be negligible, at least well within the capacity of Colburne and/or Boyd. Professor Jorgensen said it would take about an hour to inspect tree. Working 40 hour week Allen would come to the tree in issue by week four, probably in late July or early August. I find the defendant has not met a reasonable standard of care in carrying out the inspection duties it had assumed. find someone with at least minimal relevant training or expertise should have been employed as the inspector. Alternatively Allen should have been given some relevant training and/or instruction. As well there should have been someone with additional expertise upon whom Allen or whoever was the inspector, could call. Finding: I find the defendant was negligent in the implementation of its system of inspection of trees which posed a hazard to users of the highway. find the manner of inspection, including the use of totally untrained inspector with absolutely no trained backup was not reasonable in the circumstances. find the claim against the defendant relating to the general duty of care has not been made out. disallow the claim on this issue. find, however, that the claim of the plaintiff succeeds in relation to the standard of care under the programme for removal of trees that were an immediate hazard to the public. I find the defendant has not met a reasonable standard of care in its duty of care to the plaintiff. Third Party Claim: The third party claim is based on contribution and indemnity in the event the defendant was found to be negligent in its ordinary duty of care to the plaintiff. have found that the defendant was negligent but that the negligence was in the manner in which the inspection was carried out, in particular the fact that the inspector was totally untrained. This was matter totally encompassed by the defendant with no input from the third parties. In fact the third parties did not even know the programme was going on until after the loss. I dismiss the third party claim of the defendant against the third parties. The third parties shall have their costs to be taxed. find there was no prejudice flowing from the fact that the plaintiff's action against those third parties was dropped without the consent of the defendant. The third parties shall have their costs against the plaintiff up to the time the plaintiff discontinued against them. From then on their costs shall be against the defendant. Finding: The plaintiff shall have judgment against the defendant for damages, to be assessed. The plaintiff shall have his costs of this determination of liability. J. Halifax, Nova Scotia February 20, 1991 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties DECISION OF GRANT, J.","A large diseased elm tree fell on a truck and injured the plaintiff driver. For some years prior to the accident, the defendant had operated a hazardous tree removal program. An inspector had examined the tree that fell. The inspector had no expertise relating to trees or their diseases, nor did his immediate superior. For the plaintiff, that there is a prima fade duty of care owed by the Department of Transportation to users of highway against reasonably foreseeable hazards, including the falling of trees onto the highway. Further, the defendant had a duty to use a reasonable standard of care in the operation of the hazardous tree removal program. The defendant was negligent in failing to train the inspector properly. The Court referred at length to the Supreme Court of Canada decision in Just v. British Columbia. The defendant's claim against the third parties (owners/occupiers of property on which tree stood) was dismissed.",b_1991canlii4497.txt
292,"Q.B.G. A.D. 1999 No. 1441 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: ALMA SCOBEY and NADINE ONOUSHKO and THE OFFICE OF THE RENTALSMAN RESPONDENTS Joanne C. Moser for the applicant Reginald A. Watson for the Nadine Onoushko JUDGMENT MacDONALD J. July 22, 1999 [1] This is an application pursuant to Rules 664(1) and 674 of The Queen’s Bench Rules for an order: (a) Quashing a decision of the Office of the Rentalsman; (b) If necessary, remitting the matter back to the Rentalsman for determination. [2] Prior to hearing the merits of the application itself, counsel for the respondent, Nadine Onoushko, raised a preliminary objection with the court and argued that the matter should not proceed by way of judicial review but that the applicant should be restricted to an appeal of the decision of the Rentalsman in accordance with the provisions of s. 49(1) of The Residential Tenancies Act, R.S.S. 1978, c. R-22 as am. by S.S. 1992, c. 37, s. 18 (the “Act”). Section 49(1) reads as follows: 49(1) Any person who is aggrieved by decision or order of the Rentalsman may appeal the decision or order on question of law or of jurisdiction of the Rentalsman to judge of Her Majesty’s Court of Queen’s Bench for Saskatchewan within 30 days of the date of the decision or order. [3] The decision of the Rentalsman in this instance was rendered on December 8, 1997. In order to appeal the applicant should have filed notice of the appeal on or before January 7, 1998. [4] The applicant, in her affidavit states that she never received notice of any of the proceedings before the Rentalsman therefore making it impossible for her to appeal within 30 days. [5] Since there is nothing in the Act which allows this Court to extend the time for filing an appeal, to deny the applicant an opportunity to bring the application for judicial review would be to deny her an opportunity to pursue her only remedy in the circumstances. [6] Therefore, the preliminary objection by counsel for the respondent, Nadine Onoushko, to the application is dismissed and the local registrar is instructed to return the matter to the chambers’ list on August 19, 1999 in order to hear argument on the merits and to allow counsel for the respondents an opportunity to file material.","The applicant sought an Order quashing a decision of the Office of the Rentalsman pursuant to Queen's Bench Rule 664(1) and 674. The respondent raised a preliminary objection, arguing that the matter should not proceed by way of judicial review but that the applicant should be restricted to an appeal of the Rentalsman's decision under s.49(1) of the Residential Tenancies Act, and that the applicant had failed to do so within the prescribed 30 day limit. The applicant argued that she never received any notice of proceedings making it impossible for her to appeal within 30 days. HELD: Preliminary objection dismissed. The court ordered that the application be returned to the Chamber's list for a hearing on the merits. Since there is nothing in the Act that allows the court to extend the time for filing an appeal, to deny the application for judicial review would deny the applicant an opportunity to pursue her only remedy in the circumstances.",3_1999canlii12841.txt
293,"Hall, J. THE PROVINCIAL COURT FOR SASKATCHEWAN NORTH BATTLEFORD IN THE MATTER OF THE SMALL CLAIMS ACT, 1997 Citation No: 2003 SKPC 44 S. C.: N.B.141-02 BETWEEN: RALPH FINCH AND RAYMOND RUSSELL, RONALD RUSSELL and ROD RUSSELL, operating as TRIPLE AUTO REPAIR DEFENDANTS The Plaintiff, for himself Lionel Russell, for the Defendants JUDGMENT KAISER P.C.J. February 28, 2003 [1] This issues in this case largely involve Part III of The Consumer Protection Act, S.S. c.-30.1, and inter alia, the question of whether or not a consignee is a “retail seller” as defined in that Part. [2] The Defendants are the members of partnership that operates an auto repair business in North Battleford. During portion of 2002, Mr. Lionel Russell, who is not partner in Triple Auto Repair (hereinafter referred to as “Triple R”), was engaged in the business of consignment auto sales upon the business premises of Triple R, with Triple R’s knowledge and consent. The sole financial benefit for this activity was to go to Lionel Russell. The only benefit that Triple received was the opportunity to perform repair work for reward upon the consigned vehicles. There was no sign or other indication that Lionel Russell was operating business that was independent of the Defendant’s business upon the location. he consignment agreement used in the present case showed the dealer to be “Triple Auto Repair Sales and Consignment”. It is noted that in the ordinary course of events, purchaser would not see the consignment agreement. consumer doing business in this situation would certainly expect that Mr. Lionel Russell was representative of Triple and that he was dealing with Triple R. In my view, in the circumstances, the actions of Mr. Lionel Russell must be considered the actions of Triple R. [3] On April 16, 2002 Mr. Dan Oborowsky brought 1991 Ford Tempo to Mr. Russell at the Triple premises and entered into written agreement (C-1) entitled “Automobile Consignment Agreement between Triple Auto Repair Sales and Consignment and Dan Oborowsky.” This agreement provided that Triple will try to sell the vehicle upon Mr. Oborowsky’s behalf. The remuneration to Triple is not set out on the document, but am satisfied that it was to be 10% of the selling price. Mr. Russell described this as “lot fee.” Regardless of the label applied, it is compensation for finding buyer and showing the vehicle. This is the essence of consignment relationship. [4] On or about May 23, 2002, the Plaintiff went to Triple looking for car for his adult daughter to drive. He had previously purchased truck at this business. He made known to Mr. Lionel Russell the purpose of the proposed transaction. They looked at the Ford Tempo. Mr. Russell passed on to Mr. Finch the information that had been provided to him by Mr. Oborowsky and generally represented that it seemed to be in decent condition. At that point the odometer indicated that the vehicle had traveled 212,584 kilometres. am satisfied that Mr. Russell told Mr. Finch that the vehicle was consigned vehicle. They settled on price of $1,600. The sales agreement indicates that the vehicle was “Sold as is”. [5] The next day, Mr. Finch or his daughter, Ms. Cindy Lamoureux brought the car back to Triple because of minor problem with seat belt, because of vibration or pulsation that seemed to be coming from the brakes, and because the “check engine soon” light had come on. It was determined that certain of the sensors had to be replaced, that the brake rotors had to be turned and that there was something stuck in the seat belt receptacle. These items were repaired. The cost of the sensor replacement, being $146.30, was born by Mr. Finch. he other costs were absorbed by Triple or Mr. Oborowsky. Mr Finch was unhappy about having to pay for the replacement of the sensors. Mr. Russell indicated that he could return the car and have his money back if he wished. Mr. Finch declined to take up this offer. [6] However, Ms. Lamoureux continued to have problems with the car and in particular, with constant vibration that was present. She endeavoured to get the vehicle into Triple to have them look at it. Her evidence was that on number of occasions she made arrangements with the Defendants that the Defendants would pick the car up from her place of employment. They were to look at the car while she was at work. The Defendants never picked up the car. Finally, in early August, she had person that she described as “back yard” mechanic look at it. He advised her that there were serious problems with the car. In particular, there were problems with the lower ball joints, the exhaust system, and especially the motor mounts. There were also problems with the steering system. list, marked as D-2, was prepared outlining these problems. [7] On August 12, 2002, Mr. Finch took this list to Triple and gave it to Lionel Russell. Mr. Russell’s response was to the effect that the problem was Mr. Oborowsky’s and that he would see if Mr. Oborowsky would do anything about it. Mr. Finch was not satisfied with this response and decided to contact the Department of Consumer Affairs of the Province of Saskatchewan. As result of the information received from them, he felt that the problem was indeed Triple R’s problem and that he was entitled to look to Triple R, rather than Mr. Oborowsky. Later on August 12th, Mr. Finch telephoned Mr. Russell and told him this. Mr. Russell disagreed and effective discussion came to an end. [8] On August 15th, Mr. Finch took the vehicle into Auto Centre in North Battleford. This business is an accredited SGI vehicle inspection centre. There the vehicle was inspected by Mr. Derry Dillabough who is an accredited technician. Mr. Dillabough, who testified at trial, found that there were very serious problems with the vehicle. Most notably, the engine and transmission mounts were in very bad condition. The rear mount that supports the back of the engine and the transmission had entirely detached from the vehicle frame. chain had been installed to hold up the engine and transmission. This defect meant that the vehicle had to be taken out of service because it was unsafe. Mr. Dillabough was uncertain as to whether this defect could be repaired at all. There were other problems of significance. The ball joints were defective and needed to be replaced. The rack and pinion steering system was also defective and needed to be replaced. Mr. Dillabough advised that the vehicle could only be driven very slowly and carefully and for only short distance for storage purposes. Mr. Finch carefully drove it to his farm. He obtained certificate from Auto Centre. Mr. Finch incurred cost of $96.05 for this inspection. Mr. Finch delivered copy of the certificate to Mr. Russell. Triple R’s position remained that it was Mr. Oborowsky’s problem, and not that of Triple R. [9] Mr. Finch applied for Small Claims Summons on August 27th. The Summons was issued on September 13th. The first appearance was October 24th. The file does not disclose the date of service, but obviously it was between August 27th and October 24th. At the first appearance, arrangements were made for Triple to inspect the vehicle. Mr. Rodney Russell, one of the partners in Triple R, inspected the vehicle in their shop. He confirmed Mr. Dillabough’s findings. In his evidence Mr. Rodney Russell expressed the opinion that $700 would make the vehicle roadworthy again. The vehicle remains on the premises of Triple R. The Plaintiff is not interested in having the vehicle repaired, even if it is possible, in that he has obtained different vehicle for his daughter. He seeks recovery of the purchase price and the costs that he has incurred for repair and inspection. [10] In the period between purchase on May 23, 2002, and notification on August 12th (a period of 82 days) the vehicle was driven slightly less than 5,000 kilometres. ISSUES AND ANALYSIS [11] The law of Contract clearly recognizes that there is contract (the consignment contract) between the consignor (Mr. Oborowsky) and the consignee (Triple R). There is also contract (the sales contract) between Mr. Oborowsky (the vendor) and Mr. Finch (the purchaser). There is no contract between Triple and Mr. Finch. [12] However, The Consumer Protection Act, (the Act modifies and moderates the law of Contract. In particular, it provides that retail seller is deemed to give certain warranties to consumer who purchases the retail product. [13] Is consignee “retail seller” within the meaning of The Consumer Protection Act? [14] Section 39 of the Act defines “retail seller” as follows: (l) “retail seller” means person who sells consumer products to consumers in the ordinary course of his or her business but, subject to subsection 50(1), does not include trustee in bankruptcy, receiver, liquidator, sheriff, auctioneer or person acting under an order of court; It is clear that Mr. Lionel Russell was engaging in the business of selling automobiles, which are, of course, consumer products to consumers, and that this was his ordinary business. As previously stated, find that this business is legally attributable to Triple R. [15] In my view consideration must be given to the exception provision at the end of the definition of “retail seller”. The kind of people included in the exception are people who either clearly do not own the goods in question or who have limited form of ownership. For example, an auctioneer does not own the goods he or she is selling. Nonetheless, the auctioneer is empowered to sell the goods and does so. Similarly, the consignee does not own the goods, but has the power to sell them. The auctioneer is included in the list of excepted persons, but the consignee is not. If it had been the intention of the Legislature in passing this legislation to exclude consignee, consignees would have been enumerated along with the other excluded categories of persons. [16] There is principle of construction, applicable to statutes, agreements and wills, known in Latin as Expressio Unius Est Exclusio Alterius. It means that when certain persons or things are specified in law an intention to exclude all others from its operation may be inferred. It is my view that it is applicable in the present situation. If the Legislature had intended that consignees were not to be considered retail sellers, it would have listed them in the excluded group. [17] find support for the notion that persons may be considered retail sellers even though they have no contractual relationship to the purchaser in section 55 of the Act, which provides: In any action brought pursuant to this Part against manufacturer, retail seller or warrantor for breach of statutory, express or additional written warranty, lack of privity of contract between the person bringing the action and the retail seller, manufacturer or warrantor is not defence, and the retail seller, manufacturer or warrantor is conclusively presumed to have received consideration. [18] I conclude that a consignee is a retail seller within the meaning of the Act and accordingly that Triple R is deemed to have given to Mr. Finch the warranties set out in the Act. [19] Is the consignee retail seller in breach of any of the warranties provided in the Act? [20] Section 48 of the Act provides that the retail seller is deemed to have given ceratin warranties to the consumer. Most of the deemed warranties are not relevant to the present matter. The portions of section 48 that are relevant are as follows: 48 Where consumer product is sold by retail seller, the following warranties are deemed to be given by the retail seller to the consumer: (d) that the product supplied under the contract is of acceptable quality, except that this warranty is deemed not to be given: (i) respecting defects specifically drawn to the consumer’s attention before the contract is made; or (ii) where the consumer examines the product before the contract is made, respecting defects that examination ought to have revealed; (e) where the consumer expressly or by implication makes known to the retail seller any particular purpose for which the product is being bought, that the product supplied under the contract is reasonably fit for that purpose, whether or not that is purpose for which the product is commonly supplied, except that this warranty is deemed not to be given where the circumstances show that: (i) the consumer does not rely on the retail seller’s skill or judgment; or (ii) it is unreasonable for the consumer to rely on the retail seller’s skill or judgment; (g) that the product and all its components are to be durable for reasonable period, having regard to all the relevant circumstances of the sale, including: (i) the description and nature of the product; (ii) the purchase price; (iii) the express warranties of the retail seller or manufacturer; and (iv) the necessary maintenance the product normally requires and the manner in which it has been used; [21] am satisfied that the engine and transmission mounts of this vehicle were in the same condition on the date of sale as there were in on August 15th, being the date upon which Mr. Dillabough inspected the vehicle. am further satisfied that this problem made this vehicle unsafe to drive, and that accordingly, on the date of the sale, it was unsafe. It is probable that the problems with certain of the other components were there at the time of sale though they further deteriorated with use due to the engine and transmission mount problem. [22] As to warranty (d), Section 39 defines “acceptable quality” as follows: (a) “acceptable quality” means the characteristics and the quality of consumer product that consumers can reasonably expect the product to have, having regard to all the relevant circumstances of the sale of the product, including: (i) the description of the product; (ii) its purchase price; and (iii) the express warranties of the retail seller or manufacturer of the product; and includes merchantable quality within the meaning of The Sale of Goods Act; While the Plaintiff did not pay large sum of money for this vehicle, he could still reasonably expect this vehicle to be safe to drive, as it left the Defendant’s property. It was not safe to drive and accordingly was not of acceptable quality. In my view, the retail seller bears the burden of establishing the exceptions enumerated in the statutory warranty and has failed to do so. [23] As to warranty (e), the purchaser did make known the purpose for which this vehicle was required. That purpose was to provide transportation for his daughter and her children. Again, the vehicle was unsafe from the outset and accordingly cannot be considered suitable for this purpose. Again the retail seller has not established the exceptions. [24] Warranty (g) requires that the product and its components be durable for reasonable period of time. In the case of older used cars sold at low price, the reasonable period is very short. Given my findings as to warranties (d) and (e), it is unnecessary to make finding with respect to warranty (g) and decline to do so. [25] Is the breach of substantial character? [26] breach of substantial character leads to wider array of possible remedies than does regular breach. Section 39 provides as follows: (c) “breach of substantial character” means: (i) that consumer product, or the level of performance of the retail seller or manufacturer of consumer product, departs substantially from what consumers can reasonably expect, having regard to all the relevant circumstances of the sale of the product, including: (A) the description of the product; (B) its purchase price; (C) the statutory warranties and express warranties of the retail seller or the manufacturer of the product; or (ii) that consumer product is totally or substantially unfit for all the usual purposes of such product or for any particular purpose for which, to the knowledge of the retail seller, the product is being bought; I am satisfied that this automobile was substantially unfit for all the usual purposes for which, to the knowledge of the retail seller, it was being bought, and accordingly that the breach was of a substantial character. [27] What remedies are available to the purchaser? [28] Section 57 of the Act provides: 57(1) Where there is breach by manufacturer or retail seller of statutory warranty mentioned in section 48 or of an express warranty mentioned in section 45: (a) and where the breach is remediable and not of substantial character: (i) the party in breach shall, within reasonable period, make good the breach free of charge to the consumer but, where the breach has not been remedied within reasonable period, the consumer shall be entitled to have the breach remedied elsewhere and to recover from the party in breach all reasonable costs incurred in having the breach remedied; and (ii) the consumer is entitled to recover damages for losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach regardless of whether the breach is remedied; (b) and where the breach is of substantial character or is not remediable, the consumer, at his or her option, may exercise the remedies pursuant to clause (a) or, subject to subsections (2) and (3), the consumer may: (i) reject the consumer product; and (ii) if he or she exercises his or her right to reject, he or she is entitled to recover the purchase price from the party in breach and to recover damages for any other losses that he or she has suffered and that were reasonably foreseeable as liable to result from the breach. (2) The consumer shall exercise his or her right to reject the consumer product pursuant to clause (1)(b) within reasonable period pursuant to subsection (3), except where the consumer delays the exercise of his or her right to reject because he or she has relied on assurances made by the party in breach or the party’s agent that the breach would be remedied and the breach was not remedied. (3) For the purposes of subsection (2), regardless of whether the right to reject is being exercised by the consumer or person mentioned in subsection 41(1), reasonable period: (a) runs from the time of delivery of the product to the consumer; and (b) consists of period sufficient to permit any testing, trial or examination of the consumer product that may be normally required by consumers of that product and as may be appropriate considering the nature of the product, for the purpose of determining the conformity of the product to the obligations imposed pursuant to this Part on the party in breach. 1996, c. C-30.1, s.57. [29] The remedies that the Plaintiff seeks are those set out in subparagraph 57(1)(b). In order to obtain these remedies, the consumer must reject the consumer product and do so within reasonable period. At no time did the Plaintiff expressly state to the Defendants that he rejected the car. However, it was clear that he was very unhappy with it. Communication broke down over the issue of whether Triple had any responsibility in the situation. He did commence the action claiming the purchase price as quickly as was reasonably possible after learning of the significance of the mechanical problems and there does not seem to have been any unnecessary delay in service of the claim upon the Defendants. The car was not used after the Plaintiff learned of its very serious problems. am treating the commencement of the present action as the rejection of the product. [30] Did the Plaintiff reject the product within reasonable period? This issue is to be determined pursuant to subsections (2) and (3) of section 57. Subsection (2) contains an exception that seems to address the situation of delay in rejection arising from undertakings to repair defect followed by failure to do so. This vehicle had vibration problem from the outset. In my view this problem arose by reason because of drive train alignment problems associated with the missing engine mount. The Defendants endeavoured to repair the vibration problem by turning the brake rotors when the vehicle was returned to them on May 24th. This did not solve it. The Plaintiff, through his daughter sought to have the problem resolved by having the Defendant pick up the vehicle and work on it. find that the Defendant did agree to this arrangement but failed to pick up the vehicle. my view the bulk of the delay was occasioned by the Defendants Further, find that the Plaintiff relied on the Defendants agreement to look at the vehicle, with the implication that this would involve repair, and hence did not take other steps to have the problem dealt with. Once the Plaintiff became aware of the seriousness of the problems, particularly with the engine mount, he proceeded with dispatch. I find that in the circumstances, the Plaintiff did reject the goods within a reasonable period. [31] Pursuant to subparagraph 57(1)(b)(ii) the Plaintiff is entitled to recover the purchase price of $1600 plus foreseeable damages. The costs incurred for repairs and inspection, being $146.30 and $96.05, respectively, and totalling $242.35 were foreseeable and are properly recoverable. Therefore the Plaintiff’s total recovery would ordinarily be $1842.35. [32] However, the vehicle was driven almost 5,000 kilometres before the seriousness of the problem was discovered. Subsection 60(c) contemplates compensation to the vendor for same. It provides: 60 Where consumer rejects consumer product pursuant to clause 57(1)(b): (c) the party in breach is entitled to recover from the consumer, or set off against the refund of the purchase price of the product, an amount that is equitable for the use of the product, provided that in determining the amount no regard is to be taken of the depreciation of the product unless it is otherwise provided for by the regulations; In my view an equitable amount is $.06 per kilometre, amounting to $300. Accordingly, the Plaintiff’s judgment is reduced by this sum, such that the final figure is $1542.35. [33] Upon payment of this sum, the Plaintiff will execute such bill of sale in respect of this vehicle in favour of the Defendant. [34] The Plaintiff will have his costs of this matter which set at $20. SUMMARY [35] The Plaintiff will have judgment against the Defendant in the sum of $1542.35 plus costs of $20 for a total of $1563.35. Once the judgment has been paid in full, the Plaintiff will execute bill of sale in respect of the subject vehicle in favour of the Defendant. [36] Dated this 28th day of February, 2003. David J. Kaiser, P.C.J.","The plaintiff sought to recover the purchase price and repair and inspection costs of a used vehicle pursuant to the Consumer Protection Act s.57(1)(b). Mr. Russell sold the vehicle under consignment to the plaintiff for $1,600. The sales agreement indicated the vehicle was sold 'as is'. The purchaser returned the vehicle the next day because of a problem with the seat belt, a vibration or pulsation from the brakes and the 'check engine soon light' had come on. The plaintiff paid for the sensor replacement. Triple R absorbed the other costs of repair. The plaintiff's daughter continued to have problems with the car including with lower ball joints, exhaust system and motor mounts. At issue was whether or not a consignee is a 'retail seller' as defined in the Consumer Protection Act. HELD: The plaintiff was entitled to recover the $1,600 purchase price plus foreseeable damages which included costs of repairs and inspection totalling $242.35 and costs of $20 less a reduction of $1,542.35 for the 5,000 km it was driven. 1)A consignee is a retail seller within the meaning of the CPA and accordingly Triple R was deemed to have given the warranties set out in the CPA. If the legislature had intended that consignees were not to be considered retail sellers, it would have listed them in the excluded group. Persons may be considered retail sellers even though they have no contractual relationship to the purchaser in s.55. 2)While the plaintiff did not pay a large sum of money, he could still expect this vehicle to be safe to drive. It was not safe and accordingly was not of acceptable quality. The retail seller bears the burden of establishing the exceptions enumerated in the statutory warranty and failed to do so. The vehicle was unsafe from the outset and could not be considered suitable for the purpose of providing transportation. It was unnecessary to make a finding with respect to warranty s. 48(g) (durable for a reasonable period of time). 3)This auto was substantially unfit for all the usual purposes for which, to the knowledge of the retail seller, it was being bought and accordingly the breach was of a substantial character. 4)The plaintiff rejected the goods within a reasonable period. The commencement of the present action was treated as the rejection of the product. The bulk of delay was caused by the defendant's failure to pick up and look at the vehicle (and implication this would involve repair) as agreed.",2_2003skpc44.txt
294,"J. 2004 SKQB 498 Q.B.G. A.D. 2002 No. 1887 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DALE HENRY, in the name and on behalf of 609897 SASKATCHEWAN LTD., and GREAT WESTERN BREWING COMPANY LIMITED, GWB HOLDINGS LTD., MAURICE DUVAL, RONALD WALDMAN and VAUGHN WYANT, DEFENDANTS Garth A. Brehon for the plaintiff Quentin D. Agnew for the Board of Directors of 609897 Saskatchewan Ltd. Michelle J. Ouellette for the defendants FIAT FOLEY J. December 8, 2004 [1] By fiat of December 5, 2002, Gerein C.J. authorized the initiation of derivative action by Dale Henry (Henry) on behalf of 609897 Saskatchewan Ltd. (609). By fiat of May 27, 2004, I ruled that the defendants in the action were entitled to examine a representative of 609 for discovery and that Henry was obliged to appoint counsel for 609 in the action. [2] In September 2004 clarification of my earlier fiat was requested and, with the consent of Mr. Brehon for the plaintiff, Ms. Ouellette for the defendants and Mr. Agnew for the board of directors of 609, the matter proceeded by conference call and written submissions. [3] The questions raised were: 1. Who is responsible for the cost of the counsel appointed by Mr. Henry 609 or Mr. Henry? 2. Is that counsel responsible in any way to Mr. Henry? 3. Can that counsel be member of the Rask Law Firm? 4. Does Mr. Henry’s counsel have any right to examine Mr. Kitz (assuming for purposes of this discussion that Mr. Kitz is the proper officer to be examined on behalf of 609)? 5. Does the right of counsel appointed to represent 609 to question Mr. Kitz at the end of examination by the Defendants mean simply the “normal right of re‑examination” on Examination for Discovery, or does it extend further? 6. Does the Defendants’ right to examine Mr. Kitz as representative of 609 include the right to request production of documents in the possession or control of 609 by way of undertakings at the Examination, and if so, who has the right to claim privilege on any such documents 609 through its appointed counsel or Mr. Henry through his counsel? 7. As corollary to the above question, whether there is any right of privilege as between 609 and Mr. Henry; if so, how is it claimed and are such documents privileged as between the Plaintiff and Defendants? Who is responsible for the cost of production of any such documents? [4] These questions, together with the disparate positions taken by the participants in their written submissions, demonstrate confusion and misunderstanding as to the nature of the action and consequently of a party’s rights and responsibilities within the action. [5] Some of the misunderstandings have their genesis in the pleadings which recite the plaintiff to be Henry, capacity which the defendants admit. As noted in my earlier fiat, the plaintiff is and was 609. Contrary to Mr. Brehon’s position the action remains derivative one in which the action by plaintiff 609 proceeds for the benefit of 609 against those it alleges to have caused it loss or damage. [6] In Phillips, Personal Remedies for Corporate Injuries (Toronto: Carswell, 1992), at page 402, the author states: If leave is granted, the applicant gains the right e.g. to “bring an action” on the company’s behalf. This is simply the right to instruct counsel in connection with such an action, it is not right to appear personally in court on behalf of the company in such an action. Note that the person instructing company’s counsel is exercising some of the authority that is normally possessed by the company’s directors. Just as that authority has caused the courts to view company’s directors as its fiduciaries, so it should cause the courts to view that person as one the company’s fiduciaries too. That is the American view, although there it is sometimes attributed to the apocryphal “fact” that the person in question represents the shareholders which flows from the incorrect view of derivative action as class action on behalf of the shareholders and not to the real fact that the person in question represents the company. [7] Phillips (supra) also observes that derivative action differs from normal corporate action on issues of privilege, cooperation, costs, settlement and personal awards. Explanations of the relationship between persons such as Henry, at whose behest derivative action is commenced, with the corporate plaintiff have been made by drawing analogies with other legal relationships such as those of litigation guardian/infant, trustee/beneficiary or agent/principal. [8] find it instructive in light of the above noted specific questions to compare this derivative action brought despite the objections to the action by 609’s board to that of subrogated action brought in the name of corporation by its insurer. The board of the insured does not control the subrogation action any more so than will the board of 609 in this case. The subrogating insurer usually sues in the name of its insured and appoints its own counsel for the action who then conducts the litigation without deferring to or necessarily adhering to the wishes of the insured’s board of directors. Such an insurer is entitled (albeit by terms of the insuring agreement) to the full cooperation of the board, its officers and corporation’s employees in furthering the subrogated action. [9] This particular analogy serves for the limited purpose of demonstrating that even though this action is brought in 609’s name and control of the action does not lie with 609’s board but rather is vested in Henry, issues of disclosure, privilege and reporting as raised by the above noted questions are capable of resolution utilizing analogous proceedings without doing violence to fundamental principles in the litigation process. [10] As a corporation may only litigate with legal representation, Henry is empowered and obliged to appoint counsel for 609. Whether that counsel is Mr. Brehon, another member of his firm or someone from outside that firm is entirely matter for Henry. Such counsel is entitled to access to the relevant documents, records and employees for the purposes of the action, including preparation of a statement as to documents and following the modified discovery process set out in my earlier fiat. [11] It follows that Henry and that counsel have professional and fiduciary obligations to 609. The nature of the action is such that Henry’s overall instructions to counsel should not be in conflict with the interests of 609 as Henry is obliged to advance the corporate interests in the derivative action. He was appointed for that purpose and is obliged to so instruct 609’s counsel. [12] Insofar as questions and raise the issue of costs in prosecuting the action Gerein C.J. in his fiat directed that “[t]he respondent corporation should not at this time be required to fund the action” [emphasis added] as, inter alia, no evidence of quantum of legal fees was provided and the merits of the action were difficult to assess at this early stage. These concerns still pertain and consequently, without prejudice to renewal of the application for cost reimbursement when the concerns expressed by the Chief Justice can be allayed, the costs in first instance remain with Henry. [13] Questions 4, and the first branch of fall to be resolved on the basis of the existing rules of court and the applicable jurisprudence, it not having been yet demonstrated that this aspect of the proceedings warrant modification of the rules. [14] The second branch of question and the first branch of question are self‑evident once one accepts the unity of interest between Henry and 609 which is necessarily reflected in the decision authorizing the derivative action. It follows that relevant documents will need to be disclosed and any issue of privilege related to those documents dealt with in accordance with accepted principles. The issue of cost of production of documents for the statement as to documents is presently to be resolved in the same manner as set out above dealing with costs generally. [15] As no formal motion was brought in this proceeding and the matter proceeded with all parties consenting, there shall be no order as to costs. I do wish to emphasize that, henceforth, it is the plaintiff and the defendants who have status in these proceedings and not Henry in his personal capacity nor the board of directors of 609.","FIAT: By fiat of December 5, 2002, Gerein C.J. authorized the initiation of a derivative action by Dale Henry (Henry) on behalf of 609897 Saskatchewan Ltd. (609). By fiat of May 27 2004, the Court ruled that the defendants in the action were entitled to examine for discovery a representative of 609 and that Henry was obliged to appoint counsel for 609 in the action. In September 2004, clarification of the May 27 2004 fiat was sought. HELD: The questions raised by the parties together with the disparate positions taken by the participants demonstrate the confusion as to the nature of the action and of a party's rights and responsibilities within the action. The action is a derivative one in which the action by plaintiff, 609, proceeds for the benefit of 609 against those it alleges to have caused it loss or damage. Henry is empowered and obliged to appoint counsel for 609. Such counsel is entitled to have access to the relevant documents, records and employees for the purposes of the action. It follows that Henry and that counsel have professional and fiduciary obligations to 609. Henry's overall instructions to counsel should not be in conflict with the interests of 609 as Henry is obliged to advance the corporate interests in the derivative action. As no formal motion was brought in this proceeding and the matter proceeded with all parties consenting, there shall be no order as to costs. Henceforth, it is the plaintiff and the defendants, who have status in these proceedings, and not Henry, in his personal capacity, or the board of directors of 609.",2_2004skqb498.txt
295,"nan Date: 20011114 Docket: S. H. 167817 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Halifax Regional Municipality v. Vance Joudrey 2001 NSSC 162] BETWEEN: HALIFAX REGIONAL MUNICIPALITY, municipal body corporate and VANCE JOUDREY nan HEARD BEFORE: The Honourable Justice Walter R. E. Goodfellow in the Supreme Court of Halifax (Chambers) on November 13th, 2001 DECISION: November 14TH, 2001 COUNSEL: Ian C. Pickard and Benjamin R. Durnford, Solicitors for the Plaintiff Robert G. Cragg, Solicitor for the Defendant GOODFELLOW, J.: [1] Vance Joudrey is the owner of the property 921 Brussel Street, Halifax and in 1999 planned renovations. On March 29th, 1999 his architect applied for minor variance converting the existing R1 use to R2 use so as to have two units without changing the side yard requirements. The side yard requirements for two unit dwelling is five foot clearance. After discussion with HRM, this application was withdrawn. [2] On April the 14th, 1999 development permit was sought to convert the single family dwelling to two residential units and this was granted May the 12th on conditions that all R2 requirements would be met, including lot coverage, minimum five foot side yard, etcetera. This was followed by further application for development permit November the 30th, 1999 which was simply to add living space to the existing single unit dwelling. This was granted December the 24th, 1999 on the condition that all R2 general residential zone requirements were met and the plan was revised to show an addition to single family dwelling and such plans indicated for example, one kitchen. The plans were reviewed by HRM and on June the 1st, 2000 notation on the plans confirmed it was single family dwelling with one kitchen and on the 15th of June, 2000, the kitchen was to be relocated to new kitchen in the extension. On July the 28th, 2000 an inspection revealed the existence of two kitchens one in the original structure and one in the addition. On August the 9th, 2000, HRM was advised that the original kitchen was removed and plumbing sealed up, etcetera. [3] Negotiations took place between HRM and Mr. Joudrey in part because the accommodation was rented out to separate groups of students and the parties reached a Consent Order which was issued January the 9th, 2001. [4] HRM seeks a finding that Vance Joudrey is in contempt of the Consent Order. CONSENT ORDER JANUARY 9th, 2001 UPON IT APPEARING the Plaintiff and Defendant have agreed to settle the within action based on the terms of this Order; AND UPON HEARING Justin G. Kimball, on behalf of the Plaintiff, with Robert Cragg on behalf of the Defendant, consenting hereto: NOW UPON MOTION: IT IS DECLARED that the dwelling located at 921 Brussels Street, Halifax, Nova Scotia (the “property”) is in contravention of the Plaintiff’s Land Use By-Laws; AND IT IS ORDERED: (a) The Defendant is permanently enjoined from maintaining and using the Property in contravention of the Plaintiff’s Land Use By-Laws; (b) The Defendant shall remove and/or destroy the part(s) of the Property contravening the Plaintiff’s Land Use By-Laws and, not to limit the generality of the foregoing, shall reconfigure the Property so: (i) that it contains only one kitchen; (ii) that it contains free internal access for its occupants between the original part of the dwelling structure and the recent addition; (iii) that it contain no more than three (3) locking doors in the interior. (c) The Defendant shall complete the work specified in paragraph (b) hereof by no later than June 6, 2001. [5] The Order went on to provide for access by HRM to ensure compliance and authority to HRM for the purpose of removal or destruction of any portion of the property that remains in contravention of the Land Use By-Laws with the expense to be recovered by HRM against Vance Joudrey. RELIEF SOUGHT [6] The Contempt Order sought by HRM is in the following form: CONTEMPT ORDER BEFORE THE HONOURABLE MR. JUSTICE DAVID W. GRUCHY IN CHAMBERS, UPON THE APPLICATION of the Plaintiff, through its solicitor Ian Pickard, of Halifax, counsel for the Plaintiff, and upon reading the Affidavits of Steven Higgins, W.K. (Bill) MacGillivray and Sharon Bond, one sworn October 25, 2001 and the other two sworn October 26, 2001. AND UPON this Honourable Court's Order, dated October 30, 2001, directing Vance Joudrey to appear before the Court on Tuesday, the 13th day of November, 2001, at the hour of 9:30 o'clock in the forenoon, to show cause why Vance Joudrey should not be held in contempt of Court and, if required, to perform or abide by such other Order as the Court may make; AND UPON HEARING Ian Pickard on behalf of the Plaintiff and Robert Cragg on behalf of Vance Joudrey; AND UPON IT APPEARING to the satisfaction of the Court that the said Vance Joudrey has been guilty of contempt of Court in that he failed to abide by the Order of this Honourable Court in the within proceeding dated January 9, 2001; IT IS ORDERED that for his contempt, Vance Joudrey be ordered to pay fine in the amount of Twenty-five Thousand Dollars ($25,000); AND IT IS FURTHER ORDERED that the Sheriff enter upon the property of the Defendant and collect and receive the rents, profits and income thereof until the Defendant clears his contempt by complying with Order of the Honourable Mr. Justice Robert Wright, dated the 9th day of January, 2001, namely, full compliance with the Land Use By-Laws of the Halifax Regional Municipality; AND IT IS FURTHER ORDERED that in order to ensure compliance with the Order of the Honourable Mr. Justice Robert Wright, dated the 9th day of January, 2001, the Defendant must forthwith, in any event prior to December 1, 2001, undertake the following work: 1. The door at the rear of the kitchen in the ""old house"" that now connects the two dwelling units must be removed. The doorframe and all associated hardware must be removed as well creating an archway between the ""old house"" and the ""new house"" 2. All food preparation and storage facilities and appliances must be removed from the building with the exception of those contained within the one designated kitchen area. 3. All kitchen cabinets, counters and sinks must be removed from the building with the exception of those contained within the one designated kitchen area. 4. Any reference to Apartment A and Apartment B must be removed from the property. As an example, the property must only have one mailbox. 5. The second power meter must be removed from the property. All power within the entire structure has to be run through one power meter. 6. The second cable television connection and associated billing provisions must be eliminated. In the alternative, the property can have second connection if we receive the necessary proof demonstrating the property only receives one cable bill. 7. The Plaintiff must be provided with certified copy of the lease for the rental of the property containing the following provisions: (a) names of the tenants; (b) clear and indisputable reference the lease is for the occupation of the entire structure and the building is only to be occupied as single dwelling unit; (c) clear explanation within the terms of the lease that the rent for the entire premises is to be paid as one single payment to the landlord collectively by all of the tenants; and (d) an undertaking Mr. Joudrey will provide an updated copy of the lease to the Development Officer each time it is altered in any way. 8. Commencing December 3, 2001, at time suitable to the Plaintiff's officials and between the hours of 9:00 a.m. and 12:00 p.m.; the Defendant (or his successor(s) in title of the property as the case may be) shall grant access to the Plaintiff's officials to all parts of the property to ensure he is in compliance with the Plaintiff's Land Use By-Laws and thereafter the Plaintiff's officials will be permitted to perform random inspections to ensure long term conformance on not more than weekly basis. AND IT IS ORDERED that this Order shall not executed, with the exception of the following clause, if the said Vance Joudrey complies on or before December 1, 2001 with the terms and conditions contained in the Order. AND IT IS FURTHER ORDERED that Vance Joudrey pay to the Plaintiff costs of this Application on solicitor and client basis, payable forthwith. DATED at Halifax, this day of November, 2001. CIVIL PROCEDURE RULE 55.05 The Contempt Order 55.05 (1) The court may make contempt order in Form 55.05A which may order that; (a) person cited for contempt be imprisoned as ordered or until further order; (b) when person cited for contempt fails to comply with any term or condition in an order, he be imprisoned as ordered therein; (c) sheriff enter upon and take possession of any property of person cited for contempt and receive and collect the rents, profits or income thereof until the person shall clear his contempt by complying with the terms of the order; (d) direct person cited for contempt to pay find, give security for good behaviour, pay such costs and expenses or comply with such other order as the court may grant under rule 55.09. (2) The court may order the execution of contempt order to be modified or suspended for such period, or on such terms or conditions, as it thinks just, and unless the court otherwise orders, copy of the order shall forthwith be served by the applicant on any person affected by it. (3) When person, pursuant to contempt order, has been detained in custody or his property taken thereunder and he continues to disobey the terms of the order, the court may make further contempt order upon such terms as it thinks just. (4) Where person cannot be served with contempt order because he is out of the jurisdiction or cannot be found by the sheriff after exercising due diligence, the court may, on an ex parte application, issue contempt order against the property of the person and the sheriff may execute the order in the absence of the person. [7] Intention to disobey the court’s order is not an element of civil contempt TG Industries Ltd. v. Williams, 2001 NSCA 105 (CanLII), [2001] N.S.J. No. 241 NSCA. The contempt here is made all the more obvious in that found as fact the conduct of Joudrey leads to no other reasonable inference that he clearly intended to circumvent the By-Law and intended to disobey the Order of January the 9th, 2001. He proceeded to do so on the mistaken belief he could somehow weasel his way out of that to which he consented. [8] Mr. Joudrey is in contempt if he intentionally did an act which is prohibited by the Order of the Court to which he consented. The Court must first determine if there has been contempt of the Order and then consider the sanctions. [9] found and so advised the parties at the conclusion of the hearing and argument that without reservation, Joudrey was in contempt of the January 9th, 2001 Order of the Court. In reaching that conclusion, made the following findings of fact: 1. That there is an Order of the Court January 9th, 2001 containing the provisions sighted above. 2. That Mr. Joudrey knew of the Order, its contents and import. There is also the background of this matter and the fact that he consented to the Order. 3. Mr. Joudrey conducted himself in manner that not only intended but clearly was in disobedience to the Order. First of all, he was permanently enjoined from using the property in contravention of the Land Use By-Laws and it is conceded on record that this meant he was to use the property in no other manner than as single family dwelling. Secondly, he was to undertake specific steps to ensure conformity with the obligation to maintain only single family dwelling on the property. 4. On June the 14th, 2001 Joudrey pled guilty in Provincial Court to charges that he did unlawfully permit two unit structure to exist in an R2 zone in manner contrary to the requirements outlined in s. 43E (a) of HRM’s Land Use By-Law and fined One Hundred ($100.00) Dollars. This plea of guilty is an admission in this application. 5. On May 24th, 2001 the property had sign giving the phone number and advertising three bedroom, living room and dining room. 6. The property was inspected by HRM on June the 7th, 2001 and the front portion of the property was unoccupied. 7. Joudrey filed Affidavits from three students which indicate that they installed kitchen appliances and in their view, Joudrey was not aware of the operation of the second kitchen until they brought it to his attention in late September, 2001. do not accept this evidence because it is clear that Joudrey placed an advertisement in the Halifax Mail-Star Tuesday, August 21st, 2001 with the same telephone number as in the window sign posted in the property and essentially in the same terminology with the added words, “partial kitchen”. Mr. Joudrey’s counsel explains this as simply being an error or stupid thing for his client to have done. Given the background of this matter and all that has transpired, find as fact that Joudrey in placing such an ad clearly realized that the existence of “partial kitchen” was breach of the Order of the Court to which he had consented. 8. On September the 27th, 2001 the property was inspected and photographs taken which show the “partial kitchen”. There are microwaves, two-burner hotplate, electric grill, full size fridge, bar fridge, deep freeze and sink full of dishes. Clearly, this constitutes “kitchen” and it is acknowledged that there was new kitchen in the addition and therefore the existence of the kitchen in the original building on September the 27th was clear violation of the specific provision in the Court Order of the 9th of January, 2001. 9. On September the 27th, 2001 the inspection revealed mailbox with the letter “B”. An inquiry by HRM resulted in it being advised by EastLink that there are two current customer accounts at the property, one for apartment “A” in the name of J. Ellsworth and one for apartment “B” in the name of S. Carson. Ellsworth filed an Affidavit confirming he was tenant of Joudrey. In addition, the Nova Scotia Power Corporation confirmed to HRM that there were separate hookups for the front and back portions of the property with the bills for both units going to Vance Joudrey. The separate hookups and metres are confirmed in photographs filed in this application. 10. To operate as single family unit required open access between the two units, the older part of the building and the addition. When HRM inspected the property September 27th, 2001 there existed doorway connecting the front portion of the structure to the new addition at the back and although the door had no locking mechanism it was barely accessible due to deep freeze in the front “partial kitchen” blocking the way. 11. The Court was advised in the hearing that the occupants in the front unit were in possession by virtue of verbal lease and the occupants of the new addition were in occupation by virtue of written lease and neither occupants were joined in their respective leases. 12. Mr. Joudrey’s counsel takes the position that his client has not benefited by being in contempt of the January 9th, 2001 Order and with respect, disagree. The extent of the benefit and its calculation may be impossible to determine with mathematical precision. Nevertheless, advertising and renting the unit with “partial kitchen” means it is highly probable that the breach rendered the unit more rentable and highly probable that the rental obtained was of higher level than might well have been otherwise without the breach. 13. There is nothing in Mr. Joudrey’s Affidavit or the Affidavits of some of his tenants to indicate any concrete steps whatsoever have been taken to rectify the situation and place Mr. Joudrey in compliance with the Order of January the 9th, 2001. Mr. Joudrey may well have told the students to remove the items of the “partial kitchen” but nowhere is it suggested that they have been removed or any steps whatsoever taken to purge the existing contempt. [10] Once finding of contempt has been made, the Court turns to the imposition of sanction. In TG Industries Ltd. v. Williams above, Cromwell, J.A. at para. 35: In civil contempt, the primary purpose of the sanction is to coerce compliance with the order ...The Judge in fashioning an order after finding of civil contempt is entitled to do so in way that will obtain compliance with the order so that the party entitled to the benefit of the order in fact receives it. The result is that the party in whose favour the order is made receives remedy. [11] And at para. 37: If there has been compliance with the order by the time of the contempt application, it will often be the case that no further sanction beyond an order for costs will be imposed. SANCTIONS FORM OF ORDER [12] HRM seeks fine in the amount of $25,000.00 payable if Joudrey fails to comply with the Order following the finding of contempt. Mr. Joudrey’s counsel suggests that any fine ought to be in the range of few hundred dollars at most. conclude that the requested amount of $25,000.00 is not required in order to encourage and coerce the highly probable compliance with this Order. On the other hand, there might be tendency to consider an amount of few hundred dollars as something in the nature of the cost of doing business. I consider the appropriate fine level to be $10,000.00. [13] HRM seeks in essence an assignment of the rents to the sheriff until the contempt in purged. Such provision is one that will very much foster compliance with this Order. can see where in some situations it would be the major enforcement. I am not certain that such an expense is warranted immediately, therefore, the Order will include a provision that it will only come in effect if there is not compliance as late as January 31st, 2002 so that the sheriff can exercise rent collection, etcetera, effective February the 1st, 2002. [14] HRM seeks compliance with all the requested terms and conditions of this Order by December the 1st, 2001 and conclude in the circumstances that it is more reasonable to use the deadline of January the 1st, 2002. The Court should guard against directing too restrictive of time limit which might in itself result in non-compliance. It seems to me more practical and reasonable in all the circumstances to set the deadline as the 1st of January, 2002. [15] HRM’s request for removal of the door is appropriate, along with the hardware pertaining to the door, however, consider it unreasonable for any structural change such as creating an archway. Such is not necessary to reach conformity with the free access of single family unit. [16] Storage facilities that pre-exist are consistent with the free use of single family dwelling and reference to such should be taken from paragraph of the draft Order. [17] The cabinets that exist are designated kitchen cabinets because it is operating as kitchen, however, such are capable of use for storage and the reference to kitchen cabinets and counters in paragraph is to be deleted. [18] The sink is an integral part of the kitchen operation and agree with HRM that the one in the “partial kitchen” must be removed. [19] Paragraphs 4, and are acknowledged by Mr. Joudrey’s counsel as being appropriate. [20] Paragraph as presently drafted presents some difficulties. Given the history and difficulties with this property, I see no reason why Mr. Joudrey should not be required to provide within fifteen days the names of all tenants and if and when there are changes in any of the tenants, he should provide HRM within fifteen days of such change the particulars of the new and remaining tenants. Mr. Joudrey should advise any and all tenants in writing prior to entry of occupation that the entire structure and building is only to be occupied as a single dwelling unit. consider the request for single payment to the landlord collectively by all the tenants as to be too much of an interference and the manner of payment of rental should be subject to the contractual determination between the landlord and any tenant. therefore do not consider paragraph 7(c) as appropriate. [21] With respect to paragraph 7(d), if there are any written leases now or in the future, then Mr. Joudrey is to provide a copy of any such lease within fifteen days of the lease’s execution or any alternation in the lease or tenants to it. [22] With respect to entering into the property ensuring compliance by inspection, this is unfortunately necessary given the history of the matter, however, I consider random inspections that could be every week as an excessive imposition on Mr. Joudrey. He does not occupy the building and apparently resides in Blockhouse. He has, however, created the situation and some inspection capacity is necessary but I would limit it to twice a month, such inspections to be at least ten day apart with such bi-monthly inspections to continue until the City is satisfied that this Order has been complied with and thereafter, HRM shall be entitled to inspect at random once a month while Joudrey is the owner of the property. [23] The fine is not to be crystalized into a Judgment and Execution, if Vance Joudrey fully complies with all the requirements of this Order on or before January the 1st, 2002. HRM, however, is entitled to proceed with the taxation of its costs and disbursements and when taxed shall be payable forthwith. [24] HRM seeks costs on solicitor and client basis. The awarding of costs on solicitor and client basis is the exception rather than the rule. It requires conduct on the party against whom costs are awarded of such nature and quality that clearly warrants the party seeking solicitor and client costs being fully indemnified for costs and disbursements that ought not to have been incurred. [25] In Morrow, Power v. Newfoundland Telephone Co., the Newfoundland Court of Appeal, 1994 CanLII 9723 (NL CA), [1994] N.J. No. 197, solicitor and client costs were denied where the Appellant was guilty of civil contempt because the Appellant acted speedily and with diligence to do everything possible to comply with the Order of the Court. In this case, Joudrey conducted himself post granting of the Order January the 9th, 2001 in manner which found as fact he willfully and intentionally sought to avoid the Order to which he consented. The terms of the Consent Order were clear and included that the property was to have one kitchen N. B. single family dwelling. After reviewing all of the findings of fact, simply highlight that Joudrey knowing that to which he consented limited the property to single dwelling with one kitchen, advertised for the rental of one portion of the building with “partial kitchen”. It is not as suggested by his counsel matter of the little guy against the big guy it is matter of absolute necessity of compliance with the Court Order, particularly one to which you have consented. [26] HRM has had to proceed to court to enforce the Court’s Order why should HRM, which is in essence the taxpayers, be required to expend public funds to enforce that which HRM was entitled to in compliance with the Consent Court Order? Mr. Cragg maintains that he wished to negotiate and had requested of HRM their position of which HRM responded with the conditions contained in the draft Order and there is nothing to indicate that Joudrey made any counter-proposal or any suggested courses of action for compliance with its obligations pursuant to the Consent Order. In fact, Joudrey conducted himself to the contrary and as of the date of this application, it is clear that the second functional kitchen continues as do all the other attributes of non-single family dwelling, i.e., multiple unit usage of the building. It is all well and good to suggest that now Joudrey sees the light of day and will accept the wise advice of his counsel but until this hearing, he has done absolutely nothing to purge the deliberate contempt of the January 9th, 2001 Order. In all these circumstances, the proper exercise of discretion is to recognize the extraordinary circumstances that exists, willfulness of the contempt and the failure at any effort to purge requires an award of solicitor and client costs and so order. am prepared to tax the solicitor and client costs and disbursements and ask HRM to present its statement of account on Affidavit within two weeks, along with any supporting material, and Joudrey’s counsel will have ten days from receipt of same to respond after which will conclude the taxation. This, at least, will save the additional costs of notice and formal taxation, including Taxing Master’s fees.","The defendant made an addition to single family residence. Following a dispute between the parties as to whether the defendant's use of the property now complied with the plaintiff's land-use bylaw for a single family residence, a consent order was issued dealing with the structure of the property and how it would be used. The plaintiff sought a finding that the defendant was in contempt of the consent order, seeking enforcement of the provisions of the consent order and an order that the defendant pay a fine. Defendant found in contempt of consent order; fine ordered in the amount of $10,000; if defendant has not complied with the terms of the consent order by January 31, 2002, the Sheriff is ordered to enter the property and receive the rents, profits and income thereof until the defendant clears his contempt; the door and hardware between the original structure and the addition is be removed; any references to separate apartments are to be removed from the property; the second power meter is to be removed from the property and the second cable television connection and associated billing provisions are to be eliminated; the defendant is to provide within 15 days the names of all tenants and if and when there are changes in any of the tenants, he must provide the plaintiff with the particulars of the new and remaining tenants; all tenants must be notified in writing prior to entry of occupation that the entire structure and building is only to be occupied as a single dwelling unit; copies of any written leases are to be provided to the plaintiff within 15 days of their execution; the plaintiff can enter the premises for the purposes of random inspection on a bi-monthly basis until the plaintiff is satisfied that this Order has been complied with and thereafter, the plaintiff is entitled to inspect the premises at random once a month while the defendant remains the owner of the property; the fine will not be crystallized into a judgment and execution if the defendant complies fully with all the requirements of this order on or before January 1, 2002. The plaintiff is entitled to solicitor-client costs.",e_2001nssc162.txt
296,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 127 Date: July 28, 2011 Location: Moose Jaw, Saskatchewan Between: IN THE MATTER of hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF T.J.E.S., born April 19, 2010 Appearing: Codi Chudyk For the Ministry of Social Services Mr. D. Ottenbreit For the parents, M.S. and P.K. The parents and children are identified by initials in order to protect their identities. JUDGMENT M. T. GORDON, INTRODUCTION: [1] The Ministry brings an application for a permanent order for the child, T.J.E.S., born April 19, 2010, pursuant to s. 37 of The Child and Family Services Act. [2] The biological parents, M.S. and P.K., oppose the application and submit that the child should be returned to the mother, M.S. LEGISLATIVE FRAMEWORK: [3] The Child and Family Services Act governs these proceedings. The burden is on the Ministry to establish its case on the balance of probabilities being the civil burden of proof. On November 2, 2010, Anna and Wesley Schultz were granted status as persons of sufficient interest pursuant to s. 23 of the Act. They were present throughout the course of this trial but declined the opportunity to take any active part in the proceedings. LEGISLATION: [4] The Ministry seeks permanent order pursuant to s. 11 of the Act declaring this child is in need of protection. The relevant portion of s. 11 reads as follows: 11. child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; [5] Sections 14 and 17 of the Act speak to the apprehension process and read as follows: 14(1) Where, on investigation, an officer concludes that child is in need of protection, the officer shall: (a) notify the parent in writing of the officer’s conclusion; and (b) offer family services to the parent. 17(1) Where an officer or peace officer concludes, on reasonable and probable grounds, that child is in need of protection and at risk of incurring serious harm, the officer or peace officer shall: (a) take all reasonable steps that he or she considers necessary to provide for the safety or welfare of the child, including, in the case of an officer, the offer of family services where practicable; or (b) where no other arrangements are practicable, apprehend the child and remove the child to place of safety. (2) Where peace officer apprehends child pursuant to subsection (1), the peace officer shall immediately report the matter to an officer who shall be responsible for the care of the child. (3) Where at any time an officer no longer believes that child apprehended pursuant to subsection (1) would be at risk of incurring serious harm if returned, the officer shall return the child to person who has right to custody of the child. (4) If child apprehended pursuant to subsection (1) is not returned to person who has right to custody of the child within 48 hours of being apprehended, an officer shall: (a) if family review panel has been appointed in the region or locality where the apprehension occurred, apply for review pursuant to section 20 of the reasons for the apprehension; and (b) within seven days, not including the day on which the child was apprehended, make an application to the court for protection hearing. (5) If child apprehended pursuant to subsection (1) is returned to person who has right to custody of the child prior to the review pursuant to section 20, an officer shall withdraw the application for review. (6) Applications pursuant to subsection (4) may be made by telephone in accordance with the regulations. (7) The director may, prior to protection hearing, grant access to child apprehended pursuant to subsection (1) to his or her parent or any other person on any terms and conditions that, in the opinion of the director, would be in the best interests of the child. [6] Section 36 speaks to the protection hearing, as follows: 36(1) On protection hearing, the court shall determine whether the child is in need of protection. (2) Where the court determines that child is in need of protection, the officer shall present to the court the officer’s recommendations respecting an order to be made pursuant to section 37. (3) If the court determines that child is not in need of protection, it shall dismiss the application and order the return of the child to person who has right to custody of the child. (4) An order pursuant to subsection (3) does not constitute an order for custody of the child. [7] In the event find this child is in need of protection, must consider the appropriate order under s. 37 of the Act which provides as follows: 37 (1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or be placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; (b) may consider the recommendations of the officer mentioned in subsection 36(2); and (c) may consider the recommendations of chief, chief’s designate or an agency that appears in court pursuant to subsection (11). (5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and (b) include in the order provision respecting access to the child. (6) If the court, in making an order pursuant to clause (1)(a) or (b), orders supervision of the child by the minister as term or condition of the order, the period of supervision shall not exceed one year. (7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of period, not exceeding one year, specified in the order. (8) Any order made pursuant to clause (1)(a) or (b) or section 16 that is inconsistent with an existing custody order of superior court shall be considered an interim order that is subject to further order of superior court. (9) The court shall provide to each party to the proceedings written summary of its reasons for determining that the child is in need of protection. [8] The following provisions of the Act are also relevant in these proceedings as follows: 4. Where person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of child, the person or court shall take into account: (a) the quality of the relationships that the child has with any person who may have close connection with the child; (b) the child’s physical, mental and emotional level of development; (c) the child’s emotional, cultural, physical, psychological and spiritual needs; (d) the home environment proposed to be provided for the child; (e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (h) the effect on the child of delay in making decision. 5. Subject to this Act and the regulations, the minister may: (a) establish, operate and maintain family services; (b) provide family services to or for the benefit of parent or child where the minister considers them essential to enable the parent to care for the child; [9] Clearly, the first issue, and only issue depending on my decision is whether the child T.J.E.S. was in need of protection and therefore lawfully apprehended within the meaning of The Child and Family Services Act on April 20, 2010. plain reading of the above sections indicates lawful apprehension is condition precedent to legal proceedings. Without the lawful apprehension there can be no orders under section 37. It follows that the Ministry has no legal authority to force parent to do anything if there is no basis for apprehension. It also follows that evidence obtained after the apprehension cannot validate an invalid apprehension. [10] Mr. Justice McIntyre clearly sets out this procedure in Saskatchewan in the Ministry of Social Services v. S. (E.K.), 1996 CanLII 7131 (SK QB), [1996] 146 Sask. R. 46 at paragraph 28: Step 1: determine if the children are in need of protection, and if so Step 2: determine the appropriate order under s. 37 in accordance with the principles set out in E.K.S. Approach this task as follows: (a) (i) consider the best interests of the child within the meaning of s. of the Act. (ii) may consider the recommendations of the officer. Note: both of these considerations must take place in the context of the objective of the Act as enumerated in s. 3. (b) determine whether any of the options in s. 37(1) are appropriate. The choices are: (i) return the children to the parents, with conditions attached if need be, including supervision by the Minister for up to one year; (ii) place the child in the custody of person having sufficient interest; or (iii) commit the child to the custody of the Minister for up to six months. (c) if none of the options in s. 37(1) is appropriate, then order, pursuant to s. 37(2), the children to be permanently committed to the Minister; or (d) pursuant to s. 37(3), if it is unlikely an adoption plan would be made for the child if permanently committed to the Minister, then order the child placed in the custody of the Minister until the child is 18 years old. [11] Mr. Justice McIntyre set out the following principles: 1. The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. (R. v. Saskatchewan (Minister of Social Services), 1974 CanLII 959 (SK QB), [1974] W.W.R. 388, at p. 393 (Sask. Q.B.)) 2. Section 37(4)(a) does not declare that only the best interests of the child shall be considered. The implication is that the court may be mindful of other matters. As well, the list in s. is not exhaustive in determining the best interests of the child. (Saskatchewan (Minister of Social Services) v. R.G. (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (U.F.C.)) 3. Any determination made must be in the context of the objective of the Act, set out in s. 3. (M.A.C. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81; 46 R.F.L. (3d) 174 (Q.B.)) 4. The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. 5. The court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of Social Services) v. M.L. and M.L.M. (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of Social Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in s. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. [51] In making an assessment as to whether an order under s. 37(1) is appropriate the court must do so on the basis of the evidence before it. As noted by the Court of Appeal in Saskatchewan (Minister of Social Services) v. A.J. and C.J., supra, p. at 251: However, the following is self-evident. Where, as here, children have been placed into the temporary custody of the Minister, and the parents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in the home which have resulted in the children being taken from the parents... This analysis is quoted with approval by the Saskatcheawn Court of Appeal in S.F. (Re), 2009 SKCA 121 (CanLII). EVIDENCE AT TRIAL: [12] The Ministry presented ten witnesses at trial, including one expert witness. By consent report of Francis Stewart, who was also qualified as an expert, was admitted as evidence. Following is list of the witnesses and summary of their evidence: 1. Nicole Ansell Ms. Ansell is child protection worker in Moose Jaw. Her first involvement with M.S. was five to six years ago when she was involved with the apprehension of child not the subject of these proceedings. The Ministry received information that the subject child, T.J.E.S., was expected and maternity alerts were put out to the local hospitals. Ms. Ansell stated this decision was based on the parenting capacity assessments of Francis Stewart, Dr. Tim Greenough, the previous family history and decision of Judge Matsalla from Swift Current Provincial Court relating to other children. Ms. Ansell apprehended April 20, 2010 when T.J.E.S. was one day old. Ms. Ansell observed T.J.E.S. with the mother in the hospital and at supervised visits. M.S. handled the child well, but breast feeding was struggle. M.S. kept regular contact with Ms. Ansell by attending the office and telephoning. M.S. pumped and froze breast milk to feed the baby on visitation days. However, the baby experienced digestive problems and after obtaining medical advice no further breast milk was given after mid-June. M.S. was willing to participate in parenting and anger management. However, Ms. Ansell noted that the Ministry had “been down that road” for six years with M.S. and felt her ability was limited. The Ministry was not prepared to put this baby at risk, in particular because of the parents’ past history of domestic abuse and violence. On cross-examination Ms. Ansell agreed that children would have been returned to the mother if they had dealt with their problems of drug and/or domestic abuse. She stated on April 23, 2010 there was permanency planning committee decision to apply for permanent order. Again, Ms. Ansell repeated that the basis for the Ministry’s decision to apprehend at birth and request permanent order was as follows: No stable home environment, only one year in residence, history shows she goes through too many residences, transience, domestic abuse, neglect, parents’ relationship unstable, dirty conditions of the home and the fact the other children were apprehended. All these factors put this baby at risk. The Ministry was of the opinion that the risks were too high and that even if support were put in place, the Ministry would not work with the parents. 2. Stacy Dennison Ms. Dennison is family support worker with the Moose Jaw Family Service Bureau. They received contract January 5, 2011, from Social Services to work with M.S. Ms. Dennison transported the baby to the home of M.S. and observed the visits. She also provided information to M.S. on many topics, including child development, problem solving skills, healthy parenting, violence and effects on children, healthy boundaries, natural and logical consequences and household hazards. She recorded the following observations by the mother: inappropriate behaviour by interrupting, changing topics, making jokes, not taking the matters seriously and inappropriate comments. Examples included M.S. talking to her instead of fully concentrating on the baby, M.S. stating she stole panties and then tried to sell them and not using change pad when changing the baby’s diaper. Ms. Dennison stated she had an appointment with M.S. twice weekly from January to the end of May, and that M.S. called if she had to cancel the appointment. On cross-examination, Ms. Dennison noted the father, P.K., was present on some visits. She noted P.K. exhibited inappropriate behaviour on occasion, such as passing gas, picking his nose, scratching his genitals and making jokes about the resources. Ms. Dennison said she was instructed to record all observations. She noted that on one visit M.S.’s clothes were too tight and her bra strap was sliding down her arm. M.S. did advise she quit smoking. Ms. Dennison admitted that the baby, T.J.E.S., appeared to be content and to have bonded with his mother, M.S. The father, P.K., appeared to be nervous holding the baby and had to be reminded to support the baby’s head. Ms. Dennison noted the home was very clean. When P.K. moved out in March 2011, the home was sometimes messy and cluttered. 3. Christine Racic Ms. Racic is the Family Support Program Coordinator with the Moose Jaw Family Service Bureau. She received the request for services from Social Services, and assigned worker. In this case, she was advised by Social Services that the worker was to supervise visitations. Someone patient, who would testify in Court was specified. As result, Stacy Dennison was chosen based on her studies in criminology, and her ability to communicate clearly with clients. At the conclusion of the contract, Ms. Racic reviews the worker’s report and signs off. She confirmed that the worker is to document all observations. The only time worker is to make comment is if the child is at risk of harm. Every month the worker prepares report which includes the following: child factors such as appearance; caretaker factors such as physical, mental and emotional engagement with the child and any changes. On February 3, 2011, there was visit at the Family Service Bureau. The foster mother brought the child, T.J.E.S., and noted that the baby had fallen and cut his lip and also had cold. At this visit Ms. Racic observed T.J.E.S. went to his mother who fed him, read and played with him. T.J.E.S. was laughing. It was noted the mother did not wash her hands prior to changing the baby’s diaper and brought food and snacks, some of which were inappropriate for the baby. The mother tried to engage the worker in conversation. It was noted that P.K. passed gas and had an erection during this visit. On cross-examination Ms. Racic reiterated that the worker was not to interpret events or act on any observations. If there is change in the home environment that could be danger to the child, she is to inform the care worker. She acknowledged that the observations were used as tool to predict what might happen. She stated it is important to record the parents’ behaviours as they act as role models. 4. Lois Thompson: Ms. Thompson has been the Outreach Coordinator for Moose Jaw Transition House for 17 years and worked at Moose Jaw Transition House for 31 years. For the past 16 years she has conducted an eight week course called “Woman’s Anger Expression Group.” The course is based on conflict or choice theory and assists women in setting goals and boundaries. The sessions are confidential and no notes are taken. M.S. came to the course the third week in January 2011. Ms. Thompson recalls M.S. being in the class and that she wanted her children returned. She observed M.S. attended regularly. M.S. spoke out and participated in group discussion. However, she also observed that M.S. was texting on occasion, and speaking out of turn. M.S. also responded that one of her goals was to “buy panties”. It was noted that she bought coffee and donuts for the group the last day. 5. Lisa Berry has worked at Moose Jaw Transition House for 10 years. She co-facilitated the group with Ms. Thompson. M.S. was in the group from January to March 2011. About the third session M.S. was asked to state her goal and she responded “make an underwear flag”. When asked again she said she wanted to get her “kids back”. Ms. Berry had to remind M.S. and another participant to be quiet when someone was speaking. On cross-examination she stated that M.S.’s goal about the “underwear flag” was very weird. She did note it was not just M.S. who was texting. M.S. attended all seven sessions. Her participation varied from week to week. The purpose of the session is to provide the women with tools and options to use in their daily lives when dealing with anger. 6. Gwen Knoll is registered Social Worker and the Director of Moose Jaw Family Service Bureau. About seventy percent of her time is devoted to counselling. Ms. Knoll saw M.S. and P.K. January 7, 2011. Four appointments were made by M.S. but only two were kept. At the first session Ms. Knoll explained the process and had the clients identify their issues. The second session M.S. stated they had problems with independence issues and boundary issues. M.S. was quite engaged. P.K. only responded when directly asked question. This is not unusual. M.S. left message cancelling future appointments as she had told P.K. to leave the home. Ms. Knoll offered M.S. individual counselling but had no further contact with her. 7. Donna Jones is child protection worker with the Ministry of Social Services. She has been in this position 10 years. She works with families to address child protection concerns where children are at risk. In June 2010 she received this file from Nicole Ansell who went on maternity leave. Ms. Jones first met M.S. and baby T.J.E.S. at scheduled visit in June. She introduced herself, reviewed where things were going and provided an opportunity for questions. M.S. questioned issues that had been dealt with such as the problem with breast feeding and DNA testing. M.S. wanted second opinion as to whether the baby was really allergic to her breast milk. Ms. Jones told M.S. these decisions had already been made and it was up to her to obtain and pay for second opinion. Ms. Jones related that M.S. continually contacted her, sometimes with unreasonable requests and other times it seemed more just to chat. M.S. had requested visits outside of the office such as at the park, Wal-mart or at Tim Hortons. The Ministry was pursuing permanent order so the visits had to be supervised at the office. Two supervised visits outside the office were allowed to have pictures taken. M.S. developed an acceptable routine when visiting. P.K. sometimes came to the visits, but often left early and did not actively participate. As the case management worker, Ms. Jones is to help parents recognize issues to be addressed and to motivate them to connect with the appropriate resources. Ms. Jones was aware of the history of the Ministry’s involvement with M.S. and the basis of the apprehension of the infant. She noted that M.S. was uncooperative with the Ministry previously in regards to services. Ms. Jones looked at previous parenting capacity assessments with respect to the other children. The same issues were still present such as M.S.’s failure to focus on the actual visit, inappropriate conversation, and inappropriate expression of anger. M.S. said she was willing to change and was prepared to work with the Ministry. In November and December 2010, M.S. called to discuss past and current concerns of P.K. sexually abusing the children. These concerns were discussed with M.S. and she was advised to report them to the police. Ms. Jones was also obligated to contact the police and report these allegations. P.K. also called. He admitted that he had child porn site on his phone. P.K. still wanted to see T.J.E.S. He had been to Mental Health to complete sexual offence risk assessment. After the pre-trial conference in December 2010, supervised visits at M.S.’s home occurred. Ms. Jones referred the parents to couple’s counselling to which they agreed. M.S. and P.K. needed to decide the status of their relationship. Ms. Jones referred and connected the parents with other resources such as the anger management program at the Transition House, parenting courses, and Mental Health. Ms. Jones was aware the Ministry had decided to seek permanent order on T.J.E.S. She reminded the parents of this many times and tried to talk to them about other outcomes. She wanted the parents to connect with some resources so they would feel more successful. Ms. Jones told M.S. about the Transition House anger management course as she felt M.S. still had anger issues. M.S. mentioned she had made an appointment to investigate mental health issues. M.S.’s level of cooperation varied depending on whether she was getting her way. On cross-examination Ms. Jones stated that she reviewed the complete file including the previous parenting assessments. She admitted that M.S. seemed to love and bond with the child. M.S. did nothing to harm the child. Ms. Jones repeated that at times M.S. was difficult to talk to, due to her inability to focus, her frustration, and being argumentative. Ms. Jones was concerned that she could become so unfocused or distracted that she could forget the child. M.S. admitted she had not been cooperative with the Ministry in the past. Ms. Jones agreed that people will jump through hoops to have their children returned and that people in desperate circumstances make desperate requests. 8. Gisela Hall has been supervisor at Family Services since 2004 and has worked for the Ministry since 1983. She is the supervisor of Donna Jones. Ms. Hall was part of the Permanency Planning Review committee that decides the type of order the Ministry will request. The committee reviewed the history of these parents with the Ministry, which included the orders with respect to the three older children, the 2007 parenting capacity assessment of Francis Stewart and the 2010 parenting capacity assessment of Dr. Tim Greenough. The committee concluded that between 2007 and 2010 there was no significant change in M.S.’s capacity to parent. The committee put great deal of weight on Dr. Greenough’s assessment. If Donna Jones, the present case worker, had suggested different recommendation other than permanent order, Ms. Hall would have had to discuss that with the committee. On cross-examination, Ms. Hall admitted there was no input from the client at the time the committee met. One of the tools the committee uses is risk assessment matrix called “Permanency Planning: children under eight years of age”. The result indicated that these parents have little chance of success. Ms. Hall admitted that generally the visits by M.S. with the baby had gone well the past year. She concluded that given the history and the opinion of the experts, the risk was too high to return this baby to M.S. even after temporary or supervisory order. 9. Dr. Tim Greenough was, by consent, qualified and allowed to give opinion evidence in the area of the preparation and assessment of parenting capacity. Dr. Greenough explained the process he follows which includes reviewing the history, previous assessments, meeting with the parents, observing the parents with the children in the home. He also conducts number of psychological tests and assessments, the results which are detailed in his report, Exhibit P3. draft copy of his report (without his opinion) is sent to the Ministry and the parents for feedback and then he completes and submits his final report. It is important to remember that Dr. Greenough’s report is an assessment of the parents’ capacity to parent in relation to the three older children. The assessment was done in early 2010, prior to the birth of T.J.E.S. This report documents the observations, tests and findings of Dr. Greenough. In making his assessment as to capacity to parent Dr. Greenough looks at the strengths and weaknesses of each parent. On the strength side he notes the following with respect to the mother, M.S.: She is of average intelligence; no physical ailments; no evidence of psychological pathology; cooperated with this process; the home was adequate; the child, J.S., expressed desire to live with her mother. On the weakness side of the equation Dr. Greenough notes the following in relation to M.S.: She comes from an abusive home, lack of stable work, history of drug use and no identified treatment; criminal involvements; risk taking, impulsive behaviour, weak and unchanged parenting skills; unrealistic career aspirations; unstable volatile relationship with P.K., did not complete the alternative to violence program; number of mental health issues and no sustained commitment to treatment; lack motivation to seek treatment; lack pro-social support; history with Social Services and lack of compliance with previous orders; motivation for attending classes driven by the Court process. Dr. Greenough described the same process for the father, P.K., noting many of the same weaknesses as for M.S. In addition, he noted that P.K. is of low intelligence, has criminal history, moderately unstable work history, high risk for depression, many mental health issues including fetish behaviour that have not been addressed and the unstable relationship with M.S. Dr. Greenough stated P.K. and M.S. should attend parenting groups and relationship or couple’s counselling. On cross-examination, Dr. Greenough testified that if the parents had been able to demonstrate some improvements in the noted weak areas, this would have moved his assessment in more positive direction. Dr. Greenough was familiar with the Francis Stewart report (Exhibit P2), but did not notice any of the unsanitary, unkept conditions noted by Mr. Stewart. Dr. Greenough stated some of his other findings as follows: concerns over lack of follow-up by M.S. regarding possible bi-polar disorder; concern she was minimizing previous drug involvements; acknowledgement that some people can quit using alcohol or drugs on their own and that the situational tests are not one hundred percent accurate. There had been many stressful events in M.S.’s life in the preceding 12 months prior to this that would elevate her parenting stress index. In particular the family dynamics involving J.A.S., M.S. and M.S.’s mother were tense. Dr. Greenough stated that individuals experiencing lot of stress may be less able to respond to the needs of child. Often day to day problems can be magnified out of proportion and person is less able to cope. He agreed that the child, T.J.E.S. is not assessed as high needs child. He stated that in the past the mother’s home life was unstable and abusive. The research shows that this can have an effect on one’s well-being and mental health. He agreed that one can be unemployed and good parent. His concern with respect to the mother’s history of not following court order is consistent with her history with the Ministry of Social Services. However, he agreed that as person matures, they are more likely to take direction or it is possible that an event such as these court proceedings can result in person “waking up”. Mr. Ottenbreit questioned Dr. Greenough about P.K.’s fetish for women’s underwear. The doctor stated that in most cases there is no criminal behaviour associated with this fetish. The potential impact would be on the child if he observed his father in women’s underwear and the potential financial impact on the family. In conclusion, Dr. Greenough testified that the father, P.K., was liability overall and if he was out of the picture some of the risks in returning the children would be decreased. 10. Jane Lynn is the current foster mother of baby T.J.E.S. She describes the child as very healthy, well-behaved, and plays alone or with others. child anyone would want. He is developing normally, although he has asthma. She takes T.J.E.S. to the Ministry’s office twice week for visits by the mother. Ms. Lynn has noticed on the drive home after the visits T.J.E.S. cries uncontrollably and is very fussy. The evidence for the parents: [13] Three witnesses testified, including both parents. P.K. testified he was currently part-time janitor at the military base. He has been with M.S. on and off for about nine years. He believes he is the father of the subject child. He acknowledged that he and M.S. have had history of domestic violence, the last incident was five years ago when he assaulted M.S. At the request of M.S. they have been living separate and apart since March 15, 2011. P.K. loves the baby, T.J.E.S., although he was nervous handling newborn. He has attended many of the visits and feels comfortable playing with the baby. He admits he has several issues to deal with and is continuing counselling and groups, such as Mental Health, parenting classes and anger management. He believes this will benefit him. He wants to visit this child. He spoke about his underwear fetish and the professional help he is seeking. He has no record for child abuse. On cross-examination, he acknowledged he has been involved with Mental Health on and off all his life. In 2010 he saw his mental health worker on an as needs basis. He also admitted to anger problems and in the past to slapping the child, J.A.S., which he acknowledges was wrong. He would like to visit the child T.J.E.S. if the child was returned to M.S. [14] Kayla Erbach is single mother on assistance. She has known M.S. and P.K. for five to six years. She observed the parents to be loving and caring with the two oldest children, J.A.S. and J.J.S. She never saw any drugs, alcohol or physical abuse in their home. [15] M.S. is the mother of the subject child, T.J.E.S. The older three children have been the subject of previous proceedings and on March 4, 2009 the two older children were placed with person of sufficient interest and the third child was made permanent ward of the Ministry. [16] M.S. seeks the return of her fourth child, T.J.E.S. M.S. admits that in the past she refused to seek help or follow any requirements of the Ministry. She testified she has had regular contact with baby T.J.E.S. since birth and she visited regularly as arranged with the Ministry. [17] In April 2010 she requested and obtained money from her financial worker, Mark Branning, to purchase baby layette and crib. Since she had no other information, she assumed she would be able to take her baby home. Shortly before she had the baby, she was told that the Ministry would be apprehending the baby. [18] In June 2010, her new worker, Donna Jones, clearly stated the Ministry was seeking permanent order. However, M.S. thought she might have T.J.E.S. returned to her if she took the suggested classes and counselling. She saw mental health counsellor and participated in one-on-one counselling. She is considered low priority and is on waiting list to see Colleen Pilkie, at Mental Health. [19] M.S. admitted her shortcomings. She is becoming more educated on how to parent. She is prepared to work with Social Services. She is more receptive to their suggestions. She acknowledged that in the past her house was dirty, and she was not following the Ministry’s suggestions or coping well. She acknowledged her past relationship with P.K. and that they have reconciled many times. They have not been together since March 2011. P.K. has his own place and new job. She emphatically states that the relationship has ended for good. She stated she is six weeks pregnant and the father is not P.K. [20] M.S. was working at the pork plant in Moose Jaw and plans to reapply at the end of June. If she returns to work she has checked out daycare and could make the necessary childcare arrangements. P.K. could visit the child on the weekends. She is renting two bedroom duplex, has playpen and other baby items, and she is able to get furniture. [21] M.S. explained some of her behaviour as described by the witnesses. She testified that in the past she was frustrated with the Ministry and was not meaning to be rude to the workers. She found Ms. Jones the most understanding of the workers. She admits that she often had lot of questions for Ms. Jones as she only had few opportunities to meet with her alone without the baby. In fact, she would have so many questions that she blurted them all out at the beginning of the visit. When the baby was present she was just interested in focusing on him. She loves the baby very much, especially when he greets her with his big smile and his arms out. [22] M.S. requested that some visits occur at the nearby park rather than the small, hot and stuffy, windowless room at the Ministry’s visiting area. She had snuggly for the baby. She explained her behaviour at the Transition House group as joke, that she went along with. She denies having cell phone but admits to chatting with one of the other participants. She explained that cell phone with texts relating to class material was being passed back and forth. On reflection she admits she should have waited her turn to speak. M.S. testified her first priority was her child. She does not use alcohol or drugs anymore. Alcohol has never affected her ability to look after her children. [23] On cross-examination, M.S. agreed she had extensive involvement with the Ministry over many years, both in Moose Jaw and Swift Current. She has started addressing some of the Ministry’s concerns. She had participated in programs in December 2010 and January through March 2011 prior to T.J.E.S.’s birth, participating in such groups as Kids First, Dealing with Anger, and Mental Health counselling. [24] Ms. Jones always stated the Ministry was seeking permanent order but M.S. was aware the Ministry’s position could change so she has never given up hope to have T.J.E.S. returned. The mother says she is prepared to follow through with meaningful participation in programming this time. When her older children were apprehended and she was younger, she thought she knew everything, and did not take the programs seriously. POSITION OF THE PARTIES: [25] The Ministry’s position is based on the following grounds: the history of the parents with the Ministry, the 2007 parenting capacity assessment of Francis Stewart (in relation to previous apprehensions of the older children), the February 2010 parenting capacity assessment of Dr. Tim Greenough, and the historical non-compliance and attitude of the parents, particularly M.S., the mother, with the Ministry. [26] The Ministry noted the parents did not provide any independent evidence to support their argument that they were taking steps to address the problem areas. It was not until the matter was set for trial did the mother take any positive steps. [27] The Ministry relies on the provisions of the Act that it is responsible for the welfare and protection of children. The Ministry must have regard to the child’s best interests and take into account the factors stated in section of the Act. [28] The Ministry argues that given the extensive past history involving three older children of M.S. and P.K., the Ministry properly apprehended T.J.E.S. pursuant to section 11(b) of the Act. The Ministry states the permanency planning committee was of the opinion there was no use putting off the inevitable. [29] The Ministry relies on Dr. Tim Greenough’s 2010 parenting capacity assessment. The Ministry is not convinced that the mother is able to sustain any of the changes she might have made. The Ministry is not convinced the mother will continue with any programming. [30] Counsel for the parents submits that there was no basis for the apprehension. He argued that the Ministry decided prior to the birth of the child to apprehend and as result did apprehend the child on April 20, 2010. He argues that the mother has never been given the opportunity to parent. The entire case against her is based on history with the Ministry in relation to three older children. [31] In addition, the evidence at this trial indicated that M.S. has had regular supervised visits with the child. She has acknowledged her past conduct and attitude. She has taken many steps to address the concerns of the Ministry. Counsel for the mother suggested that the Ministry decided that M.S. would not or could not change. ISSUES AND ANALYSIS: [32] In this particular case the Court must first decide whether the initial apprehension of this child, T.J.E.S., on April 20, 2010, was in accordance with the Act. [33] The analysis must start with careful consideration of s. 11 of the Act. The Ministry relies on s. 11(b) which reads as follows: 11. child is in need of protection where: (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; [34] In A.J.R.M. (Re), 2010 SKQB 371 (CanLII), 365 Sask. R. 249, Madam Justice Rothery of the Court of Queen’s Bench found the child was in need of protection when the child was apprehended one day after birth. The baby was apprehended because the mother tested positive for residual amount of marihuana. As well, the confrontation at the hospital with the father made it essentially impossible to determine at that time if there was in fact any other option available rather than apprehending the child. [35] The Court also quotes with approval the July 22, 2009 decision of Madam Justice Ryan-Froslie, namely C.C.A.E. (Re), 2009 SKQB 308 (CanLII), 339 Sask. R. 239, where at paragraphs 30 to 32 the Court comments on the Ministry’s authority to apprehend child as follows: [30] Section 17 of The Child and Family Services Act governs the apprehension of children in Saskatchewan. While that section has not been the subject of direct judicial interpretation by the Courts of this Province, it was considered in obiter by Justice L’Heureux-Dube who rendered the majority decision for the Supreme Court of Canada in Winnipeg Child and Family Services v. K.L.W., [2000] S.C.R. 519, 2000 SCC 48 (CanLII). At para. 33 she stated: ... Saskatchewan’s warrantless apprehension also suggests an emergency criterion by requiring that the child be “at risk of incurring serious harm”, although apprehension is obviously last resort, since the provision stipulates that it can occur only where “no other arrangements are practicable”: The Child and Family Services Act, S.S. 1989-90, c. C-7.2, s. 17(1). [31] The stated objective of Saskatchewan’s child protection legislation is set out in s. of The Child and Family Services Act as follows: ... to promote the well-being of children in need of protection by offering, whenever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. Based on this section, apprehension of child which constitutes the most extreme form of state intervention should be viewed as last resort. (See: Winnipeg Child and Family Services v. K.L.W., supra, at para. 79). [32] It is clear that before an officer (in this case supervisor for the Ministry) apprehends child pursuant to s. 17 of The Child and Family Services Act they must conclude firstly, that child is in need of protection and secondly, that the child is at risk of incurring “serious harm”. Those conclusions must be based on reasonable and probable grounds. In addition, the officer is directed to consider all other reasonable options before proceeding with an apprehension. [36] Madam Justice Ryan-Froslie goes on to discuss the meaning of reasonable and probable grounds, as this term is not defined in The Child and Family Services Act, at paragraphs 34, 35, and 38 of C.C.A.E. (Re), supra, she states as follows: 34. Child protection legislation has long been viewed as quasi-criminal in nature. Legal counsel for both the Ministry and Fran indicated in argument that the phrase “reasonable and probable grounds” has the same meaning as that prescribed to it by Courts in the criminal law context. 35. Courts in all jurisdictions of Canada, including the Supreme Court of Canada, have discussed what is meant by “reasonable and probable grounds” in the criminal law context in circumstances relating to warrantless searches and seizures. While the phraseology varies, the theme is basically the same. Whether “reasonable or probable grounds” exist must be based on an objective view of the totality of the evidence in existence at the time the belief was formed. The test is not whether the belief was correct but rather whether it was reasonable in the circumstances having regard to the nature of the information relied upon (i.e. its strength and reliability). (See: R. v. Gill, 2008 SKQB 445 (CanLII), [2008] S.J. No. 679 (QL); R. v. Trask (1987), M.V.R. (2d) (N.S.C.A.) and R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254.) 38. In interpreting s. 40(7) of the Ontario legislation, Justice Quinn in the Children’s Aid Society of Niagara Region v. C.B., supra, at paras. 36 and 39, stated the following: [36] In criminal law, “reasonable and probable grounds” means “reasonable probability.” see no reason to ascribe different meaning in family law. (R. v. Debot, 1989 CanLII 13 (SCC), [1989] S.C.R. 1140.) ... Those risks [warranting an apprehension] are not defined or quantified in the Act. Nevertheless, the risks must be real in the eyes of the worker, in light of what she knew at the time and what she reasonably should have known; furthermore, the risks must be seen to be real by an objective observer when viewed in that same light. The risks here, although real, were low and the harm non-imminent and all protection concerns could have been satisfied, and satisfied easily, be means of an approach far less intrusive and heavy-handed than apprehension. [37] Did the Ministry have sufficient reasonable and probable grounds to believe that T.J.E.S. was in need of protection at the time of the apprehension? [38] Nicole Ansell testified that the decision to apprehend this child was based on the history of the parents and the three older children with the Ministry. The Ministry had worked with this family for six years and were of the opinion that the ability of M.S. to look after children was limited. M.S. and P.K. had history of domestic abuse. In particular, Ms. Ansell referred to the parenting capacity assessments of Mr. Stewart and Dr. Greenough, and the findings and decision of Judge Matsalla. The Ministry takes its responsibility to look after the best interests of child very seriously, and concluded it could not put the child at risk. [39] Francis Stewart is registered psychologist and his report dated January 19, 2007, was filed by consent as Exhibit P2 in these proceedings. Judge Matsalla in his March 4, 2009 decision regarding the three oldest children refers and relies heavily on this report. [40] Mr. Stewart reviewed the file history at the Ministry of Community Resources and Employment in July 2006 and started interviews with the parents in late August 2006. Further interviews, home observation and psychological tests were conducted at p. 50 to p. 52 of the report. Mr. Stewart makes it clear that these recommendations ... are done so to inform the referring agent of the opinions of the psychologist as to the best interest of particular child. The recommendations are not made with respect to parent’s wishes, but rather to that of the needs of the child. Many times, what parent wants and feel they need, are quite different from what the psychologist might determine that child needs.” [41] At this hearing, Dr. Tim Greenough testified with respect to more recent parenting capacity assessment. His curriculum vitae and report are filed as Exhibit and 3a respectively, in these proceedings. Dr. Greenough met M.S. and P.K. in their home in Moose Jaw, February 16, 2010. The report was completed in March 2010 and the children involved are again the three oldest. The child of the present apprehension was not yet born. [42] In my review of the evidence, noted that Dr. Greenough arrived at his conclusions by reviewing what he found to be the strengths and weaknesses of the parents. He made six recommendations as follows: 1. It is recommended that the children not be returned to M.S. and P.K.’s care. The writer was concerned that M.S. and P.K. have not made sufficient change or commitment to change to warrant the potential risks of returning the children to their home. 2. It is recommended that J.S. (April 27, 2002) be given greater opportunities to visit her mother. 3. It is recommended that J.S. (July 12, 2005) continue to have opportunities to see her parents. 4. It is recommended that P.K. participate in treatment and counselling to address anger issues as well as his concerns about his identity and feelings of depression. 5. It is recommended that P.K. and M.S. participate in parenting group. 6. It is recommended that M.S. and P.K. need to resolve whether or not they plan to stay together. Attending couple’s counselling may help resolve this issue. [43] At the time of apprehension the Ministry would have been aware that M.S. had full-term pregnancy, there were no problems noted at birth, and there was no indication of any birth defects or deformities or signs the baby was suffering from alcohol or drug withdrawal. There was no evidence to suggest that T.J.E.S. was anything but healthy baby boy. [44] The Ministry should also have been aware that M.S. had requested and received from her financial worker, monies to purchase layette for the baby, and that M.S. was not told that the baby was going to be apprehended until shortly before his birth. [45] This is the sum total of the information known to the Ministry, April 20, 2010. All the other testimony the Court heard was in relation to the time period from April 20, 2010 (after apprehension), to the date of trial. [46] shall now return to the question posed at the beginning of this discussion, is this child, T.J.E.S., in need of protection within the meaning of the Act. [47] The birth registration indicates 40 week pregnancy and baby weighing 3815 grams or 8.42 lbs. We did not hear of any problems at birth or birth defects. Dr. Greenough noted that responses to the substance abuse subtle screening inventory-3 (SASSI-3) by Muler (1997) indicated high probability of having substance dependence disorder. Earlier in his report, Dr. Greenough notes in telephone interview with Ms. Leslie Kisch of the Ministry that in 2007, Addiction Services tried to assess M.S. They determined she was not being truthful so no further services were provided. However, there is no evidence of drug or alcohol abuse by the mother. [48] The history of M.S. not cooperating with the Ministry is not being disputed. However, this was with three older children. The Ministry quite rightly gave M.S. many opportunities from 2002 to deal with the problems. The Act requires nothing less. [49] Counsel for the Ministry takes the position that this child is in need of protection immediately after his birth, due to the “history”. The Ministry’s entire case is based on the previous conduct of these parents and assessments that have been completed in relation to the three older children. [50] Counsel for the parents submits that the Ministry jumped in too soon. M.S. has never been given an opportunity to parent this child and therefore the “history” and previous assessments are of little value. Counsel quoted the case of (Minister of Social Services) v. E.(S), 1992 CanLII 8071 (SK QB), [1992] W.W.R. 289 (Sask. Q.B.), where Mr. Justice Baynton states at p. 296: ... the issue is not whether the children might be better off or happier or obtain better upbringing in the care of other parents then with their natural parents. The issue however really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society. [51] It is clear that in the past, the level of parenting has not met the minimal standard. However, need to consider the time period as of April 20, 2010. The Ministry had decided prior to this time, to apprehend the child at birth and sent out an alert to the hospitals in the area. In the circumstances presented in evidence and pursuant to the factors set out in s. 11 of the Act, was the child in need of protection? cannot overemphasize that this child was not the subject of any previous apprehensions, court orders or decisions. This is fresh start for the parents, but for the baggage that comes with them that being their history with the Ministry. [52] The evidence and report of Dr. Tim Greenough (pages and 3a) provides more current information. However, this report and Dr. Greenough’s testimony must be considered with reference to the three older children. Dr. Greenough states that the purpose of his evaluation in 2010 was as follows: Mr. Sim Stinson (Lawyer) represented M.S. in her dispute with the Ministry of Social Services as to whether her three children should be returned to her care. Mr. Stinson requested that the writer conduct an evaluation of M.S. and her capacity to parent her children. [53] Dr. Greenough first met with the parents February 16, 2010, in their Moose Jaw home. He notes that “throughout the assessment process M.S. and P.K. appeared motivated and cooperative”. [54] Dr. Greenough analysed the parents’ situation in terms of strengths and weaknesses. He then concluded that these three older children should not be returned to the parents. At page 29 he states the parents have not made sufficient changes or commitment to change to warrant the potential risks of returning the children to their home. [55] find it useful to look at these strengths and weaknesses Dr. Greenough recorded in more detail and to do this will identify them in two columns as follows: 1. M.S. has at least average intellectual ability. 1. M.S. raised in an abusive home environment with high level of instability 2. M.S. has no physical ailments that compromise her ability to parent. 2. M.S. has not had successful work history and unemployed at the time of the evaluation. 3. M.S. displayed no clear evidence of clinical psycho pathology on her PAI profile. 3. M.S. has history using illicit drugs. M.S. claims she has not used for years but has had no identified treatment. 4. M.S. cooperated with the assessment process. 4. M.S. has recent criminal record for breaching recognizance. 5. P.K. appears to have been raised by adoptive parents who provided him with supportive healthy home. 5. M.S.’s profile consistent with other individuals who displayed risk taking and impulsive behaviour. This was in stable finding noted in previous evaluations. 6. P.K. is in good physical health. 6. Ministry’s PSI profile suggested that her interaction with J.A.S. was not rewarding for her. 7. J.A.S. would like to live with her mother and have more contact. 7. M.S. verbalized knowledge of parenting skills was weak and not substantially improved for 2007. 8. M.S. and P.K.’s house was adequate to meet the needs of their children. 8. M.S.’s career aspirations are unrealistic. 9. P.K.’s PAI profile suggests he is experiencing anxiety and tension. He is concerned with his personal relationship with M.S. his ability to communicate is compromised. He may be suffering from depression. 10. P.K. has history of difficulty with alcohol and may be at risk of using inappropriately in the future because of his anxiety and tension. 11. P.K. acknowledges some transient and fetish features involving women’s underwear. In the past he has taken J.A.S.’s underwear. 12. M.S. and P.K.’s relationship not stable since 2007. 13. P.K. has not completed alternative to violence program. Concerns about anger management. 14. M.S. and P.K.’s motivation for treatment lower than individuals seen in treatment settings. (PAI) Lack of consistent involvement in treatment is concern. 15. M.S. and P.K. lack prosocial support. 16. M.S. and P.K.’s history of not cooperating with Social Services. 17. M.S. and P.K. only recently participated or planned to participate in training and counselling. This suggests that their motivation is primarily driven. 18. P.K.’s work history is unstable. At June, unemployed. [56] Dr. Greenough noted two neutral observations, namely, P.K. is of low average intellectual ability, and P.K. has criminal history, the last charge being in 1990. [57] If P.K. is taken out of the equation there are five areas of strength for M.S. and 13 weaknesses for M.S. or M.S. and P.K. If one was to do mathematical approach, the outcome is clear. However, Dr. Greenough admitted, when asked by the Court, that each strength and weakness ought not be given equal weight. [58] Under the weakness column, in my view, numbers 1, 2, and should be accorded less weight. M.S. cannot change her background and it no doubt has had an effect on her. However, new skills and approaches can be learned. There are many reasons for M.S.’s poor work history no doubt. Some may have been due to the personality traits noted, but other explanations are lack of education, being young woman and lack of support. While in-patient treatment and counselling is part of an effective treatment plan for alcohol and drug abuse, the evidence presented does not indicate in the past year, in relation to this child that it is of concern. [59] Weakness numbers 14, 16, and 17 were emphasised by the Ministry. Again they are part of the history of the parents with the Ministry. accept these concerns. If the parents do not work with the Ministry in terms of attending and participating in programs the Ministry has less confidence that the best interests of the children will be taken care of. [60] acknowledge and commend the Ministry for recognizing the important role they play in protecting children. The Ministry is required to make difficult decisions based on information it has at the time. While the Ministry cannot predict behaviour, it still has to make an assessment of future behaviour which is often based on the past history of family with the Ministry. The Court in C.C.A.E. (Re), supra, put it well at paragraph 22: Children are among the most vulnerable members of society. They are dependent upon their parents and/or caregivers for the necessities of life and the protection of their physical, mental and emotional well-being. Sadly, parents and caregivers sometimes fail in their duty to protect and nurture the children in their care. Society and governments in general have long recognized the need to intervene to protect children from harm. This is universally recognized principle as evidenced by the United Nations Convention on the Rights of the Child to which Canada is signatory. It is also recognized in Canada by the existence of provincial child protection legislation. [61] At paragraphs 25 and 26 of C.C.A.E. (Re), the Court points out that it is “serious harm” or the threat of harm that provides sufficient grounds to apprehend child: That is not to say that child must suffer actual harm before it can be said they are in need of protection. The threat of harm may be sufficient. The word “harm” is synonymous with injury and includes wide spectrum of situations from slight and inconsequential harm to serious and grievous harm. It is “serious harm” that warrants the apprehension of child pursuant to s. 17(1) of The Child and Family Services Act. [62] Section 17(a) and (b) of the Act requires the officer (as defined in s. 2(m)) to not only have “reasonable and probable grounds, that child is in need of protection and at risk of incurring serious harm”, the officer is to take all reasonable steps to provide for the safety and welfare of the child including the offer of family services. Subsection 17(1)(b) goes on to state the child is only to be apprehended “where no other arrangements are practicable”. [63] There was no evidence presented at trial with respect to any attempts by the Ministry to pursue any less intrusive alternatives. The Ministry proceeded directly to the most severe position being a permanent order. In my view the evidence does not justify this position. There was no medical evidence to indicate that this baby had physical problems or that there were any problems with the pregnancy. [64] All the Court heard was that because of the past history of M.S. with her other children, the Ministry was not convinced that M.S. could sustain any change in improvement long-term. M.S. had not made much effort to follow any of the recommendations of the Ministry. It was after the apprehension that M.S. and P.K. made concerted effort to follow through with programming and counselling. [65] M.S. was not given any opportunity, due to the early apprehension, to parent this baby. equate this situation with the “hunch” Judge Morgan refers to supra. In my view, without something more, this is not sufficient to satisfy the “reasonable and probable grounds” requirement. It is not sufficient to establish that T.J.E.S. was in need of protection within the meaning of the Act at this point in time. [66] good portion of the evidence at trial concerned the actions of M.S. and P.K. after the apprehension. am unclear as to whether the Ministry was relating this evidence to bolster or justify its decision to apprehend T.J.E.S. at birth, or whether it was to convince the Court that permanent order under s. 37 is necessary in these circumstances. In order for this apprehension to be lawful within the meaning of the Act, there must be more evidence than M.S. being “bad parent” in the past. The events after April 20, 2010, cannot be used to justify the apprehension. Otherwise, every baby she may give birth to in the future will be apprehended at birth because of her “history”. [67] In conclusion, I have determined that T.J.E.S. was not in need of protection pursuant to s. 36(3) of the Act. dismiss this application. [68] As result of my finding that T.J.E.S. was not in need of protection on April 20, 2010, need go no further. However, assuming am incorrect and that T.J.E.S. was apprehended in accordance with the Act, will consider the appropriate order under section 37. [69] go back to the test as set out by McIntyre J. in E.K.S. at paragraph 49 as follows: The Court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of Social Services) v. M.L. and M.L.M. (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of Social Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [70] M.S. was quite candid in her evidence and past involvement with the Ministry. She was young, thought she knew everything and was not about to take much direction from anyone. M.S. is not shrinking violet. She has opinions and is not afraid to express them. She challenges opinions that she does not agree with and wants good solid reasons before she accepts another point of view. As young person she had her difficulties. She has been involved with P.K. for many years and he is the father of three of the children. Both M.S. and P.K. acknowledge the relationship has been abusive. The instability of the relationship has been commented on by Francis Stewart, Dr. Greenough and the Ministry. [71] M.S. and P.K. were living in the same house in 2010 when Dr. Greenough did his assessment. They had separate bedrooms and each was free to date others outside the home. Both claim the relationship is over. [72] Donna Jones has been involved with M.S. since Ms. Ansell went on leave in early June 2010. Visits were arranged at the Ministry office and Ms. Ansell noted that M.S. physically handled the child well. Breast feeding became an issue and was stopped on doctor’s orders. M.S. was not pleased and wanted another opinion. The foster mother was having to cope with little baby who was vomiting and very unhappy. M.S. is said to have persisted with Donna Jones requesting second opinion. This is only natural as breast feeding is way to bond with the baby and is generally recommended by the medical community. [73] M.S. was diligent in visiting twice weekly at the Ministry’s office. The fact that she asked to go to the park, mall or Tim Hortons is of no consequence other than indicating being confined in small room with baby for two hours can be tedious. [74] At trial, both parents testified they were living separate and had no intention of reuniting. They have said this before. However, M.S. confessed to seeing someone else and being six weeks pregnant. P.K. stated he had his own place and part-time job and he would like to have visiting rights. [75] The evidence presented by the Ministry and reviewed in some detail shows that M.S. has contacted and attended various programs since the spring of 2010. It is noted that most of the programming has occurred since January 2011. M.S.’s attendance has not been perfect but for the most part she called ahead when she was unable to attend. [76] accept the mother’s evidence and explanation of events from the past year. The witnesses for the Ministry confirm that the mother accessed various programs and participated in them. She did not attend all appointments but called ahead to cancel and/or reschedule. There was evidence from Lois Thomson and Lisa Berry that she did not always respect the group rule of one person talking at time. There was also the panty flag incident. The mother explained both incidents and am not prepared to conclude from such incidents that she is not able to care for her baby. The Ministry argues that these are just examples of the mother’s impulsivity and inability to focus. This coupled with all the phone calls, and questions of her worker, Donna Jones, along with sometimes carrying on conversation with the worker when having supervised visit, having an unrealistic career goal as related by Dr. Greenough all point to the fact that the situation meets the requirements of s.11(b) of the Act, according to the Ministry. [77] am satisfied that M.S. is making progress. She has explained her version of the problems encountered in some of the classes such as talking, joking around and the panty flag. acknowledge M.S. may be making light of these incidents. On the other hand, because of her history, am concerned the Ministry may be attaching too much weight to these episodes. Overall, conclude M.S. is addressing some issues as identified by the Ministry. She is now 28 years of age and with the passage of time she is maturing. She realizes that she needs to establish positive track record. [78] Dr. Greenough noted that the home was clean and tidy, adequately furnished and the cupboards stocked with proper food. The house was in neighbourhood not associated with lot of crime/vandalism. [79] The weaknesses that would be of the most concern and most relevant are #5 and #7 on my chart. In regards to the risk taking and impulsive behaviour finding, there is nothing more than this profile. There was no evidence presented for the Court to draw the inference that this type of behaviour would result in the baby being at risk. The “underwear flag” episode is not sufficient. [80] The other weakness was the mother’s lack of improvement since 2007 of her ability to verbalize parenting skills as measured by the Parent Awareness Skills Survey. [81] Again, Dr. Greenough gave an example of scenario he used with M.S. (the year old took toy of the year old). He concluded her answer did not demonstrate sufficient grasp of parenting skills. In my view, her answer was practical and appropriate solution to the matter that any parent might use. It is true the answer did not incorporate verbally the stages of child development and theory. However, the practical solution of speaking to each child at an age appropriate level incorporated some understanding of child development. M.S. did not over-react and clobber the year old. [82] In the recent case (June 16, 2011) of Saskatchewan (Minister of Social Services) v. D.D., T.D. and J.D., 2011 SKPC 76 (CanLII), 2011 SKPC 076, Judge B. Morgan states at para. 45: However, once the decision to apprehend is made, s. 17(3) also places positive statutory obligation upon the worker to return the child to his or her custodian if the officer no longer believes child would be at risk of incurring serious harm if returned. Thus, Ministry officials are required to reassess the situation on an ongoing basis (see M. (A.J.R.), Re, 2010 SKQB 371 (CanLII), para. 32). [83] Since the birth of T.J.E.S. the evidence was that the mother has made significant efforts as required by the Ministry. Although not perfect, she is moving in the right direction, and in my view making some considerable efforts. She is showing progress in attitude and actions. [84] The legislation requires the Court “to promote the well-being of children in need of protection” and “to determine the best interests of child”. have considered the factors enumerated in section 4, in light of the evidence. conclude that even if the apprehension was in accordance with the Act, would return the child to the mother pursuant to s. 37(1)(a). SUMMARY: [85] I have found that there was no basis for the initial apprehension. [86] Therefore, the Act requires that the child, T.J.E.S., shall be returned to the mother, M.S., who is a person who has a right to custody of the child pursuant to s. 36(3) of the Act. The “best interests of the child” is an important factor in all orders. am satisfied have jurisdiction to order the return be done following transition period. This shall be done on a transitional basis as determined by the Ministry. T.J.E.S. is to be completely returned to the mother, M.S., within 30 days of this order. P.K., the father, is not living with the mother and requested only access. Dated at Moose Jaw, Saskatchewan, this 28th day of July, 2011. M.T. Gordon,","The Ministry brought an application for a permanent order for the child pursuant to s. 37 of The Child and Family Services Act. The Minister apprehended the child at birth. The mother's three older children had been apprehended with two other older children placed with a person of sufficient interest and the third child was made a permanent ward of the Ministry. The Minister argued that given the extensive past history of the three older children, the Minister properly apprehended the infant and the permanency planning committee was of the opinion that there was no use putting off the inevitable permanent order for the child. The mother and the child's father had separated with the father supporting the mother having the child returned to her care and the father having access to the child. HELD: There was no basis for the initial apprehension as the child was not in need of protection. The child shall be returned to the mother who is a person who has a right of custody of the child pursuant to s. 36(3) of the Child and Family Services Act. This shall be done on a transitional basis as determined by the Ministry with the child to be completely returned to the mother within 30 days of this order. There was no evidence presented at trial regarding attempts by the Ministry to pursue any less intrusive alternatives and instead proceeded directly to the most severe position being a permanent order. The evidence did not justify the Ministry's position.",4_2011skpc127.txt
297,"J. 2004 SKQB 417 A.D. 1997 No. 687 J.C.R IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: BRENT GORDON MARZOLF and CATHY LYNN MARZOLF RESPONDENT R. Bradley Hunter for the Petitioner Marilyn L. Elliott for the Respondent JUDGMENT PRITCHARD J. October 21, 2004 [1] Each party has applied for a variation of the judgment granted by Madam Justice E.J. Gunn on April 30, 1999. The judgment incorporates the terms of an Interspousal Contract dated April 26, 1999 which provides for basic child support to be paid by Mr. Marzolf in the amount of $1,411.00 per month. The Interspousal Contract states that the specified child support is payable for the two children of the marriage and was calculated under the Guidelines based on Mr. Marzolf’s expected annual income of $110,000.00. [2] The parties separated in 1997 and shortly thereafter Mr. Marzolf moved to Calgary, Alberta. The 1999 judgment was registered in that province and through her Alberta solicitor, Ms. Marzolf commenced formal negotiations in November 2002 for retroactive upward variation of child support. Negotiations proceeded slowly and Mr. Marzolf ultimately countered with an application for variation to this court in March 2004. He seeks to have child support reduced for Kimberly born April 2, 1992 and entirely discontinued for Ashley born April 4, 1984. Mr. Marzolf acknowledges that he has unilaterally terminated support for Ashley on the basis that she is over 18 years of age and not in full time attendance at school. Ms. Marzolf has responded with her own application for variation to this court. She seeks an upward variation of ongoing child support for Kimberly on the basis that Mr. Marzolf’s income is significantly higher than $110,000.00. On the same basis she also seeks a retroactive variation of support paid for both girls. Variation of On-going Support for Kimberly [3] This matter is before the court largely because the parties cannot agree on the method of calculating Mr. Marzolf’s income for child support purposes. The parties agree that much of his income since separation has included significant amounts of non-recurring income in the form of capital gains, stock options and severance pay. Mr. Marzolf argues that these amounts should not be considered as part of his income for child support purposes. His argument rests solely on the fact that the amounts are non-recurring. In effect, he argues that this fact alone renders it unfair that they be included. [4] The relevant portions of the Guidelines provide: 16. Subject to sections 17 to 20, spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Customs and Revenue Agency and is adjusted in accordance with Schedule III. 17.(1) If the court is of the opinion that the determination of spouses’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of non-recurring amount during those years. (2) Where spouse has incurred non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections and of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate. [5] For the most part and in accordance with s. 16 of the Guidelines, payor’s income for child support purposes is determined based on total income (adjusted in accordance with Schedule III) as shown on his or her income tax return. The court can deviate from this only if it is satisfied that such amount would not represent the fairest determination of income. Mr. Marzolf has provided no compelling reason to exclude any of his non-recurring income. To the contrary, this is the fairest way of proceeding. review of Mr. Marzolf’s income since separation discloses that non-recurring income can realistically be anticipated in the future as it has constituted significant portion of his income in four of the last five years. [6] Mr. Marzolf’s income has fluctuated quite dramatically in each of the five years during which he has paid child support. As his income for any given year cannot be accurately estimated in advance, the fairest method of determining the appropriate level of child support payable for the calendar year 2004 is by calculating it based on his income during the previous year. [7] Mr. Marzolf’s line 150 income on his 2003 income tax return was $199,922.00. This includes $114,454.00 of non-recurring capital gain income from the sale of shares in Poplar Hill Resources. It does not include the non-taxable portion of that capital gain in the same amount. Pursuant to Clause of Schedule III referred to in s. 16 of the Guidelines, this non-taxable amount is to be included as an adjustment to income. This results in Mr. Marzolf’s 2003 income for child support purposes being $314,376.00. However, in examining documents provided by Mr. Marzolf regarding his previous year’s income, it is apparent that he incurred net capital losses in 2002 of $65,424.00. As later explained, have imputed $150,000.00 of income to Mr. Marzolf for the year 2002 despite this net capital loss and his line 150 income being only $2,410.00. It is therefore reasonable that this capital loss be deducted from the non-taxable portion of the capital gain he realized in 2003. This results in only $49,030.00 of the non-taxable portion of the 2003 capital gain being added to income for total income of $248,952.00. [8] Based on the Guidelines and an annual income of $248,952.00 realized in the Province of Alberta, child support of $1,186.00 would be payable on the first $150,000.00 of income and a further amount of $742.00 would be payable on the balance for total child support of $1,928.00. [9] The court has discretion as to whether the Guideline amount or some other amount should be used to calculate child support on income in excess of $150,000.00. This discretion is to be exercised having regard to the “conditions, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children”. [10] During the same year that Mr. Marzolf was enjoying income in excess of $248,000.00, Ms. Marzolf’s income for herself and the two children was only $24,345.25. It is self-evident that Mr. Marzolf has a substantially greater ability to provide financial support for Kimberly than does Ms. Marzolf. [11] Ms. Marzolf deposes that she has not had the resources to provide lifestyle for the children similar to the one they enjoyed prior to their parent’s separation. They have not been able to take vacations or participate in activities they might otherwise have chosen to experience. Approximately one year after the granting of the judgment sought to be varied Ms. Marzolf found she was unable to maintain the mortgage on her existing home which she sold and replaced with much smaller one acquired at purchase price of $70,000.00. Ms. Marzolf deposes that this new residence still requires lot of renovations and that it has been necessary for her to undertake many of them herself in order to save costs. [12] Although Mr. Marzolf’s income in 2003 was significantly higher than what he earned when the parties were together, it is apparent that since separation the children have not experienced the standard of living they enjoyed while the parties were together let alone what they could have experienced with reasonable percentage of their father’s significantly increased income. However, given the unpredictable, variable and to some degree speculative aspect of much of Mr. Marzolf’s post-separation income (including his 2003 income) it would be imprudent, even if the parties were together, to enhance Kimberley’s standard of living on the basis of child support calculated as percentage of all of her father’s 2003 income. Nevertheless, given Ms. Marzolf’s limited means, Kimberly does require significant support from her father just to raise her standard of living to level approaching what she might have expected if she were residing with him. In the circumstances, it is appropriate that one-half of the Guideline amount for Mr. Marzolf’s income in excess of $150,000.00 be payable as child support. Accordingly, effective January 1, 2004, Mr. Marzolf shall pay monthly child support for Kimberly of $1,557.00. Child Support for Ashley [13] Ashley was born April 4, 1984. She is currently 20 years of age and is no longer attending school. The parties agree that she is not now child within the meaning of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). They disagree as to when this occurred. [14] Ashley did not complete grade 12 until June 2003. In the normal course, she would have graduated in June 2002 but she was short some classes. The required classes were not available in September 2002 so she did not return to school until the new semester in January 2003. Mr. Marzolf takes the position that no child support was payable between July 1, 2002 and December 31, 2002 when Ashley was over 18 years of age and not in full-time attendance at school. The applicable provisions of the Divorce Act and the Guidelines read: The Divorce Act: 5.2(1) “child of the marriage” means child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; The Guidelines: 5.3(2) Child the age of majority or over (2) Unless otherwise provided under these Guidelines, where child to whom child support order relates is the age of majority or over, the amount of the child support order is (1) the amount determined by applying these Guidelines as if the child were under the age of majority; or (2) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [15] It is not uncommon for class required for graduation to only be available in one semester of each school year. Although Ashley was not in full-time attendance in school during the last six months of 2002, she had not yet completed her basic education and had every intention of doing so. In these circumstances, she was not in a position to withdraw from her parents’ support. find that child support for Ashley was properly payable without interruption to June 30, 2003. Given Ashley’s limited ability to earn income during her short hiatus from school and considering the disparity in the ability of each of her parents to contribute to her support, it is appropriate that support for Ashley be the amount determined by applying the Guidelines as if she were a child under the age of majority. The calculation of that amount from January 1, 2000 to June 30, 2003 shall be based on the following determinations of Mr. Marzolf’s income for such periods. Retroactive Variation [16] The objectives of the Guidelines are set forth in s.1 which states: 1. The objectives of these Guidelines are (a) to establish fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances. These objectives can only be achieved if the parents promptly and candidly disclose the information necessary to allow proper calculations and adjustments to child support to be made. Section 25(1) of the Guidelines speaks to this requirement for ongoing financial information: 25.(1) Every spouse against whom child support order has been made must, on the written request of the other spouse or the order assignee, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, provide that other spouse or the order assignee with (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents; ... [17] In this case, written request by Ms. Marzolf for Mr. Marzolf to provide copies of his income tax returns is not required because the parties incorporated positive obligation to exchange tax returns in their Interspousal Contract. Clause of the Contract deals with child support. The final paragraph of clause states: Commencing in the year 2000, both Brent and Cathy shall provide the other with copy of their prior year’s income tax return on or before May 30th in each year and any notice of assessment or reassessment either receives. [18] Consistent with the objectives of the Guidelines and implicit in the above quoted provision of the Interspousal Contract the parties must have understood that Mr. Marzolf’s child support obligation could change if his income changed. And yet, Mr. Marzolf argues that he was under no obligation to provide financial information to Ms. Marzolf on an annual basis because firstly, she did not request it and secondly, because she did not provide him with her financial information. [19] This position is simply not tenable. The Guidelines are meant to ensure that children of separated parents “continue to benefit from the financial means of both spouses after separation”. Mr. Marzolf has deliberately defeated this purpose and thereby cheated his children from the substantial financial support he could have and should have been providing them. He was the only one that knew the extent of his increased income and pursuant to the Interspousal Contract, he had an obligation to inform Ms. Marzolf by providing her with copies of his tax returns. [20] Ms. Marzolf began the legal process of seeking variation of child support in November 2002. It is not surprising that she did not start sooner. As deposed to by her and as is clearly evident from her disclosed income, she did not have the financial means to formally pursue Mr. Marzolf for additional child support. But even more significantly, Mr. Marzolf approached her in March of 2001 seeking reduction in child support on the basis that he was unemployed. Incredibly, this request was made just months after Mr. Marzolf experienced his best financial year ever with line 150 income in 2000 of $345,432.00. Although when he made the request to reduce child support he may not have known how much income he would actually realize in the year 2001, as it turned out, he had an even better year then in 2000 with line 150 income in 2001 of $391,421.00. His levels of income in 2000 and 2001 are in stark contrast to Ms. Marzolf’s income in those years of $7,634.00 and $10,842.00 respectively. [21] have reviewed A.W. v. D.C., 2000 SKQB 495 (CanLII), and English v. English, 2002 SKQB 293 (CanLII), both of which deal with the circumstances in which it is appropriate for the court to award retroactive variation of child support. The considerations are enumerated in these judgments and need not be repeated here. Suffice it to say that this is clearly a case where a retroactive variation is warranted. [22] The Interspousal Contract and judgment are each dated April 1999. No variation can be considered for that year. As earlier stated, given the various sources of Mr. Marzolf’s income and the significant annual fluctuations in his income, it is appropriate to use his previous year’s income as the basis for calculation of child support payable in the subsequent year. In 1999, Mr. Marzolf’s line 150 income was $316,222.00. For the period January 1, 2000 to December 31, 2000 his Guideline obligation for child support for two children is equal to $1,878.00 on the first $150,000.00 and $1,942.00 on the balance. Consistent with my determination regarding Mr. Marzolf’s child support obligations on income he received in 2003 in excess of $150,000.00, the Guideline calculations will similarly apply only to one-half of the excess over $150,000.00 received by him in 1999. This results in monthly child support for two children from January 1, 2000 to December 31, 2000 of $2,849.00. [23] In 2000, Mr. Marzolf’s line 150 income was $345,432.00. This did not include net non-taxable capital gain of $87,418.00 realized on the sale of shares in Blue Sky Resources and other smaller investments. Including this amount results in total income of $432.850.00. On the same basis as determined above, find Mr. Marzolf’s child support obligations for each month in 2001 to be $3,518.50. In 2001 Mr. Marzolf’s line 150 income was $391,421.00. Again, using the same analysis, his support obligation for two children for the period January 1, 2002 to December 31, 2002 is $3,290.50. [24] In 2002, Mr. Marzolf’s line 150 income was only $2,410.00. He indicates that he realized net capital loss in 2002 of $67,834.00 but he has not provided Ms. Marzolf or the court with particulars of the losses. The court can therefore not determine what cash was available to him in 2002 as result of the disposition of the capital assets that gave rise to such losses. can only speculate that the sale of the capital asset generated sufficient income for Mr. Marzolf to comfortably support himself. This appears to be reasonable speculation since after disposing of these capital assets and earning only $2,410.00 of income in 2002, Mr. Marzolf still managed to retain significant assets. His property statement sworn just two years later on June 30, 2004 shows net assets of $729,000.00. am satisfied that even though Mr. Marzolf’s 2002 line 150 income was only $2,410.00 he nevertheless had significantly more than that amount available to him. [25] Given the pattern of Mr. Marzolf’s income in the three preceding years, along with the fact that he disposed of capital assets in 2002 that generated undisclosed cash flow and some two years later he nevertheless retains significant net assets, am satisfied that it is reasonable to impute additional income to Mr. Marzolf for 2002. impute income of $150,000.00 for child support purposes. This amount is reasonable based not only on the above factors but also because for child support purposes Mr. Marzolf has only been required to include one-half of his income in excess of $150,000.00 in all other years that his income exceeded that threshold amount. This results in child support payable for two children from January 1, 2003 to June 30, 2003 of $1,878.00 per month and the sum of $1,186.00 for one child for each month during the balance of the year. [26] Based on and as result of the foregoing, the parties should be able to determine the shortfalls in child support paid by Mr. Marzolf during each year and calculate the amount now owing to Ms. Marzolf. Any mathematical errors in the computations made herein may be corrected with the agreement of the parties failing which they should be brought to my attention. [27] Ms. Marzolf is entitled to her costs of this application which are hereby set at $2,600.00 which costs shall be paid forthwith.","Each party has applied for a variation of the judgment granted by Gunn J. in April 1999. The judgment incorporates the terms of an Interspousal Contract dated April 1999 that provides for basic child support to be paid by the petitioner in the amount of $1,411 per month. The calculation of child support in the Interspousal Contract was based on the petitioner earning $110,000. The petitioner seeks to have child support reduced for Kimberly and discontinued for Ashley. The petitioner has unilaterally terminated support for Ashley on the basis that she is over 18 years of age and not in full time attendance at school. The respondent seeks an upward variation of ongoing child support for Kimberly on the basis that the petitioner's income is significantly higher than $110,000. She also seeks a retroactive variation of support paid for both girls. HELD: 1) The parties agree that much of the petitioner's income since the separation has included significant amounts of non-recurring income in the form of capital gains, stock options and severance pay. In accordance with s. 16 of the Guidelines, a payor's income for child support purposes is determined based on total income, adjusted in accordance with Schedule III, as shown on his or her income tax return. The petitioner has provided no compelling reason to exclude any of his non-recurring income. To the contrary, it is the fairest way of proceeding. The petitioner's income since separation discloses that non-recurring income can realistically be anticipated in the future, as it has constituted a significant portion of his income in four of the last five years. The fairest way of determining the appropriate level of child support is by calculating it based on his income during the previous year. 2) The petitioner's line 150 income on his 2003 income tax return was $199,922. This includes $114,454 of non-recurring capital gain income from the sale of shares in Poplar Hill Resources. It does not include the non-taxable portion of that capital gain in the same amount. Pursuant to Clause 6 of Schedule III referred to in s. 16 of the Guidelines, this non-taxable amount is to be included as an adjustment to income. This results in the petitioner's 2003 income for child support purposes being $314,376. However, in examining documents provided by the petitioner regarding his previous year's income, it is apparent that he incurred net capital losses in 2002 of $65,424. The Court imputed $150,000 of income to the petitioner for the year 2002 despite this net capital loss and his line 150 income being only $2,410. It is therefore reasonable that this capital loss be deducted from the non-taxable portion of the capital gain he realized in 2003. This results in only $49,030 of the non-taxable portion of the 2003 capital gain being added to income for total income of $248,952. Based on the Guidelines, child support of $1,928 would be payable for Kimberly.  3) During the same year that the petitioner was enjoying income in excess of $248,000, the respondent's income for herself and the two children was only $24,345. It is self-evident that the petitioner has a substantially greater ability to provide financial support for Kimberly than does the respondent. In the circumstances it is appropriate that one-half of the Guideline amount for the petitioner's income in excess of $150,000 be payable as child support. Effective January 1, 2004, the petitioner shall pay monthly child support for Kimberly of $1,557.  4) Ashley did not complete grade 12 until June 2003. In the normal course, she would have graduated in June 2002, but she was short some classes. The required classes were not available in September 2002 so she did not return to school until the new semester in January 2003. Although Ashley was not in full time attendance in school during the last six months of 2002, she had not yet completed her basic education and had every intention of doing so. She was not in a position to withdraw from her parent's support. Considering the disparity in the ability of each of her parent to contribute to her support, it is appropriate that support for Ashley be the amount determined by applying the Guidelines as if she were a child under the age of majority.  5) A written request by the respondent for the petitioner to provide copies of his income tax returns is not required because the parties incorporated a positive obligation to exchange tax returns in their Interspousal Contract. Consistent with the objectives of the Guidelines and implicit in the Interspousal Contract the parties must have understood that the petitioner's child support obligation could change if his income changed. 6) This is clearly a case where a retroactive variation is warranted. No variation can be considered for 1999, the year of the Interspousal Contract and the judgment. Given the various sources of the petitioner's income and the significant annual fluctuations in his income, it is appropriate to use his previous year's income as the basis for calculation of his child support payable in the subsequent year. The Court went on to calculate the petitioner's income and the child support payable for each year. 7) In 2002 the petitioner's line 150 income was only $2,410. Given the pattern of the petitioner's income in the three preceding years, along with the fact that he disposed of capital assets in 2003 that generated undisclosed cash flow, and, some 2 years later, he nevertheless retains significant net assets, the Court imputed additional income to the petitioner of $150,000 for child support purposes. 8) The respondent was awarded costs set at $2,600.",5_2004skqb417.txt
298,"nan 2004 SKQB 388 Q.B.C. A.D. 2003 No. 30 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HER MAJESTY THE QUEEN and WALLACE ELROY WATETCH Jefferey D. Kalmakoff for the Crown Darren W. Winegarden for the accused JUDGMENT SCHEIBEL J. September 24, 2004 [1] The accused is charged that he did: 1. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan ... endanger the life of Marie Louise Bear by attempting to strike her with a motor vehicle, thereby committing aggravated assault, contrary to Section 268 of the Criminal Code. 2. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan in committing an assault on Marie Louise Bear cause bodily harm to her, contrary to Section 267(b) of the Criminal Code. 3. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan operate a motor vehicle in a manner dangerous to the public, contrary to Section 249(1)(a) of the Criminal Code. 4. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan commit an assault on Darnell Noltcho, contrary to Section 266(a) of the Criminal Code. 5. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan commit an assault on Conlee Kahpeaysewat, contrary to Section 266(a) of the Criminal Code. [2] The accused and the complainant Marie Louise Bear have lived together for approximately 18 months in common law relationship in Fort Qu’Appelle, Saskatchewan. On the day in question they went out together to play bingo, then played pool, had few bottles of beer and then went to house party after purchasing six pack of beer and some marijuana. [3] The complainant, Bear, drove her truck, to the party and on arrival at the house party the accused asked Bear for her keys to the vehicle because he did not want her to drive because she had been drinking. [4] Prior to leaving the party Bear reached into the accused’s pocket to retrieve her keys—this was the beginning of the confrontation between the accused and Bear. Eventually the accused, who did not have driver’s license and had consumed about the same amount of alcohol, drove the complainant’s truck to her home. [5] The complainant Bear testified that, while she does not remember everything, the accused got upset with Bear. She claims when they arrived at her house she was scared of the accused and tried to leave in her truck. She stated that while she was attempting to start the truck the accused caught her, pulled her out of the truck, pushed her down twice and kicked her in the head. Both parties were pushing each other and the complainant states she was trying to defend herself from the blows of the accused. She claims she fell down and the accused fell on top of her. [6] During the course of events the complainant received numerous bruises, cut tongue, swollen face, and broken nose. She claims, after she had been struck, that she had no memory of the events and ended up at the hospital. [7] Darnell Noltcho is the 16 year old daughter of the complainant. She was living at Bear’s house with her 22 month old child. She went to bed about 2:00 a.m. and the accused and Bear were not home. At approximately 4:00 a.m. Darnell heard voices and got up. She saw the accused and Bear talking outside of the Bear residence and said it appeared that they were not getting along. She claims the accused was angry and that her mom was trying to talk with him. [8] According to Darnell, the accused and Bear came into the house and shortly after Bear was attempting to leave, the accused grabbed her by the wrist. She was able to get outside and was pursued by the accused. Darnell claims they were fighting and that the accused was choking Bear with both his hands on her neck. The struggle continued as Darnell went to the bedroom to wake her boyfriend Conlee Kahpeaysewat to get him to stop the fight. [9] When Darnell and Conlee came back to the kitchen Darnell saw her mom on the ground and not moving. She claims her mother was knocked out and had blood on her face and nose. She claims when she tried to assist her mom the accused told Darnell to leave her alone. [10] She claims the accused then got into the truck, backed it up and then started coming forward toward Darnell and Bear with the tires screeching. While Darnell was attempting to get her mother into the house her mom fell off the second step of the stairs leading to the back door and hit her head on the cement. She claims that her mother would have probably been run over if they had not moved. The truck smashed into the garage at the rear of the house. Darnell said the accused got out of the truck and that her mother was on her back and the accused walked toward her mother and kicked her hard in the head, like kick to soccer ball. [11] She testified that she told the accused to leave her mother alone and the accused asked her if she wanted to fight with him. The accused then pushed her in her jaw with his hands and she went inside the house to use the phone to call the police and she alleges the accused ripped the phone cord off and then left in Bear’s truck and she called the police on the cell phone. [12] In cross-examination Darnell admitted she did not remember some of the events of the evening and was uncertain about whether or not the accused was choking her mother. [13] After Darnell woke Conlee up they went to the kitchen window and Conlee testified he could hear the accused hitting something or someone and saw the accused’s hand go back and forth in swinging motion and concluded the accused was hitting the complainant Bear. He then saw the accused kick Bear when she was down. [14] When Conlee was standing on the back step he saw the accused get into the truck and back it up as far out as the street and then come forward toward the house where Bear was lying on her back. He said the accused backed up the truck and came forward more than once. He claims the truck’s engine was loud and the vehicle was going little faster than it should have been. After the vehicle missed Bear and Darnell it struck the garage causing considerable damage to it. The accused got out of the truck and once again kicked Bear while she was laying down. [15] He said that Darnell yelled at the accused and then he saw the accused push Darnell and when Conlee yelled at the accused the accused came at him and hit him on the cheek with closed fist. Conlee claims he backed into the house and fell into the closet and the accused came at him and started hitting him with his fist. He said Darnell was trying to call the police and when he got out of the closet the accused was holding the phone cord in his hands. [16] Conlee said that when Darnell was attempting to get her mother into the house that Bear fell face first onto the concrete driveway. [17] Conlee stated that he did see Bear fight back when the accused struck her and that neither he nor Darnell fought back when struck. [18] The accused admits both he and Bear were drinking and claims Bear had four to seven beer and that he consumed four or five. He also admits purchasing one gram of marijuana and that one joint was smoked. [19] The accused claims he grabbed Bear’s wrist when they arrived at her home to prevent her from driving because she wanted to leave and he thought she was too drunk to drive. He claims consensual fight broke out and that both fell to the ground. [20] He admits he was drunk and that he threw couple of kicks blindly at Bear. He claims that after Darnell told him to leave Bear alone, he walked to the truck to leave—he indicated the truck backed up and then came forward—he claims he thought the truck was in reverse when it went forward. He says he struck the garage and then panicked and thought of just getting out of there and got in the truck and left. [21] It is the position of the accused that there was consensual fight and that the injuries sustained by Bear were occasioned by her fall on the concrete and by Darnell stepping on Bear’s face when she was helping her mother get up and both fell back. [22] The accused claims he never touched Darnell or Conlee. [23] The onus on the Crown, in criminal trial, is to prove the guilt of the accused on each count beyond reasonable doubt, failing which the accused must be found not guilty. [24] In this case the accused has testified. Therefore, if believe the evidence of the accused, must acquit him. If, after careful consideration of all of the evidence am unable to decide who to believe, must acquit the accused. Even if do not believe the accused but am left in reasonable doubt by his evidence must acquit the accused. [25] If am not in doubt about the evidence must still ask myself whether am convinced beyond reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which accept. [26] In assessing the evidence it must be noted that while Bear and the accused had been drinking and smoking pot, neither Darnell nor Conlee had consumed alcohol and were asleep at the outset of the confrontation. Their evidence confirms, in large measure, that of Bear. Even though Darnell retracted some of her evidence during cross-examination, her evidence is consistent with the events as outlined by other evidence. [27] Conlee’s evidence was not seriously affected by cross-examination and is, for the most part, accepted as an accurate account of the events as they unfolded. [28] The accused’s evidence was seriously attacked on cross-examination and on several occasions gave evidence which differed substantially from his previous statement to the RCMP. He claims his memory is better now than it was on August 21, 2003 and that he was not given time to think when he gave the statement to the police. [29] did not find the evidence of the accused to be credible where it is in conflict with the evidence given by Bear, Darnell and Conlee. [30] His claim is that the injuries to Bear were accidental and the result of intervening events. There is no doubt that some of the bruises sustained by Bear may have resulted from her fall on the concrete driveway and some may have been occasioned by Darnell when she accidentally stepped on her mother’s face while attempting to get her up and into the house. However, close examination of the photographs in exhibit P-2 demonstrates whole series of bruises and cuts, the combination of which together with the evidence, points to kicks and blows inflicted by the accused. While some of the bruises may be attributed to Bear’s fall and by Darnell stepping on her face, not all of the bruises can be explained in this fashion. [31] With respect to Count No. that the accused did endanger the life of Bear by attempting to strike her with motor vehicle, there is evidence that the accused did drive the truck dangerously close to Bear and Darnell while Bear was laying on the driveway. There is evidence that the accused backed up the truck and came forward on more than one occasion and that the accused barely missed hitting Bear and Darnell. There is also the evidence of Laurel Brown who heard squealing tires and spoke of the driver of the truck hitting the gas and then the brakes several times. [32] Exhibit P-4, photograph No. shows what appears to be tire marks on the driveway which may be consistent with the evidence give by Brown, however there is no evidence which indicates when the marks got on the driveway and no proof that they were occasioned by the accused’s driving. Therefore, the evidence of tire marks on the driveway cannot be accepted as having any impact on this case nor is it suggested by the Crown that they should. [33] In order to convict the accused of this charge the Crown must prove both the mens rea and actus reus. The criminality of the misconduct lies mainly in the intention of the accused. I have strong suspicions that the accused did intend to strike Bear with the vehicle. However, I cannot convict on suspicion and I am left with a reasonable doubt about the intention of the accused. In my view, the Crown has failed to prove the guilt of the accused on this count to my satisfaction beyond reasonable doubt and must find the accused not guilty of Count No. 1. [34] With respect to Count No. 2, do not accept that there was consensual fight between the accused and Bear. There is no doubt that bodily harm was caused to Bear. The accused admits he slung Bear on the ground and that he got more aggressive and kicked Bear on two occasions. The evidence that the accused assaulted Bear and in doing so caused her bodily harm is overwhelming. Therefore, I find the accused guilty as charged on this count. [35] Count No. raises the issue of whether the accused operated motor vehicle in manner dangerous to the public. [36] Section 249(1) of the Criminal Code provides: 249(1) Every one commits an offence who operates (a) motor vehicle in manner which is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at that time is or might reasonably be expected to be at that place. [37] There is no doubt the truck is a motor vehicle and there is no doubt the accused was operating it. Similarly, there is no doubt that the accused drove the truck toward Bear who was lying on the concrete and Darnell who was assisting Bear. [38] It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was dangerous to the public. The offence requires a marked departure from prudent conduct. [39] Given the evidence which I accept, the accused operated the motor vehicle in a manner dangerous to the public and the Crown has proven each and every ingredient of this offence to my satisfaction beyond a reasonable doubt and I find the accused guilty of this charge. [40] accept the evidence of Darnell and that of Conlee with respect to Counts No. and of the indictment. Conversely do not accept the evidence of the accused that he did not strike both Darnell and Conlee. On the evidence, the Crown has proven the guilt of the accused to my satisfaction beyond a reasonable doubt on both Counts No. 4 and 5 and therefore I find the accused guilty as charged on those counts.","The accused was charged with aggravated assault contrary to s. 268 of the Criminal Code; assault causing bodily harm contrary to s. 267(b) of the Code; dangerous driving contrary to s. 249(1)(a) of the Code; and two counts of assault contrary to s. 266(a) of the Code. HELD: 1) On the charge that the accused endangered the life of the complainant by attempting to strike her with a motor vehicle, the Court had strong suspicions that the accused did intend to strike the complainant with the vehicle but could not convict. 2) There was no doubt that bodily harm was caused to the complainant. The accused admits he slung her on the ground and kicked her and, as a result, the court find the accused guilty of assault causing bodily harm. 3) There is no doubt that the accused was operating a truck and that he drove it toward the complainant, who was lying on the concrete, and her daughter. It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was dangerous to the public. The offence requires a marked departure from prudent conduct. The offence of dangerous driving was established and the accused was found guilty. 4) The accused was found guilty of two counts of assault.",e_2004skqb388.txt
299,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Force Construction Ltd. v. Campbell, 2008 NSSC 310 Date: 20081024 Docket: SH 213071 Registry: Halifax Between: Force Construction Limited Plaintiff/ Defendant by Counterclaim and Tammy Campbell Defendant/ Plaintiff by Counterclaim DECISION ON COSTS Judge: The Honourable Justice Kevin Coady Heard: March 3-7, 2008 April 2, 2008, in Halifax, Nova Scotia Written Submissions: September 8, 2008 September 29, 2008 Decision: October 24, 2008 Counsel: Cory Withrow, for the plaintiff Allen Fownes, for the defendant By the Court: [1] This trial was heard over seven days in early March and early April, 2008. The court issued 71 page decision on May 16, 2008. The last paragraph of the decision stated: will accept written submissions on costs if the parties request such relief. However I will state that this is one of those cases where there is no clear winner. Also, I find that both parties contributed to the circumstances that led to this trial. [2] Notwithstanding these words Force Construction Limited indicated that they wished to make submissions on the recovery of costs, disbursements and pre-judgment interest. [3] On September 8, 2008 received submissions from Ms. Campbell. She advances the position articulated by the court, that is, “that the parties should bear their own individual costs.” Alternatively she proposes set off approach. [4] On September 29, 2008 received submissions from Force Construction Limited. They point out that they made Rule 41A formal offer to settle on May 25, 2007 in the amount of $67,800 ($60,000 plus HST). This offer was not accepted by Ms. Campbell and she recovered $64,147.85 after trial. Additionally they argue that they were more successful than Ms. Campbell and that Ms. Campbell was the party most responsible for the necessity of the trial. Force Construction Limited seeks $10,045.00 in trial costs, $850.00 in previously awarded costs, $5,092.57 in disbursements and prejudgment interest of $10,643.24 for total of $26,630.81. [5] The question is whether my after trial perception should be disturbed as result of the above submissions. [6] found both parties to be hostile and aggressive towards each other. They were stubborn and not prepared to give an inch. observed their court reactions to the evidence and their disdain for each other. It was clear to me that they could not see the strengths in their opponents case or the weaknesses in their own. have no hesitation in saying that the only way this dispute could be resolved was by way of trial. [7] There is no clear winner in this case. In fact this is one of those cases where success and failure are shared almost equally. Ms. Campbell was successful on issues relating to the septic system, the in-floor radiant heating system, the laundry room drain, the outdoor drainage system, the heating system and various other smaller items. Force Construction Limited was successful on deficiencies, aspects of the septic system, exterior wall insulation and various other smaller items. Additionally the plaintiff was fully successful on the counterclaim. [8] There were problems associated with the construction of this home where both parties contributed materially. This was clearly the case with deficiencies. Force Construction Limited were often sloppy in their construction. Ms. Campbell refused to recognize proper deficiencies that should have been resolved pursuant to the building contract. There is also an element of this joint contribution in relation to the septic system. [9] The following are factors working against Force Construction Limited’s position on costs: The septic system installation brought Ms. Campbell to tears and have described it as “circus”. It was unwise for them to continue with the peat system when the conventional system proved unworkable. Force Construction Limited did not have the skills required to effectively install the peat system. This failing has effected the property from an aesthetic and future cost perspective. The in-floor heating system turned into disaster for both parties but it was Force Construction Limited that created this problem. am satisfied that they employed unskilled workers who were unable to follow installation instructions properly. The fact that the system extended outside of exterior walls and that nails were driven through piping supports this conclusion. The plaintiffs behaviour in relation to the laundry room is egregious and went long way to create distrust on the part of Ms. Campbell. They recognized that they had “missed it” during construction. They developed “thrown together” solution that did nothing other than to dupe the owner into thinking the problem was solved. The plaintiff accepted at least $39,000.00 in cash outside of the building contract. It was the parties dark little secret until everything fell apart. This fraudulent behaviour on the part of both contributed to the parties sense of mistrust and suspicion. [14] There are number of factors attaching to Ms. Campbell that, no doubt, led to her position that she would not seek costs. They are as follows: Ms. Campbell’s role in fraudulent cash payment that may have been as much as $59,000.00 Ms. Campbell caused the breach in this contract by not paying anything for the house construction notwithstanding she took possession. Ms. Campbell’s counterclaim was entirely unsuccessful because she had no evidence to support these claims. Ms. Campbell’s failure to allow the builder the contractual right to correct the deficiencies. Ms. Campbell advanced large and complex claim surrounding the installation of the levelwall insulation without supporting evidence. [20] In light of the above referenced factors, find that both parties contributed to the length of the trial, the complexities of the issues and the attitude of the parties leading up to, and during, the trial. [21] The only new factor contained in the plaintiff’s submissions is that they made Rule 41A offer to settle on May 25, 2007 in the amount of $60,000.00. This offer was not accepted and the plaintiff was awarded $64,147.85. On the basis of this result the plaintiff feels greater entitlement to costs generally and double costs after May 25, 2007. [22] Civil Procedure Rule 41A.09(1) states: 41A.09.(1) Unless ordered otherwise, where an offer to settle was made by plaintiff at least seven (7) days before the commencement of the trial or hearing of the proceeding and was not revoked or accepted prior to the commencement of the trial or hearing, and where that plaintiff obtains judgment as favourable or more favourable than the terms of the offer to settle, that plaintiff shall be entitled to party and party costs plus taxed disbursements to the date of the service of the offer to settle and thereafter to taxed disbursements and double the party and party costs. [23] Civil Procedure Rule 41A.11 states: 41A.11. Notwithstanding the provisions of this rule, the court, in exercising its discretion as to costs, may take into account any offer to settle made in writing, the date the offer to settle was served, the terms thereof and any other relevant matters. [24] The latter allows this court to consider or not consider an offer to settle in the exercise of its discretion as to costs. It is important that courts support Rule 41A offers when assessing costs post trial. However, in this particular case I have no confidence that any offer made by either the plaintiff or the defendant, short of 100% vindication, would have resolved this case in advance of trial. [25] The intent of Rule 41A is to induce settlements and avoid trials. There should be departure from the prima facie operation of the rule only where the interests of justice clearly require it. Bell Canada v. Olympia North Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 111 D.L.R. (4th) 589 (C.A.). Nonetheless the application of Rule 41A is discretionary matter and exercise my discretion, in this case, against factoring it into my overall assessment of costs. [26] Civil Procedure Rule 63.02 addresses costs generally: 63.02.(1) Notwithstanding the provisions of rule 63.03 to 63.15, the costs of any party, the amount thereof, the party by whom, or the fund or estate or portion of an estate out of which they are to be paid, are in the discretion of the court, and the court may, (a) award gross sum in lieu of, or in addition to any taxed costs; (b) allow percentage of the taxed costs, or allow taxed costs from or up to specific stage of proceeding; [E.62/9(4)] (c) direct whether or not any costs are to be set off. (2) The court in exercising its discretion as to costs may take into account, (a) any payment into court and the amount of the payment; (b) any offer of contribution. [27] The discretion referred to in this rule includes the decision not to award costs in certain circumstances. [28] In Orkin’s The Law of Costs (2nd ed) the exercise of discretion is discussed at page 2-11: The discretion is judicial one to be exercised according to the circumstances of each particular case and based upon material before the court. The discretion is that of the trial judge and its exercise is not to be referred or delegated; nor can it be fettered by any consent of the parties, even though great weight should be given to such consent. The principles that should be observed in exercising discretion as to costs have been defined as follows: First, the principle of indemnity is paramount consideration. Secondly, the courts must approach the matter on the basis that encourages settlement of all actions from the outset. Thirdly, the court must discourage actions and defences which are frivolous. Fourthly, the court must discourage unnecessary steps in the litigation. The view has been expressed that costs should not be imposed as matter of arbitrary or capricious practice by courts, but there should be consistency of pattern. [29] The author goes on to state that “a party’s conduct both before and during the litigation process as well as the degrees of success achieved are relevant to the exercise of the courts discretion as to costs”. have concluded that both parties conduct led to the need for this trial. have also found that success was mixed and it would be impossible to conclude that one was more successful that the other. [30] I exercise my discretion not to award costs and the parties will bear their own costs. This includes disbursements and pre judgment interest, something both parties had to endure. This was case with high settlement prospects but the parties were not really open to this kind of resolution.","Despite the court's finding of no clear winner and that both parties had contributed to the circumstances that led to the trial, the plaintiff sought costs on the basis that the defendant had refused its offer to settle. Each party will bear their own costs; the court had no confidence that any offer made by either party, short of 100 per cent vindication, could have resolved the case in advance of trial.",2008nssc310.txt
300,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 544 Date: 20121116 Docket: QBC 25 of 2008 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and ASHTON JOSEPH JAMES LAVALLEE AND RONALD DEVIN ZERR Counsel: Christopher D. White for the Crown Bobby P. Hrycan for the applicant, Ronald Devin Zerr Jeffrey W. Deagle for the accused, Ashton Joseph James Lavallee (appearing but not participating) DECISION ON SECOND STAGE O’CONNOR APPLICATION MADE BY RONALD DEVIN ZERR CHICOINE, J. November 16, 2012 BACKGROUND [1] On November 9, 2012, this Court directed the Crown to seek from the relevant police agencies or prosecution service the police reports and witness statements, including statements of the accused, in respect of two Crown witnesses, namely, the alleged victims of the aggravated assaults, Robert Lowenberger and Kelly Charbonneau, and in respect of particular offences for which these two individuals have previously been convicted (2012 SKQB 543 (CanLII)). I also directed the Crown to provide updated criminal records for each of Robert Lowenberger and Kelly Charbonneau. This information was to be delivered to the office of the local registrar at the Judicial Centre of Regina by 3:00 p.m. on Thursday, November 15, 2012, in sealed envelope so that it could be reviewed by myself as the trial judge to make all necessary determinations as to propriety of disclosure pursuant to the directives set forth in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411, [1995] S.C.J. No. 98 (QL), and as clarified in R. v. McNeil, 2009 SCC (CanLII), [2009] S.C.R. 66, including any conditions for their release to counsel for Mr. Zerr. [2] had also directed the Crown to inform Robert Lowenberger and Kelly Charbonneau that an order for disclosure had been made and invited all of the parties to make further submissions in writing with regard to the second stage of the O’Connor disclosure process, especially with regard to any conditions for release of any documents or the information they contain. [3] The Crown did file packet of documents with the court before the appointed time which it described in cover letter as follows: Information relating to the following charges for Robert Lowenberger: 1. RM 01038940 Documents relating to s. 266 charge, concluded April 29, 2003 (13 pages); 2. RA07018174 Documents relating to s. 254(5) charge, concluded July 10, 2007 (3 pages). Information relating to the following charges for Kelly Charbonneau: 3. RM99050865 Documents relating to two s. 267(b) charges, concluded February 7, 201 (10 pages); 4. RM02020716 Documents relating to s. 253(a) charge, concluded December 27, 2002 (6 pages); 5. RM01007839 Documents relating to s. 252(1) charge, concluded January 14, 2003 (11 pages); 6. RM02005189 Documents relating to s. 266 charge, concluded January 17, 2003 (7 pages); 7. RM03044518 Documents relating to s. 267(b) charge, concluded March 16, 2004 (16 pages); 8. RM04053781 Documents relating to s. 253(b) charge, concluded September 15, 2005; 9. RA06031410 Documents relating to s. 253(b) and s. 129(a) charges, concluded January 4, 2007 (18 pages); 10. RM07004188 Documents relating to s. 264.1(1)(a) charge, concluded February 9, 2007 (6 pages); 11. 2007-621834 Documents relating to s. 253(b) charge, concluded June 11, 2007 in Brandon, MB (3 pages). [4] note, and the Crown has now confirmed, that there were only 12 pages at tab of the packet, and not 18. This was typographical error. [5] The Crown has advised that Robert Lowenberger and Kelly Charbonneau have been informed that disclosure order was made concerning their criminal histories. The court has not received any submissions from these two individuals or any other parties in respect of the second stage of the O’Connor disclosure process or with regard to any conditions for release of any documents or the information they contain. PROCESS AT THE SECOND STAGE [6] In O’Connor, the Supreme Court provided the following list of factors for consideration in determining whether or not to order production to the accused (at para. 156): (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; [and] (5) the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question. [7] In McNeil, the Supreme Court stated that in most cases, useful starting point for courts in balancing the competing interests at the second stage of an O’Connor application will be to assess the true relevancy of the targeted record in the case against the accused. Once court has ascertained upon inspection that third party records are indeed relevant to the accused’s case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily performed. In effect, finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. The accused’s interest in obtaining disclosure for the purpose of making full answer and defence will, as general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused. [para. 20] [para. 39] [para. 42] DECISION [8] Having reviewed the records, and upon considering all of the factors referred to in the above-noted jurisprudence, I have decided to produce all 95 pages of documents to counsel for both of the accused, Ronald Devin Zerr and Ashton Joseph James Lavallee. Some of the documents have words, phrases or numbers that I have blacked out where the information had no probative value or where the privacy interest of the witness would have been unjustifiably affected. These include, for example, residence addresses and telephone numbers. have numbered all pages to correspond with the list provided by the Crown as described above such that the number starts with the tab under which the document was found and then the chronological number of the page. (For example, 5-2 is the second page under tab 5.) [9] Copies of these pages will be made available to counsel for the accused and to Crown counsel in sealed envelopes. The original packet of documents filed by the Crown will be retained by me until the trial is completed, including any possible appeals. [10] It is hereby ordered that the 95 pages of documents are being released under the following conditions: (a) Only counsel for the accused will have possession of these documents. He may review them with the accused and with any expert that he may consider calling as witness at the trial. (b) Crown counsel will receive copies of the same documents as are being released to counsel for the accused. Crown counsel may review the documents with the corresponding witness and with any expert that he may consider calling as witness at the trial. (c) Except for the purpose of providing copy to an expert witness, none of the documents may be photocopied unless with prior permission of the court, as for example, for the purpose of using any document at the trial and having sufficient copies for reference during examination or cross-examination of witness. (d) These documents are not to be used or referred to in any other court proceedings, whether civil or criminal. (e) Any person who sees these documents is not to disclose their contents to anyone not entitled to inspect them. (f) Upon completion of the trial and after the time for any appeal has expired, the documents shall be returned to the clerk of this Court in sealed envelope for delivery to me and to be destroyed. OTHER ISSUES [11] Counsel are reminded that this ruling concerns the issue of disclosure only. The manner in which the documents and the information they contain can be used in examination or cross-examination of the witnesses at trial has not been determined. J. G. A. Chicoine","The accused was charged with second degree murder and two counts of aggravated assault. The accused made an O'Connor application for third party records relating to the two surviving Crown witnesses. In particular, the accused sought disclosure of police reports, videotaped evidence, witness statements, warned statements regarding the multiple arrests and charges incurred by the victims and disclosure of their criminal records. In 2012 SKQB 543, the Court ordered production of the records. This decision deals with whether the documents should be produced to the accused. HELD: The documents were disclosed to the accused. The judge vetted the documents to black out words, phrases or numbers that have no probative value or where the privacy interest of the witness would have been unjustifiably affected.",5_2012skqb544.txt
301,"S.C.C. No. 02706 NOVA SCOTIA COURT OF APPEAL Jones, Hart and Chipman, JJ.A. BETWEEN: BRIAN LEE JARVIS and HER MAJESTY THE QUEEN Respondent Paul B. Scovil for the Appellant William D. Delaney for the Respondent Appeal Heard: March 31, 1993 Judgment Delivered: March 31, 1993 THE COURT: Appeal against conviction dismissed and appeal against sentence abandoned per oral reasons for judgment of Hart, J.A.; Jones and Chipman, JJ.A. concurring The reasons for judgment of the Court were delivered orally by: HART, J.A. The appellant, a young man in his early 20's, was convicted after a two and a half day trial before Judge Haliburton of the County Court of the offence of sexually touching a young girl under the age of 14 years contrary to s. 151 of the Criminal Code of Canada,R.S.C. 1985, c. C‑46. The first ground of appeal alleged that the trial judge was in error by permitting the complainant to testify behind a screen without first conducting a voir dire and by relying solely upon the representations of Crown counsel to the effect that she would be uncomfortable without a screen. Even if it could be said that the trial judge had improperly exercised his discretion under s. 482 (2.1) of the Code we cannot say that the fairness of the trial was in any way impaired and would find that no miscarriage of justice occurred. The second ground was that the trial judge permitted the complainant to read a statement she had given to the police to refresh her memory during cross‑examination. It was, however, the defence counsel who put the statement to her and who originally suggested that she read it over. We find no merit in this ground of appeal. The next two grounds of appeal allege that the trial judge interfered with the trial and created an impression of unfairness by posing questions to the complainant and another witness during the course of their testimony. reading of the transcript as whole, however, convinces us that no such unfairness resulted. The trial judge was the trier of fact and in many incidents it was necessary for him to obtain explanations of the evidence that had not been made clear during the direct and cross‑examination of counsel. Although excessive interference by judge with the development of the evidence by counsel should not be condoned, we cannot say that Judge Haliburton went beyond reasonable inquiries in this instance. We would therefore reject these grounds of appeal. The final ground of appeal alleges that the verdict was unreasonable and was not supported by the evidence. We have thoroughly reviewed the record of this trial and have considered the argument of defence counsel put before us and are convinced that there was evidence before the trial judge to reasonably support the conclusion that he reached. The complainant was under 14 years and no issue of consent arose. The appellant did not testify and the complainant described how he had in fact had intercourse with her under circumstances that would suggest it could well have been expected to take place. As directed by the Supreme Court of Canada in Yebes v. The Queen, (1987) 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417 we have re‑examined and re‑weighed the evidence and concluded that this appeal against conviction of the appellant must be dismissed. The appeal against sentence of six months has been abandoned. J.A. Concurred in: Jones, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA S.C.C. NO. IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: BRIAN LEE JARVIS versus HER MAJESTY THE QUEEN RESPONDENT PARTICULARS OF CONVICTION 1. Place of Conviction: Yarmouth, Nova Scotia 2. Name of Judge: The Honourable Charles E. Haliburton 3. Name of Court: The County Court for District Number 4. Name of Prosecutor at trial: Robert M. J. Prince 5. Name of Defence counsel at trial: Paul B. Scovil 6. Offence of which Appellant convicted: Sexual touching 7. Section of Criminal Code under which Appellant convicted: 151 8. Plea at trial: not guilty 9. Sentence imposed: six months incarceration 10. Date of conviction: March 13, 1992 11. Date of sentence: May 15, 1992 12. If Appellant in custody, place of incarceration: Yarmouth, Nova Scotia S.C.C. No. 02706 NOVA SCOTIA COURT OF APPEAL BETWEEN: BRIAN LEE JARVIS and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: HART, J.A. (orally)","The appellant was convicted of sexually touching a young girl who was under the age of 14. He contended the trial judge erred by permitting the complainant to testify behind a screen without first conducting a voir dire and by relying on Crown's submission the girl would be uncomfortable without the screen. As well, he argued the judge improperly permitted the complainant to read a statement given to the police, to refresh her memory during cross-examination. Dismissing the appeal, that the fairness of the trial was in no way impaired by use of the screen, and no miscarriage of justice occurred. The statement was given the complainant by defence counsel, who suggested she read v.  Allegations the trial judge interfered with the trial, thereby creating an impression of unfairness, were also dismissed as being without merit.",c_1993canlii5621.txt
302,"J. Q.B. A.D. 1988 No. 246 J.C.Y. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: KATHERINE ANNE FISHER and WAYNE STANLEY GERRARD A. Phillips, Q.C. for the petitioner M.J. Baumgartner for the respondent FIAT WILKINSON J. October 22, 1998 [1] This is an application to vary maintenance under TheFederal Child Support Guidelines [Divorce Act Regulations,SOR/97-175] in respect of two children, Jessilyn Jae GerrardFisher, born March 18, 1981 and Javan William Gerrard Fisher,born June 3, 1982. There are two issues:1. determination of income for the father, afarmer who has also been employed at theEsterhazy potash mine on a full-time basissince May of 1997; and2. whether the expenses of the eldest childattending Grade XII at Western ChristianCollege in Dauphin, Manitoba constituteextraordinary expenses for secondary schooleducation pursuant to s. 7(1)(d) of theGuidelines. [2] The mother currently earns $27,600 per annum from employment with computer consulting firm. The father`s income from 1995 to the current date is set out below. He made projections with respect to his 1998 farm income and expenses: Year Employment Unemployment Farm gross Farm net Total Income Insurance Income Income Income 1995 15,694 9,250 18,534 (2,369) (22,575) 1996 5,340 7,068 48,799 3,901 16,309 1997 20,654 59,629 (376) 20,396 1998 31,022 35,185 (21,664) (to July 15) (projected) [3] The father explains his reduced farm income as due to poor yields. He has no inventory of grain on hand and all his expenses of $56,849 are purportedly for the current crop year. At the mine, his hourly rate of pay for straight time is $20 per hour which includes $4.50 per hour production bonus which is not paid on overtime. He worked substantial overtime at the mine in 1998 but that ceased in July and the father says that mine production slows down in the fall and he anticipates being laid off in October. He says he has significant vehicle expenses for travelling 192 km (round trip) to the mine from his farm in Yorkton every workday, for 16 workdays per month. These expenses total $1,409.81 per month and include vehicle depreciation. He says these expenses were not deducted from income in 1997 but he has since received accounting advice and he believes some of these expenses may be deductible on an allocation of 1/3 to personal use, 1/3 to employment expenses and 1/3 to farm expenses. He says if he is laid off he might be entitled to some employment insurance benefits after the waiting period but his income in 1998 might reasonably be less than in 1997 given his anticipated farm losses. He says support should be determined based on his 1997 income. [4] The mother argues that the most reliable indicator of true income is the 1998 year because of the significantly higher amount he earned at the mine. She says that income should be determined by projecting his income at straight wages until October 15, 1998, thereby giving recognition to the possibility of lay-off and the reduction in overtime. Accordingly, she added to his year-to-date earnings the additional sum of $11,420 calculated at $20 per hour multiplied by 12 hours per day, multiplied by 16 days per month to arrive at projected employment income for 1998 of [5] As to farming expenses for 1998, the mother says that gas and repairs are overstated by $3,000 in comparison to the three previous taxation years. There are $2,000 in expenses for horse which is the step child`s pet. There are $3,633 in capital payments ($2,233 for machinery and $1,400 for land) which are claimed as operating expenses. If these are added back to income, the projected farm loss is reduced to $13,030.89 and the total adjusted income for the year would be $29,411. She argues there should be further adjustments to farm income for capital cost allowance claimed with 15 to 25 percent of the capital cost allowance being added back. [6] It has been stated in numerous cases that the objective under the Guidelines is to find the most reliable and the fairest indicator of income. In this situation there have been significant changes in the sources of income. But if the situation with respect to employment income improved in 1998 over 1997, it was the reverse in the farming situation with 1997 being significantly better year. I consider itfair and reasonable to take an average of the 1997 andprojected 1998 income. The preceding years are not significant because the father`s current employment at the mine commenced in May of 1997. [7] In determining the father`s 1998 income, the mother`s arguments are persuasive. make an adjustment in the calculations so that the hours of work over three months total 480 hours regular time (160 hours per month) at $20 per hour for total additional pay of $9,600. This results in projected income of $40,622 for 1998. [8] With respect to travelling expenses, it may well be that some portion is deductible. But the father received accounting advice and that should have been submitted in evidence to explain the basis for the deduction and to establish the actual amount qualifying for the deduction. In the absence of such evidence, and where no deduction has been made in the past, am not prepared to consider it. [9] With respect to farm expenses, the mother has set out reasonable basis for disallowing certain expenses. The claims for gas and repairs are significantly higher than in previous years and no explanation is offered. The capitalpayments for land and machinery, and the costs of the step-child`s pet should properly be excluded. [10] With respect to capital costs allowance, the father had previously rented equipment from his father and his 1996 return shows and expense of $4,000 for machine rental paid. In 1997 he acquired equipment of his own, including Chevrolet half-ton, GM Yukon, and one-third share in two other pieces of farm equipment, grain vac and Morris air seeder. Theacquisition of the equipment and the claiming of capital costallowance in these circumstances, in lieu of rentingequipment, is not patently unreasonable. [11] possible exception is the GM Yukon acquired in 1997 at cost of $43,175. For the purposes of s. 19(1)(g) of the Guidelines, an expense may be unreasonable because the acquisition of the item that generates the expense is unreasonable in all of the circumstances. In the father`s income bracket, and in the context of his obligation to support his children, the acquisition of $43,000 vehicle is an extravagance of significant proportions. Furthermore, his allocation of one-half the cost to farming use may be questionable given the distances travelled to and from the mine during the course of his employment. The acquisition of that vehicle gave rise to capital cost allowance claim of $1,833 in 1997 and at depreciation rate of 20 percent would have provided capital cost allowance claim of $1,650 in 1998. The farm income will be adjusted in 1997 and 1998 by adding back 25 percent of the capital cost allowance for this [12] The adjusted income for 1998 is: Employment 40,622.00 Farm (12,618.50) Total: 28,003.50 [13] The adjusted income for 1997 is $22,111. The average of the 1997 and 1998 income is $24,370. The Table amount for two children on gross annual income of $24,370 is $347 per [14] With respect to the extraordinary cost of post- secondary expenses, the mother says Jessilyn has been attending high school at Western Christian College in Dauphin, Manitoba. Her school fees are $7,000 per year and the members of the church congregation contributed $3,028. The information presented falls short of the standard the Court requires in advancing claim for extraordinary expenses. There are indications, in the only complete tax return the mother filed, that she claimed $205 for tuition fees and education amounts transferred from child in 1996. Pursuant to s. 7(3) of the Guidelines, the Court must take into account any tax benefits or credits relating to the claimed expense. Having regard tothe criteria in s. 7 of the Guidelines, there is no evidencewhy the child attends high school there, why the expense isnecessary in relation to the child`s best interests or whetherthe child has any means to contribute to the expense. Thataspect of the claim is refused, but with leave to return theissue to the Court with appropriate supporting materials. [15] In summary, the respondent whose gross annual incomeis determined to be $24,370 shall pay to the petitioner forthe support of the two children the Table amount of $347 permonth payable on the first day of September, 1998 and on thefirst day of each and every month thereafter until furtherorder. [16] There will be no order as to costs.","FIAT. An application to vary maintenance for two children under the Federal Child Supprt Guidelines. At issue were the determination of the father's income and whether the expenses of the eldest child attending Grade 12 in Manitoba constituted extaordinary expenses for secondary school education pursuant to s7(1)(d). The father's reduced farm income was explained as due to poor crop yields. He anticipated being laid off from his work at the mine in October. He claimed significant vehicle expenses for his travel to work. The mother contested many of his expenses as being overstated. HELD: The respondent's child support obligation was $347 per month. 1)It was fair and reasonable to take an average of the 1997 and projected 1998 income. The preceeding years were not significant because the father's current income at the mine commenced in May 1997. Travelling expenses would not be considered in the absence of the accounting advice to explain the basis for the deduction and to establish the actual amount and where no deduction has been made in the past. No explanation was offered for why the claims for gas and repairs were significantly higher than in previous years. The capital payments for land and machinery and the costs of the stepchild's horse were excluded. In the circumstances the acquisition of equipment and capital cost allowance, in lieu of renting, was not patently unreasonable. The farm income was adjusted in 1997 and 1998 by adding back 25 percent of the capital cost allowance for the new truck. The acquisition of a $43,000 vehicle was an extravagance given his income bracket and his obligation to support his children. His allocation of one-half its cost to farming was questionable given the distances tavelled during his employment at the mine. 2)There was no evidence why the child attended high school in Manitoba, why the expense was necessary in relation to the child's best interest and whether the child had any means to contribute. Leave was given to return the matter to the Court with the appropriate supporting materials.  3)No order as to costs.",c_1998canlii13533.txt
303,"J. PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF TERRY LOFSTROM, ADMINISTRATOR OF THE RESORT VILLAGE OF ECHO BAY Marc Alain TAILLON and Marianne TAILLON and Robert Brumpton FRASER and Darlene Marie FRASER JUDGMENT T.W. Ferris, PCJ A.L. BORYSKI; Schulman, Serne, Boryski and Gall, Saskatoon, SK FOR THE INFORMANT M.P. HUDEC; Lojek, Jones and Hudec, North Battleford, SK FOR THE DEFENDANTS THE ISSUE 1) The Defendants are charged with permitting a private building or facility, to wit: a boat house, to remain on public reserve lands contrary to both the provisions of Sec. 197 of The Planning and Development Act, 1983, and the Zoning Bylaws of the Resort Village of Echo Bay. 2) They didn’t deny it, although they did require the crown to prove it, as has been done. 3) They say the bylaws of the Resort Village are inapplicable and that, although their activities may constitute an offence under the provincial statute, the prosecution of it should be stayed as an abuse of the legal process, and a violation of their rights to be afforded “equal protection and equal benefit of the law without discrimination …” under Sec. 15 of the Canadian Charter of Rights and Freedoms. They say that is so because they have been singled out from among great number of offenders for prosecution for, as they see it, no good reason. THE CHARGES 4) The actual wording of the charges brought against the Defendant, Fraser, (the charges against Taillon’s are the same except as to legal description) is: “on or about the 30th day of June, 1992, at the Resort Village of Echo Bay, in the Province of Saskatchewan, being the owners of the buildings and land and bearing legal description as Lot 10, Block 10, Echo Bay, Saskatchewan, Plan 83B16092, did: 1. Contravene or refuse or neglect to comply with the zoning by-laws of the Resort Village of Echo Bay by permitting private building or facility, to wit: boathouse, to remain on public reserve land within the Resort Village of Echo Bay, contrary to Section 197 and section 221(1)(a)(ii) of The Planning and Development Act, 1983, S.S. 1983-84, c. P-13.1. 2. Contravene or refuse or neglect to comply with the provisions of The Planning and Development Act being chapter P-13.1 of the Statutes of Saskatchewan by permitting private building or facility, to wit: boathouse, to remain on public reserve land within the Resort Village of Echo Bay, Saskatchewan, contrary to Section 197 and section 221(1)(a)(ii) of the said Act.” THE FACTS The Situation Preceding Construction by Taillons 5) Some years ago the Provincial Government passed legislation requiring almost all subdividors of land to, as condition of being allowed to subdivide, in effect, make gift of ten per cent of the lands they intended to subdivide for residential purposes, or the money value thereof, to Her Majesty the Queen in right of the Province of Saskatchewan. 6) The lands so required to be gifted to the Province, or set aside, if you prefer, were designated as “public reserve” or, more recently, in some cases, as here, as “municipal reserve”. (I will use both terms interchangeably hereafter. In the event that it is necessary to amend the information to reflect the fact that the lands in question became “municipal reserve” after their transfer from the Province to the Municipality, an amendment to the wording of the charges to so describe them is hereby ordered.) 7) The uses to which such lands could be put were limited to those listed in Sec. 197 of The Planning and Development Act (hereinafter referred to as “the Act”) It says: “Public reserve or municipal reserve is required to only be used for: (a) public park or buffer strip; (b) public recreation area; (c) school purposes; (d) natural area; (e) public building or facility; (e.1) building or facility used and owned by charitable corporation as defined by The Non-Profit Corporations Act; (e.2) agricultural or horticultural uses; or (f) any other specific or general use that the minister may provide by regulation. 1983-84, c. P-13.1 s. 197; 1989-90, c. 51, s. 32.” 8) That list, of course, does not, in so many words, include boathouses, nor docks, firepits, sheds, and many other things that people like to build for use in conjunction with private cottages. 9) Neither does the only regulation made under subsec. (f), inasmuch as it says that: “A public reserve or municipal reserve may be used for any purpose that would facilitate the use of the reserve as public recreation area.” 10) Thus that regulation only expands Sec. 197(b), if anything, as it may well be that “facilitating use” would constitute use for one of the purposes specified. Sec. 221(1)(a)(ii) of the Act says that: “Every person who: (a) contravenes or refuses or neglects to comply with, fails to do any act or thing required to be done or suffers or permits any act or thing to be done in contravention of: (ii) any provision of any development plan, basic planning statement or zoning bylaw or any other bylaw, permit or regulation, enacted or made by the council, any approving authority or the minister, pursuant to this Act or pursuant to powers delegated by the minister; or 11) Clearly the intention was to provide lands for the benefit of the public at large, howevermuch subdividors, and those who purchase them, and believe that the price of their lots has been increased accordingly, think that it may have been done at their expense. 12) Prior to the enactment of that legislation, subdividors could, and did, offer “lakefront” lots for sale. They went to the high water mark. Many of the older lots at Echo Bay were created on that basis. 13) However, in the case of subdivisions created after the enactment of that legislation, including those in issue herein, cottage lots do not go to the high water mark. That is because the land that was required to be given to the Province as condition precedent to allowing subdivision was the land situate immediately behind the high water mark. Thus public reserve was created between the cottage lots and the high water mark. 14) Needless to say, many cottagers regard that land as the most desirable of all. They wish to own the land as close to the actual water as possible without intervening title holders, or uses, being permitted between them and the lake. That obviates them having to contend with others creating noise, or litter, or disturbing their privacy; or sharing their good fortune, if you prefer. 15) Although there are access walkways to such public reserves, between cottage lots, set aside on the plan of survey, unless one is familiar with the survey one would not even be likely to realize that public reserve exists, let alone realize how to access it from the landside without trespassing on cottage lots. 16) That is because diagrams of the plan of survey are not liable to be posted. Further, many public reserve lands have never been developed by governmental authorities. Many of them are in natural state. Many of them have been developed by the cottage owners immediately behind them to present the appearance that they are part of the cottage owner’s lot. That is the case at Echo Bay. 17) Moreover, at Echo Bay, old cottage lots, which go to the high water mark, exist, in some cases immediately beside newer ones which are behind public reserve which, as far as the appearances of the matter are concerned, one would take to be part of the private lot. 18) Without being possessed of plan of survey, and finding actual survey pins, one would be hard pressed to realize where private land stopped and public reserve started. 19) In great number of cases, where the area of public reserve immediately in front of individual cottage lots has been developed by the lot owner, trees, brush and rock have been cleared away. In many cases sand has been trucked in to make beaches. Often walkways, firepits, docks, retaining walls, sundecks, sheds, and boathouses have been constructed by various cabin owners over the years. Thus, as far as appearances are concerned, the public reserve in many areas looks as if it were private property, and it is used as such, in varying degree, by various cottage lot owners. There is nothing to suggest to any stranger that the land is really public reserve, let alone that he is entitled to use such facilities as have been constructed on it, if he wished to do so. 20) From the evidence heard, some cottage owners take the position that the public is perfectly entitled to use things they have constructed on public reserve, and that allowing such access makes their constructions on public reserve things that “facilitate the use of the reserve as public recreation area” and, thus, legal. That is so whether or not they see themselves as having made gift, intentionally or by operation of law, to the title holder of the reserve land of anything they affix to it. 21) Others take the position that just because they may be trespassers in erecting facility on public land does not give the public any right to utilize what they have built. They deny the public access completely, or limit public access. Presumably they would wish to sue, or prosecute, anyone, for example, who helped themselves to the use of their shed, let alone purported to take it away. 22) No doubt many of the cottagers feel that the creation of public reserves has not been of any real benefit to the public because the public doesn’t know they exist and because they would have not been developed but for the efforts of the cottagers behind them. Moreover, many would take the view that the developments they made on public reserves reduced fire hazards due to removal of deadfall and brush, and boating hazards, due to the removal of rocks, and increased public access by clearing walkways, and public enjoyment by creating beaches, keeping litter cleaned up, etc. Such arguments, of course, do not touch upon the legal right to do what has been done. They merely attempt to justify it. 23) In this case the registration of the plan of subdivision resulted in title to the public reserve in question being vested in the Province on October 25, 1983. It created public reserve in front of all cottage lots. 24) The provincial Department of Municipal Government was the agency designated to determine what activities fell within the list permitted by Sec. 197. 25) However, the Province had no effective policing mechanism to determine if anyone was violating Sec. 197, or otherwise infringing on the Province’s rights as titleholder, by trespass activities such as erecting structures without permission, whether or not such uses were within the list of permitted uses under Sec. 197. 26) Nonetheless, the Department took the position that the expense of maintaining the reserves was the responsibility of the municipality, despite the fact that the Province was the titleholder. One can imagine how anxious the local cottage owners ratepayers were to tax themselves for that purpose, let alone for policing, or prosecutorial, services to enforce the provisions of Sec. 197, or the government’s rights as landowner. 27) On January 31, 1991, an amendment to The Planning and Development Act was passed which allowed the municipalities to take title to the public reserves. For any that did so the Province had, thus, set up situation whereby it created public reserves in front of cottage lot owners, the very people most likely to see themselves as justified in encroaching on public reserves. Moreover, it passed responsibility to prosecute offenders to local councils, who are elected by those cottage owners, and required them to do it at the expense of their ratepayers the cottage owners themselves. In the event of widespread violations, great expense and controversy was predictable. The real question was whether any given council chose to act out of respect for law, or pressures to enforce Section 197, or not. 28) The Resort Village of Echo Bay took title, on July 6, 1992, at which time the land in issue became known as “municipal reserve”. 29) Lakes themselves, and the lands underlying the water, and the shoreland to the high water mark, are provincial property. Insofar as they constitute navigable waterways, they are subject to federal regulation as well. 30) Which provincial government department administers the foreshore, that is the area between the highwater mark and the actual water, varies from lake to lake depending on practicalities. In some places the foreshore might be administered by the Department of Agriculture, for example, if it is suitable for haying. In others it is, as here, administered by the Department of Parks and Renewable Resources. (The name of the Department has changed over the years, but will use that one.) The administering department might allow cottage owner to put in dock depending, for example, on whether or not it felt that would cause undue damage to fish breeding habitat. 31) However, the use that can be made of municipal reserves, as distinct from foreshore, is limited to the uses permitted under Sec. 197, whether or not they became municipal reserves, or remained public ones, and whether or not the government, or the municipality, or anyone, accepted the responsibility to police or prosecute violators. 32) It is, thus, questionable whether any municipality can validly enact bylaws purporting to deal with the uses to which public reserves may be put. Certainly do not see how municipality could purport to override the provisions of Sec. 197. It may be that a municipality might seek to even further restrict permitted uses on the strength of its rights as a land owner, but I do not see how it could have jurisdiction to allow uses not permitted by Sec. 197. deal with that issue later. only mention it now because it is the foundation of the defence argument that the charges against them for violating municipal bylaws cannot stand, and, because, chronologically, it is appropriate to do so, as the Municipality, on September 20, 1986, passed an interim zoning bylaw to control development until it could enact zoning bylaw. Further, it did enact zoning bylaw on June 20, 1987. That is the one under which the charges are laid. 33) In the result, at all times material hereto, if one wanted to get permission to build dock on the foreshore and into the water, one had to apply to the provincial department with jurisdiction over the foreshore which, in this case, was the Department of Parks and Renewable Resources, as that was the provincial agency representing the land owner, the Province. 34) If one wanted to continue the dock onto the public reserve, one had to apply to the Department of Municipal Affairs, which was the agency representing the landowner government for that land, as well as the enforcer, albeit with no staff to do so, of Sec. 197. 35) However, effective July 6, 1992, the Municipality became title holder. After that date one had to deal with the Municipality, instead of the Department, as it then became, as will appear, not just the land owner, but the enforcer of Sec. 197, as the Government took the view that it would not prosecute violators of Sec. 197. Thus the charges were laid with respect to that date. 36) Thus prior to July 6, 1992, if one wished to do anything on public reserve, as distinct from the foreshore, he had to have the permission of the Department of Municipal Affairs representing the government both as landowner and as enforcer of Sec. 197. That department would not be able to grant permission to use the land unless the proposed use was within Sec. 197. Even if the proposed use was within Sec. 197, it could, legally, still refuse permission, because, as representative of the owner, it did not wish to permit the intended use, even if it was on the list of permitted uses under Sec. 197, although, “politically”, it might not be liable to refuse. 37) After that date the Municipality stepped into that position. Moreover, it could be argued that after the enactment of the interim zoning bylaw in 1986, permission from the Municipality had to be obtained if their zoning bylaws did apply, in law, to public reserves. The Facts Underlying the Charges 38) Starting on the first weekend in August, 1986, Mr. and Mrs. Taillon built boathouse entirely on the public reserve in front of their cottage lot. 39) They did not seek permission from anyone. Mr. Taillon says that he had been told by the developer of the subdivision that he could treat the public reserve in front of his own lot as if it were an extension of his own lot. 40) He looked around at what so many of his neighbours had done on public reserve by way of building docks, sheds, walkways, steps, firepits, etc., and did what he perceived them to be doing. He built what he wanted on the public reserve. 41) His next door neighbour, Kenneth Zeah, complained, by letter dated August 5, 1986, to Jim Brickwell, Senior Planner of the Department of Municipal Affairs, that the Taillon’s had built on public reserve. 42) Mr. Zeah had known Mr. Taillon was going to do it. They had discussed it. Mr. Zeah says that he was told that the boathouse was only going to be certain height. He said Mr. Taillon built it higher and the result was to obstruct Mr. Zeah’s view of the lake more than he had anticipated. He prefers view of the natural scene without man-made objects of any kind blocking it. On seeing pictures of the view, one can sympathize. 43) Yet it is clear that if structure within the list permitted under Sec. 197 had been built on public reserve, by proper authority, he would have had no recourse. 44) In my view his complaint that it was on public reserve was not rooted nearly so much in any concern he had with improper use of public reserve, but in his desire to protect his view. 45) Indeed he had cleared trees, and built firepit, on the public reserve in front of his own lot without permission. 46) It was, in fact, primarily the view from “his” firepit, on the public reserve, that was blocked. 47) have no doubt that his complaint that the public reserve had been violated was simply the legal mechanism he utilized to try to preserve his view. Certainly that was what Councilman Thrasher took to be behind Mr. Zeah’s oral complaints. 48) Presumably the Taillon’s took the same view of it, and saw themselves as doing no more than other builders of sheds, boathouses, and etc. had done. Doubtless they would see the boathouse as little worse than firepit, and less of hazard. 49) do not, of course, accept that they would have believed that developer’s statement that they were entitled to use the reserve in front of their lots as if it were their own land was an accurate representation of the law. They had to know it was land that they did not own and that they would be trespassers if they built anything on it without permission. 50) have no doubt that they did not seek such permission for the same reason that many others apparently did not for fear it would be refused. They had to have thought that refusal would be probable because the provincial authorities would be entirely likely to see boathouse on public reserve as constituting private use of lands reserved for the use of the general public. 51) That would be so even if they were unaware that there was any law, such as Sec. 197, which listed the only permitted uses, let alone that boathouses were not on the list. 52) Thus arose the situation wherein the two neighbours quarrelled about the virtues of, and their legal right to get, their own way, as well as the benefits to the public, involved in their equally unauthorized uses of public land, with an eye to their respective self-interest. 53) For example, Mr. Zeah says the public can use his firepit, taking the view, no doubt, that that means that it does not constitute violation of Sec. 197. Yet he would be secure in the knowledge that the public are not likely to use it. Many people would not realize that it was on public property, let alone open for their use, and, in any event, would be reluctant to use it, even if they knew it was on public land, and that he purported not to object to their use of it. 54) The eventual result of that disagreement was this inquiry into whether the defendants’, not Mr. Zeah’s, activities, constituted violation of Sec. 197 and the Zoning Bylaw. The civil liabilities of the interested parties for trespass to public or municipal reserves are not directly in issue. 55) On receipt of Mr. Zeah’s complaint, Mr. Brickwell told Mr. Taillon he should stop work on the boathouse because it might have to be removed. He also referred the matter to the municipality, asking their help in settling it. 56) To my way of thinking, that was curious thing to do. 57) The Department ostensibly took the position that the Municipality was only responsible for maintenance on public reserves, not policing Sec. 197. Legally one wonders how the municipality could even have been visited with the responsibility for maintenance if the municipality had resisted it. Presumably, they simply didn’t do anything, and thus it could not be said that they had either accepted or declined the responsibility for maintenance. However, at that time it was clearly the Department that was responsible for policing, and enforcing, Sec. 197 and, moreover, it was the representative of the landowner with the responsibility to prevent trespass, whether or not any trespass constituted violation of Sec. 197. 58) Perhaps the request for municipal help was motivated, in part at least, by the lack of policing resources in the department, and the hope that local authorities could solve the enforcement problem more easily than outsiders. 59) Whatever the motivation, the request for municipal mediation clearly carried with it the risk that Mr. Zeah would be persuaded to drop his complaint but the boathouse would remain on public reserve. If that had, in fact, happened, having the municipality settle the matter would, of course, have come at the price of the continued existence of an ostensible violation of Sec. 197, and the Government’s rights as landowner, which would be used as precedent by other cottage owners to justify doing whatever they liked on public reserve. Thus, to me, it was curious step to take. 60) The mayor, Jim Christie, and several councillors met with the Zeah’s and Taillon’s. 61) It was agreed that the boathouse would remain, but would not be constructed as high as the Taillon’s had lately, at least, intended, that the roof would not be used for deck, and that no guardrail would be placed around it, so that it would be less likely to be used as deck. 62) Of course, none of the participants had any legal authority to authorize the construction of anything on public reserve, let alone condone any violation of Sec. 197 that might result from such construction, or regulate the specifications of any such construction. 63) Mr. Zeah and Mr. Taillon shook hands. 64) Doubtless Taillons thought that deal had been struck, which would mean that they would probably escape not only civil action, but any possible prosecution. 65) Certainly Councilman Thrasher was not in any doubt that that is what had occurred. As he put it, it was case of: “Not rattling the cage. There were developments all over the public reserve, including by the mayor, and everyone knew it.” 66) Nonetheless, Mr. Zeah reconsidered his position and, the next day, August 14, 1986, he wrote complaint to the mayor that the Taillon’s had violated the law. 67) On October 28, 1986, Mr. Brickwell wrote to the mayor, saying the departmental officials had inspected the site, and asked the council to write Taillon’s, requesting them to relocate the structure onto their own property. 68) Council apparently took the position that it had proceeded far enough down the path of assuming the Department’s responsibilities for enforcement of landowners’ rights, and statutory violations with respect to public reserve, because, they advised the Department, by letter dated November 24, 1986, that it wasn’t their land or their responsibility. 69) There was no evidence that, thereafter, the department officials did much of anything to get Taillon’s to comply with the law as they saw it. However, on June 12, 1987, Mr. Brickwell told Mr. Taillon that, although no decision had been reached as to what was going to be done, he wouldn’t put any more money into the project if it were his. 70) The apparent inaction by the Department might be explained, in part at least, because the Department was expecting the Government to pass legislative amendment, which it eventually did, by which the Municipality might be persuaded to accept title, and with it, the accompanying problems of enforcement, if not the costs of prosecution. 71) The municipality didn’t do much for some time either. No doubt that was because, according to the municipal clerk, the Municipality was of the view that its new zoning bylaws did not apply to public reserves and it was not, then, prepared to act under the possible authority of them. 72) According to the clerk, some time in 1989, Mr. Brickwell told council that the Government would be enacting legislation which would entitle them to become owners of the public reserves. That that occurred in 1989 was confirmed by Councillor Yahnke, who said that until they were informed that that legislation was coming, they viewed the problem as provincial responsibility. 73) Perhaps more pivital was the fact that in 1989 the Frasers stated construction of their boathouse. Presumably they were motivated, in part at least, by seeing that nothing was being done about Taillons’ or other people’s boathouses and other constructions. 74) No doubt council’s reaction to Frasers’ construction was based on fear of others doing the same in the future, as well as on the prospect that council was liable, in the near future, to inherit jurisdiction as landowner of public reserves. In any event, in June of 1989 council wrote Mr. Fraser, asking that he produce his authority to construct boathouse, and saying that if he did not do so they would issue stop work order. That, of course, would have to be under the purported authority of the zoning bylaws, which they did not really feel applied to public reserves. 75) The council also offered to meet with the Frasers about the matter in July. When they received no response, council did issue stop work order. 76) On October 21, 1989, council passed motion purporting to turn the matter of possible prosecution with respect to violations of Sec. 197 by three boathouse builders, being the instant defendants and third party, Foster, over to the R.C.M.P. 77) According to Mr. McCaig, the mayor at the time, the reason was the usual one, that the Province was the landowner, and enforcer of Sec. 197, and, accordingly, it was appropriate that the R.C.M.P. should assume the burden of prosecutions for violations of provincial statutes, not the Municipality, even though it had zoning bylaw by then. 78) The R.C.M.P. considered the matter for some time, but then declined to prosecute, doubtless, in some degree, because they saw goodly number of investigations and prosecutions awaiting them on the horizon. 79) On August 25, 1990, council resolved to “authorize Urban Affairs to look into boathouses and outlining course of action we can take to have them removed”. The use of the word “we” indicates that council had apparently come to the conclusion that it was not going to be able to persuade the Department of Urban Affairs, or the R.C.M.P., to enforce the Province’s rights as land owner, or the Province’s laws, so they would have to assume responsibility themselves, or see the situation deteriorate even further. 80) On December 12, 1990, Mr. Brickwell came to meeting of council and told them his department would not become involved. Council then passed resolution to authorize their solicitor to “proceed with action to have the boathouses removed”. 81) Mayor McCaig says council saw itself, at that time, as dealing with all boathouse violators that it was aware of, because it thought there were only three. The Defence pointed out that there was apparently fourth one and that, at one time, there had been fifth one. 82) On February 22, 1991, council’s solicitor wrote to the Defendants and the Foster’s, telling them that they had to remove their boathouses by June 30, 1991, or be prepared to face legal action. 83) The new owner of the Foster boathouse complied. 84) The defendants did not. 85) On November 16, 1991, council authorized their solicitor to proceed. 86) Notwithstanding that council was of the view that boathouses on public reserve were illegally situated, the Taillon boathouse was assessed for property taxes. In my view that is immaterial. The fact that it was done does not imply that council was giving approval to the location of the boathouse on public reserve. It merely means that council took the view that it was, by law, required to assess and tax all structures, whether they were legally constructed, or situated, or not, just as income tax authorities tax income which is illegally obtained. 87) The defendants took the position that if they were to be prosecuted, so should all other apparent violators. 88) They had their solicitor, Mr. Hudec, write to council, advising them that in their view there were some 119 other violators. 89) They also wrote to the ratepayers, on May 25, 1992, about the unfairness and the anticipated expense to all concerned. 90) Council replied with its own circular to the ratepayers on June 29, 1992. That newsletter set out council’s view of its legal rights and responsibilities with respect to public reserves. That newsletter, in fact, adopts the views as to the applicable law which council had received from John Nanson, the Principal Planner of the Community Planning Services Branch, in letter from him dated June 19, 1992. copy of it is annexed. 91) Council met with concerned ratepayers on July 18, 1992. Apparent infractions by others were discussed, most notably, perhaps, “Kinsmen Beach”, large beach, boathouse, and dock development undertaken on foreshore and public reserve, apparently financed by some ten private families for their personal use. 92) At that meeting the defendants asked council to lease the public reserve in front of their lots to them. Council refused, believing that the Act did not allow it. 93) Sec. 201(1) of the Act says that council may “lease or any part of the municipal reserve for any of the purposes provided in Sec. 197”. 94) Obviously, council was taking the view that the boathouse was private structure and, accordingly, they could not lease public reserve for such purpose, as it was not listed in Sec. 197. 95) Clearly at that stage both sides were long since fixed in their positions. Council continued to take the view that private use structures, such as boathouses, on public reserves violated Sec. 197, and that they must prosecute the builders of them if they were to fulfil their duty to uphold the law, discourage further violations, and ensure that public reserve lands were, in fact, open for use by the general public. 96) The defendants took the view that either everybody who was violating public reserves should be prosecuted, or nobody should be prosecuted. 97) In reply to that, council took the position that it was wiser to proceed with prosecutions only in respect of boathouses, initially, to see if the courts upheld their view of the law. If it was held that their views were correct, it would be time to consider prosecuting other apparent violators. If council’s views were upheld, it might not be necessary to prosecute many others at all, because many cottage owners, in apparent violation, might comply with the view of the law expressed by the court. Thus no expense in prosecution might be necessary in many cases. If the Court did not uphold the view of council as to the law, they should not be incurring the expense of prosecution of others in any event. 98) Council also took the view that prosecution in respect of boathouses instead of other apparent violators, such as shed owners, was appropriate because it was boathouses that had resulted in the complaint, and they were a very private use, analogous to sheds, whereas with respect to other uses, such as walkways, docks, firepits, etc., it could be argued did not violate Sec. 197, as they could at least be utilized by the public at large. 99) Although it was accepting that it had to assume responsibility for trying to get the boathouse builders prosecuted for fear of even more violations in the future, because neither the Department of Municipal Affairs, nor and the R.C.M.P. would pursue the matter, council nonetheless tried to avoid the expense of the actual prosecution by attempting to get the Department of Justice to finance it. They wrote to that Department, pointing out that the Department had done so in another prosecution against boathouse builder. 100) The Minister of Justice, Robert Mitchell, refused to do so, saying that that earlier prosecution by his department had been mistake and that: “It is the policy of public prosecutors to not become involved in bylaw prosecutions or other matters of local concern such as this matter.” 101) Thus council was left in the position where it either had to assume the expense itself, or do nothing. It decided to go ahead. 102) The clerk swore out the Informations on February 2, 1993. Thereafter the prosecution proceeded with normal dispatch, given its complexity. The Defence Evidence of Other Violations 103) The defendants feel so strongly that they have been unfairly singled out that they went to remarkable effort, and expense, to show the number of other apparent violations by other cottage owners. 104) They hired surveyor. He was called as witness and filed his plans showing encroachments on public reserve by others. They took great number of photographs. They even did video tape along the shoreline from boat. was informed that the expenses incurred by the middle of the trial were approaching $25,000 for the defence and some $10,000 less for the Municipality. Of course the defendants will get to bear portion of the prosecution expenses as ratepayers. 105) Needless to say, it is not the purpose of these proceedings to pass on whether others have violated Sec. 197, or trespassed against the landowners’ rights in public reserve. In most cases the other alleged violators were not heard from, even as witnesses. In no case has anyone been charged. 106) The purpose of that defence evidence was to show that council had reasonable grounds to conclude that there were great number of other apparent violators, but chose to do nothing about them, prosecuting only these defendants. 107) Thus that evidence was used to found an argument that these proceedings should be stayed as an abuse of the legal process, and as violation of the defendant’s rights to “equal protection and equal benefit of the law without discrimination” under Sec. 15 of the Charter. 108) The defendants see the selection of themselves as the only ones to be prosecuted out of such a large number of apparent violators, for no reason that they believe could be viewed as sufficient, as, in itself, unfair and discriminatory within the prohibition of Sec. 15 of the Charter. 109) What weight should be put on that argument depends, in part, on how many other apparent violations there are. That, in turn, depends upon the interpretation of Sec. 197, because, if one accepts the interpretation put on it by Mr. Nanson in his letter annexed hereto, there are fewer apparent violations than the defence believes exist. That, of course, is because Mr. Nanson basically takes the view that things on the public reserve, such as walkways, which can be used by the public at large, are not violations of Sec. 197. 110) The expressions of opinion as to the number of violations offered by the various witnesses have to be interpreted keeping that distinction in mind. 111) Councilman Thrasher, as indicated, said “there were developments all over the place on public reserve”. He admitted to clearing bush, and placing sand on public reserve in front of his cabin himself. He listed numerous developments he took to be in violation, including one by the then mayor, Jim Christie. 112) Mr. Christie said that it was not violation as it was on his own property, but agreed that he used public land for construction of steps and driveway. Like Councilman Thrasher, he has said that although the focus of the meeting between Zeah’s and Taillon’s was on the height of the boathouse, rather than the fact that it was on public reserve, it had been made clear to Taillons that the council had no authority to authorize construction of the boathouse at all. He said he told Fraser’s the same thing. 113) Bob Yahnke, councilman from 1984 to 1988, agreed that council’s position was that it had no jurisdiction with respect to public reserves. He held that view until 1989, at which time he understood the Government had given over “maintenance” of public reserves to the Municipality. He had no problem with things being on public reserves, so long as they were not kept for private use. 114) Peter Konchak, neighbour of Taillon’s, said he cleared and levelled, and moved in sand, with the authority of shoreland alteration permit. However, he said he put in steps, trenched in water line to the lake, and built crib on public reserve without permission. Under Sec. 204(1)(a)(iii) it is possible to obtain lawful permission for wells and water and sewer lines. Mr. Konchak said he got no complaint from his neighbour on the other side, Councilman McPique, whom he understood to draw water from the lake herself. 115) Gary Smullen testified that he put in railway ties to prevent erosion on public reserve on the advice of Mayor Christie, and that he built locked shed, and installed water pipe on public reserve. He agreed that his garage was also partially located on public reserve. He said he felt that the public reserve was an extension of his property, and that he intended to continue using it as such. He said that councilwoman McPique had cleared brush, and boulders, and deposited sand, as had Mayor McCaig. 116) Bob Barlow, councilman since 1993, testified that on “his” public reserve, he planted lawn and built firepit. He signed the petition instigated by the defendants to stop the prosecutions. It was his view that “99 percent” of the residents have done things to change the public reserve. He agreed that if “Kinsmen Beach” was being utilized for only private use, it would not be right. He also agreed that he was, personally, in effect, “bent” on letting people violate Sec. 197 like he was doing himself. 117) He advocated “grandfathering” non-conforming uses, i.e. violations of public reserve. 118) Grandfathering is not possible, among other reasons, because no bylaw could be lawful which purported to override the Act and Sec. 194.1 says: “(1) municipality may acquire the title to any land for the purpose of dedicating the land as municipal reserve. (2) Any land acquired pursuant to subsection (1) is municipal reserve and is subject to the provisions of the Part.” “This Part” includes Sec. 197. 119) Ida Ens testified that she had been told that Kinsmen Beach was private by one of the persons who had apparently developed it. She understood that she might be allowed to use it if she bought share, and that the developers of it had each spent several thousand dollars on the construction. 120) Caroline Taylor testified as to her embarrassment when she was told that “Kinsmen Beach” was private land, which she could not use, because ten families had put in ten thousand square feet of turf, dock, and boathouse, at their own expense. The selfproclaimed owners had erected sign to the effect that it was private beach. 121) The defendant, Robert Fraser, testified, as had others, that he had been told, with respect to the public reserve, by the developer, that he could “take the land and use it as your own”. 122) Like the others, he had to know that that would be trespass and could not have taken such statement to be legal opinion rather than just an expression as to what the of enforcement of the law might be. 123) He dug out the bank in the fall of 1988, and erected his boathouse in the spring of 1989, knowing that it was partially on public reserve. 124) When he found the note from council requesting that he produce his authority to do so, or stop work, he called Mr. Brickwell. That, however, was after he finished all of the construction except the door. He says Mr. Brickwell told him there were thousands of violations in the province and that enforcement was on the backburner, and that he need not be concerned. 125) If Mr. Brickwell said that, Mr. Fraser had to take it, not as indicating that he had any legal right to do what he was doing, but as just another opinion that he might escape prosecution. Inasmuch as he had just received notice from council that they were calling his authority to proceed into question, he should have wondered how accurate such an assessment of the likelihood of prosecution could be. Perhaps he just convinced himself that if there were violations all over it would be even more unfair for council to proceed and hoped they would see it that way. 126) He talked to Mayor Christie, who invited him to council. 127) He says he told council of other violations, but got the impression that they weren’t interested in proceeding to investigate, or let alone prosecute, others. 128) have no doubt that he had to know of many other apparent violations when he began his construction. In particular, he would have been aware of the controversy over Mr. Taillon’s right to proceed in the face of Mr. Zeah’s complaint. No doubt he realized that not much had apparently been done about prosecuting Mr. Taillon and made his decision to go ahead with that knowledge. However, clearly he was incurring the deliberate risk of prosecution because he thought it was slight risk. He continued to do so after getting the notice from council. No doubt he felt that it would be unfair to prosecute him, or only boat owners, but, presumably, he also felt it was unlikely that anyone would actually be prosecuted. 129) Whatever may have motivated him to go ahead is not material. What does matter is that he clearly chose to do so, without bothering to investigate his legal rights to do so, let alone obtain any permission to do so, at time when the Zeah-Taillon controversy was still in the air, and, after he began construction, in the face of the notice from council. 130) conclude that Mr. and Mrs. Fraser decided to build their boathouse because they thought the risks of being prosecuted were unlikely although, no doubt, they also had very strong views that prosecuting them, and not everyone else, is not fair. 131) That does not mean that they cannot, now, complain that they have been unfairly prosecuted. However, it does mean that they were not unwitting innocents who, for example, had been misled by persons in authority as to their legal rights. 132) He sees the action against him as “personal matter” and as “malicious prosecution”. He said that, in his eyes, “it doesn’t matter that the outcome is”, i.e. if he loses he will still be convinced that he is right as to what constitutes fairness. 133) He felt that Mr. Hudec’s written estimate of there being some other 119 violations was probably only one-half of the true number. He testified in support of his views in that regard, in great detail, with the aid of the maps, surveyors’ sketches, photographs, and the video taken from off shore. 134) The defendant, Mr. Taillon, also testified that he knew that he had built his boathouse on public reserve, when he did it in 1986, but the developer told him it was alright to use public reserve. 135) He also said Mr. Brickwell told him, after the meeting with the Zeah’s, that encroachments on public reserve were “not primary issue” in his office and that “nothing is going to happen”. 136) Mr. Brickwell testified that he did not recall saying that, but agreed that he probably had not demanded that the boathouse be removed because, as he saw the situation, his department did not police the public reserves. 137) Thus Mr. Taillon, like Mr. Fraser, started his construction relying on what the developer, who wanted to sell him lot, told him, and what he saw going on around him. 138) Also, like Frasers, his construction was effectively finished by the time he spoke to Mr. Brickwell, so whatever Mr. Brickwell told him cannot be taken as having affected his decision to proceed, in the first place, as distinct his decision to continue, and leave the construction in place. Of course, even on the versions of both Mr. Fraser and Mr. Taillon, the most that can be said is not that Mr. Brickwell told them what they were doing was legal, but, rather, that they might well get away with it. 139) Mr. Taillon also sees the prosecution of boathouse owners as unfair, given the great numbers of other violations that exist. As he puts it, “I’ll remove my boathouse when everyone else does the same”. 140) Thus, none of the defendants can rely on any defence of being misled as to their legal rights by persons in authority. Applications made by the defendants to the Department of Parks for permission to build things on the foreshore, which were based on misleading diagrams, are not material to the public reserve. They merely indicate desire to purport to have obtained permission. 141) The case turns, as they themselves say, on the question of whether it is an abuse of the legal process to prosecute them when so many other apparent violators have not been charged, or a case of violating their rights under Sec. 15 of the Charter. The Interpretation of Sec. 197 142) As indicated, the purpose of the Defence evidence as to the number of other violations was to indicate that they were so numerous that the prosecution of the defendants was an abuse of process and violation of Sec. 15 of the Charter. 143) How unfair it is to prosecute the defendants turns, in some degree, upon how many other apparent violators there were who were not prosecuted and why they have not, as yet, at least, been prosecuted. That, in turn, depends, in part, upon the interpretation of Sec. 197. As indicated, council adopted the view of Mr. Nanson in that regard, as set out in his letter hereunto annexed, and set it out in the circular they sent to the ratepayers. 144) The Defence says that Mr. Nanson has it wrong, that, actually, or ostensibly, allowing the public to use private construction, such as dock, shed, boathouse, firepit, etc., does not turn such private construction into “public building” or “public facility” under Sec. 197 or the regulation passed thereunder. 145) In my view the Defence is right. 146) To accept Mr. Nanson’s view implies that any private citizen can construct whatever he likes on public reserve and only be liable in trespass, for example, to an action for an injunction requiring him to remove whatever he built, but not to prosecution. That allows private citizens to determine what constitutes “public facility”. Any private citizen could decide, for example, that large windscreen, would be nice, regardless of what effects that may have in depriving the general public of any ability to utilize, or even walk across, the public reserve, and, regardless of whether the public authority which owned the land wanted such construction. 147) If that is proper interpretation of Sec. 197, it would leave the council in position that it would have to launch civil actions to effectuate removal of all private constructions. If that were the intention of legislation, no offence would have been created in the first place. The title holder would simply have been left with civil remedies. 148) In my view, the result of Mr. Nanson’s interpretation is that what use can be made of public reserve is left in the hands of private individuals, who will often act with an eye to their own self-interest. do not believe that it could have been the intention of the legislature to allow such chaotic situation. It would give rise to great number of disputes such as the present one. 149) As see it, the fact that the titleholder must be the Province or Municipality, and the very use of the word “public” in Sec. 197, indicate that the legislature intended that the decision as to what constitutes “public building” or “public facility”, etc. is, initially, to be made by public authority, such as the title holder in the case of municipalities, or the appropriate department in the case of lands owned by the Province, not every private citizen who cares to do something on public reserve that he chooses to say is beneficial to, or open to use by, the public, whether or not it may have every appearance of being primarily devoted to his self-interest. 150) An interpretation, which allows private citizens, be they adjacent cottage owners, or not, in effect, turns public reserve into private reserve that defeats the very objective of the legislation, which is to ensure that public reserve is used for the benefit of the public at large. 151) That, of course, does not mean that in the event to prosecution that the Court is bound to adopt the interpretation of the appropriate public authority. Public authorities, themselves, may, deliberately or by mistake, categorize things incorrectly as constituting “public facility”. However, it does mean that the initial decision as to what constitutes “public facility” is not to be made by private individual, but must be made by public authority. 152) am reinforced in my view, that such an interpretation must be contrary to the intent of the Act by the consideration that, when, as here, municipalities become title holders, they might take it upon themselves to authorize uses that did not come within Sec. 197. If they could not be prosecuted, there would be no remedy whatsoever, as they would certainly not bring civil action against themselves. 153) private individual is not entitled to do what he likes on public reserve with the result that it becomes “public facility” if he allows the general public to use it. It is not, in my view, “public facility” unless it is autorized to be built, or actually built, by the governmental agency that has the legal power to make such determinations with respect to the land in question, and, in fact, is intended to be, and is actually open for use by the general public, whenever it is open for use by anyone. 154) The result is to interpret Sec. 197 as if it said: “Public reserve or municipal reserve is required to only be used for ‘such of the following purposes as is authorized by the public authority having jurisdiction in that regard’ (addition mine) Alternatives to my Interpretation of Sec. 197 155) This interpretation is what is known as purposive one, in that it rests on my views as to the overall intention of the legislation. That approach is, in my view, the one favoured by the Supreme Court of Canada in its most recent decisions. 156) There are other principles of interpretation, which are often applied to penal statutes, which could lead to the contrary result. For example, there is principle that penal statutes are only to be applied against persons who clearly come within them. If it is not clear that person’s activities are prohibited, he is to be given the benefit of the doubt, and, thus, penal statutes are to be strictly construed. The idea is that people should not be convicted of offences, even regulatory offences, unless they clearly fall within them. People should not have to guess as to what activities constitute an offence. 157) If those are the appropriate principles to apply, rather than purposive approach, my view that no one has the right to do what they like in public reserve without authorization by public body is wrong. What constitutes “public facility”, on that approach, turns simply on whether it is left open for use by the public, as Mr. Nanson believes to be the law. If that is so, the results, for the purposes of this litigation, are two-fold. 158) Firstly, there are far fewer other violators than the defendants, and I, think there are. The result is that the council’s decision to prosecute only boathouse builders is therefore apparently less unfair. Thus, if Mr. Nanson’s view is correct, it counts against the defendants’ argument. The defendants can only say they are among, perhaps, dozens of apparent violators, rather than scores, if not hundreds. 159) Secondly, a restrictive interpretation does not give the defendants a defence to the charge in any event, as their boathouses are not open for use by the general public. Clearly they do not intend the general public to have access. They do intend to control who has access. They intend to retain ownership, of the building and its contents. They intend to authorize use of it by persons other than themselves only if they see fit to do so, not allow any public body to decide the matter, nor to allow the public at large to have access. Moreover, their very existence prevents the public from utilizing the public lands on which they are situate. 160) In short, they have constructed a private facility on a public reserve. That is not a permitted use under Sec. 197, even interpreting it as Mr. Nanson does, and, accordingly, their boathouses are illegal under Sec. 221(1)(a)(ii). 161) Thus under either approach to the interpretation of Sec. 197, the defendants must be found guilty unless the prosecution is stopped as an abuse of process, or because it violates Sec. 15 of the Charter. Was There an Abuse of the Legal Process? 162) Even if am wrong in concluding that nothing can be “public facility” within the meaning of Sec. 197, unless it is authorized by public agency, and that in holding that for things to properly be declared to be within Sec. 197, by public authority, they must also be open for the general use and benefit of the public at large, rather than kept for the use of private individuals, that error does not impact upon the number of violators that council perceived to have existed. It adopted Mr. Nanson’s opinion, in good faith, and, thus, made its decision to prosecute believing fewer private developments to be offensive than I, and the Defence, do. 163) When it decided to prosecute, the council cannot be said to have discriminated in favour of people that it thought were offenders in the face of the interpretation given by an appropriate governmental authority. Nor can it be said to have viewed the pool of prospective defendants as smaller than believe it to be out of male fides or self interest. am not prepared to say that the prosecution is “more unfair” because they did not interpret Sec. 197 as do, when they had an opinion to the contrary, on the theory that interpreting it as they did shows lack of diligence in ascertaining the law before deciding who to prosecute. 164) Thus, insofar as fairness in prosecuting turns on the size of the pool of prospective defendants, and the bona fides of council in viewing it as smaller than the defendants saw it to be, am not prepared to fault the council. On the contrary, have no doubt that council saw itself as prosecuting defendants whom they saw as committing as clear violation as any one, including builders of sheds. 165) They picked boathouse builders rather than shed builders, or any other class of violators, let alone all violators. Doubtless all boathouse builders see this as unfair and discriminatory, but it does not automatically follow that it was. On the contrary, as see it, the fact that they were picked out was, in large measure, result of the way events unfolded. 166) Mr. Zeah complained. There were no complaints against shed owners. One can say that it would have been fair to prosecute shed owners as well. Indeed it would. And, perhaps, that will come to pass. However, to have done so initially would have added to the expense to the ratepayers, materially, at no perceived benefit from the point of view of getting clarification of the law. decision on boathouses was as likely to lead to clarification as one against shed owners, and there were no complaints against them. 167) Council chose to run test case against the type of violations that had elicited complaint. One can say that it was unfair that others, particularly shed owners, were not prosecuted, but am not convinced that it was because council was motivated to proceed against boathouse owners for improper reasons. They had complaint upon which they felt they had legal duty to act. They wanted test case to determine their legal position. Test cases are common, and an entirely appropriate legal procedure, often promoted by the defence as well as the crown. Thus can see nothing “unfair” in the picking out of the defendants for prosecution, except in the sense that it can be said, as the defendants do, that it is “unfair” unless everyone is prosecuted, at whatever expense, even if it is likely that most violators will comply once the legal situation has been made clear. 168) Thus the question arises as to whether, because it would have been “fairer”, in that sense, to prosecute everyone, or at least those that council perceived, on the basis of Mr. Nanson’s advice, to be offenders, means that prosecuting only boathouse builders is an abuse of process. 169) When faced with the usual example that you do not have defence to speeding charge because the police have not prosecuted all speeders, Mr. Fraser made the point that the other violators in this scenario were not moving. 170) Although it is true that the selective prosecution here was not dictated by the circumstances of apprehension, it does not follow that selective prosecution, per se, is an abuse of process. Whether it does so depends on the circumstances. 171) Here there is no evidence that the defendants were selected for improper reasons, for example, that council wished to harm them in particular, individually, or as group, out of all possible offenders, or groups of offenders, because, for example, of personal animosity between councillors and the defendants. The mere fact that you have been selected for prosecution does not mean that you have right to demand that proceedings be stopped unless all other offenders are prosecuted, however easy, difficult, cheap, or expensive, or unnecessary that may be. The Legal Test for Abuse of Process 172) The defendants must show that they have been singled out unfairly, not just that they have been singled out. As it was put in v. Keyowski (1988) 1988 CanLII 74 (SCC), 40 C.C.C. (3d) 481, by Madam Justice Wilson, speaking for the Supreme Court, in case where the Crown sought to try defendant for third time, but there was no suggestion of misconduct or improper motive, said, stopping prosecutions for abuse of process is power that is only to be exercised in the “clearest of cases”. If it is to be done, the Defence must convince the Court that proceeding exceeded “the limits of the community sense of fair play”, and that the administration of justice is best served by stopping the prosecution. 173) Obviously, such phrases require value judgment by the court. Some may see in them change in position by the Supreme Court from its previous decision in v. Rourke (1977) 1977 CanLII 191 (SCC), 35 C.C.C. (2d) 129, wherein Mr. Justice Pigeon had said that there was no general discretion to stay proceedings because they were considered to be “oppressive”. 174) Perhaps the Alberta Court of Appeal took decisions such as Keyowski to indicate change from Rourke, inasmuch as it held in Kostuch (1993) 1992 ABCA 103 (CanLII), W.W.R., 696, that stay of proceedings is only available if the prosecution violates the community sense of fair play and decency, or it is case of oppressive or vexatious proceedings. At least, that is what the headnote says it held, as distinct from the report itself. Cf. v. Tabor (1993) 1993 CanLII 7782 (NL CA), 84 C.C.C. (3d) 449, where the Newfoundland Court of Appeal uses phrases such as “whether putting the accused on trial was ‘unfair’ or ‘fundamentally unjust’ as well as ‘oppressive and vexatious’ ”. 175) Such approaches might reflect the earlier decision of the Supreme Court of Canada in v. Jewitt (1985) 1985 CanLII 47 (SCC), 21 C.C.C. (3d), 7, wherein Mr. Justice Dickson reviewed the decision in Rourke, and subsequent decisions in the Supreme Court, and adopted the test set out by the Ontario Court of Appeal in v. Young that: “There is residual discretion in trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency, and to prevent the abuse of court’s process through oppressive or vexatious proceedings.” 176) Of course, one can take the view that if proceedings are “oppressive” or “vexatious”, they would violate “the community sense of fair play”, so it may be that it comes down to much the same thing, i.e. that proceedings are not to be stopped unless it is “the clearest of cases”, that “the community sense of fair and decency” has been violated. 177) am not aware of any case that holds that picking out defendants to prosecute from among possible pool of offenders, because one of their group has been the subject of complaint, even if the complaint is largely tinged by self-interest, for the purpose of ascertaining the legal position of all interested parties, violates “the community sense of fair play and decency”. 178) The defence relies most heavily on Regina v. Miles of Music Ltd. (1989) 1989 CanLII 255 (ON CA), 48 C.C.C. (3d), 96, decision of the Ontario Court of Appeal wherein Mr. Justice Krever said, at p. 106, that: “… the respondent must establish, on balance of probabilities, that the Crown has acted in an oppressive or vexatious manner, or, that the prosecution is offensive to the principles of fundamental justice and fair play. No case can fall within the category of the ‘clearest of cases’ unless it can be fairly said that the cause of the apparent unfairness complained of can be laid at the doorstep of the executive, that is to say, can be attributed to either the police or the crown or both.” 179) In that case it was held not to be so because the improprieties in issue there had resulted from the activities of an investigator for the private recording industry, although the result was that the defendant disk jockey had been selectively prosecuted for violation of The Copyright Act. Indeed he was the first person to be prosecuted for making and selling compilation cassette tapes. 180) In this case the defence suggests that council not only did not prosecute, but didn’t even bother to investigate whether other apparent offenders had violated public reserve, despite the defendants having brought to council’s attention evidence of apparent violations. 181) In the case of the fourth boathouse, it appears that the defendants are right in their suggestions that it was on public reserve, and that Mayor McCaig was wrong in his belief that it was not. In the case of the Kinsmen Beach boathouse, although the boathouse itself, as distinct from the other developments, is on public property, it is not on public reserve. Thus the builders of it were not amenable to prosecution under Sec. 197, if the prosecution was to be restricted to boathouse owners. 182) However, the individual rights or wrongs of any given case are not in issue. What is complained of is that council did not investigate, let alone prosecute, apparent violations brought to their attention by the defendants. That is so. They did not. However, having had the opportunity to watch Mayor McCaig give evidence, am satisfied that he is patently straightforward man. accept that his motive for failing to do so was not because he only wanted to prosecute the three boathouse owners he thought were violators and let the others get away with violations. It was because he, and council, honestly believed Mr. Nanson was right, and that even though there might be other violators they thought they had prosecuted all of the boathouse violators and did not intend to prosecute other violators at that stage. More diligence could only have resulted in adding one more apparent boathouse violator. While the failure to do that upsets the defendants, it was not done male fides, and the real complaint of the defendants was the decision to only proceed against boathouse owners. 183) accept that council proceeded as it did, not just because of the obvious honesty which thought Mayor McCaig exhibited when he denied suggestions of improper motives, but for additional reasons. 184) First, note that he is of the opinion that sheds are equally as violative of Sec. 197 as are boathouses and council has not prosecuted shed owners. The defendants see that as unfair to them, but do not. accept, as the mayor said, that council had not decided to only prosecute in respect of boathouses, but wished to ascertain the opinion of the court before deciding to proceed against others. 185) Council’s letter to the ratepayers of June 29, 1992 gives reasons for proceeding only with respect to “boathouses”. Whether or not others find these reasons convincing, accept that council saw them as reasonable, and that council was not just picking on boathouse owners. As the letter said, on page 3: “Boathouses often cause the greatest concern because they block people from walking around the shore of the lake, and impair the view of the lake from neighbouring properties.” 186) Next, noted that, in argument, defence counsel could only suggest that the defendants were being prosecuted “for whatever reason”. He could not suggest any male fides as to why council would have picked out boathouse owners to prosecute, nor point to any evidence of any ulterior motive that had motivated the prosecutions, such as existed in v. Miles of Music Ltd. 187) Similarly, there was no evidence that any individual councillor cast his individual ballot, or argued in council, or manipulated other council members so that they voted to prosecuted boathouse owners for improper reasons. Nor is there evidence that anyone else so motivated the councillors. 188) conclude that no improper motives existed, whether or not the defendants, or others, find the councillors’ reasons for deciding to proceed only against boathouse owners convincing. 189) Next, council had complaint, however motivated, from ratepayer, Mr. Zeah, on which they felt obliged to act, whether or not the government, or the police, would do so. No doubt they had pressure from some ratepayers who were worried about how such apparently illegal developments were multiplying, besides those who complained about Kinsmen Beach. 190) Mr. Fraser built his boathouse in the midst of the controversy. That must have been seen as putting council to the test of whether or not they were prepared to try to enforce the law. As Mayor McCaig put it, they couldn’t see their way to only proceeding against Taillons. Thus can see why council chose to proceed only against the three boathouse owners that seemed to them to be obviously in violation. The fact that they did not go against the fourth boathouse owner, when perhaps they should have, does not mean, in my view, that the defence has met the onus placed upon it by the case authorities. It is matter of being less than completely thorough, not matter of such significance that it, even with any other factors on the defence side of the coin, could be said to violate “the limits of community sense of fair play”. 191) note that, according to Mayor McCaig, part of council’s reasons were that “they did not feel that it was financially responsible to dig deeper hole than the one they were already digging”. 192) In my view, the defendants were not selected for prosecution for improper reasons, or even arbitrarily, or capriciously, or for “political” reasons but, because as Mayor McCaig put it, “if we lose, anyone can do anything”. Those are not the words of man indulging in selective prosecution because he “has it in” for boathouse owners or, indeed, only some boathouse owners, rather than shed owners and other possible violators. They are the words of man trying to find out what the law is, in order that council may fulfil its duty to uphold it, because of the pressures being created by various private developments. As he also said, “till we see this one through, we don’t know where we stand”. That, in my view, does accurately reflect his motive and that, in large measure, would also reflect the motive of other councillors. It does not constitute course of action that could be said to violate the community sense of fair play and decency. I find that council proceeded against the defendants it chose because it seemed sensible to them to do so, not because of any mala fides. It was matter of deciding where to draw the line, not of drawing one improperly. 193) Thus, in the end the Defence argument that there has been an abuse of process rests on the fact that nobody else was prosecuted, not on any male fides. 194) can understand why the defendants see themselves as having been unfairly selected for prosecution, but the fact that they see it that way does not make it so. Although “justice” may be said to be in the eye of the beholder, the value judgment as to what violates the community sense of fair play is not to be seen through the eyes of either side alone. 195) Next, defence counsel pointed out that various councillors, including those voting for prosecution, were, themselves, doing thing that might also constitute violations of Sec. 197. As he phrased it, they were “pointing the finger away from themselves”. The implication was, no doubt, that they had motive to prosecute others to avoid attention being focussed on themselves. However, the fact that one offender charges another does not, of itself, necessarily lead to any such conclusion. Policemen have been known to speed. That does not mean they should not be prosecuted. Nor does it provide any reason, in the absence of male fides, why prosecution they lodge against other speeders should not proceed. That is so whether or not they are ever charged themselves, or ever charged each other, least of all where they have legal opinion to the effect that their activities are legal, such as, for example, that it is legal to speed in the course of their duties if it should be necessary to do so. 196) note that many of the councillors who are alleged to have committed violations would not have seen themselves as having done so, given Mr. Nanson’s interpretation of Sec. 197. Moreover, the very fact that the instant defendants were prosecuted created strong possibility that their own activities would be well exposed to public scrutiny and possible prosecution. Thus, in my view, the fact that some councillors may have, wittingly or otherwise, breached Sec. 197, does not provide any reason to stop this prosecution. do not agree that this prosecution can be realistically seen as an attempt to divert attention from their own possible violations. 197) Next, defence counsel argued that the proceedings were abusive because council had laid charges for violation of its own bylaws when it did not really feel they were applicable. 198) agree with the defence position that the zoning bylaws are not applicable to public reserves. also accept that council thought that that was probably the case. Indeed they had the opinion of the department that it was so. However, if the council was going ahead with the prosecution in any event, it made sense to seek the opinion of the Court on the applicability of the bylaws, even if they thought that it would probably be held that the bylaw would not be applicable. 199) Further, it was not unreasonable to ask the Court for clarification as to whether the bylaw applied to cover the contingency that might find that Sec. 197 did not, or that proceedings under it should be halted because of delay by provincial officials. 200) Thus do not see the fact that one count was laid under the Zoning Bylaws as violating the community sense of fair play, etc. If am wrong in that regard, however, it merely means that one count should be stayed. Inasmuch as the defendants are not liable to be convicted on both in any event, there is no enhanced risk of punishment in the procedure adopted. 201) Insofar as the delay in proceedings might be said to constitute an abuse of process, find that the council, as distinct from the government, did not unreasonably delay. Council attempted, quite properly to my way of thinking, to get others to prosecute. That caused delay, but it was not unreasonable. As Mr. Fraser put it, the evidence of the violations continued. Moreover, delay did not prejudice the defendants in any event. On the contrary, they got to use their boathouses. 202) If I am wrong in concluding that the delay did not prejudice the defendants, the delay which I find to be unsatisfactorily explained was by that of the Department of Municipal Affairs, not the council. Their excuse for doing nothing was lack of staff. do not think that even the pre-charge delay by the Government founds an argument of abuse because it was to the advantage of the defendants. They wanted prosecution delayed forever. Thus do not see how they can categorize it as unfair now. 203) Insofar as the Charter gives right to trial within reasonable time, that applies after charge is laid. The delay by provincial officials was pre-charge delay, rather than post-charge delay. As such, it cannot, of itself, give rise to Charter remedy, although it might colour post-charge delay. However, in my view, there were no unreasonable post charge delays in this case, given its complexity. 204) At the end of the day, all that the defendants can complain of, in my view, is that they were the only ones selected for prosecution. They see their selection as unfair, but see it as result of circumstances. They will never be happy unless everyone else is prosecuted. However, they have no legal right to insist upon that, nor does the fact that it has not happened constitute, in the circumstances here, violation of the community’s sense of fair play, etc. The prosecution of them is no more unfair that the prosecution of any other apparent offender selected for test case. 205) am not aware of any law that says that the defendant, in test case or otherwise, has the right to have prosecution stopped until everyone else is prosecuted. It would not make sense to hold that that was the law. It may, after the test case, be unnecessary to prosecute anyone else. That may be so, not so much because everyone would immediately comply with the law as laid down by the Court, but, for example, because there might be change in the wording of Sec. 197, or, because the Municipality might be legally able to sell off the public reserve, or give it back to the Government, or runs out of money for prosecutions. 206) Thus it may be that defence counsel will prove correct in his prediction that others will never be prosecuted, even though the mayor indicates that others will very likely face prosecution. 207) However, even if after this prosecution council does not, for whatever reason, prosecute others, that does not mean that this prosecution should be stopped as being violative of the community sense of fair play, etc. There is no law that am aware of that says speculation on the likelihood of future prosecutions is to colour the fairness of the present one. 208) Thus, in my view, there is no reason to stay these proceedings on the grounds that they constitute an abuse of the legal process, least of all when the defendants, along with other apparent violators, deliberately took their chances on being prosecuted. Was There Violation of Sec. 15 Charter Rights? 209) Sec. 15(1) of the Charter says: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 210) assume, for the purposes of this decision, that Sec. 15 applies to administrative decisions that violate Sec. 15, as well as decisions by governments. Cf. v. Bob (1991) 88 Sk. R., 302, S.C.A. 211) further accept that defence counsel is correct in arguing that Sec. 15 is not limited to the enumerated types of discrimination. They are simply examples. Discrimination based on unlisted matters is also prohibited, for example, discrimination on the basis of lack of Canadian citizenship as in Law Society of British Columbia re: Andrews (1989) 1989 CanLII (SCC), W.W.R., 289, S.C.C. 212) However, it does not follow that Sec. 15 prohibits all types of discrimination. “Discrimination”, like “justice”, is in the eye of the beholder. The defendants see the prosecution of themselves as discrimination. Mr. Zeah probably sees the Taillons’ illegal actions as discriminating against his “right” to non-obstructed view. The question is what types of discrimination are contrary to Sec. 15. 213) The very nature of law is to discriminate. Criminal law discriminates against criminals. Pension legislation discriminates in favour of the elderly. Some Income Tax provisions discriminate in favour of some persons with an eye to encouraging job creation, etc. In my view Sec. 15 is directed against discrimination that is not acceptable to the prevailing mores, from time to time, of our society. It must be commonly accepted that it is the type of discrimination that is abhorent to the basic principles of our society, such as discrimination based on the listed matters, for no reason that can justify breach of such basic principles. Usually that means discrimination based on bigotry with regard to personal characteristics such as those enumerated. 214) I know of no decision that says that it is discrimination, contrary to Sec. 15, to pick out individuals to prosecute as a test case to ascertain the state of the law, where there is no evidence that it has been done on the basis of improper consideration such as personal characteristics. Thus, in the absence of any such evidence, do not see that selecting the defendants for prosecution engages Sec. 15. 215) Of course, Sec. 15 is not merely concerned with discrimination, but with “equal protection and equal benefit of the law”. However, once again, am not aware of any case which suggests that that means that one is entitled to have prosecution stopped until everyone else that appears to have violated the enactment is also prosecuted. For the reasons I’ve already given, that often would make little sense, even if it was, in the defendants’ eyes, “fair”. There is no law am aware of, to which the defendants can point and claim the “benefit” of, that says that nobody shall be prosecuted unless all apparent violators are prosecuted. 216) Similarly, there is no law that the defendants can point to, as having been violated, so as to deprive them of “equal protection of the law”, unless every apparent offender is prosecuted. 217) Moreover, it will be noted that the right is to “equal protection and benefit of the law without discrimination”. It is not right to equal benefit of the law, even if there was law saying that nobody can be prosecuted unless everyone is. There must be, in addition, showing of discrimination. In my view, there has been no showing of the type of discrimination prohibited by Sec. 15. 218) The defendants can complain that they were selected for prosecution, but they cannot show any discrimination in their selection except the mere fact that they were the only ones selected for prosecution thus far. In my view that does not violate Sec. 15. 219) They face the same risk of prosecution as other apparent offenders. The fact that the risk materialized in their case does not make their prosecution discriminatory. 220) Defence counsel argues the decision in Law Society of British Columbia v. Andrews is to be taken as in holding that the law is not to be allowed to have unequal impact because of irrelevant circumstances, such as lack of Canadian Citizenship being utilized to preclude someone from obtaining license to practise law. 221) doubt that the case is to be read that broadly, rather than simply holding that requiring citizenship as condition of practise discriminated against an identifiable group for unjustifiable, as distinct from irrelevant, reasons. Doubtless those who enacted the law may have felt that citizens might be more concerned to see the laws upheld than non-citizens, and thus do not agree with the holding of the court as to whether it was justifiable. But, at the end of the day, the law did discriminate against an identifiable group on the basis of legal characteristics. That is not an element in the present case. 222) Picking out boathouse builders rather than shed builders is not an example of discrimination of the type prohibited by Sec. 15, as I understand it and the case law. It is not case, like Andrews, where the defendants were denied right to practise their profession, or build what they liked, because of their personal characteristics or legal status, but case where they are chosen for prosecution for reasons that have nothing to do with such things. 223) Thus, in my view, Sec. 15 has not been violated and no stay of the proceedings should be granted on the view that it has been. 224) If am wrong in the conclusion that Sec. 15 has not been violated, would, in any event, decline to stay these proceedings, as do not see that picking these defendants for prosecution, for no apparent improper reasons, from pool of all possible defendants, for the purposes of test case, should result in so drastic remedy on the grounds that it is “appropriate and just”, as is required before relief can be given under Sec. 24 of the Charter. 225) It is true that the defendants here have gone to great trouble and expense to press their view that it is not fair to prosecute them unless everyone else is prosecuted. However, it does not follow that just because they have been selected form pool of possible defendants, that it is “appropriate and just” that the proceedings should be stopped. Whether the proceedings should be stopped cannot turn on how zealously one defends himself. It must turn on how “just” it is that proceedings be stopped. That is not to be seen only through the eyes of the defendant. 226) Thus, in my view, the proceedings should not be stayed, because there has been no violation of Sec. 15 and, if I am wrong in that regard, because, in any event, it is not “appropriate and just” that such a remedy be granted in the circumstances present here. DATED at the City of Prince Albert, in the Province of Saskatchewan, this 6th day of May, A.D. 1994. T.W. Ferris, Provincial Court Judge","The defendants permitted a private building to remain on public reserve lands contrary to s. 197 of The Planning and Development Act, 1983 and the zoning bylaws of the Resort Village of Echo Bay. They contended the bylaws were inapplicable. They conceded the activities may be an offence under the provincial statute, but submitted the selective prosecution should be stayed as an abuse of the legal process, and a violation of their right to 'equal protection and equal benefit of the law without discrimination' under s. 15 of the Charter. Legislation required 10% of land intended for subdivision to be given to the province. This land was designated as 'public reserve', and its use was limited by s. 197 of The Planning and Development Act, 1983. Most public reserves were not developed by the government, but rather by cottage owners. Some cottage owners asserted the public was able to use the construction on public reserve, and allowing such access made such construction things that 'facilitate the use of the reserve as a public recreation area' under s. 197(f) and were legal. In Echo Bay, the subdivision plan created a public reserve in front of cottage lots, vested in the province on October 25, 1983. The provincial Department of Municipal Government ('Department') was to determine what fell within s. 197. The province had no policing mechanism for violations. The Department acted as if maintaining the reserves was the municipality's responsibility, even though the province held title. In August 1986, Mr. and Mrs. Taillon built a boathouse on public reserve. They did not seek permission, as their realtor said they could treat the land as part of their lot. Their neighbour Mr. Zeah complained to Mr. Brickwell, the Senior Planner of the Department. This resulted in an enquiry into if the defendant's activities violated s. 197 or the municipal zoning bylaw. On October 28, 1986, Mr. Brickwell told the mayor that Department officials inspected the site and asked council to request the Taillons remove the structure. Council advised the Department on November 24, 1986 that it was not their land or responsibility. Mr. Brickwell informed council of proposed legislative amendments that would give title and enforcement responsibilities to municipalities. In June 1989, council asked Mr. Fraser to produce authority to construct his boathouse and if not, they would issue a stop work order under the zoning bylaws, even though they believed they did not apply to public reserves. Council was trying to avoid future problems once they heard of the amendments. They received no response and issued an order. Mr. Fraser then contacted Mr. Brickwell who told him there were numerous violations, but enforcement was lacking. Mr. Brickwell said he did not demand the boathouse be removed because, in his view, his Department did not police public reserves. On October 21, 1989, council passed a motion to turn the prosecution of violations of s. 197 over to the RCMP. The province was the landowner and enforcer of the Act, so it was appropriate for the RCMP to assume prosecution. The RCMP declined, and Mr. Brickwell informed council his Department would not act. On January 31, 1991, an amendment to The Planning and Development Act passed which allowed municipalities to take title and passed responsibility for prosecuting offenders to local councils. Echo Bay took title on July 6, 1992. On February 21, 1991, council's solicitor requested the defendants and the Fosters to remove their boathouses by June 31, 1991. The Fosters complied, but the defendants did not. On November 16, 1991, council proceeded with the action. Although council believed the boathouses were illegal, the Taillon boathouse was assessed for property taxes. Council believed they must prosecute offenders to fulfill their duty to uphold the law, discourage further violations, and ensure public reserve lands were open for public use. The defendants believed either none or all violators should be prosecuted. Council stated it was wiser to prosecute only boathouses to obtain the court's opinion. If council was correct, it may not be necessary to prosecute others because they might comply with the law as expressed by the court. If the court did not agree, council should not incur any further expense. Council asserted prosecution of boathouse owners was appropriate as boathouses caused the complaint, and they were clearly private. The defendants view their selection for prosecution out of a numerous violators as unfair and discriminatory within the prohibition of s. 15 of the Charter. HELD: A municipality may further restrict uses of reserve land, but it cannot allow uses not permitted by s. 197. Taxing the boathouse was immaterial and did not imply approval. The defendants were not misled as to their legal rights by a person in authority. The Taillons could not have believed the opinion of the realtor; they knew they did not own the land. Mr. Brickwell's comment that there were numerous violations being ignored could not be taken to mean the defendants were able to build on public reserve. It was an opinion that they might escape prosecution. The case turned on whether it was an abuse of the legal process to prosecute the defendants when other violators were ignored or a case of violating their rights under s. 15 of the Charter. How unfair it was depended on how many violators were overlooked which turned on the reading of s. 197. John Nanson, the Principal Planner of the Community Planning Services Branch, believed things on public reserve available to the public were not violations of s. 197. The court did not accept this view as it allowed citizens to determine what constituted a 'public facility' and required council to launch civil actions to remove private construction. If this was intended, no offence would be created in the first place, and the titleholder would just be left with civil remedies. An interpretation which allowed private citizens to effectively turn public reserve into private land defeated the legislation's objective. The fact that the titleholder was the province or a municipality and the use of the word public indicated the legislature wanted the government authority to decide what constituted a public facility. It cannot be public unless it was authorized or actually built by the government authority and was open for public use at all times. If the legislation was interpreted as Mr. Nanson suggested, then there were fewer violators. This made council's decision to prosecute only boathouses less unfair, and it did not give the defendants a defence as the boathouses were not open for public use. They constructed a private building on public reserve contrary to s. 197, therefore the boathouses were illegal under s. 221(1)(a)(ii) of the Act. The defendants were guilty unless prosecution was stayed as an abuse of process or because it violated s. 15 of the Charter. Council prosecuted defendants whom they saw as committing clear violations. To prosecute all violators initially would add expense at no benefit. A decision on boathouses was likely to lead to the desired clarification of the law. They had a complaint upon which they had a duty to act and wanted a test case to determine the legal position. Selective prosecution, per se, is not an abuse of process; rather it depends on the circumstances. The defendants must show they were singled out unfairly, not just that they were singled out. There was no such evidence. Stopping prosecutions for abuse of process is a power only to be used in the 'clearest of cases' (R. v. Keyowski). The defence must show that proceeding exceeds 'the limits of the community sense of fair play' and the administration of justice is best served by stopping the prosecution. In R. v. Rourke, the SCC said there was no general discretion to stay proceedings because they were considered 'oppressive'. In R. v. Jewitt, the SCC adopted the test from R. v. Young that 'there is a residual discretion in a trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency, and to prevent the abuse of court's process through oppressive or vexatious proceedings'. Picking out defendants to prosecute from a pool of offenders to ascertain the legal position of the parties because one of their group has been the subject of a complaint did not violate 'the community sense of fair play and decency'. The defence relied on Regina v. Miles of Music Ltd. where the court said that 'no cause can fall within the category of the æclearest of cases' unless it can be fairly said that the cause of the apparent unfairness complained of can be à attributed to either the police or the Crown or both'. The defence said council not only did not prosecute, but did not investigate whether others were in violation. The court acknowledged this was so, but accepted the motivation was that council believed Mr. Nanson, and they did not currently intend to prosecute all violators. The defendant's real complaint was the decision to only prosecute boathouse owners. Council was trying to ascertain the law, so they could fulfill their duty to uphold it. The court found council proceeded against the defendants because it seemed sensible and financially responsible to do so, not because of any male fides. The municipal bylaws were not applicable to public reserves, but it made sense to seek the court's opinion on their applicability since council was going ahead with the action. The fact that one count was laid under the bylaws did not violate the community sense of fair play, but if it did, this would mean that count should be stayed. Council rightly attempted to get others to prosecute which caused a reasonable delay and did not prejudice the defendants. Any unsatisfactory delay was caused by the Department and not council. The Charter gives a right to a trial within a reasonable time, but this applies after a charge is laid. The delay by the province occurred pre-charge. There was no unreasonable post-charge delay or abuse of the legal process. Section 15 of the Charter is not limited to the enumerated types of discrimination, but it does not prohibit all discrimination. It must be commonly accepted discrimination abhorrent to the basic principles of society with no reason that justifies a breach of such principles. It was not discrimination contrary to s. 15 to select individuals to prosecute as a test case where it was not done for improper reasons.  'Equal protection and equal benefit of the law' did not mean one was entitled to have prosecution stopped until all violators were prosecuted. Picking out boathouse builders was not an example of discrimination prohibited by s. 15. The defence argued the law was not allowed to have unequal impact because of irrelevant circumstances (Law Society of British Columbia v. Andrews). This case should not be read so broadly. In the court's view, the proceedings should not be stayed because there was no violation of s. 15, and if the court was wrong, it was not 'appropriate and just' that such a remedy be granted, as required for relief under s. 24 of the Charter.",9_1994canlii7210.txt
304,"14 PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #24121008 HER MAJESTY THE QUEEN and Leonard C. Cheney S.C. Carter, P.C.J J. Field, Q.C., CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. T. Forsyth, SANDERSON, BALICKI, POPESCUL LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. [1] The accused is charged that on the 24th day of September, 2001, at the Prince Albert District in the Province of Saskatchewan, he had the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug. [2] Does the accused’s evidence, which was to the effect that when stopped by the police he was suffering from panic attack, raise reasonable doubt as to his guilt? [3] On September 24, 2001, the R.C.M.P. officers were dispatched to trailer park at the south end of Prince Albert, Saskatchewan. The officers were told that an intoxicated male was operating brown, two-toned pick up truck. Officers McDermid and Johnson responded to the scene. After turning off Highway #2 and onto 48th Street they saw motor vehicle matching the description they had been given at “T” intersection which leads into the trailer court from 48th Street. This vehicle turned left onto 48th Street and then began to travel east on the gravel road. [4] Cst. McDermid was driving the police vehicle. He said that the truck was “all over the road”. In his evidence-in-chief he testified that this meant that the truck swerved into the left-hand side of the road more than four or five times. In cross-examination he admitted that he made no notes about exactly how many times but insisted that it was more than two times. McDermid activated his emergency lights. The truck did not immediately pull over so he activated his siren. Again the truck did not pull over so he drove beside the truck and motioned to the driver indicating that he must pull over. He described how the driver, later identified as the accused, slowly turned to look at the police vehicle and then slowly looked back in front of him and pulled the truck over. From the time he activated his flashing lights until the accused pulled over the distance travelled was approximately half kilometre. [5] Cst. McDermid stopped his vehicle and walked to the driver’s door. He found the accused to be the driver and only occupant of the vehicle. He smelled “strong odour of liquor” coming from the accused as well as from the inside of the vehicle. Once the accused was outside of the vehicle he was very unsteady on his feet “to the point where we grabbed him so he would not fall”. These observations together with the erratic driving led him to conclude that the accused was an impaired driver. He arrested the accused and advised him of his right to retain and instruct counsel without delay. The accused took advantage of his Charter right. With the assistance of Cst. McDermid he made numerous attempts to contact and finally managed to contact lawyer over the telephone. During the process of helping the accused get through to lawyer, Cst. McDermid was standing foot or two away from the accused. He noted that strong odour of liquor was still coming from the accused’s breath, his eyes were blood shot and he now had “very bad slurred speech”. Cst. McDermid watched through an observation window as the accused used the telephone and at one point he thought that the accused was going to fall out of his chair. As the efforts to contact lawyer continued the accused’s motor skills were getting slower and he began to fall asleep. When leaving the breath test room, Cst. McDermid noted that the accused still displayed signs of impairment. His speech was “really slurred”. His eyes were blood shot. He was still unsteady on his feet. The accused’s blood-alcohol readings were .70 and .60 and thus no “over 80"" charge was laid. [6] Cst. Johnson had been on the job as R.C.M.P. officer for very short period of time. His evidence was that he remembered the accused’s “fine and gross motor skills” were “really slow”. He also recalled that the accused leaned against objects to keep his balance. This last observation was made at the detachment in the cell area. The Defence Evidence [7] The accused testified that he suffers from panic attacks and that, when stopped by the police, he was in the grip of such an attack. He admitted to consuming one vodka cooler before driving but argued that the signs of impairment displayed by him were the manifestations of his panic attack not from the consumption of alcohol. [8] The accused has been diagnosed as suffering from general anxiety disorder. (G.A.D.). Dr. Josias Badenhorst, general practitioner in Prince Albert, Saskatchewan with knowledge and experience in this particular area, was qualified by the court to give expert evidence concerning this disorder. He testified that G.A.D. is caused by sedative deficiency in the brain and is related to depression. On one side of the spectrum, this deficiency causes mild anxiety. On the other it causes panic attacks. There are 13 symptoms any four of which must be manifest for at least 10 minutes before diagnosis of panic attack can be made. These symptoms include: sweating, shortness of breath, chest pains, nausea, feeling faint or dizzy, numbness, chills or hot flashes. The attacks do not usually last very long although there is no specific time length. After the attack passes, people remember certain things but do not normally remember much. They can be precipitated by going off medication, consuming alcohol, stress, and lack of sleep. He testified that most of the symptoms displayed in panic attack are caused by hyperventilation which deprives the blood of oxygen poisoning it with carbon dioxide. [9] The accused’s wife testified as to her husband’s panic attacks. She recalled two such attacks before they were married. The attacks came in busy, crowded areas after the accused had worked for long hours and was feeling under great deal of stress because of his mother’s health. She testified that her husband shook, went, white and his pupils dilated. She could make no sense of his conversation. He was sweating and did not know where he was. She said that these attacks lasted 24 48 hours after which he slept for long periods of time. She described these two episodes as extreme. She says that she has witnessed less severe attacks with similar symptoms. Alcohol had not been involved with any of the attacks that she witnessed. [10] The accused testified that he is an alcoholic. His life has been journey which has included very high levels of personal and professional achievement as well as extremely low periods which included living on the streets of Edmonton. He spent some periods of time in mental institution in Alberta. He has been diagnosed as suffering from G.A.D.. [11]. The events leading up to September 24 were extremely stressful for the accused. His mother was extremely ill and suffering from Alzheimer’s’. He was in charge of her welfare. His sister, who suffers from cerebral palsy, was in the process of moving back from Calgary to Prince Albert. He was also looking after her. He was working long hours renovating an office building. Finally, he also got married on September 15, 2001. The couple’s honeymoon was spent in hotel room after the ceremony and then rental cabin at Waskesiu in the Prince Albert National Park. It was at this rental cabin that he began to drink again. [12] His wife testified that at the rental cabin she awoke at about 4:00 in the morning on September 16 to find that her new husband was “well on his way”. He drank and slept. In the morning she testified that she literally had to put him into the van. She drove him back to Prince Albert and dropped him off at his mother’s house where he was living. She will have nothing to do with alcohol and did not see him for about month. She testified that when she did see him he was trying to sober up and that his anxiety level was extremely high. [13] The accused testified that he started to drink in the early hours of September 16, 2001 after two years of remaining sober. He testified that he drank for day and half straight. He did not eat and could not sleep. He was no longer taking his medication because he said he stopped when he began to drink. On September 24, 2001, he testified that he got up at 7:30 8:00 a.m. feeling pretty shaky. He got things together for his mother. At 11:00 a.m. he drank vodka cooler to “settle me down so could concentrate”. His wife was not speaking to him. He decided to drive to the trailer court where she was staying in order to drop off some of her clothing for her. He described his condition as being emotionally upset. He had not slept for week. He was upset over the wedding. He was “working like robot”. He recalled driving to the trailer and pulling onto the left-hand side of the driveway. He saw person named Brad who came out of the garage and he spoke to Brad about the clothes. Brad told him to put the clothes into car which the accused did. Brad then went back into his garage. The accused said that he smoked about three-quarters of cigarette hoping that Brad would come back to talk to him. When he did not come, he stubbed out his cigarette and then drove out of the trailer court and then east on 48th Street where he was pulled over by the police. [14] He remembered being told by the police that he had been stopped because he was swerving all over the road although he thought he had been driving in straight line. He remembered being told that he was being arrested for impaired driving. He recalled being taken to the R.C.M.P. detachment and also recalled calling seven or eight lawyers trying to get legal advise. He recalled the telephone booth that he sat in to make the calls. He recalled blowing once into the breath testing instrument although he was told that he actually blew twice. He did not recall the drive back to his mom’s house but recalled getting back to his mom’s house. He had no recollection of any difficulty in sitting on the chair in the phone booth at the detachment. He said that it was possible that he was unsteady on his feet because “I was into my panic disorder”. [15] The defence argues that the police officers were focused on impairment by alcohol because they had been told by their dispatcher that the operator of the two-toned brown Ford pick-up might be drunk. They argue that this focus blinded the police from seeing any other possibilities. The defence position is that the signs and symptoms of impairment displayed by the accused were the result of, or were equally consistent with, a panic attack. [16] The difficulty with this argument is that the evidence does not support it. Dr. Badenhorst confirmed that the accused had been diagnosed as suffering from G.A.D.. He has prescribed mild dose of Librium to help calm the accused. However, the evidence of Dr. Badenhorst is that most of the symptoms of panic attack are brought on by hyperventilation which has the effect of aggravating the problem because hyperventilation deprives the body of the oxygen it needs. There was no evidence of any hyperventilation by the accused. No shortness of breath which could have caused problems for the breath test. There is no evidence of sweating or of nausea or of chest pains or numbness or hot or cold flashes. According to Dr. Badenhorst, when in panic attack, one would expect the patient to have speech problems in the sense of choking, not the slurring of speech. In addition one apparently does not fall or begin to fall asleep during such an attack. The accused’s memory of the events prior to and during and after the driving and his arrest was quite good. [17] The condition the police found the accused in was nowhere near to what his wife told the court she has seen when panic attack is upon her husband. She described high level of anxiety with incoherent speech, shaking and sweating. The police officer found relatively coherent, calm person who later began to fall asleep when they were dealing with him. [18] Although the accused testified that he was into his panic attack his evidence was that he was working hard, stressed out about his marriage, stressed out about his mother and sister, off his medications, drinking, and not sleeping. He testified that he was like robot. [19] do not believe the accused when he testified that he was in the throws of panic attack. Nor does his evidence and that of the doctor raise reasonable doubt as to the possibility of him being in such an attack. [20] The blood-alcohol readings testified to show that the accused was below the legal limit but in my view that evidence together with the other evidence involving consumption of alcohol and the signs and symptoms of impairment by alcohol prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol: see R.v. Stellato, (1993), 1993 CanLII 3375 (ON CA), 18 C.R. (4th) 127 (Ont. C.A.), affirmed 1994 CanLII 94 (SCC), [1994] S.C.R. 278, 31 C.R. (4th) 60; R.v. McCallum, (1995), 1994 CanLII 4646 (SK CA), 35 C.R. 266 (Sask. C.A.). As was stated by the court in McCallum the fact that the effects of alcohol may have been exacerbated by the accused suffering from fatigue does not provide defence to the charge. [21] I find the accused guilty as charged. DATED this 28th day of January, A.D., 2003, at the City of Prince Albert, in the Province of Saskatchewan. S.C. Carter, Provincial Court Judge","The accused was charged with operating a motor vehicle while impaired by alcohol or drug (Code ss.253(a) and 255(1)). The accused admitted to consuming one vodka cooler before driving but argued the signs of impairment were manifestations of his panic attack. No .08 charge was laid, as his readings were .07 and .06. HELD: The accused was found guilty of impaired driving. The evidence did not support the argument that he was in the throws of a panic attack. The blood-alcohol readings show he was below the legal limit but the signs and symptoms of impairment by alcohol proved beyond a reasonable doubt his ability to operate a motor vehicle was impaired by alcohol. As stated in McCallum, the fact that the effects of alcohol may have been exacerbated by the accused suffering from fatigue does not provide a defence to the charge.",3_2003skpc14.txt
305,"J. 2000 SKQB 75 U.F.C. A.D. 1993 No. 391 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: EDWIN JOHN HINZ and NANCY MARGARET HINZ RESPONDENT K. J. Ford, Q.C. for the applicant P. H. Loran for the respondent JUDGMENT BAYNTON J. February 18, 2000 THE APPLICATION [1] The applicant applies to vary a February 1, 1995 consent judgment by terminating or significantly reducing his obligation to pay further spousal support. The amount he is required to pay under the 1995 judgment is $2,500.00 per month. [2] The application before me was triggered by the applicant’s loss of employment and a debilitating leg injury. [3] The affidavit material filed by the parties indicates that they have different views as to many of the issues involved and their respective needs and means, but neither wanted trial of the issue. agreed to determine the issue on the basis of the materials filed in chambers keeping in mind the extensive inquiries mandated by Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420. POSITION OF THE PARTIES [4] The applicant raises two grounds as constituting a material change in circumstances. The first is that he is now unemployed and no longer receives the substantial salary that he previously enjoyed. The second is that the respondent is now over 65 years of age and receives Canada Pension Plan and Old Age Security Pension benefits. The applicant acknowledges that he should continue to pay some ongoing spousal support but that it should be significantly reduced. He maintains that the respondent chooses to remain by herself in the matrimonial residence which is located across from the university and could generate significant income. Alternatively the respondent could sell it and acquire more suitable accommodation with net financial benefit to herself. [5] The respondent acknowledges that there has been material change in circumstances that entitles the Court to vary the level of spousal support set out in the consent divorce judgment. She suggests that the reduction in spousal support should be limited to the amount that she now receives from her Old Age Pension and her Canada Pension. She takes the position that despite the significant reduction in the applicant’s income, he is still in financial position to continue to meet spousal support obligations. She also takes the position that despite the decreases and increases in their respective incomes, she will still have less disposable income to live on than is available to the applicant. [6] The respondent resists any reduction in excess of her pension benefits until the applicant can establish that he will not in fact have any employment income. She suggests that the applicant’s position on this variation application is based on future projections, not on established fact. She suggests that he be given leave to make further variation application in couple of years when the status of his employment income will be known. [7] Neither counsel filed any cases in support of their respective positions and confined their submissions primarily to the financial information filed. [8] The applicant and respondent were married on July 8, 1961. They had three children, all now adults living independently of their parents. The applicant and respondent lived together almost 29 years, separating in May 1990. The respondent remained in the matrimonial home and the applicant supported her from the date of separation until 1993 when the level of support was set by court order at $2,500.00 per month. In 1995 they agreed on an equal division of their matrimonial property and consented to divorce judgment that ordered ongoing spousal support of $2,500.00 per month. The support was not time limited nor was it expressed to be subject to variation by the Court should the financial position of either party change substantially in the future. [9] The applicant is now 62, the respondent 67. The respondent has not remarried and lives alone in the former matrimonial home. The applicant has remarried. [10] The applicant is current with his spousal support payments. The material filed on behalf of the applicant when the support was continued at $2,500.00 per month by the consent judgment in 1995, indicated that he was earning approximately $90,000 per year. In 1998 his gross employment income was almost $99,000.00 per year. In August of 1999 his employment was terminated in part because of his age and his injury and he was given severance package that continued his salary to and including March 31, 2000. [11] The applicant’s pension consists of Registered Retirement Savings Plans. The respondent received her proportionate share of this “pension” when the matrimonial property was divided in 1995. The applicant’s future income will be restricted to what he draws from these RRSP’s and other investment income. He has no desire or plans to seek other employment. [12] The respondent also has health problems. Some of them arose during the marriage. Although she has university education, she stayed at home during the marriage to raise their children. She has not been employed since the parties separated. Upon reaching the age of 65 years, she qualified for Old Age Pension benefits that are currently $417.00 per month. She was also entitled to receive her proportionate share of the applicant’s Canada Pension Plan benefits. The combined current amount of these benefits is just over $775.00 per month. [13] The applicant has filed comprehensive financial analysis of the joint investment income that is available to his second wife and himself, with an estimate of what portion is attributable to her. He has obtained projections from financial planner. He asserts that if he is required to maintain the current level of spousal support, his savings including those that represent his pension will be depleted by the year 2011. [14] Despite how the respective needs and means of the parties might be interpreted, it is beyond dispute that compared to the time the order was made in 1993 and continued by the divorce judgment in 1995, the applicant’s income is now less while the respondent’s income is more. It is also beyond dispute that the health of each of the parties has deteriorated since the order. It is unlikely that either is now capable of earning significant employment income. [15] It is clear from Bracklow v. Bracklow, supra, that each case involving spousal support issue must be determined on its own facts. It is also clear that the Court must give due consideration to all the factors and objectives of spousal support order set out in s. 15.2 of the Divorce Act, R.S.C. 1985, c. (2nd Supp.), rather than focussing on one factor alone, such as income levels or self-sufficiency. [16] The application of these legal principles to the facts and circumstances of the case before me do not warrant termination of the applicant’s spousal support obligations to the respondent, but they do warrant reduction of the quantum of the support payable. The parties had three children. The respondent understandably did not work during the marriage. Fortunately the matrimonial property division coupled with the spousal support, provided her with sufficient financial means so that she was not required to seek employment after the parties separated. [17] From financial perspective, considering the changes to the needs and the means of the parties since the divorce judgment, the position of the applicant is now worse while the position of the respondent is better.  The applicant has met the threshold for a variation application by demonstrating that there has been a material change in circumstances since the spousal support order was last revised. Although this entitles him to have the Court review his obligation to pay spousal support, it does not follow that his obligation should be terminated. [18] It is significant that the agreement reached by the parties in 1995 did not provide that the spousal support was either time limited or that it was to be varied if there was a substantial change in the future financial positions of the parties. Surely at the time the agreement was made, the parties had contemplated their eventual retirement and the financial consequences that it would have for each of them. Yet it is not likely that the parties intended spousal support to continue indefinitely at $2,500.00 per month even after the applicant retired. [19] In most cases each party to marriage is disadvantaged by its breakdown. In this case, being a traditional marriage, the respondent has been disadvantaged to a greater degree than has the applicant. The respondent devoted her full time to working in the home and raising the three children of the marriage during the years when she would have been the most productive financially had she pursued a job or a career outside the home. Because of her efforts the applicant was able to pursue and develop his career as an engineer and thereby acquire the capacity to earn significant level of income annually. A couple of years after the parties separated in 1993, the respondent received her full share of the joint efforts of the parties up to that point in time in the form of an equal division of matrimonial property. [20] But the parties obviously recognized, and acknowledged through the additional spousal support provision of the agreement, that the property settlement alone would not put them on an even plane financially. In 1995 the respondent had little prospect of remunerative employment while the applicant’s financial future was secure. He then had the benefit of thirty-two years of employment as an engineer with secure future financially. In the years that have followed, he has been in much better position to improve his financial position than has the respondent. One of the reasons for this is because the respondent stayed home during the most productive years of her life to raise the children which enabled the applicant to focus on and advance his career. [21] Although it is obviously not the law that appropriate spousal support levels are determined by equalizing the incomes of couples who have divorced, the economic benefits and disadvantages that flow from the marriage and its dissolution must be taken into account. Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813. The fact that the applicant will no longer have any employment income, is not the sole consideration on this variation application, nor is it determinative of whether spousal support should be terminated. [22] The applicant has quite properly gone to considerable lengths to project his retirement income. Because most of it consists of tax sheltered investments, the tax consequences to him are substantial. He estimates that he will be required to draw $7,733.00 per month from those investments in order to maintain his standard of living and continue to pay the respondent $2,500.00 per month. His amortization projections show that if he does so, his retirement income will run out by the year 2011. He has sought the advice of certified financial planner respecting the implications of converting his Registered Retirement Savings Plans (RRSP’s) into Registered Retirement Income Funds (RRIF’s), Locked-In Retirement Accounts (LIRA’s), Life Income Funds (LIF’s) and Locked-In Retirement Income Funds (LRIF’s). [23] review of the material filed indicates that the applicant and his financial planner have focused primarily on the legal limitations he faces in accessing his RRSP’s and on the fact that there is significant tax cost to him in accessing retirement funds through any of these potential vehicles. The applicant also focuses on suggestions as to how the respondent could increase her monthly income by taking in boarders or selling her home and purchasing some form of annuity. There are two flaws in these submissions. The first is that there is significant tax saving to the applicant respecting payments he makes for spousal support. It is not evident from the material that either he or his planner have adequately taken this into account. The second is that the applicant could also supplement his own income by selling his residence and purchasing some form of annuity. [24] Considering all the factors set out in Moge v. Moge, supra, and Bracklow v. Bracklow, supra, and the means and needs of the parties and the changes to their financial positions, conclude that the 1995 spousal support should be varied downwards but should not be terminated. An adjustment period is also called for in the circumstances. [25] It is ordered that commencing April 1, 2000, the ongoing spousal support payable by the applicant to the respondent shall be $1,750.00 per month up to and including March 1, 2001. From and after April 1, 2001 until further order, the amount of spousal support shall be $1,250.00. [26] There is no merit in the wait-and-see suggestion of the respondent. It is evident that the applicant has retired and has no intention to become re-employed. It is essential that he know now what his future obligations will be. [27] As each party has had some measure of success, no costs are awarded to either.","The applicant sought to vary the 1995 consent judgment by terminating or significantly reducing spousal support of $2,500 per month. The respondent suggested the reduction should be limited to the amount she now received from her old age pension and CPP. Neither wanted a trial of the issue and submissions were primarily confined to the financial information filed. HELD: On-going spousal support was reduced to $1,750 per month from April until March 1, 2001 and $1,250 thereafter.  1)It is clear from Bracklow that each case involving spousal support must be determined on its own facts. The court must give due consideration to all the factors and objectives of a spousal support order set out in s.15.2 of the Divorce Act rather than focusing on one factor alone, such as income levels or self sufficiency.  2)There had been a material change in circumstances as the applicant, now 62, had lost his employment and suffered a debilitating leg injury while the respondent, now 67, was receiving an old age pension. 3)The 1995 agreement did not provide spousal support was either time limited or that it was to be varied if there was a substantial change in their future financial positions. However, it was unlikely the parties intended spousal support to continue indefinitely at $2,500 per month even after the applicant retired. The respondent was disadvantaged by the traditional marriage to a greater degree than the applicant as she devoted her full time to working in the home. She received her full share of their joint efforts in the form of an equal division of the matrimonial property. The economic benefits and disadvantages that flow from the marriage and its dissolution must be taken into account (Moge). There was no merit in the wait-and-see suggestion of the respondent. 4)No costs.",3_2000skqb75.txt
306,"S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jones, Macdonald and Chipman, JJ.A. BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL, Director Social Planning Department, City of Halifax Respondent Vincent Calderhead for the Appellant Ms. Beatrice M. Renton for the Respondents Appeal Heard: March 30, 1990 Judgment Delivered: April 12, 1990 THE COURT: Appeal allowed without costs, decision of Chambers judge and any order based thereon set aside, application of the appellant for an order in the nature of certiorari allowed, decision of the Social Assistance Appeal Board quashed, and the application of the appellant for social assistance for the period June 19, 1989, to the date of the birth of her son remitted to the Social Services Department of the City of Halifax, per reasons for judgment of Macdonald, J.A.; Jones, J.A. concurring and Chipman, J.A. dissenting. MACDONALD, J.A.: This is an appeal from the decision of Mr. Justice Rogers in Chambers, whereby he dismissed the appellant\'s application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board for the City of Halifax, which affirmed the rejection of the appellant\'s application for municipal social assistance as an expectant mother. The decision of Rogers J. is now reported in (1990), 92 N.S.R. (2d) 254. The material circumstances are that on June 19, 1989, Catherine McInnis, an unmarried, pregnant, 16 year old girl, applied to the Social Services Department of the City of Halifax for municipal social assistance. Her application was based on the eligibility category for ""expectant mothers"" under Municipal Social Assistance Policy 1.2.5 (M.S.A. Policy 1.2.5). Her application was refused because she was under 19 years of age and was living with and being supported by her mother and stepfather. An appeal from such refusal was dismissed by the Social Assistance Appeal Board on the ground that M.S.A. Policy 1.2.5, although allowing for the Municipality to consider support for an unmarried mother pending birth, was not mandatory but rather discretionary. In its decision the Appeal Board went on to say: “.. In this case, the Municipality has indicated they are prepared to assist Catherine's parents with all of the extra expenses for food, clothing and any additional shelter expenses caused by the birth of their grandchild. The Family Maintenance Act states that the parents are responsible for the financial support of their children until age 19 and the Board accepts the Municipality's argument that they are not obliged at law to provide assistance directly to Catherine. The Municipality is willing to accept an application for support from Catherine's parents, however, it appears that they would be ineligible because their budget information shows surplus. The Municipality will provide support to Catherine's parents for Catherine's child once the child is born."" M.S.A. Policy 1.2.5 of the City of Halifax provides as follows: ""1.2.5 SINGLE HEAD OF FAMILY single head of family is that person who maintains home for herself/himself and one or more of her dependent children. single head of family may be: a. separated parent b. divorced parent c. deserted parent d. widowed parent e. an unmarried parent f. parent having spouse in an Institution If the separation or desertion is the result of common‑law relationship, the applicant shall be considered an unmarried parent unless previously married. An applicant who is currently living common‑law relationship or who has remarried shall not be considered as single head of family. Procedure Where it is indicated that the applicant is in one of the above categories they are expected to obtain alternate income, ie. gain support from the spouse or possible father and apply for Family Benefits, Canada Pension or any resource where she might be eligible for benefits. If considered able, the applicant is expected to become self‑supporting through gainful employment. UNMARRIED MOTHER PENDING BIRTH An unmarried mother pending birth can be considered eligible for assistance when she provides medical confirming her pregnancy and outlines an acceptable case plan (a plan which demonstratively indicates actions on part of the U.M.P. that will lead to an improved quality of life for her and her child."" In dismissing the appellant's application for an order in the nature of certiorari to quash the Appeal Board's decision, Mr. Justice Rogers said (p. 256‑57): “Section 1.2.5 deals with the policy applicable to single heads of family. To be single head of family eligible for assistance one must first 'maintain' home for herself/himself and 'one or more of her dependent children' and may be separated parent, divorced parent, deserted parent, widowed parent, an unmarried parent or parent having spouse in an institution. Catherine McInnis certainly does not fall within this definition of eligibility for assistance. Catherine McInnis, however, maintains that she is eligible because of the last paragraph of the policy with respect to single heads of family, entitled 'Unmarried Mother Pending Birth'. This paragraph, however, located as it is within the boundaries of the policy section respecting single heads of family, can only have reference to the earlier provisions of s. 1.2.5 and in my opinion is just method of extending eligibility to single head of family who is about to become an unmarried parent although not yet one. The key point here is that Catherine McInnis, although an expectant mother, is not the head of family maintaining home for herself and dependent child. It is Catherine's stepfather who is the head of family and maintaining the household in which Catherine lives."" The single issue raised on this appeal is that: ""The Learned Trial Judge erred in interpreting Halifax Social Services Policy 1.2.5."" The responsibility for providing social assistance is provincial one. The federal, government, however, cost‑shares social assistance under the Canada Assistance Plan (1985, R.S.C. Chap. C‑1). Social assistance is based on need. If such ""need"" is long‑term or likely to be so, it is provided through the Family Benefits Act, S.N.S. 1977, c. 8. Shorter term assistance is provided by the various municipalities under the Social Assistance Act, S.N.S. 1970, c. 16. It is this latter Act with which we are concerned on this appeal. Part II of that Act is entitled ""Municipal Assistance Interpretation"". person in need is defined in that part in s. 19(e) as follows: ""19(e) 'person in need' means person who, by reason of adverse conditions requires assistance in the form of money, goods or services;"" The Act provides for the creation of social service committees within each municipal unit. Section 23(1) of the Act reads as follows: ""23(1) Subject to this Act and the regulations the social services committee shall furnish assistance to all persons in need as defined by the social services committee who reside in the municipal unit."" Section 23(1) of the Act places a mandatory responsibility upon social service committees to provide assistance for all persons in need as defined by such committee. In defining persons in need the committee must have regard to s. 19(e) of the Act and to ss. 1(m) and 2(1)(d) of the Municipal Assistance Regulations. These latter sections provide: ""1(m) 'municipal social services policy' means written directives relating to the granting of assistance issued by Municipal Council and approved by the Minister; and 2(1) The Social Services Director of the Committee shall: ... (d) provide assistance in accordance with the provisions of the Act, these regulations and the municipal social services policy."" Pursuant to the foregoing statutory authority, the City of Halifax has approved municipal assistance policies. Policy Statement 1.1.4 provides the following definition of person in need: ""1.1.4 DEFINITION OF NEED person who by virtue of loss of employment, disability, insufficient income, inability to obtain employment, loss of principal family provider or age is found on the basis of 'needs test' to be unable to meet or maintain his budgetable requirements. person incapable of achieving personal or economic independence through lack of personal resources can be considered person in need. Various services exist to meet an individual's various needs, Municipal Social Assistance is only one such service."" M.S.A. Policy 1.1.5 establishes the general criteria respecting the determination of eligibility for assistance. This policy statement provides for ""needs test"" used to determine either budget deficit or budget surplus. If there is budget surplus, then the applicant does not qualify for assistance. At the time of her application the appellant was 16 years old and had no independent source of income, but rather was being supported entirely by her stepfather. The City of Halifax has been providing social assistance to the appellant since the birth of her son.. therefore can only assume that she is considered as being person in need of assistance. In statement of procedure, effective last October, it is stated in part: ""Single Head of Family between their 16th and 19th Birthday D. The City of Halifax further wants to encourage the dependent single parent to benefit from his/her parents knowledge in child care and wants the dependent single parent to take advantage of completing their education and/or training to increase their prospects for financial independence in adulthood. Because the City of Halifax is at the same time anxious that the dependent single parent and his/her child not present financial burden to the family (such burden being an impediment to positive relationship within the family), the City of Halifax is prepared to provide financial assistance when the following criteria have been met. a) the dependent single parent provides proof of parentage and/or legal custody (usually by birth certificate or court order when not the biological parent). b) the parent(s) of the dependent single parent must approve of the application (usually by co‑signing the application for assistance). Should this approval not be given, the application will not be accepted. c) the dependent single parent provides proof of Family Court Hearing date respecting maintenance from the father [or parent(s)] of the child. d) the dependent single parent provides proof that an application for Family Benefits has been submitted."" The appellant has met all the required criteria set out in the foregoing statement of procedure and, as mentioned, is now receiving social assistance. If the interpretation given to M.S.A. Policy 1.2.5, by Mr. Justice Rogers is correct, then an unmarried mother, like the appellant, pending the birth of her first child, could not qualify for municipal assistance even if she was completely maintaining herself without any family support. She would not qualify because she would not be ""a single head of family"" because she would not be maintaining home for herself and one or more dependent children. The result would be that if two 16 year old girls in identical circumstances were pregnant but one had previous child, the latter could qualify for assistance, but the former could not. That result surely was not what the City intended when it enacted M.S.A. Policy 1.2.5. In my view, the provisions relating to assistance for ""unmarried mother pending birth"" in M.S.A. Policy 1.2.5 is and was intended to be simply provision providing the circumstances under which an unmarried mother was to be considered eligible for assistance pending birth. Such eligibility is not and was not intended to be dependent upon the unmarried mother maintaining home for herself and one or more dependent children. This interpretation appears to have been recognized by the Appeal Board when it said that although the provision allows the Municipality ""to consider support for an unmarried mother pending birth ... it is not mandatory"". Policy statements are made by municipalities under the authority of s. 23(1) of the Social Assistance Act. This provision, as noted earlier, makes it mandatory that social service committees shall furnish assistance to persons in need. Delegated legislation cannot be broader than the enabling legislation and, therefore, in my opinion, the Appeal Board erred in treating the provision in question as creating discretionary right to assistance. It follows that the application to quash the Appeal Board's decision should have been granted for that reason alone. For the foregoing reasons, it is my opinion that both the Appeal Board and Mr. Justice Rogers erred in the manner described. would, therefore, allow the appeal without costs; set aside the decision of the learned Chambers judge and any order based thereon; allow the application of the appellant for an order in the nature of certiorari; quash the decision of the Social Assistance Appeal Board and remit to the Social Services Department of the City of Halifax the application of the appellant for social assistance for the period June 19, 1989, to the date of the birth of her son. J.A. Concurred in: Jones, J.A. CHIPMAN, J.A.: (dissenting) This is an appeal from decision of Mr. Justice Rogers [(1990), 92 N.S.R. (2d) 254] dismissing the appellant's application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board (the Board) for the Sity of Halifax which confirmed the denial of the appellant's application for municipal assistance. On June 19, 1989 the appellant, an unmarried, pregnant 16 year old girl applied to the Social Services Department of the City of Halifax (the Sity) for municipal assistance. She was, at the time, living in the home of her mother and stepfather, where she was being supported. Her affidavit placed before the Social Assistance Appeal Board stated inter alia: ""14. THAT am currently living in my parents home because realize that can use and appreciate the emotional support that my parents, but especially my mother are providing for me at this point; 15. THAT have considered living apart from them but feel that can use my mother's support as much as possible now and it is for this reason am continuing to live in their home."" The application was refused by Ann Hopp, the Social Assistance worker because the appellant was under 19 years of age and was living with and being supported by her mother and stepfather. On appeal from such refusal, the Board in its unanimous decision said: “.. In this case, the Municipality has indicated they are prepared to assist Catherine's parents with all of the extra expenses for food, clothing and any additional shelter expenses caused by the birth of their grandchild. The Family Maintenance Act states that the parents are responsible for the financial support of their children until age 19 and the Board accepts the Municipality's argument that they are not obliged at law to provide assistance directly to Catherine. The Municipality is willing to accept an application for support from Catherine's parents, however, it appears that they would be ineligible. because their budget information shows surplus. The Municipality will provide support to Catherine's parents for Catherine's child once the child is born."" In dismissing the application for an order in the nature of certiorari, Mr. Justice Rogers found that the appellant was supported by her parents and that she did not qualify under Municipal Assistance Policy 1.2.5 (M.S.A. Policy 1.2.5) of the City providing for assistance to the single head of family. On appeal to this Court, counsel for the appellant says that the trial judge erred in misapprehending the municipal social assistance scheme and M.S.A. Policy 1.2.5 in particular. Short term assistance, with which we are here concerned, is provided by the Municipalities in this province under the Social Assistance Act S.N.S., 1970, c. 16. The Province of Nova Scotia furnishes reimbursement to the Municipalities in accordance with the Regulations made under that Act. The duty of Municipality to provide for social assistance is set out in s. 23(1) of the Act which reads: ""23(1) Subject to this Act and the regulations the. social services committee shall furnish assistance to all persons in need as defined by the social services committee who reside in the municipal unit."" person in need is defined in s. 19(e) as follows: ""19(e) 'person in need' means person who, by reason of adverse conditions requires assistance in the form of money, goods or services;"" In determining who are persons in need, the' Social Services Sommittee must have regard to s. 19(e) of the Act and to ss. 1(m) and 2(1)(d) of the Municipal Assistance Regulations which provide: ""1(m) 'municipal social services policy' means written directives relating to the granting of assistance issued by Municipal Council and approved by the Minister; and 2(1) The Social Services Director of the Committee shall: (d) provide assistance in accordance with the provisions of the Act, these regulations and the municipal social services policy."" Pursuant to the foregoing, the City has approved Municipal Assistance Policies which include 1.1.4 and 1.2.5: ""1.1.4 DEFINITION OF NEED person who by virtue of loss of employment, disability, insufficient income, inability to obtain employment, loss of principal family provider or age is found on the basis of 'needs test' to be unable to meet or maintain his budgetable requirements. person incapable of achieving personal or economic independence through lack of personal resources can be considered person in need. Various services exist to meet an individual's various needs, Municipal Social Assistance is only one such service."" 1.2.5 SINGLE HEAD OF FAMILY single head of family is that person who maintains home for herself/himself and one or more of her dependent children. single head of family may be: a. separated parent b. divorced parent c. deserted parent d. widowed parent e. an unmarried parent f. parent having spouse in an Institution If the separation or desertion is the result of common‑law relationship, the applicant shall be considered an unmarried parent unless previously married. An applicant who is currently living common‑law relationship or who has remarried shall not be considered as single head of family. PROCEDURE Where it is indicated that the applicant is in one of the above categories they are expected to obtain alternate income, ie. gain support from the spouse or possible father and apply for Family Benefits, Canada Pension or any resource where she might be eligible for benefits. If considered able, the applicant is expected to become self-supporting through gainful employment. UNMARRIED MOTHER PENDING BIRTH An unmarried mother pending birth can be considered eligible for assistance when she provides medical confirming her pregnancy and outlines an acceptable case plan (a plan which demonstratively indicates actions on part of the U.M.P. that will lead to an improved quality of life for her and her child."" In Woodard v. Lynch, et al. (1983), 64 N.S.R. (2d) 429, Hallett, J. (as he then was) made an extensive review of the legislative scheme set up under the Act, the Regulations and the Municipal Assistance Policies, with particular regard to those of the Sity. He concluded at p. 438 that if the Board misinterprets the Policy, it is an error in law which, if it appears on the face of the record, may be quashed by this Court. agree and would also point out that the same results follow if the Board misinterprets the Act or the Regulations. Dealing with s. 23 of the Act, Hallett, J. said at p. 440: ""Section 23 of the Act provides that, subject to the Act and the Regulations, the Social Services Sommittee shall furnish assistance to all persons in need as defined by the Sommittee. That section seems to impose in‑the clearest terms the obligation on the municipal unit to provide the assistance and to leave it to the municipal unit to define who is person in need and the extent of the assistance to be provided. There is obviously conflict that must be resolved. As stated by counsel for the parties, the drafting leaves something to be desired. am of the opinion, in looking at the Act, the Regulations and the Policies approved by the Minister, that the primary obligation to determine who gets what in. the way of municipal assistance is on the municipal units and, secondly, that the primary purpose of the Regulations is to establish framework for the providing of assistance by the municipal units that will qualify it for reimbursement..."" In my opinion, the evidence does not establish that the appellant is person in need within the definition of either s. 19(e) of the Act or M.S.A. Policy 1.1.4. see no error on the part of the caseworker acting on behalf of the Social Services Director of the Sity or the Board in affirming her decision. M.S.A. Policy 1.2.5 provides for assistance to the single head of family. The final paragraph of this provision regarding unmarried mothers pending birth gives an extended meaning to single head of family, so as to include the unwed mother of the child not yet born. Apart from this extension, the requirement that the parent be single head of the family who maintains home for herself still stands. All that is deleted from the requirement is ""and one or more of her dependent children"". In place thereof is substituted the requirement that she be expecting child and outline an acceptable case plan as set forth in the policy. There is nothing unusual or unfair about this special requirement that might distinguish between ,pregnant woman without another child and one with another child. fully agree with Mr. Justice Rogers when he said: ""This paragraph, however, located as it is within the boundaries of the policy section respecting single heads of family, can only have reference to the earlier provisions of Section 1.2.5 and in my opinion is just method of extending eligibility to single head of family who is about to become an unmarried parent although not yet one. The key point here is that Satherine McInnis, although an expectant mother, is not the head of family maintaining home for herself and dependant child. It is Catherine's stepfather who is the head of family and maintaining the household in which Catherine lives. It is true that the Board phrased its reason for refusal of assistance initially on the basis that the paragraph having to do with unmarried parents pending birth is not mandatory. Whether the provisions of this paragraph are mandatory or discretionary is, in my view, irrelevant since Satherine did not meet the first requirement for assistance under this head, that of maintaining household."" The evidence does not show the appellant to be person in need as defined in any part of the legislative scheme. She was not by reason of adverse conditions requiring assistance nor could, through lack of personal resources, be considered person in need. Mr. Justice Rogers was correct in affirming the decision of the Board. This decision was made on August 4, 1989 with reference to the appellant's application of June 19, 1989. Subsequent to the decision of the Board, the appellant gave birth to child. We have been informed that the Sity has provided the appellant with assistance since the birth of that child. This can be taken as evidence that she is now considered to be person in need under M.S.A. Policy 1.2.5 and in particular, Sub Policy 1.2.5.3 D. This is not evidence that she qualified as person in need under M.S.A. Policy 1.2.5 at the material time which was before the birth of the child. would dismiss the appeal without costs. J.A. 1989 S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SOCIAL ASSISTANCE APPEAL BOARD BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL Director, Social Planning Department, City of Halifax RESPONDENT HEARD BEFORE: The Honourable Mr. Justice R. MacLeod Rogers PLASE HEARD: Halifax, Nova Scotia DATE HEARD: September 5, 1989 COUNSEL: VINCENT CALDERHEAD, FOR THE APPELLANT MR. BARRY ALLEN, FOR THE RESPONDENT APPLICATION ON APPEAL S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL, Director Social Planning Department, City of Halifax Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A. CHIPMAN, J.A. dissenting","This was an appeal from a decision dismissing the appellant's application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board for the City of Halifax which affirmed the rejection of the appellant's application for municipal social assistance as an expectant mother. The appellant was a pregnant unmarried 16 year old living with her parents at the time of her application for social assistance. The trial judge concluded that under Municipal Assistance Policy 1.2.5 the applicant was not eligible since she was not a single head of a family maintaining a home for herself and her dependant child. Allowing the appeal, that s. 23(1) of the Social Assistance Act places a mandatory responsibility upon social service committees to provide assistance for all persons in need as defined in s. 19(e) of the Act. Pursuant to this statute, the City of Halifax has approved municipal assistance policies and Policy 1.2.5 relating to an 'Unmarried Mother - Pending Birth' was intended to set out the circumstances under which an unmarried mother was to be eligible. It was not intended that the appellant have to be already maintaining a home for herself and one or more dependant children. In a dissenting opinion, Chipman, J.A. concluded that as the provision with respect to an 'Unmarried Mother - Pending Birth' came under the heading 'Single Head of Family', the provision is merely an extension to include within the definition of a single head of a family an unwed mother whose child is not yet born. The requirement that she be a single head of a family maintaining a home still stands.",1990canlii2449.txt
307,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 272 Date: 2009 07 02 Docket: Q.B.C. 31 of 2007 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN Counsel: Roger DeCorby for the Crown Christina G. Skibinsky for S. C. SENTENCING JUDGMENT ZARZECZNY J. July 2, 2009 INTRODUCTION [1] On June 5, 2009, this Court, in a written judgment (the “Judgment”) found the accused guilty of the following offence:COUNT 1 THAT HE, the said S. C. [sic], on or between the 20th day of May and the 22nd of December, A. D. 2005 at Muscowpetung First Nation, Saskatchewan did for a sexual purpose touch A. M. [sic] a person under the age of fourteen years directly with a part of his body, to wit: his hand, contrary to Section 151(a) of the Criminal Code. [2] Section 151(1) of the Criminal Code provided, at the relevant time, as follows: 151. Sexual interference Every person who, for sexual purpose, touches, directly or indirectly, with part of the body or with an object, any part of the body of person under the age of fourteen years (a) is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years and to minium punishment of imprisonment for term of forty-five days; ... CIRCUMSTANCES OF THE OFFENCE [3] The facts of this case are as set out in the court’s Judgment. Briefly stated, the accused was found guilty of directly touching, for sexual purpose with his hand, the vagina of A.M. on more than one occasion between May 20 and December 22, 2005. The last of these occurred either December 17 or 18 of that year. A.M. was nine years old at the time and therefore person under 14 years of age as provided for by s. 151(a) of the Criminal Code. On all occasions, his touching occurred over and not under A.M.’s clothes. [4] At the time of these occurrences, the accused lived with A.M.’s mother, T.Y. He regarded his relationship with A.M. as that of step-father/daughter. His sexual touching occurred at his residence on the Muscowpetung First Nation Reserve on occasions when A.M. would visit with him and her mother on weekends. CIRCUMSTANCES OF THE OFFENDER [5] S.C. is currently 37 year old male. At the time of the commission of this offence, he was 33. He is First Nations and although he currently resides on the Ochapowace First Nation Reserve, his home reserve is Muscowpetung where these incidents occurred. At 13 years of age, he entered the Lebret Residential School where he attended for approximately three and one-half years. At the sentencing hearing, his counsel advised he experienced abuses at this school. The accused testified at the trial. He told of his experiences both of physical and, more traumatic to him, sexual abuse while growing up. He was sexually abused by both male and female members of his family. He testified at the trial that this abuse substantially impacted him and it has affected him all his life. [6] S.C. did not complete high school education, however, he says he has plans to do so. He hopes to enroll in Grade 12 equivalency program which he could begin in the fall of 2009. [7] S.C.’s counsel submitted that when he did work it was in general labouring type jobs. He has been unemployed for lengthy periods including the present. [8] S.C. has three children, two older sons, ages 13 and 17, as well as daughter, age 15, and young son born of A.M.’s mother. He currently resides with his new common law spouse who is now pregnant with his child. [9] His counsel reports that S.C. has had significant substance abuse problems throughout his life mostly with alcohol but also occasionally with drugs. Submissions made on his behalf suggest that he has twice attempted treatment programs, the first approximately five years ago which was successful for short period of time but saw him relapse into alcohol and drug abusive behaviours. The second occasion was during December and January of 08/09 while he was awaiting trial on this charge. He attended two months of an 11 month program. He withdrew before completion but hopes to re-enter and is on the waiting list. [10] S.C. has many supporters. His mother, common law spouse, cousins, brother and nieces were in court during his sentencing hearing as was Mr. Vern Anaskan of the Justice Committee of the Piapot Reserve and Chief Elizabeth Pratt of the Muscowpetung Reserve. Chief Pratt and number of others wrote letters of reference and support and during the sentencing hearing, submissions of support were received. Chief Pratt emphasized his need for healing and encouraged the court to accept his commitment to change which she believed was sincere. [11] S.C. has criminal record for offences dating back to 1993, the last of which involved an uttering threat charge in 2003, for which he was fined and received one year probation. The Crown accepts that these past offences are non-related to the present charge. In all prior cases he received fines, driving prohibitions and, in the one case, probation. His counsel advises he has not served any period of incarceration other than as related to the present offence. POSITION OF THE PARTIES [12] At the invitation of the court, counsel for both parties submitted their positions in writing with respect to the sentencing of S.C. Those positions are as follows: The Crown’s Position [13] In his brief, counsel for the Crown sets out its position as follows in para. 1: In it’s submissions, the Crown will seek sentence of incarceration to be served in Provincial Correctional Facility. The length of sentence requested by the Crown will be years less one day. ... [14] In support of its position, the Crown relies upon the cases of R. v. D.W.C., 1997 SKCA (SentDig) 30; R. v. McKay, 2000 SKCA (SentDig) 19; R. v. G. (H.), 2003 SKCA (SentDig) 38; R. v. Bighetty (2005) 2005 SKCA 94 (CanLII), 269 Sask. R. 108 (Sask. C.A.); R. v. Lindsay, 2008 SKCA (SentDig) 1, R. v. Bird (2008), 2008 SKCA 65 (CanLII), 310 Sask. R. 222. In addition to these case authorities, the Crown relies upon s. 718.01 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Criminal Code”) requiring court, when it imposes sentence for an offence that involves the abuse of person under the age of 18 years, to give primary consideration to the objectives of denunciation and deterrence. The Crown additionally relies upon s. 718.2(ii.1) providing that it is an aggravating circumstance that the offender abused person under the age of 18 years, s. 718.2(iii) that the offender abused position of trust or authority in relation to the victim, and s. 718.2(b) the parity principle. [15] In addition to the sentence of incarceration, the Crown applies for s. 490.012 Criminal Code sex offender registry Order (unopposed by the defence), s. 487.051(2) Criminal Code Order authorizing DNA analysis samples to be provided (again unopposed by the defendant), s. 109 ten year firearm prohibition Order and ten year prohibition Order from attending certain places as provided for by s. 161 of the Criminal Code. The latter two orders are both opposed by the defence as being over-reaching having regard to the circumstances of the offence in respect of the former and this offender in the respect of the latter. [16] Finally, the Crown asks for two year period of probation to follow any sentence with general conditions and two specific conditions including sex offender and substance abuse assessment, counselling or treatment and avoiding contact with A.M. The Accused’s Position At para. 49 of her submission, counsel for the accused advances the following position to the court with respect to its sentencing of the accused: In light of all of the submissions and materials filed, as well as any additional oral submissions on the date of sentencing, the defence submits that an appropriately fit sentence for [S.C.] would be in the range between six to nine months. We agree with the Crown’s recommendation for lengthy probation period to follow the custodial portion of the sentence. [18] As did those persons making submissions to the court during the sentencing hearing, counsel for the accused stressed S.C.’s need and desire for treatment as First Nation’s individual. Counsel stressed the restorative approach outlined by the Supreme Court in the seminal decision of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.R. 688 and commended the “Gladue principles” to the court for its consideration. In doing so, she raises s. 718.2(e) of the Criminal Code requiring the court to consider all available sanctions other than imprisonment before imposing custodial term, especially with respect to aboriginal offenders. [19] It must be pointed out at this time that counsel for the defence did not argue for any sentence imposed to be served in the community. The court understood her submissions to support not community based sentence for the accused but rather the proposition that the “Gladue factors” and principles should inform this Court with respect to the length of any incarceral sentence it might impose upon this offender. ANALYSIS The Sentencing Provision of the Criminal Code [20] As have the courts in the cases quoted in this sentencing judgment, have considered, in particular, the provisions of the Criminal Code setting out the fundamental purposes, objectives and principles of sentencing. [21] The Criminal Code of Canada, and in particular s. 718 of the Code, sets out the fundamental purposes of sentencing. These include maintaining respect for the law and just, peaceful and safe society. The objectives of sentencing are also set out in this section of the Code and they include denunciation of unlawful conduct, deterrence of an offender or other persons from committing offences, separation of offenders from society when necessary, assisting in the rehabilitation of offenders and finally the promotion of sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [22] fundamental principle of sentencing is set out by s. 718.1 of the Criminal Code. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [23] Section 718.2 of the Criminal Code mandates that sentencing court must take into consideration relevant aggravating or mitigating circumstances relating to the offence or the offender in considering whether or not sentence should be increased or reduced. This section advances the parity principle that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. [24] Finally, s. 742.1 of the Criminal Code provides that where court imposes sentence of imprisonment of less than two years and it is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing previously referred to, the court may order that the offender serve the sentence in the community subject to conditions that the court imposes. [25] The court has already commented, in the particular facts and circumstances of this case, upon the additional considerations which it is mandated to take into account with respect to the provisions of s. 718.01. Since this case did involve the abuse of person under the age of 18 years, this section of the Code mandates that primary consideration be given to the sentencing objectives of denunciation and deterrence. Section 718.2(ii.1) also applies since this case did involve the abuse of person under the age of 18 years. That is relevant aggravating circumstance as is the fact that the accused abused his position of trust or authority, namely his step-father/daughter relationship to A.M., and this too is an aggravating circumstance that the court is mandated by s. 718.2(iii) to consider. Aggravating Circumstances [26] As has already been observed, this offence involves abuse of person under the age of 18 years, namely A.M., who was nine years old at the time. The accused abused his position of trust and authority since, by his own evidence at the trial, he saw himself in step-father/daughter relationship with A.M., relationship which had continued over some years. As A.M.’s mother, T.Y., states in her victim impact statement: ... My daughter still doesn’t trust men because she gave all her trust in the world to [S.C.] and took him like her “Dad”. Then he turned around and betrayed her at the tender age of years old, by sexually touching her private parts. never thought that [S.C.] would hurt my daughter. He played the part well of being great step-dad to her. He promised her that he wasn’t here to hurt her remember him saying this to her. He gained our trust and used it to his benefit and started abusing me then eventually sexually touching [A.M.]. ... [27] These incidents of abuse occurred more than once. At the trial, as best A.M. could remember, it happened around five times or so. [28] The accused is not young man he was 33 years old when this offence occurred and he is now 37. Even though he is self-acknowledged long time abuser of alcohol and drugs, has made no serious effort at obtaining help, programming or rehabilitation. What efforts he has made have been unsuccessful or uncompleted. He has not upgraded his skills or education nor has he maintained regular or any worthwhile employment. [29] Perhaps most noteworthy, however, as an aggravating circumstance, is that at no time during the trial nor during the sentencing hearing when he was given specific opportunity to do so and asked if he had anything to say, did he apologize to his victim, the court, his community, his current spouse or T.Y. for his actions. He has shown absolutely no remorse and, as noted in the trial Judgment, appeared more focused upon himself and his own victimization then showing any concern for his victim or the impact his abuse might have upon her and her future life. [30] These are the aggravating circumstances which this Court has considered applicable in this case. Mitigating Circumstances [31] The accused does not have any significant or related criminal record and he has not previously served time in jail. He appears now to be well settled in new relationship which appears stable. He clearly has the love and support of his current spouse who has been with him during the trial and all subsequent court proceedings. She has written letter of support outlining her feelings for the accused and her belief that he truly wishes to rehabilitate himself and make plan for his and now his family’s future. [32] The accused clearly has the support of his First Nation’s community, both members of his Reserve and that of his now adopted Ochapowace First Nation Reserve. Many of his relatives, including his brother, cousins and nieces as well as his mother, were in court to support him. number of these individuals spoke at the sentencing hearing. They accept the sincerity of his wish to deal with his past and present addictive and abusive behaviours and to make new life for himself and his family. They are prepared to support him personally and with the resources of the Reserve, as Chief Pratt submitted in her oral statements and written letter to the court. [33] Finally in this regard, the court does observe that as abusive as S.C.’s behaviours towards A.M. were, the nature of his actions were not as intrusive as is the case in number of the cases relied upon by the Crown in its brief on sentencing. A.M., as the Judgment notes, is an intelligent and confident individual and although she has been impacted, as her mother’s victim impact statement outlines, nevertheless, she appears resilient and impressed the court as being able to put this matter behind her. Time will tell. CONCLUSION [34] This is not a case where a conditional sentence served in the community is available or appropriate. Section 151 of the Criminal Code provides that the maximum sentence in case such as this is 10 years but it also provides compulsory minimum sentence of incarceration of not less than 45 days. Section 742.1 of the Criminal Code relating to the imposition of conditional sentences is therefore not available in this case. [35] As previously reviewed, the Crown recommends sentence of two years less day of imprisonment while defence counsel submits that sentence of six to nine months of incarceration would be appropriate in all of the circumstances. [36] There can be no question, by virtue of the recent amendments to the Criminal Code, that the Parliament of Canada has clearly sought to protect the children and young people of this country from the abuse of adults. It has done so, in part, by enacting the provisions of s. 718.01 mandating that where case involves the abuse of person under 18 years of age, the court must give primary consideration to the sentencing objectives of denunciation and deterrence. There is no better evidence of why the protection of children is an important social value than to consider the history of abuse testified to by both A.M.’s mother and S.C. himself. As S.C. testified, the physical and sexual abuse that he suffered at the hands of his family members have haunted and affected him throughout his life. Failure of the justice system and the courts to protect young people by imposing jail sentences that will serve to denounce and deter abusive behaviour towards children will only perpetuate the kind of abuse and consequences which S.C., the accused in this case, has himself experienced and from which he testified he still suffers. [37] A.M. was entitled to be safe in the hands of her parent, including her step-parent, S.C. She was entitled to grow up happy and well-adjusted and to trust in and have respect for adults, male and female. S.C. accepted his role, as he testified at trial, as A.M.’s step-parent and as such, he was responsible to protect her and keep her safe. He abused his position of trust and authority by molesting her not once but on number of occasions. So much so, that when she finally reported his abuse to her grandmother, she did so because she was frightened that, as she testified, it would get worse. Her testimony at the trial suggested nothing less than she was sufficiently aware of the nature and kind of abuse that she was experiencing to follow her mother’s advice and report it to someone she trusted, in this case, her grandmother. She became scared enough to do so. [38] In all of these circumstances, the court has concluded that an appropriate sentence to be imposed upon S.C., for his conduct in this case, is a term of imprisonment of nine months to be served in a correctional institute of Canada. The length of sentence responds to the concerns and considerations which the court has outlined including the Code mandates of denunciation and deterrence both of S.C. and the larger members of the community. This sentence also responds to the nature of the acts committed. Thankfully, because of A.M.’s intelligence and strength S.C.’s abuse of her, while serious, was reported soon enough to avoid the potential of much more serious abuse. Because of her strength what happened to A.M. has had an impact upon her which the court expects she will be able to overcome with time. [39] The sentence of imprisonment imposed by this judgment will be followed by a one year term of probation containing the standard conditions that the accused keep the peace and be of good behaviour, appear before the court when required to do so by the court, that he will notify the court or a probation officer in advance of any change of name or address and will promptly notify the court or the probation officer of any change of employment or occupation. [40] In addition, the court imposes the following optional conditions in this probation order: 1. That S.C. will report to probation officer within five working days after the making of this probation order and thereafter when required by the probation officer and in the manner directed by the probation officer; 2. That S.C. shall participate actively in assessments, education and/or treatment in an approved program or programs for substance abuse and sex offenders as may be directed by and to the satisfaction of S.C.’s probation officer and, if so directed, S.C. shall not give just cause for dismissal from such program. 3. That S.C. shall refrain from having any contact with A.M. during the period of his incarceration and, subsequently, this probation order. [41] The Crown has satisfied the court that this offence is an offence to which s. 109 of the Criminal Code applies and therefore a mandatory prohibition order shall issue prohibiting S.C. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period of 10 years after his release from prison. [42] A further order shall issue pursuant to s. 487.051(2) of the Criminal Code authorizing and ordering you to provide sufficient samples of your bodily substances so that a DNA analysis may be conducted. The court further orders, pursuant to s. 487.012 of the Criminal Code, that S.C. comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, the length of such order to continue for 20 years. [43] Finally, the Crown has requested an order be made pursuant to s. 161 of the Criminal Code prohibiting S.C. from engaging in certain employment involving positions of trust or authority towards persons under the age of 14 years and prohibiting him from attending certain public areas frequented by children under 14. am prepared to accept the submissions of the Crown with respect to ss. 161(1)(b) order, however, not in respect of an order under ss.(a). This offence occurred in particular circumstances and there is no indication that the acts of abuse were random nor is there any evidence that compulsive behaviours were involved. An order will therefore issue pursuant to s. 161(1)(b) prohibiting S.C. from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 14 years. J. T. C. Zarzeczny","The accused was found guilty of the following offence: for a sexual purpose touching A. M. a person under the age of fourteen years directly with a part of his body contrary to s. 151(a) of the Criminal Code. After reviewing the circumstances of the offence and the offender, in addition to sentencing principles as set out in the case law and statutes, the Court found that this was not a case where a conditional sentence served in the community is available or appropriate. The Court found the appropriate sentence, given all the circumstances, is a term of 9 months to be served in a correctional institute in Canada, to be followed by a 1 year term of probation containing the standard conditions. HELD: The accused is sentenced to 9 months incarceration. Pursuant to s. 109(1) of the Criminal Code, a firearm order was made for 10 years prohibiting the accused from possessing any type of weapon. The accused shall also supply a sample of his DNA for analysis. There is an order under s. 490.012(1) that the accused comply with the Sexual Offender Information Registration Act. The accused is also prohibited, pursuant to an order under s. 161(1)(a), from attending a public park or swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, day care centre, school ground, playground or community centre for a period of 3 years.",6_2009skqb272.txt
308,"SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: C. J. R. v. C. S. J. ), 2010 NSSC 85 Date: 20100305 Docket: 1201-062869, SFHD-060128 Registry: Halifax Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: January 25, 26, 27, 2010, and February 1, 2010, in Halifax, Nova Scotia Written Decision: March 5, 2010 Subject: Family Law, Divorce Act, Custody/Access, Domestic Violence, Summary: The parties had been in relationship for approximately years. They were 20 and 18 years of age when they commenced their relationship. They had two children and years of age. The wife requested an equal time shared parenting arrangement. The husband requested sole custody with the children in the wife’s care every second weekend. The wife alleged the husband was abusive of her. The parties had little face to face communication. The wife frequently did not respond to the husband’s reasonable requests involving the children. Issue: What custodial/access arrangement was in the best interest of the children? Result: The children were placed in the husband’s sole care and custody. The wife’s allegations of abuse were unfounded. The nature and cause of conflict between the parties made it unlikely conflict would be diminished under joint custodial arrangement. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: C. J. R. v. C. S. J. ), 2010 NSSC 85 Date: 20100305 Docket: 1201-062869, SFHD-060128 Registry: Halifax Respondent Judge: The Honourable Justice Beryl MacDonald Heard: January 25, 26, 27, 2010, and February 1, 2010, in Halifax, Nova Scotia Written Decision: March 5, 2010 Counsel: Mary Jane McGinty, for the Applicant Kenzie MacKinnon, for the Respondent By the Court: [1] This is divorce proceeding. The Husband and the Wife married on June 15, 2006. They had co-habited prior to their marriage since September 1999. At that time the Husband was 20 years of age and the Wife was 18. The Husband and the wife met in Halifax, Nova Scotia at Navy Reserves training course. The Husband had completed high school. The Wife had not. They have two children; the youngest is now years of age and the oldest is 6. The parties separated December 22, 2007. Both are employed in the Navy and may be subject to deployments that will take them out of Nova Scotia for significant periods of time although the husband, due to recent injury, may be leaving the Navy and pursuing other employment he is confidant will be available to him. [2] All assets have been divided between the parties. The children have been in the husband’s primary care since the separation. This did not occur with the consent of the wife. Unfortunately it has taken this long to bring this matter forward to final hearing. As result is the children have been in the husband’s primary care for approximately years. They have become familiar with the structure and routine he has put in place for them. They have become familiar with the pattern of time when they are in the wife’s care. The Interim Order issued in this proceeding dated May 19, 2009 placed the children in the primary care of the husband. The wife was to have the children in her care on alternate weekends from Friday evening until Sunday evening. In the week when the children were not to be with the wife on the weekend they would be in her care on Monday evening and Wednesday evening. The wife is now seeking an equal time shared parenting arrangement. The husband wants the present parenting arrangements to continue although he is open to providing additional parenting time to the wife. [3] am satisfied that all jurisdictional requirements of the Divorce Act have been met and that there is no possibility of reconciliation. am further satisfied there has been permanent breakdown of this marriage. The parties have lived and they continue to live separate and apart from one another for period in excess of one year from the commencement date of this proceeding. divorce judgment will be issued. CREDIBILITY [4] The testimony, both orally and in affidavits, given by the husband and his witnesses differs materially from that given by the wife. [5] When witnesses have different recollection of events the court must assess the credibility of their statements. adopt the outline for assessing credibility set out in Novak Estate, Re, 2008 NSSC 283 (CanLII), at paragraphs 36 and 37: [36] There are many tools for assessing credibility: a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses. b) The ability to review independent evidence that confirms or contradicts the witness' testimony. c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is ""in harmony with the preponderance of probabilities which practical [and] informed person would readily recognize as reasonable in that place and in those conditions"", but in doing so am required not to rely on false or frail assumptions about human behavior. d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution R. v. Mah, 2002 NSCA 99 (CanLII) at paragraphs 70‑75). e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) at paragraphs 51‑56). [37] There is no principle of law that requires trier of fact to believe or disbelieve witness's testimony in its entirety. On the contrary, trier may believe none, part or all of witness's evidence, and may attach different weight to different parts of witness's evidence. (See R. v. D.R. [1966] S.C.R. 291 at paragraph 93 and R. v. J.H. supra). BEST INTEREST OF THE CHILD Custodial Arrangements [6] What parenting arrangement is in the best interest of these children? Many courts have attempted to describe what is meant by the term “best interest” Judge Daley in Roberts v. Roberts, 2000 CarswellNS 372 said: .......These interests include basic physical needs such as food, clothing and shelter, emotional, psychological and educational development, stable and positive role modeling, all of which are expected to lead to mature, responsible adult living in the community.... [7] In Dixon v. Hinsley (2001) 2001 CanLII 38986 (ON CJ), 22 R.F.L. (5th) 55 ONT. C.J), at para. 46 the following appears: The “best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual, and moral well being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development ... [8] Several cases have attempted to provide guidance to the court in applying the best interest principle: See for instance Foley v. Foley (1993) 1993 CanLII 3400 (NS SC), 124 N.S.R. (2d) 198 (N.S.S.C); Abdo v. Abdo (1993) 1993 CanLII 3124 (NS CA), 126 N.S.R. (2d)1 (N.S.C.A). [9] The Divorce Act has itself provided the court with further direction in section 17 (10) requiring the court to: ...give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [10] This wording does not suggest there is to be presumption it is in the best interest of children to be parented by both parents in an equal time sharing arrangement, although many strive to suggest this is so. Therefore the question is how much contact with each parent is in the best interest of these children given their ages, stage of development, personalities, educational and other needs in the context of the ability of each parent to carry out his or her parental responsibilities and obligations. [11] review of many of the decisions in which judges have attempted to determine what is in child’s best interest reveal preference to continue children in the care of the person who is determined to be their “primary care parent”. This has led to discussion about how court can determine the identity of this person. In Burns v. Burns 2000 NSCA (CanLII), the Court of Appeal did provide some guidance and Justice Roscoe stated: 29..........the actual period of time spent with the children is not the only determinant. More importantly, in my opinion, is which parent has taken primary responsibility for all the important decisions concerning the health, safety, education, and overall welfare of the children, since the parties separated....... 30 In addition to the major matters, the primary caregiver is the parent who deals with the countless loess significant, but nonetheless obligatory, daily arrangements for the children’s clothing, haircuts, hygiene, extracurricular activities and everyday mundane affairs. Who would buy present for them to take to school friend’s birthday party? Who makes the appointments and takes then to the dentist? Which parent is keeping the record of their vaccinations, and fills their prescriptions? Who goes to the parent-teacher interviews? Who chose the pre-school?.......... [12] The decisions and activities described by Justice Roscoe are critical to child’s well being and may be overlooked by parent who has never been required to make these decisions or carry out these activities. However, because the primary care parent in relationship was frequently the female partner, this analysis has come under attack particularly from fathers. The division of labour within family often evolves to place the female partner in the role of primary care parent. It is easier to have one person attending to many of the above described parenting functions. But these are functions the other parent can learn to perform. It may be more important to examine the nature and quality of the child’s relationship with each of his or her parents than it is to merely add up the number of parenting tasks performed by each and assume the parent who preforms more of these tasks is the “primary care parent” who should therefore have day to day care of the child. More illuminating might be answers to questions like these: What does the parent know about child development and is there evidence indicating what is suggested to be “known” has been or will be put into practice? Is there good temperamental match between the child and the parent? freewheeling, risk taking child may not thrive well in the primary care of fearful, restrictive parent. Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline.? Does the child respond to the parent’s attempts to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid? How does that parent give comfort and guidance to the child? Is the parent emphatic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification of his or her own personal needs through the child? Can the parent examine the proposed parenting plan through the child’s eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child? Has the parent made changes in his or her life or behaviour to meet the child’s needs, or is he or she prepared to do so for the welfare of the child? [13] In this case have very little information upon which to assess the quality of the relationships between these children and their parents. The husband has acknowledged the children love their mother and do want to spend time with her. He has concerns about her parenting but he has not suggested her contact should be less than what is provided in the Interim Order. [14] The husband considers himself to be the “primary care parent” of the children. Certainly he has performed the majority of the “parenting tasks” since the separation but that merely is reality created by the separation itself and says nothing about the wife’s ability to perform those same functions. In fact she was required to perform all of the parenting tasks when the husband was deployed. The husband has suggested the wife was very stressed when parenting alone but that is understandable given the ages of the children and the lack of family and social supports existing for this family at that time. The evidence provided by the husband does not satisfy me that the wife is unable to preform the basic parenting tasks. The husband does complain about the wife’s ability to manage her finances. While he was deployed the parties debt situation worsened which is puzzling given their combined incomes at the time. However, have no evidence of any misuse of joint funds and therefore can draw no conclusions relative to parenting as result. The evidence before me does not suggest one or the other of these parents was the “primary care parent” during the marriage. They both performed the parenting tasks required of them as the need arose and both are able to perform those tasks. [15] significant portion of the wife’s evidence was devoted to portraying the husband as domineering, controlling and therefore abusive person. Nevertheless she has concluded that it would be best for the children at this time for (the husband) and to have shared parenting relationship in which, when either of us is not sailing offshore, the children are in our care for equal amounts of time” This suggests that whatever occurred between the parties has not caused the wife concern about the husband’s ability to appropriately parent these children. Therefore his allegedly abusive behaviour toward her should have no relevance to the appropriate parenting plan for these children. If party expects court to believe that abuse matters then the position taken should be indicative of the abuse suffered. parent truly concerned about the best interest of his or her children would not permit them to be parented by person who is abusive of intimate partners. If domestic violence is occurring this issue must be taken seriously and must not used as tactic to engage judicial sympathy. [16] The words “domestic violence” do and have defined number of behaviours including isolated or rare incidents in relationship push, shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” toward others may be quite different from those designed for persons who resort to abuse as mechanism of coercive control. Differentiation must be made between these two dynamics when both may be and frequently are referred to as “domestic violence”. In this decision use the term only to refer to violence against an intimate partner which has as its purpose coercive control over that partner. [17] Children are harmed emotionally and psychologically when living in home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Department of Justice website providing information about spousal abuse. [18] In this case the totality of the evidence suggests what violence there has been between the parties was often initiated by the wife. However, the husband is not blameless and both should pursue counseling to learn how to disengage from arguments and how to manage their frustration and anger. would not categorized what has happened between them as use of violence as mechanism of coercive control. Further the wife’s testimony that the husband did not support her return to high school, would not permit her to explore her native heritage, and isolated her from her friends and family is not supported by other testimony in this proceeding including her answers to questions put to her under cross-examination. I did not find the wife to be a credible witness and a further example of this was her allegation that the husband when deployed at sea “would not allot funds from his pay directly to me while he was gone....”. In fact all of the husband’s pay went directly into joint account with the wife. She had full access to those funds. This willingness of the wife to be untruthful or to misconstrue events in the telling of them, her contrived belief that she has been victimized by the husband, and her lack of insight about her contribution to the deterioration of their relationship suggests potential for continuing conflict between them. [19] In this proceeding the wife requests shared parenting with the husband. In Nova Scotia there are few written decisions providing guidance about the factors it may be important to consider when applying the best interest principle to request for shared parenting. Farnell v. Farnell [2002] N.S.J. No. 491, is one of those decisions and in it Justice Goodfellow commented: [10] “.........Shared custody rarely in my experience works and only seems to where there is present an environment where the children thrive when the children are able to fluidly move from one home to another by reason of parents who are mature in circumstances and reside in such close proximity that the children can go back and forth themselves, continue in the same school, continue with extracurricular activities, church or other activities that they would normally engage in. Such situation is next to impossible to attain and continue when children live at long distances .” [20] Parents in shared parenting arrangement must exhibit an ability to cooperate and jointly plan for their children. They must be able to do so on continuous basis, far more frequently than is expected from parents who have other parenting arrangements. Conflict and the potential for conflict must be at minimum. Each parent must respect the other and their value systems and methods of discipline should not be substantially dissimilar. They must be able to communicate face to face. They must respond quickly to inquiries from the other parent about issues involving the child, focusing on the child’s need not on the parent’s issues. Routines in each household should be similar to ensure the child is not confused by or encouraged to become oppositional because of different standards and expectations in each home. [21] shared parenting arrangement is not in the best interest of these children. The evidence presented during the hearing raises several concerns leading to this conclusion. The wife has been given opportunities to be involved in decisions relating to the oldest child’s educational program. It is clear she does not like the recommendations made by the child’s teacher, which have been accepted by the husband, to deal with the behavioral and learning challenges the child is facing. However the wife has taken no personal initiative to speak with this teacher. In addition this teacher has recommended the child be tested for ADHD. The wife objects to the child being “labeled” and has not been supportive of the teacher’s request or the testing although she now, belatedly, suggests she agrees the testing should be completed. Her responses to the concerns raised about this child’s educational progress suggests co-operative decision making between these parents will be difficult and potentially conflictual. [22] After the parties separated there was period of time when they appeared to parent co-operatively. Although the children were primarily in the husband’s care, when the parties arranged for the children to be parented by the wife, she did so in the matrimonial and the husband moved out for that period of time. However, when the husband decided he could not financially afford to keep the matrimonial home and have separate residence, the relationship between the parties began to deteriorate. The wife did not agree with this decision but was unable to finance her ownership of the home. It had to be sold. Her bitterness about this decision is evident and it appears to influence her present relationship with the husband. She is disrespectful of the husband personally and of the requests he makes in respect to the children. She often does not reply to his inquiries. She has suggested she has not received many of these inquiries. do not accept that testimony. am concerned she may reject the husband’s requests merely because he has made them. [23] These parents do not live reasonably close to one another. The husband lives in Cole Harbour, Nova Scotia and the wife lives in PMQ in Halifax. These are entirely different communities. These parents communicate through e-mail. Face to face meetings have resulted in unpleasant confrontations. [24] Discussions about what is an appropriate decision to make for child’s benefit should not be overwhelmed in “power struggle” between the parents. do find the wife has viewed her relationship with the husband as power struggle. For example, rather than take the opportunity to be with her children, when asked by the husband to care for them on night he wished to go out, she refused telling him am not your babysitter”. She did not have the Christmas vacation time with the children she initially requested because she would not co-operate to confirm the arrangement in consent order essentially because the husband would not agree to her requests relating to the matrimonial home. [25] am satisfied these parents are unable, at this stage in their relationship, to meet the basic requirements for successful shared parenting. [26] While shared parenting is inappropriate for these children what about joint custody? Conflict between parents does not necessarily mean joint custody is also inappropriate. Gillis v. Gillis (1995), 1995 CanLII 4416 (NS SC), 145 N.S.R. (2d) 241 (N.S.S.C.); Rivers v. Rivers (1994), 1994 CanLII 4318 (NS SC), 130 N.S.R. (2d) 219 (N.S.S.C. [27] Joint custody is difficult concept for many to understand. It does not refer to physical closeness to the child nor to shared day-to-day parenting. Joint custody does not mean parent has the right to micro-manage the daily care of the child by the other parent. Each has the right to make independent decisions in that sphere when the child is in his or her physical care. At one time it was clear that joint custody required joint decision making while “sole custody” did not. Recently however, it is not uncommon for joint custodial arrangements to give one parent “final decision making authority” and for sole custodial arrangements to require information to be provided and consultation undertaken with the other parent. What any of these categorizations now mean has become blurred and indistinct. Third parties dealing with parents must be given an entire copy of an order involving children to understand what information may be released to parent, what consultations may include that parent and what parent is to provide direction to the service provider. [28] Perhaps joint custody is more appropriately considered as philosophical concept. It requires parents to remain as committed to their children as they were when living together. When child is ill and treatment must be chosen, when choice must be made about schooling, when there is decision to be made about religious training, when child is in trouble with the law or has behavioural problems, joint custody means the parents will discuss these issues and come to joint decision as parents do in intact families. This process is fluid one and only requires elaboration when it is clear there are impediments to joint decision making. [29] Given that distinctions between joint custody and sole custody are now often difficult to discern, what difference remains upon which to determine whether custodial arrangement is to be labeled as one or the other? Aside from any tax or income benefit arguments, the most significant effect of the labels may be the parents’ response to and interpretation of the words used. An order for joint custody that authorizes one parent to make final decision if agreement cannot be reached may be an attempt to recognize and preserve the responsibilities of parenthood but to avoid continuing litigation when there is an impasse. Unfortunately this type of order may still provide one parent with reason not to seriously consider the other parent’s opinion or to meaningfully consult with the other parent. If this occurs the result may be further resentment by the insufficiently consulted parent and this can further impede the potential for joint decision making. am attracted to the comments made by Justice Bertha Wilson then of the Ontario Court of Appeal, in her dissenting opinion in Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C. A.) at p. 73 commenting upon the concern about further litigation between parents: “And what if occasional resort has to be made to the courts when the parents cannot agree on major matter affecting the child? Is this to be determinative consideration? It seems to me to be modest price to pay in order to preserve child’s confidence in the love of his parents and with it his own sense of security and self-esteem.” [30] Children do benefit from joint decision making because they will have the benefit of the expedience, knowledge and analysis provided by each of their parents. However an appropriate consideration of each parental viewpoint may not occur if there is power imbalance. Why would it be in the best interest of child to create potential power imbalance? Is it because the court believes the parents will, if ordered, suddenly put aside their differences and fully participate in decision making? If this is the case the court should award joint custody without giving one parent “final decision making authority”. If it isn’t why wouldn’t an order giving one parent sole custody with requirement to inform and consult with the other parent be more in the child’s best interest? Perhaps joint custody is preferred to avoid the negative consequences word choice can have on parental perception. Parents who have joint custody may be less likely to consider their parenting role to have been diminished and therefore be less likely to withdraw from meaningful contact with their children. Continuing to respect the role and responsibility both parents have in fulfilling parental obligations may encourage parents to overcome existing conflict between them. These are suggestions found in reported decisions. However, joint custody must not be granted as form of wishful thinking. The nature and extent of the conflict between the parties must be analysed to determine if joint custody is in child’s best interest. [31] The court in Godfrey-Smith v. Godfrey-Smith (1997), 165 N.S.R. (2d), 245 (N.S.S.C.) at paragraph noted that the parents had in the early months of their separation displayed, “.... healthy amount of cooperation as far as the children were concerned.” The Court then stated: [17] It is painfully obvious to me that these parties in recent months have demonstrated depressing lack of cooperation. This has resulted in the vitiation of virtually all direct communication between them. They do not meet face-to-face. They do not talk on the phone. Their e-mails are curt at best. They use their children as messengers and then wonder why things get lost in the translation. [20] It seems to me that when facing contested application for joint custody court should make distinction between the parties’ inability to communicate as opposed to the parties’ unwillingness to communicate. To do so it will be necessary to explore their relationship with both pre-and post-separation with view to determining how they have historically handled parenting issues. [22] Thus, the parties relationship at the time of the divorce may be of less significance than the relationship during the marriage; it being expected that conflict precipitated by litigation will likely abate in time. ............ [32] There has been conflict between these parents. They no longer have face to face contact. Their conflict may have been fuelled by the existence of these proceedings. Excerpts appearing on pages 56 an 59 from Norris Weisman’s article entitled, On Access After Parental Separation, 36 R.F.L. (3d) 35 explain this phenomena: ...the adversarial nature of litigious proceedings can shift the focus of the hearing away from the children and their needs towards an emphasis on the martial sins of the parents; revive and escalate the conflict between the parents; harden their positions; and tempt them to exert pressure upon the child to choose one parent over the other........ ...the litigation itself is often motivated by need for public vindication, to ward off depression, or salvage shattered self –esteem. These parents enter into litigation to prove that the other spouse has behaved badly or is wrong, and, by contrast, that they themselves are good and right. [33] These parents were young and immature at the beginning of their relationship. They have faced personal challenges including raising their children while attempting to advance in their chosen careers. Each has parented these children alone for periods of time. Initially after separation they were able to work out child care schedule, admittedly with some difficulties, and make adjustments when necessary. However, the intervening conflict has caused the wife to perceive herself as a victim of the husband’s abuse; it has exposed her own lack of insight into the dynamics of their relationship and the impact upon their children; her reflex action is not to cooperate with the husband; she now has little respect for him. She has been unresponsive to his reasonable requests; her focus has not been upon the needs of her children. am not satisfied conflict driven by these factors will disappear merely because an order for joint custody, by its very nature, requires the parties to cooperate. am not persuaded the appropriate response to this dilemma is to provide an order for joint custody giving the husband final decision making authority. A track record of respectful parenting may alter this conclusion in the future but for the present I find it to be in the best interest of these children to be in the sole custody and care of the husband. [34] The husband shall provide the wife with information about all services provided to the children by others, including those provided by schools, physicians, dentists, counsellors, recreation providers, and religious institutions. He is to provide the name and address of service providers and he is to explain why the service is necessary if the reason for the services is not apparent. Copies of all reports received are to be given to the wife. The wife is to have the authority to consult with all third party service providers so she may be informed about their recommendations and understand the reasons for their recommendations. If these recommendations require parent to follow course of action when parenting child the wife shall comply with the recommendations when that child is in her care. Parenting Plan [35] Unfortunately neither party presented the court with detailed parenting plan outlining when the children will be in the wife’s care, what will happen during holidays, during the summer, on birthdays etc. do know the husband requests the children continue to be in the wife’s care as is set out in the Interim Order. The husband has stated he is prepared to agree the children be in the wife’s care for other periods. He had suggested they stay with her overnight on Sunday and then be taken by the wife to the school and caregiver. do not know if that is practical. do accept the evidence that the children appear to have experienced no negative consequences arising from the present schedule. The present schedule will remain in effect but it must contain further detail. The Interim Order does not state the pick up and return times. It does not state where transitions are to happen. Presently they take place away from the parties residences. This is unsatisfactory for the children but may lessen the potential for conflict. The order reflecting this decision is to include the detail about drop off and pick up times and the place for transitions. It is to include arrangements for holidays, Christmas, March Break and summer vacation. It is to include clause providing the wife such other reasonable parenting time as the parties can agree upon”. If the parties cannot agree upon the details and holiday parenting time retain jurisdiction to resolve these issues. CHILD SUPPORT [36] The parties have not made submissions requesting change in child support other than the change that may have been appropriate if shared parenting arrangement had been ordered. Therefore the wife shall continue to pay child support to the husband as is required by the terms of the Interim Order dated August 26, 2009. [37] If the parties are unable to resolve the issue of costs, the Husband shall first provide written submissions to this court and to the Wife after which she shall have 14 days to file with this court and copy her reply to the Husband. If the Wife raises anything in her submissions not addressed by the Husband in his he shall file with this court and copy to the Wife his response in writing within days. Beryl MacDonald, J.S.C.","The parties were separated and had difficulty communicating. They were together for eight years, and had two children (ages six and three). The husband had interim care and sought sole custody/primary care, while the wife wanted shared custody (50/50). She alleged the husband was abusive. The evidence showed she unreasonably refused to cooperate with him in relation to matters concerning the children. Sole custody/primary care to the father, with access to the mother as per the interim arrangement (every second weekend and other times). The mother was not credible and her allegations of abuse unfounded. If a party expects the court to believe there was domestic abuse, their position on parenting should reflect that. Shared custody arrangements require cooperation and the ability to jointly plan. Similarly, joint custody requires a level of cooperation. A requirement to make decisions jointly is not in the children's best interests if it leads to conflict and creates a potential power imbalance. Looking at the nature and extent of the parents' conflict, sole custody is appropriate until there has been an established track record of respectful parenting.",4_2010nssc85.txt
309,"J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: STEPHIE SOKULSKI PLAINTIFF (APPLICANT) and DWAYNE SOKULSKI DEFENDANT (RESPONDENT) and THE LUMSDEN HOTEL and THE ROYAL BANK OF CANADA GARNISHEES R.A. Leland for the applicant No one appearing for the respondent. No one appearing for the garnishees. JUDGMENT GUNN J. September 28, 1995 Stephie Sokulski (""the applicant"") applies for anorder pursuant to s. 14 of The Attachment of Debts Act, R.S.S.1978, c. A-32 (""the Act""), paying out to her certain moniespaid into court by the Royal Bank of Canada and by MartindaleHoldings Ltd. (The Lumsden Hotel) plus the interest thereon. Dwayne Sokulski (""the respondent"") was personally served with notice of this application, but he did not appear. The applicant obtained judgment against the respondent May 11, 1987, in the Court of Queen's Bench for the province of Alberta. The judgment was registered as judgment of the Court of Queen's Bench for Saskatchewan July 7, 1987, in the sum of $11,634.74. garnishee summons naming the Royal Bank as the proposed garnishee was issued on November 26, 1987, and served on the Royal Bank November 30, 1987. The Royal Bank paid the sum of $50.11 into court December 2, 1987. garnishee summons naming the Lumsden Hotel as the proposed garnishee was issued on December 15, 1988, and served on the Lumsden Hotel on January 9, 1989, and January 28, 1989. The respondent was served with the garnishee summons January 24, 1989. Martindale Holdings Ltd. (The Lumsden Hotel) paid the following sums into court: 1. February 9, 1989 $33.87 2. March 7, 1989 $99.57 3. April 17, 1989 $66.72 4. May 5, 1989 $66.72 5. June 13, 1989 $66.72 THE LEGISLATION The relevant provisions of the Act are as follows: 5(1) Service of the summons on the garnishee shall bind any debt due or accruing due from the garnishee to the defendant or judgment debtor and all wages or salary that become due or payable at any time within five days after service of the summons. (3) copy of the garnishee summons shall be served on the defendant or judgment debtor, or his solicitor, within 20 days after service on the garnishee, or within such further time as the court or judge may order ex parte. 14(1) No order shall be made against the garnishee or for payment out of any money paid into court by the garnishee, until at least ten days after service of the summons on the defendant or judgment debtor and on the garnishee, nor when garnishee summons issues prior to judgement[sic] until the plaintiff has recovered judgment against the defendant. DISCUSSION There are number of deficiencies in the procedure adopted. The respondent was never served with the garnishee summons naming the Royal Bank as garnishee. With respect to the Lumsden Hotel, there is evidence it was served on two occasions with garnishee summons, but it paid money into court on five occasions. The judgment debtor appears only to have been served with the garnishee summons once. There has been no application by the judgment debtor to set aside either garnishee summons garnishees, nor did he appear to speak to the application for payment out. The applicant invites me to exercise my discretion to allow the money to be paid out, given the passage of time, even with all of the above deficiencies. The total amount paid into court by both garnishees was $383.71. Interest accrued to the amount paid into court equals $197.92 for total sum of $581.63 remaining in court. The question is whether, considering the deficiencies, there is any authority for the court to exercise its discretion to order the money to be paid out to the plaintiff. The court has exercised its inherent power to controlits own process in garnishment proceedings on a number ofoccasions. In Kroma Kolor Photo Labs v. Snyder et al. (1991), 1991 CanLII 7588 (SK QB), 98 Sask. R. 257 (Q.B.), Halvorson J. expressly exercised this discretion to resolve matter not within the purview of the Act. Halvorson J. ruled that ss. 11(1) of the Act did not empower the court to set aside judgment entered against non-appearing garnishee pursuant to motion under s. 18 of that Act. However, Halvorson J. held the court had jurisdiction to intervene based on its inherent power to supervise its own process. Consequently, Halvorson J. exercised this discretion and set aside the judgment obtained against non-appearing garnishee. With regard to the power of superior court to pay money out of court, Sorsdahl v. Dahl House Inc., [1991] W.W.R. 730 (Sask. C.A.) is instructive. In that case the appellant appealed decision of chambers judge ordering the return of money mistakenly paid into court by garnishee. Cameron J.A. speaking for the court said the following at pp. 730-731 of his judgment: Whether or not power exists in the court under the Attachment of Debts Act to return money paid in by mistake is neither here nor there, for in our opinion the court enjoys general power to do so. It would be incongruous were it otherwise. The court, after all, is superior court, charged generally with the administration of justice, and enjoys inherent as well as statutory jurisdiction. Were there no other source of power to rectify mistakes of this nature, the court could draw upon its inherent powers to do so. An example of the exercise of the court's inherent power is found in decision of Johnson C.J.Q.B. in Bank of Nova Scotia v. Bulych, MacEachern, Richardson, Lovell and Sydco Management Ltd. (1981), 1981 CanLII 2416 (SK QB), 13 Sask. R. 332 (Q.B.) where he upheld lower court ruling setting aside two pre-judgment garnishee summons. As consequence of the invalidity of the summons, the court was asked to determine who should receive monies already paid into court. The plaintiff contended that the court should pay the money out to the garnishees. In response, Johnson C.J.Q.B. stated at pp. 334-335 of his judgment: Counsel for the plaintiff contends that the status quo immediately prior to service of the defective documents should be restored and the money should be paid back to the garnishees. With the utmost respect it is my view that the money should be paid to the defendants. Each of the garnishees paid the money into court and by their respective acts they acknowledged that the funds in question were owned by the defendants to whom each was indebted. There is no good case in my view for the funds to be paid back to the respective garnishees. Accordingly after the time for appeal has elapsed and if no appeal is taken the funds, including any accrued interest, will be paid to each of the defendants. Although not expressly stated, Johnson C.J.Q.B. utilized the inherent powers of the court to direct payment out of money paid into court under an invalid garnishee summons. Perhaps the most persuasive case is Kirby v. Townsend (1988), 1988 CanLII 5256 (SK CA), 72 Sask. R. 12 (C.A.) reversing in part 1988 CanLII 5217 (SK CA), 72 Sask. R. (Q.B.) where Tallis J.A. speaking for the court, upheld an order setting aside pre-judgment garnishee summons. However, Tallis J.A. further held that the chambers judge erred by ""freezing"" the money already paid into court under the invalid garnishee summons pending resolution of the trial of the action. Rather, the court stated that the chambers judge should have directed that the monies ""be forthwith paid out to the defendants"" (at p. 15). However, Tallis J.A. also noted that, by reason of the court's earlier statements upholding the trial decision of the action, payment of the monies out of court to the defendant was no longer an issue. He stated at p. 15: There is, however, complicating factor because the plaintiff succeeded at trial and recovered judgment from which an appeal has now been dismissed today. If the defendants had brought this garnishment appeal forward in timely way, we would have directed that the monies be paid out to them but now that the plaintiff has successfully resisted the appeal from the trial judgment, we decline to do so. The monies now in court are available for payment of the judgment. However, we emphasize the clear error of the learned Chamber judge in making the order that he did and wish to make it clear that this practice should not be followed in future. Accordingly am satisfied in the circumstances before me that the monies paid into court by the Royal Bank and the Lumsden Hotel are available for payment of the plaintiff's judgment notwithstanding the deficiencies. I amalso satisfied the court has the discretion to order thepayment of the money to the plaintiff as a judgment creditor. I order that the monies held in court to the creditof this cause be paid to the plaintiff. I make no order as tocosts as this chambers application would have been unnecessaryhad the proper procedures been followed in the first instance.","The Plaintiff applied for payment out of certain monies paid into court in response to 3 garnishee summons served on 2 garnishees after judgment. The first summons was never served on the Defendant. Of the other 2, only 1 was served on the Defendant. Further, although 1 garnishee was only served twice, it paid monies into court on 5 occasions. There was no application to set aside any of the garnishee summons' by the Defendant and he did not appear on this application. HELD: Application allowed. 1)The court has an inherent power to control its own process in garnishment proceedings. 2)The court also has the discretion to order the payment of the money to the plaintiff as a judgment creditor. 3)The chambers judge ordered that the monies held in court to the credit of this cause be paid to the plaintiff, but made no order as to costs.",c_1995canlii6136.txt
310,"Q.B. A.D. 1998 No. 2272 J.C.R. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GERTRUDE RUSSELL and ROBERT HARVEY MacFARLANE and VIVIAN JUNE MacFARLANE RESPONDENTS J.P. Malone for the applicant G.J. Tkach for the respondents JUDGMENT HUNTER J. August 27, 1998 [1] The landlord, Gertrude Russell (""Russell""), appliesfor an order for a writ of possession pursuant to s. 50 of TheLandlord and Tenant Act, R.S.S. 1978, c. L-6, as am. S.S. 1979-80, c 92. [2] The respondents, Robert Harvey MacFarlane and Vivian June MacFarlane (""MacFarlanes""), entered into lease dated October 13, 1995, with Russell and her now deceased husband (date of death, September 13, 1997) with respect to land legally described as Section 30, Township 16, Range 6, West of the Second Meridian (""the land"") together with the buildings on the land including house, barn and granaries and, in addition, equipment described in Schedule ""A"" to the lease (including tractors, swathers, balers, etc.). The lease was for term of 41 months up to and including April 30, 1999. [3] The MacFarlanes covenanted to pay monthly rental of $500.00 per month for the first five months of the lease and thereafter the rental payments were to be made by equal semi- annual payments of $5,000.00, the first payment to be made on May 1, 1996, and thereafter the rental payment to be made on the first day of each six month period during the term of the lease. The MacFarlane\'s have not paid any rent in 1998. Five thousand dollars should have been paid May 1, 1998. [4] Russell alleges she is entitled to writ of possession on the following grounds: (a) The MacFarlanes are in arrears of rent by more than two months. (b) The MacFarlanes are in breach of their covenantto obtain and maintain suitable insurance uponthe leased premises. (c) The MacFarlanes are in breach of their covenantnot to make any alterations or additions to thedemised premises because they have installedalternating stalls in the barn. (d) The MacFarlanes are in breach of their expressedand implied covenants to keep the demisedpremises in good condition and tenantable repairand to use and occupy the demised premises in agood husband like manner by virtue of theirfailure to:-- remove and properly dispose of baler twine;-- maintain proper weed control;-- remove manure buildup in the calf barn. [5] The MacFarlanes filed affidavit evidence in response to the allegations made by Russell and there are factual disputes with respect to the alleged breaches of the covenants in the lease. Where there are involved questions of fact orlaw, the matter should not be decided summarily but should bedecided in an action (Vogelgesang and Kennedy v. WilliamsHoldings Ltd. (1981), 1981 CanLII 2300 (SK QB), 15 Sask. R. 336 (Sask. Q.B.)). Accordingly, only two issues need to be addressed, namely, the non-payment of rent and the alleged failure to maintain proper weed control. [6] The MacFarlanes admit the payment due May 1, 1998, wasnot made because, they allege, Russell has breached the lease(clause 5.2) and because there was a pre-condition to thelease wherein Russell\'s husband promised to repair the damageto the premises from a hail storm which occurred in August,1995, and the damage has never been repaired. [7] Under the landlord's covenants in the lease, clause 5.2 To keep the building insured against loss or damage by fire and other insurance cause and to build and reinstate them whenever damaged by fire or other insured cause. If as result of fire other than damage for which the Tenant is responsible, the Leased Premises is unfit for carrying on the Tenant's business the rent shall abate until the Leased Premises are again fit for the Tenant's business. If part only of the Leased Premises are unfit for the Tenant's business the rent abates pro rata until the whole of the Leased Premises are fit for the Tenant's business. [8] With respect to the hail damage which occurred in August, 1995, and prior to the execution of the lease, this matter was addressed in the lease in paragraph 3.1 as follows: 3.1 The Parties agree that the Tenant shall be solely responsible to repair and maintain the land, buildings and equipment except for the hail damage to the house siding and shingles on the barn addition which shall be replaced by the Lessor. [9] The MacFarlane's now allege that the Russells did not repair the hail damage to the house, barn, milk house/calf barn, and shed at the back of the barn. The claims for repair now being made by the MacFarlanes are far in excess of those provided for in clause 3.1 of the lease. [10] In The Landlord and Tenant Act, s. 27, tenant is entitled to set off against rent due debt owed to the tenant by the landlord. The tenant is required to give notice of the claim of set off to the landlord. The issues with respect tothe hail damage may allow the MacFarlanes to claim in damagesagainst Russell but it cannot be construed as a debt due forthe purposes of s. 27 of The Landlord and Tenant Act. [11] Accordingly, the MacFarlanes are in breach of thecovenant to pay rent and the rent is outstanding for more thantwo calendar months. For this reason Russell is entitled to awrit of possession directed to the sheriff to put Russell inpossession of Section 30, Township 16, Range 6, West of theSecond Meridian, Saskatchewan. [12] The remaining allegations made by Russell with respectto the other alleged breaches of the covenants by theMacFarlanes may not be determined summarily. The MacFarlanes have failed to respond to the allegation that one quarter section of land has not been seeded and therefore is entirely covered with wild millet (a weed). However, based on the evidence before me in this application, am not prepared to draw the inference that that is failure on the part of the MacFarlanes to use and occupy the premises in good husband like manner. With respect to all of the other allegations raised, it would be necessary to have trial of the issue to determine whether or not Russell is entitled to writ of possession for any of those other reasons. [13] Accordingly, a trial of the issue is directed todetermine whether the respondents are in breach of thecovenants of their lease as alleged with respect to thegrounds stated by Russell in paragraphs (b), (c) and (d),supra. Russell shall be the plaintiff and the MacFarlanes the defendants in any such action and the Rules of Court generally will govern the conduct of that action. [14] writ of possession in accordance with Form ""C"" of The Landlord and Tenant Act may issue with costs of this application to Russell in any event of the cause.","Landlord and Tenant - Writ of Possession_____ The landlord applied for an order for a writ of possession pursuant to s50 of the Landlord and Tenant Act. The 41 month lease required a monthly rental of $500 for the first five months and thereafter semi-annual payments of $5,000. The tenants had not paid any rent in 1998 nor had they maintained insurance; they installed alternating stalls in the barn in breach of their covenant not to make any alterations or additions to the premises; breached the express and implied covenants to keep the premises in good condition and tenantable repair by their failure to remove and properly dispose of baler twine, to maintain proper weed control or to remove manure buildup in the calf barn. The tenants admitted the rental payment was due in May but claimed the landlord breached the pre-condition wherein Russell's husband promised to repair the damage caused by a 1995 hail storm. The claims for repair was far in excess of those provided for in the lease which were the tenant's responsibility._____ HELD: 1)The landlord was entitled to a writ of possession since the tenants were in breach of the covenant to pay rent for more than two calendar months. 2)A trial of the issue was ordered to determine whether the tenants were in breach of covenants in the lease. The matter should not be decided summarily where there are questions of fact or law. The hail damage may allow the tenants to claim in damages against the landlord but it could not be construed as a debt due for the purposes of s27 of the Landlord and Tenant Act. The remaining alleged breaches could not be determined summarily.  3)Costs of the application were awarded to the landlord in any event of the cause.",5_1998canlii13934.txt
311,"nan NOVA SCOTIA COURT OF APPEAL Citation: Dixon v. Nova Scotia (Public Safety), 15 Date: 20110203 Docket: CA 343192 Registry: Halifax Between: Delilah Delores Dixon and Peter Sheldon MacKinnon v. The Director of Public Safety Respondent Judge: The Honourable Justice David P.S. Farrar in Chambers Motion Heard: February 3, 2011, in Halifax, Nova Scotia Held: Motion granted. Counsel: Tony Mozvik and James Snow, for the appellants Glenn Anderson, Q.C. and Terry Potter, for the respondent Decision: [1] The appellants, Delilah Delores Dixon and Peter Sheldon MacKinnon, seek leave to appeal and appeal from the decision of The Honourable Justice Patrick J. Murray reported as 2011 NSSC 5 (CanLII) and Order dated January 18, 2011. [2] The order requires the appellants to vacate their home at 1437 Bay St. Lawrence Road, Aspy Bay, Nova Scotia, for a period of 70 days beginning at 12:01 p.m. on February 4th, 2011. [3] By notice of motion dated January 28, 2011, the appellants move for a stay of the provisions of the Order requiring that the premises be vacated. The stay is sought pending this appeal. [4] The appellants with their three children, D. age 7, T. age 4, and J.R. age reside at 1437 Bay St. Lawrence Road (the Property). [5] In July, 2010, they were served with a notice by the Director of Public Safety of an application for a community safety order under the Safer Communities and Neighbourhoods Act, S.N.S. 2006, c. 6 (the Act). The matter was originally scheduled to be heard on July 30, 2010, but was eventually adjourned and heard on October 6, 7, 13, 14 and 15th with the trial judge rendering written decision on January 6, 2011. As result of the trial judge’s decision, an order was issued on January 18, 2011, requiring the Property to be vacated on or before February 4, 2011, at 12:01 p.m. and enjoining the appellants from re-entering or re-occupying the property for period of 70 days. [6] The appellants seek leave to appeal and appeal from that Order alleging that the trial judge: 1. failed to properly interpret the meaning of the term “habitually used” as that term is used in s. 7(1)(a) of the Act; 2. failed to properly interpret the meaning of the term “reasonable inference” as that term is used in s. 7(1)(a) of the Act; and 3. failed to properly interpret s. 7(1)(a) and 7(1)(b) of the Act in regard to the need for community safety order. [7] The parties do not dispute that the test to be applied is based on the decision of Hallett, J.A. in Fulton Insurance Agencies Ltd. v. Purdy, [1990] N.S.J. No. 371 (Q.L.) (N.S.C.A.). The test has two parts. The applicant can be successful if it is established, on balance of probabilities, that there is an arguable issue raised by the appeal, irreparable harm to the appellant would occur should the stay not be granted (assuming the appeal is ultimately granted); and the appellant will suffer greater harm if this stay is not granted than the respondent if the stay is granted. [8] The Director of Community Services, in its brief filed in opposition to the motion has conceded, quite appropriately, the arguable issue part of the test and, therefore, need only consider the final two parts of the test. Irreparable Harm [9] In Alementary Services Ltd. v. Nova Scotia (Alcohol and Gaming Division), 2009 NSCA 61 (CanLII), Chief Justice MacDonald was considering situation where the Nova Scotia Utility and Review Board suspended the Split Crow Pub’s liquor license for two days as result of regulatory infractions. Chief Justice MacDonald granted the stay noting two reasons relating to irreparable harm as follows: nan In this motion, conclude that irreparable harm will result without stay. say this because of the cumulative effect of the following two factors. nan Firstly, am satisfied that without liquor license, the Pub will close its doors for the duration of the suspension. Its losses, while not impossible, would be difficult to calculate. Furthermore, should the appeal be allowed, it is unclear from whom if anyone these losses could be recovered. nan Secondly, without the stay, the suspension will have been served by the time the appeal is heard. This would effectively deny the Pub its right to appeal. [10] Similarly, I am satisfied, that the cumulative effect of the following factors leaves me to conclude that irreparable harm would result without a stay. [11] In the affidavit filed in support of the motion, the appellant, Ms. Dixon, deposes that her middle child, T., is autistic and attends North Highlands Elementary School, approximately 500 metres from their home. If she is forced to leave the home, T., because of her condition, she is unable to take the bus to school. She also says that the family does not have alternative living arrangements and would be forced to leave the community and remove the children from their present school. The potential damage to the children, and in particular, to T. being unable to attend school or in having difficulty getting to school cannot be measured in monetary terms. [12] Secondly, as in Alementary Services, supra, without the stay, the 70 day period for vacating the house will have been served by the time the appeal is heard. This would effectively deny the appellants their right to appeal. Balance of Convenience [13] The balance of convenience also favours the granting of stay. Again, without the stay, the appeal would be rendered moot. The balance of convenience also favours the children remain in their present school. [14] As well, there has been two interim orders in place, with conditions, since July, 2009, pending the trial decision in this matter, period of over five months. There is no evidence or suggestion that the orders have been breached or that there has been any harm to the community during that interim period. Taking these three factors into consideration am satisfied that the balance of convenience also favours the appellants. [15] I am prepared to grant the stay on the following terms and conditions: 1. paragraphs and of the Order are hereby stayed; 2. the date on which the stay ceases to be of effect is the issuance of subsequent order of this Court following the hearing of the appeal; 3. save and accepting the appellants, their three children and a babysitter, whose name shall be provided to the Director of Public Safety in advance, all persons shall vacate the Property each and every day from the hour of 11:00 p.m. and be enjoined from re-entering the Property each and every day until the hour of 6:00 a.m.; 4. service of this Order on the Appellants shall be deemed to have been effected upon its issuance; 5. costs of this motion shall be costs in the cause. 6. the remaining provisions of the Order remain in full force and effect. Farrar, J.A.","The appellants sought a stay pending their appeal of an order made under the Safer Communities and Neighbourhoods Act requiring them to vacate their home for 70 days. The had abided by the terms of an interim order placing conditions on their use of the home for more than five months. They gave evidence that move would force them to take their three children out of school and move to new community. Their eldest daughter is autistic and unable to take school bus. She can walk to school from this home. Stay granted, with conditions including a requirement that no one but the appellants, their children and an approved babysitter(s) be at the home between 11 pm and 6 am. Without a stay, the appellants and their children would suffer irreparable harm. The potential damage to the children can't be measured in monetary terms and without a stay, the issue would be moot by the time the appeal is heard. The balance of convenience favours a stay. The appellants have followed the conditions in the interim order(s). There is no suggestion the community has suffered harm during this time.",e_2011nsca15.txt
312,"Dated: 20000403 2000 SKCA 39 Docket: 2096 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Vancise Lane JJ.A. DONALD BROWN AND EDNA BROWN and THE WAWANESA MUTUAL INSURANCE COMPANY COUNSEL: Mr. Bill Selnes for the Appellants Mr. Greg Thompson for the Respondent DISPOSITION: On Appeal From: Q.B. 787/94, J.C. of Prince Albert Application Heard: 03 April 2000 Application Allowed: 03 April 2000 (Orally) Written Reasons: 05 April 2000 Reasons By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane TALLIS J.A. (Orally) [1] We have before us a motion by the appellants to admit fresh evidence, which if allowed, mandates a new trial. [2] At the outset we observe that although this application is in the context of civil action, it does have significant criminal overtones in that the respondent alleges arson in paragraph four of its statement of defence which reads: 4. The Defendant says that the fire was not accidental in origin but was deliberately set by person insured under the policy. [3] We are all of the opinion that the ""fresh"" evidence of Mr. T.V. Jones should be admitted and a new trial ordered. In this case the strictness of the due diligence requirement should be relaxed in light of the allegation of arson. Although the expert evidence of Mr. Jones was available, counsel at trial failed to competently present this evidence on behalf of the appellants: see for example Canadian Imperial Bank of Commerce v. George Leslie Wilson Freeman, unreported, Sask. C.A., March 14, 1996. [4] We also find that the proffered fresh evidence could reasonably have affected the result at trial, particularly with respect to the ""cause of the fire"". [5] The appellants shall pay the respondent's costs of the trial, to be taxed on party and party basis, on or before July 15, 2000. The appellants shall also pay the respondent's costs of all proceedings in this Court including this motion and preparation for the appeal, with the same to be taxed on double Column and paid on or before July 15, 2000. In default of payment of these costs, the appellant shall be liable, on application to this Court, to have their claim struck out and the action dismissed.","The appellants sought to admit fresh evidence. HELD: 1)A new trial was ordered. The due diligence requirement was relaxed in light of the allegation of arson in the respondent's statement of defence. Although the expert evidence was available at trial, counsel failed to competently present the evidence. The fresh evidence could reasonably have affected the trial result respecting the cause of the fire.  2)The appellants were to pay party and party costs plus the respondent's cost of all proceedings in the Court of Appeal including preparation for the appeal taxed on double column V on or before July 15, 2000. In default of payment the appellant's claim may be struck.",c_2000skca39.txt
313,"Registrar C.A. No. 128144 NOVA SCOTIA COURT OF APPEAL Freeman, Bateman and Flinn, JJ.A. BETWEEN: FREDERICK W.F. BLACK and KRUPP MaK MASCHINENBAU GmbH body corporate, and KRUPP MaK DIESEL INC., body corporate Respondents the appellant appeared in person Thomas M. MacDonald for the Respondent Appeal Heard: October 9, 1996 Judgment Delivered: October 22, 1996 THE COURT: Appeal dismissed with costs to the respondents in the amount of $1500.00 inclusive of disbursements per reasons for judgment of Bateman, J.A.; Freeman and Flinn, JJ.A. concurring. BATEMAN, J.A.: Mr. Black appeals the Order of Justice Michael MacDonald of the Supreme Court dated April 30, 1996, dismissing a motion to strike the plaintiffs' (respondents') Originating Notice and Statement of Claim. Background: The respondent companies claim that they are creditors of bankrupt company, NsC Diesel Power Inc. The appellant was the shareholder, chief officer and controlling mind of that company. On August 10, 1994, Associate Chief Justice Palmeter granted an Order (issued September 7, 1994) pursuant to s. 38 of the Bankruptcy and Insolvency Act, as amended. That Order was granted upon the motion of the respondents herein (Krupp) who sought leave of the court to initiate an action against the appellant, as is required by s. 38. The appellant unsuccessfully applied for an Order of this court declaring the s. 38 Order, along with other Orders granted by Palmeter, A.C.J., ""nullity"". The decision of Pugsley, J.A., in Chambers, on this issue, is dated October 26, 1994. The appellant by way of application purported to appeal that decision to the Chief Justice, who, by decision dated November 24, 1994, dismissed the application. On September 28, 1995, the respondents commenced the action in the Supreme Court against the appellant, seeking, inter alia, damages for the appellant's alleged fraudulent actions as the controlling mind of NsC Diesel Power Incorporated. Justice Michael MacDonald was assigned to case manage that action. By Originating Notice (Application) dated January 9, 1996, Mr. Black applied to the Court for an Order declaring that Associate Chief Justice Palmeter was without jurisdiction to grant the s. 38 Order; that the respondents' action be dismissed or stayed in that Nova Scotia is not the forum conveniens; and that the action should be dismissed as the Nova Scotia courts are not impartial. That application was heard by the case management judge. In decision dated February 9, 1996, Justice MacDonald found that the Order of Palmeter, A.C.J. remained valid Order of the Supreme Court. He declined to dismiss or stay the proceeding, as the balance of convenience strongly favoured the continuance of the action in Nova Scotia. He found, as well, that there was no material before him demonstrating bias or to support reasonable apprehension of bias on the part of Nova Scotia judges. Mr. Black's application was dismissed. It is from that Order that Mr. Black appeals. Issues: The appellant states the following grounds of appeal: 1. THAT the learned Chambers Judge erred in law, insofar as he failed to consider and apply the provisions of the Bankruptcy and Insolvency Act R.S.C. 1985, c. B-3 as amended, sec. 38 to the facts of the cases; and failed to consider the prejudicial and damaging effects of the order sought to be rescinded; 2. THAT the learned Chambers Judge erred in law, insofar as he failed to consider matters respecting the roles, and the rights, of the applicant as defined in the Constitution Act, 1982 R.S.C. 1985, c. 11 (U.K.), specifically s. 1., 7., 15. (1), 24(1), 32(1)(a) (b), and 52.(1) and the Canadian Bill of Rights, and specifically s. 1(a) 2(d); 3. THAT the learned Chambers Judge failed to remove himself as he was unable to act in an impartial and unbiased judicial man (sic) 4. THAT the learned Chambers Judge erred in law, insofar as he failed to consider evidence in the file. He seeks the following relief: 1. THAT the Decision of Justice MacDonald be reversed and an order granted rescinding the Order of the Court in Bankruptcy dated September 7, 1994 and striking the plaintiffs' originating notice and statement of claims in action S.H. No. 120859; 2. THAT the Court award costs, of the motions in the Courts below and on appeal, to the appellant payable forthwith; Mr. Black has not appealed Justice MacDonald's finding that Nova Scotia is the forum conveniens. Grounds 2, and are argued in the context of the allegations of bias and failure to consider the evidence. The issues on this appeal are, therefore, the challenge to the s. 38 Order; the allegations of bias; and the judge's, alleged, failure to consider the evidence. Analysis: (i) Bankruptcy and Insolvency Act s. 38 Order: Section 38(1) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, provides: (1) Where creditor requests the trustee to take any proceeding that in his opinion would be for the benefit of the estate of bankrupt and the trustee refuses or neglects to take the proceeding, the creditor may obtain from the court an order authorizing him to take the proceeding in his own name and at his own expense and risk, on notice being given the other creditors of the contemplated proceeding, and on such other terms and conditions as the court may direct. creditor is ""a person having claim, preferred, secured or unsecured, provable as claim under"" the Act. It was Mr. Black's submission before MacDonald, J. that Chief Justice Palmeter was without jurisdiction to issue the s. 38 Order because the respondents are not ""creditors"" of the bankrupt company, NsC Diesel Power Incorporated, a status essential to the granting of the Order. The threshold issue before us is whether MacDonald, J. had jurisdiction, in the proceeding before him, to strike the respondents' Statement of Claim on the basis that, as submitted by Mr. Black, Palmeter, A.C.J. was wrong in granting the s. 38 Order. Mr. Black, on this jurisdictional issue, submits that MacDonald, J. wrongly refused to exercise jurisdiction or, alternatively, that he did exercise jurisdiction, in that he reviewed, in a limited way, the merits of the decision of Palmeter, A.C.J., but erred in the result. A review of the transcripts of the pre-hearing conference and of the hearing reveals that MacDonald, J. was of the firm view that he did not, in the context of the application before him, have jurisdiction to review the s. 38 Order. Mr. Black, however, insisted upon advancing this argument in his submissions to the judge. MacDonald, J. wrote in his decision: At the Section 38 hearing, Palmeter, A.C.J. had before him affidavit evidence confirming that the plaintiffs were creditors of the bankrupt estate. The plaintiffs' request for standing was supported by the trustee. The defendant has applied to the Nova Scotia Court of Appeal, without success, to have Palmeter, A.C.J.'s order declared nullity. It remains valid order of this Court. As such, this Court has jurisdiction to hear the plaintiffs' claim. This aspect of the defendant's application, therefore, fails. (emphasis added) Mr. Black submits that the above passage confirms that MacDonald, J., notwithstanding the reservations he expressed, did assume jurisdiction to review the Order of Palmeter, A.C.J. and in so doing should have received and considered the substantial volume of material submitted by Mr. Black on the issue of whether Krupp was creditor of NsC Diesel. He further submits that MacDonald, J. was clearly wrong when or if he concluded that prima facie case that Krupp was creditor had been made out before Palmeter, A.C.J. disagree with the interpretation Mr. Black places upon the remarks of MacDonald, J. The judge did no more than confirm that the Order of Palmeter, A.C.J., not having been declared nullity in this court in the proceeding before Pugsley, J.A., remained valid court Order. In the alternative, even should we accept Mr. Black's submission that MacDonald, J. assumed jurisdiction, with which submission disagree, we must nevertheless consider whether he had such jurisdiction. If he did not have jurisdiction to review the s. 38 Order, he was correct in not receiving the evidence purportedly impugning its validity. The record confirms that Justice MacDonald was correct when he noted that Associate Chief Justice Palmeter had before him evidence that the respondents were creditors of the bankrupt estate. In particular, Axel Kettmann of Hamburg Germany, lawyer employed by the respondents, in paragraph of his Affidavit of June 21, 1994, deposes that the respondents Krupp ""are creditors of the estate of the bankrupt NsC Diesel Power Incorporated and have filed Proofs of Claim together with supporting documentation with respect to the bankruptcy"". This evidence was unchallenged. Indeed, the trustee in bankruptcy supported the respondents' s. 38 application. Mr. Black's submission that there was no evidence before Palmeter, A.C.J. that Krupp were creditors of the bankrupt estate is in error. Mr. Black's complaint is therefore restricted to the sufficiency and reliability of that evidence. He wished to have an opportunity, in the proceeding before MacDonald, J., to attack the evidence of Axel Kettman and tender contrary evidence. It is settled law that an affected party, here Mr. Black, has no standing in s. 38 application. The transcript of the proceeding before Palmeter, A.C.J., reveals that, while Mr. Black did not have standing on that motion, he was permitted to appear and make limited representations. He asserted, as he did here and before MacDonald, J., that there was no evidence that the respondents were creditors of the bankrupt estate. There was discussion on that issue with representations on behalf of the Superintendent of Bankruptcy as well as the solicitor for the respondents. The judge was satisfied that prima facie case had been made out. All of this is, however, irrelevant to the question of the jurisdiction of MacDonald, J. to review the s. 38 Order. In support of his position that Justice MacDonald possessed jurisdiction to review the Order, Mr. Black has cited Toyota Canada Inc. v. Imperial Richmond Holdings Ltd. (1993), 10 AIta.L.R. (3d) 127 (Q.B.). In that case, which is not binding upon this court, the judge who had granted s. 38 Order ruled that the affected party, had standing to appear before him to challenge the Order on the basis of alleged procedural irregularities. The situation before this court is not analogous. Mr. Black is seeking to challenge the finding of fact by Palmeter, A.C.J., that, for the purposes of the s. 38 application, the respondents are creditors of the bankrupt estate. factual finding is distinct from procedural irregularity. Had there been no evidence before Palmeter, A.C.J. that the respondents were creditors of the bankrupt estate, then there may have been procedural error in the granting of the Order and we would have to consider whether the Toyota case applied, so as to give Mr. Black standing to challenge the s. 38 Order and, if so, in what form of proceeding that challenge could be made. Mr. Black cites, as well, B.N.R. Holdings Ltd. v. Royal Bank (1992), 1992 CanLII 1093 (BC CA), 16 C.B.R. (3d) 72 (B.C.C.A.). In that case an action was commenced by creditors of the undischarged bankrupt company, without benefit of s. 38 Order, long after the trustee had been discharged and the company struck from the register of companies. Six years after the commencement of the action the defendant applied for dismissal of the proceeding for want of prosecution or, in the alternative, to have the statement of claim struck. After various interim applications, the chambers judge, inter alia, ordered that the trustee be reappointed and granted an Order pursuant to s. 38 permitting the creditors to bring the action. The issue before the court of appeal was whether leave pursuant to s. 38 could be granted nunc pro tunc. The court held that, as no cause of action existed until leave of the court was granted, the existing action could not be authorized retrospectively. Mr. Black is of the view that in this case the Court of Appeal assumed the jurisdiction to review the s. 38 Order of the chambers judge and, thus, we have jurisdiction to review the s. 38 Order, as did MacDonald, J. B.N.R. is not analogous to the situation before us. In B.N.R. the chambers judge was granting an original s. 38 Order, not reviewing his own Order or that of another judge. The Court of Appeal was not reviewing whether the conditions precedent to the granting of s. 38 Order had been met nor the validity of the s. 38 Order, per se, but, rather, determining whether an action, commenced without leave could be retrospectively revived. B.N.R. does not bear upon the jurisdiction of MacDonald, J. to review the s. 38 Order. Mr. Black refers, as well, to Construction Co. v. Reid (1985), 1985 CanLII 616 (BC SC), 56 C.B.R. (N.S.) 232 (B.C.S.C.). There the chambers judge held that the defendants, in an action commenced by creditors pursuant to an Order under s. 20 of the Bankruptcy Act, did have status to bring an action for declaration that the proceedings were nullity and void ab initio on the ground that the proceedings were authorized by an Order of the registrar rather than by an Order of judge of the bankruptcy court. Again, this case is unhelpful to Mr. Black. There is distinction between an application challenging an action on the basis that it is nullity, due to failure to meet mandatory statutory conditions, and challenge to the factual findings made by judge in the process of granting the Order. Indeed, in Paris, J. wrote at p. 5: Finally, objection is taken that the material before the registrar was inadequate to justify the making of the order. It is questionable in my mind to what extent judge in my position can review the decision of the court or registrar authorizing the proceedings. But, in any event, there was before the registrar clear, uncontradicted allegation, under oath, of fraudulent preference and dispositions by the bankrupt in favour of the defendants. In my view, that was certainly sufficient to warrant an order. (emphasis added) Mr. Black cited Toronto Dominion Bank v. Alex L. Clark Limited (1992), 22 C.B.R. (3d) (O.C.J.,Gen.Div.). There an applicant for s. 38 Order failed to satisfy the judge of his status as creditor. That case is relevant only to the question of the sufficiency of the evidence before the judge on the s. 38 application. It is not helpful on the issue of MacDonald, J.'s jurisdiction to review the Order. In short, none of the authorities put forward by Mr. Black are supportive of his position. Re Coroban Plastics Ltd. (1994), 1994 CanLII 1135 (BC CA), 34 C.B.R. (3d) 50 (B.C.C.A., in Chambers) is, in my view, dispositive of this issue. There, the affected party sought leave to appeal the granting of s. 38 Order. After thorough review of the authorities, Taylor, J.A. wrote at p. 54: These decisions, taken together, seem to me to establish clearly that on s. 38 application, such as that which resulted in the present order, neither the bankrupt nor any other proposed defendant in the intended action has right either to notice or to be heard on the application, and that neither the bankrupt nor any other proposed defendant will have standing to appeal any order made on such an application, provided that it goes no further than to authorize action to be brought this being for the reason that their rights will not be affected by s. 38 order so long as it goes no further than that. The effect of the order is to transfer from trustee to creditor whatever right of action may exist much, no doubt, as chose in action may be contractually transferred from one party to another, without adversely affecting the debtor. The order in this case imposes no liability on the appellant which did not previously exist, and leaves it free to assert in the action every defence it ever had. (emphasis added) And at p.55: After hearing the application invited the assistance of counsel with respect to two decisions, Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] S.C.R. 594, and Caisse Populaire Vanier Ltée v. Bales (1991), 1991 CanLII 7294 (ON SC), O.R. (3d) 456 (Gen. Div.), which were not referred to in argument. am obliged to them for their written responses to this request. Wilson v. The Queen sets out the principle that, absent fraud or new evidence, it is not possible to attack an order in proceedings other than those whose specific purpose is the reversal, variation or nullification of that order. In Caisse Populaire Vanier Ltée v. Bales it was held that challenging the validity of s. 38 order in the proceeding commenced pursuant to the order would amount to such collateral attack, and is therefore impermissible. (emphasis added) The appellant's attempt to challenge the validity of the s. 38 Order, in the proceeding before MacDonald, J. was a collateral attack. His application could therefore not succeed. Section 187(5) provides procedure for limited review of an Order granted pursuant to the Bankruptcy and Insolvency Act. The subsection permits court to ""review, rescind or vary any Order made by it under its bankruptcy jurisdiction"". would make no finding as to whether non-party to the s. 38 proceeding can seek review under this section. Taylor, J.A., remarked in Coroban, supra, at p. 55, ""such provision cannot invoke any wider test for standing than would otherwise apply"". Suffice to say, the application before MacDonald, J. was not made pursuant to s. 187(5). It is Civil Procedure Rule 14.25 that governs the striking of Statement of Claim. Mr. Black's application before MacDonald, J. was not made pursuant to this Rule, which provides: 14.25 (1) The court may at any stage of proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that, (a) it discloses no reasonable cause of action or defence; (b) it is false, scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the proceeding; (d) it is otherwise an abuse of the process of the court; and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. (2) Unless the court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under paragraph (1)(a). As was held by this court in Sherman v. Giles (1994), 1994 CanLII 3964 (NS CA), 137 N.S.R. (2d) 52, affidavit evidence is not admissible to prove or disprove allegations of fact in an application to strike pursuant to this Rule. It was confirmed in that case that the allegations of fact, as set out in the Statement of Claim, must be taken to be true. The Statement of Claim asserted that the respondents are creditors of the bankrupt estate. Had Mr. Black advanced his application under this Rule, which, in any event he did not, he could not have succeeded. Accordingly, I would find that this ground of appeal fails. (ii) Bias: In addition to the claim that was before MacDonald, J., that the courts in Nova Scotia are biased in this matter, the appellant alleges on this appeal, that MacDonald, J. acted with bias in his handling of the application. This latter allegation is set out at paragraphs 42 and 43 of Mr. Black's factum: It is respectfully submitted that Justice MacDonald did not wish to have to deal with the jurisdiction and the correctness of the Order of Palmeter ACJ., as the Associate Chief Justice is and was responsible for the duties as assigned to the Associate Chief Justice by the Chief Justice of the Supreme Court being ""...the assignment of judicial duties."" and both the Chief Justice and the Associate Chief Justice had precedence over Justice MacDonald. It is respectfully submitted that Justice MacDonald, when he knew that the correctness of the Order of Palmeter ACJ. would be tested on the Application to be heard on February 9, 1996, should have removed himself as he would not be able to deal with the application in an impartial and unbiased manner without personal prejudice to himself in the pursuit of his own judicial career. Mr. Black submits that MacDonald, J. was aware that Palmeter, A.C.J., did not have evidence before him that Krupp was creditor, therefore one is inevitably led to the conclusion that MacDonald, J. could only have refused to overturn the s. 38 Order because he feared repercussions. This allegation is preposterous and completely unsupported by the record. There was evidence before Palmeter, A.C.J. that the respondents were creditors. MacDonald, J. did not have jurisdiction to review the s. 38 Order. There is nothing in the extensive record before this court to indicate that MacDonald, J. acted other than in an impartial and fair manner in considering the application before him. On the issue of bias in the Nova Scotia courts, generally, MacDonald, J. was correct in his finding that the appellant's submission before him had no merit. I would dismiss this ground of appeal. (iii) Failure to Consider the Evidence: Mr. Black further alleges that MacDonald, J. erred in that he failed to consider the evidence before him. It was the appellant's view that his evidence was compelling and determinative. That the trial judge was of different view, however, does not lead to the conclusion that he did not consider the evidence. Having reviewed the record to the extent necessary, am satisfied that MacDonald, J. properly considered the admissible and relevant evidence before him. As he did not have jurisdiction to review the s. 38 Order, he was correct in limiting the evidence submitted by Mr. Black to the degree that he did. I would dismiss this ground of appeal. Fresh Evidence: Mr. Black sought to tender fresh evidence at the hearing in the form of an Affidavit of several persons which he maintains is relevant to the relationship between the trustee of the bankrupt NsC Diesel and Krupp and to the status of Krupp as creditor. In view of my finding that MacDonald, J. did not have jurisdiction to review the s. 38 Order, the affidavit is not relevant to an issue before us. It is thus unnecessary to determine if it meets the stringent test for the receipt of fresh evidence as set out in Thies v. Thies (1992), 1992 CanLII 2590 (NS CA), 110 N.S.R. (2d) 177 (N.S.C.A.). The affidavit should not be received. Disposition: I would dismiss the appeal with costs to the respondents in the amount of $1500.00 inclusive of disbursements. Bateman, J.A. Concurred in: Freeman, J.A. Flinn, J.A. CANADA C.A. No.128144 PROVINCE OF NOVA SCOTIA IN THE NOVA SCOTIA COURT OF APPEAL 1995 S.H.No.120859 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: KRUPP MaK MASCHINENBAU GmbH body corporate, and KRUPP MaK DIESEL, INC., body corporate PLAINTIFFS/ RESPONDENTS and FREDERICK W.L. BLACK APPELLANT HEARD BEFORE: The Honourable Justice J. Micheal MacDonald PLACE HEARD: Halifax, Nova Scotia DATE HEARD: February 9, 1996 COUNSEL: Frederick W.L. Black, the Defendant/Appellant, Thomas M. Macdonald, Esq., for the Plaintiffs/Respondents Richard J. Melanson, Esq., for the Plaintiffs/Respondents CASE ON APPEAL C.A. No.128144 NOVA SCOTIA COURT OF APPEAL BETWEEN: FREDERICK W.L. BLACK and KRUPP MaK MASCHINENBAU GmbH, body corporate, and KRUPP MaK DIESEL, INC. respondents REASONS FOR JUDGMENT BY: BATEMAN, J.A.","The respondents were granted an order by a Chambers judge pursuant to s. 38(1) of the Bankruptcy Act which authorized them to commence a fraud action against the appellant, a bankrupt. In making his ruling, the Chambers judge found that the respondents were creditors of the bankrupt estate for the purposes of s. 38(1). The respondents subsequently commenced an action against the appellant. The appellant applied to the judge assigned to oversee the case management of the action for an order striking the Statement of Claim on the basis that the respondents were not creditors of the bankrupt estate and, therefore, should not have been granted the order authorizing the commencement of the action. The case management judge held that he did not have the jurisdiction to inquire into the merit of the s. 38 order. He dismissed the action. The appellant appealed. Dismissing the appeal with costs, that the case management judge did not err. The appellant could not collaterally attack the s. 38 order by challenging a factual finding made in the granting of the order.",c_1996canlii5236.txt
314,"E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 98 Date: 2007 03 14 Docket: Q.B.C.A. No. 33/2006 Judicial Centre: Saskatoon BETWEEN: ORION RAYCRAFT and SHAUNNA RAYCRAFT, and HER MAJESTY THE QUEEN, Respondent Appearances: Orion Raycraft and Shaunna Raycraft on their own behalf Sami A. Shenouda for the Crown JUDGMENT CURRIE J. March 14, 2007 [1] At a June 2, 2006 trial in Provincial Court the appellants, Orion Raycraft and Shaunna Raycraft, were found guilty of breaching a bylaw of the Rural Municipality of Vanscoy No. 345. The trial justice of the peace convicted the appellants of breaching Bylaw 2‑1995, which provides: “That no poultry or livestock be permitted in districts zoned Hamlet.” [2] Before convicting the appellants, the trial justice heard evidence: (a) that cattle were being kept on the appellants’ property; (b) identifying and proving Bylaw 2‑1993, the zoning bylaw by which the appellants’ property is determined to be in district zoned “Hamlet”; and (c) identifying and proving Bylaw 2‑1995, the bylaw prohibiting livestock in that zoning district. [3] The appellants did not lead evidence at trial. They did not dispute that they were keeping cattle on their property. Their defence related to points of law. [4] The appellants appeal from their conviction. Four issues are to be addressed:(1) the appellants’ application to admit new evidence on the appeal;(2) a constitutional question raised by the appellants;(3) the significance of the word “hamlet” in the bylaw; and(4) the meaning of the word “livestock” in the bylaw. (1) Application to admit new evidence [5] At the hearing of this appeal the appellants applied for the admission of new evidence. New evidence will not be admitted on an appeal if, by due diligence, it could have been adduced at trial. Further, the evidence will be admitted on appeal only if it bears upon a decisive or potentially decisive issue in the trial: R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; Carriere v. Carriere, 2004 SKCA 80 (CanLII), 249 Sask.R. 240. [6] The appellants have submitted, by way of sworn affidavits and by way of oral presentation, that some of the evidence they seek to have admitted came into their hands after the trial. have reviewed the documents tendered for admission by the appellants. Some of the documents were in the possession of the appellants earlier than the trial. These documents include correspondence and the appellants’ notes for presentation to meeting of the council of the rural municipality. As these documents were in the possession of the appellants, the documents could have been adduced at the trial. For this reason, decline to admit these documents in evidence on the appeal. [7] The evidence that has come into the possession of the appellants after the trial, and that the appellants seek to have admitted, includes: (a) minutes of the council meeting that occurred before the trial; (b) Bylaws 1‑1993, 8‑1994 and 1‑1998 of the rural municipality; and (c) letter, dated more than two years before the trial, from Saskatchewan Government Relations and Aboriginal Affairs to the rural municipality, suggesting an amendment to Bylaw 1‑1993, the rural municipality’s basic planning statement. [8] The minutes of the meeting could have been obtained prior to trial with due diligence. In any event, since the minutes serve only to demonstrate that the appellants addressed council, the minutes do not bear upon decisive or potentially decisive issue at the trial. [9] The appellants tender three bylaws of the rural municipality. The appellants have explained their unsuccessful efforts, before trial, to obtain copies of bylaws and amendments from the rural municipality. am not persuaded, however, that the documents could not have been obtained by due diligence. [10] The appellants asked for zoning information from the rural municipality, and the rural municipality provided the appellants with copies of the zoning maps that are appended to the zoning bylaw. These maps indicate that the appellants’ property is in district zoned “Hamlet”. The appellants subsequently asked for material in addition to the maps, but the appellants did not make clear what they were seeking. As described in Ms. Raycraft’s affidavit, the appellants asked the rural municipality for “bylaws and resolutions clarifying the zoning status” of their property. request of this nature does not communicate the particular documents, or even categories of documents, that are being requested. The appellants are not lawyers, but it is not unreasonable to expect non‑lawyers to frame their requests for documents in manner that permits one to understand what documents are being sought. Framing their requests in this manner would have amounted to due diligence. [11] In any event, the three bylaws tendered by the appellants do not bear upon decisive or potentially decisive issue at the trial. Bylaw 1‑1993 purports to be the rural municipality’s basic planning statement, and its relevance to the issues is not apparent. The appellants seem to suggest that there may be some inconsistency between the basic planning statement and Bylaw 2‑1995, under which the appellants were convicted, but no inconsistency is apparent. The second bylaw tendered by the appellants, Bylaw 8‑1994, purports to be an amendment to Bylaw 1‑1993, and so it shares the lack of relevance. [12] The third bylaw tendered by the appellants, Bylaw 1‑1998, purports to be an amendment to Bylaw 2‑1993, the zoning bylaw. The amendments in this document are not reflected in the version of the zoning bylaw that was put in evidence at the trial. Thus it may be, as suggested by the appellants, that the version of the zoning bylaw put in evidence was not the current version. Alternatively, it may be that the version of the zoning bylaw put in evidence was the current version, as consequence of more recent amendments. [13] For the purposes of the application for admission of new evidence, this question not matter, because the amendments set out in the purported Bylaw 1‑1998 do not relate to any issue in this matter. The amendments address other topics. [14] The letter from Saskatchewan Government Relations and Aboriginal Affairs does not bear upon decisive or potentially decisive issue at the trial. Assuming it could be proven, the references to proposed amendments in the letter would not establish that there had been any amendments. As well, the proposed amendments relate to the basic planning statement, not to the zoning bylaw or to the bylaw under which the appellants were convicted. [15] For the above reasons, the application to admit new evidence on the appeal is dismissed. (2) Constitutional question [16] The appellants ask that Bylaw 2-1995, which prohibits livestock in districts zoned “Hamlet”, be declared ultra vires on the ground that it is uncertain. The appellants have not given notice under The Constitutional Questions Act, R.S.S. 1978, c. C‑29. Notice is required when the constitutionality of bylaw is questioned. For this reason, the constitutional question is not properly before me. [17] In any event, the uncertainty on which the appellants rely in attacking the bylaw does not exist, as I discuss in the balance of this decision. Thus, even if the question were properly before me, would dismiss the application. (3) Significance of the word “hamlet” [18] The first of the appellants’ arguments on the merits relates to the use of the word “hamlet” in Bylaw 2‑1995: “That no poultry or livestock be permitted in districts zoned Hamlet.” The appellants argue that the district in which their property lies is not “hamlet” in the sense of it being legal community of that name. The appellants refer to The Rural Municipality Act, 1989, S.S. 1989‑90, c. R‑26.1 (subsequently repealed by The Municipalities Act, S.S. 2005, c. M‑36.1), which defined “hamlet” in law at the relevant time. The appellants say that the district in which their property lies does not fall under this definition, and so as matter of law the appellants cannot be guilty of breaching Bylaw 2‑1995. That is, since their district is not hamlet, they cannot be guilty of keeping livestock in district that is hamlet. [19] The appellants misunderstand the use of the word “hamlet” in the bylaw. In the zoning bylaw, and in Bylaw 2‑1995, “Hamlet” does not refer to community of that name as identified in The Rural Municipality Act, 1989. “Hamlet” is simply the label given by the rural municipality to particular zoning district. The reference in Bylaw 2‑1995 is to “districts zoned Hamlet”, not to “hamlet” within the meaning of The Rural Municipality Act, 1989. [20] The label given to zoning district is significant only as an aid to determining those parts of the bylaws that set out the rules governing that particular district. For example, in this case the appellants learned from the zoning maps that their property lies within zoning district labelled “hamlet”. With this information, the appellants were in position to peruse the bylaws relating to districts labelled “hamlet”, and to learn of the rules governing their property including the rule prohibiting cattle. [21] The appellants fail on this argument. (4) Whether cattle are livestock [22] The second of the appellants’ arguments on the merits relates to the use of the word “livestock” in Bylaw 2‑1995. Neither Bylaw 2‑1995 nor the zoning bylaw defines “livestock”, although Part of the zoning bylaw defines “Intensive Livestock Operation” as “the operation or facilities for rearing, confinement or feeding of poultry, hogs, sheep, goats, cattle or horses, in such numbers or conditions that requires permit under this bylaw.” Thus, to the extent that the zoning bylaw refers to an operation relating to keeping livestock, “livestock” includes cattle. [23] In the absence of specific definition of “livestock”, though, the appellants argue that the word is uncertain, and that it can be defined so broadly as to be either meaningless or unenforceable. [24] In support of this argument, the appellants refer to definitions of “livestock” from various sources. They point out that the broadest of the definitions of “livestock” include virtually any living creature that might be kept by people, including bees and butterflies. Against this background, the appellants ask how anyone can know what “livestock” is, within the meaning of the bylaw. If one cannot know what “livestock” is, they say, then one cannot be convicted of keeping livestock. [25] The appellants are correct in identifying range of definitions of “livestock”. Definitions include: (a) at the narrow end of the range, “cattle, horses, and similar animals kept for domestic use but not as pets, esp on farm” (Collins English Dictionary, Canadian Edition, 2005, HarperCollins Publishers); and (b) at the broad end of the range, “Domestic animals generally; any animals kept or dealt in for use or profit” (Shorter Oxford English Dictionary, 3d ed., 1973, Oxford University Press). [26] Two points emerge. First, whatever definition of “livestock” is used, the definition always includes cattle. Second, in order to determine whether Bylaw 2‑1995 has been breached by the keeping of cattle, one does not need to identify each animal that may be included in the word “livestock”. One needs only to know whether cattle are included in the word “livestock”. They are included, since cattle are “livestock” under any definition of the word. [27] The uncertainty suggested by the appellants does not exist. Under Bylaw 2‑1995 no livestock is permitted in the district. Cattle are livestock, and so cattle are not permitted in the district. [28] The appellants fail on this argument. [29] The trial justice made no error in law. His findings of fact were supported by the evidence. That being the case, there is no basis on which to reverse the trial decision. The appeal is dismissed. J. G.M. Currie","The appellants were found guilty of breaching a rural municipal bylaw which provides 'That no poultry or livestock be permitted in districts zoned Hamlet [sic].' There were four grounds of appeal: 1) an application to admit new evidence on appeal; 2) a constitutional challenge seeking a declaration that the bylaw was ultra vires for uncertainty; 3) the significance of the word 'hamlet' in the bylaw; and 4) the meaning of the word 'livestock' in the bylaw. HELD: The appeal is dismissed. 1) New evidence will not be admitted on an appeal if, by due diligence, it could have been adduced at trial. Further, new evidence will be admitted only if it bears upon a decisive or potentially decisive issue in the trial. Neither of these requirements is met. 2) The constitutional challenge is not properly before the Court as notice is required when the constitutionality of a bylaw is impugned. In any event, the uncertainty on which the appellants rely in attacking the bylaw does not exist. 3) The appellants misunderstand the use of the word 'hamlet' in the bylaw. 4) Whatever definition of 'livestock' is used, the definition always includes cattle.",9_2007skqb98.txt
315,"nan U.F.C. of 1983 105 J.C.S. IN THE UNIFIED FAMILY COURT JUDICIAL CENTRE OF SASKATOON BETWEEN: MARY KLASSEN and JOHN KLASSEN RESPONDENT Mr. J. Gillis for the applicant Ms. T. Holizki for the respondent ORAL JUDGMENT GAGNE, J. DATE: February 12, 1985 The applicant seeks a division of matrimonial property pursuant to the provisions of The Matrimonial Property Act, custody of Randy, 14 years of age and Amanda, 8 years of age, pursuant to The Infants Act and maintenance for the said children pursuant to The Deserted Wives' and Children's Maintenance Act. The parties were married in Mexico in October, 1964 and shortly thereafter moved to Saskatchewan. In 1977, the family lived in Hague. The respondent had job operating back-hoe. They owned modest home and equity in the said home of approximately $16,000.00. The family had some difficulty getting along on the respondent's earnings. The respondent was totally in charge of the financial matters in this household. On May 20, 1977, the respondent won $100,000.00 lottery. $65,000.00 house was purchased, $11,000.00 worth of furniture was purchased, $15,000.00 mini-motor home was purchased and the respondent bought $12,000.00 motor vehicle. The family took more holidays and did more travelling. The respondent borrowed some money and bought some trenching equipment and went into business on his own. This business failed and resulted in substantial loss. The trenching equipment was repossessed, the matrimonial home had to be sold and the mini-motor home was gone. At the time of trial, the parties had the proceeds of the matrimonial home in the amount of $12,240.00, lot in Hague valued between $5,000.00 and $7,000.00, the applicant's furniture and household goods, the respondent's furniture and household goods, 1977 Mercury automobile, motorcycle, lawn mower and some of the respondent's tools. The respondent is in arrears of maintenance for the two younger children in the amount of $1,800.00. The respondent's work is seasonal and he is presently on unemployment insurance benefits. The applicant complains about the respondent's use of alcoholic beverages. am satisfied that the respondent, at times, abused alcohol and spent more money on alcohol than he should have. The respondent did not lose his licence and did not miss work because of his consumption of alcohol. The respondent was in charge of the family finances and the $100,000.00 in 1977. In few short years, there is little left. The respondent has not fully accounted for the family finances from 1977 to 1981. am satisfied that the money was spent on the family and lost in the trenching business. I do not find that the respondent dissipated the matrimonial property within the meaning of The Matrimonial Property Act. The respondent will be entitled to keep his 1977 Mercury motor vehicle and his tools and other properties in his possession as his own. The applicant will be entitled to keep household furniture and household goods, the motorcycle, lawn mower in her possession as her matrimonial property. The remaining matrimonial property are the proceeds of the matrimonial home in the amount of $12,240.00 and the lot in Hague, which value at $6,000.00 for total of $18,240.00. The respondent mismanaged the family financial affairs and the property should not be divided equally. The applicant's share will be $10,240.00 and the respondent's share will be $8,000.00. Out of the respondent's share, he will pay the arrears of child support to the applicant in the sum of $1,800.00. He will also repay the applicant half of $360.00 rent which he collected and used for his own purposes for the sum of $180.00. From the respondent's $8,000.00, there will be deducted $1,800.00 and $180.00 leaving due to the respondent $6,020.00. The respondent will have, as his share of the matrimonial property, the lot in Hague as shown on exhibit P-4. This is already in the name of the respondent and the applicant will discharge her caveat, 88PA11713. The applicant will have custody of the two children of the marriage, Randy and Amanda and the respondent will have reasonable access.","Division of matrimonial property. Husband made modest living and, eight years ago, won $100,000 in lottery. The lottery money was spent on household finances and lost in husband's small business venture. Husband 'spent more money on alcohol than he should have'. HELD: This did not amount to dissipation of matrimonial property within the meaning of the Act. Husband's mismanagement of the family's financial affairs was grounds for unequal division of the property:",e_1985canlii205.txt
316,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 514 Date: 2009 12 31 Docket: D.I.V. 96/2007 Judicial Centre: Regina BETWEEN: PETER LORAN and DONNA LORAN Counsel: Ian D. McKay, Q.C. for the petitioner James J. Vogel for the respondent FIAT WILSON J. December 31, 2009 [1] The petitioner father and the respondent mother are the parents of two children, namely, Adam Loran, born April 25, 1995 and David Loran, born March 11, 1992. The parties attended pre-trial conference in May, 2008 and, to their credit, were able to reach an agreement with respect to the issue of child support for the two children. The party’s agreement was finalized by way of consent order dated September 26, 2008 granted by Gunn, J. [2] The mother has filed a motion in this matter requesting an order quantifying child support arrears which she says are due and owing pursuant to the Gunn J. order of September 26, 2008. In addition, she requests that the court determine the ongoing child support amount to be paid by the petitioner father. During the hearing of this matter, questioned whether this application was more in the nature of variation of the Gunn J. order. The mother took the position that her application was not variation and that it was more in the nature of an accounting exercise. However, it is clear that there has been change since September, 2008 with respect to the residency of one of the children of the marriage, namely, David. As the Gunn J. order is premised on the child, Adam, residing with the mother and the child, David, residing with the father, and David no longer lives with either parent, clearly some variation is warranted both with respect to quantifying arrears and ongoing support. [3] The September 26, 2008 child support order is complex and, in my view, allows for unfortunate ongoing conflict between the mother and father regarding the issue of child support. The applicable paragraphs of the order read as follows: 1. IT IS HEREBY ORDERED THAT child support shall be paid by the Petitioner, Peter Loran to the Respondent, Donna Loran for the support of Adam Loran, born April 25, 1995 and by the Respondent, Donna Loran to the Petitioner, Peter Loran for the support of David Loran, born March 11, 1992. Child support shall be payable in accordance with the provisions of the order. 2. IT IS FURTHER ORDERED AND JUDGED THAT for purposes of the child support obligation set out herein, the income of the Respondent, Donna Loran shall be deemed to be the greater of $61,500.00 and actual income earned for the period of time June 1, 2008 to April 30, 2009. Commencing May 1, 2009 and thereafter, the income of the Respondent, Donna Loran, shall be deemed to be the greater of $75,000.00 and the actual income earned. 3. IT IS FURTHER ORDERED AND JUDGED THAT support for the children will currently be set in accordance with the split custody provisions of The Federal Child Support Guidelines. Commencing June 1, 2008 and until April 1, 2009, the child support payment of the Respondent to the Petitioner shall be based on an income of $61,500.00 or $529.00 per month. The child support payment of the Petitioner, Peter Loran to the Respondent shall be based on an income of $117,000.00 and shall be set at $999.00 per month. The Petitioner, Peter Loran, shall pay to the Respondent, Donna Loran set off amount of $470.00 per month commencing June 1, 2008, to be adjusted as set out herein. 4. IT IS FURTHER ORDERED AND JUDGED THAT on May 1st of each year, child support shall be recalculated for the preceding 12 months based on the actual Guideline income for the Petitioner and the Respondent’s imputed income or actual income as set out in the preceding paragraph. Any required payment to adjust support for the preceding 12 months for Section Guideline support and Section support shall be made within 30 days of May 1st. That the Petitioner and the Respondent shall provide the other with copies of their income tax returns by April 30th of each year and copies of Notices of Assessment or Reassessment from Canada Revenue Agency once received. 5. IT IS FURTHER ORDERED AND JUDGED THAT the Section expenses shall be prorated as set out herein and adjusted in accordance with paragraph 4. The allowable section expenses shall be for the following: (i) Medical and dental expenses, excluding insurance reimbursement over $100.00 per annum; (ii) water polo; (iii) drums; (iv) Camp Monahan; (v) Art classes; (vi) Football; (vii) Lacrosse; and (viii) And any other activities agreed to between the Petitioner and the Respondent. 6. IT IS FURTHER ORDERED AND JUDGED THAT the section expenses shall be adjusted in accordance with paragraph 4. For the period of time June 1st, 2008 to April 1, 2009, the Petitioner shall, at first instance, pay 66% of the section expenses and the Respondent shall pay 34%. The Petitioner shall pay the expenses for David at first instance and the Respondent shall pay the expenses for Adam at first instance. Thereafter they shall provide the other with copies of the actual receipt. The person not paying such expense shall be required to pay their proportionate share within 15 days of receiving the receipt from the other. [4] As set out in the order, support was to be paid by the father on the basis of split custody arrangement and based on certain set incomes for the father and mother for the June 1, 2008 to April 1, 2009 period. In accordance with paragraph of the order, the parties were to recalculate the amount for the preceding 12 months, as at May 1, 2009, based on the actual Federal Child Support Guidelines (SOR/97-175, as am) (the “Guidelines”) income for the father which income would obviously be determined after income tax returns were exchanged. [5] There is no dispute that the child, Adam, has continually resided with the mother since the child support order was made on September 26, 2008. With respect to the child, David, there is no dispute that he resided with the father from March, 2008 to September, 2008 and then moved to the home of the mother where he resided from October, 2008 to August 31, 2009. In September, 2009, David moved out of the home of the mother into friend’s home. The father says that he has been providing funds for David in the sum of $175.00 per week. The mother says that she also contributes to David’s care but not in set weekly or monthly amount. She says she provides laundry services, some meals and assists with car payments, cell phone bills and the like. [6] The other substantial change which has occurred is with respect to the husband’s employment. At the time the order was made, the parties were working from the husband’s income for 2007. At that time the husband was working for Conexus and had gross annual salary in the sum of $117,000.00. In 2008, the father’s employment with Conexus was terminated and he was paid severance amounting to 15 months of salary. The severance was the total sum of $128,250.00 and is reflected on the father’s 2008 income tax return. [7] The father was able to locate employment in the financial services field within two months of his termination. He located consulting job with Paradigm in High River, Alberta. The father says that the money he received as severance from Conexus went to cover legal costs and to establish home in High River, Alberta. [8] am being requested by the mother to establish the father’s 2008 income so that the appropriate recalculation can be made in accordance with the order in this matter. The father’s 2008 income tax return reflects the following: Employment income $141,899.97 Interest and other investment income 160.84 Taxable capital gains 31,886.11 Other income $128,250.00 Total $302,196.92 [9] As set out previously, the order requires the parties to base support, for the preceding 12 months, on the “actual guideline income” for the father. The parties do not define how such Guideline income is to be determined. The father’s unusual 2008 taxation year has lead to the parties taking very different positions as to how the father’s income should be calculated. The father argues that it would be most appropriate to average the father’s income for the years 2006, 2007 and 2008 to determine an appropriate income. The father says this would lead to determination of the father’s 2008 income as being the sum of $185,000.00. The mother argues that his income is as set out on line 150 of his tax return. She argues that his total income is the sum of $302,196.00 for the 2008 year and that she is owed substantial amount of arrears for the time period from June 1, 2008 to April 1, 2009. [10] The position of the father with respect to averaging income is not sustainable. If the parties had intended to calculate the father’s income based on an averaging, they would have said so in the order of Gunn J. It is clear upon review of the order that the income established for the father at the time of the order was based solely on his 2007 tax year and not an averaging of his previous three years. [11] Although not specifically argued by the father, it appears he is, by inference, arguing that all or part of the severance he received in 2008 should not be included as income. [12] It is well established law that severance pay represents an acceleration of income that would have been paid over a period of months. Further, it is well established that income for the basis of calculating child support should be determined on the basis of severance package pay plus whatever other earnings the payor may have. [13] The Saskatchewan Court of Appeal in Scory v. Scory (1999), 1999 CanLII 12314 (SK CA), 180 Sask. R. 152 dealt with the issue of severance package income. At para. 21, Cameron J.A. states as follows: ... This is especially so in light of the fact that what he had received under his severance package amounted in large part to income. Indeed the amount he received, apart from that which was attributable to savings and other things, was the equivalent of 18 months salary. It was calculated and paid to him on that basis. And he took this amount into income thereafter for the purpose of paying both income tax and living expenses, as well as for the added purpose of meeting his financial obligations generally. As we noted moment ago, his total income for tax purposes in 1996 exceeded $90,000. His total income income for tax purposes in 1997 amounted to just over $59,000. [14] Similarly in L.R. v. D.T. (1998), 1998 CanLII 13814 (SK QB), 178 Sask. R. 115, McIntyre J. states at para. as follows: The Alberta Court of Appeal dealt with the matter of severance pay in the context of child support obligation in MacDonald v. MacDonald, (1997) 1997 ABCA 409 (CanLII), 209 A.R. 178. agree with their observations that severance pay represents an acceleration of income that would have been paid, in this instance, over period of 11.6 months. Severance pay is intended to be or to replace an ongoing stream of income as if the respondent would have been working. The legal obligation on an employer is to give adequate notice of cessation of employment. Severance pay is simply payment in lieu of that notice. The court in MacDonald found that income for the basis of calculating child support should be determined on the basis of severance pay plus whatever other earnings the payor may have. [15] The fact that the father spent his severance funds on legal fees and to set up his new home in Alberta is, in my view, irrelevant. As argued by the mother, the mother also had substantial legal fees to pay as result of the court proceedings in this matter which included an intense pre-trial conference. For all of these reasons, the severance is included as part of the father’s income. [16] With respect to the capital gain shown on the father’s 2008 income tax return, I have determined that the capital gain is a non-reoccurring amount which should not be included in the determination of the father’s 2008 income. It is clear on the evidence before me that the father agreed, as part of the distribution of the family property between the parties, to assume responsibility for the capital gain on the real estate he was receiving as part of the family property division. This gain does not reflect income actually received by the father and there will be no “year to year” capital gain unless the father has gains on other property. In making my decision, reviewed the decision of Cowan J. from the British Columbia court in Andersen v. Andersen, 1997 CanLII 1163 (BC SC), [1997] B.C.J. No. 2496; (1997), 32 R.F.L. (4th) 177. Cowan J. states at paras. 29 and 30, as follows: 29 The second issue which arises, utilizing the respondent's 1996 total income figure or his 1996 tax return, is whether there should be deducted therefrom the taxable capital gains of $45,247.50 received by him in 1996, leaving an income for the purposes of the Guidelines of $78,943. This capital gain arose when the respondent transferred his interest in the company which he formerly utilized to carry on his practice to his present company. 30 agree that this deduction should be made as it is ""non-recurring amount"" which the court is entitled to consider in making fair determination of the respondent's annual income in accordance with s. 17(1)(c) of the Guidelines. [17] Having concluded that the father’s 2008 income includes his severance package, his income with his new employer, but not the capital gain, the father’s income for 2008 is set at the sum of $270,300.00. [18] The mother provided chart showing the amount of s. support that should have been paid in accordance with the party’s consent order. In preparing the chart, the mother has recognized that Adam resided with the mother at all times since the date of the order but that David lived initially with the father, then with the mother, and then with friends. As shown on the chart, for the time period from June 1, 2008 through to and including April 1, 2009, the total amount of support due and owing to the mother, under s. of the Guidelines, is sum of $19,721.00. This is based on the father’s income of $270,300.00. accept this figure and order that the father pay to the mother the aforesaid sum forthwith. [19] With respect to the issue of s. expenses, the mother says that if the father’s income is determined to be the sum of $270,300.00 and her income is set out as being $61,500.00, the appropriate proportionate sharing of the s. expenses is 81% for the father and 19% for the mother. agree with this assessment. For the time period from June, 2008 to April, 2009, the mother says the father paid $3,887.00 when he should have paid $4,805.00. The father shall pay the difference, being the sum of $918.00 forthwith. [20] The remaining outstanding issue is with respect to the amount the father should pay commencing May 1, 2009. The mother suggests that, in accordance with the party’s consent order, that the father must continue to pay support from May, 2009 to at least April 30, 2010, based on the 2008 income of the father. This would mean that the father is paying support on an income which have now determined to be the sum of $270,300.00. There is, however, very clear evidence before me that the father will not earn the sum of $270,000.00 in the 2009 taxation year. The father has only one source of income, being his new employment position. In light of the fact that the 2008 year was an extraordinary year for the father given his severance package, it would be unfair to have the father continue to provide support on the basis of an income in the sum of $270,300.00 when the evidence is clear he will earn income of approximately $100,000.00 less than that amount. If the parties were to proceed in accordance with their own agreement and consent order, the father would be forced to pay on his inflated 2008 income. However, the mother would then be forced to remit back to the father the overpayment. [21] As at May 1, 2009, am determining that the father’s income is the sum of $160,000.00, based on the evidence before the court at this time. The father should make payments, commencing May 1, 2009, under both s. and s. of the Guidelines based on his income in the sum of $160,000.00 and the mother’s income of $75,000.00. Although recognize that the father’s income in 2009 may end up at higher amount, the parties will, as their consent order sets out, do re-adjustment as at May 1, 2010, if required. The father is obligated to pay the required amount for two children, based on an income of $160,000.00 for the months from May, 2009 to August, 2009. Commencing September, 2009, and continuing on the first day of each and every month thereafter, the father is required to pay for only one child. am not prepared to downward adjust the father’s payments for Adam, as result of his contributions towards David. It appears that the mother is also assisting David and that David may, in fact, not be child under the law when he turns 18 years of age in March, 2010. [22] have not prepared the calculation of arrears, of both s. and s. support, now due and owing by the father for the time period from May, 2009 to the end of December, 2009. trust the parties will, given my determination of income, be able to calculate what arrears are owing, if any. If the parties cannot do so, leave is granted to return the matter to me for further consideration. [23] With respect to the issue of costs, the mother shall have her costs of this motion which set in the sum of $600.00 payable forthwith. [24] As final comment, would encourage the parties to make every reasonable effort to negotiate and determine the appropriate recalculation of support each May, in accordance with their agreement and consent order. Alternatively, if the parties find themselves unable to perform that recalculation from year to year, the parties should consider amending their support agreement so as to avoid these costly court proceedings. J. D. L. WILSON","FIAT: The respondent mother filed a motion asking for an order quantifying child support arrears which she claims are due and owing pursuant to the order of Gunn, J. in September, 2008. She also asks that the Court determine the ongoing child support amount to be paid by the petitioner father. The Court questioned whether this application was more in the nature of a variation of the Gunn, J. order. It is clear that there has been a change since September 2008 with respect to the residency of one of the children.HELD: 1) The father's unusual 2008 taxation year has led to the parties taking very different positions as to how the father's income should be calculated. The father argues that it would be appropriate to average the father's income for 2006 to 2008. The mother argues that his income is the sum set out on line 150 of his tax return. She argues that his total income is the sum of $302,196 for the 2008 year. The father's argument is that the severance he received in 2008 should not be included in his income. It is well established that severance pay represents an acceleration of income that would have been paid over a period of months. It is also well established that income for the basis of calculating child support should be determined on the basis of severance pay plus whatever other earnings the payor may have. The severance is included as part of the father's income. 2) The capital gain which shows on the father's 2008 income tax return shall not be included in his 2008 income. The father agreed as part of the distribution of family income to assume responsibility for the capital gain on the real estate he was receiving as part of the family property division. The gain does not reflect income actually received by the father and there will be no 'year to year' capital gains. See Andersen v. Andersen (1997), 32 R.F.L. (4th) 177. 3) The father's income for 2008 is $270,300.  4) If the parties were to proceed in accordance with their own agreement and consent order, the father would be forced to pay on his inflated 2008 income. However, the mother would then be forced to pay back to the father the overpayment. As of May 2009 the father's income is the sum of $160,000. 5) The mother shall have her costs of $600.",c_2009skqb514.txt
317,"Q.B. 1994 NO. 01107 J.C. R. IN THE COURT OF QUEEN'S BENCH AT THE JUDICIAL CENTRE OF REGINA BETWEEN: BRENDA HILDAHL-TRAUTER, and CALVIN TRAUTER, RESPONDENT J. G. BRICK for the petitioner M. S. SCOTT for the respondent JUDGMENT MacLEAN, J. February 12, 1996 The petitioner, Brenda Hildahl-Trauter (""Brenda""),petitions the Court for a divorce, custody of the children,spousal and child support and an unequal division ofmatrimonial property. The respondent, Calvin Trauter(""Calvin"") counter-petitions for similar relief, including adivorce, joint custody of their children and an equal divisionof matrimonial property. I. The parties married on September 24, 1983, after having cohabited for about one year. They separated on October 18, 1994. They have two children, Dillon, 10, and Levi, 6. When they married, Brenda was employed in an office at Weyburn, Saskatchewan, and on her father's farm. She owned fully furnished home in Weyburn, new car, and had $17,000.00 in R.R.S.P.s. When they met, Calvin was employed in Weyburn by the Provincial Government. He owned few pieces of furniture, some tools and yard equipment, motorcycle and truck encumbered by chattel mortgage. Soon after they married, Calvin was transferred to Saskatoon. Brenda sold her home and applied the proceeds of $49,381.93 toward the purchase of their home there. They had only lived in Saskatoon for about one year when Calvin was transferred again, this time, to Regina. The home in Saskatoon was sold and the proceeds, along with Brenda's R.R.S.P.s and further $3,250.00 which she had, were used to help purchase their home in Regina. They borrowed $32,000.00 on mortgage which was later paid with funds received from Calvin's parents. The title to the matrimonial home is now debt free. The parties lived in this home until they separated. They disagree on its value. On the evidence, find it is worth $121,000.00. Soon after the separation, Brenda was granted exclusive possession of the matrimonial home and interim custody of the children. Calvin was ordered to pay monthly spousal and child support of $1,400.00. In general terms, the order provided Calvin with access on alternate weekends and one evening visit every two weeks. Disagreement arose over access, resulting in another order specifying the terms of access with precision. In May, 1995, Calvin applied for an order listing the home for sale and for pre-trial conference. The application for sale was dismissed. On July 7, 1995, further order for access was made so that Calvin could have the children with him for two weeks during summer holidays. Finally, on November 22, 1995, Calvin obtained an order varying the interim order for spousal and child support from $1,400.00 per month to $400.00 to be paid prior to the trial, which was then scheduled to proceed late in January, 1996. The basis for this application was that on September 1, 1995, Calvin took leave of absence from his employment with the Provincial Government and his income is much reduced. II. There are several issues which must be resolved. The first two involve custody of and support for the children. Brenda contends she should have sole custody, while Calvin believes it would be best for them if there is an order for joint custody and, for the present, that they reside with their mother. The boys each has problem which makes parenting more difficult. Brenda believes Dillon suffers from dyslexia, Calvin does not agree. In any event, Dillon does have problem with his vision with the result he has had difficulty in school. He has been placed temporarily in special program at another school where he seems to be progressing. It is hoped he will soon be reintegrated into his regular school. Both parents expressed willingness to help him at home. Levi is doing well in school. He may have minor problem articulating sounds, but there is little cause for concern. What is of concern is that he is asthmatic. Brenda has seen to it that his babysitter and his teacher are aware of the problem and of the need to be alert. He is allergic to tobacco smoke. Calvin smokes, but says there is ventilated room in his home where he will smoke so as not to bother the boy. The matrimonial home is located near the school which Levi attends and reasonably close to Dillon's. When the remedial program is completed, Dillon and Levi will again attend the same school. Brenda pointed out the boys know no other home. Their friends live in the neighborhood, and the babysitter lives few doors away. At this time, the only non-school activity they have entered is Beavers and Cubs. With her present means, Brenda cannot afford to enroll the boys in other activities. The parties had traditional marriage. Brenda did not work outside the home. Her life centered around her home and family. Calvin was the breadwinner. His salary as civil servant enabled the family to maintain comfortable standard of living. Brenda impressed me as thoughtful, caring parent, who has consistently put the children's welfare ahead of her own. Calvin is intelligent and articulate and, am certain, loves his sons; however, he has not made their welfare his first priority. It was very obvious when they testified that there is good deal of hostility between them. Their relationship was particularly acrimonious during the first months following separation. Brenda was out of the workforce from the time she and Calvin married. Only recently has she obtained full-time employment which pays modest monthly salary of $1,302.00. The order for interim support required payments to begin September 1, 1994. At that time, Brenda's monthly salary from part-time employment was $600.00. Thereafter, for six months, she worked full-time when she replaced an employee on maternity leave. The maternity leave ended in September, 1995, when Brenda again reverted to part-time employment. At the same time that Brenda's temporary full-time employment ceased, Calvin took one-year leave of absence from his employment. He is now employed as sign painter by friend in Saskatoon. His monthly income has dropped from over $4,200.00 to under $1,000.00, and he says he cannot support his wife and children. He stated there were several factors for him taking leave of absence, but in his evidence, he mentioned only one. Since he is the Assistant Director for his Unit, it falls to him when cutbacks occur to inform employees their employment is terminated. This caused him, as he says, lot of strife. Calvin's own employment is not in jeopardy. It is assured if he returns following his leave of absence. Likely, Calvin would not have applied for leave of absence without giving the matter considerable thought. It is instructive of his attitude that at about the time he applied for an order to sell the matrimonial home, he was contemplating applying for the leave of absence. Indeed, lessthan three weeks after his application for sale of the homewas rejected, he applied for the leave of absence. am not persuaded these are the actions of father intent upon doing what is best for his children. It is not unreasonable toinfer that he made up his mind to avoid complying with theorder for interim support. Apart from funds set aside for the children's education, there are no savings to tide them over, nor is there any property which could be liquidated for this purpose. Calvin seems oblivious to the needs of his children. reject his suggestion that Brenda has been improvident. Apart from one or two small items, her living expenses disclosed in her financial statement appear reasonable. Calvin, rather glibly, suggested the boys do not have the amenities they used to have, but that they have the essentials. Two factors militate against making an order forjoint custody. The first is the obvious acrimony whichexists. As my brother, Dickson, J., stated in Rilkoff v. Rilkoff (an unreported decision rendered in 1991) and quoted with approval by Carter, J. in Kreuger v. Kreuger (1993) 104 Sask. R. 95, at p. 101: For such orders to succeed, the parents must have one another's respect; they must share child rearing philosophy; each must be convinced that the other is beneficial presence in the child's life; they must trust one another to do what they would have done and they must cooperate to achieve common goals. Sadly, none of these prerequisites exist in this case. Indeed, few divorced parents have this sort of relationship. Without it, joint custody relationship is doomed, as it is in this case. The children are confused and upset by the pushing and pulling of their parents and by their inability to make their joint custody agreement work. The best interest of the children can only be served by replacing the uncertainty of the agreement with certainty of custody order. The second factor is Calvin's reluctance to supporthis children. Brenda was out of the workforce for many years and no reasonable person could expect her to fill the void left by Calvin's wilful failure to maintain his income at reasonable level. It appears he is attempting to punish Brenda by putting himself in position of being unable to contribute to the children's support in meaningful way. I am satisfied that the children's interests arebest served by awarding sole custody to their mother, withaccess to their father on the same terms as contained in theinterim order. do this keeping in mind Calvin's assurance that he will allow the boys some freedom to choose whether they must travel to Saskatoon every other weekend to be with III. Spousal and child support are issues. Temporarily, at least, Calvin has put himself in position of being unable to contribute to the support of his family. Brenda has re-entered the workforce after many years' absence. Clearly, she has suffered an economicdisadvantage from the marriage and its breakdown. She has employment which she believes will within few years enable her to become financially self-sufficient. It is Calvin's responsibility to assist her in achieving this goal. He also, of course, has responsibility to adequately support his children. somewhat analogous situation occurred in Delleman v. Delleman (1994), 1993 CanLII 6727 (SK QB), 118 Sask. R. 79, where the husband quit his job and enrolled in university and sought to have his support obligations reduced. At p. 80, Dickson, J. had this to say: The father voluntarily quit job that enabled him to pay an extremely modest support obligation. He quit his job so he could enrol in training course that he thought would advance him in the workplace. He is entitled to do that but he is not entitled to pass on to his former wife and children (or to the public purse as it happens in this case) the economic consequence of his decision. If he is going to make such career move he must first organize his situation in such manner that he can keep up his obligation to his children. Calvin's deliberate act of taking leave of absence cannot relieve him of his responsibilities. He cannot claim he does not have the means to adequately contribute to the support of his wife and children. have concluded that spousal support is required for period of three years to enable Brenda to become economically independent. order that beginning March 1, 1996, and continuing until February 28, 1999, Calvin pay monthly spousal support of $500.00. further order Calvin to pay child support of $1,000.00 per month commencing March 1, 1996. Such payments are to continue so long as the children are children within the meaning of The Divorce Act. IV. There are several issues involving matrimonial property. Title to the matrimonial home is not encumbered. The parties have bank loan of approximately $13,000.00. Brenda has been paying the loan installments of $240.00 month since September, 1995, when Calvin began his leave of absence. It is conceded that the car which Brenda owned whenshe married is exempt property. Prior to marriage, Calvin owned a motorcycle. Brenda submits it has appreciated in value, Calvin says it has not. There is considerable divergence in their appraisals. On the evidence, I cannot find there has been a significantincrease in its value during the marriage; and I will,therefore, disregard it. Sergio Coppola was asked to appraise the motor vehicles which the parties own. He stated that he valued them on the assumption they were mechanically sound. find it hard to believe that prospective purchaser would buy vehicle without knowing its mechanical condition. Mr. Coppola is of the opinion that Calvin's 1988 Ford half-ton truck is worth $9,500.00 even though he was unable to enter the cab to check the odometer. Calvin says he paid $9,500.00 for the truck in 1992. He suggests, and find, that it is worth in the neighborhood of $8,000.00. Mr. Coppola valued Brenda's vehicle at $3,800.00, and this value was not questioned. No evidence was presented to enable me to determinethe fair market value of the household goods, tools andequipment. Calvin prepared a list of items he wishes toreceive from the matrimonial home (Ex. D-4). He will accept these items in full as his share of the contents of the matrimonial home. This seems reasonable. I order he receivethese items. Apart from their home and contents, Calvin's pension and the children's education funds, the matrimonial property consists of: Calvin's truck: $8,000.00 Canada Savings Bond (which Calvin cashed): 1,000.00 Brenda's vehicle: 3,800.00 Total: $12,800.00 Brenda's one-half share: $6,400.00 LESS: Her vehicle: 3,800.00 Balance: $2,600.00 Brenda will have judgment for $2,600.00. I furtherorder that Calvin must assume and pay one-half of the bankloan. Calvin has pension funds with the ProvincialGovernment. They consist of his contributions and interest and have value of $51,993.78. It is agreed these funds areto be shared equally and I so order. leave it with Counsel to arrange for the actual division with leave to apply to me for directions if required. Brenda submits that her financial contributions to the matrimonial home are exempt from distribution pursuant to Section 23 of the Act since they were assets brought into the marriage. Alternatively, she claims there are extraordinary circumstances within the meaning of Section 22 which would make an equal division of the matrimonial home unfair or inequitable. In the further alternative, she claims that as the custodial parent, an equal division of the home would be unfair or inequitable to her. The opening words of Section 23 specifically exclude the matrimonial home and household goods from the operation of the Section. I, therefore, must reject Brenda's first submission that she is entitled to pre-marital exemption. Section 22(1) of the Act reads as follows: Where matrimonial home is subject of an application for an order under subsection 21(1), the court shall, having regard to any tax liability, encumbrance or other debt or liability pertaining to the matrimonial home, distribute the matrimonial home or its value equally between the spouses except where the court is satisfied that it would be: (a)unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b)unfair and inequitable to the spouse who has custody of the children; and in that case the court may: (c)refuse to order any distribution; (d)order that the entire matrimonial home or its value be vested in one spouse; or (e)order any distribution that it considers fair and equitable. What constitutes an extraordinary circumstance has been considered in number of decisions. As Halvorson, J. stated in Sheridan v. Sheridan (1981), 1981 CanLII 2212 (SK QB), 10 Sask. R. 255, each case must be decided on its own particular facts. Counsel referred me to several cases in which extraordinary circumstances were found to exist. In Harasymuk v. Harasymuk (1992), 1991 CanLII 7715 (SK QB), 98 Sask. R. 252, Carter, J. considered number of these decisions and concluded that the circumstances in the case before her were extraordinary. common thread running through the Harasymuk decision and others is that marriage of short duration has frequently been considered an extraordinary circumstance mandating an unequal division of the matrimonial home. Unlike these cases, the present case involves an eleven-year marriage. In my view, it is not extraordinary for one spouse to bring substantial assets to the marriage which are used to purchase family home. The single unusual circumstance in this case is the extent of Brenda's assets, considering that she was only 24 years old when she married. This does not constitute an extraordinary circumstance within the meaning of Section 22(1)(a). In my opinion, in the circumstances, it would beunfair and inequitable to Brenda as custodial parent to orderan equal division of the matrimonial home. see no reason why Calvin's share of the home should not be charged with spousal and child support. As I have said, Calvin cannotavoid his responsibility of providing an adequate level ofsupport by turning his back on well-paid employment. Upon theassumption that he will resume his employment with theProvincial Government when his leave of absence expires, Iorder that spousal and child support be deducted from hisshare of the matrimonial home. also charge his share of the matrimonial home with the arrears of spousal and child support of $4,471.48 and $2,600.00 due Brenda as her share of matrimonial property. Similarly, if Brenda is required to pay more than $6,500.00 upon the bank loan, all amounts paid by her in excess of $6,500.00 will be debt due her and payable from Calvin's share of the matrimonial home. Calvin's leave of absence will expire August 31, 1996. The several deductions from his share of the matrimonial home effective that date will be as follows: 1. Spousal and child support (March to August 31) $1,500.00: $9,000.00 2. Arrears of support: 4,471.48 3. Brenda's share of matrimonial property: 2,600.00 Total: $1,071.48 The foregoing will leave Calvin an equity in the matrimonial home of $44,428.52 on September 1, 1996. If he does not return to his employment with the Provincial Government on that date, his equity in the matrimonial home will vest in Brenda as lump sum award for the support of herself and the children. make this order having in mind the decision of Halvorson, J. in R.W. v. J.M. (1994), 1993 CanLII 9018 (SK QB), 111 Sask. R. 303, where at p. 306, he said: There are situations, however, where lump sum support is appropriate. Several immediately come to mind: (1) where there is money available, say from property division, and risk future support payments will not be made; (2) where the failure to pay past support has resulted directly in debt accumulation by the custodial parent; and (3) where the noncustodial parent has deliberately avoided attempts to enforce payments resulting in an accumulated support obligation. An illustration of this last example is found in the case of Ambrose v. Ambrose (1990), 24 R.F.L. (3d) (Man. C.A.). All three of these factors would appear applicable in the circumstances of this case. After February 28, 1999,Brenda is given leave to return to this Court so that childsupport may again be considered. The Matrimonial Property Act provides that the welfare of children should displace the other considerations enumerated in the Act. It is apparent that the children will benefit by living in the matrimonial home for the foreseeable future. I order that Brenda may maintain possession of thehome until Levi's eighteenth birthday, or until she shallvacate the property. During her occupancy, she shall adequately maintain the home and promptly pay taxes. When her possession ceases, failing an agreement, the home shall be sold and the proceeds divided in accordance with the foregoing reasons. decline to order costs with respect to Brenda's pre-trial motion which heard by telephone few days before the trial. do so because, from my perusal of the file, it appears no costs were ordered with respect to other motions such as Calvin's attempt to secure an order selling the matrimonial home. There will be judgment for divorce in accordance with the form provided in the Rules of Court. make no order with respect to the costs of these proceedings.","The petitioner sought a divorce, custody, spousal and child support and an unequal division of matrimonial property. The respondent counter-petitioned for similar relief, including divorce, joint custody and an equal division of the property. HELD: 1)Sole custody was awarded to the mother with access on the same terms as contained in the interim order. Two reasons for not awarding joint custody were the obvious acrimony between the parties and the respondent's reluctance to support his children. Three weeks after his application for sale of the home was rejected, he applied for a leave of absence from his job. It was inferred that he was trying to avoid complying with the order for interim support. 2)The mother re-entered the workforce after many years' absence. She suffered an economic disadvantage from the marriage and its breakdown. 3)The car owned by the petitioner when she married was exempt property. The motorcycle was disregarded as there had not been a significant increase in value. The list prepared by the respondent was used to divide household goods, tools and equipment. 4)The respondent was to assume one-half of the bank loan and it was agreed that the pension funds should be shared equally. 5)It would be unfair and inequitable to the custodial parent to order an equal division of the matrimonial property. The petitioner was granted possession of the matrimonial home until the younger child's 18th birthday or until she vacated the property. 6)The respondent cannot avoid his responsibility of providing an adequate level of support by turning his back on well-paid employment. Spousal and child support were deducted from his share of the matrimonial home. The petitioner was given leave to return to Court after February 28, 1999 for reconsideration of child support.",e_1996canlii6831.txt
318,"J. C.A.C. No. 119488 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.: Hart and Bateman, JJ.A. BETWEEN: WILLIAM HARRIS and HER MAJESTY THE QUEEN Respondent Maurice G. Smith, Q.C. for the Appellant Denise C. Smith for the Respondent Appeal Heard: November 24, 1995 Judgment Delivered: November 24, 1995 THE COURT: Appeal dismissed from conviction for break, enter and theft contrary to s. 348(1)(b), per oral reasons for judgment of Clarke, C.J.N.S.; Hart and Bateman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: CLARKE, C.J.N.S.: This is an appeal from the conviction of the appellant that on March 11, 1995, he broke and entered a used car dealership office in Antigonish and committed the offense of theft of a 1994 Chev Blazer contrary to s. 348(1)(b) of the Criminal Code. passing motorist familiar with the Blazer saw it being driven from the lot at 12:15 o'clock in the morning. He informed the police who, upon finding the office had been broken into and the Blazer keys were missing, took chase. They came upon the Blazer on the highway. When it was stopped two persons exited the Blazer and ran away. Two constables followed the tracks of one of them in the snow through wooded area. They noted on one or maybe two occasions the tracks broke through ice in brook. Shortly before 2:00 a.m., the appellant came out of the woods on the Williams Point Road. His lower body was wet. Some chunks of snow and ice were clinging to his clothing. The police said the imprint from his footwear resembled the imprint found in the tracks they followed through the snow. Justice MacLellan, in convicting the appellant, held that the doctrine of recent possession applied. He said that although the evidence was circumstantial, the facts he found to be proved led to no other reasonable inference than the guilt of the appellant. The trial judge found the Blazer was stolen just before 12:15 a.m. on March 11, 1995 as result of break and enter; that the appellant was in the Blazer when it was stopped by the police and that it had been recently stolen; that the appellant ran from the vehicle and made the tracks in the snow which were followed by the police, and that the time periods for the happening of each and all of these events were consistent with his findings of fact. The appellant contends the trial judge erred in law by applying the doctrine mainly because there is no evidence that he was in recent possession of the Blazer. Further he says the trial judge erred by determining the doctrine could apply because the appellant failed to provide an explanation. The doctrine of recent possession was discussed by the Supreme Court of Canada in R. v. Kowlyk (1988), 1988 CanLII 50 (SCC), 43 C.C.C. (3d) (S.C.C.). Mr. Justice McIntyre stated at pages 12-13: In summary, then, it is my view, based on the cases, both English and Canadian, which have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may but not must draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that question could arise as to whether the accused was thief or merely possessor, it will be for the trier of fact upon consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply. A review of the record and a re-examination of the evidence persuades us that there was sufficient evidence to support the findings of fact made by the trial judge, that the appellant was in possession of the Blazer at the time he fled, and also that the inferences he drew and the conclusion he reached. He examined the evidence in detail and, helpful to an Appeal Court in review, supported his findings with reasons drawn from the evidence. The focus of the remarks of the trial judge concerning lack of explanation were mainly directed to his comparison of the facts in case out of this Court where the accused had testified. (R. v. Ryan (1991), 1991 CanLII 2510 (NS CA), 105 N.S.R. (2d) 355.) In Ryan an explanation of the passenger's presence was given. finding of possession, without explanation, can trigger the doctrine. We are satisfied the factual situation here is unlike Ryan. Also, on appeal, it is appropriate for this Court to observe that this appellant chose not to testify at his trial and thereby offered no explanation. In our opinion the judgment of the trial judge was consistent with Kowlyk and the standards of review described in Yebes v. The Queen (1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417, and the decisions of the Supreme Court of Canada which have followed Yebes are satisfied. Accordingly, the appeal from conviction is dismissed. C.J.N.S. Concurred in: Hart, J.A. Bateman, J.A. CANADA S. At. No. 01526 PROVINCE OF NOVA SCOTIA 1995 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN -versus- WILLIAM CECIL HARRIS HEARD: at Antigonish, Nova Scotia before the Honourable Justice Douglas L. MacLellan DATE HEARD: July 25, 1995 COUNSEL: Mr. Richard MacKinnon, Esq., for the Crown Mr. Maurice Smith, Esq. for the Defendant C.A.C. No. 119488 NOVA SCOTIA COURT OF APPEAL BETWEEN: WILLIAM HARRIS and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: Clarke, C.J.N.S. (Orally)","This was an appeal from the conviction of the appellant that he broke and entered a used car dealership and stole a vehicle, contrary to s. 348(1)(b) of the Criminal Code. The theft was reported to police by a passing motorist who saw the vehicle being driven off the car lot early in the morning. The vehicle was spotted on the highway, and when stopped, was exited by two individuals. Two officers followed tracks through a wooded area, and noted that in two areas the tracks broke through ice on a brook. Shortly thereafter the appellant came out of the woods on a nearby road; his lower body was wet and chunks of ice and snow clung to his clothing. The imprint of his footwear resembled that of the tracks in the snow. The appellant was convicted, based on the doctrine of recent possession. He argued there was no evidence he was in recent possession of the stolen vehicle. Dismissing the appeal, that there was sufficient evidence to support the findings of fact made by the trial judge. The judgment of the trial judge was consistent with R. v. Kowlyk (1988), 43 C.C.C. (3d) 1 (S.C.C.).",5_1995canlii4187.txt
319,"SUPREME COURT OF NOVA SCOTIA Citation: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Ltd., 46 Date: (20120126) Docket: Pic No. 340973 Registry: Pictou Between: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Limited, carrying on business as Don Breton’s Fire and Safety Equipment and Don Brenton’s Fire Protection Equipment Defendant LIBRARY HEADING Judge: The Honourable Justice Patrick J. Murray Heard: September 22, 2011, in Pictou, Nova Scotia Written Decision: January 26, 2012 Subject: Costs. Party/party and solicitor client. Rule 77 and rule 18.16 considered Summary: The Defendant filed a motion to dismiss discovery subpoenas issued to the Defendant’s witnesses. The motion was allowed and the Order granted included a direction as to the manner of discovery. Issue: What costs should be awarded to the Defendant? Result: The circumstances and factual findings justified an increase in the tariff, for party/party costs. Further the circumstances warranted an award of Solicitor/client costs in limited amount. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Ltd., 2012 NSSC 46 Date: 20120126 Docket: Pic No. 340973 Registry: Pictou Between: Northern Pulp Nova Scotia Corporation v. D.R. Brenton Limited, carrying on business as Don Breton’s Fire and Safety Equipment and Don Brenton’s Fire Protection Equipment Defendant DECISION ON COSTS Judge: The Honourable Justice Patrick J. Murray Heard: September 22, 2011, in Pictou, Nova Scotia Written Decision: January 26, 2012 Counsel: Donn Fraser, for the Plaintiff Michael E. Dunphy, Q.C. for the Defendant By the Court: [1] These are reasons for decision in fixing an award of costs to the Defendant, D.R. Breton Limited upon is successful motion to strike out discovery subpoenas issued by the Plaintiff, Northern Pulp Nova Scotia Corporation. [2] My decision, as well, decided the order in which the witnesses at discovery would be examined. determined that the Plaintiff witnesses (as parties) would be discovered first (on September 27th, 28th) and the Defendant witnesses would be discovered (on September 29th, 30th) after discovery of the Plaintiffs. [3] The Defendant has in their submission on costs stated that the actions of the Plaintiff constituted an improper use of discovery subpoenas. Instead, says the Defendant, the Plaintiff should have made motion to determine the order of discovery, without excluding the Defendant’s representative, as was suggested by the Plaintiff during negotiations to reach an agreement on Discovery. [4] The Defendant submits also that Plaintiff’s counsel has made unwarranted attacks against Defendant’s counsel. As result, the Defendant argues that the Court must show it’s dissatisfaction with this approach by Plaintiff’s counsel, in strong terms. Consequently the Defendant seeks an award of costs on a solicitor/client basis against the Plaintiff. [5] The starting point, is that the Defendant was successful on the motion. Normally the successful party is entitled to costs. This aspect is not in dispute. What is disputed by the Plaintiff is the amount and also what factors the Court should consider in weighing whether special circumstances exist, that would justify an award, on solicitor/client basis. [6] The Plaintiff submits that the motion was straight forward, and argued in the same manner. It argues further that the motion was uncomplicated, and that the motion was not about the exclusion or the attempt to exclude the Defendant’s representatives during discovery. Instead the Plaintiff states, the rule in question (Rule 18.16) is uncertain in respect to the order in which the parties are to be discovered. It states therefore that the use of the discovery subpoenas in this instance was permissible or at least arguably so, before the motion was made. [7] Without detailing all of the facts and without repeating all reasons for my oral decision on the motion, pause here to add additional facts and circumstances to provide context for my earlier decision and as well, this decision on costs. [8] In May of 2011 the Defendant solicitor, Mr. Dunphy, contacted the Plaintiff solicitor, Mr. Fraser, to arrange for discovery dates for the parties to the litigation. tentative date was reached for July, 2011 with the Defendant asking the Plaintiff to confirm his client’s availability. Here an honest and innocent mistake occurred. The Defendant’s solicitor, was on vacation at that time and failed to hold or “pencil in” the tentative scheduled dates. He states he did not receive confirmation of the dates from the Plaintiff’s solicitor as requested. Although Mr. Fraser believes he replied, he does not dispute Defendant’s counsel position on this. Mr. Dunphy subsequently scheduled other matters on the dates which had been initially discussed, and reserved by the Plaintiff. The Plaintiff for its part thought the dates had already been agreed upon. [9] Subsequently the tentative discovery dates in July had to be cancelled. At that point the discussions, emails, and exchanges took on much different tone, in particular from Plaintiff’s counsel, as he felt that the Defendant was reneging on the agreed upon discovery dates in July, 2011. [10] In the affidavit of Mr. Guy Harfouche, filed on behalf of the Plaintiff, he states: “32. Only on July 5, 2011, in response to the above noted July 4, 2011 letter and after requests over period of almost months, did Mr. Dunphy cooperate in providing the name of the Defendant's designated manager, being Mike Deglano. This July 5, 2011 letter from Mr. Dunphy was not disclosed by the MacGregor Affidavit but true copy is attached hereto as Exhibit ""E"". 36. Later still on July 5, 2011 Mr. Dunphy emailed Mr. Fraser (as reproduced in Exhibit ""L"" to the MacGregor Affidavit) advising that that (sic) the dates he proposed in May 2011 for discovery in this proceeding ""have been filled in"" and that they could look at other dates. This July 5, 2011 email failed to provide any explanation for the lack of any follow‑up from the Defendant's counsel for the period following the May 6, 2011 email. 39. Mr. Fraser advised, and do verily believe, that out of concern regarding delay in these proceedings and without yet having fully assessed any issue of tainting or tailoring of evidence with the Defendant witnesses (those witnesses just having been identified on July 5, 2011), he emailed Mr. Dunphy on July 6, 2011(as reproduced at Exhibit ""O"" to the MacGregor Affidavit) stating, among other things: ""Given the delays you have caused in scheduling, we will not permit discovery of the Plaintiff's witnesses before discovery of the Defendant's witnesses have been concluded. We have legitimate concern at this stage that if we proceed without first completing discovery of the Defendant witnesses there will simply be further unreasonable delays."" [11] On the other hand the affidavit of Amy MacGregor filed in support of the motion on behalf of Defendant states: “14. On May 6, 2011, Mr. Dunphy wrote to Mr. Fraser proposing discovery examinations take place from July 19 22, 2011. Attached as Exhibit ""I"" is true copy of that correspondence. 17. On July 5, 2011, Mr. Dunphy wrote to Mr. Fraser advising that he did not receive confirmation from Mr. Fraser regarding the proposed July 19 22, 2011 discovery dates and was no longer available on those dates. Attached as Exhibit ""L"" is true copy of that correspondence. 19. On July 6, 2011, Mr. Dunphy wrote to Mr. Fraser proposing discovery examination dates of September 27‑30, 2011. Attached as Exhibit ""N"" is true copy of that correspondence. 20. On July 6, 2011, Mr. Fraser wrote to Mr. Dunphy confirming the September discovery examination dates and advising that he would not permit discovery of the Plaintiff's witnesses before discovery of the Defendants' witnesses had been concluded. Attached as Exhibit ""O"" is true copy of that correspondence.” [12] In Exhibit “I”, Mr. Dunphy’s email to Mr. Fraser includes the following statements regarding the proposed July 19th 22nd discovery dates: “If these dates are acceptable, will have to check with my anticipated witnesses. look forward to hearing from you.” [13] In Exhibit “L”, Mr. Dunphy’s email indicates the following statements: do not have the discovery dates set. emailed you on May the 6th while was on holidays proposing discovery dates and asked you to get back to me if acceptable so would check with witnesses. never did hear from you and the dates have been filled in. We can look at other dates.” [14] It was then that Mr. Fraser emailed Mr. Dunphy stating what is contained in Exhibit “O” voicing concern for past and future delays, as mentioned in paragraph 10 (sub para 39) herein. [15] Having given my decision on the motion, it is not my intention to repeat all of the relevant evidence, as this is decision on costs only. have provided the above in an effort to illustrate the attempts by counsel to arrange for discovery, their further attempts to resolve the subsequent dispute, and the circumstances that gave rise to the issuance (on two occasions) of discovery subpoenas by the Plaintiff and served on the Defendant’s representatives Mr. Murphy and Mr. Degiano. [16] In its brief, the Plaintiff states it held “legitimate concerns with tainting and tailoring of the evidence of Mr. Degiano and Mr. Murphy, if those individuals are privy to the Plaintiff’s witnesses in advance of providing their own evidence under oath.” [17] The Defendant in its brief took the position that: 1. The Court should encourage counsel to be reasonable and cooperative in scheduling discovery examination by consent, so as to comply with the objective of the rules. 2. That the Defendant not the Plaintiff first requested discovery examinations (on January 23, 2011). 3. That there had been tentative agreement to the Plaintiff’s witnesses being discovered first (in July) before those dates fell through. 4. The issuing of the discovery subpoenas (party) by the Plaintiff was an abuse of process. [18] What is clear is that what started as misunderstanding, quickly escalated into something more. Between July and September of 2011, the parties positions on discovery, when they would be held, and in particular the order in which the parties would be discovered, became entrenched. Beyond the discovery issue, conduct also became an issue, as between counsel. [19] turn now to consider what costs should be awarded in respect of this motion. [20] On August 2, 2011, the Plaintiff issued discovery subpoenas (party) on the Defendant’s representatives Michael Degiano and Peter Murphy. These were in respect of the new dates agreed upon in September. It was brought to the attention of the Plaintiff’s solicitor by the Defendant’s solicitor that these subpoenas did not contain all of the representations and undertakings required by Rule 18.04. Mr. Dunphy wrote to Mr. Fraser by letter dated September 7, 2011: “I am surprised to see that you have taken the unilateral action that you have in issuing the discovery subpoenas. With respect, believe the issuance is inappropriate and in non compliance with the Civil Procedure Rules. have agreed to discovery dates and the witnesses to be examined. have also agreed to the sequence of the witnesses as originally agreed for the July discoveries. What have not agreed to is to have my designated manager for discovery excluded from the examination of your witnesses and not communicate with them regarding the evidence provided by your witnesses.” “It seems to me that we are set to go for the discovery examinations later this month. The only question is whether my client’s designated manager for discovery should be excluded from the discovery examination of your witnesses. If you wish to seek an Order to that effect it is open to you to make motion to do so. We see no basis whatsoever for the exclusion of witnesses in this case. look forward to hearing from you regarding the foregoing. (Exhibit of Amy MacGregor’s Affidavit) [emphasis added]. [21] In response, the Plaintiff issued new discovery subpoenas containing the following additional clauses respectively: Re: Mr. Degiano: Clause discovery subpoena is necessary because discovery by agreement has not been possible through Counsel for the defendant, with apparent irreconcilable difficulties existing in terms of scheduling and ordering of witnesses. Clause 4: The witness to whom this subpoena is addressed is the designated manager for the defendant and has not yet been discovered in this proceeding. Re: Mr. Murphy: Clause discovery subpoena is necessary because discovery by agreement has not been possible through Counsel for the defendant, with apparent irreconcilable difficulties existing in terms of scheduling and ordering of witnesses. Clause The witness to whom this subpoena is addressed is an individual party. [22] These new discovery subpoenas were issued on September 7, 2011, with Mr. Degiano being required to attend discovery on Tuesday, September 27, 2011, at 9:30 a.m. and Mr. Murphy being required to attend at discovery on Wednesday, September 28, 2011, at 9:30 a.m. [23] In the present case, the Defendant is seeking costs in the amount of $3,500.00 on its successful motion. The Defendant states that the steps taken by the Plaintiff were improper and mistaken. Its position and strategy led to an unnecessary motion. Further it argues that Plaintiff’s counsel’s conduct in attacking defence counsel was improper and that the Court must show its displeasure for such actions. The Defendant states further that the Plaintiff was given an opportunity to withdraw the motion and is entitled to its reasonable and necessary costs, including travel and disbursements. Also the Defendant says the Plaintiff chose not to withdraw the motion despite having been given an opportunity to do so. [24] The legal principles governing the awarding of costs are dealt with by Civil Procedure Rule 77. Under that rule, the Court has general discretion in the awarding of costs and can consider certain factors which may increase or decrease the award of costs by the Court. It also provides guidance to judge and allows the Court to determine expenses caused by improper or negligent conduct of counsel. (Rule 77.12) [25] There is “tariff” which provides that guidance. Tariff is the standard one for chambers. The standard tariff states as follows: Length of Hearing of Application Range of Costs Less than hour $250 $500 More than hour but less than day $750 $1,000 More than day but less than day $1,000 $2,000 day or more $2,000 per full day [26] The Court has the discretion to increase the tariff depending upon the circumstances of the case. In this case, the Defendant submits that the Tariff costs should be increased as result of two factors (a) the Plaintiff’s unreasonable and legally unsupportable position which caused the motion, and (b) the inappropriate and offensive comments made by the Plaintiff’s counsel in its pre-motion brief. [27] It is important to note that Court may grant any order in respect of costs that will “do justice between the parties”. (Rule 77.02). In addition, there is nothing in the Rules to limit the discretion of judge to make any order. The Court may subtract from or add to the tariff mentioned above. [28] It should be noted as well that the awarding of solicitor/client costs is reserved for what the Rule refers to as “exceptional circumstances”. Specifically, Rule 77.01(b) states that solicitor/client costs: ... may be awarded in exceptional circumstances to compensate party fully for the expenses of litigation; [29] Under the same rule, party/party costs would compensate party for part of the compensated party’s expenses of litigation. Solicitor client costs are fees and disbursements which counsel charged to client for representing the client in proceeding. [30] The starting point in Tariff is governed by the length of the hearing. In the present case, the hearing began at approximately 11 a.m. on September 22, 2011 and was completed at 12:50 p.m. It was reconvened at 1:50 p.m. for my decision and completed at 2:20 p.m. In total it lasted approximately hours and 20 minutes hearing time. The total duration of the hearing (allowing an hour for my deliberation) was hours and 20 minutes. It was longer still if one includes waiting time from 9:30 to 11 a.m. in chambers while other matters were being dealt with. The hour for deliberation coincided, approximately with the normal lunch break. [31] Counsel for the Plaintiff argues in its brief that costs should simply be party/party costs alone in the amount of $750.00 and that this hearing should fall in the“more than one hour but less than day” range, which would be $750.00 to $1,000.00. The Plaintiff states the sum of $750.00 is in keeping with the length of the hearing. The Plaintiff also argues that while the Defendant was successful on the motion, the motion was routine interlocutory procedural matter and not complex issue. It therefore states $750.00 is the appropriate amount for the Court to award in respect of party/party costs. [32] There are two points which the Plaintiff raised and in fairness must be considered by the court. These are (1) that the motion was not about exclusion of the Defendant’s witnesses; and (2) there is lack of certainty regarding the application of Rule 18.16 in terms of the order in which witnesses will be examined. [33] Expanding on these issues, cite the following from the Plaintiff’s brief on costs: “The Plaintiff’s position was not contrary to the Trans Canada case, as suggested by the Defendant. We did not understand the Court to find as much. The Plaintiff took no position on exclusion of witnesses, as that was not what it was seeking. The Plaintiff was certainly not attempting to deprive the Defendant from having representative present through the discoveries. Your Lordship raised the issue of the distinction between designated manager and an instructing witness. However, in this case, what the Plaintiff sought allowed even the designated manager of the Defendant to be present for all discoveries. The Defendant was simply insistent on getting to ask discovery questions first and, in our respectful view, has mischaracterized the issue by claiming it was about exclusion of witnesses. (Page 7) Further, while ultimately disagreeing that the subpoenas should be allowed, Your Lordship expressly acknowledged the Plaintiff’s frustration that it felt it was getting nowhere with discovery arrangements and that the Plaintiff legitimately felt it was entitled to resort to the discovery subpoenas. There were also clearly arguable issues on this point, given the lack of certainty regarding the application of rule 18.16. This is demonstrated by the Defendant initially taking the position that the Rule applied, then reassessing this analysis to submit that it did not, with Your Lordship ultimately concluding that the Rule in fact applied. [34] Dealing first with the exclusion, the Plaintiff had earlier proposed to the Defendant that the Defendant proceed first to discover the Plaintiff’s witnesses, on certain conditions. These included the Defendant’s representative being excluded from the discovery hearing and also that there would be no communication between the Defendant and their solicitor. (Paragraph 23 of Amy MacGregor’s affidavit of September 12th and paragraph 32 of the Defendant’s brief of September 13, 2011.) [35] In my respectful view, if exclusion was not the main issue on the motion, it was the underlying issue. In terms of negotiations leading up to the issuing of the subpoenas by the Plaintiff, the matter was not about exclusion only if the Defendant’s witnesses were discovered first by the Plaintiff. Otherwise, the Plaintiff proposed, sought in fact that the Defendant’s representative be excluded form the discovery. [36] Secondly, although Rule 18.16 does not deal specifically with the order in which witnesses will be called, it does deal with the conduct of the discovery in general. ruled therefore, it was applicable to these circumstances. [37] will allow and acknowledge that the application of Rule 18.16 is subject to interpretation. interpreted the Rule as being applicable. In so doing, made the following findings in my oral decision. (I) Brenton would have the right to examine the Plaintiff's witnesses first, both as result of the legal concept that the Defendant has the right to know the case against them and that the Defendant first gave notice pursuant to Civil Procedure Rule 18.16. (ii) The Plaintiff did not have any authority for the proposition to exclude the Defendant's representative from the discovery of the Plaintiff's witnesses. The case law is applicable in that corporate defendant has right to be represented at discovery. (Trans Canada) (iii) There was no material delay by the Defendant or Defendant's counsel in moving to discovery examinations. (iv) The use of the discovery subpoena for this purpose is something to be frowned upon. (v) The appropriate practice would be to make motion to have the order of witnesses determined or the exclusion of witnesses determined. [38] It should also be noted that in my decision, made the following additional observations (1) The issuing of the discovery subpoenas (which in effect dictated the order of witnesses) made exclusion a mute issue. (2) That the issuance of the discovery subpoenas occurred in the midst of the parties attempting to make arrangements for discovery in good faith. (3) Both parties agreed initially that Rule 18.16 was applicable. ruled that if 18.16 was not applicable, that had discretion pursuant to Rule 94 and Rule to grant the order to strike the discovery subpoenas and to direct that the Plaintiff’s witnesses be discovered first by the Defendant. [39] In terms of costs, am of the view that any decision make should be tempered by the following factors: (1) there was an implicit agreement regarding the discovery in July including the order of witnesses; (2) that when this agreement fell through, the Plaintiff became “frustrated” and became concerned about further delay resulting; (3) the Plaintiff believed it had legitimate position in issuing the discovery subpoenas or the parties had differing interpretations of Rule 18.16. In rendering my decision, must also consider Rule 77.07 which states that court may consider the following factors in increasing costs: (f) step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily; (g) step in the proceeding party was required to take because the other party unreasonably withheld consent; [40] agree with the Plaintiff that both these factors apply to this case. further agree that the Defendant’s pre-motion brief is relevant in respect to the determination of costs. However, with respect to the latter, believe it is most relevant, in regard to the Defendant’s request for solicitor/client costs as opposed to party/party costs. intend therefore to deal with it on that basis. DECISION [41] It is my determination that the Tariff C costs should be increased. In awarding increased costs to the Defendant, there are several reasons for doing so. While falling short in my decision of finding that the issuing of the discovery subpoenas was an abuse of process, I did find that their issuance was an improper step in these circumstances. In addition, this required the Defendant to take a step in the proceeding it would not otherwise have had to take, the Motion to Strike. Further the Plaintiff was given the opportunity, as suggested by the Defendant to withdraw the subpoenas. It did not, and instead proceeded ahead. [42] In my decision found that it would have been proper for the Plaintiff to make motion to address its concern as to the order of witnesses. note in the evidence (Exhibit O, Amy MacGregor) that the Plaintiff contemplated such motion (on July 28th or August 11th). am mindful also that as part of the Defendant’s motion granted an order determining the order in which the parties would be discovered. The Plaintiff’s insistence on first discovering the Defendant’s witnesses was initially based on its concern for further delays by the Defendant (also expressed as the unreasonable and uncooperative approach) and as well concern for “tainting and tailoring”, in other words to protect credibility. [43] In my decision found that the delay between July and September for discovery dates was not unreasonable. found also that there was not evidence presented which warranted special consideration as to credibility issues, as compared to other cases or situations. [44] In my decision stated that the use of subpoenas in this matter should be frowned upon. In fixing the amount, the Court’s dissatisfaction should be expressed. Consequently am fixing party/party costs within the range for hearing based half day in length at range. For that time the range would be at approximately $1,000 and my decision is to increase that (by $500) to $1,500 in total for party/party costs. [45] turn now to consider whether further costs should be awarded having regard to the Plaintiff’s Pre-Motion brief. While such alleged conduct may indeed be relevant in an award of party/party costs as part of my general discretion, it is more appropriate in my view to consider this issue under the heading of solicitor/client costs (Rule 77.03(2) and Rule 77.12(1)). SOLICITOR/CLIENT COSTS [46] The Defendant seeks an Order for payment of costs on solicitor/client basis, pointing out that it advised the Plaintiff it would seeking same on the motion to set aside the subpoenas. [47] note from the evidence that the Defendant’s counsel in July (Exhibit on July 8, 2011) raised with the Plaintiff that “civility issues” had crept into the case and expressed the hope that the strong language, and assertion of blame could be eliminated. The Defendant in it’s submissions points out, correctly, that counsel have duty not to try each other. [48] have considered and weighed the Plaintiff’s position on this as well. The Plaintiff states that its characterization was fair, given the unresponsiveness of counsel and that the jurisprudence and practice is not uniform (on the point of which party proceeds first to discovery examinations). It states further that the prevailing practice is different (in the view of the Plaintiff’s counsel) than what was suggested by Defendant’s counsel. It states also, correctly, that counsel giving evidence ought to be avoided and the same improper treatment complained of by Defendant’s counsel is contained in their cost submissions. The Plaintiff states further that the particular characterizations, were made honestly and in good faith. In the end the Plaintiff leaves it to the Court’s judgment whether to comment further on the specifics of these allegations. [49] The Court has inherent jurisdiction over counsel, as its officers. Any award made on costs must be fair and reasonable overall. Under rule 77.12 conduct of counsel is factor more so than the conduct of party, the latter being contained in Rule 77.07. [50] In exercising the inherent jurisdiction of the Court do not intend to detail further the “back and forth” allegations. find, as am sure both counsel here would agree, that normal practice would dictate that discovery by consent should be encouraged. [51] Further detailing of the allegations serves only to perpetuate the unfortunate dealings as between counsel here. Suffice it to say have thoroughly considered the positions and submissions of both sides. [52] The particular concern of Defendant’s counsel is in respect to use of language such as “without prudence or courtesy”, “refusal to honour dates”, “reneged”, “misrepresents”, and “repeatedly misrepresents”. On the whole I am of the view that the comments in the Defendants pre-trial motion were unduly harsh and unnecessarily strong. [53] On the merits of the case, whether there was implicit agreement or otherwise, these allegations added a layer of complexity and seriousness to the case, which undoubtedly caused the Defendant’s counsel to expend additional time preparing a response. In this way these are special circumstances which warrant, in my view, an award of costs on solicitor/client basis. The Court must discourage such submissions and encourage spirit and level of cooperation among counsel which requires, courtesy, respect and professionalism. I therefore award solicitor/client costs to the Defendant payable by the Plaintiff in the amount of $1,050. [54] am aware that the amount claimed by the Defendant’s solicitor is more than this and that the time expended was more than what was sought. have been given minimal information and an estimate of fees only. In reaching my decision, am exercising my discretion with respect to costs generally. My award is intended to compensate the Defendant (in part only), taking into account the seniority of counsel for the moving Defendant. (Sheng Ontario, 1997, 72 ACWS (3rd) 912 (Ont. SCJ.)). [55] In terms of the disbursements, it is normal to allow reasonable and necessary disbursements and this is the requirement of Rule 77.10(2). have reviewed the case law submitted in respect to the disbursements by the Plaintiff. see nothing unnecessary or unreasonable about the Defendant’s disbursements in the amount of $332.21. In my view the retention of local counsel to respond to the issues in this matter would not have been appropriate. Although the claim for photocopying has not been proven as such, consider it to be legitimate, considering the substantial amount of documentation provided. [56] Prior to concluding, will comment briefly on the case of Gouin Gouin 2005 Carswell Alta 1960, submitted by the Plaintiff. In Gouin, like here, there was no Rule establishing the order for examination for discovery. Here however, there is rule establishing who has conduct of the discovery itself. Also, in Gouin the Court considered relevant, the practice in its jurisdiction, which may or may not vary from other jurisdictions. Lastly the Court in Gouin appeared ready to deviate from the “usual order”, but concluded that no good reason was shown to do so. In the present case, the Court considered counsels’ positions offered on the practice in Nova Scotia (including under the 1972 Rules) and exercised its discretion, in rendering its decision on the motion. The Defendant first knowing the case it has to meet formed the basis of that decision. [57] In conclusion the total costs payable by the Plaintiff to the Defendant on the motion shall be $2,550 plus disbursements of $332.21, for a total of $2,882.21 payable within 20 days.","The parties agreed on discovery dates and the order in which witnesses would be discovered. As a result of an honest error, the defendant wasn't able to attend the original dates. The plaintiff became frustrated and concerned about further delays. While the defendant was making good faith efforts to resolve the discovery issues (including whether its witnesses should be excluded from attending discovery of the plaintiff's witnesses), the plaintiff's lawyer issued discovery subpoenas to compel the defendant's witnesses to appear, making the exclusion issue moot. The defendant moved to have the subpoenas dismissed, and sought solicitor and client costs on the motion. The defendant argued the subpoenas were improper and an abuse of process, and accused the plaintiff's lawyer of making unwarranted attacks against the defendant's lawyer in his pre-hearing brief. The motion was heard over approximately one-half day. Motion granted. The plaintiff will pay total costs of $2,550 (plus disbursements) to the defendant, consisting of $1,500 in party and party costs under Tariff C and $1,050 in solicitor and client costs. The tariff amount of $1,000 is increased by $500 to reflect the fact the issuance of the subpoenas was an improper step, albeit one falling short of an abuse of process. It required the defendant to bring this motion to strike. The plaintiff was given a chance to withdraw the subpoenas and chose not to. Solicitor and client costs were warranted especially in light of the defendant's lawyer's language, which was unduly harsh and unnecessarily strong. His allegations added a layer of complexity and seriousness to the case, which caused the defendant to spend extra time preparing a response. Lawyers are officers of the court and the court must encourage them to use courtesy, respect and professionalism.",c_2012nssc46.txt
320,"J. Dated: 19980630 Docket: 2622 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Vancise Gerwing JJ.A. and HER MAJESTY THE QUEEN COUNSEL: Mr. S. E. Halyk, Q.C. for the appellant Mr. D.M. Brown, Q.C. for the Crown DISPOSITION: On Appeal From: QBG1608/1996 Appeal Heard: 15 October 1997 Appeal Allowed: 30 June 1998 Written Reasons: 30 June 1998 Reasons By: The Hon. Mr. Justice Vancise In Concurrence: The Hon. Mr. Justice Cameron The Hon. Madam Justice Gerwing VANCISE J.A. Introduction [1] The primary issue on this appeal is whether the youth court has jurisdiction in proceedings which are commenced in youth court where it is alleged that the offences charged occurred when the accused was either a young person or an adult but it is not possible to determine whether at the time the alleged offences were committed the accused person was a young person or an adult. [2] The accused was charged by information dated January 6, 1996, that being a young person within the meaning of the Young Offenders Act,[1] he committed the following offences: (1) between January 1, 1982 and January 3, 1983, he did commit acts of gross indecency against G.W., contrary to s. 271 of the Criminal Code;[2] (2) between January 4, 1982 and December 31, 1989, he did on more than one occasion commit a sexual assault on G.W. contrary to s. 271 of the Criminal Code; and, (3) between January 1, 1983 and December 31, 1989, did have sexual intercourse with G.W. while knowing that G.W. was his sister and did thereby commit incest contrary to s. 155 of the Criminal Code. The Crown stayed an identical information previously laid against the accused alleging that the same offences occurred when he was an adult. [3] The accused was born on […], 1967 and, ignoring for the moment the transition provisions of the Young Offenders Act, became an adult on […], 1985. He was therefore charged with having committed certain offences during period of time, […], 1985 to December 31, 1989, when he was an adult. It is common ground that youth court judge does not have jurisdiction with respect to any offences which occurred after the date he became an adult. [4] Both the Crown and the defence agree that once an information alleges an offence occurred when the accused was young offender, the youth court judge has jurisdiction to embark on the inquiry. They differ on what happens if the youth court, having embarked upon the inquiry, is unable to determine whether the offence occurred when the accused was young offender or an adult. Relevant statutory provisions [5] The relevant portions of the Young Offenders Act 2.(1) Definitions In this Act, “young person” means person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act with having committed an offence while he was young person or is found guilty of an offence under this Act. 5.(1) Exclusive Jurisdiction of Youth Court Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by person while he was young person and any such person shall be dealt with as provided in this Act. 16.(1) Transfer to ordinary court Subject to subsection (1.01), at any time after an information is laid against young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 553 of the Criminal Code but prior to adjudication, youth court shall, on application of the young person or the young person’s counsel or the Attorney General or an agent of the Attorney General, determine, in accordance with subsection (1.1), whether the young person should be proceeded against in ordinary court. 16(1.1) Order In making the determination referred to in subsection (1) or (1.03), the youth court, after affording both parties and the parents of the young person an opportunity to be heard, shall consider the interest of society, which includes the objectives of affording protection to the public and rehabilitation of the young person, and determine whether those objectives can be reconciled by the youth being under the jurisdiction of the youth court, and (a) if the court is of the opinion that those objectives can be so reconciled, the court shall (i) in the case of an application under subsection (1), refuse to make an order that the young person be proceeded against in ordinary court, and (ii) in the case of an application under subsection (1.01), order that the young person be proceeded against in ordinary court; or (b) if the court is of the opinion that those objectives cannot be so reconciled, protection of the public shall be paramount and the court shall (i) in the case of an application under subsection (1), order that the young person be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence, and (ii) in the case of an application under subsection (1.01), refuse to made an order that the young person be proceeded against in youth court. (2) Considerations by youth court In making the determination referred to in subsection (1) or (1.03) in respect of young person, youth court shall take into account (a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act of Parliament or any regulation made thereunder; (c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case; (d) the availability of treatment or correctional resources; (e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (f) any other factors that the court considers relevant. (3) Pre-disposition reports In making the determination referred to in subsection (1) or (1.03) in respect of young person, youth court shall consider pre-disposition report. Judgment of Provincial Court [6] The trial judge dismissed count number one finding that there was no evidence on which he could find the accused guilty. [7] Count number two alleges the offence specified therein occurred over period of time commencing January 4, 1982 to December 31, 1983 and count number three alleges that the offence occurred between January 1, 1982 and December 31, 1989. The trial judge found there were four incidents or episodes where the offences could have been committed: (1) an incident in the family room; (2) an incident in the basement of the house; (3) an incident in the “boys” bedroom; and, (4) an incident in the complainant’s bedroom. [8] The complainant related these incidents of sexual assault, gross indecency and sexual intercourse in no particular chronological order and she was not sure whether the events or incidents occurred before or after the accused moved out of the family home after graduating from high school. She was certain, however that the offences stopped after she was in Grade 11. The trial judge found that was in 1989. He found that the accused became an adult on […], 1985. [9] The trial judge found the date of only one incident, the one allegedly committed in the family room. In his opinion, it occurred after the family room was added on to the house, 1984, and the year the complainant had her first menstrual period, 1986. He found therefore, that the family room incident occurred after 1986 when the accused was an adult. [10] With respect to all the other incidents, the trial judge stated: [T]he finding must be that one cannot determine when they occurred, but [they occurred] sometime before the end of 1989. And with respect to these therefore, because of that, one cannot determine whether they occurred while the accused was an adult or young offender.[3] In dealing specifically with counts and he stated: With respect to the other two counts, some of the episodes clearly [occurred when] the accused was an adult. With respect to the other, they could have occurred at any time.[4] The youth court judge was not in the circumstances prepared to assume jurisdiction on counts two and three. The Crown appealed to the Court of Queen’s Bench. Judgment of the Court of Queen’s Bench [11] The summary conviction appeal court judge found the provincial court judge erred in declining jurisdiction. He analysed the relevant case law and concluded that the law was as follows: 1. In youth court, proof of the accused’s age by the Crown is not necessary until there is “evidence to the contrary”, as such phrase is used in s. 2(1) of the Young Offenders Act, or something tantamount thereto which suggests that the accused is not “young person”. Thereafter, the Crown bears the legal burden of proving that the accused was more than 12 and less than 18 years of age at the time of the alleged offence. [R. v. M.(S.M.); R. v. T.A.L.; R. v. L.]. 2. Where the accused intends to challenge the jurisdiction of the youth court, the accused bears the evidentiary burden of proving that the youth court lacked jurisdiction because of the accused’s age. 3. Where the youth court judge concludes on the evidence, led by the defence or otherwise, that the accused was an adult at the time of the alleged offence, he or she should decline jurisdiction and transfer the case to “adult court” without commenting on the evidence. 4. Where the youth court judge is uncertain of whether the accused was an adult or young person at the time of the offence, then the youth court judge should apply R. v. A. (E.A.).[5] [12] The summary appeal court judge found the youth court judge should have assumed jurisdiction after he found the alleged offences could have occurred when the accused was young person or when he ceased to be young person under the Young Offenders Act. In his opinion the principles set out in R. v. A.(E.A.)[6] are applicable and because of the uncertainty when the alleged offences occurred, the accused should be tried under the least onerous regime, youth court. [13] The summary conviction appeal court judge then ordered writ of mandamus issue directing the youth court judge to render decision according to law. Issue [14] The primary issue on this appeal is whether the youth court judge was correct in declining jurisdiction on the basis he was unable to determine whether the alleged offences occurred when the accused was a young offender. The secondary issue of whether a writ of mandamus should issue will of necessity follow the result of the determination of the first issue. Analysis [15] The accused was charged with having committed two indictable offences, sexual assault and incest, over a period of seven years commencing January 4, 1983. These offences occurred during the transition from the Juvenile Delinquents Act to the Young Offenders Act and were therefore subject to the transition provisions of the latter Act. This Court considered the effects of the transition provisions in the Act and in particular s.79(4) in R. v. B.(K.)[7] If one applies the ratio of B.(K.) to the facts of this case, the accused’s status changed from young person to adult and then back again to young person during the following time frames: 1. from January 4, 1983 (the start date in the information) until April 2, 1984 (the proclamation date of the Young Offenders Act), the Appellant was “young person”; 2. from April 2, 1984 until April 1, 1985 (the date SOR/84-279 ceased to have effect) the Appellant was an adult; 3. from April 1, 1985 to […], 1985 (when the Appellant turned 18) he was “young person”; 4. from […], 1985 to March 22, 1987 (the date the complainant turned 13 and experienced no further abuse) the Appellant was an adult.[8] [16] The jurisdiction of the youth court is determined by s. 5(1) of the Act. It does not depend on the averments in the information or on proof of age. See: R. v. C.(S. A.)[9]and R. v. R. and C.[10] The youth court has exclusive jurisdiction over the accused person if the alleged offences occurred when he was young person as defined in s.2 of the Act. Neither the Criminal Code nor the Young Offenders Act address the issue of the jurisdiction of the youth court where uncertainty exists as to the accused’s age at the time of the commission of the alleged offence. [17] The Crown contends that where the status of the accused oscillates between that of young person and an adult and where the date of the occurrence of the offence is uncertain, with the result that the offence could have occurred when the accused was young person or an adult, the proper forum is the youth court. The Crown relies on R. v. A.(E.A.) in support of that position. In R. v. A.(E.A.) the alleged offence occurred between p.m. on day one and a.m. on day two. The accused turned 18 at midnight. The trial judge was unable to decide whether the offence occurred before or after midnight and could not find that it occurred when the accused was young offender. He therefore declined jurisdiction. The Crown appealed and Dubin C.J.O. speaking for the court said: If it had been shown that the offence was committed after midnight and when the appellant was then 18 years of age, the Youth Court would not have jurisdiction to try him, and he would have to be tried in adult court. But, in this case, there is no proof as to the exact time at which the offence was committed. On the premise that the appellant was in fact guilty of sexually assaulting the victim, and, in the absence of proof as to the exact time of the offence, which is normally not material averment, then the facts should be viewed in manner most favourable to the appellant. Under such circumstances, it would be most favourable to the appellant to conclude that the time of the commission of the offence was when he was young person since the disposition and the alternative remedies available under the Young Offenders Act are more favourable to the appellant than if he were tried in an adult court.[11] [18] In this case, the information alleges on its face that the offences charged could have occurred when the accused was young person or an adult. There is “evidence to the contrary” that the accused was not young person when at least some of the offences occurred. [19] The question is not whether the accused should be tried but rather which court should assume jurisdiction. If the reason for declining jurisdiction is because of the absence of proof of exactly when the offences occurred, which is not normally material averment, it follows that the accused could not be tried in either youth court or ordinary court by reason that the same uncertainty as to when the offence or offences occurred would apply whether the charges were brought in youth court or ordinary court. That result is untenable and in such circumstances choice of jurisdiction between youth court or ordinary court must be made. There are two ways to determine which of the two courts should assume jurisdiction: (1) view the facts in manner most favourable to the accused, deem that the offence was committed when the accused was young person and that the youth court has jurisdiction; (2) order transfer hearing under s. 16(1) of the Act to determine whether the offences should be heard in youth court or ordinary court. [20] Before deciding which of the two alternatives should be employed it would be useful to set out the principles applicable to transfer hearing under s.16 of the Act. (A) Nature of the hearing [21] The issue before the youth court on transfer hearing is not whether the particular offence occurred but rather in which court, youth court or ordinary court, the matter should proceed. Canadian courts have traditionally characterized the transfer proceeding as an “administrative” as opposed to “judicial” hearing, justifying substantial departures from the rules governing the conduct of criminal trial. The focus of the hearing is not on guilt or innocence and at this stage of the proceedings the rules of evidence applicable to criminal proceedings are not strictly applied. See R. v. W.Y..[12] The provisions of ss. 16(1.1), (2) and (3) which outline number of factors that cannot be assessed within the normal criminal context of guilt or innocence, including such things as the availability of treatment or correctional facilities, the age and maturity of the offender and the seriousness of the alleged offence reinforce the conclusion that the transfer proceeding is an informal procedure. Notwithstanding that the transfer hearing must proceed in an impartial fashion in accordance with the principles of natural justice and s. of the Charter of Rights.[13] [22] Section 16(1) provides that an application for transfer hearing must be made prior to “adjudication”. The Act provides that application may be brought by the young person or his counsel and by the Attorney General or his agent. youth court judge cannot make an application on his or her own initiative. This is contrasted with the provisions of the former Juvenile Delinquents Act which permitted judges to initiate transfer applications of their own motion. Section 19(3) does, however, provide that youth court judge must inquire of the parties whether any of them wishes to make transfer application before accepting guilty plea.[14] (B) Pre-requisites [23] There are certain number of pre-requisites which must be satisfied before youth court judge can order transfer. For example, the accused must be at least 14 (not consideration in this case) and the offence must be an indictable offence other than an offence referred to in s. 553 (the absolute jurisdiction offences) of the Criminal Code. young person can be transferred with respect to hybrid offence, that is an offence for which the Crown has an election to proceed summarily or by way of indictment, because of s. 27(1)(a) of the Interpretation Act. See R. v. K.J.H.[15] (C) Standard of Proof [24] On transfer hearing the Crown is not required to prove that the offence occurred beyond reasonable doubt. This is consistent with the basic purpose of the hearing which is to determine the appropriate forum for the trial of the charge which the accused is facing. See R. v. S.J.H.[16] and R. v. S.(G.).[17] transfer hearing is not trial. (D) Test for Transfer [25] Section 16(1) of the Act provides that on transfer hearing the youth court is required to consider the interest of society, which includes the competing “objective of affording protection to the public and rehabilitation of the young person”. Section 16(2) provides that the youth court shall take into account the following factors in determining the competing interests of the youth and the public: (a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act or Parliament or any regulation made thereunder; (c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case; (d) the availability of treatment or correctional resources; (e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (f) any other factors that the court considers relevant. The applicant (usually the Crown) bears the onus of establishing sufficient conflict between the competing interests, rehabilitation of the youth and public interest, such that the court will give precedence to the public interest. [26] If the competing interests cannot be reconciled, the protection of the public is paramount and the youth court shall order that the charges against the young person be proceeded within ordinary court with the law ordinarily applicable to an adult charged with the offence. Effects of transfer to ordinary court [27] What then are the consequences of transfer to ordinary court and does such an order adversely affect the rights of the accused? Section 16(7) provides that where an order is made under s.16 the proceedings under the Act shall be discontinued and the young person shall be taken before the ordinary court. The jurisdiction of the ordinary court is, by virtue of s.16(8), limited to the offences in respect of which the transfer order was made. That is an important factor in circumstances where the date of the commission of the offence is in doubt or cannot be fixed with any degree of precision. [28] young person transferred to ordinary court has the same elections with respect to the mode of trial as an adult offender charged with the same offence. It would appear there are no adverse consequences which flow from making such an order. At the conclusion of the transfer hearing, whether the trial judge orders transfer to ordinary court or not, s. 15 of the Act generally prohibits the further involvement of the judge who conducted the transfer proceedings. The purpose of the section is to ensure that the judge is not biased in deciding the specific charge as result of information the judge may have received during the transfer proceeding. [29] What then is youth court judge to do when faced with the question of whether to assume jurisdiction where he or she is unable to determine whether the alleged offence occurred when the accused was young person or an adult? The precise issue is whether the position articulated by the Ontario Court of Appeal in R. v. A.(E.A.) should be followed or whether more appropriate response is for the Crown or the defence to apply for transfer hearing pursuant to s.16 of the Act to determine the proper jurisdiction. [30] Let us examine the first alternative. In my opinion R. v. A. (E.A.) is distinguishable from the facts in this case and should be confined to its particular facts. In R. v. A.(E.A.) the court was faced with case of determining jurisdiction where the alleged offence occurred on one side of midnight or the other and the decision by the court, in the absence of proof as to when the offence actually occurred, was young person was both rational and defensible. That is, however, not the situation which we are confronted with here. In this case, as we have seen, the status of the accused changes from young offender to adult and back again to young offender. The alleged offences occurred over long period of time and the youth court judge was unable to determine in what year or years they occurred. In my opinion, the position adopted by the Ontario Court of Appeal does not lend itself to universal application. [31] What of the second alternative? The fundamental issue on transfer hearing is jurisdiction and not the guilt or innocence of the accused. The youth court judge can hear the evidence at transfer proceeding and make determination unburdened by the necessity to determine guilt or innocence of the accused. [32] The court is required to “take into account” the enumerated factors. It is not, however, required to consider each factor singly in order to determine the issue set out in s.16(1.1). This point was made by White A.C.J. in R. v. B.R.C.[18] when describing the relationship between the former s.16(1) of the original Act and s. 16(2). He stated: Since s. 16(2) has an enumerated list of considerations, and since each of the items in subsection (2) may to some degree apply to either the interests of society or the needs of the young person, can it be said that it was the legislative intention to weigh each of the considerations in subsection (2) in favour of either of the interests of society or the needs of the young person? The conclusion, it seems to me, is that each of the considerations on s. 16(2) are to be considered by judge as whole. Once the picture has been painted with all of the colours in s. 16(2), the judge looks at the finished painting and decides where to hang it in s. 16(1).[19] [33] In R. v. M.(A.J.)[20] Cavanagh J. stated the fact that there is list of factors to take into consideration does not mean that in each and every case each of the factors will have identical or equal value. In any one case, one factor may outweigh all the others. Those factors are broad enough to permit youth court judge on transfer proceeding to determine the proper forum. [34] In my opinion s.16 is the ideal vehicle for the youth court to make determination of the proper jurisdiction to hear the charges. If the Crown, after a complete investigation, is unable to particularize the time when the offence or offences occurred and as a result alleges that it or they occurred over a period of time which includes when the accused was a young offender and an adult, the preferable approach is the following: (1) the Crown should commence the proceedings in youth court, because some of the offences were alleged to have occurred when the accused was a young person; and, (2) the Crown should then apply to the youth court judge for a transfer hearing under s. 16 to determine the proper forum to hear the charges. At that transfer hearing the entire issue of when the offences occurred can be examined and the choice of the proper jurisdiction to hear the charges can be made in the absence of the requirement to determine the guilt or innocence of the accused. Disposition [35] The decision of the summary conviction appeal court judge is therefore set aside and the matter remitted to youth court to be heard according to law. In the circumstances either party may apply to a youth court judge for an order under s. 16 of the Act to decide the proper forum to hear the charges against the accused. DATED at the City of Regina, in the Province of Saskatchewan, this 30th day of JUNE, A.D. 1998. VANCISE J.A. CAMERON J.A. GERWING J.A. [1]R.S.C. 1985, c.Y-1. [2]R.S.C. 1985, c.C-46. [3]Appeal Book, p. 20a. [4]Appeal Book, p. 24a [5]Appeal Book, 10a-11a. [6](1987), 22 O.A.C. 83 (Ont. C.A.). [7]Unreported judgment dated May 1,1997.(Sask C.A.). [8]Factum of the Respondent p. 2. [9](1989), 1989 ABCA 17 (CanLII), 47 C.C.C. (3d) 76 (Alta. C.A.). [10](1985), 1985 CanLII 655 (BC CA), 49 C.R. (3d) 93 (B.C.C.A.) [11]Supra, Note at p. 84. [12](1988), W.C.B. (2nd) 267 (B.C.C.A.). [13]Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule of the Canada Act 1982 (U.K.), 1982, c. 11. [14]For complete discussion of the nature of the transfer proceedings and the principles applicable see Transfer to Adult Court and Bill C-12: The Most Serious Disposition; Bala, Nicholas, and Lilles, Heino; Service Issue 33: Mar 93, p. 75. [15](1980), 1980 CanLII 2826 (MB QB), 54 C.C.C. (2d) 238. (Man. Q.B.); 1980 CanLII 3091 (MB QB), Man. R. (2d) 14. [16](1986), 76 N.S.R. (2d) 163 (N.S.S.C.). [17](1991), 1991 CanLII 7079 (ON CA), O.R. (3d) 97 at p. 112 (Ont. C.A.). [18](1984) Y.O.S. 84-034 (Alta. Prov. Ct. Yth. Div.); (1985) 13 W.C.B. 193. [19]Supra, Note 14 ar p. C&A: 106. [20]1986 CanLII 1720 (AB QB), [1986] W.W.R. 175.","The primary issue was whether the youth court has jurisdiction in proceedings which are commenced in youth court where it was not possible to determine whether at the time the alleged offences were committed the accused was a young person or an adult. The secondary issue was whether a writ of mandamus should issue. The accused was charged with two indictable offences, sexual assault and incest, as well as acts of gross indecency. The Crown stayed an identical information previously laid against the accused alleging the same offences occurred when he was an adult. The accused became an adult in October 1985 and was charged with certain offences which occurred between 1985 and 1989. The summary conviction appeal court judge found the provincial court judge erred in declining jurisdiction and that because of the uncertainty when the alleged offences occurred, the accused should be tried under the least onerous regime, youth court. The appeal judge then ordered a writ of mandamus directing the youth court judge to render a decision. It was common ground that a youth court judge does not have jurisdiction with respect to offences committed while he was an adult. HELD: The decision of the summary conviction appeal court was set aside and the matter remitted to youth court. Either party may apply for an order under s16 to decide the proper forum to hear the charges.  1)Section 16 is the ideal vehicle for the youth court to make a proper determination of the proper jurisdiction to hear the charges. If the Crown after a complete investigation is unable to particularize the time when the offence(s) occurred and alleges that it (they) occurred over a period of time which included when the accused was a young offender and an adult, the preferable approach is to have the Crown commence the proceedings in youth court because some of the offences occurred while he was a youth. The Crown should then apply to a youth court judge for a transfer hearing under s16 to determine the proper forum to hear the charges.  2)There are two ways to determine which of the two courts should assume jurisdiction: view the facts in a manner most favorable to the accused and deem the offence was committed when the accused was a young person; or order a transfer hearing under s16(1) of the Young Offenders Act to determine whether the offences should be heard in youth court or ordinary court. 3)The transfer hearing must proceed in an impartial fashion in accordance with the principles of natural justice and s7 of the Charter. 4)Section 16(2) provides the factors to be taken into account in determining the competing interests of the youth and the public. 5)The position taken in the Ontario Court of Appeal in R.v. A(EA) does not lend itself to universal application. R. v. A(EA) is distinguishable and should be confined to its particular facts.",b_1998canlii12364.txt
321,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 155 Date: 2013 04 23 Docket: Q.B.C. No. 30 of 2012 Judicial Centre: Melfort BETWEEN: HER MAJESTY THE QUEEN, and DELREE EMIL FLETT, Counsel: W. Dean Sinclair for the appellant Rosanne Newman, Q.C. for the respondent JUDGMENT ACTON J. April 23, 2013 [1] This is an appeal from the decision of the Provincial Court dismissing an application for a recognizance pursuant to s. 810.2 of the Criminal Code, R.S.C. 1985, c. C-46. The issue is whether the usual rules of evidence pertaining to criminal trials apply to s. 810 hearing. The Provincial Court judge ruled that the usual rules of evidence pertaining to criminal trials did apply and that hearsay evidence was inadmissible. [2] The judge also held that records kept by the Correctional Service of Canada (CSC) were inadmissible as business records under s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5. In reaching this decision the judge relied upon R. v. Fontaine, 2010 SKPC 16 (CanLII), 356 Sask.R. 229, which held that hearsay evidence is not admissible in s. 810.2 hearing. The judge also relied on R. v. Toulejour, 2012 SKPC 86 (CanLII), 398 Sask.R. 292, which reiterated the position that hearsay evidence is not admissible in s. 810.2 hearing and held as well that CSC documents are not admissible under the business record exception to the hearsay rule as enacted by s. 30 of the Canada Evidence Act. [3] The appellant submits that these are errors in law in that the usual criminal rules of evidence do not apply in s. 810 hearings. Even if the usual rules applied the judge erred in failing to follow previous decisions of this court which held that CSC documents are admissible business records under s. 30 of the Canada Evidence Act. SUMMARY OF THE FACTS [4] On March 5, 2009, the respondent was convicted of robbery with violence, assault causing bodily harm, assault and three counts of violating bail. He was sentenced to three years imprisonment. [5] In May 2010, the CSC referred the respondent’s case to the National Parole Board (NPB) with recommendation that he be detained until warrant expiry. The referral was made in accordance with s. 129(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), in document entitled Assessment for Decision. Section 129(2) provides that the CSC must refer case to the NPB for detention hearing if the offender is serving sentence on Schedule offence, such as robbery, assault causing bodily harm or assault, the offence caused serious harm to another person and there are reasonable grounds to believe the offender is likely to commit another offence causing death or serious harm if he is released on parole. [6] On November 9, 2010, the NPB ordered the respondent be detained in custody until the sentence expired. The order was made pursuant to s. 130(3) of the CCRA. [7] Detention orders must be reviewed annually according to s. 131(1) of the CCRA, so the CSC prepared another assessment for decision in 2011 for the purposes of the annual review. The Board confirmed the detention order on October 5, 2011. As consequence, the respondent was not released from custody until the sentence expired in March 2012. [8] The NPB is required to give written reasons for any decision it makes and provide copy of those reasons to the offender. The NPB provided copies of its reasons to the respondent in November 2010 and in October 2011. The NPB also sent copies of its reason to the CSC. [9] Section 25(3) of the CCRA directs the CSC to provide police with relevant information about an offender who is going to be released on warrant expiry if the CSC believes the offender poses threat to any person. As consequence of that law, Karen Johansen, parole officer employed by the CSC, compiled package of CSC records relating to the respondent. She sent these records to Corporal Brian Haswell. Cpl. Haswell is the High Risk Violent Offender Unit Coordinator for the RCMP in Saskatchewan. [10] This package of materials may be conveniently referred to as the “warrant expiry package”. In this case, the warrant expiry package included criminal profile report, the assessment for decision reports and copies of the Board’s reasons for ordering detention. [11] Based upon his review of the records, Cpl Haswell swore the information under s. 810.2 of the Criminal Code stating that based upon his review of the file he believed there were reasonable grounds to believe that the respondent would likely commit serious personal offence as defined in s. 752 of the Criminal Code. [12] The application was set for hearing which commenced in August 2012. The Crown called two witnesses. Karen Johansen was called to identify the contents of the warrant expiry package as CSC records and to testify about the contents of some of those documents. Corporal Haswell was called to testify that he reviewed the warrant expiry package and swore the information. [13] The Crown applied to have the criminal profile report, the assessment for Decision reports and the NPB’s reasons for ordering detention admitted into evidence. The defendant opposed the admission of these documents. [14] The court decided as stated earlier based on R. v. Fontaine, supra, and R. v. Toulejour, supra, that the normal criminal rules of evidence apply to s. 810 hearings. The judge refused to allow the admission of the criminal profile report and the assessment for decision reports as well as NPB reasons for ordering detention. Respecting the business rules exception the judge held that the criminal profile report was inadmissible because it was copy and copy is only admissible if it is accompanied by supporting affidavits as described in s. 30(3) of the Canada Evidence Act. [15] Section 30(3) states: (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), copy of the record accompanied by two documents, one that is made by person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is (a) an affidavit of each of those persons sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. [16] The Provincial Court judge ruled that the NPB’s written reasons for detaining the respondent in November of 2010 and October 2011 were inadmissible because they were not signed. For this she relied on s. 145 of the CCRA in support of the conclusion which states: 145. decision, order, warrant or certificate purporting to be signed by member of the Board or person designated by the Chairperson of the Board is admissible in any court and is evidence of its contents without proof of the signature or official character of the person appearing to have signed it. [17] With respect to the assessment for decision reports, the court ruled that they were inadmissible because they were created for litigation purposes as referred to in s. 30(10)(a)(ii) of the Canada Evidence Act which states: (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be ... (ii) record made in the course of obtaining or giving legal advice or in contemplation of legal proceeding, ... [18] Section 810.2 of the Criminal Code has always been accepted as crime prevention measure. Numerous cases have confirmed the admissibility of hearsay evidence in s. 810 hearings. [19] These include: R. v. Budreo (2000), 2000 CanLII 5628 (ON CA), 142 C.C.C. (3d) 225, 183 D.L.R. (4th) 519 (Ont. C.A.), wherein the Ontario Court of Appeal stated at para. 52: 52 Moreover, although an informant’s fear triggers an application under s. 810.1, under subsection (3) recognizance order can only be made if the presiding judge is satisfied by “evidence” that the fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in subsection (1). Although the “evidence” the judge relies on might include hearsay, recognizance could only be ordered on evidence that is credible and trustworthy. R. v. George, 2007 ONCJ 16 (CanLII), 73 W.C.B. (2d) 45, which states at para. 8: With respect to the issue contested before me, as to the kinds of evidence appropriately put forward on the s. 810 application, am guided by the Court of Appeal decision in R. v. Budreo. The Court was very clear that the kinds of evidence properly received could include hearsay and other secondary information so long as it is “credible and trustworthy”. therefore have no hesitation in proceeding on the basis that such evidence is receivable so as long as exercise due caution in weighing the ultimate value of the information. R. v. MacDougall, 2006 NBPC 23 (CanLII), 306 N.B.R. (2d) 335, which states at para. 18: 18 There are many proceedings in our criminal law and Criminal Code that allow evidence that does not meet the admissibility rules prescribed for criminal trials to be admitted and serve as the basis for decision. By criminal trial admissibility rules, of course, is meant the standard to be met when the burden is proof beyond reasonable doubt. Some examples of what might be referred to as proceedings in which the relaxed standard of admissibility is employed include: 1) sentence hearing during which submissions and evidence are received pursuant to Section 723 of the Criminal Code and disputed evidence is adjudicated upon, pursuant to section 724(3)(b) of the Criminal Code, (with the exception of an aggravating circumstance that is in dispute in which case the circumstance must be proved beyond reasonable doubt pursuant to section 724(3)(e)). See, especially, Section 723(5) of the Code which specifically allows for the admission of hearsay evidence. See, also, R. v. Albright, 1987 CanLII 26 (SCC), [1987] S.C.R. 383 (S.C.C.) 2) An application to detain an accused person in custody at bail hearing. See Section 518(1)(e) of the Criminal Code allowing the admission of evidence considered credible or trustworthy by the judge adjudicating the hearing. See, also, R. v. Julian (1972), 20 C.R.N.S. 227 (N.S.S.C.T.D.); R. v. Wilson, 1997 CanLII 11345 (SK QB), [1997] S.J. No. 610 (S.Q.B.) 3) An application pursuant to Section 742.6 of the Criminal Code that regulates the hearing into an alleged breach of conditional sentence order. See Sections 742.6(4) and (5) of the Code. See, also, R. v. Carpentier (2006), 2005 MBCA 134 (CanLII), 34 C.R. (6th) 395 (M.C.A.) 4) An application to extradite person from Canada to foreign state for prosecution for criminal offence pursuant to Section 29 of the Extradition Act, S.C. 1999 Ch. 18. See, particularly, Sections 32(1)(a) and (b) of the Extradition Act. See, also, United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33 (CanLII), [2006] S.C.J. No. 33 (S.C.C.) at paragraphs 52‑60; 5) An application for firearms prohibition order pursuant to Section 111 of the Criminal Code. See, particularly, Section 111(3) of the Criminal Code that allows for the admission of “all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.” See, also, R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.R. 1378 (S.C.C.) at paragraphs 17‑19. 6) An application for peace bond pursuant to section 810 of the Criminal Code in which the standard of proof for the trier of fact is reasonable ground to believe. See, R. v. Budreo, 2000 CanLII 5628 (ON CA), [2000] O.J. No. 72 (O.C.A.) [Emphasis added] R. v. West, [2004] O.J. No. 3243 (QL) (Ont. Sup. Ct.), which states at para. 27 Not only have trial courts been instructed to be more receptive to hearsay at the trial phase of proceedings, but credible hearsay is now routinely relied upon in investigative, pretrial applications such as for search warrants, wiretap and video authorizations, general warrants, firearms prohibitions,” bail hearings, s. 810.01 recognizance hearings and in applications for restrained funds to pay legal fees. See R. v. Allan, 2003 CanLII 1935 (ON SC), [2003] O.J. No. 2466, where Nordheimer J. expressly permitted hearsay evidence in an application for restrained funds. R. v. Falle, 2001 ABPC 36 (CanLII), 285 A.R. 391, which states at para. 13 For the reasons given, direct that the reports of the Corrections Canada officials be entered as exhibits without the necessity of their authors being called. R. v. Teneycke, 2008 SKQB 239 (CanLII), 317 Sask.R. 138, where Justice Rothery stated at para. 8: The Crown did not call the authors of the reports, nor did defence seek to cross‑examine them. As stated in R. v. Falle, [2001] A.J. No. 192, 2001 ABPC 36 (CanLII) at para. 10, this is an acceptable procedure because the reports are made in the normal course of business. Ketchum P.C.J. endorsed the observations of Martin J. in R. v. Bilida 1999 ABQB 1016 (CanLII); (1999), 256 A.R. 336 at para. 5: In my opinion the phrase “satisfied by the evidence adduced” does not require formal sworn evidence such as viva voce evidence commonly called in criminal proceedings. Rather, think the phrase also contemplates information tendered to the court by counsel in the form of oral submissions. ... and most recently, in R. v. Klein, 2011 SKQB 94 (CanLII), 369 Sask.R. 273, where Justice Gerein stated at paras. 21 and 22: 21 Section 810 does not create criminal offence, but rather it seeks to prevent the commission of criminal offence. It is preventative rather than punitive. The burden of proof rests upon the Crown and requires proof on balance of probabilities. 22 The test is both subjective and objective. It must be established (1) that the victim actually fears personal injury and (2) that there are reasonable grounds for the fear. See R. v. Banks, 1995 CanLII 5974 (SK QB), [1995] W.W.R. 698, 129 Sask. R. 147 (Q.B.) at paras. 18 to 22; and more recently, R. v. MacLeod, 2005 BCPC 108 (CanLII), (2005) (P.C.), [2005] B.C.J. No. 798, (QL) wherein at para. this summary is found: The burden of proof is that the applicant under s. 810 is not required to prove beyond reasonable doubt, but rather prove on balance of probabilities. The test is twofold: the Crown must establish (1) that the informant actually fears that the defendant will cause personal injury to him; and (2) reasonable grounds exist for the informant's fear. The first condition is subjective, while the second is objective; namely, the Crown must establish subjectively the informant's belief and whether his belief is objectively founded. [20] Gerein J. also sets out that the standard of review is correctness on question of law. [21] It is also noted in R. v. Budreo in referring to s. 810.1 which is similar to s. 810.2 wherein it states at paras. 29 To characterize s. 810.1 as punitive, as creating an offence, the appellant would have to show that its purpose is “to mete out criminal punishment” or that it has “true penal consequence.” true penal consequence, according to the Supreme Court of Canada in R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] S.C.R. 541, is “imprisonment or fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large ...” 30 By these standards, s. 810.1 does not create an offence. Its purpose is not to punish crime but to prevent crime from happening. Its sanctions are not punitive, nor are they intended to redress wrong; they are activity and geographic restrictions on person's liberty intended to protect vulnerable group in our society from future harm. [Emphasis added] [22] The issue has also been dealt with by the Supreme Court of Canada in similar provisions of the Criminal Code, which are preventative and relate specifically to firearms prohibition hearings under s. 98 of the Criminal Code. In R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.R. 1378, 50 C.C.C. (3d) 566, the Supreme Court stated at para. 16: 16 Section 98(4) enables peace office acting on reasonable grounds to apply to the provincial court judge for an order prohibiting particular person from possessing firearm. Clearly, the peace officer is not required to act solely on the basis of evidence that would be admissible at trial ... At the hearing of the application pursuant to s. 98(6), the provincial court judge must be satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person or of others that the subject of the prohibition application should possess firearm. The provincial court judge thus confirms the existence of the reasonable grounds which led the peace officer to launch the application. In my opinion, it was not intended that the provincial court judge strictly apply the rules of evidence. [23] The Supreme Court of Canada in Zeolkowski clearly established that the burden of proof was on balance of probabilities which also applies with respect to s. 810.2 hearing wherein they stated at para. 17 It is also relevant to note that the burden which the applicant bears at the hearing is not that of proof beyond reasonable doubt, but simply proof on balance of probabilities. In R. v. McWhirter, Hart J.A., for the court, took note of this reduced standard in reaching the conclusion, at p. 186, that “... although these proceedings arise under the Criminal Code Parliament did not intend that they be conducted in the manner of criminal trial”. agree with this conclusion. [24] These decisions at all court levels up to and including the Supreme Court of Canada confirm that s. 810 hearings are not criminal trials. The usual rules of evidence applicable in criminal trials do not apply. Hearsay evidence is admissible. The question before the judge is to determine whether or not sufficient weight can be given to the hearsay evidence to establish the reasonable and probable grounds required for the individual to swear the information to justify the fear of harm to others by the respondent. Business records exception, s. 30 of the Canada Evidence Act [25] Section 30 of the Canada Evidence Act states: Business records to be admitted in evidence (1) Where oral evidence in respect of matter would be admissible in legal proceeding, record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record. Inference where information not in business record (2) Where record made in the usual and ordinary course of business does not contain information in respect of matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist. Copy of records (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), copy of the record accompanied by two documents, one that is made by person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is (a) an affidavit of each of those persons sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. Where record kept in form requiring explanation (4) Where production of any record or of copy of any record described in subsection (1) or (2) would not convey to the court the information contained in the record by reason of its having been kept in form that requires explanation, transcript of the explanation of the record or copy prepared by person qualified to make the explanation is admissible in evidence under this section in the same manner as if it were the original of the record if it is accompanied by document that sets out the person’s qualifications to make the explanation, attests to the accuracy of the explanation, and is (a) an affidavit of that person sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. Court may order other part of record to be produced (5) Where part only of record is produced under this section by any party, the court may examine any other part of the record and direct that, together with the part of the record previously so produced, the whole or any part of the other part thereof be produced by that party as the record produced by him. Court may examine record and hear evidence (6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. Notice of intention to produce record or affidavit (7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party. Not necessary to prove signature and official character (8) Where evidence is offered by affidavit under this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit. Examination on record with leave of court (9) Subject to section 4, any person who has or may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence under this section may, with leave of the court, be examined or cross‑examined thereon by any party to the legal proceeding. Evidence inadmissible under this section (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) record made in the course of an investigation or inquiry, (ii) record made in the course of obtaining or giving legal advice or in contemplation of legal proceeding, (iii) record in respect of the production of which any privilege exists and is claimed, or (iv) record of or alluding to statement made by person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding matter disclosed in the record; (b) any record the production of which would be contrary to public policy; or (c) any transcript or recording of evidence taken in the course of another legal proceeding. Construction of this section (11) The provisions of this section shall be deemed to be in addition to and not in derogation of (a) any other provision of this or any other Act of Parliament respecting the admissibility in evidence of any record or the proof of any matter; or (b) any existing rule of law under which any record is admissible in evidence or any matter may be proved. Definitions (12) In this section, affaires “business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing function of government; “copy” and “photographic film” copie et pellicule photographique “copy”, in relation to any record, includes print, whether enlarged or not, from photographic film of the record, and “photographic film” includes photographic plate, microphotographic film or photostatic negative; tribunal “court” means the court, judge, arbitrator or person before whom legal proceeding is held or taken; “legal proceeding” procédure judiciaire “legal proceeding” means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration; pièce “record” includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4). [26] It has been well established law in Saskatchewan that CSC records similar to the ones submitted and disallowed in the matter under appeal are admissible under s. 30. [27] As stated by Rothery J. in Ross v. Riverband Institution, 2007 SKQB 232 (CanLII), [2007] S.J. No. 359 (QL), at para. 8: Attaching the correctional records as exhibits to the respondents’ affidavits does not offend Rule 319. Furthermore, it has been decided that correctional records are documentary evidence as defined by s. 30(1)of the Canada Evidence Act, R.S.C. 1985, c. C-5 and by the common law. This documentary evidence is an exception to the hearsay rule and admissible. See: R. v. Gregoire (1998), 1998 CanLII 17679 (MB CA), 130 C.C.C. (3d) 65 (Man. C.A.) And see: R. v. Nowdlak, 2005 NUCJ 17 (CanLII), [2005] Nu.J. No. 17 (Nun. C.J.) [28] With respect to the NPB’s written reasons the court determined that they could not be admitted as business records under s. 30 of the Canada Evidence Act unless they also met the requirements of s. 145 of the CCRA that required them to be signed to be admissible. [29] However, s. 30 of the Canada Evidence Act does not require business records to be signed and is not subject to compliance with s. 145. [30] The assessment for decision reports were prepared by the respondent’s institutional parole officer and submitted to the NPB as required under s. 129(2) of the CCRA. These reports are provided to the NPB to assist the Board in making its decision as to whether to retain the respondent until warrant expiry. [31] These reports are required to be made under the CCRA to the NPB. When they are making their decision the inmate is entitled to be present and make representation to the Board. The CSC provides the report based on legislative requirements. The NPB review is not legal proceeding as referred to in s. 30(10)(a)(ii) of the Canada Evidence Act or ss. (12). This is relevant available information which the Board must consider and review in making its decision. The Board does not swear witnesses or hear oral testimony, nor is CSC party to this proceeding. [32] The court accepts as law the decision of R. v. McLarty (No. 3) (1978), 1978 CanLII 2390 (ON CJ), 45 C.C.C. (2d) 184, [1978] O.J. No. 3736 (QL) (Ont. Co. Ct.), which states at para. 10 This leaves finally for consideration whether these documents were prepared “in contemplation of legal proceeding”. Once again derive assistance from the common law and there again, if my recollection is correct, the prohibition with respect to the production of records made in the contemplation of legal proceeding relates only to parties to the legal proceeding, so that one who prepared, in contemplation of legal proceedings report of some sort, cannot be compelled to produce that. Now while what we have here on one view might be considered to be documents prepared in contemplation of legal proceeding, they were not prepared by party to the proceedings. They were prepared by someone whose business it was to engage in the investigation of suspected criminal activities. So that once again it is my opinion that Mr. Ruby's argument is unsuccessful and in the result his argument must fail. [33] As stated CSC is not party to the detention reviews conducted by the NPB. The parole officer is under statutory duty to present all relevant information to the Board. This evidence is not prepared for the purposes of legal proceedings and is admissible under the business records exception. [34] With respect to the criminal profile report, the Crown called witness to testify that the criminal profile reports were prepared in the usual and ordinary course of CSC business. The records are maintained in electronic format and may be accessed by parole officers using computer. The reports are prepared, checked for quality control and then locked into the data base so they cannot be changed or amended. The CSC also maintains paper copy on the offender’s criminal profile report with the paper copy being signed and stored on the inmate’s file. [35] The evidence before the court was that individuals within the CSC rely on the electronic versions of the reports rather than retrieving the paper copies. The judge ruled that if there was signed paper copy of the report then the computer printout of the report was merely copy for the record, and therefore was inadmissible because it did not comply with s. 30(3) of the Canada Evidence Act, as it was not signed. [36] However, courts have determined that carbon copy is just as much record as is the paper copy to which ink has been applied. See R. v. Hall, [1998] B.C.J. No. 2515 (QL) (B.C.S.C.), para. 69, wherein it states: ... Several Courts of Appeal have ruled that carbon copies are admissible as originals, even if they are not the top white copy: R. v. Betterest Vinyl Manufacturing Ltd. (1989), 1989 CanLII 7251 (BC CA), 52 C.C.C. (3d) 441 (B.C. C.A.); R. v. Walsh (1980), 1980 CanLII 2885 (ON CA), 53 C.C.C. (2d) 568 (Ont. C.A.); R. v. Alward (1976), 1976 CanLII 1214 (NB CA), 32 C.C.C. (2d) 416 (N.B. C.A.) at 429. ... [37] R. v. Hall, supra, has also established that when it comes to computer records there is no distinction between electronic version of record stored in the computer and computer printout of the information. As stated by the court in para. 52: 52 For the purposes of this application, am persuaded that the computer records were mechanically created for the respective telephone companies' usual and ordinary business purposes. The information reproduced was recorded as reference source, kept as part of its internal audit system and so kept for that purpose at the relevant time. Insofar as computers are concerned, see no merit in the arguments based on the alleged distinctions between copies and records. In view of the evidence in the case at bar find that distinction is meaningless one. The law must be applied in accordance with the rapidly changing reality of today notwithstanding that it was drafted in the past. For this Court to hold in the context of this application that the printouts were not admissible would be to ignore the realities of the computer age, wherein technological change has rendered the former distinctions between originals and copies moot distraction in many areas. This was also upheld in other more recent decisions. [38] As well, s. 31.2 of the Canada Evidence Act specifically allows the admissibility of electronic documents such as the criminal profile report. [39] Section 31.2 states: 31.2 (1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. (2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as record of the information recorded or stored in the printout. [40] As noted, CSC personnel rely on this information. It was part of the warrant expiry package provided to the officer who swore the information and on which he was allowed to consider. The court was required to review the information available to the officer to determine if there was sufficient information to justify the swearing of the information on reasonable and probable grounds. [41] It should also be noted that the Provincial Court of Saskatchewan decisions as recent as March 2013 have chosen to follow the authorities and rationale as set forth herein rather than the decisions in R. v. Toulejour and R. v. Fontaine. See the decision of Cardinal P.C.J. in R. v. Arthur Carriere, 2013 SKPC 36 (CanLII), [2013] S.J. No. 142 (QL). [42] This court does allow the appeal for the reasons set forth herein and does direct that the matter be returned for a new hearing of the original application.","The Crown appealed a decision of the Provincial Court dismissing an application for a recognizance pursuant to s. 810.2 of the Criminal Code. The judge held that the usual rules of evidence pertaining to criminal trials apply to a s. 810.2 hearing and that records kept by the Correctional Services of Canada (CSC) were inadmissible as business records under s. 30 of the Canada Evidence Act. The respondent had been convicted in 2009 of robbery with violence, assault causing bodily harm, assault and three counts of violating bail. He was sentenced to three years' imprisonment. In May 2010, the CSC referred the respondent's case to the National Parole Board (NPB) with a recommendation that he be detained until warrant expiry, in accordance with s. 129(2) of the Corrections and Conditional Release Act (CCRA). The recommendation was based upon the character of the respondent's offences and where there are reasonable grounds to believe that the offender is likely to commit another offence causing death or serious harm if released on parole. The NPB ordered that the respondent be detained in custody until the expiry of the sentence. Reviewed annually under the CCRA, the CSC prepared another assessment in 2011 and the respondent was not released from custody until March 2012. At that point, a 'warrant expiry package' was prepared by a parole officer, comprised of CSC records relating to the respondent, including a criminal profile report, the assessment for decision reports and copies of the NPB's reasons for ordering detention. These records were sent to the RCMP in Saskatchewan. The officer concerned then swore the information under s. 810.2, stating that he believed that there were reasonable grounds to believe that the respondent would commit a serious personal offence as defined by s. 752 of the Code. The application for a hearing was commenced in August 2012. The parole officer and the RCMP officer were called to testify and the Crown applied to have the documents in the package admitted into evidence, and the respondent opposed the application. The judge refused to allow the admission of the report, the assessment and the NPB reasons for ordering detention based upon R. v. Fontaine and R. v. Toulejour. Based on the business rules exception, the judge held that the criminal report profile was inadmissible because it was a copy and not accompanied by supporting affidavits as required by s. 30(3) of the CEA. HELD: The Court held that the application was allowed. The Supreme Court had confirmed that s. 810 hearings are not criminal trials and that the rules of evidence in criminal trials do not apply. Hearsay evidence is admissible and the judge is to determine whether or not sufficient weight can be given to the hearsay evidence to establish reasonable and probable grounds required for the individual to swear the information to justify the fear of harm to others by the respondent. The Court held that all of the CSC records submitted as part of the package were admissible under the CEA. The Court directed that the matter be returned for a new hearing of the original application.",c_2013skqb155.txt
322,"1988 S.K. No. 2422 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JEAN MAE KEDDY, and CARL VEN McGILL, Defendant HEARD: at Kentville, Nova Scotia before the Honourable Madam Justice Elizabeth Roscoe, Trial Division, on May 16, 17, 21, 23, 24, 29 and June 26, 1991. Final post‑trial submission filed August 6, 1991. DECISION: August 27, 1991 COUNSEL: David F. Walker, Solicitor for the Plaintiff Judith F. Ferguson and Leslie J. Dellapinna, Solicitors for the Defendant 1988 S.K. No. 2422 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JEAN MAE KEDDY, and CARL VEN McGILL, Defendant ROSCOE, J.: BACKGROUND The parties to this action cohabited for approximately twelve years from 1975 to 1988. The plaintiff, Jean Keddy, is now 53 years old and the defendant, Carl McGill, is 60. The plaintiff seeks an order under the Partition Act, R.S.N.S. 1985 c. 333, for the partition and sale of two properties owned jointly by the parties, a declaration of ownership regarding personal property and a division of other property owned by the defendant based on a constructive trust. The plaintiff also claims general and special damages and costs. The parties began cohabitation in December, 1975 when Mr. McGill moved into the mobile home, owned and occupied by Mrs. Keddy and her three children from prior marriage who were then aged 15, 16, and 18. From that, time until 1986, Mrs. Keddy was employed as medical records techinician at local hopsital. For most of the years during the relationship, Mrs. Keddy's employment was full time, but for some periods of time she worked part time. During their cohabitation Mr. McGill had various jobs, including driving trucks, maintenance work and painting until 1979 when he began working as truck driver for Coastal Van Lines which entailed weekly trip to Montreal. Mrs. Keddy ceased her employment in 1986 due to health difficulties and is now in receipt of Canada Pension Disability Pension. Mr. McGill owns thirty‑one residential rental properties in various locales in the County of Kings. Nine of these properties were inherited from his father and an additional fifteen other properties were acquired prior to meeting Mrs. Keddy. While the parties lived together, Mr. McGill acquired another six properties in his own name and he has purchased one since they separated. In addition, the parties owned four separate properties in their joint names, two of which were sold while they were still together. The parties lived together in Mrs. Keddy's mobile home until 1979, and during that period she paid all of the household expenses with the exception of $20.00 per week that Mr. McGill contributed towards the groceries. He also paid for his own personal expenses including his car. Until 1982 Mr. McGill continued to pay for utilities and maintenance at his own home on Thompson Road in Waterville, but he did not live there. In 1982 he began to rent out that property. In 1979 the parties purchased piece of property in their joint names and had log house constructed on it. Each party contributed one half of the down payment and the balance was financed through mortgage, on which they each paid one half of the monthly payments. They lived in the log house until 1982, and while they were there, Mr. McGill was responsible for the payment of the oil bills, the firewood, the insurance and the electricity in addition to his own personal expenses, and Mrs. Keddy paid for the groceries, the telephone and her own personal expenses. In addition, Mrs. Keddy paid for most of the furniture, dishes and linens for the log house. When the parties moved to the log house, Mrs. Keddy sold her mobile home to her daughter and took mortgage back for the full purchase price. Her daughter made monthly payments on the mortgage until 1986 when it was sold and the balance owing at that time, in the amount of $16,700.00, was paid to Mrs. Keddy. In 1982 the parties sold the log house and purchased another property called the Saunder's House in Millville, Kings County. The Saunder's property was acquired in joint names, using the proceeds of the sale of the log house and an additional $12,500.00 by way of mortgage financing. While they lived at the Saunder's property, they continued to split the household expenses in the same manner as at the log house. Mrs. Keddy used almost all of the proceeds of the sale of her mobile home to buy new furniture for the Saunder's home and to redecorate it. She saved approximately $5,000.00 which she later invested in the Saltzman property, joint venture which will be examined in more detail later in this decision. Since the parties separated, Mrs. Keddy has continued to reside in the Saunder's property by virtue of consent order taken out in the Family Court. In addition, Mr. McGill pays the sum of $700.00 per month support pursuant to an application made under the Family Maintenance Act. When the parties first began their cohabitation, Mrs. Keddy's total income was $8.443.00 for the year 1975. Her highest year of earning from her employment was in 1982 when she earned $17,409.00. In 1984, 1985 and 1986 her income diminished due to reduction in hours worked, and in 1986 she stopped her employment altogether. Her average earnings over the twelve years the parties cohabited were $10,162.00. Mr. McGill's income tax returns for the years 1975 to 1987 indicate that he had three main sources of income; his net rental income, his income from his employment and interest income. In 1975 his total income from all sources was $8,986.00, and in 1987 his total income was $62,856.00 consisting of $39,276.00 net rental income, $9,726.000 net employment income and $13,854.00 interest income. His average total income over the years the parties cohabited was $27,486.00. In 1979 Mr. McGill commenced employment with Coastal Van and Storage Limited. This job required Mr. McGill to leave his home in Kings County, travel to Halifax and then drive truck from Halifax to Montreal and return from Montreal to Halifax later in the week. There was dispute between the parties as to how long Mr. McGill was away each week, but find, based on the evidence of Mr. Stuart Dalton, an employee of Mr. McGill's, that normally Mr. McGill left the valley on Tuesday at noon and usually returned home on Thursday night, but sometimes Friday morning. Occassionally he made trip to Newfoundland which meant he would be away for longer. He continued with this employment until sometime after the parties separated in February, 1988. On his statement of property dated November 30, 1989, Mr. McGill values all of his properties at $806,900.00. However, one of those properties was acquired since their separation, and it is valued at $74,000.00 and two of the properties listed are owned jointly with Mrs. Keddy, and they are, together, worth $68,000.00, so at the time of their separation, the property owned by Carl McGill, in his own name, was valued by him at $664,900.00. Mrs. Keddy did not present any evidence contradicting these values. In addition to the real property Mr. McGill owns equipment used in his rental business which has net book value of $21,500.00. As well, as of November 30, 1989, he held bank accounts and various term deposits and R.R.S.P.'s worth $170,321.00. The mortgages on his real property, owned at the time of separation not including the one on the property held jointly with Mrs. Keddy total $53,109.52. Mr. McGill's net worth, therefore, is approximately $804,000.00, excluding his interest in jointly held property and after‑acquired property. Mrs. Keddy's counsel has, by using Mr. McGill's financial statements through the years, determined that Mr. McGill has enjoyed real increase in his net worth of $380,760.00. Mr. McGill's counsel does not take issue with this figure. When the parties first met, Mrs. Keddy was the owner of the mobile home, furniture and car. Her mobile home was subject to mortgage. At the time of separation her assets consisted of the half interest in the parties' residence and another vacant lot, furniture and car. She had debts, excluding the mortgage on the residence of approximately $45,000, leaving her in negative net worth situation. THE EXTENT OF MRS. KEDDY'S CONTRIBUTION Most of the evidence tendered over the seven‑day trial of this matter was directed to the issue of the extent of Mrs. Keddy's work and time devoted to Mr. McGill's business. Mrs. Keddy claims that she worked approximately thirty‑five hours per week over the period of the cohabitation on behalf of Mr. Keddy, and he submits that she did little more than take telephone messages and perform few other duties that did not extend beyond ""the normal call of duty"". In addition to her own evidence, in this respect, Mrs. Keddy presented the evidence of four former tenants of Mr. McGill, health inspector and the area fire chief. As well, she tendered numerous photocopies of ledger sheets showing that she had personally made entries indicating rent payments by various tenants. Mr. McGill, with respect to this major issue, presented the evidence of his employee, who carried out most of the maintenance work on the buildings and an employee of the Department of Consumer Affairs, whose duties included the processing of complaints to be heard by the Residential Tenancies Board. After considering all of the evidence on this issue and the able arguments of counsel, have come to the conclusion that Mrs. Keddy made major contribution to the business of Mr. McGill by being available while he was traveling to Montreal to take telephone messages from his tenants who had requests for repairs, some of which were emergencies, which required further involvement of Mrs. Keddy and to take numerous telephone calls when apartments were advertised for rent, at which time, she provided information about the available unit and if the party was interested, obtained information from the prospective tenant in order to assist Mr. McGill in the selection of tenant. She also showed apartments to prospective tenants from time to time. find that Mrs. Keddy also contributed by assisting Mr. McGill with his bookkeeping by making entries on his ledgers that he kept for each tenant. Of the 424 pages of ledger sheets that were tendered as exhibits that pertain to the relevant period, Mrs. Keddy's handwriting appears on 174 of them. That is 41%, although it must be noted that Mr. McGill's handwriting also appears on many of those sheets. The plaintiff, however, testified that many times she would call out the relevant information and Mr. McGill would write it on the appropriate sheets. also find that Mrs. Keddy assisted Mr. McGill by helping him prepare the annual notices of rental increase. Of the rental increase notices that were available for inspection during the trial, it is apparent that Mrs. Keddy prepared 14 of them. However, am not satisfied that all of the rental increase notices were presented by Mr. McGill. With respect to dealings with the Residential Tenancies Board concerning dates of hearings, find that Mrs. Keddy had minimal involvement in that aspect of Mr. McGill's business. am also satisfied that Mrs. Keddy was the person responsible for typing the notices to quit that were given from time to time, although neither party was able to remember the number that may have been necessary in any one year. In addition to the clerical work and telephone calls, am satisfied that Mrs. Keddy assisted Mr. McGill with painting, cleaning and carrying out minor repairs from time to time through the years, more so in the beginning of their relationship. As well, she was of assistance to him by being available when some action had to be taken on his behalf, for example, on one occassion when there was fire on property that Mr. McGill used as dump and on another occassion when the health inspector required immediate entry to one of the units. Although do not agree with Mrs. Keddy's estimate that all of these tasks required thirty‑five hours per week on regular basis, find that her energy expended in the business was considerable and left her little free time. In addition to this work which was directly related to Mr. McGill's business, throughout their relationship Mrs. Keddy was totally responsible for the household duties such as the cooking, cleaning, maintaining the vegetable garden, laundry, purchasing groceries and sundries required for the home and the decorating of the homes in which they resided. As well, Mrs. Keddy purchased almost all of the furniture they used with her own funds. Mr. McGill, on the other hand, purchased the motor vehicles required by the parties and undertook some repairs to their homes. ISSUES The issues for determination are as follows: 1. Whether or not Mrs. Keddy is entitled to an interest in the assets of Mr. McGill by virtue of unjust enrichment or constructive trust, and if so, the nature and extent of that interest; 2. With respect to the Saltzman property which had been owned jointly and which was sold in May, 1987 whether any amount is payable by Mr. McGill to Mrs. Keddy representing her share in the property; 3. What is the extent of the interests of the parties in the two properties owned in their joint names, and how should those interests be realized; 4. Whether or not any of the personal effects, including disputed automobile, should be accounted for or transferred from one party to the other. 1. UNJUST ENRICHMENT CONSTRUCTIVE TRUST Mrs. Keddy claims that Mr. McGill has been unjustly enriched by virtue of her contributions of time and money during the period of their cohabitation and that she should be compensated by way of either constructive trust imposed upon his assets or damages. She claims the sum of $177,650.00 in this respect. Mr. McGill contends that the work of Mrs. Keddy was minimal and no benefit was received by him. There are four decisions of the Supreme Court of Canada that must be examined to determine this issue: Rathwell v. Rathwell, 1978 CanLII (SCC), [1978] S.C.R. 436, Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] S.C.R. 834, Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] S.C.R. 38 and Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] S.C.R. 70. The evolution of the remedial constructive trust doctrine in Canada and its application in matrimonial cases is succinctly summarized by Cory, J. in Rawluk at pp. 81 to 86. He traces the development of the law from the dissent of Laskin, J., as he then was, in Murdoch v. Murdoch 1973 CanLII 193 (SCC), [1975] S.C.R. 423 through to the unanimous decision of the Supreme Court in Sorochan and explains the failure of the doctrine of resulting trusts to address inequities in spousal property disputes because of the necessity to find common intention between the parties. Cory, J. continues by referring to the minority decision in Rathwell where Dickson, J., as he then was, reviewed the equitable basis of the constructive trust doctrine at pp. 454 to 455 where he said: ""The hallmark of the constructive trust is that it is imposed irrespective of intention; indeed, it is imposed quite against the wishes of the constructive trustee. .. The constructive trust is an obligation of great elasticity and generality. Where common intention is clearly lacking and cannot be presumed, but spouse does contribute to family life, the court has the difficult task of deciding whether there is any casual [sic] connection between the contribution and the disputed asset. The court will assess the contributions made by each spouse and make fair, equitable distribution having regard to the respective contributions. The relief is part of the equitable jurisdiction of the court and does not depend on evidence of intention. As expressed by Professor Scott in an article entitled 'Constructive Trusts' (1955), 71 L.Q.Rev.39 at p.41: 'The court does not give relief because constructive trust has been created; but the court gives relief because otherwise the defendant would be unjustly enriched; and because the court gives this relief it declares that the defendant is chargeable as constructive trustee.' ... The constructive trust, as so envisaged, comprehends the imposition of trust machinery by the court in order to achieve result consonant with good conscience. As matter of principle, the court will not allow any man unjustly to appropriate to himself the value earned by the labours of another. That principle is not defeated by the existence of a matrimonial relationship between the parties; but, for the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason ‑ such as a contract or disposition of law ‑ for the enrichment."" As Cory, J. points out in Rawluk at p. 84 the validity of the doctrine of constructive trust was accepted by majority in Pettkus v. Becker and the principle was extended to commonlaw relationship. Cory, J. says that the reasons of Dickson, J. in Pettkus ""clearly demonstrate the broad and equitable nature of the remedial and constructive trust and its applicability to any property dispute"". The evolution of the doctrine continued with the Supreme Court of Canada's decision in Sorochan where it was determined that constructive trust remedy will also apply to circumstances where spouse has contributed not to the acquisition of property but to its preservation, maintenance or improvement. Cory, J. concludes his summary by saying, at p. 86: ""These cases show that in Canada the doctrine of remedial constructive trust has been accepted for almost decade as an important remedial device whose prime function is to remedy situations of unjust enrichment."" In Rawluk the majority determined that the remedy of constructive trust was available to married parties and was not precluded by operation of the Family Law Act of Ontario, 1986, the effect of which was to allow the wife property interest in her husband's farm and business which meant that she shared in the increase in value due to inflation from the date of the separation to the date of the trial. In Maclnnis v. MacMillan (1989), 94 N.S.R. (2d) 271 Hallett, J., as he then was, indicates that Sorochan affirmed the principles of the Supreme Court in Pettkus v. Becker and further clarified the law with respect to unjust enrichment and said at p. 277: From the decision in the Sorochan case, draw the following conclusions: (1) The claim for unjust enrichment is now cause of action in itself. (2) For a plaintiff to prove an unjust enrichment, the plaintiff must meet three requirements:(a) an enrichment;(b) a corresponding deprivation;(c) the absence of any juristic reason for the enrichment. (3) 'The constructive trust constitutes one important judicial means of remedying unjust enrichment.' This is quotation from p. 236 of the R.F.L. report of Mr. Justice Dickson's decision in Sorochan. He further stated: 'Other remedies, such as monetary damages, may also be available to rectify situations of unjust enrichment.' (4) In order to establish constructive trust in addition to the three requirements to prove an unjust enrichment, there must be: (a) casual [sic] connection between the contribution and the property. For example, in the case of Mrs. Sorochan, she contributed labour and ran and preserved the farm for period of forty‑two years while she lived in common law relationship with Mr. Sorochan; (b) in addition to the causal connection, the evidence must establish that the plaintiff, that is the person alleging the unjust enrichment, had reasonable expectation of receiving an interest in the property and that the defendant knew or ought to have known of this expectation. In my opinion, this would be question of fact in each case. In short, this requirement calls for the trial judge to make an assessment or, to use the vernacular language, 'a judgment call' on the evidence; and (c) to determine the question of fact whether there is connection between the contribution and the disputed asset, the Court 'must ask whether the contribution is ""sufficiently substantial and direct"" to entitle the plaintiff to an interest in the property in question.' This phrase is contained at p. 237 of the Sorochan decision. So much for the elements necessary for plaintiff to establish an entitlement to have constructive trust imposed on property. (5) The fifth principle coming out of the decision of the Supreme Court of Canada in the Sorochan case (not particularly important for this case) is the importance of distinguishing family cases from commercial cases. In the latter, much more substantial burden or proof would be imposed. In family cases, the Court has stated at p. 238 of the R.F.L. Report of the Sorochan case that equity must be the guide in scrutinizing contributions between couples who are married or living together and much will turn on the facts of each case. The Sorochan case has clarified the law and made clear that one can have an action for unjust enrichment. The contructive trust is simply one of the remedies available to the Court to remedy an injustice as is the making of monetary award in the event constructive trust is established on the facts. Unjust enrichment cases decided before Sorochan must be looked at carefully in light of the decision in Sorochan; in particular, if the parties to the suit had been living in common law relationship and the dispute between them arises out of that relationship."" (emphasis added) In applying this step‑by‑step analysis to this case I find that Mrs. Keddy has met the three requirements to prove an unjust enrichment. find that the benefit received by Mr. McGill was both direct and indirect. Her involvement in his business directly assisted in the preservation of it and its continuation in his absence. The payment of household expenses and provision of domestic services indirectly assisted his business by allowing him to save money to reinvest in the business. For the four years the parties resided in Mrs. Keddy's mobile home Mrs. Keddy paid all of the household expenses with the exception of the $20.00 per week that Mr. McGill contributed towards the food. doubt that the $20.00 he contributed even covered his proportionate share of the grocery bill given that he was eating all of his meals there, since this was before he started to travel to Montreal. Although Mr. McGill continued to maintain his Thompson Road property during this time, apparently in case the relationship did not continue, find that that does not reduce the benefit he received by residing at Mrs. Keddy's where she paid the majority of the expenses. In addition the provision of housekeeping and domestic services was benefit to Mr. McGill. There was corresponding deprivation to Mrs. Keddy in terms of her time committment and her financial resources contributed to the household. In an annotation to Herman v. Smith (1984), 1984 CanLII 1238 (AB QB), 42 R.F.L. (2d) 154, which was approved in Sorochan, Professor James G. MacLeod wrote: The initial point raised is: Has the man received benefit? In the case, the benefit resulted from the claimant performing the normal 'spousal' services. No attempt was made to state the issue on any other basis. The rendering of spousal services amounts to valuable service. Such conclusion clearly has past references, although few cases state the issue so boldly. The difficulty, in principle, is that services may not be benefit if they are not wanted: Nicholson v. St. Denis (1974), 1974 CanLII 544 (ON SC), O.R. (2d) 480, 48 D.L.R. (3d) 344, reversed on other grounds 1975 CanLII 393 (ON CA), O.R. (2d) 315, 57 D.L.R. (3d) 699, leave to appeal to S.C.C. refused 1974 CanLII 584 (ON SC), O.R. (2d) 315n, 57 D.L.R. (3d) 699n. Some request/free acceptance or special relationship has regularly been required. The attitude of the defendant seemed to imply no request/free acceptance with the knowledge an intention to pay/be paid: see Re Spears, supra; Re Jacques (1968), 1968 CanLII 691 (NS PR), 66 D.L.R. (2d) 447 (N.S.). This point is not even explored. Rather, the fact of cohabitation and performing the services inherent in the role will amount to benefit to the other cohabittee: as to such philosophy see the Family Law Reform Act, R.S.). 1980, c. 152, s. 4(5). The detriment to the plaintiff was tied simply to the use of her time and energy. It seems to follow from the reasons that no one should expect, in general, spousal services for free. They are given, in the absence of an indication to the contrary, with the expectation of something in return and should be received as such."" (emphasis added) Professor Ralph Scane, in Relationships Tantamount to Spousal Unjust Enrichment and Constructive Trusts (1991), 70 C.B.R. 260 says at p. 271: ""It now appears that supplying 'domestic' services in the operation of the household and the raising of the children of the union, standing alone, can constitute deprivation to the plaintiff and an enrichment to the defendant. Similarly, expenditures of money on supplies and services needed for day to day living on groceries and drycleaning, for instance and which, by the very nature of the object of the expenditure, are not now represented by property into which the money can be traced, can constitute deprivation and confer enrichment."" For authority for these statements Scane cites Sorochan, Crisp v. Banton (1988), 18 R.F.L. (3d) 24 (Ont.H.C.) and Murray v. Roty (1983), 1983 CanLII 1942 (ON CA), 147 D.L.R. (3d) 438 (Ont.C.A.). similar finding was made in Pirie v. Leslie (1988), 1988 CanLII 7212 (MB QB), 29 E.T.R. 246, where during nine‑year cohabitation the petitioner was responsible for the operation of the household as well as providing some help on the small farm, while the respondent was otherwise employed. In that case there were no children involved, so disagree with Mr. McGill's counsel's suggestion that Sorochan can be distinguished on the basis of the length of the relationship and the fact that there were children of the union. Finally, find that since Mrs. Keddy was under no obligation, contractual or otherwise, to provide any services of either housekeeping or business nature to Mr. McGill during their relationship, there is no juristic reason for the enrichment. therefore find that Mrs. Keddy has established an unjust enrichment, and the next question is whether or not the unjust enrichment should be remedied by use of constructive trust or whether rectification by an award of monetary damages is more appropriate in this case. As pointed out in MacInnes v. MacMillan, in order to establish constructive trust, Mrs. Keddy must prove first of all that there is causal connection or nexus between her contribution and the property now in dispute which is registered in the name of Mr. McGill. Professor Scane, in his article on this subject (supra) at p. 287 says: ""In Sorochan v. Sorochan, the Supreme Court of Canada reminded us that 'constructive trust' and 'unjust enrichment' are not synonymous expressions. The constructive trust is one remedy which may be found appropriate when finding of unjust enrichment is made. As this proprietary remedy, unlike mere money judgment, may give preference to plaintiff over other creditors of the defendant or, as Rawluk v. Rawluk, may cause readjustment in the financial positions of spouses as they enter upon statutory redistribution of wealth upon marriage breakup, the reasons for choosing such remedy should be articulated as fully as possible. Certainly present treatment of restitutionary theory in Anglo‑Canadian legal writing treats proprietary remedies as the exceptional cases, not as the general rule."" In his article Professor Scane goes on to indicate the advantages to plaintiff who receives proprietary remedy instead of monetary remedy after establishing clear link between the contribution and specific property such as the priority over other creditors in cases of an insolvency of the defendant. Professor Scane goes on to question the process by which one concludes that there is causal connection to specific property and suggests, at p. 289: ""...that unjust enrichment created by receipt of the benefit of services, which enables defendant to avoid expense and thus accumulate and maintain wealth, seeps throughout all of the assets of the defendant."" In Causal Connection in Constructive Trusts (1986), Est. Tr. Q. 161, Professor Keith Farquhar, in examining the effect of the decision in Sorochan, says at p. 178: Implicit in the above ruling, is further laying to rest of the proposition that in order to succeed in constructive trust plaintiff must prove that his or her contributions resulted in an increase in the value of the defendant's holdings."" and further at p. 180: Another particularly interesting ruling in Sorochan is that 'the reasonable expectation of the claimant in obtaining an actual interest in the property as opposed to monetary relief, constitutes another important consideration in determining if the constructive trust remedy is appropriate.' While the phraseology here is not as unambiguous as it might be, it strongly suggests that even if there is no causal connection between the plaintiff's contributions and the property in question, constructive truct may be imposed on the property if the plaintiff entertained reasonable expectations in that regard."" The effect of the Sorochan case is also dealt with by Professor D.W.M. Waters in The Constructive Trust in Evolution Substantive AND Remedial (1991), 10 E. T.J. 334. He says that although Sorochan indicated that constructive trust is only one juducial means of remedying unjust enrichment, it did not answer the question of when is constructive trust the appropriate remedy. Waters says that that question was answered in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] S.C.R. 574. He says, at p. 350: The second notable point about this judgment is the answer supplied to the question of when it is appropriate for the court to grant proprietary relief. constructive trust, LaForest, J. said, should be awarded only when it is appropriate and 'in the vast majority of cases' it will not be. The question is whether the plaintiff should have the additional rights that flow from his being awarded an interest in property and that he would not have with personal remedy. The learned judge thought the circumstances calling for the granting of proprietary remedy include and they are all familiar the bankruptcy of the defendant, the increase in value of the disputed assets, and the specific and unique character of those assets or the court's difficulty in putting value upon them. These circumstances, together or singly, go to the issue of awarding particular property to the plaintiff, but it may also and very occasionally be correct, he says, to have in mind the moral quality of the defendant's act. For instance, conscious wrongdoing by the plaintiff that on the facts of the case is offensive to the court would come within that last situation. However, there is one remark in this judgment which in my opinion could dominate the 1990s, and it is the substance of the first of the questions that it was earlier said would here be discussed. La Forest J. said this: 'The constructive trust awards right in property, but that right can only arise once right to relief [i.e., ""a valid restitutionary claim""] has been established.'"" Although Farquhar and Scane suggest that the courts should infer causal connection or reasonable expectations that result in the finding of constructive trust, agree with the conclusion of Waters that Lac Minerals supplies the answer as to whether remedy should be in rem or in personam in this type of case. It is not necessary, in this case, to make any inferences with respect to causal connection or reasonable expectations of the parties. The defendant, in this case, has sufficient assets, both liquid and immovable, to satisfy judgment for damages for unjust enrichment. This is not situation where bankruptcy, intervening creditors or third parties are involved which require the imposition of constructive trust. monetary award is the appropriate remedy for the unjust enrichment that have found, and the question then becomes what the amount of that award should be. With respect to the amount that should be awarded to remedy the unjust enrichment, am in agreement with the method used in Murray v. Roty (1983), 1983 CanLII 1942 (ON CA), 34 R.F.L. (2d) 404, decision of the Ontario Court of Appeal which was approved (at p. 45) in Sorochan. The trial judge, in case dealing with an eight‑year cohabitation, awarded the plaintiff forty percent increase in the value of the equity in the homes and twenty percent of the value of the increase in the equity of the farm. Cory, J.A., as he then was, in his conclusion, says at p. 418: The appellant contended that there was no relationship between. the value of the services performed by Murray and the award to her of her share in the increase of the value of the properties. Once again, cannot accept that submission. It would seem to be most appropriate to award Charlotte Murray portion of the increase in the value of these properties. Her work was directed towards their acquisition and improvement. In light of the relationship that existed between the parties, it was most fitting and equitable result. In the circumstances of this case it was reasonable to base the award on the increase in the value of the properties: see, for example, Cooke v. Head, [1972] W.L.R. 518 at 521, [1972] All E.R. 38 (C.A.). There is no doubt that the extent of the interest must be proportionate to the contribution of the claimant: see Pettkus v. Becker, supra; at pp. 852‑53. Here the contributions were unequal. However, the trial judge carefully considered the situation as whole and his award was correct and proper one. In relationship such as this one, as in matrimonial case, the court should not determine the issue of division solely on the basis of the money contributions of each of the parties."" similar approach was taken in Everson v. Rich (1988), 1988 CanLII 5225 (SK CA), 53 D.L.R. (4th) 470 (Sask. C.A.). This case dealt with cohabitation of seven years during which the appellant worked for some periods and contributed most of her earnings to household expenses. She also provided domestic services. The respondent had increased his net worth during the relationship from $17,000.00 to $45,000.00. After determination that there was no sufficient nexus between the provision of the appellant's services in the acquisition of the property to entitle her to relief by way of constructive trust, Sherstobitoff, J.A. said at p. 475: While, as noted above, monetary damages in such cases have traditionally been measured by the market price of domestic services, there is no reason why they cannot be measured as suitable proportion of the increase in value of the assets of the person who has been unjustly enriched. It is at this point, assessment of damages, that one takes into account and values the benefits received by the appellant from the relationship. In this case, considering the value of the assets which each of the parties brought into the relationship; the value of the assets which each of the parties owned at the termination of the relationship; their respective contributions by way of services and money to the relationship; and the value of benefits received from the relationship by each of them, the appellant is entitled to damages in the amount of $10,000."" The award, in that case, represented roughly thirty‑five percent of the increase in the value of the respondent's property. As indicated above, the value of Mr. McGill's property increased by the amount of $380,760.00 during the twelve‑year relationship with Mrs. Keddy. By her efforts in helping to support him during the years they lived in her mobile home, performing the household duties over the entire relationship, and through her contribution to his rental business, find that it is appropriate in the circumstances to award her damages representing twenty‑five percent of the increase in his assets, that is the amount of $95,190.00. 2. THE SALTZMAN PROPERTY In August, 1986 Mr. McGill and Mrs. Keddy purchased property in South Berwick in their joint names for the sum of $13,000.00 plus expenses of $256.50. The property was very run down and their intention was to renovate it and sell it for profit and divide the profit between them. Mrs. Keddy paid $5,000.00 of the purchase price with money she had received when her daughter paid out the mortgage on the mobile home. Mrs. Keddy borrowed the balance of $8,000.00 from her bank. There is no evidence of who paid the $256.50 legal fees. From August, 1986 through to May, 1987 Mr. McGill and his employee, Stewart Dalton, worked on the renovations which were very extensive. On May 8, 1987 the property was sold for $35,500.00. Although the original plan had been that Mrs. Keddy would also work on the property, she did not. At the time the property was being renovated, Mrs. Keddy had just been released from the Victoria General Hospital after having sufferred breakdown. Her evidence is that she didn't work on the property because it was too cold there, but Mr. McGill and Mr. Dalton indicated that the property was heated through the winter months. The net proceeds of the sale, after paying the real estate commission, legal fees and property tax adjustment, were $34,395.40. From that the bank loan of Mrs. Keddy was paid in the amount of $8,000.00, although no adjustment was made for the interest which was deducted from her bank account. The balance of the proceeds was retained by Mr. McGill, and portion of the proceeds was later lent to friend of the parties. That friend later paid $1,000.00 to Mrs. Keddy and the balance to Mr. McGill. Therefore, Mrs. Keddy has received only $1,000.00 from the proceeds of the sale of the Saltzman property. When Keith Forsyth, C.A. prepared Mr. McGill's 1987 tax return and financial statements, he showed that Mr. McGill owed debt of $14,712.00 to Mrs. Keddy as result of the Saltzman transaction. Mr. Forsyth arrived at that figure by deducting from the net proceeds of the sale after the loan of $8,000.00 was paid, the sum of $9,433.53 representing the expenses paid by Mr. McGill during the renovations including Stewart Dalton's wages, invoices for materials, electricity and fuel. He also deducted the sum of $1,000.00 which Mrs. Keddy had received from the repayment of the loan by their friend and further sum of $1,250.00 which he thought Mrs. Keddy had retained from the proceeds of the sale. However, the evidence of Mr. McGill, at the trial, indicates that Mrs. Keddy paid back that $1,250.00 to him. Therefore, the proper amount of the loan should have been $15,961.87. Mr. Forsyth testified that when he did the calculations to determine the amount of money owing to Mrs. Keddy, he had all of the receipts relating to expenses paid by Mr. McGill in relation to the renovations. He also had all of the information regarding Mr. Dalton's salary. However, in 1988 when Mr. McGill's tax return was prepared, his financial statement showed that the loan was no longer in existence. It had not been paid off. Mr. Forsyth and Mr. McGill did recalculation of the transaction and decided that not all of Mr. Dalton's time spent on the property had been included the previous year, not all of the materials supplied by Mr. McGill, from his own supply, had been included and that they had not calculated Mr. McGill's own labour. After the recalculation, they determined that the net result was that there had been loss on the sale of the building and, therefore, that eliminated the loan owing to Mrs. Keddy. In this action Mrs. Keddy is claiming the sum of $14,276.79 as her share of the proceeds of the Saltzman property. That figure was arrived at by allowing Mr. McGill the sum of $10,000.00 for the total cost of the repairs to the property, including labour, and dividing the ""profit"" equally after allowing Mrs. Keddy the balance of her deposit in the amount of $4,000.00. She has also claimed interest at ten percent for four years. Mr. McGill denies that there is any balance owing to Mrs. Keddy as result of the sale of the Saltzman property. In relation to this matter, find it quite incredible that Mr. McGill did not have all of the receipts and information with respect to his costs in renovating the property available for his accountant when his 1987 tax return was prepared. There is no doubt that the purchase of this property was intended to be joint venture. Mrs. Keddy put up the money and Mr. McGill performed the labour. Given all of the evidence with respect to Mr. McGill's financial dealings and his careful investing, do not believe that he would have sold this property at loss or that he failed to claim, on his income tax return, allowable expenses for 1987. find that both Mr. McGill and his accountant knew that there was an amount owing to Mrs. Keddy as result of the Saltzman transaction, and the books were changed in 1988 only as result of the difficulties in the parties' relationship that had arisen in that year. find, however, that Mr. McGill should be allowed to claim an amount for his labour on the property since Mrs. Keddy did not contribute any labour. The sheets he filed, showing his days worked on the property, indicate that he worked total of ninety‑two days. Although he had claimed the hourly rate of $10.00 per hour for his labour, it is more appropriate to use the same rate of pay he paid his handyman, Mr. Dalton, that is $7.00 an hour. Assuming eight‑hour days, he should be credited with the sum of $5,152.00 for his labour. The calculation of the profit, therefore, is as follows: Net proceeds received at closing $34,395.40 Less: Bank loan 8,000.00 Expenses paid by Mr. McGill 9,433.53 Mr. McGill's labour 5,152.00 Sub‑total $11,809.87 Less: Refund of balance of deposit to Mrs. Keddy 4,000.00 Profit 7,809.87 Therefore, each party is entitled to receive the sum of $3,904.93 as their share of the profit on the sale of the Saltzman property. Mrs. Keddy is entitled also to the return of the balance of the deposit she made in the amount of $4,000.00. The result is that Mrs. Keddy should now be paid the sum of $7,904.93 by Mr. McGill. will deal with the claim for interest at the conclusion of this decision. 3. JOINTLY HELD PROPERTY The parties currently own two properties as joint tenants. One of these is the Saunder's property at Waterville which they purchased in 1982 as their residence. The parties made an equal contribution to the down payment from the sale of their previous home, and they contributed equally to the mortgage and other expenses. Mrs. Keddy has been living in the property since shortly after the separation. The parties agree that the property has fair market value of $60,000.00, and was subject to mortgage of approximately $10,000.00. They agree that the equity in this property should be divided equally. They do not agree, however, on the method of division. Mr. McGill suggests that the property be sold, and after payment of expenses relating to the sale, that the proceeds be divided. Mrs. Keddy, however, wishes the option of remaining in the property and buying out Mr. McGill's interest. find that his interest is $25,000.00 and that it would be appropriate to allow Mrs. Keddy the option of purchasing his share for that amount. The option shall be open for thirty days after the date of this decision. If she does not elect to purchase the property, the property shall be sold in accordance with the provisions of the Partition Act. make the same finding with respect to the Millville lot, owned jointly by the parties and valued by them at $8,000.00. It is not subject to any encumbrances. If Mrs. Keddy wishes to buy Mr. McGill's interest in that property for the sum of $4,000.00, she shall have thirty days from the date of this decision to exercise that option. In respect to both properties, if Mrs. Keddy elects to purchase Mr. McGill's interest, she shall be entitled to do so by having the $29,000.00 deducted from the amount owing, by Mr. McGill, to her as result of the unjust enrichment award made above. 4. PERSONAL EFFECTS The major item of personalty that is in dispute is 1981 Cadillac which was purchased in 1982 or 1983 by Mr. McGill for $13,000.00. Mrs. Keddy claims that the Cadillac was gift from Mr. McGill to her. Mr. McGill submits that he retained ownership of the Cadillac and simply allowed her to use it during the time they resided together. The registration remained in Mr. McGill's name, and he paid for the insurance and maintenance, while Mrs. Keddy paid for the gas. After the parties separated Mrs. Keddy removed the Cadillac from Mr. McGill's storage barn, and after driving it for while, hid it in some unknown location for several months. It was later found in Stewart Dalton's driveway without tires or rims on the rear end. The car had rusted badly and was not in condition in which it could be driven. find that Mrs. Keddy has the onus of proving that gift was made and further find that she has failed to meet the onus of proving intention to make gift of the automobile. therefore declare that the automobile is owned by Mr. McGill. During the trial of this matter Mrs. Keddy presented list of items she said were in the possession of Mr. McGill that she claimed ownership of. Many of the items were of such small value that it would be ridiculous to make declaration of ownership. For example, she claims broken lawn rake which she estimates is worth $15.00 and Christmas tree stand she says is worth $5.00. Mr. McGill also claims an ownership interest in some of the items in possession of Mrs. Keddy. find that there is insufficient evidence in relation to any of the personal effects in dispute to make finding of ownership, and therefore it is appropriate to set off the claim that each has in relation to these items against the other and order that each party shall retain ownership of the items currently in their possession. CONCLUSION For these reasons the plaintiff shall be entitled to enter judgment against the defendant for the following amounts: On the claim for unjust enrichment $95,190.00 From the proceeds of Saltzman property sale 7,904.93 Sub‑total $103,094.93 Pre‑judgment interest 42,128.87 Total $145,223.80 The pre‑judgment interest is calculated from the date of separation, February 1, 1988 to September 1, 1991 at the rate of ten percent per annum, compounded yearly (see Hannah v. Canadian General Insurance Company (1989), 92 N.S.R. (2d) 270). If Mrs. Keddy elects to purchase the interests of Mr. McGill in the Saunder's property and the Millville property, she must signify in writing to Mr. McGill's counsel on or before October 1, 1991. If she does so elect, Mr. McGill may deduct the sum of $29,000.00 from the above‑noted total. Mr. McGill shall execute all documents required for the transfer of title which shall be prepared at the expense of Mrs. Keddy. Mrs. Keddy shall be responsible for any other costs associated with the transfers of the properties. From the date of the transfer Mrs. Keddy shall be responsible for all taxes and other encumbrances, but up to the date of the transfer, the parties shall be equally liable therefor. With respect to costs, since the total claim put forward by Mrs. Keddy, in her pre‑trial brief was approximately twice the amount ordered, she shall be entitled to one half of her party and party costs based on tariff ""A"", scale with the amount involved of $145,223.80 which would be $5,329.00 (one half of $10,658.00) plus disbursements to be taxed. This ruling on costs is subject to submissions which may be made by counsel respecting any pre‑trial offers to settle made by Mr. McGill or Mrs. Keddy. J. HALIFAX, NOVA SCOTIA August 27, 1991 1988 S.K. No. 2422 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JEAN MAE KEDDY, and CARL VEN McGILL,","The parties lived together for some 12 years before separating in 1988. The plaintiff was 53 and the defendant 60. The plaintiff sought an order under the Partition Act for the partition and sale of two properties owned jointly and a division of property owned by the defendant based on a constructive trust. The defendant owned and operated residential rental properties. The plaintiff, who had stopped working as a medical records technician in 1988, maintained the household and assisted in the business by answering phones, bookkeeping, showing apartments and helping with minor repairs. (1) that the plaintiff met the three requirements to prove an unjust enrichment by virtue of the plaintiff's contributions of time and money, namely (a) an enrichment, (b) a corresponding deprivation, and (c) the absence of any juristic reason for the enrichment. The proper remedy was an award of monetary damages representing 25% of the increase in the value of the defendant's assets during the relationship, not the imposition of a constructive trust; and (2) jointly held properties were to be sold pursuant to the Partition Act, unless the plaintiff elected to buy out the defendant's one half interest within 30 days. Prejudgment interest was calculated from the date of separation to September 1, 1991, at 10% per year.",c_1991canlii4362.txt
323,"R.D. LAING THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 102 Date: 20090908 Between: Docket: 1645 Her Majesty the Queen and Corrona C. Shorting Coram: Lane, Richards and Wilkinson JJ.A. Counsel: W. Dean Sinclair for the Crown Roger Kergoat for the Respondent Appeal: From: Q.B.J. No. 18 of 2008, J.C. of Saskatoon Heard: June 11, 2009 Disposition: Allowed Written Reasons: September 8, 2009 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Wilkinson [1] The respondent pled guilty to charge of manslaughter arising out of fatal injuries she inflicted on her seven-month-old daughter. On February 11, 2009, the sentencing judge awarded the respondent 26 months credit for 13 months in pre-trial custody and then imposed a sentence of two years less one day to be followed by two years probation. The Crown seeks leave to appeal the sentence imposed as demonstrably unfit. [2] The Crown contends the sentencing judge erred in his assessment of the gravity of the offence and the respondent’s moral culpability in it and failed to impose sentence which properly emphasized the principles of denunciation and deterrence. It argues the judge further erred by failing to give proper weight to the aggravating features of the case and by overemphasizing the significance of factors he found to be mitigating. Finally, the Crown contends the sentencing judge failed to apply the principle of parity, all of which resulted in demonstrably unfit sentence. I am satisfied the appeal should be allowed on the basis of this latter ground. [3] The essential facts are not in dispute. The respondent, 28-year-old Aboriginal woman, gave birth prematurely to the victim, Corona Genaille, on February 10, 2007. The respondent was heavy cocaine and marijuana user and has troubled history of abuse, addictions to alcohol and drugs and psychological problems. She grew up in unstable living conditions and was exposed to drug use, domestic abuse and sexual abuse. After the birth of the child she refused post-natal health services in order to conceal her drug use, and she avoided most contact with child welfare agencies. Her last contact with Social Services was on June 18, 2007, over three months before the incident giving rise to the charge. Corona was the respondent’s fourth child. At the time of the offence, the other children were one, four, and five years old and all suffered from developmental or health problems including autism and fetal alcohol syndrome. She was essentially the sole caregiver of the four children. The respondent drank alcohol and/or used drugs while pregnant with three of the children. [4] The respondent was living with Fabian Genaille since 2004 and he is the father of the two youngest children. Mr. Genaille abuses drugs and alcohol and works out of town often. He was not physically abusive but the relationship had deteriorated significantly. In previous relationship of eight years, she was severely and repeatedly physically assaulted. [5] On September 25, 2007, the respondent called her social worker at approximately 9:00 a.m. and said Corona was unresponsive. Two social workers came to the home, found the baby unconscious and called an ambulance. The baby was rushed to the hospital but never regained consciousness. When the baby was brought in, hospital staff noticed bruises on the baby’s face and head and called police. They interviewed the respondent and she denied knowing how the baby was injured or why she was unconscious. She later suggested the bruises may have been caused by one of the other children. Baby Corona was pronounced brain dead on September 26 and died September 27 after being removed from life support. [6] The autopsy report showed the baby died due to blunt force trauma to the head, result of multiple impacts. The pathologist also observed brain injuries, retinal haemorrhages and healing bilateral rib fractures. [7] When the police re-interviewed the respondent in November 2007, she admitted to causing the baby’s injuries and provided details about what had happened. On September 24, 2007, the day before she called the social worker (it is unclear at exactly what time), the respondent accidentally knocked the baby onto the floor, causing the baby to start crying. The respondent became angry and frustrated at the crying, at which point she lifted the baby up by an arm or leg and threw her onto the couch. The baby’s head hit wooden part of the couch. She stopped crying and began making gurgling sounds. The respondent took the baby upstairs and threw her in her crib. The baby's head likely hit the bars of the crib. The respondent was worried the baby might be hurt but did not want to think about it so left her in the crib. Several hours later she checked on the baby and found her unresponsive and unconscious. She put bottle in the baby’s mouth and changed her diaper, then left her in the crib until the next morning, at which point she called Social Services. The respondent shook the baby both on September 24 and the morning of September 25 before calling the social workers. [8] At the time of the incident, the respondent had not done cocaine for at least two days and was suffering from withdrawal. She told Dr. Nicholaichuk, clinical and forensic psychologist retained by the defence to assess her, that at the time of the incident, she was depressed, angry and tired. She also said she had never properly bonded with the baby. She continued to use drugs and alcohol after the baby’s death. [9] The respondent was arrested and charged with second degree murder in January, 2008. The charge was reduced and the respondent pled guilty to manslaughter on December 10, 2008. The court ordered pre-sentence report which indicated the respondent’s overall risk to re-offend was medium. It also indicated she had suffered extensive childhood physical and sexual abuse and severe and chronic spousal abuse at the hands of her previous common law partner as referred to earlier. [10] Dr. Nicholaichuk prepared report which indicated the respondent suffered from symptoms associated with Post-Traumatic Stress Disorder, including anxiousness, hypervigilance, paranoia, and substance abuse. He stated the symptoms could also be result of drug withdrawal. It is unclear from the report and the doctor’s testimony whether he actually diagnosed the respondent with PTSD. In the report he states “the presence of PTSD must be considered to be chronic” but also “she has no mental disorder or emotional problems not related to her substance abuse.” When he testified, he said he had not diagnosed her with PTSD. He assessed the respondent’s general criminal recidivism risk as being in the medium/high range and her recidivism risk for violent offences as being in the low range. He concluded she was not risk to the public. [11] The respondent has criminal record that includes convictions for possession of weapon and mischief (stemming from an incident in which she attacked police car with an axe while intoxicated) as well as further convictions for not abiding by the conditions in her probation order. [12] While in custody, the respondent successfully completed number of courses and has been described by her instructors as kind, respectful and eager to learn and change. The Judgment Below [13] At the sentencing hearing, the Crown and defence agreed the appropriate range of sentencing for manslaughter in Saskatchewan was four to 12 years based on the decision in R.v. Hathway.[1] The Crown suggested six year sentence was appropriate while the defence asked for sentence of one year plus time served. After reviewing the relevant Criminal Code sections, the judge found as aggravating factors the victim was child, the respondent was in position of trust and authority, and the respondent did not seek immediate help when it was apparent the child was injured. He found as mitigating factors the respondent’s acknowledgment of responsibility including her guilty plea, her expressions of remorse, her abusive background which may have caused symptoms of PTSD, and her socioeconomic situation. He found the decision of Zarzeczny J. in R. v. Schoenthal[2] to be particularly helpful. will refer to this case further in the judgment. Positions of the Parties [14] The crown contends the sentencing judge failed to properly assess the moral culpability of the respondent in this manslaughter case. It begins its argument by referring to this comment by McLachlin J. (as she then was) in R. v. Creighton:[3] [86] …Because manslaughter can occur in wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing minor offence, for example, properly attracts much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender... [15] It then argues the sentencing judge ought to have followed the process of analysis set out by the Alberta Court of Appeal in R. v. Laberge.[4] Such analysis requires: firstly, consideration of the nature of the unlawful act and the offender's mental state at the time it was committed and, secondly, consideration of the personal characteristics of the offender which would mitigate or aggravate culpability. [16] In that case the court noted that in manslaughter cases the unlawful acts which cause death may be divided into three broad categories: 1. Those which are likely to put the victim at risk of, or cause, bodily injury; 2. Those which are likely to put the victim at risk of, or cause, serious bodily injury; or 3. Those which are likely to put the victim at risk of, or cause, life-threatening injuries.[5] [17] The court noted the offender's subjective mens rea (whether she knew the act was likely to cause one of the types of injuries based on acceptable inferences) as well as objective mens rea (whether she ought to have known based on the standard of reasonable person) are both relevant to placing her degree of moral culpability on this spectrum. The court should assess each of the above categories on subjective and objective basis. In the objective analysis, the court should identify whether the act was likely to cause the severity of the injury at issue or simply risk of that degree of injury. Therefore, there are many different combinations of subjective and objective culpability which are possible. The court also stated an impulsive act did not necessarily indicate lower degree of subjective or objective mens rea. [18] The respondent replies to this argument by stating the assessment of moral culpability is question of mixed fact and law and appellate courts should defer to the trial judge's findings of fact absent palpable and overriding error or error in principle. The sentencing judge did not explicitly examine the nature of the unlawful act causing the infant's death. However, the respondent points to the judge’s reference to Schoenthal (the only case cited by the sentencing judge and case of criminal negligence causing death rather than manslaughter) as putting the unlawful act in the lowest Laberge category. In that case, the trial judge found the mother (in stressful circumstances) so vigorously shook her 23-month-old child that she caused him severe subdural and retinal haemorrhaging which led to his unconsciousness and ultimately his death. The decision of this Court overturning the finding in Schoenthal was not referred to by counsel or brought to the attention of the trial judge below. However, this does not affect the appellant’s argument the unlawful act at issue here is in the lowest Laberge category. [19] The appellant next argues the sentence imposed fails to adequately address the principles of denunciation and general deterrence and in particular argues the judge failed to address s. 718.01 of the Code. It reads: When court imposes sentence for an offence that involved the abuse of person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [20] The appellant then argues the sentencing judge overemphasized the significance of the factors he found to be mitigating. In particular, the appellant contends the judge overemphasized the mitigating nature of the respondent's abusive background, her associated mental disorder which resulted from that background, as well as her social and economic situation. Further the appellant submits the judge erred in not considering the respondent's criminal record to be an aggravating factor. [21] The appellant does not dispute the fact the respondent had an extremely abusive background but contends the sentencing judge failed to explain how the respondent's abusive background both contributed to the offence and why it reduced her moral culpability. Further, there is no support in the Criminal Code for the idea that drug addicted mothers should be held less accountable for killing their children. The argument the respondent's moral culpability was reduced because she suffered from PTSD should have been rejected by the sentencing judge because the respondent’s symptoms were not of character which interfered with her ability to appreciate her surroundings, control her actions or understand the consequences of them. The sentencing judge should not have relied on the respondent's symptoms of PTSD as mitigating factor. [22] The appellant argues the judge's reliance on Hathway, supra, to determine range ought to have been followed with an analysis of an appropriate sentence within that range. It says it is of little substance to define the width of the range and then fail to focus on the range of sentences normally reserved for similarly situated offenders who commit similar offences. The appellant argues the trial judge should have been guided by the decision of this Court in R. v. F. (R.R.), [6] where it held that reasonable starting point for custodial sentence for unlawful act manslaughter is seven years. [23] The appellant then refers to R. v. Bighead,[7] decision of this Court which it contends strongly supports the proposition that offenders who cause the death of child in comparable circumstances will usually receive custodial terms of between and 10 years. In that case this Court held that five-year sentence imposed on an offender who pled guilty to aggravated assault was demonstrably unfit. In Bighead the offender struck young child and the child's head hit sharp wooden edge. The child suffered permanent catastrophic brain injury. The offender was also abused as child and had difficult childhood. He was diagnosed as suffering from PTSD and other mental disorders. Given the nature of the injuries suffered, the Court held the appropriate sentence range was more properly defined by child-abuse manslaughter cases than by aggravated assault cases. [24] Finally the appellant contends the sentencing judge should not have concluded the respondent's social and economic circumstances mitigated her moral culpability. The sentencing judge found the respondent was forced to care for her four children without any appropriate support mechanisms from family and/or Social Services. The respondent submits she felt overwhelmed trying to take care of the children with their mental and developmental disorders. The appellant says the sentencing judge misapprehended the evidence because the appropriate government agency did not refuse to support the respondent. In fact, it was the respondent who avoided the agency and did not ask for help because she was afraid the officials would find out she was using drugs and take away her children. She did not seek the support of her mother because she was not getting along with her at the time of the offence. It is clear she had no support from her spouse but the fact that both parents were more concerned about their drug habits than they were about facing the challenges of looking after the children cannot be mitigating circumstance. [25] The deemed “aggravating factors,” i.e. the victim being child and the offender abusing relationship of trust, were clearly considered by the sentencing judge. The appellant is correct in suggesting the judge's description of the respondent’s prior offences seemingly minimized their seriousness but on that basis alone, would not find the sentence unfit. [26] With regard to the appellant's argument the sentence imposed fails to adequately address the principles of denunciation and general deterrence and, in particular, that the judge failed to address s. 718.01 of the Code, note the judge did in fact cite the section and commented that children needed to be protected from abuse at the hands of parents. It is clear the judge directed his mind to the issue. [27] The respondent's dysfunctional upbringing or dysfunctional life was put forth by the Crown as an aggravating factor at the sentencing hearing. The judge asked Crown counsel whether it could in fact be mitigating factor. Counsel responded whether it is mitigating factor or not is up to the court.[8] In my view these particular issues were considered and given appropriate weight by the sentencing judge. [28] The argument the judge did not give proper weight to the gravity of the offence and the respondent's moral culpability ultimately fails. It is clear the judge did not embark on an analysis of the kind set out in Laberge but that authority does not suggest such detailed analysis is necessary. That authority does not require judge to explicitly enunciate every factor considered in coming to his conclusion. The sentencing judge identified the incident as ""tragic story where mother instead of protecting her young child, causes that child's death. As said earlier, the accused admits causing the child's death and she will have to live with that knowledge for the rest of her life, that instead of protecting her child, she caused its death.”[9] The judge was clearly alive to the seriousness of the offence. [29] do not read the trial judge’s reasons as failing to give adequate weight to both the seriousness of the offence and the respondent's moral culpability. As read the judgment, it was framed by the arguments and cases submitted by counsel. The parties agreed upon the range of sentences in manslaughter cases and the only cases referred to the sentencing judge were Hathway, supra, (a charge involving the death of an adult), Schoenthal, supra, (a charge of criminal negligence causing death), and R. v. Bos[10] (a case out of British Columbia involving manslaughter of seven-week-old child with exceptional personal circumstances of the accused). will discuss each of these cases further. [30] In other words, the judge was directed to very narrow range of authorities, i.e. case identifying the appropriate range, case with dissimilar charge, and case from another jurisdiction with sentence at the low end of the range because of the personal circumstances of the accused. In these circumstances cannot find the judge failed to give proper weight to the gravity of the offence and the degree of the respondent's responsibility. It would of course be helpful if more detailed analysis along the lines suggested in Laberge had been given in order to enhance meaningful appellate review. However, am not satisfied the judge failed to properly consider this factor. I am, however, satisfied this same limited framework presented by counsel led the judge to err by failing to observe the need for parity in sentencing and as a result, the sentence imposed was not similar to sentences imposed on other offenders for similar offences committed in similar circumstances. [31] In their sentencing submissions, the parties argued the range of sentences in Saskatchewan in manslaughter cases runs from four to 12 years in most circumstances. As mentioned above, the Crown specifically referred to Hathway, supra, where that range was confirmed although with the knowledge that there may be circumstances in particular cases which lead to sentence outside of the range. The judge concluded that in terms of manslaughter where child is the victim, the range is similar to the general range. [32] The Saskatchewan cases the respondent submitted at sentencing, i.e. Schoenthal, supra, case of criminal negligence causing death rather than unlawful act manslaughter; and Hathway, supra, case involving the death of an adult, in my view are not helpful in the determination of fit sentence within the appropriate range. The third case cited by the respondent before the sentencing judge, Bos, supra, was case where the British Columbia Court of Appeal reduced sentence of three years to two years less day where father was convicted of manslaughter in the death of his seven-week-old daughter. The court took particular note the accused was Kuwait war veteran, good father with no prior record, with otherwise exemplary conduct in the workforce and at home, with little likelihood of reoffending, and suffering deep personal agony as result of his actions. [33] On appeal the respondent cited R. v. Pauchay,[11] in which an intoxicated father left his two daughters out in extremely cold weather causing them to freeze to death. He was not directly and actively violent towards his children. He was convicted of criminal negligence causing death. Schoenthal, supra, has been discussed earlier. The respondent also cites R. v. Lam,[12] case where the operator of daycare was found guilty of criminal negligence causing death. Except for Bos, supra, the cases seemingly involve circumstances of lower moral blameworthiness than was demonstrated in the case before us. [34] The judge was not directed to decisions of this Court on the starting point for manslaughter sentences and specifically the issue of unlawful act manslaughter causing the death of child. [35] In F. (R.R.), supra, the Court reaffirmed that reasonable starting point for custodial sentence for unlawful act manslaughter is seven years. In Bighead the Court cited two decisions with approval those being R. v. Sinclair[13] (a decision of the Manitoba Court of Appeal) and R. v. Neuls.[14] In Sinclair the mother was sentenced to custodial term of seven years and in Neuls the court imposed ten-year custodial sentence on the offender who killed his two-year-old stepchild. Neuls was case involving prior acts of violence to the child resulting in massive bruising, burns to the child's feet and head injuries causing brain swelling resulting in death. [36] In my view, the most useful authority in this jurisdiction when assessing manslaughter sentences for adults who kill children is Bighead. There are significant similarities to the case before us. [37] Ken Bighead was looking after his partner's three children, including the victim who was 19 months old. At some point he hit the baby with enough force that the baby's head struck the sharp edge of the door and fell. The child ended up in persistent vegetative state with severely reduced lifespan. Mr. Bighead initially denied responsibility, hid evidence and blamed the injuries on one of the other children. There were prior acts of abuse towards the child. Like the respondent, Mr. Bighead had background described as ""tragic."" He had been diagnosed with number of mental disorders, including PTSD, Generalized Anxiety Disorder and Borderline Personality Disorder. He had dependence on alcohol and marijuana and an extensive criminal record. [38] Jackson J.A. found the sentencing judge to have erred by considering cases of aggravated assault where the child had essentially recovered instead of looking at comparative manslaughter cases. She referred to Neuls, supra, and Sinclair, supra, as indicative of the proper range for manslaughter causing the death of child. In each of these cases the offender had compelling personal circumstances. In Neuls sentence of 10 years was imposed and in Sinclair the sentence was just under seven years. Mr. Bighead was sentenced to years. [39] Again, the similarities between that case and the present case are striking. Both offenders had troubled histories and mental health problems, although Mr. Bighead's were more severe. Both initially denied responsibility, blamed the injuries on another child and failed to call for help in timely manner. An important difference was the fact Mr. Bighead had committed prior acts of physical abuse towards the child while there is no evidence of history of abuse in this case. Further Mr. Bighead had more extensive criminal record than the respondent. He was also only looking after the child for couple of hours as opposed to the respondent who was raising four children with developmental and health problems and severe problems of her own. Here the respondent refused to ask for available help because of her drug abuse problem. [40] These factual differences however do not warrant, in my view, sentence differential of over two years. Taking into account the mitigating factors already identified, in particular the respondent\'s post-sentence rehabilitative potential and the absence of evidence of prior acts of violence, a sentence slightly below the range as the one imposed in Bighead leads me to conclude a sentence of six years is appropriate, with 26 months credit for remand as imposed below. Leave to appeal is granted and the appeal is allowed. DATED at the City of Regina, in the Province of Saskatchewan, this 8th day of September, A.D. 2009. “LANE J.A.” LANE J.A. concur “RICHARDS J.A.” RICHARDS J.A. concur “LANE J.A.” for WILKINSON J.A. [1] 2008 SKQB 480 (CanLII). [2] 2006 SKQB 177 (CanLII); 278 Sask.R. 273. [3] 1993 CanLII 61 (SCC), [1993] [4] (1995), 1995 ABCA 196 (CanLII), 165 A.R. 375. [5] Ibid. at para. [6] 2008 SKCA 52 (CanLII), 310 Sask. R. 124. [7] 2003 SKCA 44 (CanLII), 232 Sask. R. 236. [8] Transcript of Proceedings dated February 11, 2009 at p. 65. [9] Transcript of Proceedings dated February 11, 2009 at p. 78. [10] 2000 BCCA 531 (CanLII), 143 B.C.A.C. 216. [11] 2009 SKPC 35 (CanLII). [12] 2004 ABQB 78 (CanLII), 37 Alta. L.R. (4th) 141. [13] 1997 CanLII 22827 (MB CA), [1998] W.W.R. 228. [14] (1991), 1991 CanLII 8034 (SK CA), 93 Sask. R. 89.","The respondent pled guilty to a charge of manslaughter arising out of fatal injuries she inflicted on her 7 month old daughter. The sentencing judge awarded the respondent 26 months credit for 13 months in pre-trial custody and then imposed a sentence of 2 years less 1 day to be followed by 2 years probation. The Crown seeks leave to appeal the sentence imposed as demonstrably unfit. HELD: Appeal allowed. 1) Taking into account the mitigating factors and in particular the respondent's post-sentence rehabilitative potential and the absence of evidence of prior acts of violence, a sentence slightly below the range as the one imposed in R. v. Bighead, 2003 SKCA 44 leads the Court to conclude a sentence of 6 years is appropriate, with 26 months credit for remand as imposed below.  2) The sentencing judge was directed to a very narrow range of authorities. In these circumstances this Court cannot find that the judge failed to give proper weight to the gravity of the offence and the degree of the respondent's responsibility. It would be helpful if a more detailed analysis along the lines suggested in R. v. Laberge (1995), 165 A.R. 375 had been given in order to enhance meaningful appellate review. However, this Court is not satisfied the judge failed to properly consider this factor. The Court is satisfied that the limited framework presented by counsel led the judge to err by failing to observe the need for parity in sentence and as a result, the sentence imposed was not similar to sentences imposed on other offenders for similar offences committed in similar circumstances.",4_2009skca102.txt
324,"SUPREME COURT OF NOVA SCOTIA Citation: Shea v. Bowser, 2012 NSSC 10 Date: 20120109 Docket: Hfx. No. 348548 Registry: Halifax Between: James David Shea, Linda Shea v. Loyal F. Bowser, Wendy Lynn Bowser Respondents Judge: The Honourable Justice Peter P. Rosinski. Heard: October 18, 20, 2011, in Halifax, Nova Scotia Counsel: D. Mark Gardiner, for the Applicants Myra Jerome, for the Respondents By the Court: Introduction [1] The Bowsers were successful as Respondents in Chambers application which was heard for full day on October 18, and half day on October 20, 2011 see 2011 NSSC 450 (CanLII). They claim solicitor client costs, or in the alternative costs under Tariff “C” of $3000 to which they say a multiplier of four should be applied for a total of $12,000 costs plus disbursements of $302.75. The Sheas in response argue this is not an exceptional case warranting solicitor client costs, yet agree that Tariff “C” should apply to an amount of $2750 to which multiplier of two should be applied for total of $5500 plus disbursements. [2] On May 12, 2011, the Sheas filed Notice of Application in Chambers. Included therewith was the Affidavit of the Sheas sworn November 23, 2010, comprising twenty-three paragraphs and Exhibits “A” through to “U”. Mr. Gardiner indicated that “one full day” would be required to hear the matter. review of the file confirms that the Bowsers received advice from the scheduling office of this court on May 16 that the hearing had been set for June 23, 2011. Ms. Jerome advised scheduling on May 20, that she would be leaving the country for most of the summer beginning June 24, 2011 and that the hearing would take longer than just one day. By June 6, an email from Mr. Gardiner confirmed he and Ms. Jerome had agreed that two days should be sufficient. Ultimately, they agreed to have the matters heard on August 23 and 25, 2011. Ms. Jerome’s June 22 email suggested that Mr. Gardiner was “willing to wait for our Notice of Objection until July 29, 2011"". [3] Those dates were then adjourned to September 20 and 21, 2011, and further adjourned to October 18 and 20, 2011. [4] On September 14, 2011, the Bowsers faxed Notice of Contest and their Affidavit sworn September 13, 2011 to the court and filed hard copies thereof on September 16, 2011. Those were initially rejected by court staff and were re-filed on October 5, 2011. Notably, the Sheas did not object to the late filing of the Bowsers’ Notice of Contest consistent with their earlier indications. On October 13, the Sheas filed Rebuttal Affidavit sworn on October 12, 2011. [5] At the hearing, aerial photographs were introduced as exhibits covering the years 1964, 1974, 1980 to 1992 and 2001. Survey plans dated September 8, 1962, September 5, 1966 and August 3, 1972 as well as September 4, 1991 were introduced. An LRIS form 6A dated June 26, 2007 was also introduced as an exhibit being correction to the parcel register respecting PID 40058349 the Bowser property. [6] Both Mr. and Mrs. Shea and Mr. and Mrs. Bowser were cross examined on their affidavits. Pre-hearing written submissions and post hearing written submissions were received by the court. [7] In their Notice of Application in Chambers, the Sheas requested declaration that there were entitled to right-of-way across the land of the Bowsers and were seeking mandatory injunction and permanent injunction as well as damages for the loss of use and enjoyment of their properties and were seeking costs on solicitor client basis. [8] In their Notice of Contest, the Bowsers argued that the application should be dismissed because, while the Sheas may have an express grant of right-of-way, “its location is not defined in such deeds or subdivision plan of [Nova Scotia Land Surveyor] Wedlock”. They contested that the right-of-way was ever located on their property. They suggested that the Sheas express right-of-way may actually be located over an adjacent property. In their affidavit they concluded at paras. 29 and 30: We are asking for an award of general damages for loss of enjoyment of our property and stress to Wendy Bowser’s health due to the harassment by the Applicants from 1995 to the present, in the amount of $5000. We are asking for an award of costs and any other remedy this Honourable Court finds appropriate in this matter. [9] “Costs” are covered in Civil Procedure Rule 77. Solicitor Client Costs [10] Rule 77.01(1) reads: 77.01 (1) The court deals with each of the following kinds of costs: ... (b) solicitor and client costs, which may be awarded in exceptional circumstances to compensate party fully for the expenses of litigation; [11] Rule 77.03(2) reads: (2) judge may order party to pay solicitor and client costs to another party in exceptional circumstances recognized by law. [12] In very recent decision, Justice LeBlanc of this Court in Ackermann v. Kings Mutual Insurance Company 2012 NSSC (CanLII), in the context of trial, discussed the principles associated with the awarding of solicitor client costs at paras. [13] Such costs are intended to disassociate the court from party’s conduct, and cross from the usual purpose of partial indemnification into the realm where the circumstances require costs be assessed as punishment to one of the parties. As the Supreme Court of Canada has indicated such costs “are generally awarded only when there has been reprehensible scandalous or outrageous conduct” Young v. Young 1993 CanLII 34 (SCC), [1993] SCR at para. 251. [14] In their submissions, the Bowsers suggest such costs are appropriate here because of: ...the undisputed facts that the Applicants have been harassing the Respondents for over 16 years, including using quasi-criminal means during civil law negotiations, that the Applicants purposefully omitted certain critical information in their claim, and that they started this action with no colour of right, no preparation of an Abstract of Title, and no attempt to rectify their claimed rights while Gladys Bowser was alive... P. of December 8, 2011 letter constituting post hearing submissions. [15] It is true that this dispute has been acrimonious, and that the Sheas omitted some important information in making their claim [for example there were no certified copies of the deeds from the Conrods into the Sheas, or from Gladys Bowser to Lester Smiley, nor was the correction to the parcel register entered by Mr. Kent Rogers in 2007 acting for the Sheas expressly brought to the attention of the court nor was there an abstract of title or survey plan undertaken to determine the nature and extent of any right-of-way over the property of the Bowsers]. [16] On the other hand, note that the litigation herein started in May 2011, was generally conducted in civil fashion as evidenced for example, by the Sheas’ consent to late filing of the Notice of Contest by the Bowsers, and the Bowsers’ consent of the late filing of the Rebuttal Affidavit of the Sheas. Ultimately, the Sheas, by omitting some important information in making their claim, undermined the strength of their claim. This should not be seen as outrageous, scandalous or reprehensible conduct. [17] This is not one of those rare cases where solicitor client costs should be awarded. Party and Party Costs [18] Rule 77.01(1)(a) and 77.02(1) and 77.03(3) make it clear that the winning party in the litigation is presumptively entitled to partial compensation of their expenses of litigation. Customarily this has been viewed as substantial, but not complete, indemnification of their expenses of litigation. As in many other cases, the dispute in this case concerns to what extent there should be partial compensation. [19] The Bowsers suggest $12,000 plus disbursements whereas the Sheas suggest $5500 plus disbursements. [20] agree that Tariff “C” is the appropriate guideline see Rule 77.06(3). keep in mind Justice Murphy’s observations in MGL Consulting and Investments Limited v. Perks Coffee Limited 2010 NSSC 426 (CanLII), that the Tariff “C” chambers scale must be appreciated as having had its origin under the Old Rules [pre-January 1, 2009]. Those amounts relate back to September 1, 2004. Moreover, at the time of his decision, the new Rules did not distinguish between applications in chambers and applications in court as they do now. Generally, he noted at the time that applications in chambers should attract an award under Tariff “C”, and that where the main issue is not an identifiable monetary claim, it is best only as last resort to consider trying to assess monetary amount for such hearings in order to use that amount as basis to calculate cost award. [21] Tariff “C” (para. 3), reminds the court to “award costs that are just and appropriate in the circumstances of the application”. find that this Chambers application was determinative of the entire matter at issue in the proceeding, and consequently it is appropriate for me to consider multiplier of the maximum amounts in the range of costs set out in Tariff “C”. [22] In this case, the application consumed one full day on October 18 and effectively the morning of October 20, 2011 by ending at 10:45 a.m. conclude that effectively the hearing consumed days. Therefore find $3000 is the appropriate base amount. [23] conclude that the matter was sufficiently complex and important to the parties that it required significant amount of effort to prepare for, conduct the hearing and to review the evidence to be able to provide briefs to the court post hearing. Without attaching undue weight to the statement of account dated December 7, 2011 of Ms. Jerome, it does seem to be reasonable reflection of the effort involved. [24] In my view, as appropriate partial compensation toward the Bowsers’ expenses of litigation, and to do justice between the parties here, I should apply a multiplier of two for a total of $6000 in costs. Rule 77.10 allows me to include “necessary and reasonable disbursements”, and there having been no apparent dispute about those, will allow the claimed amount $302.75 plus HST as the disbursements amount. [25] would request that the Bowsers prepare draft order for my signature.","Rule 77.03 – Liability for costsThe court found in favor of the respondents after a half-day chambers hearing. They sought solicitor-client costs or costs under Tariff C, with a multiplier of four for a total of $12,000 given the applicants' conduct and their failure to include important information in their claim. Held, party-and-party costs of $6,000 awarded to the respondents, using Tariff C and a multiplier of two. This matter was sufficiently complex and important to the parties that it required significant preparation and effort to prepare/review the evidence and conduct the hearing. While they did omit relevant information, the applicants' conduct wasn't so outrageous, scandalous or reprehensible that it warranted an award of solicitor-client costs. The dispute was acrimonious, but the litigation was generally conducted in a civil manner.",2_2012nssc10.txt
325,"R.C. MILLS IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 049 Date: March 30, 2012 Information: 24335371 Location: Moose Jaw, Saskatchewan Between: Her Majesty the Queen and Leopold Therrien Appearing: Mr. Rob Parker For the Crown Mr. Jeff Deagle For the Accused DECISION M.T. GORDON, [1] Leopold Therrien is charged as follows: that between January 1, 1983 and December 31, 1991, at Willow Bunch, Saskatchewan, and Regina, Saskatchewan, and Winnipeg, Manitoba, did commit sexual assaults on Leanne Eger contrary to provisions of the Criminal Code. [2] And further, that between January 1, 1989 and December 31, 1991, at Willow Bunch, Saskatchewan and Winnipeg, Manitoba, did commit sexual assaults on Nicole Eger, contrary to provisions of the Criminal Code. [3] Mr. Therrien, with the advice of counsel, elected to be tried in this Court and entered guilty pleas on August 10, 2011. Pre-Sentence Report and Electronic Monitoring Assessment was ordered and sentencing was adjourned to November 9, 2011, and then to November 23, 2011. Counsel advised at that time that there was significant divergence on some of the facts. The Crown requested sentencing hearing pursuant to section 724(3)(e). The accused agreed. This decision deals only with my findings as result of this sentencing hearing. [4] In R. v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477, the Supreme Court of Canada stated that: It should also be recalled that plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. [5] hearing to resolve disputed sentencing facts is commonly referred to as “Gardiner Hearing”. The procedure set out in Gardiner is now codified into section 742(3) of the Criminal Code. [6] In R. v. Poorman, 1991 CanLII 2759 (SK CA), [1991] S.J. No. 274, 66 C.C.C. (3d) 82, the Saskatchewan Court of Appeal adopted the direction in R. v. Boulet, 1990 CanLII 7762 (SK CA), 85 Sask. R. 93, which is now stated in section 724(3) that where there is substantial conflict in the facts, the Court must hold formal sentencing hearing with the onus on the Crown to prove the aggravating facts beyond reasonable doubt. [7] This procedure is quoted with approval in R. v. Malnowski, 2007 SKCA 33 (CanLII) and R. v. Tonido-Yuiiti, 2010 SKCA 81 (CanLII). [8] There are three aggravating factors that the Crown asks this Court to find, namely: 1) that the sexual assaults were numerous, 2) that the accused touched the victims directly on their skin and not just over their clothing, and 3) that there was digital penetration by the accused of both victims. [9] As stated above, the law is clear, that the Crown must prove each of these aggravating factors beyond reasonable doubt. [10] The Crown called both victims to testify, namely Leanne Eger and Nicole Eger. The Defence called Leopold Therrien to testify. [11] The first aggravating factor the Crown asks this Court to find is the frequency of the assaults. [12] In his closing submissions, counsel for Mr. Therrien stated there was no real issue with the frequency of the assaults. [13] However, in cross-examination it was noted Defence counsel suggested to the victims that the assaults did not take place as often as each of them related. [14] Leanne Eger testified the assaults started when she was four years old and living in Regina, and ended when she was eleven or twelve years old. She recounted incidents at Mr. Therrien’s home in Willow Bunch and that they occurred more than once per visit. She estimated the assaults occurred hundreds of times. She does not remember ever being alone with Mr. Therrien without this conduct occurring. [15] Nicole Eger testified that she and her sister would visit Mr. Therrien at Christmas, weekends, and summer holidays. Nicole could not say the frequency of the assault but she cannot recall times with Mr. Therrien when these incidents did not occur. [16] Mr. Therrien acknowledged touching both victims at various locations, quite few times. On cross-examination he agreed it was over long period of time, five to six years. He acknowledged that it would happen more than once day, whenever he saw the girls. He could not say the girls were wrong. [17] From all of the evidence, I am satisfied beyond a reasonable doubt that both victims were sexually assaulted by Mr. Therrien on numerous occasions. I am satisfied that these sexual assaults were a common occurrence on every occasion Mr. Therrien was in the company of the girls. [18] Therefore, it is clear that Mr. Therrien’s conduct was not an isolated incident or even restricted to few occasions. find that the sexual assaults occurred on every occasion the victims were in his presence at Willow Bunch, Regina and Winnipeg. [19] The Crown asks the Court to find that Mr. Therrien touched the victims under their clothing. [20] Nicole Eger testified about an incident in Winnipeg when Mr. Therrien touched her inside her underpants. She was downstairs playing games on the computer when Mr. Therrien put his hands inside her pants and rubbed her clitoris. Nicole testified that Mr. Therrien took her hand as they walked to the couch where he again touched her under her underpants. She was ten or eleven years old at the time. [21] Nicole testified that at each incident Mr. Therrien would start with putting quick hand down her pants. She recalled being at Mr. Therrien’s home in the bedroom behind the kitchen. Again, Mr. Therrien put his hand underneath her underwear. Nicole testified that it was always the same, whether she was with Mr. Therrien in the cellar, in the bedroom or wherever. [22] Leanne Eger testified that Mr. Therrien had direct contact with her. She provided details of several incidents when this occurred. She recalled an incident in Regina when she was four years old. She was wearing coral nightgown with panties underneath. He touched her over top of her panties and then had direct skin on skin contact with her vagina. [23] Leanne testified that most of the incidents occurred at Mr. Therrien’s home in Willow Bunch. She recalled time in the laundry area, which was somewhat private, when Mr. Therrien was “....kissing in her mouth”, hand up her shirt fondling her breasts, underneath her underwear. Mr. Therrien would make her touch, skin on skin, his erect penis. [24] Leanne recalled another time was at the golf course where Mr. Therrien grabbed her breasts and slid his hands down the front of her pants. [25] Leanne estimated that approximately half of the incidents involved direct skin on skin contact with Mr. Therrien. [26] Mr. Therrien testified, admitting that he touched both of the victims quite few times but always over top of their clothes. He denied or did not recall the specific incidents that Nicole and Leanne described. He testified he “...never did it as she described”, the golf course incident never happened; he never exposed his penis. [27] On cross-examination, when pressed by the Crown, he says the direct skin contact might have happened. When confronted with the witness statement he provided to Cst. Rick Hutchinson of the Coronach RCMP (voluntarily admitted), he acknowledged he replied that he had touched the girls under their clothing. [28] He agreed he touched Leanne’s breasts under her clothes. [29] Again, when questioned further by the Crown, Mr. Therrien admitted he could not remember all the times. He has no specific recollection and can’t say for sure he did not touch the girls directly. Again, in his statement to the police he said: “yeah, touched her bottom once her vagina”. [30] Mr. Therrien cannot remember. accept this is due to the passage of time, the fact he was the abuser and consciously or unconsciously he wants to put these incidents out of his mind. It is safe to say that is normal human reaction. [31] When cross-examined as to specific incidents and his statement, Mr. Therrien admitted that he could not recall exactly, that it might have happened or it did happen. Mr. Therrien suggested that his statement might be different from his testimony as he has had more time to think about things. In my view, that is exactly what has happened. Over time Mr. Therrien has softened the more disgusting aspects of his behaviour. [32] Finally, in my view, it just does not make any sense that there would not be fondling or touching directly on the victims’ skin given the number of incidents and that he slipped his hand under their top or down their pants. [33] Again, I am satisfied beyond a reasonable doubt that Mr. Therrien touched Nicole and Leanne under their clothing on many occasions. The victims have testified and provided some detail with respect to these instances. The victims testified where the incidents occurred and that he felt them directly on their breasts, and vagina and bottoms. [34] The final issue for the Court to determine is whether there was digital penetration. Wikipedia defines digital penetration as vaginal fingering of the vagina and may involve one or more fingers. [35] Again, review of the evidence is that both victims testified on at least one occasion this occurred. Leanne testified that on the incident that will refer to as the basement/cold room incident, Mr. Therrien, under her pants, put his hand inside her underwear and put his fingers inside her. Again, in the laundry room area, she testified he had his finger inside her. Leanne described that Mr. Therrien would undo his pants, expose his penis, have her touch his penis, all the while breathing heavy. Then he would finish, do up his clothes and walk away. She also described that he would kiss her hard on the mouth trying to get his tongue in her mouth. [36] On cross-examination she acknowledged that she had never consulted medical doctor as result of Mr. Therrien’s actions. However, she recalled being taken to doctor in Regina when she was four or five years old. She thought it was something to do with her vagina. Leanne also recalled laying on the bathroom floor and her mother putting cornstarch on her vaginal area. [37] Nicole Eger testified as to an incident in the Therrien home in Willow Bunch, in bedroom behind the kitchen. This victim stated that Mr. Therrien had his hands underneath her underwear, rubbing her. He also put his finger inside her. This occurred many times. It was always the same. Mr. Therrien would put his hands inside her clothes, rub and touch her breasts, and rub his erect penis against her. [38] On cross-examination she stated that Mr. Therrien would rub her fast and hard and repeated that he was inside her. When she had her first sexual experience, she recalled this clearly. [39] Mr. Therrien denied that digital penetration occurred. He also denied that he ever had an erection or that he exposed his penis. However, in cross-examination, as with the other factors, Mr. Therrien really is unable to recall with any certainty many details. He agreed that the voluntary statement he gave to the police shortly after his arrest is accurate. In that statement he admitted to touching Leanne underneath her clothes. [40] The Crown submits the Court must consider the issue of reliability of the witnesses. Both witnesses testified and provided sufficient detail such as location, what they were wearing, or what was going on. There were inconsistencies which is not surprising given the age difference of the victims and their many years of silence. As well, it shows the victims did not get together to ensure every detail was the same. [41] The Crown argues that the victims do, however, tell the same story, which is repeated sexual abuse by Mr. Therrien which occurred over number of years. The Crown notes that both victims testified that there was digital penetration. [42] The Crown concluded by noting that Mr. Therrien denied the egregious portions of his conduct and only admitted the bare facts to justify the guilty pleas. The Crown submits that Mr. Therrien is not being forthright and in the final analysis the Court ought not to believe his denials. [43] The Defence submits there is insufficient evidence of digital penetration. The Defence argues that there was only general evidence given by the victims describing Mr. Therrien rubbing their vagina area. For example, Nicole testified that Mr. Therrien slid his hand down her pants and rubbed her. As well, Leanne also testified in general terms and her evidence does not coincide with Nicole’s. [44] There is no medical evidence and no corroboration of digital penetration. [45] Mr. Therrien testified that it did not happen. Given the generalities of the victims’ evidence on this aspect, it is argued that Mr. Therrien cannot be expected to recall specific event. [46] There is no evidence this happened frequently. The Defence argues that due to the fraility of memory the Court has to be careful not to make assumptions and fill in the gaps. In conclusion, the Defence submits the Court should have reasonable doubt concerning digital penetration. [47] The determination of credibility does not involve the Court opting for one version of events over another. The Crown must prove its evidence is credible. There is no onus on the accused. Even if the Court prefers the evidence of the Crown, it still must consider whether the evidence of the accused raises reasonable doubt. [48] The test is well known and set out by the Court of Appeal in R. v. McKenzie (1996), 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.). [49] After considering all of the evidence and applying the McKenzie analysis, do not find the accused credible. Even accounting for the passage of time, and the difficulties with recalling events of many years ago, do not accept the accused’s denial that there was no digital penetration. The evidence of the victims is sufficiently credible to prove beyond a reasonable doubt that digital penetration occurred. accept that both victims described only couple of incidents when this occurred. However, the test is not the number of times digital penetration occurred. The victims have no doubt recalled the incidents of digital penetration as this more severe abuse would stand out from the other occasions. [50] In my view, this finding is supported by the rest of the evidence. Each victim described in general terms the abuse inflicted by Mr. Therrien and then provided examples and details of specific occasions. The evidence establishes that the abuse occurred over several years, many times. For example, Nicole could not say the frequency of the above, but does not recall it ever not happening. Leanne provided more detailed descriptions of various incidents of abuse. She testified that the abuse occurred more than once per visit and that the accused took every chance he could to get more. [51] I conclude that the accused got bolder as time passed and took more liberties and chances. Mr. Therrien may well have started by feeling and rubbing the victims over their clothing when they were sitting on his knee. As the victims got little older and Mr. Therrien little bolder, he went to feeling and rubbing the girls under their clothing, and kissing them hard on the mouth. His penis became erect. He breathed heavily. He tried to dry hump Nicole. He was always calm and in control. Mr. Therrien admitted on cross-examination that it is possible he was sexually aroused. [52] believe Mr. Therrien, when he testified that he cannot remember these incidents. He may well have repressed these incidents. Considering the allegations now, as man in his eighties, he of course cannot or will not believe he would have done such things. [53] In summary, find that the Crown has proved beyond reasonable doubt the three facts that find to be aggravating factors pursuant to section 724(3)(e) of the Criminal Code. Dated at Moose Jaw, Saskatchewan, this 30th day of March, 2012. M.T. Gordon,","The accused plead guilty to two counts of sexual assault. The victims were his granddaughters. The assaults were alleged to have occurred between 1983 and 1991. A sentencing hearing was held because there was significant disagreement on the facts. The Crown alleged three aggravating factors: 1) that the sexual assaults were numerous, 2) that the accused touched the victims directly on their skin and not just on their clothing and 3) that there was digital penetration by the accused on both victims. HELD: At a sentencing hearing, the Crown must prove aggravating factors beyond a reasonable doubt. The Court held that the two victims were sexually assaulted by the accused on numerous occasions over a period of a number of years. The Court was satisfied these sexual assaults were a common occurrence on every occasion that the accused was in the company of his granddaughters. The Court found that the accused touched the victims under their clothing on numerous occasions and that there were a couple of occasions that the accused digitally penetrated each victim. Finally, the Court concluded that the accused got bolder over time and took more liberties and chances with his victims.",9_2012skpc49.txt
326,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 265 Date: 2013 07 05 Docket: Q.B.G. No. 707 of 2013 Judicial Centre: Saskatoon IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: GLENKO PROPERTIES INC., and DIANE WYSHYNSKI, and THE OFFICE OF RESIDENTIAL TENANCIES, Counsel: Davin R. Burlingham for the appellant No one appearing for the respondents JUDGMENT LAING J. July 5, 2013 [1] The appellant landlord appeals a decision of the Residential Tenancies hearing officer on the following two questions of law: a) That the Hearing Officer misinterpreted ss. 19(1)(g)(iii) of The Residential Tenancies Act, 2006 in finding that the tenancy agreement was not fixed-term agreement, and thereby committed an error of law; and b) That the Hearing Officer misinterpreted ss. 8(2) of The Residential Tenancies Act, 2006 in finding that the landlord’s efforts at mitigation were not reasonable within the meaning of that section and that the landlord is legally disentitled to compensation pursuant to s. 8(1) of the Act, and thereby committed an error of law. [2] The tenancy commenced on April 1, 2012. The term of the lease stated as follows: TERM For term of 12 months from the 1st day of April, 2012 to the 31st day of March, 2013 and continuing thereafter from month to month until the tenancy is terminated by one of the parties giving to the other party notice in writing not later than the last day of any month of the tenancy, to be effective on the last day of the immediately following month of the tenancy. The respondent vacated the unit on or about October 30, 2012. The monthly rental was $2100. [3] The respondent gave written notice to landlord to terminate the tenancy dated September 18, 2012 in which she advised she was terminating the tenancy and giving up possession of the premises on the 31st of October, 2012. The appellant did not attempt to rent the premises following his receipt of the notice, because he had decided to furnish the unit prior to re-renting it. He testified he spent approximately $15,000 on furnishing the unit and made the decision to do so because in his opinion it would be quicker and easier to re-rent to better clients. The appellant did not advertise the unit for rent until the middle of January 2013 and obtained new tenant effective February 1, 2013 at $2500 per month, which was $400 more than when the apartment was unfurnished. [4] Section of The Residential Tenancies Act, 2006, S.S. 2006, c. R‑22.0001 (the Act), which addresses tenant’s liability for not complying with the Act or tenancy agreement states: 8(1) If landlord or tenant does not comply with this Act, the regulations or their tenancy agreement, the non-complying landlord or tenant must compensate the other for any damage or loss, including loss of rent paid or payable, that results. (2) landlord or tenant who claims compensation for any damage or loss that results from the other’s non-compliance with this Act, the regulations or their tenancy agreement must do whatever is reasonable to minimize the damage or loss. THE HEARING OFFICER DECISION [5] With respect to whether the tenancy was for fixed term the hearing officer referred to s. 21 of the Act which states: 21 If written tenancy agreement does not contain the information mentioned in subclause 19(1)(g)(iii), the tenancy is deemed to be periodic tenancy on monthly basis. Section 19(1)(g)(iii) states: 19(1) written tenancy agreement must comply with any prescribed requirements and must contain all of the following: (g) the agreed provisions respecting the following: ... (iii) if the tenancy is fixed term tenancy, the date the tenancy ends. Section 2(d) defines “fixed term tenancy”. It states: (d) “fixed term tenancy” means tenancy under tenancy agreement that specifies the date on which the tenancy ends. The hearing officer concluded that because the term of the lease provided for month‑to‑month tenancy following the end date of the tenancy described in the term clause there was no certain date in the tenancy agreement for the end of the tenancy and it was not therefore fixed term tenancy, but month-to-month tenancy for which proper one month’s notice had been provided by the respondent. [6] The hearing officer in the alternative stated that if she was in error in this respect and it was fixed term tenancy, the fact the appellant did not advertise the premises for lease after receiving the September 18, 2012 notice from the respondent meant he did not within the meaning of s. 8(2) “do whatever is reasonable to minimize the damage or loss”. For this reason the appellant failed to prove any entitlement to rent revenue loss. She held that if the landlord had commenced advertising the unit immediately after receiving the notice the unit may have been re-rented for November 1, 2012. She also noted the fact that it was rented at $400 per month more commencing February 1, 2013. She concluded the appellant had failed to prove entitlement to any rent revenue loss, and the application was dismissed. [7] With respect to whether or not the lease was for fixed term, the wording of the lease indicates it is for fixed term of one year from April 1, 2012 to March 31, 2013, and may thereafter be continued on month‑to‑month basis. The fact that an indefinite term follows the fixed term of one year does not detract from the fact that the respondent was committed to the fixed term of one year at the time she gave notice to terminate the lease on September 18, 2012. similar wording to this lease was upheld as fixed term lease in the case of Morguard Residential Inc. v. Adams, 2005 ABPC 271 (CanLII), [2005] A.J. No. 1259 (QL), at para. 4, where it was noted: “The aforesaid Residential Tenancy Agreement or lease was fixed‑term tenancy agreement which terminated April 30, 2004. It also provided that month‑to‑month tenancy could follow the primary term. ...”. I conclude the hearing officer erred in law in holding that the fact a month‑to‑month tenancy would follow the primary fixed term negated a fixed term. The one-month notice provision referred to in the term of the lease was applicable only if the tenancy was extended to a month-to-month tenancy following the end of the fixed term. [8] With respect to the hearing officer’s conclusion the appellant had failed to mitigate its loss with respect to the respondent’s early notice of termination of the tenancy, counsel for the appellant relies on the case of 10113307 Saskatchewan Ltd. v. Mattison, 2012 SKQB 22 (CanLII), [2012] S.J. No. 22 (QL), decision in which Gerein J. noted, “A failure to minimize damage or loss does not eliminate an entitlement to compensation; rather it mandates an adjustment in the amount of compensation. This is the effect of s. 8(2) of the Act.” The remarks of Gerein J. were appropriate on the facts of the case he was considering, where the hearing officer concluded the fact the tenant had not complained to the landlord about the noise was failure to mitigate disentitling him to any compensation. The facts in this matter are quite different. The question in this matter for the hearing officer, was would there be any loss if the appellant had done what was reasonable to minimize his loss. [9] At common law, the onus is on defendant to establish failure to mitigate on the part of the plaintiff. Vide: Nikulak v. Finnson, [1991] S.J. No. 491 (QL) (C.A.). The effect of s. 8(2) of the Act quoted above, reverses this onus and places the same on the person claiming the loss. It was therefore the appellant who had the obligation to show that he did whatever was reasonable to minimize his loss. [10] While the appellant gave evidence before the hearing officer that September was difficult time to rent the premise in question, the fact is he did not try, because he had decided it would be better going forward to have furnished premise for rent. This decision was made not with respect to the possibilities of renting an unfurnished premises as of September 19, 2012, but was a macro decision based on his business going forward. None of this macro decision can be attributed to the respondent. To put the matter in perspective, if the appellant had not chosen to make the change to furnished premises and had simply waited until November to start advertising the suite for rent, and thereafter had found tenant in the next six weeks, there would be no difficulty in concluding he had failed to take reasonable steps to minimize his loss. The fact that he chose to convert the premise to furnished one does not alter the foregoing reasoning. In the absence of any evidence the hearing officer was not in position to guess whether the premises would have been leased within six weeks or not, and if so whether it would have been leased at the same rent. [11] The appeal is allowed with respect to the fixed term issue, and dismissed with respect to the claim for loss. [12] Judgment accordingly.","The appellant landlord appealed a decision of the Residential Tenancies hearing officer. The tenancy in question had commenced in April 2012. On September 18, the tenant had given six weeks' notice of her intention to terminate the tenancy. The term of the lease stated that it was for a term of 12 months (April 2012 to March 2013) and continuing thereafter from month to month until one of the parties gave one month's notice. The appellant did not try to rent the premises following receipt of the notice because he had decided to furnish the unit prior to re-renting. He spent $15,000 doing so and advertised the unit in mid-January, increasing the rent by $400 and obtained a new tenant as at February 1. Although it is not stated what relief the landlord sought from the Office of Residential Tenancies, the hearing officer stated in the decision that the lease was a month-to-month tenancy. The appellant argued that the hearing officer made errors in law in that he 1) misinterpreted s. 19(1)(g)(iii) of the Residential Tenancies Act, 2006 in making that finding, as the lease was for a fixed term; and 2) misinterpreted s. 8(2) of the Act in finding that the landlord's efforts at mitigation were not reasonable within the meaning of the section and the landlord was legally disentitled by s. 8(1) of the Act. HELD: The Court held that the hearing officer had erred in law in finding that the lease was for a month-to-month tenancy. The one-month-notice provision only applied if the tenancy was extended beyond the fixed term. The appeal was allowed on this issue. The Court found that the decision of the landlord to furnish the premises was a business decision, and the result of this decision could not be attributed to the tenant. The Court dismissed the appellant's claim for loss.",b_2013skqb265.txt
327,"J. Q.B. A.D. 1992 No. 04166 J.C.P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CHERYL MAE KATCHUR (previously Cheryl Mae Oystryk) APPLICANT (RESPONDENT) and LESLIE MICHAEL OYSTRYK RESPONDENT (PETITIONER) G. Chovin for the applicant A. Logue for the respondent FIAT NOBLE J. May 28, 1998 [1] The parties were married May 5, 1973 and separated January 4, 1992. The husband petitioned for divorce and other corollary relief on June 19, 1992. The wife (applicant herein) counter-petitioned on March 22, 1993 and included in her claim ""lump sum and periodic spousal support"". [2] The matter proceeded from there and it is apparent that the parties negotiated settlement of all of the outstanding issues in the dispute including divorce, custody of the children, division of matrimonial property, and spousal support payable by the husband to the applicant. AnInterspousal Contract dated July 21, 1993 was entered into bythe parties which includes the following provisions relevantto this dispute: 1. In the preamble the agreement reads: D. The Parties to this agreement wish to divide their marital property and settle the outstanding issues between them. 2. Paragraph 12 which reads: The Husband, Leslie Oystryk, shall pay tothe Wife, Cheryl Oystryk, periodic spousalsupport in the sum of $350.00 per monthcommencing on the 1st day of January, 1993and continuing on the 1st day of each andevery month thereafter until the 31st dayof December, 1995 inclusive. In the event of the death of the Leslie Oystryk prior to conclusion of his obligation to pay spousal support herein, then the Parties hereby agree that the said obligation shall be chargeable to and payable by the estate of Leslie Oystryk. [3] The parties both acknowledged that they were aware of the nature and effect of the Interspousal Contract and each had independent legal advice before the agreement was signed. [4] Subsequently, the clause with respect to spousal support above noted was incorporated, apparently by consent of the parties, into the judgment of the Court which was dated November 26, 1993. [5] It appears from the material that the husband paid the applicant the periodical spousal support of $350.00 month up to and including the 31st day of December, 1995 in accordance with the terms of the order. [6] On March 13, 1998, the applicant launched thisapplication to vary the order for spousal maintenance ofNovember 26, 1993 on the grounds that there has been a changein circumstances in that the applicant's annual income iscurrently less than half of what it was at the time the orderwas made and that the applicant's economic hardship can betraced to the breakdown of her marriage to the respondent dueprimarily to the fact that his job required him to move fromplace to place during the years of the marriage and thisprevented her from entering the work place or furthering hereducation to upgrade her skills and confined her to the roleof homemaker and/or housewife during that period of time. In addition, although the applicant following the separation did obtain some training as special care aide she alleges that she is unable to maintain her income at the level it was when the separation took place. By her own affidavit, she swears that her income from 1994 through 1998 (up to March) has been as follows: 1994 $20,662.00 1995 $26,847.37 1996 $11,329.04 1997 8,425.59 1998 (to the month of March) $223.10 [7] The applicant further contends that she has done everything possible to become self-sufficient and that her inability to successfully increase her income has caused her to become overstressed and ill. She relates this back to the circumstances of her marriage before the separation saying that because of the nature of the marriage she was in effect unable to acquire the skills that she would need once the marriage broke up. [8] It appears that the two children of the marriage are now of an age where they are not factor that the Court need take into account with respect to the applicant's motion. [9] The application is brought pursuant to section 17(4) and s. 17(7)(c)(d). Essentially these sections authorize the Court to vary an order of spousal support where there has been change in the condition, means, needs or other circumstances of one of the spouses. Subsection suggests that the Court should take into account any economic disadvantages to one of the spouses arising from the marriage or its breakdown, that it should relieve any economic hardship of spouse arising from the breakdown of the marriage and so far as is practicable promote the economic self-sufficiency of each spouse within reasonable period of time. [10] Against that background the applicant seeks an order not only restoring the spousal support previously ordered but increasing it over and above the $350.00 per month originally prescribed and making such support payable until further order of the court. [11] Counsel for the respondent husband takes the position that the applicant has failed to prove that she is no longer self-sufficient particularly since there is no independent evidence (such as medical evidence) which would suggest that she cannot pursue employment or career that would earn her living due to illness whether it be physical or stress related. In addition, counsel points out that in December of 1995, the applicant brought similar variation application (which is confirmed by reading of the file) even though she earned in excess of $25,000.00 in 1995. That application does not appear to have proceeded but the arguments in the material filed are much the same as those that are before the Court on this occasion and include the contention of the applicant that she found it necessary to work long hours and adopt heavy work schedule from which she became stressed and ill, suffered from exhaustion and anxiety. The file indicates that that application was struck from the list in February of 1996. The applicant has waited two years before pursuing the variation of the spousal maintenance order [12] was referred to the case of Gessner v. Gessner (1996), 1996 CanLII 6848 (SK QB), 150 Sask. R. 298 (Sask. Q.B.) decision of my colleague Gunn J., where the minutes of settlement relating to the divorce proceedings contained provision that the husband would pay to the wife $550.00 per month spousal maintenance on an open-ended basis. The first application to vary made by the husband came before Malone J. who concluded that the agreement was meant to be open ended and he refused to vary it. Subsequent applications were made to Grotsky J. and McLellan J. but the result was the same. In the application to McLellan J. he relied on the decision in Masters v. Masters (1990), 1990 CanLII 7490 (SK QB), 82 Sask. R. 190 (Sask. Q.B.) (also decision of Malone J.) in which the order of the Court called upon the petitioner husband to pay to the respondent the sum of $700.00 per month until the respondent should remarry or die whichever shall first occur or until further order. This order reflected the wording of separation agreement the parties had entered into before the matter got before the Court. Malone J. held that when the husband applied to vary the order that the application must be dismissed because as he said, quoting from the decision in Gessner, supra, at page 302: ""Furthermore, the agreement was worded in such manner that it is obvious it was intended by the parties to be final settlement of their obligations to each other. The decision of Malone J. in Masters went all the way to the Supreme Court of Canada where it was upheld. [13] It is apparent from Gunn J.'s review of the Masters decision that Malone J. was influenced by the so called trilogy of cases in the Supreme Court of Canada (Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801; 1987 CanLII 57 (SCC), [1987] W.W.R. 481; 1987 CanLII 57 (SCC), 76 N.R. 81; 1987 CanLII 57 (SCC), R.F.L. (3d) 225; 1987 CanLII 57 (SCC), 38 D.L.R. (4th) 641; Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857; 1987 CanLII 58 (SCC), 77 N.R. 1; 1987 CanLII 58 (SCC), 22 O.A.C. 1; R.F.L. (3d) 304; 1987 CanLII 58 (SCC), 38 D.L.R. (4th) 699; Caron v. Caron, [1987] S.C.R. 892; [1987] W.W.R. 552; 1987 CanLII 59 (SCC), 75 N.R. 36; 1987 CanLII 59 (SCC), Y.R. 246; R.F.L. (3d) 274; 1987 CanLII 59 (SCC), 38 D.L.R. (4th) 735) and in particular the comments of the Court in Pelech: ""It seems to me that where the parties have negotiated their own agreement, freely and on the advice of independent counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. This should be the overriding policy consideration."" [14] In light of the position that Malone J. took in the Masters case Gunn J. found that the agreement in the Gessner case was intended to be final and since there was no unforseen or radical change in the circumstances that had been demonstrated the application was dismissed. [15] While this application is by the wife to restore previously expired spousal maintenance order and differs from most of the cases where variation is usually applied for by the husband as opposed to the female spouse it seems to me the principles are just as applicable albeit in the reverse situation. While it is true the income of the applicant herehas dropped I agree with the respondent's counsel that she hasnot established that she cannot be self-sufficient. During at least some of the years since the separation she has been very self-sufficient and if she has fallen upon hard days of late, while it is regrettable, the terms of the agreement which limited the payment of spousal support to the 31st of December, 1995 appear applicable. There is no suggestion thatthe agreement was unfairly negotiated or that she wassubjected to undue influence or pressure in any way beforesigning the agreement and was, in fact, advised by counselbefore doing so. I am left with the conclusion that theagreement with respect to spousal maintenance was intended tobe final. In light of those conclusions, I have noalternative but to dismiss the application. [16] The respondent is seeking costs of the application but in my view while the applicant has failed to make out her case this is not an instance where costs should be granted and decline to do so. Each party shall pay their own costs.","FIAT. The parties were married in 1973 and separated in 1992. The husband petitioned for divorce and corollary relief in 1992. The wife counter-petitioned in 1993 claiming a 'lump sum and periodic spousal support'. An interspousal contract entered into 1993 provided for periodic monthly spousal support of $350. Both acknowledged that they were aware of the nature and effect of the agreement and each had independent legal advice before signing. The husband paid periodic spousal support until December 1995. The applicant sought to vary the 1993 order on the grounds there had been a change in circumstances in that her annual income was currently less than half of what it had been at the time the order was made and her economic hardship could be traced to the breakdown of her marriage primarily because his job had required them to move from place to place during the marriage. HELD: The application was dismissed. 1)The agreement was intended to be final. While the applicant's income had dropped she had not established that she could not be self-sufficient. The terms of the agreement which limited the payment of spousal support to December 1995 appeared to be applicable. The applicant had previously brought a similar variation application even though she earned in excess of $25,000 in 1995. 2)There was no suggestion that the agreement was unfairly negotiated or that she was subjected to undue influence or pressure in any way prior to signing and she had been advised by counsel.  3)Costs sought by the respondent were refused.",c_1998canlii13623.txt
328,"E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 266 Date: 2007 07 26 Docket: F.L.D. 129/2007 Judicial Centre: Saskatoon, Family Law Division BETWEEN: DENISE RAE FRANSON (formerly TRIBBLE) and BRUCE HARRY FRANSON Counsel: Ms. Carla L. Haaf for the petitioner Ms. Tiffany M. Paulsen for the respondent FIAT WILSON J. July 26, 2007 [1] This matter was before me in Chambers on July 20, 2007. On that date made number of orders regarding child support as well as an order regarding summer access. The remaining issues to be resolved are as follows: 1) What, if any, should the father pay to the mother for extraordinary expenses relating to tutoring for one or both children? 2) What, if any, retroactive support should be ordered in this matter? 3) What, if any, interim spousal support should be payable by the father to the mother? [2] Dealing firstly with the issue of extraordinary expenses for education, the mother’s evidence discloses that both children, but more particularly Kody, born October 6, 1998, is in need of specialized educational program given his current problems at school. The mother proposes that Kody be registered in the Sylvan Learning Centre, during the summer of 2007, due to Kody’s educational difficulties. According to the mother, Kody is eight years old and is just now learning his alphabet and his numbers. [3] The mother has provided the court with letter from Pat Nostbakken, learning disabilities classroom teacher at the Westmount Community School where Kody attends. According to Ms. Nostbakken, Kody is currently in the half-time program for students with learning disabilities. Ms. Nostbakken states that it would be very beneficial for Kody to participate in some form of summer camp or learning support program, over the summer, to help him with his present learning difficulties. [4] The father is not opposed to Kody receiving some additional educational assistance. However, the father believes the Sylvan Learning Centre program is too expensive and says that he wishes to speak to teachers in the fall about other programming. The father did not provide any evidence, at the hearing of this matter, regarding any possible educational programs for the summer of 2007. It is clear the father has taken no steps to research alternatives to the Sylvan program. [5] agree with the father that the Sylvan Learning Centre fees are significant. As set out in the mother’s affidavit, for one child, for 12 week program, with initial testing and consultation, the cost would be $1,261.00. For both children, the total cost would be $2,522.00. The mother proposes that Zachary also attend Sylvan Learning Centre because he has ADHD. In my view, the mother has not filed enough evidence regarding Zachary’s circumstances. cannot, thus, make decision regarding any extraordinary expenses for Zachary’s special needs. [6] The mother’s claim for the father’s assistance is made pursuant to s. 7(1)(d) of the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”). Section 7(1)(d) reads as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; [7] I am satisfied on the evidence before me that the expense in question is a necessary expense for Kody. The real issue is whether the father has the means to contribute to this expense given the child support I have ordered him to pay pursuant to my fiat of July 20, 2007. [8] My July 20, 2007 fiat includes monthly s. payment for the four children in the sum of $843.00 per month, as well as contribution by the father for the children’s daycare costs. have ordered the father to pay an amount equal to 71% of the net after tax childcare cost. [9] In order to determine whether the father has the means to contribute to the Sylvan Learning Centre fees have estimated that the mother’s childcare costs will be the approximate sum of $650.00 per month, although it is clear on the evidence that her costs may reach figure of $1,950.00 per month. [10] Utilizing the Childview program, with childcare costs of $7,800.00 per year, Sylvan Learning Centre costs for Kody for the summer of 2007 at $1,261.00, income for the father at $37,900.00 and the mother at $13,085.00, it appears that the father’s share of both childcare costs and Sylvan Learning Centre costs would equate to the sum of $472.00 per month. If the father paid this amount, in addition to his s. child support amount, the father’s total child support payment would be $1,315.00 per month, until Sylvan fees are paid in full. The father would have net monthly cash flow remaining in the sum of $1,066.00 while the mother, and four children, would have available cash flow in the sum of $2,700.00 per month. [11] Although I recognize the father will be stretched, I believe that the Sylvan Learning Centre expenses are necessary and reasonable. The father shall pay to the mother his proportionate share of the Sylvan Learning Centre expense being an amount equal to 71% of the total cost. [12] Turning now to the question of retroactive child support, the mother seeks retroactive support for the time period from February, 2006 to February, 2007. Both the mother and father acknowledge that the father did commence making reasonable child support payments as of February, 2007. [13] am not, on this interim application, prepared to make retroactive child support order. There is significant conflict on the evidence regarding the payment of loans by the father during this period of time and the issue of whether or not the mother refused to accept payments being offered by the father. If the mother wishes to pursue the issue of retroactive support she may do so when and if this matter proceeds further to pre-trial. [14] Finally, the mother requests interim spousal support. Although it is clear from the evidence that the mother has an entitlement to interim spousal support, the father does not have the ability to pay. am directed by s. 15.3(1) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) to give priority to child support in determining child and spousal support applications. In the matter before me, find am unable to make spousal support order because the father does not have necessary resources to pay monthly sum to the mother once he has satisfied his child support obligations. My determination of this matter, at this interim stage, should not affect the right of the mother to pursue spousal support in the future. [15] Although the father has been voluntarily providing child support to the mother, at least since February, 2007, the mother was required to bring this motion to obtain an appropriate sharing of s. expenses. The father shall pay costs in the sum of $400.00 forthwith. J. D.L. Wilson","FIAT: The primary issue is whether the father should pay for tutoring expenses. HELD: 1) The father is not opposed to Kody receiving some additional educational assistance. However, he believes that the Sylvan Learning Center is too expensive. The father did not present any evidence with regard to other possible educational programs for the summer. It is clear that he has not researched alternatives to the Sylvan program. On the evidence, the expense is necessary for Kody. The real issue is whether the father has the means to contribute given his child support payments. If the father pays $472 per month for the Sylvan program, in addition to his s. 3 child support payments, the father's total child support payable would be $1,315 per month. The father would have a net monthly cash flow in the sum of $1,066 while the mother with four children would have available cash flow in the sum of $2,700 per month. Although the father will be stretched, the Sylvan program is necessary and reasonable.  2) Although the mother has an entitlement to spousal support, the father does not have the ability to pay. 3) The father shall pay costs in the sum of $400.",d_2007skqb266.txt
329,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 269 Date: 2007 07 26 Docket: Q.B.G. No. 902 of 2007 Judicial Centre: Regina BETWEEN: GREGORY METZ and TIMOTHY GENI APPLICANTS (Plaintiffs) and THE BOARD OF EDUCATION OF THE PRAIRIE VALLEY SCHOOL DIVISION NO. 208 OF SASKATCHEWAN RESPONDENT (Defendant) Counsel: Aaron A. Fox, Q.C., and Barbara C. Mysko for the applicants James R. McLellan for the respondent FIAT LAING C.J.Q.B. July 26, 2007 [1] The applicants, who are residents of Wilcox, Saskatchewan, and have children attending Wilcox School, seek an interlocutory mandatory injunction preventing and restraining the respondent Board of Education (the Board) from acting upon a resolution passed by the Board on May 7, 2007 that the Wilcox Public School be closed effective August 15, 2007. The grounds put forward for the application may be summarized as: (1) The Board provided inadequate notice of an election for the Wilcox school community council, and it is alleged the election is nullity. As result there was no council for the Board to consult with as required by The Education Act, 1995, S.S. 1995, c. E-0.2 (the Act) upon decision being made to close the school. (2) The Board failed to comply with the requirements of procedural fairness in the manner in which they proceeded to pass the resolution closing the school. THE LEGISLATIVE BACKGROUND TO SCHOOL CLOSURES [2] Section 87(1)(x) of the Act grants the power to board of education to close schools upon compliance with the requirements thereafter set out in the section. Section 87(1)(x) states: 87(1) Subject to the powers of the conseil scolaire with respect to the division scolaire francophone and minority language instruction programs, board of education may: (x) with respect to any school situated in school district: (i) close the school or discontinue one or more grades or years taught in the school where the board of education has, prior to the effective date of the closure or discontinuance of grades or years, obtained the consent of the school community council to close the school or discontinue one or more grades or years taught in the school, as the case may be; or (ii) subject to subsection (2), close the school or discontinue one or more grades or years taught in the school where the board of education has: (A) at least 10 days prior to the day on which the meeting mentioned in paragraph (B) is held, given notice of the meeting mentioned in paragraph (B) in accordance with subsection (3); (B) at least three months prior to the notification mentioned in paragraph (C), convened meeting of the person is eligible to vote in an election of the school community council for the school to advise them that the closure of the school or the discontinuance of one or more grades or years taught in the school is being considered by the board of education; (C) at least three months before the effective date of the closure of the school or discontinuance of one or more grades or years taught in the school, as the case may be, by registered mail, notified the school community council of the school that will be closed or in which the teaching of one or more grades or years will be discontinued, of: (I) the board of education’s decision to close the school; or (II) the board of education’s decision to discontinue one or more grades or years taught in the school; and (D) following the notification mentioned in paragraph (C) and prior to the effective date of the closure of the school or discontinuance of one or more grades or years taught in the school, as the case may be, consulted with the school community council of the school that will be closed or in which the teaching of one or more grades or years will be discontinued with respect to educational services for pupils who will be affected by the closure or discontinuance of one or more grades or years, as the case may be. 87(2) board of education may close school or discontinue one or more grades or years taught in school, pursuant to subclause (1)(x)(ii), only where the effective date of the closure or discontinuance occurs during the period: (a) commencing at the end of the day determined by the board of education, pursuant to section 163, as the last school day in one school year; and (b) ending on the day prior to the day determined by the board of education, pursuant to section 163, as the first school day in the school year following the school year mentioned in clause (a). (3) The board of education, with respect to notice mentioned in paragraph (1)(x)(ii)(A), shall: (a) publish the notice in at least one issue of newspaper published and circulating in the attendance area or in any city, town or village in which the school that is to be the subject of the meeting is situated; and (b) post the notice: (i) in at least five widely-separated, conspicuous locations in the school district or attendance area in which the school that is to be the subject of the meeting is situated; and (ii) in the building in which the headquarters of the school division are located. [3] Section 140.1 of the Act states that there shall be school community council established for each school. The section states: 140.1(1) Subject to subsections (2) to (4), every board of education shall establish school community council for each school in its division. [4] Section 3.5(3) of The Education Regulations, 1986, R.R.S. c. E-0.1 Reg (the Regulations) require at least four weeks’ notice to the public before public meeting is held to elect members of school community council. Regulation 3.5(3), (4) and (5) state as follows: (3) returning officer shall provide at least four weeks’ notice to the public before public meeting is held to elect members of school community council. (4) The notice shall state: (a) the purpose of the meeting; (b) the attendance area or the geographic area for the school community council; (c) where any policies or procedures developed by the board of education respecting the election of the school community council can be reviewed; and (d) the date, time and location of the meeting. (5) The notice shall be advertised or posted in such way that it would be reasonably expected to reach the parents or guardians of pupils for that school and community members. THE POSITION OF THE PARTIES [5] The applicants do not take issue with the formalities for the meetings required by s. 87(1)(x), supra. They do take issue with the election which took place on January 18, 2006 to elect members to the school community council. The notice for election of new school community council was posted on December 22, 2006 for an election to take place on January 18, 2007. It is agreed that by reason of s. 3.5(3) of the Regulations, supra, and the operation of s. 24(3) of The Interpretation Act, 1995, S.S. 1995, c. I-11.2 which states that when the words “at least” are used, time should be calculated with the first and last days being excluded, the notice period for the election was only 26 days as opposed to the 28 days represented by four weeks’ notice. It is the applicants’ position that the election which took place on January 18 is nullity because of the short notice, and therefore there was no legal school community council for the Board to consult with once the decision was made to close the Wilcox School; ergo the Board has not, and cannot, meet the statutory requirements for school closure this year because the Act states school may only be closed in the months of July and August. [6] The applicants also submit the Board failed to comply with the common law duty of fairness in passing its resolution for school closure. They allege the breach of the duty arises by reason of: (1) The Board failed to provide the applicants with complete and accurate information relating to the Board’s decision to close the school. This allegation relates to the fact the Board held in camera meetings and did not disclose what it discussed in the meetings. The evidence is the Board does not keep minutes of in camera meetings. (2) The Board ignored, or did not directly respond to all of the submissions made by the persons in opposition to the school closure. (3) The Board refused to publicly disclose the reasons for the decision to close Wilcox School, or alternatively, disclosed either inadequate or inaccurate reasons. [7] The position of the respondent Board is that the short notice for election of the school community council is irrelevant to the issue of whether or not the closure resolution was properly enacted, and in any event deny that the short notice renders the election of the school community council nullity. The Board also takes issue with the allegation of lack of procedural fairness. Without conceding that the Act requires procedural fairness over and above the requirements set out in the Act, its position is that the Board presented plenty of opportunity to receive feedback from the community, and that it met the test of procedural fairness for the type of process the Act required the Board to undertake. BACKGROUND FACTS [8] The respondent, The Board of Education of the Prairie Valley School Division No. 208 of Saskatchewan, was created effective January 1, 2006 as result of process established by the Government of Saskatchewan to restructure school divisions. Through the process, 79 school divisions became 28 school divisions. The respondent School Division was created by combining seven complete school divisions and one partial school division into one. In 2006 the school division had 46 schools within its boundaries. [9] In 2006 the respondent Board of Education prepared document entitled “viable schools policy”. The policy in its introduction states the need to maintain viable schools and classrooms within the context of the entire school division, and goes on to say in order to ensure quality education for its students the Board of Education may, from time to time, have to consider discontinuing one or more grades offered in school or closing schools. The introduction to the policy concludes: Therefore, the Board of Education of the Prairie Valley School Division will adhere to the following guidelines of operation with regard to determining the possible Review Status of school. These guidelines will provide process and procedure so that school review can be clearly predicted and people will have some assurance as to how and when decision process might be initiated. The balance of the policy sets out the criteria to be considered. The viable schools policy was adopted by the Board at its meeting on November 16, 2006, and was thereafter posted on its website. [10] Also on November 16, 2006, the Board served notice it was placing 11 schools under review, including the Wilcox School. The Board passed the following motion on this date: That, due to the projected low student enrolment, budgetary constraints and the capacity to meet program needs within existing financial constraints, this Board consider the discontinuance of one or more grades from up to and including the complete closure of Wilcox School with an effective date not earlier than July 2, 2007. [11] From the outset the community of Wilcox was concerned about the possible closure of its school. Following the School Board resolution to place 11 schools under review, Wilcox residents organized “continuing quality education committee”. Mr. Metz in his affidavit stated the purpose of the committee was to lobby the Board to consider alternatives to closing the school. At the time of its formation, the committee had 11 regular members. [12] On January 18, 2007 meeting took place at Wilcox Public School for the purpose of electing school community council. The estimate is that 80 persons were in attendance at the meeting. Nine community members were acclaimed as members of the school community council. No issue was taken with respect to the 26-day notice as opposed to the statutory 28-day notice prior to this application. [13] In press release dated January 3, 2007 and in newspaper notice to electors of the same date, electors at all 11 of the schools under review status were invited to public consultation meeting, each on different date. The notice stated the public meeting for Wilcox School would take place on January 23, 2007. [14] At the meeting on January 23, 2007, approximately 150 persons were in attendance. The meeting lasted for five hours from 7:00 p.m. to midnight. At this meeting, the superintendent of human resources for the Board read certain information and provided PowerPoint presentation which addressed the criteria set out in the viable schools policy, and facts and statistics relevant to Wilcox School, and to the Prairie School Division as whole. It was disclosed by the Board that if the school was closed students from Wilcox would attend Milestone School which is approximately 22 kilometres from Wilcox, and as most of the students of Wilcox School resided in Wilcox the bus ride would be approximately 25 minutes each way each day. The continuing quality education committee presented six-page paper of professional quality which under 10 different headings outlined why the Wilcox School should remain open. There were many verbal presentations and questions asked in the course of the meeting. The thrust of many of the presentations, including the written presentation by the Wilcox quality education committee was that the enrolment at the school which numbered approximately 57 children in 2006 had been static for number of years, disagreed with the Board on the disadvantages of multigrading which involves one teacher teaching more than one grade, and took issue with certain projections offered by the Board as to future enrolments and costs of operating Wilcox school in the future. [15] Following the meeting of January 23, 2007, numerous written submissions were submitted in favour of keeping Wilcox School open which are estimated to be in excess of two hundred. The Board and its personnel received telephone calls. At Board meeting on March 3, 2007, the continuing quality education committee made further presentation to the Board. [16] In March 2007 petition was circulated to keep the Wilcox School open. In excess of 300 signatures appear on the petition. On March 27, 2007 demonstration was held at the Legislative Building in the City of Regina to protest school closures in rural Saskatchewan. Wilcox residents were represented at this event. [17] On May 7, 2007, the Board met in camera for period of time, and thereafter in public meeting passed motion to close the Wilcox Public School effective August 15, 2007, and passed similar motions to close the other 10 schools that had been subject to review. In the affidavit material filed, the director of education indicated the Board in its private meeting took into account all the representations that had been made at the Board meetings, the written submissions it had received from the continuing quality education for Wilcox Public School Committee, as well as the material that the Board had generated, including the viable schools policy, the materials presented to the community members at the January 23 meeting, as well as certain research materials generated by Board personnel. [18] The Board evidence indicates that the 3.5 teacher positions assigned to Wilcox public school during the past school year have been reassigned to other schools in the division. THE CRITERIA FOR THE ISSUANCE OF MANDATORY INTERLOCUTORY INJUNCTION [19] The three criteria which must be assessed when considering whether or not mandatory injunction should issue, are the merits of the case, whether or not irreparable harm to the applicant will occur if the injunction is not issued, and even if it will, whether the issuance of an injunction would create greater harm to the respondent. [20] The applicants submit that with respect to the first criteria, being the merits of the case, all that is required is that there be serious question to be tried. In this respect they rely on RJR-Macdonald Inc. v. Canada (Attorney-General) (1994), 1994 CanLII 117 (SCC), 111 D.L.R. (4th) 385 (S.C.C.) where the court stated at page 402: What then are the indicators of “a serious question to be tried”? There are no specific requirements which must be met in order to satisfy this test. The threshold is low one. However it is worth noting that the Supreme Court of Canada in this case noted three qualifications to the foregoing general proposition. The first is when the result of the interlocutory motion would in effect amount to final determination of the action. The second is when the question of constitutionality (this was Charter case) presents itself as simply question of law alone. The third possible qualification the court did not endorse, but acknowledged at page 404 as follows: The suggestion has been made in the private law context that third exception to the American Cyanamid “serious question to be tried” standard should be recognized in cases where the factual record is largely settled prior to the application being made. Thus, in Dialadex Communications Inc. v. Crammond (1987), 1987 CanLII 4419 (ON SC), 34 D.L.R. (4th) 392 at p. 396, 14 C.P.R. (3d) 145 at p. 149, 57 O.R. (2d) 746 (H.C.J.), it was held that: Where the facts are not substantially in dispute, the plaintiffs must be able to establish strong prima facie case and must show that they will suffer irreparable harm if the injunction is not granted. If there are facts in dispute, lesser standard must be met. In that case, the plaintiffs must show that their case is not frivolous one and there is substantial question to be tried, and that, on the balance of convenience, an injunction should be granted. To the extent that this exception exists at all, is should not be applied in Charter cases. Even if the facts upon which the Charter breach is alleged are not in dispute, all of the evidence upon which the s. issue must be decided may not be before the motions court. [21] As noted by Robert J. Sharpe in his text, Injunctions and Specific Performance (looseleaf edition), at paras. 2.250 and 2.260: The difficulty of assessing the strength of case varies widely according to the circumstances. In virtually all cases, the court should exercise caution in the weight it attaches to its preliminary assessment, but this is to say no more than that the risk to the defendant must be carefully weighed. Where the chance of accurate prediction is higher, as for example, where the result turns on the construction of statute or the legal consequence of admitted facts, the court hearing the preliminary application is in very good position to predict the result. Moreover, procedural differences in Canada, notably the more frequent resort to the right to cross-examine on affidavits, will often place Canadian judge on firmer ground, even when dealing with conflicting evidence. [22] In Saskatchewan, this Court has stated in number of cases where mandatory injunction is being sought against public authority plaintiffs must establish on the material filed that they have strong prima facie case on the merits of the claim raised (Vide: Young v. Board of Education of Hudson Bay School Division No. 52, 2001 SKQB 376 (CanLII), 210 Sask. R. 145 (Q.B.), per Smith J. (as she then was) at para. 5, and Wellington No. 97 (Rural Municipality) v. Ligtermoet, 2002 SKQB 474 (CanLII), [2003] W.W.R. 339, 228 Sask. R. 135 (Q.B.), at para. 11, reversed on other grounds at 2003 SKCA 48 (CanLII), 232 Sask. R. 207 (C.A.)). The rationale for requiring the higher standard when seeking an injunction against public authority is that the public authority represents the public interest, and should not be temporarily prevented from acting unless there is real merit to the claim being advanced. Usually in such cases the facts are not much in dispute. In those cases which present complicated factual or legal issues which do not lend themselves to preliminary assessment, lower standard of “serious question to be tried” may be appropriate. [23] On the facts in this matter there is not much dispute on the facts. The question with respect to each of the grounds advanced by the applicants is whether on the facts the law would be likely to provide remedy. This is something the court is in position to analyse. The injunction is sought against public authority. conclude the appropriate standard to apply to the merits of the applicants’ case is the standard of strong prima facie case. (1) The Notice Argument [24] With respect to the applicants’ submission on the fact that the notice for election of the school community council was two days short of the 28 days required, a number of considerations arise. The applicants’ position is that because Regulation 3.5(3) utilizes the word “shall”, the 28-day notice requirement is mandatory, and therefore the election is nullity. However, with respect, finding of nullity does not necessarily follow when there is breach of statutory formality. As noted in the text, by Pierre-André Côté, The Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Les Éditions Yvon Blais, 1991), at page 203: The presumption that provision is imperative, deduced from use of the word “shall”, is of prima facie nature and can be set aside. Secondly, the mere fact that provision is imperative rather than directory does not necessarily entail nullity for non-compliance; such sanction is applied only where its respect is compulsory or under pain of being declared void. “Shall” by itself is insufficient to suggest the legislator intended nullity as consequence of non-respect. The Quebec Interpretation Act (s. 51) and its federal counterpart (s. 28) “... clearly distinguish between that which is permissive and that which is not, but they do not decree the nullity of that which has not been done (according to the law)”. (emphasis added) and at page 204: In the absence of express provisions, several elements may indicate whether the legislator intended nullity as the consequence of an error in form. On this question “it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at.” Three factors appear to influence the courts: the prejudice caused by non-compliance with formalities, the potential consequences of court finding of nullity, and the subject matter of the legislation. None of the foregoing three factors suggest finding of nullity would be appropriate with respect to the election that took place for school council members on January 18, 2007. [25] On the facts in this matter, the Act does not state non-compliance with formalities will result in nullity. There was no prejudice caused by the non-compliance with the 28-day notice period before the election of members to the school community council. The 26-day notice resulted in an attendance of approximately 80 persons, and in the end result nine persons were acclaimed. There is no evidence or suggestion a different school council would have been elected if the extra two days notice had been provided. There is no suggestion the existing school community council is incapable of fulfilling its role under the statute. No one complained at the time about lack of notice, and the fact the matter is raised at this time amounts to collateral attack on that election. [26] In this case the potential consequences of court finding of nullity militate against such finding. The relevance of the school community council in the closure of school arises after the decision to close the school has been made. To nullify all of the process and consultation that went into the school closure on this collateral ground would have serious consequences of causing at least one-year postponement in the efficiencies or improvements in student education which motivated the decision, and result in loss of time, energy, and money expended in the process. [27] In this case the subject matter of the legislation is to ensure that no school closure will take place without appropriate consultation. The Board acts on behalf of the whole of the respondent school division, and the decision taken is made bearing in mind the interests of the whole school division. In this case the consultation required by the Act (subject to the argument on procedural fairness) was complied with. [28] further factor is that the breach of notice in the regulations which is admitted does not automatically lead to the issuance of mandatory injunction. This point was made forcefully by Gerwing J.A. in Dysart School District v. Cupar School Division No. 28 (1996), 1996 CanLII 5042 (SK CA), 148 Sask. R. 41 (C.A.), at para. 9, where she stated: To assume, as this analysis does, that statutory breach automatically gives rise to an injunction is to dilute the safeguards surrounding the grant of such an extraordinary remedy by superior court. (See for example: Bean on Injunctions (2nd Ed.) p. and, with respect to mandatory injunctions p. 16 et seq.) Similarly the United States Supreme Court after an extremely useful and detailed historical analysis of the equitable history of the remedy of injunction concludes that it is never merely matter of course. And notes: “The grant of jurisdiction to insure compliance with statute hardly suggests an absolute duty to do so under any and all circumstances, and federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of the law.” [Weinberger v. Romero-Barcelo, 102 S.Ct. 1798 (1982) at 5,6] The respondent suggested that every breach did indeed automatically require an injunction and cited in support Costello and Dickhoff v. Calgary (City), 1983 CanLII 137 (SCC), [1983] S.C.R. 14. While that case does require on its circumstances strict compliance with expropriation laws it is important to note that the court held at p. 22 [S.C.R.]: “The courts do not always insist on rigid adherence to statutory requirements. ... “Thus, the courts have hesitated to impose high standard on municipal councils in the matter of exactitude of procedure and have been slow to interfere when their enactments are clearly within the ambit of their authority and the objection is only as to the procedure followed. This does not mean to say that in every case non-compliance with statutory formality will be overlooked. Where it is provided that power is to be exercised in certain manner or after prescribed condition has been complied with, it becomes necessary to determine whether any of these limitations on the grant of authority may be disregarded without entailing nullification of an act done otherwise than in the prescribed manner. If, in order to carry out the essential purpose of the legislature, strict compliance with the statutory provisions appears to be condition precedent to the exercise of the power, nonobservance thereof is fatal to the validity of the bylaw. On the other hand, where the community will suffer if the act is rendered nugatory and the essential purpose of the enactment will not be furthered by insistence upon an exact compliance, deviation therefrom may be excused.” The foregoing remarks were made by Gerwing J.A. in case in which permanent mandatory injunction had been granted because statutory notice in s. 92 of the then Education Act was one day late. [29] With respect to the foregoing ground, a preliminary review of the facts and law do not suggest a strong prima facie case. (2) Procedural Fairness [30] With respect to the allegation of lack of procedural fairness Arbour J. in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] S.C.R. 249 at para. 75 stated: The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority [authorities omitted] The nature and extent of this duty, in turn, “is eminently variable and its content is to be decided in the specific context of each case” (as per L’Heureux-Dubé J. in Baker, supra, at para. 21). At para. 22 of Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] S.C.R. 817, L’Heureux-Dubé J. stated: Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in given set of circumstances. emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [31] Justice L’Heureux-Dubé went on in the Baker decision to outline at paras. 23-28 the several factors that have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in any given matter. She identified five factors while noting the list was not exhaustive. They are: (a) the nature of the decision and the decision-making process employed; (b) the nature of the statutory scheme; (c) the importance of the decision to the individual affected; (d) the legitimate expectations of the party challenging the decision, and (e) the nature of the deference accorded to the body. [32] Counsel for the respondent suggested that perhaps the applicants did not have the status to invoke the rules of procedural fairness because he contended it was more of an individual right than group right, and secondly they were not persons directly affected by the Board’s decision; only their children were. This position is not accepted. Children do not have the legal capacity to act independently in legal matters and the consultation required by the act is with the electors qualified to vote for school community councils, which is statutory recognition the applicants are an interested party. This application is brought by two individuals who identified their interest, which is an interest recognized by the Act, and is not collateral one. The rule of procedural fairness applies to the decision-making process of the Board in this matter, and this Court has previously held this to be the case. Vide: Young v. Hudson Bay, supra, at para. 19. [33] However review of the five factors identified by L’Heureux-Dubé J., supra, do not favour an overly stringent application of the procedural fairness rules in this matter. [34] Factor is the nature of the decision. As noted per L’Heureux-Dubé J. at para. 23 of the Baker decision, supra, the closer the administrative process is to the judicial process the more the governing principle should be imported into the realm of administrative decision-making. The procedure set out in the Act for the closure of schools is not akin to judicial process, but rather is policy process the Act entrusts to the Board who have the whole school division to take into account in arriving at decision on whether to close school. [35] Factor is the nature of the statutory scheme. The Act specifies the consultative approach that is required of Boards. In this matter the evidence is the Board honoured the process and publicized widely the criteria it would take into account, and received back both orally and in writing from the electors of Wilcox their points of view on the criteria. There is no suggestion in the material the applicants were denied in any respect the right to make their views known. The evidence is the Board considered all of such views in arriving at its decision. [36] The third factor is the importance of the decision to the individual affected. While the Board’s decision in this matter is no doubt important to the applicants, their lives will not be affected to the degree of person whose livelihood or reputation is at stake. [37] The fourth factor is the legitimate expectations of the person challenging the decision. L’Heureux-Dubé J. at para. 26 of the Baker decision, supra, points out that legitimate expectation is part of the doctrine of fairness, and does not create substantive rights. In this case the applicants were advised by the Act itself, and by the Board, of the procedure to be followed as the Board proceeded to consider school closures for Wilcox and other schools. There is no evidence the applicants had any legitimate expectation for any different procedure. There is no evidence that the Board made any representations with respect to procedure that were not observed by it, or that the Board went back on any substantive promises it made with respect to the procedure it would adopt. The applicants allege the Board did not answer certain questions raised at the public meeting which it said it would answer on its website. The applicants do not identify what questions were not answered. The evidence of the respondent in the affidavit of Jan Chell is that answers to all of the questions raised during meetings in the communities affected by the school review process which were capable of being answered were posted on the Board’s website. The applicants take issue with the fact the Board held in camera meetings to arrive at its decision, but there is no evidence it ever held out that it would decide in any other manner. The applicants are concerned that the Board did not disclose what transpired in its in camera meetings, but again the evidence is that no minutes are kept of such meetings. The applicants say they expected there would be individual reasoning offered by the Board for each school closure which was not forthcoming. However, it is difficult to conclude that the applicants do not know the reason why their school was closed. The viable schools policy set out the criteria for school closures or grade closures, and the concerned quality education committee for Wilcox responded in writing with respect to these criteria. The resolution passed at the Board’s November 16, 2006 meeting identified why the schools were under review. The applicants are rightly disappointed that their views did not prevail, but it is difficult to conclude they do not know the reason why their school was closed. [38] The fifth factor is the nature of the deference accorded to the body. As L’Heureux-Dubé J. in the Baker decision, supra, noted at para. 27: Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] S.C.R. 282, per Gonthier J. The applicants are disappointed that the procedures adopted by the Board did not allow for individual response to every point raised by those persons in opposition to the closure of the school. McLachlin J. as she then was in Re Hardy and Minister of Education (1985), 1985 CanLII 250 (BC SC), 22 D.L.R. (4th) 394 at page 400 quoted with approval Lord Pearson in Pearlberg v. Varty (Inspector of Taxes),[1972] W.L.R. 534 (H.L.) at page 547, wherein he stated: Fairness, however, does not necessarily require plurality of hearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed. Taking into account the mandate of the Board under the Act with respect to school closures, the consultation process adopted by the Board, and the manner in which it conducted the consultation meetings does not lead to the conclusion the procedure was unfair. DECISION [39] Both with respect to the statutory breach of the 28-day notice period for the meeting to elect school community council members, and the ground of lack of procedural fairness, I am not able to say the applicants have the better argument with respect to either ground. I conclude the applicants have failed to meet the standard of a strong prima facie case. [40] With respect to the criteria of irreparable harm, the harm alleged by the applicants is largely qualitative and subjective one. The applicants are concerned that their children will suffer reduction in the quality of their life by reason of having to spend approximately 40-50 minutes day on the bus, as opposed to walking back and forth to school, and they will not be able to come home for lunch. They allege there will be less opportunity for their children to enjoy extracurricular activities both in Wilcox because the school will be closed, and at Milestone because they will have to be available to take the bus ride home. These concerns have to be looked at in the context that busing is fact of life in rural Saskatchewan. The evidence is that Wilcox has produced many quality students and persons of accomplishment, but so has the rest of rural Saskatchewan. Concerns that change in school or busing will cause stress or psychological damage to the children is speculative at this point. There is no reason to believe that the special relationship between the residents of the Town of Wilcox and Notre Dame College which is referred to in the affidavits will be adversely affected. There is no obvious reason why it should be. am not able to conclude the applicants or their children will suffer irreparable harm if mandatory interlocutory injunction is not issued. [41] The application is dismissed. In the circumstances there will be no order as to costs.","FIAT: The applicants are residents of Wilcox and have children attending the Wilcox school. They seek an interlocutory mandatory injunction preventing the respondent Board of Education from acting upon a resolution that the Wilcox school be closed. HELD: Both with respect to the statutory breach of the 28-day notice period for the meeting to elect school community council members, and the ground of lack of procedural fairness, the Court concluded the applicants failed to meet the standard of a strong prima facie case. 1) A review of the facts and the law suggest that the applicant's submission on the fact that the notice for election of the school community council was 2 days short of the 28 days required by The Education Act does not meet the test of a strong prima facie case. The Act does not state that non-compliance with formalities will result in a nullity. There was no prejudice caused by the non-compliance with the 28-day notice period before the election of members to the school community council. There is no evidence or suggestion that a different school council would have been elected if the extra 2 days notice had been provided. No one complained at the time and the fact the matter is raised now amounts to a collateral attack on that election. The potential consequences of a Court finding of a nullity militate against such a finding. The relevance of the school community council in the closure of a school arises after the decision to close the school has been made. To nullify all of the process and consultation that went into the school closure on this collateral ground would have serious consequences of causing at least one year delay in the efficiencies or improvements in student education which motivated the decision, and result in a loss of time, energy and money expended in the process. 2) Taking into account the mandate of the Board under the Act with respect to school closures, the consultation process adopted by the Board, and the manner in which it conducted the consultation meetings does not lead to the conclusion the procedure was unfair. A review of the five factors identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) does not favour an overly stringent application of the procedural fairness rules in this matter.",c_2007skqb269.txt
330,"SCC/jmj 2003 SKQB 248 Q.B.C.A. A.D. 2002 No. 13 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SIDNEY K. KULRICH and HER MAJESTY THE QUEEN RESPONDENT Daryl E. Labach for the appellant Perry G. Polishchuk for the respondent JUDGMENT KOCH J. May 28, 2003 [1] This is an appeal from conviction on February 6, 2002 by judge of the Provincial Court sitting at Watrous, Saskatchewan and from the sentence imposed on March 11, 2002 on the charge: That Sidney K. Kulrich on or about the 27th day of April 2000 at Colonsay did steal an electricity generator, the property of Sask Power Corporation of value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code. [2] Although not referred to in the notice of appeal, counsel argued on the appeal the question of the jurisdiction of the learned Provincial Court judge to proceed with the trial. On charge of theft where the value of what is alleged to have been stolen does not exceed $5,000, the Crown may in accordance with s. 334 of the Code proceed on indictment or by way of summary conviction. Should the Crown elect to proceed by indictment, the Provincial Court has absolute jurisdiction pursuant to s. 553 of the Code. The substantive distinction in the proceedings is therefore limited to the range of sentencing upon conviction. On what appears to have been the first appearance of the appellant in the Provincial Court on October 15, 2001, the Court was advised that the Crown was proceeding by summary conviction. On subsequent appearance, the appellant entered plea of not guilty and the case was set over for trial. [3] The information was sworn September 27, 2001 alleging the offence to have occurred on April 27, 2000. In these circumstances the time limitation on summary conviction proceedings imposed by s. 786(2) becomes relevant. That subsection provides as follows: 786(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree. [4] was urged by counsel for the appellant that in the absence of evidence to the contrary, it should be inferred that the accused acquiesced in or implicitly consented to the Crown proceeding by way of summary conviction. Crown counsel does not agree with that position. However both parties prefer that the appeal from the learned Provincial Court judge be heard in this Court now, or alternatively in the Court of Appeal, based on the present trial record, in preference to having the proceedings in the Provincial Court declared null. [5] Section 786(2) contemplates in my view an explicit agreement rather than some form of implied consent arising from the failure of the appellant or his counsel to address the issue. note various precedent cases in which proceedings in circumstances such as the present have been held to be null. R. v. Phelps (1993), 1993 CanLII 14657 (ON CA), 79 C.C.C. (3d) 550 (Ont. C.A.); R. v. Kalkhorany (1994), 1994 CanLII 687 (ON CA), 17 O.R. (3d) 783 (C.A.); Re Parkin and the Queen (1986), 1986 CanLII 4640 (ON CA), 28 C.C.C. (3d) 252 (Ont. C.A.). In such circumstances the procedural irregularity is not subject to the provisions of s. 822(7) pertaining to defect to which the accused has not objected. [6] Both sides wish the Court to adjudicate on the merits of the conviction based on grounds applicable in summary conviction appeal. To facilitate that, counsel expressly agreed at the hearing, pursuant to s. 786(2), that the case at trial proceeded by way of summary conviction by agreement. For the purposes of the appeal they invite me to treat the agreement as having been in place when the trial commenced. Accordingly, have determined that the proceedings before the learned trial judge are not in violation of s. 786(2) and that the learned trial judge had jurisdiction to enter the conviction and sentence. Therefore, this Court has jurisdiction to entertain the appeal. [7]            The appellant contends that the appeal should be allowed and the conviction set aside on the following grounds: 1.         the verdict is unreasonable and not supported by the evidence; 2.         the learned trial judge failed to properly apply the doctrine of recent possession; 3.         the learned trial judge did not provide adequate reasons for his decision to convict the appellant. [8] As one of the grounds of the appeal is that the verdict is unreasonable and not supported by the evidence, it is necessary to briefly renew the evidence. It is not necessary to include all of the details. 1. Honda portable electricity generator owned by SaskPower was found to be missing from SaskPower storage shed at Colonsay, Saskatchewan about the end of April 2000. On August 23, 2001, the same generator, identified by its serial number, was recovered from fishing camp at Robert’s Lake in Northern Saskatchewan. 2. The appellant, as an employee of SaskPower, had access to the storage shed. He was one of the six owners of the fishing camp. Two of the other owners were also SaskPower employees. 3. All SaskPower storage sheds at the time could be accessed by single key, so all SaskPower operating employees would have been able to enter the shed at Colonsay. The appellant however was somewhat more closely connected. The appellant was one of two workers at Watrous. There was another crew of two workers at Colonsay. To some extent they shared work. Both crews were supervised by district operator Gordon Buckingham who worked out of Colonsay. 4. careful examination of the premises yielded no evidence of forced entry into the shed. Notably it was on the same site as the Colonsay R.C.M.P. detachment. Also notable is that there were various valuable and portable items such as chainsaws in the shed, but the only thing missing other than the generator was an electrical cord especially made to use with the generator. similar cord was missing from the Watrous storage shed at about the same time but later it was found to be back in its place. 5. In earlier times there was lower capacity generator at the fishing camp, but in about 1998, water system was installed and larger generator was required. Sometime in 1999 the replacement generator failed and the small generator was back in use. Therefore, by early 2000 the camp owners wanted viable higher capacity generator for the coming season. 6. It happened that SaskPower had been purchasing generators of that kind late in 1999 in anticipation of potential emergency needs arising out of the Y2K concern just ahead. SaskPower paid $2,486.00 for the generator in question. 7. About the end of March 2000, the appellant mentioned to others of the camp owners that he had found suitable generator which had come from the Winnipeg flood which he could buy for $800.00. Thereafter he advised them of such transaction and received cheque from the account of the camp owners for $800.00 made out to cash. 8. About the end of May one of the other owners picked up generator at the garage at the appellant’s residence at Watrous. It was in wooden crate that appeared to have been made especially for the generator and there was some kind of paper tag on the crate. Some owners including the appellant took that generator to Robert’s Lake. When it was put into service the generator did not work properly. It was put back in the crate and the appellant took it back to Watrous for repairs. 9. There is conflicting evidence as to whether one person could lift the generator onto truck without assistance or whether it was too heavy and awkward. This is not in my view critical issue. 10. On September 10 and 11, 2001, person identifying himself as Sid Kulrich telephoned the R.C.M.P. at Southend near Robert’s Lake to report the theft of generator from the fishing camp. The caller said he could not provide the serial number due to computer problem, that he had purchased the generator in January 2000 either in Saskatoon or in Melfort, and that its value was $2,700.00. [9] Counsel for the appellant contends that the conviction was not supported by the evidence and could not be supported without application of the doctrine of recent possession. He contends that the doctrine of recent possession should not enter into the Court’s consideration because of lack of proof that the generator that was in the appellant’s garage in Watrous in June 2000 was the same generator that was seized at Robert’s Lake more than year later. [10] Crown counsel concedes that to sustain the conviction, the doctrine of recent possession must be relied upon. He contends however that the evidence that the generator at the appellant’s garage in Watrous was the same one that was taken from the SaskPower storage shed and recovered from the fishing camp at Robert’s Lake is ample if not indeed overwhelming. [11] The learned trial judge found as fact, as he was entitled to do, that the generator that was at the garage at the accused’s residence was the one that was stolen from the shed at Colonsay. However that funding does not stand on its own. It is part of strong circumstantial case against the appellant. [12] As understand the law, the unexplained recent possession of stolen goods standing alone will permit but not necessarily require the inference that the possessor was the person who stole the goods. If recent possession is the only evidence connecting the accused with the theft, then elements of recent possession must be strictly proven. However, if recent possession is not relied upon as the sole evidence connecting the accused with the crime, then possession should be considered as circumstantial evidence and weighed accordingly. See R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] [13] In rendering his decision, the learned trial judge summarized the facts in considerable detail and concluded his decision with the final paragraph as follows [at p. 474]: Taking all the evidence into account, find that the generator that the partners saw in May at the home of the accused in Watrous, Saskatchewan, was the generator that had earlier been stolen in Colonsay, Saskatchewan. There’s therefore an inference of guilt that the accused, in fact, stole the generator. Taking into account all of the evidence, the only reasonable inference that can draw is that the stolen that the accused stole the generator. am therefore compelled to conclude and am satisfied beyond any reasonable doubt that the accused committed the offence alleged and find him guilty as charged. [14]                       There is nothing in the decision that convinces me that the learned trial judge in any way misconstrued or misapplied the doctrine of recent possession. [15]                       Neither is there in my view any indication that the learned trial judge in weighing the evidence committed any palpable and manifest or overriding error. [16] In this regard should note that if understand correctly, counsel for the appellant argues that the appellant bought generator from someone for $800.00. There is no evidence of that except the general unsworn statements of the appellant to others of the camp owners. His statements were entirely self-serving and quite correctly accorded no weight by the learned trial judge. [17] Counsel for the appellant contends that the learned trial judge failed to provide adequate reasons for convicting the appellant. He relies on the case of R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869, decision of the Court delivered by Binnie J. In that case the Supreme Court provides detailed guidelines for the triers of fact in criminal cases. The Court imposes on trial judges an obligation to provide reasoned judgments comprehensible to the accused, counsel, the appellate courts and the public. In the Sheppard case the trial judge’s reasons were limited to the following: Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, find the defendant guilty as charged. [18] In the present case, the learned trial judge before stating his conclusion quoted above commented on the facts and arguments in detail in dissertation which occupied approximately six pages of the trial transcript. In the Sheppard case, Binnie J. at para. 25 states: If deficiencies in the reasons do not, in particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That is exactly the situation in the present case. [19]                 The appeal from conviction is dismissed. [20] The appellant also appeals the sentence which was nine-month suspended sentence with victim surcharge of $100.00. He requests that this sentence be set aside and conditional or absolute discharge granted. [21] Unfortunately, there is no transcript of the sentencing proceedings except for couple of lines and without being able to examine the sentencing judge’s reasons it is as contended on behalf of the appellant impossible to determine whether the sentencing judge applied correct principles or whether the sentence is excessive or otherwise unreasonable or demonstrably unfit. Counsel for the appellant submits that the sentence should be vacated and sentence imposed in this Court in lieu of it. It appears that in these unique circumstances, s. 687 of the Criminal Code permits that to be done. [22] At the hearing of the appeal, counsel indicated that an effort would be made to locate tape recording of the sentencing proceedings and arrange for it to be transcribed. If that has occurred, invite counsel to arrange for the Court to be reconvened for oral argument on the sentence appeal. If the transcript is not available, invite counsel to arrange for the Court to be reconvened to address submissions as to the applicability of s. 687 and to argue whether it is appropriate to vacate the sentence and embark on the sentencing process afresh.","An appeal from conviction and sentence for theft of an electricity generator valued at under $5,000 contrary to Criminal Code s.334(b). On the first appearance in October, 2001, the Crown advised it would proceed by summary conviction. The appellant pled not guilty. Defence argued that, in the absence of evidence to the contrary, it should be inferred that the accused acquiesced or implicitly consented to proceeding by way of summary conviction. Counsel agreed pursuant to s.786(2) to proceed by way of summary conviction and invited the court to treat the agreement as having been in place when the trial began. Both preferred the appeal to be heard in this Court or in the Court of Appeal. The appellant sought to have the conviction set aside on the grounds the verdict was unreasonable and not supported by the evidence; the trial judge failed to properly apply the doctrine of recent possession and did not provide adequate reasons for his decision. HELD: The conviction appeal was dismissed.  1)This Court had jurisdiction to entertain the appeal. The Provincial Court judge had jurisdiction as the trial proceedings did not violate s.786(2). 2)The trial judge did not misconstrue nor misapplied the doctrine of recent possession. The unexplained recent possession of stolen goods standing alone will permit, but not necessarily require, an inference that the possessor was the person who stole the goods. The elements of recent possession must be strictly proven if possession is the only evidence connecting the accused with the theft. Otherwise possession should be considered circumstantial evidence and weighed accordingly. There was no palpable and manifest or overriding error made by the trial judge in weighing the evidence.  3)Criminal Code s.687 appears to permit this Court to set aside the 9 month suspended sentence and to grant a conditional or absolute discharge. However, there was no transcript of the sentencing proceedings except for a few lines. If the transcript is not available, this Court may be reconvened to address the applicability of s.687 and whether it would be appropriate to vacate the sentence and embark on the sentencing process afresh.",2003skqb248.txt
331,"J. DIV A.D. 1997 236 J.C.Y. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: STELLA HLYNSKI and MICHAEL HLYNSKI B. Banilevic for the petitioner S. Stradecki for the respondent FIAT PRITCHARD J. July 8, 1998 [1] On May 12, 1998 delivered judgment under which exclusive possession and ownership of the matrimonial home was granted to the petitioner, Stella Hlynski (""Stella""). At trial, both Stella and her husband Michael Hlynski (""Mike"") had been seeking an order for exclusive possession of the matrimonial home. At the time of the trial, they were leading separate lives but under one roof as neither of them would vacate the home. [2] Stella is 71 years of age and Mike is 77 years of age. Given Mike's age, the court did not want to specify date that he had to move from the matrimonial home. It was hoped that satisfactory alternate arrangements could be made within reasonable time to avoid the potential of Mike having to make interim move to satisfy the time limit in court order when his preferred accommodations might be available shortly thereafter. Because of this concern, the final paragraph of the judgment reads: ""[18] The parties have been married for over 25 years and are now senior citizens. Although this Court has ordered that Stella is entitled to exclusive possession of the matrimonial home, it is expected that counsel will assist the parties in determining reasonable time period for Mike to move from the matrimonial home. If necessary, the court is prepared to provide directions in that regard."" [3] By letter dated June 9, 1998, Stella's counsel advised the court that Mike would not leave the matrimonial home and that further directions from the court would be required. The matter was then scheduled to be heard on June 19, 1998. In the meantime, notice of appeal of the judgment was filed on behalf of Mike. [4] On June 19, 1998, counsel for Mike took the position that with the filing the notice of appeal, this court became functus. Counsel for Stella did not agree and argued that notwithstanding the filing of the notice of appeal, this court could still proceed to provide the requested directions. [5] The issue resolves around the interpretation ofsubclauses (1) and (4) of Rule 15 of the Court of AppealRules which provide: ""15(1) Unless otherwise ordered by the judge appealed from or by judge, the service and filing of notice of appeal does not stay the execution of judgment or an order awarding mandamus, an injunction, alimony, or maintenance for spouse, child or dependant adult. Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (Forms 5a and 5b) 15(4) Where judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed, unless otherwise ordered."" [6] Stella argues that the order for exclusive possession is an injunction and therefore it is not stayed by the notice of appeal. Alternatively, she argues that the giving of directions by this court as contemplated by the judgment itself would not constitute the taking of any ""execution of the judgment"" or the taking of any ""further proceedings in the action"" and therefore, would not contravene Rule 15. [7] No caselaw in support of the position of eitherparty could be found. The issue as to whether Rule 15 operates to stay an order of exclusive possession was raised in Young v. Young, 1986 CanLII 3216 (SK CA), R.F.L. (3d) 314, but not decided. also find it unnecessary to decide the issue. Although it may be arguable that in the circumstances of this case the giving of the requested directions would not contravene Rule 15, am no longer prepared to do so. The matter is nowbefore the Court of Appeal and unless directed by it to thecontrary, all applications herein should be made to thatCourt. J.L.G PRITCHARD, J.",FIAT. Exclusive possesson and ownership of the matrimonial home was granted to the petitioner in May 1998. At the time of the trial they were leading separate lives but under one roof as neither would vacate the home. Given the respondent's age (77) the court did not want to specify a date that he had to move from the home. He had not left the home and the matter was scheduled to be heard June19/98. In the meantime a notice of appeal of the judgment was filed on behalf of the respondent. At issue was the interpretation of ss(1) and (4) of s15 of the Court of Appeal Rules. The respondent's counsel took the position that with the filing of the notice of appeal this court became functus. The petitioner argued the order for exclusive possession is an injunction and therefore is not stayed by the notice of appeal. Alternatively that the giving of directions as contemplated by the judgment itself would not constitute the taking of any 'execution of the judgment' or the taking of any 'further proceedings in the action' and therefore would not contravene Rule 15. HELD: All applications should be made to the Court of Appeal as the matter was now before that court. No case law could be found in support of either party. It was unnecessary to decide the issue as to whether Rule 15 operates to stay an order of exclusive possession.,1998canlii13585.txt
332,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: MacQuarrie’s Drugs Ltd. v. Salsman, 2012 NSSC 139 Date: 20120329 Docket: HfxLC388365 Registry: Halifax Between: MacQuarrie’s Drugs Limited v. Larry Salsman Respondent LIBRARY HEADING Judge: The Honourable Justice Frank Edwards Heard: March 29, 2012 in Halifax, Nova Scotia Written Release of April 5, 2012 Oral Decision: Subject: Motion for Interim Injunction CPR 41.04 Facts: 30 year employee of Plaintiff Company resigns to open competing business. Had signed non compete agreement in 1995. Issue: Whether interim injunction should issue in advance of motion for interlocutory injunction. Result: Interim injunction issued. Factors in CPR 41.04 satisfied. In particular, an urgency existed in the sense that the Defendant had resigned only weeks earlier and the opening of the new business was imminent. The Plaintiff had not had sufficient time to gather all the evidence it wished to present on an interlocutory motion. Considering all the circumstances, it was just to issue the interim injunction. Plaintiff’s motion was not frivolous or vexatious. There was a serious issue to be tried. The Plaintiff’s business risked irreparable harm. The balance of convenience favored the Plaintiff. Cases Noted: None previously reported on 41.04 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: MacQuarrie’s Drugs Ltd. v. Salsman, 2012 NSSC 139 Date: 20120329 Docket:HfxLC388365 Registry: Halifax Between: MacQuarrie’s Drugs Limited v. Larry Salsman Defendant Judge: The Honourable Justice Frank Edwards Heard: March 29, 2012, in Halifax, Nova Scotia Written Decision: April 5, 2012 Counsel: Charles Thompson, for the plaintiff Rebecca Saturley, for the defendant [1] This is a motion for an interim injunction pursuant to CPR 41.04. Background: [2] The Plaintiff operates the only drug store in the semi-rural community of Berwick. The Defendant, Larry Salsman, was employed by the Plaintiff and its successors from February 1, 1978 until March 5, 2012. Salsman variously acted as General Manager, Dispensary Manager and staff Pharmacist for the Plaintiff. In 1995, Salsman signed non-compete agreement wherein he agreed not to engage in the drug store business within 10 miles of the Plaintiff’s business for years after the end of his employment. [3] On March 5, 2012, Salsman resigned with the intention of opening of new drug store down the street from the Plaintiff. Other key employees of the Plaintiff have indicated their intention to resign from the Plaintiff and work with Salsman. The opening of the new business is contemplated for early April, 2012. [4] I am going to grant the Interim Injunction. [5] Ms. Saturley’s comments are well taken. do have some concerns about the year duration of the non-compete clause and with the chances of the Plaintiff ultimately succeeding. When look at s. 41.04 and the implications of granting an Interim Injunction at this time, however, have decided that it is the appropriate and just thing to do in the circumstances. Section 41.04 states party who files an undertaking as required by Rule 41.06 (and that has been done) may make motion for an Interim Injunction to Judge who, being satisfied with all of the following, may grant the motion: 41.04 (2) (a) the party claims an injunction...as final remedy in the proceeding, or it is in the interests of the justice that an injunction...be in place before determination of the claims in the proceeding; b) the party has moved, or will move, for an interlocutory injunction or interlocutory receivership and is proceeding without delay. c) an urgency exists and it cannot await the determination of the motion for an interlocutory injunction or interlocutory receivership, and d) considering all of the circumstances, it is just to issue an order for an interim injunction or interim receivership. [6] The new Rules differentiate between Interim and Interlocutory Injunctions. This is one of the circumstances which was contemplated when the new Rule was put in place. The Plaintiff has only become aware of the threat to its business within the last few weeks. The new business will open within weeks. The Plaintiff has not had sufficient time to prepare for full Interlocutory Hearing. [7] The seriousness of the matter for the parties involved and for some persons who are not formally parties, could not in business sense be more grave. suspect that the determination on the hearing of the Interlocutory Injunction has high potential to be the ultimate determination in the case. It is with that in mind, and in that context, that have approached the issue of whether should grant the Interim Injunction here today. [8] On the one hand, we have an existing business run by the Plaintiff and on the other, we have the business contemplated by Mr. Salsman and his business associates. This is Thursday the new business is scheduled to open either next week or the week after. had thought from reading the motion, that it was scheduled for next Monday or Tuesday, but apparently, the precise date has not been settled. In any event, this matter has just arisen in the last few weeks in the sense that Mr. Salsman has resigned effective March 5th, 2012. Mr. Salsman was long-serving employee and at times the manager of the Plaintiff’s company. As well, Mr. Salsman has obviously had access to the confidential information of the pharmacy, to and including the confidential information pertaining to the customers of the pharmacy. [9] In addition, other key staff members intend to leave the Plaintiff company to join the new company. take it as matter of common sense, and not speculation, that the opening of the new business is likely to have very profound negative effect upon the operation of the Plaintiff’s company. [10] am of the view that the hearing of the Interlocutory Injunction should be full and consider all of the evidence. By that, mean, not only what we have here today, but also the cross-examinations of the various affiants, as well as the information which Mr. Thompson stated that he required more time to access and submit. That included more information re the circumstances of the signing of the 1995 agreement, more evidence on the extent of the relationship between Mr. Salsman and the Plaintiff’s customers, the number of clients involved and more evidence on the impact of the opening of the Defendant’s business. [11] The impending and imminent opening of the new business satisfies the requirement that of 41.04 2 (c) that urgency exists and cannot await the determination of the motion for an Interlocutory Injunction. It is obvious that once that new business opens, the effect upon the Plaintiff company will be profound and there is really no going back. [12] Ultimately come to Rule 41.04 2(d): considering all of the circumstances is it just to issue an order for an Interim Injunction. [13] In determining whether or not it is just, look at the usual criteria which are put forward on an injunction application. Here, if were considering this as an Interlocutory matter, might well consider the more demanding standard that the Plaintiff would have to put forward strong prima facia case. (I will not compromise the Justice who will ultimately hear the Interlocutory motion by giving an opinion as to whether or not that should be so). [14] At this stage, am satisfied that have only to consider whether there is serious issue to be tried. Despite my concern about the ultimate viability of the five year non-compete, I am satisfied, when I look at the circumstances by way of overview, that this is not a frivolous or vexatious application. The Plaintiff is facing serious threat to its business and it has reasonable argument that this Court should examine the situation and perhaps intervene. [15] Secondly, on the irreparable harm issue, it is my view that there is a high potential for irreparable harm to the Plaintiff company - the loss of customers, or market share, though difficult to quantify, is real and is the type of harm contemplated by this branch of the test. [16] Again, I do not think that we get into the realm of speculation when one considers a small community like Berwick. have no evidence on the size of Berwick, but it appears to be common ground that it is semi-rural community with one drug store. When another drug store opens down the street, common sense would dictate that the new store is obviously going to have huge effect on the business of the existing drug store. That would be the case even if unrelated third parties were opening the new business. But here the new business is essentially going to be run by 30 plus year former employee of the Plaintiff company. The potential negative consequences for the Plaintiff company are obvious. [17] That takes me to the third branch of the test, the balance of convenience. Despite the able submission by Ms. Saturley about the consequences of losing time for a small business in Nova Scotia, the bottom line is that the Defendant is facing only the postponement of the opening for a few weeks. The stakes are much higher for the Plaintiff’s existing business. The balance of convenience, obviously favours the status quo. [18] The Interim Injunction will issue. The Interlocutory Injunction motion will be heard in Halifax before Justice LeBlanc on April 24, 2012.","The applicant is the only drug store in a rural community. The respondent worked there for 30 years, in various positions. He signed a 5-year, 10 mile non-competition clause in 1995. He quit in early March with the intention of opening a new drug store down the street in early April. Other key staff members intended to quit and work in the new store. The applicant moved for an interim injunction to prevent the respondent from opening his store pending the hearing of their motion for an interlocutory injunction. Interim injunction granted. The new Civil Procedure Rules (2008) distinguish between interim and interlocutory injunctions. This is one of the circumstances which was contemplated when the new Rule 41.04 was enacted. Urgency exists and the applicant can't wait. While the non-competition clause may well not survive a challenge at the full hearing of the interlocutory injunction motion, all the applicant needs to show is that there is a serious issue to be tried. There is. This isn't a frivolous or vexatious application. There's a high potential for the applicant to suffer irreparable harm (e.g. the loss of customers, market share) especially given that this is a small community. An interim injunction will only result in a delay of a few weeks. The interlocutory injunction is set to heard at the end of April. The stakes are higher for the applicant than they are for the respondent.",d_2012nssc139.txt
333,"J. SUPREME COURT OF NOVA SCOTIA Citation: Killam Properties Inc. v. Patriquin, 2011 NSSC 338 Date: 20110906 Docket: Hfx No. 348507A Registry: Halifax Between: Killam Properties Inc. v. Mark Patriquin Respondent Judge: The Honourable Justice Glen G. McDougall Heard: September 6, 2011, in Halifax, Nova Scotia Oral Decision: September 6, 2011 Written Decision: September 20, 2011 Counsel: Lloyd R. Robbins, for the appellant I. Claire McNeil, for the respondent By the Court: [1] This is an appeal from decision of Small Claims Court adjudicator given on April 7, 2011. The grounds for appeal as stated in the Notice of Appeal are: (a) jurisdictional error; and (b) error of law [2] The particulars of the error or failure as set out in the appellant’s Notice of Appeal are: 1. The Adjudicator made an error of law and was in excess of jurisdiction in determining that the Small Claims Court had jurisdiction to hear the application of the respondent for review of rental increase. 2. The effect of the Adjudicator’s decision is that he is now hearing an application for declaratory relief. It is respectfully submitted that the Adjudicator of the Small Claims Court sitting on an Appeal of an Order of the Director of Residential Tenancies does not have the jurisdiction to grant Declaratory Relief. [3] In his brief, counsel for the appellant, Killam Properties Inc., raised three issues: 1. Does the Director of Residential Tenancies or an Adjudicator on an appeal of Director of Residential Tenancies decision have the jurisdiction to hear Residential Tenancies Act Section 14 review of rent increase that has not been commenced within 30 days of notice of the rent increase? 2. Does the Adjudicator have the jurisdiction to amend the Section 14 application of the Respondent and hear it as Section 13(1) application? 3. Does an Adjudicator have the jurisdiction to grant Pure Declaratory Relief? [4] In her brief, counsel for the respondent raises two preliminary procedural issues: (1) The Court has no jurisdiction to hear interlocutory appeals; and (2) The Court has not given leave to the appellant to file new evidence and as such the affidavit of Kevin Arbuckle, Director of Property Management for Killam Properties Inc., cannot be considered. [5] I will first deal with the issue of whether or not the affidavit of Mr. Arbuckle is properly before the Court and whether or not it should be considered on the merits of the appeal. [6] With regard to affidavit evidence, clearly, the Small Claims Court Act appeal provisions do not provide for the submission of any new evidence. The appeal is not hearing de novo. It is hearing based on the record. By record, mean the contents of the Small Claims Court file which is requested and provided to our court when notice of appeal is filed. The entire record, including any exhibits filed in the hearing before the Small Claims Court, are all included in that file and they are all open to review by this Court. In addition to that, the adjudicator is requested to provide summary report of findings of law and fact made on the case on appeal. So, in addition to the decision or order of the adjudicator, the summary report is also provided to this court and is used in determining the merits of the appeal. [7] As Justice Beveridge indicated in his decision of Lacombe v. Sutherland, [2008] N.S.J. No. 603 at para 29, there are occasions when additional affidavit evidence may be admitted. Again, use the word “may” because it is discretionary thing. It depends on the particular judge who hears the appeal. request has to be made to that particular judge to adduce fresh evidence. If it is evidence that would help to establish jurisdictional error or breach of natural justice the request might be found to have merit. Any additional type of affidavit evidence would only be admitted if truly exceptional circumstances exist. [8] The Small Claims Court Act and its Regulations do not contemplate an appeal by way of trial de novo. It is based on the record. This is not carte blanche refusal to admit additional evidence but it would only be in very rare and exceptional circumstances that further affidavit evidence would be admitted. There are good policy reasons for this. If affidavits were routinely accepted the appeal would soon morph into trial de novo. It would be tantamount to an appeal based on transcript. The Small Claims Court is not required to record the evidence. There is no transcript. To allow affidavit evidence to be filed on appeal to the Supreme Court would add unnecessarily to the expense of the proceeding. It would also defeat the principle purpose for the Small Claims Court which is to provide an inexpensive and informal venue for people to present cases without the need to incur the expense of legal representation. [9] In terms of the particular affidavit that has been tendered here, do not accept that it is of any assistance in deciding the merits of this particular appeal. do not see it as going to the alleged jurisdictional error that is cited as one of the grounds of appeal. If counsel wished to tender additional evidence, notice would have to be provided to the court and to opposing counsel. That was not done in this case. [10] will now deal with the other preliminary objection regarding the court’s jurisdiction to hear an appeal from an interlocutory ruling prior to final determination of the matter. [11] Appeals to this Court are governed by section 32 of the Small Claims Court Act, R.S.N.S. 1989, c. 430 which states: 32 (1) party to proceedings before the Court may appeal to the Supreme Court from an order or determination of an adjudicator on the ground of (a) jurisdictional error; (b) error of law; or (c) failure to follow the requirements of natural justice, by filing with the prothonotary of the Supreme Court notice of appeal. [12] also make reference to the decision of Justice Duncan Beveridge (as he was then) in Lacombe v. Sutherland, supra, paras 26, 27 and 28: 26 There are not appeals as of right. There is no inherent right accorded to litigant to appeal or for superior court to entertain an appeal. Appeals are entirely creations of statute. Typically an appeal is not re-hearing of the dispute between the parties. 27 In Nova Scotia the Small Claims Court Act provides an appeal as right to the Nova Scotia Supreme Court. Section 32 sets out the grounds of appeal that can be raised. Oddly enough the Act does not set out the powers that the Supreme Court has if it finds an error of law, jurisdiction or breach of natural justice. Typically the case law in Nova Scotia is that where any such error is found re-hearing is ordered before different adjudicator. 28 It is well established that in the ordinary course, absent some special power on appeal, such as an appeal by way of hearing de novo, the appellate court does not engage in re-hearing of the dispute. Findings by the court below are accorded considerable deference. They can only be interfered with in this regime if the appellant makes out one of the three grounds for an appeal. That is, an error in law, jurisdiction or breach of natural justice. Even in an ordinary civil case an appellate court can only intervene if the trial court made an error of law or an error of fact that amounts to clear and palpable error. [13] Justice Beveridge makes it very clear that if there is right of appeal it is created by statute and in this particular instance by s. 32 of the Small Claims Court Act, supra. [14] The question that has to be asked is: “Has there been ‘an order or determination’ of an adjudicator from which to appeal?” Reference should be made to the ruling of the adjudicator on the preliminary motion raised by the Landlord’s counsel at the outset of the Small Claims Court appeal of the order of the Director of Residential Tenancies. The motion was heard on March 21, 2011. The hearing was suspended pending ruling which was delivered in writing on April 7, 2011. On page of the decision, the adjudicator made it clear that he was ruling on the preliminary motion only. It was not final decision as he invited the parties to “contact the clerk of the Small Claims Court, subject to an appeal of this decision to have court date for the continuation of this hearing.” [emphasis added]. [15] It is unfortunate that the adjudicator added the clause “subject to an appeal of this decision.” It appears to open the door for an appeal which would expand the right of appeal found in s. 32 of the Small Claims Court Act. The adjudicator cannot confer jurisdiction on this Court, the Supreme Court, to entertain an appeal of an interlocutory ruling. An appeal to the Supreme Court under s. 32 of the Small Claims Court Act is “from an order or determination of an adjudicator.” interpret that to mean final order or determination. An interlocutory appeal from ruling on preliminary motion is not what is meant by this statutory provision. [16] refer to the decision that rendered in the case of Her Majesty the Queen v. Christopher Wayne Primrose, 2009 NSSC 241 (CanLII). Although that decision arose in the context of Summary Conviction Appeal under the Criminal Code, and although s. 830 of the Criminal Code uses the phrase “or other ‘final’ [emphasis mine] order or determination” which the Small Claims Court Act does not despite that, am still of the view that the reasons for refusing to entertain an interlocutory appeal in that decision are also applicable to the case that is before me. [17] I decline to hear the appeal and refer the matter back for a continuation before the same Small Claims Court adjudicator who made the ruling on the preliminary motion. [18] There are policy reasons as well for making this particular ruling today. The Small Claims Court Act as is the Residential Tenancies Act, is meant to be an informal and inexpensive means of having issues that affect the parties adjudicated. It is intended to allow people to present their own arguments without the necessity of engaging or retaining lawyers to represent them. That does not mean that parties are prevented from engaging counsel and probably in many instances they are wise to do so, but if this Court was to entertain an appeal of an interlocutory ruling it would result in delays in having matters heard and would likely result in increased costs to the litigants. [19] The right to appeal final decision of Small Claims Court adjudicator on an issue involving residential tenancies is still open to be brought to this court. Nothing in my decision will prejudice or preclude any of the parties to this particular action from launching an appeal if they feel aggrieved by the final decision that the adjudicator makes. [20] The matter is sent back to the Small Claims Court. Arrangements can be made to have the hearing continued before the same adjudicator. [21] With regard to Mr. Robbins fear that he might be precluded from launching an appeal of the ruling because of the statutory limitation of 30 days, do not share his concerns. This is simply ruling given during the course of hearing. It is not final order or determination made by Small Claims Court adjudicator. This particular issue or the issues that he wishes to raise pertaining to jurisdiction could be included in any appeal that is launched if the ultimate decision is not in favour of the current appellant, Killam Properties Inc. Obviously decision to appeal will have to await the final decision of the adjudicator after all of the evidence is heard. note that an appeal from decision of the Director or his agent to the Small Claims Court is, in fact, re-trial. It is re-hearing of the facts. It is not the same as an appeal to our court which relies on the record from the court below. [22] After hearing from the parties on costs, order Killam Properties Inc. to pay the sum of $50.00 to Dalhousie Legal Aid as counsel for Mark Patriquin. McDougall, J.","A small claims adjudicator determined he had jurisdiction to hear the respondent's application for a review of his rent increase. He adjourned the matter and asked that it return to him for a hearing on the merits. The appellant appealed. At issue was whether the appeal was properly before the court or premature. There was also an issue concerning the admissibility of an affidavit that wasn't before the adjudicator at the original proceeding. Appeal dismissed and matter returned for a continuation of the hearing on the merits before the same adjudicator. The court has no jurisdiction to hear an appeal on an interlocutory decision of this nature. There can be no appeal from the Small Claims Court until a final determination is made. Until this matter is decided on its merits, there has been no final determination. There are sound policy, as well as practical, reasons for this approach.",2_2011nssc338.txt
334,"J. Date: 19980206 Docket: CA 133212 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Cromwell, JJ.A. BETWEEN: JOHN THORNTON -and-­ THE WORKERS' COMPENSATION APPEALS TRIBUNAL OF NOVA SCOTIA and THE WORKERS' COMPENSATION BOARD OF NOVA SCOTIA Respondents K.H. (Kenny) LeBlanc for the Appellant Jonathan Davies for the Tribunal and David Farrar and John R. Ratchford for the Board Appeal Heard: February 6, 1998 Judgment Delivered: February 6, 1998 THE COURT: The appeal is allowed and the matter is remitted to the Tribunal as per oral reasons for judgment of Chipman, J.A.; Roscoe and Cromwell, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by: CHIPMAN, J.A.: This is an appeal for which leave has been granted from a decision of the Worker's Compensation Appeals Tribunal (the Tribunal) dated October 25, 1996. It is limited to question as to the jurisdiction of the Tribunal. The Tribunal dismissed the appellant's appeal from the decision of Hearing Officer finding that the appellant was not entitled to temporary total disability payments under the Workers' Compensation Act, S.N.S. 1994-5, c. 10 (the Act). The appellant alleged that he suffered left knee injury on July 25, 1988 while performing activities for his employer. He applied to the Worker's Compensation Board (the Board) for benefits. In various decisions, the Board refused benefits on the ground that the appellant did not suffer an injury by accident arising out of or in the course of employment. The Hearing Officer's decision dated August 23, 1995 was the final decision of the Board. This decision affirmed previous Board decisions to deny the appellant's claim that he had suffered personal injury by accident arising out of and in the course of employment, and so was not entitled to receive worker's compensation benefits under the former Act (Workers' Compensation Act, R.S.N.S.1989, c. 508 as amended). The Tribunal's decision dismissing the appellant's appeal was rendered prior to the decision of this Court in Doward v. Workers' Compensation Board (N.S.) (1997), 1997 CanLII 14985 (NS CA), 160 N.S.R. (2d) 22.  The basis for dismissing the appellant's appeal was the Tribunal's conclusion that the Hearing Officer did not arrive at a decision which was patently unreasonable. The Tribunal employed the following language in expressing this conclusion: do not find it patently unreasonable that the hearing officer found that the inference the Worker was seeking was not reasonable one. The inference being sought by the worker, of course, is that his knee problem arose out of and in the course of his employment. ... find that it was not patently unreasonable for the hearing officer to conclude that the medical evidence did not support the inference that the Worker was seeking. do not have to find that would reach the same conclusion that the hearing officer reached, only that her decision was not patently unreasonable. This Court in Doward, supra, dealt with the standard of review by the Tribunal of decision of Hearing Officer at pp. 33-38, 160 N.S.R. (2d). In particular, the Court said at p. 36: There is no reason to think that the Tribunal is any less expert generally in matters relating to workers' compensation that fall within s. 243(7) than the hearing officer. The Tribunal appeared to think otherwise in the discussion at p. 16 of its decision, but when carefully examined, the only support for its position is found in cases where the hearing officer heard evidence and the Tribunal did not. The Tribunal must, in such cases, afford the usual appellate deference to trier of fact. Support for this approach can be found in the very wide scope of review of hearing officer's decision given to the Tribunal by s. 243(7)(e). This suggests that the Legislature intended the Tribunal to be able to substitute its judgment for that of the hearing officer in the instances where an appeal lies. The deference that courts owe to specialized tribunals as discussed in Pezim, supra, and Southam, supra, is not owed to the same extent by the Tribunal... And at p. 37: An appeal to the Tribunal is statutory appeal. have concluded that if case qualifies for appellate review under s. 243(7), the deference that the Tribunal must show is only with respect to the advantages the hearing officer may have in the fact finding process in any particular case. In the context of this appeal, am of the opinion that the Tribunal erred in concluding that any decision of the hearing officer on an issue under s. 243(7)(e)(ii) was subject to review only on the basis of the ""patently unreasonable"" standard. An appeal from the Hearing Officer to the Tribunal is a statutory appeal. It is not a judicial review. The concept of patently unreasonable decision has no place in this statutory appeal process. The Tribunal has made an error of jurisdiction as to its powers on an appeal from the hearing officer. The appeal is allowed and the matter is remitted to the Tribunal. Chipman, J.A. Concurred in: Roscoe, J.A. Cromwell, J.A. 1996 C.A. No. 133212 IN THE NOVA SCOTIA COURT OF APPEAL BETWEEN: JOHN THORNTON Workers' Compensation Claimant (Claim No. 1429835) -and- THE WORKERS' COMPENSATION APPEALS TRIBUNAL OF NOVA SCOTIA and THE WORKERS' COMPENSATION BOARD OF NOVA SCOTIA RESPONDENTS REFERENCE SHEET Workers' Compensation Appeals Tribunal Alison Hickey Appeal Commissioner Claimant John Thornton Claim Number 1429835 Date of Hearing May 29. 1996 Date of Decision October 25. 1996 Decision Number 96-069-TAD","The primary issue in this appeal was the standard of review to be applied on appeals from a Hearing Officer to the Workers' Compensation Appeals Tribunal. The appellant had his appeal denied on the grounds that the decision of the Hearing Officer was not patently unreasonable. Allowing the appeal and remitting the matter for re-hearing, that an appeal from a Hearing Officer to the Tribunal is a statutory appeal. It is not a judicial review, and the standard of review is therefore one of correctness not whether or not the Hearing Officer's decision was patently unreasonable. The deference that the Tribunal must show is only with respect to the advantages the Hearing Officer may have in the fact finding process of a particular case.",d_1998canlii4665.txt
335,"J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 219 Date: 20050510 Docket: BA2/2005 Judicial Centre: Regina BETWEEN: [D.G.W.] and and HER MAJESTY THE QUEEN Counsel: J.F. Parker for [D.G.W.] B.P. Nychuk for [T.C.M.] R.K. Ottenbreit, Q.C. for Attorney General of Canada J.D. Kalmakoff for Attorney General of Saskatchewan JUDGMENT MATHESON J. May 10, 2005 [1] Mr. [D.G.W.] and Mr. [T.C.M.] have been charged with multitude of offences pursuant to the Controlled Drugs and Substances Act, S.S. 1996, c. 19 and the Criminal Code, which include trafficking in cocaine and methamphetamine, conspiracy to do so with one another and several other individuals, and several Criminal Code offences, including possession of proceeds of crime. Both individuals have been in custody since November 17, 2004. [2] After a show cause hearing on November 24, 2004 her Honour Judge Carol A. Snell refused to release Mr. [T.C.M.] from detention. [3] On January 5, 2005, after show cause hearing, her Honour Judge Janet E. McMurtry refused to authorize Mr. [D.G.W.]’s release. BASIS OF REFUSALS [4] Judge McMurtry’s justification for detaining Mr. [D.G.W.] in custody was to ensure his attendance in court and, having regard to all the circumstances presented to her, the substantial likelihood that Mr. [D.G.W.] would, if released from custody, commit criminal offence. Her conclusion in that respect cannot be seriously questioned. [5] Although only 21 years of age, Mr. [D.G.W.] was convicted, in youth courts in Manitoba, between August, 1998 and February, 2002, of 13 breaking and entering, and theft, and possession of stolen property charges; one charge of assault; three charges of failing to comply with undertakings; and one charge of being unlawfully at large. In November, 2002, as an adult, he was convicted, in Calgary, of two charges of obstructing peace officer and one charge of failing to attend court. [6] At the time of Mr. [D.G.W.]’s arrest he was facing outstanding charges, and arrest warrants, in Manitoba, and drug related charges in Alberta. He was using an alias when arrested. [7] Her Honour Judge Snell refused to release Mr. [T.C.M.] for the same reasons that Mr. [D.G.W.]’s release was denied. Mr. [T.C.M.] is also from Winnipeg, and he, too, has significant youth court record; six convictions involving breaking and entering and theft, and two convictions for failing to comply with disposition and recognizance. In April, 2002, as an adult, he was convicted of two assault causing bodily harm charges, possession of house breaking instrument charge, charge of mischief, and charge of failing to attend court. Once again, the conclusion of Her Honour Judge Snell cannot be seriously questioned. [8] It was asserted by counsel for the Attorney General of Canada that in May, 2004, an investigation into cocaine and methamphetamine trafficking in Regina was commenced. It was stated that Mr. Trinh was involved in selling multi-pound quantities of cocaine and methamphetamine from Calgary, to group in Regina, organized and operated by Mr. [D.G.W.]. Mr. [T.C.M.] is alleged to have been the number two man in the Regina organization. [9] As a result of the foregoing, a review of the detention orders of Her Honour Judge McMurtry and Her Honour Judge Snell would ordinarily be cursory; the applications would have been dismissed. However, a factor which causes concern with the continued detention of these individuals is that, six months after their arrest, not only has a preliminary hearing not been conducted, no date for a preliminary hearing has been set. No preliminary hearing date will be set before May 30, 2005, the next appearance date for Mr. [D.G.W.] and Mr. [T.C.M.] in Provincial Court. [10] The delay in setting preliminary hearing date has been attributed to variety of factors: the number of accused individuals, at least one of whom has not yet retained counsel; the changing of counsel by at least two accused; adjournments to accommodate defence counsel and new defence counsel; the voluminous Crown disclosure documents, stated to consist of 8,000–12,000 pages; and the inability of various counsel for the accused to agree on suitable preliminary hearing dates. [11] Crown counsel have estimated that the preliminary hearing will take two to three weeks. There are apparently three weeks not consecutive available in Provincial Court in August. But even if all counsel should agree to utilize that time, it will likely be several weeks thereafter, in view of the anticipated length of the preliminary hearing, before transcripts of the evidence are available. Thus, it seems unlikely that the trial of these individuals, even from the most optimistic view point, will take place within a year of the date when these individuals were arrested. [12] There will be an order that Mr. [D.G.W.] be released upon entering into recognizance containing the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear in court whenever required to do so. 3) Maintain his residence at [location 1], Regina, Saskatchewan and not change that residence without the prior consent of the Commanding Officer, or his designate, Drug Section, Division, RCMPolice. 4) Report to the Commanding Officer, or his designate, Drug Section, Division, RCMPolice, Dewdney Avenue, Regina, Saskatchewan, not later than 5:00 p.m. each Friday until the final disposition of the charges against Mr. [D.G.W.]. 5) Not leave his place of residence between the hours of 10:00 p.m. and 7:00 a.m. the following day, and shall present himself personally to any peace officer checking such curfew. 6) Abstain from the consumption of alcohol and non-prescription drugs, and shall not enter any public premise which serves alcoholic beverages. 7) Not be in possession of any cellular telephones. 8) Not travel farther than 100 km. from the City of Regina without the consent in writing of the officer in charge, or his designate, of Drug Section, Division, RCMPolice. 9) Not possess any prohibited weapon. 10) Have no contact with the other alleged co-conspirators except for the purpose of preparation for trial. 11) Have no contact with any of Kent Heise Wilson Trinh David Roberts Steven Gagnon Sabrina Mark Jeremy Patrick Portia Nichol 12) File with the court security in the amount of $1,000.00 cash. [13] There will be an order releasing Mr. [T.C.M.] upon entering into a recognizance containing the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear in court whenever required to do so. 3) Maintain his residence at Apartment #17 [location 2], Regina, Saskatchewan and not change that residence without the prior consent of the Commanding Officer, or his designate, Drug Section, Division, RCMPolice. 4) Report to the Commanding Officer, or his designate, Drug Section, Division, RCMPolice, Dewdney Avenue, Regina, Saskatchewan, not later than 5:00 p.m. each Friday until the final disposition of the charges against Mr. [T.C.M.]. 5) Not leave his place of residence between the hours of 10:00 p.m. and 7:00 a.m. the following day, and shall present himself personally to any peace officer checking such curfew. 6) Abstain from the consumption of alcohol and non-prescription drugs, and shall not enter any public premise which serves alcoholic beverages. 7) Not be in possession of any cellular telephones. 8) Not travel farther than 100 km. from the City of Regina without the consent in writing of the officer in charge, or his designate, of Drug Section, Division, RCMPolice. 9) Not possess any prohibited weapon. 10) Have no contact with the other alleged co-conspirators except for the purpose of preparation for trial. 11) File with the court security in the amount of $1,000.00 cash. J. W.R. Matheson","The accused has been in custody since November 17, 2004. After show cause hearings, the court refused to release the accused from detention. The accused apply for a review of the detention orders. HELD: 1) A review of the detention orders would ordinarily be cursory and the applications dismissed. The reasons for the decisions to refuse to release the accused cannot seriously be questioned. 2) However, a factor that causes concern is that 6 months after their arrest, not only has a preliminary hearing not been conducted, no date for a preliminary hearing has been set. No preliminary hearing date will be set before May 2005. The preliminary hearing will take 2 to 3 weeks.  It seems unlikely that the trial of these individuals will take place within a year of the date of their arrest. 3) They are ordered released on terms and upon the filing of security in the amount of $1,000.",5_2005skqb219.txt
336,"THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 22 Date: 2013-03-01 Between: Docket: CACV2359 Larry Philip Fontaine, et al. Non-Parties (Plaintiffs) and The Attorney General of Canada Prospective Respondent (Defendant) and The Presbyterian Church in Canada, et al. Non-Parties (Defendants) and Merchant Law Group LLP Prospective Appellant (Non-Party) Before: Lane J.A. (in Chambers) Counsel: Gordon J. Kuski, Q.C., and Amanda Quayle for the prospective appellant Sean Hern for the prospective respondent Application: From: 2012 SKQB 517 (CanLII) Heard: February 13, 2013 Disposition: Leave denied Written Reasons: March 1, 2013 By: The Honourable Mr. Justice Lane Lane J.A. [1] The prospective appellant, Merchant Law Group LLP (“MLG”), seeks leave to appeal an order of Gabrielson J. in Chambers dated December 11, 2012. The Chambers judge was acting in his capacity as an Administrative Judge appointed pursuant to the Court Administration Protocol (the “CAP”) established as part of the settlement of the Indian Residential Schools litigation. As part of the overall settlement, Verification Agreement (the “VA”) dated November 20, 2005 was entered into between Canada and MLG respecting verification of MLG’s legal fees and disbursements. The parties are disputing MLG’s obligations under the VA and each had made an application to the Administrative Judge for directions. [2] In issue is approximately $20 million in legal fees, disbursements and interest which MLG is claiming, and the prospective respondent (“Canada” or the “Government”) seeks verification of the claim. [3] MLG challenges the Administrative Judge’s order ordering MLG to contact ESI Software, Inc. (“ESI”) and arrange for ESI to re-create the redacted electronic billing records as whole from the “live data” in MLG’s present billing program. [4] The parties agree on the criteria to be considered in leave applications as articulated in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask. R. 121 and succinctly put they are; firstly, is the proposed appeal of sufficient merit to warrant the attention of the Court and, secondly, is the proposed appeal of sufficient importance to the proceedings, or the field of practice or the state of law, or to the administration of justice generally such as to warrant determination by the Court of Appeal. Canada also argues the impugned order was discretionary one attracting deferential standard of review. [5] There have been several judgments of the Administrative Judge dealing with the verification of MLG’s legal fees and disbursements, all of which provide more extensive background to the issue before me. Suffice it to say the judgments recognize that in order to ensure an efficient administration of the verification dispute, the parties are allowed to apply to the Administrative Judge for directions as specific issues arise, and he is authorized to make such orders or directions as are appropriate within the framework of the verification agreement: July 2, 2008, 2008 SKQB 271 (CanLII), 321 Sask. R. 285; December 30, 2009, 2009 SKQB 512 (CanLII), 347 Sask. R. 238; February 8, 2012, 2012 SKQB 68 (CanLII), 390 Sask. R. 283. [6] restatement of the context in which the claims and the verification process arose has two aspects. Firstly, the reasons for the verification process in the overall scheme of the Residential Schools litigation; and secondly, the verification process itself. The leave application arises in the context of the verification process but it will be helpful to look at the reasons for the process. I. THE REASONS FOR THE VERIFICATION PROCESS [7] The background to the process is set out by the Administrative Judge in his decision of July 2, 2008, at para. 32 In determining whether the first step of the VA has been completed, the purpose of the verification process must be considered. Canada submits that its purpose was as set out in an affidavit of Iacobucci, sworn June 15, 2006. Iacobucci’s statements as to the purpose of the verification were not contested by MLG in its material. Paragraphs 1, 2, 26 and 32 of Iacobucci’s affidavit are the relevant sections which refer to the purpose of the verification process: 1. Since May 30, 2005, have served as the Federal Representative leading negotiations with interested parties toward the resolution of the legacy of Indian Residential Schools. These negotiations, which resulted in Settlement Agreement as described below, included long and complex discussions respecting legal fees. Indeed, legal fees were central element of the negotiations and there would have been no Settlement Agreement without an agreement on legal fees. therefore have knowledge of the matters to which depose herein. 2. The discussions of legal fees with Tony Merchant, Q.C., representing the Merchant Law Group (‘MLG’), were particularly long and complex. As described in detail at paragraph 26 of this affidavit, had and continue to have number of very serious concerns about the information put forward by MLG to justify its position on legal fees. These concerns include: (a) uncertainty about the number of former residential schools students who had retained MLG; (b) lack of evidence or rationale to support the MLG’s claim that it had Work-in-Progress of approximately $80 million on its residential school files; and (c) an apparent discrepancy between the amount of class action work MLG represented it had carried out and the amount of class action work it had actually done. 26. required this verification process as part of our fee agreement with MLG because had very serious concerns about the information put forward by MLG to justify its position on fees. These concerns included the following: (a) Actual number of retainers. MLG represented during the legal fees negotiations that it had entered into Retainer Agreements with 7,000 to 8,000 former students, but was unable to offer any evidence as to how many of these Retainer Agreements existed as of May 30, 2005. (b) The number of retainers that MLG represented existed changed frequently during the negotiations and appeared not to make allowances for cases that had settled or determined by trial, former clients who had died, and those who were represented by other law firms. (c) (redacted) (d) Actual amount of Work-in-Progress. MLG represented that it had Work-in-Progress outstanding on these files of approximately $80 million, but was unable to offer any evidence to support this amount or to explain how and why these costs were incurred. have recently been shown copy of an article that appeared in the Leader Post on August 9, 2004 in which Mr. Merchant was reported to have stated that MLG carried approximately $12 million in unpaid work .... (e) Actual amount of class action work. MLG represented that it should be paid substantial fees in respect of the class actions it had brought but, unlike the National Consortium, MLG appeared to have expended very limited resources on these class actions. 32. The verification process agreed to by MLG is essential to provide me with sufficient information to determine the reasonableness of the fees to be paid to MLG. The Merchant Fees Verification Agreement requires me to satisfy myself that the amount of fees to be paid to MLG is reasonable and equitable ‘taking into consideration the amounts and basis on which fees are being paid to other lawyers in respect to this settlement’. The basis on which fees are being paid to other lawyers in respect of this settlement is to compensate them for outstanding Work-in-Progress, capped at $4,000, in respect of each Retainer Agreement existing as of May 30, 2005 and to provide an appropriate multiplier for class action work. To apply these principles to the MLG fees, Canada needs to have reliable information respecting, among other things: (a) the number of Retainer Agreements that MLG had with its clients as of May 30, 2005; (b) the amount of MLG’s Work-in-Progress in respect of each Retainer Agreement, bearing in mind the $4,000 cap for each Retainer Agreements; and (c) the amount and nature of the class action work that MLG says it carried out. [emphasis added] [8] It is clear from the affidavit of Mr. Iacobucci, who was Canada’s representative in the settlement negotiations, that it is incumbent on MLG to satisfy the concerns he raised and that the fees to be paid are reasonable and equitable. In order to allow MLG to verify its claims, the VA was signed. [9] The relevant provisions of the VA are as follows: Agreement Between the Government of Canada and the Merchant Law Group Respecting the Verification of Legal Fees The Government of Canada and the Merchant Law Group agree that in addition to the requirement to provide an affidavit as set out in Article of the Agreement in Principle, the Merchant Law Group’s fees shall be subject to the following verification process. 1) The Merchant Law Group’s dockets, computer records of Work in Progress and any other evidence relevant to the Merchant Law Group’s claim for legal fees shall be made available for review and verification by firm to be chosen by the Federal Representative the Honourable Frank Iacobucci. 2) The Federal Representative shall review the material from the verification process and consult with the Merchant Law Group to satisfy himself that the amount of legal fees to be paid to the Merchant Law Group is reasonable and equitable taking into consideration the amounts and basis on which fees are being paid to other lawyers in respect of this settlement, including the payment of to 3.5 multiplier in respect of the time on class action files and the fact that the Merchant Law Group has incurred time on combination of class action files and individual files. 3) If the Federal Representative is not satisfied as described in 2) above, he and the Merchant Law Group shall make all reasonable efforts to agree to another amount to be paid to the Merchant Law Group for legal fees. 4) If the Federal Representative and the Merchant Law Group cannot agree as described in 3) above, the amount to be paid to the Merchant Law Group for legal fees shall be determined through binding arbitration, but that amount shall in no event be more than $40 million or less than $25 million. The arbitration shall be by single arbitrator who shall be retired judge: [10] When the final Settlement Agreement (the “SA”) was executed on May 8, 2006, it made provision for the determination of the legal fees payable to MLG as follows: (2) The fees of the Merchant Law Group will be determined in accordance with the provisions of the Agreement in Principle executed November 20, 2005, and the Agreement between Canada and the Merchant Law Group respecting verification of legal fees dated November 20, 2005 attached hereto as Schedule ‘V’, except that the determination described in paragraph of the latter Agreement, will be made by Justice Ball, or, if he is not available, another Justice of the Court of Queen’s Bench of Saskatchewan, rather than by an arbitrator. (4) In the event that the Federal Representative and either the National Consortium or the Merchant Law Group cannot agree on the amount payable for reasonable disbursements incurred up to and including November 20, 2005, under s. 13.08(1) of this Agreement, the Federal Representative will refer the matter to: (b) The Saskatchewan Court of Queen’s Bench, or an official designated by it, if the matter involves the Merchant Law Group; to fix such amount. ... All legal fees payable under Section 13.08 will be paid no later than 60 days after the Implementation Date. Schedule which was attached to the SA was identical to the VA. [11] The parties see the implementation of the VA as at Step (para. of the VA) with MLG arguing it has satisfied its obligations to make its records available for review and verification by Canada’s auditors (“Deloitte”) and the auditors must now file its report and, as agreed upon, send copy of its report to MLG. Having completed Step 1, according to MLG, once MLG receives the auditors’ report the parties can commence negotiating settlement (Step 2) and failing an agreement, pursue trial determination. Canada says MLG has not completed Step of the verification process. The Administrative Judge agreed and made the impugned order. II. BACKGROUND TO THE IMPUGNED ORDER [12] Earlier in the process an issue arose with regard to the need to protect solicitor client privilege during the review of MLG’s files and records. In the Administrative Judge’s order of July 2, 2008 he directed the parties to determine how verification process could be completed without breaching solicitor client privilege. protocol was established and MLG retained ESI which was able to develop the redacted electronic billing records with the solicitor client privileged information removed. MLG had been using ESI software for its own electronic billing program. [13] The governing protocol contained the following definitions: “Settlement Agreement” means the May 10, 2006 Settlement Agreement approved by the court in this proceeding. “Client Files” means the records and documents, in hard-copy and electronic form, which comprise all of MLG’s work product for which MLG claims fees and disbursements pursuant to Article 13.08(2) of the Settlement Agreement. “Electronic Billing Records” means MLG’s electronic billing records relating to the Client Files. “Redacted Electronic Billing Records” means the Electronic Billing Records from which information that is solicitor-client privileged, as specified in this order, has been removed. [14] It is to be noted the electronic billing records which were to be provided by MLG were the electronic billing records relating to the files which “comprise all of MLG’s work product for which MLG claims fees and disbursements …”. [emphasis added] [15] In September of 2010 MLG delivered the redacted electronic billing records. The second part of the verification process, which was physical file review at MLG’s offices, was scheduled for April 2011. Shortly before the commencement of the physical review, Canada learned the redacted electronic billing records which had been produced were not accurate. [16] The Administrative Judge explained the issue in his February 8, 2012 fiat: On April 6, 2011, counsel for MLG wrote letter to counsel for Canada in which it raised the issue which then gave rise to the application for directions currently before the Court. In this letter, counsel for MLG stated: This issue of different effective dates for consideration, and MLG’s preparation for the April audit has caused MLG to identify time entries on some of the files which the firm will not seek to bill or appear to be misdescribed. MLG may update or amend residential school accounts and continues to amend time recorded on its files as required. In the result, the Esilaw data provided by MLG to your client will not entirely match live data or future submissions. Counsel for Canada took exception to this letter and in responding letter of April 7, 2011, questioned whether the electronic billing records provided were in compliance with the Court’s December 30, 2009 order if further amendments would be required. Further correspondence ensued between the parties in which counsel for MLG stated that MLG had complied with the order, but that it could further update or amend such records subject to its final account. [17] Canada would later learn, as it sought to determine how many entries were “misdescribed” or for which MLG would “not seek to bill”, that 57,468 entries were inaccurate or for which MLG was not seeking to bill which totalled approximately $4 million in fees. [18] MLG’s response was to provide additional information in format which could not be reconciled with the initial redacted data prepared by ESI. MLG is now using different software from different supplier for its internal billing. Canada’s auditors said that significant number of the entries and deletions provided by MLG could not be reconciled with the redacted electronic billing records created by ESI. [19] However, MLG says it cannot now use ESI because they are in dispute over an account of approximately $9,100 and ESI will not assist MLG with any work until the account is paid. [20] MLG advised the Administrative Judge that it could not provide the now requested information in form which could be reconciled with the earlier data relying on advice from its internal technology personnel. [21] Canada contacted ESI which responded by an e-mail stating it believed it could reconcile the information. It was, of course, the software provider which came up with the earlier solution to protect solicitor client privilege. [22] This impasse, with Canada seeking the information to reconcile the data it had received and MLG saying it has complied with Step of the verification process and demanding that Canada’s auditors now prepare and forward its report so the parties can proceed to Step 2, led each party to make an application for directions. As stated earlier, the Administrative Judge’s order is the basis for the leave application now before me. [23] The Administrative Judge said it appeared that both parties agreed there was need for one comprehensive database for the purpose of the verification process. He was satisfied, based on the information before him, it was possible for ESI to provide the information which was necessary to allow Canada’s auditors to continue with the verification process. He said the dispute between ESI and MLG over the accounts from previous work done by ESI for MLG should not be allowed to prevent this from happening. He suggested there were avenues which MLG could take to allow ESI to proceed. He ordered: 17 (1) That MLG contact ESI Software, Inc. and arrange for ESI to re-create the redacted electronic billing records as whole from the “live data” for the residential schools litigation. This arrangement should be in accordance with the proposed directions attached as Appendix to my fiat of December 30, 2009, with such further terms as the parties may agree to. Upon creation of the redacted electronic billing records, copy shall be delivered to Canada and/or its agent Deloitte so that it might complete the audit required for the verification process. III. POSITIONS OF THE PARTIES A. THE PROSPECTIVE APPELLANT [24] MLG argues the Administrative Judge exceeded his jurisdiction by requiring MLG to pay the disputed account of non-party relating to matters wholly unconnected to the action. Further, he did so on his own motion without notice and either without evidence, or on evidence not properly before him. MLG argues judge performing an administrative function pursuant to contract cannot order party to pay disputed account without due process as precondition to achieving the balance of his directions. It argues that to allow such an overreaching authority substantially enlarges and changes the law of contract interpretation and could affect the thousands of pending Indian Residential School compensation applications which are being dealt with under the overall rubric of the IRS settlement. It says the order was, in substance, mandatory injunction. [25] MLG takes issue with the Administrative Judge’s finding both parties agreed there was need for common database. MLG says it is not their position and that Canada’s auditors have enough information to prepare its report. [26] MLG further argues the Administrative Judge based his decision on e-mails which were not evidence. This, it continues, is an error of law and the Administrative Judge was incorrect. The document referred to on this issue is copy of letter to ESI and an e-mail response referred to in para. 11 of the Administrative Judge’s fiat. These were attached to an affidavit deposed by legal secretary for the law firm acting for Canada. This is the only information the Administrative Judge had which indicated ESI could do the work proposed and it should not have been admitted. MLG argues it is “extremely important to the profession and to the administration of law generally that judges adhere to rules of evidence in hearing and determining disputes between parties” (para. 76, Brief of Law). If not addressed this establishes an important precedent. [27] MLG goes on to say the impugned order added further terms and requirements to his order dated February 8, 2012 and this constituted, in effect, an appeal of his prior order which was of itself unsound and extended beyond what Step of the verification process required of MLG. The Administrative Judge’s actions constitute, in effect, litigation by instalment. [28] Finally, MLG says the Administrative Judge erred in failing to require Deloitte to complete its report and then requiring Canada to deliver the report to MLG; further erred in concluding MLG had not complied with the February 8, 2012 order by delivering the redacted electronic billing records to Canada; and finally, erred by failing to conclude the process set out in para. of Schedule was completed. B. THE PROSPECTIVE RESPONDENT [29] Canada says MLG’s overall position is that Canada has been delaying the verification process while MLG has been diligent in complying with it. It says the exact opposite is happening. [30] MLG agreed to the verification process and in his July 2, 2008 fiat the Administrative Judge specifically set out what was required of MLG in order to allow Canada to calculate the fees payable to MLG. It says fundamental premise of the verification process was that MLG would “provide firm and final representation of what work product MLG says supports its claim for $40 million in fees” (para. 13, Memorandum of Argument). This requirement was set out in the earlier referred to definition of “Redacted Electronic Billing Records” as set out in the order of December 30, 2009. Further, MLG was ordered to provide accurate information in the fiat of February 8, 2012. [31] As result of that order, MLG produced 1,270 page hardcopy list of the 57,468 time entries to be deleted or changed which Canada estimated to approximate $4 million in unwarranted time. That information was provided in different format from that of the original redacted electronic billing records. MLG has made it impossible to reconcile the latter information with the records previously supplied. Any allegations of delay by MLG are simply unfounded and in applying the test for the granting of leave, the Administrative Judge made discretionary order clearly within his jurisdiction. [32] Contrary to the argument of MLG, the Administrative Judge did not err by requiring MLG to pay the alleged accounts of ESI without sufficient information and without due process. In fact, clear reading of the fiat was direction which simply required MLG to provide the redacted electronic billing records as required by the order of December 30, 2009. Given the mandate to attempt to get verification of MLG’s accounts, the Administrative Judge was not going to allow relatively small bill to stand in the way. The Judge simply made suggestion as to how MLG should deal with the matter. [33] With regard to the alleged error in finding MLG agreed with Canada that there was need for one comprehensive database for the purpose of completing Step of Schedule V, in fact it was MLG which stated in its Prayer For Relief in the Request for Directions application that there should be one database. The order sought by MLG required the Government to immediately deliver copy of the auditors’ report to MLG with any supporting data which should include “inter alia, the merger of MLG’s revised billing data with the redacted electronic billing data provided to Deloitte by ESI Software Inc. (“ESI”) prior to Deloitte’s physical inspection of MLG’s files”. Further, the judge only stated there “appeared” to be an agreement on this point, this does not constitute firm finding on the point. In any event, it was not necessary for his decision. [34] With regard to the issue of hearsay evidence, such evidence has been tendered during the course of the process. Indeed MLG tendered the hearsay evidence of its Executive Director. Further, the judge did not need to rely on the evidence in any event because it was clear ESI could accomplish the required task because it had already done so. [35] Replying to MLG’s argument that the Administrative Judge erred by adding further terms and requirements to his previously issued order dated February 8, 2012; and that MLG had complied with that order because the order did not specify the form of revisions and it was therefore open to MLG to provide new information in format which could not be reconciled with previous data, it is clear, says Canada, that at the time of the February 8, 2012 order neither Canada nor the court had any idea there were some 57,000 time entries which were misdescribed or would not form part of the claim. If it had been known at the time of that order, it is very likely the order would have specified that the new data should be compatible with data previously provided. Further, it is open in the process for the court to give further directions from time to time to ensure that the process is properly concluded. [36] Finally, there was no error by failing to require Deloitte to complete its report and order the report delivered to MLG. It was open to the Administrative Judge to find that Step of the verification process was not yet completed and Deloitte cannot complete its report without the reconciled electronic billing data. [37] In summary, it says this was discretionary order procedural in nature and each of the grounds of MLG is bound to fail. An appeal will unduly delay the proceedings and will unnecessarily add to the cost of proceedings. There are no issues of importance to the administration of justice to warrant consideration by the Court. Decision [38] I am in agreement with the argument of the prospective respondent and leave to appeal is denied. The order appealed from was simply a discretionary order designed to move the verification process along and ensure the process meets its overall objective of determining if the amount of MLG’s fee is reasonable and equitable. This is precisely what the Administrative Judge is required to do. The prospective appellant is overstating the effect of the order. The Administrative Judge could simply have ordered MLG to supply the new information in form that is compatible with the redacted electronic billing records. He was obviously attempting to be helpful by suggesting to MLG what it might do to resolve its issue with ESI and obtain the compatible electronic records. He was correct to not allow such small monetary dispute to stand in the way of multimillion dollar claim. do not see this issue warranting the attention of the Court. [39] The Administrative Judge made no error when he said the parties were agreed on common database because that is exactly what MLG requested in its Prayer for Relief. Further, see no issue of importance requiring the attention of the Court on the issue of the evidence or information upon which the Administrative Judge relied. Both parties relied on hearsay evidence and an application for directions is simply an informal procedural step to ensure the verification process moves along. [40] The prospective appellant fails to establish there is a matter of sufficient importance to the proceedings before the Court, or to the field of practice or the state of law, or to the administration of justice generally to warrant a determination by the Court. [41] agree with the prospective respondent an appeal will further delay and add to the cost of proceedings. [42] Leave to appeal is denied. The prospective respondent shall have its costs in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of March, 2013. “Lane J.A.”","The prospective appellant applied to leave to appeal an order made in Chambers. The Merchant Law Group and the Crown had been involved in protracted negotiations regarding the manner in which Merchant would bill the Crown for legal fees regarding their representation of Indian residential school claimants. The parties eventually reached a 'Verification Agreement', respecting the verification of Merchant's legal fees and disbursements. In order to protect solicitor-client privilege, Merchant's software company was able to develop redacted electronic billing records with the privileged information removed. When Merchant did submit a bill, it was discovered that the electronic billing records were inaccurate. The parties then became involved in a dispute regarding the Merchant's obligations under the Agreement. They had each made an application to a Chambers judge acting in his capacity as an administrative judge for the purposes of the Agreement for directions. The judge ordered (see: 2012 SKQB 517) that Merchant should contact its former software company and arrange for them to re-create the redacted electronic billing records as a whole from the 'live data' in the appellant's present billing program. Before the software company would perform this task, the Court ordered Merchant to pay the outstanding fees. Merchant had disputed these fees and had refused to pay them. Merchant took the position that the administrative judge had exceeded his jurisdiction by requiring the law firm to make this payment: the judge had over-reached his authority. In addition, the judge had based his decision on emails that were not evidence.HELD: The Court noted that leave to appeal under Court of Appeal Rule 11 is granted in accordance with the criteria established in Rothmans, Benson &amp; Hedges Inc. v. Saskatchewan. Leave to appeal was denied. The order appealed from was simply a discretionary order designed to move the verification process along and ensure the process met its overall objective of determining if the amount of Merchant's fee was reasonable and equitable. The prospective appellant failed to establish that there was a matter of sufficient importance to the proceedings or to the field of practice, the state of law or the administration of justice to warrant a determination by the Court.",d_2013skca22.txt
337,"Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code and s. 110(1) of the YCJA directing that any information identifying the complainant or the young person shall not be published. Court of Appeal for Saskatchewan Docket: CACR2813 Citation: P.R., 2018 SKCA 27 Date: 2018-04-06 And Her Majesty the Queen Before: Richards C.J.S., Herauf and Schwann JJ.A. Disposition: Sentence appeal allowed; conviction appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On Appeal From: Provincial Court, Beauval and Meadow Lake Appeal Heard: December 4, 2017 Counsel: Kathy L. Hodgson-Smith for the Appellant Beverly L. Klatt for the Respondent Alan G. McIntyre, Q.C. for Trial Counsel Herauf J.A. I. Introduction [1] The appellant was convicted after trial of sexually assaulting his 11-year-old niece contrary to s. 271 of the Criminal Code, RSC 1985, C-46. The appellant was 17 years old at the time of the offence and was sentenced as youth under the Youth Criminal Justice Act, SC 2002, [YCJA]. The appellant was sentenced to an 18-month custody and supervision order: 12 months to be served in secured custody, followed by months of community supervision. [2] The appellant appeals both his conviction and sentence. The appellant contends the trial judge made errors in assessing the credibility of the witnesses and that he received ineffective trial representation. The appellant also submits the sentence is unfit as it contradicts the principles, purpose and provisions of the YCJA, which support imposing non-custodial sentences for youth offenders. [3] For reasons on which I will elaborate, the conviction appeal is dismissed. The sentence appeal is allowed and the sentence imposed is varied to 12 months of probation. II. BACKGROUND of proceedings [4] Due to the significant length of time it took to conclude the proceedings for this offence, brief overview of the timeline is necessary. [5] The incident that gave rise to the charges against the appellant occurred on or about November 25, 2012. The appellant was released on conditions on November 28, 2012, made his first appearance in court on January 16, 2013, and entered not-guilty plea on March 20, 2013. [6] The trial commenced on August 21, 2013, in Beauval, Saskatchewan. The Crown called the complainant and the complainant’s former babysitter to testify. After the Crown closed its case, the trial was adjourned to December 18, 2013, for defence to call evidence. [7] Unfortunately, and unexpectedly, the trial judge passed away on December 19, 2013. mistrial was entered on January 14, 2014, and new trial was ordered for April 8, 2014. [8] The Crown was unavailable on April 8, 2014, and the trial was rescheduled for May 6, 2014. On May 6, 2014, the appellant failed to appear in court. On May 21, 2014, the appellant appeared without counsel and the matter was rescheduled for June 18, 2014, to allow the appellant to obtain counsel. [9] On June 18, 2014, the appellant appeared with temporary legal representative, who requested an adjournment. The adjournment was granted and the second trial was scheduled for February 18, 2015. The appellant retained different Legal Aid lawyer to represent him at the second trial, who then requested an adjournment to March 3, 2015. [10] On March 3, 2015, the Crown applied to have the complainant testify from soft room. This required change of venue from Beauval to Meadow Lake, which delayed the proceedings until March 20, 2015. [11] The second trial took place on March 20, 2015, in Meadow Lake. At the second trial, the Crown called the complainant, the complainant’s former babysitter and the complainant’s mother as witnesses. The defence called the appellant, his brother and his sister. The trial concluded that same day and the trial judge reserved his decision. [12] On June 2, 2015, the trial judge convicted the appellant of sexual assault. As the Crown was seeking custodial sentence, pre-sentence report was ordered as mandated by s. 39(6) of the YCJA. Sentencing submissions were adjourned pending the completion of the report. On August 4, 2015, the parties were ready to make submissions but the pre-sentence report was not completed. Submissions were adjourned to November 3, 2015. [13] The appellant retained new Legal Aid representation for the sentencing hearing. The sentencing submissions were adjourned three times (November 3, 2015, January 5, 2016, and March 1, 2016) on the request of both the Crown and defence. Submissions were made on May 3, 2016, after which the judge reserved his decision. [14] Nearly four years after the offence occurred, the appellant received his sentence. On June 7, 2016, the appellant was sentenced to an 18-month custody and supervision order. [15] The appellant appealed his conviction and sentence to this Court on June 24, 2016. The appellant was released on conditions pending the disposition of the appeal. His appeal was heard by this Court on December 4, 2017, which was over five years from the date of the offence. III. The Trial Decision A. The evidence at the second trial 1. The complainant’s testimony [16] The complainant testified that she and the appellant walked to the appellant’s house, sat on the couch in the living room for 15 minutes, and then the appellant told her to go into another room. Once in the bedroom, the appellant asked her to lie down with him and he had sexual intercourse with her. The complainant testified that she did not want to have sexual intercourse with the appellant. [17] The complainant also gave evidence that the appellant’s brother and sister were home at the relevant time and the brother was on the computer in the living room. Once she left the appellant’s house, the complainant contacted her former babysitter and told her what had occurred. The former babysitter then told the complainant’s mother, and the complainant’s mother and the complainant went to the police. 2. The former babysitter’s testimony [18] The former babysitter testified that the complainant contacted her about the sexual assault the night of the offence and, when the complainant spoke with her, she was crying and emotional. She testified she later contacted the complainant’s mother while the complainant’s mother was at work to tell her about the sexual assault. 3. The mother’s testimony [19] The complainant’s mother testified that she had become aware of the incident when she received telephone call from the complaint’s former babysitter while at work. She then left work and took her daughter to the police. She testified that her daughter was very scared and emotional. 4. The appellant’s testimony [20] The appellant testified that the complainant approached him on the street asking to use his bathroom and looking for cigarette. She came into his house, used the bathroom, sat down on the couch in the living room and left ten minutes later. The appellant testified that his brother was in the living room on the computer while the complainant was at the house. He denied taking the complainant to the bedroom and denied having sexual intercourse with her. 5. The brother’s testimony [21] The appellant’s brother testified that he was at home on the computer and watching television in the living room when the complainant was at the house. He testified that the complainant sat down on the couch, used the washroom, and left five or ten minutes later. The brother testified that, aside from using the washroom, the complainant stayed in the living room for the duration of her stay and that he never saw her go into the appellant’s bedroom. 6. The sister’s testimony [22] The appellant’s sister testified that she was home at the relevant time but was in and out of her bedroom and was sleeping part of the time. She testified that her bedroom did not have door and when she came out of her bedroom to get drink, she saw the complainant on the couch in the living room, her brother on the computer in the living room, and the appellant on the telephone. She testified that the complainant was there for five to ten minutes. B. Conviction and sentence [23] The trial judge accepted the complainant’s evidence and made the following findings of fact: (i) the appellant and the complainant were at the appellant’s house; (ii) the appellant asked the complainant to join him in his bedroom; and (iii) after talking for while in the bedroom, the parties had sexual intercourse. [24] The trial judge found the appellant’s testimony was complete denial of the events and determined his evidence did not raise reasonable doubt as to whether the sexual assault occurred based on his findings of fact from the complainant’s evidence pursuant to the credibility procedure articulated in W.(D.), 1991 CanLII 93 (SCC), [1991] [25] The trial judge rejected most of the siblings’ testimony. He concluded they were both distracted while the complainant was at the house and therefore were unable to observe the complainant the entire time. The trial judge expressed concern with the reliability of the siblings’ evidence due to their relationship with the appellant, finding this put them in difficult and biased position: ... But although [H.] and [J.] both testify that the complainant complainant was never in the accused’s bedroom. find that that first of all, both individuals are are in difficult position and are biased with the accused being their brother. Secondly, [J.] was in and out in and out of her bedroom while the complainant was there, so couldn’t have seen the complainant for the entire time. As for [H.], he was on the computer watching TV, so his attention was also not on the complainant at all times. (Transcript at T140) [26] Based on his assessment of credibility, his weighing of the evidence, and his findings of fact, the trial judge convicted the appellant of sexual assault. [27] The trial judge recognized the restrictions on imposing custodial sentence unless the gateway to custody was open pursuant to s. 39(1) of the YCJA. The trial judge concluded the option of custodial sentence was open in this case because the sexual assault caused the complainant serious bodily harm and constituted violent offence pursuant to s. 39(1)(a) of the YCJA. [28] After determining the custodial sentence was possibility, the trial judge considered whether there was non-custodial sentencing alternative that would fulfill the principles and purposes of sentencing contained in s. 38 of the YCJA. [29] Upon considering the circumstances of the appellant, sentences imposed in similar circumstances, and the likelihood of the appellant’s compliance with non-custodial sentence, the sentencing judge concluded: It is more likely than not that the accused would comply with the condition conditions of non-custodial sentence. However, find that given the seriousness of the offence and the fact that that denunciation and deterrence must take paramountcy, that given the degree of responsibility of the accused in this case, that there are no alternatives to custody that are reasonable in the circumstances. (T175, emphasis added) [30] Upon determining the principles of denunciation and deterrence were paramount sentencing principles in the circumstances, the trial judge sentenced the appellant to an 18-month custody and supervision order: 12 months to be served in closed custody followed by months of community supervision. [31] The appellant’s appeal raises the following issues: (a) Did the appellant receive ineffective legal representation at the second trial? (b) Did the trial judge err in his credibility assessment? (c) In sentencing the appellant, did the trial judge err in his consideration and application of the relevant principles and purposes of sentencing under the YCJA? V. Analysis A. Fresh evidence application [32] In support of his conviction appeal, the appellant made fresh evidence application. The appellant applied to admit into evidence the transcript from the first trial and an affidavit of the appellant, which outlines discussions between the appellant and his counsel prior to and during the second trial. Attached as exhibits to the appellant’s affidavit is copy of the complainant’s statements to the police taken on November 29, 2012, and December 22, 2012. [33] As this evidence was not before the trial judge, the evidence must meet the criteria for the admission of fresh evidence as set forth in Palmer (1979), 1979 CanLII (SCC), [1980] SCR 759 at 775: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases. (2) The evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief; and, (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [34] The nature of the evidence the appellant seeks to introduce relates to his allegation of incompetent counsel. Therefore, the threshold criteria articulated in Worm, 2014 SKCA 94 (CanLII), 442 Sask 228, applies: [111] In R. v. S.G.T., Wilkinson J. (ad hoc) noted that threshold criterion for the admission of fresh evidence in cases where trial fairness is at issue due to allegations of incompetent counsel is that the new information must be clear and convincing, otherwise it will not be admitted. She said this is because, in cases like this, the usual criteria for the admission of fresh evidence set forth in cases such as R. v. Palmer (1979), 1979 CanLII (SCC), [1980] S.C.R. 759, fall to the broader concerns of trial fairness, regularity of the trial process and avoidance of miscarriages of justice. [35] The transcripts from the first trial are necessary to review the allegations that the appellant’s trial counsel at the second trial failed to cross-examine Crown witnesses on perceived material inconsistencies between their testimony and their evidence given at the first trial. They are relevant to the allegation of incompetent trial counsel claim and to ensure this Court has the complete record for which to assess the merits of the allegation. [36] Similarly, the affidavit and the exhibited police statements are relevant to the appeal. The Crown did not object to the admission of the affidavit of the appellant, which included the statements of the complainant to the police exhibited to the affidavit. Counsel for the former trial counsel took no position. [37] conclude the evidence satisfies the threshold for admission as set out in Worm and grant the appellant’s fresh evidence application. The fresh evidence will be considered as it relates to the conviction appeal. B. Incompetent trial counsel claim [38] The appellant submits he received ineffective legal representation at his second trial and alleges his counsel failed to cross-examine the complainant on her many inconsistent statements. The appellant submits this failure resulted in the trial judge making erroneous credibility assessments that, given the importance of credibility to the conviction, puts the reliability of the verdict into question. [39] The evidentiary onus on an appellant alleging incompetent counsel was outlined in Short, 2012 SKCA 85 (CanLII) at para 5, 399 Sask 192: ... First, the appellant must establish the facts, including the acts or omissions of trial counsel, upon which the claim of incompetence is based. Second, the appellant must establish that the representation provided by trial counsel was incompetent. Third, the appellant must establish that the incompetent representation resulted in miscarriage of justice. [40] Trial counsel’s conduct is subject to strong presumption of competence: G.D.B., 2000 SCC 22 (CanLII), [2000] SCR 520; Kim, 2011 SKCA 74 (CanLII) at para 36, 375 Sask 68, leave to appeal to SCC dismissed, [2012] SCR ix. The presumption of competence is only displaced if the appellant can prove, on balance of probabilities, that trial counsel’s acts or omissions fell outside the range of “reasonable professional assistance”: Short at para 6. [41] The reasonableness standard of assessment necessarily protects wide range of professional legal assistance, as no two lawyers will defend an accused in exactly the same way. The benefit of hindsight, or an argument that another counsel would have acted differently in the circumstances, has no place in an appellate court’s assessment of whether trial counsel acted competently: Short at para 6. Lawyers must be given latitude to utilize trial strategies to address the diverse legal, factual and procedural circumstances that arise in each case. [42] The appellant has the onus of establishing that his counsel’s professional judgment was unreasonable in the circumstances and that this unreasonable professional judgment caused miscarriage of justice: G.D.B. at para 27. While the appellant has identified certain inconsistent statements in respect of which his counsel did not cross-examine the complainant, he has failed to establish these omissions amount to unreasonable professional judgment that reach the threshold of incompetence. [43] The art of cross-examination necessarily includes an element of trial strategy. Upon review of the circumstances in this case, am of the opinion it is reasonable to assume counsel’s decision to not cross-examine the complainant on certain inconsistencies was tactical decision. The complainant was very young at the time of the sexual assault and, at both trials, and it was obvious she was having difficulty expressing herself, seeking the protection of soft room at the second trial. It is appropriate to conclude counsel was aware of the clear, coherent and detailed statements the complainant had provided to the police shortly after the offence and that he strategically determined it was not beneficial to his client’s position to highlight those statements by raising certain inconsistencies between them and the testimony of the complainant. [44] Given the circumstances of the case, counsel had to determine whether certain lines of questioning would be beneficial or prejudicial to his client’s case. am of the opinion counsel’s approach to cross-examination in this case does not merit finding of incompetent trial counsel pursuant to G.D.B. and Short. Therefore, this ground of appeal must be dismissed. C. Alleged error in credibility assessment [45] The appellant submits the trial judge erred in his assessment of the credibility of the witnesses, namely, the complainant’s former babysitter and the appellant’s siblings. The appellant alleges this error resulted in an unreasonable verdict. [46] The appellant argues the trial judge erred in rejecting the sister’s evidence because even though she was distracted at the house, her evidence was both credible and vital to determining the guilt of the appellant. The appellant submits the trial judge erred in not accepting parts of the sister’s testimony, including the timeframe the complainant was in the house. [47] The appellant contends the brother’s evidence was the most reliable since he was in the living room and observed the complainant for the duration of her time at the house. Given the relevance of the brother’s evidence, the appellant submits it was an error to reject the entirety of that evidence on the basis of his familial relations to the appellant and potential bias. [48] The appellant also submits it was an error for the trial judge to accept and rely upon the evidence of the former babysitter because she changed her evidence between the two trials. The appellant submits the former babysitter testified at the first trial that the complainant contacted her the day after the offence, whereas at the second trial she testified the complainant contacted her the day of the offence. The appellant submits the former babysitter was an incredible witness and therefore her evidence should not have been relied upon. [49] It is well understood that an appellate court must show “great deference” to a trial judge’s assessment of witness credibility: W.(R.), 1992 CanLII 56 (SCC), [1992] SCR 122 at 131; François, 1994 CanLII 52 (SCC), [1994] SCR 827; Baxter, 2013 SKCA 52 (CanLII) at para 46, 414 Sask 184. Where an unreasonable verdict is alleged and the verdict is based on credibility assessment, an appellate court may only interfere if the verdict “cannot be supported on any reasonable view of the evidence”: Frances, 2017 SKCA 109 (CanLII) at para 3; Burke, 1996 CanLII 229 (SCC), [1996] SCR 474 at para 7; R.P., 2012 SCC 22 (CanLII) at para 10, [2012] [50] The verdict in this case came down to question of credibility. The trial judge correctly identified R v W.(D.), as the guiding legal principle in such circumstances. [51] The trial judge considered the evidence of the witnesses. He rejected the evidence of the siblings that the complainant was only at the house for five or ten minutes and that she never went into the bedroom. The trial judge gave reasons for rejecting these aspects of their testimony, namely that both siblings had been distracted while the complainant was at the house and that their relationship to the accused weakened the credibility of their testimony. [52] The trial judge made no specific findings of fact related to reliability or credibility of the former babysitter. It does not appear the trial judge relied on her testimony in any significant way, other than to say the complainant’s condition when she told the former babysitter was “consistent with someone having experienced this type of event” (at T140). am not convinced this reference had significant impact on the trial judge’s determination of the appellant’s guilt as the basis of the conviction stems from the trial judge’s findings of fact based on the complainant’s testimony. [53] The appellant has failed to convince me there is any reasonable basis upon which to question the trial judge’s credibility assessment of the former babysitter. Beyond that, am of the opinion his minimal reliance on the former babysitter’s evidence to assess the condition of the complainant after the offence had no meaningful impact on the verdict. [54] As noted, the trial judge properly instructed himself pursuant to the process outlined in W.(D.) to determine whether on the basis of the evidence that he had accepted, he was convinced beyond reasonable doubt of the appellant’s guilt. In particular, he said: Having considered all of the evidence, including that of the accused, and and as applied against the law as set out in the case of R. v. W.(D.) excuse me find as fact that on the date in question the complainant was at the accused’s residence. Furthermore, find as fact that the accused asked the complainant into his bedroom. That after they talked for while they banged. That the word banged used by the complainant means sexual intercourse for her. As for the accused’s evidence, find that it is is [sic], in fact, complete denial of the events for the date in question and does not raise reasonable doubt of the complainant’s evidence, which is, in fact, corroborated by other evidence leading up to the critical event, including the events afterwards when she’s seen leaving the house by the accused’s siblings. (T139–T140) [55] The trial judge was in the best position to assess the demeanor of the witnesses and draw conclusion on the credibility of their testimony: François at 836–837. This Court is not entitled to revisit the evidence in piecemeal fashion, deconstructing the trial judge’s findings and inferences of fact and his assessments of witness credibility. As has been observed in other appeals, it is difficult to succeed on an unreasonable verdict allegation for verdicts that rely on credibility assessments as the credibility assessment will not be deemed “unreasonable” unless it “cannot be supported on any reasonable view of the evidence” (emphasis added): Burke at para 7; R.P. at para 10; Baxter at para 46. [56] find no reversible error in the trial judge’s assessment of the credibility of the appellant’s siblings or the complainant’s former babysitter. The trial judge’s credibility findings are supportable on the evidence. The trial judge properly instructed himself pursuant to R v W.(D.) and I see no basis to interfere with the conviction. [57] Therefore, the appellant’s conviction appeal is dismissed. D. Sentence appeal [58] The appellant submits the trial judge failed to adhere to and properly apply the principles and purposes of sentencing pursuant to the YCJA. The appellant also submits these errors resulted in the trial judge imposing custodial sentence when there were reasonable non-custodial sentences available in the circumstances. The appellant contends the custodial sentence is therefore unfit and asks this Court to vary the sentence imposed. [59] Sentencing judges have wide discretion to impose sentences that are within the limits of the law. Pursuant to Lacasse, 2015 SCC 64 (CanLII), [2015] SCR 1089, an appellate court may not interfere with sentence simply because it would have imposed different sentence. The circumstances upon which an appellate court may intervene with sentence was summarized by Richards C.J.S. in L.V., 2016 SKCA 74 (CanLII), 480 Sask 181: [74] In the end, therefore, Lacasse indicates that an appellate court may substitute its own sense of an appropriate sentence for the one imposed by trial level court in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrably unfit. The second is when the trial level court made an error in principle, failed to consider relevant factor, or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence. [60] For reasons on which will elaborate, find the sentencing judge committed an error in principle when he emphasized denunciation and deterrence as the paramount sentencing objectives. This error impacted the sentence imposed and, therefore, pursuant to Lacasse, am permitted to substitute it with fit sentence. 1. Undue emphasis on deterrence and denunciation [61] The YCJA provides detailed sentencing code that dictates what principles and factors must be considered when sentencing youth offenders. The focus of sentencing under the YCJA is “balancing conflicting principles to arrive at sentence tailored to the individual circumstances”: Okemow, 2017 MBCA 59 (CanLII) at para 47. Sentencing youth pursuant to the YCJA mandates context-specific approach; an approach that differs entirely from the sentencing regime for adult offenders. [62] The sentencing principles for youth pursuant to the YCJA are enumerated in the Act’s Preamble, its Declaration of Principle in s. 3, and the detailed sentencing principles in s. 38. The constant theme woven through these provisions is that youth sentence seeks to ensure meaningful accountability through restorative sentences, as opposed to reliance on incarceration, to promote the long-term protection of the public. [63] The Preamble to the YCJA states the primary purpose of the legislation is to ensure youth criminal justice system that: ... commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons. [64] This theme is reinforced in the declaratory principles found in s. 3: 3(1) The following principles apply in this Act: (a) the youth criminal justice system is intended to protect the public by (i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [65] The principles in s. indicate that “fair and proportionate accountability” is the central principle for the sentencing of youth offenders and advocate for restorative rather than custodial sentences to achieve fair and proportionate accountability. These principles are expanded in s. 38, which enumerates the more explicit and directive sentencing purposes and principles for youth offenders: Purpose 38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles (2) youth justice court that imposes youth sentence on young person shall determine the sentence in accordance with the principles set out in section and the following principles: (a) the sentence must not result in punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (e) subject to paragraph (c), the sentence must: (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (f) subject to paragraph (c), the sentence may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. (Emphasis added) [66] The use of the word “shall” in the introductory clause to s. 38(2) and the word “must” and “should” in ss. 38(2)(a) to (e) indicate that youth sentencing judges are required to impose sentence that is in accordance with the principles in s. 3, as well as the specific sentencing principles enumerated in those provisions. They remind judges to reserve the use of custodial sentence for the most serious offenders and only when non-custodial sentence would be unable to ensure meaningful accountability and promote the long-term protection of the public. [67] In comparison, the use of the word “may” in s. 38(2)(f) connotes permissive, rather than obligatory, consideration of denunciation and deterrence as sentencing objectives for youth offenders. Judges are permitted to consider the objectives of denunciation and deterrence specific deterrence only when sentencing youth, however, reliance on either is discretionary: Okemow at para 57. If denunciation and deterrence are considered, they must be considered alongside the other sentencing principles expressed in the preamble, the declaratory principles in s. 3, and the mandatory sentencing principles in s. 38. [68] It should be noted that, when first enacted in 2003, the YCJA did not include reference to denunciation and deterrence as sentencing objectives for youth. These provisions were added to the Act through amendments contained in the Safe Streets and Communities Act, SC 2012, 1, in 2012. [69] The jurisprudence prior to 2012 indicates there was subtle, but important distinction, between deterrence being an effect of youth sentences rather than primary sentencing purpose (Nicholas Bala Sanjeev Anand, Youth Criminal Justice Law, 3d ed (Toronto: Irwin Law, 2012) at 125 [Bala Anand]). This distinction corresponds with the extensive body of social science research that has concluded deterrence as sentencing objective does not effectively deter criminal behavior. [70] Prior to 2012, denunciation was considered in similar fashion as deterrence in that judges turned their mind to the concept but did not consider it primary sentencing principle. Youth sentencing judges recognized the judicial system’s role in reinforcing fundamental social values and in condemning harmful behavior and therefore, when sentencing youth, judges considered the denunciating effect the sentence should have: see M.A.H., 2006 SKCA 114 (CanLII), 285 Sask 284; S.S., 2008 ONCA 140 (CanLII), 232 CCC (3d) 158. [71] Recognizing that the concepts of deterrence and denunciation were secondary factors already considered when imposing youth sentences prior to the 2012 amendments, the addition of s. 38(2)(f) in 2012 has been observed as imposing a relatively insignificant change to the approach sentencing judges took prior to 2012. [72] The Manitoba Court of Appeal discussed the impact of the amendments in Okemow: [47] Because there is no fundamental principle in the sentencing of young persons, the effect of the 2012 amendments to the YCJA should not be overstated. The focus of sentencing under the YCJA remains about balancing conflicting principles to arrive at sentence tailored to the individualized circumstances (see (LR) (2004), 2004 NBCA 76 (CanLII), 200 C.C.C. (3d) 472 at para (NBCA); and Quebec (Minister of Justice) at para 131). To some degree, the 2012 amendments represent philosophical shift in the YCJA, but it is not tectonic one for sentencing non-violent and non-repeat offenders. The Hon Rob Nicholson, Minister of Justice and Attorney General of Canada, advised Parliament that the intent behind the 2012 amendments to the YCJA was “to strengthen its handling of violent and repeat young offenders” (House of Commons Debates, 41st Parl, 1st Sess, No 017 (21 September, 2011) at 1525). In my view, the revised wording of the YCJA still has at its core the philosophy that the custodial remedy is last-resort option (see section 39(2) of the YCJA), reserved for discrete type of offender and, when used, it must be for the shortest duration possible in the circumstances. (Emphasis added) [73] The Manitoba Court of Appeal in Okemow highlighted the discretionary nature of deterrence and denunciation as sentencing considerations and cautioned against an over-reliance on those objectives in sentencing youth: [69] In some cases, where there is not diminished moral blameworthiness, due to the serious nature of the offence or the lengthy criminal history of the young person, it may be very difficult for the youth justice court judge to impose proportionate sentence without giving appropriate weight to the objectives of denunciation and/or specific deterrence. This new feature of the YCJA must, however, be understood properly in its limited context and applied cautiously in practice. Parliament has not called for increasing the rate of incarceration of young persons or changing its approach to sentencing for the vast majority of young persons who fall into trouble with the law. Rather, it has built measures into the YCJA to address deficiencies in the process that it perceived existed in relation to small but important subset of offenders, those committing serious crimes or serial offenders, where the presumption of diminished moral blameworthiness is rebutted in relation to the particular offence(s). This is entirely in keeping with this aspect of the preamble of the YCJA. (Italics emphasis added, underline emphasis in original) [74] According to Bala & Anand: “the 2012 amendments add specific deterrence and denunciation as sentencing factors for youth offenders, but these factors are to be considered in a fashion consistent with the principle of ‘diminished moral blameworthiness’ in section 3, and hence are of lesser importance than they are for adults” (at 128). [75] In my view, the YCJA establishes sentencing philosophy that promotes meaningful consequences and ensures accountability through rehabilitation and reintegration methods, as opposed to focusing on denunciation and deterrence to impose custodial sentences. Although denunciation and deterrence may be considered in determining the appropriate sentence for youth offender, they must not be the sole objectives considered and they must not take paramountcy over the other sentencing principles contained in the YCJA. [76] In this case, it is clear the sentencing judge considered the objectives of denunciation and deterrence to be the paramount sentencing considerations. This undue emphasis resulted in the sentencing judge failing to give proper consideration to the other, mandatory, sentencing principles contained in the YCJA. The sentencing judge failed to adhere to the sentencing directions contained in the YCJA and this represents an error in principle. 2. fit sentence [77] Due to the conclusion that the sentencing judge committed an error in principle that impacted the sentence imposed, this Court is permitted to determine fit sentence for the appellant in the circumstances. [78] This was major sexual assault that included sexual intercourse. The victim was 11 years old and was the appellant’s niece. The sexual assault caused the victim serious psychological harm. Generally speaking, major sexual assaults such as this merit custodial sentence in order to reflect the seriousness of the offence and to hold the youth accountable, unless there are unique circumstances that dictate non-custodial sentence is reasonable in the circumstances: see C.(V.I.) (2005), 2005 SKCA 95 (CanLII), 269 Sask 131 (CA).; C.S.U., 2006 SKCA 120 (CanLII), 289 Sask 28; J.A.H., 2016 MBCA 58 (CanLII), 330 Man (2d) 93; A.(J.), 2012 ONCJ 544 (CanLII); S.(C.), 2013 ONCJ 289 (CanLII); H.(D.), 2014 ONCJ 254 (CanLII); S.S.; N.C., 2015 SKPC 79 (CanLII), 474 Sask 299. [79] The facts surrounding this offence are extremely troubling and, at first blush, could lead one to conclude custodial sentence is the only fit sentence. However, am of the opinion the significant delay in concluding this case and the appellant’s positive lifestyle choices since the offence dictate that the appropriate sentence is 12-month probation order. As well, probationary sentence will better serve the long-term protection of the public and will promote the rehabilitation and reintegration of the appellant. 3. The principle of timely justice [80] As discussed above, the duration of time it took to conclude this case is significant. The sexual assault occurred on or about November 25, 2012. The appellant was found guilty after trial on March 20, 2015. The appellant was sentenced on June 7, 2016, nearly four years after the offence occurred. [81] The concept of timely justice is fundamental principle in our criminal justice system and one that holds special importance for adolescents. Not only are youth offenders entitled to the right to be tried within reasonable time enshrined in s. 11(b) of the Charter, the YCJA dictates timely justice when dealing with youth offenders. [82] Section of YCJA specifically enumerates the importance of timely justice in the declaratory principles provision: 3(1) The following principles apply in this Act: (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (Emphasis added) [83] The codification of the principle of timely justice in the YCJA is premised on the knowledge that time holds special relevance to young people and that this demands promptness from the criminal justice system. To ensure youth is held accountable through meaningful sanctions and to ensure the principles of the YCJA are upheld, proceedings under the YCJA must be conducted promptly: Okemow at para 145; M.(G.C.) (1991), 1991 CanLII 7057 (ON CA), 65 CCC (3d) 232 (Ont CA) at para 16; Bala Anand at 144. [84] Adolescents perceive time differently than adults and the passage of time has greater impact on young persons. In addition, adolescents have less-developed memories. Therefore, to ensure young person understands the relationship between his or her behavior and the consequences that flow from it, sanctions must be imposed promptly following the offending behavior. [85] The Ontario Court of Appeal discussed the importance of conducting youth proceedings promptly in M.(G.C) at 240: ... Delay, which may be reasonable in the adult criminal justice system, may not be reasonable in the youth court. There are sound reasons for this. They include the well-established fact that the ability of young person to appreciate the connection between behaviour and its consequences is less developed than an adult’s. For young persons, the effect of time may be distorted. If treatment is required and is to be made part of the Young Offenders Act disposition process, it is best begun with as little delay as is possible. [86] Although this case dealt with the Young Offenders Act, RSC 1985, Y-1 (repealed), the predecessor to the YCJA, the fundamental principle of timely justice for youths remains applicable and arguably is of increased importance given the specific enumeration of the principle of timely justice in ss. 3(b)(iv) and (v) of the YCJA: T.R. (2005), 2005 CanLII 18709 (ON CA), 197 CCC (3d) 14 (Ont CA). [87] In the appellant’s circumstances, there was delay of three years and seven months from the commission of the offence to the time of sentencing. There has been an additional delay of almost two years pending appeal. While recognize some of the delay was due to unforeseen and uncontrollable variables, the significant passage of time to conclude these proceedings cannot be ignored. As per S.S., the substantial period of time between the offence and the appeal is an important consideration when an appellate court is asked to consider the present fitness of sentence (at para 49). [88] As discussed above, the purpose of the YCJA is to promote the long-term protection of the public by imposing meaningful consequences, with view to rehabilitating and reintegrating the youth offender. The YCJA’s goal of imposing meaningful consequences that ensure sense of accountability in the youth is best achieved when the consequences occur within relatively short time from the commission of the offence. [89] I am of the view that, considering the significant passage of time, imposing a custodial sentence would be contrary to the purposes of the YCJA as it is contrary to the long-term protection of the public given that it is unlikely to promote, and may in fact impede, the appellant’s rehabilitation and reintegration into society. [90] In B.S., 2017 MBCA 102 (CanLII), the Manitoba Court of Appeal varied youth’s custodial sentence for major sexual assault to period of probation. The youth had been sentenced to six months of deferred custody and supervision followed by twelve months of probation. The Court of Appeal determined the sentence was illegal as the offence caused “serious bodily harm”, therefore deferred custody and supervision order was precluded by law pursuant to s. 42(5). [91] In its analysis of the fit sentence, the Court of Appeal noted that given the seriousness of the offence, the statutory preclusion of deferred custody and supervision order makes custody and supervision order the only realistic sentence “absent exceptional circumstances” (at para 10). The Court noted that five-month custody and supervision order would have been the fit sentence at the time of sentencing, however the circumstances of this youth at the time of the appeal qualified as exceptional and dictated period of probation as the appropriate sentence. The exceptional circumstances guiding the Manitoba Court of Appeal to this conclusion were the two-year delay between the offence and the disposition of the appeal, the youth’s adherence to release conditions for two months, the two-and-a-half months he served on his deferred custody and supervision sentence before the sentence was stayed pending appeal, and the fact “the Crown took no position as to whether the young person’s sentence should be stayed in light of these circumstances” (at para 13). [92] The Manitoba Court of Appeal concluded that “placing the young person in custody would not be in the interests of justice” (at para 14). The court varied the deferred custody and supervision order to five-month custody and supervision order, but stayed the custody and supervision order, leaving the youth to serve 12 months of probation as his sentence (para 15). [93] This case is instructive and helpful when considering the appropriate sentence to impose for the appellant in the circumstances before us. This was major sexual assault, which merits meaningful and proportionate sentence to hold the appellant accountable for his actions. While conclude major sexual assaults should generally attract custodial sentence, the unique circumstances of this case, including the significant delay, the appellant’s age at the time of sentencing, his good conduct since the offence, and his compliance with release conditions, have convinced me that the principles and objectives of sentencing pursuant to the YCJA are more meaningfully achieved through the imposition of non-custodial sentence. [94] The appellant was 17 years old at the time of the offence, 20 years old at the time of sentencing, and 22 years old at the time of the appeal. The appellant turned 20 years old while awaiting the disposition of his sentence. As was the case in J.B. and S.S., the appellant would now be required to serve custodial sentence in an adult facility pursuant to s. 89(1) of the YCJA. 22 year old is different person than 17 year old: S.S. at para 54. [95] agree with the premise that significant delay between the commission of the offence and the time of an appeal is worthy consideration when determining the fitness of sentence for youth offender. In particular, the impact of sending youth offender to an adult facility due to lengthy delay caused by the justice system is factor an appellate court must consider when determining the fit sentence for youth. [96] Since the commission of the offence, the appellant has made positive lifestyle choices while on release. He has maintained steady employment and has been attending Northlands College with near perfect attendance record. He has applied to continue his education in trades program after completion of his GED. His employers speak highly of him and he has good family support. He is the father of four-year-old daughter for whom he provides financial support and child care to enable the mother to attend school. [97] At the time of sentencing, the accused had no prior criminal record and the sentencing judge made note of the fact that in the nearly three-and-a-half-years since the commission of the offence, the appellant did not incur any new criminal charges. The only major risk concern identified in the appellant’s pre-sentence report was lack of leisure/recreation activities but on appeal he discussed his many recreational interests including playing sports with friends and fishing with his mother. [98] The appellant’s positive conduct in the community since the commission of the offence promotes confidence that his rehabilitation and reintegration into society will endure if he is permitted to remain in the community. In comparison, sending the appellant to an adult correctional facility would most likely hinder his rehabilitation and reintegration, as it would expose him to different social network and remove him from the stability and support of his family. [99] The benefit of non-custodial sentence to facilitate the continued rehabilitation of youth offender was discussed in N.C. and find it aptly applies in these circumstances: [20] The goal of sentencing under the YCJA is to ensure the long-term protection of the public. If N.C. is taken away from his family and placed in secure custody facility, he is going to meet new friends who are at much higher risk than he. He may learn things there he would be better off not knowing. He is likely to come out higher risk to commit all kinds of offences. This would reduce public safety, not enhance it. rehabilitative sentence is the most likely to ensure the long-term protection of the public. find the best way to rehabilitate N.C. is to allow him to remain in the community and take appropriate treatment and education. [100] further consideration to determine the appropriate sentence is the fact the appellant’s liberty interests have been constrained for lengthy period of time. The delay in this case has resulted in the appellant being on release conditions for nearly five years. In addition to the release conditions pending trial, the appellant was released on judicial interim release conditions pending the disposition of this appeal, to which he has fully complied. [101] The lapse of nearly four years between the offence and sentencing contradicts the principles that youth intervention should be timely and prompt pursuant to ss. 3(1)(b)(iv) and (v) of the YJCA. A custodial sentence at this point, five years after the offence occurred, would not serve the objectives and principles of the YCJA, including “timely intervention”, compliance with youth’s “perception of time” and imposing meaningful sanctions that promote rehabilitation and reintegration. [102] Upon consideration of the appellant’s positive conduct in the community since the offence, the restriction on his liberty since 2012, and the fact he would be required to serve custodial sentence in an adult facility, am of the view the principles of sentencing in the YCJA are best fulfilled at this juncture by period of probation. [103] emphasize the Court’s recognition and denunciation of this extremely serious offence. reinforce that offences of this nature generally merit custodial sentence to hold the offender accountable and to provide meaningful consequences for the criminal conduct. However, exceptional circumstances must be taken into consideration when they arise. Courts cannot lose sight of the fact that sentencing youth offenders pursuant to the YCJA is contextualized process and mandates unique lens in which to assess the fitness of sentence. [104] Therefore, I conclude the objectives and principles of the YCJA are best fulfilled by a sentence of 12 months of probation. would invite counsel to file written submissions as to the appropriate conditions within the two weeks from the date of this judgment. Conclusion [105] In the result, the conviction appeal is dismissed. Leave to appeal the sentence is granted and the 18-month custody and supervision order is varied to a probationary term of 12 months. “Herauf J.A.” Herauf J.A. concur. “Richards C.J.S.” Richards C.J.S. concur. “Schwann J.A.” Schwann J.A.","HELD: The appeal from conviction was dismissed and sentence appeal allowed. The sentence was varied to 12 months of probation. The court found with respect to each issue that: 1) the presumption of competent trial representation had not been displaced. The trial lawyer’s decision not to cross-examine the complainant was a tactical one. She was very young and had difficulty expressing herself in the courtroom whereas she had given clear, coherent statements to the police shortly after the offence. The lawyer determined that it was not beneficial to the appellant’s position to highlight those statements by raising certain inconsistences between them and the complainant’s testimony;  2) the trial judge’s assessment of credibility was entitled to deference. He correctly identified R v W.(D.) as the guiding legal principle in the circumstances and his credibility findings were supportable on the evidence; and 3) the sentence was unfit because denunciation and deterrence are secondary factors in sentencing young offenders and are to be considered in a fashion consistent with the principle of “diminished moral blameworthiness” described in s. 3 the YCJA. The court acknowledged that this offence, committed against an 11-year-old and causing her serious psychological harm, might warrant a custodial sentence but for the appellant’s exemplary conduct since the offence and the almost four years that had elapsed between the offence in 2012 and his sentencing in 2016. Under s. 3(1)(b)(iv) and (v) of the YCJA, the delay in this case offended the concept of timely justice. To impose a custodial sentence on the appellant in this case would be contrary to the purposes of the YCJA as it would impede the appellant’s rehabilitation and reintegration into society. The court decided that a fit sentence in this case would be 12 months of probation.",b_2018skca27.txt
338,"J. IN THE MATTER OF AN APPLICATION MADE BY THE PLAINTIFFS IN ACTIONS STYLED AS Q.B. No. 95 of A.D. 1996 Q.B. No. 96 of A.D. 1996 Q.B. No. 97 of A.D. 1996 Q.B. No. 98 of A.D. 1996 Q.B. No. 99 of A.D. 1996 IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN K.M. Rondeau R.M. Baumgartner for the applicants A.A. Fox for Herc P. Foley, Q.C. G.A. Zabos for Long Riders Rig Corporation E.C. Lothian for Rigel Oil Gas Poco Petroleums W.T. Stodalka for PetroCan R.M. Van Beselaere for Canadian Western Bank G.J. Moran for Department of Energy Mines (Saskatchewan) FIAT MacPHERSON C.J.Q.B. September 12, 1996 Briefly stated, the plaintiffs (""applicants"") seek anorder preserving and detaining certain proceeds from certainoil production properties, those proceeds now being held by anescrow agent pursuant to an order of the bankruptcy court inAlberta, and a further order preserving and detaining allfuture proceeds from those properties. The applicants claim such orders are necessary to protect their claims under builders' liens which they have filed against those oil properties under the terms of The Builders' Lien Act, S.S. 1984‑85‑86, c. B‑7.1 (""BLA""). copy of the notice of motion is annexed as appendix ""A"". FACTS This is joint application by the applicants in each of the above actions. The respondents who appeared on this application are among the defendants named in each of the above applications. The full style of cause in each of the actions is attached hereto as appendix ""B"". The applicants claim to have provided goods and services to various oil wells and their associated facilities in the southeast Saskatchewan oil patch at the request of Williston Wildcatters Oil Corporation (""WWOC""). The applicants have filed, according to the affidavit of Mr. Baumgartner, counsel for the applicants, approximately 408 builders' liens (which presume includes liens registered in the Mineral Rights Branch of the Department of Energy and Mines (Saskatchewan) (""SEM"") pursuant to ss. 51(1) of the BLA) against the various oil properties, the total amount of those liens being $3,846,420.00. Each of the respondents, with certain exceptions, has an interest in one or more of those oil wells and the production of oil therefrom. The exceptions constitute 20 defendants whose only interest in any of the properties arise from builders' liens which they have registered against one or more of the properties; none of these have commenced actions to enforce those liens against any of the other defendants. After failing in an application under the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C‑36, WWOC was petitioned in bankruptcy on October 13, 1995. The respondent, Herc Oil Corp. (""Herc""), was formed for the purpose of advancing proposal for the restructuring of the assets and liabilities of WWOC, and on October 31, 1995, Herc obtained an order from the Alberta Bankruptcy Court imposing stay of proceedings upon creditor's actions and protecting WWOC's assets pending the filing by Herc of creditors' sponsored Plan of Arrangement and Compromise (the ""Plan"") and this Plan was sanctioned and approved by the Alberta Bankruptcy Court on May 11, 1996. Details of the Plan and the events leading up to the present application are set out in the brief filed by Herc, and portion thereof is attached as appendix ""C"" to this fiat. Except for the names of the parties and the details of the claims of the various plaintiffs, the contents of the statements of claim in each of the five actions are identical. The notice of motion herein is supported by the affidavit of Greg Cousins, president of Greg Cousins Construction Ltd., which company is plaintiff in each of the five actions. Also filed in support of the notice of motion, in addition to Mr. Baumgartner's affidavit, are the affidavits of Ray Frehlick, president of the plaintiff, Prairie Mud Chemical Service Ltd., Gary W. Hyer, former chief of petroleum engineering of WWOC, and the affidavits of two geologists, Robert W. Shirkie and Donald Williams, the last two stating that the oil properties involved in this application have declining rate of production resulting in the value of the properties continually declining unless there is ""further development or recovery efforts to maintain or increase production"". Paragraph 17 of the Cousins affidavit reads: 17. believe that unless the production proceeds from the Lands are paid into court pending the resolution of the builders' liens on the Lands, Cousins and the other Plaintiffs in the Actions may suffer irreparable harm as full recovery of the amount of the builders' liens on the Lands may not be possible. On June 14, 1996, Allbright J. granted to the applicants an ex parte order that the lien property revenue already paid to the escrow agent shall remain in the possession of the escrow agent until the hearing of this notice of motion, and on June 25, Dawson J. ordered that continuing lien property revenue received by Herc shall be retained by Herc until further order of the court. By hearing full argument on paragraph of the notice of motion, it was implicit that had granted the order requested in paragraph thereof. To remove any doubt, hereby confirm my order that pursuant to ss. 91(2) of the BLA that permission was granted for the applicants to proceed with the interlocutory motion. Also, at the outset of the hearing before me, heard the application by counsel for the SEM to intervene herein and to be added as party defendant pursuant to Queen's Bench Rule 39. granted that application. The following affidavits were filed by the respondents: For Herc the affidavit of Nathan Hollick, President and Chief Executive Officer of Herc, and two supplementary affidavits. For Long Riders Rig Corporation (""Long Riders"") the affidavit of Gerald N. Diamond, Secretary of Long Riders. For Poco Petroleums Ltd. (""Poco"") the affidavit of John de la Mare, manager of accounting operations for Poco. For Rigel Oil Gas Ltd. (""Rigel"") the affidavit of Donald R. Gardner, Vice‑President of Finance of Rigel. For Petro Canada (""PetroCan"") and Prairie Leaseholds Ltd. (""Prairie"") the affidavit of Dennis Chase, land consultant to PetroCan and Prairie. The affidavit of Bruce Wilson, Executive Director of the Petroleum and Natural Gas Division of SEM. Briefs were filed by: the applicants Rigel Long Riders SEM All counsel appearing were in agreement that the principles to be applied in considering paragraph of the notice of motion are those that apply to an application for injunctive relief. ANALYSIS In Bean on Injunctions, 2nd Ed., (London: Oyez Longman Publishing, 1982) at p. 3, we find the following: An injunction is an order of court requiring party either to do specific act or acts (a mandatory or positive injunction) or to refrain from doing specific act or acts (a prohibitory or negative injunction). In Sharpe, Injunctions and Specific Performance, 2nd ed. (Aurora: Canada Law Book, 1993, updated 1995, Release No. 3) at p. 1‑1, para. 1.10: mandatory injunction is one which requires the defendant to act positively. mandatory injunctions look to the future and require the defendant to carry out some unperformed duty to act. Applying the forgoing to our factual situation, it is apparent that the plaintiffs are seeking mandatory injunction. In Cupar School Division No. 28 v. Trustees of Dysart School District consisting of Peter Kolody, Paula Bradshaw, Janet Bradshaw, Gerry Zatylny, Dale Czemeres, Lori Shindle and Mary Goff, Sask. C.A. No. 2525, September 4, 1996, unreported, the Court of Appeal at p. summarized the test for the granting of mandatory injunction found in Bean, supra, at p. 17 as follows: Bean, supra, provides useful summary of the criteria for mandatory perpetual injunction. These being potentially more significant than interim ones, are to be granted rarely. The tests are: 1. mandatory injunction can only be granted where the plaintiff shows very strong probability upon the facts that grave damage will accrue to him in the future. 2. The plaintiff must also show that damages will not be sufficient or adequate remedy if such damage does happen. 3. Unlike the case where negative injunction is granted to prevent the continuance or recurrence of wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of future apprehended wrong must be an element to be taken into account. 4. If in the exercise of its discretion the court decides that it is proper case to grant mandatory injunction, then the court must be careful to see that the defendant knows exactly what he has to do, and this means not as matter of law but as matter of fact. Turning again to Sharpe, supra, in paras. 2.640 and 2.650 at p. 2‑38 dealing with interlocutory mandatory injunctions, we 2.640 As the defendant would be required on an interlocutory basis to take positive action, the potential inconvenience is usually substantial. It is rare case, indeed, where the risk of harm to the defendant will be less significant than the risk to the plaintiff resulting from the court staying its hand until trial. 2.650 However, it is also clear that interlocutory mandatory orders can be made in appropriate cases. Where the risk of harm to the plaintiff is substantial and can only be alleviated by requiring positive steps at the interlocutory stage, such an order is appropriate. [Emphasis added] In setting for the following test, recognize that they really state, in different forms, the generally recognized test of prima facie case, irreparable harm and balance of convenience, but with more stringent requirements for the mandatory injunction. To begin, wish to comment on the sufficiency of the evidence put before this Court by the applicants. As mentioned earlier, the applicants submitted the affidavit of Greg Cousins, president of Greg Cousins Construction. Annexed to this affidavit were copies of the claims of lien which were registered by Greg Cousins Construction. At paragraph of his affidavit, Mr. Cousins claims that these liens are in ""substantially the same form"" as the liens registered by the other applicants. The applicant did not, however, file any of those other liens with this Court. It is difficult to consider the relative strength of the applicants case (that being their entitlement to compensation based upon the liens registered by them) when those liens are not before the court. Even if can travel past the disturbing fact that only one lienholder filed an affidavit upon which am supposed to grant an order for all the applicants, and the fact that no invoices or other information were filed substantiating the amount claimed in any of the liens, must note that there also exists many other vacancies of information within the material filed. For example, the Greg Cousins liens, to my mind, raise question as to compliance with ss. 50(2)(b) of the BLA which requires that the claim of lien shall set out, inter alia, ""a short description of the services or materials that have been provided"" added]. Each and every lien filed by Greg Cousins Construction, as filed herein, contains the same description: All labour, equipment and material supplied in connection with transporting oil or water, oilfield equipment, machinery and materials; constructing, servicing and repairing oilfield facilities; snow clearing; tank truck services; or earth moving, lease preparation/restoration in connection with the oilfield facility located on The word ""or"" indicates that either the services or materials provided were those before ""or"" after that word not both. From reading the above description, person purportedly subject to the lien does not know: whether oil or water was transported whether the services or materials provided are those before the last semicolon or those after that semicolon. I do not suggest that Cousins loses his lien securityas a consequence of this confusion, but I do point out that ifthese liens are substantially the same as those of all theclaimants, then whatever prima facie case they might otherwisehave is certainly weakened by this confusion, particularly inthe absence of any invoices. Despite any misgivings as to whether the material filed by the applicants is sufficient to support prima facie case, will go on to discuss the four tests which were enunciated in Cupar, supra, and set out above. The First Test 1.A mandatory injunction can only be granted where the plaintiff shows very strong probability upon the facts that grave damage will accrue to him in the future. This test goes much further than the ""prima facie"", or strong prima facie, case that must be proven in negative injunction application. In the case before me the applicants must prove ""very strong probability"" that grave damage will accrue. In my view, the plaintiffs have not established ""avery strong probability upon the facts that grave damage willaccrue to him in the future"". In the prayer for relief at page of the statement of claim the plaintiff claims firstly declaration as to their entitlement to builders' liens on the properties owned by the various defendants and, secondly, in default of payment of the builders' liens, the interests of the defendants in the properties ""may be sold and the proceeds applied in and towards payment of the plaintiffs claims. ."" Thirdly, the plaintiffs seek mandatory injunction in respect of the proceeds of those properties. The plaintiffs have submitted no evidence that in the event they choose to go to trials in their actions, and if they succeed, any of the defendants will not be in position to pay whatever amounts the court finds as being owing under the liens. On the other hand, if the preservation and detention order should issue, the affidavits of the respondents, and particularly the affidavits of Mr. Hollick, make it clear that Herc would then have no funds, or insufficient funds to perform the necessary functions as outlined in paragraph 10 of his first affidavit which could or would mean that oil production would be drastically reduced or even halted, and thus the properties become worthless. Both geologists' affidavits filed by the applicants state that the oil properties will continually decline ""without further development or recovery efforts to maintain or increase production"" and Herc obviously must have funds to perform these functions. This is not denied by the applicants. The result of this comparison is obvious ‑ asstated in Sharpe, supra, the risk to the respondents if theorder should be granted is far greater than the risk to theapplicants if the order is not granted. Furthermore, there is distinct possibility that should the preservation order issue, SEM will exercise its extensive powers under The Oil and Gas Conservation Act, R.S.S. 1978, c. O‑2 and The Oil and Gas Conservation Regulations, R.R.S. 1985, O‑2, Reg. 1. If necessary, those powers extend to the shutting down of Herc's operations should Herc fail to meet any of the environmental obligations. See ss. 17(1)(g), 18(j) and (t) of The Oil and Gas Conservation Act. While s. 33 of the BLA provides that the lien is charge on the holdback on any trust funds held by the contractor, it does not give the lienholder charge against any other moneys. builders' lien cannot be looked on as ""proof"" that the amount claimed as owing in the lien is, in fact, what is actually owed to the lienholder. If the owner against whom builders' lien is filed chooses not to pay the amount of the lien because the owner questions its validity or for any other reason, the only remedy open to the lienholder is to ""enforce"" its ""claim of lien"" under the provisions of Part VIII of the BLA. There is no other means under the BLA by which lienholder can enforce its claim. Section 28(3) of the BLA reads: 28(3) Subject to Part IV, in determining the amount of lien under subsection (1) or (2), there may be taken into account the amount that is, as between payer and the person he is liable to pay, equal to the balance in the payer's favour of all outstanding debts, claims or damages, that are related to the improvement. The words ""all outstanding debts, claims or damages"" would bring into play the claims of those lienholders against the properties in question who have been joined as defendants but who have no other interest in the properties. These claims could significantly reduce the amounts the plaintiffs could recover should their action go to trial. Another difficulty faced by the plaintiffs arises because nowhere in the statement of claim or in their supporting affidavits is it set forth with any specificity the dates or times when any of the applicants performed the services for which they claim. The statement of claim says nothing about these dates or times. On the material filed we do not and cannot know if any of the respondents are ""intervening parties"" within ss. 49(5)(a) of the BLA. Paragraph of Mr. Baumgartner's affidavit simply says the services were supplied ""in or about 1994"" and states as well that most of the applicants' liens were filed in May and June of 1995. rough survey of the certified copies of titles to the property as filed by the applicants indicates that about five or six builders' liens were registered in December, 1994, about seven from January to April, 1995, 480 in May and June of 1995, 74 from July to December, 1995, and about 63 in 1996. The total of these registered liens (about 630) considerably exceeds the 480 liens in paragraph 13 of the Baumgartner affidavit, which indicates there are substantial number of lienholders who have not joined the applicants in the four actions. This apparent late‑filing of builders' liens by the applicants could bring into play positions taken by several opposing counsel during the hearing, and set forth with some particularity in the brief filed by PetroCan. It is acknowledged that ss. 22(2) of the BLA expands the lien rights contained in ss. 22(1). have reservations as to the validity of that argument, but see no need to pursue it because feel there are other strong grounds for rejecting the applicants' application under the first test. The Second Test 2.The plaintiff must also show that damages will not be sufficient or adequate remedy if such damage does happen. Here again the applicants fail in meeting this test for much the same reason as they fail in the first test. emphasize again that the applicants have not shown that if they pursue their builders' liens actions in the court under Part VIII of the BLA, and prove their lien claims as they must do, that the judgments thus obtained will not be sufficient remedy for them. Each of the applicants has claim for money as set out in each of the liens. If they pursue their lien actions under Part VIII of the BLA and obtain judgments against the various respondents, there is nothing in the material to suggest that the respondents will not pay those judgments with the result that the applicants will recover whatever amounts the courts hold that they are entitled to recover under their liens. See RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.R. 311 at p. 341: ""Irreparable"" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured,usually because one party cannot collect damages from the other [Emphasis added] The applicants suggest also that they will suffer irreparable harm if the order sought is not granted because the fruits of any successful litigation will be no longer available at the time the litigation comes to an end, and they suggest the liened lands will not have enough value in them to satisfy judgment. The question is not whether the properties are declining in value. Such conclusion is inevitable by virtue of the very nature of the property. Oil is non‑ renewable resource with limited lifespan. The real issue is whether this decline in value will occur at such rapid rate as to rob the applicants of the fruits of potentially successful litigation, and therefor cause them irreparable harm. The geologists do not state that this decline in value is imminent. They simply state that the value will decline without further development or recovery efforts to maintain or increase production. The order sought will hasten, if not create, the very irreparable harm that the applicants assert. The order will surely guarantee the harm predicted by freezingthe capital necessary to hinder the inevitable decline invalue. In this way, the applicants' assertion of irreparableharm will become a self‑fulfilling prophecy. The Third Test 3.Unlike the case where negative injunction is granted to prevent the continuance or recurrence of wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of future apprehended wrong must be an element to be taken into account. This, in effect, is the balance of convenience test. Above, have already dealt to some extent with the considerably greater inconvenience to the respondents should the desired order be granted, than would be the inconvenience to the applicant should it not be granted. In addition, should point out the submissions made and affidavit filed by SEM. The affidavit of Bruce Wilson sets forth in paragraph the environmental problems in respect of the Herc properties, it explains the reserve fund which has been established by Herc and Herc's undertaking in that respect. This affidavit points out in paragraph 14 that it is unacceptable to SEM that lien creditors should receive the income from the properties in question without being responsible for the environmental costs associated with those properties. Furthermore, at paragraphs 11, 12 and 13 of his affidavit, Mr. Wilson clearly indicates the Crown's willingness to wield its statutory powers under The Oil and Gas Conservation Act and Regulations to ensure that these environmental obligations are met. In fact, this result would arguably cause harm not only to the respondents, but also to the applicants themselves. This test, of course, refers specifically to negative injunction rather than positive or mandatory injunction, which is the situation before me. However, note that this test refers to the ""continuance or recurrence of wrongful act"" by the respondents and think it is worth pointing out that the respondents, in the context of the matter before me, have not been guilty of any wrongful acts. The respondents have been caught up in the problems created by the bankruptcy of WWOC just as the applicants have been caught up in those problems. The Fourth Test 4.If in the exercise of its discretion the court decides that it is proper case to grant mandatory injunction, then the court must be careful to see that the defendant knows exactly what he has to do, and this means not as matter of law but as matter of fact. In view of my previous findings, there is really no need to deal with this test. However, it is worth mentioning that if were to issue the order applied for would have grave difficulty in determining the appropriate amount of the lien property revenue that should be paid to an escrow agent, or in some other manner preserving and detaining that revenue. For example, paragraph 3.6(a) of the Plan provides that the ""net revenues"" from the properties shall be paid to the trustee. There is no definition of ""net revenues"" the section does not state what should be deducted in order to arrive at the net revenue. Paragraph 3.6(b) uses the phrase ""Lien Property Revenue"" but seems to adopt the words of 3.6(a) so that ""Lien Property Revenue"" means ""net revenues"". In Royal Bank v. Rice (1921), 60 D.L.R. 169 at 171, the Manitoba Court of Appeal defined ""net"" as meaning ""with all deductions (such as charges, expenses, discounts, commissions, taxes, etc.)"". So far as Herc is concerned, would such deductions include the environmental reserve, royalties, operating maintenance of the wells, capital expenditures as set out in paragraph 10 of Mr. Hollick's first affidavit on behalf of Herc, and/or necessary injections of further capital, etc.? There is no material before me that would have been of any assistance in making this determination. In the course of argument, Mr. Baumgartner indicated that the applicants would be agreeable to lessors' royalties, Crown production taxes, and normal operating expenses being deducted but would not agree to gross royalties or environmental reserve costs being deducted. The respondents did not agree to this proposal and, in particular, were of the view that if such an order were to be made, gross royalties and environmental reserve costs should be included in the deductions. As final note, though perhaps unnecessary given my decision to deny this application, the applicants would be required, under Rule 390 of the Queen's Bench rules, to pay full compensation before the order sought was issued. It has not done so. CONCLUSION For the reasons stated above, and my findings thatthe applicants have not met the first and second tests, andtaking into account the factors to be considered in the thirdtest, I hold and order:(a)that the plaintiffs' application under paragraph 2 of itsnotice of motion must be, and is hereby dismissed;(b)that the escrow agent, being the firm of McLellan, Cundall,Bridges and Baumgartner, as set forth in the Plan shallforthwith;(i)in accordance with paragraph 3.6(c) of the Plan,remit to Herc the lien property revenues which the escrowagent has received, and interest earned thereon;(ii)remit to Herc the lien property revenues(including interest earned thereon), if any, paid to theescrow agent by Herc,after deduction of the escrow agent's appropriate costs inacting as such escrow agent. (c)with the exception of the SEM, the other parties appearing through counsel on this application will have their costs against the applicants. C.J.Q.B. APPENDIX ""A"" NOTICE OF MOTION TAKE NOTICE that an application will be made to the presiding judge in chambers at the Court House, 101 Fourth Street, Estevan, Saskatchewan, on Tuesday the 25th day of June, 1996 at 1:00 o'clock in the afternoon or so soon thereafter as counsel can be heard on behalf of the Applicants for the following relief, namely: 1. An order pursuant to section 91(2) of The Builders' Lien Act, S.S. 1984‑85‑86, c. B‑7.1 permitting the within interlocutory application. 2. An order pursuant to rules 387, 387A and 390 of The Queen's Bench Rules: (a)preserving and detaining, on such terms as may be ordered by this Honourable Court that Lien Property Revenue paid to McLellan, Cundall, Bridges Baumgartner as Escrow Agent pursuant to Section 3.6(c) of an Amended Plan of Arrangement and Compromise dated February 13, 1996 as approved and ordered on March 11, 1996 by the Honourable Mr. Justice M.E. Lomas of the Alberta Court of Queen's Bench on such terms as may be ordered by this Honourable Court; and (b)preserving and detaining, all future production proceeds of oil recovered on certain lands upon which the Applicants have registered builders' liens on such terms as may be ordered by this Honourable Court. AND TAKE FURTHER NOTICE that the Applicants claim to be entitled to the relief requested on the following grounds: 1.The property sought to be preserved is precisely ascertainable and identifiable. 2.The Applicants are lien claimants who have provided services or material preparatory to or in connection with the recovery of the said oil pursuant to subsections 22(2)(a) and 22(2)(b) of The Builders' Lien Act. 3.The Applicants have strong prima facie case entitling them to lien upon the said funds as specified in the Statements of Claim upon which this application is based. 4.The said production proceeds are the subject matter of the said liens, and failure to preserve these production proceeds would result in irreparable harm to the Applicants by seriously jeopardizing or depriving the Applicants of the remedy provided to each of them by subsection 22(2)(e) of The Builders' Lien Act. AND TAKE FURTHER NOTICE that in support of this application shall be read: 1. This Notice of Motion with proofs of service thereof; 2.The Affidavit of Greg Cousins; 3.The Affidavit of Donald Williams; 4.The Affidavit of Robert Shirkie; 5.Certain certified copies of titles against which claims of lien have been registered as specified in the Statements of Claim; 6.Certain searches of leases provided by the Department of Energy and Mines, Province of Saskatchewan, against which claims of lien have been registered as specified in the Statements of Claim; and, 7. The pleadings and proceedings had and taken herein. DATED at the City of Estevan, in the Province of Saskatchewan, this 19th day of June, 1996. APPENDIX ""B"" Q.B. No. 95 of A.D. 1996 IN THE QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC., COULTER and McGILLICKY SALES AND SERVICE LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., HANK'S MAINTENANCE AND SERVICE CO. LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., PRAIRIE MUD CHEMICAL SERVICE LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., ROCKET SALES RENTAL CO. LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD. and VIKING SURPLUS OIL FIELD EQUIPMENT LTD. and HERC OIL CORP., CANADIAN WESTERN BANK, TRANSWEST ENERGY INC., T. BIRD OIL LTD., CANADIAN FRACMASTER LTD., DeGEER EXCAVATING LTD., DIAMOND OILFIELD SALES RENTAL INC., RICHARD McNAIR DEFENDANTS Q.B. NO. 96 of A.D. 1996 BETWEEN: GERALD BIG EAGLE, carrying on business under the firm name and style of BIG EAGLE TRUCKING, CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., FAST TRUCKING SERVICE LTD., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., PRAIRIE MUD CHEMICAL SERVICE LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., ROBERT POTT, carrying on business under the firm name and style of SPRUCE GROVE TRUCKING, TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD., VENTURE WELL SERVICING LTD. and WATERFLOOD SERVICE SALES LTD. and HERC OIL CORP., THE LONG RIDERS RIG CORPORATION, TRIP RESOURCES LTD., TRIASSIC RESOURCES LTD., MODUS RESOURCES LTD., TARRAGON OIL AND GAS LIMITED, CANADIAN WESTERN BANK, PARAFFIN SERVICES LTD. and RICHARD McNAIR DEFENDANTS Q.B. No. 97 of A.D. 1996 BETWEEN: BECKER OIL TOOLS LTD., GERALD BIG EAGLE carrying on business under the firm name and style of BIG EAGLE TRUCKING, CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC., CLIFFORD L. KIRBY, COULTER AND McGILLICKY SALES AND SERVICE LTD., DAY CONSTRUCTION LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., EAGLE ENERGY LTD., FOSTER'S ELECTRIC LTD., GREG COUSIN'S CONSTRUCTION LTD., HOMCO, division of Weatherford Oil Tool Co. (1983) Ltd., JOHNSTONE TANK TRUCKING LTD., LAFRENTZ CHRISTENSON TRUCKING LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., PENDEMAK INDUSTRIES LTD., PRAIRIE MUD CHEMICAL SERVICES LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., SEBCO CORING TONGS LTD., ROBERT POTT, carrying on business under the firm name and style of SPRUCE GROVE TRUCKING, TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD., VENTURE WELL SERVICING LTD., VIKING SURPLUS OIL FIELD EQUIPMENT LTD., and WATERFLOOD SERVICE SALES LTD. and HERC OIL CORP., CANADIAN FINA OIL LIMITED, DANFORTH OIL GAS LTD., THE LONG RIDERS RIG CORPORATION, MIDALE PETROLEUMS LTD., MODUS RESOURCES LTD., PETRO CANADA, PRAIRIE LEASEHOLDS LTD., REID‑BICKNELL LAND LTD., RICHLAND PETROLEUM CORPORATION, T.D.L. PETROLEUMS INC., TRIASSIC RESOURCES LTD., TRIP RESOURCES, VISTA INTERNATIONAL PETROLEUMS LTD., WALKING STICK OIL GAS CORP., CANADIAN WESTERN BANK, TAMMY BONOKOSKI, CANADIAN FRACMASTER LTD., RICHARD McNAIR, OILFIELD ELECTRONICS ESTEVAN LTD., PARAFFIN SERVICES LTD. and TAC WELL SERVICES DEFENDANTS Q.B. No. 98 of A.D. 1996 BETWEEN: BECKER OIL TOOLS LTD., BERT BAXTER TRANSPORT LTD., GERALD BIG EAGLE, carrying on business under the firm name and style of BIG EAGLE TRUCKING., BLACK MAX DOWNHOLE TOOL LTD., CARSON WELDING MAINTENANCE LTD., CAMERON COLLINS, carrying on business under the firm name and style of COLLINS CONSTRUCTION, CHAMPION TECHNOLOGIES, INC., COULTER AND McGILLICKY SALES AND SERVICE LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., HANK'S MAINTENANCE AND SERVICE CO. LTD., HOMCO, Division of Weatherford Oil Tool Co. (1983) Ltd., JOHNSTONE TANK TRUCKING LTD., WAYNE KING, carrying on business under the firm name and style of King's Water Hauling, LAFRANTZ CHRISTENSON TRUCKING LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., NORJET GEOTCHNOLOGIES INC., PENDEMAK INDUSTRIES LTD., PRAIRIE MUD CHEMICAL SERVICE LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., RED HAWK WELL SERVICING LTD., ROCKET SALES RENTAL CO LTD., SEBCO CORING TONGS LTD., TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., TANNER TRUCKING LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD. and VENTURE WELL SERVICING LTD. and HERC OIL CORP., POCO PETROLEUMS LTD., THE LONG RIDERS RIG CORPORATION, VOYAGER ENERGY INC., CANADIAN WESTERN BANK, ARCOLA CO‑OPERATIVE ASSOCIATION LIMITED, TAMMY BONOKOSKI, BRENT'S TRUCKING LTD., CANADIAN FRACMASTER LTD., CANADIAN TOOLMASTER LTD., ELDON COTE and GERALD COTE, TERRENCE GREEN, GRIMES SALES SERVICE CO. LTD., LOW TRAILER RENTALS INC., RICHARD McNAIR, SCHLUMBERGER CANADA LIMITED, SCIENTIFIC DRILLING INTERNATIONAL (CANADA) INC. DEFENDANTS Q.B. No. 99 of A.D. 1996 BETWEEN: BECKER OIL TOOLS LTD., BERT BAXTER TRANSPORT LTD., GERALD BIG EAGLE, carrying on business under the firm name and style of BIG EAGLE TRUCKING, BLACK MAX DOWNHOLE TOOL LTD., CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC, CAMERON COLLINS, carrying on business under the firm name and style of COLLINS CONSTRUCTION, COULTER AND McGILLICKY SALES AND SERVICE LTD., DAY CONSTRUCTION LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., EAGLE ENERGY LTD., FAST TRUCKING SERVICE LTD., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., GUARDIAN OILFIELD SERVICES, division of Shaw Industries Ltd., HANK'S MAINTENANCE AND SERVICE CO. LTD., HOMCO, division of Weatherford Oil Tool Co. (1983) Ltd., JOHNSTONE TANK TRUCKING LTD., LAFRENTZ CHRISTENSON TRUCKING LTD., LONGHORN ANCHOR SERVICE LTD., PENDEMAK INDUSTRIES LTD., PIONEER EXPLORATION INC, POLAR OILFIELD SERVICES, division of Enserv Corporation, PRAIRIE MUD CHEMICAL SERVICE LTD., PRAIRIE PETRO‑CHEM LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., ROCKET SALES RENTAL CO. LTD., SEBCO CORING TONGS LTD., ROBERT POTT, carrying on business under the firm name and style of Spruce Grove Trucking, TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD., VENTURE WELL SERVICING LTD., VIKING SURPLUS OIL FIELD EQUIPMENT LTD. and WATERFLOOD SERVICE and HERC OIL CORP., RIGEL OIL GAS LTD., CANADIAN WESTERN BANK, TAMMY BONOKOSKI, CANADIAN FRACMASTER LTD., CANADIAN TOOLMASTER LTD., DOUG COLLINS, HARRIS OILFIELD CONSTRUCTION LTD., BRENT HAYWARD, LOW TRAILER RENTALS INC., RICHARD McNAIR, SCHLUMBERGER CANADA LIMITED DEFENDANTS APPENDIX ""C"" PORTION OF BRIEF OF LAW FILED ON BEHALF OF HERC 5. Herc was formed for the purpose of advancing proposal for the restructuring of the assets and liabilities of Williston Wildcatters. On October 31, 1995 Herc obtained an Order from the Alberta Court of Queen's Bench imposing stay of proceedings upon creditor's actions and protecting Williston Wildcatters' assets pending the filing by Herc of creditor's sponsored Plan of Arrangement. 6. On December 20, 1995, Herc filed Plan of Arrangement and Compromise (the ""Plan"") which was sanctioned and approved by Mr. Justice M.E. Lomas of the Alberta Court of Queen's Bench on May 11, 1996. 7. Relevant provisions of the Plan which can be referred to as Exhibit ""YY"" to the affidavit of Greg Cousins filed on behalf of the applicants, provides as follows: 2.2 Claims Not Compromised by Plan This Plan does not compromise the following Claims and rights that arise in the following capacities: (b)Claims of the Lienholders to the extent of their rights to enforce their respective Liens against the specific Lien Properties subject thereto; 3.3 Sale of assets to Herc On the Implementation Date, the Trustee shall sell and transfer to Herc effective as of the Effective Date and subject to the CWB Security and the Liens. 3.5 CWB Security and Liens The CWB Security shall continue to attach to the Assets transferred to Herc and/or its Nominee, pursuant to this Plan. With respect to the Liens: (a)each Lien which validly attaches to Lien Property as of the Implementation Date shall continue to attach to such Lien Property after the transfer thereof pursuant to this Plan; (b)the recourse of each Lienholder shall be restricted to those Lien Properties which are attached to its Lien; and (c)Herc and its Nominee shall not assume, and shall have no obligation or responsibility to the Lienholders in respect of, any indebtedness, liability or obligation of WWOC to the Lienholders; and the Lienholders shall have no claim against or recourse to Herc, its Nominee or to any Assets transferred to Herc or its Nominee (other than to those Lien Properties to which their respective Liens attach). Nothing in this Plan of the implementation thereof shall affect the relative priority of the CWB Security and the Liens. 3.6(c) Lien Property Revenue All Lien Property Revenues received by the Trustee or Herc prior to the 60th day following the Stay Termination Date shall be paid to the Escrow Agent. The Escrow Agent shall hold such funds pursuant to escrow arrangements which shall include the requirements that: (i)except as provided for in Sections (ii) and (iii) immediately below, the Lien Property Revenues shall be invested in an interest bearing trust account until the 60th day of following the Stay Termination Date; (ii)unless otherwise ordered by court of competent jurisdiction in the Province of Saskatchewan, all funds held by the Escrow Agent pursuant to such arrangements (including all interest accrued thereon) shall be paid by the Escrow Agent to Herc (and/or its Nominee) on the 60th day following the Stay Termination Date; and (iii)The Escrow Agent may apply to Court for advice or direction with respect to the Lien Property Revenue or the rights of any Person thereto. 3.8 Status of Liens and Rights of Set Off; No assumption by Herc or its Nominee Nothing in this Plan shall directly or indirectly constitute: (a)a determination or admission or other finding whatsoever by the Court, WWOC, the Trustee, Herc, its Nominee or any other Person with respect to the validity, enforceability of priority of any Lien or right of set off, or any indebtedness, liability or obligation of WWOC secured or affected thereby; (c)any increase in any rights or remedies of any Lienholder, or any Unsecured Creditor entitled to any right of set off, beyond the rights and remedies of the holders thereof but for the Plan. 8. The Plan further provided that the stay granted by the Alberta Court of Queen's Bench on October 31, 1995 was to expire on April 18, 1996 the ""Stay Termination Date""). The 60th day following the Stay Termination Date was June 17, 9. Pursuant to Article 3.6(c) of the Plan, the net revenue from liened properties received by the trustee or Herc prior to the 60th day following the Stay Termination Date was to be paid to McLellan, Cundall, Bridges Baumgartner (the ""Escrow Agent""). The Escrow Agent has received the sum of $144,001.06. These funds will have accrued interest as they were to be invested in an interest bearing trust account. 10. Herc has made diligent efforts to attempt to settle with the various lien claimants which number some 600 in 11. On May 24, 1996 Herc provided proposal regarding settlement which was subsequently rejected by Mr. Baumgartner's clients on June 3, 1996. 12. Five statements of claim were issued on June 12, 1996 by Mr. Baumgartner's clients. On June 13, 1996 the plaintiffs brought an ex parte motion and supporting material requesting leave to commence interlocutory proceedings by way of notice of motion and that the Lien Property Revenue paid to McLellan, Cundall, Bridges Baumgartner, the Escrow Agent pursuant to Article 3.6(c) of the Plan remain in the possession of the Escrow Agent until the hearing of this motion returnable in","FIAT. The plaintiffs sought an order preserving and detaining certain proceeds from oil production properties which were being held by an escrow agent pursuant to an order of the bankruptcy court in Alberta and a further order preserving and detaining all future proceeds from those properties. The applicants claimed such orders were necessary to protect their claims under the approximately 408 builders' liens filed against those oil properties. The contents of the statements of claim in each of the five actions were identical. HELD: The application was dismissed. The escrow agent was ordered to remit to Herc the lien property revenues with any interest earned less the agent's appropriate costs. With the exception of SEM the parties appearing through counsel were awarded their costs against the applicants. 1)The tests set out in Bean on Injunctions for granting a mandatory injunction were summarized in Cupar School Division. The tests really state in different forms the generally recognized test for prima facie case, irreparable harm and balance of convenience but with more stringent requirements. 2)Only one lien holder filed an affidavit, no invoices or other information were filed substantiating the amount claimed in any of the liens. The word 'or' used in one of the liens indicated that the person subject to the lien did not know whether the water or oil was transported. Whatever prima facie case the lien holders might have was weakened. 3)The applicants had not established a very strong probability that grave danger will accrue. The risk to the respondents if the order should be granted was far greater than the risk to the applicants if the order were not granted. The oil properties would continue to decline without further development or recovery efforts to maintain or increase production. If a preservation order issued SEM would likely exercise its extensive powers under the Oil and Gas Conservation Act. 4)While s33 of the Builders' Lien Act provides for a lien on the holdback of any trust funds held by the contractor, it does not give the lienholder a charge against any other moneys. A builder's lien cannot be looked on as 'proof' that the amount claimed is what is actually owing. The only remedy open to the lienholder is to enforce its claim under Part VIII of the Builders' Lien Act. The statement of claim said nothing about dates and times. On the material filed it was impossible to know whether any of the respondents were intervening parties within s49(5)(a). 5)The second and third tests were not met. The order would guarantee irreparable harm by freezing the capital necessary to hinder the decline in value. It would be unacceptable to SEM that lien holders should receive the income from the properties without being responsible for the environmental costs. 6)The fourth test required that the defendant know exactly what he has to do. If the order were to issue it would be difficult to determine the proper amount of lien property revenue that should be paid to an escrow agent. There was no definition of net revenues in the Plan. The applicants would have been required pursuant to Rule 390 to pay full compensation before the order was issued.",b_1996canlii6726.txt
339,"J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: McMullin (Crouse) v. Crouse, 2004 NSSF 51 Date: 20040503 Docket: 1201-54828 Registry: Halifax Between: Catherine Anne McMullin (Crouse) v. Ross Letson Crouse Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: November 3, 2003 and January 21, 2004, in Halifax, Nova Scotia (Supplementary Decision on Costs) Counsel: William Leahey, for the Petitioner By the Court: [1] After releasing my decision in this matter on March 8, 2004 but before an order from that decision was issued, the Court received from Mr. Crouse letter dated March 25, 2004 in which he stated, among other things, that he was not served with the Applicant’s application and supporting material. The Court had previously received from the Applicant sworn Affidavit of Service indicating otherwise. wrote to Mr. Crouse on April 12, 2004. In that letter stated: would be prepared to meet with you and Mr. Leahey in Court and on the record to allow you the opportunity to express under oath any concerns you might wish to put forward regarding service. [2] provided Mr. Crouse with my Assistant’s name and phone number and told him that he had until the 23rd of April, 2004 to contact the Court. also advised him that if the Court did not hear from him by April 23, 2004 that would assume that he did not wish to appear and my Order would be issued. [3] On April 22, 2004 received from Mr. Crouse letter dated April 20, 2004 enclosing document entitled “Affidavit”. In that document Mr. Crouse again stated that he was not informed of when the hearing was to take place. I had my Assistant contact Mr. Crouse at his place of employment (the office phone number having been provided by Mr. Crouse in an attachment to his affidavit) and a telephone conference was arranged for the same day at 2:00 p.m.. Mr. Leahey’s office was also contacted. Mr. Leahey confirmed his availability for phone conference at that time. [4] Beginning at 2:00 p.m. numerous telephone calls were made to Mr. Crouse’s office from the Courtroom.  observed the Court Reporter placing the call to ensure that the numbers provided by Mr. Crouse were used and I personally placed two calls to Mr. Crouse’s office and on one of those occasions left a message on Mr. Crouse’s voice mail to return the call. The Court Reporter also left at least two messages on Mr. Crouse’s voice mail to return the call. The Court’s calls to Mr. Crouse’s office continued at approximately five minute intervals up to and including 2:50 p.m. without any success. At no time on that day or on any of the days up to and including April 30, 2004 did Mr. Crouse return the Court’s calls. [5] I have since received correspondence from Mr. Leahey arguing that his client should be entitled to additional costs (over and above that which was provided in my decision of March 8, 2004 because of the time which he took preparing for the phone conference. agree that his client is entitled to costs. [6] I remain satisfied that Mr. Crouse received adequate notice of the hearing. I am unconvinced by Mr. Crouse’s affidavit. In any event, because he did not make himself available for the telephone conference and was not available for cross examination, his affidavit is struck. The Applicant is entitled to additional costs in the sum of $250.00 for a total of $550.00, inclusive of disbursements.","After the court released its decision but before an order was issued, the court received a letter from the respondent in which it was stated that he had not been served with the applicant's application and supporting material. The applicant had previously provided the court with a sworn Affidavit of Service indicating otherwise. The respondent was provided with the judge's assistant's name and phone number and given a date by which he was to contact the assistant. The assistant was not contacted but the respondent sent a second letter to the court enclosing a document entitled 'Affidavit' which again stated that he had not been informed of when the hearing was to take place. A telephone conference was arranged but the court was unable to contact the respondent at the set time despite numerous calls and messages from the court. The applicant now sought additional costs due to the time counsel had taken to prepare for the telephone conference. Affidavit of the respondent struck; applicant entitled to additional costs in the amount of $250. The court was not convinced that the respondent had not received adequate notice of the hearing and because he did not make himself available for cross- examination, his affidavit was struck.",9_2004nssf51.txt
340,"THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Mr. Justice Lane COUNSEL: Mr. D. Rayner for the Crown Ms. M. Pappas for the respondent DISPOSITION: Appeal Heard: September 7, 1994 Appeal Allowed:September 7, 1994 (oral) Reasons: September 12, 1994 On Appeal From: His Honour Judge L. J. Smith, Youth Court Appeal File: 6374 Oral Reasons by:The Honourable Mr. Justice Cameron In concurrence:The Honourable Mr. Justice Sherstobitoff The Honourable Mr. Justice Lane CAMERON J.A. This is an appeal by the Crown against a sentenceimposed upon the respondent, a young offender, as a resultof his having committed two armed robberies. He was sentenced by His Honour Judge Linton Smith to term of one year in closed custody in respect of each of the offenses. The two terms were ordered to be served consecutively, but concurrently with the remainder of two year term of closed custody earlier imposed upon the respondent. TheCrown appealed on the ground the two terms of closedcustody, having been ordered to be served concurrently withthe earlier term, did not constitute a fit sentence havingregard for the seriousness of the offenses, therequirements of deterrence, and the need to uphold publicconfidence in the administration of justice. The background of the matter is this. The respondent, now 17 1/2 years old, was in the Paul Dojack Youth Centre, serving out two year term of closed custody for an array of offenses, when he escaped on October 18th, 1993. On January 27th, 1994, while still at large, he and friend held up two convenience stores in Regina while armed with hand gun. In each instance, the respondent wielded the weapon, said to have been pellet gun. He was arrested shortly afterwards and remained in custody on remand until June 1st, when he was sentenced. In addition to imposing the sentence under appeal, Judge Smith also sentenced the respondent to term of secure custody for escaping from the Centre, term consisting of the time he had spent on remand awaiting disposition of the armed robbery charges. When thus sentenced on June 1st,about 18 months of the earlier term of secure custodyremained to be served. As a result of that and of theorder directing the present terms be served concurrentlywith the remainder of the earlier term, the respondent waseffectively sentenced to a term of six months in respect ofthe armed robberies. Each of us is of the view the appeal must be allowed. We are of the opinion that the two terms of secure custody, having been ordered to be served concurrently with the remainder of the earlier term, simply did not constitute fit sentence. The sentence does not begin to answer adequately to the requirements of fitness. An additionalsix month period of secure custody for these armedrobberies does not meet either the interests ofrehabilitation or the requirements of deterrence. Nor does it meet the need to maintain public confidence in the law and its administration by the courts. The respondent has an extensive record of property- related and other offenses, including failures to comply with the processes of the law and the orders of the courts. These latest offenses demonstrate, first, that he has profited little from earlier dispositions and, second, that he has taken to committing increasingly serious crimes. The weight of the law has now to fall on him more heavily if it is going to achieve its objectives. The appeal will therefore be allowed to the extentsought by the Crown. The two terms of one year each willnot only be served consecutively, the one to follow theother, but consecutive to the term earlier imposed. In theresult, the respondent will have to serve out the timeremaining in respect of the earlier disposition, then servetwo more years in secure custody in consequence of thesearmed robberies.","A young offender was sentenced to 1 year closed custody on each of 2 armed robberies, the sentences to be consecutive to each other, but both being concurrent to the remainder of a sentence of 2 years closed custody which was already being served with respect to previous unrelated convictions when the accused escaped and committed the robberies. 18 months of the previous sentence remained to be served with the result that the total time in custody would only be increased by 6 months as a result of the 2 robbery convictions. The Crown appealed. HELD: Appeal allowed. The sentence neither reflected the seriousness of the offences nor provided adequate deterrence. The 2 new sentences totalling 2 years were made consecutive to the remaining term of 18 months as well as to each other.",1994canlii4661.txt
341,"S.C.C. No. 02343 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Macdonald, Hallett and Matthews, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on July 10, 2008. The Appellant in person Kenneth W. F. Fiske for the Respondent Appeal Heard: March 21, 1991 Judgment Delivered: June 10, 1991 THE COURT: Appeal from conviction dismissed, application for leave to appeal against sentence granted, appeal dismissed, and firearms prohibition order made by Mr. Justice Tidman to remain in full force and effect, per reasons for judgment of Macdonald, J.A.; Hallett and Matthews, JJ.A. concurring. Publishers of this case please take note that Section 486(3) of the Criminal Code applies and may require editing of this judgment or its heading before publication. The subsection provides: (3) Subject to subsection (3.1), where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 346 or 347, the presiding judge or justice may make an order directing that the identity of the complainant or of witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way. MACDONALD, J.A.: The appellant, P.W.B., was convicted after trial before Mr. Justice Tidman, sitting without a jury, on a bill of indictment which alleges that he:""... at or near [...] in the County of Halifax, Nova Scotia, on or about the 13th day of December 1987, did unlawfully use a weapon, to wit: a knife in committing a sexual assault upon the person of [the complainant], contrary to Section 246.2 of the Criminal Code."" For such offence, the appellant was sentenced to eight years imprisonment. He now applies for leave to appeal and, if leave is granted, appeals against both conviction and sentence. The material facts are as follows. The complainant is the divorced mother of two teenage children with whom she resided at all material times in an apartment in the [name of location changed] area. One of her favourite pastimes is playing darts. On the afternoon of Saturday, December 12, 1987, the complainant and girlfriend, S.O., went to the [name of place changed], which is located on [name of street changed], to play darts. The complainant's former boyfriend remained in her apartment to babysit her children. The complainant remained in the [name of place changed] playing darts until approximately 7:00 o'clock in the evening. During that time she testified that she drank approximately eight glasses of draft beer. She left the club with the intention of returning home. She accepted drive from friends who were going to the [name of place changed], located on [name of street changed]. That particular branch of the [name of place changed] was about one‑half mile from the complainant's residence. The complainant changed her mind about going home and decided to go to the [name of place changed] to have beer. She remained there until closing time. During the evening dance was held in the [name of place changed] Hall. During the course of the evening the complainant met the appellant with whom she was not previously acquainted. They talked and danced. The complainant testified that when the dance was over P.W.B. offered to drive her home but she said she would take cab. She said that she twice called for cab but was told on both occasions it would be at least one‑half hour before one could be sent for her. She testified that girlfriend who appeared to know the accused suggested that she would be all right with him. She therefore accepted his offer of drive home. They proceeded to the [name of place changed] parking lot and entered the appellant's vehicle. The complainant at the time had with her pint bottle of beer that she had taken from the [name of place changed]. The complainant gave the appellant directions to her home but testified that P.W.B. drove past her home and proceeded to the rear of the [name of place changed], which is located in rather isolated area off [name of street changed]. The complainant testified that after the accused parked the car he picked up knife from the front seat area of the car floor to the left of the driver's seat. The complainant then said that the accused placed the unsheathed knife about quarter of an inch from her face and said, ""You don't want me to have to use this."" To this she replied, ""No, you don't have to use it."" She testified that at this time she was terrified. She said that because she feared that he would harm her she consented to have intercourse with P.W.B... Both undressed. The intercourse occurred on the front seat of the car after which, on the appellant's instructions, she performed fellatio on him. After that sexual intercourse again took place. The sexual activities concluded at approximately 4:00 o'clock on the morning of Sunday, December 18. The complainant then dressed and left the vehicle to urinate. She said she was afraid to run for fear that the appellant would either run after her and catch her or follow her with the car. The complainant, therefore, got back into the vehicle after which the appellant, naked except for pair of running shoes, got out of the car also to urinate. The motor of the vehicle was running at this time. After P.W.B. left the car, the complainant locked the doors and proceeded to drive away. P.W.B.. jumped on the hood of the vehicle. The complainant then drove at slow rate of speed down [name of street changed], sounding the car horn all the while. Because of the hour traffic on the street was all but non‑existent. At the intersection of [name of street changed] and [name of street changed] she brought the vehicle to stop. The sounding of the car horn and the sight of naked man on the hood of the vehicle had attracted the attention of police officers who were at stakeout in relation to an unrelated matter. The appellant was immediately taken into custody by the police and the complainant was taken to local hospital for medical examination. The examination was conducted by Dr. Plaxton, who found that the labia was inflamed and tender to the touch, consistent with prolonged sexual intercourse. The doctor also examined the complainant's vagina and found it was dry and consistent with woman who had not been recently sexually aroused. The police searched the appellant's vehicle and, amongst other items, seized hunting knife, which was located beneath the brake pedal, knife sheath, bra, the appellant's clothing and an empty beer bottle. Constables Trider and Higgins of the Halifax Police Department testified that they saw the knife below the brake pedal on the floor shortly after the vehicle was stopped at the intersection of [name of street changed] and [name of street changed]. Constable Trider described the complainant as being hysterical at the time. He said she was sobbing, crying and her eyes were bloodshot. He stated she appeared to have been crying for some time. Constable Higgins testified that he saw both the knife and the sheath. He said the latter was on the carpeted section of the front floor of the driver's side of the car. The appellant testified at his trial. He said that on December 12, 1987, he had two draft beers with his lunch and about three pints of beer during the afternoon. He said he went to the [name of place changed] around 10:00 p.m., where he had two pints of beer. He testified that he met the complainant and had few dances with her. When the dance finished around 1:00 a.m. he said she accepted his offer of drive home. He went on to state that she directed him to the alcove behind the school. There they drank the open bottle of beer that she had taken from the [name of place changed]. He then said that consensual intercourse took place and that they performed oral sex upon each other. He testified that when he got out of the car to urinate, the complainant locked the car doors and drove away but that he managed to jump on the hood of the vehicle. P.W.B. said that the hunting knife and the sheath were his, but he denied handling the knife in the manner described by the complainant and denied threatening her in any way. In short, the appellant's defence was that although he had intercourse with the complainant, such was with her consent. The sole ground of appeal set forth in the appellant\'s inmate notice of appeal is:""My counsel at trial refused to call a witness that was present in the courthouse to prove my allegations against the complainant. My basic case was based on the fact of why the complainant in the case would say she was victim of sexual assault. By not bringing this very important witness forward was not able to show the Judge the reasons behind the allegations. instructed my lawyer on four (4) separate meetings to file an appeal. He told me at the time he would do so. was under the impression that this was done until receiving letter in July that he had not done so. There is an investigation by the Barristers' Society into the lawyer's conduct at this present date."" Since the appellant represented himself on the hearing of this appeal, the Court felt obligated to ascertain from him some details with respect to this ground of appeal. P.W.B. advised the Court that the witness he wished called to testify was R.B., the sometime boyfriend of the complainant. The evidence the appellant hoped to elicit from R.B. was that the latter had physically assaulted the complainant on more than one occasion. This evidence he contended was relevant as going to the complainant's credibility. The complainant, however, admitted on cross‑examination that R.B. had hit her and that, as result, the police were called, charges were laid, but later withdrawn by her. P.W.B. was represented on his trial by Mr. Mark Knox. The appellant candidly admitted that R.B. had refused to give a statement to Mr. Knox: P.W.B. also said that he did not know for certain what evidence R.B. would give and was not at all sure that the latter would say that he had assaulted the complainant on more than one occasion. R.B. was in the courthouse during the trial under a defence subpoena. The appellant has failed to show any reason why this Court should now admit the evidence of R.B. He was present during the trial and there is nothing, either by affidavit evidence or otherwise, to show that he would give relevant evidence bearing on a decisive or potentially decisive issue on the trial. The burden on the appellant is to demonstrate that R.B.\'s evidence would be reasonably capable of belief and, in addition, that his evidence, if believed, could reasonably be expected to affect the result of the trial when considered together with all the other evidence. This P.W.B. has failed to do. See Palmer and Palmer v. The Queen. 1979 CanLII (SCC), [1980] S.C.R. 759, 50 C.C.C. (2d) 193 at p. 205. In this ground of appeal, the appellant criticizes the conduct of Mr. Knox. Since, in my opinion, such criticism is totally unfounded consider it necessary to make the following observations. It is an accepted constitutional principle in the United States that the right of an accused to ""have the assistance of counsel for his defence"" guaranteed by the Sixth Amendment, is to have the effective assistance of counsel. Where, however, the defendant alleges that the incompetence of counsel deprived him of the effective assistance of counsel, the defendant must show, in addition to the lack of competence on the part of defence counsel, that there is reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Since there is no suggestion that that is the case here, do not consider that this appeal calls for determination whether ss. 7, 10(b) and 11(b) of the Charter of Rights and Freedoms guarantees to an accused right to effective assistance of counsel. For the purposes of this appeal, am however prepared to assume that an accused has constitutional right to the effective assistance of counsel. In Strickland v. Washington, 104 S.Ct. 2052 (1984) Justice O'Connor, speaking for the Court, said in part (p. 2068): ""... The defendant must show that there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. reasonable probability is probability sufficient to undermine confidence in the outcome."" In R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont.C.A.), Martin J.A., after stating the American position to which have referred and after referring to Strickland v. Washington, supra, said (p. 152): The principle set forth in Strickland v. Washington, supra, can usefully be applied in this jurisdiction. am far from satisfied that it has been shown that Scibetta's counsel at the trial lacked professional competence. Furthermore, it has not been shown that the alleged errors of defence counsel prejudiced the appellant's right to fair trial. should add that, apart altogether from constitutional considerations, if, in any case, the court considered that there was real possibility that miscarriage of justice had occurred. due to the flagrant incompetency of counsel we would be entitled to intervene under s. 613(l)(a)(ii) of the Code: see R. v. Swain, [1988] Crim. L.R. 109n."" That, of course, is not the case here. Defence counsel assumes great deal of responsibility in the conduct of criminal case. He is called upon to make tactical decisions which he and his client must live with. It is not the function of this Court to second‑guess trial tactics employed by counsel. In the present case, would but say that in my opinion Mr. Knox's decision not to call R.B. as witness cannot be criticized. R.B. would not give Mr. Knox a statement ‑ he appears to have been hostile ‑ Mr. Knox, like P.W.B. had therefore no idea what R.B. would say on the witness stand. Under those circumstances it is my opinion that Mr. Knox's decision not to call R.B. as witness cannot and should not be criticized. Indeed, under the circumstances, it appears to have been the correct decision. It follows that however this ground of appeal is viewed, my opinion is that there is absolutely no merit in it. Although the appellant recites but one ground in his notice of appeal against conviction, he did raise numerous additional matters on the hearing of the appeal of factual nature. have considered them all in light of the record and have concluded that there is no merit in any of them. do, however, consider that some comment should be made as to the circumstances under which P.W.B. lost his right to jury trial. Upon being arraigned on the charge set forth in the information, the appellant elected to be tried by court composed of judge and jury. Following preliminary hearing on March 10, 1988, he was committed to stand trial. He was subsequently tried by judge and jury in the latter part of 1988. The jury were unable to reach verdict and were discharged. new bill of indictment was prepared on December 13, 1988. pretrial conference was held on April 11, 1989 at which P.W.B. was personally present. On that date his new trial date was set for May 16, 1989 with jury. He failed to appear on that date and bench warrant for his arrest was issued. He was apprehended. On June 9, 1989, the Crown prosecutor applied, on notice, to Chief Justice Glube for an order that P.W.B. was no longer entitled to jury trial. P.W.B.. was present together with his counsel on the hearing of such application. The following notation appears on the court record relating to that application: ""Court opened. Court to counsel (Mr. McCarroll) (Mr. Knox) Accused agrees to forfeit right to Jury Trial. To return on 13th June 1989 to set down trial date. Mr. Knox to Court not ready to proceed on bail application today. No known date for hearing adjourned without day. Counsel will endeavour to get early date if Judge becomes available. Court closed."" Section 598(1)(a) of the Code reads as follows: 598.[526.1] (1) Notwithstanding anything in this Act, where person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by court composed of judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re‑elected to be tried by court composed of judge without jury or provincial court judge without jury, he shall not be tried by court composed of judge and jury unless (a) he establishes to the satisfaction of judge of the court in which he is indicted that there was legitimate excuse for his failure to appear or remain in attendance for his trial; ... In R. v. Lee, 1989 CanLII 21 (SCC), 1989] 73 C.R. (3d) 257, 52 C.C.C. (3d) 289, the Supreme Court of Canada held that although s. 598 of the Code restricts the right to trial by jury and is, therefore, contrary to s. 11(f) of the Charter of Rights and Freedoms, it constitutes reasonable limit under s. of the Charter in that protection of the administration of justice is valid legislative purpose of sufficient importance to override the right to jury trial. P.W.B. now states that both Mr. Knox and the Crown prosecutor, Mr. McCarroll, advised him that he had absolutely lost his right to jury trial by failing to appear for his trial in May. The appellant submitted before us that he was not told by his counsel of the provisions of Code s. 598(1)(a), namely that he could avoid losing trial by jury if he had legitimate excuse for failing to appear for his trial in May. Again, since the appellant was not represented by counsel on this appeal he was asked by the Court what his excuse was. He said it was because he did not have lawyer. Instead of coming to court on May 16, 1989, and raising lack of counsel as possible ground for an adjournment, he elected to stay away. I would say in passing that it appears extremely doubtful to me that the reason given by P.W.B. for his non‑attendance at his trial in May could amount to a legitimate excuse within the meaning of s. 598 of the Code; More importantly, however, the appellant only raised this issue during the course of his oral submissions. He gave no notice to the Crown or to Mr. Knox as to the allegations he intended to make as to what he was told by Mr. McCarroll and Mr. Knox. In addition, he filed no material in support of this submission such as his affidavit or the affidavit of others. This to me is simply another uncalled for, unsupported and unjustified criticism of counsel by P.W.B.. The court record speaks for itself. The appellant agreed before Chief Justice Glube to forfeit his right to a jury trial. That, as far as am concerned, ends the matter. Mr. Justice Tidman, after reviewing the evidence in some detail, concluded his decision by saying: accept the evidence of the complainant that the accused led her to believe, and she did believe, that if she refused to engage him in sexual conduct he would harm her with hunting knife which he held to her face when threatening her. accept also the evidence of the complainant that she consented to and did have sexual intercourse with and performed fellatio upon the accused at the time and place alleged. find, however, that the consent of the complainant to the sexual acts was not freely given but given because of the threat of bodily harm to her from the accused and, therefore, was not valid consent. Upon all of the evidence considered as whole am satisfied beyond reasonable doubt that the accused committed the offence of sexual assault with weapon upon the complainant and find the accused guilty as charged."" In accordance with the direction given in Yebes v. The Queen, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 36 C.C.C. (3d) 417, have carefully reviewed, considered, examined and, to some extent, reweighed the evidence. After so doing am of the opinion that it was open to the trial judge on the evidence before him to come to the conclusions he did. He accepted the evidence of the complainant and rejected that of the appellant. Then on an overview of all the evidence, he was satisfied that the guilt of the accused had been established beyond reasonable doubt. His approach and conclusion to my mind are unchallengeable. turn now to consideration of the appellant's application for leave to appeal against the sentence of eight years imprisonment. The appellant is now 37 years of age. He had been married but is now divorced and at the time of this offence had relationship with Miss W. He has Grade 12 education. He graduated from the [name of school changed] in 1973 after four year course as journeyman electrician. He worked for the N.... from 1971 to 1977 as an apprentice. For one year period, 1979‑80, he was employed as truck driver for H..... From 1982 until 1986 he resided in [...], Saskatchewan, where he was the owner/operator of satellite dish company. From November 1988 until May of 1989 he was employed with U.... in [...] as warehouse manager. The appellant does have prior criminal record, the details of which are as follows: 1) 1970 theft over fifty dollars [...], Nova Scotia; 2) 1982 driving with blood alcohol level in excess of .08 [...], Saskatchewan; 3) 1983 failing to remain at the scene of an accident [...], Saskatchewan. In imposing sentence Mr. Justice Tidman said: The courts in this province have been increasing the length of sentences for crimes of violence, particularly of violence against women. support this trend because it reflects society's growing abhorrence of this longstanding social problem. In keeping with that trend, sentence you to term of imprisonment of eight (8) years. In so doing, have also taken into consideration that you have been in custody for approximately ten (10) months, as your counsel points out, may, under the provisions of s. 221(b) of the Criminal Code."" The predominant consideration in sentencing for sexual assault must, of course, be deterrence, the object being to deter the accused and others from emulating such conduct. I have considered the circumstances of the offence, the previous record of the accused and the remarks of the learned trial judge. Although the sentence can be considered as being at the high end of the range of sentencing for sexual assault, it is not manifestly excessive. It cannot be said that the eight years imprisonment was not a fit sentence in this case. In result, I would dismiss the appeal from conviction. I would grant the application for leave to appeal against sentence, but dismiss the appeal. The firearms prohibition order made by Mr. Justice Tidman under s. 100(1) of the Code will, of course, remain in full force and effect. J.A. Concurred in: Hallett, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 C.R. 10540 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION HER MAJESTY THE QUEEN P.W.B.. HEARD BEFORE: The Honourable Mr. Justice G. A. Tidman PLACE HEARD: Halifax, Nova Scotia DATES HEARD: January 26, 29, 30 and 31st, 1990 COUNSEL: Robert McCarroll, Esq., for the Prosecution Mark Knox, Esq., for the Defence S.C.C. No. 02343 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A.","The appellant appealed his conviction for sexual assault using a weapon and his sentence of eight years. The appellant contended that his counsel had failed to call the complainant's boyfriend as a witness even though he was in the courthouse under a defence subpoena. The appellant also raised on appeal the fact that he had lost his right to a jury trial. He had failed to appear at the jury trial scheduled and a bench warrant had been issued. The Crown had then applied for an order that the appellant was no longer entitled to a jury trial and the record showed that his counsel had agreed to forfeit the right to a jury trial. The appellant contended that his counsel and the Crown both advised him he had lost his right by failing to appear and that he was not told that he could avoid losing his right if he had a legitimate excuse for failing to appear. He put forth the excuse of having had no counsel at the time of the trial. Dismissing the appeal, (1) that there was nothing to show that the witness would have given relevant evidence bearing on a decisive issue in the trial and the appellant failed to meet the burden of showing that the evidence, if believed, could reasonably have been expected to affect the result of the trial when considered with all the other evidence; counsel's decision not to call the witness where the witness was hostile and counsel did not know what he would say was not inappropriate, and, the court noted, in the circumstances, seemed to have been the right decision; (2) the excuse of failing to appear because he did not have counsel was not a legitimate excuse within the meaning of s. 598(1)(a) of the Criminal Code; moreover, the appellant only raised this issue in his oral submissions and gave no notice to the Crown respecting this issue nor did he provide any supporting evidence by way of affidavit; it was seen by the Court as another unsupported and unjustified criticism of counsel and the Court concluded that the record showed that the appellant had agreed to forfeit his right to a jury trial; and (3) that an eight year sentence, although at the high end of the scale for sexual assault, was not manifestly excessive, having regard to deterrence, the circumstances of the offence, and the appellant's record which included three minor offences.",3_1991canlii4569.txt
342,"J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Guthro, 2005 NSSC 297 Date: 20051101 Docket: SH No. 232556A Registry: Halifax Between: Charlie Guthro v. Her Majesty The Queen Respondent Judge: The Honourable Justice M. Heather Robertson Heard: June 1, 2005, in Halifax, Nova Scotia Written Decision: November 1, 2005 Counsel: David S. Green, for the appellant Andrea E. Jamieson, for the respondent Robertson, J.: [1] This appeal arises from a decision of David Johnson, Adjudicator in the Provincial Court of Nova Scotia, who convicted the appellant for driving a motor vehicle while his license was suspended contrary to s. 287(2) of the Motor Vehicle Act, F.S.N.S. 1989, c. 293, as amended. The offence occurred on February 13, 2003. [2] The appellant plead not guilty and the trial was held on May 17, 2004. Following written submissions, the decision was delivered on September 27, 2004. [3] At the trial, the Crown called one witness, Constable Guy Napier of the Halifax Regional Police Force. The appellant testified as did three other witnesses, his son Dennis Guthro who testified it was he who drove the car; Jacqueline Noble, patron at the nearby gas station, where the ticket was issued; and Neil Upham, an attendant at the service station. [4] The appeal centers upon the adjudicator’s acceptance of Constable Napier’s evidence and the reliability of the evidence, i.e., his glimpse of the appellant driving his auto as a sole occupant while unlicensed versus the defence witnesses who testified that the appellant was not the driver of the vehicle but that his son was. [5] The grounds of appeal are: 1. The Honourable Adjudicator erred in not properly interpreting the provisions of s. 287(2) of the Motor Vehicle Act, R.S.N.S. 1989, c. 298, as amended; 2. The Honourable Adjudicator erred by relying solely upon the evidence of only one Crown witness, police officer, and apparently rejecting in total the evidence of the Appellant and three other civilian witnesses; 3. The Honourable Adjudicator erred by failing to give the benefit of reasonable doubt to the Appellant; 4. The verdict was unreasonable and cannot be supported by the evidence; 5. There was insufficient evidence to prove that the Appellant was in fact the driver of motor vehicle driving while suspended; 6. Such other grounds as may appear from reading of the record. [6] The scope of the appellate review in summary conviction appeal is well settled. [7] In R. v. Ryan, 2002 NSCA 153 (CanLII), [2002] N.S.J. No. 514 (C.A.) Justice Oland reviewed the jurisprudence on the standard of review in summary conviction appeals at paras. 14 and 15 of the decision: Absent an error of law or miscarriage of justice, the test to be applied by the Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656 at 657, the appeal court is entitled to review the evidence at trial, re‑examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge's conclusions. If it is, the Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge. In short, summary conviction appeal on the record is an appeal; it is neither simple review to determine whether there was some evidence to support the trial judge's conclusions nor new trial on the transcript. R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381 at para 42 confirmed that the test for an appellate court determining whether judgment is unreasonable or cannot be supported by the evidence was that set out in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168 at p. 185, namely: whether the verdict is one that properly instructed jury acting judicially, could reasonably have rendered. In Yebes, in discussing the function of an appellate court, the Supreme Court of Canada stated at para 25: The Court must determine on the whole of the evidence whether the verdict is one that properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re‑examine and to some extent reweigh and consider the effect of the evidence. [8] Crown counsel have also cited R. v. Stone (1996), 1996 CanLII 5576 (NS CA), 148 N.S.R. (2d) 46, 1996 CarswellNS 55 (C.A.); R. v. Davis (1996), 1996 CanLII 5574 (NS CA), 148 N.S.R. (2d) 68, 1996 CarswellNS 52 (C.A.) cases which have reviewed. [9] On the issue of credibility of witness, determined at the trial level they rely on Re Cole Estate (1994), 1994 CanLII 4044 (NS CA), 131 N.S.R. (2d) 296, 194 CarswellNS 111 (C.A.), case in which Roscoe J.A. cited with approval the test articulated by MacDonald J.A. in Travelers Indeminity Co. of Canada v. Kehoe (1985), 66 N.S.R. (2d) 434 at para. 15: This and other Appellate Courts have said time after time that the credibility of witnesses is matter peculiarly within the province of the trial Judge. He has the distinct advantage, denied Appeal Court Judges, of seeing and hearing the witnesses; of observing their demeanor and conduct, hearing their nuances of speech and subtlety of expression and generally is presented with those intangibles that so often must be weighed in determining whether or not witness is truthful. These are the matters that are not capable of reflection in the written record and it is because of such factors that save strong and cogent reasons appellate tribunals are not justified in reversing finding of credibility made by trial Judge. Particularly is that so where, as here, the case was heard by an experienced trial Judge. [10] The Crown also cited R. v. W. (R), 1992 CanLII 56 (SCC), [1992] S.C.R. 122, 1992 CarswellONT 90 wherein McLachlin J., as she then was, commented on the scope of appellate review turning on findings of credibility. At para. 21 she stated: 21 It is thus clear that court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond reasonable doubt, must re‑examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility ... The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as matter of law it remains open to an appellate court to overturn verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable. [11] The evidence of Constable Napier was that while waiting to enter Caldwell Road, he was stopped at stop sign on Sherwood Street which forms with Caldwell Road. He testified that he saw the appellant driving his vehicle along Caldwell Road, at posted rate of speed of 50 km per hour. He testified that he had approximately five seconds to observe the appellant driving the vehicle and that he saw only one occupant in the vehicle. He testified that he called in the vehicle license plate number and he received information back that the license of the registered owner of the vehicle was suspended. [12] He testified that this plate query was completed in approximately two minutes. He then testified that he did u-turn to follow the vehicle. He stated that about half block past Sherwood Street he came up to gasoline gaming establishment called Treaty Gas, where he observed the appellant’s vehicle parked just beyond the front door of the establishment. He stated that he then walked to the rear of the then empty vehicle and saw that its plate matched the plate number of his query. At this point male exited the service station who Constable Napier testified was the appellant; the man he had seen driving the vehicle minutes earlier. [13] Constable Napier said he requested of him driver’s license, vehicle registration and vehicle insurance. Constable Napier then testified: made the gentleman aware of the reason that requested the documentation and that was why was carrying out an investigation with regards to suspended driver. Immediately this gentleman stated to me ... [objection dealt with by the Court and disallowed] “Can’t you give me break.” [14] Mr. Guthro the appellant, in his evidence explained his statement by testifying that Constable Napier had not specified why he wanted to see his documentation and that he believed the reason for the request was that he had failed to turn in his license pursuant to letter he had received from the Registry of Motor Vehicles in December 2002 after his license had been suspended and that he would therefore receive another expensive ticket. [15] He testified that the ticket had been handed to him folded and that not until he returned inside the service station did he realize the nature of the ticket. He said he flipped out and that is when people spoke up, referring to the witnesses Neil Upham and Jacqueline Noble, who agreed he had not been the driver of the vehicle. [16] The appellant also testified that just before this, Constable Napier had asked him to move his vehicle away from the pump, twice, but he had refused saying that he could not, he had no license and that he then went inside to ask his son to move the car. [17] The appellant’s son Dennis Gutho testified that he had been ill that morning and was at home when friend called from the local high school requesting help, as his vehicle would not start and needed jump. He testified that he drove his father’s car, but had asked his father to come along. He testified that on the way to Cole Harbour High they needed gas and stopped at Treaty Gas where he, still feeling unwell, rushed from the car and went into the service station to the bathroom where he remained for some time. [18] This evidence was supported by the evidence of the two independent witnesses Neil Upham and Jacqueline Noble, both of whom said they did not know the appellant before that day and had both volunteered to go to court and testify that he was not the driver of the vehicle because they had seen Dennis Guthro get out of the driver’s side of the vehicle and rush into the service station. Both these witnesses in the course of their testimony had confused passenger side with driver side door and quickly corrected their testimony and testified that Dennis Guthro did get out of the driver’s side of the vehicle. [19] significant issue arising out of the evidence before the adjudicator was whether the vehicle was driven by sole occupant or whether both Guthro’s were in the vehicle as well as their mixed breed dog. [20] This is an issue that the adjudicator did not address. Indeed the adjudicator made no significant review of the evidence before him. [21] The adjudicator stated: had subsequent opportunity to peruse by way of transcript. The accused inter alia indicated he was not driving the vehicle, and the other witnesses globally, either by inference or direct reference, indicated the accused was not the driver of the vehicle. closely observed the deportment and demeanour of all witnesses in this matter. was particularly impressed by the demeanour of the Crown’s witness, Cst. Napier. found his evidence to be detailed, forthright, unreserved, unequivocal, and in particular, unwavering on cross-examination. On the other hand, found the witnesses for the accused and their evidence to be, in some cases, convenient, somewhat confused, illogical, unconvincing and, on the whole, uncompelling. therefore accept the evidence of Cst. Napier in this matter and reject the evidence of the aforementioned witnesses presented by counsel for the accused. Given the experience of the Crown’s witness, his location at the time, the time of day, duration of opportunity, and distance from the accused’s vehicle on initial contact, together with the aforementioned explanation of the accused to the officer, am satisfied that the Crown has established to my satisfaction prima facie case, having proved all the elements of the offence necessary for conviction, and on the basis of the acceptable evidence have heard, I’m satisfied beyond reasonable doubt of the guilt of the accused in this matter. [22] The adjudicator accepted the evidence of Constable Napier over that of the appellant and the three other corroborating witnesses. The adjudicator found the Constable Napier’s evidence to be more credible. He appeared to relate the credibility of the Crown’s witness to the confidence and experience of this witness in giving his testimony. [23] The adjudicator fell into error by failing to address whether the appellant’s evidence raised a reasonable doubt as to his innocence, particularly on the central issue of whether the vehicle was solely occupied. [24] Absent of finding on this issue, the credibility of Constable Napier’s evidence is brought into question. By not making a find on the critical issue of whether there was a sole occupant in the vehicle, this tends to suggest more strongly that the adjudicator engaged in an “either/or” analysis in accepting the evidence of the Crown’s witness over that of the four witnesses for the defence. [25] The adjudicator did not instruct himself in accordance with the test set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742 (S.C.C.) where the case rested solely on his findings of credibility. [26] As Cory J. stated at p. there are three steps which must be addressed onthe issue ot credibility: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [27] The adjudicator should have made clear findings of credibility based on the evidence before him. In this case the evidence before the adjudicator was clearly capable of being evidence to the contrary so as to raise reasonable doubt. The adjudicator failed to examine the evidence in this light and make findings of credibility based on the weight of the evidence before him. [28] I allow this appeal of the conviction. I find it would be impractical to order a new trial at this date and accordingly order that a verdict of acquittal be entered. Justice M. Heather Robertson","The appellant was convicted of driving a motor vehicle while his licence was suspended. The appeal centred upon the adjudicator's acceptance of the police officer's evidence and the reliability of that evidence versus the defence witnesses who testified that the appellant's son was actually the driver of the vehicle. Appeal allowed; verdict of acquittal entered. The adjudicator erred by failing to address whether the appellant's evidence raised a reasonable doubt as to his innocence, particularly on the central issue of whether the appellant was the only person present in the vehicle. But not making a finding on this critical issue, this tended to suggest more strongly that the adjudicator engaged in an either/or analysis in accepting the evidence of the Crown's witnesses over that of the four defence witnesses; the adjudicator should have made clear findings of credibility based on the evidence before him.",9_2005nssc297.txt
343,"Q.B. No. 1051 A.D. 1994 Estate No. 021092 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT BETWEEN: SASKATCHEWAN ECONOMIC DEVELOPMENT CORPORATION and COOPERS LYBRAND LIMITED, TRUSTEES IN BANKRUPTCY RESPONDENT M.M. Tobin for the applicant G.J. Den Brok, manager of the trustee for the respondent JUDGMENT HRABINSKY J. May 2, 1994 This is an application for an order pursuant to s. 135(4) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 and amendments thereto, granting the applicant's appeal of the trustee's decision to disallow the applicant's security. The ground on which this application is broughtis that the applicant\'s security interest was not registereddefectively, according to The Personal Property Security ActRegulations. In the alternative if the applicant\'s securityinterest is found to have been registered defectively, s.66(1) of The Personal Property Security Act, S.S. 1979-80, c.P-6.1, should be applied to remedy such defect. FACTS On February 15, 1993 the applicant advanced $5,000.00 to Joan E. Fladseth via the Martensville Small Business Corporation. Joan E. Fladseth executed demand promissory note and security agreement in favour of the Martensville Small Business Corporation which corporation executed an assignment of its interest in the assets of Joan E. Fladseth to the applicant. The demand promissory note and the security agreement were both executed in the following manner: ""Mrs. Joan E. Fladseth op. as Joan E. Craft and Supplies"". On March 22, 1993 the applicant registered its interest in the assets of Joan Elaine Fladseth and in the assets of the business debtor, Joan E. Craft and Supplies. However, in doing so, the applicant misspelled ""Fladseth"" as ""Eladseth"" on the financing statement. On February 15, 1994 Joan E. Fladseth filed an assignment in bankruptcy and in her statement of affairs she named Martensville Small Business Corporation as secured creditor in the sum of $4,000.00. The trustee in bankruptcy disallowed the applicant's secured party claim for $4,105.91 on the ground that the applicant did not properly register its security interest. The applicant appeals that decision pursuant to s. 135 of the Bankruptcy and Insolvency Act. Section 135 reads: 135.(1) The trustee shall examine every proof of claim or proof of security and the grounds therefor and may require further evidence in support of the claim or security. (2)The trustee may disallow, in whole or in part, (a)any claim; (b)any right to priority under the applicable order of priority set out in this Act; or (c)any security. (3) Where, pursuant to subsection (2), the trustee disallows, in whole or in part, any claim, any right to priority or any security, the trustee shall forthwith provide, in the prescribed manner, to the person whose claim, right to priority or security was disallowed, notice in the prescribed form setting out the reasons for the disallowance. (4) disallowance referred to in subsection (2) is final and conclusive unless, within thirty day period after the service of the notice referred to in subsection (3) or such further time as the court may on application made within that period allow, the person to whom the notice was provided appeals from the trustee's decision to the court in accordance with the General Rules. (5) The court may expunge or reduce proof of claim or proof of security on the application of creditor or of the debtor, if the trustee declines to interfere in the ISSUES 1.Did SEDCO register its security interest in the businessassets of the bankrupt, Joan E. Fladseth, in accordance withThe Personal Property Security Act and the Regulationsthereunder? 2.If SEDCO did not register its security interest inaccordance with The Personal Property Security Act and theRegulations thereunder, can s. 66(1) of The Personal PropertySecurity Act be applied to cure the defect? LAW Part IX of the Regulations of The Personal Property Security Act sets out the particulars of content of form. The pertinent portions of Regulation 35 read as 35(1) Where an individual is debtor, the name to be set out in the financing statement or financing change statement in the area designated for ""individual debtor"" is the surname followed by the first given name and the second given name or initial, if any. (2) Where an artificial body is debtor, the name to be set out in the financial statement or financing change statement in the area designated for ""business debtor"" is, where the artificial body is: (h) any artificial body, other than one described in clauses (a) to (g): (i) the name of the artificial body; and (ii) the name of each person representing the artificial body in the transaction giving rise to the registration and, where such person is: (A) an individual, the information required under subsection (1); or (B) an artificial body, the information required under this subsection. (4) Where person named as debtor carries on business under name or style other than his own name, this name may also be separately set out on financing statement or on financing change statement in the area of the form designated for business debtor name in accordance with subsection (2). Although the registration against Joan E. Craftand Supplies complied with the Regulations, the registrationagainst Joan E. Fladseth did not. Accordingly, the issue is whether s. 66(1) of The Personal Property Security Act should be applied to cure the defect. Section 66(1) reads: 66.-(1) The validity or effectiveness of document to which this Act applies is not affected by reason of defect, irregularity, omission or error therein or in the execution or registration thereof unless the defect, irregularity, omission or error is seriously misleading. find that the error in this instance was not seriously misleading. The applicant is the only secured party and the trustee had notice of the security interest. The applicant incurred risk by advancing credit and obtained security interest and registered financing statement to protect its interest. The applicant acted within The Personal Property Security Act and Regulations thereunder but in so doing it committed an error by placing an ""E"" instead of an ""F"" for the first letter of the debtor's surname. The trustee appeared late on the scene and has never incurred any risk. It never acted on the financing statement containing the error. The trustee has not been misled, has not been prejudiced and has not acted to its detriment. This is a matter where s. 66(1) of The PersonalProperty Security Act should be applied. To hold otherwisewould result in an underserving windfall to unsecuredcreditors who have not been misled. Applying s. 66(1) of The Personal Property Security Act find that the financing statement of the applicant is validly registered. In reaching my conclusion have referred to numerous decisions including International Harvester Credit Corporation of Canada Limited v. Frontier Peterbilt Sales Ltd., 1983 CanLII 2356 (SK QB), [1983] W.W.R. 328; Elmcrest Furniture Manufacturing Ltd. v. Price Waterhouse Ltd. as Receiver and Manager of 216200 Alberta Ltd. (1985), 1985 CanLII 2783 (SK QB), P.P.S.A.C. 22; Royal Bank v. Agricultural Credit Corp. of Sask. (1991), P.P.S.A.C. (2d) 338; Ford Credit Can. Ltd. v. Percival Mercury Sales Ltd. (1986), 1986 CanLII 3248 (SK CA), P.P.S.A.C. 288 (Sask. C.A.) and Peat Marwick Ltd. v. G.M.A.C. of Can. Ltd., [1990] 282. The appeal from the trustee's decision is allowed. The parties are given leave to speak to costs.","Saskatchewan Economic Development Corporation (SEDCO) made a business loan to Fladseth, but misspelled her name in its PPSA registration as Eladseth. It also properly registered against her trade name, 'Joan E. Craft Supplies'. After her assignment in bankruptcy, the trustee disallowed Sedco's security on the basis that its registration was defective. Sedco appealed this decision under section 135 of the Bankruptcy Act. ISSUES: 1)Did Sedco register its interest in accordance with the PPSA Regulations? 2)If not, can the registration be cured under section 66 of the PPSA? HELD: 1)The personal registration did not comply with the PPSA Regulations. The registration against the trade name was proper. 2)This is a matter where section 66 should be applied. To hold otherwise would result in an undeserving windfall to unsecured creditors who have not been mislead.",3_1994canlii5118.txt
344,"Defendant 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H.C. DELANO, Registrar of Condominiums Respondent HEARD BEFORE: The Honourable Mr. Justice Hilroy Nathanson, in Chambers, at Halifax, Nova Scotia on June 26, 1991 DATE OF DECISION: June 26, 1991 (Oral) COUNSEL: D. Coles, Esq., for the applicant J. Davies, Esq., for the respondent 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H. C. DELANO, Registrar of Condominiums Registrar NATHANSON, J.: (Orally) The applicant is the owner of certain lands concerning which he has informed the Registrar of Condominiums of his intention to seek registration pursuant to the Condominium Property Act, R.S.N.S. 1989, c.85. The land is subject to a right‑of‑way in favor of all landholders out of the original undivided piece of land. The structure sought to be registered as a condominium has been completed and does not physically encroach upon the right‑of‑way. An adjacent owner with rights over the right‑of‑way refuses to consent to the registration. The Registrar of Condominiums has advised the Applicant that s.11(b) of the Act prohibits him from registering declaration with respect to the property, such declaration being condition precedent to the operation of the Act, unless the owners of the right‑of‑way consent to the declaration. The Applicant has not formally applied to the Registrar of Condominiums for registration. The applicant is seeking an order in the nature of mandamus directing the Registrar to accept the applicant's property for registration under the Act without a declaration of consent from the users of the right‑of‑way or, in the alternative, a declaration that such consent is not required by that section of the Act. Dealing first with the procedural aspects and the availability of mandamus, there must be duty whose performance it is sought to coerce actually do, and that does not exist here. There is no such duty on the Registrar of Condominiums. The application has not been formalized and such duty would not arise until the application has been made and formalized. So mandamus is not available. declaration is available. is remedy for use where an individual wishes to establish the existence or scope of public duty. cannot see any reason here why the Court cannot declare what the scope of the duty of the Registrar of Condominiums is, in circumstances such as the present. So, the Court is prepared, if the facts are with the applicant, to grant declaration. The principal issue comes down to whether the right‑of‑way is registered encumbrance, for which consent must be obtained, pursuant to s. 11(b) of the Condominium Property Act. think that issue can be decided very quickly and very simply. The Act contains statutory interpretation or meaning of the word ""encumbrance"". It is set out in s. (1)(0), as follows: ""In this Act, encumbrance means claim that secures the payment of money or the performance of any other obligation, and includes mortgage or lien."" The Legislature hints what it means by ""encumbrance"" in giving us the examples of a mortgage and a lien. It does not allow broad meaning, but restricts us to the meaning as set out. That meaning requires claim that secures the payment of money or secures the performance of any obligation. It is the security feature that governs. is security that is the principal characteristic of mortgage and lien. would put into the same category debenture that secures charge against land, and might go so far as to include in that category certain types of leases. But there is no security aspect to a right‑of‑way and, therefore, a right‑of‑way is not an encumbrance as defined in s. 3(1)(o) of the Act. have been referred to the case of Equities Limited v. Courtyard Green Developments Limited et al (1985) 68 N.S.R. (2d), 72, decision of Chief Justice Glube. In that decision, there are two interesting sentences, on page 77, as follows: ""I am unable to find that would have any right to insist that the Registrar requires their consent. find there was no requirement that execute the declaration and consent to the use of the property as condominium."" The words quoted may very well be obiter, that is, not the basis of the decision, but they are strongly worded findings of the Court and are not to be disregarded. The decision is not, strictly speaking, binding on me, but it is extremely persuasive and happen to agree with those comments of the Chief Justice. The implication of Chief Justice Glube's words is that person who has right‑of‑way over servient tenement which becomes condominium is not required to execute the declaration and consent that are required by the Act. In the result, the Court is prepared to issue a declaration in favor of the applicant and pointing out to the Registrar of Condominiums that consent is not required of users of rights‑of‑way over servient tenements. The applicant will have its costs of this application in the amount of Seven Hundred and Fifty Dollars ($750.00). J. Halifax, Nova Scotia June 26, 1991 1991 S.H. 78014 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DEVELOPMENTS LIMITED, body corporate and H. C. DELANO, Registrar of Condominiums","The applicant landowner sought to register a declaration with the respondent respecting a condominium property, which was subject to a right of way in favour of all the original landowners. An adjacent landowner refused to consent to the declaration. The applicant sought a declaration that the consent of the adjacent landowner was not required. Granting the application, that the word 'encumbrance' as defined in s.3(1)(o) of the Act involves a security feature and as there is no security feature to a right of way, unlike a mortgage or lien, it is not an encumbrance. The consent of the adjacent landowner, who had a right of way over a servient tenement, was not required.",b_1991canlii4243.txt
345,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 42 Date: 2017 02 07 Docket: QB 827 of 2010 Judicial Centre: Saskatoon BETWEEN: KENNETH GRAHAM and CHRIS PURDY, ROD NICKEL, STEVEN GIBB, CAMERON HUTCHINSON, DALE BRIN, JOHN DOE and CANWEST PUBLISHING INC. Counsel: Alan McConchie for the plaintiff F. William Johnson, Q.C. for the defendants JUDGMENT D.E. LABACH J. February 7, 2017 INTRODUCTION [1] On November 24, 2009, Kenneth Graham commenced libel action against Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson, Dale Brin, John Doe and Canwest Publishing Inc. [collectively the defendants] alleging that the defendants, acting alone or in concert, had published defamatory comments about him in series of articles in the Star Phoenix newspaper and on websites owned and operated by the newspaper and Canwest Publishing Inc. As result of the publication of these defamatory comments, Dr. Graham said that he suffered loss and damage to his professional and civic reputation and that such loss or damage will continue into the future in light of his professional standing. [2] On June 7, 2010 the defendants filed Statement of Defence to the claim wherein they did not deny publishing the words complained of, in the various articles complained of, but denied that the words were defamatory or that they were made with malice, deliberate calculation or recklessness. According to the defendants, the words complained of formed part of the defendants’ series of fair and accurate contemporaneous reporting of the civil jury proceedings in case involving Dr. Graham in the Saskatchewan Court of Queen’s Bench and that such words fell under the umbrella of “responsible communication”. As such, they have not published any retraction or apology nor does it appear that they have removed the alleged offensive articles from their websites. However, if any one or more of the alleged defamatory meanings are actionable, the defendants believe that Dr. Graham’s reputation was so tarnished at the time of the publications complained of that he did not suffer any damages or loss of reputation at all. [3] On July 14, 1999, Lisa Baert went to the Lloydminster Hospital for tubal ligation. This routine day surgery was performed by Dr. Graham, an obstetrician and gynecologist practicing in Lloydminster. Dr. Graham had done many tubal ligations and Ms. Baert’s surgery appeared to go well. She was discharged later that day and returned home. [4] On July 16, Ms. Baert was rushed back to the hospital in an ambulance, suffering from septic shock. Dr. Graham and general surgeon operated on her and discovered 2-millimetre puncture in her small bowel. The puncture had apparently occurred when Dr. Graham had done the tubal ligation two days earlier. The surgeon removed small portion of Ms. Baert’s bowel. While in surgery she went into cardiac arrest. They stabilized her and made arrangements to air lift her to the Royal Alexandra Hospital in Edmonton, Alberta. [5] In Edmonton, Ms. Baert had to have both her hands and feet amputated. She suffered some brain damage. She spent year in the hospital and at rehabilitation centre before returning to Lloydminster to live in care home. [6] On October 8, 1999 Lisa Baert filed claim in the Saskatchewan Court of Queen’s Bench against Dr. Graham, the Lloydminster Hospital and several nurses alleging negligence. [7] Prior to Baert’s surgery, Dr. Graham had decided to leave Lloydminster. He did not care for the medical community there, his wife had gone back to Edmonton to practice psychiatry and he was getting tired of commuting to Edmonton every weekend. Unfortunately he was unable to find position in Edmonton. Dawson Creek, British Columbia was looking for an obstetrician and gynecologist at this time and they offered him job. He liked the city, the compensation was attractive and in November 1999, he moved to Dawson Creek to practice. [8] On March 1, 2000 an article written by Jason Warick entitled “Botched Surgery Leaves Mom Helpless” appeared in the Saskatoon Star Phoenix newspaper. The article was about Ms. Baert’s surgery. The article came to Dr. Graham’s attention. He was shocked by it. He felt that it was inaccurate, inflammatory and very one-sided. It described Ms. Baert’s bowel as having been “sliced open” when there was only small 2-millimetre puncture in it. The article said that he ignored Mr. Baert when he came out of the operating room but he did not. He spoke to Mr. Baert immediately following the surgery. [9] On March and 3, 2000, two more articles written by Jason Warick appeared in the Star Phoenix. The first, entitled “Mom Longs to be Home with Her Family”, said that Ms. Baert’s bowel had been “slit open” and it described her care as “grossly negligent, malicious, arrogant, and high-handed”. The second article was entitled “Couple Fed Up with Long Wait for Compensation”. This article referred to “botched surgery”, that Ms. Baert’s “intestines were lacerated” and that the surgery was performed in “grossly negligent, malicious, arrogant, and high-handed manner calculated to ignore the rights and objections and complaints of Lisa [Baert]”. Dr. Graham was shocked by these articles and felt they were misleading. [10] On March 9, 2000 an article entitled “Lawsuit News to Hospital that Hired Gynecologist” appeared in the Star Phoenix. This article said that the Dawson Creek Hospital and South Peace Health Council had no clue that Dr. Graham was facing the Baert lawsuit when they hired him. This however was false. The hospital and health council did know about the lawsuit before they hired Dr. Graham because he had told them about it. [11] Prior to these articles appearing in the Star Phoenix, Dr. Graham had never had any complaints regarding his treatment of patients and was doctor in good standing in both Saskatchewan and Alberta. However, the local newspaper in Dawson Creek picked up on these Star Phoenix articles, began reporting on them and started phone line so patients could voice any complaints about Dr. Graham’s treatment of them. In response, and on the advice of the Saskatchewan counsel representing him in the Baert claim, Dr. Graham issued press release and gave press conference in Dawson Creek to counteract what he perceived to be media smear campaign. [12] In conjunction with his press release and press conference, his counsel sent letter dated March 10, 2000 to the editor of the Star Phoenix complaining about the articles written by Jason Warick. The letter stated that the articles caused Dr. Graham irreparable damage both professionally and personally and put the newspaper on notice of his intention to bring an action in libel against them. These articles and the attention they were attracting in the community was giving Dr. Graham bad reputation. [13] In 2002, Dr. Graham performed tubal ligation on Gloria Cooke at the Dawson Creek Hospital. Unbeknownst to the plaintiff, Ms. Cooke had had previous surgery on her bowel and uterus. He noted this at the beginning of the surgery when he inserted camera into her. This made the surgery somewhat more difficult but he continued. In the middle of Ms. Cooke’s surgery, he received an urgent call about pregnant woman in the maternity ward and problems with the baby’s heart rate. He was the only obstetrician and gynecologist in Dawson Creek but finished Ms. Cooke’s surgery before rushing off to deal with this other patient. He kept Ms. Cooke in the hospital overnight for observation. The next day she appeared fine so he discharged her with instructions. [14] The day after her discharge, Ms. Cooke returned to the Dawson Creek Hospital complaining of shortness of breath and pain in her abdomen. Worried she was becoming septic and with no surgeon on call in Dawson Creek, arrangements were made for her to be transferred to Grande Prairie Hospital for immediate surgery. During her surgery in Grande Prairie, she was noted to have small bowel perforation. She was eventually transferred to Edmonton University Hospital for some further surgeries, following which she eventually made full recovery. [15] As result of this incident, Dr. Graham voluntarily stopped performing laparoscopic surgeries and decided to take upgrading to assuage any negative public opinion in Dawson Creek. On December 11, 2002 an article appeared in the Vancouver Sun reporting on Ms. Cooke’s complications and linking the plaintiff’s voluntary suspension of laparoscopic surgeries to this and the Baert case. Similar articles appeared in the Peace River Block Daily News and the Alaska Highway News over the next number of weeks. [16] On March 3, 2003 an article entitled “Local Mother ‘Lucky to be Alive’” appeared in the Peace River Block Daily News. This was story about Dana McLellan. Dr. Graham had performed surgery on her in February 2003 and inserted catheter into her bladder. After surgery there was some blood in her urine. Dr. Graham called specialist and they inserted camera into her bladder. They noticed some blood and clots so they took her back into surgery and repaired small cut in her bladder. Ms. McLellan was stable for few days but eventually was transferred to Vancouver because of nursing requirements. The article made it sound as if Ms. McLellan almost died but that was not the case. [17] On March 5, 2003 another article appeared in the Peace River Block Daily News. The byline in this article read “Third Patient Comes Forward: Complications Followed Surgery to Remove Cyst”. This female patient had been referred to Dr. Graham because of chronic pelvic pain. When he performed surgery on her he noted lot of adhesions and that her ovary was stuck to her bowel. He called surgeon who attended and dissected the ovary off the bowel. In the course of performing the dissection, the surgeon cut the patient’s urator. He brought this to the surgeon’s attention and she stitched it up. Unfortunately the patient developed leakage out of the stitches and had to be transferred to Prince George where urologist fixed the problem. Although the article seemed to blame Dr. Graham for this woman’s problems, he was not responsible for cutting her urator. [18] Complaints were made to the British Columbia College of Physicians and Surgeons following these surgeries and Dr. Graham was investigated. The College issued written report finding no evidence that Dr. Graham was not providing the appropriate level or standard of care to his patients and he was never disciplined. As regards the Gloria Cooke surgery, the College suggested that he should have stopped the surgery when he noted the tissue mass from the undisclosed surgery. Despite this, they did not find that his continuing with the surgery fell below the appropriate standard of patient care. Ms. Cooke eventually started lawsuit against Dr. Graham. It was settled with no liability on his part. [19] The Northern Health Authority also investigated his surgeries but never disciplined Dr. Graham, suspended his hospital privileges or pressured him to resign. [20] With all the negative media publicity, Dr. Graham’s income began to decline. While he was not shunned by colleagues, they made fewer referrals to him. He also began receiving hate mail. In May 2003, Dr. Graham suffered heart attack and at the end of July 2003 had quintuple bypass surgery. He also began suffering some depression. Dr. Graham decided to cease practicing in Dawson Creek and he retired to St. Albert, Alberta. [21] Dr. Graham and his wife had five children. On May 24, 2007, his oldest son committed suicide. On August 19 his wife died of cancer. On September 17 the Baert trial began in Saskatchewan Court of Queen’s Bench. The hospital and the nurses settled out of court but Dr. Graham continued to deny that he was negligent. [22] The trial garnered considerable media interest both in Saskatchewan and across Canada. Chris Purdy, one of the reporters at the Star Phoenix newspaper, was sent to cover the trial. Prior to attending the trial, Ms. Purdy attempted to familiarize herself with the case. In that regard, she read articles that had previously been written about the case, she tried to find other stories the newspaper wrote about the case and she searched other jurisdictions to see if any other articles about the case came up. [23] Ms. Purdy attended the first day of trial but did not attend each and every day of the trial thereafter. She tried to find out when certain witnesses would be testifying and would attend for their examinations-in-chief. She would not often stay for cross-examination because by that time she usually had the salient facts or she had to leave to get story out to meet deadline. She did however make point of attending Dr. Graham’s examination-in-chief and cross-examination as nobody had as yet heard his side of the story. She kept notes of all her attendances at the trial and what occurred when she was there. [24] During the trial, Ms. Purdy observed voir dire. The voir dire concerned an application to allow number of people to testify in relation to “informed consent”. It was during this voir dire that she learned the names of some of Dr. Graham’s former patients or obtained them from Ms. Baert’s counsel. [25] Ms. Purdy attended court on November 22, 2007 to hear the closing arguments of Dr. Graham’s counsel and then again on November 23 to hear the closing arguments of Ms. Baert’s counsel. She next attended court on November 27 to hear the judge’s charge to the jury. She made detailed notes of what she heard on all of these dates. On November 28, 2007, after 51 days of trial, the jury found Dr. Graham not negligent for Ms. Baert’s injuries. [26] Ms. Purdy wrote series of articles about the case during and after the trial. All of these articles were published in the Star Phoenix newspaper and/or on the newspaper’s websites. Following closing submissions, she wrote an article entitled “Final Arguments in Surgery Suit Heard by Court”. This article was published on page A13 of the November 24, 2007 edition of the Star Phoenix and appeared on its websites on that same date. [27] On November 28, 2007, the day the verdict came down, neither Ms. Baert nor Dr. Graham were present in court. After the verdict, Ms. Purdy spoke to Ms. Baert’s counsel regarding the possibility of an appeal. She later spoke to number of people including Les Hurlburt, Lynn Laursen, Sharry Michels and Marleen Burgess. All of these people were either previous patients of Dr. Graham or relatives of his prior patients. She wrote an article entitled “Gynecologist Not Negligent in Tubal Ligation Lawsuit” and it was published on the newspaper’s websites later on November 28. [28] Dr. Graham was at home in St. Albert when the verdict came down. He received call from his counsel advising of the result and was “over the moon” that he was found not negligent and finally exonerated. He organized celebratory supper for him and his children that night at his residence. [29] Donald Graham was living with his father at the time and working on his master’s degree. He described his father as being very excited about the jury’s decision and the case being finished. Another son, Mark, echoed these comments about his father’s reaction to the verdict. Over supper, the Graham family spoke of this being point to move on from given everything their family had recently been through. [30] After supper, Donald Graham went on the internet to search for any stories about the verdict and he came across Ms. Purdy’s November 28 article. They all read the article and the mood changed. Dr. Graham was shocked, mad, dumbfounded, baffled and unhappy that there was nothing in the article about him being vindicated. He felt it was full of untruths and distortions and that it made it appear that he was lucky to have been exonerated in the trial. Nobody from the Star Phoenix had tried to contact him to discuss the verdict or the contents of this article. He felt depressed. [31] Ms. Purdy wrote five more articles: November 29 (two articles), 30, December 1, 2007 and January 3, 2008. Nobody told her to write these articles but she discussed the information she obtained and the articles she wrote with her editors. Dr. Graham and his family read each of these articles and continued to be shocked, mad and dismayed and wondering if and when these articles would stop. After reading the November 30 article, Dr. Graham was depressed and felt that the newspaper was making the point that he was negligent and the jury was wrong to have exonerated him. The article made it sound as if the outcome of the trial would have been different had the jury heard from his other patients, that he should not have been given licence to practice in British Columbia and that he should not have been working as doctor. No one from the Star Phoenix contacted him to speak to him about the article, to ask him about the verdict or to get his view on an appeal. Dr. Graham was particularly upset and appalled after reading the December article as this article was full of untruths. Still, no one from the newspaper tried to contact him to get his comment. [32] On December 3, Dr. Graham’s children prepared letter to the Star Phoenix expressing their concerns and providing some rebuttal as to what was being written about their father. The Star Phoenix published this letter in the editorial section of the paper on December 14, 2007. [33] Over the next number of months, Dr. Graham’s children noticed change in their father. He was not as happy or as talkative as he had been before. He stopped doing things with them and became preoccupied with these articles. The articles bothered him for days and weeks at time. Dr. Graham, by his own admission, was depressed, not eating properly, unable to concentrate and had problems sleeping. He never sent letter or press release to the Star Phoenix as he did not think it was an appropriate thing to do. Over time, the effects lessened but he continued to have problems concentrating and sleeping. [34] Eventually Dr. Graham decided to bring lawsuit against the Star Phoenix to get back some of the vindication that was lost as result of Ms. Purdy’s articles. On November 18, 2009, counsel for Dr. Graham gave notice to Chris Purdy, her editors and publisher at the Star Phoenix and Canwest Publishing Inc., the then owners of the Star Phoenix, of their intention to bring an action for defamation as required by s. 15 of The Libel and Slander Act, RSS 1978, L-14. On November 24, 2009 Dr. Graham filed Statement of Claim in the Saskatchewan Court of Queen’s Bench alleging that the defendants had published series of articles containing defamatory comments about him in the Star Phoenix and on websites owned and operated by the Star Phoenix and Canwest Publishing Inc., between November 24, 2007 and January 3, 2008. [35] The defendants filed Statement of Defence on June 7, 2010 denying Dr. Graham’s allegations. The parties were not able to resolve the claim at mediation or pre-trial settlement conference and eventually the claim was set down for trial. [36] Sometime between the date Dr. Graham’s claim was filed and the commencement of the trial, Canwest Publishing Inc. experienced financial difficulties and eventually its assets, including the Star Phoenix, were purchased by Postmedia Network Inc. [37] The issues in this case are as follows: (a) Should the Statement of Claim be amended to add Postmedia Network Inc. as defendant? (b) Are the defendants, or any of them, liable in defamation to Dr. Graham? (c) What damages, if any, is Dr. Graham entitled to? (d) Is Dr. Graham entitled to an injunction requiring the defendants to remove certain content from websites under their control? (a) Should the Statement of Claim be amended to add Postmedia Network Inc. as defendant? [38] Postmedia Network Inc. purchased Canwest Publishing Inc. after their claim was filed but before the trial in this matter commenced and are the current owners of the Star Phoenix newspaper and its websites. Pursuant to Rules 3-72 and 3‑84 of The Queen’s Bench Rules, counsel for Dr. Graham asks me to exercise my discretion and allow the Statement of Claim to be amended to add Postmedia Network Inc. as defendant. In their view, there is no prejudice to Postmedia Network Inc. if they are added as defendant and in effect, while not formally named as defendant to this point in time, have been defending this claim since purchasing Canwest Publishing Inc. and/or its assets. [39] The defendants oppose this request on the basis that the two-year limitation period set forth in The Limitations Act, SS 2004, L-16.1, in force at the time of the alleged defamation has expired, that there is no evidentiary basis upon which could conclude that no party will suffer actual prejudice as result of the requested amendment and, lastly, that there is no explanation for Dr. Graham’s delay in seeking this amendment until after the conclusion of the evidence in the trial. [40] Rules 3-72, 3-78 and 3-84 are relevant to this issue and specifically: 3-72(1) party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of party, as follows: (c) after statement of defence is filed: (i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just. (3) Parties shall make all amendments to their pleadings that are necessary to determine the real questions in issue between the parties. (8) Unless the Court orders otherwise, if pleading is amended at trial or hearing, the amended pleading does not need to be served and filed. (2) Persons may be joined as defendants or respondents if: (a) remedy is claimed against them, whether jointly or severally or in the alternative, arising out of the same transaction, occurrence or series of transactions or occurrences; (b) common question of law or fact may arise in the proceeding; (c) there is doubt as to the person or persons from whom the plaintiff, petitioner or originating applicant is entitled to remedy; (d) damage or loss has been caused to the same plaintiff, petitioner or originating applicant by more than one person, whether or not: (i) there is any factual connection between the several claims apart from the involvement of the plaintiff, petitioner or originating applicant; and (ii) there is doubt as to the respective amounts for which each may be liable; or (e) their presence in the proceeding may promote the convenient administration of justice. 3-84(1) At any stage of the action, the Court may order that any person be added as party if: (a) that person ought to have been joined as party; or (b) the person’s presence as party is necessary to enable the Court to adjudicate effectively and completely on the issues in the action. (2) At any stage of the action, the Court may grant leave to add, delete or substitute party, or to correct the name of party, and that leave shall be given, on any terms that the Court considers just, unless prejudice will result that cannot be compensated for by costs or an adjournment. [41] In this case, at the time the articles complained of were written, Canwest Publishing Inc. owned the Star Phoenix, the newspaper that employed Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson and Dale Brin. According to material on the court file, on January 8, 2010 the Ontario Superior Court of Justice made an order pursuant to the Companies’ Creditors Arrangement Act, RSC 1985, C-36, in the matter of plan of compromise or arrangement of Canwest Publishing Inc. and other related companies. Sometime thereafter, but prior to the trial commencing, Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets including the Star Phoenix. The evidence does not disclose the specific date this occurred. However, on the court file is statement as to documents of the defendants dated November 22, 2012 wherein defendants’ counsel identifies as being solicitors for Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson, Dale Brin and Postmedia Network Inc., successor to Canwest Publishing Inc. There is also an affidavit of Rob McLaughlin filed on the court file sworn November 23, 2012 in which he states that he is the editor of the Star Phoenix and that Postmedia Network Inc. is the owner of the Star Phoenix newspaper. Finally, there is letter on the court file dated November 25, 2014 from defendants’ counsel requesting permission from the Court to dispense with the appearance of all the defendants at the December 2014 pre-trial conference. The reasons for this request included the following: (1) The defendants are all insured by the (formerly) Canwest Publishing and (now) Postmedia Network Inc. insurer, Hiscox Insurance, and thus have no personal financial exposure to the plaintiff; (3) None of the defendants is now employed by Postmedia Network Inc., owner of the Star Phoenix Newspaper, at that newspaper; and (4) Only the examination for discovery of the defendant Purdy was an “in-depth” discovery and there was understandably no examination of the proper officer of Postmedia Network Inc. [42] Despite this, Dr. Graham’s counsel neglected to make application to add or substitute Postmedia Network Inc. as defendant prior to the trial commencing, at the conclusion of the plaintiff’s case or at the end of the trial. In closing argument it was agreed that the parties would submit further written submissions on Dr. Graham’s request for an injunction requiring the defendants to remove certain articles from websites under their control if these articles were found to be defamatory. Unfortunately neglected to provide the parties with appropriate direction for submission of any further argument at the end of closing submissions. [43] On October 30, 2015 received correspondence from Dr. Graham’s counsel advising that he was writing on behalf of both counsel and requesting direction as to whether the parties may submit additional written material on two questions: (i) Whether the Statement of Claim should be amended to substitute Postmedia Network Inc. (the current proprietor of the Star Phoenix) for the defendant Canwest Publishing Inc. (former proprietor of the Star Phoenix); and (ii) Whether the plaintiff, if successful in establishing the defendants are liable in defamation, are entitled to an injunction requiring the defendants to remove certain content from websites under their control. [44] On the basis of the request of the parties in closing argument and their mutual desire to provide written submissions to the Court on the aforementioned two questions, instructed the Local Registrar to contact both counsel, advise them that would receive written submissions on these points and gave them deadline by which these submissions should be filed. [45] Both counsel filed written submissions. In the defendants’ written submission, counsel reiterated that these two outstanding issues are being raised with his agreement. [46] I am satisfied that Postmedia Network Inc. was the successor to Canwest Publishing Inc. and at the time of trial, was the owner of the Star Phoenix newspaper. I am also satisfied that Postmedia Network Inc. was aware of the existence of Dr. Graham’s claim including knowledge of the matters in issue. Counsel that had been representing Canwest Publishing Inc. and the other defendants before Postmedia Network Inc. purchased the Star Phoenix continued to represent the defendants after the purchase. In documents filed with the Court, counsel began identifying that he was now representing Postmedia Network Inc. as successor to Canwest Publishing Inc. Counsel ran the trial and must have been receiving some instruction from Postmedia Network Inc. as to how to proceed. [47] Rule 3-84(2) allows the Court to grant leave to add or substitute party at any stage of the action unless prejudice will result that cannot be compensated for. It is clear that trial judge has the discretion to add parties to an action however that discretion should not be exercised when it works an injustice to one of the parties. See Bradford Smith (1989), 1989 CanLII 4442 (SK CA), 74 Sask 193 (CA). While this rule gives the judge the power to add or substitute party, the criteria to be applied by the Court in deciding whether party ought to be joined as defendant is set out in Rule 3-78(2). See Lindsay Lindsay (1981), 1981 CanLII 2318 (SK QB), 15 Sask 29 (QB) at para 4; Scharnagl (Litigation Guardian of) Tomilin, 2005 SKCA 121 (CanLII) at para 18, 269 Sask 259. [48] Here, there is nothing that leads me to believe that Postmedia Network Inc. would suffer prejudice or an injustice if they were added as a defendant at this time. They purchased Canwest Publishing Inc. and/or its assets at least three years prior to trial and they are represented by the same lawyer that represented Canwest Publishing Inc. and the rest of the defendants. Both companies are insured by Hiscox Insurance and it appears that the insurer attended the pre-trial settlement conference on behalf of both companies. Counsel for the defendants admitted in correspondence that understandably no examination of the proper officer of Postmedia Network Inc. occurred as the more important discovery was of Chris Purdy. Postmedia Network Inc. is not being taken by surprise in the action and am not convinced that the case, from the defendants’ perspective, would have been handled differently had Postmedia Network Inc. been added earlier in the action. The evidence remains the evidence; it did not change, become stale or lost simply because Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets. [49] The presence of Postmedia Network Inc. as defendant will ultimately promote the convenient administration of justice as it will enable the Court to determine the real questions in issue between the parties and effectively and completely adjudicate on all the issues in the action. Moreover, given that the Court has no evidence as to the specific terms upon which Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets, there may be some doubt as to which entity Dr. Graham is entitled to remedy against if he is successful in his claim. For these reasons, Postmedia Network Inc. should be added as a defendant in this action. [50] I am not convinced that adding Postmedia Network Inc. as a defendant deprives them of a defence under s. 5 of The Limitations Act. Section states: Unless otherwise provided in this Act, no proceedings shall be commenced with respect to claim after two years from the day on which the claim is discovered. [51] The articles complained of were published between November 24, 2007 and January 3, 2008, and it would appear that the limitation period expired some time ago. But in cases where it is alleged defamatory material was posted on an internet website, as in this case, “publication” takes place wherever and whenever third party downloads or views the impugned material from the website. See Elfarnawani International Olympic Committee, 2011 ONSC 6784 (CanLII) at para 31. Consequently, the limitation period begins to run each and every time defamatory content on the internet is downloaded and viewed. This was the conclusion reached by the British Columbia Court of Appeal in Carter B.C. Federation of Foster Parents Association, 2005 BCCA 398 (CanLII) at para 20, 257 DLR (4th) 133. [52] It is not necessary for plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third party. If, on the facts proved, it can reasonably be inferred that the words were brought to the knowledge of some third party, prima facie case is established. See Gaskin Retail Credit Co., 1965 CanLII (SCC), [1965] [53] In Bernstein Poon, 2015 ONSC 155 (CanLII), although it was proven that the defamatory material was posted on the defendant’s website for at least one to two years prior to being removed, there was no direct evidence that anyone except the defendant and his legal representatives viewed the material. In concluding that there was more than ample evidence to support the drawing of an inference that the material on the website was viewed by third parties, Mew J. held that “[t]o find otherwise would be to ignore the realities of twenty-first century communication…”. [54] The defendants in the present case acknowledged that the articles in question remain on websites controlled by the Star Phoenix, Canwest Publishing Inc. and/or Postmedia Network Inc. It was part and parcel of their closing argument that to grant an injunction that the defamatory material be removed from their websites would be akin to erasing history. That being so, it is reasonable conclusion that anyone with search engine could have accessed that material within the last two years and as result the limitation period would not have expired. [55] Even if am wrong in this reasoning, s. 20 of The Limitations Act allows the Court to add party even after limitation period has expired. This section states: 20 Notwithstanding the expiry of limitation period after the commencement of proceeding, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. [56] If both of the requirements set forth in the section are found to exist, the Court has an unfettered discretion to grant the application, however such discretion must be exercised judicially. See Stockbrugger Estate Wolfe Estate, 1987 CanLII 4901 (SK CA), [1987] WWR 759 (Sask CA). [57] The claim against Postmedia Network Inc. arises out of the same transactions or occurrences as the original claim against the defendants and for the reasons aforementioned, am satisfied that neither Dr. Graham, the other defendants nor Postmedia Network Inc. will suffer actual prejudice as result of adding Postmedia Network Inc. as defendant. Dr. Graham or his counsel gave no reason why they did not seek to amend their claim earlier, but as stated in Callihoo Lamoureux, 2001 SKQB 392 (CanLII), 211 Sask 36, even if there is negligence that is not necessarily fatal to the application. As result, would exercise my discretion and grant leave to add Postmedia Network Inc. as defendant in this case. (b) Are the defendants, or any of them, liable in defamation to Dr. Graham? [58] Dr. Graham takes issue with seven articles written by Chris Purdy, the Star Phoenix reporter tasked with covering the Baert trial. The dates of these articles were November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008. He alleges particular defamatory meanings to the words in each of these articles and states that the articles as whole convey defamatory impression of him. He accuses the defendants of being actuated by express malice in the publication of these articles. [59] The defendants argue that the words complained of in the different articles are not capable of bearing the defamatory meanings, either at all or to the extent alleged by Dr. Graham. They admit that five of the articles do contain some defamatory comments or meaning. They raise the defence of privilege set forth in s. 11 of The Libel and Slander Act and the defence of responsible communication in relation to some of the articles and deny that their predominant purpose in publishing the articles was to harm Dr. Graham’s reputation or for any other malicious reason. [60] Defamation occurs when words are published to third person that contain an imputation which tends to lower the plaintiff in the estimation of right-thinking members of society generally or to expose him to hatred, contempt or ridicule. To be actionable, the words must be reasonably understood by others in defamatory sense. Words may be defamatory in their natural and ordinary meaning, they may carry an implied meaning (the true innuendo), and/or an extended meaning (the false innuendo). Unless the literal meaning is plain and obvious, the plaintiff must plead what he alleges the words were intended to mean. See Laufer Bucklaschuk (1999), 1999 CanLII 5073 (MB CA), 145 Man (2d) (CA) at para 23. [61] The basic principles of the law of defamation were succinctly stated by McLachlin C.J. in Grant Torstar Corp., 2009 SCC 61 (CanLII), [2009] SCR 640 [Grant]. There she said: 28 plaintiff in defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. 29 If the plaintiff proves the required elements, the onus then shifts to the defendant to advance defence in order to escape liability. [62] In this case, the parties agree that the words complained of referred to Dr. Graham and that the words were published. Where they disagree is whether some of the words or articles were defamatory and whether they were defamatory to the extent that Dr. Graham says they were. [63] The role of the trial judge in determining whether or not words are defamatory was described by Hinkson J.A. (as he then was) in Lawson Baines, 2012 BCCA 117 (CanLII) at paras 26 and 27, [2012] WWR 429 [Lawson]: 26 The first task of judge in defamation case is to answer the “threshold question” of “whether the words cited are reasonably capable of defamatory meaning”: Laufer v. Bucklaschuk (1999), 1999 CanLII 5073 (MB CA), [2000] W.W.R. 462 at 470-471 (Man. C.A.). The judge, if sitting alone, then plays second role; as finder of fact, in determining whether the words do, in fact, bear that defamatory meaning. 27 In executing the first role, the question is whether the words complained of are reasonably capable of being understood in defamatory sense. In exercising this gatekeeper role, the judge must keep in mind that the question does not involve finding that the words are in fact defamatory, but concerns only what the words are capable of meaning. When performing this task, the judge must not stray from “common sense construction” of these words (as it was termed in Makow v. Winnipeg Sun, 2003 MBQB 56 (CanLII), [2003] 11 W.W.R. 166, affirmed 2004 MBCA 41 (CanLII)) and seize upon one marginal to that construction. [64] In Botiuk Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] SCR [Botiuk], Cory J. said: 62 For the purposes of these reasons, it is sufficient to observe that publication which tends to lower person in the estimation of right-thinking members of society, or to expose person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1-15: [A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented. [65] As decide whether the words and/or articles in question were defamatory, both parties urge me to consider the context in which the words were published and the context of the articles. Brown on Defamation, loose-leaf (2012-Rel 4) 2d ed, vol (Toronto: Carswell, 1999), stresses that context and circumstances are crucial in determining the defamatory sense of words. At pages 5-82 to 5-83: The defamatory communications must be viewed contextually. In determining whether they are defamatory, the words “must be considered in the context of the matter complained of as whole.” An alleged defamatory statement cannot be considered apart from the circumstances in which it was made. word having different shades of meaning may derive color and significance from the nature of the act to which it is applied. “What is said and what is done always has its proper relation to time, place, conditions, and circumstances.” Therefore, in determining the defamatory sense of language, “reference must be had, not only to the words or expressions themselves, but also to the circumstances under which they were used.” This is particularly true where an innuendo has been pled. [66] Besides arguing that the words were not defamatory, the defendants rely on the defence of privilege afforded newspapers under s. 11 of The Libel and Slander Act and the defence of responsible communication. Section 11 of The Libel and Slander Act reads as follows: 11(1) fair and accurate report in newspaper without comment, of proceedings publicly heard before court of justice, if published contemporaneously with those proceedings, shall be absolutely privileged unless the defendant has refused or neglected to insert in the newspaper in which the report complained of appeared reasonable letter or statement of explanation or contradiction by or on behalf of the plaintiff. (2) Nothing in this section authorizes the publication of blasphemous, seditious or indecent matter. [67] The defence of responsible communication is relatively new defence in Canadian law. Formally accepted by the Supreme Court of Canada in Grant, McLachlin C.J. described the elements of the new defence as follows: 126 The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where: A. The publication is on matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances. [68] With this background in mind and since each publication is separate cause of action for which an action lies (Lambert Roberts Drug Stores Ltd., 1933 CanLII 289 (MB CA), [1933] DLR 193 (Man CA), at para [Lambert]), will address each of the articles Dr. Graham complains of separately. (i) November 24, 2007 Article [69] This article appeared both in the Star Phoenix newspaper and on internet sites controlled by the newspaper. The article reads as follows: Final arguments in surgery suit heard by court The gynecologist who botched routine tubal ligation operation on Lloydminster mother, leaving her quadriplegic with brain damage, clearly failed to provide her with standard level of care, jury has heard. On Friday, lawyers for Lisa Baert began their closing arguments in the two-month civil trial in Saskatoon’s Court of Queen’s Bench. Because the lawyers need more time Monday to complete their case, Justice Grant Currie told the jury members all women they won’t need to bring their suitcases until Tuesday, when they will be sequestered for their deliberations. “It’s clear this case is about young family whose lives were unimaginably changed,” said lawyer Sandra Weber. Lisa Baert was 21 when she went to the Lloydminster hospital in July 1999 for what is considered by many to be safe, simple sterilization procedure, said Weber. But her bowel was unknowingly punctured during the laparoscopic operation, allowing toxins to leak into her body. She was discharged from hospital but two days later was rushed back suffering from septic shock. Her hands and feet had to be amputated. And she also suffered major brain damage during cardiac arrests. She now lives in Saskatoon’s Parkridge Centre. Baert, her husband Mark and their two young sons are suing Dr. Kenneth Graham for more than $10 million for negligence. The Lloydminster hospital and several nurses originally named in the suit previously settled out of court. “Dr. Graham failed Lisa Baert in number of ways,” said Weber. She said Graham did not get Baert’s informed consent for the surgery. When he met her in his office weeks before the operation, he spent only three minutes discussing the operation. Mark testified when his wife returned home, and he asked her if the doctor had discussed risks of the upcoming surgery, she told him: “I don’t believe he told me of any risks.” Weber also reminded the jury one of Graham’s other patients, who had tubal ligation that same day, testified she was unaware the bowel could be nicked during the surgery. Graham testified it was his routine to briefly mention the risk of bowel perforation. But he would not tell patients the consequences of such an injury include septic shock or death, because the event is so rare. “Even if risk is rare, if the potential consequences are serious, that must be disclosed,” Weber said. She said Graham further failed Baert by proceeding with the surgery, after another doctor diagnosed her with postpartum depression and prescribed her anti-depressants. Graham either didn’t see the update in her chart, said Weber, or he ignored the vital piece of information. She said Graham also admitted he was “crunched for time,” with three other surgeries scheduled the same morning as Baert’s operation. He obviously used “improper technique,” inserting the needle at wrong angle or pushing it too deep into the abdomen, said Weber. Graham was alerted to possible problem when the surgical equipment gave high pressure reading, an indication the needle had met an obstruction, such as the bowel, Weber said. But he completed the surgery and didn’t tell other staff or Baert of the problem so they could watch for symptoms. “The doctor’s responsibility doesn’t end when he puts in the last suture,” Weber said. “Dr. Graham had the missing piece of the puzzle that he failed to communicate, and that started the whole process.” Baert was discharged from hospital and given an instruction sheet from nurse about how she should not take prescription drugs and should call the hospital or her doctor if she experienced more pain. Baert and concerned neighbour allegedly called the hospital three times during the next two days, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Graham’s defence lawyers have argued the nurses obviously gave bad advice over the phone, and Baert should have followed the instructions by returning to the hospital. Graham’s defence suggests the hospital and Baert carry about 75 per cent of the responsibility for what happened. Weber said Baert did nothing wrong, and Graham is to blame for 80 per cent of the incident. The hospital is responsible for the remaining 20 per cent. “Dr. Graham’s negligence is by far the biggest factor,” she said. [Italics are mine] [70] Dr. Graham argues that the italicized portions of the article are false, malicious and defamatory and were understood to mean that he botched routine tubal ligation operation on Lisa Baert causing her to become quadriplegic with brain damage. [71] Defendants’ counsel says that this article is Ms. Purdy reporting on the submissions of Ms. Baert’s counsel to the jury and that the natural and ordinary meaning of the words complained of is non-defamatory. Alternatively they rely on the privilege accorded to newspapers reporting on court proceedings pursuant to s. 11 of The Libel and Slander Act and the defence of responsible communication. [72] Looking at the words specifically complained of by Dr. Graham in the context of the article as whole, am not satisfied that these words are reasonably capable of defamatory meaning. An ordinary person reading these words would understand that these are the plaintiff’s lawyer’s arguments at the end of lengthy trial. The impugned portions state as much when they end with “a jury has heard” and “said Weber”. Early in the article it states that lawyers for Ms. Baert began their closing arguments in trial and the different paragraphs are littered with references that Ms. Weber said this or she said that. An ordinary person reading this would be mindful that this trial is not finished, that no determination has yet been made as to whether Dr. Graham has done anything wrong and that what is being said here are arguments jury is going to have to consider. [73] Even if am wrong in this conclusion, the words complained of are not actionable by reason of the privilege afforded the defendants under s. 11 of The Libel and Slander Act. The article was fair and accurate contemporaneous reporting of the closing submissions made by the Baerts’ lawyer to the jury. For both these reasons, the allegation that this November 24, 2007 article is defamatory is dismissed. (ii) November 28, 2007 Article [74] This article was only published on the Star Phoenix internet sites. It read as follows: Gynecologist not negligent in tubal ligation lawsuit The gynecologist found not negligent Wednesday in the case of Lloydminster mother left with devastating injuries after routine tubal ligation recently settled second lawsuit with another patient who nearly died following the same surgery. Dr. Kenneth Graham settled the second suit out of court for an undisclosed sum earlier this month, said lawyer John Jordan of Nanaimo, B.C. Jordan said his client, Gloria Cooke, was referred to Graham for the laparoscopic tubal ligation at Dawson Creek and District Hospital in 2002. He mistakenly punctured her bowel twice during the surgery. “She almost died and struggled to hang on for month,” said Jordan. On Wednesday, after nine weeks of trial, Saskatoon jury determined Graham was not negligent in his care of Lisa Baert when he punctured her bowel during tubal ligation at the Lloydminster hospital in 1999. Baert went into septic shock and doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert and her family were claiming more than $10 million in damages against Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. One of the six jurors, her bottom lip quivering as the verdict was read, wiped tears from her face and glanced at Baert’s husband, Mark, and his three sons sitting in the courtroom. The jurors did not have to be unanimous, but five of the six had to agree on each question posed in six-page verdict sheet in order to reach their decision. Baert, confined to wheelchair and living at the Parkridge Centre long-term care home, was unable to make it to the courthouse for the verdict. And her husband did not talk to reporters when he left the building. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. She said the trial was difficult for her client and obviously the jury. “I realize how difficult it would have been for the jury to reach the conclusion that it did,” said Glazer. “But the jury did what it had to do, and that was set aside its emotion and look at the case objectively.” Baert’s lawyers planned to call about 10 other patients during the trial, some like Cooke suffered complications during surgeries conducted by Graham. But Court of Queen’s Bench Justice Grant Currie ruled the patients couldn’t testify because their stories weren’t relevant to Baert’s case and would prejudice the jury. Graham said Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. His lawyers also argued bowel perforations are recognized but rare risk of tubal ligations. And instruments inserted into the abdomen mistakenly puncture the bowel in about four of every 10,000 surgeries. Jordan, Cooke’s lawyer, said the risks increase if woman has had prior abdominal surgery, which was the case with Cooke. The 41-year-old mother of three argued she told Graham about her prior surgery, although Graham claimed she did not, said Jordan. Graham, granted licence by the B.C. College of Physicians and Surgeons despite Baert’s injuries in Saskatchewan, went ahead with Cooke’s tubal ligation on Oct. 31, 2002. Graham had to cut through lesions and adhesions formed during Cooke’s prior surgery. When Graham saw the abnormalities, he should have stopped the surgery, said Jordan. “He didn’t have the skill to do the dissection. It’s whole other level of surgery, not what obstetricians and gynecologists should be doing.” But he continued and the operation took 45 minutes, Jordan said, four times as long as Baert’s surgery and what Graham testified was normal. Jordan said Graham kept Cooke in hospital overnight to monitor her condition but she was released the next day. She soon returned to the hospital in pain but Graham diagnosed her with gastrointestinal problem and sent her home. She returned to hospital second time, and another doctor discovered she was suffering from septic shock. She was sent to hospitals in Grand Prairie and Edmonton for life-saving surgeries. Doctors determined two puncture holes in her bowel occurred during the tubal ligation, said Jordan. He said Cooke is still in chronic pain and has an incisional hernia in her abdomen. She has returned to work as medical office assistant. But because she no longer has stomach muscles, she needs to wear girdle each day to hold herself in. Graham voluntarily stopped doing laparoscopic operations after Cooke’s surgery. But four months later, Dawson Creek media reported 35-year-old Dana McLellan had to be air-lifted to Vancouver after Graham cut her bladder during hysterectomy. The hospital, the Northern Health Authority and the B.C. College of Physicians and Surgeons reviewed complaints against Graham but his licence was not revoked. College spokesperson Susan Prins said Graham voluntarily agreed to have his skills assessed at the University of Saskatchewan. And although he passed, he did not return to work. Graham, 55, testified in the Baert case that he was unable to work after heart attack in 2003. He underwent quintuple bypass surgery, then developed depressive illness. He now lives in St. Albert, just north of Edmonton. [Italics are mine] [75] It was Dr. Graham’s position that the italicized portions of this article contained false, malicious and defamatory words that were understood to mean: (a) That he negligently performed surgery on Lisa Baert, thereby causing her to suffer devastating injuries and the jury’s verdict exonerating him of negligence was wrong and should be given no credibility; (b) He negligently performed surgery on Gloria Cooke, thereby nearly causing her death; (c) He negligently failed to address post-surgery complications experienced by Gloria Cooke, thereby nearly causing her death; (d) His negligent treatment of Gloria Cooke caused her to suffer septic shock, permanent chronic pain, an incisional hernia in her abdomen and the permanent loss of her stomach muscles; and (e) He negligently performed surgery on Dana McLellan, placing her health and life in jeopardy. [76] Counsel for the defendants agreed that the italicized portions of this article were defamatory insofar as they implied that Dr. Graham was negligent in his treatment of Gloria Cooke and Dana McLellan. However he denied that the natural and ordinary meaning of the words complained of were defamatory in any other sense as suggested by Dr. Graham. He acknowledged that the statutory defence of privilege under s. 11 of The Libel and Slander Act was not available as this article was not contemporaneous reporting of court proceedings. He also advised that he was not advancing the defence of responsible communication as the evidence did not support it in this instance. [77] The defendants admit that the italicized words are defamatory and agree. The natural and ordinary meaning of these words is reasonably capable of defamatory meaning. reasonable person of ordinary intelligence would believe that, at the very least, these words meant that Dr. Graham negligently treated Gloria Cooke and Dana McLellan. However, am also satisfied that reasonable person would conclude that these words are reasonably capable of being given the extended meaning ascribed to them by Dr. Graham. [78] The byline references that Dr. Graham was not negligent in the lawsuit but the context of the article as whole and the specific words complained of make it appear that the jury was wrong to find him not at fault for Ms. Baert’s injuries. The article does not report solely on the jury’s verdict but includes serious allegations made by two of Dr. Graham’s former patients that he was negligent in his treatment of them. By including discussion of these two patients, and in the case of Ms. Cooke detailed discussion, of their complaints, leads to the inevitable conclusion that Dr. Graham was negligent in their cases and ergo must have been negligent in the Baert case. The only reason he was found not liable was because the jury was not allowed to hear about their cases. [79] The words themselves do not simply point to Dr. Graham being negligent in his treatment of Ms. Cooke and Ms. McLellan but go farther that he caused Ms. Cooke specific injury and nearly death and that he put Ms. McLellan’s life in jeopardy. The words Ms. Purdy used to describe Ms. Cooke’s treatment, or mistreatment, were “she almost died and struggled to hang on for month”, that she was sent for “life-saving surgeries”, she is “still in chronic pain”, has “an incisional hernia in her abdomen”, and “no longer has stomach muscles”. The meaning of these words is clearly more than just that Dr. Graham was negligent in his treatment of her. [80] There is only one paragraph in the article speaking about Ms. McLellan but by using the words “air-lifted to Vancouver” the meaning is that the cut to her bladder was so serious that she needed to be flown to bigger hospital to be treated. Again, the meaning of these words is more than that Dr. Graham was simply negligent in his treatment of Ms. McLellan. [81] The evidence satisfies me that the natural and ordinary meaning of the words complained of and the implied meaning of these words in the context of the article as whole, are that Dr. Graham negligently performed surgery on Ms. Baert causing her devastating injuries and the jury’s verdict exonerating him was wrong, that he negligently performed surgery on Gloria Cooke and negligently failed to address her post-surgery complications thereby causing her specific injuries and nearly causing her death and that he negligently performed surgery on Dana McLellan and placed her life in jeopardy and this is defamatory. (iii) The First November 29, 2007 Article [82] Two separate articles written by Ms. Purdy appeared in the Star Phoenix newspaper and on their websites on November 29, 2007. The first of these articles reads as follows: Gynecologist not negligent Punctured bowel led to brain damage The gynecologist found not negligent Wednesday in the case of Lloydminster mother left with devastating injuries after routine tubal ligation recently settled second lawsuit with another patient who nearly died following the same surgery. Dr. Kenneth Graham settled the second suit out of court for an undisclosed sum earlier this month, said lawyer John Jordan of Nanaimo, B.C. Jordan said his client, Gloria Cooke, was referred to Graham for the laparoscopic tubal ligation at Dawson Creek and District Hospital in 2002. He mistakenly punctured her bowel twice during the surgery. “She almost died and struggled to hang on for month,” said Jordan. On Wednesday, after nine weeks of trial, Saskatoon jury determined Graham was not negligent in his care of Lisa Baert when he punctured her bowel during tubal ligation at the Lloydminster hospital in 1999. Baert went into septic shock and doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert and her family were claiming more than $10 million in damages against Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. One of the six jurors, her bottom lip quivering as the verdict was read, wiped tears from her face and glanced at Baert’s husband, Mark, and his three sons sitting in the courtroom. The jurors did not have to be unanimous, but five of the six had to agree on each question posed in six-page verdict sheet in order to reach their decision. Baert, confined to wheelchair and living at the Parkridge Centre long-term care home, was unable to make it to the courthouse for the verdict. And her husband did not talk to reporters when he left the building. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. She said the trial was difficult for her client and obviously the jury. realize how difficult it would have been for the jury to reach the conclusion that it did,” said Glazer. “But the jury did what it had to do, and that was set aside its emotion and look at the case objectively.” Baert’s lawyers planned to call about 10 other patients during the trial, some like Cooke suffered complications during surgeries conducted by Graham. But Court of Queen’s Bench Justice Grant Currie ruled the patients couldn’t testify because their stories weren’t relevant to Baert’s case and would prejudice the jury. Graham said Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. His lawyers also argued bowel perforations are recognized but rare risk of tubal ligations. And instruments inserted into the abdomen mistakenly puncture the bowel in about four of every 10,000 surgeries. Jordan, Cooke’s lawyer, said the risks increase if woman has had prior abdominal surgery, which was the case with Cooke. The 41-year-old mother of three argued she told Graham about her prior surgery, although Graham claimed she did not, said Jordan. Graham, granted licence by the B.C. College of Physicians and Surgeons despite Baert’s injuries in Saskatchewan, went ahead with Cooke’s tubal ligation on Oct. 31, 2002. Graham had to cut through lesions and adhesions formed during Cooke’s prior surgery. When Graham saw the abnormalities, he should have stopped the surgery, said Jordan. “He didn’t have the skill to do the dissection. It’s whole other level of surgery, not what obstetricians and gynecologists should be doing.” But he continued and the operation took 45 minutes, Jordan said, four times as long as Baert’s surgery and what Graham testified was normal. Jordan said Graham kept Cooke in hospital overnight to monitor her condition but she was released the next day. She soon returned to the hospital in pain but Graham diagnosed her with gastrointestinal problem and sent her home. She returned to hospital second time, and another doctor discovered she was suffering from septic shock. She was sent to hospitals in Grand Prairie and Edmonton for life-saving surgeries. Doctors determined two puncture holes in her bowel occurred during the tubal ligation, said Jordan. He said Cooke is still in chronic pain and has an incisional hernia in her abdomen. She has returned to work as medical office assistant. But because she no longer has stomach muscles, she needs to wear girdle each day to hold herself in. Graham voluntarily stopped doing laparoscopic operations after Cooke’s surgery. But four months later, Dawson Creek media reported 35-year-old Dana McLellan had to be air-lifted to Vancouver after Graham cut her bladder during hysterectomy. The hospital, the Northern Health Authority and the B.C. College of Physicians and Surgeons reviewed complaints against Graham but his licence was not revoked. College spokesperson Susan Prins said Graham voluntarily agreed to have his skills assessed at the University of Saskatchewan. And although he passed, he did not return to work. Graham, 55, testified in the Baert case that he was unable to work after heart attack in 2003. He underwent quintuple bypass surgery, then developed depressive illness. He now lives in St. Albert, just north of Edmonton. [Italics are mine] [83] This article is identical to the November 28, 2007 article written by Ms. Purdy that was published on the Star Phoenix websites. It appeared on the front page of the November 29, 2007 edition of the Star Phoenix and continued on page A8. The only difference between this article and the previous article is the byline. The byline that appeared on the front page attached to this article was “Gynecologist Not Negligent” and on page A8 attached to the continuation of the story was “Suit: jury not allowed to hear from other patients”. [84] The words in this article that Dr. Graham complains of are the same as the words he complained of in the November 28, 2007 article. His complaints about this article are the same as his complaints about the previous article for all the same reasons set forth previously. Given this article was identical to the previous article, both counsel’s arguments about this article were identical to their arguments on the previous article. [85] From my perspective it would be superfluous for me to reiterate my reasoning and comments from the previous article here and see no need to do so. Suffice it to say that my conclusion remains that the words Dr. Graham complains of are defamatory both on their natural meaning and on their implied meaning in the context of the article as whole. The fact that the byline in this article is somewhat different than in the November 28 article and this article appeared on the front page of the newspaper does not alter my reasoning or conclusions. (iv) The second November 29, 2007 Article [86] second separate article written by Ms. Purdy appeared on page A8 of the Star Phoenix newspaper on November 29, 2007 and on their websites. It read as follows: Routine surgery became health nightmare Lisa Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” Lisa Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” She and her husband Mark, financially strapped and already parents to two sons, had decided they didn’t want more children. And Mark didn’t want vasectomy. During the routine laparoscopic operation, Graham unknowingly punctured Baert’s bowel, and the two-millimetre hole allowed toxins to leak into her body. But the surgery was completed, clips were placed on her fallopian tubes, and she was stitched up and sent home. Two days later, an ambulance rushed her back to hospital suffering from septic shock. Her bowel was repaired but because of reduced blood flow and dead tissue, doctors had to amputate her hands at the wrist and her legs below the knees. She also suffered severe brain damage, due to cardiac arrests during surgery, leaving her with the mental capacity of child. Now 29, Baert lives in Saskatoon’s Parkridge Centre long-term care home, where staff help with daily tasks such as changing her diapers and putting on her prosthetic limbs. Baert and her family launched multimillion-dollar lawsuit in 2000 against Graham, the hospital and several nurses. The hospital and nurses settled out of court for an undisclosed sum shortly before the trial began in September, leaving Graham the lone defendant. Graham, who no longer practices as doctor, denied any negligence, claiming bowel perforations are recognized, although rare, risk of tubal ligation surgeries. And he said it was up to nurses to monitor Baert for symptoms of complications after the surgery. Graham also argued Baert was partially responsible for her injuries for not returning to the hospital when she experienced increasing pain at home following the surgery. When Baert was discharged from hospital, nurse gave her an instruction sheet stating she should call her doctor or return to the hospital if she experienced more pain. Baert and concerned neighbour allegedly called the hospital three times during the next two days, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Baert’s lawyers argued she did what any reasonable patient would have. They claimed Graham used improper technique during the surgery and should have known that he punctured her bowel when equipment in the operating room measured high pressure reading. They said Graham had duty to pass that information on to Baert and the nurses so they would more closely watch for symptoms of complications. They further argued Graham didn’t properly explain to Baert the risks of the surgery or the consequences of bowel puncture, and therefore he didn’t get her informed consent to operate. [Italics are mine] [87] Dr. Graham complains that the italicized words in this article were false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer septic shock; (b) He negligently performed surgery on Lisa Baert, thereby causing her to suffer cardiac arrests resulting in severe brain damage, leaving her with the mental capacity of child and requiring her to live in long-term care facility; (c) He negligently performed surgery on Lisa Baert, thereby causing her to suffer reduced blood flow and dead tissue, necessitating the amputation of her hands and her legs below the knees; (d) He deliberately and deceitfully did not advise the nurses or Lisa Baert that he had punctured her bowel during surgery, or alternatively, that he negligently failed to do so; and (e) He deliberately concealed from Lisa Baert the risks associated with tubal ligation surgery and therefore did not receive her informed consent to perform such surgery. [88] Counsel for the defendants acknowledged that the meaning of the italicized portions of the article was defamatory in that they meant that Dr. Graham was negligent in his treatment of Ms. Baert, but he denied that the words were defamatory in any other sense as suggested by Dr. Graham. He took specific issue that the words in question could be interpreted to mean that Dr. Graham caused certain things, was deliberately deceitful or deliberately concealed information. He encouraged me to consider the article as whole. He did not advance any other arguments. [89] The defendants admit that the plain meaning of the words complained of in this article are defamatory insofar as they mean that Dr. Graham was negligent in his treatment of Ms. Baert. accept that the plain meaning of these words is defamatory but the meaning goes farther than the defendants’ counsel suggests. [90] The article as whole says nothing about the verdict in the case, nor does it tie in any of the information to the judge’s instructions in the case, the jury’s deliberations or their ultimate verdict. Reading this article, person would have no reason to believe that Dr. Graham was found not negligent in the case. The words complained of in the first five paragraphs of the article outline the cause and the effect: Dr. Graham performed surgery on Ms. Baert, he punctured her bowel in the process, she developed sepsis that eventually led to other complications and as result of that she ended up living in care home. Thus the words are defamatory but the meaning of the words includes more than just that Dr. Graham was negligent; it includes the results of his negligence as well. [91] The last three paragraphs Dr. Graham complains about in the article are Ms. Baert’s lawyer’s comments about what Dr. Graham did wrong. The plain meaning of these words is that Dr. Graham was supposed to do some things and he did not, for example, he did not pass on information to the nurses or properly explain the risks of the surgery to Ms. Baert. Without presenting Dr. Graham’s lawyer’s arguments on these points or indicating that the jury vindicated him of these allegations, the words indicate he was negligent by not doing these things. am not however satisfied that these words were understood to mean that Dr. Graham deliberately did not do these things or that he was, in any way, deceitful. [92] Therefore, on the evidence, the defamatory meaning of the words complained of is that Dr. Graham negligently performed surgery on Ms. Baert causing her septic shock, amputation of her hands and feet, cardiac arrest, severe brain damage leaving her with the mental capacity of child and requiring her to live in long-term care facility and further, that he did not advise the nurses or Ms. Baert that he had punctured her bowel or that he negligently failed to do so and he did not properly advise Ms. Baert of the risks associated with the surgery and did not therefore receive her informed consent to the surgery. (v) November 30, 2007 Article [93] The following article appeared in the Star Phoenix newspaper and on its websites on November 30, 2007: Baert family mulls appeal of suit decision Lisa Baert may have the mental capacity of child, but she can still comprehend the loss of her multimillion-dollar malpractice lawsuit against her former gynecologist. Mark Baert said Thursday that when he told his wife of the jury’s decision and the judge’s dismissal of the suit, she was understandably upset. “It’s lot of hopes and dreams there being crushed,” said Mark. The couple and their two sons were claiming more than $10 million in damages against Dr. Kenneth Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. Lisa, 29, sat in her wheelchair throughout most of the trial but was not in the courtroom for the decision on Wednesday. Graham unknowingly punctured her bowel, allowing toxins to leak into her body, during routine tubal ligation in July 1999. She was discharged from hospital but two days later was rushed back suffering from septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. After nine weeks of testimony in the civil trial, the six-member jury all women decided Graham had Lisa’s informed consent to perform the surgery and provided standard level of care both during and after the operation. Graham’s lawyers argued bowel perforations are rare but recognized risks of tubal ligations, and it was up to the nurses to watch for symptoms of complications after the surgery. Graham also claimed Lisa was partially at fault for not immediately returning to the hospital when she experienced increasing pain at home. Because Lisa was not mentally capable of testifying in the case, Mark told the jury Lisa and concerned neighbour called the hospital three times about her pain following the surgery. But nurses who answered the calls told them to wait out the pain and gave permission for Lisa to take the neighbour’s prescription pain killers. Graham, 55, recently settled another lawsuit in similar case involving woman from Dawson Creek, B.C. Gloria Cooke almost died after Graham twice punctured her bowel during tubal ligation in 2002. After several life-saving surgeries, she was left with chronic pain and has an incisional hernia in her abdomen. The jury in the Baert trial was not allowed to hear about Graham’s other patients. Mark said he’s glad Graham is no longer working as doctor. After heart attack in 2003, Graham underwent quintuple bypass and then developed depressive illness. Mark said he went public with Lisa’s injuries in 1999 to warn others about Graham. But the doctor moved to B.C. and was granted medical licence there. “I certainly wouldn’t wish harm upon him,” said Mark. “He’s human. He makes mistakes. understand that.” Mark said he’s not sure if his family will appeal the ruling. One of his lawyers, David Risling, said because the Baerts lost the suit, they will likely be on the hook for Graham’s legal fees. The majority of damages claimed in the lawsuit $8.7 million were ear-marked for future health-care costs to move Lisa into private group home. Mark, unable to comment on the amount of the settlement with the hospital, also couldn’t say whether the move is still possible. Lisa currently lives in Saskatoon’s Parkridge Centre, publicly funded and government-subsidized long-term care home. Staff help with daily tasks such as changing her diapers and putting on her prosthetic limbs. Lisa has some movement in her shoulders and elbows but is basically immobile. Her wheelchair has headrest because she can’t hold her head up for long without support. [Italics are mine] [94] It was Dr. Graham’s argument that the italicized words in this article were false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer devastating injuries; (b) The verdict of the jury exonerating him of negligence in his treatment of Lisa Baert was perverse; (c) He negligently performed surgery on Gloria Cooke, thereby nearly causing her death; (d) He negligently performed surgery on Gloria Cooke, thereby causing her to suffer permanent chronic pain and an incisional hernia in her abdomen; and (e) He is guilty of habitual negligence in his surgical practice and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. [95] Dr. Graham also argued that in the alternative, these defamatory meanings were conveyed by way of legal innuendo by the combined effect of the November 24, 28, 29 and 30 articles. [96] The defendants agreed that to the extent that the italicized words in this article meant that Dr. Graham negligently performed surgeries on Lisa Baert and Gloria Cooke, they were defamatory. However once again, counsel took issue with any additional meanings attributed to the words by Dr. Graham or that in the context of the first four articles referenced, legal innuendo conveyed the meanings attributed to the words by Dr. Graham. Counsel did not make any other argument in relation to this article. [97] The meaning of the words complained of must be looked at in the context of the entire article. The article says that Dr. Graham unknowingly punctured Ms. Baert’s bowel allowing toxins to leak into her body. Two days later she was rushed back to the hospital with septic shock. Doctors had to amputate her hands and feet, she suffered severe brain damage, she has the mental capacity of child, she is in wheelchair and lives in long-term care home. Thus in my view, when Mark Baert said that he went public with Lisa’s injuries in 1999 to warn others about Graham, an ordinary person would conclude that he believed that people should know that Dr. Graham negligently performed surgery on his spouse and that she suffered devastating injuries as result thereof. [98] The words complained of relating to Ms. Cooke are that Dr. Graham twice punctured her bowel, she almost died, she had several life-saving surgeries, she has chronic pain and an incisional hernia in her abdomen, she sued Dr. Graham and he settled with her. reasonable person looking at these words would obviously say that Dr. Graham negligently performed surgery on her that nearly caused her death and resulted in her suffering permanent chronic pain and an incisional hernia in her abdomen. [99] In addition to the article speaking of Dr. Graham’s negligent surgery on Ms. Baert and the injuries she suffered as result of that, the article also speaks of Ms. Baert being upset to learn that the jury’s decision resulted in the dismissal of her lawsuit against Dr. Graham, that Dr. Graham was sued by Gloria Cooke in British Columbia in similar case and he settled with her. Looking at the words that “the jury in the Baert trial was not allowed to hear about Dr. Graham’s other patients” in the context of the article as whole, reasonable person would think that had the jury been allowed to hear Ms. Cooke and other of Dr. Graham’s patients, it would have been obvious to them that he was habitually negligent in his surgical practice and that the verdict exonerating him would have been different. [100] cannot however agree with Dr. Graham’s contention that the ordinary meaning of the impugned words or the legal innuendo meaning conveyed by the previous articles is that he should not be permitted to practice as surgeon because of the unacceptable risk he poses to the life and health of his patients. The words, even in the context of the article as whole and/or read in concert with the previous articles written by Ms. Purdy, do not lend themselves to this meaning. Dr. Graham, according to the article, stopped practicing as doctor in 2003 after suffering heart attack and later depression. This is point made in the November 28 article and both articles on November 29. These words do not connote the meaning that this man should be prohibited from being doctor going forward. reasonable man would glean that he has already ceased practicing medicine as result of his own medical issues and is not concern anymore. (vi) The December 1, 2007 Article [101] On December 1, 2007 an article written by Chris Purdy appeared on page A4 of the Star Phoenix and on the newspaper’s websites. The article read: Former patient wanted chance to confront doctor Dr. Kenneth Graham made surgical mistakes that led to complications with four other patients before the tubal ligation on Lloydminster mother Lisa Baert in 1999 left her quadriplegic with brain damage. Sharry Michels, 50, said the gynecologist accidentally clamped her femoral artery, nerve and vein during hysterectomy at the Lloydminster hospital in 1998. When she woke up in the recovery room, her right leg was cold and felt like it was asleep. She later learned of the complication and the possibility she might never regain feeling in her leg. “I was terrified,” Michels said Friday. Although her knee is still numb and has no reflex, her leg has recovered about 85 per cent of its normal functions. Michels said lawyer advised her against filing lawsuit, and she chose not to lay complaint about Graham with the College of Physicians and Surgeons of Saskatchewan. But after she learned of Baert’s devastating injuries, she regretted that decision. “There’s guilt thing,” said Michels. “Maybe if I’d said something earlier.” Graham unknowingly punctured Baert’s bowel, allowing toxins to leak into her body, during the routine tubal ligation in July 1999. The 21-year-old was discharged from hospital but two days later was rushed back suffering from septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. Earlier this week, after nine weeks of evidence in civil trial launched by Baert and her family, jury decided Graham was not negligent in the case. Graham’s lawyers argued bowel perforations are rare but recognized risks of tubal ligations, and it was up to the nurses to watch for symptoms of complications after the surgery. Graham also claimed Baert was partially at fault for not immediately returning to the hospital when she experienced increasing pain at home. Michels and other former patients were supposed to testify in the trial, but Court of Queen’s Bench Justice Grant Currie ruled their stories weren’t relevant to Baert’s case and would unfairly prejudice the jury. Among them was Gloria Cooke of Dawson Creek, B.C., who almost died after Graham twice punctured her bowel during tubal ligation there in 2002. After several life-saving surgeries, she was left with chronic pain and an incisional hernia in her abdomen. Cooke recently settled lawsuit with Graham out of court for an undisclosed sum. Michels said she doesn’t hold grudge against Graham, although she’s glad he is no longer practising. Graham stopped working after heart attack in 2003. “My situation is nothing compared to Lisa’s and I’m fine,” she said. “I want to express my own absolute horror that she is not getting justice. It’s absolutely unacceptable.” Jessie Isabelle Hurlburt was 73 when she went into the Lloydminster hospital for hysterectomy in 1996. Graham punctured her bowel during the operation, and she was sent to Saskatoon for life-saving surgery. After three weeks in intensive care, she left with an ileostomy bag that she would need for the rest of her life. “Once she recovered, she was quite angry about what happened to her,” said her son Les. “My mother said, ‘I want you to do something about this because don’t want this to happen to anyone else.’” Hurlburt died four years later from encephalitis, or an infection in the brain. Les said he formally complained to the college of physicians and surgeons about his mother’s surgery. Its investigation found “no medical mismanagement” by Graham. Also in 1996, Marleen Burgess saw Graham for hysterectomy. The 52-year-old said when she woke up in the Lloydminster hospital, Graham told her she’d had “complete” hysterectomy but he left one ovary to help her through menopause. But in 2004, while undergoing surgery to remove grapefruit-sized cyst on the remaining ovary, another doctor told Burgess she’d never had complete hysterectomy. She still had cervix. Burgess said her new doctor said her insides were “mess.” “She said, ‘Oh, my Lord. Who did this to you?’” Lynn Laursen said Graham cut the main artery feeding her left leg during hysterectomy in Lloydminster in 1997. “I was in danger of losing my leg and my life,” said Laursen, now 53. She said another surgeon rushed in to stitch up the artery, and save her life. She later needed two more surgeries. “When Dr. Graham did this to me, he never came and saw my husband and me to explain what happened,” said Laursen. She said she wanted the chance to testify in the Baert case and face him. “I would just ask him why it happened,” she said. Glen Luther, law professor at the University of Saskatchewan, said the judge in the Baert trial would have weighed both the prejudicial and prohibitive values of the testimony of Graham’s other patients. “He would have had to make close call.” Luther said Baert’s lawyers may have grounds for an appeal because there is not much precedent on the issue in the civil courts. [Italics are mine] [102] Dr. Graham argued that the italicized words in this article contained false, malicious and defamatory words that were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to become quadriplegic, to suffer septic shock, severe brain damage and the amputation of her hands and feet; (b) He negligently performed surgery on Sharry Michels, causing her to suffer permanent numbness and the loss of reflex in her right knee; (c) His negligent acts and omissions in his treatment of Sharry Michels warranted severe disciplinary sanction by the College of Physicians and Surgeons of Saskatchewan; (d) He negligently performed surgery on Gloria Cooke nearly causing her death and causing her to suffer chronic pain and an incisional hernia in her abdomen; (e) He negligently performed surgery on Jessie Isabelle Hurlburt nearly causing her immediate death and resulting in her requiring an ileostomy bag for the rest of her life; (f) The complications caused by his negligent surgery resulted in Jessie Isabelle Hurlburt suffering encephalitis, brain infection, which eventually led to her death; (g) His aforesaid conduct concerning Jessie Isabelle Hurlburt warranted severe disciplinary sanction by the College of Physicians and Surgeons of Saskatchewan; (h) He dishonestly and deceitfully misrepresented to Marleen Burgess that he had performed complete hysterectomy on her; (i) He negligently performed surgery on Marleen Burgess creating surgical mess; (j) He negligently performed surgery on Lynn Laursen, nearly causing her death and the loss of her left leg; and (k) He is guilty of habitual negligence in his surgical practice and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. [103] Dr. Graham also argued that alternatively, these defamatory meanings were conveyed by legal innuendo by the combined effect of the articles written by Ms. Purdy on November 24, 28, 29 and 30, 2007 and this December article. [104] The defendants agreed that the italicized portions of this article were defamatory. They agree that the plain meaning of these italicized words was that Dr. Graham was negligent in his treatment of Lisa Baert, Sharry Michels, Gloria Cooke, Jessie Isabelle Hurlburt, Marleen Burgess and Lynn Laursen. They deny that these words have any other meaning. The defendants did not raise any other defences in relation to these words. [105] Once again, am satisfied that the natural and ordinary meaning of the words complained of go farther than simply that he was negligent in his treatment of these six individuals. The paragraphs complained of relating to Lisa Baert, when read together, would lead reasonable person to believe that Dr. Graham made surgical mistakes on four other women before the mistakes he made during Ms. Baert’s tubal ligation and that as result of his mistakes, she suffered septic shock, severe brain damage, doctors had to amputate her hands and feet and she is now quadriplegic. [106] As relates Sharry Michels, the words in the paragraphs complained of should be read together. The gynecologist, who she later identified as Dr. Graham, accidentally clamped her femoral artery, nerve and vein during hysterectomy he was performing on her in 1998. When she woke up in the recovery room her right leg was cold and felt like it was asleep. She later learned that she may never regain feeling in her leg. Her knee is still numb and she has no reflex in it but her leg has recovered about 85 percent of its normal function. She consulted lawyer about suing Dr. Graham but he advised against it and she decided not to lay complaint against him to the Saskatchewan College of Physicians and Surgeons, decision she now regrets. [107] The defendants already admit that these words indicate that Dr. Graham negligently performed surgery on Ms. Michels. But it is apparent to anyone reading the words that as result of that negligent surgery, she has permanent numbness and no reflex in her right knee. cannot however conclude that reasonable person considering these comments complained of, read alone, or in the context of the article as whole, or even read in conjunction with the other articles written by Ms. Purdy, would understand that these words meant that Dr. Graham’s negligent acts and omissions in his treatment of Ms. Michels warranted severe disciplinary action by the College of Physicians and Surgeons of Saskatchewan. Ms. Michels is not referenced in any other articles except this one and the words make it clear that she did not pursue either lawsuit or complaint to the College after receiving legal advice. Having found out about Ms. Baert’s case, she now regrets not making complaint. The construction of these paragraphs does not allow one to draw the conclusion that Dr. Graham’s treatment of her warranted severe disciplinary sanction. The reasonable person would interpret these words as meaning that based on the legal advice she received, there was no point pursuing complaint about Dr. Graham to the College. [108] The words in the paragraphs complained of referencing Gloria Cooke are very clear in their meaning. Ms. Cooke almost died after Dr. Graham twice punctured her bowel during tubal ligation in 2002 and after several life-saving surgeries she has chronic pain and an incisional hernia in her abdomen. Even without considering the comments that she sued Dr. Graham and he settled with her, an ordinary person would understand these words to mean that Dr. Graham negligently performed surgery on Ms. Cooke, that she nearly died as result of that surgery and that she now has chronic pain and an incisional hernia as result of his mistakes. [109] There are words in the paragraphs complained of that relate to another of Dr. Graham’s former patients, Jessie Isabelle Hurlburt. These portions again are quite clear in their meaning. Dr. Graham performed hysterectomy on her in 1996 and in the course of doing so, punctured her bowel. As result of that, she was sent to Saskatoon for life-saving surgery. She was left with an ileostomy bag that she would need for the rest of her life. She was upset about this surgery and asked her son Les to do something about it. He filed formal complaint with the College of Physicians and Surgeons. What is omitted from the words complained of by Dr. Graham, but which appear in the article, is that after an investigation the College found “no medical mismanagement” by him. Four years later Ms. Hurlburt passed on as result of brain infection. Again, the defendants admit that these words indicate that Dr. Graham was negligent in his treatment of Ms. Hurlburt but these words also clearly indicate that as result of this negligence she almost died, had to have life-saving surgery and thereafter required an ileostomy bag for the rest of her life. [110] These words though do not leave one believing that she developed encephalitis as complication of Dr. Graham’s negligent surgery on her some four years earlier. reasonable person looking at these words themselves, in the context of the article as whole or in light of the previous articles complained of written by Ms. Purdy, would conclude brain infection occurring some four years later was separate and apart from any complication resulting from negligent hysterectomy. [111] am also not satisfied that looking at these words by themselves, in the context of the article as whole or in light of the previous articles complained of, that reasonable person would take from the words that as result of Dr. Graham’s negligent surgical conduct severe disciplinary sanction by the Saskatchewan College of Physicians and Surgeons was warranted. This is the only article that speaks about Ms. Hurlburt. As earlier pointed out, Dr. Graham conveniently admitted from the words complained of that the College, after investigating his treatment of Ms. Hurlburt, determined that there was no medical mismanagement on his part. Read in this light, reasonable person would understand that these words meant that Dr. Graham’s treatment of Ms. Hurlburt did not warrant disciplinary sanction from the College. [112] The next person mentioned in the words complained of is Marleen Burgess. The words in these paragraphs in the article advise that in 1996, Dr. Graham saw her for hysterectomy. Reading the paragraphs as whole, it is clear that Dr. Graham was the person who performed the hysterectomy on her. When she woke up after the surgery, Dr. Graham told her she had complete hysterectomy but he had left one ovary inside her. In 2004 she had surgery to remove cyst from that ovary. The doctor who did that surgery told her that she did not previously have complete hysterectomy and that her insides were “a mess”. Bearing in mind that the defendants admit that these words mean that Dr. Graham was negligent in his treatment of Ms. Burgess, the objective, natural and ordinary meaning of these words as whole is that Dr. Graham misrepresented to Ms. Burgess that he had performed complete hysterectomy on her and that as result of his negligent treatment of her, her insides were mess. In the context of the article as whole or in relation to the previous articles complained of, there is nothing that would lead person to believe that Dr. Graham made the misrepresentation to Ms. Burgess dishonestly or deceitfully. [113] The words in the paragraphs complained of referring to Lynn Laursen are short and to the point. Dr. Graham, in the course of performing hysterectomy on her in 1997, cut the main artery feeding her left leg. She almost lost her leg and her life. Another doctor stitched up her artery and saved her life. The clear meaning of these words to anyone reading them is that Dr. Graham negligently performed surgery on Ms. Laursen nearly causing her death and the loss of her left leg. [114] Finally, Dr. Graham argues that the words and paragraphs he has identified as problematic lead to the defamatory meaning that he is guilty of habitual negligence and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. Looking at all of the words Dr. Graham complains of and the context of the entire article, an ordinary person would reasonably interpret that Dr. Graham was habitually negligent in his surgical practice. But this article, like the other articles written by Ms. Purdy on November 28, 29 and 30, makes it clear that Dr. Graham stopped working after heart attack in 2003 and is no longer practicing medicine. Given this information in light of the article as whole, reasonable person would conclude that thankfully, Dr. Graham has already retired from the practice of medicine for health reasons and is no longer problem. (vii) The January 3, 2008 Article [115] This is the last article that Dr. Graham complains of. It appeared on page A3 of the Star Phoenix on January 3, 2008 and on the newspaper’s websites. This article reads as follows: Baert to appeal tubal ligation ruling Lisa Baert and her family are appealing the decision of civil jury that found her gynecologist not negligent after routine tubal ligation left her brain-damaged quadriplegic. Baert’s lawyers filed the notice with the Saskatchewan Court of Appeal in Regina on Dec. 27. The 12-page document claims mistakes were made by Court of Queen’s Bench Justice Grant Currie, both during the trial and with his instructions to the jury. The notice asks the province’s top court to find Dr. Kenneth Graham liable and assess damages or order second trial in Saskatoon. Baert and her family claimed more than $10 million in damages against Graham. The family reached an undisclosed settlement with the Lloydminster hospital and some of its nurses before the trial began in the fall. In November, after sitting through nine weeks of evidence, an all-female jury determined Graham was not negligent in the case. Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” She and her husband, Mark, were financially strapped and already had two children. During the laparoscopic operation, Graham unknowingly punctured Baert’s bowel and the two-millimetre hole allowed toxins to leak into her body. She was discharged from hospital but two days later was rushed back in septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert, now 29, lives in Saskatoon’s Parkridge Centre, long-term care home where staff change her diapers and put on her prosthetic limbs. Graham, who no longer practices as doctor, testified bowel perforations are recognized although rare risk of tubal ligations. The 55-year-old said it was up to nurses to monitor Baert for symptoms of complications after the surgery. Graham also argued Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. Baert and concerned neighbour allegedly called the hospital three times in the two days following the surgery, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Baert’s lawyers argued Graham did not get informed consent for the surgery, used improper technique and should have known he punctured her bowel when equipment in the operating room measured high pressure reading. They said Graham also had duty to pass that information on to Baert and the nurses so they could better watch for symptoms of complications. [Italics are mine] [116] Dr. Graham states that the natural and ordinary meaning of the italicized words in this article are false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer septic shock, the amputation of her hands and feet and severe brain damage; (b) He performed surgery on Lisa Baert without her informed consent; and (c) He deliberately and deceitfully concealed from Lisa Baert and from her nurses the fact that he had punctured her bowel during surgery thereby unconscionably exposing his patient to the risk of death or severe injury. [117] In the alternative, Dr. Graham stated that the aforesaid defamatory meanings were conveyed by legal innuendo, by the combined effect of all of the other articles written by Chris Purdy that he complained of. [118] Defendants’ counsel argued that the natural and ordinary meaning of the words complained of is non-defamatory. In his view, this article was about the Baert family’s decision to appeal the jury’s determination in the case. The defendants did not raise any other defences in relation to the words Dr. Graham complains of in this article. [119] The first three paragraphs that Dr. Graham complains of are juxtaposed together in the article. Prior to these three paragraphs, the article twice states that Dr. Graham was found not negligent after jury trial and further that notice of appeal has now been filed alleging number of mistakes made by the presiding judge and in his instructions to the jury. The paragraphs following these three paragraphs complained of summarize Dr. Graham’s position at trial and Ms. Baert’s lawyer’s arguments at trial. [120] These first three paragraphs are summary of what happened to Ms. Baert. The plain meaning of these words is that Dr. Graham unknowingly punctured Ms. Baert’s bowel thereby allowing toxins to leak into her body, two days later she returned to the hospital in an ambulance suffering from septic shock and consequently doctors had to amputate her hands and feet and she suffered brain damage. These words are reasonably capable of having the defamatory meaning that Dr. Graham was negligent in his treatment of Ms. Baert and that he caused her catastrophic injuries. [121] However, these paragraphs must be considered in the context of the article as whole. The byline indicates that the Baerts are going to appeal the decision and the article twice states that Dr. Graham was found not negligent in the case. This is an antidote to the defamatory comments in the three paragraphs complained of by Dr. Graham. reasonable person looking at this article in its entirety would understand that Dr. Graham was found not negligent of puncturing Ms. Baert’s bowel and causing her these devastating injuries and the Baerts have appealed this decision. It is inappropriate to consider these three paragraphs separate from the rest of the article. When that is done, the bane is removed by the antidote. [122] The other words complained of by Dr. Graham in the article also do not carry the defamatory meanings that he suggests. The comments that Dr. Graham did not get Ms. Baert’s informed consent for the surgery, that he used an improper technique, that he should have known he punctured her bowel and that he had duty to pass that information on to Ms. Baert and the attendant nurses are attributed to the argument made by Ms. Baert’s lawyers at trial. The two paragraphs in question make that clear. They start with the words “Baerts’ lawyers argued …” and “they said …”. Immediately preceding these two paragraphs are two paragraphs summarizing Dr. Graham’s arguments at the trial. reasonable person reading this article would understand that these were the positions taken by each of the parties at trial, that Dr. Graham’s position was accepted as he was found not to be negligent, that the Baerts’ arguments were not accepted and now the Baerts have appealed. These words do not support the defamatory meaning that Dr. Graham suggests. [123] Even looking at the combined effect of all of the previous articles complained of by Dr. Graham, reasonable person would still not be left with the impression that these words meant that Dr. Graham performed surgery on Ms. Baert without her informed consent and that he deliberately and deceitfully concealed from her and the nurses that he had punctured her bowel thereby unconscionably exposing her to risk of death or severe injury. That person would still understand that these comments are about the Baerts appealing and what they are appealing. The allegations that this January 3, 2008 article is defamatory are dismissed. [124] To summarize, the evidence establishes that Ms. Purdy defamed Dr. Graham in articles she wrote and that were published in the Star Phoenix newspaper and/or on the newspaper’s websites on November 28, 29 (both articles), 30 and December 1, 2007, the defamatory meanings of those words being: (a) He negligently performed surgery on Lisa Baert causing her to suffer devastating injuries and the jury’s verdict exonerating him of negligence was wrong; (b) He negligently performed surgery on Lisa Baert causing her to suffer septic shock, amputation of her hands and her legs below the knees, cardiac arrests resulting in severe brain damage leaving her with the mental capacity of child and requiring her to live in long-term care facility; (c) He negligently performed surgery on Lisa Baert causing her to become quadriplegic; (d) He did not advise the nurses or Lisa Baert that he had punctured her bowel during surgery or alternatively that he negligently failed to do so; (e) He did not advise Lisa Baert of the risks associated with tubal ligation surgery and did not receive her informed consent to perform such surgery; (f) The verdict of the jury exonerating him in his treatment of Lisa Baert was perverse; (g) He negligently performed surgery on Gloria Cooke and negligently failed to address post-surgery complications that led to septic shock, permanent chronic pain, an incisional hernia in her abdomen, the permanent loss of her stomach muscles and nearly caused her death; (h) He negligently performed surgery on Dana McLellan placing her health and life in jeopardy; (i) He negligently performed surgery on Sharry Michels causing her to suffer permanent numbness and the loss of reflex in her right knee; (j) He negligently performed surgery on Jessie Isabelle Hurlburt nearly causing her immediate death and resulting in her requiring an ileostomy bag for the rest of her life; (k) He misrepresented to Marleen Burgess that he had performed complete hysterectomy on her; (l) He negligently performed surgery on Marleen Burgess creating surgical mess; (m) He negligently performed surgery on Lynn Laursen nearly causing her death and the loss of her left leg; and (n) He is guilty of habitual negligence in his surgical practice. [125] Having reached this conclusion, must determine the liability of the remaining defendants. [126] Rod Nickel was the city editor at the Star Phoenix newspaper from September 2007 to January 2008. He assigned Chris Purdy to cover the Baert trial. He does not recall the instructions he gave to her or any particular discussion he had with her prior to the trial. He would have had day-to-day understanding of what Ms. Purdy was reporting on and what articles she was submitting on the trial. He could not explain what investigation he undertook to determine if Ms. Purdy covered the trial in balanced fashion except to say that he was doing his job while she was covering the trial. [127] Mr. Nickel did not recall what input he had on what Ms. Purdy reported on or what days of the trial she attended but normally he would discuss with her what stage the trial was at and what was possibly coming up. [128] He was aware that Ms. Purdy was writing articles about Dr. Graham’s previous patients but he was not sure when he became aware of that. He did not recall if he assigned her to do this or if she came up with this on her own. He did not recall what discussions he had with her about her research efforts or verifying the allegations made by these other patients. He did not recall whether he confirmed with Ms. Purdy whether she spoke to any medical doctors that had treated these patients after Dr. Graham. [129] After reviewing Ms. Purdy’s articles dated November 24, 2007 through to and including the January 3, 2008 article, he could not recall if he performed an editorial function over these articles before they were published nor did he recall having any discussions with Ms. Purdy concerning their content or any revisions or edits. [130] Dale Brin was the publisher and general manager of the Star Phoenix newspaper from 2004 to 2010. He had no involvement in the content or editing of any articles written by the reporter covering the Baert trial, he was not advised about the reporting in the case nor did he have any conversations with anyone about the reporting. [131] Cameron Hutchinson was the managing editor of the Star Phoenix in 2000. In 2007 he was aware that Ms. Purdy was covering the Baert trial but he does not recall having any involvement in the reporting or editing of the stories she wrote. He did not believe that he would have seen the stories until they appeared in the newspaper as at that time he oversaw the newsroom and reported to Steven Gibb and Rod Nickel. He did not recall having any conversations with Mr. Nickel about any of the articles Ms. Purdy wrote prior to publication. He had no recollection about whether concerns were raised or whether they had any discussions about Ms. Purdy’s reporting on other patients of Dr. Graham or about what Ms. Purdy’s investigation of the allegations made by these other patients may have been. [132] Steven Gibb was the editor-in-chief of the Star Phoenix from 1993 to 2010. [133] The defendant, Canwest Publishing Inc. owned the Star Phoenix newspaper and its websites and employed the other named defendants. The Star Phoenix newspaper, Canwest Publishing Inc. and/or its assets were purchased by Postmedia Network Inc. in or around 2012. [134] In case such as this, all persons who aid or participate in the publication of defamatory expression, in furtherance of common design, may be held liable in damages to the plaintiff, whether or not at the time they realized they were committing the tort of defamation. The law regards them as joint tortfeasors. Botiuk at paras. 73 to 77; Hill Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] SCR 1130 at para 176 [Hill]. [135] The publication of libel, composed by one, printed by another and distributed by third, is joint tort, with joint and several liability. Therefore, where it is published in newspaper, the injured person may sue in the same action the editor, the proprietor, the printer and the publisher, and each is liable on the judgment for the whole amount; the publication is the joint act of all. Lambert at para. 6. [136] In this case, and in light of the aforementioned case law, I am satisfied that at the time of the publishing of the defamatory articles, Rod Nickel, being the city editor and Ms. Purdy’s immediate supervising editor, Cameron Hutchinson being the managing editor, Dale Brin being the publisher and general manager of the Star Phoenix and Steven Gibb being the editor-in-chief of the Star Phoenix are all joint tortfeasors of Ms. Purdy’s defamatory comments and as such, jointly and severally liable in defamation to Dr. Graham. [137] I am also satisfied that Canwest Publishing Inc. as the former owner of the Star Phoenix and its websites and Postmedia Network Inc. as the current owner of the Star Phoenix and its websites are also joint tortfeasors with Ms. Purdy and the other defendants noted and as such are jointly and severally liable in defamation to Dr. Graham. (c) What damages, if any, is Dr. Graham entitled to? [138] In the pleadings, Dr. Graham claims against the defendants, jointly and severally, as follows: (a) General damages in the sum of $2,000,000; (b) Aggravated damages in the sum of $1,000,000; (c) Punitive damages in the sum of $1,000,000; (d) Special damages in an amount to be particularized; [139] In closing argument, Dr. Graham’s counsel advised that they were only seeking general and aggravated damages. He argued that general damages award in defamation case is very subjective determination and one that must be made where there is no tangible injury. He reminded me that aggravated damages ought not to be awarded unless malice has been shown but in his view there was considerable evidence of malice in this case. He took issue with any suggestion by the defendants that Dr. Graham had bad reputation when he came to court. In his view, must look at Dr. Graham’s reputation at the time of the defamation. He urged me to approach the issue by asking myself “what is sufficient sum that recognizes that this was bad, unwarranted defamation?” [140] Counsel referred me to number of cases including Hiltz and Seamone Co. Nova Scotia (Attorney General) (1999), 1999 CanLII 13144 (NS CA), 173 NSR (2d) 341 (CA) $200,000 general damages; Universal Weld Overlays Inc. Shaben, 2001 ABQB 1009 (CanLII) $100,000 general damages and $30,000 aggravated damages; Myers Canadian Broadcasting Corp. (2001), 2001 CanLII 4874 (ON CA), 54 OR (3d) 626 (CA) $200,000 for general damages and $150,000 for aggravated damages; Leenen Canadian Broadcasting Corp., (2000), 2000 CanLII 22380 (ON SC), 48 OR (3d) 656 Ont. Sup. Ct.) [Leenen] general damages of $400,000 and aggravated damages of $350,000; and Fiola LeBrun, 2002 MBQB 312 (CanLII), 169 Man (2d) 172 general damages of $250,000 and $100,000 aggravated damages. [141] Defendants’ counsel argued that Dr. Graham was only entitled to general damages in an amount not exceeding $25,000. He stated that while little is to be gained from detailed comparison of libel awards in other cases, the Court should use as an appropriate measure of the upper end of the range of damages, the Saskatchewan Court of Appeal’s decision in Rubin Ross, 2013 SKCA 21 (CanLII), 409 Sask 202 ($100,000 general damages) and the Saskatchewan Court of Queen’s Bench decision in Duke Puts, 2001 SKQB 130 (CanLII), 204 Sask 130 ($100,000 general damages and $150,000 aggravated damages). [142] He suggested that the Court pay particular attention to the factual background in this case and consider that Dr. Graham’s reputation was already previously damaged at the time he brought his claim in the present case. He denied that there was any malice on behalf of the defendants or any of them. [143] Brown on Defamation, vol at 25-33 to 23-36, describes general compensatory damages as follows: The successful plaintiff in defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the amount, consideration may be given to the damage which may yet accrue to the plaintiff as natural consequence of the publication since in any action for defamation damages must be assessed once and for all. There must be some rational and appropriate relationship between the harm suffered by the plaintiff and the amount of damages awarded. Compensatory damages are not awarded to punish defendant, nor should they be used to enrich the plaintiff at the expense of the offending party. [144] In Mann International Assn. of Machinists and Aerospace Workers, 2012 BCSC 181 (CanLII) [Mann], Masuhara J. discussed the principles governing an award of general damages: [129] General damages for defamation are presumed. The plaintiff does not need to prove injury in order to recover an award for damages. However, damages must be based upon firm factual basis and in sensible manner: Brown on Defamation, vol. 6, ch. 25 at 2, 12; Hill at para. 164; Halls v. Mitchell, 1926 CanLII 357 (ON CA), [1927] D.L.R. 163 (Ont. C.A.), per Riddell J.A. at 175, citing Ratcliffe v. Evans, [1892] Q.B. 524 at 528 (C.A.); Smith (S.C.) at para. 91. [130] General damages for defamation are at large, meaning that the court is entitled to make subjective assessment without requiring proof of specific financial loss. [131] There is no cap placed on damages for defamation: Hill at para. 168: [132] Each case is unique. Accordingly, there is no formula for determining general compensatory damages. However, in Hill at para. 182 the following factors, were identified in determining an award of general damages: (a) the plaintiff's conduct, position and standing; (b) the nature of the defamation; (c) the mode and extent of publication; (d) the absence or refusal of any retraction or apology; and (e) the whole of the defendant's conduct from the time of publication to the end of trial. [145] In Leenen the Court provided the following non-exhaustive list of factors to take into account in the assessment of general damages: [205] (a) the seriousness of the defamatory statement; (b) the identity of the accuser; (c) the breadth of the distribution of the publication of the libel; (d) republication of the libel; (e) the failure to give the audience both sides of the picture and not presenting balanced review; (f) the desire to increase one's professional reputation or to increase ratings of particular program; (g) the conduct of the defendant and defendant's counsel through to the end of trial; (h) the absence or refusal of any retraction or apology; (i) the failure to establish plea of justification. [146] In Hill Cory J. described aggravated damages, what is required before they can be awarded and some of the factors court can consider in assessing them: 188 Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, [(1987), 1987 CanLII 126 (ON CA), 59 OR (2d) 104] in these words at p. 111: Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress the humiliation, indignation, anxiety, grief, fear and the like suffered by the plaintiff as result of being defamed, the plaintiff may be entitled to what has come to be known as “aggravated damages”. 189 These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant. 190 If aggravated damages are to be awarded, there must be finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. See, for example, Walker v. CFTO Ltd., supra, at p. 111; Vogel, supra, at p. 178 [[1982] WWR 08]; Kerr v. Conlogue (1992), 1992 CanLII 924 (BC SC), 65 B.C.L.R. (2d) 70 (S.C.), at p. 93; and Cassell Co. v. Broome, supra, at pp. 825-26 [[1972] All ER 801]. The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff. See Taylor v. Despard, supra, at p. 975 [1956 CanLII 124 (ON CA), [1956] OR 963]. 191 There are number of factors that jury may properly take into account in assessing aggravated damages. For example, was there withdrawal of the libellous statement made by the defendants and an apology tendered? If there was, this may go far to establishing that there was no malicious conduct on the part of the defendant warranting an award of aggravated damages. The jury may also consider whether there was repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, prolonged and hostile cross-examination of the plaintiff or plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. Further, it is appropriate for jury to consider the conduct of the defendant at the time of the publication of the libel. For example, was it clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff? [147] As to what constitutes malice, it is more expansive than the everyday meaning of desire to harm another. It includes spite or ill-will and relates to any indirect motive which conflicts with the sense of duty created by the occasion. Courts may infer person’s motive for publishing defamatory statements but only from what the person said, did or knew. defendant is actuated by actual or express malice if he or she publishes the words: (i) Knowing them to be false; or (ii) With reckless indifference whether they are true or false; or (iii) For the dominant purpose of injuring the plaintiff because of spite or animosity; or (iv) For some other dominant purpose which is improper or indirect. Court may consider the whole of the defendants’ conduct and the context in which it was made, both current and former. See Palen Dagenais, 2012 SKQB 383 (CanLII) at para 32, 406 Sask 107; Mann at paras 96 to 98. [148] In Botiuk, the Supreme Court of Canada said that the following comment from Lord Diplock in Horrocks Lowe, [1975] AC 135 (HL) is generally representative of the Canadian position on recklessness: 97 what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at positive belief that it is true. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, positive belief that the conclusions they have reached are true. The law demands no more. [Emphasis added.] [149] Ms. Purdy testified that as journalist, she was familiar with journalistic best practices and specifically what those practices said about accuracy and fairness. As diligent journalist, it was her practice to keep notebooks and record pertinent facts including leads, sources and their contact information and she did so in the course of covering the Baert trial. [150] Ms. Purdy did not recall attending court on November 27, 2007 to listen to the judge’s charge to the jury. However, she had 13 pages of notes about the charge so she believed that she was there. In her notes she wrote down that the judge told the jury “not every mistake constitutes negligence”, “a bowel perforation sometimes happens with skilled surgeons using proper technique”, “BP happens to even the most skilled surgeon” and “BP is inherent risk of surgery itself”. Ms. Purdy agreed that these were important points in the judge’s charge that reader should or would want to know, however she acknowledged that she did not put them in any of her articles. [151] Ms. Purdy testified that after the verdict came down on November 28, she wrote an article entitled “Gynecologist not negligent in tubal ligation lawsuit”. She said that this article does not report solely on the jury’s verdict in the case but includes allegations that Gloria Cooke and Dana McLellan suffered complications as result of the surgery Dr. Graham performed upon them. She acknowledged that these were serious allegations being made by these two women and as result, she would have spoken to another source to verify their information. She said that she spoke to John Jordan, Ms. Cooke’s lawyer, but did not speak to Ms. Cooke and did not recall speaking to anyone else. She did not ask for or see Ms. Cooke’s medical records and she did not call any of the doctors that treated Ms. Cooke. She did not speak to medical professional about Ms. Cooke’s allegations. [152] Ms. Purdy said that in her notes from her discussions with Mr. Jordan, she recorded “pressure from maternity ward because baby in distress”. She reluctantly admitted that this was some significant context that she did not mention in her article. She also admitted that she did not try contacting Dr. Graham’s lawyer, she cannot say if she tried contacting Dr. Graham or left message for him but agreed that there was nothing in the article about her trying to contact him. [153] As well, Ms. Purdy said that all of her information about Dana McLellan came from previous newspaper articles. She did not recall trying to contact Ms. McLellan or the writer of the previous article. She did not believe that she tried to contact any of Ms. McLellan’s medical doctors or obtain her medical records. She could not say that she tried to contact Dr. Graham to speak to him about Ms. McLellan’s case. [154] Ms. Purdy agreed that as an obstetrician and gynecologist, Dr. Graham would have performed many of the types of surgeries he performed on Ms. Cooke and Ms. McLellan. She acknowledged that she did not try to determine his rate of complication or try to compare his rate of complication to that of the average obstetrician/gynecologist. She indicated that that would have been helpful information to know. [155] In one of the paragraphs in the article she stated that the British Columbia College of Physicians and Surgeons granted licence to Dr. Graham “despite” Baert’s injuries in Saskatchewan. She said that she chose to use the word “despite” because she felt that the College would have had to have considered the Baert case before giving Dr. Graham licence. She admitted that she had not spoken to the College about this nor did she have any information that Dr. Graham had done anything wrong. [156] Ms. Purdy did speak to Susan Prins of the College and was advised that the community Dr. Graham was working in did not have appropriate back-up in case of an emergency situation and that “no disciplinary measure is necessary”. She did not report this in her article but instead chose to simply state that Dr. Graham’s licence was not revoked. She was not sure why she chose those words. [157] Ms. Purdy acknowledged that she spoke to someone at the Northern Health Authority and was advised that Dr. Graham was “never disciplined so no release of report and no penalty”. Despite knowing this information, she did not include this in her article. [158] Ms. Purdy testified that the first November 29 article was just reprint of the website article she had written on November 28. She did not recall whose decision it was to write the second article on November 29 entitled “Routine surgery became health nightmare”. She agreed that she did not refer to the verdict in the trial in this story and that person reading this article would have no reason to think that Dr. Graham got acquitted in negligence action. [159] Ms. Purdy testified that the November 30 article was about the Baert family deciding to appeal the verdict and Mark Baert’s response to the verdict. She acknowledged that there was nothing in the article about Dr. Graham’s reaction to the verdict and admitted that she could not recall asking Dr. Graham for comment, if he was unavailable or if he had no comment. [160] Ms. Purdy testified that she wrote the December 1, 2007 article because number of Dr. Graham’s previous patients were saying that they had suffered complications as result of Dr. Graham performing surgery on them. In light of the Baert case she thought that this was important information to share with the public. [161] According to Ms. Purdy, this article was about mistakes that Dr. Graham had made in relation to five other people besides Lisa Baert. She said that she spoke to Sharry Michels, Marleen Burgess and Lynn Laursen directly. She did not speak to Ms. Cooke directly. She obtained her information about Ms. Cooke from speaking to Ms. Cooke’s lawyer, John Jordan. She was unable to speak to Jessie Hurlburt as she had passed away. Her information about Ms. Hurlburt came from discussion she had with the deceased’s son, Les Hurlburt. She invited all of these people to send her any documents supporting what they had told her. The only person that sent her anything was Les Hurlburt. He forwarded her number of documents prior to December 1. [162] Ms. Purdy said that she spoke to one other woman whose story she did not include in this article. She said that this person seemed to be talking about rumours. She could not trust what this woman was saying and she did not think it appropriate to report on that. [163] Ms. Purdy acknowledged that prior to writing this article she never asked Sharry Michels for her medical or physiotherapy records, she did not recall speaking to any of her doctors, she did not try to contact her physiotherapist and speak to them about Ms. Michels’ case and she did not know what femoral artery was. [164] Ms. Purdy said that she received number of documents from Les Hurlburt about his mother Jessie, including medical records. She did not ask Mr. Hurlburt for any other medical information. She admitted that there were at least five other doctors referenced in these medical records but she took no steps to speak to any of them nor did she speak to any of Ms. Hurlburt’s doctors. According to her, getting consent to speak to other doctors would have been time consuming. She said that she did not speak to medical doctor about interpreting the documents for her. Instead, she relied on the documents and what Les Hurlburt told her. [165] In the material she received from Mr. Hurlburt was correspondence between him and the Saskatchewan College of Physicians and Surgeons. She was aware that Mr. Hurlburt had filed complaint with the College regarding Dr. Graham’s treatment of his mother but she did not read the complaint he sent to the College even though it was one of the documents he sent her. Another of the documents was letter dated October 15, 1997 from Dr. Graham to the College responding to the Hurlburt complaint. She read this letter and in the letter, Dr. Graham referenced that Ms. Hurlburt had had bowel cancer surgery, was treated with chemotherapy and there were post-operative problems with stitches. When asked why she did not report this, she said that it had occurred in 1977 and she did not think it was relevant. However she admitted that she never spoke to medical professional to find out if it was relevant or not. Ms. Purdy also acknowledged that elsewhere in the letter was an indication that the surgery that Dr. Graham had performed on Ms. Hurlburt was not regular hysterectomy. Despite knowing this, she did not report this in her article either. [166] Ms. Purdy also agreed that she read the College’s response to Mr. Hurlburt after they had completed their investigation. After reading the response, she was aware that the investigation had found that Dr. Graham had done nothing wrong, they advised that suturing bowel may inadvertently occur and it may be difficult to diagnose. She did not specifically report this in the article and despite knowing that Dr. Graham was not at fault, she still felt that it was newsworthy to include Ms. Hurlburt’s case in the article. [167] Ms. Purdy said that in terms of the Marleen Burgess information, she just relied on what Ms. Burgess had told her. She said that she only had general understanding of what hysterectomy was and did not believe that “complete hysterectomy” was medical term. However, she did not speak to medical professional or Ms. Burgess’s doctors to find out what that term meant. Moreover she admitted that she made no effort to contact the doctor who told Ms. Burgess that her insides were “a mess” to confirm whether or not that was indeed the case. In her view, she did not have the time to do it and she felt there would have been privacy issues. [168] Ms. Purdy also admitted that she did nothing to confirm the information she received from Lynn Laursen. In their discussions, Ms. Laursen had mentioned Dr. Gupta. Ms. Purdy confirmed that she did not try to contact this doctor even though she admitted that the doctor may have some important information for her story. [169] Ms. Purdy did not recall if she made any attempt to contact Dr. Graham regarding any of these five people but she hoped that she would have. She did not however receive anything from Dr. Graham regarding any of these cases. She did not recall if there was deadline for the story and did not know if she had more time to investigate it. [170] Ms. Purdy denied writing the December article about these other patients because she felt Ms. Baert did not get justice. According to Ms. Purdy, the jury’s verdict in the Baert case was not surprising to her. She thought it was fair given the evidence the jury heard and the questions they had to answer. She said that she agreed with the jury’s finding that Dr. Graham was not negligent. She had no basis to challenge their finding. She felt that she was doing her job and was providing fair and balanced reporting during the trial. She was not out to ruin Dr. Graham despite what he or his children thought. Ms. Purdy confirmed that she has never issued retraction or an apology to Dr. Graham. [171] Both parties called expert witnesses in this case. Dr. Graham called John Miller. Mr. Miller was senior newsroom editor at the Toronto Star Newspaper for 18 years before moving on to be the chair of the School of Journalism at Ryerson University from 1986 to 1996. Thereafter until 2009, he was professor at the School of Journalism and now holds the title of Professor Emeritus. He was qualified with the consent of the defendants’ counsel as an expert in journalism. [172] Mr. Miller testified that journalists are expected to follow commonly accepted journalistic legal and ethical standards developed by the Canadian Association of Journalists. These standards stress, among other things, accuracy and verification. journalist is to make every effort to verify the identities and backgrounds of their sources, seek documentation to support the reliability of those sources and their stories and be careful to distinguish between assertions and fact. The onus is on the journalist to verify all information even when it emerges on deadline. Secondly, fairness. journalist is to respect the rights of people involved in the news. Before journalist publishes criticisms or accusations they must give people, companies or organizations that are being criticized or accused the opportunity to respond. They must make genuine and reasonable effort to contact them and if they decline comment, they must say so. [173] Mr. Miller reviewed the articles written by Ms. Purdy on November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008. The November 28, 2007 article entitled “Gynecologist Not Negligent in Tubal Ligation Lawsuit” and the November 29, 2007 article entitled “Gynecologist Not Negligent; Punctured Bowel Led to Brain Damage” were identical in content in his view and both fell short of the journalistic standard of care. According to Mr. Miller, the job of these stories was to report the jury’s verdict in complicated legal case that the newspaper had been covering for the last two months. These stories should have summarized the key testimony presented at the trial and if possible, highlight what evidence may have caused the jury to find Dr. Graham not negligent. Instead, large portion of these stories talks about other cases involving Dr. Graham. [174] These articles did not meet the journalistic standard of care for two reasons: firstly they were not fair, balanced reporting of the verdict in the Baert trial. The information about Dr. Graham’s defence was sparse, there was no reaction to the verdict from either Mr. Baert or Dr. Graham, there was no detail on what questions jury was to answer and the reader was left wondering why Dr. Graham was found not negligent. Secondly, the investigative reporting of Dr. Graham’s other patients should have been stand-alone article written after the reporter had the opportunity to do more thorough job of investigating the allegations. [175] Mr. Miller was also of the view that Ms. Purdy’s editors had responsibility to make sure that the verdict in the trial was reported fully, fairly and accurately and that her information about Dr. Graham’s other patients was verified. Unfortunately, he felt that they allowed inadmissible material to get in these articles and they never ensured that Ms. Purdy’s information about Ms. Cooke or Ms. McLellan was verified with anyone. Instead, this was single-sourced and second-hand information from lawyer and newspaper article and there was little differentiation between what was verified as fact and what the sources merely alleged. [176] It was Mr. Miller’s opinion that the December 1, 2007 article entitled “Former Patient Wanted Chance to Confront Doctor” repeated some of the unverified information that appeared in the November 28 and 29 stories and added more cases. Again however, there was no attempt to verify the allegations these people were making with doctor or to seek Dr. Graham’s side of the story. [177] He opined that this story did not need to run right after the Baert trial. There was time to wait until the information from these people could be verified and documentation received and analyzed, if necessary, by medical experts. There was certainly time to wait until Dr. Graham could be interviewed to get his side of the story. [178] Mr. Miller also reviewed the material that Les Hurlburt had sent to Ms. Purdy. He noted that this material contained detailed explanation written by Dr. Graham of the care that he gave to Jessie Hurlburt and statement from the Saskatchewan College of Physicians and Surgeons about why they found that he had done nothing wrong. Ms. Purdy chose to use very little of this information in the December article and by choosing to do so, Mr. Miller felt her story became very one sided. [179] Mr. Miller felt that the reporter did slipshod investigation, the newspaper rushed this to print and by doing so vitiated any claim of responsible reporting. If the paper was going to publish this article they should have spoken to all the people and their doctors, followed up and documented any complaints made to the respective Colleges of Physicians and Surgeons, had medical professionals corroborate or explain the complaints and most importantly, talked to Dr. Graham to get his explanation of these complaints. Nothing like that occurred and as such, reasonably intelligent reader looking at this December story might ask if the newspaper was implying that the jury in the Baert trial was wrong. [180] Mr. Miller was adamant that where there are accusations or implied criticisms of any person or institution, there must always be rigorous attempt to obtain response before publication and the response should be contained in the original story. He noted that not only was there no attempt to get Dr. Graham’s side of the story in the November 28, 29 and December articles aforementioned but there was also no attempt to do so in the second November 29 article and the November 30 article. [181] In Mr. Miller’s opinion, the November 28, 29 and December articles written by Ms. Purdy fell short of journalism’s recognized professional standards of care and her editors did not exercise ongoing oversight to ensure that her information was verified and her reports were handled responsibly. [182] The defendants’ expert, Patricia Bell, was also eminently qualified. Ms. Bell graduated in 1963 with an honour’s degree in journalism from the University of Western Ontario. She worked for the Globe and Mail travelling Asia writing stories about social and medical issues and later as freelance reporter. In 1983, she joined the Ottawa Citizen newspaper, writing education pieces and later moved to their editorial board. In 1999 she moved to Regina and became an assistant professor at the University of Regina, School of Journalism. Later she became the head of the School of Journalism and continues to teach there today. With the consent of Dr. Graham’s counsel, Ms. Bell was qualified as an expert in the area of journalism. [183] Ms. Bell testified that journalist’s professional responsibility is to tell stories that matter. In that regard, they should try to get as complete story as possible, relying on more than one source so the story does not rely on single perspective. Stories need to be verified, balanced and as complete as possible, presented with sufficient facts, details and explanations to allow readers to draw their own conclusions. Where there are accusations or implied criticisms of any person or institution there must always be rigorous attempt to obtain response before publication and the response should be contained in the original story. [184] Ms. Bell was familiar with the Canadian Association of Journalists. The Association has very comprehensive code of ethics that she subscribed to and believed in. She acknowledged that accuracy was the moral imperative of journalists and news organizations and should not be compromised even by deadlines. She said that it was the journalist’s responsibility to seek documentation, to support the reliability of sources and to be careful to distinguish between sources and fact. The onus was on the journalist to verify all information despite deadlines. [185] She also agreed that the code of ethics spoke of fairness. She explained that journalists must give people, organizations or companies that are publicly accused or criticized an opportunity to respond before publishing those accusations or criticisms. Journalists must make genuine and reasonable effort to contact them and if they decline to comment, they must say so. [186] Ms. Bell reviewed Ms. Purdy’s articles in the Baert case dated November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008 and Ms. Purdy’s notebooks. It was Ms. Bell’s opinion that the November 28, 2007 article took into consideration the seriousness of the allegation, the public importance of the matter, the urgency of the matter and the status and reliability of the source. However, she felt that the main emphasis of this story should have been that the verdict came down and the jury found Dr. Graham not negligent. She said the article did not give sufficient coverage to the jury’s decision that Dr. Graham was not negligent in performing Lisa Baert’s tubal ligation. There was no mention in the story of the particular questions the judge asked the jury to consider and on which they based their decision. There was also no mention about either party’s reaction to the jury’s decision. This was imperative in her view. There was no indication if Ms. Purdy sought these reactions at all or was simply unable to get response. In her opinion, this article was not complete and readers were left without enough information to consider whether they thought the jury got it right. [187] Instead, she felt that Ms. Purdy took the first opportunity after the trial to tell people about the other complaints about Dr. Graham that she became aware of. Ms. Bell found it disturbing that the verdict and these other complaints were not two separate stories. Even then, there was no indication that Ms. Purdy tried to get the other side of the complaints in the article. Ms. Bell felt that she should have been persistent in trying to get Dr. Graham’s version of these complaints. [188] Ms. Bell said that the November 29 article entitled “Gynecologist Not Negligent: Punctured Bowel Led to Brain Damage” was fuller reporting of the November 28, 2007 website article and not simply reprinting of it. By way of example, she said that this story included information that Mark Baert did not speak to reporters after the jury’s verdict and that Dr. Graham was not present in the courtroom and his lawyer said he was busy with personal matters. For these reasons she felt that this story was more useful to readers than the November 28 story. [189] With all due respect to Ms. Bell, have carefully reviewed the copies of the November 28 website article, the November 29 website printout of the article and the November 29 newspaper article entered as exhibits in the trial and they are all identical in content. There is nothing different in any of these three documents with the exception of the byline in the November 28 article. Otherwise, the text of these three documents is the same. That being said, cannot give any weight to her conclusion that the November 29 article is better written and more useful to readers than the November 28 article. [190] Putting aside this problem with her testimony, she does acknowledge that this November 29 article is still missing detail about the judge’s charge to the jury that would allow readers to understand exactly what they were being asked to consider in deciding whether Dr. Graham was negligent or not. She also admits that there is nothing indicating whether or not Dr. Graham’s comments about the decision or about the further allegations being made against him were sought. [191] Ms. Bell testified that the December 1, 2007 story was an attempt by the newspaper to bring information to the public that they needed to know. During the Baert case, Ms. Purdy found out about other complaints involving Dr. Graham and she determined that there was another story to be written. In her report, Ms. Bell said that it appeared that the publisher was diligent in trying to verify these allegations having regard to the seriousness of the allegations, the public importance of the matter, the urgency of the matter and the status and reliability of the sources. However, Ms. Bell then opined that this story did not have to come out this quickly. News is perishable commodity so if story needs to be investigated and checked, you do it as quickly as possible. But here, the information about these stories was not “perishable news”. The perishable element was only how they relate to the Baert case. As result, Ms. Bell said that Ms. Purdy should have done more work and provided more comprehensive story. What is not in this article is an explanation from Dr. Graham about what happened in these other cases. diligent reporter would report on what occurred in court, would seek out professionals to explain things they did not understand, including legal help to assist them to understand legal issues. If reporter did not accurately report on factual or legal issue and left the reader with the wrong impression, this would not meet the standards of journalism. [192] Although her report was to the contrary, Ms. Bell agreed in cross-examination that the inclusion of these other complaints in this article left the reader thinking that the jury in the Baert case got the decision wrong. The article tells readers that the jury was not allowed to hear from these other patients but what it fails to do, according to Ms. Bell, and what Ms. Purdy had duty to tell the reader, was that these other people were only being called to talk about “informed consent” and not about their surgical complications. [193] Ms. Bell ultimately reached number of conclusions. Firstly, that there was not stand-alone news story about the jury’s decision in the Baert case with sufficient information that would allow reader to make their own determination as to whether the jury reached the proper decision. [194] Secondly, there was no response from Dr. Graham in any of the articles dated November 28, 29, 30 and December 1, 2007. The reader was not told whether this was because no attempts were made to obtain his response or whether requests for response were denied. As such, the requirement of responsible communication was not met in any of these articles. [195] Thirdly, while she felt there were some gaps in the overall coverage of the court case and the jury’s decision, it did not appear to her that they were planned in order to subvert objectivity and truth in reporting. The reality of today’s newspapers is that getting stories up on the paper’s website has become the priority before considering how they would appear in the following day’s newspaper. The size of newsrooms is eroding and the opportunities were rare for editors to stop and consider the big picture of how court case might be covered and delivered in substantial and balanced way. Given the strained economies of today’s newspapers, she felt that the overall coverage of the Baert trial was sufficient, objective and balanced and reflected attention paid by Ms. Purdy to the seriousness, public importance and urgency of the issues as well as the status and reliability of the sources. [196] turn now to the issue of general damages. Dr. Graham had been medical doctor specializing in obstetrics and gynecology. In 2003 he had serious heart attack that required quintuple bypass surgery. He was also suffering from some depression. As result of these issues, sometime in the latter part of 2003 he retired from the practice of medicine and settled in St. Albert, Alberta. [197] In 2007, his oldest son committed suicide. Shortly thereafter his wife died of cancer. In September 2007, the Lisa Baert claim against Dr. Graham went to trial. Understandably, at the time of trial he was grieving and depressed. On November 28, 2007 jury found Dr. Graham not negligent for the devastating injuries suffered by Ms. Baert. [198] Ms. Purdy, the Star Phoenix reporter who had been covering the trial, wrote series of five articles between November 28, 2007 and December 1, 2007 containing defamatory comments about Dr. Graham. These articles were published within week of the verdict: November 28, 29 (two articles), 30 and December 1, 2007. Defendants’ counsel admitted that these five articles contained defamatory comments about Dr. Graham, although not to the extent that eventually determined. All of these five articles, save for the November 28 article, appeared in the Star Phoenix newspaper and on the Star Phoenix websites. The November 28 article only appeared on the Star Phoenix websites. [199] Generally speaking, the defamatory meaning of the words complained of in these articles were that Dr. Graham had negligently performed surgery on Lisa Baert, Gloria Cooke, Dana McLellan, Sharry Michels, Jessie Hurlburt, Marleen Burgess and Lynn Laursen and had nearly caused some of them death and all of them some specific injury. In some of the articles, the defamatory meaning of the words complained of were that Dr. Graham had failed to advise Ms. Baert or the attendant nurses that he had punctured Ms. Baert’s bowel, that he did not properly advise Ms. Baert of the risks of tubal ligation surgery thereby not getting her informed consent, that the jury’s verdict exonerating him of negligence for the Lisa Baert injuries was wrong or perverse, that he misrepresented to Marleen Burgess that he had performed complete hysterectomy on her and that he was habitually negligent in his surgical practice. [200] Defamatory comments regarding Dr. Graham’s negligent surgical treatment of Ms. Baert appeared in all five articles written by Ms. Purdy. Defamatory comments regarding his surgical treatment of Gloria Cooke appeared in four of the articles, and of his surgical treatment of the rest of the named individuals, in one of the articles. The defamatory meaning that Dr. Graham was habitually negligent in his surgical practice and that the jury’s verdict exonerating him was wrong was repeated in two articles. No retraction or apology from the Star Phoenix has been published or forthcoming to date. [201] There was no direct evidence before me as to how many households get the Star Phoenix newspaper, the extent of their readership base, how many people visit their websites to read the news or how many people viewed the impugned articles on the websites or downloaded them. was however advised that all five of these articles remain on the Star Phoenix websites and are accessible to whoever wants to view them. [202] From the outset of the Baerts’ claim, Dr. Graham denied liability. The jury’s verdict in the case was vindication for him but the euphoria of that vindication was short lived. While having celebratory supper with his children the night the verdict came down, they came across the November 28 article on the Star Phoenix website. When Dr. Graham read the article, he was shocked, appalled and depressed. The byline referred to the Baert case but the article talked mainly about the complaints Gloria Cooke had made about him. He felt that the article contained number of factual inaccuracies, that it implied that his medical licence should have been revoked and made it appear that he was lucky to have been exonerated by the jury in the Baert case. [203] Every day that new article was published, Dr. Graham read it and continued to be shocked, appalled, dismayed and depressed by them. He was particularly upset after reading the December article as he felt it was full of untruths. What was particularly troubling to him was that at no point in time, either before or after any of these articles were published, did anyone from the Star Phoenix ever try to contact him to get his comment on the verdict or the allegations these other people were making about him. He also found it upsetting that the articles did not report that he had been cleared of any wrongdoing as regards number of these patients. number of these people had made complaints to either the Saskatchewan or British Columbia Colleges of Physicians and Surgeons and in every instance, it was determined that he was not negligent. However, this and the fact that he had been found not liable in the Baert case was either not reported in the articles or very little was ever said about it. [204] Defendants’ counsel made point of arguing that Dr. Graham had bad reputation at the time the defamatory comments were made about him in 2007. Dr. Graham admitted that in 2002 and 2003 after people in Dawson Creek found out about the Baert case, complaints about his treatment of patients began occurring. He said that his reputation in Dawson Creek at this time was bad because of all the media hype. But he was investigated by different professional bodies and it was never determined that he did anything wrong. Then he had his own health issues and retired. In this context, do not accept that Dr. Graham had bad reputation in 2007 when Ms. Purdy wrote her articles defaming him. [205] Dr. Graham’s children noticed change in their father over time. Two of his sons testified that the articles bothered him for days and weeks at time, that he was not himself and he became preoccupied with the articles. Dr. Graham said that he was depressed, not eating or sleeping properly and was having problems concentrating. Over time, these problems lessened but he said that he still has problems sleeping and concentrating today. [206] Both parties called expert witnesses in this case. Both experts were eminently qualified journalists in their own right. Both Mr. Miller and Ms. Bell agreed on number of points including that some of the articles written by Ms. Purdy fell short of meeting journalism’s recognized professional standards of care. However where the experts differ, prefer Mr. Miller’s testimony over that of Ms. Bell. There was an instance where Ms. Bell’s opinion was not based on the evidence before me. She described reading an article written by Ms. Purdy on November 29 that she said was almost identical to the article Ms. Purdy wrote on November 28. She indicated that this November 29 article contained more fulsome facts that affected her view on how well the article was written. However, there was no difference in content between the two articles. have no idea what Ms. Bell reviewed or what she was referring to. [207] In her written report filed as an exhibit in the proceedings, Ms. Bell goes through the articles in question. Despite acknowledging that there was no indication that Ms. Purdy made any attempt to contact Dr. Graham and get his side of the story in any of the articles in question, she still concluded that Ms. Purdy’s overall coverage of the case was sufficient, objective and balanced. cannot accept this. For reasons which will discuss more fully under the heading of aggravated damages, am unable to accept that the articles written by Ms. Purdy between November 28, 2007 and January 3, 2008 were sufficient, objective and balanced. [208] As consider what is an appropriate award for general damages in this case, am also surprised at the lack of editorial oversight of Ms. Purdy’s articles. Ms. Purdy’s immediate editor, the managing editor, the editor-in-chief and the general manager and publisher of the newspaper either disavowed having any role in overseeing Ms. Purdy or had no recollection of discussing these articles with Ms. Purdy or between themselves, reviewing these articles and offering any criticism, direction or instruction about them or authorizing her to pursue the other complaints made about Dr. Graham. This, despite evidence that the editors would get together daily to talk about stories that were being written by their reporters. [209] Taking all these factors into account I conclude that an award of $50,000 for general damages would be appropriate. [210] There is no question in this case that the series of articles written by Ms. Purdy increased Dr. Graham’s mental distress. He had just been vindicated in lengthy trial and that was taken away from him almost immediately. The articles made him mad, dismayed, indignant and depressed. He felt that the reporter was suggesting that the jury was wrong and he was negligent obstetrician/gynecologist. If aggravated damages are to be awarded in this instance, I must be satisfied that the defendants were motivated by actual or express malice. [211] Ms. Purdy testified that she agreed with the jury’s finding that Dr. Graham was not negligent in his treatment of Lisa Baert and that the jury’s verdict was fair. do not accept her testimony in this regard. All of the articles complained of by Dr. Graham were written the day the verdict came down or thereafter. The first two articles he complains of are identical. One was written by Ms. Purdy on November 28, 2007, the day of the jury’s verdict and the other article was written the next day. Both Mr. Miller and Ms. Bell agreed that the purpose of these articles should have been to report the jury’s verdict that Dr. Graham was not negligent in performing Lisa Baert’s tubal ligation. Such story should have summarized the key testimony presented at the trial, what particular questions the judge asked the jury to consider and what evidence or factors may have caused the jury to decide as they did. If Ms. Purdy was satisfied that the jury had reached the correct decision, would have expected that she would have focussed more on the verdict in the trial. [212] These stories did none of that. What these stories did was introduce details about two other cases involving Dr. Graham. The first four paragraphs of the story talk about Gloria Cooke. As Mr. Miller opined, the reporter and/or her editors felt this information was more important than the verdict. So instead of straightforward, contemporaneous and even-handed account of the jury’s verdict, less than half of these articles had to do with information presented at the trial. [213] The stories involving Gloria Cooke and Dana McLellan were legitimate stories but again, both experts agree that these stories should have been undertaken separate from story about the jury’s verdict. Moreover, Ms. Purdy included this information about Ms. Cooke and Ms. McLellan in both these articles without having ever spoken to either of them directly. She obtained her information from speaking to Ms. Cooke’s lawyer and reading dated newspaper article about Ms. McLellan. She did nothing to verify this information, she made no attempt to speak to Ms. Cooke or Ms. McLellan’s medical doctors or get their medical records. Most troublesome was that Ms. Purdy made no attempt to speak to Dr. Graham to get his comment on the verdict or on the allegations made by Ms. Cooke and Ms. McLellan. By focusing on the Cooke and McLellan cases so soon after the verdict, Ms. Purdy is drawing attention to them. By not properly reporting on the verdict, she leaves the impression that the jury got it wrong in both these articles. [214] Every one of the five articles after the verdict contains words whose defamatory meaning was that Dr. Graham negligently performed surgery on Lisa Baert thereby causing her certain injuries that included septic shock, amputation, cardiac arrest, severe brain damage, living in long-term care home and becoming quadriplegic. If Ms. Purdy honestly believed that the jury had made the right decision, then there would be no reason to keep repeating these words, phrases and paragraphs day after day in such way that they were defamatory. [215] The November 30, 2007 article is follow-up reporting. In this article, Ms. Purdy focuses on getting the Baerts’ reaction to the jury’s decision. But neither Ms. Purdy nor any other Star Phoenix reporter did follow-up story on Dr. Graham’s reaction to the jury’s verdict. In Mr. Miller’s view, writing this article increased the newspaper’s obligation to report on Dr. Graham’s reaction otherwise this could be considered an “implied taking of sides”. [216] Moreover, if this was just follow-up article about the Baerts’ reaction to the verdict then have to wonder why Ms. Purdy felt she had to repeat the Gloria Cooke information in the story. That information had nothing to do with the Baerts’ reaction to the verdict. It had everything to do with being critical of Dr. Graham and again suggesting that the jury got it wrong. [217] The December 1, 2007 article reinforces my conclusion that Ms. Purdy felt that the jury was wrong in their verdict. Both experts again admit that this article did not have to run immediately after the trial and that Ms. Purdy should have taken more time to investigate the allegations made by these five other people properly and to verify their information. She did not do that. She did not speak to any medical professionals to verify the information these people gave her. She did not ask for these people’s medical records or for permission to speak to their doctors. She received some documents from Ms. Hurlburt’s son that included letter from Dr. Graham explaining his treatment of Ms. Hurlburt and letter from the Saskatchewan College of Physicians and Surgeons advising that Dr. Graham was not negligent in his treatment of Ms. Hurlburt and the reasons why. Despite having this information, Ms. Purdy never included it in the report. Instead, she simply noted that the investigation found “no medical mismanagement” by Dr. Graham. [218] This particular article contains five people’s complaints about Dr. Graham’s treatment of them in addition to the information about what happened to Ms. Baert. Yet again, Ms. Purdy made absolutely no effort to elicit response or comment from Dr. Graham in relation to these complaints. Reading this series of articles culminating in this December article leads to no other conclusion than that the jury was wrong to find Dr. Graham not negligent in his surgical treatment of Ms. Baert. [219] Ms. Purdy described herself as diligent journalist. She acknowledged being familiar with the journalistic standards of care and specifically those standards referencing accuracy and fairness. Yet she wrote five articles, four of which contained single source, unverified information about complaints made against Dr. Graham by other people and not once did she ever try to contact Dr. Graham to get his side of the story. This is contrary to the concepts of accuracy and fairness which Ms. Purdy said that she was aware of. The very fact that she failed to give Dr. Graham an opportunity to defend himself against these defamatory allegations is, in and of itself, evidence of malice. In Leenen at para. 145, Cunningham J. said: [145] The failure of the defendant to provide the plaintiff with fair opportunity to defend himself against defamatory allegations is evidence of malice: Hodgson v. Canadian Newspaper Co., supra. As Holland J. stated in Munro v. Toronto Sun Publishing Corp. (1982), 1982 CanLII 1758 (ON SC), 39 O.R. (2d) 100 at p. 118, 21 C.C.L.T. 261 (H.C.J.): when the story is prepared and the paper has the ""goods"" on the person targeted in the story it is basic and necessary that that person be confronted with the story so that his reaction be obtained. [220] However, I am additionally led to the inescapable conclusion that Ms. Purdy did not believe that the jury had reached the proper verdict in the Baert case. Rather than properly reporting on the jury’s verdict, Ms. Purdy deliberately chose to report on other people who had made complaints about the surgical care Dr. Graham provided them. She did so without verifying this information or even seeking Dr. Graham’s comment. Given her lack of proper investigation or verification of these complaints, she could not have reasonably believed that these complaints were true. By writing the articles that she did in the time frame that she did and in the fashion that she did, she could only have had one purpose in mind and that was to tell readers that Dr. Graham was negligent in his surgical practice and that the jury’s verdict was wrong. I am satisfied that Ms. Purdy published the words complained of by Dr. Graham with reckless indifference as to their truth and as such, malice has been made out. [221] Where an employee is acting in the course of his or her employment, any malice motivating his or her behaviour will be attributed to his or her employer. See Sun Life Assurance Co. of Canada Dalrymple, 1965 CanLII (SCC), [1965] SCR 302. Ms. Purdy was an employee of the Star Phoenix overseen by Rod Nickel, Cameron Hutchinson, Steven Gibb and Dale Brin and as such, her malice is attributed to all of them. [222] In my view, given these findings, an award of $50,000 for aggravated damages is appropriate. (d) Is Dr. Graham entitled to an injunction requiring the defendants to remove certain content from websites under their control? [223] In Astley Verdun, 2011 ONSC 3651 (CanLII), Chapnik J. said: [20] It is well-settled law that, in appropriate circumstances, court may grant an injunction to prevent defendant from continuing to disseminate defamatory material that affects plaintiff's reputation: see, for example, Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329 (C.A.), at paras. [21] Permanent injunctions have consistently been ordered after findings of defamation where either (1) there is likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible: see Hunter Dickinson Inc. v. Butler, [2010] B.C.J. No. 1332, 2010 BCSC 939 (CanLII), at paras. 75-79; Griffin v. Sullivan, [2008] B.C.J. No. 1333, 2008 BCSC 827 (CanLII), at paras. 119-27; Newman v. Halstead, [2006] B.C.J. No. 59, 2006 BCSC 65 (CanLII) at paras. 297-301; Cragg v. Stephens, [2010] B.C.J. No. 1641, 2010 BCSC 1177 (CanLII), at paras. 34-35, 40. [224] In the present case almost years have gone by since the defamatory articles in question were published by the Star Phoenix. Dr. Graham is retired, Ms. Baert has, unfortunately, deceased, none of the individual defendants remain employed with the Star Phoenix and the newspaper has been purchased by Postmedia Network Inc. There is no evidence before me that would lead me to conclude that in light of my decision, the defendants will continue to publish defamatory statements about Dr. Graham. There is also no reason for me to believe that there is real possibility that Dr. Graham will not be able to collect his damage award from the defendants. Injunctive relief is an exceptional remedy that will not be imposed by the courts lightly. As such, am not convinced that it is appropriate to grant an injunction in these circumstances and Dr. Graham’s request in this regard is dismissed. [225] Postmedia Network Inc. will be added as defendant in this case. The defendants have jointly and severally defamed Dr. Graham in series of articles written by Chris Purdy and published in the Star Phoenix newspaper and on its websites between November 28, 2007 and December 1, 2007. Dr. Graham is awarded general damages in the amount of $50,000 and aggravated damages in the amount of $50,000 together with pre-judgment interest pursuant to s. 5(1) of The Pre-judgment Interest Act, SS 1984-85-86, c P-22.2, and costs taxed in the appropriate column. J. D.E. LABACH","HELD: The action was allowed. The defendants had defamed the plaintiff and he was entitled to damages in the amount of $100,000. The court found the following with respect to each issue: 1) it would substitute Postmedia as a defendant pursuant to Queen’s Bench rule 3-84(2) as it was the successor to Canwest and was aware of the plaintiff’s claim when it purchased the Star Phoenix and it would not be prejudiced. It would not deprive Postmedia of a defence under s. 5 of The Limitations Act because the articles remained on Postmedia’s websites and were republished whenever they were viewed or downloaded; 2) after reviewing each of the articles and assessing the words complained of, it found that the words constituted defamation; 3) all of the defendants were found to be joint tortfeasors with Purdy because they participated in the publication of a libel and were jointly and severally liable in defamation to the plaintiff; and 3) an appropriate award for general damages was $50,000. The court allowed the claim for aggravated damages as the defendants were found to be motivated by actual or express malice because Purdy did not simply report the jury’s verdict in her articles but indicated that she believed that the jury had not reached the proper verdict in the trial. She deliberately chose to report the stories of people who had made complaints about the surgical care provided to them by the plaintiff without verifying it or seeking comment from the plaintiff. As she was acting in the course of her employment, Purdy’s malice was attributed to all the defendants. The plaintiff was awarded $50,000 in aggravated damages.",d_2017skqb42.txt
346,"E.J. GUNN NOVA SCOTIA COURT OF APPEAL Citation: R. v. J.E.S., 2009 NSCA 91 Date: 20090911 Docket: CAC 315311 Registry: Halifax v. Her Majesty The Queen Respondent Restriction on publication: Pursuant to s. 110(1) and s. 111(1) of the Youth Criminal Justice Act. Judge: The Honourable Justice Elizabeth Roscoe Application Heard: September 3, 2009, in Chambers Held: Application for release pending appeal is dismissed Counsel: Chandra Gosine, for the appellant Peter Rosinski, for the respondent Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act. PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110(1) and s. 111(1) of the YOUTH CRIMINAL JUSTICE ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. (1) Subject to this section, no person shall publish the name of young person, or any other information related to young person, if it would identify the young person as young person dealt with under this Act. (1) Subject to this section, no person shall publish the name of child or young person, or any other information related to child or young person, if it would identify the child or young person as having been victim of, or as having appeared as witness in connection with, an offence committed or alleged to have been committed by young person. Decision: [1] J.E.S., aged 16, pleaded guilty to aggravated assault contrary to s. 268(1) of the Criminal Code. On July 15, 2009 he was sentenced by Youth Court Judge Jamie S. Campbell to serve total sentence of 365 days, comprised of 243 days custody followed by 122 days supervision in the community. Nine month’s credit was given for the six months he spent on remand, so the total sentence is, in effect, 21 months, four months of which is non-custodial. J.E.S. has appealed his sentence and applies for release pending appeal pursuant to s. 679 of the Criminal Code. The appeal has been scheduled to be heard on November 13, 2009. [2] Judge Campbell described the offence in the sentencing decision as follows: The crime here was of potentially lethal violence. The circumstances surrounding it are, to say the least, perplexing. It was not moment of poor judgement. It was not momentary lapse of self control. J.E.S. took gun in anticipation of fight. Apparently he made what he thought was pre-emptive strike, though it seems against young man he didn’t even know. [3] The victim of the crime was young person standing on street corner who was shot in the back with rifle fired by J.E.S. in drive-by shooting. [4] J.E.S. has appealed his sentence but not the conviction. The grounds of appeal are: 1. The learned Trial Judge emphasised the element of general deterrence when prohibited from doing so under the Y.C.J.A. 2. The learned Trial Judge imposed sentence which is clearly unfit under the principles of sentence under the Y.C.J.A., the preamble and the declaration of principles. [5] The relevant sections of the Criminal Code provide: 679 (1) judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, ... (b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal ... (4) In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by judge of the court of appeal if the appellant establishes that (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [6] Further to s. 679(1)(b), and Civil Procedure Rule 91.24(1), it is necessary that leave to appeal be granted before release pending appeal. To grant leave, should be satisfied that the grounds are not frivolous and that they raise arguable issues: R. v. MacIntyre, 2003 NSCA 68 (CanLII), R. v. Smith, 2005 NSCA 45 (CanLII). The Crown does not oppose the leave application and am satisfied that the grounds of appeal are not frivolous, and therefore grant leave to appeal. [7] At the hearing of the bail application, counsel for the appellant called Mr. Mark Crosby of the Youth Probation Office as witness. Mr. Crosby testified that if J.E.S. is released pending appeal he would be accepted into the Youth Bail Supervision Program. That program provides for intensive supervision including weekly reporting in person, daily telephone contact, curfew checks, random home and school visits, and the use of an electronic GPS bracelet which continually tracks the location of the young person. J.E.S. and his mother have agreed to his participation in this program if he is released pending appeal. [8] Counsel for the appellant submitted that since the appellant is young person, s. 679 of the Criminal Code should be interpreted in accordance with the principles set out the Youth Criminal Justice Act. No authority, specific to release pending appeal, was cited by counsel to support this argument. One case found subsequent to the hearing, R. v. D. C., 2005 ABCA 280 (CanLII), does assist the appellant’s position. In that case, Berger, J.A. released the young person pending sentence appeal, after finding that strict conditions of release would “in all of the circumstances, best achieve the objects and purposes of the Youth Criminal Justice Act pending the Applicant’s appeal.” [See 8.] In that case, the young person had served all but seven weeks of six-month custodial sentence at the time of the application for release pending appeal. [9] will therefore be informed and guided by the principles as set out in s. of the Y.C.J.A. in determining whether the appellant should be released pending appeal. Those principles are stated as follows: (1) The following principles apply in this Act: (a) the youth criminal justice system is intended to (i) prevent crime by addressing the circumstances underlying young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that young person is subject to meaningful consequences for his or her offence in order to promote the long‑term protection of the public; (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [10] Most of these principles are more relevant at the pre-trial, trial and sentencing stages of proceeding than at this time. The appellant, J.E.S., has the onus of establishing each of the three conditions of s. 679(4) on balance of probabilities. In my view, none of the principles of the Y.C.J.A. dictate that the burden should be lessened or shifted to the Crown. The principles relevant to this matter require that deal with his application and set down the appeal as soon as possible, take into account the appellant’s reduced level of maturity, and ensure that he is treated fairly. [11] At this stage of the proceeding, the appellant no longer has the benefit of the presumption of innocence. The Crown is opposed to the release of the appellant, and submits that the appellant has not established any of the three conditions. [12] The “unnecessary hardship” condition was explained by Saunders J.A., in R. v. Bennett, 2006 NSCA 86 (CanLII): [16] In R. v. J.D., (1996) N.S.J. No. 176, Flinn, J.A. for this court discussed the threshold for establishing under s. 679(4)(a) whether an appeal is sufficiently meritorious that failure to allow bail pending appeal would cause unnecessary hardship. He quoted from The Law of Bail in Canada, (Gary T. Trotter, Toronto: Carswell, 1992), and agreed that the onus on an appellant under s. 679(4)(a) of the Criminal Code is “much more stringent” than for an appeal against conviction. He also implicitly accepted the following statement from that text at ¶23: The applicant must demonstrate that the appeal is sufficiently meritorious such that, if the accused is not released from custody, he or she will have already served the sentence as imposed, or what would have been fit sentence, prior to the hearing of the appeal. It prevents the applicant from serving more time in custody than that which is subsequently determined to be appropriate in the sense, there is unavoidable speculative dimension of this criterion. [13] J.E.S. says in his affidavit that he will suffer unnecessary hardship if kept in custody until his appeal is heard because he will fall behind in his schoolwork and be unable to complete his high school education in a timely fashion. Prior to being remanded, J.E.S. was not attending school because he had been asked to leave the high school he had previously attended as a result of concern for his and other students’ safety after threats had been made against him. While in custody at the Nova Scotia Youth Centre in Waterville, J.E.S. has been studying grade 10 Math and English and, according to his pre-sentence report, he also attends substance abuse and anger management programs. [14] The second condition that J.E.S. must meet is he would surrender himself in accordance with any release order. review of his record indicates that he has history of flaunting court orders. On the day that he committed the drive-by shooting in this case, he was on two probation orders that prohibited him from possessing firearms and was also subject to firearms prohibition order. As well, he was on an undertaking to keep the peace and be of good behaviour. He has been convicted of five breaches of probation, two breaches of undertaking, and two resisting arrest/obstruction charges. Furthermore, he has prior record for violent offences. [15] J.E.S. must also prove that his detention is not necessary in the public interest. This condition was described by Justice Bateman recently in R. v. Marshall, 2008 NSCA 41 (CanLII): 24 In R. v. Demyen (1975), 1975 CanLII 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), Culliton, C.J.S., in discussing the meaning of ""detention in the public interest"", said at p. 326: am convinced that the effective enforcement and administration of the criminal law can only be achieved if the Courts, Judges and police officers, and law enforcement agencies have and maintain the confidence and respect of the public. Any action by the Courts, Judges, police officers, or law enforcement agencies which may detrimentally affect that public confidence and respect would be contrary to the public interest.... (Cited with approval by Arbour J.A. in R. v. Farinacci, 1993 CanLII 3385 (ON CA), [1993] O.J. No. 2627 (Q.L.), 86 C.C.C. (3d) 32 (C.A.)). [16] The appellant J.E.S, has clearly not met all three requirements for release pending his sentence appeal. He is able to attend high school classes in the youth facility while he awaits his appeal, so he is making some progress towards his education. Although the number of subjects available is limited, he is receiving individualized attention several times week. Furthermore, even if his sentence appeal is successful, by the time the appeal is heard on November 13th, he will have only served about four months custody since the date of sentencing by the Youth Court. The appellant has not satisfied the onus which is upon him to establish that his appeal has sufficient merit that, in the circumstances, would cause unnecessary hardship if he were detained in custody until November. In coming to this conclusion have considered the serious nature of the offence here, the principles of the Y.C.J.A. listed above, the appellant’s criminal record, the reasons for sentence given by Judge Campbell, and the general reluctance of this Court to interfere with youth sentences unless it is clearly excessive or based on wrong principles. The appellant has not satisfied me that his appeal is sufficiently meritorious that, by the time his appeal is heard, he will likely already have served more than what is determined to be a fit sentence, and thereby suffer undue hardship if he is not released. [17] With respect to the second condition, in light of his pattern of flagrant disregard of court orders, am very concerned that the appellant would not abide by the conditions of any release order or surrender himself as required. However, the program described by Mr. Crosby certainly appears to provide much closer supervision than J.E.S. has had in the past, and J.E.S. professes to have “turned new leaf” regarding his former negative peer group. am therefore prepared to accept that the second condition has been met. [18] However, given the circumstances of the aggravated assault offence, his record of violent offences, and the numerous breaches of court orders, I am not persuaded that his release would be in the public interest. The appellant’s release so soon after being sentenced, in order for him to attend school in the community, would tend to undermine public confidence in the administration of justice. [19] The application for release pending appeal is therefore dismissed. Roscoe, J.A.","The young person appealed his sentence on an aggravated assault conviction following a drive-by shooting and applied for release pending appeal. Although he alleged that he would suffer unnecessary hardship if kept in custody because he would fall behind in his schoolwork, prior to being remanded the youth had been asked to leave his high school as a result of safety concerns in the school. Application for release pending appeal dismissed. The young person would not suffer unnecessary hardship as he was able to attend high school classes several times per week in the youth facility while he awaited his appeal and, even if his appeal was successful, he would only have served four months custody before it was heard. Given the circumstances of the aggravated assault and his record of violent offences and numerous breaches of court orders, the court was not persuaded that the youth's release would be in the public interest.",9_2009nsca91.txt
347,"J. Q.B. A.D. 1996 No. 172 J.C. E. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: CATHERINE DONAGHY, by her litigation guardian, HOWARD DONAGHY RESPONDENT (PLAINTIFF) and AARON SCHUTTE APPLICANT (DEFENDANT) Gerald B. Heinrichs for the respondent (plaintiff) Sheldon M. Stener for the applicant (defendant) JUDGMENT MATHESON J. June 11, 1999 [1] The plaintiff has applied for an order, pursuant to s. 55 of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “Act”), requiring Saskatchewan Government Insurance (“SGI”) to pay to the plaintiff the amount awarded to the plaintiff in a judgment dated October 29, 1998. [2] The defendant, on the other hand, has applied for an order setting aside the judgment and striking out the claim of the plaintiff. BASIS OF APPLICATIONS [3] In her statement of claim dated October 7, 1996, it was alleged that the plaintiff, as pedestrian, had, on October 26, 1995, been pinned between an automobile operated by the defendant and stationary motor vehicle, thereby causing personal injury to the plaintiff. [4] It was further alleged that the acts of the defendant in injuring the plaintiff were criminal acts, and that he also committed the torts of assault, battery, trespass and intentional interference with the plaintiff. The defendant did not defend the claim against him and was noted for default. The plaintiff applied for summary judgment, but was required to proceed to hearing to assess her damages. [5] After hearing date was fixed, SGI intervened, pursuant to s. 56 of Act, and filed statement of defence wherein it was admitted that the plaintiff was struck by moving motor vehicle operated by the defendant but that the claim was barred by s. 102 of the Act. [6] On September 29, 1998, MacPherson C.J.Q.B. ordered that the hearing to assess the plaintiff’s damages, scheduled for October 1, 1998, should proceed without prejudice to SGI’s assertion that the claim of the plaintiff was barred by statute. [7] The plaintiff’s damages were assessed in the total amount of $37,717.35, which included punitive damages of $10,000.00. SECTION 102 OF THE ACT [8] Section 102 of the Act came into force on January 1, 1995, approximately ten months before the plaintiff was injured by the defendant’s automobile. That section states: 102 Notwithstanding any other Part of this Act or any other Act or law, but subject to the other provisions of this Part: (a) no person has right of action respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force; (b) no action or proceeding lies or may be instituted in any court respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force; and (c) the right to benefits stands in lieu of all right of action to which person is or may be entitled to respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force. [9] Section 101 of the Act defines “accident” and “bodily injury” as follows: 100(1) In this Part: (a) “accident” means any event in which bodily injury is caused by an automobile; ... (d) “bodily injury” means any physical or mental injury, including any acquired brain injury, permanent physical or mental impairment or death. SUBMISSION OF PLAINTIFF [10] The plaintiff has asserted that it is common ground that the defendant wilfully drove into the plaintiff, trapping her leg between the defendant’s automobile and second automobile; that the defendant fled the scene in his automobile calling out of the window of his automobile that the plaintiff was “dirty little rat”; and that the defendant was tried and convicted of the Criminal Code offence of operating motor vehicle in manner dangerous to the public. [11] The plaintiff has further submitted that s. 102 cannot have been intended to deprive a citizen of the right to sue a defendant for injuries caused by assault, battery, intentional infliction of mental suffering, fraud, deceit and fraudulent misrepresentation. The fraudulent aspects of the plaintiff’s claim arise by virtue of the defendant having motioned to the plaintiff, more than once, that it was safe for her to proceed into the pedestrian crosswalk. [12] If s. 102 of the Act precludes an action for damages as result of the intentional inflicting of harm on victim by use of motor vehicle, “then it is an actionable tort to beat someone up in Saskatchewan with baseball bat but not so if the assailant uses an automobile”. [13] That statement may be accurate, but it overlooks the fact that, although s. 102 of the Act prohibits certain types of law suits, it does not result in the victim not being compensated for personal injuries incurred as a result of an automobile. The Act clearly contemplates scheme of compensation to individuals who have suffered bodily injuries caused by an automobile. [14] Herbert v. Misuga (1994), 1994 CanLII 4577 (SK CA), 116 Sask. R. 292 (C.A.) involved claim against the defendant motor vehicle driver for damages for assault and battery. [15] The defendant Misuga had admitted that he had intentionally steered his truck at the plaintiff Herbert, although he said his intention was to frighten Herbert but not cause the serious injuries incurred when Misuga’s truck struck Herbert. [16] The action was brought more than one year after the injuries were inflicted. The question to be resolved was whether s. 143 of the then The Vehicles Act, 1983, S.S. 1983, c. V-3.1 repealed by The Vehicle Administration Act, S.S. 1986, c. V-2.1 applied: 143(1) No action may be brought against person for the recovery of damages occasioned by motor vehicle after: (a) the expiration of 12 months from the time when the damages were sustained .... Herbert argued that the injuries were not caused by the motor vehicle used as such but by the motor vehicle used as weapon of assault. Consequently, it was submitted the statutory limitation as to commencement of assault actions—two years—applied, rather than s. 143(1) of The Vehicle Act, 1983. [17] In order to accept the foregoing submission, it would have been necessary to conclude that Misuga’s truck was not being used as motor vehicle when it struck Herbert. The Saskatchewan Court of Appeal could not reach that conclusion, and stated that the limitation period in s. 143(1)(a) of The Vehicles Act, 1983 applied. [18] The wording in s. 102(a) of the Act—no person has right of action arising from bodily injuries caused by an automobile—is indistinguishable from the wording in s. 143(1) of The Vehicles Act, 1983—no action may be brought against person for the recovery of damages occasioned by motor vehicle after 12 months. Thus, the same result is dictated in this case as in Herbert v. Misuga: the plaintiff had no cause of action by virtue of her injuries having been “caused by an automobile”. [19] Consequently, there must be a declaration that the plaintiff was precluded, by s. 102 of the Act, from commencing a valid legal action, with the result that the judgment obtained is a nullity. [20] There will be no order as to costs.","Plaintiff applied for an order pursuant to s.55 of the AAIA requiring SGI to pay to the plaintiff the amount awarded to her in an earlier judgment. The defendant has applied for an order setting aside the judgment and striking out the plaintiff's claim. A car-pedestrian accident occurred causing personal injury to the plaintiff. The defendant was convicted of dangerous driving under the Criminal Code. The plaintiff sued for battery and assault. The defendant was noted for default on this claim and the damages were assessed at $37,717.35, $10,000 of which were punitive. The plaintiff submits that s.102 of the Act should not deprive a citizen of the right to sue a defendant for injuries caused by assault, battery, fraud, or similar torts. HELD: The plaintiff has no cause for action by virtue of her injuries having been caused by an automobile. The plaintiff was precluded by s.102 of the Act from commencing a valid legal action with the result that the judgment obtained is a nullity. Although s.102 of the Act prohibits certain types of law suits, the act provides victims with compensation for injury. No order as to costs.",8_1999canlii12618.txt
348,"Q.B. A.D. 1991 No. 4189 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: FIRST CITY TRUST COMPANY, and LOUIS DION, AND: Q.B. A.D. 1992 No. 2691 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: FIRST CITY TRUST COMPANY, and GREAT CANADIAN BINGO CORP., DEFENDANT D. Richardson and S. Schnell for the plaintiff S. Hansen for the defendants JUDGMENT BAYNTON J. December 14, 1993 Nature of the Applications The plaintiff applies to strike the statement of defence of the corporate defendant, Great Canadian Bingo Corp. The ground is that Leo Dion, the designated officer of the corporation pursuant to an agreement between the parties, failed to appear at an examination for discovery on November 23, 1993. The plaintiff applies to strike the statement of defence of the individual defendant, Louis Dion, on the same grounds. Scheduling of the Examinations In each case the plaintiff's solicitors had on several occasions telephoned the defendants' solicitor to schedule examinations for discovery and to obtain statements as to documents. None of the calls were returned. Finally the plaintiff's solicitors wrote to the defendants' solicitor proposing range of dates for the examinations for discovery and requesting the defendants' statements as to documents. The letter indicated that if no reply was made by October 25, 1993, the examinations would be unilaterally scheduled. No reply was made and accordingly appointments were taken out for the examinations in Saskatoon on November 23, 1993. The appointments were served on the defendants' solicitor at Prince Albert along with conduct money to cover travel from Prince Albert to Saskatoon and return. This step prompted brief letter from the defendants' solicitor to the effect that he had ""difficulty"" with the appointments. He stated that ""Leo Dion is not in fact an Officer or Director of the Company [the defendant corporation] at the present time"" and that he would have to seek instructions as to the proper officer to be examined. He also stated that Louis Dion ""is presently residing in Vancouver"" and that he would need the ""appropriate"" conduct money. He also stated he had ""some difficulty"" with the appointed date. He suggested no alternative date nor did he indicate that the conduct money tendered respecting Leo Dion was unacceptable. In view of the appearance defaults by the Dions on numerous previous occasions, the plaintiff's solicitors responded that despite the letter they would be attending at the examination and would hold the defendants' to their obligations to attend as well. Their further telephone calls to the defendants' solicitor were not returned. The statements as to documents were not provided as requested, and as yet have not been provided. The plaintiff's solicitor appeared at the scheduled examinations but neither Leo nor Louis Dion appeared, nor did anyone else appear on behalf of the corporate defendant, nor did the defendants' counsel appear. Events Leading Up to the Applications review of the history of events that have taken place respecting these two actions and the content of the numerous affidavits that have been filed, clearly indicates that the defendants or the Dions have little or no regard for the administration of justice. Their conduct can be characterized as contemptuous. Undoubtedly the solicitor for the defendants, in accordance with his duty to his clients, has carried out his clients' instructions. But as solicitor, he has duty to more than just his clients. He is also an officer of the court and as well, has duty of courtesy and professionalism to his fellow solicitors. Regrettably, as his conduct demonstrates, he has not maintained the level of courtesy and professionalism to his fellow solicitors that is to be expected of member of the legal profession. To put the applications before me in perspective, it is essential to review in some detail the relevant events and depositions over the last year. The plaintiff initially obtained default judgment against the corporate defendant and arranged for an examination in aid of execution. By agreement between the solicitors for the parties, Louis Dion was considered as the proper officer to be examined. Despite proper appointments being taken out and served, he failed to attend three of the four examinations scheduled in November and December of 1992. Late in December of 1992 the defendants' solicitor advised the plaintiff's solicitor that as of January 1, 1993, Leo Dion would be the proper officer to be examined on behalf of the defendant corporation. Another examination in aid of execution was scheduled for February 26, 1993, but Leo Dion, presumably taking his cue from Louis Dion, failed to appear. By this time, of the five examinations scheduled, only one had been attended and even it had to be adjourned to obtain certain undertakings. In April of 1993, Judge Wedge ordered that Louis and Leo Dion attend on May 20 to be examined on behalf of the corporation. Louis Dion appeared, testifying that he had resigned as director and officer of the corporation effective January 1, 1993, and that he knew nothing about any of its affairs. His statements ""I have seen nothing, know nothing, don't talk to them. have no knowledge of their business, don't know no knowledge of anything"" summarizes his testimony. Leo Dion, the officer who by that time was held out by the defendant corporation as its designated officer, failed to appear at the examination. corporations branch search subsequently conducted on May 27, 1993, indicated that the sole directors of the defendant corporation were shown to be Louis and Leo Dion. The address of Louis was shown as 43 Scenic Park Crescent, Calgary, Alta., while that of Leo was shown as Emma Lake, Sask. The plaintiff, faced with these events and information, understandably commenced contempt proceedings. The then solicitor for the defendants withdrew and the defendants became represented by their current solicitor. Despite the non-attendance of the defendants (or any counsel representing them at that time), on the return date of the contempt proceedings, an adjournment was granted by the court to permit the defendants or their counsel to appear and make representations. Those pending contempt proceedings presumably prompted an application by the defendants to set aside the default judgments against them. They were successful and were given leave to defend. The contempt proceedings were adjourned sine die. Leo Dion, on behalf of the defendant corporation's application to set aside the default judgment, swore an affidavit on June 1, 1993, (the date he was to have been in Chambers on the contempt applications), claiming that he was not aware that judgment had been entered against the corporation. His address was shown in the affidavit as ""the City of South Surrey, in the Province of British Columbia"". He swore that he was director of the defendant corporation and he set out details of his substantial personal involvement with it and its business operations. In second affidavit of the same date, filed in response to the contempt proceedings, he swore that he was ""fully prepared to attend at further Examination for Discovery upon reasonable notice being provided to me"". Louis Dion swore an affidavit on June 3, 1993, in support of his application to set aside the default judgment against him personally, claiming that he was not aware that judgment had been entered against him, or that any legal action had ever been commenced against him by the plaintiff, until he was so advised by his current lawyer on April 20, 1993. His address was shown as ""the City of Vancouver"". In second affidavit of the same date, filed in response to the contempt proceedings, he swore that he had resigned as director and officer of the defendant corporation in December of 1992, that he was former director and officer of it, and that ""from January 1st, 1993 have not been involved in the business operations of Dion Entertainment Corp., nor the Defendant, Great Canadian Bingo Corp."". He also swore ""as was no longer an Officer or Director of such company, [the defendant corporation], was not prepared nor able to respond to questions as to the business operations of the said Defendant after January 1st, 1993, as do not have any personal knowledge of such business operations"". After the defendants were granted leave to defend on June 14, 1993, they filed defences to the actions. The current applications before the court arose out of unsuccessful attempts by the plaintiff to examine the defendants respecting their statements of defence. On the return dates of the motions, counsel for the defendants appeared. He was granted leave to file two affidavits of Louis Dion even though they were tendered for filing on the eve of the hearing of the motions even though they had not been previously served on the plaintiffs' solicitors. No affidavit or other material was filed on behalf of Leo Dion. In two affidavits dated November 30, 1993, Louis Dion swears that both he and his brother Leo Dion have been residing in British Columbia for the past year. What is significant about the affidavits is that Louis Dion swears he has personal knowledge that ""Leo Dion is no longer an Officer nor Director of the Defendant company, as there has been number of recent management changes with the Company"". He also swears that Leo Dion ""has not been designated as the proper officer for such examination by the Defendant Company as of this date"". This alleged detailed knowledge by Louis Dion of the affairs of the defendant corporation flies in the face of his earlier sworn testimony denying any knowledge whatsoever about anything to do with the defendant corporation or its affairs. As well, it is interesting that Louis Dion purports to give hearsay evidence about matters on which Leo Dion should be capable of giving direct evidence. It is also interesting that the defendant corporation who risks having its defence struck, is totally silent as to whom its proper officer might now be. This kind of inconsistent conduct and testimony throughout these proceedings causes me to seriously question the credibility of the defendants and their representatives and conclude that their evidence is unreliable. This conclusion on credibility is consistent with the comments and conclusions reached respecting the credibility and conduct of Louis Dion in Madison Development Group Inc. v. Phoenix Enterprises Ltd. et al. and Louis Dion and Dion Development Corp., (unreported Q.B. J.C.P.A. June 6, 1991). In that case contempt proceedings were also taken against him for failing to attend an examination for discovery and for falsely swearing as to his whereabouts on the date of the examination. He was at that time represented by his current counsel. Position Taken by the Defendants The position taken on these applications by the defendants is basically that their defences cannot be struck under Rule 231 because the examinations for discovery were not properly scheduled in accordance with the Rules. Both Dions are now presumably residents of British Columbia. Non- residents cannot be compelled to attend an examination for discovery by means of an appointment under Rule 228. They can only be compelled to attend by means of court order under Rule 229. The defendants and their counsel also maintain that there are two other reasons why Leo Dion cannot be compelled to attend. First there is no court order designating Leo Dion as the proper officer of the defendant corporation. Secondly, he is no longer an officer or a director of the corporation. The Requirements under the Rules Whether or not person is proper officer of the corporation, (whether designated as such by court order or by agreement under Rule 223(3)), and whether or not person is still an officer of the corporation, are facts relevant only to the issue as to whether or not that person's examination for discovery can be used as evidence. Such facts are not relevant to the issue of that person's compellability to attend an examination for discovery. Under Rule 222, any party, or any person who is or has been an officer or employee of corporation, is compellable to attend an examination for discovery. Under Rules 227 to 229, the residence of such person is relevant to the manner in which such person can be compelled to attend. If he is resident of Saskatchewan, an appointment can be utilized to compel his attendance. If however he is non-resident, court order must be obtained before he can be compelled to attend. Conduct money must also accompany the appointment or the order. As the Dions now apparently reside out of province, (assuming in their favour that this aspect of their evidence is true), they were not compellable to attend the scheduled examinations for discovery on the basis of an appointment. It is inherent in Rule 231 that person must be legally compellable to attend the time and place appointed for his examination before he can be found to be ""refusing or neglecting"" to attend and thereby guilty of contempt of court and liable to have his defence struck out. Accordingly, agree with the submissions of the defendants' counsel that the non-attendances of the Dions on November 23, 1993, do not constitute ""refusing or neglecting to attend"" within the meaning of Rule 231. It cannot be utilized respecting these particular non- attendances to strike their statements of defence. I am satisfied however, on the basis of their conduct exhibited throughout the whole of these proceedings, that Louis Dion, Leo Dion, and the defendant corporation, are guilty of contempt of court. The contempt proceedings instituted last spring are still before the court even though they were adjourned sine die at the time the defendants were permitted to file statements of defence. The defendants have abused the discretion of the court that was exercised in their favour to set aside the judgments obtained against them and to permit them to file defences. It is clear from the terms of the order, that this discretionary relief was not granted to enable the defendants to stall the action or to frustrate the determination of the plaintiff's claim. The defendants were expected to promptly file their defences and to proceed with reasonable dispatch through the various stages of the lawsuit until it is eventually determined. The conduct of the defendants and their solicitor, however, clearly indicates that, in the same fashion as before the contempt proceedings were adjourned, they have continued to duck and weave, and have effectively stalled all reasonable attempts on the part of the plaintiff to proceed with the lawsuit. The complaints of the defendants about the unilateral scheduling by the plaintiff's solicitors is without merit. The date was unilaterally set as a last resort because of the complete lack of courtesy and co- operation on the part of the defendants\' counsel. The plaintiff's solicitors were lead to believe, from previous statements made and positions taken by the Dions and their counsel, that the defendant corporation had now agreed that Leo Dion was the proper officer of the defendant corporation. The plaintiff's counsel were also lead to believe from numerous previous attempts at examinations, that the conduct money submitted was the proper amount. Until it was too late for the plaintiff to do anything about it, the defendants' counsel did nothing to dispel those reasonable assumptions. In my view he either deliberately or unwittingly was used by his clients to further frustrate the proper examination of them in these proceedings. Decision It would be inappropriate in the circumstances to strike the defendants' statements of defence. But the court has an obligation to supervise its process and see that contemptuous conduct is not rewarded or permitted to continue. This is particularly so when litigant abuses discretionary relief granted by the court in his favour. Here the defendants have consistently attempted to improperly thwart at every turn the efforts of the plaintiff to determine the matters raised in these lawsuits. accordingly order as follows: (1)The corporate defendant shall, within days of the date of this order, provide the plaintiff's solicitors with written notice of the person who it proposes is the proper officer to be examined on its behalf. If such person is not acceptable to the plaintiff, the plaintiff may make court application for the designation of the proper officer. (2)Failing agreement between the solicitors for the parties as to acceptable dates for the examinations for discovery of the individual defendant and the proper officer of the corporate defendant, the plaintiff\'s solicitors shall be entitled to unilaterally set the dates. Provided at least 14 days advance written notice of the dates is given to the defendants' solicitor, and unless otherwise ordered by the court, the individual defendant shall attend his scheduled examination, and the corporate defendant shall secure the attendance of its proper officer at its scheduled examination. In view of the past abuses, the defendants shall not be entitled to any conduct money for the initial attendances at the examinations for discovery or for any subsequent attendances required for the completion of the examinations. (3)The defendants shall serve and file their statements as to documents within 14 days of the date of this order. (4)The plaintiff shall have its costs of these applications in any event of the cause. fix these costs at $1,000.00 against the corporate defendant and $500.00 against the individual defendant. The costs shall be paid by the defendants to the plaintiff within 14 days of the date of this order. (5) If defendant fails to comply with the terms of this order, the plaintiff may apply to this Court to have that defaulting defendant's defence struck out.","The plaintiff applied under Queen's Bench Rule 231 to strike the statements of defence of a corporate and individual defendant for failure to attend scheduled examinations despite service of an appointment and payment of conduct money to their solicitor. The defendants had previously been permitted to re-open judgments obtained against them and had filed defences. Prior to that they had consistently failed to attend examinations in aid of execution. Contempt proceedings had been commenced against them but were adjourned sine die at the time the defendants were permitted to defend. The defendants resisted the application on the basis that they were now non-residents and not compellable by an appointment, and that the designated officer of the defendant corporation was no longer an officer. This information had not been communicated to the plaintiff's solicitor who had acted in good faith on information given to him previously by the solicitors for the defendants. The examinations had been scheduled unilaterally because the defendants' solicitor consistently refused or neglected to return phone calls or correspondence from the plaintiff's solicitors. HELD: The judge refused to strike the defences holding that in the circumstances Queen's Bench Rule 231 did not apply. He also held that the defendants, considering their conduct throughout the whole course of the lawsuit, were in contempt and ordered them to attend without conduct money any examinations unilaterally scheduled by the plaintiff failing agreement between counsel as to dates. Costs were fixed at $1,500 in any event of the cause and were ordered to be paid within two weeks.",5_1993canlii6695.txt
349,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Marjan Enterprises Ltd. v. Meisner, 2003 NSSC 85 Date: 20030409 Docket: S.H. 190327 Registry: Halifax Between: Marjan Enterprises Limited, body corporate, with Head Office in Bedford, in the Halifax Regional Municipality, Province of Nova Scotia Plaintiff/Applicant v. J. Denise Meisner Defendant/Respondent Judge: The Honourable Justice C. Richard Coughlan Heard: December 11, 2002, (in Chambers) in Halifax, Nova Scotia Counsel: Deborah E. Gillis, Q. C. for the Plaintiff/Applicant Frank W. MacDonald, for the Defendant/Respondent Coughlan, J.: [1] Marjan Enterprises Limited (vendor) applies for an order pursuant to the Vendors and Purchasers Act, R.S.N.S. 1989, c. 487 for an order declaring that the objection raised by the defendant, J. Denise Meisner (purchaser), is without merit. [2] Section of the Act provides: Application for determination of question vendor or purchaser of any interest in land or his representative may, at any time and from time to time, apply in summary way to judge or local judge of the Trial Division of the Supreme Court in respect of any requisition or objection or any claim for compensation, or any other question arising out of or connected with the contract and the judge or local judge may make such order upon the application as appears just, and refer any question to referee or other officer for inquiry and report. [3] The parties entered into an agreement of purchase and sale dated October 25, 2002. The agreement provided for closing of the transaction on November 14, 2002. The agreement contains the following clause: 15. Time shall in all respects be of the essence in the Agreement. In the event of written agreement of extension, time shall continue to be of the essence. This Agreement shall enure to the benefit of and be binding upon the parties hereto, their respective heirs, executors, administrators, successors and assigns. This Agreement is to be read with all changes of gender or number required of the context. [4] The purchaser’s solicitor made an objection to title by letter dated November 8, 2002. There was communication between the solicitors for the vendor and for the purchaser. The purchaser’s solicitor did not accept the answer to the objection to title given by the vendor’s solicitor. The purchaser’s solicitor agreed to extend the closing date to November 15, 2002 by letter dated November 14, 2002. The present application was commenced November 28, 2002. [5] In dealing with when an application pursuant to the Act may be brought various texts provide as follows. In the Nova Scotia Real Property Practice Manual, Butterworths, C.W. MacIntosh, Q.C. states at p. 4-41: The application must be commenced and heard before the date for closing, which is not automatically extended by reason of the application. Any extension must be agreed to by the parties. Authority for the statement is given as Raymond and Raymond v. Doubleday and Doubleday (1984), 65 N.S.R. (2d) 179 (T.D.). [6] In Lamont on Real Estate Conveyancing (2nd ed.), Carswell, it states at p. 11-1: As stated in Chapter 10, if valid requisition is submitted and the answer does not appear satisfactory, resort can be had to vendor’s and purchaser’s application for an adjudication on the apparent title problem. Such an application for an adjudication must be commenced and heard before the closing date for the transaction in order to preserve the parties’ rights to close or not to close on the closing date. It is misconception to think that by proceeding with vendor’s and purchaser’s application that the closing date of the transaction will be automatically put over until the application is heard. The closing date will only be postponed if the parties agree. [7] In Di Castri, The Law of Vendor and Purchaser (3rd. ed.), it states at p. 13-134.1: The summary procedure, so far as the jurisdiction permits, avoids the necessity of resorting to an action for specific performance, but is available only during the pendency of the contract and not after its completion. ... The authority for the statement in Di Castri is given as Re Buhlman and London Life Ins. Co. (1932), 41 O.W.N. 17. [8] Both Raymond and Raymond v. Doubleday and Doubleday, supra and Re Buhlman and London Life Ins. Co., supra are cases where the transactions were completed and the Courts held an application pursuant to the Act is not available after the transaction is completed. Those cases are not authority that an application must be commenced and heard before the date of closing. In this case, the contract was not completed, but terminated upon the date for closing passing without extension. [9] disagree an application pursuant to the Act must be completed before the closing date. Such an interpretation is too draconian. There may be many reasons, beyond the control of an applicant, why the application cannot be heard before closing date. However, it is within the control of an applicant to commence an application before the closing date of the transaction. While an application does not have to be heard before the date of closing, it must be commenced before the date of closing. [10] Time was of the essence in the agreement. The purchaser agreed to extend the closing date to November 15, 2002. The contract ended before the application was commenced. The application was not made during the pendency of the contract. [11] The application is dismissed. [12] If the parties are unable to agree, will hear them on the issue of costs. C. Richard Coughlan, J.","The vendor's application for an order declaring that the purchaser's objection was without merit was commenced 13 days after the closing date. Application dismissed; although such an application does not have to be heard prior to the closing date, it does have to be commenced prior to that date.",3_2003nssc85.txt
350,"IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 075 Date: May 18, 2016 Information: 37397838, 37397839, 37397840, 37397879, 43212228, 43212229, 44072591, 900001522, Location: Regina Between: Her Majesty the Queen Appearing: Mr. D. Davidson For the Provincial Crown Mr. J.P. Malone For the Federal Crown Mr. L. Mercier For the Accused DECISION ON Section 11(b CHARTER APPLICATION M. HINDS, INTRODUCTION [1] Mr. Said Ali (Ali is charged with 56 offences set out in eight Informations. Six of these Informations involve co-accused, Osman Hassan Mohamed and/or Faysal Abdi Hassan. Most of the offences are alleged to have taken place in Regina, Saskatchewan on or about June and 7, 2012 and involve such charges as: conspiracy to commit the indictable offence of fraud by printing and/or cashing forged cheques, contrary to contrary to section 465(1)( c) of the Criminal Code, defrauding or attempting to defraud contrary to section 380(1)(b) of the Criminal Code, possession of proceeds of crime contrary to 354(a) and 355(b) of the Criminal Code, knowingly using or causing forged document to be used, contrary to section 368(1)(a) and without lawful authority have in their possession counterfeit mark, contrary to section 376(2)(b) of the Criminal Code. Mr. Ali and the two co-accused are also charged with unlawful possession of (Khat) Cathinone, contrary to section 4(1) of the Controlled Drugs and Substances Act. Mr. Ali also faces charge of breach of recognizance from May 2013. [2] full list of Mr. Ali’s charges are set out in Schedule “A”. Most of these offences are absolute jurisdiction offences as per section 553 of the Criminal Code. [3] Mr. Ali’s court proceedings began on June 8, 2012 when he faced 16 charges set out in two Informations (43212228 and 43212229). On June 12, 2012 four additional Informations (37397838, 37397839, 37397840 and 440072591, consisting of 28 charges) were sworn against him. On July 19, 2012 Information 37397879 (consisting of 11 charges) was sworn against Mr. Ali. On May 22, 2013 Information 90001522 (consisting of one charge) was sworn against Mr. Ali. [4] Mr. Robinson initially acted as legal counsel for Mr. Ali between June 11 and September 20, 2012. Mr. Tilling acted as legal counsel for Mr. Ali between October 23, 2012 and February 14, 2014. Mr. Mercier has been acting as legal counsel for Mr. Ali since March 11, 2014. [5] At court appearance on November 5, 2015, Mr. Ali elected to be tried by Queen’s Bench Judge and preliminary hearing was scheduled to commence in the Provincial Court in Regina on April 6, 2016. On March 8, 2016 Mr. Ali provided Notice of Charter application pursuant to section 11(b), alleging that his right to trial within reasonable time, as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (Charter) have been infringed. Mr. Ali seeks judicial stay of proceedings. At Case Management Conference on March 16, 2016 Mr. Ali re-elected to be tried on all charges before Provincial Court Judge. The Preliminary Hearing date of April 6, 2016 was vacated. The hearing of the Charter application took place on April 4, 2016. [6] have concluded, for the reasons which are outlined below, that Mr. Ali has not established, on balance of probabilities, that there has been breach of his right to be tried within reasonable time. As a result I have dismissed the application for a stay of proceedings. DETAILED HISTORY OF THE PROCEEDINGS [7] The chronology of events and court appearances in this case, as set out in the court record and the evidence heard on this application, is crucial to the disposition of the matter. It is as follows: On June 8, 2012 Informations 43212228 and 43212229 are sworn alleging the offences set out in Schedule A. Mr. Ali is in custody and appears in bail court The Crown opposes his release from custody. Mr. Ali seeks private counsel. The matter is adjourned to June 11, 2012 for Show Cause Hearing. Mr. Robinson appears as defence counsel on occasions for Mr. Ali from June 11, 2012 until the Court grants Mr. Robinson leave to withdraw on September 20, 2012. On June 11, 2012 Mr. Ali is present (in custody) in bail court along with his counsel, Mr. Robinson. Mr. Ali is released on recognizance on Informations 43212228 and 43212229. Mr. Ali is to reside in Calgary, Alberta not to attend the Province of Saskatchewan except to attend court or appointments with counsel and to have no contact and no attendance with co-accused Osman Mohamed and Faysal Hasan. Mr. Ali is to contact the Regina Police Service by telephone each Saturday commencing June 16, 2012. The matter is adjourned to July 19, 2012. On June 12, 2012 Informations 37397838, 37397839, 37397840 and 440072591 are sworn alleging the offences set out in Schedule A. Mr. Ali is in custody and appears in bail court. The Crown consents to his release on recognizance. The matter is adjourned to July 19, 2012. On July 19, 2012 Information 37397879 is before the court. Mr. Ali is not present. Mr. Robinson appears for Mr. Ali on Information 37397879 and the above noted six Informations. designation of counsel is filed. The matters are adjourned to August 16, 2012 for additional disclosure. On August 16, 2012 Mr. Ali is not present. Mr. Robinson appears for Mr. Ali on the seven above noted Informations. The matters are adjourned to September 20, 2012 for disclosure. On September 20, 2012 Mr. Ali is not present. The court grants Mr. Robinson leave to withdraw as counsel. The remarks state Mr. Tilling to represent Mr. Ali”. The matters are adjourned to October 23, 2012. Mr. Tilling (or his agent) appears as defence counsel on 17 occasions for Mr. Ali from October 23, 2012 until the Court grants Mr. Tilling leave to withdraw on February 14, 2014. On October 23, 2012 Mr. Ali is not present, Crown waives the attendance of Ali. Mr. Tilling appears as defence counsel. The matters are adjourned by consent at the request of the defence to December 6, 2012. On December 6, 2012 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned to be spoken to on January 16, 2013. On January 16, 2013 Mr.Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on February 13, 2013. On February 13, 2013 an agent appears for Mr. Tilling. The matters are adjourned by consent to be spoken to on March 13, 2013. On March 13, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to on April 3, 2013. On April 3, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to on May 1, 2013. On May 1, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on May 30, 2013. On May 30, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on June 27, 2013. The remarks section states: “Needs to review material”. On June 27, 2013 Mr. Ali is not present. Mr. Tilling is noted as defence counsel. An agent may have appeared for Mr. Tilling. The matters are adjourned by consent to August 22, 2013. he remarks section states “Defence waives delay”. take this endorsement to mean that Mr. Ali waived delay for 1month and 26 days from June 27, 2013 to August 22, 2013. On August 22, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on October 1, 2013. On October 1, 2013 Mr. Ali not present. Mr. Tilling is noted as defence counsel. The matters are adjourned by consent to be spoken to on November 5, 2013. The remarks section states “In Discussion Crown”. On November 5, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on December 3, 2013. On December 3, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on December 19, 2013. The remarks section states “To set date”. On December 19, 2013 Mr.Ali not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on January 16, 2014. On January 16, 2014 Mr. Ali not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on February 4, 2014. On February 4, 2014 Mr. Tilling appears as defence counsel. The matters are adjourned by consent for Mr. Ali to obtain new counsel on February 11, 2014. On February 11, 2014 Mr. Ali not present. Leanne Phillips appears as agent for defence counsel, Mr. Tilling. The matters are adjourned by consent to be spoken to on March 14, 2014. The remarks section states “Brad Tilling granted leave to withdraw”. Mr. Mercier has appeared as defence counsel for Mr. Ali since March 11, 2014. On March 11, 2014 Mr. Mercier appears as defence counsel for Mr. Ali. The matters are adjourned by consent to be spoken to on April 15, 2014. The remarks section states “Defence waives delay”. take this endorsement to mean that Mr. Ali waives delay for approximately month, from March 14, 2014 to April 15, 2014. On April 15, 2014 Mr. Ali is not present and the Crown waives Mr. Ali’s attendance. Mr. Mercier appears as defence counsel. The matters are adjourned by consent to be spoken to on May 14, 2014. On May 14, 2014. Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on June 17, 2014. On June 17, 2014 Mr. Ali is not present. Bench Warrant is authorized and held by Crown. Mr. Mercier appears as defence counsel. The matters are adjourned to be spoken to on August 12, 2014. On August 12, 2014 Mr. Ali is not present. Bench Warrant continues to be held by Crown. Mr. Mercier appears as defence counsel. The Court orders the personal attendance of the accused on the adjourned date. The matters are adjourned to be spoken to on August 19, 2014. The remarks section states: “The Crown no longer wants to hold the Bench Warrant. The Court gives the defence one week adjournment to have the accused present.” On August 19, 2014 Mr. Ali is present. The Bench Warrant is cancelled. Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence, to be spoken to on October 7, 2014. On October 7, 2014 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence for disclosure to November 13, 2014. On November 13, 2014 Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to and for review of disclosure to January 19, 2015. On January 19, 2015 Mr. Ali is not present. Mr. Tocher appears as agent for defence counsel, Mr. Mercier. The matters are adjourned at the request of the defence to be spoken to on February 18, 2015. On February 18, 2015 Mr. Ali is not present. Mr. Ali is charged with new offence of breaching condition of recognizance as set out in Information 90001522. Mr. Mercier appears as defence counsel. All matters are adjourned to March 16, 2015. On March 16, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on April 20, 2015. On April 20, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on June 16, 2015. Defence waives delay. take this endorsement to mean that Mr. Ali waives delay for approximately months, from April 20, 2015 to June 16, 2015. Bench Warrant is authorized and held by Crown. The remarks section states: “Designation (of Counsel) to be filed”. On June 16, 2015 Mr. Ali and Mr. Mercier are not present. The matters are adjourned to June 17, 2015. The remarks section states “(Crown) to contact Louis Mercier”. On June 17, 2015 Mr. Ali is not present. It appears Mr. Mercier was also not present. The matters were adjourned by the court to June 22, 2015 to be spoken to. The remarks section states: “Crown couldn’t get in touch w/ legal counsel.” On June 22, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on July 21, 2015. On July 21, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on August 18, 2015. On August 18, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on September 22, 2015. The remarks sections states: “(Form) R1 filed”. On September 22, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on October 13, 2015. On October 13, 2015 Mr. Mercier appears as defence counsel. The matters are adjourned for plea to November 3, 2015. On November 3, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. Accused waives reading of election and elects trial by Judge without Jury. The matters are adjourned to January 20, 2016 for case management. The remarks section states: “Preliminary hearing dates set to April 4, 2016 #10 at 9:30 a.m.” On January 20, 2016 Case Management conference is to take place regarding all charges. The Crown is not present. Mr. Mercier appears as defence counsel. The matters are adjourned to February 3, 2016. On February 3, 2016 The Case Management conference takes place on all charges. Case Management adjourned to March 11, 2016. The Court brings to the attention of both counsel that most of the charges are within the absolute jurisdiction of the Provincial Court. On March 11, 2016 The Case Management conference continues on all charges. Case Management adjourned to March 16, 2016. On March 16, 2016 The Case Management conference continues on all charges. Defence re- elects to trial by Provincial Court Judge for all charges. The Charter application is adjourned to April 4, 2016. The preliminary hearing/ trial dates scheduled for April 4, are 2016 vacated. On April 4, 2016 The Charter application is heard. The trial is scheduled for September 12 15, 2016. [8] On April 4, 2016 Rachel Casey and Mr. Ali testified on the Charter voir dire. The Evidence of Rachel Casey [9] Rachel Casey does reception work for Mr. Mercier. On March 7, 2016 she swore an affidavit respecting this matter she also testified. Her evidence reveals Mr. Mercier has been endeavouring to set hearing date for Mr. Ali since February 6, 2015. [10] According to Ms. Casey, Mr. Mercier wrote to counsel for the Crown, Mr. Brúlé, on February 6, 2015 regarding seven of the eight Informations pertaining to Mr. Ali and enclosed Form R-1 to be completed by Crown Counsel. Form R-1 is entitled “Hearing Date Required, Accused Represented by Counsel”. Counsel for the defence and Crown are to complete Form R-1 by providing written information in various portions of the form. These portions include: elections, type of hearing required, number of witnesses which will testify, estimate of time required for the hearing and six matters pertaining to hearing readiness. Once the form R-1 is completed by counsel for the defence and the Crown it is submitted to Ms. Miller, the Case Manager at the Provincial Court in Regina, who will assign date for the hearing. Mr. Mercier completed his portion of Form R-1. He expected the hearing to take one full day. [11] Mr. Mercier wrote to counsel for the Crown, Mr. Brûlé second time on August 4, 2015 and third time on September 22, 2015. On each occasion he once again he enclosed the Form R-1 which he had completed and requested Mr. Brule to execute the form and forward it to Ms. Miller. Mr. Mercier sent an e-mail correspondence to Mr. Brûlé on October 6, 2015. Once again he enclosed the Form R-1 which he completed and asked that Mr. Brûlé complete the form and submit it to Ms. Miller. [12] Mr. Malone wrote to Mr. Mercier on October 16, 2015. He advised Mr. Mercier that his office had been assigned the prosecution of Information 3797838 (drug charge) against Mr. Ali. Mr. Malone asked Mr. Mercier to advise whether he intended to set the drug charge as part of the preliminary inquiry. [13] Mr. Mercier wrote to Mr. Malone on October 23, 2015. He enclosed form R-1 which he completed in relation to Informations 43212229 and 37397838 (drug charges) and requested Mr. Malone review and execute form R-1. [14] Mr. Mercier sent an email correspondence to Mr Brûlé on October 23, 2015. He enclosed revised form R-1 dealing only with provincial charges. The Evidence of Said Ali [15] Said Ali is 56 years old. He resides in Calgary, Alberta where he is part of the Somalian community. Mr. Ali has been dealing with the majority of the charges before the court since June 2012. Since June 16, 2012 he has phoned the Regina Police Service every Saturday. He has also been to Regina three times. He is worried his case won’t be finished. He says he has been waiting 45 months and this has effected his health. He has been diabetic since 2012. He testified he has to go to the hospital frequently. [16] Mr. Ali has had lawyers acting for him on these charges. Initially, Mr. Robinson obtained his interim release. His second lawyer was Mr. Brad Tilling who was later suspended from the practice of law and could no longer represent him. When Mr. Tilling was representing him, Mr. Ali testified that he did not tell Mr. Tilling to set trial date. He left that up to Mr. Tilling. He has instructed his third lawyer, Mr. Mercier to set trial date. Mr. Ali believes that people in his community are laughing at him because his criminal charges are still before the courts. He finds the criminal charges against him to be shameful and he has tried to hide these charges from his children and the Somalian community. [17] Section 11(b) of the Charter states as follows: Any person charged with an offence has the right to be tried within reasonable time. [18] The purpose of section 11(b) was explained by Mr. Justice Sopinka in Morin, [1992] SCR 771, 1992 CanLII 89 (SCC), 71 CCC (3d) [Morin] at paragraphs 26 to 30 where he stated: 26. The primary purpose of s. 11(b) is the protection of the individual rights of accused. secondary interest of society as whole has, however, been recognized by this Court. will address each of these interests and their interaction. 27. The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to fair trial. 28. The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. 29. The secondary societal interest is most obvious when it parallels that of the accused. Society as whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 1983 CanLII 1873 (ON CA), 36 C.R. (3d) 73 (Ont. C.A.): ""Trials held within reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as whole and, indeed, to the ultimate benefit of the accused..."" (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused. 30. There is, as well, societal interest that is by its very nature adverse to the interests of the accused. [page787] In Conway [1989 CanLII 66 (SCC), [1989] S.C.R. 1659], majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to ""a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law"" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [19] Justice Sopinka then went on to outline legal frame work which the court should follow when considering these issues of an individual's s. 11(b) Charter rights as well as society's interests in protecting its citizens and ultimately law enforcement. The legal framework applicable to this consideration was described in detail by Caldwell J.A. in Wilson, [Wilson] 2013 SKCA 128 (CanLII), 427 Sask 63: ... [T]he legal framework for considering an allegation of unreasonable delay in violation of s. 11(b) of the Charter, ... was set out by Sopinka J. in R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.R. 771 at pp. 787-788, and affirmed in R. v. Godin, 2009 SCC 26 (CanLII), [2009] S.C.R. 3, R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] S.C.R. 45, R. v. Collins; R. v. Pelfrey, 1995 CanLII 114 (SCC), [1995] S.C.R. 1104, and others (see also R. v. Richards, 2012 SKCA 120 (CanLII), [2013] W.W.R. 637, R. v. Pidskalny, 2013 SKCA 74 (CanLII), 299 C.C.C. (3d) 396, and R. v. Walker, 2013 SKCA 95 (CanLII)). The R. v. Morin factors are: (a) The length of the delay This is threshold issue. The question is whether the overall length of time between arrest and trial is prima facie sufficient to trigger Charter scrutiny (R. v. Morin, at p. 789; and R. v. MacDougall, at para. 43). (b) The waiver of time periods Periods of delay which have been voluntarily waived by an accused who has full knowledge of the consequences of waiver are factored out of the overall length of delay under the s. 11(b) analysis (R. v. Morin, at p. 790; and R. v. Richards, at para. 25; see also: R. v. Richard, 1996 CanLII 185 (SCC), [1996] S.C.R. 525, at para. 22). (c) The reasons for the delay, including: (i) the inherent time requirements of the case, such as the time involved with processing the charges, retaining counsel, pre-trial procedures (bail applications, etc.), pre-trial conferences, police administrative work, Crown disclosure, counsel preparation, and, in some cases, preliminary inquiry hearing, which do not count against the Crown or the accused (R. v. MacDougall, at para. 44; and R. v. Richards, at para. 26); (ii) the actions of the accused, such as change of venue applications, changes of solicitor, challenges to search warrants, and adjournments (not amounting to waiver) which are directly attributable to the defence and which are voluntarily undertaken and, therefore, do not count toward the unreasonableness of the overall delay (R. v. MacDougall, at para. 48; and R. v. Morin, at pp. 793-794); (iii) actions of the Crown, such as disclosure delays, change of venue applications, and adjournments which are directly attributable to the Crown and, therefore, count against the Crown in the sense that they ""cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable"" (R. v. MacDougall, at paras. 49-52; and R. v. Morin, at p. 794); and (iv) limits on institutional resources, meaning delays arising due to unavailability of funding, personnel or facilities for the proper administration of criminal justice, which counts against the Crown if the institutional or systemic delay is intolerable or is itself unreasonable (R. v. MacDougall, at paras. 45 and 61; R. v. Morin, at pp. 794-800; and R. v. Richards, at para. 37). For matters in provincial courts, as base guideline, eight to ten months of institutional delay is considered tolerable (R. v. Morin, at p. 799). (d) Other reasons for delay, which may include actions of the trial court itself (R Morin, at p. 800, in reference to the circumstances in Rahey). (e) Prejudice to the accused, which may be inferred from the length of the delay itself or proven on evidence, but which may also be negated by the actions or conduct of the accused (R Morin, at pp. 801-803). 27. The accused bears the burden of proof in establishing breach of s. 11(b) of the Charter on the basis of the R. v. Morin factors (R. v. Morin, at pp. 787-788). That is, [the accused must] prove, on balance of probabilities, that in his case the particular combination of delay attributable to the Crown and any intolerable institutional delay had so unreasonably delayed the criminal justice process beyond its inherent time requirements that he had suffered prejudices resulting from that delay (but not the charges) which, together with his liberty and security of the person interests and his right to make full answer and defence, outweighed the interests of the Crown and society in seeing that justice is done fairly, quickly and efficiently (R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.R. 1199, at pp. 1219-1223). Application of the Morin Factors (a) The Length of the Delay [20] In this case the overall length of time between arrest on June 8, 2012 and September 12 -15, 2016, the dates scheduled for trial, is approximately 51 months. I am of the view that such a period of time is sufficiently long so as to warrant an inquiry into the reasonableness of the delay. (b) Waiver of time periods [21] The court endorsements reveal that Mr. Ali specifically and voluntarily waived three periods of delay in this case: (1) month and 26 days from June 27, 2013 to August 22, 2013 and (2) month from March 14, 2014 to April 15, 2014 and (3) month and 27 days from April 20, 2015 to June 16, 2015. In Wilson at paragraph 30 Mr. Justice Caldwell indicated that “Waived time is deducted from the overall total delay and not counted at all (R Morin, at p. 790; and Richards, at para. 25).” Deducting months and 23 days from 51 months leaves approximately 46 months and one week of delay to be considered. (c) The Reasons for the Delay (i) Inherent time requirements of the case [22] Inherent delay relates to the time necessarily required to move case forward. [23] In this case find the following periods of time are attributed to inherent delay: June to September 20, 2012 Mr. Ali is arrested, charged and granted bail. Mr. Robinson (105 days) obtains disclosure during this time and is familiarizing himself with the file. October 23 to December 6, 2012 Mr. Tilling first appears as legal counsel for Mr. Ali. New (45 days) defence counsel required time to familiarize themselves with the file. May 30 to June 27, 2013 The matters are adjourned by consent from May 30 to June 27, (29 days) 2013. The remarks section states: “Needs to review material”. As am unable to determine whether the Crown or Mr. Tilling needed time to review material, am prepared to attribute this delay to inherent delay. October to November 5, 2013 Mr. Tilling in discussion with the Crown. As am unable to (36 days determine the nature of the discussion, am prepared to attribute this delay to inherent delay. February to March 14, 2014 New counsel required. Mr. Tilling is granted leave to withdraw (39 days) as counsel on February 11, 2014. The matter is adjourned to March 14, 2014 when Mr. Mercier appears as counsel for Mr. Ali. am unable to attribute this delay to the accused, as it appears Mr. Tilling was suspended from the practice of law. Hence, attribute the delay of 39 days to inherent delay. Nov. 13, 2014 to Jan. 19, 2015 The matters are adjourned by consent, at the request of (68 days) Mr. Mercier to be spoken to and for review of disclosure to January 19, 2015. Mr. Mercier as new defence counsel required time to familiarize himself with the file. Feb. 18, 2015 to Mar. 16, 2015. Mr. Ali is charged with new offence of breaching condition (27 days) of recognizance as set out in Information 90001522. Mr. Mercier familiarizes himself with new charge. In addition, Crown is given additional time to respond to Mr. Ali’s request for trial (Form R-1) previously provided to the Crown on or about February 6, 2015. 105 +45 +29 +36 39+68 +27 349 days. Therefore, find that the total time attributed to inherent delay is 349 days which is approximately 11.5 months. (ii) The actions of the accused September 20 to October 23, 2012 Change of Counsel. Mr. Robinson is granted leave to withdraw (34 days) on September 20, 2012. The remarks on the endorsement of September 20, 2012 state Mr. Tilling to represent Ali.” The matters are adjourned to October 23, 2012. take this endore- ment to mean that Mr. Ali is in the process of retaining new legal counsel, Mr. Tilling. December 6, 2012 to Jan. 16, 2013 Matters are adjourned to be spoken to. Elapsed time is 42 days. (21 days) The endorsement does not indicate whether the Crown or Defence requested the adjournment. As result will attribute half the time (21 days) to each. Jan. 16, 2013 to Feb. 13, 2013 Matters are adjourned by consent, at the request of defence. (29 days) February 13 to March 13, 2013 Matters are adjourned by consent to be spoken to. The endorse- (14 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (14 days) to each. March 13 to May 1, 2013 Matters are adjourned by consent, at the request of the defence. (50 days) May to May 30, 2013 Matters are adjourned by consent to be spoken to. The endorse- (15 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. August 22, 2013 to October 1, 2013 Matters are adjourned by consent to be spoken to. The endorse- (20 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (20 days) to each. November 5, 2013 to Feb. 4, 2014 Matters are adjourned by consent to be spoken to. The endorse- (46 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (46 days) to each. April 15 to May 14, 2014 Matters are adjourned by consent to be spoken to. The endorse- (15days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. May 14 to November 13, 2014 Matters are adjourned by consent, at the request of defence. (184 days) January 19 to February 18, 2015 Matters are adjourned by consent, at the request of defence. (31 days) June 16 to June 22, 2015 Matters are adjourned. Mr. Ali and Mr. Mercier did not attend (7 days) court. 34 21 29 +14 50 +15 184 31 467 Therefore, find the total time attributed to the actions of the accused is 467days, which is approximately 15.5 months. (iii) The actions of the Crown December 6, 2012 to Jan. 16, 2013 Matters are adjourned to be spoken to. The endorsement does (21 days) not indicate whether the Crown or Defence requested the adjournment. As result will attribute half the time (21 days) to each. February 13 to March 13, 2013 Matters are adjourned by consent to be spoken to. The endorse- (14 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (14 days) to each. May to May 30, 2013 Matters are adjourned by consent to be spoken to. The endorse- 15 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. August 22, 2013 to October 1, 2013 Matters are adjourned by consent to be spoken to. The endorse- (20 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (20 days) to each. November 5/13 to Feb. 4/14 Matters are adjourned by consent to be spoken to. The endorse- (46 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (30 days) to each. April 15 to May 14, 2014 Matters are adjourned by consent to be spoken to. The endorse- (15 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (46 days) to each. March 16 to April 20, 2015 attribute this delay to the Crown on the basis that it had been in (36 days) possession of the request for trial, Form R-1 from Mr. Ali since February 6, 2015 and would had time to consider and respond to Mr. Mercier by March 16, 2015. While am aware that Mr. Ali was charged with other individuals, in the absence of any evidence from the provincial Crown at the voir dire for its reason in delaying responding to/completing the form R-1. attribute the delay from March 16 to April 20, 2015 to the Crown. June 22 to Nov. 3, 2015 attribute this period of delay to the Provincial Crown on the (135 days) basis that it had been in possession of the first request for trial, Form R-1 since February 6, 2016 and had time to consider and respond to Mr. Mercier during this period of time. In addition, the affidavit of Rachel Casey reveals that Mr. Mercier forwarded the same R-1 to Crown prosecutor, Mr. Dana Brûlé three more times: August 4, September 22 and October 6, 2015. In October 2015 the provincial Crown assigned conduct of the drug charges set out in Information 37397838 to the federal Crown, represented by Mr. Malone. Mr. Malone advised Mr. Mercier of this by letter dated October 16, 2015. Seven days later on October 23, 2015 Mr. Mercier forwarded form -1 to Mr. Malone respecting the drug charges. Mr. Malone completed the R-1 respecting the drug charges and forwarded the form to Case Manager, Ms. Miller on October 28, 2015. On November 3, 2015 the defence made it’s formal election in Court and preliminary hearing was set for April 4-6, 2016. It appears the provincial Crown, Mr. Brule completed the Form R-1 on or about November 3, 2015. In turn Ms. Miller completed court form entitled “Scheduling Notice” on Information 37397839, 37397840, 37397879 (Provincial Crown charges) and the drug charges (Federal Crown charges) set out in Information 37397838 on November 3, 2015. The Scheduling Notice indicates these were scheduled for preliminary inquiry on April 4-6, 2016 in Court Room #10. The Scheduling Notice was provided to the Court on November 3, 2015. Provincial and federal Crowns and Mr. Mercier appeared in Court Room #1 on November 3, 2015. On behalf of Mr. Ali, Mr. Mercier elected to be tried by Q.B. Judge without Jury and preliminary hearing dates were set for April 4-6, 2016. The matter was also adjourned for case management for January 20, 2016. 21 14 15 +20 46 +15 36 135 302 days Therefore, find the total time attributed to the actions of the Crown is 302 days, which is approximately 10 months. (iv) Institutional Delay November 3, 2015 to September 12-15, 2016. [24] In Morin the Court noted at para. 47 that institutional delay “. Is the period that starts to run when the parties are ready for trial but the system can not accommodate them. Initially the parties were ready for preliminary hearing on the indictable offences on November 3, 2015. The dates available to the parties for the preliminary hearing was five months later on April 4, 2016. On March 16, 2016 the defence re-elected for Mr. Ali to be tried before Provincial Court Judge on all the charges. The preliminary hearing did not proceed on April 4, 2016. Instead this Charter application was heard. The trial has been adjourned for approximately months and one week from April 4, 2016 to September 12 -15, 2016. In this case find that the total institutional delay is approximately 10 months and one week. [25] In Morin the court held that period of eight to ten months delay in Provincial Court would be reasonable institutional delay. This case involves 56 charges. The trial will be of moderate complexity given the type and quantity of charges. find the institutional delay of period of ten months and one week is tolerable and within the guidelines established in Morin. (d) Other Reasons for delay [26] There is no evidence in this case that other reasons have added to the delay. (e) Prejudice to the Accused [27] In Pidskalny 2013 SKCA 74 (CanLII), 299 CCC (3d) 396 Caldwell J.A. described the proper approach to the consideration of prejudice at para. 41 In R. v. Morin, at p. 801, ... Sopinka J. said that s. 11(b) of the Charter seeks to protect an accused from ""[i]mpairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to conclusion"". The final step in the inquiry into the circumstances of delay is to assess the prejudice that that delay has caused to these interests and, thus, to the accused. Prejudice may be actual as demonstrated through evidence, inferred from the delay itself or combination of both (R. v. Godin, at paras. 29-38; and R. v. Morin, at pp. 801-03). The longer the delay, the stronger the inference of prejudice. In addition, inferred prejudice may be enough, on balance, to establish breach of s. 11(b) (R. v. Godin, at paras. 37-38). The court must keep it squarely in mind, however, that the prejudice in question must be result of the delay and not of the charges (R. v. Rahey, 1987 CanLII 52 (SCC), [1987] S.C.R. 588, at p. 624). [28] In this case the delay to trial is long. Fifty one months will have come and gone from June 5, 2012 to the September 12 15, 2016 when these matters are to go to trial. Hence, there is strong inference of prejudice to Mr. Ali given this delay. [29] must also determine whether Mr. Ali has established that he has suffered actual prejudice as result of the delay in this case. [30] Mr. Ali was released on recognizance shortly after he was arrested and charged on the majority of the charges before the court. The release conditions are moderately restrictive. He was required to reside at his residence in Calgary, Alberta. He was to remain outside the Province of Saskatchewan unless he had an appointment with his lawyer or attended court. Mr. Ali could not contact any co-accused. Since June 16, 2012 he has been required to make weekly telephone contact with the Regina Police Service on Saturdays. [31] In the 46 months these charges have been before the court, Mr. Ali has made four personal appearances in court being: June and 11, 2012, August 19, 2014 and April 4, 2016. Otherwise, he has remained in Calgary which he considers his home. His lawyers have appeared in court on his behalf which has made things less onerous on Mr. Ali. In addition there was no evidence that Mr. Ali's right to defend the case has been compromised by lost or destroyed evidence, unavailable witnesses, or other factors due to the passage of time. [32] However, find the delay has resulted in some actual prejudice to Mr. Ali. The recognizance has placed some restrictions on Mr. Ali. He is not free to come and go as he pleases. He must reside at his home in Calgary. As result he has been unable to visit his brother in Ethiopia who is very sick. [33] Mr. Ali testified the delay has had an effect on his health. He testified he has been diabetic since 2012 and has had to go to the hospital frequently. He says he does not need the added stress of these outstanding charges. have no reason to disbelieve Mr. Ali on this point. Mr. Ali also believes that people in the Somalian community in Calgary of which he is part, are laughing at him because his criminal charges are still before the courts. This may or may not be true. However, it does point to the stress Mr. Ali has faced awaiting trial. [34] While have found some of Mr. Ali’s prejudice is real, it must also be considered in light of the fact that good portion of the delay in this case has been attributable to his actions (15.5 months). In McCance 2013, MBPC 14 Judge Kalmakoff (as he then was) held that prejudice will be given less consideration when it results from delay attributable to the actions of the accused. The court stated as follows at paragraph 39: Delay that is caused by the accused cannot be used as evidence of prejudice: R. v. Lahiry, supra, at para. 77-79. Failing to indicate preference for earlier trial dates and making no attempt to expedite the proceedings may lead to the inference that the accused is not particularly concerned with, or prejudiced by, the delay: R. v. Barkman, supra, at para 37-43; R. v. Findlater, 2012 ONCA 685 (CanLII); R. v. Sharma, 1992 CanLII 90 (SCC), [1992] S.C.R. 814. [35] During cross- examination Mr. Ali admitted that he never instructed Mr. Tilling to get trial date. Mr. Ali testified that he left such matters to Mr. Tilling. Unfortunately such confidence in Mr. Tilling seems to have been misplaced, given that during the 16 months he represented Mr. Ali he did not set either preliminary hearing or trial date. Mr. Ali also testified on cross-examination that he instructed his third lawyer, Mr. Mercier to get trial date. Regrettably Mr. Mercier’s efforts to get preliminary hearing date did not begin until February, 2015, some 11 months after he began representing Mr. Ali in March 2014. [36] Overall, I am of the view that Mr. Ali has not been particularly concerned with or prejudiced bythe delay. That is not to say the Crown has made reasonable efforts to move the matters forward to trial. Regrettably, these matters have been adjourned far too many times with the consent of the Crown. Balancing the accused’s and society’s interests [37] When I take that into account, and balance the prejudice Mr. Ali has suffered with the reasons forthe delay and society’s interest in having these 56 charges resolved by a trial on the merits, I am not satisfied on a balance of probabilities that the overall delay in this case is unreasonable. The trial should proceed. [38] am not satisfied that there has been violation of Mr. Ali’s rights under section 11(b). Theapplication for a stay of proceedings is dismissed. Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide./ca/legal/search/runRemoteLink.do?A=0.2596168711114769&bct=A&service=citation&risb=21_T22795530276&langcountry=CA&linkInfo=F%23CA%23MBQB%23sel1%252004%25year%252004%25decisiondate%252004%25onum%25252%25 1) Information #37397879 (co-accused: Said Ali and Osman Hassan Mohamed): On or about June 5, 2012, at Regina, SK did: #1 Have in their possession property, to wit: $1,500.00 Canadian Currency not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 380 of the Criminal Code, contrary to s. 354(1)(a) and 355(b) of the Criminal Code. (Hereafter, it can be referred to as the Code). #2 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque, for $4,500.00 payable to Ryan Pilkington, and bearing the name of Western Lottery Corporation, as if it were genuine, contrary to s. 368(1)(a) of the Code. #3 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on Royal Bank of Canada, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #4 Did by deceit, falsehood or other fraudulent means defraud Royal Bank of Canada of $1,500.00 cash, of value not exceeding five thousand dollars, contrary to s. 380(1)(b) of the Code June 4, 2012: #5 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque in the amount of $2,859.17, payable to Ryan Pilkington and bearing the name of SGI Canada, as if it were genuine, contrary to s. 368(1)(a) of the Code. #6 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on TD Canada Trust, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #7 Did by deceit, falsehood or other fraudulent means attempt to defraud TD Canada Trust of $2,859.17 of value not exceeding five thousand dollars, contrary to s. 380(1)(b) of the Code. #8 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque in the amount of $3,869.37, payable to Ryan Pilkington and bearing the name of Canadian Automobile Association, as if it were genuine, contrary to s. 368(1)(a) of the Code. #9 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on Royal Bank of Canada, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #10 By deceit, falsehood or other fraudulent means defraud Royal Bank of Canada of $1,000.00 of value not exceeding five thousand dollars, contrary to s. 380(a)(b) of the Code. #11 Have in their possession property, to wit: $1,000.00 Canadian Currency not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 380 of the Code, contrary to s. 354(1)(a) and 355(b) of the Code. 2) Information #37397839 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK did: #1 Conspire together to commit the indictable offence of fraud by printing forged cheques, contrary to s. 465(1)(c) of the Code. #2 Conspire together and with Adam Duthie to commit the indictable offence of fraud by cashing cheque for $3,869.17 at Scotia Bank, contrary to s. 465(1)(c) of the Code. #3 Conspire together and with Adam Duthie to commit the indictable offence of fraud by cashing cheque for $3,869.17 at Canadian Imperial Bank of Commerce, contrary to s. 465(1)(c) of the Code. #4 Conspire together and with Jamie Lee Hubbard, to commit the indictable offence of fraud by cashing cheque for $3,962.17 at Scotia Bank 3835 Sherwood Drive, contrary to s. 465(1)(c) of the Code. #5 Conspire together and with Jamie Lee Hubbard, to commit the indictable offence of fraud by cashing cheque for $3,962.17 at Scotia Bank 4110 Albert Street, contrary to s. 465(1)(c) of the Code. #6 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #7 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank 3835 Sherwood Drive of money, the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #8 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank 4110 Albert Street, of money, the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #9 Did by deceit, falsehood or other fraudulent means attempt to defraud Canadian Imperial Bank of Commerce 2965 Gordon Road of money, the sum of $700.00, contrary to s. 380(1)(b) of the Code. #10 Have in their possession property, to wit: Canadian currency in the amount of $895.05, of value not exceeding five thousand dollars knowing that all or pat of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 354(1)(a) and 355 (b of the Code. #11 Knowingly use forged document, to wit, counterfeit cheque payable to Roland Bell in the amount of $3,869.17 on the account of Magna Foremeat Industries, cause Scotia Bank 3835 Sherwood Drive to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #12 Knowingly use forged document, to wit: counterfeit cheque payable to Alyssa Louison in the amount of $3,962.17 on the account of SGI Canada, cause Scotia Bank 3835 Sherwood Drive to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #13 Knowingly use forged document, to wit: counterfeit cheque payable to Alyssa Louison in the amount of $3,962.17 on the account of SGI Canada, cause Scotia Bank 4110 Albert Street to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #14 Knowingly use forged document, to wit: counterfeit cheque payable to Roland Bell in the amount of $3,869.17 on the account of Clearwater Welding and Fabricating at Canadian Imperial Bank of Commerce 2965 Gordon Road, to act upon as if it were genuine, contrary to s. 368(1)(a) of the Code. 3) Information #43212228 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Conspire together to commit the indictable offence of fraud by giving forged cheques to unknown individuals and counsel them to cash the cheques contrary to s. 465(1)(c) of the Code. #2 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #3 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #4 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #5 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #6 Did by deceit, falsehood or other fraudulent means attempt to defraud CIBC of the sum of $3,869.17, contrary to s. 380(1)(b) of the Cod.e #7 Did by deceit, falsehood or other fraudulent means attempt to defraud CIBC of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #8 Have in their possession property, to wit: Canadian currency in the amount of $896.05, of value not exceeding five thousand dollars knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 354(1)(a) and 355(b) of the Code. #9 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #10 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #11 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #12 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #13 Knowing that document, to wit, cheque was forged, cause CIBC to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #14 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #15 Fraudulently use stamp to wit: SGI Alberta Treasury, contrary to s. 376(1)(a) of the Code. 4) Information #43212229 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Unlawfully possess controlled substance, to wit: (Khat) cathinone, contrary to s. 4(1) of the CDSA 5) Information #37397838 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Unlawfully possess controlled substance, to wit: 50 grams of (Khat) cathinone, contrary to s. 4(1) of the CDSA. #2 Unlawfully possess controlled substance, to wit: 80.03 grams of (Khat) cathinone, contrary, to s. 4(1) of the CDSA. 6) Information #37397840 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Without lawful authority have in their possession counterfeit mark to wit: SGI Canada, contrary to s. 376(2)(b) of the Code. #2 Without lawful authority have in their possession counterfeit mark to wit: BC Employment Assistance, contrary to s. 376(2)(b) of the Cod.e. #3 Without lawful authority have in their possession counterfeit mark to wit: Alberta Minister of Finance, contrary to s. 376(2)(b) of the Code. #4 Cause Adam Duthie to deal with counterfeit cheque issued to Roland Bell written on account of Clearwater Welding and Fabricating in the amount of $3,869.17, contrary to s. 368(1)(b) of the Code. #5 Cause Adam Duthie to deal with counterfeit cheque issued to Roland Bell written on account of Magma Foremeat Industries in the amount of $3,869.17, contrary to s. 368(1)(b) of the Code. #6 Cause Jamie-Lee Hubbard to deal with counterfeit cheque issued to Alyssa Louison written on account of SGI Canada in the amount of $3,962.17, contrary to s. 368(1)(b) of the Code. #7 Cause Jamie-Lee Hubbard to deal with counterfeit cheque issued to Alyssa Louison written on account of SGI Canada in the amount of $3,962.17, contrary to s. 368(1)(b) of the Code. #8 Possess three counterfeit cheques in the vehicle with intent to commit an offence under s. 368(1)(b) of the Code, contrary to s. 368(1)(d) of the Code. #9 Possess sixty counterfeit cheques in their hotel room with intent to commit an offence under s. 368(1)(b) of the Code, contrary to s. 368(1)(d) of the Code. #10 Fraudulently personate by counselling Jamie-Lee Hubbard to use the name of Alyssa Louison for financial gain, contrary to s. 403(a) of the Code. #11 Fraudulently personate by counselling Adam Duthie to use the name of Rolland Bell for financial gain, contrary to s. 430(a) of the Code. 7) Information #44072591 (Said Ali): On or about June 11, 2012, at Regina, SK, did: #1 Being at large on his recognizance entered into before justice or judge and being bound to comply with condition thereof, to wit: not to contact or communicate directly or indirectly with Osman Mohamed, Faysal Hassan except through member of the law society of SK, fail without lawful excuse to comply with that condition, contrary s. 145(3) of the Code. 8) Information #90001522 (Said Abdi Ali): Between May 4, 2013 and May 11, 2013, at Regina, SK, did: #1 Being at large on his recognizance entered into before justice or judge and being bound to comply with condition thereof, to wit, report to the officer in charge by telephone front desk Regina City Police every Saturday between the hours of 9:00 a.m. to 4:00 p.m. commencing June 16, 2012, fail without lawful excuse to comply with that condition, contrary to s. 145(3) of the Code.","HELD: The application was dismissed. The court found that the 51 months between the charges and the scheduled trial was sufficiently long to warrant an inquiry into the reasonableness of the delay. As the accused had specifically and voluntarily waived almost five months of the delay, the court deducted that amount, leaving 46 months to be considered. The various types of delay were considered by the court: 11.5 for inherent delay; 15.5 months to be attributed to the actions of the accused; 10 months to be attributed to the Crown; and 10 months to institutional delay. The court found that the accused had not suffered prejudice and as most of the delay was attributable to adjournments sought on his behalf, the court found that the overall delay in this case was not unreasonable.",d_2016skpc75.txt
351,"1992 C.H. 80004 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GERALD ARTHUR CHABOT V. HER MAJESTY THE QUEEN HEARD: before the Honourable Justice F. B. William Kelly, Supreme Court of Nova Scotia, March 23, 1993. DECISION: March 23, 1993 RELEASED: July 6, 1993 COUNSEL: J. Scott D. Grant KELLY, J. (Orally) On the night of June 21, 1991, Corporal Matthews of the Dartmouth Police was conducting plain‑clothes surveillance of certain building in Dartmouth, Nova Scotia, as directed by his Police Chief who had based the instruction upon complaints that the place was operating as an ""after‑hours"" club. Surveillance had also been conducted by other persons prior to that time and the results were brought to the attention of Corporal Matthews. The essence of the observations were that number of people were entering and leaving the dub at late hours and were believed to be under the influence of alcohol. At about 11:40 p.m. on June 21, 1991, Corporal Matthews observed the accused Mr. Gerald Chabot and his wife enter these premises. About an hour and half later, at approximately 1:00 a.m. the following morning, Corporal Matthews noted the couple leaving the premises and Mr.Chabot driving off with his wife in their vehicle. Corporal Matthews then radioed two other police officers to stop the Chabot vehicle. He advised the court that it was his intention to seek information to be used in an attempt to obtain search warrant of the suspected after‑hours club for possible Liquor Control Act violations. Neither Corporal Matthews nor the two police officers who stopped Mr. Chabot observed the vehicle being driven in any irregular or improper manner. The two officers stopped the vehicle, and one of them noted strong smell of alcohol coming from Mr. Chabot's breath and his speech was somewhat slurred. Mr. Chabot was then taken to the police van and it was noticed that he was staggering and that his eyes were very red. Based on these observations, the constable arrested Mr. Chabot for impaired driving, read him the breathalyser demand, and gave him the usual Charter of Rights warning. Mr. Chabot was then taken to the police station where he eventually agreed to take the usual two breathalyser tests, which tests resulted in readings of 170 and 160 milligrams of alcohol in 100 millilitres of blood. At trial, Mr. Chabot was convicted by Judge Fran Potts of the breathalyser charge contrary to s. 253 (b) of the Criminal Code and was acquitted on s. 253 (a) charge for impaired driving. Included in Mr. Chabot's evidence was his statement that he had had two drinks of rum at another location prior to going to the alleged after‑hours place, and he stated that he had one beer at that location. He also advised the court that he had taken some mints and cough drops while at the police station and before he took the two breathalyser tests. The decision of Judge Potts has been appealed on four grounds, and it is submitted by counsel for the appellant that the four grounds can be encompassed into two issues as follows: (1) Was the arrest of the accused an arbitrary arrest and thus a violation of his rights under s. 9 of the Charter? If so, should the evidence thereby obtained as result of the Charier contravention be excluded? (2) Was the evidence of the amount the accused had to drink ‑ and the effect of the drink on the accused ‑ sufficient to constitute ""evidence to the contrary"" to rebut the presumption of s. 258 of the Criminal Code? If so, was it sufficient to result in an acquittal of the accused? Dealing first with the issue of arbitrary arrest, the ground of appeal in this regard states: That the learned Provincial Court Judge erred in law by admitting evidence obtained by the police as result of the police violating the defendants Charter of Rights by arbitrarily detaining him contrary to Section of the Charter when the police arrested him with view to questioning him in connection with an after hours club that was under investigation. It is clear that the judge found that Mr. Chabot was stopped as furtherance of the investigation of the police into the after‑hours club. The thrust of the appeal under this ground is that detention for the purpose of an investigation constitutes breach that is an arbitrary detention, and thus constitutes breach under s. of the Charter. Section states as follows: Everyone has the right not to be arbitrarily detained or imprisoned. There is no argument in this matter that Mr. Chabot was detained; ""detained"" in the sense of the Charter section. What is disputed is whether or not the detention was arbitrary. As authority for the submission that detention of this nature, that is detention to further an investigation, is contravention of the Charter, counsel for the appellant has referred me to R. Duguay, Murphy and Sevigny, [1989) 1989 CanLII 110 (SCC), S.C.R. 93, 56 D.L.R. (4th) 46, 46 C.C.C. (3d) (S.C.C.). This is decision of the Supreme Court of Canada where the majority found that the Ontario Court of Appeal had applied the proper principles of law to the facts of the particular case in excluding evidence. MacKinnon, A.C.J.O. speaking for the majority at the appeal level [(1985) 1985 CanLII 112 (ON CA), 18 C.C.C. (3d) 289,] stated at p. 296: In my view, on the facts as found by the trial judge, the arrest or detention was arbitrary, being for quite an Improper purpose namely, to assist in the investigation. This conclusion does not minimize the significance or importance of an experienced detective's 'hunch' or intuition. Such 'hunch' must, however, have some reasonable basis. It cannot be used as defence and explanation, without examination, for irrational and high‑handed actions. In that particular case, the majority of the Court of Appeal found that the arrest had not been made in good faith and was deliberate breach of the Charter made for an illegal purpose. They determined that the court could not turn blind eye to that conduct, for to do so would be condonation of police misconduct. What Duguay does stress is that detention based on reasonable grounds may not and probably would not contravene the Charter right of an accused. That is, if it can be established that the police officers in question had reasonable and probable grounds for their detention. In this regard, Judge Potts stated at p. 57 of the transcript of evidence as follows: Corporal Matthews then instructed other members of the Dartmouth City police who were operating police van to stop the defendant's vehicle. His instruction being that they were to stop the vehicle to check to see if there was any alcohol Involved with respect to the driver of the vehicle. Clearly from. his evidence the intention being that if the vehicle were stopped and it were found that the driver indeed was involved in the consumption of alcohol, they would then continue on to determine whether or not they might get evidence from Mr. Chabot with respect to this suspected after hours club. Certainly it was not random stop in the sense that not just any vehicle was being picked out to be stopped. The vehicle driven by the defendant was picked out particularly because the vehicle was observed at this particular residence; the defendant was observed to have entered this particular residence and to have remained there for some period of time; and he was observed leaving the residence and getting into the ‑‑ to his vehicle and indeed he was seen driving away from this particular area. And further on pp. 58‑59: Was there any reason to believe that Mr. Chabot had committed any offence? Certainly the Criminal Code sets out that peace officer may make demand for person to submit to an A.L.E.R.T. if he reasonably suspects that that person has alcohol in his body. On the evidence before me is there any evidence to from which the police could have reasonably suspected that Mr. Chabot had alcohol in his body? It seems to me under the circumstances of this particular case the observations that the police made with respect to this particular residence ‑‑ number of individuals who went to the residence, came out of the residence; number of individuals who were observed obviously to have been drinking as they emerged from that residence it seems to me under those circumstances the police would have had reason to suspect that the defendant had alcohol in his body. And certainly according‑to the evidence of Corporal Matthews that was the reason that he was having the vehicle stopped to determine if in fact the defendant had been involved in the consumption of alcohol albeit that his intention went further in the sense that were he successful in determining that the defendant had alcohol in his body he intended to further continue the investigation of the after hours club by questioning Mr. Chabot. Under the circumstances, therefore, before me find that the police had reason to suspect that the defendant had alcohol in his body. They therefore had grounds to stop the vehicle. Having grounds to stop the vehicle obviously they then proceeded after having stopped him to make certain observations from which they concluded that indeed the defendant's ability to operate motor vehicle was impaired by alcohol and under the circumstances would find that the defence has not established that the defendant's rights pursuant to Section have been infringed or denied and, therefore, there is no need to go onto further consideration with respect to Section 24(2). Counsel have assisted me by reference to various authorities regarding the nature of an arbitrary detention, and in particular to R. v. Hufsky (1988), 1988 CanLII 72 (SCC), 40 C.C.C. (3d) 398 (S.C.C.), and R. v. Ladouceur (1990), 1990 CanLII 108 (SCC), 77 C.R. (3d) 110 (SCC). Both decisions deal with the matter of arbitrary detention and random detention of an accused. In Hufsky at p. 407 the court discussed when the exercise of discretion of police officer becomes arbitrary. At that page, Le Dain, J., speaking for the court, stated that: discretion is arbitrary if there are no criteria, express or implied, which govern its exercise. The circumstances before Judge Potts were not dissimilar to the circumstances in R. v. Wilson (1990), 1990 CanLII 109 (SCC), 77 C.R. (3d) 137 (S.C.C.), where Cory, J., delivering the decision of the majority, stated at p. 142: Second, in this case the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of rural community. In case such as this, where the police offer grounds for stopping motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. of the Charter. In the fact situation before me, it is clear that the police officers involved were not acting arbitrarily or in a random fashion. They, in fact, had advanced a reasonable basis and had an articulable cause for stopping the vehicle in question, and I find that Judge Potts was not in error in law or in her finding of facts in her decision in that regard. The second ground deals with whether the evidence of the amount of alcohol consumed and the extent that it might have constituted ""evidence to the contrary"" to rebut s. 258 of the Criminal Code. This issue encompasses the final three grounds of the appeal which state: That the learned Provincial Court Judge erred in law by failing to instruct herself correctly as to the admissibility or weight of evidence given by the accused as to the amount of alcohol he consumed over the relevant period. That the learned Provincial Court Judge erred in law by failing to give effect to the opinion of the crown expert that the amount consumed by the accused would not have given the readings which appeared on the certificate and therefore constituted evidence to the contrary. That the learned Provincial Court Judge erred in law by failing to instruct herself with respect to the burden on the Crown. In this respect, the defence submits that the evidence advanced by the accused as to the amount that he had to drink was proven through the Crown expert to be such that it should result in reading significantly less than the alcohol concentration forbidden under s. 258 of the Code. further submission is that there was evidence that the consumption of certain mints and cough drops might give higher reading than was caused by the presence of alcohol. Judge Potts considered the evidence to this effect and concluded at p. 119 of the transcript: The difficulty then have is clearing (sic) there is evidence from the defendant with respect to his belief at least as to how much alcohol he had to consume and clearly there is evidence from the Crown expert acknowledging that based on the defendant's own evidence with respect to what alcohol he had to consume that the ‑‑ that particular consumption would not support the readings which are contained on the Certificate of Analysis. As indicated earlier though the evidence of the expert is only as meaningful only becomes meaningful if it is based on reliable and admissible evidence. Certainly with respect to Mr. Chabot it is clear that with the exception of his evidence with respect to the consumption of the beer at this address on Chappell Street [the place under observation] there is essentially in my view no admissible evidence with respect to the other consumption that he spoke of. Indeed his evidence on the consumption of this rum was based according to his evidence on his conversations with his wife and what she told him with respect to how that alcohol was served clearly that is evidence which is hearsay evidence. And hearsay evidence being evidence or being information supplied by third party and evidence which the defence or the Crown in particular circumstances seeks to adduce for the proof of it. Certainly there are lots of circumstances in which both‑ Crown and defence are entitled to present evidence of what third party has said provided that it is not being introduced to prove the truth. In this particular circumstance if it is not being introduced for the truth of it, then it seems to me it has no meaning whatsoever because if it's not being used for the truth of it, then it has no meaning in terms of the subsequent opinion of the expert. Under the circumstances, therefore, it seems to me that cannot rely even as much as acknowledge the evidence of Miss Baughan [the expert] that based on the defendant's testimony as to what he had consumed would not square with the results of the breathalyser that opinion has no meaning in my view where it is based on the evidence of the defendant, evidence which in my view is not admissible. The submission of the appellant is that there was some admissible evidence supporting the appellant's submission regarding consumption, other than the evidence of his wife, and that was statement made at page 66 of the transcript by the appellant himself in response to question as to whether he was relying on what his wife told him and is as follows: No. I'm relying on what know and what she told me, yes. We were together. I'd have no reason to tell you different. Essentially, based on that response, the appellant contends that there was some evidence as to the amount the appellant had drank on the night in question. Very briefly, his evidence was that he had two drinks and that he believed from what his wife had told him those two drinks were poured from small bottles, and based on either his own estimate or estimates from his wife, those bottles would contain one and one‑half ounces of rum each. In R. v. Kays (1987), 62 C.R. (3d) 193 (S.C.,A.D.), Chipman, J.A., delivering the decision of the court, reviewed authorities on the consideration of ""evidence to the contrary' to rebut the presumption of the breathalyser offence. After reviewing these authorities at pp. 197‑202, he concluded at pp. 202‑203: On the basis of the foregoing authority am of the opinion that ""evidence to the contrary"" within the meaning of s. 241(1)(c) [now s. 258(1)(c)] of the Criminal Code must be evidence which raises reasonable doubt that the accused's blood‑alcohol concentration, at the time of the alleged offence, exceeded 80 mg of alcohol in 100 ml of blood. It is not enough that the evidence offered merely shows that the accused's blood‑alcohol concentration may have been either higher or lower than the readings set out in the certificate. The proposition enunciated in Crosthwait, supra, that ""evidence to the contrary"" must raise reasonable doubt that the accused's blood‑alcohol concentration exceed the permissible level has been accepted and applied in number of instances. The difficulty with the evidence tendered in the case at bar is that it does not tend to show that the respondent's blood‑alcohol level was within the permitted limits. It is at most evidence from which court might conclude that that level could at the time of the alleged offence have been different from the level in the certificate. do not find that the learned Provincial Court Judge misinterpreted the evidence ""to the contrary"". find she applied the correct principles of law in relation to the evidence of the expert and the evidence of alcohol consumption. do not find that the trial judge failed to instruct herself as to the admissibility or weight of the evidence relating to alcohol consumption by the accused. She concludes her decision as follows: Under the circumstances there being no admissible evidence upon which the expert could express that opinion am not satisfied under the circumstances that there is evidence which is capable in this circumstance of being evidence to the contrary and with respect to the first count on the information, that is the charge contrary to Section 253(b) of the Criminal Code, find that the Crown has established its case beyond reasonable doubt and find the defendant guilty of the offence as charged. am satisfied that in applying the burden the learned trial judge properly instructed herself on the law, that is, that the burden is on the Crown to establish the case beyond reasonable doubt. I find generally that the verdict of the learned trial judge was a verdict based on allthe evidence, one which a jury properly instructed and acting judicially could reasonably have rendered I therefore dismiss the appeal J. Halifax, Nova Scotia","The appellant was detained after leaving a suspected 'after hours' club which was under surveillance by police. He was charged with a breathalyzer offence, and was convicted. He appealed, arguing his s. 9 Charter rights had been violated. He also contended the evidence of the amount of alcohol he had consumed on the night in question constituted 'evidence to the contrary' which rebutted the presumption in s. 258 of the Criminal Code. Dismissing the appeal, that the police officers were not acting arbitrarily or in a random fashion when they detained the appellant, and had a reasonable basis for stopping his vehicle. The appellant's contention he consumed only two small bottles (1-1/2 ounces each) of rum, plus some cough syrup and mints, did not constitute evidence to the contrary to rebut the presumption of the breathalyzer offence. On Appeal.",3_1993canlii4594.txt
352,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 177 Date: 2014 06 18 Docket: Q.B.G. No. 455 of 2014 Judicial Centre: Saskatoon BETWEEN: DEAN BRENT BELL, LARRY BOOTH, and GRAHAM SCOTT FEDORWICK PLAINTIFFS (RESPONDENTS) and XTREME MINING DEMOLITION INC., and LEONARD BANGA DEFENDANTS (APPLICANTS) and POTASH CORPORATION OF SASKATCHEWAN INC. Counsel: Scott D. Giroux for the applicants/defendants Gary J. Caroline for the respondents/plaintiffs Shaunt Parthev, Q.C. appearing for Potash Corporation JUDGMENT ALLBRIGHT J. June 18, 2014 [1] On April 4, 2014 the plaintiffs commenced an action against the defendants Xtreme Mining & Demolition Inc., Leonard Banga and the Potash Corporation of Saskatchewan Inc. The statement of claim contains 87 paragraphs and advances fundamental causes of action. [2] The first claim, wrongful dismissal, is advanced by the plaintiffs against the defendants, Xtreme Mining & Demolition Inc. and Leonard Banga. The second cause of action is a claim for defamation brought against the defendant Leonard Banga, and the third cause of action, inducing breach of contract, is brought against the defendant Potash Corporation of Saskatchewan Inc. [3] An extensive list of items sought in relief accompanies each of the three causes of action, and in every instance, damages over and above what might be referred to as normal damages are sought. [4] The application before me engages Rules 13-8, 7-9(1) and 7-9(2) of The Queen’s Bench Rules. Rule 13-8 provides in part as follows: 13‑8(1) Every pleading must: ... (c) contain only statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, but not the evidence by which the facts are to be proved; and ... This Rule is very similar to former Rule 139(1) of the former Queen’s Bench Rules which reads as follows: 139(1) Every pleading shall contain and contain only statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit. [5] Rule 7-9 of The Queen’s Bench Rules provides as follows: 7‑9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (a) that all or any part of pleading or other document be struck out; (2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: ... (c) is immaterial, redundant or unnecessarily lengthy; (d) may prejudice or delay the fair trial or hearing of the proceeding; or ... The new Rule 7-9 is also similar to former Rule 173 which provides in part as follows: 173 The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: ... (b) it is immaterial, redundant or unnecessarily prolix; ... (d) it may prejudice, embarrass or delay the fair trial of the action; [6] While there are some differences in the wording of the relevant new rules from the prior rules, am satisfied that the essence and spirit of the current rules do not materially differ from the former rules. [7] The applicants amended notice of application seeks the following relief: 1. The Defendants, XTREME MINING & DEMOLITION INC. (“Xtreme”) and LEONARD BANGA (“Banga”), request the following relief: a. An Order pursuant to Queen’s Bench Rule 7-9(1) striking out portions of the Plaintiffs’ Statement of Claim; b. Costs of this application. [8] The grounds for making the application are set forth in the amended notice of application in the following form: 2. The Claim contains paragraphs which are not limited to material facts but rather plead matters of evidence and/or are immaterial. Specifically, a. Paragraphs 14, 15, and 16 regarding details of the motorcycle shop, employees and the ownership of the business and real property, is are immaterial. b. Paragraph 22, concerning the health condition of the Plaintiff, DEAN BRENT BELL, is immaterial; c. Paragraphs 35 through 41 and 46 are not limited to material facts as each contains matters of evidence and/or immaterial facts; d. Paragraph 50 pleads evidentiary matters, which matters are inadmissible in any event as the meeting referred to therein was conducted on Without Prejudice basis; e. Paragraph 55 contains immaterial and/or evidentiary matters concerning the health condition of the Plaintiff, DEAN BRENT BELL; f. Paragraph 67 a), c), and d) are matters of evidence as they contain statements made by the media outlets involved, not limited to statements attributable to the defendants themselves, and as such are evidentiary in nature and/or are immaterial; and g. Paragraph 68 is not limited to material facts, as it pleads matters of evidence and immaterial facts. [9] The parties are in agreement that the materials to be considered by me on this application are the pleadings alone. That, of course, involves simply the statement of claim, as no statements of defence have yet been filed. THE IMPUGNED PARAGRAPHS OF THE STATEMENT OF CLAIM [10] The relevant (impugned) pleadings in the statement of claim are the following: (a) Paragraphs 14, 15 and 16. [11] Paragraphs 14, 15 and 16 of the statement of claim read as follows: 14. From 2003 to 2011, Mr. BELL owned and operated motorcycle shop in Regina, Saskatchewan which at all times employed between and people (the “Motorcycle Shop”). Mr. BELL also owned the land on which the Motorcycle Shop was situated. 15. In 2010, XTREME and Mr. BANGA induced Mr. BELL to close the Motorcycle Shop to work for XTREME on full-time, permanent basis. In order to convince Mr. BELL to accept full-time, permanent employment, XTREME and Mr. BANGA made representations that Mr. BELL could work for XTREME until Mr. BELL chose to retire. 16. In 2011, in reliance upon XTREME’s and Mr. BANGA’s representations which reliance was reasonable in the circumstances, Mr. BELL closed the Motorcycle Shop, sold the land it was situated on and accepted the offer of full-time, permanent employment with XTREME and Mr. BANGA. (b) Paragraphs 22 and 55 [12] Paragraphs 22 and 55 of the statement of claim read as follows: 22. In or about October 2012, Mr. BELL was diagnosed with prostate cancer. XTREME and Mr. BANGA were aware of Mr. BELL’s medical condition. 55. The conduct of XTREME and Mr. BANGA in terminating Mr. BELL’s employment while Mr. BELL was suffering from prostate cancer was callous and showed wanton disregard for Mr. BELL’s dignity, feelings and well-being. (c) Paragraphs 35 to 41 and 46 [13] Paragraphs 35 to 41 and 46 in the statement of claim read as follows: 35. On or about January 15, 2013, Leonard BANGA summoned XTREME employees at PCS Cory, including the Plaintiffs, to mandatory meeting. At this meeting Mr. BANGA stated that Jesse Bitz, former XTREME employee and then-member of the Hells Angels Motorcycle Club, had threatened and intimidated other employees during the course of his employment with XTREME. Mr. BANGA said that as result of Mr. Bitz’s conduct XTREME was instituting new policy regarding violence and harassment in the workplace. Mr. BANGA then distributed copies of the new policy to those present. 36. Mr. Bitz had been employed by XTREME at PCS Cory until the summer of 2012 when he was laid off. XTREME later hired Mr. Bitz to work as supervisor at the Agrium company’s Vanscoy mine site (“Agrium Vanscoy”). XTREME dismissed Mr. Bitz in or about December 2012 after Mr. Bitz allegedly threatened worker at Agrium Vanscoy. 37. In or about December 2012, shortly after XTREME dismissed Mr. Bitz, Mr. BANGA asked Mr. Bitz to meet him at gas station on the outskirts of Saskatoon. At this meeting, Mr. BANGA said words to the effect that Mr. Bitz’s career in the mining industry was finished. Mr. BANGA and Mr. Bitz then had brief physical altercation. Mr. BANGA clandestinely made an audio recording of the encounter (the “Recording”). 38. In or about December 2012, Mr. BANGA presented the Recording to Mr. BOOTH and asked Mr. BOOTH to make efforts to have Mr. Bitz expelled from the Hells Angels Motorcycle Club. Mr. BOOTH advised Mr. BANGA that it was not within Mr. BOOTH’s power to have Mr. Bitz expelled. Mr. BANGA was displeased with this answer. 39. On or about January 15, 2013 Mr. BANGA sent letter regarding Mr. Bitz to the Chief Mines Inspector at the Saskatchewan Ministry of Labour Relations and Workplace Safety (the “Ministry”). The letter included the following passages. am writing you this letter as my official statement regarding Jesse Bitz. Jesse Threatened to Kill me off site and we had fight off the mine site. Once was informed of other death threats (By Jesse) by my workers we all had confidential documented conversation. [...] Jesse Bitz has been terminated due to his actions. Jesse also stated that “the whole Hells Angels club was going to get me”. feel this is one man trying to use the Hells Angels club to his advantage. At NO time did the Hells Angels club ever threaten me or anyone else at work. This is an isolated case of just ONE worker making threats and not the Hells Angels club. Many workers that belong to the Hells Angels club have done lot of great work for XMD for many years. 40. In or about January 2013, Mines Inspector with the Ministry interviewed numerous XTREME employees at PCS Cory and Agrium Vanscoy about the conduct of Mr. Bitz. Shortly after the Mines Inspector’s investigation, the Ministry revoked Mr. Bitz’s underground mining supervisor certificate. 41. On numerous occasions between December 2012 and June 2013, Mr. BANGA asked the Plaintiffs to make efforts to have Mr. Bitz expelled from the Hells Angels Motorcycle Club. Each time, the Plaintiffs responded that it was not within their power to have Mr. Bitz expelled. Mr. BANGA was consistently displeased with this answer. 46. In or about July 2013, most former XTREME employees who re‑applied to XTREME were rehired to work at PCS Cory. Several of those who were rehired had criminal records. At least one of those rehired was on parole. Messrs. BELL and FEDORWICK were not rehired. (d) Paragraph 50 [14] Paragraph 50 of the statement of claim pleads the following: 50. On or about September 6, 2013 Messrs. BOOTH and FEDORWICK attended meeting at the Saskatoon office of Mr. BANGA’s legal counsel. Present were Messrs. BANGA, BOOTH and FEDORWICK; Mr. BANGA’s legal counsel; and member of the Hells Angels Motorcycle Club who was not employed by XTREME. At this meeting, Mr. BANGA stated words to the effect that the Mosiac company had compelled XTREME to institute hiring process similar to that described by Mr. BANGA at the June 26, 2013 meeting of PCS Cory employees. Mr. BANGA stated that all XTREME employees at Mosiac Esterhazy had consequently been laid off and that XTREME would only rehire those who successfully completed vetting process that involved criminal record check and third-party screening. (e) Paragraph 67(a), (c) and (d) [15] Paragraph 67(a), (c) and (d) plead the following: 67. At various times in 2013 and 2014, the particulars of which are described below, the defendant LEONARD BANGA falsely and maliciously communicated to various individuals, including to members of the news media, words to the effect that the Plaintiffs had perpetrated acts of violence and intimidation while working for XTREME. The substance of the words can be reasonably inferred from the content of numerous media reports, including the following, each of which was posted on the respective outlet’s website and became widely available. (a) On August 24, 2013, the StarPhoenix published an article titled “Mine firm ousts Hells Angels” which contained the following passages. [...] The Hells Angels were purged from Xtreme’s ranks following multiple death threats and other intimidation, as well as attacks on Banga and an employee. [...] Five men some with Hells Angels connections, some with troubling criminal records, and some with both were not hired back last month Banga said he’s not against the Hells Angels he remains personal friends with several of them. But as an employer who awards cash bonuses for performance, safety and attitude, he said he is against employees who create an unsafe workplace. This story was republished on December 28, 2013 as top story in the StarPhoenix’s “Year in Review”. (c) On January 29, 2014, the CBC News published an online article titled “Mining firms watch case of Hells Angels at Xtreme Mining” that included the following passage. Until last year, Hells Angels from the Saskatoon chapter worked at the Agrium potash mine near Vanscoy and at the Potash Corp. mine at Cory. They lost those high-paying jobs when Leonard Banga at Xtreme Mining and Demolition decided he didn’t want Hells Angels in his company. This decision has triggered alleged death threats and potential lawsuit. [...] “If you’re applying for job and you’re member of group or club that’s considered to be an organized crime group, if you’re part of that and you can’t find work well, guess what? Maybe change your life,” [Mr. BANGA] said in an interview. Banga said he introduced the questionnaire because of complaints from other workers of threats and intimidation from the Hells Angels. (d) On January 29, 2014, Radio-Canada published French-language online article that referred to Mr. BANGA as saying that unnamed members of the Hells Angels Motorcycle Club brought handguns to XTREME worksites, threatened to kill other employees and engaged in violence and intimidation that prevented other staff from doing their jobs. The relevant portions of that article read as follows. En août 2013, Leonard Banga licencié tous les employés de Xtreme Mining qui faisaient partie du groupe de motards. Selon lui, la violence qu’ils causaient empêchait le personnel de faire son travail. Aujourd’hui, l’homme d’affaires précise que des membres des Hells, qu’il refuse de nommer, ont apporté des armes de poing au travail et menacé de mort des employés. Il veut maintenant s’assurer qu’aucun membre du club ne puisse travailler de nouveau chez Xtreme Mining. Il mis en place un nouveau code de conduite qui empêche ses nouveaux employés d’être liés au crime organisé. (f) Paragraph 68 [16] Paragraph 68 in the statement of claim provides as follows: 68. From February 2013 to June 26, 2013, the Plaintiffs were the only members of the Hells Angels Motorcycle Club employed by XTREME at PCS Cory. No members of the Hells Angels Motorcycle Club were employed by XTREME at PCS Cory after June 26, 2013. Therefore, Mr. BANGA’s references to members of the Hells Angels Motorcycle Club in paragraph 67 would lead reasonable people to believe that Mr. BANGA was referring to the Plaintiffs. THE POSITION OF THE APPLICANTS AND RESPONDENTS RELATING TO THE IMPUGNED PORTIONS OF THE STATEMENT OF CLAIM (a) Paragraphs 14, 15 and 16. [17] The applicants assert that while they accept the proposition that these paragraphs may be relevant to determination of the notice that an employer induced an employee away from previous position of employment, whether or not the plaintiff Bell owned land in Regina, employed three to seven people at his motorcycle shop and sold the land in 2011 are wholly irrelevant to the issue of any such inducement and whether or not he was terminated without cause and without reasonable notice. Further, the issue is the inducement of Bell, not whether Bell employed other individuals or Bell’s land holdings. In short, the applicants suggest that these particular aspects of the claim do not assist in determining what the defendants did and do not offer assistance as to why the plaintiff says it legally matters. [18] The respondents (plaintiffs) counter this proposition by noting that the size and nature of Mr. Bell’s business and his interest in the underlying real property are material facts going to the question of whether Mr. Bell is entitled to an extended notice period on the ground that the applicants (defendants) induced him to abandon his previous secure employment and that such proposition is well-established employment law principle. (b) Paragraphs 22 and 55 [19] The applicants assert that this paragraph does not relate to any particular allegation that Mr. Bell’s employment was terminated because of his medical condition or that his medical condition played any role whatsoever in the termination. Mr. Bell was diagnosed with prostate cancer nine months prior to the termination of his employment. Accordingly, the applicants assert that these pleadings are irrelevant. If such were permitted to remain in the claim, they would only serve to delay and prejudice the action, as the parties would be required to fully traverse all of the medical evidence and circumstances pertaining to the medical condition. The respondents contend that the health condition of an employee at the time of dismissal is plainly material for claim for moral damages. Again, it is suggested that this is well-established employment law principle recognized and endorsed by Canadian courts. (c) Paragraphs 35 to 41 and 46 [20] It is the position of the applicants that within the overall claim, each of the plaintiffs have alleged that they performed their duties competently, faithfully and diligently. Following from this, they have alleged that their employment was terminated without cause or reasonable notice. The applicants’ position continues to the effect that none of the matters pertaining to the “employment of Jesse Bitz”, who is not party to the lawsuit, and the termination of that employment have any bearing upon the germane issues in this action, nor do such inform them in any way. If the issues between Banga and Bitz, non-party, are to be traversed during the course of the lawsuit, such would prejudice and delay the trial of the action. Continuing, it is the position of the applicants that the allegations in para. 46 with respect to other employees being hired back, that some had criminal records and that one of the individuals who was rehired was on parole are similarly irrelevant. This is so for the fact there is no attempt to connect these averments to the causes of action set forth in the statement of claim. [21] The plaintiffs submit that paras. 35 through 41 plead facts which, if proven, would establish that the defendants were fully aware that the plaintiffs were in no way responsible for any acts of intimidation and harassment and that the defendants dismissed the plaintiffs for an improper and malicious purpose. The submission continues that these facts are material to the issue of wrongful dismissal and any resulting moral damages. Further, these facts are material to the issue of defamation in that, if proven, they would establish that Mr. Banga willfully impugned the plaintiffs’ characters by falsely linking them to acts of intimidation and harassment that Mr. Banga knew the plaintiffs had no part in. [22] The respondents assert in relation to para. 46 that it pleads facts which, if proven, would establish that the defendants’ rehiring procedure was indeed designed for an inappropriate purpose. As such, it is clearly material to the issues of wrongful dismissal and any damages, including moral damages, flowing therefrom. (d) Paragraph 50 [23] The applicants assert that regardless of the ultimate admissibility of the evidence in this respect, this paragraph pleads evidence that should be struck. The allegation is that the defendants acted unfairly or in bad faith by being dishonest as to the reasons for the dismissal, and the applicants suggest an alternative pleading in language which would be appropriate in the following fashion: The Defendants acted unfairly or in bad faith in terminating the Plaintiffs as the Defendants represented to the Plaintiffs that Mosaic had adopted and implemented policy to exclude members of the Hells Angels from the workplace. That representation was false. [24] The applicants also impugn this particular paragraph on the basis that the plaintiffs by pleading that there was meeting and the words that Banga is alleged to have said at such meeting, they are pleading how they intend to prove the material facts as opposed to actually pleading those material facts. The applicants contend they as defendants should not have to plead what their recall was of any meeting and the matters that transpired at any meeting in response to such an improper pleading and that they would be prejudiced by being required to plead evidence as that would be tantamount to providing discovery at the pleading stage. [25] The plaintiffs in response contend that the facts pleaded in para. 50 are material in that, if proven, they establish pattern of behaviour on the part of Mr. Banga that raises the presence of bad faith in the defendants’ dismissal of the plaintiffs. As such, these facts are material to the issue of wrongful dismissal and to any moral damages flowing from it. In addition, the plaintiffs assert that the meeting described in para. 50 was neither expressly nor impliedly conducted on without prejudice basis. The plaintiffs were not represented by counsel at that meeting and were at no time advised that the meeting was being conducted on without prejudice basis. In essence, the plaintiffs respond with the proposition that if the defendants choose to allege that the meeting was conducted on without prejudice basis, they are free to plead that specifically in their statement of defence. (e) Paragraph 67(a), (c) and (d) [26] The applicants assert that these excerpts from para. 67 pertain to matters of evidence rather than fact. The applicants are of the view that the specific wording of these pleadings confirms that the plaintiffs are using the excerpts as evidence to support their allegation that the defendant Banga made defamatory comments about the plaintiffs to various individuals and that such evidentiary facts should be struck out. To that end, the applicants assert that plaintiff in defamation action must establish that the words complained of are defamatory in their natural and ordinary meaning or, alternatively, by their innuendo meaning. If the words are not defamatory in their natural and ordinary meaning, plaintiff must allege and prove innuendo from extrinsic evidence. The applicants ask that these paragraphs be struck in their entirety, however, alternatively submit that the court should at least strike out portions of the impugned provisions. The plaintiffs have not alleged defamatory innuendo, and extrinsic evidence is wholly irrelevant and impermissible to the determination of whether the words alleged to have been published are defamatory. The specific portions of the paragraphs identified by the applicants are submitted to be simply extrinsic evidence, and as the claim is not based upon innuendo, they are immaterial to the plaintiffs’ actions in defamation and that traversing them will only engage the parties in issues that are unrelated to the real issues at stake. Finally, the significant portions of the paragraphs are extrinsic evidence reported on by news agencies and are not statements directly attributable to the defendant Banga and do not refer to actual statements that Banga is alleged to have made. As consequence, as it is statements that are the subject of claim in defamation, these portions are irrelevant. [27] The plaintiffs in response submit that these statements are plainly material to the issue of defamation because they contain indirect quotes attributable to the defendant Banga. As the courts have long ago abandoned the “severe” approach to pleading defamation which required the pleading of the impugned words verbatim, somewhat more relaxed standard ought to be applied. To that end, counsel for the plaintiffs references the comments of Zarzeczny J. of this court in Duke v. Puts, 1997 CanLII 11015 (SK QB), [1998] W.W.R. 510, 161 Sask.R. 299 (Sask. Q.B.). [28] Further, the statements of media outlets reproduced at para. 67(a), (c) and (d) of the statement of claim describe the alleged defamatory statements with sufficient certainty, clarity and precision that the defendants ought to be fully equipped to respond. The content of the impugned words is clear and unambiguous, and it is equally clear that such words were very likely spoken by Mr. Banga to or in the presence of the respective journalists on or shortly before the respective dates of publication. In essence, the plaintiffs have provided “sufficient facts surrounding the incidents to identify the incidents to the defendant”. These “incidents’ are fundamentally material to the plaintiffs’ case as they are necessary to adequately define the nature of the action and the issues to be tried. (f) Paragraph 68 [29] It is the applicants’ position that this entire paragraph is evidentiary in nature and the whole paragraph should be struck. The information contained in the paragraph, namely the number of Hells Angels employed by Xtreme and the dates of their employment are ostensibly pled by the plaintiffs as evidence in support of their claim that Banga defamed them individually by allegedly making statements regarding the Hells Angels generally. The applicants contend that the plaintiffs are using the contents of this paragraph in an attempt to prove their allegation that the defendant Banga defamed them and their evidentiary facts contrary to prevailing Canadian jurisprudence. [30] The plaintiffs in response submit that these facts go to the question of whether Mr. Banga’s statements would be viewed by reasonable persons as implicating the plaintiffs, and, as such, they are plainly material to the issue of defamation. The purpose of paragraph 68 is to establish that Mr. Banga’s impugned statements related to the plaintiffs, and, as such, the facts pleaded, are clearly material and ought not to be struck. [31] In 1996 had occasion to comment in fashion upon “appropriate pleadings”. In Bush v. Saskatchewan (Minister of Environment and Resource Management), [1996] S.J. No. 534 (QL) (Sask. Q.B.), commented at para. 21 as follows: 21 The perfectly drafted pleading has probably never occurred, or in any event, is rarity. Indeed, most pleadings, particularly in hindsight, admit of deficiencies, some more serious than others. While there are alternatives that could have been chosen in drafting various portions of this Statement of Claim, there is no precise standard against which Statement of Claim may be measured to ascertain its adequacy. There will always be personal element in the drafting of pleadings and each application such as that before me must be examined in light of the specific facts and circumstances in the pleadings being examined. While the years have passed, remain of the view that this observation is still relevant. Each instance of questioned or impugned pleadings must be examined on its own merit, bearing in mind the particular nature of the cause of action or causes of action being advanced. [32] am also in agreement with Laing J. and his comments in Ceapro Inc. v. Saskatchewan, 2003 SKQB 221 (CanLII), 237 Sask.R. 94. In Ceapro Inc. at para. 19 he comments: 19 ... It is not the role of the court to fine tune the pleadings offered by the parties to an action or to suggest wording for the pleadings. The court’s role is simply to determine if the pleading meets the minimum requirements. [33] In Ducharme v. Davies, 1983 CanLII 2310 (SK CA), [1984] W.W.R. 699, 29 Sask.R. 54, the Saskatchewan Court of Appeal in the words of Cameron J.A. comments at para. 15 in the following fashion in addressing the fundamental purpose of pleadings: 15 While pleadings are no longer subject to the precise, complex, and occasionally oppressive requirements they once were, nevertheless they remain an important aspect of every law suit and must be framed with care. The following passage taken from The Law of Civil Procedure‑‑Williston and Rolls (vol page 636) illustrates why careful pleading is still important: 16 The function of pleadings is fourfold: 1. To define with clarity and precision the question in controversy between litigants. 2. To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them. defendant is entitled to know what it is that the plaintiff asserts against him; the plaintiff is entitled to know the nature of the defence raised in answer to his claim. 3. To assist the court in its investigation of the truth of the allegations made by the litigants. 4. To constitute record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between the parties. [34] It is against this canvass of judicial commentary that propose to address the various impugned provisions contained in the statement of claim giving rise to the applicants’ motion. am also mindful of the oft reiterated proposition by courts, and certainly including courts in Saskatchewan, that pleading is to be taken as meaning stating material facts which are the constituent elements of any cause of action. Ball J. noted in Country Plaza Motors Ltd. v. Indian Head (Town), 2005 SKQB 442 (CanLII), 272 Sask.R. 198 at para. 8: ...In the simplest terms, statement of claim must describe what the defendant did, and why the plaintiff says it legally matters‑that is, why the defendant's conduct is actionable. [35] In variation of this theme, Gabrielson J. in Kaukinen v. Saskatchewan Water Corp., 2006 SKQB 199 (CanLII), 281 Sask.R. 113, observed at para. 15 In this case, while the plaintiffs have pleaded number of facts, they have failed to relate the facts pleaded to any specific cause of action. find therefore that the applicants have established that the plaintiffs’ claim could be struck in its entirety. However, rather than strike the statement of claim at this time, which could work an injustice to the plaintiffs, am prepared to grant them period of time within which to file proper pleadings. [36] Lastly, in addressing the impugned portions of the statement of claim dealing with the “defamation” cause of action, am mindful of the comments of Zarzeczny J. in Duke v. Puts, supra, at paras. 16-18. Zarzeczny J. observed: 16 On the other hand the applicants contend that even in the Berry case [1924 CanLII 182 (SK CA), [1924] W.W.R. 1279] Haultain C.J.S. at pp. 1281 and 1282 considered passage from Odger on Libel and Slander, [citation omitted] concluding that: “... If the plaintiff does not know the exact words uttered, and cannot obtain leave to interrogate before statement of claim, he must draft his pleadings as best he can and subsequently apply for leave to administer interrogatories, and after obtaining answers amend his statement of claim, if necessary”. Haultain C.J.S. concludes in this regard: ... What Mr. Odger evidently means is, that, if the exact words are not known, some words alleged to be the exact words must be set forth verbatim. These words would necessarily be words having meaning consistent with the information available to the plaintiff at the time ... 17 MacLeod J. in Eashappie et al. v. Miller (1995), 1995 CanLII 5725 (SK QB), 133 Sask. R. 175, adopted the statement contained in C.E.D. (West.), Vol. 11A, Title 47, paragraph 220, as follows: 220. As general rule, the precise words complained of must be set out verbatim in the statement of claim so that the court may judge whether or not there is good cause of action. It is not sufficient to merely give the substance or purport of the alleged defamatory words. Just exactly how much should be quoted of an article that contains defamatory imputation is not, however, always easy to resolve. It has recently been stated that rule of common sense is to be followed in deciding this: the question is simply whether the plaintiff’s claim is clear enough for the defendant to be able to plead to it ... 18 similar conclusion was reached by the High Court of Ontario in the case of Magnotta Winery Ltd. v. Ziraldo (1995), 1995 CanLII 7122 (ON SC), 25 O.R. (3d) 575. At p. 583, the following summary of the “common sense approach” is made: ... [I]t is open to the court in limited set of circumstances to permit plaintiff to proceed with defamation action in spite of an inability to state with certainty at the pleading stage the precise words published by the defendant. The plaintiff must show: that he has pleaded all of the particulars available to him with the exercise of reasonable diligence; that he is proceeding in good faith with prima facie case and is not on “fishing expedition”; normally this will require at least the pleading of coherent body of fact surrounding the incident such as time, place, speaker and audience; that the coherent body of fact of which he does have knowledge shows not only that there was an utterance or writing emanating from the defendant, but also that the emanation contained defamatory material of defined character of and concerning the plaintiff; that the exact words are not in his knowledge, but are known to the defendant and will become available to be pleaded by discovery of the defendant, production of document or by other defined means, pending which the plaintiff has pleaded words consistent with the information then at his disposal. [37] These comments were echoed by Barclay J. in R.E.L. v. J.G., 2000 SKQB 74 (CanLII), 191 Sask.R. 204, wherein he adopts the common sense approach to the pleading of defamation and notes the following requirements at para. 42: 42 accept that the Court may allow some leniency in the pleading of defamation where the exact words are not known to the plaintiff and are within the knowledge of the defendant. However in any case, the plaintiff must plead all of the particulars available to him, some words consistent with the allegation and then show that the words have defamatory character. Further, the plaintiff must provide sufficient facts surrounding the incident, such as time, place, speaker and audience, to identify the incident to the defendant. [38] In considering The Queen’s Bench Rules and comparing or contrasting them to the former Queen’s Bench Rules, am satisfied that the fundamental principles underlying former Rule 139(1) are applicable to the new Rule 13-8. In similar fashion, am satisfied that the jurisprudence and interpretation surrounding former Rule 173 is relevant and applicable when considering and applying the new Rule 7-9. [39] In considering the applicants’ amended notice of application, observed that in the catalogue of impugned pleadings, the consistent theme is that the specific pleadings in question are immaterial and on secondary basis that some plead evidentiary matters or combination of both. This chronicle reflects the wording of Rule 7-9(2) where the Rule references pleading or pleadings that is or are immaterial, redundant or unnecessarily lengthy or such as “may prejudice or delay the fair trial or hearing of the proceeding”. This Rule is to be considered in conjunction with Rule 13-8(1) which provides in part that every pleading must “contain only statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, but not the evidence by which the facts are to be proved”. THE IMPUGNED PLEADINGS [40] do not propose to reiterate the well-reasoned submissions of counsel for both the applicants and the respondents, as have set them forth in my recitation of the respective positions of the parties on the series of impugned pleadings. propose to set forth what my views are on each of the paragraphs in question in summary fashion. (a) Paragraphs 14, 15 and 16 [41] In considering these paragraphs am in agreement with the submission of the plaintiffs. To that end, agree that “The size and nature of Mr. Bell’s business and his interest in the underlying real property are material facts going to the question of whether Mr. Bell is entitled to an extended notice on the ground that the Defendants induced him to abandon his previous secure employment”. In light of the relief being sought by the plaintiffs, am certainly unable to say that these paragraphs are immaterial. Accordingly decline to strike paragraphs 14, 15 and 16. (b) Paragraphs 22 and 55 [42] In considering para. 22, am also in agreement with the submission of the plaintiffs. The start point in this particular analysis is to inquire as to whether the health condition of an employee at the time of his dismissal is material to claim for moral damages. am of the view that it is. agree that it has been recognized as such. (See Altman v. Steve’s Music Store Inc., 2011 ONSC 1480 (CanLII), [2011] O.J. No. 1136 (QL)). As I am satisfied that there is a basis for this pleading, I am unable to conclude that it is immaterial, and accordingly I decline to strike para. 22. [43] In similar fashion, am of the view that the allegations set forth in para. 55 have not been demonstrated to be immaterial. Again, the nature of the plaintiffs’ claim under the heading “moral damages” generates relevance on the issue of the health condition of an employee at the time of the dismissal. As it has this relevance, it cannot be said to be immaterial and, therefore, is not to be struck. While it may fairly be argued that it has the potential to be considered to be possessed of some “evidentiary” component, in my view it is limited and does not warrant the paragraph being struck. (c) Paragraphs 35 to 41 and 46 [44] In considering these matters, more particularly paras. 35 through 41, find that am in agreement with the fundamental position of the defendants. At the heart of my conclusion is the proposition that the matters being referenced as being relevant to the cause of action of wrongful dismissal are in fact not relevant. The claim by the plaintiffs for wrongful dismissal does not require these paragraphs, and in my view they are extraneous. agree with the defendants when they suggest that allowing these extraneous, irrelevant or immaterial provisions to remain in the statement of claim will require the defendants to respond on basis which would in the normal course be outside of what would be required in responding to claim of wrongful dismissal. At trial the plaintiffs may well be in position to adduce evidence to the effect underlying these provisions in the statement of claim in an attempt to demonstrate wrongful dismissal, but they are not in my view appropriate to be contained in the statement of claim, and direct that paras. 35 through 41 are to be struck. [45] The same criticism cannot fairly be leveled at para. 46 by the defendants. In my view this paragraph has an apparent nexus or relevance to the cause of action of wrongful dismissal and is, therefore, material, and as it is material, decline to strike the paragraph from the statement of claim. (d) Paragraph 50 [46] have considered with some care the position of the defendants that para. 50 pleads evidentiary matters which the defendants suggest are inadmissible in any event, as the meeting referred to was conducted on without prejudice basis. am not satisfied that it has been demonstrated from the pleadings that this was “without prejudice” meeting. The trappings which would be required to suggest such designation are absent. While there is an element of some evidentiary matters being set forth, it is obvious to me why the plaintiffs consider it necessary to set these forth within the context of para. 50. am also in agreement with the suggestion by the plaintiffs that if the defendants wish to pursue the suggestion that the meeting was on without prejudice basis and, therefore, should not be relied upon, they are at liberty to do so in an appropriate pleading in the statement of defence. Accordingly, I am not persuaded that para. 50 should be struck, and I decline to do so. (e) Paragraph 67(a), (c) and (d) [47] am mindful of the rationale of Zarzeczny J. in Duke v. Puts, supra. While an isolated interpretation of these pleadings may suggest that matters of evidence are being pled, essentially for the reason that they contain statements made by the media outlets involved, they appear to me to be legitimate attempt on the part of the plaintiffs to draft the pleadings in the best possible form, the plaintiffs being unable at this stage to know with certainty the exact words uttered by the defendant and having no current mechanism to ascertain such. As noted, this was echoed by Barclay J. in R.E.L. v. J.G., supra, wherein again he fairly concluded: ... accept that the Court may allow some leniency in the pleading of defamation where the exact words are not known to the plaintiff and are within the knowledge of the defendant. ... In this instance have asked myself if there is some impediment to the defendants drafting an appropriate statement of defence to deal with these particular pleadings, and have concluded that no such impediment is apparent to me. Accordingly, while there is obviously some lack of attribution of direct quotations to the defendant Banga, again am satisfied that the plaintiffs have pled the matter in way which is not offensive to the general principles of pleading. For these reasons decline to strike para. 67(a), (c) and (d). (f) Paragraph 68 [48] While I have considered the very able comments of Mr. Caroline on behalf of the plaintiffs, I am simply struck by the fact that para. 68 is both irrelevant and immaterial. It has to my mind no direct or even inferential nexus to the claim by the plaintiffs for wrongful dismissal. Accordingly, as this is my view of the paragraph, I direct that it is to be struck from the statement of claim. [49] am appreciative of the efforts of both Mr. Giroux and Mr. Caroline in addressing this matter orally and through their briefs. [50] am of the view that no costs should be ordered at this time, but rather direct that the costs in this matter as between the applicants and the respondents (not including the defendant Potash Corporation of Saskatchewan Inc.) are to be costs in the cause. No costs of this motion are to, in any event, be granted to Potash Corporation of Saskatchewan Inc. or against Potash Corporation of Saskatchewan Inc. Order accordingly. J. G.N. ALLBRIGHT","Civil Procedure – Pleadings – Statement of Claim – Striking OutCivil Procedure – Queen’s Bench Rule 7-9 The plaintiffs commenced an action against the defendants that included three causes of action: a claim against Xtreme Mining and Banga for wrongful dismissal; a claim for defamation brought against Banga; and for inducing breach of contract against Potash Corp. The defendants, Xtreme and Banga, brought an application pursuant to Queen’s Bench rules 7-9(1), (2), and 13-8 for an order that portions of the statement of claim be struck out as immaterial. The plaintiffs included in their pleadings regarding the first cause of action paragraphs that described the details of the plaintiff Bell’s business and real property, which he owned before he was hired by the applicants. Regarding the plaintiff’s pleadings respecting the second cause of action, they included details of the plaintiff Bell’s health condition at the time he was dismissed from employment. The plaintiffs pleaded a description of the contents of a meeting between them, Banga and his legal counsel in connection with the second cause, which, if proven, would establish that the plaintiffs were not responsible for acts of intimidation and that the defendants dismissed the plaintiffs for an improper and malicious purpose. The facts were material to the issue of wrongful dismissal and defamation. The other paragraphs that were considered immaterial by the applicants dealt with remarks made by Banga to the media. HELD: The court dismissed the application with respect to the plaintiffs’ pleadings about the plaintiff’s prior business and health condition. Similarly, the plaintiffs’ pleadings with regards to the meeting were not struck, nor were the paragraphs related to the reporting in the media as the plaintiffs were not certain of the exact words used by the defendant, and therefore could not draft anything at that time. It allowed the application respecting the pleadings that related to an individual who was not a party and struck the paragraphs in question as irrelevant and immaterial.",4_2014skqb177.txt
353,"THE COURT OF APPEAL FOR SASKATCHEWAN SASKATCHEWAN TRANSPORTATION COMPANY, (Defendant) APPELLANT, LEO LARSEN (Plaintiff) RESPONDENT, CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Mr. T. J. Waller for the Appellant, Mr. G. W. Semenchuck Q.C. for the Respondent. DISPOSITION: Appeal Heard: September 14, 1993. On Appeal From: QB 4525/91 J.C. Regina Appeal File: 1445 Reasons: September 22, 1993 Appeal Allowed in Part: September 14, 1993 Reasons by: The Honourable Mr. Justice S. Cameron In concurrence: The Honourable Mr. Justice Sherstobitoff and The Honourable Madam Justice Jackson CAMERON J.A. This is an appeal from an assessment of damages in a wrongful dismissal action brought against Saskatchewan Transportation Company by Leo Larsen, its former President and Chief Executive Officer. Saskatchewan Transportation Company, or STC as it is commonly known, is provincial Crown corporation. It admitted to dismissing Mr. Larsen without cause or notice, in breach of its contract of service with him. In consequence Mr. Larsen obtained a judgment for damages against the corporation in the basic amount of $165,000, an amount it contends is exorbitant. For the most part we can find no tenable basis for concluding that the award of damages was inordinately high. The trial judge assessed the damages on the general principles, first, that the object of these awards is to compensate for the loss of income sustained in consequence of the wrongful dismissal; second, that their measure is prima facie the amount that would have been earned had the employment continued, subject to deduction of such amounts as in the ensuing months are either earned or should have been earned in light of the duty upon persons suffering such losses to keep them to minimum; and third that The Crown Employment Contracts Act, S.S. 1991, c. C- 50.11, had set aside the contractual provisions for payment on dismissal contained in all ""Crown contracts"", including those of Crown corporations, and directed instead that payment be determined in accordance with common law principle. With that in mind he calculated Mr. Larsen's loss of income on the following premises: (i) that Mr. Larsen had been employed by STC at salary of $110,000 year; (ii) that he was entitled at common law to eighteen months notice of termination having regard for the fact, among others, that he had been in the employ of the Crown in the right of the Province for about decade; and (iii) that he had met his legal duty to mitigate but had not succeeded in reducing his loss. STC took issue with these premises, contending the trial judge had erred in relation to each of them. (i) The salary. We do not agree, as STC suggests, that Mr. Larsen's loss of income should have been calculated on the premise his annual salary was $102,000, not $110,000. His contract read thus: ""In consideration of your services you will be paid an annual base salary equal to $110,000.00, less: a) STC contributions to your pension plan; b) STC car allowance or the annual value of car provided to you; and c) the annual value of the CEO Benefit Package provided to you by STC."" The term ""base salary"" meant that which would be paid him exclusive of such additional, performance-based amounts as he might earn under other terms of the contract. For the purpose of the ""base salary"" provisions of the contract, the annual value of the pension contributions, car allowance, and so on worked out to some $8,000. In our opinion these provisions constituted promise by STC to pay Mr. Larsen basic salary of $110,000 year made up of: (i) money in the amount of $102,000; and (ii) money or benefit to the value of $8,000. That being so, and since STC broke its promise, thus depriving Mr. Larsen of the opportunity to earn such salary, we are of the view the trial judge did not err in employing the figure of $110,000 in determining the loss of income and hence the damages in this respect. (ii) The period of notice. STC contends that the trial judge went wrong on two counts. First he attributed far lengthier period of service to Mr. Larsen than was appropriate to the determination of this issue; he should have attributed one year of service to Mr. Larsen, not ten. Second he exceeded by at least 50% the period of notice usually found to be appropriate in circumstances such as these; at best he should have found Mr. Larsen entitled to twelve months notice of termination, not eighteen. The basic facts are these. Mr. Larsen was forty-seven year old commerce graduate and chartered accountant who, before being dismissed by STC, had successively served three provincial Crown corporations over period of about ten years. On February 1, 1982 he left the employ of Hudson Bay Company in Winnipeg and went to work for Saskatchewan Housing Corporation as its Executive Director of Finance and Administration. Some three years later, having in the meantime risen to vice- presidency of that corporation, he was taken on by Saskatchewan Economic Development Corporation as its Vice-President of Finance and Administration. He remained with SEDCO for about five years. Then on December 1, 1990, he was engaged by STC as its President and Chief Executive Officer for term of three years. He served in that capacity until November 22, 1991, when following change of government in the Province, he was let go. Under the terms of his contract with STC, Mr. Larsen was entitled on ""Involuntary Termination"" to severance payment ""equal to twelve (12) months salary and benefits plus an additional two (2) months salary and benefits for each year of service calculated using February 1, 1982 as the beginning date...."" This was capped with year maximum. These terms were obviously founded on the whole of his previous Crown corporation service and would have entitled him in effect to two years notice of termination had it not been for The Crown Employment Contracts Act. Since the Act set aside those terms of the contract and since the Province's Crown corporations are distinct legal entities, independent of one another, STC requested the trial judge, when determining the period of notice to which Mr. Larsen was entitled at common law, to disregard all but Mr. Larsen's year of service with STC. Any other approach, it said, would be inconsistent with precedent, referring to Nupdal v. SGI (Sask. Q.B., March 15, 1984, per Malone J.) and Richardson v. SEDCO, (1985) 1985 CanLII 2770 (SK QB), 41 Sask. R. 236 (Sask. Q.B., per McIntyre J.). The trial judge rejected that request and took the whole of Mr. Larsen's Crown corporation service into account, saying that ""When [in February, 1982] Larsen accepted Ernst Young's invitation to leave Hudson Bay Company for service in the Government ranks of Saskatchewan, he traded career in the private sector for one in the civil service. The evidence is convincing: Larsen at the time of his dismissal was career civil servant, skilled and dedicated."" Was this error? Even if it were, and we do not think it was, not in substance at least, too much can be made of it. While undoubtedly relevant, length of service is but one of several considerations to be taken into account in determining fit period of notice in cases such as these. And it is to be taken into account not in isolation but in conjunction with other considerations, including the nature of the employment. Hence the weight or comparative importance of this consideration can vary from case to case. In this case we are dealing with the president and chief executive officer of major Crown corporation. This is not unique employment, but it is comparatively rare. There are not many positions of that nature available to persons here or even elsewhere. That being the case, does it much matter whether Mr. Larsen had been at this post for one year rather than three, or two instead of five or even ten? Does it much matter, that is, to the period of time he ought to have had to find comparable employment. We are not suggesting his length of service is of no moment, but we are saying that too much can be made of it if viewed in isolation. That general observation aside, the severance terms of Mr. Larsen's contract with STC were arrived at, as noted, with an eye to his earlier service. Indeed they were inserted on the premises he had been in the service of the Crown since February 1, 1982, the day he joined Sask. Housing, and was moving up once again to more senior level of service. This is understandable. These corporations are agents of the Crown for all their purposes. And so Mr. Larsen was taken to have been employed by the Crown throughout the period, first by one of its agents, then by another, and finally by STC. That was the intention of the parties. To be sure, these terms of the contract were swept away by The Crown Employment Contracts Act. It does not necessarily follow, however, that his prior service to the Crown through one or another of its agents fell to be disregarded in making the determination at issue. In the absence of an express provision to that effect in the statute, and none appears there, we cannot think the legislature so intended. The cases brought to the attention of the trial judge were distinguishable on these and other grounds, and we cannot say that he went wrong on the point under discussion. Nor can we say that the period of notice to which the trial judge found Mr. Larsen entitled was unreasonable. We might have settled on something less had we been trying the case, but judging from such other cases as Herbison v. Intercontinental Packers, (1984) 1983 CanLII 2398 (SK CA), 29 Sask. R. 296 (Sask. C.A.) and Wankling v. Saskatchewan Urban Municipalities Association, (1989) 1989 CanLII 4625 (SK QB), 75 Sask. R. 252 (Sask.Q.B.), the period chosen by the trial judge was within the range, albeit at the top of it. But since it was within the range, and since decisions of this kind entail the exercise of fair measure of discretion and ought not to be interfered with lightly, we do not think we should intervene. That then leaves the third of the premises upon which the loss was arrived at, namely that Mr. Larsen had not managed to reduce his loss despite his best efforts to do so. (iii) Mitigation. With respect, we do not wholly agree with the trial judge's treatment of this issue. We agree with his finding that Mr. Larsen had met his duty to mitigate. That finding is amply supported by the evidence. But we have difficulty with his further finding that Mr. Larsen had not managed to reduce his loss of income. The evidence provides little if any support for that finding. According to the evidence, Mr. Larsen landed contract with Saskatoon developer after STC dismissed him. That contract, for the provision of accounting and related financial services at the price of $4000 month and determinable on two weeks notice, was taken up in the name of company, Management Ltd. Mr. Larsen incorporated the company for the purposes of carrying out this and such other contracts of the sort as he might obtain. On incorporation, he and his wife became the sole shareholders of the company. Over the next eight to nine months Mr. Larsen devoted virtually the whole of his time to providing the services called for by this contract, thus earning, to the credit of Management, $33,100. After allowing for expenses (including the cost of Mr. Larsen's going to and from Saskatoon and living there throughout the week, as well as salary of $300 month to Mrs. Larsen for answering the phone and looking after things in Regina while her husband was in Saskatoon) Management netted over $11,000. In other words it netted about $1200 month during this period. But no salary was paid to Mr. Larsen. The net income was simply left to accumulate in the company. The developer was delighted with the service, and Mr. Larson intended to continue with the work into the foreseeable future. Having regard for this evidence and for Mr. Larsen's duty to mitigate his loss of income, STC asked the trial judge to attribute the bulk of the income of Management to Mr. Larsen and to reduce his loss accordingly. The question, which Mr. Larsen must answer to in the circumstances, is why at the very least the net income of the company should not have been attributed to him for the purpose at hand. Conceptually it might be attributed to him on one basis or another, but that is not the issue. He resisted the attribution on pragmatic grounds, arguing that the company had not in fact paid him any salary; that there was no guarantee the company was going to earn profit; that it needed working capital; that it was mere fledging; and so on. Finally he contended that attributing even the net income to him for the purpose of mitigation would be inconsistent with Foster v. MTI Canada Ltd. (an unreported decision of the Ontario Court of Appeal dated July 16, 1992). We are not persuaded by these arguments. Foster's case was decided on its own facts, and on the facts in this case we are satisfied that the trial judge erred. Bearing in mind Mr. Larsen's duty to STC to mitigate his loss, and having regard for all of the circumstances surrounding this matter, the trial judge ought to have found that Mr. Larsen had in fact managed to mitigate his loss. There is simply no sound reason for holding otherwise. That leaves only the extent of the mitigation. We can see no good reason for going behind the expenses, as STC invited us to do on the ground they were inflated for the purpose of shielding income from the obligation to mitigate, but we can see no good reason either for not attributing the net income of about $1200 month to Mr. Larsen for the whole of the period at issue, past as well as prospective. And so we have decided to reduce his damages by some $16,000 to $17,000. Let us say $16,500. It follows, then, that the appeal will be allowed to the extent of reducing this head of damages from $165,000 to $148,500. Otherwise the judgment at trial will stand. There will be no order for costs on the appeal.","On appeal from 106 SaskR 277. 47 year old respondent, former President and Chief Executive Officer of STC, had been awarded $165,000 (18 months) for wrongful dismissal. He had successively served three Crown Corporations over a period of ten years. On appeal held the award of damages was not inordinately high. The court however reduced the damages by $16,500 as it disagreed with the trial judge's determination regarding mitigation of damages. Appeal allowed to the extent of reducing the damages from $165,000 to $148,500.",d_1993canlii6612.txt
354,"IN THE SUPREME COURT OF NOVA SCOTIA Citation: Leslie v. Apartment Holding Ltd., 2011 NSSC 48 Date: 20110203 Docket: Tru No. 272838 Registry: Truro Between: Alissa Leslie and Harry Bryson v. Apartment Holding Limited Defendant Judge: The Honourable Justice N. M. Scaravelli Heard: September 20, 21, 22, 23, 27, 28, 29, 30, 2010, in Truro, Nova Scotia Counsel: Jamie MacGillivray, Esq., and Nicolle Snow, for the plaitniffs Colin Piercey, Esq., and Nathan Sutherland, Esq., for the defendant By the Court: [1] This is an action for damages arising out of injuries suffered by the plaintiffs when they escaped fire by jumping from the top floor of three-storey apartment building owned by the defendant. [2] Liability and damages are at issue in this case. [3] The plaintiffs were occupying apartment No. 302, 265 Young Street, Truro at the time of the fire. The apartment building consisted of 12 units with three floors. The first floor was below ground level and was accessed by entering the building and walking downstairs. Each of the three floors contained four apartment units all accessed by way of common hallway with two apartments on each side of the common hallway. Self closing doors were located at both ends of the common hallway leading to stairs and stairwells used for entering and exiting the building. The stairwell located on the south side of the building led to the front door. The north stairwell led to the back door of the building. The plaintiff, Ms. Leslie’s apartment was located on the top floor at the north-east corner adjacent to the north stairwell. She was the tenant and resided in the apartment with her two young children and occasionally with her partner at the time, the plaintiff Harry Bryson. Her lease commenced September 1st, 2005, approximately one year before the fire. [4] The apartment building had fire alarm panel located on the first floor of the basement hallway. Each floor had fire alarm bell system located in the centre of the hallway on the wall that was wired into the fire alarm panel. fire alarm pull-station was also located on the wall next to the bell system. Each hallway contained smoke or heat detector located on the ceiling. Each stairwell also had smoke detector located on the ceiling above the stairwell. These were also wired into the fire alarm panel. In addition, each apartment had its own battery-operated smoke detector. [5] This apartment building was identical in layout to an adjacent apartment building located at 269 Young Street and owned by the defendant at the time. According to the CMHC insurance certificate prepared at the time of acquisition of both properties by the defendant, the attic of the apartments were divided into two sections by firewall running north and south along the ceiling hallway dividing the eastern portion of the roof from the western portion. [6] On the evening of August 24th, 2006, Ms. Leslie and Mr. Bryson were both in the apartment. Ms. Leslie’s older son was staying overnight at his grandmother’s home. Her younger son was asleep in his bedroom. Mr. Bryson stated he went to bed that evening around 10 p.m. Ms. Leslie was in the livingroom. He believes she woke him around a.m. and told him there was fire as the apartment was full of smoke. They walked to the living room window and saw flames and sparks on the overhanging eves of the roof. He also saw smoke coming out of the window at the north stairwell landing below and to his left. He stated it was quiet. There was no sound of fire alarm in the building or sirens outside. He spoke through the window opening to people standing outside. Shawna White, tenant, told them the exit doorways were on fire and they would have to jump. The smoke in the apartment continued to worsen. [7] Mr. Bryson stated he told Ms. Leslie they were going to have to jump. He went to the child’s bedroom and Ms. Leslie went to her bedroom. Mr. Bryson was able to tie bedding around the child and lower him out of the bedroom window to people below. Mr. Bryson made an effort to go to Ms. Leslie’s bedroom but could not see. He called her name. Hearing no reply he assumed she got out through her bedroom window. He went back to the child’s bedroom to await for assistance from the fire department. To avoid being overcome by smoke he placed stuffed animal over his face to assist his breathing. He repeatedly moved in and out of the window to get fresh air. He still could not hear the sound of the fire department. Mr. Bryson stated that sparks and building fragments were floating around him as he hung from the window. He decided to let go, landing on his feet suffering extensive injuries to his legs. He estimated 10 minutes expired from the time he was awakened to the time he let go from the window. He saw Ms. Leslie lying on the ground when he was on the ground. They were removed to an ambulance and taken to the hospital. [8] Mr. Bryson stated he is no longer in relationship with Ms. Leslie. He has been in another relationship for the past two years. [9] Mr. Bryson stated he was familiar with the apartment building as he previously stayed with his sister who occupied two apartments in the building prior to Ms. Leslie’s tenancy. He stated the hallway doors to the stairwells were self-closing. These doors were open most of the time. The self-closing hinge on the north hallway door adjacent to Ms. Leslie’s apartment was broken and not repaired at the time of the fire. The window in the north stairwell was open most of the time causing the door to slam shut with gust of wind. Mr. Bryson stated there were no fire extinguishers located in the building. There was smoke detector in Ms. Leslie’s apartment hallway ceiling between the living room and bedroom. He had never replaced any batteries in the unit nor did he ever hear the unit beeping at any time. [10] Ms. Leslie testified she was asleep on the living room sofa when she woke up “gaging and gasping, unable to breath”. There was blackness all around her. She walked through the open bedroom door to wake Mr. Bryson. There was lot of smoke in the bedroom. She believes the bedroom clock showed the time as 1:12 a.m. Ms. Leslie stated they called out for help through the window. Shawna White, tenant, told them the building was on fire. Ms. Leslie saw smoke and flames coming out of the lower stairwell window on the north side of the building. She stated the over hanging portion of the roof was in flames. Mr. Bryson helped her to sitting position on the bedroom window and left to go to the child’s bedroom. He later shouted that he had the child. Ms. Leslie stated by this time the room was completely black and she was unable to see. She was weak from breathing. She moved from sitting position hung from the window with her hands before letting go. Ms. Leslie suffered serious injuries from the fall. She recalls it being very quiet outside with no sign or noise of fire trucks. [11] Ms. Leslie testified the hallway door had “cranks” at the top of each door. She stated the doors were always open and she believed that maybe the purpose of the crank was to keep the door open. She stated that Mr. Lloyd, the superintendent, never told them to keep the hallway doors closed. [12] Ms. Leslie stated the smoke detector in her apartment was located between the kitchen and the bedroom. Mr. Lloyd did not tell her whether it was battery operated or wired into the system. She assumed the smoke detector was connected to the main system. She could not recall ever seeing light on the smoke detector. There were never any beeping noises coming from the smoke detector that would indicate weak battery. [13] Under cross-examination she confirmed her discovery evidence that she had no specific recollection of the time of 1:12 a.m. but stated this stuck in her mind from viewing the bedroom clock. She further stated the hallway doors were always open on her floor. When she awoke there was no sound from smoke detector. While sitting on her window ledge she recalled seeing the ambulance on Young Street. She believes the ambulance arrived before the fire trucks. She estimates the time lapse from waking to exiting from the window to be five to six minutes. Ms. Leslie acknowledged she did not know where the fire was in relation to her apartment when she woke up. She made the decision to jump because her apartment was full of smoke, the building was on fire and the fire department was not there. [14] Mrs. Christie, who is the mother of the plaintiff Ms. Leslie, testified she visited her daughter and grandchildren at the apartment on regular basis, at least once per week. She stated the hallway doorways to the stairs were always open. She did not know how they were held open. [15] Shawna White was tenant of apartment 303 located on the north-west side of the upper floor directly across the hallway from the apartment occupied by Ms. Leslie. She testified the third floor hallway doors were always in the open position. They were held open by wooden stops wedged under the doors. She stated she became aware of the fire around 12:30 a.m. when she was awakened by her roommate. They opened the apartment door and noted the hallway was pitch black. They closed the door and went to window in their apartment and called for help. When they went back to the apartment door to attempt to leave, the door would not open. Both Ms. White and her roommate escaped by jumping out the apartment window. [16] On cross-examination Ms. White acknowledged making previous statement wherein she stated she woke up around 12:30 a.m. and asked two visitors in the apartment to leave. In her statement she indicated the visitors were there close to 1:00 a.m. and to her knowledge there was no fire when they left. She adopted this statement as being accurate. Ms. White stated five to ten minutes could have passed until they tried to open the apartment door the second time. She could not recall previously stating she heard door bells sounding. Although she could not recall making this statement she adopted it as being accurate. [17] On re-direct examination, Ms. White confirmed her previous statement that there was no indication of any fire alarms sounding. [18] David Westlake, Deputy Fire Chief, testified the fire was called in at 1:26 a.m. He estimated fire truck arrived on scene at approximately 1:30 a.m. He stated call was made to the ambulance service on route, but he was not aware of the time of arrival. His report indicates that firefighters assisted tenants from the third floor south-west corner apartment using an extension ladder. [19] Robert Orr, now retired, was Deputy Fire Marshall for the Province of Nova Scotia since 1989. He was contacted by the Truro Fire Chief to investigate the fire. The defendant’s insurance company had retained Maritime Fire Investigations, operated by Mr. Greg Clarke, to conduct fire investigation. It was agreed the two would conduct joint investigation. Mr. Orr prepared report based on notes he took at the time. He arrived on the scene around 7:15 a.m. the morning of the fire. The building was essentially wooden structure with vinyl siding on exterior walls and asphalt roof shingles. He observed the roof was completely burned out. The third floor hallway was blackened. Mr. Orr determined the fire started at the south-west corner of the hallway on the third floor. He stated it was fast, hot fire that burned through the ceiling hatch, throughout the roof and down the south stairwell towards the front entrance. The south hallway door was in an opened position at the time of the fire which allowed the fire to go downstairs. He referred to hallway doors as “fire doors” which are required to be self-closing. There was heavy burning on the south stairs. The fire also worked its way north along the third floor hallway. He could not recall if the north stairwell door was opened or closed. [20] In his fire investigation report dated September 5th, 2006, Mr. Orr states he spoke to Mr. Lloyd, the Building Superintendent, at the scene who told him the fire alarm did not operate when pulled by him and had not been working for some time. Also the smoke alarms did not work so the tenants did not have advance warning of the fire. Mr. Orr testified he took notes at the time. He stated the fire alarm and smoke detectors were designed to go off automatically as they were wired into the fire alarm system. The fire alarm system could also be pulled manually at the pull-station in the hallway. He stated no accidental cause of the fire could be found. He suspected some form of accelerant may have been spread on the hallway and south stairs that caused the fire to burn so fast. Although, the cause of the fire remained undetermined following testing, it was suspected that the fire was incendiary in nature. [21] On cross-examination Mr. Orr explained tenants would not have had any warning as the smoke detectors would not have detected smoke and gone off. Although not expressed in his report, Mr. Orr thought the tenants would have been unable to escape via the hallway as the fire burned hot and fast. [22] Mark Wentzel, an electrical engineer, investigated and prepared report at the request of Maritime Investigation Services who were retained by the defendant’s insurers. Mr. Wentzel was called to give evidence by the plaintiff. Mr. Wentzel examined the electrical system five days after the fire, having been advised the fire alarm did not sound in the building at the time of the fire. He testified the fire alarm panel system was 25 to 30 years old. Upon examination, there was no fire damage to the fire panel on the lower floor. He noted corrosion in the panel likely caused by water. He could not find an annual inspection log which he expected should have been located at the panel. Mr. Wentzel testified the fuse on the bell circuit was blown and not the fuse on the fire alarm panel as he stated in his written report to Maritime Investigations. This was determined on subsequent investigation number of months later. He concluded there was no evidence the system was operating at the time of the fire. There was no electrical arcing that caused the fire. He speculated that the fire may have burned the fuse. He was not conclusive on this point nor was this mentioned in his written report. Mr. Wentzel did acknowledge that the wired-in smoke detectors should go off before the bell circuit could possibly overheat to cause the fuse to blow. [23] Ken Lloyd, Building Superintendent, testified on behalf of the defendant. He and his family resided in Unit 204 located on the second floor of the building. He described his duties as general maintenance including cleaning, painting, light fixtures and drywall work. In response to Mr. Bryson’s assertion that the third floor hallway lights were burnt out and the self-closing arm on the north hallway door was broken, Mr. Lloyd stated this may have been the case, and if so, he believed he “would have” changed the light and repaired the arm. Mr. Lloyd explained that he was always working 12 hour shifts at another job during this period which may have prevented him from performing repairs in timely manner. Mr. Lloyd stated there was an on-going problem with the third floor hallway doors being kept open as fire code required they be closed. He stated the tenants would use various items to prop the door open and upon discovery he would remove the door stops and close the door. [24] Mr. Lloyd was asleep at the time of the fire and was awakened by tenant shouting from outside the building. He looked out his window and saw glow coming off the adjacent apartment building. He also saw smoke and flames coming from the south entrance doorway. Mr. Lloyd stated there was no fire alarm bell sounding when he woke up. He got his family out through the living room window. He then exited his apartment door to the hallway and encountered what he described as wall of smoke. He touched his way along the wall and pulled the fire station handle. The alarm did not go off. He then knocked on the door of the other two occupied apartments on his floor alerting the tenants. When he returned to his apartment he saw glow through the window of the closed south hallway door. He then went to the closed north hallway door and felt lot of heat. Mr. Lloyd returned to his apartment and climbed out of his apartment window. [25] Mr. Lloyd testified he had no prior knowledge of the fire alarm system not working. He stated the alarm system had gone off before with false alarms and kids smoking. He estimated the last time the alarms sounded was two or three months prior to the fire. He was not aware if any inspections of the alarm system were ever carried out. He stated he did not recall speaking to Mr. Orr, retired Deputy Fire Marshall, who was investigating the fire. [26] Under cross-examination, Mr. Lloyd did not dispute Mr. Orr’s assertion that he had spoken with Mr. Lloyd. His position was that he did not remember the conversation. When questioned about Mr. Orr’s testimony wherein Lloyd told him there were problems with the fire alarm system not working on previous occasions, Mr. Lloyd stated he would not have said that. He stated it was not his role to maintain the hallway fire alarms. Mr. Lloyd confirmed there were not any fire extinguishers located in the building. He stated the fire alarm system was very sensitive and was previously set-off by cigarette smoke. He did not check the hallway doors on the third floor on the evening of the fire as he was working that evening. [27] Mr. Lloyd stated he spoke with the plaintiff Mr. Bryson while Bryson was sitting on the apartment window ledge “trying to get fresh air”. He told Bryson to wait for the fire department. Mr. Lloyd acknowledged that other tenants on the third floor as well as himself left the building through apartment windows prior to the arrival of the fire department. [28] Mr. Salah was manager of the apartment building owed by the defendant. He testified he would travel from Halifax to check on the property twice month. He did not know much about the fire alarm system and assumed it was working as Mr. Lloyd had previously complained about kids and false alarms “shortly” before the fire. He did not instruct Mr. Lloyd to have the alarm system inspected on regular basis. [29] Under cross-examination, he acknowledge the fire alarm system was not maintained or inspected. [30] Mr. Greg Clarke, President of Maritime Investigation Services, testified on behalf of the defendant. He is certified fire explosion investigator. He investigates origins and causes of fires. Mr. Clarke took extensive photos of the damaged building following the fire in conjunction with his written report. He also submitted samples for testing for possible accelerant that may have caused the fire. The testing was negative which did not surprise Mr. Clarke as flammable liquid, if it existed, could have been consumed in the fire. His conclusion is that the cause of the fire remains undetermined. [31] During Mr. Clarke’s testimony he indicated there were possibly three areas of origin of the fire, namely, the south-west third floor hallway, the south stairwell and the south entrance, given the severity of burning in these areas. He was unable to determine if the fire burned up or down the stairs. Regarding the third floor, Mr Clarke stated the fire burned through the ceiling hatch to the roof. The photos revealed the south-west corner of the roof received the heaviest fire damage. He acknowledged the attic firewall would have slowed the progress of the roof fire from the west side of the roof to the east side of the roof. [32] The Supreme Court of Canada summarized the elements required to make out claim for damages and negligence in the case Mustapha v. Culligan of Canada Ltd., [2008] [3] successful action in negligence requires the plaintiff demonstrate (1) that the defendant owed him duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach [33] The defendant concedes that, as landlord, it owed duty of care to the plaintiffs. The defendant denies it breached the standard of care. Further, the defendant concedes the plaintiffs suffered damages but denies they were caused by any act or omission by the defendant. Duty of Care [34] The common law duty of care arises from the proximity of the relationship between landlord and the tenants of its multi-unit residential building. In this case, the defendant owed duty of care to the plaintiffs to ensure they were reasonably safe from injury while residing in the premises. In my view this would reasonably include the installation and maintenance of an operational fire alarm system. [35] The defendant was also subject to statutory obligations. The Residential Tenancies Act sets out statutory conditions that apply to all residential leases including the requirement to keep the premises in good state of repair and to comply with any statutes regarding safety. The National Fire Code of Canada (adopted by the Nova Scotia Fire Safety Act, S.N.S. 2002, c. 6) required the installation of an operational fire alarm system which must be tested yearly. Also, yearly testing of the smoke alarms was required. [36] accept Mr. Bryson’s evidence regarding the broken self-closing hatch on the opened north hallway door at the time of the fire. also accept Mr. Orr’s evidence of his conversation with Mr. Lloyd regarding the malfunction of the alarm system. Mr. Lloyd lacked any specific recollection regarding these issues. Further, accept the evidence of the plaintiffs and the other witnesses who testified the hallway doors on the third floors were continuously left in an open position and that the plaintiffs were not advised by the defendant nor were they aware that the doors were to be kept in closed position. [37] Although there is no evidence the defendant was responsible for the fire, I find the defendant’s conduct created an unreasonable risk of harm in the event of a fire. The fire alarm system was not functioning at the time of the fire. There were problems with the fire alarm system not functioning prior to the fire which was known to the defendant’s supervisor; the defendant did not maintain, test, or inspect at all, its fire alarm system that was in excess of 25 years old at the time of the fire; the self-closing hallway “fire doors” on the third floor were continually in an open position and the north hallway door adjacent to the plaintiff’s apartment, which was open at the time of the fire, had a broken self-closing latch at the time of the fire; the battery operated smoke alarm in the plaintiff’s apartment did not function at the time of the fire. The plaintiff, Ms. Leslie, was uninformed and unaware as to whether the smoke detector formed part of the fire alarm system or was self-contained and the responsibility of the tenant. [38] The defendant’s conduct resulted in the failure to provide the benefit of warning of the existence of smoke and/or fire in the apartment building. As result, the defendant breached the standard of care owed to the plaintiffs. [39] Having determined the defendant breached the standard of care, am required to determine whether the plaintiffs, on balance of probabilities, established the defendant’s acts or omissions caused the injuries and, therefore, the damages suffered by the plaintiffs. [40] The Supreme Court of Canada has confirmed the “but for” test as the basic test for causation in negligence actions while stating that the “material contribution” test may be applied under certain circumstances. These general principles for causation were reviewed in Resurfice Corp. v. Hanke, 2007 SCC (CanLII): 21. First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statue. 22. This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant”. Similarly, as noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on balance of probabilities.” 23 The “but for” test recognizes that compensation for negligent conduct should only be made “where substantial connection between the injury and the defendant’s conduct is present. It ensures that defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. 24. However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements. 25. First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control: for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying “but for” approach. 26. These two requirements are helpful in defining the situations in which an exception to the “but for” approach ought to be permitted. Without dealing exhaustively with the jurisprudence, few examples may assist in demonstrating the twin principles just asserted. 27. One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of the two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, 1951 CanLII 26 (S.C.C.), [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired shot that could have caused the injury), material contribution test may be appropriately applied. 28. second situation requiring an exception to the “but for” test may be where it is impossible to prove what particular person in the casual chain would have done had the defendant not committed negligent act or omission, thus breaking the “but for” chain of causation. For example, although there was no need to rely on the “material contribution” test in Walker Estate v. York Finch General Hospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central. [41] In order to determine causation using the “but for” test in the present case it would have to be possible for the plaintiffs to prove that, but for the failure of the defendant to maintain functional smoke and alarm system and/or closed north hallway fire door, the plaintiffs would have had sufficient time to exit their apartment and escape down the adjacent north stairwell or to await rescue by the fire department before being overcome by smoke and jumping from the window. In my view, evidence is not available to establish the progress of the rate of smoke and fire from the south end to the north end of the third floor hallway over time line which would be necessary to meet the test. Although the fire was described as hot and fast fire, there was no available evidence to prove on balance of probabilities how much time the plaintiffs would have had to escape down the adjacent north stairwell or how much time they would have had to wait for the fire department had the smoke or fire alarm activated. [42] Based on the evidence, there were three possible locations where the fire may have originated, namely, the southwest corner of the third floor hallway, the south stairwell, and the south entrance. The plaintiffs’ apartment was located on the north east corner of the third hallway adjacent to the north stairwell. There is evidence the fire likely occurred between 12:30 and a.m. The plaintiffs were awakened by smoke at 1:12 a.m. By this time Ms. White and her roommate were already outside the apartment building. The fire was called into the fire department of 1:26 a.m. and the first fire truck arrived at approximately 1:30 a.m., response time of four minutes. [43] When the plaintiffs were first awakened by smoke and looked out their window the fire had already worked its way up through the third floor attic hatch to the roof and from the west side of the attic fire wall to the east side of the roof eves where flames were visible to the plaintiffs. At this time the plaintiffs could also see smoke and flame coming out of the open north stairwell window. Smoke preceded the fire on the third floor hallway. Smoke and fire were able to freely flow to the north stairwell as a result of the fire door being open at the time. There is no evidence capable of establishing with sufficient probability, the time of the fire in relation to the time the fire alarm or smoke detector would have sounded, the proximity of the smoke or fire to the plaintiffs’ apartment at that time and the amount of time it took the smoke or fire to engulf the north end of the hallway. [44] Under the circumstances of this case find it appropriate to apply the “material contribution” test. The fact that the defendant was not responsible for starting the fire does not excuse liability where the defendant’s conduct materially contributed to the plaintiffs injuries. In Athey v. Leonati 1996 CanLII 183 (SCC), [1996] S.C.J. No. 102 the Court stated: 13. Causation is established where the plaintiff proves to the civil standard on balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] S.C.R. 311; McGhee v. National Coal Board, [1972] All E.R. 1008 (H.L.). 15. The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education; 1981 CanLII 27 (SCC), [1981] S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. V. Wardlaw, supra; see also v. Pinske (1988), 1988 CanLII 3118 (BC CA), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d 1989 CanLII 47 (SCC), [1989] S.C.R. 979. 16. In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. 17. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), “fire ignited in wastepaper basket is caused not only by the dropping of lighted match, but also by the presence of combustible material and oxygen, failure of the cleaner to empty the basket and so forth”. As long as defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. 18. This proposition has long been established in the jurisprudence. Lord Reid stated in McGhee v. National Coal Board, supra, at p. 1010: It has always been the law that pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury. 19. The law does not excuse defendant from liability merely because other casual factors for which he is not responsible also helped produce the harm....(Citations omitted). [45] The wired-in smoke detectors, when in working condition, were sensitive to smoke. There is evidence that prior false alarms related to smoking cigarettes in these areas. Failure of the smoke detectors or fire alarms to activate allowed time for the smoke and fire to progress before being detected by the plaintiffs. The open north stairwell door allowed the smoke and fire to spread down the stairwell more quickly. [46] find the relevant factors relating to the plaintiffs’ injuries are sufficiently connected to the defendant’s negligence. Contributory Negligence [47] The defendant claims the plaintiffs share responsibility for any liability assessed to the defendant. That their contributory negligence arises from the unreasonable actions of the plaintiffs when they discovered the fire. Further that the plaintiffs failed to ensure the battery-operated smoke alarm in their apartment was functional. [48] Ms. Leslie stated she was aware that smoke detectors in the hallways and stairwells and the fire alarm were wired into the central system. She assumed the smoke detector located in her apartment was also wired in. She did not observe any lights or beeps coming from the smoke detector in her apartment. There was nothing contained her lease regarding the responsibility of maintaining the smoke detector in her apartment. She stated she was not advised by the supervisor that her smoke detector was battery-operated and was her responsibility to maintain. Ms. Leslie was not challenged on this evidence. Mr. Lloyd’s evidence was that he would normally change smoke detectors in apartments upon requests and after tenants moved out. find the plaintiffs acted reasonably in escaping out of the windows where the building was on fire, they were being overcome by heavy smoke in their apartment and there were no fire trucks present at the time to assist in rescue. [49] Under the circumstances, am not satisfied there was any contributory negligence on the part of the plaintiffs. Damages Mr. Bryson [50] The plaintiff Harry Bryson, is 37 years of age. As result of jumping out of the third floor apartment window and landing on his feet he sustained serious fractures to both ankles and fracture of the fibula of his left leg. He was transported by ambulance to Colchester Regional Hospital in Truro for assessment and thereafter to Queen Elizabeth II Health Services Centre in Halifax. He underwent surgery the same day for his left fibula fracture. Further surgery was performed on his left ankle on September 11th, 2006 and his right ankle on September 14th, 2006. The surgeries involved insertion of plates, screws, and pins. As well, external metal fixtures were attached to immobilize the limbs. The surgeries were performed by Dr. Coles, Orthopaedic Surgeon. Mr. Bryson was immobilized to the extent of non-weight bearing on his legs. He was discharged from the hospital on September 18, 2006. [51] Mr. Bryson testified he remained non-weight bearing until December 2006. He mobilized by way of wheelchair. In December he utilized walker and cane but continued to use the wheelchair for longer distances. He stopped using the wheelchair in the Spring of 2007. During convalescence he stayed with his father in Bible Hill and later with his sister in her apartment. He relied upon them for meals, bathing and toiletry. He continued taking Dilaudid for pain and as well as sleeping pills while residing with his father. Mr. Bryson attended physiotherapy from January to August 2007. Records indicate total of 58 sessions. [52] Mr. Bryson returned to work as production worker at Peter Kohler Windows, Debert on modified hours beginning July 2007. He resumed full-time hours September 2007. He continues to work on the same production line as before the accident. His duties include lifting windows of various sizes and weight. Employees are required to wear steel toed boots which Mr. Bryson wasn’t able to do as they hurt his ankles. His employer allows him to wear sneakers with composite caps over the top. He has worked at other positions withing the plant over the years. He stated his legs are “beat” at the end of the day requiring him to put his feet up for about an hour at the end of work day. [53] Mr. Bryson underwent surgery in July 2010 to remove hardware in his left leg that was causing him pain and discomfort. The surgery has lessened the pain in his leg. He still has difficulty with stairs, but less so after the removal of hardware. He is not able to run or engage in sports that require impact on his feet. He has stopped walking as form of exercise. He is able to do general household duties. He can mow the lawn with sit-down lawn mower. He is unable to lift heavy objects. Mr. Bryson stated he experiences pain and discomfort on daily basis and has arthritis in his ankles. Dr. Coles advised him he is candidate for right ankle fusion. He currently takes Ibuprofen and Tylenol Arthritis tablets. [54] Dr. Coles specializes in treating patients recovering from traumatic injuries. He prepared two updated medical reports and testified at trial. He stated it is possible that further operation may be carried out in the spring of 2011 to remove hardware in Mr. Bryson’s right foot. Although still symptomatic on his left side, Dr. Coles described Mr. Bryson’s right ankle as more severely injured than the left. There is wearing of the cartilage layer consistent with arthritis. This will eventually lead to bone-on-bone contact. The pain will progress as this condition worsens. Dr. Coles expects there to eventually be loss of range of motion and impaired standing and walking. His report of February 2nd, 2010 states in part: The prognosis for these injuries is fair. His articular injury was less severe and long-term do not anticipate he will develop significant ankle arthritis to require further surgical intervention, other than the previously described plans for hardware removal. The right tibial pilon fracture had far more significant impaction and cartilage injury. This places him at significantly increased risk of developing post traumatic arthritis in the future. There is high likelihood that he will develop sufficient arthritis in the right ankle and ultimately require ankle fusion or ankle replacement surgery. At this point, now years post injury, he has not shown rapid progression of joint space narrowing or ankle symptoms. This has likely been in part due to self imposed restriction of his activities secondary to his proximal tibial pain. While there has not been rapid progression of his joint space narrowing, there remain signs of mild lateral joint space narrowing and articular incongruity. It is impossible to predict the time course of his arthritis progression. Given his young age, do anticipate that this will become an issue for him in the future, likely requiring further surgery, other than the previously described planned hardware removal. Hopefully hardware removal will be of some benefit in relieving his proximal tibial pain. Again, he remains at increased risk of developing post traumatic ankle arthritis, particularly in the right ankle. As his symptoms progress, anticipate he will benefit from prescription anti-inflammatory medication to manage his pain and stiffness. Ultimately as his symptoms progress anticipate there is high probability that he will require further surgery in the form of ankle fusion or replacement. This would obviously hinder his abilities to continue in his current work position and may require him seeking more sedentary type work in the future. He would benefit from course of physical therapy after such surgery and might require an off-the-shelf ankle support or brace as well. [55] At trial Dr. Coles indicated that an ankle fusion would be more likely than ankle replacement surgery. Following the surgery, Mr. Bryson would be subject to approximately 12 weeks of restrictive mobility. Ultimately, he would still have some flexion of the foot, but not the ankle. [56] In Malcolm Melanson v. Blake Robbins (2009) NSSC 31, discussed the issue of general damages as follows: In assessing non-pecuniary damages the Court is required to take functional approach to compensation, which requires the calculation of an amount of damages needed to provide reasonable comfort to the Plaintiff in the time following the injury. In Sharpe v. Abbot 2007 NSCA (CanLII): [118] The Supreme Court has directed that courts take functional approach to assessing damages for non-pecuniary loss in personal injury cases. [120] ...that assessing damages for non-catastrophic injuries cannot simply be matter of comparing the seriousness of the plaintiff’s injuries with those of the plaintiffs in the trilogy and scaling the award back from the maximum. As was said in Corkum v. Sawatsky (1993), 1993 CanLII 4687 (NS SC), 118 N.S.R. (2d) 137 (T.D.) at pages 154-5, (varied slightly on appeal, but not on this point 1993 CanLII 3135 (NS CA), [1993] N.S.J. No. 490 (QL), 44 A.C.W.S. (3d) 1089 (C.A.)), an assessment of non-pecuniary damages must take account of all of the circumstances in light of the goal of the award of providing some measure of solace for the pain, suffering and loss of enjoyment of life suffered by the plaintiff. In making this obviously difficult assessment the Court will invariably identify the nature and extent of the injuries in order to determine the relevant cases to be considered in establishing range. The Court will then review those cases and determine an award that, in the Court’s opinion, addresses the unique circumstances of the Plaintiff. [57] In the present case find Mr. Bryson suffered serious injuries to his legs. This has involved considerable pain and discomfort through surgeries, immobilization and the rehabilitation process. Although he has returned to work as production labourer, his condition especially his right leg will continue to deteriorate as result of post-traumatic arthritis causing increased pain and discomfort which will limit his physical activities and, therefore impact on his enjoyment of life. He will require prescription medication for pain and will probably require further surgery in the nature of right ankle fusion and subsequent rehabilitation. [58] In determining the range of awards, have reviewed cases submitted by plaintiffs’ counsel including Campbell-MacIsaac v. Deveau (2003), 2003 NSSC 111 (CanLII), N.S.J. No. 170; Trites v. Steeves (2005) N.B.J. No. 275; Melanson v. Steen (2009) N.B.J. No. 218. Counsel submits an award for general damages in the amount of $120,000.00 would be appropriate. [59] have also reviewed cases submitted by defendant’s counsel including Courtney v. Neville (1995), 1995 CanLII 4486 (NS SC), 141 N.S.R. (2d) 241; Mills v. Bougeois Estate (1995), CanLII 4504 (N.S.S.C.); Phillips v. Kendall Estate (1994), CanLII 4400 (N.S.S.C); and Melanson v. Robbins (supra). Relevant cases submitted by the defendant range in general damage awards from $40,000.00 to $65,000.00 in present day values. [60] have also considered my decision in McKeough v. Miller (2009), NSSC No. 394. [61] In Melanson awarded the sum of $65,000.00 general damages to plaintiff who suffered permanent partial disability from the mid-shaft fracture on his left leg. This resulted in an external rotation deformity and left leg discrepancy causing short leg gait. The plaintiff in that case had reached plateau function recovery and was able to tolerate the physical demands of farming operation. [62] In McKeough the plaintiff received serious injuries to his legs resulting permanent partial disability. He was unable to return to his employment as heavy duty truck driver. He walked with cane and permanent limp. This was caused by an external rotation deformity in his right foot caused by the accident. He would ultimately have to undergo knee replacement on his left knee resulting from post-traumatic arthritis. awarded the sum of $85,000.00 general damages. [63] Under the circumstances of this case, I award general damages in the amount of $75,000.00. Past-Loss Income [64] The defendant does not dispute Mr. Bryson lost wages for period following the accident until his return to work at Kohler on full-time basis. It also acknowledges loss of overtime pay and loss of increase pay level over the period. The plaintiff acknowledges receipt of disability payments in the amount of $10,433.00 from SunLife which has subrogated claim. Having reviewed evidence of past earnings and calculations by the parties, find the total loss to be $26,586.00 which leaves an amount of $16,153.00 payable to the plaintiff. Loss of Future Income and Earning Capacity [65] The plaintiff claims that his earning capacity as capital asset has been impaired. In this instance the onus is on the plaintiff to prove there is real possibility of impairment of earning capacity as opposed to proof on balance of probabilities. In Olson v. General Accident Assurance Co. Of Canada (1998), A.J. No. 544 the Court reviewed number of authorities dealing with loss of earning capacity. 51. In determining loss of earning capacity, find on the basis of the Authorities, the following to be the relevant principles (“Principles”): In assessing damages for pecuniary losses, the object sought is full compensation. Although it is virtually impossible to evaluate future losses with complete accuracy, the trial judge must attempt to put the injured party in the position that the party would have enjoyed if the Accident had not occurred: Engel; [1993] S.C.J. No. citation added] It is not loss of earnings, but rather the loss of earning capacity of person, injured by the negligence of another, for which compensation must be made. It is the capacity which existed prior to the Accident that must be valued. In effect, capital asset has been diminished and the question is what was its value: Andrews; [1978 CanLII (SCC), [1978] S.C.J. No. citation added] The amount or value of the loss of earnings in the future need not be proven on balance of probabilities. Although mere speculation will not suffice, “real and substantial possibility” will: Athey [1996 CanLII 183 (SCC), [1996] S.C.J. No. 102 citation added] Even though an injured person may, notwithstanding the impairment of his or her earning capacity, continue his or her employment, the injured person is nevertheless entitled to be compensated by the person whose negligence caused such injury, for such loss. The usual method of valuing such loss is the amount of future loss of earnings: Pallos, Palmer, Earnshaw, Graff, Personal Injury Damages in Canada, p. 202; In assessing damages for loss of future earning capacity the following factors are relevant: Kwei; 1991 CanLII 645 (BC CA), [1991] B.C.J. No. 3344 (C.A.) citation added] namely whether the Plaintiff: Has been rendered less capable overall from earning income from all types of employment. Is less marketable or attractive to potential employers; Has lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her; Is less valuable to him or herself as person capable of earning income in competitive labour market; [66] Mr. Bryson is currently 37 years of age with Grade 10 education. He worked as an unskilled labourer since leaving high school in 1990 until he was employed with Kholer on full-time basis in 2003 where he remained employed until the accident in August 2006. Mr. Bryson returned to work full-time as labourer on the production line with Kholer in September 2007. Given his history, find he likely would have remained employed as production worker or labourer. His current job involves standing for long periods of time and lifting windows of various sizes and weight. He takes breaks whenever he can and takes advantage of sitting where possible. He needs to rest his legs at the end of the day and currently takes non-prescription drugs for pain. The pain in his legs will continue to exacerbate as result of post-traumatic arthritis requiring prescription medication and eventual surgery, likely, an ankle fusion. His recovery will involve period of immobilization and physical therapy. Mr. Bryson is viewed by his employer as good employee. Evidence from his employer indicates efforts would be made to accommodate Mr. Bryson in the event he becomes unable to continue his current job as result of his injuries. [67] am satisfied that Mr. Bryson suffers from residual disabilities that will worsen over the years in terms of pain and discomfort. find that his earning capacity has been impaired and that he is less capable overall from earning income from all types of employment. As an unskilled labourer with minimal education the possibility exists the he will lose the ability to take advantage of all job opportunities which in this field might otherwise be open to him which renders him less marketable. [68] The fact that Mr. Bryson remains employed by his pre-accident employer does not disentitle him to compensation for the impairment. Nor does the possibility that he continue to be employed indefinitely. It is the loss of capacity for which he is entitled to compensation. The difficulty is in the valuation of the loss. The case law reveals two approaches to assessing damages for prospective pecuniary loss: the mathematical approach and the global approach. The mathematical approach relies upon actuarial evidence and statistics. The global approach attempts to arrive at just, fair and reasonable figure to compensate for the loss where the evidence does not permit calculation with any mathematical precision. [69] Loss of earning capacity is reviewed by our Court of Appeal in Newman v. LeMarche, 1994 CanLII 4075 (NS CA), [1994] N.S.J. No. 457. 22. We must keep in mind this is not an award for loss of earnings but as distinct therefrom it is compensation for loss of earning capacity. It is awarded as part of the general damages and unlike an award for loss of earnings, it is not something that can be measured precisely. It could be compensation for loss which may never in fact occur. All that need be established is that the earning capacity be diminished so that there is chance that at some time in the future the victim will actually suffer pecuniary loss. 23. As Davison, J. said in Guadet v. Doucet et al 1991 CanLII 2708 (NS SC), 101 N.S.R. (2d) 309 (N.S.S.C.T.D.) at p. 331: In my view, there are generally two ways to prove loss of future income. Where the evidence permits, definitive findings can be made by trial judge based on comparison of the income that would have been earned had the victim been permitted to continue in his normal employment with the income, if any, the injured party can reasonably expect following his injuries. In these situations, there is usually evidence of employment history before the accident and evidence of the extent of the present limitations on employment. In these situations, actuarial evidence is helpful as guide to the court. In many cases, the plaintiff will not be able to show, on the balance of probabilities, the extent of his loss and this is particulary (sic) true of young victims who have not had the opportunity to develop an employment history or plans for future career. Similar difficulties will be encountered where the injuries do not represent total disability and it is impossible to determine with any arithmetic precision the extent of the loss. In these circumstances, it is my opinion, that the loss should be considered as the loss of an asset diminution in capacity to earn income in the future. In seeking damages for future loss, the burden on the plaintiff is not as stringent as that which exist when he attempts to prove losses which occurred in the past. In Mallett v. McMonagle, [1970] A.C. 166, Lord Diplock stated at p. 176: The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards. This passage received the approval of the Supreme Court of Canada in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] S.C.R. 146;57 N.R. 241, and was referred to by our Appeal Division in MacKay v. Rovers, supra, at p. 242. 24. In making an award for loss of future earning capacity the court must, of necessity, involve itself in considerable guesswork. Indeed, in many cases where there is less than total disability and the loss of earning capacity cannot be calculated on the basis of firm figures, the diminution of earning capacity is compensated for by including it as an element of the non-pecuniary award. See Yang et al v. Dangov et al (1992), 1992 CanLII 4631 (NS SC), 111 N.S.R. (2d) 109 at 126; Armsworthy Wilson v. Sears Canada Inc. (1994), 1994 CanLII 6381 (NS SC), 128 N.S.R. (2d) 345 at 355. It is thus difficult exercise to begin with and from the point of view of an appeal court it is very difficult to say that such an award is inordinately high or inordinately low except in the most obvious cases. [70] Mr. Bryson currently earns more income from his employment than he did prior to the accident. His earnings can be summarized as follows: 2004 $18,361.00 2005 $16,121.00 2006 $23,450.00 (pro-rated) 2008 $27,315.00 2009 $31,720.00 [71] As stated he continues to remain employed full-time and still takes advantage of overtime work. As his arthritis progresses his discomfort will be managed by prescription drugs. He will likely require an ankle fusion in 10 to 15 years which, averaged, would place him at about 50 years of age. It is at this stage Dr. Coles anticipates he may have to seek more sedentary type of work. Other than for his injuries, Mr. Bryson is in reasonable good health although he is smoker. [72] Recognizing that in cases of this nature valuation of impairment of earning capacity is somewhat speculative, I award the sum of $45,000.00. Loss of Valuable Services [73] In Leddicote Nova (A.G.), 2002 NSCA 47 (CanLII), the Court stated the following with respect to loss of valuable services 50 The question becomes to what extent, if at all, have the injuries impaired the claimant’s ability to fulfill home-making duties in the future? Thus, in order to sustain claim for lost housekeeping services one must offer evidence capable of persuading the trier of fact that the claimant has suffered direct economic loss, in that his or her ability or capacity to perform pre-accident duties and functions around the home has been impaired. Only upon proper proof that this capital asset, that is the person’s physical capacity to perform such functions, has been diminished will damages be awarded to compensate for such impairment. [74] Mr. Bryson’s mobility was restricted to non-weight bearing and use of wheelchair for number of months following the accident. He moved to walker then cane before being able to walk without assistance. He relied upon his father and then his sister for food preparation and physical care. At present, he is generally able to perform household duties that do not involve heavy lifting. He stated he is able to climb ladder and utilize his sit-down lawn mower. It is reasonable to conclude that he would be more restricted in his physical abilities in the future, especially when he undergoes further surgery. He is presently living in common-law relationship. Recognizing that his capacity to perform pre-accident duties at home will be impaired to a limited extent, I will allow the sum of $15,000.00 for past and future loss of valuable services. Damages Ms. Leslie [75] Ms. Leslie is currently 30 years of age. She also sustained serious injuries as result of jumping out of her apartment window to escape the fire. She suffered pelvic ring injury with bilateral fractures to her pelvis, bilateral sacral fractures, right elbow fracture and broken rib. She was transported to the Colchester Hospital by ambulance and from there to the Q.E. II in Halifax. Doctor Coles performed surgery that day which included placement of external fixator. Her elbow was placed in cast. Her range of movement was non-weight bearing during her stay in the hospital. She was discharged from the hospital in October 2006. Ms. Leslie stated she moved to her sister’s home where she resided until December 2006. She used wheelchair with difficulty despite being unable to use her right arm. She was unable to prepare meals and required assistance for dressing and toiletry. Ms. Leslie moved with her children to mobile home close to her parents in December 2006. Her mother attended on daily basis and performed all household duties. Ms. Leslie was able to use walker and by February 2007 she could look after her own hygiene. [76] Ms. Leslie began physiotherapy while in the hospital and after discharge. She acknowledged attendance problems which she attributed to transportation and child care issues as well as how she was feeling on particular day. She joined gym in 2007 using the treadmill. She also utilized swim pass for three months in the Spring of 2007. [77] Ms. Leslie currently describes pain in her tail bone from extensive sitting. Pain in her right elbow with limited extension of her right arm. Pain in her pelvic area from long periods of standing and pain in her right hip. She has discomfort sitting for long periods of time. She walks with limp. She stated she takes Ibuprofin 600 two tablets four times day. She is also prescribed Neproxen. She is able to perform light household duties. Her mother assists with the children who have special needs. Her father handles any heavy lifting. Ms. Leslie described what she termed as worsening of her depression, accompanied by increased anxiety and panic. She said she still has night terrors and flashbacks regarding fire and smoke. She is obsessive compulsive in her behaviour and is continually locking her doors, repeatedly checking smoke-detectors, and checking on her children during the night. She has sought counselling through group therapy and flashback recovery. Her family physician placed her on permanent disability. [78] Ms. Leslie acknowledged having problems with panic and anxiety prior to the fire that prevented her from going out in public and having difficulty sleeping. She turned to food for comfort which led to weight issues. She acknowledged having used illicit drugs. She was receiving counselling from Dr. Fraser, psychiatrist, prior to the fire. She stated that she was feeling much better in the month preceding the fire. She was no longer using drugs and her mother became more involved with her and the children. The children who had been apprehended by Children’s Aid Society, were returned to her in June 2006. [79] Dr. Coles stated the pelvic external frame was removed seven weeks following surgery. The pelvis has healed although she has trendelenburg gait which causes here to “waddle from side to side”. This condition occurs when the abductor muscles are weakened as result of disuse. This condition could improve with appropriate strength exercising. The right elbow fracture extended into the joint where she has scaring due to soft tissue damage. This permanently limits her ability to fully extend her elbow. This would present difficulties tying her shoe and reaching the back of her head as well as interfering with her abilities to perform certain recreational activities in normal fashion. Dr. Coles diagnosed her hip pain as bursitis and gave her cortisone injection. He states in his report: 2. Ms. Leslie is now 3-years post injury. would anticipate her current symptoms and restrictions to be stable. At this point would not anticipate significant improvement in her elbow range of motion or function. X-rays do show some osteophyte formation and mild joint space narrowing. She may develop some arthritis in the elbow in the future. think it is unlikely that she will require any surgery for this. would anticipate her trochanteric bursitis symptoms to improve with an appropriate strengthening program. Her pelvic ring is healed. It does not involve joint structures and, as such, poses no increased risk of arthritis or degenerative changes in the future. She describes seating difficulties secondary to pain in her sacral region. would not anticipate any change in these symptoms with strengthening. This is likely to be persistent source of discomfort for her. [80] Dr. Coles was unable to opine as to whether her symptoms would constitute chronic pain. [81] Dr. Ronald Fraser is psychiatrist with the Capital District Health Authority in Halifax. He is also consulting psychiatrist in the District of Colchester and Pictou Counties. Dr. Fraser’s other current positions include Director, Extended Care Borderline Personality Disorder Clinic, McGill University Health Centre, Assistant Professor at Department of Psychiatry Facility of Medicine at both Dalhousie and McGill Universities and an examiner with the Royal College of Physicians and Surgeons of Canada (Psychiatry). Dr. Fraser stated he specializes in personality disorders. [82] Ms. Leslie was referred to Dr. Fraser in September 2005. Dr. Fraser stated his diagnosis at that time was panic disorder, features of compulsive disorder and aspects of social phobia. His primary diagnosis was borderline personality disorder. [83] Following the fire, Dr. Fraser diagnosed Posttraumatic Stress disorder (PTSD). His medical legal report dated June, 2009 states: Presently, Alissa suffers from Borderline Personality Disorder, Panic Disorder with Agoraphobia, Posttraumatic Stress Disorder and many features of Obsessive Compulsive Disorder. have requested that copies of my reports for the last year be included. Previously, you had accessed her medical chart and had psychiatric reports up to and including July 17, 2008. In terms of your inquires, the documentation provided covers some of the issues at least in terms of her ongoing psychopathology. You specifically asked what injuries were caused or materially contributed to by her having to jump from her burning building. Obviously the most direct attributable psychological injury is that she developed Posttraumatic Stress Disorder secondary to this experience. She was predisposed to developing PTSD due to the fact that she had preexisting anxiety disorders (Panic Disorder with Agoraphobia and features of OCD) as well as having vulnerable personality structure as result of her Borderline Personality Disorder. Her family physician has recently put her on permanent disability and there seems little evidence to suggest that she will ever fully recover from her physical and psychiatric disability and be able to return to work. Certainly, she lives at fairly marginal level in that she has very few leisure activities. She has great deal of difficulty taking care of herself and tends to invest disproportionately in her two sons, both of whom are quite demanding as the eldest has Attention Deficit Hyperactivity Disorder and the youngest suffers from autism. She certainly had difficulties pre-morbidly even prior to the fire but her posttraumatic stress symptoms have worsened her clinical condition. As one would expect adding another co-morbid psychiatric condition certainly does nothing to improve one’s clinical presentation. [84] Dr. Fraser stated PTSD is unique symptomology which he rarely diagnoses even though he treats population in high risk of PTSD. He stated Ms. Leslie meets the criteria for PTSD according to the Diagnostic And Statistical Manual of Mental Disorder (DMS) published by the American Psychiatric Association. DMS sets out criteria for scoring Global Assessment Function (GAF). Ms. Leslie’s GAF score was 45. The lower the score the more impairment. Conversely higher score means minimal symptoms. [85] Dr. Fraser was asked to comment on the expert report filed on behalf of the defendant that questions his diagnosis of PTSD. In Dr. Ruben’s report he diagnosed Ms. Leslie as having complex borderline personality disorder. In response, Dr. Fraser pointed to Dr. Ruben’s GAF score of 90 and stated he did not follow the accepted criteria set out in DMS. He stated Dr. Ruben used his own criteria using what is described as global assessment potential. Dr. Fraser stated GAF means actual impairment not potential. He termed Dr. Ruben’s report as bizarre. Dr. Fraser never scored patient over 70. Dr. Fraser referred to the Ruben report as diagnosis of exclusion concentrating on Ms. Leslie’s pre-existing condition. He stated that Dr. Ruben’s report engaged in an exercise of challenging Ms. Leslie’s credibility as well as his own. Dr. Fraser did not take issue with Dr. Ruben’s report that only two percent of the general population are diagnosed with PTSD. However, Dr. Fraser stated Ms. Leslie does not represent the general population. She had pre-existing diagnosis of borderline personality disorder. Even though she did not meet the criteria for PTSD before the fire, she was at heightened risk of developing PTSD which occurred following the traumatic event of the fire. [86] Under cross-examination Dr. Fraser acknowledged he had not seen Ms. Leslie since June 2009. She was not taking medications when he first saw her in 2005. Although her symptoms persisted over the year prior to the fire, prescribed medications helped with her mood and anger issues. She made positive lifestyle changes. As of February 2006 Dr. Fraser felt she was stabilized and on the road to recovery. She was being referred back to her family physician. [87] Dr. Fraser acknowledged Ms. Leslie’s attendance at his scheduling appointments dropped off after the fire. She also failed to attend regularly to other service provider appointments. She missed 11 out of 15 mental health appointments. Dr. Fraser acknowledged the symptoms she described to him in 2009 were the same as her pre-fire history, but stated other symptoms such as paranoia were new. Dr. Fraser acknowledged reporting to Ms. Leslie’s family physician in March 2009 that Ms. Leslie appeared to be psychiatrically stable and that he had no acute concerns. He reported chronic parenting difficulties with her two children one suffering from autism and the other ADHD. Dr. Fraser stated Ms. Leslie focuses on the issues regarding the children as distraction from her psychiatric issues that still exists. [88] Dr. Ruben, psychiatrist, is an assistant professor, Department of Psychiatry at Dalhousie University. He lectures on anxiety and post-traumatic stress disorder. He also accepts referrals for suspected PTSD following traumatic experiences. Although Dr. Ruben did not treat Ms. Leslie, he interviewed her and reviewed her medical history from age 18 until the year 2009. Dr. Ruben prepared an extensive 90 page report. His conclusion is that Ms. Leslie suffers from complex personality disorder consistent with her history and Dr. Fraser’s diagnosis pre-fire. He states: The GAF score should be rated, in my opinion, on the basis of an individual patient’s long-term, baseline patterns of functioning, rather than on the basis of numerical scale equally applicable to all patients. The GAF score should also be rated in terms of potential functioning, with regard to clearly established psychiatric diagnoses in given case, rather than in terms of actual functioning at given time. Based on these considerations, even though the patient’s actual functioning at present is marginal at best, would rate this patient’s current GAF score (past weeks) at approximately 90. It is not obvious to me that this patient’s current functional patterns are significantly different from what they have been in the long-term, and it is, on the other hand, clear that this patient could be functioning, in terms of any actually diagnosable psychiatric illness, at higher level than is actually the case at present. CONCLUSIONS PROGNOSIS 1. The major conclusion would emphasize in this patient’s case is that, in keeping with what her treating psychiatrist considers to be her primary diagnosis, and with what agree is her primary diagnosis, namely complex Personality Disorder at the more severe end of the Personality Disorder spectrum, this patient’s history, stemming back into her childhood, is marked by continuity and consistency, unfortunately, in markedly impaired and dysfunctional coping and behaviours, disruptive interpersonal relationships, and accompanying non-specific emotional and psychological symptoms. 3. While would not question that Alissa’s experience of the building fire of August 24 25, 2006 was markedly distressing, in fact meaningfully traumatic, for her, would strongly question whether or not this patient ever developed the full syndrome of Post-Traumatic Stress Disorder (PTSD) following this traumatic event, as PTSD does not automatically or inevitably follow trauma. If this patient ever did exhibit the full syndrome of PTDS this is not well documented at all and by the Spring of 2007 indicate that pre-fire sources of distress and impairment came once more to the fore, more or less unchanged. [89] Dr. Ruben testified that Dr. Fraser’s diagnosis of PTSD was not well documented. Even if Ms. Leslie suffered PTSD following the fire, there is no evidence the condition continued after the summer of 2007. [90] Under cross-examination Dr. Ruben acknowledged that DSM is the required method of determining GAF. However, he stated it was suspect and he was not conforming to the scale. He stated he has his own opinion as to how to determine GAF. Dr. Ruben disagreed that Ms. Leslie’s condition was improving prior to the fire stating there was no evidence in support. His view was that Dr. Fraser’s drug prescriptions were making Ms. Leslie worse. He stated Ms. Leslie was the author of her shortcomings to some extent by failing to attend mental health and physiotherapy appointments. [91] find that Ms. Leslie’s pre-existing psychological condition was exacerbated by the accident and that she subsequently developed PTSD. As treating psychiatrist, accept Dr. Fraser’s evidence that Ms. Leslie’s condition was improving prior to the fire. This was result of prescribed medications and lifestyle changes on her part. In diagnosing PTSD, Dr. Fraser’s GAF score was based on DMS criteria adopted by the American Psychiatric Association. In doing so Dr. Fraser identified symptoms that arose post-fire. On the other hand there is no evidence that Dr. Ruben’s own method of determining GAF has been tested or accepted in the field of psychiatry. [92] Having found that Ms. Leslie’s psychiatric condition worsened following the fire, the question is to what extent these symptoms affected her functioning as compared to her level of functioning before the fire. As stated in Athey v. Leonati, (supra): The defendant need not put the plaintiff in position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage. Likewise, if there is measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence then this can be taken into account in reducing the overall award [citations omitted]. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not better position. [93] Ms. Leslie had long standing serious mental health issues prior to the fire including behavioural personality disorder, panic disorder with agraphopia and features of compulsive disorder. The evidence is that BPD is serious mental illness that results in significant impairment of person’s ability to function. Although Ms. Leslie demonstrated signs of improvement prior to the fire, her symptomology remained. Moreover the stresses relating to her two children continue to contribute to her dysfunction. [94] Ms. Leslie is currently 30 years of age. She has reached plateau in functional recovery of her physical injuries. She has permanent loss of elbow extension which restricts her abilities to extend for certain tasks such as tying her shoe and reaching behind her head. It also limits certain pre-fire recreational activities such as throwing ball and riding bicycle. She continues to experience discomfort in her right elbow. There are degenerative changes in her elbow following post-accident that may develop into arthritis in the future. Ms. Leslie will continue to experience pain and discomfort in her sacral region consistent with her injuries. Her trendelenburg gait and bursitis should improve with appropriate strength exercises which she has yet to accomplish. Her mental health issues, that worsened following the accident, affect her progress towards recovery. [95] have reviewed authorities submitted by the plaintiff, namely, Campbell v. Meinen, [1999] B.C.J. No. 1859; Guymer v. Nova Scotia (Registry of Motor Vehicles), [1984] NSJ No. 85; Jonson v. Milton (Town), [2006] O.J. 3232; Hill v. Ghaly, [2000] N.S.J. 215. have also reviewed the following authorities submitted by the defendants Holiday Frank Larch Manufacturing (1975) Ltd., sited as 1986 Carswell 297; Langthorn v. Marshall, [1998] N.S.J. No. 15; Gillis v. MacKeigan sited as 2010 Carswell NS 27. [96] I assess Ms. Leslie’s general damages in the amount of $55,000.00. Loss of Valuable Services [97] Following her release from hospital in October 2006, Ms. Leslie resided with her sister and relied upon her for care. Ms. Leslie’s children moved in with her mother for the period. Ms. Leslie moved to mobile home close to her mother in December 2006. Her mother attended on daily basis performing all household duties and carrying for the children. Ms. Leslie eventually progressed from wheelchair to walker. By February of 2007 she could manage some light housekeeping and hygiene but was still unable to stand for long periods of time. She was not able to manage laundry or sweeping. Currently she is able to do most household chores although it takes longer. She states she has good days and bad days. Her father helps with any heavier work such as garbage and snow removal. She is able to do some gardening with her parents help. Ms. Leslie believes her ability to carry out home chores is deteriorating. She required assistance from her mother following the cortisone treatment last winter. She still has difficulty with stairs. [98] Ms. Leslie’s mother confirmed taking responsibility for the children following the fire. Following her stay with her sister, Ms. Leslie moved into mobile home within walking distance of her mother. For the next six months her mother attended daily, performing all household work and caring for the children. Following that period she would assist but not on daily basis. Approximately one and half years after moving there, Ms. Leslie moved to new location with the children. Her mother stated she continued to help with the children and heavier household work. Her daughter needed assistance washing her hair due to problems with her arms. She moved in with her daughter and children for few months last winter as her arm and hip were getting worse. She stated her daughter currently is unable to bend down to take turkey from the oven. She is unable to bend over to pickup because of pain. She notices her daughter has problems standing for long periods. She still goes to her daughter’s home couple of times week to assist with cleaning and the children. She anticipates this will continue. Prior to the fire, she stated her daughter’s apartment was always spotless. [99] find Ms. Leslie will continue to require some assistance in performing household duties in the future and that her own ability to perform the duties she is now able to manage has been impaired. [100] The plaintiff seeks an award of $35,000.00 for past and future loss of valuable services. In the circumstances, find that amount to be reasonable. Loss of Future Income and Earning Capacity [101] Ms. Leslie, now 30 years of age, was unemployed at the time of the accident and was receiving social assistance benefits. She currently remains unemployed and continues receiving social assistance. Her last job with Convergys lasted from January 2005 until May 2005. Although she stated she experienced back pain from sitting on the job, (which resolved) her main reason for leaving related to problems with one of her special needs children. Ms. Leslie stated that having progressed with her personal and mental health issues in 2006, she was hoping to return to work by December 2006 after making arrangements for more appointments for her child and getting him back to school. She acknowledged her child still demands great deal of her attention. She feels she is now unable to work due to her injuries which prevent her from sitting or standing for long periods of time. She also has limitations with her arm. Ms. Leslie does not appear to be candidate to further her education as she stated she always had trouble concentrating on school work. As well she has history of hearing problems. Her previous work history included working as telemarketer for Electrolux and working at Tim Horton’s. None of these jobs were for sustained periods of time. [102] Regarding her physical injuries Dr. Coles reported that, with an appropriate seat cushion, Ms. Leslie should be able to return to sedentary work such as Call-Center where she was previously employed. In 2007, her psychiatrist, Dr. Fraser was encouraging Ms. Leslie to attempt to return to work, although he recognized her multiple psychiatric diagnosis had diminished her ability to cope with her unique family problems as well as work. In 2009, Dr. Fraser reported that her physical disabilities coupled with the psychological injuries sustained in the accident worsened her clinical condition making it unlikely she would be able to recover and return to work. Dr. Ellis, Ms. Leslie’s family physician, placed her on permanent disability. [103] Based on the evidence I find Ms. Leslie has no meaningful residual earning capacity. find prior to the accident Ms. Leslie was making progress with her mental and personal health issues and would have returned to work in capacity similar to her previous employment as telemarketer or work in the service industry. Ms. Leslie’s earnings from employment over four years prior to the accident (excluding 2002 when she was pregnant and delivered child) averaged $4,500.00 per year. Her income on each of those years was supplemented by social assistance which was her only source of income at the time of the accident. Based on the evidence before the Court, calculation of loss of future income by multiplying annual income of $4,500.00 to normal age of retirement at 65 years would total $157,500.00 less pre-existing contingencies as well as consideration of the possibility that Ms. Leslie would not work to age 65. Under the circumstance, I award the sum of $75,000.00 for loss of future income. [104] The plaintiffs’ award of damages can be summarized as follows:Mr. BrysonMs. LeslieGeneral Damages $75,000.00General Damages $55,000.00Past Loss Income(Subrogated claim) $10,433.00Loss of Valuable Services $35,000.00Past Loss Income $16,153.00Loss of Future Income $75,000.00Diminished Earning Capacity $45,000.00Loss of Valuable Services $15,000.00Total $161,586.00Total $165,000.00 [105] The plaintiffs shall recover pre-judgment interests and costs. will accept written submissions in the event the parties are unable to agree.","The two plaintiffs were forced to jump from the window of their third-floor apartment after a fire erupted in the building. The fire alarm system was not functioning and, despite being aware of previous problems with the 25-year-old system, the defendant had never maintained or inspected it; the self-closing hallway fire doors were continually in an open position; the battery-operated fire alarm in the plaintiffs' apartment was not functioning; and the plaintiffs were unaware of whether their smoke detector was wired into the building or was their responsibility. The male plaintiff suffered serious fractures to both ankles and a fractured fibula. He underwent four surgeries, was non-weight bearing for three months and was unable to run or engage in various sports. Although he had returned to work as a production worker, his condition would continue to deteriorate due to post-traumatic arthritis, most likely resulting in a future ankle fusion. The female plaintiff suffered a pelvic ring injury with bilateral pelvic and sacral fractures, a fractured elbow and a broken rib. She underwent surgery on her pelvis, was unable to look after her own hygiene for five months and developed bursitis in the hip. She continued to experience pain in the tailbone with extensive sitting and in the elbow with extension of the arm, had a permanent loss of elbow extension and walked with a limp. The worsening of her pre-existing anxiety and depression led to the diagnosis of post-traumatic stress disorder. The landlord argued that the plaintiffs' injuries had not been caused by any of its actions. Male plaintiff awarded the sum of $75,000 for general damages, $15,000 for past and future loss of valuable services and $45,000 for loss of earning capacity; female plaintiff awarded the sum of $55,000 for general damages, $35,000 for past and future loss of valuable services and $75,000 for future loss of income. Although there was no evidence that the defendant was responsible for the fire, its conduct created an unreasonable risk of harm in the event of a fire. Without evidence as to how much time the plaintiffs would have had to escape down the stairwell or how long they would have had to wait for the fire department had the smoke or fire alarms activated, the 'material contribution' test was applied to the causation issue. When the plaintiffs first awoke, the fire had already worked its way up through the attic hatch to the roof, where the flames in the eaves were visible to the plaintiffs. Smoke and fire were able to flow freely through the adjacent stairwell as a result of the fire door being left open, and the failure of the smoke detectors and fire alarms allowed the smoke and fire to progress before being detected by the plaintiffs. The female plaintiff was found to have no meaningful residual earning capacity due to the combination of her physical and psychological injuries.",6_2011nssc48.txt
355,"nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 390 Date: 2013 11 21 Docket: NJ 4/2012 Judicial Centre: Regina PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the complainants herein shall not be published in any document or broadcast or transmitted in any way. BETWEEN: HER MAJESTY THE QUEEN and OAKLEY ARNOLD MICHELIN Counsel: Erin L. Schrol and Maura Landry for the Crown Carson D. Demmans for the accused JUDGMENT DAWSON J. November 21, 2013 1. Oakley Michelin has been found guilty, after trial, of two counts of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. CIRCUMSTANCES OF THE OFFENCES 2. These two offences occurred on February 25, 2011. There were two victims, J.M. and D.H. 3. Mr. Michelin and one of the victims, J.M., knew each other prior to the commission of the offence. 4. On February 25, 2011, J.M. called Mr. Michelin to ask him for cigarettes. J.M. and her friend, D.H., walked over to Mr. Michelin’s home to borrow some cigarettes from Mr. Michelin. When the two women arrived at Mr. Michelin’s home, they found that Mr. Michelin had been drinking. They thought he was drunk. The two woman stayed at Mr. Michelin’s home between ten and thirty minutes. While the women were there, Mr. Michelin touched J.M.’s breasts and vaginal area, over her clothing. Mr. Michelin also touched D.H.’s breasts and vaginal area, over her clothing. The touching was brief in both cases; matter of few seconds but no longer than minute according to D.H. Mr. Michelin asked both women to have sex with him. Both women told Mr. Michelin to stop the touching. The women left Mr. Michelin’s home shortly after the incident. THE ACCUSED 5. pre-sentence report was prepared by the probation officer and it provided pertinent background information in respect of Mr. Michelin. 6. Mr. Michelin is 61 years of age. He was born in Labrador and lived there until 1980 when he moved to Regina. Mr. Michelin is divorced and lives alone. He has no children. 7. Mr. Michelin indicates he only has one friend in Regina, but he does not see his friend very often. Mr. Michelin currently has 12 cats that keep him company. Mr. Michelin is on social assistance. He indicates he does not have any drinking or alcohol problems. 8. Mr. Michelin’s last employment was in 1992. He has been on social assistance since 1992. He indicates he has back problem. Mr. Michelin indicates that his back problem and his previous criminal record prevent him from gaining employment. 9. Mr. Michelin has previous criminal record. In 1992 he was convicted of sexual interference, contrary to s. 151 of the Criminal Code and sentenced to nine months incarceration, followed by one year probation. In 1999 he was convicted of sexual interference contrary to s. 151 of the Criminal Code, and sentenced to two years less one day incarceration followed by two years probation. Both victims of his previous sexual offences were children. 10. In addition, in 2002, Mr. Michelin was convicted of fail to comply with probation order and received $100.00 fine. In 2004, he was convicted of four charges of fail to comply with recognizance. These four charges relate to single incident where he attended the Calgary Zoo with friends and the friends’ children. Mr. Michelin was sentenced to 40 days incarceration, concurrent on each charge. 11. The probation officer conducted two risk assessments in preparing the pre-sentence report. The probation officer used the Saskatchewan Primary Risk Assessment, which is risk assessment for general criminal recidivism, to assess Mr. Michelin’s risk to re-offend generally. Using this tool, Mr. Michelin was assessed at medium risk for generalized re-offending. This tool is limited in its assistance in respect of sexual offenders, as it is generally recognized that measures used to predict general recidivism are not very effective in predicting sexual recidivism. 12. The Static-99 Risk Assessment was also employed by the probation officer. This is tool used to predict sexual recidivism. Mr. Michelin scored “one” on the Static-99 R, which places him in the low risk category for being charged or convicted of another sexual offence. CROWN AND DEFENCE POSITION ON SENTENCE 13. The Crown submits that sentence of two years incarceration, followed by three years probation would be an appropriate sentence in the circumstances for Mr. Michelin. The Crown filed the case of R. v. Bird, 2008 SKCA 65 (CanLII), 310 Sask.R. 222 in support their position on sentence. 14. Crown counsel, in sentencing submissions, suggested that Mr. Michelin’s criminal record establishes pattern of sexual assaults. Ms. Landry also suggested that an aggravating factor here is the fact that one of the victims, J.M., has severe cognitive impairment. Ms. Landry also suggested that Mr. Michelin’s previous relationship with J.M. established pattern of grooming. 15. Defence counsel acknowledged Mr. Michelin’s criminal record, but suggested that it does not establish pattern of behaviour, as there has been 14 years since Mr. Michelin’s last conviction for sexual interference. Defence counsel suggested that the court should impose sentence of probation. Defence counsel filed the following cases in support of that position: R. v. Ashby, 2011 SKQB 369 (CanLII), 384 Sask.R. 81; R. v. Epp, 2005 SKPC 71 (CanLII), 267 Sask.R. 191; R. v. Hayko, 1998 SKCA (Sent. Dig.) 58; R. v. Iron, 2005 SKCA 84 (CanLII), 269 Sask. R. 51. THE LEGISLATION 16. Section 718 of the Criminal Code sets out the purpose and principles of sentencing as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 17. As well, s. 718.1 and 718.2 are relevant to sentencing: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, ... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 1. Is Mr. Michelin eligible for conditional sentence order? 18. The relevant provisions of the Criminal Code in force at the time of these offences do not allow a conditional sentence. The offence took place on February 25, 2011. The relevant provisions of the Criminal Code in force at that time (for the period between December 15, 2010 and April 14, 2011) read as follows: Imposing of conditional sentence 742.1 If person is convicted of an offence, other than serious personal injury offence as defined in section 752, terrorism offence or criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by minimum term of imprisonment, and the court imposes sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3. 19. Section 752 provided this definition of ""serious personal injury offence"": 752. In this Part, nan ""serious personal injury offence"" means ... (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with weapon, threats to third party or causing bodily harm) or 273 (aggravated sexual assault). 20. Section 271, at the time of these offences, provided: 271. (1) Every one who commits sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for term not exceeding ten years; ... 21. As stated, at the time that Mr. Michelin committed these offences, s. 742.1 of the Criminal Code precluded the use of a conditional sentence order for a “serious personal injury offence” which carried a maximum penalty of 10 years, when that offence was prosecuted by indictment. Sexual assault was defined as “serious personal injury offence” in s. 752. The offence of sexual assault under s. 271 carries maximum penalty of 10 years. Mr. Michelin was prosecuted by indictment here. conditional sentence order is not available in this case. (Also see R. v. Tuffs, 2011 SKQB 441 (CanLII), 381 Sask. R. 151, at para. 6, [varied 2012 SKCA (CanLII), 385 Sask. R. 178]). 2. What is the appropriate range of sentence? 22. The Crown and defence both filed cases setting out various sentences. In addition to these cases have considered other sentencing decisions to determine the range of sentence for sexual assaults similar to the facts in this case. 23. The Saskatchewan Court of Appeal in R. v. Revet, 2010 SKCA 71 (CanLII), 350 Sask. R. 292, said the following about sentencing in relation to major sexual assault: [24] This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would be considered starting point from which sentencing judge should start, increasing or decreasing the term according the aggravating and mitigating factors: R. v. A.W.C.,2007 SKCA 87 (CanLII), 304 Sask. R. 224, and the cases cited therein. [25] In this case, useful comparison may be made with sentences for sexual assaults upon women who were incapable of giving consent at the time of assault due to being under the influence of alcohol, drugs or sleep, or combinations thereof. These have been treated by this Court as sexual assaults drawing the same starting point sentences as those in all other major sexual assaults: R. v. A.W.C. [26] There is no reason why the same starting point should not be used in case such as this. Sexual assaults upon children are at least as high in terms of gravity, if not higher, than sexual assaults upon adult persons. 24. Other cases also provide guidance. In R. v. Hayko, supra, (a somewhat dated case) the accused was 26 year old single male suffering from epilepsy. He had Grade to education level and drinking problem. He was employed at low level position in his father’s company. During the course of his employment, the accused sexually assaulted and harassed four female employees over period of two years. This involved touching the complainants’ breasts and buttocks, kissing them, and brushing against their bodies. The accused used his status as the boss’ son to intimidate the complainants. The accused did not appear to have prior record. The accused entered guilty plea at the preliminary hearing. The original sentence of $2,000.00 fine and 18 months probation was upheld on his appeal, with the Court of Appeal noting that “certain leniency” had already been granted to the accused. 25. In R. v. Iron, supra, the complainant was hosting joint stag/stagette party for the accused and his fiancé. The accused had 20 drinks over the course of the evening. The complainant awoke to find the accused on top of her. The accused kissed the complainant. He fondled her breasts and digitally penetrated her vagina. The accused had two prior convictions for assault, and persistent problem with alcohol. The trial judge imposed conditional sentence of two years less day. The Court of Appeal set aside the sentence and imposed 20 month sentence of imprisonment. Aggravating factors included lack of remorse, sleeping complainant, and small degree of violence. 26. In R. L.T.W., 2006 SKQB (CanLII), 280 Sask. R. 254, the 13 year old complainant and her sister were approached by the accused in his store. The accused told the complainant’s sister to leave the premises. The accused grabbed the complainant’s breasts from behind and squeezed them. He asked her if she would “like to go downstairs to make some money.” The Queen’s Bench Justice overturned the initial three month custodial sentence and imposed three month conditional sentence. 27. In R. v. Bird, supra, the Crown appealed sentence of 12 months imprisonment and two years probation. The 14 year old complainant was babysitting at the accused’s home at the time of the offence. She was sleeping with the infant in the room and woke to find that the accused had removed her clothing. He fondled and kissed her breasts, stomach, and neck for 30 minutes. He threatened to kill her if she told anyone what had happened. The accused had 16 prior convictions, including convictions for sexual assault and indecent assault. The Court of Appeal held that the crime was serious with many aggravating factors. The Court of Appeal commented that sexual assault on minor will be treated with the utmost seriousness and must be subject to substantial periods of imprisonment, even where the accused is without criminal record. sentence of 30 months imprisonment was imposed. 28. R. v. Clark, 2008 SKQB 443 (CanLII), 326 Sask. R. 294 concerned an appeal from summary conviction. The accused was convicted on number of offences, including three convictions for sexually assaulting 14 year old children. global sentence of two years less day served in the community was imposed. The sentence was upheld on appeal from the Crown. The assaults did not involve penetration, but the accused was in position of trust. 29. R. v. Chrispen, 2009 SKCA 63 (CanLII), 331 Sask. R. 212, is instructive for cases involving brief sexual contact over clothing. The accused was initially sentenced to nine months incarceration. The accused’s appeal against sentence was allowed, with the Court of Appeal imposing nine month conditional sentence. 30. In Chrispen, the 18 year old complainant had advertised her vehicle for sale. The accused contacted her and arranged test drive. During the test drive, the accused braked suddenly on two occasions, putting his arm across the front of the complainant’s body, ostensibly in an effort to protect her. On both occasions, his arm touched the complainant’s upper chest. When the test drive was finished, the complainant sat in the drivers seat. The accused told the complainant that he had forgotten his phone in the vehicle. The accused reached across the complainant to retrieve the phone. In doing so the accused squeezed both of the complainant’s breasts over her T-shirt. The Court of Appeal noted that the offence was “at the lower end of the spectrum with respect to sexual offences that involve inappropriate touching. There was no violence and the touching was brief and took place over clothing” (ibid at para. 26). The court noted the offence was not committed against child and the accused was not in position of trust in relation to the complainant. The offence was singular incident, and the parties had no previous relationship. There was no historical or ongoing abuse. The criminal record of the accused was dated, but included over 40 break and enter and theft convictions for which he was sentenced to significant period of incarceration in 1994. He had no prior record for sexual offences. The court found that this was single incident of sexual touching that occurred over few seconds. The accused was assessed as low risk to re-offend. The Court of Appeal held that “the appropriate range for offences of this nature is conditional sentence ranging between three and twelve months” (ibid at para. 42). 31. In R. v. Tuffs, 2012 SKCA (CanLII), 385 Sask. R. 178, the Saskatchewan Court of Appeal spoke of the difference between sentence involving fleeting touching and one involving the use of physical force. In Tuffs, the complainant was an off-duty R.C.M.P. officer and the accused was local businessmen. Both attended house party. The complainant was sleeping in the basement when the accused moved onto the bed behind her, placed his hands down her pants, and touched her vagina. The accused grabbed the complainant’s hair to force her head around in an attempt to kiss her. There was no penetration. The incident took between thirty seconds to few minutes. The trial judge ordered suspended sentence and 18 months probation. The Court of Appeal varied the sentence, with Lane J.A. noting: 10 We are all of the view that sexual assaults of this nature should draw period of incarceration and, therefore, the sentence imposed was demonstrably unfit. The respondent used physical force which distinguishes this case from the cases of fleeting touching. (See, for example, R. v. Chrispen, 2009 SKCA 63 (CanLII), 331 Sask. R. 212 where conditional sentence was imposed.) ... 12 However, we agree with the trial judge this was case of sexual assault on the lower end of the scale. Although there was claim of bruising, the testimony of the investigating officer said it was slight and there was more of ""redness."" The duration of the incident was very brief, perhaps as little as 30 seconds and, after the complainant pushed off the respondent and told him to go upstairs, he said he was sorry and left. This is not to minimize the effect on the complainant who filed victim impact statement stating she was required to take time off work and was afraid of noises or movement when sleeping as such would scare her out of her sleep. She said she was forced to see psychologist and hated being left alone in the house. She said she found it extremely hard to leave the house on her own and she feared people around her, all as result of the assault. 13 We are satisfied in the circumstances of this case and, in particular, the limited force, the short duration, the lack of penetration and the immediate reaction of the respondent that he had gone too far, sentence of one year incarceration satisfies the sentencing principles and, in particular, does not offend the principle of parity. See, for example, R. v. Iron, 2005 SKCA 84 (CanLII), 269 Sask. R. 51 where the accused, with prior record including two assault convictions, fondled and digitally penetrated the victim and refused to stop until the victim pretended to cooperate was sentenced to 20 months incarceration which sentence took into account the accused having served part of the conditional sentence imposed by the lower court. The Court of Appeal in Tuffs noted the assault was still on the lower end of the spectrum, and was of short duration. The violence used against the complainant was minimal, resulting in “redness” instead of bruising. The Court of Appeal imposed sentence of one year incarceration. 32. In R. v. S.G.T., 2011 SKCA (CanLII), 366 Sask. R. 90, the accused was found guilty of sexually assaulting his 12 year old adopted daughter. The complainant awoke on two occasions to find the accused touching her vagina. On third occasion, the accused touched the complainant’s vagina while they were showering together. The trial judge’s sentence of 18 months imprisonment was upheld by the Court of Appeal. 33. In R. v. Ashby, supra, the accused appealed from conviction and sentence for charge of sexual assault. The sexual assault involved the touching of the complainant’s thigh. This was accompanied by suggestive comments that sex could be exchanged in lieu of payment for damage to the building in which the complainant had lived. Justice Schwann upheld the initial sentence of fine of $1,000.00 and nine month probation order. 34. R. T.T.L., 2012 SKPC 143 (CanLII), 407 Sask. R. 12 involved 29 year old accused who pled guilty to sexually assaulting 10 year old girl. The Crown proceeded summarily. The accused had spread the legs of the complainant and rubbed her vagina over her night clothes for few minutes. The complainant was the friend of the accused’s step-daughter. She was spending the night for sleepover. The accused claimed to have been disciplining the complainant, as he had noticed her engaging in sexually suggestive contact with his step-daughter about an hour earlier. The accused presented low risk to re-offend, either generally or sexually. However, the accused minimized his actions by claiming they were of disciplinary nature. Furthermore, he had no empathy for the effect of the offence on the complainant. Aggravating factors included the abuse of person under 18. However, there was no abuse of trust. The Provincial Court sentenced the accused to six month custodial sentence and one year probation. 35. R. v. Martell, 2012 SKPC 47 (CanLII), 392 Sask. R. 131 involved an accused with no prior record. The sexual assault was against an adult female. The Crown proceeded by indictment. The accused and complainant had attended wedding at Elk Ridge Resort where they, among others, had shared rented cabin. The accused had 15 alcoholic drinks during the evening. The complainant went to bed around 3:00 a.m. and fell asleep naked beside her boyfriend. The accused came into the bedroom, fondled the complainant’s breasts, removed his pants, and positioned himself on top of her. When the complainant awoke she participated briefly until she became aware that the accused was not her boyfriend. The assault lasted 20 seconds. The accused stopped immediately when the complainant indicated her lack of consent. The accused was chased out of the room by the complainant’s boyfriend, who proceeded to render beating unto the accused. There was no evidence of penetration or physical injury. The accused was sentenced to nine month incarceration, coupled with two years probation. 36. In R. v. R.L., 2013 SKPC 80 (CanLII), [2013] S.J. No 370 (QL), the accused pled guilty to assault under s. 266, prosecuted by way of indictment. Although charged with assault, the accused’s conduct was of distinctly sexual nature. The complainant was two months shy of her eighteenth birthday. The accused was her 58 year old uncle. She looked to him as father figure. At his home, the accused pushed the complainant onto his couch, and attempted to take off her clothes. The complainant began crying, but soon stopped as she felt helpless. The accused got on top of the complainant and attempted to undo her pants. The accused touched the complainant’s breasts and vaginal area over her clothing while touching himself under his pants. The accused denied the offence, and blamed the complainant. The accused was self-employed as carpenter. He was medium risk for re-offending generally, and high risk to re-offend sexually. The accused had lengthy, although dated, record for assault, gross indecency, indecent assault, sexual assault, and assault causing bodily harm. There was 17 year gap between offences; and the last sexual assault charge was 26 years prior. The accused was sentenced to 14 months incarceration followed by 12 months probation. 37. In R. v. A.B., 2013 SKQB 56 (CanLII), 413 Sask. R. 185, the accused was charged with sexual interference for touching, rubbing, and hugging 12 year old complainant over blanket. He later kissed her. The accused had criminal record for spousal assault. He was assessed as very high risk to re-offend, both sexually and violently. The accused was sentenced to nine months imprisonment and one year probation. 38. As can be seen from the cases, sentences for sexual assaults, at the lower end of the spectrum, that involve inappropriate touching range from sentence of fine up to sentence of 30 months incarceration. Many of the cases referred to involved the imposition of conditional sentence, which sentence is no longer available. However, those cases are still relevant as they suggest the appropriate period of custodial sentence, albeit at the time of those cases, the sentence was to be served in the community. The Saskatchewan Court of Appeal has indicated, however, that sexual assaults, even assaults on the lower end of the scale should draw period of incarceration. 3. What is the appropriate sentence for Mr. Michelin? 39. will deal firstly with the positions taken by the Crown on sentencing. The Crown bears the onus of proving any fact not admitted. It is the position of the Crown that the record of Mr. Michelin establishes pattern of sexual assaults. The defence counsel takes issue with this characterization. The Crown called no evidence other than the accused’s record on this issue. Mr. Michelin has two previous convictions of sexual interference on children. The most recent of these convictions was 14 years ago. am not satisfied that Mr. Michelin’s record establishes such pattern. 40. Crown counsel also took the position that it is an aggravating factor that J.M. is severely cognitively impaired. Ms. Landry argued, in oral argument, that J.M. was severely impaired. In written argument, the Crown asserted J.M. had noticeable cognitive impairment. J.M. testified at the trial. At the trial, both Crown counsel and defence counsel identified that J.M. had some cognitive impairment. However, neither suggested that J.M. was severely cognitively impaired. Neither counsel had any concern as to J.M.’s capacity to testify and did not suggest that it was necessary for the court to make any inquiry into her capacity or ability to testify. Having heard J.M.’s evidence, it was evident that she had some cognitive issues, but she was not, in my view, severely cognitively impaired. 41. Crown counsel also asserted that Mr. Michelin’s conduct established pattern of grooming in relation to J.M. The only evidence in respect of Mr. Michelin’s relationship with J.M. was from the trial. The evidence did not bear out this position taken by the Crown. There was evidence that J.M. had been involved previously in short relationship with Mr. Michelin. However, the evidence from J.M. appeared to indicate that it was consensual relationship and that the relationship ended consensually. After the relationship ended, J.M. and the accused continued to be acquaintances, such that J.M. sought out Mr. Michelin to get cigarettes and went to Mr. Michelin’s home to borrow cigarettes. The evidence did not indicate that D.H. had any prior acquaintance with Mr. Michelin. am not satisfied there was evidence of grooming. 42. In addition, Crown counsel, Ms. Landry, also challenged the probation officer’s assessment that Mr. Michelin was low risk to re-offend. However, Crown counsel, Ms. Schrol, acknowledged that the Crown was accepting that risk assessment. 43. The case filed by the Crown in support of its position on sentences is the case of R. v. Bird. The circumstances of Bird are far more egregious than the circumstances here. In Bird, the accused assaulted his 14 year old babysitter, who was babysitting in his home. The accused came home and found the victim sleeping with the accused’s infant. The accused removed the victim’s clothing, fondled her breasts, stomach and neck for 30 minutes. This was skin to skin touching. The accused threatened to kill the victim if she told anyone. The accused was in position of trust and the victim was child. The accused had 16 prior convictions, including convictions for sexual assault. Mr. Bird was sentenced to 30 months. 44. The circumstances of the offences here fall on the low end of the sexual assault spectrum. Mr. Michelin was found guilty of touching the breast and vaginal areas of the two complainants. The touching occurred over the complainants’ clothing. There was no skin to skin contact. The incident occurred over a very brief period of time, being a matter of seconds, but no longer than a minute. The touching was fleeting, to use the terminology used by the Court of Appeal in Tuffs. However, unlike the facts in Tuffs, there was no physical force used. In this case, Mr. Michelin did not use violence. Mr. Michelin did not threaten either complainant. Neither complainant was physically harmed. The offence was simply touching. In Tuffs, there was skin to skin touching and physical force used, resulting in redness. The offence also had significant impact on the victim in Tuffs. 45. Mr. Michelin was not in position of trust or authority in relation to either of these complainants. Both complainants were adults at the time of the offence. It was the complainants’ idea to come to Mr. Michelin’s home. Both complainants left Mr. Michelin’s home after the incident, at time of their choosing. 46. Only J.M. filed Victim Impact Statement. J.M. said she simply wants to be away from Mr. Michelin. 47. The mitigating factors here include the fact that Mr. Michelin has been released for two and one-half years on his own recognizance and has abided by all conditions. It is mitigating that Mr. Michelin was assessed as low risk to re-offend. It is also mitigating that the facts of the offence are on the low end of the spectrum. 48. The aggravating factors here include that Mr. Michelin has two previous convictions for sexual offences. It is also aggravating that there were two victims, one of whom had some cognitive disability. 49. The Saskatchewan Court of Appeal has been clear that sexual assaults, even those on the low end of the spectrum, attract custodial sentence. Taking into consideration both the aggravating and mitigating circumstances, the principles of sentencing, the facts, the circumstances of Mr. Michelin, the jurisprudence and the principle of totality, I am satisfied a sentence of one year on each count, to be served concurrently, followed by two years of probation, with conditions, is appropriate. 50. As such, I sentence you, Oakley Michelin, to a sentence of one year on each count, to be served concurrently, followed by two years probation with the following conditions: (a) to keep the peace and be of good behaviour; (b) to appear before court when required to do so by the court; (c) to notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; (d) to report to probation officer within two working days after release from custody and thereafter when required by the probation officer and in the manner directed by the probation officer; (e) to remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer; and (f) subject to the program director’s acceptance of Mr. Michelin, participate actively in and not cause to be discharged from sex offender treatment program approved by the province. 51. The Crown has asked that make an order under s. 487.051 of the Criminal Code for the taking of DNA samples. Pursuant to s. 487.051(2), the court shall make such an order unless Mr. Michelin has established that the impact of such an order on his privacy and security would be grossly disproportionate to the public interest. Mr. Michelin, here, did not seek such an exemption. There will be an order pursuant to s.487.051 authorizing the taking of samples of bodily substances that is reasonably required for the purpose of forensic DNA in accordance with that section. 52. There will also be an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Michelin from possessing any firearm, crossbow or prohibited weapon and restricted weapon, prohibited device, prohibited ammunition and explosive substances for period of ten years. 53. The Crown also seeks an order pursuant to s. 490.012(1) requiring Mr. Michelin to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10. Mr. Michelin has not suggested that such an order would impact his privacy or liberty or would be grossly disproportionate to the public interest. As such make an order in respect of Mr. Michelin under s. 490.012(1) for period of 20 years. J. C.L. DAWSON","HELD: The Court sentenced the accused pursuant to s. 742.1 of the Criminal Code in force at the time of the offence that precluded the use of conditional sentence order for a serious personal injury offence, which included sexual assault. The Court found that the offences fell on the low end of the sexual assault spectrum as there was no skin to skin contact, the contact was brief and without violence or threats. The aggravating factors were that the accused had two previous convictions for sexual offences and that one of the victims had some cognitive disability. The accused was sentenced to a term of one year imprisonment for each count, followed by a term of probation of two years. The sentences were to be served concurrently.",e_2013skqb390.txt
356,"J. U.F.C. of A.D. 1994 926 J.C. S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: NICOLE JEANNETTE GUSELLE and JOHN FREDERIK WORLEY GUSELLE RESPONDENT L. BURROWS for the petitioner B. MORGAN for the respondent JUDGMENT DICKSON J. DATE: NOVEMBER 3, 1995 The parties have been unable to resolve three issuesarising from the breakdown of their 4 1/2 year marriage:1. the date spousal support should terminate2. the value of property in British Columbia3. whether the wife's student loan is a matrimonial debt SPOUSAL SUPPORT The wife is 26 years of age and the husband is 30. They married February 23, 1990 and separated October 5, 1994. They have no children. At the time of separation the wife was unemployed and completely dependent upon the husband. On October 26, 1994 she was awarded interim spousal support of $1,500.00 per month. Unfortunately, one year later, she is still unemployed. She has no income and is still completely dependent upon the support paid by her husband. She has some health problems but no medical evidence was offered suggesting her health prevents her working. She has B.Sc. (biology) degree, which she completed during the marriage. Since graduating in May 1994, she has sent out 40 resumes to prospective employers across all of North America, but she has not been invited to one job interview. can only conclude that her chosen field offers little job opportunity. The wife's counsel contends that his client has been disadvantaged by the marriage breakdown. While that disadvantage has been redressed temporarily by the interim order for support, he argues that she needs more time to make the transition from state of dependency to one of self-sufficiency. He asks that support of $700.00 per month be ordered for another year. The husband takes the position that his obligation to support the wife should end. He says she is capable of supporting herself and should have found job by this time. Alternatively, if she is not capable of working, her inability is not attributable to the marriage or its breakdown. Consequently, he should not have to support her indefinitely. He claims she has not been disadvantaged economically by the marriage but, in fact, is in far better position now than she would have been had she not married. He concedes she was entitled to support for short term following separation but he contends that such term has passed. Furthermore, the trial of this action, commenced in March 1995, was adjourned at the request of counsel for the wife to afford him the opportunity of obtaining recently revealed medical evidence that would bear upon the wife's ability to work. When the trial did continue in September 1995, the wife's counsel offered no such evidence. The husband has been prejudiced by this unnecessary delay, his counsel argues, by having to continue paying support of $1,500.00 per month. He claims recovery of all payments made since April 1, total of $9,000.00 by way of credit to the amount he must pay the wife for her share of matrimonial property. Section 15(5) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) instructs me to take into consideration the condition, means, needs and other circumstances of each spouse when making support order. am to consider the length of time the spouses cohabited and the functions performed by the spouse claiming support. Section 15(7) instructs me to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown and to relieve any economic hardship suffered. Finally, am to promote the economic self- sufficiency of each spouse within reasonable period of time. Certainly the economic condition of the wife at the time of separation was one of dependency. She had no means to satisfy her basic needs and the husband had sufficient means to satisfy that need. Without doubt the wife suffered economic disadvantage when her husband left home. She was suddenly deprived of any source of support and it was necessary for the court to relieve her economic hardship by granting an interim order for support. However, am now being asked to make final order which should, in addition, promote economic self- sufficiency within reasonable time. How can support order promote economic self-sufficiency? have always been troubled by that question. Perhaps the only way is for the order to be not so generous in amount and/or length of time that the dependent person will be tempted to put forth less than maximum effort toward that goal. That would certainly promote self- sufficiency; it may even force it. In this case, think the wife can be expected to achieve self-sufficiency eventually. She is young. She has university degree, albeit one that doesn't attract any job offers. She may have to seek work outside her chosen field, but eventually she should get job if she puts forth diligent effort. What is reasonable time for her to do this? do not think it can be determined prospectively. Any attempt to do so suggests an ability to foretell the future. Instead it should be determined retrospectively; by looking at what has happened as opposed to what is likely to happen. So far she says she hasn't been able to find job. don't think it has been for lack of effort. She has sent out 40 resumes. But do believe she has been rather selective. There is no evidence that she has sought work outside her chosen field. She should have. It should be obvious to her that she is not going to find work in her field, having not one job interview in year and half. During that time she has taken class at university and has done volunteer lab work. She cannot wait indefinitely for an invitation from an employer who needs person with her training. She has had long enough to make the transition to economic independence. She suffered no economic disadvantage from her short-term marriage. She didn't divert her talent or use her time to develop family. In fact, she is better equipped to support herself now than she was when she entered the marriage. am not prepared to terminate the support order retroactively to April 1. Although no medical evidence was offered, there was sufficient testimony to suggest that her health was fragile. However, there is no evidence that such state of health continues. The husband's obligation should endon November 30, 1995, and there will be an order accordingly. VALUE OF BRITISH COLUMBIA PROPERTY Both parties hired appraisers to value plot of unimproved land located in British Columbia resort area. The wife's appraiser, Kevin Veitch, says the fair market value of the property is $64,000.00 on January 20, 1995, which is the date he made his appraisal. The husband's appraiser, Donald Johnson, says the fair market value is $49,000.00 on October 7, 1994, which is the date the action was commenced. The husband's counsel points out that Mr. Veitch assessed the value on date other than October 7, 1994, which should be selected as the date of valuation. Not much turns on that. There is nothing before me to suggest the value on October 7, 1994 was different than the value on January 20, 1995, some months later. Both appraisers used the comparable sales approach. Mr. Johnson's comparables are within miles of the property. Mr. Veitch's comparables are somewhat further away and are located in areas that, unlike the subject property, have experienced some commercial development. The main difference in the two opinions is the discount allowed for distance from the water. Mr. Veitch said only that it was within walking distance of the water. Mr. Johnson pointed out that that ""walking distance"" is 1/2 miles. For these reasons prefer the opinion of Mr. Johnson. The husband bought this land before the marriage for $37,000.00. He put $10,000.00 cash into the property and reduced the amount owing on the purchase price by $400.00 prior to the date of marriage. He is entitled to an exemption for this amountpursuant to section 23 of The Matrimonial Property Act, R.S.S.1981, c.M-6.1. I have found the value of the property to be$49,000.00 on the date the action was commenced. Therefore, $38,600.00 is the value to be divided between the parties. WIFE'S STUDENT LOAN month before the marriage the wife borrowed $3,570.00 under the Canada Student Loans Act, R.S.C. 1985, c.S- 23. The money was used to pay off her debts. When the parties separated there was $3,140.00 owing on the debt which the wife contends should be regarded as matrimonial debt. The husband takes the position that it is not debt of the marriage. Unlike matrimonial property, matrimonial debt is not defined in The Matrimonial Property Act (supra). The only reference to debt is made in section 21(2), which lists the equitable considerations that may justify other than equal distribution of matrimonial property. When dividing matrimonial property, the court takes the practical approach of simply subtracting the amount of debt assumed by party from the value of the property vested in him or her. Matrimonial property is defined as any property that is owned by one or both spouses at the time the application for division is made. To be consistent, it is logical to regard debts the same way; i.e., any debt owed by one or both spouses at the time of the application. The student loan owed by the wife should, therefore, be regarded as matrimonial debt. However, section 23 exempts from distribution matrimonial property owned by spouse before the marriage. To continue consistency, debt must be treated the same way. This debt should, therefore, beexcluded from the equation. Doing so produces fair result. The loan was used to pay debts incurred by the wife prior to themarriage. Those debts are not associated with the marriage. The husband realized no benefit from them and it is illogical and unfair that he should be required to share payment of them. DISTRIBUTION OF MATRIMONIAL PROPERTY Assets Assets In Wife's Possession Value In Husband's Possession Value Furniture 8000. Bank account withdrawal 100 Honda 7000. Volkswagen Van 500 Bank account withdrawal 200. Sale Proceeds (mat.home) 13785 R.R.S.P. ""D.C. Plan"" 15927 R.R.S.P. ""Altamira Plan"" 18905 B.C. Property 38600 Vacation pay 3218 $91035 Less utility bill paid by Wife 155. Less Income Tax Liability 2575 $88460 Total value for distribution $103,505. 1/2 share to each party 51,752. Less value in Wife's possession 15,200. Shortfall 36,552. Less Visa cash advance $3018. Interim Distribution $5000. 8,018. Amount owing to Wife by Husband 28,534. There will be judgment accordingly. There will be no order for costs. In addition, the 6 Cominco Limited shares in thehusband's possession are to be sold and the net proceeds dividedequally. The husband has suggested partial payment by spousal roll-over of R.R.S.P. funds and payment of the balance by monthly payments. The wife's counsel did not consent to such proposal so am unwilling to impose it upon her. Arrangement for payment must be left to the parties. If they require further directions they have leave to apply.","The parties applied to the Court to resolve the issues of spousal support and a division of the matrimonial property. The parties had been married 4 years. There were no children of the marriage. The Wife had a university education but was unemployed. She had already received interim support in the amount of $1,500.00 per month for 1 year. HELD: 1)The support order was terminated effective November 30, 1995. 2)The Court determined the value of a resort property owned by the Husband in BC and permitted an exemption for its value as at the date of marriage. 3)The Court refused to permit the Wife to subtract from the value of her assets, the amount owing on a student loan which pre-dated the marriage. 4)With the exception of those items already discussed, the Court divided the value of the matrimonial property equally.",c_1995canlii5774.txt
357,"J. Q.B. A.D. 1994 No. 109 J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON and A. F. D. and J. A. D. DEFENDANTS K. W. Wasylyshen for the plaintiff No one appearing for the defendant A. F. D. JUDGMENT MATHESON J. April 13, 1995 The defendant, A. F. D. (""A.""), is thestep-father of the plaintiff. He pleaded guilty to criminal charge of sexually assaulting the plaintiff. On February 13, 1987, A. was sentenced to term of ten months imprisonment, subsequently reduced on appeal to six months. On April 4, 1994, the plaintiff commenced an actionagainst A., claiming damages as a result of the sexualassaults. A. did not defend the action. The plaintiffhas applied for judgment assessing her damages. THE SEXUAL ASSAULTS The plaintiff was born on […], 1975. When she was about four years of age she moved from North Portal to Estevan, with her mother and older brother, in order that her mother could marry A.. The sexual assaults commenced when the plaintiff was approximately eight years of age, and continued until she was eleven. The assaults included digital penetration of the plaintiff's vagina, oral sex, intercourse, and attempting to force the plaintiff to have intercourse with her brother. Many of the assaults occurred as the plaintiff was emerging from the bathtub. The Department of Social Services became involved with the plaintiff and her brother while they were still residing in North Portal, as result of alleged physical abuse of the children. The sexual assaults were revealed while the plaintiff was talking to social worker on September 24, 1986. The police were contacted on that date, and the plaintiff was subjected to medical examination the following day. When A. was interviewed by the police, and informed of the specific allegations by the plaintiff, he apparently broke down and admitted several of the assaults as alleged by the plaintiff. written statement was provided by A. to the police. He apparently stated that he knew that what had occurred was wrong but he did not know why he had committed the assaults. The plaintiff subsequently alleged that her uncle, J. A. D., had sexually assaulted her on several occasions, culminating with an episode of kissing and touching of her breasts and genitals on May 19, 1990. The previous episodes had also included oral sex. Following trial, J. was found guilty and sentenced to one year in prison. DAMAGE TO PLAINTIFF The reason the plaintiff was talking to social worker on September 24, 1986, at which time she revealed the sexual assaults by A., was that the plaintiff had been exhibiting unacceptable behaviour, principally stealing and sexually `acting out'. Because of her revelations of sexual abuse in her own home, the plaintiff was placed in the first of series of at least five foster homes and two group homes. At some stage in between, the plaintiff resided with her natural father and his new wife for approximately two years. The termination of that arrangement resulted, as admitted by the plaintiff, from the refusal, or inability, of the plaintiff to abide by any rules. The plaintiff met her husband in one of the group homes in which she was placed. She became pregnant. The pregnancy was deliberate, she testified. Since the age of 14 years she had wanted someone to love and who would, in return, love her. The plaintiff was married at the age of 17 years. Until at least very recently the plaintiff, her husband and their child were only able to exist by virtue of Government social assistance. The plaintiff's husband is now attempting to start rug cleaning business, but the plaintiff, having dropped out of school in grade nine, has no vocational skills nor marketable abilities. The plaintiff suffers from low self esteem. Her husband, aware of the sexual abuses which the plaintiff has endured, has been less than supportive. On the other hand, the plaintiff finds it difficult to be intimate with her husband. She is also constantly apprehensive that her husband, knowing that abused children often become abusers themselves, will accuse her of abusing their own child. In her early teens the plaintiff often harboured thoughts of suicide. She still suffers from constant headaches and nightmares, and becomes either angry or depressed whenever she hears, or reads, anything about child abuse. She still suffers from an inability to concentrate, which resulted in her early departure from school, and an inability to form close friendships. The only person with whom she feels close, and to whom she can talk freely is her step-mother. Her natural mother remained with A. even after his admission of sexually assaulting the plaintiff. Instead of exhibiting sympathy for the plaintiff, her mother has disowned her, stating ""I don't have daughter anymore"". Although acknowledging that she is overly protective of her daughter, the plaintiff is afraid to even take her daughter out of her home lest something happened to her. Whenever she bathes the child the spectre of her sexual abuse haunts her. She has also developed what she referred to as an ""eating disorder"", which, she has been advised, emanated from need to fill void. Attempting to talk about the sexual abuse during group therapy sessions invariably reduces the plaintiff to state of tears. Her testimony in Court against her uncle, which she described as an extremely traumatic experience, culminated in the same tearful outburst. In December, 1994, the plaintiff was subjected to anassessment by a registered phycologist, who reported theplaintiff\'s responses ""suggested she may be experiencingsevere psychological problems and few resources with which tocope with the stress"". It was further reported: Individuals who respond in this fashion are often seen as hostile, depressed and suspicious. They are sensitive to criticism and their interpersonal relationships are chronically poor as they are often hostile and their behaviour precipitates rejection by others. Their long term relationships are often superficial and unsatisfying. This is consistent with Mrs. T.'s report that she had few if any good friends and had chronic difficulties making friends. Such individuals often report or experience variety of vague medical complaints which they may use to control or manipulate others. These individuals often feel inadequate, helpless and lacking in self confidence. They exhibit signs of poor concentration (as evidenced by Mrs. T.'s test taking performance here), appetite and sleep disturbance and low frustration tolerance. The scores obtained here were consistent with the presence of Post Traumatic Stress Disorder or the overreporting of psychological problems. In this case, Mrs. T.'s extensive history of emotional, interpersonal and legal problems suggests that although she may have exaggerated her difficulties to some degree, she is clearly limited in her ability to cope with her problems. The results of the personality testing reported here tended to be consistent with Mrs. T.'s history. Because of her earlier abuse, her lack of supportive family relationships and her subsequent foster home placements, she has not learned how to form appropriate relationships of her own. Frequently, individuals who suffer childhood sexual abuse learn to base their relationships with others on sex and possess few alternate skills. Her early sexual acting out and her problems in her current relationship with her husband suggest that this has been the case here. It is also possible that her illegal behaviour was also born out of the generalised behavioural disturbance which sexual abuse often produces. Individuals who have been the victim of sexual abuse often experience wide range of behavioural, emotional and interpersonal disturbances as result. Unfortunately, she appeared to have limited insight into the source of her problems and had few skills with which to resolve them. The report concluded: The fact of abuse perpetrated by an adult in position of trust and authority almost invariably results in long term harm as can be seen in the case of Mrs. T.. Unfortunately, individuals who are left as suspicious and hostile as Mrs. T. appears to have been, are often poor candidates for psychotherapy as they have difficulty remaining in the therapeutic relationship. Treatment in this case, if available, will likely be prolonged process and may ultimately be of limited success. MEASURE OF DAMAGES In an unpublished article entitled ""Measuring Pain: Quantifying Damages in Civil Suits for Sexual Assault"", by Kate Sutherland (circa 1992) it was concluded that the discrepancies between the amounts awarded by various courts in sexual assault cases could not be readily reconciled. It was noted that many of the awards did not seem to reflect any appreciable degree of comprehension of the extent of the damage incurred by the complainant. In Myers v. Haroldson, 1989 CanLII 4682 (SK QB), [1989] W.W.R. 604, for example, the plaintiff, who had been subjected to brutal rape, suffered minor physical injuries but lasting psychological trauma. Non-pecuniary damages were assessed in the amount of $10,000 and punitive damages in the amount of $40,000. The emphasis of the award was clearly to punish the defendant, rather than compensate the plaintiff for her suffering. It was suggested by Kate Sutherland that, to the extent that damage awards in sexual assault cases represent non-pecuniary damages, the quantification thereof should accord with the principles articulated in J. A. Andrews, Dorothy Andrews, Ivan Stefanyk v. Grand Toy A.a Ltd. and Robert G. Anderson, 1978 CanLII (SCC), [1978] S.C.R. 229. The adjudicator should first attempt subjective understanding of the extent of the plaintiff's loss, and then attempt to compensate the plaintiff for the loss. Only after that inquiry has been completed should concerns regarding uniformity, and upper limits be addressed. The difficulty in assessing non-pecuniary loss was noted by Dickson J. in Andrews at p. 261: There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is philosophical and policy exercise more than legal or logical one. No money can provide true restitution"". After reviewing three theoretical approaches to the problem of non-pecuniary loss, Dickson J. concluded (p. 262) that the functional approach should be utilized assessing the compensation required to provide the injured person with reasonable solace for his misfortune. Money will be awarded because it will serve useful function in making up for what has been lost in the only manner possible, accepting that what has been lost is incapable of being replaced in any direct manner. There was no evidence adduced that the plaintiff incurred any direct pecuniary loss as result of the sexual assaults by A., even to the extent of the cost to her of further education. Thus, an award of damages must be assessed primarily with respect to her non-pecuniary loss. In most personal injury cases the loss to the plaintiff is caused by the negligence of the defendant. An award of aggravated damages is therefore rarely even considered. But when the claim is founded on sexual assault, the damage inflicted is deliberate. Although, as noted by Kate Sutherland (p. 6), aggravated damages are often subsumed in the non-pecuniary award, there is somewhat different purpose in awarding aggravated damages. The focus of non-pecuniary award of damages is on pain and suffering, including emotional distress, and loss of amenities of life. Aggravated damages are intended to address feelings such as humiliation, degradation and fear of repetition, which are associated with the quality of the defendant's wrong doing. Except for constant headaches, the pain and suffering of the plaintiff has not had any physical basis. Nevertheless, the psychological trauma and emotional distress which she has undergone have been severe. She will continue to suffer to the same extent for an appreciable period of time in the future. Even if treatment should be available to the plaintiff, it will likely, as suggested by the psychologist, be prolonged process. Indeed, as further pointed out, the treatment process may ultimately be of limited success. If so, the plaintiff's suffering must then be categorized as chronic. Whiplash injuries result from violent wrenching, usually of the neck. As late as quarter of century ago some orthopaedic specialists doubted the existence of whiplash injuries, because there was no discernable physical basis for the pain being experienced. However, whiplash injuries are now universally accepted as being the result of soft tissue damage and form specific category of compensable loss. The monetary awards throughout Canada for whiplash injuries have varied dramatically, notwithstanding the assertion by Dickson J. in Andrews (p. 263) that ""[e]veryone in Canada, wherever he may reside, is entitled to more or less equal measure of compensation for similar non-pecuniary loss. An upper limit for the most serious type of non- pecuniary loss, subject to inflationary factors, was established in Andrews. Similarly, an upper limit for the most serious type of whiplash injury $45,000 was established in Saskatchewan in June, 1991: Bunce v. Flick et al. (1991), 1991 CanLII 7975 (SK CA), 93 Sask. R. 53 (C.A.). When chronic pain syndrome develops, the upper limit was stated to be $50,000: Demyen v. Sirounis (1991), 1991 CanLII 7983 (SK CA), 93 Sask. R. 66 (C.A.). The plaintiff's pain and suffering and loss of amenities are not dissimilar to those experienced by whiplash victim. The source of pain cannot be readily traced to an identifiable physical injury such as fracture or damaged organ. Yet the pain is real. The plaintiff's loss has already been assessed as severe and there is likelihood that it may be chronic. Thus, she is entitled to an award toward the upper limit of the established range. However, evidence was adduced that trauma was also caused by the sexual assault or assaults on her by her uncle. Although she sued both A. and her uncle, the assessment of damages is only with respect to the damage inflicted by A.. It appears from the statement of claim that the sexual assault, or assaults, by the plaintiff's uncle occurred over much shorter time span than did those of A.. Thus, the greater portion of the damage inflicted on the plaintiff must be attributable to A.. The plaintiff testified with respect to her feelings of humiliation, her low self esteem, her periodic anger and depression, her inability to be fully intimate with her husband, and her constant fear of repetition of the sexual assaults, both for herself and her daughter. She is therefore entitled to an award of aggravated damages. But for the contribution to her loss by her uncle,the plaintiff would be entitled to an award of non-pecuniarydamages in the amount of $50,000 and to an award of aggravateddamages in the amount of $25,000. Because the unclecontributed to the loss encompassed by the non-pecuniaryaward, it must be reduced by 20% to $40,000. The aggravated damage award, however, is intended to compensate the plaintiff for her loss attributable solely to her step-father's wrong doing and is consequently not subject to any reduction. The plaintiff is therefore entitled to judgmentagainst A. F. D. in the amount of $65,000, togetherwith her taxable costs.","The Plaintiff sued her stepfather for damages for sexual assault. He had previously been convicted of a criminal charge based upon the same incident. He did not defend the civil proceedings and the Plaintiff applied to have her damages assessed. The evidence in the civil trial also disclosed that the Plaintiff had be sexually assaulted by her uncle. HELD: Judgment for the Plaintiff. 1)The Plaintiff had been diagnosed as suffering from severe psychological problems as a result of the sexual assaults. 2)The Court assessed the Plaintiff's non-pecuniary damages at $50,000.00 and apportioned 80% of this sum or $40,000.00 to the step-father. 3)The Plaintiff was also awarded $25,000.00 in punitive damages as against the stepfather.",7_1995canlii6153.txt
358,"NOVA SCOTIA COURT OF APPEAL Citation: R. v. Deviller, 2005 NSCA 71 Date: 20050428 Docket: CAC 235613 Registry: Halifax Between: Sidney Darrell Deviller v. Her Majesty the Queen Respondent Publication Ban: pursuant to s. 486(3) of the Criminal Code Judges: Cromwell, Chipman and Oland, JJ.A. Appeal Heard: March 23, 2005, in Halifax, Nova Scotia Held: Conviction set aside and a new trial ordered per reasons for judgment of Cromwell, J.A.; Chipman and Oland, JJ.A. concurring. Counsel: Craig M. Garson, Q.C., for the appellant Kenneth W.F. Fiske, Q.C., for the respondent Publishers of this case please take note that Section 486(3) of the Criminal Code applies and may require editing of this judgment or its heading before publication. The subsection provides: (3) Order restricting publication Subject to subsection (4) where an accused is charged with (a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347, (b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988, the presiding judge or justice may make an order directing that the identity of the complainant or of witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way. Reasons for judgment: [1] The appellant was convicted of sexual assault. He testified at trial, denying the charge, but the trial judge disbelieved his evidence. On appeal, the appellant says that his conviction is miscarriage of justice because the trial judge based her rejection of his testimony on material misapprehensions of the evidence. [2] In my respectful view, the judge’s reasons for rejecting the appellant’s evidence are based on misapprehension of his evidence because she drew an inference from it that is not supportable in law or logic. It follows, in my view, that the conviction constitutes a miscarriage of justice and must be set aside. II. FACTS AND DECISION AT TRIAL: [3] The appellant appeals his conviction by Crawford, J.P.C. on a charge of sexual assault. [4] The complainant, who was between the ages of and 11 during the period charged in the information, testified that the appellant was frequent visitor in her home. While there, she said that he sexually abused her. She was uncertain as to how often this occurred, but said that it was at least once month. The abuse consisted of touching her vagina with his hand and trying to stick his penis into her vagina. On an unspecified number of occasions, he succeeded in putting his penis partly into her and on occasion he ejaculated. After the alleged abuse came to light, she remembered being taken to see doctor, but did not remember how recently before that she had been sexually abused by the appellant. [5] The doctor testified that she had examined the complainant in early January of 2003 and that she had superficial, one centimetre tear in the perineum stretching towards the anus but no contusions or abrasions. In chief, the doctor opined that she had seen this type of injury more than 30 times and that she had never seen an injury like it that had not been caused by sexual assault. However, in her brief written report and under cross-examination, her evidence was that the injury could have been caused or was likely caused by sexual assault. [6] The appellant testified and denied the charge. [7] The trial judge found that she did not believe the appellant’s evidence and that it did not give rise to reasonable doubt. [2] Applying the test in the Crown against D.W., do not believe the defendant’s denial, nor does it raise reasonable doubt in my mind due to the interior inconsistencies of his testimony and to his decreased credibility because of the criminal record he has for offences of dishonesty. [3] In particular, the defendant attempted to portray himself as being good to the children, including the complainant, as being there to get the meals, as providing food for them. Yet, he admitted on cross-examination that the children had been removed from the home because of allegations of physical abuse and lack of food. [4] He also stated that he spent three or four hours day at their home in their presence, yet asked to never be left alone with them because he was afraid of being charged with sexual abuse. [5] When confronted with his criminal record he was defensive and at first denied recollection until the Court’s reply to an objection by his counsel made it clear that unfounded denials would go to his credibility. (Emphasis added) [8] The appellant raises number of grounds of appeal but, in my view, it is only necessary to address one of them: that the judge’s reasons for rejecting the accused’s testimony and finding that it did not raise reasonable doubt are based on misapprehensions of the evidence. 1. Legal Principles: [9] This Court may allow an appeal in cases such as this if persuaded that there has been miscarriage of justice: see s. 686(1)(a)(iii) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. trial judge’s misapprehension of the evidence may result in miscarriage of justice, even though the record contains evidence upon which the judge could reasonably convict. [10] What is misapprehension of the evidence? It may consist of “... failure to consider evidence relevant to material issue, mistake as to the substance of the evidence, or failure to give proper effect to evidence ...”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 218. trial judge misapprehends the evidence by failing to give it proper effect if the judge draws an “unsupportable inference” from the evidence or characterizes witness’s evidence as internally inconsistent when that characterization cannot reasonably be supported on the evidence: Morrissey at p. 217; R. v. C.(J.) (2000), 2000 CanLII 1931 (ON CA), 145 C.C.C. (3d) 197 (Ont. C.A.) at para. 11. In Morrissey, for example, the trial judge stated that the evidence of two witnesses was “essentially the same”, conclusion not supported by the record. This was held to be misapprehension of the evidence. In C. (J.), the trial judge was found to have erred by characterizing the accused’s evidence as “internally inconsistent” when this conclusion was not reasonably supported by the record: at para. 9. [11] Not every misapprehension of the evidence by judge who decides to convict gives rise to miscarriage of justice. conviction is miscarriage of justice only when the misapprehension of the evidence relates to the substance and not merely the details of the evidence, is material rather than peripheral and plays an essential part in the judge’s reasoning leading to the conviction: see Morrissey, supra at 221; R. v. Lohrer, 2004 SCC 80 (CanLII), [2004] S.C.R. 732; S.C.J. No. 76 (Q.L.) at paras. [12] It follows, therefore, that to succeed on appeal, the appellant must show two things: first, that the trial judge, in fact, misapprehended the evidence in that she failed to consider evidence relevant to material issue, was mistaken as to the substance of the evidence, or failed to give proper effect to evidence; and second, that the judge’s misapprehension was substantial, material and played an essential part in her decision to convict. 2. Did the judge misapprehend the evidence? [13] The appellant submits that the judge misapprehended his evidence in relation to his treatment of the children and their removal by the child welfare authorities. As noted earlier, the judge said in her reasons “... the [appellant] attempted to portray himself as being good to the children, including the complainant, as being there to get the meals, as providing food for them. Yet, he admitted on cross-examination that the children had been removed from the home because of allegations of physical abuse and lack of food.” The appellant says that in this passage, the trial judge concluded that he was liar because she erroneously found an inconsistency between him portraying himself as being good to the children when, according to the judge’s erroneous conclusions, he was somehow responsible for physically abusing and starving them. [14] In my respectful view the judge misapprehended the appellant’s evidence on this point because she failed to give proper effect to the evidence. The judge, respectfully, found an inconsistency which is not supported by the record and attributed to this evidence relevance which it does not possess in either law or logic. There was no evidence before the court of the truth of the allegations of mistreatment of the children referred to by the appellant. There was, therefore, no inconsistency in the appellant’s evidence on this point. [15] It will be helpful to review the trial evidence on this point in more detail. [16] The appellant acknowledged in his testimony that he was in relationship with the complainant’s mother and that the mother and he had child together. In all, counting the complainant and that child, there were five children in the household. The appellant testified that while visiting the household, he often made meals and contributed to the purchase of groceries. His evidence-in-chief was: Q. ...And can you describe typical when first of all, when [the complainant’s mother] was living on William Street back in 2001 2002, can you describe or tell us how much time you spent at that residence? A. Well, spent little bit of time, but not all the time, completely all the time. In the mornings used to go to the wharf at night and look after the staynors and unload them and then would say somewhere around 6:00 or 6:30 I’d go and wake up the kids and that, make sure they had their breakfast and that, get ready. Get up and get ready and go to school. Q. And then how long would you stay there in the morning? A. would stay would stay there till somewhere would say 8:00 or 9:00. Just about the time that [the complainant’s mother] was going to school. At the time that she was going to school to upgrade her license or whatever it was that she was doing. And then I’d go from there and go back to work again. Q. And then when would you return back to the residence on William Street? A. would return somewhere around would say around 4:00. Between 3:30 and 4:00. Q. And how much time would you spend there in the afternoon? A. would stay there somewhere between would say about three hours at the most. Three to four hours at the most and would cook the kid’s supper and then after they were done would leave there somewhere around would say between 7:30, 8:00. don’t know exactly. Sometimes would stay little bit longer. Q. ... When did [the complainant’s mother] and the kids move? A. In the year the year 2002. In October. November. In November. We moved in there the 15th think it was the 15th or 14th of November we moved into Chebogue. can’t say for sure. Q. And did you spend any more or any less time at the residence in Chebogue after the family relocated? A. spent maybe an extra hour, that was about it, you know because it was deer hunting time and went down in the woods there and was deer hunting and that and left from there and went home. Q. How was your relationship with the [A.]’s children? A. Well, the way the way everybody says that was bad to them and my relations, figured that was good to the children. loved them very much. (Emphasis added) [17] would just note at this point that the appellant made no bones about the fact that people claimed he treated the children badly, but felt that this was not an accurate assessment of his role. [18] This subject was addressed during cross-examination. The appellant agreed that the children had been removed from the home by Children and Family Services because of allegations of inadequate food and physical abuse. His testimony was: Q. But you’d do anything for the kids. You were talking about how nice you were with the kids, right? You like them. You like [the complainant] best, right? A. Yes. Q. Those those children, where are they now? A. They’re in foster homes. Q. Foster homes. A. don’t know where they’re at, but Q. So they were removed by Children and Family Services? A. Yes, with no permission, er, any information. Only thing come out is that guess it started from the oldest boy said that we were starving him to death. Q. You you agree that part of was because of alleged physical abuse on [N.], right? That’s part of why of they took the children that you know, right? A. Yes. (Emphasis added) [19] There was no evidence as to the truth of the allegations which apparently resulted in the children being removed by Children and Family Services. There was no other relevant evidence about child protection proceedings or the appellant’s treatment of the children other than the complainant. The appellant’s evidence during cross-examination was that the children had been removed on the basis of “no information”. [20] The trial judge saw significant inconsistency between the appellant’s evidence-in-chief and cross-examination on this subject. She said that the appellant “attempted to portray himself as being good to the children...” and yet had admitted on cross-examination “... that the children had been removed from the home because of allegations of physical abused and lack of food.” [21] There are two possible explanations as to how the judge thought that the appellant’s evidence on this subject had “interior inconsistencies.” [22] First, the judge may have thought that the accused was suggesting that he was well regarded for his kindness to the children when, in fact, quite the opposite was the case. But that line of reasoning is not available on this record. The problem with this line of reasoning is that the appellant readily acknowledged in his direct evidence that “everybody” said he did not treat the children well although he thought that he had. The fact that particulars of the nature of his alleged mistreatment were canvassed during his cross-examination does not reveal any inconsistency with respect to how he felt his actions were regarded and the way others regarded them. Quite the opposite: he said in-chief that “... everybody says was bad to them.” This first possible line of reasoning does not justify the judge’s finding of inconsistency in the appellant’s evidence on this point. [23] second possible line of reasoning is this. The judge may have treated the evidence that the children had been removed amidst allegations of abuse as some evidence that the appellant had, in fact, mistreated them. On that line of reasoning, there would be significant inconsistency between the appellant’s stated treatment of the children and his actual treatment of them. This is the appellant’s main point. He submits that the judge found him to be liar because he claimed to have been good to the children when he was in fact responsible for physically abusing and starving them. [24] agree with the appellant that this line of reasoning was not open to the judge on this record. The appellant’s evidence about the involvement of Children’s Services did not permit the judge to draw any inference that the children had, in fact, been badly treated or that the appellant was responsible for such treatment. The appellant did not admit any mistreatment; he testified about an allegation. But an allegation is simply that. It is not evidence of its truth. The appellant’s evidence that Children’s Services acted is not evidence of the truth of the allegations leading to the removal of the children. Drawing such an inference is like inferring guilt from the fact that person is arrested and charged. It was no more inconsistent for the appellant to say that he thought he treated the children well even though Children’s Services had intervened than it would be for person who had been arrested and charged with crime to say that he had not broken the law. [25] Apart from the two possibilities have discussed, there is no other way in which the appellant’s evidence on this subject could be viewed as internally inconsistent. But in the circumstances of this case, either use of this evidence results from failure to give proper effect to the evidence. Either use reveals a chain of reasoning which is not available to the judge in law or in logic on this record. [26] I conclude therefore that the judge misapprehended the evidence on this point by failing to give proper effect to this evidence. 3. Was the evidence substantial, material and essential to the conviction? [27] In my view, the judge’s misapprehension of the evidence was substantial. She ascribed to the evidence about the involvement of Children’s Services, relevance that it simply could not have. The inference which the judge drew from this evidence could not have been more unjustified. [28] The misapprehension was, in my view, also material. Credibility was critical issue at this trial. It was virtually two witness case: the complainant said the appellant abused her and the appellant denied it. Thus, evidence bearing on the appellant’s credibility was highly material to that critical issue. [29] That leaves for consideration whether the misapprehended evidence played an essential part in the judge’s reasoning leading to the conviction. To consider that question, it is helpful to place the misapprehension in the context of both the judge’s reasons as whole and the whole of the evidence at trial. [30] The trial judge gave two main reasons for rejecting the appellant’s evidence. One was the “interior inconsistencies” in his testimony. With respect to these “interior inconsistencies”, the judge refers “in particular” to the evidence which have just discussed in relation to Children’s Services which she misapprehended and to the appellant admitting that he had spent three or four hours day at the children’s home yet testifying that he had asked never to be left alone with them. It bears noting that these are the only two specific “interior inconsistencies” referred to in the judge’s reasons and the reasons do not suggest that there were others which are not specifically mentioned. [31] The judge also referred to second main reason for disbelieving the accused: his “decreased credibility” because of his criminal record for “offences of dishonesty”. [32] It seems, therefore, that these two main points, of which the misapprehended evidence is one of three specific examples, were important to the judge’s conclusion respecting the appellant’s credibility and, therefore, to her finding of guilt. The misapprehended evidence in relation to Children’s Services is, therefore, one of the three matters specifically referred to in the judge’s reasons for rejecting the appellant’s evidence. It is given at least as much emphasis as the others. It was not presented as secondary consideration. The only reasonable conclusion, in my view, is that it was sufficiently important in the judge’s mind that it was an essential part of her reasoning leading to the conviction. [33] An examination of the judge’s other reasons for disbelieving the appellant in the context of the trial record does nothing to detract from the conclusion that this misapprehension was essential to the conviction. The judge’s reasoning on the other points is also problematic. [34] Consider the judge’s second point of supposed internal inconsistency in the appellant’s evidence. As noted, the judge found inconsistency between the appellant’s evidence that he spent three or four hours day in the children’s home and his evidence that he asked never to be left alone with them because he was afraid of being charged with sexual offence. In my respectful view, this finding of inconsistency rests on mistake as to the substance of the appellant’s evidence on this point or at least on questionable adverse interpretation of evidence that was ambiguous. [35] The judge seems to have thought that the appellant said that he had asked not be left with the children as group whereas his testimony seems to have been that he had asked not to be left alone with any one of the children. [36] The appellant’s evidence was as follows: Q. And did you ever spend any time alone with [the complainant] when [the complainant’s mother] was away from the home? A. No, never did. Q. Can you remember one time when you spent time alone with [complainant] at the house? A. No, never, ever asked [the complainant’s mother] never, ever let me leave me alone with none of the children and she asked me why told her. said lot of friends of mine got charged for molesting kids and said wouldn’t want that on me and now have. Q. And you say that you wouldn’t have been alone because you asked [the complainant’s mother] not to leave you alone with the kids because you were afraid A. With none of the children. A. With none of the children. Q. You were afraid that you might be charged with sexual assault or allegations of that? A. No, didn’t say that. said asked her not to leave me with any of her children because had few friends that was charged for that same offence and do not want it on me, is that’s that’s what told her. Q. And so you’re telling us that you never spent time alone with any of those children No, sir. (Emphasis added) [37] The record, in my respectful view, does not support the judge’s conclusion that there was some significant inconsistency within the appellant’s evidence about spending time with the children and his not wanting to be left alone with them. His evidence appears to have been that he asked not to be left alone with any one child, but at the very least, his evidence is equally consistent with that interpretation as the one on which the judge’s finding of inconsistency is based. [38] The judge’s reasons and the record on this point do not in any way undercut the importance of the misapprehension in relation to the involvement of Children’s Services. [39] The judge also said that she rejected the appellant’s evidence because of his criminal record and the way he had testified about it. The appellant admitted in cross-examination that he had several convictions for “break and enter” on his record. In relation to this testimony, the judge said in her reasons that “... [w]hen confronted with his criminal record he was defensive and at first denied recollection until the Court’s reply to an objection by his counsel made it clear that unfounded denials would go to his credibility.” [40] With respect, it is difficult to see in this record either that the appellant “at first denied recollection” or that the judge made it clear to him that “unfounded denials would go to his credibility.” The Crown concedes that the trial judge may have overstated the case in this respect. The appellant’s evidence, in relevant part, was as follows: MR. SCOVIL [Crown counsel]: You told my friend you haven’t been charged with sexual assault at any time, right? A. was charged for indecent exposure, not charged for sexual assault. Q. You were charged and convicted, correct? A. Yes, was. Q. For indecent exposure. A. Yes. Q. That was Q. And was think was 17 years old at the time. Q. In 1996 [sic], correct? You got one month probation on that A. Yes. Or six months probation A. Yes. Q. -and one month custody, correct? A. Well, don’t remember that. A. That’s been quite few years ago. Q. In 1971 [sic] you were convicted and correct me if I’m wrong A. Oh, whoa, go back. What year did you say that was? Q. 1977 [sic]. A. The first time? Q. 1976, sorry. A. No, not me. Sorry, you got the wrong person. Q. You were convicted of indecent exposure. A. No, sir, indecent exposure way back when was about 16 years old. You got two charges there, no, no. No. Q. From the 8th of March, 1976. A. That’s quite few years ago. remember being charged once for for indecent exposure and that was it. Q. You were convicted of break and enter on A. What’s that got to got with this? Q. You were convicted just answer my questions. Q. On the 7th of September, 1971, you were convicted of break and enter and you got three months for that, correct? A. don’t remember. Q. You were convicted of break and enter in 1972 Yes Q. on the 8th of A. If could say something. I’ve been in trouble since was 16 years old Q. No, I’m asking the questions, so you just answer and if Okay, Q. anything that I’m asking is improper A. Okay. MR. ROBICHAUD [Defence counsel]: Your Honour, don’t know if the property related criminal history is relevant to the to the MR. SCOVIL: Well- THE COURT: It’s relevant only to credibility and if the witness answers “yes” or “no” and that’s the end of the matter. We don’t hear any details about the convictions, simply whether or not they happened. MR. SCOVIL: And certainly under Corbett application if one is saying I’ve never been convicted THE COURT: Right. MR. SCOVIL: of this and that, then it raises THE COURT: Then it becomes relevant. MR. SCOVIL: and that’s what was there and therefore and of course those kinds of crimes of dishonesty and THE COURT: Uh, huh. MR. SCOVIL: that effects always question of credibility. THE COURT: Right. MR. SCOVIL: You were convicted on the 8th of May, 1972 of break and enter, again one count and you received suspended sentence of two years, correct? Q. You were convicted in 1973 of three counts of break and enter, one count of theft, er, two counts of theft under for which you received total of six months, is that correct? A. Yes. Q. And in 1974 you were convicted of break and enter and you given 18 months for that, correct? 18 months custody? A. For what year was that? Q. Break and enter. Q. And you already mentioned the indecent exposure. In 1974 you were again convicted of break and enter and you got 90 days intermittent on that. A. Yes. Q. And in 1990, or, 1982, the 5th of January, you were convicted of break and enter for which you received six months, correct? A. Yes. Q. And in 1994 you were convicted of break and enter for which you received suspended sentence and 18 months probation. [41] The accused readily admitted his conviction for indecent exposure and made no attempt to hide the fact that he had been in trouble since he was 16 years old. It is, with respect, not fair summary of the substance of this evidence to say, as the judge did, that the appellant “at first denied recollection” of his criminal record or that his responses changed only when the judge made it “clear to the accused that unfounded denials would go to his credibility”. [42] With respect, the learned trial judge was mistaken as to the substance of the evidence in this regard. Once again, the record on this point does not to my mind in any way undermine the importance of the misapprehension of the evidence in relation to the appellant’s treatment of the children and the involvement of Children’s Services. [43] An examination of the rest of the record does not detract from the centrality of this misapprehension of the evidence to the conviction. The rest of the evidence certainly justified conviction if accepted beyond reasonable doubt. But it had its difficulties. The medical evidence “assisted” the judge, but appears not to have been decisive in her reasoning. As the judge acknowledged in her reasons, there were weaknesses in the complainant’s testimony. The judge appears to have attributed some of these weaknesses to the unduly complicated questions put to the complainant. The judge said that perhaps more helpful answer would have been elicited if the complainant had been asked simply how may times she had been assaulted. Unfortunately, the judge misapprehended the evidence on this point. The record discloses that the complainant was asked precisely that question. [44] I would conclude, therefore, that the judge’s finding adverse to the appellant as regards his credibility is based on a misapprehensions of the evidence. Viewed in the context of the reasons and the record as a whole, that misapprehension played an essential part in the judge’s reasoning leading to the appellant’s conviction. The misapprehension is, therefore, one that gave rise to a miscarriage of justice. V. DISPOSITION: [45] I would set aside the conviction and order a new trial. Cromwell, J.A. Concurred in: Chipman, J.A. Oland, J.A.","The appellant was convicted of sexual assault. The court disbelieved his evidence, principally because it was found to be internally inconsistent. The court found that the appellant had attempted to portray himself as being good to the children but had admitted on cross-examination that the children had been removed from the home due to allegations of physical abuse and lack of food. There was no evidence before the court as to the truth of these allegations and the appellant had stated in his evidence that everyone thought that he treated the children badly. The appellant appealed. Appeal allowed; conviction set aside; new trial ordered. The trial judge misapprehended the evidence because she attributed to it a relevance that it could not have in law or in logic. The appellant’s evidence about the involvement of Children’s Services did not permit the judge to draw any inference that the children had, in fact, been badly treated or that the appellant was responsible for such treatment. The misapprehension, examined in the context of the judge’s reasons as a whole and the entire record was substantial, material and played an essential part in the judge’s reasoning leading to the conviction; the misapprehension had given rise to a miscarriage of justice.",d_2005nsca71.txt
359,"J. This fiat is subject to an Order pursuant to s. 486(3) of the Criminal Code that there be no publication of the complainant's name or of any evidence that would identify the complainant in any media. Q.B.CR.N.J. A.D. 1995 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN G. D. I.J. Cardinal for the Crown R.T. McCann for the accused JUDGMENT (ORAL) BAYNTON J. September 27, 1995 The accused is charged with sexually assaulting thecomplainant between the dates of October 22, 1986 and March31, 1988 at Beardy's Indian Reserve. The accused was born on October 22, 1968 so that he ceased to be ""young person"" within the meaning of the Young Offenders Act, R.S.C. 1985, c. Y-1, on the first date specified in the indictment. The Issue The sole issue before me is whether it has been proven beyond reasonable doubt that the sexual assaults alleged occurred on or after October 22, 1986, the date that the accused became an adult. The determination of the specific dates of multiple sexual assaults of children over period of time is not usually of critical importance, but it is in this rather unique case. Under s. of the Young Offenders Act, Youth Court Judges have exclusive jurisdiction respecting offences committed by persons while under the age of 18 years. The Court of Queen's Bench accordingly has jurisdiction only when such matter is transferred to it pursuant to s. of the Act. The case before me has not come to me by way of transfer from the Youth Court. concurrent proceeding respecting these same events is pending in Youth Court. The Facts Neither the complainant nor the accused are particularly credible as witnesses, each having been convicted of numerous criminal offences involving deceit, dishonesty, and disrespect for the law. Each has spent considerable amount of their young lives in jail. found the complainant to be more credible witness than the accused. She did not attempt to embellish or exaggerate her testimony even though she had the opportunity to do so. She is now 19 years of age. She had child shortly after she turned 14 years of age from more recent abusive relationship and is now trying to come to grips with what was done to her during her childhood. The accused is now 26 years of age and has two children. He quite frankly admitted that he had attempted to have sexual intercourse with the complainant when she was or 9, but that he was not able to perform the act. He claims that he was under 14 at that time and that he subsequently moved from the Beardy's Indian Reserve to Prince Albert while he was still young person and had no further contact with the complainant. He accordingly acknowledges that he sexually assaulted the complainant on that one occasion but claims it occurred long before he became an adult. He characterizes the incident as attempted intercourse during youthful experimentation. He also denies any subsequent acts of improper touching. found the accused's testimony to be largely self- serving. have carefully considered the exhortation in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742 in concluding that his version of the events could not reasonably be true. Nor did his testimony leave me with any reasonable doubt that he had forced sexual intercourse with the complainant in the fashion she described and that he touched her on her vagina on one or two subsequent occasions. There is however no convincing evidence before me that any of the incidents of sexual assault committed by the accused occurred on or after October 22, 1986, the date he became an adult. The complainant's evidence is clear that the sexual intercourse took place while she was 9. She turned 10 on February 5, 1986, and was almost 11 on the first date specified in the indictment. Although the one or two incidents of improper touching took place after the sexual intercourse incident, she quite frankly admitted that she could not remember her age or grade in school when those incidents occurred. All she could remember was that the touching had stopped when she was 11. The age of 11 had significance to her only because this was her age when she moved from Beardy's Indian Reserve to Saskatoon. Jurisdiction As I do not have jurisdiction over any sexualassaults committed by the accused while he was a young person,the Crown quite properly declined to ask for an amendment ofthe dates specified in the indictment to conform to theevidence. Although I am satisfied beyond a reasonable doubtthat the accused sexually assaulted the complainant betweenthe dates of February 5, 1985 to February 4, 1986, I am notsatisfied that he did so as charged after he become an adulton the 22nd day of October, 1986. One or two of the incidents of touching might have occurred after this October 22, 1986 date, but such finding would be based more on conjecture than on proven fact. The accused is acquitted of the charge in theindictment.",The accused was charged with sexual assault and was tried in the Court of Queen's Bench. The evidence at trial indicated that the alleged acts had occurred prior to the accused becoming an adult. He had not been ordered transferred into adult court under s.16 of The Young Offenders Act. HELD: Accused acquitted. 1)The Judge was satisfied beyond a reasonable doubt that the accused had sexually assaulted the complainant. 2)Because the complainant's evidence suggested that the assault occurred while the accused was a young offender the Judge concluded that the Court of Queen's Bench was without jurisdiction in the matter.,c_1995canlii5987.txt
360,"QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 352 Date: 2015 11 05 Docket: DIV 361/2015 Judicial Centre: Regina BETWEEN: BYRON GRANT BABICH and ERINN MARIA BABICH Counsel: James J. Vogel for the petitioner Ronald J. Miller for the respondent JUDGMENT MEGAW J. November 5, 2015 [1] There are total of five applications before the court in this matter. The two substantive applications have number of parts to them. For ease of review, am going to refer to the part of each application when making my decision on that discrete issue. The parts of the various applications are as follows:1. Application for Divorce – brought by the petitioner;2. To register the child, Jude Babich, in a Montessori School – brought by the petitioner;3. To take the child, Jude Babich, to a speech therapist – brought by the petitioner;4. To vary the existing parenting arrangements set forth in the decision of Megaw J. dated January 20, 2015 – brought by the petitioner;5. To set the arrears of child and spousal support – brought by the respondent;6. To return the 2005 Volkswagen Beetle vehicle – brought by the respondent;7. Objections to the petitioner’s affidavit of September 28, 2015 – brought by the respondent;8. Objections to the petitioner’s affidavit of October 16, 2015 – brought by the respondent. [2] In addition to all of the foregoing applications, there was discussion at the chambers appearance of whether this matter should proceed on to the high conflict mediation program through direction by the court. That issue was raised by counsel for the petitioner and was not disagreed to by counsel for the respondent. However, counsel for the respondent had not had an opportunity to speak to his client and obtain instructions with respect to that matter. [3] It is apparent these parties are in some conflict at this stage. There was some discussion at the hearing of this matter of certain misrepresentations made by one party or the other. The affidavit material contains areas of conflict. [4] This is an interim application. find that to make the decisions necessary on the applications before me, am not required to make any determinations on either the creditability of the parties or on any allegations of misrepresentation having been made. Rather, the facts of this matter, at this stage, speak for themselves and allow for decisions to be made on the various issues. [5] There is more important reason to refrain from making these types of determinations at this stage. In my view, to make any findings of credibility or misrepresentation at this early stage of the proceedings, is not in the best interests of either the parties or the children. The parents have many years of parenting ahead of them. They both obviously love and cherish their children. To seek to have either of them reflected badly in the eyes of the court, or the public, is something that is neither necessary nor desirable. It is hoped they will each take the court’s reluctance in this regard to heart and attempt to move forward with their parenting, concentrating only on the best interests of their children, recognizing always that it takes both parents to carry through on those best interests. [6] In the event the matter proceeds to trial it may be these evidentiary assessments will need to be made. However, now is not the time. [7] The background facts are set out in detail in my initial decision of January 20, 2015 (2015 SQKB 22). am not going to repeat those facts here. am going to attempt to put those facts into context and to highlight those things which have changed or developed over the course of the last year and which are relevant to the applications now before me. [8] At the time the first application was argued, the respondent was five days removed from having given birth to the third child, Roman. As result of that circumstance, matters involving the children and the petitioner’s parenting were very much in flux. It was my view then, and remains my view, to have then ordered an in depth parenting arrangement with shared obligations ignored the realities of the situation facing both of the parties at that time. [9] As well, at the time of the initial application, the respondent indicated she was, and planned to continue to be, stay at home mom. This was necessarily so based on her history while married to the petitioner. It was also necessarily so based on the fact she had mere days previously given birth. It was expected she would be staying home with the new baby for period of time. It was understood there would be recovery and adjustment period as she dealt with the fact there was new born and the two older, but still infant children, needing time to adjust to everything that was happening with this family. [10] Yet further, at the time of the original order, the respondent was going to remain in the family home and the petitioner was going to live at the lake cottage some distance out of the city of Moose Jaw. The family home was very short distance from the public school and the Montessori program, in which the oldest child had been enrolled and the middle child, Jude, was going to be enrolled. [11] It was expected the petitioner would be able to return to live in the new house once construction had been completed. Shortly before their separation, the parties had commenced construction on new residence in Moose Jaw. The parties’ separation had caused that home to be in state of uncertainty. Construction had not been completed. The home was over budget and there were concerns expressed about their ability to complete construction at any time in the near future. [12] It is now fact the new home has been completed and the petitioner has moved into the home within the last few weeks. The new home is few blocks from the family home. As importantly, the new home is within close proximity to both the public school and the Montessori program. [13] At the risk of stating the obvious, the new baby, Roman, is now just about one year old and the petitioner has been having increased parenting time with him. The material indicates Roman is still being breast-fed. However, there is no indication he has any particular special needs. He is, by all accounts, healthy, happy boy and both parties are parenting him in an appropriate fashion. [14] The parties, through their counsel, are making strides to have this matter proceed through to an ultimate resolution. Appraisals have been arranged, and perhaps received, with respect to the farm land. Those appraisals will then need be referred to an accountant to allow for valuations, tax considerations, and available funding to be commented upon. At the hearing of this matter, it was indicated by both counsel, the case was still some distance from being in position to proceed to settlement pre-trial, much less trial. [15] When the case does go to pre-trial, am advised all issues, both property and parenting, will continue to be before the court. In the event there is no resolution, all of those issues will then be the subject of trial. That is to say, the primary residence of the children and parenting remain ultimate issues as between the parties. However, on the applications now before me, primary residence for the children is not the subject of inquiry. [16] The family property aspect of this matter is complicated. It is complicated by the size of the operation; by the dollar amounts that flow through the operation; by the intertwining of various corporate and personal operations; and, by the petitioner’s original suggestion the operation was in financial difficulty. All of these complications lend support to the suggestion this matter is not ready to proceed to pre-trial, at this stage, and will require considerably more work to allow it to be put in that position. It was submitted in argument by both counsel, pre-trial conference is several months away. Even that loose time frame cannot be viewed as entirely accurate because it is dependent on the availability of various experts to prepare timely reports. [17] On the parenting issue, the parties have agreed to have custody and access report prepared by Dr. Gregory Stevens. It is understood the petitioner will be paying for this report at first instance. Dr. Stevens has been retained and has agreed to complete the assessment. However, he has not yet been provided with all of the material he requires to complete the task. It was indicated in chambers he should have that material shortly. It will then take him some time to complete his report. It is not known how long this will take. [18] Against this factual backdrop and update, now turn to consider the various issues. 1. Application for Divorce – brought by the petitioner. [19] The petitioner applies for judgment for divorce. The parties have been separate and apart for in excess of one year. The statutory requirements pursuant to the Divorce Act, RSC 1985, (2d Supp) for the granting of the divorce are present. The necessary affidavit material has been placed on the court file. [20] The respondent originally opposed the divorce being granted on the basis the petitioner was in arrears of both his child and spousal support payments. [21] The respondent’s original position is not ground for holding up the divorce. Pursuant to s. 11 of the Divorce Act the court is required to ensure adequate arrangements are made for the care of the children. Those adequate arrangements with respect to support are contained in my initial judgment of January 20, 2015. The fact the petitioner is alleged to be in arrears of that support is matter for enforcement and further argument. It is noted the petitioner denies he is in arrears and accordingly, decision on that issue will have to await pre-trial and trial. [22] At the hearing of this application, counsel for the respondent raised further possible reason to delay the implementation of the divorce. He queried whether there would be any adverse tax consequences to divorce being granted in light of the state of the family property as between the parties. There was no indication of what that difficulty might be. Rather, there was simply suggestion there may be some issues. [23] The petitioner seeks to have his divorce in order that he may continue to move forward with his life. He is in new dating relationship. While that relationship is not the reason for the divorce application, it further supports the petitioner’s seeking of divorce. [24] In the circumstances before me, I can see no reason for the denial of the divorce at this stage. Accordingly, the judgment for divorce is granted. The judgment will become effective 31 days from the date of this decision. 2. To register the child, Jude Babich, in a Montessori School – brought by the petitioner. [25] The petitioner, in his materials, indicates Jude is somewhat delayed both in his speech and other development. It is suggested this delay is as result of his lack of interaction with other children his age. [26] The respondent does not disagree with Jude attending the Montessori program in Moose Jaw. However, she was of the view the fact Jude is not yet fully potty trained was an impediment to him attending the school. She indicates it was her intention to have Jude commence the program in January 2016 when he would, hopefully, be fully potty trained. [27] The petitioner has consulted with the Montessori staff and been advised Jude’s ongoing potty training is not an issue for him to be now enrolled in the Montessori program. Despite indications the respondent had paid this enrollment, the petitioner indicates he in fact has made the payments. Presumably, these payments were made in order that Jude’s place in the school could be preserved. [28] Both parents agree the Montessori program is appropriate for Jude and will be of assistance in his development. On the basis of the evidence before me, it is therefore appropriate Jude now be enrolled in the Montessori program. Both of the parties are able to transport him to the program. The evidence indicates it would be beneficial to Jude to have the interaction and the development that the Montessori program provides. The evidence further indicates his lack of full time potty training is not prohibitive to him being enrolled in the program. [29] This item is one of those things that arose during the course of an action and following an interim order being made. Not all matters involving the children can be reasonably anticipated at the time an initial interim order is made. Accordingly, decision on this matter is required now. [30] While the request to register this child in the Montessori program is change, it is not variation of the existing order. Rather, view this as new matter brought by the petitioner and an addition to the existing order. [31] Accordingly, I order Jude may be registered in the Montessori program by the petitioner and begin attending as soon as the program is able to accommodate such attendance. The cost of that program shall be paid, at this stage, by the petitioner. This direction as to cost is without prejudice to any ultimate decision that might be made in that regard at the trial of this action. Hopefully, the parties will be able to agree on who will transport Jude to his Montessori classes. However, in the event they are unable to agree, and the respondent is unable to transport Jude, she shall immediately advise the petitioner and he will then be responsible for getting Jude to the program. 3. To take the child, Jude Babich, to a speech therapist – brought by the petitioner. [32] It appears this issue was resolved prior to the matter coming to chambers. The fact it continued to be argued in chambers is perhaps more reflection of the lack of communication between the parties than any real issue surrounding this part of Jude’s development. [33] The evidence indicates Jude’s speech development is potentially delayed. The petitioner wanted to take Jude to speech therapist in Regina, with which his family had some familiarity. He was prepared to pay the entire cost of the appointment and any treatment. His desire was to avoid the public health system in order that Jude’s treatment might be acted upon more promptly if it proceeded through private stream. [34] In the meantime, the respondent has taken steps to have an appointment booked with speech therapist in Moose Jaw to allow Jude to be assessed and, presumably, speech treatment program to be developed. The rationale for the Moose Jaw appointment is that it allows the respondent to more conveniently have Jude’s treatment attended to. She would not then have to travel to Regina to participate in the assessments, treatment and program. [35] It appears the petitioner does not oppose the respondent’s suggestions. The real concern, likely for both parties, is some assurance the matter be proceeded with and acted upon expediously. As result, direct that this specific issue remain with me. Either party has leave, upon providing two days notice, to have the issue of the speech therapist brought back before me for further argument, if necessary. This argument may proceed either in person or by telephone conference call to be arranged by the Local Registrar. [36] am making this direction simply to ensure the speech therapist issue can be resolved if there are any difficulties experienced with the parties not attending to it promptly or in an appropriate fashion. In light of the direction have made here, there will be no order as to costs with respect to this aspect of the application. will now leave it for the parties to proceed with resolution of this issue. If further court intervention is required, the matter can then be brought back before me with such additional materials as counsel think appropriate in the circumstances. [37] view this issue on the same basis as the previous one. This is new matter which has arisen and upon which decision is required to be made. 4. To vary the existing parenting arrangements set forth in the decision of Megaw J. dated January 20, 2015 – brought by the petitioner. [38] The order of January 20, 2015 was an interim order. It was given at that time to deal with the situation which was then before the court. As indicated, it is important to remember that situation involved newly born infant. The respondent was uncertain as to the plans and the need for nanny. That situation has now developed over the last year such that the respondent has hired full-time nanny and accordingly, her parenting obligations are not full time with the children. As importantly, the youngest child is now one-year-old and has been developing relationship with the respondent and with the petitioner. [39] It is noted the respondent does not necessarily oppose the petitioner having an increased parenting role with all three children. However, she wants to remain in control of that development. [40] When reviewing an interim order, it is incumbent upon the court to remember the threshold test with respect to any changes or variations of that order. In Guenther Guenther (1999), 1999 CanLII 12554 (SK QB), 181 Sask 83 (Sask QB) [Guenther] Laing J. settled the threshold as follows: What this application ignores and there have been others recently, is the consistent case law which states the courts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, or other compelling reason. In Harden v. Harden (1987), 1987 CanLII 4876 (SK CA), 54 Sask. R. 155 (C.A.), Sherstobitoff J.A. on behalf of the Court adopted the statement of Kerans J.A. of the Alberta Court of Appeal in R. v. R. (1983), 1983 ABCA 156 (CanLII), 34 R.F.L. (2d) 277 at p. 284 wherein Kerans J.A. stated: it is at the time of an interim disposition that one should not lightly disturb de facto arrangements: see Cropper v. Cropper (1974), 16 R.F.L. 113 (Ont. C.A.). We should remind ourselves that interim custody is just that: makeshift solution until the correct answer can be discovered. If judge could tell what is best at the outset, there is no need for an interim order. Interim orders are designed to minimize conflict between parents and cause the least harm to the child and determination of the cause. It appears from the foregoing case law, it constitutes an error in principle, and reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [41] This threshold test was then commented on by Sandomirsky J. in Agawa Davis, 2011 SKQB 214 (CanLII), 378 Sask 136 [Agawa] when he stated as follows: 14 However, Guenther must be read with s. of The Children’s Law Act. In particular the court notes ss. 6(3). Here, in ss. 6(3) is clear legislative authority to vary an interim order on any terms and conditions the court considers appropriate, before (emphasis added) the granting of an order under ss. 6(1). 15 The underlying rationale of the Guenther decision and authorities upon which it relies, is quite practical. However, it must be taken in proper chronological context. If the existing interim order is recent and there are no new factors which have arisen since the existing order was made, the effect of which renders the existing order obsolete, then the parties are required to move on to trial or pre-trial. At pre-trial or trial the issues of custody and access may be resolved upon the best evidence, that is given in open court under oath and subject to cross-examination. In open court the trial judge has the opportunity to observe each witness, to listen to the testimony of the witnesses as they testify, to observe the witnesses testifying, and to ask questions where appropriate. On an application to vary presented in affidavit form, the evidence is often conflicted and poorly suited to making such an important decision. 16 The court begins an application to vary by seeking evidence of such material change of facts so as to warrant changing the previous order, whether the previous order was of an interim nature or final order or judgment. The court weighs the same evidence only once. Therefore, absent material change of fact and evidence, variation must be denied. [42] The Saskatchewan Court of Appeal in Napper-Whiting Whiting, 2014 SKCA 33 (CanLII), 433 Sask 235 has endorsed the threshold test set forth in Guenther. [43] am mindful this Court is reluctant to engage upon either review or change to interim parenting arrangements. It has been stated many times, but bears repeating, interim arrangements are intended to be an immediate measure to allow the parties to regularize their parenting arrangements pending final determination by the court. That final determination involves hearing on the evidence and weighing and review of that evidence. At the interim stage, all that is before the court is affidavit material upon which resolutions of disputed fact, credibility or other evidence weighing techniques cannot reasonably be done. [44] However, reluctance to vary or alter interim arrangements should not be seen as an absolute ban by the court. The court must, of course, accept its jurisdictional responsibility to deal with parenting arrangements as they arise. Therefore, as pointed out by Sandomirsky J., all of the circumstances must be reviewed to determine whether an alteration of the interim decision is appropriate at any particular time. Of course, the court is reluctant to interfere in interim arrangements and attempts to tweak them on an ongoing continual basis. As well, the court is reluctant to encourage parties to engage in interim battles rather than simply getting the action on for final determination. [45] But in the words of Laing J., an interim order can be varied if there is evidence of risk to the children or if there is compelling evidence warranting an alteration. There is no suggestion on the material before me that there is any risk to the children. However, thorough review of the factual scenario does reveal compelling evidence, at this stage, to effect variation of the existing interim order. As recognized by Sandomirsky J., if there is compelling evidence of material change, the court may than change what has been in place. [46] note the authorities talk of “compelling evidence” to change interim orders and “material change” to vary final orders. am not certain much stands on this different terminology. Indeed, in Agawa, the court used “material change” on the interim order then under review. [47] Rather than concentrating on semantics, am of the view the court should carefully review the material to determine (in the absence of risk to the child) whether there exists compelling reason to change an interim order. Or, should the matter just proceed through the litigation process. Is the court compelled to change or merely urged to tweak? [48] The interim order here was granted almost one year ago. At the time, parenting arrangements were bit of an unknown. The youngest child was but five days old. The other children were still infants. The respondent indicated she would be the primary parent with the children and no nanny had been hired, at that stage. am aware though of the Court of Appeal direction that the mere passage of time is not sufficient reason to vary an existing order: Wiegers Wiegers, 2008 SKCA (CanLII), 307 Sask 117. [49] The parties are one year removed from the original decision. The matter will not get to pre-trial conference for minimum of several months and perhaps as much or more than year. While the parties are moving diligently towards pre-trial conference, the complicated financial nature of this action prevents pre-trial conference from simply being set in the absence of the expert evidence necessary for assistance. [50] Furthermore, the custody and access report is going to be prepared. While primary residence for the children is not an issue on the application before me, it is an issue generally in this action. The custody and access assessment will presumably assist the court ultimately in determining the primary residence issue and ongoing parenting treatment. In any event, the custody and access assessment will assist the court in determining, ultimately, what the parenting roles should be for each of the parties. [51] As a result of the foregoing, it is not appropriate to have the matter of increasing parenting time proceed to a pre-trial conference, as a stand-alone issue, even an expedited pre-trial conference. There is material that needs to be prepared and the changes sought are not of such momentous occasion they should be avoided simply because they come from an interim order. Rather, it is my view there is compelling evidence before the court warranting the change at this stage with respect to the parenting arrangements. [52] The youngest child, Roman, is now one-year-old. He has been spending increasing time with the petitioner. The respondent, during counsel’s submission, recognized that further time by the petitioner with the child was appropriate and wanted to be the one in control of developing that time. The petitioner seeks to have his parenting time set rather than at the whim of the respondent. [53] There is nothing in the material before me to suggest further time for the youngest child with the petitioner is not in the child’s best interests. Rather, it appears to be accepted such further time is in the child’s best interest. [54] Maximizing the available time between parents is recognized in both the Divorce Act and The Children’s Law Act, 1997, SS 1997, C-8.2 and generally is to be in child’s best interest. Here, the petitioner seeks to have additional time on Wednesdays and Saturdays with the child. He seeks to have the child from Wednesday’s at 1:00 p.m. to 7:30 p.m. and on Saturdays from 11:00 a.m. to 4:00 p.m. [55] This request is reasonable in the circumstances and in the child’s best interests. As result, order the petitioner have parenting time with Roman on this basis. Arrangements will need to be made for the respondent to express her breast milk while the baby is being breast-fed in order that the petitioner will be able to feed the baby while in his care. Leave is granted to either party to have the matter returned to me on two days notice to deal with any further issues in this regard. [56] The petitioner also seeks increased time with the two older children in order that he may get them to their necessary activities and the children can continue to develop their bond with him. There was recognition in the original order the parties would agree on additional time for the children. On the material before me, it does not appear they have been able to agree on this additional time and accordingly, this order will be imposing some additional time. make this determination on the same basis as was done for the youngest child. [57] In the result, am prepared to extend the parenting time the petitioner has with the two oldest children from Friday after school to Monday morning at 8:00 a.m. In addition, he shall have those children from Wednesday after school overnight until Thursday at 8:00 a.m. [58] Concern was raised whether Kruz would get to his hockey practices and games and whether Jude could be enrolled in the learn to skate program. determine it is in the best interests of the children, due to the history with these athletic endeavours, that Jude be enrolled in the learn to skate program. In the event the respondent is unable to transport either of these children to their hockey or learn to skate sessions, she shall forthwith notify the petitioner of her inability. The petitioner shall then be entitled to transport the children to these activities. In the event any difficulty arises with the children getting to their activities, either party has leave to bring the matter back before me on two days notice. [59] have not dealt with the issue of Kruz’ participation in wrestling. This child is enrolled in one activity now. Participation in other activities is not compelling issue now. This will need to await the pre-trial conference. Or, it may be the parties can agree on this due to the child’s apparent affinity for this sport. 5. To set the arrears of child and spousal support – brought by the respondent. [60] The parties submitted materials dealing with the payments that have been made for spousal and child support. The materials were in conflict and it was generally unclear what payments have been made and how these payments should be credited towards support. It is noted the parties agreed, following the initial support order, the petitioner could make certain deductions from the support in order that financial obligations could be paid directly by him. It may be this precise situation is why such arrangements ought to be the exception. [61] The parties are now agreed, as between themselves, the petitioner shall be entitled to deduct from the support payable the amount due for the mortgage on the family home; the loan payment on the Denali vehicle; the license plate cost on the Denali vehicle; the utilities associated with the family home; the property taxes on the family home; the premiums due on all insurance policies; and, the premium due on the house insurance. [62] Where matters stand with respect to who has paid what and what exactly is in arrears is difficult to discern from the affidavit material filed. Both counsel recognized this difficulty during the course of their submissions. It was proposed by the court, and agreed by counsel, the issue of arrears due under the support provisions of my previous order should await further discussion at the pre-trial conference. This would allow the parties to spend some further time checking their figures to ensure appropriate credit is given for payments which have agreed to be paid. It would also allow more complete accounting to be done. Finally, it would allow the parties to deal with the issue of the life insurance and any arrangements which need to be made to cancel or otherwise deal with this item. [63] As a result of this agreement, the issue of arrears of support and enforcement of any arrears from the date of the order to today’s date is to await the conclusion of the pre-trial conference. In the event difficulties develop in the interim, either party is given leave to have the matter returned to me upon providing the other party with two days notice of their intention to continue the argument. have not limited the circumstances under which this matter may be returned to me. This then leaves return available for any issues that may arise under this heading. 6. To return the 2005 Volkswagen Beetle vehicle – brought by the respondent. [64] Prior to the parties’ separation the respondent had owned and operated 2005 Volkswagen Beetle. At the time of the separation it appears this vehicle was left on the farm. The respondent had demanded return of the vehicle. The vehicle was damaged on the farm and may be total loss. There was no insurance on the vehicle. The petitioner arranged to have the vehicle towed to the respondent’s home. Why he took this step is not clear to the court. [65] It appears the foregoing developments all occurred after the various applications had been served and filed. It was agreed by counsel for the respondent there was nothing further for the court to do, at this stage, on the issue of the Volkswagen. It may be that issue continues to be something requiring resolution as the family property issues wend their way to trial. [66] However, at this stage, there is nothing further for the court to do. Accordingly, this issue will be adjourned sine die. Either party shall have leave to have it returned before me upon providing two days notice. There is no present indication this will be required. However, leave it open in this fashion to provide an avenue for the parties to come back to court for, hopefully, quick resolution in the event further discussions are necessary. 7. Objections to the petitioner’s affidavit of September 28, 2015 – brought by the respondent. [67] There were series of complaints with respect to the affidavit material filed by the petitioner. I do not find the complaints to be generally well founded and rule on each concern as follows: Para. This is relevant and speaks directly to the speech therapist; Para. 16 This is not in violation of the Rule with respect to hearsay. The individual is identified; Para. 17 The letter is hearsay but in the circumstances, allow it; Para. 18 This is not hearsay for the same reasons set forth for para. 16; Para. 21 This is statement of fact and allow it; Para. 22 This is not hearsay. It is provided not for the truth of its contents but rather for the fact it was said; Para. 24 Is not in violation of the Rule. The individual is identified on this interim application; Para. 54 This is not speculation or opinion. It is statement of fact; Para. 61 This is hearsay without the proper basis set and accordingly, the portion of the paragraph indicated is struck; Para. 64 This is statement by the respondent and accordingly, allow it; Para. 65 This is not speculation but rather statement of fact. However, the portion dealing with what the teacher said is hearsay and it will be struck; and Para. 71 This is not speculation. It is statement of fact from the petitioner’s perspective. 8. Objections to the petitioner’s affidavit of October 16, 2015 brought by the respondent. [68] With respect to the notice of objection to affidavit evidence of the petitioner’s affidavit sworn October 16, 2015 find as follows: Para. This evidence is provided with respect to the speech therapist issue and is provided after the original affidavit was sworn. It is not new evidence not in reply. The statement was made by the respondent and accordingly, allow it; Para. find this hearsay to be permissible pursuant to the Rule. The individual is identified on this interim application; Para. find this to be opinion and it is struck; Para. 12 This information is provided in response to that raised by the respondent and accordingly, allow it; Para. 13 This information is provided in response to that stated by the respondent and accordingly, allow it. Para. 14 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 15 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 17 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 18 This is provided in explanation for that which precedes it and allow it; Para. 20 This appears to be new evidence not provided in response and it will be struck; Para. 21 This appears to be new evidence not provided in response and it will be struck; Para. 22 While this is technically new evidence it has arisen since the previous affidavit was sworn and is relevant to the matters before me and allow it; Paras. 23, 24 and 25 These are an explanation of what took place on September 29, 2015 and allow them. Para. 31 This is statement of fact and not of opinion, and allow it; Para. 33 These statements are provided in response to the whole speech therapy issue and allow it; Para. 34 This is statement of fact and allow it; Para. 35 This is statement of fact and allow it; Para. 44 This is statement of fact from the petitioner’s perspective and allow it; Para. 45 This is statement of fact from the petitioner’s perspective and allow it; Para. 50 This is new evidence not provided in response and shall be struck; Para. 60 The general tenor of this paragraph is the provision of argument and opinion. It will be struck; Para. 76 This appears to be new evidence not in response to that raised and it will be struck; Paras. 80, 81, 82, 83, 84 and 85 These are matters raised in response to what is going on with Kruz. Accordingly, allow them; Para. 86 This is argument and it will be struck; Para. 87 This is new evidence not in response to that raised and it will be struck; and Para. 88, 89, 90 and 91 These are with respect to the issue of the hockey practice and generally in response to that stated by the respondent and allow it. [69] The petitioner has generally been successful on his applications in this regard. The respondent was somewhat successful on the notice of objection to affidavit evidence [70] In the circumstances, I direct the petitioner shall be entitled to costs in the fixed amount of $1,000.00 with respect to all of the matters brought before the court. This amount is to be paid forthwith and in any event of the cause. The respondent shall be entitled to costs in the amount of $200.00 with respect to both notices of objection to affidavit evidence. This amount shall be paid forthwith and in any event of the cause. e. The respondent shall be able to offset the costs award in her favour against her costs obligation and pay the difference [71] I have determined not to send this matter to the high conflict mediation program. m. do not consider this matter at that stage yet. There are conflict issues and communication problems. It may be the argument of the issues contained in this judgement will move the parties to attempt to bridge these difficulties. It may be decision on these issues will go some distance to resolving the short-term issues. If so, that is in the parties’ best interest. If not, the mediation suggestion may be raised again.","Family Law – Custody and Access – Best Interests of ChildFamily Law – Custody and Access – Interim – VariationFamily Law – DivorceFamily Law – Evidence – AffidavitThe parties were in a high-conflict situation and brought five interim applications with various requests. They had three children, the youngest being born five days before a previous application. At the initial application the respondent mother was living in the family home and the petitioner was living at the family cottage and expected to move into the new home when it was ready. The petitioner did move into the home, which was a few blocks from the family home. The youngest child was almost a year old and the petitioner was having increased parenting time with him. The parties agreed to have a custody and access report prepared. The issues were: 1) divorce; 2) registration of the middle child in Montessori school. The respondent opposed the child attending the school because he was not yet potty trained. The petitioner advised that the school was okay with the child not being potty trained; 3) to take the child to a speech therapist. The parties ended up resolving the issue before chambers; 4) varying the existing parenting arrangements.  There was an interim order from January 2015 made shortly after the third child was born. The respondent had since hired a full-time nanny. The respondent did not necessarily oppose the petitioner spending more time with the youngest child, but she wanted to be the one to control the developing of that time. The petitioner wanted the child Wednesday afternoon to evening and Sunday from 11:00 am to 4:00 pm. He also wanted increased time with the two older children so that he could get them to their necessary activities and so that they could continue to develop their bond with him; 5) arrears of child and spousal support; 6) the respondent’s request to return the 2005 vehicle. The vehicle had been at the parties’ farm and was damaged beyond repair without insurance. The petitioner then towed the vehicle to the respondent’s home; 7) objections to one of the petitioner’s affidavits; and 8) costs. HELD: The issues were decided as follows: 1) the divorce was granted because the parties had been separated in excess of a year and no satisfactory reasons were argued for not allowing it; 2) the court held that it would be appropriate for the child to be enrolled in the Montessori school. The cost of the program was ordered to be paid by the petitioner. The parties were to agree on the child’s transportation to the school and if they could not agree the petitioner would transport him; 3) the court kept the issue under its jurisdiction so that either party could bring the matter back upon two days’ notice; 4) the pre-trial conference was months away and the court did not find it appropriate to have the matter of increased parenting time proceed to a pre-trial conference, as a stand-alone issue. The court found that it was in the best interests of all the children to have further time with the petitioner as he requested. The court also dealt with transportation for the hockey and the middle child’s skating; 5) counsel agreed that the issue of arrears due under the support provisions would await further discussion at the pre-trial conference with either party having leave to bring the matter back on two days’ notice; 6) the matter was adjourned sine die on two days’ notice; 7) the complaints were not generally well-founded; and 8) the petitioner was entitled to costs of $1,000 in any event of the cause. The respondent was entitled to costs of $200 in any event of the cause. The court declined to send the matter to the high-conflict mediation program.",7_2015skqb352.txt
361,"S.C.C. No. 02529 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Freeman, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER Respondent Denise C. Smith for the Appellant R.K. Murray Judge for the Respondent Appeal Heard: February 4, 1992 Judgment Delivered: February 19, 1992 THE COURT: Appeal allowed, verdict of acquittal set aside, conviction entered on the charge set forth in the Information and matter remitted to trial judge for imposition of sentence, per reasons for judgment of Hallett, J.A., Clarke, C.J.N.S. and Freeman, J.A. concurring. HALLETT, J.A. This is an appeal from the acquittal of the respondent on a charge of assaulting his wife. The evidence indicates the respondent had come to visit his estranged wife on August 18, 1990. He complained of being tired and suffering from insomnia. She gave him sleeping pill at about 1:00 p.m. and told him that he should not consume alcohol. The respondent left but returned about 4:00 p.m. and at that time was in possession of quart of whiskey. He left shortly thereafter taking the whiskey with him. At approximately 2:00 a.m. the following morning he returned. His estranged wife had been asleep on the couch without any clothes on. She testified that the respondent was intoxicated. He got angry with her when she asked him what he was doing and he started to leave. She tried to prevent him from leaving as she did not want him to drive motor vehicle in an intoxicated condition. She pursued him into the hall. She testified that he hit her and butted out cigarette on her hand. He then lifted her up in an extremely crude manner and pushed her against the wall. Asked what then happened she testified: ""he wanted me to go put something on in case someone come up the hallway and so we both went upstairs and put something on and we sat sat on the couch and he went on my bed and passed out...."" In giving his decision acquitting the accused the learned trial judge stated: ""The charge, as say, is on the face of it serious one. The behaviour of the accused at the time in question was, as described by Mrs. Saulnier, completely irrational and entirely out of character. She had earlier in the day administered sleeping pill to the accused and cautioned him against drinking. He nonetheless did drink. He doesn't know how much, he doesn't remember anything of the incidents which transpired from the time he went out that evening to have some drinks at bar at the Grand Hotel until the next morning when he woke up in his wife's apartment. It strikes me that the behaviour is all the more bizarre since the parties were reunited in their matrimonial relationship not long after this incident. There obviously is an affection displayed between them today in the court room. can't imagine what would prompt the behaviour of the accused to behave in the fashion he did towards his wife who is obviously attractive and who he obviously has some substantial regard for. Counsel for the accused argues that there is defence of automatism which would apply in these circumstances, the accused not understanding or appreciating what he was doing, that he suffered from delusions, that he apparently thought his wife was sack of potatoes or something, at the time. I'm not satisfied beyond reasonable doubt that he had the intent to assault his wife, or even to strike her."" should note that the argument made at trial by counsel for the respondent that the respondent thought his wife was sack of potatoes or something at the time he was lifting her and pushing her against the wall was not supported by the evidence. The respondent testified that after he left his estanged wife's place that afternoon he received call to go back to work; he then went out drinking with some friends at the Grand Hotel. He has no recollection of anything that took place after that; his next recollection was getting phone call the following day to go to work. The Crown appeals on the following ground: ""THAT the learned trial Judge erred in law in instructing himself on the defence of non‑insane automatism in the absence of an evidentiary foundation."" The Crown asserts that there was no evidentiary basis for the trial judge's finding that he had reasonable doubt that the respondent had the intent to assault his wife. Therefore, one must ask whether the evidence of the respondent's state of intoxication supports finding of lack of intent to commit the assault on his wife. The leading case in Canada respecting the defence of drunkenness in relation to general intent offences, of which common assault is one, has been the decision of the Supreme Court of Canada in Leary v. The Queen (1977), 1977 CanLII (SCC), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] S.C.R. 29, 37 C.R.N.S. 60, [1977] W.W.R. 628, 13 N.R. 592. The decision has generally been interpreted as meaning that the defence of drunkenness has no application in general intent offence. In Bernard v. The Queen (1988), 1988 CanLII 22 (SCC), 45 C.C.C. (3d) the majority of the Supreme Court of Canada did not accept the appellant's invitation in that case to overrule the Leary decision. McIntyre J. with Beetz J. concurring re‑affirmed the distinction between general and specific intent offences and confirmed the Leary decision that the defence of intoxication has no application in offences of general intent. However, Wilson J., with L'Heureux‑Dube J. concurring, agreed that the Leary decision should not be overruled but felt that the Leary decision, properly understood, did not prevent an accused from relying on evidence of voluntary intoxication to negative the minimal intent required for general intent offences. Justice Wilson concluded that the Crown must prove an accused applied force intentionally in the case of an assault charge but to warrant acquittal based on intoxication the evidence of intoxication must be such that it shows an accused to have an absence of awareness akin to state of insanity or automatism. Therefore, in her opinion, it is only in cases of extreme drunkenness that evidence of intoxication is capable of raising reasonable doubt on the issue of intent in general intent offence. The other three members of the court, Dickson C.J.C., Lamer, J. and La Forest J. were of the opinion that the rule in Leary that defence of voluntary drunkenness has no application to general intent offences should be overruled. In R. v. Quin, 1988 CanLII 21 (SCC), 44 C.C.C. (3d) 570 which was handed down on the same date as the Bernard decision, the same panel of judges reached similar results in connection with whether or not the defence of drunkenness ought to have been available to the accused who in the Quin case broke and entered dwelling house and committed an assault causing bodily harm. It too was case of self‑induced intoxication. In the course of concluding that the defence of drunkenness was not available Wilson J. stated at p. 575: Although, as the Chief Justice notes, there was considerable evidence from both the appellant himself and from an expert witness that the appellant was ""very drunk and acting very much out of character"", there was no evidence of such extreme intoxication as to negate an aware state of mind as in the case of insanity or automatism. Accordingly, the rule in Leary v. The Queen (1977), 1977 CanLII (SCC), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] S.C.R. 29 (S.C.C.), should, in my view, have been applied by the trial judge. One can draw the following conclusions from the Bernard decision. The Leary decision has not been overruled. The distinction between specific and general intent offences has been preserved. In general intent offence the Crown need only prove beyond reasonable doubt that the accused had the intent to perform the actus reus of the offence. This intent can be inferred from the acts of the accused; it is minimal intent that he consciously did the act that constitutes the offence. agree with the conclusion reached by Madam Justice Wilson in the Bernard case where, after reviewing the comments made by Fauteux J. and Ritchie J. in R. v. George (1960), 1960 CanLII 45 (SCC), 128 C.C.C. 289, [1960] S.C.R. 871, 34 C.R. (S.C.C.) and the comments of Pigeon J. in the Leary decision respecting the intent required to be proven in offences of general intent, she stated at p. 41: ""I believe that the Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences. view it as preferable to preserve the Leary rule in its more flexible form as Pigeon J. applied it, i.e., so as to allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to state of insanity or automatism. Only in such case is the evidence capable of raising reasonable doubt as to the existence of the minimal intent required for the offence. would not overrule Leary, as the Chief Justice would, and allow evidence of intoxication to go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence."" For the policy reasons enunciated by McIntyre J. in the Leary case and the view of Wilson J. which I have quoted, I am of the opinion that voluntary intoxication of a person cannot be considered as raising a reasonable doubt as to his intent in connection with a general intent offence unless the degree of intoxication is so extreme that the accused did not even possess the minimal intent to perform the actus reus of the offence because his state of awareness was akin to automatism or insanity. This minimal intent requires that an accused perform conscious as opposed to accidental or unconscious acts. There will rarely be case in which the evidence will support finding that self‑induced intoxication caused an accused to be in so‑called state of automatism that would lead to finding of reasonable doubt as to the intent required to prove general intent offence. should note that the constitutionality of the common law rule that drunkenness is not defence to general intent offence was not raised by Notice of Contention on this appeal. In R. v. Penno, (1991) 1990 CanLII 88 (SCC), 115 N.R. 249 Lamer C.J.C. directed his mind to the effect of the majority decisions in the Bernard case. He stated at paragraph 75: ""I conclude, therefore, that only minority [McIntyre J. with Beetz concurring] in Bernard expressed conclusive opinion as to the constitutionality of the rule denying defence of intoxication for all general intent offences. In cases where the intoxication would succeed in raising reasonable doubt as to an element of general intent offence, the question is, in my opinion, still open for this court to decide."" In same same case Wilson J. commented at paragraph 33: ""In R. v. Bernard, 1988 CanLII 22 (SCC), [1988] S.C.R. 833; 90 N.R. 321, this court held that denying the defence of intoxication in the case of an offence of general intent does not violate the Canadian Charter of Rights and Freedoms at least insofar as cases not involving 'substituted' mens rea are concerned. Accordingly, if Chief Justice Lamer's reasons in this case are not confined to ""substituted"" mens rea cases, which they do not appear to be, it would appear that he is reopening the issue in Bernard. While this is, of course, perfectly open to him to do, tend to the view that Bernard was correctly decided. remain of the view that intoxication falling short of insanity or automatism is not defence to crimes of general intent. The defence of intoxication is, of course, available in the case of crimes of specific intent."" At this time the two majority opinions in the Bernard case remain the law of Canada. Interpreting them in manner most favourable to the respondent, the majority opinions at least stand for the proposition that voluntary drunkenness is not generally defence to general intent offence but could be defence if the intoxication has induced state of automatism or insanity. In the Penno case Justice Wilson expressed the rationale for this rule at paragraph 36: ""Intoxication has traditionally been viewed as relevant to mens rea. Certainly this was so in Bernard where, as already mentioned, it was held that the defence of intoxication was available only in relation to crimes of specific intent and not to crimes of general intent. The rationale in support of this finding was that intoxication could affect person's ability to foresee the consequences of an act, which is requirement for crimes of specific intent, but that, generally speaking, intoxication could not deprive person of the ability to know that he or she was committing the act, which is the minimal requirement for crimes of general intent."" The learned trial judge found that he was not satisfied beyond reasonable doubt that the respondent had the intention to assault his estranged wife. As previously noted, the Crown asserts that the learned trial judge erred in law in instructing himself on the defence of non‑insane automatism in the absence of an evidentiary foundation for the defence. The evidence of the respondent's wife leads to the inference that the respondent had driven his car to her residence. Her evidence proves that he was extremely intoxicated and did not seem ""like himself"". There was no evidence as to the strength of the sleeping pill that he had taken. There was no evidence as to the amount of alcohol he drank on the day in question. The respondent simply has no recollection. There is no medical evidence as to the affect the sleeping pill and his drinking would have had on him. It would have added credibility to the defence theory that the respondent acted as if his wife was sack of potatoes if there was evidence that the respondent customarily used sacks of potatoes as punching bags and ashtrays but there was no such evidence to explain why he hit his wife and butted out cigarette on her hand. Likewise, there was no evidence that he customarily spoke to sacks of potatoes or was concerned about them not being properly clo thed. There is no evidence to support finding that his state of intoxication was anything but self‑induced. The courts, in number of cases, have commented that as general rule it is difficult to prove automatism in the absence of medical evidence. In Hill v. Baxter, [1958] All E.R. 193 (Q.E.D.) the court stated at p. 197: ""I do not doubt that there are genuine cases of automatism and the like, but do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent."" Similarly, in Bratty v. Attorney General for Northern Ireland [1963], A.C. 386 (H.L.) the court stated: ""The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for man to say ""I had black‑out"": for ""black‑out"" as Stable J. said in Cooper v. McKenna, ex parte Cooper is one ""of the first refuges of guilty conscience and popular excuse."" The inability to remember events at later time, while perhaps some indication of automatism, does not in itself provide basis for finding of automatism. R.v. Clarke (1973), 1973 CanLII 1495 (NS SC), 16 C.C.C. (2d) 310 (N.S.S.C.A.D.); In R. v. Myers (1979), 31 N.S.R. (2d) 444 (S.C.A.D.) this court commented at paragraph 25 on the quality of evidence required where automatism is raised: ""Evidence that the appellant was an automaton in fact was not merely insufficient; it was non‑existent. No direct medical or other evidence was given which showed that the appellant was in fact concussed. None of those who talked to him at the time of the accident, including the ambulance attendants, and none of the doctors or others who examined him the next morning, gave any evidence as to the nature of his injuries, or as to his response to questions, including the breathalyzer demand, from which the conclusion could be drawn that the appellant in fact was concussed and did not then know what he was doing. All Dr. Stevenson could say was that an accident such as described ""could"" cause concussion and false appearance of understanding and consciousness. No foundation of fact was laid from which an expert could infer that this man was probably an automaton when he refused the demand. See Bleta v. The Queen, 1964 CanLII 14 (SCC), [1964] S.C.R. 561, as to the vital necessity of proper factual foundation for medical opinions as to automatism."" Apart from the fact that there was no medical evidence to support finding that the respondent's state of awareness was akin to that of automatism, the evidence of his wife shows that the respondent had the presence of mind to recognize that she was naked and to suggest to her that she get clothes on in case somebody came by. In short, the evidence cannot support finding that the respondent was so extremely intoxicated that he should not be presumed to have intended the consequences of his act of assaulting his wife as would be the case if his state of awareness was akin to that of state of insanity or automatism. In fact, the wife\'s evidence indicates the respondent had an appreciation of the circumstances of the assault at the time, although he cannot remember. The ""sack of potatoes defence"" is not supported by any evidence. am of the opinion that the trial judge did not properly direct himself as to the type of evidence necessary to conclude, as result of the respondent's degree of intoxication, that there was reasonable doubt that the respondent had the minimal intent required for the general intent offence of common assault. It is necessary to consider how to dispose of this appeal. Section 686(4) of the Criminal Code, 1985, provides: (4) Where an appeal is from an acquittal the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial, or (ii) except where the verdict is that of court composed of judge and jury, enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. The Crown requests the following relief: The Appellant respectfully submits the appeal be allowed, the verdict of acquittal set aside, and verdict of guilty entered, and sentence warranted in law passed, or the matter of sentence remitted to the trial court with the direction sentence warranted in law be passed; or in the alternative, that the appeal be allowed, the verdict of acquittal set aside, and new trial ordered. In order to exercise jurisdiction to enter conviction court of appeal must be satisfied all findings of fact necessary to support finding of guilt were made either explicitly or implicitly by the trial judge. This common law rule must be strictly applied. R. v. Cassidy (1989), 1989 CanLII 25 (SCC), 50 C.C.C. (3d) 193, 61 D.L.R. (4th) 480, [1989] S.C.R. 245. It is clear from reviewing the reasons given by the trial judge he found that the respondent did assault his wife. He stated: ""The Court is conscious of the seriousness of spousal assault. There was clearly an assault here."" He then went on to describe the assault. However, the learned trial judge stated in the last paragraph of his decision that ""he didn't strike her"". Considering his previous finding that there had been an assault and considering the context in which the remark was made assume the learned trial judge meant that the respondent did not intentionally or consciously strike her. For the reasons which have already stated the evidence did not support such finding. There is presumption person intends the natural consequences of his/her acts. Having found there was, in fact, an assault and as the evidence of intoxication was totally insufficient to raise reasonable doubt as to the minimal intent required to prove general intent offence the learned trial judge by implication found the respondent' had the requisite intent for the offence of common assault when he concluded there, in fact, was an assault. Therefore, I am of the opinion the respondent ""should have been found guilty but for the error in law"" which I have identified. I would set aside the acquittal and enter a verdict of guilty pursuant to the powers vested in this Court by Section 686(4)(b)(ii) of the Criminal Code. Both counsel requested that if guilty verdict were entered the matter should be remitted to the trial judge for sentence so that pre‑sentence report could be prepared. would make such an order directing the trial judge to impose sentence that is warranted in law. J.A. Concurred in: Clarke, C.J.N.S. Freeman, J.A. CY 5968 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER HEARD: At Yarmouth, in the County of Yarmouth, Nova Scotia on the 17th day of May, A.D., 1991 BEFORE: The Honourable Judge C. E. Haliburton, JCC CHARGE: C.C. Section 266(a) DECISION: On the 17th day of May, A.D., 1991 COUNSEL: R.M.J. Prince, Esq., Crown Attorney R.K. Murray Judge, Esq., Defence Attorney S.C.C. No. 02529 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A.",", The Crown appealed the acquittal of the respondent on a charge of assaulting his wife. The trial judge had found the respondent, who had taken a sleeping pill and was drunk at the time of the assault, did not have the intent to commit the assault. Allowing the appeal, that voluntary intoxication cannot be considered as raising a reasonable doubt as to intent in a general intent offence unless the degree of intoxication is so extreme that the accused did not even possess the minimal intent to perform the actus reus because his state was akin to automatism or insanity. The Court noted that no medical evidence as to the affect of the sleeping pill with the alcohol was adduced, nor was there any evidence concerning the strength of the pill or the amount of alcohol consumed and concluded that the evidence supported the conclusion that the respondent appreciated the circumstances of the assault, even though he could not remember it afterward. The Court set aside the acquittal and entered a verdict of guilty pursuant to s. 686(4)(b)(ii) of the Criminal Code as it had concluded that the respondent 'should have been found guilty but for the error in law'.",9_1992canlii2588.txt